The increased use of computers by local police departments in each state with direct access to telecommunications systems was also a matter of concern. "This could easily become a nationwide computerized network used to collect and compare information in both the FBI and other computerized law enforcement files," said Sheila O'Donnell, co-founder of the Public Eye magazine. "Agencies at all levels of government can now be tied into a nationwide intelligence network of dossiers on political dissidents and, in fact, on every American citizen." O'Donnell and others feared the development of two parallel computerized political intelligence networks -one public, one private -that could share information about political activists and have direct access to modern data banks as well as to the files compiled during the McCarthy period.
"We fear there will soon be a complete integration of the public and private political intelligence apparatus," warned attorney Matthew J. Piers, in 1982. Piers, the former chairman of the National Lawyers Guild Civil Liberties Committee, went on to predict "This network will then be unleased first against persons accused of having ties to unpopular foreign govenments or affiliated with alleged terrorist groups. But inevitably the public-private network will move on to investigate and disrupt the activities of a wide range of community, labor and political activists.
Piers could not have known at the time he spoke that the FBI was already cooperating with private right-wing groups to launch an investigation of the anti-interventionist group CISPES. One justification used by the FBI was a right-wing analysis that characterised CISPES as a terrorist group supporting foreign revolutionaries.
One classic incident of private sector political spying involves two right-wing intelligence networks who spied on anti-nuclear activists planning for the 1977 nonviolent sit-in at Seabrook nuclear power plant building site in New Hampshire.
The pro-nuclear U.S. Labor party (USLP), a right-wing cult group headed by perennial presidential candidate Lyndon laRouche, maintains an intelligence gathering outfit that has an international Telex system tied to a computerized dossier filing system of activists, especially those working against nuclear power. Members of the LaRouche/USLP spy group routinely pass along their hysterical and inaccurate "intelligence" to local, state and federal police agencies.
One month before the Clamshell Alliance staged its massive Seabrook occupation, LaRouche's spies met with New Hampshire State Police agents, and warned them the demonstration was a cover for a terrorist attack. Among the documents provided to the police was material from Information Digest, a right-wing blacklist newsletter produced by aides and consultants to the late Rep. Larry McDonald (D-GA), a John Birch Society member who often blasted progressive groups in the Congressional Record. These USLP-supplied documents were apparently the basis for then-New Hampshire Governor Thompson's statements that the Seabrook Demonstration was being planned by "terrorists." In the New Hampshire Police's summary of the USLP material, the Labor Party representatives are repeatedly described as "well- informed" and the police investigators give total credence to the charges that the proposed demonstration was "nothing but a cover for terrorist activity." The Seabrook demonstration included non-violent civil disobedience, but no acts of violence on the part of the demonstrators.
The incident is classic for several reasons: · The information collected by the private spies was passed along to a public police agency which then took the unverified information and reported it to an elected official who made decisions and public statements based on the "intelligence." · The intelligence was collected from several different private sources before being passed to the public sector. · The purpose of the intelligence was to discredit the legitimate organizing activities of a group dedicated to non- violence by publicly labeling them as "terrorists." · The information itself was inaccurate and grossly distorted by the paranoid conspiracy theory views and extreme right-wing ideology of the private sector intelligence gathers.
In the late 1970's the National Lawyers Guild discovered that thousands of pages of FBI files on the NLG and its members remained carefully indexed and neatly filed in numerical order for fast retrieval. Many of the FBI reports were inaccurate, inflated by ambitious agents, or illegally obtained, yet in late 1979 the FBI provided files to Senator Strom Thurmond who was seeking to block federal judgeship for a former National Lawyers Guild activist. <$F This section was originally researched in cooperation with Nancy Katz for the National Lawyers Guild lawsuit against the FBI.>
In August of 1979, Thurmond asked the FBI for material on the Guild detailing "the total Communist influence," on the Guild and "any known actions that would reflect on the NLG's opposition to our Democratic form of government." Thurmond wanted "special emphasis placed on the Executive Board of the Detroit, Michigan Chapter for the period 1960-1965." That was when Anna Diggs Taylor, the federal judge nominee, was active in the Detroit NLG Chapter leadership.
