Is the Obama Administration Serious about Anti-Muslim Demonization in Law Enforcement?

On August 4, 2011, the White House released a new strategy to counter violent extremism. The Muslim Public Affairs Committee (MPAC) expressed support for the plan, Empowering Local Partners to Prevent Violent Extremism in the United States, which must be seen as a rejection of the Senator Joe Lieberman’s (I-CT) and Rep. Peter King’s (R-NY) narrow focus on Islamic-inspired terrorism as the pre-eminent domestic threat. The administrations plan recognizes that “individuals from a broad array of communities and walks of life in the United States have been radicalized to support or commit acts of ideologically-inspired violence.”

The vagueness of the plan combined with its calls for monitoring, more policing of communities, and early intervention to stave off undefined “extremism,” may undermine civil liberties and constitutional freedoms. Plus, the strategy’s emphasis on violence inspired by ideology may do more to elevate fears of terrorism that are out of proportion with the actual threat. As Charles Kurzman reminds us this week, 15,000 people are murdered each year in the United States:

Islamic terrorism, including the Beltway sniper attacks, has accounted for almost three dozen deaths in America since 9/11—a small fraction of the violence that the country experiences every year. The toll would have been higher if the perpetrators had been more competent . . . Even so, the number of perpetrators has been relatively low. Fewer than 200 Muslim-Americans have engaged in terrorist plots over the past decade—that's out of a population of approximately two million. This constitutes a serious problem, but not nearly as grave as public concern would suggest.

But there is good news in this document. The Obama White House takes a decided stance against the fearmongering and scapegoating of Muslims that is on the rise in our political discourse, and even with domestic security and law enforcement circles.

White House Plan Cautions Against Demonizing Muslim Americans

While the White House prioritizes the threat from al-Qa’ida in this strategy, it calls on law enforcement and federal agencies to counter propaganda that the United States “is somehow at war with Islam.” The plan reminds the public once again that

the United States is not, and never will be, at war with Islam. Islam is part of America, a country that cherishes the active participation of all its citizens, regardless of background and belief. We live what al-Qa’ida violently rejects – religious freedom and pluralism.

The White House calls for a paradigm of engagement with Muslim communities based on mutual respect, warning that “our words and deeds can either fuel or counter violent ideologies.”

Here, the White House rhetorically condemns any “actions and statements that cast suspicion toward entire communities, promote hatred and division, and send messages to certain Americans that they are somehow less American because of their faith or how they look.” Such actions “reinforce violent extremist propaganda and feed the sense of disenchantment and disenfranchisement that may spur violent extremist radicalization.” But so far, federal agencies have not taken decisive, official action to prevent such destructive and counter-productive messages from being promoted within the ranks of the intelligence community.

Is Law Enforcement Getting the Message?

The White House is relying on local, state, and federal law enforcement to interact with individuals and deter them from using violence. Yet groups like the International Counter Terrorism Officers Association (ICTOA) are sending divisive messages to those very same ranks. The ICTOA is a private association of law enforcement and security professionals founded by NYPD officers. The ICTOA was profiled in a recent report by Political Research Associates called Manufacturing the Muslim Menace because it belongs to a pattern of flawed and biased trainings for law enforcement.

As reported by blogger Richard Bartholomew, the upcoming Ninth Conference of the ICTOA will include Senior Intelligence Analyst William Gawthrop. Speakers like Gawthrop cast suspicion on Muslims in precisely the way the White House has condemned.

Senior Intelligence Analyst Cites "High Birthrates" as Islamic "Tool of Penetration"

A retired U.S. Army counterintelligence officer, Gawthrop once worked as program manager for the Joint Terrorism Task Force of the Defense Department’s Counterintelligence Field Activity (CIFA). According to the ACLU, CIFA was responsible for amassing secret databases on peaceful protest until the program was shut down in August 2008. In October, Gawthrop will be speaking to police officers, sheriffs, and intelligence analysts from around the country whose travel to the event is made possible by public tax dollars. He will present on the “Influence of the Sharia on Law Enforcement Investigations.” In a paper on the same topic, Gawthrop echoes GOP presidential candidates like Hermain Cain when he questions whether Muslim police or intelligence officers can effectively interview terrorism subjects, based on an assumed “divided loyalty.” After detailing what he described as Islamic legal prescriptions on keeping secrets and lying, Gawthrop writes,

Conflicting ideological beliefs impose an encumbrance on the believer. If the believer is also an investigator or analyst shouldering the responsibilities of an intelligence or law enforcement investigation, and he is confronted with a divided loyalty situation, it is logical that the believer may adhere to the calling of the higher authority.

