Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction


Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION,

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”).

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1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
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Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes, but is not limited to, the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; ?

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would not “arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature.” The Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
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Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . can be restricted as long as the restrictions are ‘reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that ‘resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because the [Plaza Order] would satisfy even the strictest test.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . enforce regulations of the time, place, and manner of expression which [1] are content- neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government Services Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

Pro-immigrant activists with Occupy Denver file suit against DIA and DPD, challenge airport free speech “permit”


DENVER, COLORADO- Civil liberties champion David Lane has filed a complaint in US district court challenging Denver’s office of the city attorney for instituting a permit process at DIA to prevent public protest. Holding signs has become impermissible at the airport, without the issuance of a permit seven days in advnace, although police are not bothering themselves about signs welcoming homecomers or seeking to connect business visitors with their limo service. That selective enforcement is unconstitutional of course, and the lawfirm powerhouse of Kilmer Lane & Newman is filing suit on behalf of two Occupy Denver plaintiffs. last Sunday, January 29, both were threatened with arrest by DIA police. While two earlier attempts to assemble had capitulated to DPD intimidation, the Occupy Denver activists stood their ground. Why did you file your lawsuit? “We know our rights. We want the POLICE to know our rights.”

1. Full text of complaint:

Case 1:17-cv-00332 Document 1
Filed 02/06/17 USDC Colorado Page 1 of 14

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

COMPLAINT

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, allege as follows:

INTRODUCTION

1. Plaintiffs Eric Verlo and Nazli McDonnell challenge a regulation of alarming breadth that bans all First Amendment expression at Denver International Airport without a permit.

2. Plaintiffs are concerned citizens who believe that President Donald Trump has overstepped his executive authority by signing the January 27, 2017, Executive Order (hereinafter “Muslim Ban”), which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit).

3. Plaintiffs wish to express their disgust with President Trump’s (likely unconstitutional) Muslim Ban. They wish to do so in the same place that hundreds of thousands of Americans across the country have done: standing directly outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within an airport where immigrants to America enter into the main terminal after clearing customs. Plaintiffs, unlike many citizens across this great nation who have exercised their opposition to the Muslim Ban in airports by chanting, singing, dancing, and praying, simply wish to stand in silent protest, holding signs that express their solidarity with immigrants and the Muslim community.

4. Plaintiffs are banned from doing so by DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”).

5. Regulation 50 states: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

6. Plaintiffs ask that this Court enjoin the enforcement of Regulation 50 and prohibit Defendants from arresting them for their First Amendment-protected activity of standing in peaceful protest within Jeppesen Terminal. Regulation 50 is overbroad in violation of the First Amendment and vague in violation of the Fourteenth Amendment’s Due Process Clause.

7. This is a civil rights action for declaratory and injunctive relief as well as fees and costs arising under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. Section 2201 et seq. due to Defendants’ current and imminent violations of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

PARTIES

8. Plaintiff Eric Verlo is a citizen of the United States of America. Mr. Verlo wishes to show his resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

9. Plaintiff Nazli McDonnell is a citizen of the United States of America. Ms. McDonnell wishes to show her resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

10. Defendant City and County of Denver is a municipal corporation and political subdivision of the State of Colorado. Thus, it is an entity subject to the provisions of § 1983.

11. Defendant Antonio Lopez is a Commander with the Denver Police Department. Commander Lopez is responsible for security at Denver International Airport’s Jeppesen Terminal.

12. Defendant Virginia Quinones is a Sergeant with the Denver Police Department. Sergeant Quinones is responsible for security at Denver International Airport’s Jeppesen Terminal.

JURISDICTION AND VENUE

13. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983; the First Amendment to the United States Constitution, incorporated as against States and their municipal divisions through the Fourteenth Amendment to the United States Constitution; and the Due Process Clause of the Fourteenth Amendment.

14. This Court has jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’ claims that “arise[] under the Constitution of the United States.”

FACTS

15. On January 27, 2017, President Donald Trump signed an Executive Order, which permanently banned Syrian refugees from emigrating to the United States, temporarily banned nationals of seven countries (including permanent legal residents and visa-holders), and suspended all applications to the United States refugee program (even as to vetted entrants currently in transit). President Trump’s Executive Order has been subsequently referred to as a “Muslim Ban,” because it both mirrors President Trump’s racist, anti-Islam statements made on December 7, 2015, that he was planning to ban all Muslims from entering the United States until our representatives can “figure out what’s going on” and the ban targets countries whose population is predominantly Muslim and seemingly bears little rational relation to each country’s security threat to the United States.

16. Immediately upon the enactment of President Trump’s Muslim Ban there was an outpouring of outrage from a large proportion of the American population and across the spectrum of political affiliation. This outrage led to resistance in the form of protests.

17. On January 28, 2017, and January 29, 2017, protests erupted in nearly every major city in the United States. The protests organically formed in our nation’s airports. Protesters chose to express their disgust with President Trump’s Muslim Ban in airports (and specifically outside of the secure CBP screening area) because individuals affected by the ban who were in transit to the United States were being held and questioned by CBP agents there. Many of these travelers, including lawful United States residents, were forced to sign documents revoking their lawful status within the United States and deported. Still others were simply deported with no explanation. Others still were held for hours as teams of lawyers rushed to prepare habeas petitions for their release.

18. News reports about the protests make clear that they have been peaceful and non- disruptive despite the gathering of, in some cases, thousands of people.

19. Airport staff have told protesters, and would-be protesters, at numerous airports across the nation, including Kansas City International Airport, that there are no restrictions on their speech and that all protesters who wish to participate in actions against the Muslim Ban are allowed. Protests have continued in other cities to this day.

20. On January 28, 2017, there was one such protest at Denver International Airport, within the Jeppesen Terminal. At approximately 5:00 p.m. hundreds gathered in the Jeppesen Terminal’s atrium, near arrivals, to protest and many others gathered to bear witness.

21. Prior to the protest, leaders had applied for a permit. It was denied. The reason for its denial was that the permit was not requested with seven days advance notice of the protest occurring. Regulation 50 requires seven days advance notice.

22. The January 28, 2017, protest began with speeches, chants, songs, and prayers. It was a peaceful gathering of solidarity for immigrants and Muslims. Every person at the January 28, 2017, protest was contained in an area of the Jeppesen Terminal atrium that is designed as a gathering space for people to sit, relax, and converse. No one was standing in the walkways or passageways of the terminal.

23. Soon after the January 28, 2017, protest began, members of the Denver Police Department arrived on-scene. Commander Antonio Lopez engaged the leader of the protest, Amal Kassir, along with State Representative Joe Salazar and representatives from the ACLU of Colorado, and informed them that the protest was unlawful. Commander Lopez told Ms. Kassir that anything that “could be construed as Free Speech” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit. See Exhibit 1, January 28, 2017 Video.

24. Commander Lopez also stated that all “First Amendment expression” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit on Regulation 50. Commander Lopez handed Regulation 50 to multiple protesters, including Ms. Kassir. See Exhibit 2, January 28, 2017 Video 2.

25. Regulation 50 states (in pertinent part): “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

26. Commander Lopez, along with members of Denver International Security, told Ms. Kassir that every portion of Denver International Airport property, which has an approximately fifty square mile footprint, is off-limits for First Amendment expression. They suggested that Ms. Kassir move her protest to Tower Road, which is approximately six miles from the Jeppesen Terminal and, like most of the land surrounding Denver International Airport, adjacent to open prairie land with no inhabitants.

27. Commander Lopez threatened Ms. Kassir and numerous other demonstrators with arrest if they didn’t immediately cease any “First Amendment expression.” According to Commander Lopez’s directives, the individuals gathered in the Jeppesen Terminal could not stand holding signs, sing, speak to others about matters of public concern, hold the United States Constitution above their shoulders, or stand silently with their arms interlocked.

28. Ultimately, to avoid arrest, Ms. Kassir and the demonstrators moved outside of the Jeppesen Terminal to the large area on its south side, adjacent to the escalators leading to the commuter rail and under the Westin Hotel. The protest continued peacefully for a little while longer, then disbursed without issue.

29. The next day, January 29, 2017, Plaintiffs Eric Verlo and Nazli McDonnell traveled to Denver International Airport’s Jeppesen Terminal to express their opposition to President Trump’s Muslim Ban.

30. Mr. Verlo and Ms. McDonnell brought with them signs expressing support for immigrants and expressing concern that history was repeating itself with disastrous potential consequences.

31. Mr. Verlo and Ms. McDonnell positioned themselves adjacent to the secure CBP screening area within the Jeppesen Terminal at approximately 1:15 p.m.

32. Adjacent the secure CBP screening area at the Jeppesen Terminal is the only place where Mr. Verlo and Ms. McDonnell can reach their intended audience. Mr. Verlo and Ms. McDonnell wish to communicate with those who could be swayed by their message and, particularly, with immigrants. International travelers are often immigrants and/or lawful United States residents, including green card and other visa holders, other than citizens. Mr. Verlo and Ms. McDonnell wish to express their solidarity with immigrants directly to these individuals. Further, United States citizens who arrive from international locations are also individuals with whom Mr. Verlo and Ms. McDonnell wish to communicate. International travelers have experienced other cultures and are likely to be sympathetic to Mr. Verlo and Ms. McDonell’s message.

33. The secure CBP screening area is also the location where the Muslim Ban has been enforced by DHS, both at Denver International Airport and across the nation. Neither Plaintiff attempted to enter any restricted areas of Denver International Airport.

34. While silently displaying their signs, Mr. Verlo and Ms. McDonnell were in the open plaza near the secure CBP screening area within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand. Mr. Verlo and Ms. McDonnell did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

35. Mr. Verlo and Mr. McDonnell also observed another man in the terminal, named Gene Wells, who was expressing views similar to theirs.

36. Mr. Wells was wearing a sign taped to the back of his shirt.

37. Mr. Wells left the Jeppesen Terminal, but subsequently returned to protest. When he did, he was stopped by Denver Police Department officers who told him that he could not walk around the terminal with the slogan he had affixed to his back. Mr. Wells eventually rejoined Mr. Verlo and Mr. McDonnell at the international arrivals doors, but not without trepidation. He feared he might be arrested.

38. While Mr. Verlo and Ms. McDonnell were displaying their signs, Defendant Sergeant Virginia Quinones approached Mr. Verlo and Ms. McDonnell and threatened them with arrest if they did not leave Jeppesen Terminal. See Exhibit 3, January 29, 2017, Video.

39. Sergeant Quinones handed Mr. Verlo and Ms. McDonnell Regulation 50 and cited it as the reason they would be arrested if they did not leave Jeppesen Terminal. Id. Sergeant Quinones told Mr. Verlo and Ms. McDonnell that they would need a permit in order to stand silently, holding signs in opposition of the Muslim Ban and be in compliance with Regulation 50.

40. Had Mr. Verlo and Ms. McDonnell applied for a permit the second President Trump signed the Executive Order implementing the Muslim Ban, they still would have been unable to engage in protest within the Jeppesen Terminal under the terms and conditions of Regulation 50 on January 29, 2017.

41. Mr. Verlo and Ms. McDonnell did not immediately leave the Jeppesen Terminal after being threatened with arrest. However, they were startled by Sergeant Quiones’ threat and feared arrest for the duration of the time they were there.

42. Throughout the time Mr. Verlo and Ms. McDonnell were expressing their views within the Jeppesen Terminal they received numerous shows of support from passersby. Multiple self- proclaimed Muslims expressed heart-felt statements of appreciation to Mr. Verlo, Ms. McDonnell, and others holding signs.

43. Mr. Verlo and Ms. McDonnell ultimately left Jeppesen Terminal.

44. Mr. Verlo and Ms. McDonnell wish to return to Jeppesen Terminal to express solidarity with Muslims and opposition to the Muslim Ban, but are reticent to do so for fear of being arrested.

45. Upon information and belief, no individual has been arrested, or threatened with arrest, for wearing a “Make America Great Again” campaign hat without a permit within the Jeppesen Terminal at Denver International Airport.

46. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign welcoming home a member of our military without a permit within the Jeppesen Terminal at Denver International Airport.

47. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign and soliciting passengers for a limousine without a permit within the Jeppesen Terminal at Denver International Airport.

48. Upon information and belief, no individual has been arrested, or threatened with arrest, for discussing current affairs with another person without a permit within the Jeppesen Terminal at Denver International Airport.

49. At all times relevant to this Complaint, Defendants acted under color of law.

CLAIM I: FIRST AMENDMENT
(§ 1983 violation – all Defendants)

50. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.

51. Regulation 50 violates the Free Speech Clause of the First Amendment to the Constitution, on its face and as applied, because it impermissibly curtails Plaintiffs’ free-speech rights.

