A lawsuit accusing two civilian employees of the U.S. army of secretly spying on anti-war protestors can continue, a federal appeals court ruled on Dec. 17, 2012. Members of the Washington state-based Olympia Port Militarization Resistance had filed suit in 2010 against John Towery and Thomas Rudd, claiming their First and Fourth Amendment rights had been violated by the pair covertly collecting information about group members and their activities. The lawsuit says that Towery began spying on the group in 2007, collecting information such as license plates numbers and placed a camera outside a house where activists lived. Documents obtained by the American Civil Liberties Union (ACLU) and the Associated Press (AP) in late 2010 revealed widespread government surveillance of political activists in Washington State.
According to the appeals court opinion, “Plaintiffs have pled a plausible violation of their clearly established First Amendment rights. Plaintiffs have alleged that defendants ‘deterred or chilled the plaintiff’s political speech’ and that such deterrence motivated defendants’ conduct … . As a result of defendants’ information sharing and coordination with local law enforcement, plaintiffs were allegedly arrested without probable cause. These arrests allegedly disrupted plaintiffs’ peaceful protests and deterred their political speech.”
The opinion further states, “(g)iven plaintiffs strong anti-war message and defendants’ alleged illegal actions in purposefully facilitating a campaign of false arrests, it is plausible that Towery and Rudd were motivated by a desire to silence the protesters and not just by a desire to protect military shipments.”
On Dec. 2, 2010, the Associated Press released documents about the U.S. Army’s internal investigation of a former military analyst who spied on a Washington state anti-war group. Obtained through a Freedom of Information Act (FOIA) request, the documents show John Jacob Towery, a former civilian intelligence specialist at Joint Base Lewis-McChord, spied on members of the Olympia Port Militarization Resistance (OPMR) for two years, and shared this information with local law enforcement. The same day an ACLU report documented government violations of limits on their surveillance powers.
Lawyers for OPMR allege Towry’s military superiors knew about his undercover activities and had violated a federal law that prohibits military personnel from engaging in domestic law enforcement. The redacted documents provide some details about the Army’s internal investigation of the incident, but not the outcome of the inquiry or recommendations made by an investigating officer. One document dated March 2, 2009 shows Army officials upset with Tacoma police for publicly releasing documents about Towry in response to a FOIA request. Another document released suggested “the activities alleged by the Olympia activist were done in support of [local police departments] as a confidential informant/source and not as a member of the [Army].”
An attorney for OPMR, Larry Hildes, said, “We need to make sure that this doesn’t happen again. In a free society, you need to be able to speak out and dissent from the government policy without the government figuring out ways to get retribution and retaliation against you by spying on you.”
The federal government has violated the legal constraints on surveillance of U.S. citizens, according to documents released by the American Civil Liberties Union (ACLU) on Dec. 2, 2010. The heavily redacted 900 pages of documents were obtained through a FOIA lawsuit for records about surveillance operations related to the FISA Amendments Act (FAA). The documents include internal reports by the U.S. Attorney General and the Director of National Intelligence that confirm “compliance incidents continue to occur,” and recommend additional oversight measures to protect the privacy rights of American citizens. One report indicates incidents “may be indicative of patterns, trends, or underlying causes that might have broader implications.”
Passed by Congress in 1978, the Foreign Intelligence Surveillance Act (FISA) set the judicial procedures governing the electronic surveillance of U.S. residents allegedly engaged in international terrorism. In 2008, the FISA Amendment Act (FAA) expanded law enforcement’s powers of surveillance. Melissa Goodman, staff attorney with the ACLU National Security Project, said, “It is imperative that there be more public disclosure about the FAA violations described in these documents. . . as Congress begins to debate whether the FAA should expire or be amended in advance of its 2012 sunset.”