(Wm. Gawthrop, “The Influence of Islamic Law on Intelligence and Law Enforcement,” The Vanguard: Journal f the Military Intelligence Corps Association, Vol. 16, No. 1 Jan 2011, p. 9-19).

In other contexts, Gawthrop’s observations on Islam are far more inflammatory. In a working draft paper on “Islam’s Tools of Penetration,” Gawthrop cites Muslim immigration and “high birthrates” as methods for Islam’s supposed conquest of the world. He writes:

• Westerners are not able to maintain their present numbers

• Only Poland, Ireland, Malta, and Israel have naturally growing populations.

• Muslims have some of the most robust birth rates in the world.

• John R. Weeks study: Countries with large numbers of Muslims have a crude birth rate of 42 per thousand.

• Developed countries have a crude birth rate of just 13 per thousand

• 6 children per Muslim woman, 1.7 per woman in the developed countries

(Wm. Gawthrop, “Islam’s Tools of Penetration,” Working Draft, p. 39). This birth rate motif emerges from folks who worry about the “Islamicization of Europe” and the “Demographic Winter.” The message is both fundamentally racist and white supremacist, with close ties to the neoconservative and Christian right xenophobia toward Muslims. “Demographic Winter” is a code phrase for fears among white people that they are being outbred by people of color, and is pushed by the World Congress of Families, says PRA Senior Analyst Chip Berlet.

Gawthrop also casts mosques and the services they perform for communities “as the guarantor and essence of lines of communication penetrating and consolidating Islamic footholds in unconquered tterritories.” (p. 86) Citing former Muslim turned Christian evangelist Mark Gabriel, Gawthrop characterizes mosques as “a place of worship, weapons depot, [and] military planning headquarters.” (“Tools,” p. 85)

Biased FBI Training Manual on Arab Culture and Islam

This week, we learned that the U.S. Federal Bureau of Investigation (FBI) also recommended Mark Gabriel’s Islam and Terrorism to new recruits as part of a two-day training on Arab and Islamic Culture. The ACLU obtained a 62-page PowerPoint training presentation used by the FBI to teach new recruits ways to deal with “individuals from the M.E. [Middle East] during interviews and interrogations.” The briefing provides facts about Muslims and their religion which are replete with over-generalizations and over-simplifications. The training material acknowledges that there are more than fifty-one Muslim majority countries stretching from Mali to Malaysia and Afghanistan to Algeria, it paints the Muslim or Arab world as homogeneous. On a slide called “Islam 101”, four bullet points list:

• No separation between church and state.

• Hard for Westerners to understand.

• Transforms country's culture into 7th century Arabian ways.

• Regulates most aspects of life.

On a slide entitled “Language,” one bullet point reads: “It is the characteristic of the Arabic mind to be swayed more by words than ideas and more by ideas than facts.” Wired's Danger Room blog reported on the presentation and received this statement from representatives at the FBI: “The FBI new agent population at Quantico is exposed to a diverse curriculum in many specific areas, including Islam and Muslim culture. The presentation in question was a rudimentary version used for a limited time that has since been replaced.” While the training document is no longer in use, the latest revision date listed on its first page is January 15, 2009, notes Al Jazeera coverage.

I was happy to read in the August 4, 2011 New York Times that “the administration promised to identify accurate educational materials about Islam for law enforcement officers, providing an alternative to biased and ill-informed literature in use in recent years, including by the FBI.” Clearly, there is much work to be done in rooting out hateful or divisive stereotypes about Muslims which cast suspicion on entire communities. Kevin Gosztola of Firedoglake offered this poignant critical reflection:

The strategy presents a decent foundation for addressing whatever extremism the nation should address. However, it is an utterly meaningless strategy if some of the poorest communities in America continue to be used by the FBI as a laboratory for launching entrapment schemes to catch so-called terrorists. It is purely prose if law enforcement continues to train agents or police to investigate and monitor not just crime but the religious practice and social behavior of entire communities. And, it is merely something officials in law enforcement can use to cover their ass and argue they are not targeting Muslims if Muslim Americans continue to have reason to believe their government is conducting surveillance on the mosques they pray in because of their religion.

