"IF AN AGENT KNOCKS":
FEDERAL INVESTIGATORS AND YOUR RIGHTS
by: The Center for Constitutional Rights (CCR)
666 Broadway
New York, NY 10012
Phone: 212-614-6464
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People who openly oppose United State government polices should be
prepared to receive visits from FBI agents or other federal
investigators. Those you oppose U.S. policy in Central America, visit
Nicaraguan, Cuban or Soviet embassies here, or travel to those
countries, and those who give sanctuary to refugees from Guatemala and
El Salvador, or who struggle for Black liberation, for independence
for Puerto Rico, or against nuclear weapons, are likely to receive
visits from the FBI. Increasingly, agents are visiting the families,
friends and employees of these persons.
For example, in a nationwide sweep in 1987, FBI agents visited 12
people in five cities during a three-day period. Most had visited
Nicaragua to share their skills under the auspices of TecNica, a
Berkeley-based group that recruits and places volunteers in
development projects in Nicaragua. The majority of these FBI visits
were to workplaces where agents sometimes made their presence known to
employees and also spoke with co-workers. The agents incorrectly
implied that the volunteers were violating the trade embargo against
Nicaragua. While several of those targeted found the visits
threatening, and did not want to appear 'uncooperative' in the
presence of employers, most were aware of their right not to talk to
the FBI and to refer the agents to their lawyers. They understood that
the purpose of these visits was to discourage people from travelling
to Nicaragua and helping the people there overcome some of the
economic hardships caused by U.S. support for the Contras and the U.S.
trade embargo. This pamphlet is designed to answer the frequent
questions asked by people experiencing government scrutiny. It can
also help them develop practical responses.
What is Political Intelligence?
Political intelligence is information collected by the government
about individuals and groups. Files secured under the Freedom of
Information Act disclosed that government officials have long been
interested in all forms of data. Information gathered by government
agents ranges from them most personal data about sexual liaisons and
preferences to estimate of the strength of groups opposing U.S.
policies. Over the years, groups and individuals have developed
various ways of limiting the collection of information and preventing
such intelligence gathering from harming their work.
Do I Have To Talk To The FBI?
No. The FBI does not have the authority to make anyone answer
questions, or otherwise force anyone to cooperate with an
investigation. Thus, if an FBI agents knocks at your door, you do not
have to identify yourself to him, you can simply say "I don't want to
talk to you." or "You'll have to speak to my lawyer," then close the
door.
Agents are usually lawyers, and they are always trained as
investigators; they have learned the power of persuasion, the ability
to make a person feel scared, guilty, or impolite for refusing their
requests for information. So remember, they have no legal authority to
force people to say anything--unless they have obtained an arrest or
search warrant. Even when agents do have warrants, you still don't
have to answer their questions.
Under What Laws Do The Agents Operate?
In the wake of congressional reports exposing the FBI's
counterintelligence program (COINTELPRO), under which the agency
infiltrated groups, compiled dossiers on, and directly interfered with
individuals engaged in activities protected by the First Amendment
right to freedom of expression and association, guidelines regulating
the investigation of political activities were issued by the Justice
Department.
The FBI COINTEL program was initiated in 1956. Its purpose, as
described later by FBI Director J. Edgar Hoover, was "to expose,
disrupt, misdirect, discredit or otherwise neutralize activities" of
those individuals and organizations whose ideas or goals he opposed.
Tactics included; falsely labelling individuals as informants;
infiltrating groups with persons instructed to disrupt the group;
sending anonymous or forged letters designed to promote strife;
initiating politically motivated IRS investigations; carrying out
wiretaps; and disseminating to other government agencies and the media
unlawfully obtained derogatory information on individuals and groups.
Subsequent and superseding guidelines, authorizing "domestic
security/terrorism" investigations against political organizations
whenever the FBI had a reasonable belief that these groups might
violate a law, were issued in 1983. These guidelines permitted he same
intrusive techniques the FBI used against organized crime to be used
in such investigations. The guidelines provide no safeguards on the
use of informants to protect against infringements to First Amendment
rights.
