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Legislative efforts to prevent a repeat of the infamous Maryland State Police spying scandal are coming to a head this week.  Naturally, there are competing bills, and the founding fathers wouldn’t be surprised at how they compare — Governor O’Malley’s preferred bill (HB 311/SB266) stands for “we’ll handle this from here,” while the bill by progressive legislators like State Senator Jamie Raskin and Delegate Sheila Hixson (HB 182/SB256) stands for “no you won’t.”

While the Frosh/O’Malley bill would be better than nothing, it leans dangerously far in the direction of permitting a good deal of what occurred during Maryland State Police’s “amok years” in 2005 and 2006,* and in leaving the door as widely ajar as possible for as much future covert surveillance as possible, all under the catchall term “legitimate law enforcement.” For instance:

(D) The Department shall:
(1) conduct all investigations involving First Amendment activities for a legitimate law enforcement objective [...]

(F) An investigation involving First Amendment activities shall be terminated when logistical leads have been exhausted and no legitimate law enforcement purpose justifies the continuance of the investigation. [...]

(K) Nothing in this section may be construed to prohibit a Department employee, in the course of the employee’s duties, from visiting any place… that is open to the general public… if the Department employee has a legitimate law enforcement objective.

That might not sound so bad until you realize that what’s legitimate and what isn’t is precisely what was and is at issue — and that it remains completely undefined in this proposed legislation. The Baltimore Sun reported that State Senator Jamie Raskin, by contrast, rightly believes that police need an “explicit guide,” adding:

“Having them write their own rules is not the solution,” Raskin said. “That was the problem.”

Indeed, even “writing their own rules” is being generous — the O’Malley bill doesn’t even seem to require explicit State Police revised rulemakings, settling instead for vague directives about how it might go about its business. Raskin’s bill is better from start to finish, providing specific descriptions of covert surveillance, and requiring specific actions whenever covert surveillance of “protest or advocacy entities” or individuals is envisioned.  To wit,  the State Police chief would have to make “a written finding, including specific factual determinations… that the use of the covert technique is justified because (1) a reasonable, articulable suspicion of a present or planned violation of the law; and (2) a less intrusive method  is not likely to yield satisfactory results .”

As the ACLU of Maryland writes — in a form e-mail you can add your name and thoughts to –

It is disturbing that the Administration is promoting a bill (HB 311/ SB 266) that fails in numerous ways to set the necessary standards to protect the First Amendment while opposing legislation that does establish strong standards, HB182/SB256. In fact, the Administration bill would actually condone some of the worst spying that has occurred.

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A forum about the civil liberties implications of a proposed license plate scanner system (announced here, on community listservs, and on fliers) was held in Takoma Park on Wednesday, February 25, 2009.  A video of that forum was recorded and uploaded by my friend Michelle Bailey (”Takoma Videotaping“).

Forum participants included:

• [02:30] Thomas Nephew (organizer)
• [06:47] Sharon Bradford Franklin (The Constitution Project)
• [21:10] David Zirin (The Nation, Campaign to End the Death Penalty)
• [30:23] Johnny Barnes (National Capital Area ACLU)

I’ve compiled a draft transcript of the forum.  The times there (and above) indicate the beginning of the speaker’s comments. A Q&A session began at around 42:23.

Takoma Park City Council member Terry Seamens, Public Safety Committee chair Chuck Thomas, and Takoma/Silver Spring Voice publisher/editor Eric Bond were in the audience, as were Takoma Park Police Department’s Chief Ronald Ricucci and Captain Edward Coursey.

Other resources for this forum:

• A resource page about the Takoma Park license plate scanner issue (press release, grant application, worksession video and documents, other links)
• My introduction to this forum, and my blog post about this forum
• Constitution Project’s “Guidelines for Public Video Surveillance” (.PDF, 104 pages)

I guess I thought this would get a little more attention than it has.  On Tuesday, the Washington Post’s Lisa Rein reported:

The U.S. Department of Homeland Security tracked the protest plans of a peaceful Washington area antiwar group and passed the information to the Maryland State Police, which had previously labeled the activists as terrorists in an intelligence file. The federal agency obtained two e-mails containing plans for upcoming demonstrations at a military recruiting center in Silver Spring in 2005, the first indication that DHS might have worked with the police to monitor advocacy groups.