FBI Raids Reveal Repressive Apparatus Run Amok

A recent Inspector General’s report on the FBI’s investigations of certain domestic advocacy groups from 2002-2006 found that the agency considered routine civil-disobedience violations, such as trespassing or vandalism, potential terrorism. For example, the Bureau determined that spilling human blood on walls, an American flag, and pictures were “forceful acts” sufficient to trigger inclusion on terror watchlists. The FBI today threatens to label peace activists – and a wide swath of people with whom they associate – as “terrorists” because of First Amendment activities that include travel and public education. Apparently, the bad practices under the Bush administration have not been reformed.

As a think tank that grew out of opposition to the FBI’s coordinated assault on dissenters during the 1970s, Political Research Associates (PRA) has witnessed and studied the penchant of American intelligence systems to treat peoples’ movements as subversive. The FBI belongs to a post-9/11 domestic security apparatus that is unprecedented in size, and largely unaccountable to democratic control. A recent Washington Post article estimated its size at 845,000 public and private personnel. As protectors of civil liberties, Congress must embrace its oversight function and reign in homeland security agencies that continue to confuse ideology for crime.

PRA adds its voice to those of other progressive and civil liberties organizations, and all those who value democracy and dissent, in denouncing these raids. We believe that all Americans should stand in defense of the Constitution and all individuals who have been wrongly targeted for their principles objection to U.S. military interventions abroad.

Anti-War Activists Targeted by FBI

Days after the release of the IG’s report, the FBI raided the homes of twenty peace activists from Minneapolis to Chicago under the guise of fighting terrorism. The harsh manner in which the raids were conducted, the sweeping scope of the warrants, and the lack of any credible threat of terrorism all suggest that the FBI may once again be abusing its power to intimidate social change movements.

Beginning on Friday, September 24, the FBI executed search warrants against at least eight homes and offices in Chicago, upstate Michigan, the Twin Cities, and Ohio. In Minneapolis, a SWAT team knocked on activist Mick Kelly’s door at about 7 a.m. When Kelly’s partner asked to see the search warrant, the agents busted down the door, causing it to fly across the room and break a fish tank.

About twenty agents spent most of the day searching the Chicago home of activists Stephanie Weiner and Joseph Iosbaker. “We aren’t doing anything differently than we have in twenty years,” said Weiner, a teacher at Wilbur Wright College. The FBI carried thirty boxes of papers dating from the 1970s from Iosbaker’s attic to sift for evidence. In Jefferson Park, FBI agents removed boxes and electronic equipment from the apartment of community activist Hatem Abudayyeh, executive director of the Arab American Action Network.

The FBI also raided the homes of Jessica Sundin and Meredity Aby, who helped organize rallies at the 2008 Republican National Convention in St. Paul. The FBI and local law enforcement infiltrated advocacy groups prior to the RNC and charged several protestors with terrorism offenses, which were later dismissed outright. Sundin called the suggestion that they were connected with terrorism “pretty hilarious and ridiculous.” Mick Kelly’s lawyer, Ted Dooley, explained that the FBI agents were looking for “everything related to potential co-conspirators, including Kelly’s personal contacts in the United States and abroad. It’s kind of unconstitutional and hideous.”

The activists targeted are involved in numerous groups, including the Palestine Solidarity Group, Students for a Democratic Society, the Twin Cities Anti-War Committee, the Colombia Action Network, the Freedom Road Socialist Organization (FRSO), and the National Committee to Free Ricardo Palmera (a Colombian political prisoner).

At least a dozen activists were served subpoenas from a grand jury seeking records of payments to Abudayyeh’s organization and groups on the State Department’s list of foreign terrorist organizations, including Hezbollah, the Popular Front for the Liberation of Palestine (PFLP), and the Revolutionary Armed Forces of Colombia.

No arrests have been made, suggesting that prosecutors lack probable cause for an indictment against anyone. An FBI spokesperson admitted to the Associated Press that the bureau knows of no “imminent threat to the community.” He said the FBI was seeking evidence related to “activities concerning material support for terrorism” as part of an ongoing Joint Terrorism Task Force investigation.

Several of the FBI’s targets belong to FRSO and occasionally contribute to a socialist newsletter that is critical of the U.S. wars of occupation in Iraq and Afghanistan. The subpoena issued to FRSO activist Thomas Burke requested “items related to trips to Colombia, Jordan, Syria, and the Palestinian territories.” Burke said he had toured Colombia eight years ago with members of an oil workers union. He told the press, “We barely have money to publish our magazine. We might write about [revolutionary groups] favorably, but as for giving them material aid, nothing.”