The guidelines ignore the history of COINTELPRO abuses and abolish the
distinction between regular criminal investigations and investigations
of groups and individuals seeking political change. They fail to limit
the investigative techniques used to obtain data on political groups,
so that the FBI may use any technique against political organizations
including electronic surveillance and informers.
Thus, the FBI may begin a full investigation whenever there is a
reasonable indication that "two or more persons are engaged in an
enterprize for the purpose of furthering political or social goals
wholly or in part through activities that involve force or violence
and a violation of the criminal laws of the United States." The FBI
has interpreted "force or violence" to include the destruction of
property as a symbolic act, and the mere advocacy of such property
destruction would trigger an investigation. Even without any
reasonable indication, under a separate guideline on 'Civil Disorders
and Demonstrations involving a Federal Interest", the FBI may
investigate an organization that plans only legal and peaceful
demonstrations.
Another and perhaps even more important document governing federal
intelligence gathering is Executive Order 12333 on U.S. Intelligence
Activities. In force since 1981, its authorizes the FBI and CIA to
infiltrate, manipulate and destroy U.S. political organizations--under
the pretext of a "foreign" intelligence investigation. Investigative
guidelines under this order are in large part classified secret and
not publicly available. Government spying, infiltration and disruption
of domestic advocacy groups can be carried out, practically without
restraint, by merely alleging that political groups have some
connection to foreign nations or liberation movements, or that they
support positions similar to those of such movements. Such movements
might include the African National Congress (ANC) or the FMLN-FDR in
El Salvador. This executive offer has been used to avoid the minor
restrictions imposed on intelligence gathering on domestic groups. The
FBI merely alleges that a domestic group has a foreign connection, and
even though no crime is suspected the group or individual can be
investigated under the executive order.
The FBI's massive investigation of the Committee in Solidarity with
the People of El Salvador (CISPES) was carried out under E.O. 12333.
The CISPES investigation was used as a window to spy on other Central
America groups including the Network in Solidarity with Guatemala, the
Nicaraguan Network, the Thomas Merton Center, and the Central America
Mobilization Coalition. While the FBI produced not a shred of evidence
of wrongdoing on the part of CISPES during its five-year
investigation, it managed to amass 17 volumes of files on CISPES, most
of which are being withheld under a national security exemption. Over
170 investigations were begun as spin-offs of the CISPES
investigation.
Heavily deleted portions of these files, released under the Freedom of
Information Act, show that the FBI, under the aegis of Executive Order
12333, regularly attended and photographed demonstrations and
meetings, recorded the license plate numbers of participants, in
addition to conducting surreptitious interviews and placing
informants.
Names of people investigated were culled from this surveillance and
from radio broadcasts and flyers. Agents also cavalierly invaded
college campuses and visited employers and family members explaining
that they were investigating terrorist threats. The files indicate
that complaints to elected officials, and recourse to media and the
public, were successful in curtailing the FBI.
Which Federal Agencies Are Likely To Be Interested In A Citizen's Political
Activities and Affiliations?
The FBI is still the major national intelligence-gathering agency.
There are also many other federal, state, local and private
investigative agencies. At least 26 federal agencies may gather
intelligence, including the Immigration & Naturalization Service,
Internal Revenue Service, and the Treasury Department's Bureau of
Alcohol, Tobacco and Firearms. Local police agencies sometimes contain
'special service' units and narcotics or other 'strike forces' in
which federal, state and local agencies cooperate. The Central
Intelligence Agency and National Security Agency are particularly
active when a political organization has, or is suspected to have,
international contacts. Military security agencies, and increasingly
significant 'private' research institutes and security agencies also
gather intelligence. Much of the information gathered by these
agencies winds up in various government computer data banks including
the FBI's Terrorist Information System (TIS).
In 1987 it was revealed that the New York City Police Department had
activated its 'Black Desk', sending undercover agents to meetings
concerning the planning of demonstrations against racism, and
monitoring a local Black radio station. Information was gathered about
local Black leaders and disseminated at special police riot training
sessions.