52. Plaintiffs wish to speak on a matter of public concern. 11

53. Denver International Airport’s Jeppesen Terminal is a public forum.

54. Regulation 50 directly infringes upon and chills reasonable persons from engaging in activity that is protected by the First Amendment.

55. Regulation 50 acts as an unconstitutional prior restraint on speech because it (1) requires a permit before allowing individuals to engage in speech, (2) allows for arbitrary and/or discriminatory permit denials, and (3) requires advance notice that is unconstitutionally excessive.

56. Regulation 50 is overbroad.?

57. Regulation 50 is not narrowly tailored to serve a compelling government interest.?

58. Regulation 50 does not further a substantial government interest.?

59. Regulation 50’s restriction on expressive conduct is greater than necessary to further any
government interest.?

60. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly or
proximately, Plaintiffs to suffer damages.

CLAIM II: FIRST AMENDMENT RETALIATION
(§ 1983 violation – all Defendants)

1. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein. ?

2. Plaintiffs engaged in First Amendment protected speech on a matter of public concern ?while displaying signs opposing President Trump’s Muslim Ban on January 29, 2017.

3. Defendants jointly and on their own accord responded to Plaintiffs’ First Amendment protected speech with retaliation, including but not limited to threatening Plaintiffs with arrest.

4. Defendants retaliatory actions were substantially motivated by Plaintiffs’ exercise of their First Amendment rights.

5. By unlawfully threatening Plaintiffs with arrest, Defendants sought to punish Plaintiffs for exercising their First Amendment rights and to silence their future speech. Defendants’ retaliatory actions would chill a person of ordinary firmness from engaging in such First Amendment protected activity.

6. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

CLAIM III: FOURTEENTH AMENDMENT DUE PROCESS
(§ 1983 violation – all Defendants)

7. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein.

8. The prohibitions of Regulation 50 are vague and not clearly defined. ?

9. Regulation 50 offers no clear and measurable standard by which Plaintiffs and others can ?act lawfully.

10. Regulation 50 does not provide explicit standards for application by law enforcement officers.

11. Regulation 50 fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and authorizes or encourages arbitrary and discriminatory enforcement, or both.

12. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against Defendants, and grant:

(a) Appropriate declaratory and other injunctive and/or equitable relief; 13

(b)  Enter a declaration that Regulation 50 is unconstitutional on its face and enjoin its enforcement; ?

(c)  Compensatory and consequential damages, including damages for emotional distress, loss of reputation, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial; ?

(d)  All economic losses on all claims allowed by law; ?

(e)  Punitive damages on all claims allowed by law and in an amount to be determined ?at trial; ?

(f)  Attorney’s fees and the costs associated with this action, pursuant to 42 U.S.C. § ?1988; ?

(g)  Pre and post-judgment interest at the lawful rate; and ?

(h)  Any further relief that this court deems just and proper, and any other relief as ?allowed by law. ?

Dated this 6th day of February 2017.

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty

___________________________________
David A. Lane
?Andy McNulty?
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400 Denver, Colorado 80202?
Attorneys for Plaintiff

2. Full text of Feb 6 motion for preliminary injunction:

Case 1:17-cv-00332 Document 2
Filed 02/06/17 USDC Colorado Page 1 of 23

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, hereby submit the following Motion for Preliminary Injunction, and in support thereof, states as follows:

1. Introduction

Over the last four days, many Americans have expressed public disapproval of President Donald Trump’s January 27, 2017, Executive Order, which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit). Plaintiffs are concerned and alarmed United States citizens who wish to join the growing chorus of voices expressing opposition to the Executive Order. To do so, they wish to stand in silent protest at the Jeppesen Terminal within Denver International Airport.

Plaintiffs did just this on January 29, 2017, standing in silent protest of the Executive Order outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within Jeppesen Terminal. Almost immediately, Plaintiffs were threatened with arrest by Denver Police Department Sergeant Virginia Quinones for standing silently and holding signs opposing the Executive Order, despite that fact that the Jeppesen Terminal has previously been used for expressive activity (and that protesters at more than ten major airports nationwide have protested peacefully without major disruption or legal restriction). While silently displaying their signs, Plaintiffs were in the plaza within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand, in the open plaza outside of the secure CBP screening area at the Jeppesen Terminal. Plaintiffs did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

Even though Plaintiffs were simply engaged in peaceful First Amendment protected expression, they were threatened with arrest. Sergeant Quinones informed Plaintiffs that, in order to stand silently with political signs, they would need a permit. Without a permit, Sergeant Quinones stated, all “First Amendment expression” at the Denver International Airport was banned.

This was not the first time since the enactment of the Executive Order that the Denver Police Department threatened individuals with arrest for engaging in First Amendment protected activity in Jeppesen Terminal. On January 28, 2016, a protest was held in the plaza of Jeppesen Terminal. During the protest, Denver Police Commander Antonio Lopez instructed multiple individuals, including State Representative Joseph Salazar and representatives from the ACLU of Colorado, that all “First Amendment expression” was banned at Denver International Airport without a permit. See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2. The protesters had, in fact, applied for a permit earlier that day. However, it had not been granted because they had not done so seven days in advance of the protest in compliance with Denver International Airport regulations. Although no arrests were ultimately made, protesters were threatened numerous times by Commander Lopez, and other officers, with arrest.

The Denver International Airport regulation that both Sergeant Quinones and Commander Lopez relied upon in instructing Plaintiffs, and others, that Denver International Airport bans all “First Amendment expression” without a permit is DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”). Regulation 50 states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

Plaintiffs wish to return to Denver International Airport to protest the Executive Order, but are reasonably frightened of arrest and, absent action by this Court, must choose between lawfully exercising their First Amendment right and being subject to arrest and/or prosecution.

Plaintiffs ask that this Court enter an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.

2. Factual Background

All statements of fact set forth in the simultaneously filed Complaint are hereby incorporated into this Brief as though set forth fully herein.

3. Argument

3.1 The standard for issuance of a preliminary injunction.

When seeking a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm; (3) the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999).

The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006); see also 820 F.3d 1113, n.5 (10th Cir. 2016). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). Moreover, this “fair chance of prevailing” test is appropriate in this case because Plaintiffs are challenging a policy, not a statue or ordinance. See Planned Parenthood Minn, N.D., & S.D. v. Rounds, 530 F.3d 724, 732 (9th Cir. 2008) (“[C]ourts should… apply the familiar ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.”).

Under either standard, Plaintiffs are able to demonstrate that the issuance of a preliminary injunction is appropriate in this matter.

3.3 Regulation 50 implicates Plaintiffs’ First Amendment rights. 1

When the government regulates the exercise of First Amendment rights, the burden is on the proponent of the restriction to establish its constitutionality. Phelps-Roper v. Koster, 713 F.3d 942, 949 (8th Cir. 2013). Moreover, when assessing the preliminary injunction factors in First Amendment cases, “the likelihood of success will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). This is because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably, constitutes irreparable injury,” Heideman v. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003), and it is invariably in the public interest to protect an individual’s First Amendment rights. See Homans v. City of Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (noting that “the public interest is better served” by protecting First Amendment rights).

[NOTE 1. It is important to note that facial challenges to government policies and statutes, when based on First and Fourteenth Amendment grounds, are not disfavored. See United States v. Stevens, 559 U.S. 460, 473 (2010); City of Chicago v. Morales, 527 U.S. 41 (1999).]

3.4 Plaintiffs are likely to succeed on the merits.

Plaintiffs are likely to succeed on the merits because Regulation 50 violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

3.4(a) Plaintiffs engaged, and wish to engage, in speech on a matter of public concern.

Plaintiffs’ speech is at the core of the First Amendment’s protection because it deals with a matter of public concern. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks and citation omitted). “Speech on matters of public concern is at the heart of the First Amendment’s protection.” Id. at 451-52 (alterations and quotation marks omitted). “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Plaintiffs wish to engage in expression about President Donald Trump’s January 27, 2017, Executive Order, a topic that has generated nearly unprecedented debate and dissent. See Adrienne Mahsa Varkiani, Here’s Your List of All the Protests Happening Against the Muslim Ban, THINK PROGRESS (Jan. 28, 2017), https://thinkprogress.org/muslim-ban-protests-344f6e66022e#.ft1oznfv4 (compiling list of direct actions planned in response to President Trump’s January 27, 2017, Executive Order). Thus, Plaintiffs’ speech “‘occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’” Snyder, 562 U.S. at 452 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

3.4(b) Regulation 50 acts as a prior restraint.

The restriction at issue in this matter is a prior restraint. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984)). Regulation 50 is in an administrative order that forbids future communication and bases the ability to communicate in the future on the discretion of an administrative official. See DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” (emphasis added)). It is a prior restraint.

The burden of proving a prior restraint is permissible is particularly steep. The Supreme Court has repeatedly held that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). For the reasons outlined infra, Defendants cannot meet this especially significant burden.

3.4(c) Jeppesen Terminal, outside of the passenger security zones, is a traditional public forum.

The Supreme Court has not definitively decided whether airport terminals, including Jeppesen Terminal, are public forums. In Lee v. International Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992) (hereinafter “Lee I”), issued the same day as International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (hereinafter “Lee II”), the Supreme Court struck down a total ban on distribution of literature in airports. In Lee I, the Court issued a one sentence per curiam opinion, which affirmed the Second Circuit for the reasons expressed by Justice O’Connor, Justice Kennedy, and Justice Souter in Lee II. See Lee I, 505 U.S. at 831. Justice Kennedy and Justice Souter’s opinions in Lee II found that “airport corridors and shopping areas outside of the passenger security zones… are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles.” Lee II, 505 U.S. at 693 (Kennedy, J., concurring in the judgment); but see Lee II, 505 U.S. at 683 (“”[W]e think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”).

Therefore, Plaintiffs ask this Court to find the area of Jeppesen Terminal outside of the passenger security zones to be a public forum. The historical use of the Jeppesen Terminal’s plazas and other areas outside of the passenger security zones (including the area outside of the secure CBP screening area) for political speech (particularly, the history of welcoming of American military personnel home from service, discussion between passengers of matters of public concern, and display of clothing advocating for political views and ideals) indicates that it is a public forum. See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002) (“Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.”). Further, that the Jeppesen Terminal is free and open to the public (outside of the passenger security zones), illustrates that it is a public forum. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800, 805, 809 (1985). Finally, Jeppesen Terminal retains characteristics similar to parks: it has large plazas lined with benches, it is surrounded by businesses which are open to the public, and it has dedicated walkways, similar to sidewalks, indicating that it is a public forum. See e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988); United States v. Grace, 461 U.S. 171, 177 (1983). Further, the Supreme Court has not strictly limited the public forum category to streets, sidewalks, and parks. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (finding leased municipal theater is a public forum); Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (finding state fair is a public forum); Edwards v. South Carolina, 372 U.S. 229 (1963) (finding grounds of state capitol are a traditional public forum). Even if the City claims that it has never intended for Jeppesen Terminal to be a public forum, this is not dispositive. See Lee, 505 U.S. at 830 (government policy prohibiting distribution of literature at airport on property struck down); Cornelius, 473 U.S. at 805 (government’s decision to limit access is not itself dispositive). Plaintiffs’ ask that this Court find Jeppesen Terminal, outside of the passenger security zones, a traditional public forum.

Since Jeppesen Terminal is a traditional public forum, any restriction on Plaintiffs’ speech must be content-neutral and narrowly tailored to a compelling government interest. Regulation 50 fails at both.

3.4(d) Regulation 50 is content-based.

Regulation 50 is a content-based restriction of expression. Although the Supreme Court has long held that content-based restrictions elicit strict scrutiny, see, e.g., Carey v. Brown, 447 U.S. 455 (1980), lower courts diverged on the meaning of “content-based” until Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). 2 Reed clarified that a restriction is content based simply if it draws distinctions “based on the message a speaker conveys.” 135 S. Ct. at 2227. Reed is clear that even “subtle” distinctions that define regulated expression “by its function or purpose . . . are distinctions based on the message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. This accords with Texas v. Johnson, which held that “the emotive impact of speech on its audience is not a secondary effect unrelated to the content of the expression itself.” 491 U.S. 491 U.S. 297, 412 (1989) (internal quotations omitted).

[NOTE 2. Reed involved a municipal “sign code” that regulated signs differently based on the kind of message they conveyed (such as “ideological,” “political,” or “temporary directional”). 135 S. Ct. at 2224-25. The Court rejected the city’s argument that a law had to discriminate against certain viewpoints in order to be a content-based restriction. Id. at 2229.]

Regulation 50 is content-based on its face. It distinguishes between content and requires that an official determine the content of the speaker’s message when enforcing its proscriptions. Reed, 135 S. Ct. at 2227; see DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute[.]” (emphasis added)). The distinctions drawn by Regulation 50 make it a facially content-based restriction on expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412; Reed, 135 S. Ct. at 2227.

