What kind of Occupy activity is the Department of Homeland Security (DHS) allowed to place surveillance on? Was the agency part of the November 2011 crackdown on Occupy movement? Does it ever help local law enforcement police Occupy camps?
DHS’s answer to these questions: We’re not sure.
Hundreds of pages of documents Truthout obtained from DHS under a Freedom of Information Act (FOIA) request show a lack of clarity about DHS’s role in the surveillance and eviction of Occupy movements – within the agency itself.
The DHS is a federal agency created after September 11 attacks. According to its web site, it: “has a vital mission: to secure the nation from the many threats we face. This requires the dedication of more than 240,000 employees in jobs that range from aviation and border security to emergency response, from cybersecurity analyst to chemical facility inspector. Our duties are wide-ranging, but our goal is clear – keeping America safe.”
To read Truthout’s Department of Homeland Security documents, and other stories in our special project, Homeland Security: The Occupy Files, click here.
The question of whether the Occupy movements are considered security threats and can therefore be surveilled by the agency is detailed in internal memos that show the developing strategy toward the Occupy movement, which DHS employees affirm is “constitutionally protected activity.”
A series of media requests further underscore confusion about the agency’s involvement in a series of coordinated attacks on Occupy camps around the country in November. The full set of documents quoted in this story can be found here for the first part of the story, and documentation of media requests can be found here.
Questions About Monitoring First Amendment Activity
The first set of memos was written less than a month after the first Occupy Wall Street protests, on September 17, 2011. The discussion is initially centered around a threat assessment on a planned protest by Occupy Pittsburgh, on October 15, 2011; a DHS employee says the assessment may be infringing on protected First Amendment activity.
The email, sent on October 7, 2011, by a source whose name was redacted, reads:
There is attached to this email a threat bulletin being disseminated by the Office of Emergency Management in Pittsburgh in which it discusses the threat posed by the Occupy Pittsburgh campaign and the hackers group Anonymous…. Both myself and [redacted] (IO deployed to the PACIC [Pennsylvania Criminal Intelligence] Center in Harrisburg) are somewhat concerned that several items contained in this Intel Bulletin might be advocating surveillance and other countermeasures to be employed against activities protected under the 1st amendment. Would either one or both of you be able to see what could be developed from this document that (redacted) could take back to the Intel staff that produced this so that in the future they have a greater awareness of how to develop intelligence assessments that don’t undermine constitutionally protected speech and assembly rights?
The lack of clear guidelines on when planned surveillance oversteps boundaries of First Amendment protection is noted in an email ten days later, on Monday, October 17, 2011, from Shala Byers with the Intelligence Coordination Branch of DHS. It documents the need for a set of guidelines as “component partners and intelligence officers” come to DHS for intelligence information about Occupy Wall Street.
We have received a number of questions and requests for information regarding Occupy Wall Street from a number of component partners and intelligence officers. Recognizing that this is a first amendment protected activity, we have recommended (on an ad hoc basis when we receive requests) that our Intelligence Officers refer inquiries to fusion centers and avoid the topic altogether.
In response to this, J. Scott Matthews, a senior privacy analyst for intelligence at DHS, drafts recommended guidelines for allowed surveillance activities on October 17.
PRIV [DHS Privacy Office] and CRCL [Office for Civil Rights and Civil Liberties] supports the position that the Occupy Wall Street-type protesters are mostly engaged constitutionally protected activities. We maintain our longstanding position that DHS should not report on activities when the basis for reporting is political speech.
In the next paragraph of the same memo, Matthews’ guidelines allow for limited reporting, or surveillance, without offering further details about these allowances: “There are certainly some circumstances that may allow limited reporting on behavior that is coincident and collated with ‘Occupy Wall Street’ like protests.”
Even after these guidelines are issued, documents show, the intelligence-gathering branch with DHS, I&A or Intelligence and Analysis requested to “do a product on Occupy Wall Street,” according to an email from October 24, 2011.
