A federal district court judge in the state of Washington has dismissed a major lawsuit challenging alleged domestic military spying against antiwar activists. He made the choice not to do his job, admitted to lawyers representing activists that he had not reviewed all the evidence and issued a decision that could seriously jeopardize the ability of citizens to dissent in American society if it is allowed to stand.
The lawsuit is known as Panagacos v. Towery. It accused the United States Army of directing John Jacob Towery, who worked for the US Army Force Protection Division at Fort Lewis, to infiltrate a group called the Port Militarization Resistance (PMR) in Olympia and Tacoma in Washington. It also accused the cities of Olympia and Tacoma of coordinating with the Army to violate the First and Fourth Amendment rights of activists.
PMR organized demonstrations from 2006 to 2009 and engaged in nonviolent civil disobedience with intention of preventing the shipment of Stryker vehicles or other military cargo to Iraq.
The defendants—military and law enforcement officials—sought summary judgment, which means they believed there were no facts in dispute in the case and the law was on their side. Judge Ronald B. Leighton, who was appointed by President George W. Bush to the US District Court of the Western District of Washington, decided in favor of them.
National Lawyers Guild attorney Larry Hildes, who represents multiple activists who were targets of alleged military spying, was livid and immediately indicated that this decision by should be reversible on appeal.
“He’s got to review all the evidence presented,” Hildes said. The judge admitted he didn’t with our evidence, however, he quoted from the government’s arguments. He is “supposed to view the evidence in the light most favorable to us,” he added.
The mere fact that the activists had engaged in civil disobedience, whether nonviolent or not, was enough to convince the judge that it was acceptable for the government to spy on the activists however they wanted, for as long as they wanted, regardless of any Defense Department regulations or constitutional law.
“I’m really concerned about where this leaves the Constitution,” Hildes confessed. “This ruling potentially does so much utter damage to what’s left of the First and Fourth Amendments and what’s left on the restrictions of what the military can do that we don’t have a choice but to appeal.”
Both sides had been scheduled to have oral argument. When the afternoon’s proceedings began, according to Hildes, the judge immediately issued rulings that essentially indicated there was nothing wrong with the Army’s use of force, the spying or the arrests, even though no one was ever charged with a crime. Then, Leighton proceeded to say they could have oral argument and challenge the NLG’s team while at the same time helping the government officials make their arguments.
“He had already made up his mind,” Hildes said. “There was no real pretext of fairness.”
In fact, no written ruling explaining his decision was prepared and issued for the public to read and understand his legal rationale. He did not care. All he did was check a box on a document indicating that he had decided to grant summary judgment in favor of the government officials.
So, what did the judge decide was permissible by issuing this decision?
Towery was going to activist meetings in private homes, as well as public demonstrations. He admitted during his deposition [PDF] with Hildes that he was paid overtime and “comp time” by the Army to spy or collect intelligence on activists.
A US Army investigation into his activity actually found that he had violated a Defense Department regulation that is a derivative of the Posse Comitatus: “No DOD personnel will be assigned to attend public or private meetings, demonstrations or other similar activities for the purpose of acquiring information, without specific approval by the Secretary of Defense or his designee.” Towery had no approval from the Secretary of Defense.
Towery provided the personal emails and phone numbers of plaintiffs Jeff Berryhill and Brendan Dunn to Chris Adamson, who was the director of a regional intelligence group of the Department of Homeland Security’s Washington Fusion Center. He provided the information, even though neither of them were under arrest or charged with crimes. [These individuals were at some point listed in a database as "domestic terrorists" and Adamson played a key role.]
“I gave [Adamson] information on people who he had known had been arrested on criminal activities and their known associates,” Towery said during deposition.
Hildes followed up, “So, therefore, it’s okay to tell him who they’re romantically involved with because they’ve been arrested at demonstrations before; is that right?” Towery later said it was alright if they associated with people who had been arrested for crimes, including and especially those targeted at protests.
Using a work email address, which he could only access at Fort Lewis, he sent a message to civilian law enforcement officials at the federal and local levels in Portland, Los Angeles, Eugene and Spokane, as well as the FBI, about developing an “information-sharing group.”
Towery took activists, who he thought had a potential to commit violence, to a gun show and then turned around and informed his superiors that they had an interest in guns. He allegedly informed at least one of the activists where Stryker vehicles were located on Fort Leiws as they drove across the military base. Was this done deliberately to make the group seem like more of a threat so the Army could further target and disrupt the movement?
Glenn Crespo, an activist who Towery tried to persuade to purchase guns, appeared on “Democracy Now!” in February and shared how Towery had tried to get him to use a set of “military strategy documents” in their actions. He also showed people “how to clear a building with a firearm.”
Crespo also recalled:
…[Towery] submitted an article to a magazine that I was editor of in early 2009, that was written from the perspective of 9/11 hijackers. And I remember this very specifically, because he gave me a copy, a physical copy, when we were on our way to go get coffee. And I remember reading it, and probably about a quarter of the way through realizing I didn’t even feel comfortable touching it, like touching the physical document with my hands. It was the weirdest thing in the world, because it was kind of—it was basically implying—or seeming sympathetic with the 9/11 hijackers. And he wanted me to publish this in his—in the next issue of the magazine I was editor of. So I just—I actually—because he was being so forceful, I just didn’t do the magazine again. That first issue was the last issue. And once he submitted that paper, I didn’t publish it ever again…
Putting Leighton’s decision into perspective, Hildes argued, “It basically is the death knell of the antiwar movement and the death knell of the ability of people to dissent in this society. I mean, people get arrested all the time at demonstrations without actually having done anything illegal and this is basically saying that’s okay and that justifies the military spying.”
“It’s exactly what the Church Committee and the COINTELPRO hearings sought to stop and to prevent – the gathering of dossiers on people simply because they’re politically active, who their personal relationships are with, what their politics are, their families, where their families are from, etc, and using all of that against them to shut those movements down.”
“You don’t even actually have to have committed civil disobedience,” Hildes reasoned. “The police have to decide to target you and arrest you and that justifies them doing full-scale undercover operations on a bunch of political activists.”
The decision “rolls back decades and decades of jurisprudence on the rights of demonstrators, on the right to privacy and 140 years of restriction on the military and says it’s okay.”
“If you can’t dissent without the military spying on you and targeting you, then who is going to dissent?”