Labeling Free Speech as Subversive

These raids mark a disturbing pattern of criminalizing Americans’ international solidarity work. According to Thomas Cincotta, the Civil Liberties Project Director at PRA, “the FBI has played fast and loose with the definition of terrorism, abusing its power to intimidate and repress challengers of U.S. foreign policy.”

Political Research Associates maintains a library and archive that documents the U.S. government’s long history of red-baiting and demonizing the Left, from the Red Scare of the 1920s to McCarthyism to J. Edgar Hoover’s illegal COINTELPRO program during the 1960s and 1970s, which aimed to “neutralize” the Black Panther Party and other civil rights organizations. Nelson Mandela and the African National Congress were labeled terrorists during the anti-apartheid struggle in South Africa. In the 1980s, the FBI closely monitored U. S. activists who supported the resistance to dictatorship and U.S. intervention in Central America. When all the facts were revealed in 1988, Congress repeatedly criticized the FBI for interpreting “support for terrorism” to include peaceful political and humanitarian activities. According to the civil rights expert David Cole, the FBI admitted that its investigation of the Committee in Solidarity with the People of El Salvador, in particular, had been overbroad, improperly focused on activities permitted under the First Amendment, and a waste of resources.

Anti-terrorism laws have given the FBI wide latitude to repress political activists as well as American Muslims. The FBI felt that reforms instituted following the CISPES investigation tied its hands in domestic investigations. In response, Congress included a “support for terrorism” provision in the 1996 Antiterrorism Act that has paved the way for the FBI to slide back to the days of Hoover.

Since 9/11, PRA has witnessed the selective prosecution of Muslims, South Asians, Arabs, and people of Middle Eastern descent using the “material support” and immigration laws. Under Attorney General Ashcroft’s direction, thousands of Muslim immigrants were rounded up and deported or interviewed, but no actual terrorists were uncovered. PRA’s 2010 Report, Platform for Prejudice explains how the Suspicious Activity Reporting Initiative encourages law enforcement and the public to profile on the basis of race and religion and treat dissenters as potential terrorists. Just as the Justice Department cast a wide net over communities of Muslims and people of Middle Eastern and Arab nationalities, the FBI seems to be imposing collective guilt over an entire network of peace activists.

PRA shares the concerns of the Charity and Security Network, which sees connections between the recent raids on activists and discriminatory scrutiny of Muslim charities. In both circumstances, the “material support” law has been used to tar Americans with the terrorist label even where no threat exists. The government has even tried to punish groups for interacting with people or groups that are not on the U.S. list of designated terrorist organizations. For example, leaders of the Holy Land Foundation were convicted of providing material support because they gave aid to local zakat committees that were not on the list, but that the government alleged were controlled by Hamas, which is on the list. (zakat committees distribute charity for the poor and aged, in accordance with one of the Five Pillars of Islam). The trial court did not require the jury to find that the defendants knew or even should have known that these committees had Hamas connections.

In the recent U.S. Supreme Court decision Holder v. Humanitarian Law Project, the Court held that it is constitutional for Congress to prohibit a broad range of interactions with designated terrorist groups, including attempts at peace building and support for nonviolence. Offering advice, training, and service to a designated terrorist organization, the Court said, constitutes material support for terrorism under the 1996 law. It emphasized that the prohibition does not apply to pure political speech, naively asserting, “the statute is carefully drawn to cover only a narrow category of speech…in coordination with foreign groups that the speaker knows to be terrorist organizations.” However, the opinion provides no definition of “coordinated,” leaving room for overly broad interpretations.

Tell Congress to Stop Political Repression

PRA has observed that liberals and right-wing groups tend to tolerate state repression when it targets political opponents. Just as PRA criticized Homeland Security reports on Right Wing Extremism in 2009, we now call on all people of good conscience to defend the Constitution. The conservative blogosphere – the same one that warns of a creeping fascism in the United States – is trying to use the raids to smear Obama and unions. A blogger at the conservative Red State claims that trade unionists who will march on Washington on October 2^nd to demand jobs are unpatriotic Leftists, linked to terrorism abroad. Another right wing pundit tries to slander Obama by pointing to his past “ties” with the Arab American Action Network. Says Cincotta, “These narrow-minded responses illustrate the destructive power of the terrorism label. They underscore the need for constant vigilance to defend the presumption of innocence and respect for the First Amendment no matter where you stand.”