Surveillance carried out by private groups and individuals appears to
be growing industry. Years ago, the Western Goals Foundation was given
secret computer files stolen from the intelligence division of the Los
Angeles police department. Western Goals used the material to create
files on as many as 6,000 people. Executive Order 12333, moreover,
specifically allows the FBI to engage secret contracts with private
intelligence groups. The secret investigation guidelines under that
executive order not that no questions need be asked about how "any
information, property or materials furnished by individuals' action on
their own initiative" were obtained. After the offices of the Center
for Development Policy were broken into in November 1986, and
documents relating to Southern Air Transport contra supply flights
were stolen, its director, ex- U.S. ambassador Robert White speculated
that the break-in at his office might have been the work of
anti-communist vigilantes. He noted: "There's a whole network that's
been building up...to reinforce what Oliver North has been doing."
How Does The FBI Learn About Individuals and Organizations?
Political intelligence is gathered from public sources, such as
newspapers, radio and leaflets. It is also collected by informers who
may be government employees or people who are recruited by them.
Political intelligence is also collected through FBI visits to your
home or workplace. In this booklet, we are most concerned with this
aspect of intelligence gathering.
Agents may be sent to interview people after FBI officials decide
there is a 'reasonable indication' that an organization meets the
guidelines for a 'domestic security' investigation, or because a
person has attended a meeting or a rally sponsored by a group
allegedly suspected of foreign connections under Executive Order
12333. People who visit embassies of countries that the U.S. considers
unfriendly are also likely to be visited by the FBI. Such interviews
are a primary source of information because most people are not aware
of their right not to talk to federal agents.
Many people visited by agents are afraid of being rude or
uncooperative. Agents may be friendly and courteous, as if they are
attempting to protect you or your organization, or express admiration
for your organization and its goals. Occasionally, the FBI may
persuade a disaffected member of an organization to give them
information about other members, including their personal lives,
character, and vulnerabilities.
A major goal of FBI agents is to convince people to give up their
rights to silence and privacy. Recently when FBI agents visited
TecNica volunteers at their homes and workplaces, they said such
intimidating things as: "You're being a dupe of the Russians and we're
giving you a chance to stop doing something you may regret later." The
agents told another person that she was not the target of the
investigation, but might be able to help them.
In San Antonio during a series of visits to affiliates of a Central
America information group, the FBI gave a 20 minute presentation
including a slide show on the 'evils of communism;, to one of the
persons they questioned.
In 1984, the FBI visited over 100 persons who had traveled to
Nicaragua. The main purpose of the visits was to develop 'assets',
people who would agree to supply the FBI with information.
What If I Suspect Surveillance?
Prudence is the best course, no matter what you suspect, or what the
basis is for your suspicion. When possible, confront the suspected
person in public, with at least one other person present. If the
suspect declines to answer, he or she at least now knows that you are
aware of the surveillance. A few years ago, religious supporters of a
nation-wide call to resist possible U.S. intervention in Central
America noticed unfamiliar people lurking around their offices at 6
a.m., but failed to ask what they wanted and who they were. If you
suspect surveillance, you should not hesitate to ask the suspected
agents' names and inquire about their business.
The events giving rise to suspicions of surveillance vary widely, but
a general principle remains constant: confront the suspected agents
politely and in public (never alone) and inquire about their business.
If the answer does not dispel your suspicion, share it with other who
may be affected and discuss a collective response. Do not let fears
generated by 'conspicuous' surveillance create unspoken tensions that
undermine your work and organization. Creating fear is often the
purpose of obvious surveillance. When in doubt, call a trusted lawyer
familiar with political surveillance, or call the Movement Support
Network hotline: (212) 614-6422.
How Should I Respond to Threatening Letters or Calls?
If your home is broken into, or threats have been made against you,
your organization, or someone you work with, share this information
with everyone affected. Take immediate steps to increase personal and
office security. You should discuss with your organization's officials
and with a lawyer whether and how to report such incidents to the
police. If you decide to make a report, do not do so without the
presence of counsel.