3.4(e) Regulation 50 is not narrowly tailored to serve a compelling government interest.

As a facially content-based restriction of expression at traditional public fora, Regulation 50 is presumptively unconstitutional unless Defendant “prove[s] that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 St. Ct. at 2231; accord Johnson, 491 U.S. at 412.

“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988) (citation omitted). Regulation 50 reaches more speech than that which would impair the security of the airport or ensure that passengers are not unduly encumbered. In fact, it completely bans all “First Amendment expression.” “A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id.. Regulation 50 is not such a ban. For instance, Plaintiffs’ expression does nothing to jeopardize security at Denver International Airport or to inhibit the free flow of passengers through the airport.

Further, any argument that Plaintiffs can engage in expressive activity in another location lacks merit, as the Supreme Court has held that the First Amendment is violated when one specific location or audience, when important to the speaker, is foreclosed. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014); Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997) (invalidating a “floating” buffer zone around people entering an abortion clinic partly on the ground that it prevented protestors “from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks”); Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (invalidating anti-handbilling ordinances even though “their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places”). Regulation 50 lacks the narrow tailoring necessary to survive First Amendment strict scrutiny analysis.

3.4(f) Regulation 50 violates the First Amendment even if this Court determines Jeppesen Terminal is a nonpublic forum.

Regulation 50 bans all “First Amendment expression” absent a permit; it is unconstitutional even when analyzed under the lower standard of scrutiny applied by courts to First Amendment political speech in a nonpublic forum. In Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), the Supreme Court considered whether a resolution restricting free speech in the airport was constitutional. The resolution at issue stated that the airport “is not open for First Amendment activities by any individual and/or entity.” Id. at 574. Although the Court did not explicitly find that the airport was a nonpublic forum, it did hold that the resolution restricting speech in the airport was facially unreasonable, even if the airport was a nonpublic forum. Id. at 573. The Court noted that enforcing the resolution would prohibit “talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574. The Court also noted, “[m]uch nondisruptive speech–such as the wearing of a T-shirt or button that contains a political message–may not be ‘airport related’ but is still protected speech even in a nonpublic forum.” Id. at 575 (citing Cohen v. California, 403 U.S. 15 (1971) (holding that wearing of jacket with offensive language in a courthouse was a form of nondisruptive expression that was protected by the First Amendment)). Thus, although specific conduct was not at issue in the Jews for Jesus decision, the Court nonetheless implicitly held that non-disruptive speech is protected by the First Amendment in nonpublic fora and that restrictions that encumber non-disruptive expression are unreasonable.

In Lee II, Justice O’Connor set forth the test for determining reasonableness in the context of nonpublic fora. 505 U.S. at 687 (O’Connor, J., concurring). 3 She stated, ”[t]he reasonableness of the Government’s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Id. (O’Connor, J., concurring) (quoting Cornelius, 473 U.S. at 809). However, Justice O’Connor noted that while “[o]rdinarily . . . we have . . . been confronted with cases where the fora at issue were discrete, single-purpose facilities,” airports present a different analysis because they are multipurpose facilities. Id. at 688 (O’Connor, J., concurring) (citations omitted). She determined airports to be multipurpose facilities because

the Port Authority [has] chosen not to limit access to the airports under its control, [and] has created a huge complex open to travelers and nontravelers alike. The airports house restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices and private clubs.

Id. This led to the finding that “[t]he reasonableness inquiry, therefore, is not whether the restrictions on speech are consistent with preserving the property for air travel, but whether they are reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id. at 689. A complete ban on First Amendment activity at the Jeppesen Terminal, absent a permit that must be obtained by providing seven days advance notice, is not a reasonable restriction. Regulation 50 does not comport with Justice O’Connor’s conclusion that airports are more than simply places where air travel occurs.

[NOTE 3. It is important to note that Lee involved a plurality opinion, joined by Justice O’Connor. Therefore, Justice O’Connor’s concurrence is the “narrowest grounds” that justify the Court’s result and her concurrence holds substantial precedential weight.]

Moreover, Justice O’Connor distinguished between solicitations (which the Supreme Court found could be reasonably restricted) and distributing leaflets (which the Supreme Court found could not be reasonably restricted) in the airport:

[L]eafleting does not entail the same kinds of problems presented by face-to-face solicitation. Specifically, “one need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand . . . . The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.”

Id. at 690 (quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)).

Thus, the Court held in Lee II that prohibiting solicitation in a nonpublic forum is not unreasonable, but that prohibiting the distribution of leaflets and other literature at a nonpublic forum is unreasonable. See also Lee, 505 U.S. at 830 (decided the same day as Lee II and striking down a prohibition on the distribution of leaflets and other literature at La Guardia, John F. Kennedy, and Newark International airports) (per curiam). Circuit courts have also recognized the inherent right to distribute paper and other information in nonpublic fora. Following Lee I and Lee II, two circuit courts have held that airports, as nonpublic fora, could not preclude newspaper publishers from placing newsracks in airport terminals. See Jacobsen v. City of Rapid City, South Dakota, 128 F.3d 660 (8th Cir. 1997); Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993). To the extent that the airports were concerned about safety or the impediment of traffic flow, the courts held that the airport may impose reasonable restrictions, but they could not enforce an outright ban on the newspaper racks. See Jacobsen, 128 F.3d at 660; Multimedia Publishing Co. of South Carolina, Inc., 991 F.2d at 154.

Denver, through Regulation 50, has banned all “First Amendment expression” including leafleting and protests. In fact, Plaintiffs expression is arguably less intrusive and disruptive to air travel than the form of expression, namely leafletting, that the Court held could not be reasonably restricted in the areas of an airport that precede the security screening area. It is clear from Lee I, Lee II, and Jews for Jesus that Denver cannot ban all “First Amendment expression” at the Jeppesen Terminal.

3.4(f)(1) Independently, the viewpoint-based prohibition of Plaintiffs’ speech, based on Regulation 50, violates the First Amendment.

Even if Jeppesen Terminal is a nonpublic forum, “this does not mean the government has unbridled control over speech, . . . for it is axiomatic that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (quoting Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, (1993)). “Restrictions on speech in nonpublic fora must be viewpoint neutral[.]” Warren v. Fairfax Cty., 196 F.3d 186, 193 (4th Cir. 1999) (citing Cornelius, 473 at 809). Defendants’ restriction of Plaintiffs’ speech, under the guise of Regulation 50, discriminates on the basis of viewpoint. Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest. Regulation 50 is being enforced as a clearly view-point based restriction. Defendants’ application of Regulation 50 to Plaintiffs speech is view-point based and violates the First Amendment.

3.4(g) The seven day advance notice requirement for obtaining a permit is not a reasonable restriction.

Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. Plaintiffs, like many others throughout history, wish to engage in First Amendment expression in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. See American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”).

Advance notice requirements that have been upheld by courts have most generally been less than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is reasonable for use of National Park areas in District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir. 1968) (two-day advance notice requirement for parade is reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054, 1059 (D. Mass. 1980) (three-day advance filing requirement for parade permit approved in context of broader challenge); Jackson v. Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain permit by 4 p.m. on day before the march), aff’d, 442 F.2d 928 (5th Cir. 1971). Lengthy advance filing requirements for parade permits, such as the seven day advance notice requirement imposed by Regulation 50, have been struck down as violating the First Amendment. See American-Arab Anti-Discrimination Comm., 418 F.3d at 605-07 (holding that provision requiring thirty days’ notice is overbroad and is not saved by an unwritten policy of waiving the provision); NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) (“[A]ll available precedent suggests that a 20-day advance notice requirement is overbroad.”). Even an advance filing requirement of five days has been held too long to comport with the First Amendment. See Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (city’s asserted goals of protecting pedestrian and vehicular traffic and minimizing inconvenience to the public does not justify five-day advance filing requirement for any parade, defined as ten or more persons).

It is clear that, in the case at bar, a permit requirement of seven days advance notice is not a reasonable restriction of Plaintiffs’ First Amendment rights. Plaintiffs wish to engage in timely, direct action against, what they perceive as, a tyrannical and unconstitutional exercise of the executive power. If Plaintiffs were to have applied for a permit at the exact moment President Trump signed the Executive Order, they would still have been prevented from engaging in First Amendment activity on January 29, 2017. In direct action, like in most things, timing is everything. As evidenced by myriad protests that occurred across the nation’s airports, which were accompanied by no violence or destruction of property and did not otherwise jeopardize security, accommodation of protest at the Jeppesen Terminal is reasonable. Such a lengthy approval period, with no exceptions for spontaneous, peaceful protests, violates the First Amendment. See Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (noting that “the length of the required period of advance notice is critical to its reasonableness; and given … that political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech” (emphasis added)).

3.4(h) Regulation 50 is overbroad in violation of the First Amendment.

“[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the [ordinance]’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). An overbroad statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it. City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) (“[B]roadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.”). The Supreme Court “has repeatedly held that a government purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964); see also Grayned v. City of Rockford, 408 U.S. 109, 114-15 (1972) (“The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.”). Courts have “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

Determining whether a law is substantially overbroad requires a two-step analysis. First, a court must “construe the challenged [law]; it is impossible to determine whether a [law] reaches too far without first knowing what the [law] covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Second, based on the first step, a court must determine whether the law “criminalizes a substantial amount of protected expressive activity.” Id. at 297.

Regulation 50 provides that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” Those tasked with enforcing Regulation 50, have stated that it bans all “First Amendment expression.” See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2.

A complete prohibition on First Amendment expression and related activity proscripts a substantial amount of protected expressive activity. See Jews for Jesus, 482 U.S. at 569; Lee, 505 U.S. at 830. It prohibits face-to-face conversations and wearing clothing intended to convey a message, along with leafleting and other traditional First Amendment activity, all of which protected expression. Regulation 50’s overbreadth is stark and violates the guarantees of the First Amendment.

3.4(i) Regulation 50 is unconstitutionally vague.

“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “A law’s failure to provide fair notice of what constitutes a violation is a special concern where laws ‘abut[ ] upon sensitive areas of basic First Amendment freedoms’ because it ‘inhibit[s] the exercise’ of freedom of expression and ‘inevitably lead[s] citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Stahl v. City of St. Louis, 687 F.3d 1038, 1041 (8th Cir. 2012) (quoting Grayned, 408 U.S. at 109). For this reason, a stringent vagueness test applies to a law that interferes with the right of free speech. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

Regulation 50 is vague, and therefore unconstitutional, for two separate reasons. First, Regulation 50 fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999). A law is unconstitutionally vague where it “does not provide people with fair notice of when their actions are likely to become unlawful.” Stahl, 687 F.3d at 1041. Because violators of Regulation 50 are subject to criminal sanction, the strictest vagueness test applies. See Reno v. ACLU, 521 U.S. 844, 872 (1997) (recognizing criminal sanctions might “cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images” which, together with the “‘risk of discriminatory enforcement’ of vague regulations, poses greater First Amendment concerns than those implicated by [a] civil regulation[.]”). Whether expressive activity will be deemed “First Amendment expression” in the Jeppesen Terminal is not predictable. Plaintiffs have reasonably refrained from protected speech for fear that someone might consider their expression to be in violation of the regulation. However, officials have failed to enforce the regulation against many others who are seemingly in violation, including those discussing politics with other passengers, wearing clothing meant to make some social or political statement, limo drivers soliciting passengers, and those welcoming home military veterans. Although there might be times when a speaker knows, or should know, that certain speech will violate the statute, in many situations such an effect is difficult or impossible to predict. See Stahl, 687 F.3d at 1041 (finding vagueness because even “[t]hough there are certainly times when a speaker knows or should know that certain speech or activities likely will cause a traffic problem, in many situations such an effect is difficult or impossible to predict.”). Regulation 50 fails to give fair notice and therefore violates the mandates of the Fourteenth Amendment.

Regulation 50 is also unconstitutionally broad because it “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S. at 56. Regulation 50’s terms allow law enforcement officials wide discretion to decide whether any given speech is prohibited and arrest the speaker. “Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.” Cox v. Louisiana, 379 U.S. 536, 579 (1965); see Norton v. Discipline Comm. of E. Tenn. State Univ., 399 U.S. 906, 909 (1970) (“Officials of public universities . . . are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.”).

Officers have been observed enforcing Regulation 50 against those protesting President Trump’s Executive Order, but not against those wearing other political shirts or buttons. Officers have not enforced the regulation against other political expression, including those standing in support of military veterans returning home from combat. Seemingly, the only ones who have been subject to this regulation are those who are specifically speaking against President Trump’s Executive Order. “The most meaningful aspect of the vagueness doctrine is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574. Because the terms allow a police officer leeway to determine that expressive conduct is lawful, or not, they are vague. Regulation 50 permits “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (internal citations omitted). It is unconstitutional.