While a DHS spokesman claimed the communications were “taken off the Internet,” that is disputed by Pat Elder, a leader of the group involved (the now dissolved DC Anti-War Network, or DAWN):

“They would have had to join our group as a member,” said Pat Elder of Bethesda, the leader of a national network that opposes military recruitment in high schools. He said he was in contact in 2005 with an activist in Atlanta about how to build the cardboard coffins frequently used by protesters against the Iraq war as a symbol of what activists have called needless military deaths.

The e-mails were forwarded to the Maryland State Police from a DHS office in Atlanta.

Nice database work!
It’s interesting how well coordinated the passage of information was.  It’s as if… as if… why, it’s as if there was some kind of federal database that would enable far-flung agencies to be aware of a mutual interest in a given “terrorist” like Mr. Elder once he was entered in the system.

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Chesapeake Climate Action Network (CCAN) executive director Mike Tidwell writes that he, too, was listed as a “terrorist” by the Maryland State Police on their now-infamous “Case Explorer” database.  Tidwell:

Since 2001, I have devoted my life entirely to the peaceful promotion of windmills and solar panels to solve global warming. Apparently not everyone liked my work, however. Believe it or not, the Maryland State Police - your state police - put my name in their criminal intelligence database as a “suspected terrorist” as part of their larger program of collecting information about political activists in 2005-2006. I was on this outrageous “watch” list apparently because of a single act of peaceful civil disobedience I participated in outside a coal-fired power plant in 2004. CCAN’s former deputy director Josh Tulkin was also put in the database as was another former CCAN staffer who has chosen to remain anonymous. Neither of these people has ever been arrested for anything in their entire lives. (See background below)

So about one third of the entire Maryland CCAN staff - one of the largest environmental groups in the state - was officially spied on by the police while we peacefully promoted clean electricity and clean cars for Maryland. This is, of course, an outrage and a threat, not just to civil liberties in Maryland, but to the state’s entire environmental community. When people who are trying SAVE the climate and SAVE the Bay are considered terrorists, the world has truly been turned upside down.

Tidwell asks readers to send an email to Governor Martin O’Malley asking him to release all surveillance files gathered by the MSP (who prefer to destroy the files), and to support comprehensive legislation (being drafted by local State Senator Jamie Raskin) to prevent similar abuses from happening again.  There will also be a 10:30 am rally tomorrow at the Silver Spring Metro station to further publicize the scandal and press these demands.  The rally and email campaign are both coordinated with the ACLU-Maryland, whose lawsuit helped uncover the scandal earlier this year.

This fishing expedition by the Maryland State Police task force was as un-American as McCarthyism or Nixon’s “dirty tricks” — it was a dry run for Chinese- or Stasi-style surveillance and infiltration of innocuous activist groups, and their labeling as literally enemies of the state.  Dry run is putting it kindly, actually — this was the real thing. The recently released Sachs report relays what I consider a snickering, bald-faced lie about how the “terrorist” designation was considered no big deal by those aware of it:

While the MSP employees with whom we spoke recognized that the individuals and groups under investigation here were not “terrorists,” under any reasonable and accepted definition of that word, none who were aware of the use of the designation seemed to consider that a government agency’s decision to label someone a terrorist, particularly when that label is included in an external database, could cause serious harm to that person’s reputation, career, and standing in the community.

Baloney. They knew full well they were putting a bureaucratic scarlet “T” on all of the people they labeled that way. For this assault on civil liberties to be fully repulsed, that needs to be turned on its head: the superiors involved should be disciplined and demoted, and those doing their bidding should be reassigned to simpler chores, like checking parking meters or directing traffic.

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UPDATE, 10/23: CCAN online communications manager Susanna Murley has set up a “No Police Spying” facebook group, with photos from the rally; alternatively, see the CCAN blog post about it.  Also, the New York Times  Andrew Revkin (”.Dot Earth” blog) is covering the story.

