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What the Occupy Wall Street Crackdown Can Teach Us About NSA Spying

Email snooping might be the scandal of the day, but don't forget about the surveillance state's network informers and agents provocateurs.

| Thu Jun. 27, 2013 5:09 PM EDT

Squaring Circles
In 2009, President Obama told the graduating class at the Naval Academy that, "as Americans, we reject the false choice between our security and our ideals." Security and ideals: officially we want both. But how do you square circles, especially in a world in which "security" has often enough become a stand-in for whatever intelligence operatives decide to do?

The ACLU's Tennessee office sums the situation up nicely: "While the ostensible purpose of fusion centers, to improve sharing of anti-terrorism intelligence among different levels and arms of government, is legitimate and important, using the centers to monitor protected First Amendment activity clearly crosses the line." Nationally, the ACLU rightly worries about who is in charge of fusion centers and by what rules they operate, about what becomes of privacy when private corporations are inserted into the intelligence process, about what the military is doing meddling in civilian law enforcement, about data-mining operations that Federal guidelines encourage, and about the secrecy walls behind which the fusion centers operate.

Even when fusion centers do their best to square that circle in their own guidelines, like the ones obtained by the ACLU from Massachusetts's Commonwealth Fusion Center (CFC), the knots in which they tie themselves are all over the page. Imagine, then, what happens when you let informers or agents provocateurs loose in actual undercover situations.

"Undercovers," writes the Massachusetts CFC, "may not seek to gain access to private meetings and should not actively participate in meetings…  At the preliminary inquiry stage, sources and informants should not be used to cultivate relationships with persons and groups that are the subject of the preliminary inquiry." So far so good. Then, it adds, "Investigators may, however, interview, obtain, and accept information known to sources and informants." By eavesdropping, say? Collecting trash?  Hacking? All without warrants? Without probable cause?

"Undercovers and informants," the guidelines continue, "are strictly prohibited from engaging in any conduct the sole purpose of which is to disrupt the lawful exercise of political activity, from disrupting the lawful operations of an organization, from sowing seeds of distrust between members of an organization involved in lawful activity, or from instigating unlawful acts or engaging in unlawful or unauthorized investigative activities." Now, go back and note that little, easy-to-miss word "sole." Who knows just what grim circles that tiny word squares?

The Massachusetts CFC at least addresses the issue of entrapment: "Undercovers should not become so involved in a group that they are participating in directing the operations of a group, either by accepting a formal position in the hierarchy or by informally establishing the group's policy and priorities. This does not mean an undercover cannot support a group's policies and priorities; rather an undercover should not become a driving force behind a group's unlawful activities." Did Cleveland's fusion center have such guidelines? Did they follow them? Do other state fusion centers? We don't know.

Whatever the fog of surveillance, when it comes to informers, agents provocateurs, and similar matters, four things are clear enough:

• Terrorist plots arise, in the United States as elsewhere, with the intent of committing murder and mayhem. Since 2001, in the US, these have been almost exclusively the work of freelance Islamist ideologues like the Tsarnaev brothers of Boston.  None have been connected in any meaningful way with any legitimate organization or movement.

• Government surveillance may in some cases have been helpful in scotching such plots, but there is no evidence that it has been essential.  

• Even based on the limited information available to us, since September 11, 2001, the net of surveillance has been thrown wide indeed. Tabs have been kept on members of quite a range of suspect populations, including American Muslims, anarchists, and environmentalists, among others—in situation after situation where there was no probable cause to suspect preparations for a crime.

• At least on occasion—we have no way of knowing how often—agents provocateurs on government payrolls have spurred violence.

How much official unintelligence is at work? How many demonstrations are being poked and prodded by undercover agents? How many acts of violence are being suborned? It would be foolish to say we know. At least equally foolish would be to trust the authorities to keep to honest-to-goodness police work when they are so mightily tempted to take the low road into straight-out, unwarranted espionage and instigation. 

Todd Gitlin is a professor of journalism and sociology at Columbia University, the chair of the PhD program in communications, and the author of The Whole World Is Watching: Mass Media in the Making and Unmaking of the New Left; The Sixties: Years of Hope, Days of Rage; and Occupy Nation: The Roots, the Spirit, and the Promise of Occupy Wall Street.To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

[Note: Thanks to the ACLU's Michael German and Matt Harwood and TomDispatch's Nick Turse, for research help on this piece.]

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