3.5 Absent an injunction, Plaintiffs will suffer irreparable harm.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016); Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016).

Moreover, Plaintiffs’ expression is a time-sensitive response to a nearly unprecedented action by our federal government. But see C. Norwood, A Twitter Tribute to Holocaust Victims, THE ATLANTIC (January 27, 2017), https://www.theatlantic.com/politics/archive/2017/01/jewish-refugees-in-the-us/514742/ (describing the rebuff of refugees fleeing Nazi Germany in 1939, many of whom would be murdered during the Holocaust); Korematsu v. United States, 323 U.S. 214 (1944). Delaying Plaintiffs’ protest, and discouraging Plaintiffs and others from demonstrating, detracts from its importance and provides a false appearance that Denver is not like other cities of all sizes across the country that have mustered sizeable protests at their airports. Denver has held itself out as a “sanctuary city.” Jon Murray, Mayor Hancock says he welcomes “sanctuary city” title if it means Denver supports immigrants and refugees, The DENVER POST (January 30, 2017), http://www.denverpost.com/2017/01/30/mayor-hancock-welcomes-sanctuary-city-title-denver-supports-immigrants-refugees/. For Colorado’s citizens to seemingly show lackluster support in this time of trial would not only irreparable harm Plaintiffs, and others, but it would go against the public interest.

3.6 The balance of the equities weighs in favor of granting a preliminary injunction.

“The balance of equities… generally favors the constitutionally-protected freedom of expression.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). Courts have consistently held that when First Amendment freedoms are threatened, the balance of the equities weighs in the Plaintiffs’ favor. See Verlo, 820 F.3d at 1127; Awad, 670 F.3d at 1132. There is no harm to Defendant, who has no significant interest in the enforcement of Regulation 50 since it is likely unconstitutional.

3.7 A preliminary injunction is in the public interest.

“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1133 (internal quotation marks omitted); accord Verlo, 820 F.3d at 1127; Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”); Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

4. Conclusion

For the reasons stated, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction, enjoin enforcement of Regulation 50, and prohibit Defendants from arresting Plaintiffs and all others similarly situated when they engage in First Amendment protected activity within Jeppesen Terminal.

Dated this 6th day of February, 2017

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
__________________________

David Lane
Andy McNulty
1543 Champa Street, Suite 400 Denver, CO 80202
Counsel for Plaintiffs

Tulsa sheriff lets yahoo donors ride along to taser or shoot black suspects

Eric Harris running from an undercover sting in Tulsa Oklahoma
So. Black man Eric Harris was killed by Oklahoma lawmen last week, accidentally shot in the back by a deputy who thought he was triggering his taser, not his gun. He didn’t unholster one instead of the other, he actually jumped out of the cruiser with a weapon in each hand! Funny thing about that deputy… –But first let’s make clear that the Tulsa County Sheriff has already excused the officer of wrongdoing, likewise all the other cops who piled on Harris as he died, mocking his final breath. “Fuck your breath” said one cop as they kneed Harris’ face into the pavement until he died.

So triggerman Robert Bates was an “Advance Reserve” deputy, a retired insurance exec who donated to the department and thus was allowed to ride along with regular deputies and use tasers on people and other fun stuff. Bates used to be a cop in 1965 when black men were lynched more regularly –so White America believed. It turns out nothing has changed since those days. Except that today’s lynch mobs are not open to the public, today extrajudicial executioners have to wear a badge. Naturally good ol’ boys like Bates want a piece of that action.

It turns out, to be a volunteer donor-deputy is also a license to kill. Bates flat out shot Eric Harris as he laid on the ground. Though lawmen were converging from multiple vehicles and the winded Harris was already prone, someone called “taser, taser”. That’s when Bates pulled his gun instead and fired. Then Deputy Oops said “I’m sorry. I shot him!” The other deputies now pretend they didn’t hear Bates, or the gunshot. That is their defense for climbing on the victim and hastening his death.

The whole gruesome execution is on video, which the Tulsa County Sheriff supplied to make the case that the officers acted appropriately.

One of these days, a video will emerge of a deputized-donor riding along wearing a white hood and a noose.

Bored Oklahoma teen murder suspects not bored or under-educated enough to be considered teens

James Edwards, Chancey Luna and Michael Jones
Bored Oklahoma teens who shot a random jogger in the back are being tried as adults not juveniles because “it was an adult crime”; though killing while bored seems a juvenile crime by definition. So does immediately confessing a motive, “we were bored,” to the police, it would seem to me. But there’s more. Despite the confessions, it was not immediately clear who pulled the trigger as the three teens trailed their victim, Australian college baseball player Christopher Lane, in their car, then sped away to find a next target. But that didn’t stop Oklahoma police from charging just TWO of the boys with first degree murder, bail denied, with the third considered an accessory. I’ve provided the mug shots to give you a hint. For which 15 and 16 year-old do you think the state of Oklahoma is seeking the death penalty? (Spoiler: YES) And the older accessory –17 but white– gets bail and will be tried as a juvenile.
 
Pundits deride African American leaders for not decrying the Lane murder like they did that of Trayvon Martin, presumably because the victim was white. But I’ll ask where is the community outcry for young James Edwards and Chancy Luna, joy-killers they may be? Though I understand full well that other than the “doing it for fun” headlines, this event is unexceptional. Black children bear the brunt of law enforcement everyday, our prison system follows in the lynching tradition.

Everything’s up to date in Kansas City

Yep– They’ve gone about as far as they can go. Broadway’s otherwise obsolete lyrics about civilization’s western edge might be true again! Kansas City will now have 1-Gig/second internet access. One hundred times faster than yours. It’s a new project of Google’s, called Google Fiber, to set a new benchmark for ISPs. Your local cable monopoly has no incentive to offer you that level of service, except now it’s going to be hard to pretend they can’t, or pretend they need to cap your current use.

Did Google pick Kansas City because the ad campaign had a ready made ditty? “Everything’s up to date in Kansas City” works. Set in turn-of-the-last-century, the musical Oklahoma was abuzz about gas buggies going by their-selves, telephones, indoor outhouses and skyscrapers seven stories high, “about as high as a building ought to grow.” By the third verse, the technical fascination with modernity becomes distracted by the promiscuous, the visitor from Kansas City having seen a strip show, internet-like.

I got to Kansas City on a Frid’y
By Sattidy I larned a thing or two
‘Coz up to then I didn’t have an idy
Of whut the modren world was comin’ to!

Ev’rythin’s like a dream in Kansas City,
It’s better than a magic lantern show!

They got a big theayter they call a burleeque.
Fer fifty cents you c’n see a dandy show.

———
For the curious, here are the full lyrics to Oklahoma’s “Kansas City”

Will:
I got to Kansas City on a Frid’y
By Sattidy I larned a thing or two
‘Coz up to then I didn’t have an idy
Of whut the modren world was comin’ to!
I counted twenty gas buggies goin’ by theirsel’s
Almost ev’ry time I tuk a walk.
‘Nen I put my ear to a Bell Telephone
And a strange womern started in to talk!

Man 1: To you?

Man 2: Whut next!

Men: Yeah whut!

Will: Whut next? Gather ’round!

Ev’rythin’s up to date in Kansas City
They’ve gone about as fur as they c’n go!
They went and built a skyscraper seven stories high,
About as high as a buildin’ orta grow.
Ev’rythin’s like a dream in Kansas City,
It’s better than a magic lantern show!
Y’ c’n turn the radiator on
Whenever you want some heat.
With ev’ry kind o’ comfort
Ev’ry house is all complete.
You c’n walk to privies in the rain
And never wet your feet!
They’ve gone about as fur as they c’n go,

Men: Yes sir!
They’ve gone about as fur as they c’n go!

Will:
Ev’rythin’s up to date in Kansas City
They’ve gone about as fur as they c’n go!
They got a big theayter they call a burleeque.
Fer fifty cents you c’n see a dandy show.

Man 1: Gals?

Will:
One of the gals was fat and pink and pretty,
As round above as she was round below.
I could swear that she was padded
From her shoulder to her heel,
But latter in the second act
When she began to peel
She proved that ev’rythin’ she had was absolutely real!
She went about as fur as she could go,

Men: Yes sir!
She went about as fur as she could go!

For people who hate opera

I LOVE LUCY featuring THE MOST HAPPY FELLA
The trouble with introductory collections like “Opera for People Who Hate Opera” is of course that it’s still OPERA. I’m inclined to believe the gateway acquired-taste for American pop music ears is –why not– American Musical Theater. But before I get to the particular show I have in mind THE MOST HAPPY FELLA, for a teaser, get thee to Tevye’s dream of Fiddler On The Roof. Find the original Broadway stage recording (These girls found it: The Dream) where Zero Mostel pretends to be visited by two ghosts, blending three melodies –with dances– to a whirlwind intensity. Discordant, shrill, phenomenal, pure opera.

FIDDLER ON THE ROOF: THE DREAM
Really, you cannot but love the energy and drama of that piece. And it meets the lower brow halfway: it’s in English, mostly, it’s sung in the registers to which we are more accustomed today, and the cacophony is corralled at a driving dervish pace, also most contemporary.

A Broadway convention of the golden age of musicals was the Dream Ballet scene. In Fiddler it was an opera and a ballet, but instead of a dream or a character’s hallucination, this was Tevye’s pretense of a nightmare, conjured to convince his wife to assent to let their oldest daughter marry the boy she loved, instead of the old man to whom she was promised.

The Dream features three motifs: Grandma Tzeitel represented by the Mazel Tov refrain, with the rejoinder of Tevye and his wife Golde, overtaken by the crescendo of the butcher’s deceased wife Fruma-Sarah, clearly borrowing the menace of the Wicked Witch of Oz.

That’s it — you can like opera! Don’t think yourself less sophisticated because lyrics in a foreign language bore you, or because sopranos or tenors strain your ears. You probably wouldn’t favor centuries-ago gruel either.

THE MOST HAPPY FELLA
Just as maturing musical taste builds inevitably toward Jazz, I have a theory that Broadway fans eventually seek for melodies a little less pat. After not so long, the tunes you can easily whistle up the aisle begin to sound the same. Fresh ones don’t solve anything. Trust me, the unsung Broadway shows which didn’t recoup their production costs don’t sound any better now. Great as were all the Rogers & Hammerstein hits, you have heard only half their shows and yet you’ve heard them all. Ironically, R&H tried their hand at an opera-like show, called ALLEGRO, I don’t favor it, and neither did anyone else.

What I do know is that I love THE MOST HAPPY FELLA, a comparatively obscure musical which had the misfortune of opening in the shadow of MY FAIR LADY, you remember that one in your sleep. TMHF is the acknowledged masterpiece of Frank Loesser, who had no need to prove himself after composing GUYS AND DOLLS. Great as it is, how many times can you listen to Luck Be a Lady?

Being labeled an opera has meant ruin for Broadway musicals which stray from the basic musical review format. Musical Theater traditionally meant catchy tunes strung together with comedy. Wartime brought OKLAHOMA and CAROUSEL which introduced more complicated drama, but librettos entirely sung, weaving the collected songs together, didn’t catch on until the pop operas of the seventies, commercial formulas like PHANTOM OF THE– that were neither operatic, nor terribly musical either.

Out-and-out American operas such as PORGY AND BESS have always lost money in production. Like the argument I make here, to entice American audiences, you have to pretend opera is not opera. Even liner notes written today about 1956’s THE MOST HAPPY FELLA have to avoid coming down one way or another on whether it’s an opera. Yes much of the dialog is sung, but critics reassure us that parts are spoken too. There are numbers too popular to be highbrow, you know one of them, Standing on the Corner [Watching All the Girls Go By].

A 1957 episode of I LOVE LUCY featured a visit to a Broadway performance, in probably an early example of the entertainment industry giving itself a lift. Lucy and company are shown watching from a box seat, but we hear only the more palatable popular ballads Don’t Cry and the Texas dance number Big “D”.

To settle the opera matter, I look at a couple obvious giveaways. One, the leading character Tony was sung by the opera star Robert Weebe, a colleague of Maria Callas. And two, the matinee show traditional of Broadway, was sung by Weebe’s understudy, because two shows a day is neither traditional nor possible for opera.

There’s also the comfortable coincidence that the plot centers around an Italian immigrant, thus much of the dialog is Italian-accented. And he runs a farm in Napa Valley manned by other Italians, who sing in outright Italian, the lingua franca of opera. So the Happy Fella Broadway disguise was never very earnest.

What marks Happy Fella most distinctly are the depth and height of emotional expression. Plenty of musicals have plumbed despair, but in contrast I’m not sure I’ve ever heard a happier fella than Tony Esposito. Witness tenors trumpet Abbondanza! (Abundance), then Benvenuta! (Welcome), and then Spozalizio! (Wedding), which are actually in English, punctuated with self-translatable Italian. Another high-spirited refrain is about “Coming Home” with the proceeds of the strawberry harvest, titled Fresno Beauties.