So far, progressives and civil libertarians are responding with action. Groups such as the National Lawyers Guild pledged support for the protestors. Bruce Nestor, former president of the guild, calls the raids “a direct attack on people who are strong, dedicated advocates of freedom, of the right of people to be free from U.S. domination. It is an attack upon anybody who organizes against U.S. imperialism abroad.”

Chip Berlet, a senior analyst at PRA who helped litigate against illegal FBI surveillance in the 1960s, emphasized the need for Congressional oversight, no matter who is in the White House: “Since its beginning, the FBI has proved itself incapable of discerning the difference between free speech and dissent, and subversion and terrorism. By repeatedly conflating dissent with terrorism, the FBI defies the clear mandate of the Constitution, which it is sworn to uphold. They only thing that reigns in this marauding is Congress. And the only thing that will force Congress to act is a swift kick by people across the political spectrum.”

Although the tactics of intimidation are familiar, we cannot ignore them. People are already organizing loud, visible protests to challenge the legitimacy of the FBI’s raids. To show your support, you can:

• Call the attorney general’s office at (202) 353-1555 to demand an end to intimidation of peace activists.
• Call your congressional representative to demand that the FBI stop harassing activists and close the “material support” loopholes that give the FBI room to target peaceful domestic advocacy. Congress should hold hearings on the violations identified in the Inspector General’s recent report and uncover the full extent of the FBI’s misuse of counter-terror laws and watchlist practices.
• Participate in local actions to protest these raids, including outside the Grand Jury convening in Chicago on October 12.

____________________________

Sources

“Anti-War Activists Targeted by FBI Speak Out,” CBS News (Sept. 26, 2010).

Chip Berlet and Matthew N. Lyons, “One Key to Litigating Against Government Prosecution of Dissidents: Understanding the Underlying Assumptions – Part II,” Police Misconduct and Civil Rights Reporter, Vol. 5, No. 14 (March-April 1988).

Charity and Security Network, “Searches, Grand Jury Investigation Target Anti-War Activists in Chicago, Minneapolis,” (Sept. 27, 2010).

James X. Dempsey and David Cole, Terrorism & The Constitution (First Amendment Foundation, 2002), pp. 25-33.

Frank Donner, “Terrorist as Scapegoat,” The Nation (May 20, 1978).

Editorial, “A Reminder for the F.B.I.,” New York Times (Sept. 27, 2010).

“FBI raids homes of anti-war activists,” Chicago Breaking News (Sept. 24, 2010).

Mara H. Gottfried, “FBI raids six locations In Minneapolis as part of terrorism investigation,” Twin Cities (Sept. 24, 2010).

The FBI is Seeking Extended Powers to Snoop into our Electronic Communications

It’s well known that the FBI has historically abused its power to investigate non-criminal Americans—in the 1960s, the FBI relied on informants and undercover agents to burglarize the offices of the Socialist Workers Party and other movement organizations to steal membership lists, bank accounts, and other sensitive data. Now, a proposed amendment to the Electronic Communications Privacy Act would allow the FBI to bypass judicial review and obtain this same information on demand.[1]

Including "electronic communication transactional records" into the wording of the legislation would allow the FBI to infiltrate internet activity such as social networking, inquiries from search engines, and sales from online vendors. [2] While the content of emails are (theoretically) private, the FBI could legitimately access the recipients’ names of within an individual’s emails, along with the time and date that any online form of communication was sent. [3]

To get this information, the FBI simply has to ask for it in the form of a National Security Letter, or NSL, an administrative subpoena that does not require judicial oversight or probable cause.

This development is troubling, to say the least, especially since about 50,000 NSLs are already being issued per year. The Justice Department Inspector General has complained that the FBI is failing to adequately justify the reasons for requesting all this information. [4] Similarly, the FBI director has admitted that “suspicion of wrongdoing is not required” in order for the FBI to issue surveillance on an individual. Essentially, the FBI is able to investigate Americans who have no criminal engagement or inclination. [5]

Individuals who come under the FBI’s scrutiny have included Muslims, animal rights activists, and other protestors who have not participated in extralegal activities. The use of NSLs to target these noncriminals is reminiscent of the counterintelligence program (COINTELPRO), whose objective was “to expose, disrupt, and otherwise neutralize the New Left organizations, their leadership and adherents,” except in this era, the issue is combating terrorism, not communism.[6]

The Washington Post’s two-year investigation on FBI surveillance abuses, Top Secret America, is a worthy read This exposure, in addition to civil rights and civil liberty activist organizations’ protests, has brought this issue closer to the forefront and put pressure on Congress in how to respond to the FBI’s demands to expand their domain. A group of 46 progressive nonprofits, including Political Research Associates, recently wrote a letter to the Senate urging for further oversight of the FBI.