FBI director William Webster sent Thurmond "excised copies of FBI reports" on the Detroit Guild, but limited the material to information "previously released to the plaintiff's" in the NLG lawsuit against the FBI. An FBI memo noted the material was provided to the Senate Committee on the Judiciary when "Senators Thurmond and Kennedy both desired this information...for a Committee hearing". Thurmond failed to attend the hearing, but Kennedy asked Taylor to respond to charges made "in the past" that the NLG had "communist connections."
"Preventing this type of use of the FBI information is one aspect of the Guild's lawsuit against the FBI," said Attorney Michael Krinsky of Rabinowitz, Boudin, Standard, Krinsky & Lieberman, the law firm handling the Guild lawsuit sponsored by the National Emergency Civil Liberties Committee. Krinsky's co- counsel, Gordon Johnson, points out that many of the FBI records on the Guild were gathered by "massive informant infiltration, wiretaps, trash covers, and burglaries; and yet these misleading and illegally-gathered records have the capacity to be used against the NLG and others to recycle the smear." Krinsky and Johnson charge that much of the FBI-collected information was not related to any law enforcement purpose, but was amassed to be used by the FBI and Congressional Witch Hunters to discredit and destroy progressive organizations.
Much of the FBI's information was originally gathered to provide fuel for the first round of Witch Hunts, yet it is still intact, and apparently available to Congressional committees. "It is not proper to draw on the FBI's vast body of illegally gathered political intelligence," insists Krinsky. "The government has no right to have membership lists or financial records from the Guild nor information on political positions taken by Guild members. This is simply none of the business of government," Krinsky said.
Over the years there have been scores of articles in the conservative & reactionary press which Red Baiting the NLG. NLG president Debra Evenson, a law professor at DePaul University in Chicago, said "the National Lawyers Guild has learned to expect red-baiting over the years, and we are discussing ways to confront it." One survey conducted by the NLG showed that older members as well as law students are fearful of professional repercussions should their membership become widely known. "Martin Luther King, himself a target of similar anti-communist attacks, talked about this deep `malady' that afflicts the American spirit," said Evenson who sees a need for a broader coalition to, "address the pathological anti-communism that has lead our country into its present situation in which a presidential candidate has tried to label even `liberals' as being outside the `mainstream'."
In a democracy based on informed consent and the free interplay of ideas, the criticism of an idea based on labelling and smears serves to limit debate and establish narrow parameters to discussion. Yet the right-wing Red Baiters serve not only to de-legitimize progressive politics through smears, but through conspiratorial subversion-mongering, also provide a convenient justification for putative criminal probes by government agencies such as the FBI. This is in part what happened with the FBI probe of CISPES.
With the revelations of government surveillance abuse that emerged during the 1970's came a series of lawsuits across the country. While many of these cases dragged on into the 1980's the vast bulk of the factual evidence of government misconduct was publicized during the 1970's and resulted in a series of partial and in some instances short-lived reforms. Since it was the public debate created by the information emerging from the lawsuits, their findings and results will be discussed here, even though the legal proceedings sometimes stretched into the 1980's and the Reagan years.