A response to this request from a policy adviser at the Office for Civil Rights and Civil Liberties (CRCL) at DHS shows that there was little justification for broad-based surveillance.
Discussing whether CRCL would “clear a report on any product on OWS, generally,” the DHS employee writes: “I tend to agree that it would be difficult to clear on that, given that any concerns out of the movement thus far are local matters: reasonable time, place and manner restrictions on protests, health and safety issues etc.”
An email from a redacted source, titled DELIBERATIVE and sent on October 31, underscores this sentiment:
“I fear that no matter how you parse a potential report, any product on OWS which seeks to report on the movement in general, or the potential for violence nationwide would be largely reporting on First Amendment protected activity.”
Conflicting Accounts of Agency’s Role in Tent City Evictions
In the space of ten days in November 2011, about 12 Occupy camps, including Portland, New York City and Oakland, were cleared by local police forces. Soon after, it was revealed that mayors from 18 cities had been discussing Occupy protests on a conference call together, heightening suspicion that the evictions had been coordinated.
An Examiner article brought the DHS into the mix, reporting that, “local police agencies had received tactical and planning advice from national agencies,” and setting off a series of media requests to DHS which show the internal confusion about the agency’s role in dismantling these protests.
Bigad Shaban, a CBS news correspondent in California, sent a media request to DHS on November 16, 2011, saying: “We’d like to request comment from the department of homeland security concerning whether it, or any other federal agencies, offered any kind of assistance or advice to municipalities looking to dismantle their own ‘Occupy Wall Street’ protests?”
From there, the issue snowballed. The internal emails showing discussions of the media request range from statements that deny any involvement to those that are unsure and others that suggest that DHS was involved in the crackdowns.
An internal memo sent shortly after the CBS request, on November 16, 20ll, at 2:32 PM, implies that DHS was involved: “AP and CBS are asking about our relationship with cities dealing with “‘occupy protesters’ … how would we describe our activities?”
The next email, sent ten minutes later:
“And now Salon. This is getting legs. Any info would be greatly appreciated ASAP.”
A developing press release being circulated internally on the issue, sent at 3:04 PM, says that DHS is only involved if the protest takes place on federal property, though it notes an exception:
Since these protests are lawfully protected first amendment activities, we are treating all “occupy” demonstrations as peaceful. We are working with GSA [General Services Administration] and each city government to ensure that all parties concerned are safe and secure. When a protest area on federal property is deemed unsanitary or unsafe by GSA or a city, we work with those officials to develop a plan to evacuate the participants in a safe manner.We have held standard coordination calls and face-to-face meetings with our partners to ensure that the proper resources are available for operations such as street closures etc. the only eviction FPS has been involved with was assisting the Portland police bureau at the federally-owned Terry Schrunk Plaza where FPS [Federal Protective Service, a branch of DHS that protects federally owned buildings] arrested two people.
On background, which means that the information can not be directly attributed to DHS, the agency offered this information: “DHS is not actively coordinating with local law enforcement agencies and/or city governments concerning the evictions of Occupy encampments writ large.”
In another thread, a person named Brent Colburn, whose title and role were not identified, says that “we really need to stress … how rare the federal involvement is.”
However, the extent of DHS’s coordination with localities is further muddled in an internal email sent earlier by a Robert M. Davis – also without information identifying his role related to the agency, on November 16 at 3:41 PM – in which another possible exception to the assertion that DHS isn’t “actively coordination with local law enforcement” is put forward.
“FPS only has jurisdiction on federal property but will assist local authorities upon request with things like road closures, etc. DC, for instance, may require our assistance tomorrow with Key Bridge activities, etc.”
The Key Bridge protest took place on November 17 on a major bridge in the capitol.
In another separate thread, written before the Key Bridge protest, Colburn asks: “Triple checking on this – there hasn’t been any connection except for Portland?”
In the documents received by Truthout, his question goes unanswered.
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