The $75 billion private surveillance industry has skyrocketed since 9/11, and it is a reasonable request that greater oversight is in place for the government’s part in investigating American citizens. [7] However, it is not Congress that has the cleared access necessary to inspect the FBI. Like The Washington Post whose investigation could only go so far due to confidentiality restrictions, Senators are not given full disclosure of FBI activities. Therefore, the Government Accountability Office (GOA) may be the only hope for keeping the FBI in check since a significant portion of staffers are cleared at the top-secret level. In addition, the GOA answers to Congress, not the president, making it less influenced by executive preferences. [8] If America has a chance of a future with FBI transparency, it lies within the GOA.

Sources
1. Ellen Nakashima, “White House proposal would ease FBI access to records of Internet activity,” 29 July 2010, Washington Post, accessed 7 August 2010.
2. Julian Sanchez, “Obama's Power Grab,” 29 July 2010, accessed 7 August 2010.
3. Bob Jacobson, “Obama Is Becoming the Most Anti-Privacy President Ever,” 9 August, 2010, Huffington Post, accessed 13 August 2010.
4. Ellen Nakashima, “Plaintiff Who Challenged FBI's National Security Letters Reveals Concerns,” 10 August, 2010, Washington Post, accessed 13 August, 2010.
5. Associated Press article- Matt Apuzzo and Adam Goldman “FBI Director Defends Bureau over Test Cheating,” 28 July, 2010, Associated Press, accessed 10 August, 2010.
6. see Thomas Cincotta, “From Movements to Mosques, Informants Endanger Democracy”
7. “Why the Intelligence Community Needs GAO Oversight,” Newsweek, accessed 7 August 2010.
8. “Why the Intelligence Community Needs GAO Oversight”

FBI: Preventing Violence or Provoking It?

On March 16, David McKay goes on trial for a second time. The jury must decide whether an FBI informant named Brandon Darby induced McKay to make Molotov cocktails on the eve of the Republican National Convention.   The FBI’s use of informants in domestic intelligence operations raises critical questions – are we giving to much leeway to the FBI? What are the implications for civil liberties when paid informants provoke illegal activity?

There are pressures inherent in the role of informant.  Informants must choose between two roles: the passive observer who yields little information and influence, or the more active participant who produces more and better information but also affects what happens. Taking a more active role raises the chance of the informant's possible complicity and entrapment.[1]  Brandon Darby clearly chose the more active role. And a previous jury evaluating the case of David McKay deadlocked and declined to convict him because of questions that Darby crossed the line and instigated lawbreaking.

Since 9/11, the FBI, Homeland Security, and Department of Defense have been keeping tabs on political protest under the guise of anti-terrorism.  Hundreds upon hundreds (if not thousands) of meetings and protests have undergone government "tracking" and "collecting" via intense, invasive monitoring.  But when the FBI infiltrates groups with informants, they easily slip from passive to aggressive action that can disrupt, discredit, and punish dissent. 

I.  David McKay – Entrapped by the FBI

For 18 months before the 2008 RNC, the government paid over $11,000 to Darby, a gun-toting, outspoken Texas radical to spy on fellow activists in Austin, then in St. Paul during the convention.  After being hired by the FBI, Darby induced McKay (22) and Bradley Crowder (23) to concoct eight Molotov cocktails. 

McKay admits to assembling the Molotov cocktails with his friend Crowder (who entered into a forgiving plea bargain, and is currently serving a maximum of 30 months in prison) and storing them in his basement. 

To find entrapment, the new jury must decide that Darby convinced McKay to commit the crime, and that McKay had no plan of making Molotov cocktails before he met Darby in March 2008.

II.  FBI Hires Veteran Activist with a Hero Complex

Any prosecutor has an uphill battle painting Darby as an innocent bystander.  Darby is the kind of character who might provoke others to violence.  It’s been roughly two months since he was publicly identified as the confidential source who reported on the Austin Affinity Group.  In that time, friends and long-time associates have painted a picture of Darby using terms like “charismatic,” “manic and reckless,” “divisive,” “paranoid,” “hero complex,” “volatile history with women,” “a strong authoritarian streak,” “manipulator,” “penchant for violent rhetoric.”  