The Socialist Workers Party Case
Perhaps the most significant lawsuit against government misconduct was the thirteen-year-long legal battle between the Socialist Workers Party and various government law enforcement and intelligence agencies which conducted surveillance and harrassment of the group. The case ended with damage awards of over $250,000 to the SWP.<$F The damages awarded were based on a claim under the Federal Torts Claim Act (FTCA), 28 U.S.C. SS 1346(b). The bulk of the SWP's claims, calling for declaratory and injunctive relief and damages under other federal statutes and the Constitution, were dismissed by the court. When the suit was filed in 1973 the damage claim was $26 million and no claims were made under the FTCA. In 1976, an amended complaint raised the damage claim to $40 million and added for the first time FTCA claims based on evidence produced during discovery and information circulated in the media. Based on further evidence revealed during the trial, the SWP's damage claims were eventually increased to $70 million. The suit was originally a class action but a stipulation and order on September 9, 1974 dropped the class action aspect. Remaining plaintiffs at that point consisted of several named individuals and the two named organizations. Damage claims were also wittled down before trial. A pre-trial plaintiff brief argued the government was liable for damages "under the FTCA according to several alternative theories. These include liability under the state law of trespass, conversion, prima facie tort, and intentional interference with economic relations, as well as liability under federal statutes, 42 U.S.C. SS 1983 and 1985 (3), and 18 U.S.C. S 2520, and under the First and Fourth Amendments." The FTCA claim was the only one to survive at the commencement of trial. Individual incidents of surreptitious entry, infiltration, and disruption by government agents were ruled to be be tortious under applicable state laws. Damages were tallied at a frugal rate for each incident to arrive at the total damage award of $264,000. Damages sought for electronic surveillance were dismissed on procedural grounds. All individual plaintiff claims were dismissed.>
The case began on July 18, 1973 when the Socialist Workers Party (SWP), its youth arm, the Young Socialist Alliance (YSA), and several members of the Trotskyist political organization filed suit against the United States Government and various officials seeking a judicial declaration that the government had violated its rights, an injunction against continued harassment, and damages for the harm caused by the government's wrongdoing. The case was filed in U.S. District Court for the Southern District of New York before Judge Thomas P. Griesa.<$F District Court: 387 F. Supp. 747 (1974); 458 F. Supp. 895 (1978); 458 F. Supp. 923 (1978); 463 F. Supp. 515 (1978). Court of Appeals: 510 F.2d 253 (1974); 565 F.2d 19 (1977); 596 F.2d 58 (1979). Supreme Court: 419 U.S. 1314 (1974) (denial of stay); 436 U.S. 962 (1978) (cert. denied); 444 U.S. 903 (1979) (cert. denied).>
The SWP claimed the government had targeted the organization and its members with a campaign of infiltration, disruption and harassment in violation of their legal rights. The SWP also challenged the government's characterisation of the group as a threat to national security. The impetus for the original complaint was a series of specific incidents involving what the SWP characterised as illegal and unconstitutional harassment of their members by government officials.
The SWP immediately launched an aggresive media and organizing campaign as an adjunct to its legal battle. They said they wanted to "put the government on trial" for its harrassment of all dissidents and civil rights activists, and noted with irony that Judge Griesa's chambers were in the same federal court house where the Rosenbergs were sentenced to death after having been convicted as "atomic spies" in a well-known case that is still controversial and debated today.
"In our suit we are demanding an end to government investi- gation and harassment based solely on our political ideas and activities. If we win a favorable ruling, it will strike a blow at the entire political police setup," said Larry Seigle, a spokesperson for the SWP. This high visibility political stance - and the request by the SWP that the court rule on whether or not they were "subversives" and thus constituted a real threat to national security - were hotly debated among attorneys in the civil liberties field.
The case was among the first filed attacking the government's use of informants and charging an illegal pattern of disruption and invasion of privacy carried out by government agents operating under the cloak of legitimate investigative powers. Ironically, several other cases raising similar issues, and which were filed after the SWP action, were concluded prior to the handing down of the decision in the SWP case. In several of those cases, intelligence agency and law enforcement agency practices of warrantless wiretaps, burglaries and continuing surveillance, and dossier compiling absent any credible evidence of criminal conduct, have been found to be impermissable.
The FBI Investigation of the SWP
The court spent forty pages reviewing the 35 year FBI investigation of the SWP, and there was little factual dispute over what the FBI had actually done to the SWP in the course of its investigation.