What Should I Do If My Office Or Home Is Broken Into And I Suspect That The
Motive Behind It was Intelligence Gathering or Harassment?
Obvious break-ins, in which nothing, or very little of value is taken,
are a growing form of intimidation and intelligence gathering. If you
discover a break-in, do not disturb the crime scene and touch as
little as possible until you can calmly analyze the situation and
until you decide what approach you are going to take. Try yo figure
out what, if anything, is missing. If little of monetary value is
taken, and important files have been obviously read, decide with your
co-workers and a lawyer whether and how to report the break-in to the
police. Take photographs of the crime scene. Photograph any damage
that may have been done and any notes that may have been left by the
intruders. Over 100 break-ins have been reported to the Movement
Support Network. Call us. We can help you determine if the break- in
was politically motivated and, if it was, get you in touch with other
groups and individuals who have had similar experience.
What Should I do If Police, FBI, Or Other Agents Appear With An Arrest Or
Search Warrant?
Agents who have an arrest or search warrant are the only ones you are
legally required to get into your home or office. If agents say they
have a warrant you should ask to see the warrant before permitting
access. And you should immediately ask to call a lawyer. For your own
physical safety you should not resist arrest, even if they do not show
you the warrant, or if they refuse to let you call a lawyer. To the
extent permitted by the agents conducting a search, you should observe
the search carefully, follow them and make mental or written notes of
what the agents are doing. As soon as possible, write down what
happened and discuss it with your lawyer.
What Should I Do If Agents Appear With An Arrest or Search Warrant?
Even when agents come with a warrant, you are under no legal
obligation to tell them anything. If agents try to question you, it is
important not to answer or make any statements, at least not until
after you have consulted a lawyer.
Announce your desire to consult a lawyer, and make every reasonable
effort to contact one as quickly as possible. Your statement that you
wish to speak to the FBI only in the presence of a lawyer, even if it
accomplished nothing else, should put an end to the agents' questions.
Department of Justice policy requires agents to cease questioning, or
refrain from questioning, anyone who informs them that he or she is
represented by a lawyer.
To reiterate: upon first being contacted by any government
investigation, the safest thing to say is: "Excuse me, but I'd like to
talk to my lawyer before I say anything to you." Or, "I have nothing
to say to you. I will talk to my lawyer and have her {or him} contact
you." If agents ask for your lawyer's name, ask for their business
card, and say you will have your lawyer contact them. Remember to get
the name, agency, and telephone number of any federal, state, or local
investigator who visits you. If you do not have a lawyer, call the
Movement Support Hotline (212) 614-6422, or call the local office of
the National Lawyers Guild (212) 966-5000.
As soon as possible after your first contact with an investigator,
write a short memo about the visit, including the date, time,
location, people present,any name mentioned by the investigators, and
the reason they gave for their investigation. Also include
descriptions of the agents and their car, if any. This may be useful
to your lawyer and to others who may be contacted by the same agents.
After discussing the situation with your lawyer, you may want to alert
your co-workers, friends, neighbors, or political associates about the
visit. The purpose is not to alarm them, but to insure that they
understand their rights. It might be a good idea to do this at a
meeting at which the history of investigative abuse is presented.
If I Don't Cooperate, Doesn't It Look Like I Have Something To Hide?
This is one of the most frequently asked questions. The answer
involves the nature of political 'intelligence' investigations and the
job of the FBI. Agents will try to make you feel that it will 'look
bad' if you don't cooperate with them. Many people not familiar with
how the FBI operates worry about being uncooperative. Though agents
may say they are only interested in 'terrorists' of protecting the
President, they are intend on learning about the habits, opinions and
affiliations of people not suspected of wrongdoing. SUch
investigations, and the kind of controls they make possible, are
completely incompatible with political freedom, and with the political
and legal system envisaged by the Constitution.