And then where honestly have you heard a love song more overwhelmed with feeling than My Heart is So Full of You? It begins with exclamation, answers as duet, then envelopes the inner reflections of two peripheral characters.

There’s also the deliriously contented duet which begins “Lunedi, Martedi” (How Beautiful the Days).

The peerless Soliloquy from Carousel gets a run for its money in Mamma, Mamma [Up in Heav’n, How you lika my sweet girl?], as near an operatic aria as you can get.

And while I’m inventorying the happy overload, I don’t want to leave out the beautiful Somebody, Somewhere and Warm all over. The charmer Happy to Make Your Acquaintance is also a standard Broadway showstopper with reprise.

While I’m digressing, I’d like to credit the Big “D” number, where two Texans supposedly recognize each other by their drawl, while neither in actuality has a drawl. The drawl is sung, the notes slurred to create a most beguiling familiarity. It’s a duet to prick your ears at just the phrasing, my own introduction to the incomparable Susan Johnson.

If I’ve touched on any clarity here, it’s what you already know: The amplified modulation of opera is not about librettos all sung, or voices in full shriek. Singing out expresses emotional intensity, and in Happy Fella you’ll never meet happier.

US president can’t even make a speech

I MEAN, so effective was President Obama’s delivery that huge swaths of the American public who had come to hold him in clear disdain were safely put back under his spell. So self assured and competent was he that the only explanation his audience can now conjure for Obama’s dismal failures thus far, now called his partial-successes, is resignation about the political adversaries being obviously too great. They argue the presidency has only limited power, the ruling oligarchs hold all the cards, Obama has achieved wonders all things considered. Apparently the President of the United States has such diminished authority he can’t even explain all that in plain English to his national audience. You think he could defy the corporate media to pull the plug on a wardrobe malfunction. Obama would have a popular uprising of Tunisian magnitude if he lent his oratory skills to putting the public wrath in gear. Instead, more unbearable demispeak — I had to unplug from the news cycle. The Tucson tragedy became Obama’s Oklahoma City Moment, another Waco for American aspirations for change.

QuiBids internet racketeers threaten Not My Tribe with scam legal letter

McAfee and Taft OK Super LawyersGame On QuiBids. We received a letter today from an Oklahoma law firm, on behalf of “QuiBids LLC,” apparently the preeminent of “penny auction site” confidence scams, who took exception to our earlier look-see into their rip-off operation. Frankly, I assumed our cries of foul were latecomers, while someone more responsible was ringing the OK attorney general. As QuiBids has the temerity to threaten “whatever action is necessary,” I’ll make the call personally. As it is I already feel duped for reprinting the letter below, because it reads like typical QuiBids fake advertorials. Name-dropping Better Business Bureau, Chamber of Commerce, yada yada. And of course: “Sadly, the same cannot be said about some of QuiBids’ competitors,” the we’re-not-like-the-other-con-artists routine. The phoniest passage pretends that QuiBids “was forced to file suit against another online penny auction site for its unlawful activities.” HAHAHA. Unlawful activities are prosecuted by the state, you flunkies. As you’ll learn presently.

Actually I am 100% certain that charges are already filed, and this aggressive PR is a smokescreen. I’ll post all ensuing developments.

By the way, consumers can contact BBBs to register complaints, but a business membership does not imply endorsement. Same with the Chamber of Commerce. And WHO considers the chamber any kind of arbiter of ethical business practice? That mindset comes from someone who didn’t stray beyond the business school building. Hohoho. Who does QuiBids take us for? Their marks?

To be clear, QuiBids and the “penny auction” ilk are neither auctions, nor gambling sites. Whether or not they deploy shill bidders or mischievous software, the QuiBids money-for-nothing scheme is fraud.

A penny auction website pretends to offer “dibs” to the last customer who puts money in the pot, and proceeds to collect “bid” payments for a virtually unlimited time span, until the last desperate player decides he’s lost enough.

Whether or not the victim is entitled to purchase the item at full retail price, as a consolation, does not mitigate the fact that they were duped.

Look no further than QuiBids’ own protestations. QuiBids differentiates itself from “the other penny auction sites” which it asserts without a hint of irony, are inherently guilty. Oh do go on, QuiBids, expound for us on the illegality of your competitors…

Add to the fraudulent transaction, the deceptive methods used to promote QuiBids. And now, contriving a legal threat to fain legitimacy. McAfee &Taft appears to be a significant law firm, why does this letter read like a QuiBids promotional blurb? We need to forward this to the partners McAfee and Taft themselves, to show them the sophomore crap being circulated under their letterhead.

At the risk of simply spreading the Quibids PR drivel, here it is.

McAFEE & TAFT
A PROFESSIONAL CORPORATION
10TH FLOOR – TWO LEADERSHIP SQUARE
21 NORTH ROBINSON – OKLAHOMA CITY, OK 73102-7103
(405) 235-9621 – FAX (405) 235-0439
http://www.mcafeetaft.com

Ryan L. Lobato
Attorney at Law

September 3, 2010

VIA EMAIL AND CERTIFIED MAIL RETURN RECEIPT REQUESTED

Eric Verlo
editorial @ notmytribe.com
Not My Tribe
29 E. Bijou, Room 222
Colorado Springs, CO 80903

Re: Trademark Infringement

Mr. Verlo:

We represent QuiBids, L.L.C. (“QuiBids”) in intellectual property and other matters. It has come to our attention that on June 19, 2010, you authored an article on your website titled “Scriptmatix ‘penny auctions’ such as Quibids are less scams than pure fraud.”

QuiBids takes great exception with your article, which calls QuiBids a “scam,” “patently dishonest,” and a “con game.” Your allegations are manifestly untrue. QuiBids presently has a ‘B+’ rating from the Better Business Bureau. The Better Business Bureau rating will improve to an ‘A+’ rating once QuiBids has been in business longer than a year. QuiBids offers its services in a forthright and moral way and works hard to distinguish itself from its less-ethical competition. QuiBids does not use shills or bots to drive up the price or decieve consumers, and QuiBids strives diligently to ensure customers know exactly what is going on at all times, without hidden fees or rigged competitions. Sadly, the same cannot be said about some of QuiBids’ competitors. In fact, QuiBids was recently forced to file suit against another online penny auction site for its unlawful activities such as inducing customer confusion and employing deceptive advertising techniques.

QuiBids’ reputation for being above-board is the driving force behind its success. Within the course of a year, QuiBids has become the largest online penny auction website and it continues to grow. QuiBids closes more than 6000 auctions per day and is a member of the local Chamber of Commerce. QuiBids is, in short, a valued member of the community and is not a “scam” or a “fraud.”

In view of the above, we are writing to ask you to retract your article. Publishing false, malicious and defaming material about a business is against the law. Damages for such conduct include actual and punitive damages, for which you may be held personally liable. It is precisely because QuiBids cares about its good name and reputation that QuiBids will, if need be, take whatever action is necessary to protect it. It is sincerely hoped that such further action will not be required, but instead a speedy and amiable resolution can be reached.

Please let me know within seven (7) days of the date of this letter your intentions with respect to deleting, removing or retracting the above-referenced article. I would be happy to speak to you personally about this matter should you so require.

Sincerely,

Ryan L. Lobato

Consider this certification of our receipt dude. You have my number. All communication will be recorded and forwarded to the appropriate authorities.

Scriptmatix “penny auctions” such as Quibids are less scams than pure fraud

Shell games tempt only the gullible, don’t they? So long as YOU don’t fall for them, what’s a little income redistribution among wretches? That’s an attitude shared only by the uninitiated. So-called internet “penny auctions” exploit human vulnerability like trust and avarice, leaving victims to blame their own stupidity or greed. You may shrug off getting burned as a lesson learned, but all confidence tricks count on that. Websites like Quibids and Scriptmatix’s PennyAuction are neither novel discount methods, adventure shopping, gambling scenarios or lotteries. They are con games that lead you to believe you are getting something for your money, until you don’t.

Just because YOU can figure it out -from an objective distance- doesn’t mean Quibids is not patently dishonest. US laws governing fraud are enforced by local statutes, but common law is enough to define this internet scam as representation of falsehood with the intent to profit. Whether or not the auctions use shill bidders, or fail to honor unprofitable outcomes, as have been accused by disgruntled victims, the websites are misrepresentations. The former are obvious illegal practices. The latter is fraud. Or are we so cynical that we accept this kind of scam as merely “predatory capitalism?”

Wikipedia defines fraud in layman’s terms:

1. a representation of an existing fact;
2. its materiality;
3. its falsity;
4. the speaker’s knowledge of its falsity;
5. the speaker’s intent that it shall be acted upon by the plaintiff;
6. plaintiff’s ignorance of its falsity;
7. plaintiff’s reliance on the truth of the representation;
8. plaintiff’s right to rely upon it; and
9. consequent damages suffered by plaintiff.

In particular this scam begin with what’s known as the advance-fee fraud except this buy-in is ongoing and lasts until a mark is tapped-out.

Quibids and ilk call themselves “penny auctions” as if there is such a thing. Onlooker suspicions are assuaged by the inherent implication that if a business scam has a name, it must not be a crime.

Are penny auctions a veritable thing, besides the self-defined new crook on the block? Well, yes, but. The “penny auctions” of yesteryear had nothing to do with these pay-to-play auction schemes where bidders buy vouchers for the privilege to ante into a bidding pool. Penny auction refers to the Depression era strategy of sabotaging farm liquidation auctions by forcing the auctioneer to accept bids in increments of one penny. Aided by cooperative neighbors, bankruptcy victims were able to grind their creditor’s actions to a halt, for a time, because collusion was itself unlawful. Obviously this is a far cry from the neo penny auctions which require customers to buy “bids” with which to place dibs on a desired item, increasing its auction price by a penny each time and prolonging the bidding for another fixed period.

On Quibids, price and time increments can vary between auction items to confuse watchers trying to do the math. As an average, a bidder might pay 60 cents each time he wants to put his name on the desired item, raise its price a penny, and extend the auction expiration by another ten seconds. The last person to cease paying money to keep the auction up in the air gets the item for the final price. But the final cost includes of course what he paid to play.

Imagine musical chairs except you pay 60 cents for every successive measure, an unlimited number of party-goers circling a solitary chair. So long as somebody pays the piper, everyone gets to stay in. Except they’re not “in” are they? Only the last person who put money in gets to take the chair.

The music stops when the next to last person refuses to ante up.

On the internet, the victory or loss is experienced alone. Your embarrassment is “shared,” but anonymous. Now imagine a convention hall, full of sidelined bidders who dropped out as they realized the insanity of paying into a potentially endless kitty whose real value to them represented a diminishing return. Imagine dozens or scores of former adversaries looking on as the last man standing gets the chair, everyone else leaves empty handed and empty pocketed, while the house rakes in the pot worth many times the value of the chair. Think that scam would fly in a non-virtual world?

In the real world, marks who’ve fallen victim quickly learn that there’s a racket of onlookers quick to step in and silence any complaints. Try to warn off the next bystander who looks like they’re about to fall prey and you’ll see exactly what criminal muscle lurks behind the charm of the charlatan.

Oh, it’s a silly, silly hook this penny bidding scheme, and online it’s hard to tell how many dupes are actually taken in. We have only the Quibids customer relations departments to assure us that none of the other bidders are phantom bots or paid shills. It would be so easy of course for the javascript to be otherwise. The same voices explain that Quibids can afford to offer its auction items at these unbelievable discounts due to the income derived from its inventive bid-selling process.

Simple math suggests they could award a winning lot several times over and still keep a tidy profit. Yet their FAQ explain that 50% of their transaction result in an operational loss. If indeed this is true, that percentage is factoring the auctions they offer for packages of “bids,” where customers place bids to win more bids. One can only hope that buyers are given the upper hand on these transactions. Otherwise the 50% percentage tabulates the auctions by number and not their dollar value. Quibids’ losses are phantom, worthless bids sold at a fraction of their worthless value, versus their profitable ones, where $200 consumer goods net $1000 or more.

That kind of scheme resembles a lottery where more tickets are purchased for a fixed-sum reward. Quibids deflects categorization as a gambling scheme by explaining that auction losers have the option to apply their losses toward the retail price of the item, if they elect to purchase it as consolation. How many players take them up on such an offer, only they know.

Upon losing the Christmas raffle, would having the option to buy the turkey at above retail price be reassurance enough for you to prove the affair wasn’t in reality an unregulated raffle?