The FBI was already watching the SWP when in 1941 eighteen SWP leaders were prosecuted by the Federal Government for violation of the Smith Act.<$F 18 U.S.C. S/ 2385.> They were charged with advocating the violent overthrow of the Government in specific speeches, and were convicted in December 1941. The convictions in what was called the Dunne Case were upheld on appeal.<$F Dunne v. United States, 138 F.2d 137 (8th Cir. 1943), cert. denied, 320 U.S. 790 (1944).> Following the convictions in the Dunne case, the scope of the FBI investigation of the SWP broadened.
The court noted that "FBI investigations are classified as either criminal investigations or national security investigations," and according to the court, the FBI investigation of the SWP "from the early 1950's onwards [was] a national security investigation." The FBI investigation of the SWP continued until Attorney General Levi terminated the investigation on September 9, 1976.
The court noted that to some extent the FBI investigation of the SWP "involved the use of publicly available information. For example, the FBI analyzed publications of the SWP and observed events open to the public. The court found, however, that the FBI engaged in activites of a more intrusive nature, especially through the use of informants, disruption, electronic surveillance, and surreptitious entries or "Bag Jobs."
The Department of Justice and the FBI also kept track of the SWP through two programs, the Security Index/ADEX program which was a list of persons targeted for possible detention in time of national emergency, and the Loyalty-security Program which involved security checks on government employees.
As the following abridged charts from the court ruling indicate, the FBI use of informants in the SWP/YSA was far from casual.
Since the SWP and the YSA have relatively few members, these informants comprised a small yet significant percentage of the membership.
Year % and # of members who were FBI
The court took a dim view of this level of infiltration given the lack of evidence of criminal activity by the SWP.
"Presumably the principal purpose of an FBI informant in a domestic security investigation would be to gather information about planned or actual espionage, violence, terrorism or other illegal activities designed to subvert the governmental structure of the United States.
"In the case of the SWP, however, there is no evidence that any FBI informant ever reported an instance of planned or actual espionage, violence, terrorism or efforts to subvert the governmental structure of the United States. Over the course of approximately 30 years, there is no indication that any infor- mant ever observed any violation of federal law or gave infor- mation leading to a single arrest for any federal law violation." The court did note somewhat sarcastically the one positive effect of the use of FBI informants - it provided the court with a detailed record "recording peaceful, lawful activity by the SWP and YSA."
The court found that "one use of informants was to gain information useful to the FBI in its program to disrupt the SWP," and that the FBI "encouraged the member informants to frustrate the growth" of the SWP and YSA.
"It is obvious that the United States engages in counterintelligence activities designed to disrupt the intelligence gathering conducted by other countries, Not so obvious is the fact that these counterintelligence and disruption activities have at times been directed against domestic organizations," observed the court.
The court looked at both covert disruption programs under the FBI COINTELPRO program, and the use of interviews and interrogations as a disruptive technique.
The FBI COINTELPRO program, against the SWP and other dissident groups, is well documented in the media, congressional hearings, and court cases. There is no need to review the twenty pages of findings in this case other than to note the court isolated 21 specific harmful disruptive incidents staged by the FBI against the SWP. The issue of using seemingly-legitimate interviews as a disruptive technique is of more interest to the current litigator. Here is the court's analysis:
The court found that the FBI's use of electronic surveillance in its investigation of the SWP involved both wiretaps on telephone lines and microphone "bugs" installed in rooms.
Surreptitious Entries - Black Bag Jobs
The court found the FBI made at least 204 surreptitious entries of SWP and YSA offices and at least four entries into the homes of SWP members. These entries netted some 9,864 documents that were removed or photographed.
The FBI for many years maintained lists of persons to be considered for detention in the event of a war involving the United States.
The court found that as of 1950 "at least 308 SWP members were listed in the Security Index," and the evidence indicated the FBI intended to include every member they could identify.