Max Obuszewski and other activists spied on by
the Maryland State Police. From left to right:
Maria Allwine, (Baltimore Pledge of Resistance
(BPoR), Kit Bonson (Washington Peace Center),
Obuszewski (BPoR), Mike Stark (Campaign to End
the Death Penalty). Allwine and Stark were also
among those surveilled by the MSP.
Originally uploaded by Thomas Nephew.

I’ve written a couple of times now about the Maryland State Police spying scandal (”Sachs Report…”, “Maryland Police Surveillance: Case Explorer and Civil Liberties“).   This Saturday, I attended a forum about it organized by the Washington Peace Center and held at the Presbyterian Church in Takoma Park.

Speakers included four activists surveilled by the state police (Baltimore Pledge of Resistance (BPoR) activists Max Obuszewski and Maria Allwine, and Campaign to End the Death Penalty (CEDP) activists David Zirin and Mike Stark), state senator Jamie Raskin, and David Rocah, the ACLU-Maryland lawyer who obtained the documents breaking the Maryland police spying scandal.  Ann Wilcox of the National Lawyer’s Guild broadened the focus by reporting on infiltration and surveillance connected with the Republican National Convention in St. Paul, Minnesota in September.

Obuszewski, Allwine
Mr. Obuszewski explained that the discovery of police surveillance was connected with protests he was part of at the NSA facility at Fort Meade. Noticing that documents were being provided to the judge in his civil disobedience case, Obuszewski got the help of the ACLU in August of 2006 to obtain whatever he could by federal Freedom of Information Act (FOIA) and Maryland Public Information Act petition. Fellow BPoR activist Allwine said she was certain that surveillance had been going on before the time frame they were able to uncover, and may well go beyond the state police.  Allwine is particularly curious about an intelligence unit of the Baltimore City police.  Referring to a October, 2003 incident, she wants to know whether Martin O’Malley — then mayor of Baltimore — was aware of city police surveillance of groups like hers at that time.

Allwine spoke of the chilling effect this can have on free speech; she’s advised worried people in the past that “you have to assume we’re being spied on,” but added “this is the most un-American thing I can think of — people responsible for public safety turning around and spying on” people exercising their right to free speech.

Below:
Fifty-three peace and death penalty “terrorists” — not four
Dissatisfaction with Sheridan, Sachs
Raskin/Hixson legislative reponse
The real “fringe”

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In “Review Assails Spying in Md. By State Police,” the Washington Post’s Lisa Rein reports:

The Maryland State Police “significantly overreached” when they spied on peaceful opponents of the death penalty and the Iraq war and were oblivious to their violation of the activists’ rights of free expression and association, an independent review concluded yesterday.

Calling the 14-month monitoring during the administration of then-Gov. Robert L. Ehrlich Jr. (R) a “systemic failure,” former U.S. attorney and state attorney general Stephen H. Sachs said the police violated federal regulations and showed a “lack of judgment” when they entered personal information about some activists into a federal anti-terrorism database.

(Emphasis added.)  This was the part of the scandal I singled out for scrutiny in late July when the story broke (”Maryland police surveillance: “Case Explorer” and civil liberties“), and I’m pleased to see it got detailed attention in the Sachs report.

From that report (”Review of Maryland State Police Covert Surveillance of Anti-Death Penalty and Anti-War Groups from March 2005 to May 2006“; .PDF, 149 pages, link added):

Second, MSP [Maryland State Police -ed.] violated federal regulations when it transmitted some of its investigative findings to a database maintained by the Washington-Baltimore High Intensity Drug Trafficking Area (HIDTA) program, a federally-funded initiative to promote cooperation and information-sharing among federal, state, and local law enforcement agencies. Regulations promulgated by the United States Department of Justice permit MSP, when participating in the HIDTA project, to collect and maintain intelligence information concerning an individual “only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.” See 28 C.F.R. § 23.20(a). Again, no such reasonable suspicion existed with respect to the investigation at issue here. To its credit, in late 2005 MSP discontinued, on its own initiative, its practice of sharing this type of information with HIDTA. [...]