First of all, the sites use very clever software, and a money-changing scheme to defy the average grasp of math. But the trap mechanism well oiled, the more duplicitous energy goes into the promotion. Quibids is using social networking and email to expand the reach of the news outlets they ensnare. Our attention was drawn when this week the Colorado Springs Gazette directed its readers to this exciting new discount website.

A scan of the various “penny auction” websites would seem to indicate they are using identical software. That opens a whole other can of worms, doesn’t it? This could be an installation one can license, just as one would WordPress or Zen Cart. In fact there is a PHP setup marketed by Scriptmatix who charge $1,250 plus for an installation. First they nail people greedy enough to want Nikon D90s for next to nothing, then they turn their dupes into willing con artists themselves.

Here’s a screen grab from the Scriptmatix brochure, where they explain what kind of return eager entrepreneurs can expect on their $1,249 investment.

It might look like a safer legal recourse to franchise the “penny auction” scheme and let client operators do the defrauding and ultimately face the authorities. Maybe selling the blueprint to a confidence trick does not constitute a crime. Unless of course you are pretending to peddle a fully legitimate business model that you know is actually against the law. We’re back to fraud.

Of course the key to convincing users that your site is not a ripoff lies with successful PR. It’s very likely that many of these multiple installations are Quibids figuring out how to outrun Google searches of Quibids+Scam. Aptly-named rival Swipe-bids for example looks more to me like a designated heavy, meant to make Quibids appear to be honest by comparison. Who knows how many websites this operation has used to elude tar and feathers.

Here’s the SWIPE-BIDS website whose main page stream a promotional video, actually for a competitor, as if it was its own. On watchdog sites, Quibids cries foul, but it’s hard to tell what argument is authentic.

Does “swipe” seem a term well chosen to inspire trust? It’s as obvious as a black hat in a wrestling match. Of course “Quibids” is the most poetic choice for truth-in-tradenames. “Qui” is French for who and doesn’t that account for the mysterious identity of who is bidding against you?

And the watchdog websites sprouting up to monitor the penny auction eruption are themselves shadow operations. Any “penny auction watch” that prefaces their posts with the concession that some auction sites are good and some are bad, is obviously shilling for someone. They may be a village idiot with no concept of the scamming afoot, or they’re innocent at all. But this is speculation.

By all appearances, these sites are reaping Keystone times six, and simply drop-shipping the goods.

A legal indictment of Quibids can precede a formal investigation based simply on their of self-promotion. Theirs may look like expertly crafted PR, and these days of diminished expectations about the objectivity of our media, it may suit many to congratulate the charlatans on their savvy, but Quibids’ self-promotion documents their intent to defraud.

Layers of press releases and paid editorial columns appear to shore up a single real news item which the Quibids outfit eked from an Oklahoma news team earlier this year.

At right are stills from KWES NEWS9 reporting about Quibids, as far as they were told, a home-grown auction website.

Quibids hasn’t chintzed on PR, but they do appear to lack for real faces to front their operation…

According to their own site, Quibids was the brainchild of Oklahoma City entrepreneur Matt Beckham, joined by Shaun Tilford, Jeff Geurts, Josh Duty, Bart Consedine, and spokeswoman Jill Farrand. The 27-year-old Beckham’s identity is confirmed by the Quibids.com domain registration.

Have a look at who NEWS9 is interviewing for the so-called customer testimonial. The kyron reads “Zach Stevens” who purports to be thrilled with the deal he’s gotten on Quibids.

Do we know whether this interview footage was pre-packaged for the NEWS9 team? The distinction is unimportant, but we might note that the cuffed sleeve does not belong to the female reporter.

This TV segment streams on the upper right corner of the auction sites, serving as a de facto suggestion of the site’s legitimacy. The footage streams in a very small window.

But enlarged in these captures, a closeup of “Zach’s” laptop and username reveals this “customer” is none other than Quibids’ owner Matt Beckham, smiling like he has no idea the perp walk that awaits him.

Case of curious cellphone, bandana and Greyson Chance’s perfect microphone

Oprah Winfrey records own show on cellphonePT Barnum would have been a terror on Youtube –I’m certainly sobered to see what fools America every time. Is sudden-tween-throb Greyson Chance’s talent for real? Too soon to say. But the 6th grade sound man at Cheyenne School of Edmond, Oklahoma has unlikely genius. * What’s hard to believe about doctors bandaging Bret Michaels’ massive brain hemorrhage with his signature headband? * And my favorite, Oprah Winfrey recording a show performance with her cellphone to attest to her surprise at “the coolest thing ever!”

Oprah
It happened ages ago (in blog-years) but television talk shows bind these three example together. Do you remember Oprah’s anniversary whatsit, taped like a big tailgate party in downtown Chicago? Oprah stood there on the outdoor stage beside the Black Eyed Peas and held her cellphone up, aimed at the audience, as if the dozen or more cameras on cranes, wires and rails weren’t going to be enough. And the crowd erupted in spontaneous dance, although it was choreographed, and a concept swiped from a European video. But Oprah’s deal went viral because, OMG would you believe it, and there was Oprah, OMG’ding herself, careful to record it to show her friends in case they wouldn’t have believe her, or watched the show.

Now how many of you believe the media diva even has her own phone, much less carries it or knows how it works?

Watching the video again, an establishing shot before the music begins shows someone in the audience (who later would turn out to be a dancer) aiming their cellphone like a camera, in case the audience at home needed a reminder that’s what normal people do today, and that’s what Oprah would be doing, to confound your awe with hers. Compound.

After the video had done its viral thing, Oprah had all the crowdsourced uploads removed, being unlicensed and all. I think it was really because her feigned incredulity wasn’t going to pass muster. Better a memory gone viral than video evidence of Oprah taking her viewers for fools.

Bret
Bret Michael’s blue bandana as he reclined on the hospital bed on the cover of People Magazine was just too silly for words. No doubt America wouldn’t know him without his bandana wig, so it was definitely an art director’s call.

Alright, it wasn’t a video, but the internet rumors went viral. Fans started to twitter about an oddly fortuitous recovery which put him back on the Celebrity Apprentice season finale, so now poor Bret is back in the hospital to prove it wasn’t a PR stunt, this time for a hole-in-the-heart, probably something to do with a tatoo, in any case nothing to interfere with his headband.

Chance Michael Grayson plays Cheyenne School 6th Grade show at Edmond, OklahomaGreyson
Brand-spanking-fresh-phenom Greyson Michael Chance wowed everyone on Youtube, and Ellen’s people, reportedly before his views had even hit five-digits –are talent scouts that grassroots? He encored with the same brilliant performance on her show, thus certifying his authentic talent, based on the law that lightening can’t be fixed twice. Although the equalizer setting, for lack of a technical term, was remarkably identical, wasn’t it? Same tweaked toning, same very attentive fader, especially if it wasn’t the same microphone.

Seriously, SNL, of the notoriously bad music soundboard, should hire whoever miked that primary school performance.

On the subject of expensive equipment, how often do you see a shiny grand piano at a public school choir concert?

Although the camera work was shaky, the cameraman kept an interesting crop on Greyson, framed by the waiting choir girls. It reminded me of the soldier backdrop they used to give President Bush. Authenticity came of the development that none of the girls were compelled to look too interested, I’m guessing that was sheer fortuity. The result was that Young Mr. Chance was strangely placed off-center, the better to feature the girls. An actual parent would have framed their son to show his feet at the pedals, I guarantee you.

The close crop remained even as Greyson finished and the school emcee offered her remarks, her head off camera. The lens never zoomed, fitting for a digital still camera which cannot zoom in video mode, or because appearances of homemade authenticity be damned, broadcast editors will not abide zoom.

But Greyson gave the game away when he took his bow, aimed not at the audience, but directly at the camera. You’d figure he already had countless home recordings of his Lady Gaga cover, both practice and dinner guest performances. On this stage the camerawork was let to look improvised, like a parent’s afterthought, while Cherub Gaga sang the performance straight ahead, in the same direction to which the emcee addressed the audience. So to whom was Mr. Chance taking his bow?

Ward Churchill: Some People Push Back

British edition titled Reflections on the Justice of Roosting ChickensHere is Ward Churchill’s notorious 9/11 “Little Eichmanns” essay, published online September 12, 2001, presented here for archival purposes lest critics think they can silence one of our nation’s strongest dissenting voices. Churchill later expanded this piece into a book entitled On the Justice of Roosting Chickens: reflections on the consequences of U.S. imperial arrogance and criminality published by AK Press in 2003.

Some People Push Back: On the Justice of Roosting Chickens
by Ward Churchill

When queried by reporters concerning his views on the assassination of John F. Kennedy in November 1963, Malcolm X famously – and quite charitably, all things considered – replied that it was merely a case of “chickens coming home to roost.”

On the morning of September 11, 2001, a few more chickens – along with some half-million dead Iraqi children – came home to roost in a very big way at the twin towers of New York’s World Trade Center. Well, actually, a few of them seem to have nestled in at the Pentagon as well.

The Iraqi youngsters, all of them under 12, died as a predictable – in fact, widely predicted – result of the 1991 US “surgical” bombing of their country’s water purification and sewage facilities, as well as other “infrastructural” targets upon which Iraq’s civilian population depends for its very survival.

If the nature of the bombing were not already bad enough – and it should be noted that this sort of “aerial warfare” constitutes a Class I Crime Against humanity, entailing myriad gross violations of international law, as well as every conceivable standard of “civilized” behavior – the death toll has been steadily ratcheted up by US-imposed sanctions for a full decade now. Enforced all the while by a massive military presence and periodic bombing raids, the embargo has greatly impaired the victims’ ability to import the nutrients, medicines and other materials necessary to saving the lives of even their toddlers.

All told, Iraq has a population of about 18 million. The 500,000 kids lost to date thus represent something on the order of 25 percent of their age group. Indisputably, the rest have suffered – are still suffering – a combination of physical debilitation and psychological trauma severe enough to prevent their ever fully recovering. In effect, an entire generation has been obliterated.

The reason for this holocaust was/is rather simple, and stated quite straightforwardly by President George Bush, the 41st “freedom-loving” father of the freedom-lover currently filling the Oval Office, George the 43rd: “The world must learn that what we say, goes,” intoned George the Elder to the enthusiastic applause of freedom-loving Americans everywhere. How Old George conveyed his message was certainly no mystery to the US public. One need only recall the 24-hour-per-day dissemination of bombardment videos on every available TV channel, and the exceedingly high ratings of these telecasts, to gain a sense of how much they knew.

In trying to affix a meaning to such things, we would do well to remember the wave of elation that swept America at reports of what was happening along the so-called Highway of Death: perhaps 100,000 “towel-heads” and “camel jockeys” – or was it “sand niggers” that week? – in full retreat, routed and effectively defenseless, many of them conscripted civilian laborers, slaughtered in a single day by jets firing the most hyper-lethal types of ordnance. It was a performance worthy of the nazis during the early months of their drive into Russia. And it should be borne in mind that Good Germans gleefully cheered that butchery, too. Indeed, support for Hitler suffered no serious erosion among Germany’s “innocent civilians” until the defeat at Stalingrad in 1943.

There may be a real utility to reflecting further, this time upon the fact that it was pious Americans who led the way in assigning the onus of collective guilt to the German people as a whole, not for things they as individuals had done, but for what they had allowed – nay, empowered – their leaders and their soldiers to do in their name.

If the principle was valid then, it remains so now, as applicable to Good Americans as it was the Good Germans. And the price exacted from the Germans for the faultiness of their moral fiber was truly ghastly. Returning now to the children, and to the effects of the post-Gulf War embargo – continued bull force by Bush the Elder’s successors in the Clinton administration as a gesture of its “resolve” to finalize what George himself had dubbed the “New World Order” of American military/economic domination – it should be noted that not one but two high United Nations officials attempting to coordinate delivery of humanitarian aid to Iraq resigned in succession as protests against US policy.

One of them, former U.N. Assistant Secretary General Denis Halladay, repeatedly denounced what was happening as “a systematic program . . . of deliberate genocide.” His statements appeared in the New York Times and other papers during the fall of 1998, so it can hardly be contended that the American public was “unaware” of them. Shortly thereafter, Secretary of State Madeline Albright openly confirmed Halladay’s assessment. Asked during the widely-viewed TV program Meet the Press to respond to his “allegations,” she calmly announced that she’d decided it was “worth the price” to see that U.S. objectives were achieved.

The Politics of a Perpetrator Population
As a whole, the American public greeted these revelations with yawns.. There were, after all, far more pressing things than the unrelenting misery/death of a few hundred thousand Iraqi tikes to be concerned with. Getting “Jeremy” and “Ellington” to their weekly soccer game, for instance, or seeing to it that little “Tiffany” and “Ashley” had just the right roll-neck sweaters to go with their new cords. And, to be sure, there was the yuppie holy war against ashtrays – for “our kids,” no less – as an all-absorbing point of political focus.

