Surveillance and Civil Liberties

There have been several troubling, even shameful  episodes of governmental infiltration and surveillance of protest groups and social movements in U.S. history.  Now comes a new case out of Washington:

In a lawsuit filed yesterday in U.S. District Court in Seattle, 13 people alleged John J. Towery, a civilian intelligence analyst at Fort Lewis, attended their meetings and demonstrations using a false identity and relayed information about them to law-enforcement authorities, such as Seattle’s Joint Terrorism Task Force.


Members of Olympia Port Mobilization Resistance — so called because it opposed the Army’s use of civilian ports to ship Stryker vehicles to Iraq — outed Towery last summer, after learning who he was through public-disclosure requests filed with Olympia. They said he had been involved with the group since early 2007 and claimed he confessed when confronted.

“This is important because it’s one of the few times the military has actually been caught spying,” said Larry Hildes, the attorney who brought the case. “It has fundamentally chilled the climate for First Amendment activity in Olympia and Tacoma. It’s caused people to distrust each other, and it’s made it very difficult to organize peaceful demonstrations.”

It is difficult enough to organize public protests.  Hildes's point regarding the effect such infiltration and surveillance may have on public protests and dissent is valid.  Is it a First Amendment violation?  In Laird v. Tatum, which involved Army surveillance of civil rights protesters in Detroit, the Supreme Court held that subjective chill alone is not sufficient to state a First Amendment claim.  Plaintiffs will thus have to show that they suffered some concrete, objective injury as a result of the infiltration (assuming that itself is proven).  It is noteworthy that in  Laird, Army officers attended and reported only on public meetings and events.  Also, officers did not infiltrate the protest groups or engage in any form of unlawful surveillance.  It is not clear, though, that these distinctions are enough to make a constitutional difference. 

Legalities aside, it seems a waste of police and other official resources to focus such energy on peaceful, if disruptive, activists.  This may be a manifestation of our "24" society, in which every protest group is considered a potential terrorist cell.  It is fitting that the military itself may be involved in some capacity; lately it seems the official response to public dissent has been to militarize public policing (recall, for example, the massive surveillance undertaking prior to and during the 2004 Republican National Convention in New York City).