The court was not interested in these lists per se, especially since the FBI insists they have been discontinued. What caught the attention of the court was the effect inclusion on these lists had on the listee.
The court recalled the FBI memorandum of September 1970 which the court felt showed that the FBI intended that interviews with persons such as employers would "enhance the paranoia" of the "leftist subjects" of the interviews. "It can be safely inferred that the FBI intended, or at least knew, that interviews every 45 days with landlords and employers of SWP and YSA members in connection with the Security Index would create difficulties for these members."
Government Resistance to Disclosing Evidence
In may of 1976 "lengthy conferences were held to attempt to organize the remaining discovery problems which were complex. A list of eleven alleged illegal activities was arrived at which were agreed to constitute the basic types of illegal activities claimed by the plaintiffs" to have been engaged in by the government and its agents.<$F Court's partial granting of plaintiff motion to cite Attorney General for civil contempt dated June 30, 1978).>
The list was as follows:<$F Minutes May 14, 1976 pp. 75, 84-85)>
1. Break-ins and unauthorized seizure or retention of property.
2. Electronic Surveillance.
3. Consensual monitoring by recording devices.
4. Use of informants.
5. Physical surveillance.
6. Undercover surveillance.
7. Mail covers.
8. Mail intercepts.
9. Interviews by FBI agents of organization members and third persons.
10. COINTELPRO or disruption program.
11. Placing plaintiff organizations and their members on lists of security risks.
The discovery period was repeatedly stalled over a period of over five years due to several factors. According to Judge Griesa's ruling, the discovery period was complicated and lengthened by the time it took for the government to produce selective samples from the "enormous" number of pages of files on the plaintiffs held by government agencies; and "difficult claims of governmental secrecy, requiring two interlocutory appellate proceedings."
A major side issue in pre-trial discovery was the court's startling contempt citation against the Attorney General of the United States for failure to comply with a document production order. On June 30, 1978, after side litigation had traveled to the Supreme Court and back, Judge Griesa gave then Attorney General Griffin Bell one week to produce a selected group of FBI informant files, threatening to grant a plaintiff motion to have Bell cited for contempt under Fed. R. Civ. P. 37(b)(2)(D).
Bell refused to produce all of the requested informant files and was in fact cited by Griesa for contempt, a citation later vacated by the Court of Appeals which suggested a less drastic resolution of the impasse. To unravel the informant issue, Judge Griesa appointed a special master, Charles D. Breitel, to review the specific controversial informant files in detail, and prepare a summary of the overall use of informants against the plaintiffs by the FBI. Breitel was the former Chief Judge of the New York Court of Appeals.
The 89-page "Breitel" special master's report was issued on February 4, 1980 and showed the use of some 300 member informants in both the SWP and YSA between 1960 and 1976 and another 1,000 non-member informants.
The original 1973 complaint by the SWP named as defendants various heads of federal agencies and departments as well as certain named individuals. The United States was not named as a defendant in the original complaint. A number of defendants were dismissed in the course of pre-trial agreements and rulings, and at the time of trial, the list of defendants included no named individuals.
Defendants at trial were:
Attorney General of the United States, Secretary of the Treasury, Secretary of Defense, Postmaster General, Secretary of the Army, Director of the Federal Bureau of Investigation, Director of Central Intelligence, Director of the Secret Service, Director of the Defense Intelligence Agency , Civil Service Commissioners, President of the United States, Commissioner of the Immigration and Naturalization Service, Secretary of State, United States of America.
Plaintiffs at trial were the Socialist Workers Party, the Young Socialist Alliance, and 10 named individuals active with the two named organizations.
The trial opened on April 2, 1981 shortly after President Ronald Reagan pardoned FBI agents W. Mark Felt and Edward S. Miller who had been convicted of burglarizing the homes and offices of dissidents.