In fairness, it must be admitted that there was an infinitesimally small segment of the body politic who expressed opposition to what was/is being done to the children of Iraq. It must also be conceded, however, that those involved by-and-large contented themselves with signing petitions and conducting candle-lit prayer vigils, bearing “moral witness” as vast legions of brown-skinned five-year-olds sat shivering in the dark, wide-eyed in horror, whimpering as they expired in the most agonizing ways imaginable.

Be it said as well, and this is really the crux of it, that the “resistance” expended the bulk of its time and energy harnessed to the systemically-useful task of trying to ensure, as “a principle of moral virtue” that nobody went further than waving signs as a means of “challenging” the patently exterminatory pursuit of Pax Americana. So pure of principle were these “dissidents,” in fact, that they began literally to supplant the police in protecting corporations profiting by the carnage against suffering such retaliatory “violence” as having their windows broken by persons less “enlightened” – or perhaps more outraged – than the self-anointed “peacekeepers.”

Property before people, it seems – or at least the equation of property to people – is a value by no means restricted to America’s boardrooms. And the sanctimony with which such putrid sentiments are enunciated turns out to be nauseatingly similar, whether mouthed by the CEO of Standard Oil or any of the swarm of comfort zone “pacifists” queuing up to condemn the black block after it ever so slightly disturbed the functioning of business-as-usual in Seattle.

Small wonder, all-in-all, that people elsewhere in the world – the Mideast, for instance – began to wonder where, exactly, aside from the streets of the US itself, one was to find the peace America’s purportedly oppositional peacekeepers claimed they were keeping.

The answer, surely, was plain enough to anyone unblinded by the kind of delusions engendered by sheer vanity and self-absorption. So, too, were the implications in terms of anything changing, out there, in America’s free-fire zones.

Tellingly, it was at precisely this point – with the genocide in Iraq officially admitted and a public response demonstrating beyond a shadow of a doubt that there were virtually no Americans, including most of those professing otherwise, doing anything tangible to stop it – that the combat teams which eventually commandeered the aircraft used on September 11 began to infiltrate the United States.

Meet the “Terrorists”
Of the men who came, there are a few things demanding to be said in the face of the unending torrent of disinformational drivel unleashed by George Junior and the corporate “news” media immediately following their successful operation on September 11.

They did not, for starters, “initiate” a war with the US, much less commit “the first acts of war of the new millennium.”

A good case could be made that the war in which they were combatants has been waged more-or-less continuously by the “Christian West” – now proudly emblematized by the United States – against the “Islamic East” since the time of the First Crusade, about 1,000 years ago. More recently, one could argue that the war began when Lyndon Johnson first lent significant support to Israel’s dispossession/displacement of Palestinians during the 1960s, or when George the Elder ordered “Desert Shield” in 1990, or at any of several points in between. Any way you slice it, however, if what the combat teams did to the WTC and the Pentagon can be understood as acts of war – and they can – then the same is true of every US “overflight’ of Iraqi territory since day one. The first acts of war during the current millennium thus occurred on its very first day, and were carried out by U.S. aviators acting under orders from their then-commander-in-chief, Bill Clinton. The most that can honestly be said of those involved on September 11 is that they finally responded in kind to some of what this country has dispensed to their people as a matter of course.

That they waited so long to do so is, notwithstanding the 1993 action at the WTC, more than anything a testament to their patience and restraint.

They did not license themselves to “target innocent civilians.”

There is simply no argument to be made that the Pentagon personnel killed on September 11 fill that bill. The building and those inside comprised military targets, pure and simple. As to those in the World Trade Center . . .

Well, really. Let’s get a grip here, shall we? True enough, they were civilians of a sort. But innocent? Gimme a break. They formed a technocratic corps at the very heart of America’s global financial empire – the “mighty engine of profit” to which the military dimension of U.S. policy has always been enslaved – and they did so both willingly and knowingly. Recourse to “ignorance” – a derivative, after all, of the word “ignore” – counts as less than an excuse among this relatively well-educated elite. To the extent that any of them were unaware of the costs and consequences to others of what they were involved in – and in many cases excelling at – it was because of their absolute refusal to see. More likely, it was because they were too busy braying, incessantly and self-importantly, into their cell phones, arranging power lunches and stock transactions, each of which translated, conveniently out of sight, mind and smelling distance, into the starved and rotting flesh of infants. If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I’d really be interested in hearing about it.

The men who flew the missions against the WTC and Pentagon were not “cowards.” That distinction properly belongs to the “firm-jawed lads” who delighted in flying stealth aircraft through the undefended airspace of Baghdad, dropping payload after payload of bombs on anyone unfortunate enough to be below – including tens of thousands of genuinely innocent civilians – while themselves incurring all the risk one might expect during a visit to the local video arcade. Still more, the word describes all those “fighting men and women” who sat at computer consoles aboard ships in the Persian Gulf, enjoying air-conditioned comfort while launching cruise missiles into neighborhoods filled with random human beings. Whatever else can be said of them, the men who struck on September 11 manifested the courage of their convictions, willingly expending their own lives in attaining their objectives.

Nor were they “fanatics” devoted to “Islamic fundamentalism.”

One might rightly describe their actions as “desperate.” Feelings of desperation, however, are a perfectly reasonable – one is tempted to say “normal” – emotional response among persons confronted by the mass murder of their children, particularly when it appears that nobody else really gives a damn (ask a Jewish survivor about this one, or, even more poignantly, for all the attention paid them, a Gypsy).

That desperate circumstances generate desperate responses is no mysterious or irrational principle, of the sort motivating fanatics. Less is it one peculiar to Islam. Indeed, even the FBI’s investigative reports on the combat teams’ activities during the months leading up to September 11 make it clear that the members were not fundamentalist Muslims. Rather, it’s pretty obvious at this point that they were secular activists – soldiers, really – who, while undoubtedly enjoying cordial relations with the clerics of their countries, were motivated far more by the grisly realities of the U.S. war against them than by a set of religious beliefs.

And still less were they/their acts “insane.”

Insanity is a condition readily associable with the very American idea that one – or one’s country – holds what amounts to a “divine right” to commit genocide, and thus to forever do so with impunity. The term might also be reasonably applied to anyone suffering genocide without attempting in some material way to bring the process to a halt. Sanity itself, in this frame of reference, might be defined by a willingness to try and destroy the perpetrators and/or the sources of their ability to commit their crimes. (Shall we now discuss the US “strategic bombing campaign” against Germany during World War II, and the mental health of those involved in it?)

Which takes us to official characterizations of the combat teams as an embodiment of “evil.”

Evil – for those inclined to embrace the banality of such a concept – was perfectly incarnated in that malignant toad known as Madeline Albright, squatting in her studio chair like Jaba the Hutt, blandly spewing the news that she’d imposed a collective death sentence upon the unoffending youth of Iraq. Evil was to be heard in that great American hero “Stormin’ Norman” Schwartzkopf’s utterly dehumanizing dismissal of their systematic torture and annihilation as mere “collateral damage.” Evil, moreover, is a term appropriate to describing the mentality of a public that finds such perspectives and the policies attending them acceptable, or even momentarily tolerable.

Had it not been for these evils, the counterattacks of September 11 would never have occurred. And unless “the world is rid of such evil,” to lift a line from George Junior, September 11 may well end up looking like a lark.

There is no reason, after all, to believe that the teams deployed in the assaults on the WTC and the Pentagon were the only such, that the others are composed of “Arabic-looking individuals” – America’s indiscriminately lethal arrogance and psychotic sense of self-entitlement have long since given the great majority of the world’s peoples ample cause to be at war with it – or that they are in any way dependent upon the seizure of civilian airliners to complete their missions.

To the contrary, there is every reason to expect that there are many other teams in place, tasked to employ altogether different tactics in executing operational plans at least as well-crafted as those evident on September 11, and very well equipped for their jobs. This is to say that, since the assaults on the WTC and Pentagon were act of war – not “terrorist incidents” – they must be understood as components in a much broader strategy designed to achieve specific results. From this, it can only be adduced that there are plenty of other components ready to go, and that they will be used, should this become necessary in the eyes of the strategists. It also seems a safe bet that each component is calibrated to inflict damage at a level incrementally higher than the one before (during the 1960s, the Johnson administration employed a similar policy against Vietnam, referred to as “escalation”).

Since implementation of the overall plan began with the WTC/Pentagon assaults, it takes no rocket scientist to decipher what is likely to happen next, should the U.S. attempt a response of the inexcusable variety to which it has long entitled itself.

About Those Boys (and Girls) in the Bureau
There’s another matter begging for comment at this point. The idea that the FBI’s “counterterrorism task forces” can do a thing to prevent what will happen is yet another dimension of America’s delusional pathology.. The fact is that, for all its publicly-financed “image-building” exercises, the Bureau has never shown the least aptitude for anything of the sort.

Oh, yeah, FBI counterintelligence personnel have proven quite adept at framing anarchists, communists and Black Panthers, sometimes murdering them in their beds or the electric chair. The Bureau’s SWAT units have displayed their ability to combat child abuse in Waco by burning babies alive, and its vaunted Crime Lab has been shown to pad its “crime-fighting’ statistics by fabricating evidence against many an alleged car thief. But actual “heavy-duty bad guys” of the sort at issue now? This isn’t a Bruce Willis/Chuck Norris/Sly Stallone movie, after all.. And J. Edgar Hoover doesn’t get to approve either the script or the casting.

The number of spies, saboteurs and bona fide terrorists apprehended, or even detected by the FBI in the course of its long and slimy history could be counted on one’s fingers and toes. On occasion, its agents have even turned out to be the spies, and, in many instances, the terrorists as well.

To be fair once again, if the Bureau functions as at best a carnival of clowns where its “domestic security responsibilities” are concerned, this is because – regardless of official hype – it has none. It is now, as it’s always been, the national political police force, an instrument created and perfected to ensure that all Americans, not just the consenting mass, are “free” to do exactly as they’re told.

The FBI and “cooperating agencies” can be thus relied upon to set about “protecting freedom” by destroying whatever rights and liberties were left to U.S. citizens before September 11 (in fact, they’ve already received authorization to begin). Sheeplike, the great majority of Americans can also be counted upon to bleat their approval, at least in the short run, believing as they always do that the nasty implications of what they’re doing will pertain only to others.

Oh Yeah, and “The Company,” Too

A possibly even sicker joke is the notion, suddenly in vogue, that the CIA will be able to pinpoint “terrorist threats,” “rooting out their infrastructure” where it exists and/or “terminating” it before it can materialize, if only it’s allowed to beef up its “human intelligence gathering capacity” in an unrestrained manner (including full-bore operations inside the US, of course).

Yeah. Right.

Since America has a collective attention-span of about 15 minutes, a little refresher seems in order: “The Company” had something like a quarter-million people serving as “intelligence assets” by feeding it information in Vietnam in 1968, and it couldn’t even predict the Tet Offensive. God knows how many spies it was fielding against the USSR at the height of Ronald Reagan’s version of the Cold War, and it was still caught flatfooted by the collapse of the Soviet Union. As to destroying “terrorist infrastructures,” one would do well to remember Operation Phoenix, another product of its open season in Vietnam. In that one, the CIA enlisted elite US units like the Navy Seals and Army Special Forces, as well as those of friendly countries – the south Vietnamese Rangers, for example, and Australian SAS – to run around “neutralizing” folks targeted by The Company’s legion of snitches as “guerrillas” (as those now known as “terrorists” were then called).

Sound familiar?

Upwards of 40,000 people – mostly bystanders, as it turns out – were murdered by Phoenix hit teams before the guerrillas, stronger than ever, ran the US and its collaborators out of their country altogether. And these are the guys who are gonna save the day, if unleashed to do their thing in North America?

The net impact of all this “counterterrorism” activity upon the combat teams’ ability to do what they came to do, of course, will be nil.

Instead, it’s likely to make it easier for them to operate (it’s worked that way in places like Northern Ireland). And, since denying Americans the luxury of reaping the benefits of genocide in comfort was self-evidently a key objective of the WTC/Pentagon assaults, it can be stated unequivocally that a more overt display of the police state mentality already pervading this country simply confirms the magnitude of their victory.

On Matters of Proportion and Intent
As things stand, including the 1993 detonation at the WTC, “Arab terrorists” have responded to the massive and sustained American terror bombing of Iraq with a total of four assaults by explosives inside the US. That’s about 1% of the 50,000 bombs the Pentagon announced were rained on Baghdad alone during the Gulf War (add in Oklahoma City and you’ll get something nearer an actual 1%).

They’ve managed in the process to kill about 5,000 Americans, or roughly 1% of the dead Iraqi children (the percentage is far smaller if you factor in the killing of adult Iraqi civilians, not to mention troops butchered as/after they’d surrendered and/or after the “war-ending” ceasefire had been announced).

