‘60s Redux: Cops at the Peace Rally

Police surveillance of political groups is, unfortunately, nothing new. There were police “Red squads” active in Chicago as early as 1886 in the aftermath of the Haymarket Riot. In 1906, the New York Police Department established an “anarchist squad” to keep tabs on potential subversives. At the height of the Cold War, communist organizations and those of their sympathizers were routinely monitored and infiltrated by local police forces, and in the 1960s and 1970s police watched and kept detailed files on members of the NAACP, the ACLU and groups protesting the Vietnam War.

So it should perhaps come as no surprise that the county sheriff’s office in Fresno is apparently doing it again; it has been accused of employing an undercover detective to infiltrate an anti-Iraq-war organization called Peace Fresno. The Sheriff’s Department -- although refusing to confirm or deny the accusation -- says it reserves the right to conduct surveillance and collect intelligence on “terrorist and organized crime organizations.”

So what’s wrong with that? Well, the main problem is that the Fresno sheriff appears to be going after an organization that, as far as anyone can tell, is neither criminal nor terrorist. Just as the groups monitored in previous eras were often not truly subversive, Peace Fresno is described by The Times as merely a mix of retirees, teachers, college students and social workers who stage a monthly antiwar protest at a Fresno intersection.

The news of the infiltration is particularly dispiriting because it comes 30 years after a national backlash that was supposed to curb such harassment against peaceful, noncriminal groups. In 1975, a Senate select committee led by Frank Church began investigating the domestic spying practices of federal agencies, including the FBI and the CIA; its powerful final report stated clearly that those agencies had interfered with the lives of individuals who had committed no crimes, branding them undesirables, making them suspects in future cases, spreading distorted information about them and generally chilling their political action.

But it wasn’t just federal agencies. Across the country, similar tactics had been pursued by police departments in major cities. In Los Angeles, charges of abuses by the Red squad ran back to the 1920s. In millions of pages of secret intelligence files, the LAPD kept tabs on “the Wobblies in the ‘20s to the labor agitators of the ‘30s, the interned Nisei of the ‘40s, the alleged subversives of the ‘50s and some antiwar demonstrators of the ‘60s,” according to the Los Angeles Police Commission. Police Chief William H. Parker’s right-wing politics drove his obsession with intelligence; it was widely rumored that he had the goods on everybody. And he built a system that continued long after he left.

Such evils had not been foreseen in the U.S. Constitution, and in the years since, the Supreme Court has never found anything inherently suspect about surveillance by police (as distinguished from electronic eavesdropping) and has fashioned no controls such as those imposed on searches, arrests and interrogations.

But in the 1970s, lawsuits to curb police infiltration were mounted in New York, Chicago, Los Angeles, Memphis and Detroit. In each of those cities, police ultimately agreed to restrict themselves to criminal investigations and not to engage in the policing of opinion. For the first time, there was a received view about spying in America: Surveillance without “a criminal predicate,” as California Atty. Gen. Bill Lockyer’s office puts it in the Fresno case, was not a proper police function.

It is this view that is coming apart at the present time. In the post-9/11 age of terrorism, police have begun to argue that they have to be able to look into all sorts of activities, not otherwise suspicious, to find possible webs of conspiracy. Because the basis for terrorism is sometimes religious, they have to be able to infiltrate religious organizations. It is said that the time has come for “general intelligence” not limited to criminal investigations.

In New York, a judge last year loosened restrictions. “We live in a different, more dangerous time than when the consent decree was approved in 1985,” said current New York City Police Commissioner Raymond W. Kelly. “This ruling removes restrictions from a bygone era.” This sounds good, and many of us are sympathetic. When we remember Sept. 11, it is tempting to believe that almost any intrusion is worth the price if it offers a chance of foiling another such act of terror.

But in the end, I don’t think we really do believe that. “General intelligence” would cover an enormous range of activities. The net of “intelligence” has no natural boundaries; its margins are entirely up to the investigator. On the other hand, the collection of intelligence is never neutral; there has to be a guiding idea, and the investigator is going to look for conspiracy in antiwar groups before softball teams.

We might say we just have to trust to the judgment of the investigator, but if the history of abuses tells us nothing else, it tells us that would be a sad mistake.

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Paul Chevigny is a professor of law at the New York University School of Law.