The SWP case was heard without a jury and produced 200,000 pages of government documents and 8,000 pages of testimony during the 54 day trial.
At the trial the FBI claimed it possessed secret evidence showing that SWP leaders were involved in illegal activities. However, the FBI declined to introduce the material, asserting that to do so would endanger the "national security."
A substantial amount of testimony was given explaining the nature, activities and goals of the socialist group. The SWP made their political views a central component of their complaint and trial strategy, charging that the government label of "subversive" was not sufficient grounds for 45 years of investigation. According to one SWP spokesperson, "Their case boils down to the fact that if you are an SWP member, a Marxist, a Leninist, that's enough grounds to investigate. We are asking just what does 'subversive' mean?"
At trial Judge Griesa took that issue seriously, and encouraged SWP witnesses to elaborate in great detail on their interpretation of Marxist ideology. Griesa, according to published reports, was impatient with the simplistic level of the government's analysis of Marxism and revolutionary ideology. Griesa several times chided government defense attorneys when they persisted in reading to plaintiff witnesses from SWP literature and ominously repeating phrases such as "class struggle," "Leninism," and "the masses." In one instance Judge Griesa impatiently told a U.S. attorney, "Don't have a pre- arranged script that you follow, I don't see any reason in reading him a lot of things that are consistent with what he said."
The trial ended June 25, 1981.
Post Trial Issues and Claims
On September 14, 1981, attorneys for the Socialist Workers Party and Young Socialist Alliance filed a 545-page post-trial brief asking for a permanent injunction barring the FBI, CIA, Immigration and Naturalization Service and other government agencies from spying on and disrupting the socialist organizations. In addition, the brief raised the damage claim to $70 million for the 40 year-long "investigation" of its activities and members.
The book-length brief raised important constitutional issues. The brief observed that "a legal challenge to an investigation of this character, against political organizations whose only 'crime' has been that of revolutionary advocacy, has never before come to trial."
The plaintiffs asked the court to rule the government's investigation unconstitutional, stating: "The investigation led to no criminal prosecution with the solitary exception of the convictions forty years ago under provisions of the Smith Act proscribing certain speech, and uncovered no evidence that would warrant prosecution."<$F The SWP also sought several other rulings in the brief, including a ruling that the government's use of informants in political groups was in and of itself unconstitutional; a permanent injunction which would prevent further spying on the SWP; a ruling that the Voorhis Act, which attempts to limit the right of Americans to associate with socialists in foreign countries be declared unconstitutional; the overturning as unconstituional various sections of the Immigration and Nationality Act which plaintiffs held discriminates against foreign-born people on the basis of their holding what the government deems to be subversive radical political ideas. (McCarran-Walter Act, see especially USC Title 8, S 1101, 1182, 1251.)>
Another important question discussed in the plaintiffs brief was the government's claim that it has unrestricted powers in areas that the President claims involve "national security."
The brief stated, "It is not within the President's constitutionally enumerated powers to conduct 'national security' investigations of United States political groups, where there is no reasonable ground to believe that such groups are planning or engaging in criminal activity." It continues, "If, as the government contends, the Executive has unlimited discretion to decide 'how to investigate,' then such techniques as COINTELPRO, which were used against the plaintiff in this case, may be used at the discretion of the President, or lesser officials. The implications of such a position for the rights of all Americans are far-reaching indeed."
The government never disputed that it conducted an intelligence gathering campaign against the Socialist Workers Party, but claimed it was a "legitmate good-faith investigation for both criminal and intelligence purposes." The FBI also asserted the investigations were proper because "the FBI has been authorized, since the days of President Roosevelt, to conduct intelligence-gathering activities in this country."
