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DHS Concludes They Have Authority to Monitor Political Activities of Advocacy Groups

Robyn Greene,
ACLU Washington Legislative Office
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March 7, 2011

In March 2006, the Department of Homeland Security’s (DHS) Federal Protective Service (FPS) issued a “Protective Intelligence Bulletin” from the “Intelligence Branch” of its “Threat Management Division.” The bulletin contained a “Civil Activists and Extremists Action Calendar” that identified dozens of peaceful advocacy groups and provided the details for over 70 demonstrations, almost entirely peace, environmental and social justice rallies and marches. With the exception of a single entry referring to a radio host’s call for “militant, pro-White rallies,” there was not a single item suggesting that criminal activity or violence was expected at any of these events.

This type of government monitoring and tracking of lawful demonstrations and political speech can have a chilling effect on Americans’ exercise of their rights to free speech and assembly. This is especially true when those demonstrations advocate positions that are in opposition to government policy. Moreover, and perhaps not surprisingly, many of the groups listed in this “action calendar” have been subjected to unwarranted surveillance by the FBI or other law enforcement agencies. Protection from this type of government monitoring is exactly the reason why the First and Fourth Amendments were adopted.

When we learned of the bulletin, we filed a complaint with DHS’s Office of Civil Rights and Civil Liberties (OCRCL), so that they would investigate whether DHS officials abused their authority by improperly collecting and disseminating information regarding political demonstrations. We asked that the investigation address the extent and scope of DHS’s monitoring of peaceful political protests. Finally, we asked for an explanation as to why FPS has an Intelligence Branch, when it is not an intelligence component of DHS and therefore has no intelligence mission.

In November 2009, the OCRCL informed us that they had concluded their investigation, and that they had found no wrongdoing or abuse of authority, but that the memorandum detailing the findings of the investigation was a privileged communication that was protected from disclosure. Last week we received another letter with further details, but this letter, too, refused to disclose the memorandum detailing the investigative findings. The letter reaffirmed that FPS had acted within its authority when monitoring and collecting data on the non-violent political activities of advocacy groups, but admitted it did not adequately distinguish between civil activist and violent extremist organizations when it collected and disseminated that data. OCRCL also informed us that FPS has not issued this type of Protective Intelligence Bulletin since 2006.

We strongly disagree with the OCRCL’s finding that FPS acted within its authority to compile and disseminate a list tracking the political activities of advocacy groups. No agency or department in government has the right to monitor the peaceful and lawful political activities and speech of Americans. The OCRCL is charged with “promoting respect for civil rights and civil liberties in policy creation and implementation” at DHS. Yet it believes that collecting data on the political activity of groups not suspected of wrongdoing and disseminating that information in an “Action Calendar” to other law enforcement agencies is perfectly within the government’s authority. The prevalence of this attitude within law enforcement — even in elements specifically charged with protecting civil liberties — may help explain why we are seeing so many incidents of improper spying or obstruction of political activity across the country. These types of demonstrations are at the heart of our First Amendment rights to speech and assembly. The government must immediately stop any ongoing programs or activities that monitor lawful political speech and advocacy of American citizens.