The Assault on Free Speech, Public Assembly, and Dissent

A National Lawyers Guild Report 29
Police Infiltration and Surveillance Absent Allegations of
Criminal Conduct
In the mid-1970s, a U.S. Senate Select Committee disclosed a
longstanding and wide-ranging national surveillance, infiltration, and
counterintelligence program against lawful activities of civil-rights
and antiwar protesters. 61 <strong>The</strong> Church Commission’s disclosure of an
FBI/CIA counterintelligence program (COINTELPRO) that targeted
the lawful activities of leaders like the Rev. Dr. Martin Luther King
and thousands of other individuals and organizations advocating
changes in social conditions and government policies for infiltration
and surveillance launched an era of government regulation of
political surveillance. <strong>The</strong> FBI adopted political surveillance
guidelines, 62 lawsuits were brought against the political intelligence
units of state and municipal police departments (which activists
referred to as “red squads”), 63 and some localities adopted municipal
ordinances. 64 Each led to guidelines governing law-enforcement
interaction with First Amendment political, associational, and
religious activities by members of the public. Although varying in
form among local policing organizations, each had the lynchpin
characteristic of requiring specific information that criminal activity
was taking place before police could investigate political activity,
particularly surveillance of First Amendment and associational
activity and use of undercover infiltration as an investigation
technique.
<strong>The</strong> creation of rules was particularly significant because the U.S.
Supreme Court and lower courts had consistently ruled that
collection of information by lawful means, for lawful purposes, by
police agencies caused no injury and hence did not give rise to a
justifiable court case. 65 This was so notwithstanding any implied
intimidation, threat, or “chilling effect” experienced by those subject
to surveillance.
<strong>The</strong> quarter-century era of guidelines requiring a criminal activity
predicate before police engage in surveillance and infiltration of
protected political activity abruptly ended in January 2001. A federal
appeals court granted a request by the City of Chicago to virtually
eliminate the consent decree governing political surveillance by the
Chicago Police Department. 66 <strong>The</strong> court ruled that the Police
Department’s professed need to keep tabs on incipient terrorist
groups warranted the virtual elimination of rules regulating political