As the government noted in a pre-trial brief, "The issue in this case is not whether the SWP, the YSA or any of their members can be proven guilty of a crime beyond a reasonable doubt. The issue is whether the government has a right to keep itself informed on the activities of groups that openly advocate revolutionary change in the structure of the government, even if such advocacy might be withing the letter of the law." <$F The government opposed declaratory and injunctive relief against any future investigations of the socialist groups because many of the FBI practices complained of by the SWP had ceased; and that new FBI guidelines had tightened up instances in which domestic security investigations can be implemented.>
Are Revolutionaries Criminal Subversives?
After an exhaustive review by the court of the ideology of the SWP and the history of Marxism, Leninism, and Trotskyism, the court brushed aside the SWP's contentions that their political line did not ultimately call for the violent overthrow of the democratic government.
The court's opinion includes almost twenty pages of an extensive historical account of the develpoment of worldwide Trotskyism. Particular attention was paid to the convening of what for all intents and purposes was the Trotskyist tendency's world congress, called the Fourth International, and the SWP's association with the Fourth International.
The court gave the following reasons for its attention to the relationship between the SWP and the Fourth International:
The court noted it was reviewing these matter not to make "some ultimate historical judgment, but the determination of whether the FBI and other organs of our Government could reasonably believe that the SWP has a revolutionary ideology whose goal is the violent overthrow of our democratic processes and form of government."
As to that latter point, the court court found as follows:
The court, however, gave importance to the fact that "nowhere in the world is there a Government established by a Trotskyist party. Nowhere in the world, and certainly not in the United States, is there a Trotskyist party which even approaches having the ability to seize power."
Because of this circumstance, the court found that "the question of what kind of society a Trotskyist party such as the SWP wishes to create is currently one of belief not of practice."
Does the SWP Espouse or Practice Violence?
Moving on to the specific question of violence, the court noted that even tiny political parties are capable of violence or terrorism and thus could pose a threat to ordered society. Considerable evidence was presented at trial on the issue of whether or not the SWP either espouse or practices violence.
This question is of great significance to persons concerned with civil liberties. The following excerpts from the court's ruling offer a yardstick for measuring when revolutionary politics and actions may begin to erode Constitutional protections.
The replacement of the bourgeois by the proletarian state is impossible without a violent revolution . . . .
Lenin. The State and Revolution. quoted in Handbook of Marxism p. 739.
The Judge's Rulings
The following summary of the issues which remained after the trial and the post-trial briefing<$FPost trial briefing extended into the spring of 1983.> is taken from the court's ruling:
"The bulk of the evidence at the trial and the discussion the in the briefs related to plaintiffs' allegations of wrongdoing by the FBI and the Department of Justice. Plaintiffs' principal complaints are about four types of FBI activity - disruption, surreptitious entries or burglaries, use of informants, and electronic surveillance (telephone wiretaps and "bugs" in offices and dwellings).
Plaintiffs also complain about two programs implemented by the Department of Justice and the FBI, the Security Index/ADEX program and the loyalty-security program for federal employees. In connection with the second program, the SWP was included in the so-called Attorney General's list (now terminated) as a subversive organization.
Damage claims are asserted by the SWP and YSA and also by four of the individual plaintiffs, Evelyn Sell, Morris Starsky, Linda Jenness and Andrew Pulley. For the purpose of discussing the claims, the SWP and YSA will be treated as a unit, and will be referred to as the SWP.
The SWP sought damages against the United States under the FTCA with respect to disruption, surreptitious entries, use of informants, and electronic surveillance. The SWP contended that these activities not only violated the Constitution, but also constituted common law torts giving right to recovery under the FTCA.
The Government admitted that these activities were carried out by the FBI against the SWP, but denied any liability under the FTCA. The Government contended that the [SWP's] claims are time- barred, that the claims relate to discretionary functions, and that no substantive right to recovery has been shown under the applicable tort law.
The four individual plaintiffs seek damages against the United States under the FTCA. Sell and Starsky claim that FBI activity caused the loss of their jobs. Jenness and Pulley claim that the Secret Service conducted improper surveillance at a YSA convention.