While the MSP employees with whom we spoke recognized that the individuals and groups under investigation here were not “terrorists,” under any reasonable and accepted definition of that word, none who were aware of the use of the designation seemed to consider that a government agency’s decision to label someone a terrorist, particularly when that label is included in an external database, could cause serious harm to that person’s reputation, career, and standing in the community.

While this is absolutely no reflection on Mr. Sachs’s excellent report, that last part seems so implausible that I wonder if any of this was based on depositions under oath; if not, that’s a step I would then hope is not long in coming.*

Setting that aside, the Sachs report provides a wealth of information about the decision to use Case Explorer, and the ramifications of that decision; I’ll be studying that part of the report and writing about it separately.

Meanwhile, Sachs recommends that the Maryland State Police “formulate binding regulations that govern covert surveillance of “advocacy” or “protest” groups” which respect their constitutional rights.  But Sachs also makes several specific database- and “Case Explorer”-related recommendations (emphases added):

2. MSP should establish standards for the collection and dissemination of criminal intelligence information; provide for periodic auditing of the contents of MSP’s intelligence database; and require that information inappropriately entered as criminal intelligence information be purged promptly and that other information be purged on an appropriate cycle. Numerous law enforcement agencies around the country, including in Maryland, have promulgated regulations that address these issues. In Section IV below, this report identifies several models from which MSP may choose to draw.

3. MSP should revise, and possibly discontinue, its use of the Case Explorer database in connection with its intelligence-gathering activities. If funds are available, it should separate its criminal intelligence database from the information that it maintains in Case Explorer for other purposes. As presently employed by MSP’s Homeland Security and Intelligence Division, Case Explorer encourages the overinclusion of individuals and groups in the database, does not facilitate supervisory review of ongoing investigations, and, for a variety of technical reasons, frustrates the troopers, civilian analysts, and supervisors who have to use it on a regular basis.

He also recommends that MSP allow surveilled individuals who aren’t suspected of violent crime to see their files and then purge those files.

These recommendations echo those by constitutional law professor Jack Balkin in “The Constitution and the National Surveillance State”, which I outlined in my “Case Explorer and civil liberties” post: “…create a regular system of checks and procedures to avoid abuse … stop collecting information when it is no longer needed … discard information at regular intervals to protect privacy.“  If the Sachs recommendations are enshrined in state law and regulations, Maryland will have turned an deeply disturbing civil liberties failure into a historic civil liberties success, one that can show the way for other states and even the nation.

I’ll be forwarding these comments to all of my Maryland state representatives, and to any others who seem to have a role to play in enacting reforms.  I hope other Maryland citizens will add their voices in support of the Sachs recommendations.

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* UPDATE, 10/2: Sachs notes that he could not take testimony under oath, but got full cooperation from the MSP.  From the introduction: “As you know, I was not asked to conduct a formal investigation.  I had no power to issue subpoenas and no authority to take testimony under oath.  That said, my colleagues and I consider it important to note that we have received full cooperation from the State Police in [making MSP personnel] available for interviews, and giving us full access to all of the many documents we sought to examine…”

Washington-Baltimore High Intensity Drug Trafficking Area
(WB HIDTA) “Case Explorer” listing for Max Obuszewski, June 2005.
Via ACLU-MD “MSP Documents” dump, 7/17/08.

On July 17th, the American Civil Liberties Union (ACLU) of Maryland released documents “…revealing that the Maryland State Police (MSP) engaged in covert surveillance of local peace and anti-death penalty groups for over a year from 2005-2006.”

As the Washington Post reported the next day,

A well-known antiwar activist from Baltimore, Max Obuszewski, 63, was singled out by the undercover agents and entered into a “Washington-Baltimore High Intensity Drug Trafficking Area” database. His entry indicates a “Primary Crime” of “Terrorism-anti-government” and a “Secondary Crime” of “Terrorism-Anti-War Protesters,” according to the documents.

In the following, I summarize the story so far, and then pursue one aspect that may not yet have received sufficient attention: the “Case Explorer” database and its implications.

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