While honesty may be the best policy in delaying with other people,
FBI agents and other investigators are employed to ferret out
information you would not freely share with strangers. Trying to
answer agents' questions, or trying to "educate them" about your cause
can be very dangerous--as dangerous as trying to outsmart them, or
trying to find out their real purpose. By talking to federal
investigators you may, unwittingly, lay the basis for your won
prosecution--in giving false or inconsistent information to the FBI.
IT IS A FEDERAL CRIME TO MAKE A FALSE STATEMENT TO AN FBI AGENT OR
OTHER FEDERAL INVESTIGATOR A violation could even be charged on the
basis of two inconsistent statements spoken out of fear or
forgetfulness.
Are There Any Circumstances Under Which It Is Advisable to Cooperate With An
FBI Investigation?
Never without a lawyer. There are situations, however, in which an
investigation appears to be legitimate, narrowly focused, and not
designed to gather political information. Such an investigation might
occur if you have been the victim of a crime, or a witness to civil
rights violations being prosecuted by the federal government. Under
those circumstances, you should work closely with a lawyer to see that
your rights are protected while you provide only necessary information
relevant to a specific incident. Lawyers may be able to avoid a
witness's appearance before a grand jury, or control the circumstances
of the appearance so that no one's rights are jeopardized.
How Can Grand Juries Make People Go To Jail?
After being granted immunity and ordered to testify by a judge, grand
jury witnesses who persist in refusing to testify can be held in
'civil contempt.' Such contempt is not a crime, but it results in the
witness being jailed for up to 18 months. or the duration of the grand
jury, whichever is less. The purpose of the incarceration is to coerce
the recalcitrant witness to testify. In most political cases,
testifying before a grand jury means giving up basic political
principles, and so the intended coercion has no effect--witnesses
continue to refuse to testify.
Witnesses who, upon the request of a grand jury, refuse to provide
"physical exemplars", (samples of handwriting, hair, appearance in a
line-up, or documents) may also be jailed for civil contempt.
The charge of 'criminal contempt' is also available to the government
as a weapon against uncooperative grand jury witnesses. For 'criminal
contempt' there is no maximum penalty--the sentence depends entirely
upon the judge's discretion. Charges of criminal contempt ares still
rare. They have been used, however, against Puerto Rican
independistas, especially those who have already served periods of
incarceration for civil contempt.
Is There Any Way To Prevent Grand Jury Witnesses From Going To Jail?
There is no sure-fire way to keep a grand jury witness from going to
jail. Combined legal and community support often make a difference,
however, in whether a witness goes to jail and, if so, for how long.
Early awareness of people's rights to refuse to talk to the FBI man,
in fact, prevent you from receiving a grand jury subpoena. If the FBI
is only interested in getting information from you, but not in jailing
you, you may not receive a grand jury subpoena.
What Can Lawyer Do?
A lawyer can help to ensure that government investigators only do what
they are authorized to do and can see to it that you do not give up
any of your rights.
If you are subpoenaed to a grand jury your lawyer can challenge the
subpoena in court, to help raise the political issues that underlie
the investigation and negotiate for time. Your lawyer can also explain
to you the grand jury's procedures and the legal consequences of your
acts, so that you can rationally decide on your response.
What Rights Do I Have?
1. The right to work for change.
The First Amendment to the U.S. Constitution protects the rights of
groups and individuals who advocate, petition and assemble to
accomplish changes in laws, government practices and even the form of
government. Political intelligence gathering is not supposed to
interfere with these rights.
2. The right to remain silent.
The Fifth Amendment to the Constitution provides that every person has
the right to remain silent in the face of questions posed by any
police officer or government agent.
Federal prosecutors, however, may request judges to order a subpoenaed
witness to testify, after a grant of immunity, at a grand jury hearing
or at a criminal trial. This grant of immunity means that your Fifth
Amendment right to refuse to testify is taken away. What is given in
return is only the promise not to use your testimony against you is a
subsequent criminal prosecution. If you testify under subpoena you can
still be charges with a crime. Failure to testify after a grant of
immunity is discussed below.