Then there’s my favorite by his long-time collaborator Lisa Fithian:  “He did a lot of Wild West shit – Mister Macho Action Hero.”[3]  This sums up the individual the FBI knew they were getting into bed with.

III.  Beware of Ideologically-Motivated Informers

Darby came to the FBI with a personal and ideological axe to grind.  After returning from a trip to Venezuela, Darby says he began to see major problems with certain actions that were being planned for the RNC, particularly by “anarchists” and the RNC Welcoming Committee.  Rather than share his concerns and conversion with his friends, he offered his services to the FBI.  

After a requisite “suitability determination,” the FBI tasked Darby to spy on a range of Austin-area activists.[4] Keep in mind, Darby had been a self-identified revolutionary who slept with a gun under his pillow, according to friends.  He brought an AK-47 and a handgun with him to New Orleans to help rescue an old friend in a neighborhood inundated with muddy water and White militias in the aftermath of Hurricane Katrina.  

Given Darby’s background, it is curious how the FBI could find such a person suitable for informing.  Factors in the FBI’s “Suitability Determination” include the person’s motivation and dangerousness.[5]  

Sociologist Gary T. Marx’s study of agent provocateurs and informants suggests that the nature of informing may lead the informer beyond his or her assigned task, particularly when the motivation is personal or ideological.  In his study, Marx identifies potential motives of informants:  patriotism, coercion, financial reward, activist disaffection, double agents who want to assist the movement, converts who lose their zeal, and provocateurs who find success in the role by exceeding their mandate.[6] 

Although the FBI paid Darby over $11,000 for his efforts, money did not appear to motivate Darby. Instead, it seems he was angry or resentful toward fellow activists.  According to reports, Darby felt that Malik Rahim and Common Ground Relief of New Orleans put him in a compromising position when they sent him to Venezuela on a mission to get funding for the residents of New Orleans.  

Such motives may produce poor information.  Disgruntled informants tend to exaggerate or even lie:  “There is no limit to which people will go to get even for a real or imagined wrong.”[8]  

Darby shared his employers’ assumptions that “anarchists” were determined to use violence.  “Such agents may thus feel free to encourage activists to take violent action or to report false information.  They may feel that the group poses such a severe threat that any means (even lying to superiors) are necessary to destroy it,” warns Marx.[9] 

Exaggerating the importance of the group may make the provocateur feel that what he or she does is significant.  Further, wishful thinking may lead agents like Darby to confuse vague revolutionary rhetoric with specific plans.

As an informant, the FBI did not require Darby to shed his revolutionary fervor. Militant language and a reckless temperament remained part of his public persona. Darby’s contact agent or “handler,” Agent Timothy Sellers, asked him to get involved with the Austin Affinity Group’s plans to attend the RNC.  Agent Sellers cautioned Darby not to “take a lead role,” but such a directive was impossible to abide by under the circumstances.  The group sought out Darby’s leadership because of his credibility and reputation.  Darby proposed weekly meetings and told Crowder he would email him daily updates.  

At the first meeting, he said, “I’m going to shut this fucker [the RNC] down” and “any group I go with will be successful.”   He lambasted protesters for looking like a bunch of “tofu-eaters” who needed to “start eating meat and bulk up” so they could fight.  Darby taught McKay and Crowder fighting techniques, such as head-butting and evasive jiu-jitsu moves.[10]  It comes as no surprise that Agent Sellers told Darby to keep his email reports shorter in the future.

There is no evidence that Darby toned down his rhetoric.  In fact, there was no reason for him to. His secret status may have freed him from the constraints that more prudent activists had to contend with.  He could act out his feelings of aggression or militancy without fear of reprisal.  As Frank Donner has observed, “the infiltrator’s secret knowledge that he alone in the group is immune from accountability for his acts dissolves all restraints on his zeal.”[11] 

Moreover, the FBI did little to control Darby or keep tabs on him.  Agent Sellers did not include details of Darby’s words in his reports.  On the night that Darby wore a wire to transmit his conversation with McKay about the Molotov cocktails, Sellers took notes—no audio recording was made.  

Really? It’s 2008 and the FBI didn’t record this conversation?