There are no damage claims outstanding in this case other than those described above. However, there are claims for declaratory and injunctive relief by all plaintiffs against all the officials named as defendants.
Plaintiffs seek a declaration of illegality and a prohibition against:
(1) Investigation of the SWP.
(2) Disruption of the SWP.
(3) Adverse actions against SWP members who are federal employees or applicants for federal employment.
(4) Adverse actions against SWP members under the immigration and visa laws.
(5) Maintenance of files on the political activities of the SWP. This request is made not only under the Qeneral equitable power of the court but also under the Privacy Act, 5 U.S.C. SS 552a.
Plaintiffs also seek a declaration that it would be unconstitutional to hold its activities to be in violation of various federal statutes.
The Government objects to all of the reguests for declaratory and injunctive relief, principally on the ground that there is no showing of present or threatened future conduct that would warrant such relief. Additional objections are made to the claim under the Privacy Act."
The Judge's Decisions
"The SWP is entitled to an award of damages under the FTCA against the United States for the FBI's disruption activities, surreptitious entries and use of informants. As to these claims, the SWP complied with the procedural requirements of the FTCA. Also, since these activities were violations of the constitutional rights of the SWP and lacked legislative or regu- latory authority, they were not discretionary functions within the meaning of the FTCA exception. Finally, the SWP has a right to recover damages under applicable tort law.
The SWP is awarded damages in the amount of $42,500 relating to disruption activities, $96,500 for the surreptitious entries, and $125,000 for the use of informants, or a total of $264,000.
The [SWP's] damage claim for electronic surveillance is dismissed for failure to comply with the procedural requirements of the FTCA.
The damage claims of Sell, Starsky, Jenness and Pulley are dismissed.
With one exception, the requests for declaratory and injunctive relief are denied because there is no present or threatened activity which warrants such a remedy.
The exception is that the SWP is entitled to an injunction limiting the use of certain records illegally obtained by the Government. This will be granted under the general equitable power of the court and not under the Privacy Act.
The claims under the Privacy Act are dismissed."
@HEADING1 = Reagan and the Counter-subversion Revival
When the abuses of the COINTELPRO period were exposed in post- Watergate Congressional hearings and media accounts, some restrictions and reforms were attempted. President Carter issued an Executive Order mandating stricter investigative guidelines to protect the right to dissent. In response, the counter-subversion network shifted its emphasis to the private sector. As post- Watergate reforms were implemented, the counter-subversion nativists wailed that America's security was being crippled. committees were established, headlines screamed, newsletters warned of dire consequences. Agents moved into the private sector in disgust and wrote memoirs. They joined the other true believers on the right who had kept the flame of McCarthyism alive, and the worked together to launch a campaign to rebuild the public arm of the counter-subversion network. Donner saw this rehabilitation effort as connected to the Cold War mentality:
Donner's analysis was published at the beginning of the Reagan Administration. Since then, evidence showed, there has not only been a "renewed official involvement" in spying on dissent, but the continued development of a parallel private right- wing intelligence-gathering apparatus which feeds information to government agencies.
The mood of both the paranoid right-wing and the intelligence community changed dramatically as the New Right gained more influence and assisted in the election of Ronald Reagan as President. In writing recommendations for the Reagan transition team in the New Right Heritage Foundation's "Mandate for Leadership", Sam Francis recommended that the intelligence agencies be unshackled. <$FMandate for Leadership: Policy Management in a Conservative Administration, Charles L. Heatherly, ed. (Washington, D.C., Heritage Foundation, 1981). See chapter 28: "The Intelligence Community," Samuel T. Francis, Editor. pp. 903- 953. See especially: list of potential security threats, p. 935; call for constant surveillance/comprehensive files p. 940; contracting with private organizations, p. 941.>
With words that are essentially the modern transliteration of Kintner, Francis wrote:
Francis also urged that federal intelligence agencies be allowed to contract with private groups for the collection of vital information.
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