3. The right to be free from 'unreasonable searches and seizures'
Without a warrant, no government agent is allowed to search your home
or office (or any other place that is yours and private). You may
refuse to let FBI agents come into your house or into your workplace,
unless they have a search warrant. Politeness aside, the wisest policy
is never to let agents into your home or office. They are trained
investigators and will make it difficult for you to refuse to talk.
Once inside your home or office, just by looking around, they can
easily gather information on such things as your lifestyle,
organization and reading habits.
The right to be free from unreasonable searches and seizures is based
on the Fourth Amendment to the Constitution. This Amendment is
supposed to protect against government access to your mail and other
written communications, telephone and other conversations.
Unfortunately, it is difficult to detect government interference with
writings and conversations. Modern technology makes it difficult to
detect electronic surveillance on a telephone line, other listening
devices, or cameras that records whatever occurs in a room. Also
common are forms of physical surveillance such as agents following in
car or on foot, mail covers, and informers carrying tape recorders
What Are The Rights Of Non-Citizens?
All non-citizens have the same rights as citizens with respect to the
FBI: the right not to speak to the FBI and the right to have an
attorney present at interviews with FBI agents. JUST WITH CITIZENS,
NON-CITIZENS SHOULD BE AWARE THAT LYING TO FEDERAL AGENTS IS A FEDERAL
CRIME
Foreigners should be aware that Immigration and Naturalization Service
(INS) agents are federal agents--lying to them constitutes a federal
crime. Commission of such a crime may be sufficient reason for
deportation or denial of immigrant status.
This section includes a general discussion of the political rights of
non-citizens. However, this is a changing area of law and politics and
we caution readers to call the Movement Support Network hotline or the
National Lawyer Guild for updated information.
1. Non-citizens
All aliens living in the United State are in theory protected by all
provisions of the Bill of Rights that are not expressly limited to
citizens. Thus, while aliens do not have the right to vote, they do
have rights of free speech and association, a right to a fair trial
for criminal charges, the right to be free of unreasonable searches
and seizures, the right to due process of law. However, in the
immigration context the federal government has broad powers, and the
courts have not fully developed the contours of aliens' constitutional
rights where the Immigration and Naturalization Service is concerned.
In December 1988, a federal district judge in Los Angeles held that
the government cannot deport immigrant aliens for their political
speech or associations, because to do so would violate their First
Amendment rights. Congress has said much the same thing for
non-immigrant aliens. However, this area of law is still developing.
2. Undocumented individuals
Undocumented individuals who engage in political activity should be
aware that they risk FBI surveillance and resulting exposure of
illegal status. IT IS COMMON PRACTICE FOR THE FBI AND INS TO SHARE
INFORMATION.
A document received form the FBI CISPES files shows that a local FBI
field office asked the Immigration and Naturalization Service to
provide them a list of Salvadorean citizens, U.S. permanent residents
included, who had visited the area. Other CISPES documents indicate
the FBI agents visited the administration offices for foreign students
on college campuses and utilized foreign student directories for
initial leads on investigations. In defending the actions of the FBI
in the CISPES investigation, the U.S. government argued that the mere
presence of Latin American nationals in solidarity groups justified
surveillance by the FBI.
The bottom line is that foreigners, including permanent residents, can
expect at least as much surveillance agencies by domestic agencies as
U.S. citizens, and should, in addition, be aware of possible
surveillance by foreign intelligence agencies operating in this
country.
3. Sharing of information with foreign intelligence agencies.
There are many indicators that the U.S. shares information with
intelligence agencies of governments it supports. We have received
evidence of information sharing with MI5 (Britain); KCIA (Korea);
Mossad (Israel); National Guard (El Salvador). Non-citizens should
probably assume that U.S. intelligence will share information with
'friendly' governments.
4. Change in immigration status
Applicants for permanent residencies and for naturalization are asked
to list the organizations they have worked with. Politically active
foreigners are advised to consult an immigration lawyer before
applying for a change in status.
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