Further, according to defense testimony at the first trial, Darby provoked McKay and Crowder to make Molotov cocktails.  Darby first helped police seize 35 homemade shields they had brought to St. Paul.[12]  

The seizure of these shields was the tipping point.  According to McKay, Darby was livid that the police had seized the shields.  Darby created the idea that they, as an affinity group, create multiple Molotov cocktails.  He said, “We’re not going to take this lying down.  You’ve got to do something about it.”

The night after the shields were seized, McKay bought the makings for Molotov cocktails at Wal-Mart.  Darby claims that he urged caution and restraint, but in text messages to McKay while he was casing a police parking lot, Darby wrote, “It’s your call.  I support you making whatever choice you are comfortable with.  Be proud of yourself for your work and take a chill.”  When McKay expressed that there were too many cops around, Darby texted, “it’s all good, sometimes it’s best to fight another day … – it’s ok, I’ll support you.”

McKay's defense is largely circumstantial, but compelling.  You have an informant with no apparent qualms about lying to his closest friends.  A charismatic leader with a reputation for defying authority who became ideologically opposed to the anarchists’ message and tactics, being handled by an agent untrained in handling informants.  

Sounds like the perfect setting for an agent provocateur to thrive.

IV.   Anna the Informer and Beyond

Brandon Darby should be considered alongside another recent informer who promoted violence among her targets, Anna.  Anna was recruited by the FBI in Miami to infiltrate twelve anarchist groups before she helped Eric McDavid purchase bomb making materials for a plot in California aimed at environmental targets.  

The FBI paid Anna $76,000 from January 2004 to 2006 as she traveled from one protest to another, including the G8 and Organization of American States meeting in Georgia, the Democratic National Convention in Boston, the New York Republican National Convention, and Crimethinc in Des Moines.  Along the way, she tried to provoke conflict and spark violent incidents, according to many who knew her.

After she met McDavid and his friends, Anna taught them how to make bombs, provided funds, paid their rent, and repeatedly threatened to leave if they “didn’t do something.”  Anna pushed others to take more and more aggressive action.  So, is the FBI trying to prevent violence or provoke it?

V.   Using Intelligence to Punish Dissent

The discovery of an informer can demoralize activists; violence can discredit and split the movement.  The McKay and McDavid cases illustrate how the FBI facilitates provocateurs.   McKay’s case is not yet over, but the failure of the FBI to win outright is reminiscent of the 2006 Sears Tower case, when a jury refused to convict seven Florida men of plotting to bomb the landmark after being egged on by an FBI informant. 

When you combine legislation institutionalizing guilt by association with expanded domestic surveillance, a preventive philosophy of policing, and an ideology that conflates protest with terrorism, you get the pre-conditions for a return to the abuses of the FBI’s COINTELPRO program, which aimed to break the back of People's movements during the Sixties.  

Given the government’s dismal record of using spies and agent provocateurs at the 2008 RNC in St. Paul, the RNC in New York in 2004 and in Philadelphia in 2000 isn’t it time for the majority in Congress to exercise serious oversight for America’s domestic “security” agency to protect the right to expression free from government interference?

 

"so take care of your freedom
they'll never know
yeah take good care of your freedom
they'll never know"

- Flogging Molly, "Lightning Storm"

 

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[1] Karmen, A, “Agents Provocateurs in the Contemporary U.S. New Left Movement,” Criminology: A Radical Perspective, in Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant:  The Agent Provocateur and the Informant,” American Journal of Sociology 80 (Sept. 1974) at 422.

[2] Diana Welch, “RNC Aftermath,” The Austin Chronicle, January 16, 2009.  Crowder has not yet been sentenced.

[3] Diana Welch, “The Informant:  Revolutionary to Rat,” The Austin Chronicle, Jan. 23, 2009, p. 7.

[4] Diana Welch, “The Informant,” p. 7.

[5] CI Guidelines Sec. II(A)(1)(g), (m).

[6] Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant" at pp. 415-421.

[7] Colin Moynihan, “Activist Unmasks himself as Federal Informant in G.O.P. Convention Case,” New York Times, Jan. 5, 2009.

[8] M. McMann, ‘The police and the Confidential Informant.” M.A. thesis, University of Indiana (1954) in Marx at 416, n. 17.

[9] Marx, 420.

[10] Darby admitted making these statements and incidents during his testimony at trial.  The Austin People’s Legal Collective provides unofficial notes of the trial based on verbatim note-taking, available athttp://brandondarby.com

[11] Frank Donner, The Age of Surveillance  (1971) in Marx at p. 434.

[12] Diana Welch, “The Informant”