In terms undoubtedly more meaningful to the property/profit-minded American mainstream, they’ve knocked down a half-dozen buildings – albeit some very well-chosen ones – as opposed to the “strategic devastation” visited upon the whole of Iraq, and punched a $100 billion hole in the earnings outlook of major corporate shareholders, as opposed to the U.S. obliteration of Iraq’s entire economy.

With that, they’ve given Americans a tiny dose of their own medicine.. This might be seen as merely a matter of “vengeance” or “retribution,” and, unquestionably, America has earned it, even if it were to add up only to something so ultimately petty.

The problem is that vengeance is usually framed in terms of “getting even,” a concept which is plainly inapplicable in this instance. As the above data indicate, it would require another 49,996 detonations killing 495,000 more Americans, for the “terrorists” to “break even” for the bombing of Baghdad/extermination of Iraqi children alone. And that’s to achieve “real number” parity. To attain an actual proportional parity of damage – the US is about 15 times as large as Iraq in terms of population, even more in terms of territory – they would, at a minimum, have to blow up about 300,000 more buildings and kill something on the order of 7.5 million people.

Were this the intent of those who’ve entered the US to wage war against it, it would remain no less true that America and Americans were only receiving the bill for what they’d already done. Payback, as they say, can be a real motherfucker (ask the Germans). There is, however, no reason to believe that retributive parity is necessarily an item on the agenda of those who planned the WTC/Pentagon operation. If it were, given the virtual certainty that they possessed the capacity to have inflicted far more damage than they did, there would be a lot more American bodies lying about right now.

Hence, it can be concluded that ravings carried by the “news” media since September 11 have contained at least one grain of truth: The peoples of the Mideast “aren’t like” Americans, not least because they don’t “value life’ in the same way. By this, it should be understood that Middle-Easterners, unlike Americans, have no history of exterminating others purely for profit, or on the basis of racial animus. Thus, we can appreciate the fact that they value life – all lives, not just their own – far more highly than do their U.S. counterparts.

The Makings of a Humanitarian Strategy
In sum one can discern a certain optimism – it might even be call humanitarianism – imbedded in the thinking of those who presided over the very limited actions conducted on September 11.

Their logic seems to have devolved upon the notion that the American people have condoned what has been/is being done in their name – indeed, are to a significant extent actively complicit in it – mainly because they have no idea what it feels like to be on the receiving end.

Now they do.

That was the “medicinal” aspect of the attacks.

To all appearances, the idea is now to give the tonic a little time to take effect, jolting Americans into the realization that the sort of pain they’re now experiencing first-hand is no different from – or the least bit more excruciating than – that which they’ve been so cavalier in causing others, and thus to respond appropriately.

More bluntly, the hope was – and maybe still is – that Americans, stripped of their presumed immunity from incurring any real consequences for their behavior, would comprehend and act upon a formulation as uncomplicated as “stop killing our kids, if you want your own to be safe.”

Either way, it’s a kind of “reality therapy” approach, designed to afford the American people a chance to finally “do the right thing” on their own, without further coaxing.

Were the opportunity acted upon in some reasonably good faith fashion – a sufficiently large number of Americans rising up and doing whatever is necessary to force an immediate lifting of the sanctions on Iraq, for instance, or maybe hanging a few of America’s abundant supply of major war criminals (Henry Kissinger comes quickly to mind, as do Madeline Albright, Colin Powell, Bill Clinton and George the Elder) – there is every reason to expect that military operations against the US on its domestic front would be immediately suspended.

Whether they would remain so would of course be contingent upon follow-up. By that, it may be assumed that American acceptance of onsite inspections by international observers to verify destruction of its weapons of mass destruction (as well as dismantlement of all facilities in which more might be manufactured), Nuremberg-style trials in which a few thousand US military/corporate personnel could be properly adjudicated and punished for their Crimes Against humanity, and payment of reparations to the array of nations/peoples whose assets the US has plundered over the years, would suffice.

Since they’ve shown no sign of being unreasonable or vindictive, it may even be anticipated that, after a suitable period of adjustment and reeducation (mainly to allow them to acquire the skills necessary to living within their means), those restored to control over their own destinies by the gallant sacrifices of the combat teams the WTC and Pentagon will eventually (re)admit Americans to the global circle of civilized societies. Stranger things have happened.

In the Alternative
Unfortunately, noble as they may have been, such humanitarian aspirations were always doomed to remain unfulfilled. For it to have been otherwise, a far higher quality of character and intellect would have to prevail among average Americans than is actually the case. Perhaps the strategists underestimated the impact a couple of generations-worth of media indoctrination can produce in terms of demolishing the capacity of human beings to form coherent thoughts. Maybe they forgot to factor in the mind-numbing effects of the indoctrination passed off as education in the US. Then, again, it’s entirely possible they were aware that a decisive majority of American adults have been reduced by this point to a level much closer to the kind of immediate self-gratification entailed in Pavlovian stimulus/response patterns than anything accessible by appeals to higher logic, and still felt morally obliged to offer the dolts an option to quit while they were ahead.

What the hell? It was worth a try.

But it’s becoming increasingly apparent that the dosage of medicine administered was entirely insufficient to accomplish its purpose.

Although there are undoubtedly exceptions, Americans for the most part still don’t get it.

Already, they’ve desecrated the temporary tomb of those killed in the WTC, staging a veritable pep rally atop the mangled remains of those they profess to honor, treating the whole affair as if it were some bizarre breed of contact sport. And, of course, there are the inevitable pom-poms shaped like American flags, the school colors worn as little red-white-and-blue ribbons affixed to labels, sportscasters in the form of “counterterrorism experts” drooling mindless color commentary during the pregame warm-up.

Refusing the realization that the world has suddenly shifted its axis, and that they are therefore no longer “in charge,” they have by-and-large reverted instantly to type, working themselves into their usual bloodlust on the now obsolete premise that the bloodletting will “naturally” occur elsewhere and to someone else.

“Patriotism,” a wise man once observed, “is the last refuge of scoundrels.”

And the braided, he might of added.

Braided Scoundrel-in-Chief, George Junior, lacking even the sense to be careful what he wished for, has teamed up with a gaggle of fundamentalist Christian clerics like Billy Graham to proclaim a “New Crusade” called “Infinite Justice” aimed at “ridding the world of evil.”

One could easily make light of such rhetoric, remarking upon how unseemly it is for a son to threaten his father in such fashion – or a president to so publicly contemplate the murder/suicide of himself and his cabinet – but the matter is deadly serious.

They are preparing once again to sally forth for the purpose of roasting brown-skinned children by the scores of thousands. Already, the B-1 bombers and the aircraft carriers and the missile frigates are en route, the airborne divisions are gearing up to go.

To where? Afghanistan?

The Sudan?

Iraq, again (or still)?

How about Grenada (that was fun)?

Any of them or all. It doesn’t matter.

The desire to pummel the helpless runs rabid as ever.

Only, this time it’s different.

The time the helpless aren’t, or at least are not so helpless as they were.

This time, somewhere, perhaps in an Afghani mountain cave, possibly in a Brooklyn basement, maybe another local altogether – but somewhere, all the same – there’s a grim-visaged (wo)man wearing a Clint Eastwood smile.

“Go ahead, punks,” s/he’s saying, “Make my day.”

And when they do, when they launch these airstrikes abroad – or may a little later; it will be at a time conforming to the “terrorists”‘ own schedule, and at a place of their choosing – the next more intensive dose of medicine administered here “at home.”

Of what will it consist this time? Anthrax? Mustard gas? Sarin? A tactical nuclear device?

That, too, is their choice to make.

Looking back, it will seem to future generations inexplicable why Americans were unable on their own, and in time to save themselves, to accept a rule of nature so basic that it could be mouthed by an actor, Lawrence Fishburn, in a movie, The Cotton Club.

“You’ve got to learn, ” the line went, “that when you push people around, some people push back.”

As they should.

As they must.

And as they undoubtedly will.

There is justice in such symmetry.

ADDENDUM
The preceding was a “first take” reading, more a stream-of-consciousness interpretive reaction to the September 11 counterattack than a finished piece on the topic. Hence, I’ll readily admit that I’ve been far less than thorough, and quite likely wrong about a number of things.

For instance, it may not have been (only) the ghosts of Iraqi children who made their appearance that day. It could as easily have been some or all of their butchered Palestinian cousins.

Or maybe it was some or all of the at least 3.2 million Indochinese who perished as a result of America’s sustained and genocidal assault on Southeast Asia (1959-1975), not to mention the millions more who’ve died because of the sanctions imposed thereafter.

Perhaps there were a few of the Korean civilians massacred by US troops at places like No Gun Ri during the early ‘50s, or the hundreds of thousands of Japanese civilians ruthlessly incinerated in the ghastly fire raids of World War II (only at Dresden did America bomb Germany in a similar manner).

And, of course, it could have been those vaporized in the militarily pointless nuclear bombings of Hiroshima and Nagasaki.

There are others, as well, a vast and silent queue of faceless victims, stretching from the million-odd Filipinos slaughtered during America’s “Indian War” in their islands at the beginning of the twentieth century, through the real Indians, America’s own, massacred wholesale at places like Horseshoe Bend and the Bad Axe, Sand Creek and Wounded Knee, the Washita, Bear River, and the Marias.

Was it those who expired along the Cherokee Trial of Tears of the Long Walk of the Navajo?

Those murdered by smallpox at Fort Clark in 1836?

Starved to death in the concentration camp at Bosque Redondo during the 1860s?

Maybe those native people claimed for scalp bounty in all 48 of the continental US states? Or the Raritans whose severed heads were kicked for sport along the streets of what was then called New Amsterdam, at the very site where the WTC once stood?

One hears, too, the whispers of those lost on the Middle Passage, and of those whose very flesh was sold in the slave market outside the human kennel from whence Wall Street takes its name. And of coolie laborers, imported by the gross-dozen to lay the tracks of empire across scorching desert sands, none of them allotted “a Chinaman’s chance” of surviving.

The list is too long, too awful to go on.

No matter what its eventual fate, America will have gotten off very, very cheap.

The full measure of its guilt can never be fully balanced or atoned for.

In response to criticism, Churchill issued this press release January 31, 2005:

PRESS RELEASE

In the last few days there has been widespread and grossly inaccurate media coverage concerning my analysis of the September 11, 2001 attacks on the World Trade Center and the Pentagon, coverage that has resulted in defamation of my character and threats against my life. What I actually said has been lost, indeed turned into the opposite of itself, and I hope the following facts will be reported at least to the same extent that the fabrications have been.

* The piece circulating on the internet was developed into a book, On the Justice of Roosting Chickens. Most of the book is a detailed chronology of U.S. military interventions since 1776 and U.S. violations of international law since World War II. My point is that we cannot allow the U.S. government, acting in our name, to engage in massive violations of international law and fundamental human rights and not expect to reap the consequences.

* I am not a “defender”of the September 11 attacks, but simply pointing out that if U.S. foreign policy results in massive death and destruction abroad, we cannot feign innocence when some of that destruction is returned. I have never said that people “should” engage in armed attacks on the United States, but that such attacks are a natural and unavoidable consequence of unlawful U.S. policy. As Martin Luther King, quoting Robert F. Kennedy, said, “Those who make peaceful change impossible make violent change inevitable.”

* This is not to say that I advocate violence; as a U.S. soldier in Vietnam I witnessed and participated in more violence than I ever wish to see. What I am saying is that if we want an end to violence, especially that perpetrated against civilians, we must take the responsibility for halting the slaughter perpetrated by the United States around the world. My feelings are reflected in Dr. King’s April 1967 Riverside speech, where, when asked about the wave of urban rebellions in U.S. cities, he said, “I could never again raise my voice against the violence of the oppressed . . . without having first spoken clearly to the greatest purveyor of violence in the world today — my own government.”

* In 1996 Madeleine Albright, then Ambassador to the UN and soon to be U.S. Secretary of State, did not dispute that 500,000 Iraqi children had died as a result of economic sanctions, but stated on national television that “we” had decided it was “worth the cost.” I mourn the victims of the September 11 attacks, just as I mourn the deaths of those Iraqi children, the more than 3 million people killed in the war in Indochina, those who died in the U.S. invasions of Grenada, Panama and elsewhere in Central America, the victims of the transatlantic slave trade, and the indigenous peoples still subjected to genocidal policies. If we respond with callous disregard to the deaths of others, we can only expect equal callousness to American deaths.

* Finally, I have never characterized all the September 11 victims as “Nazis.” What I said was that the “technocrats of empire” working in the World Trade Center were the equivalent of “little Eichmanns.” Adolf Eichmann was not charged with direct killing but with ensuring the smooth running of the infrastructure that enabled the Nazi genocide. Similarly, German industrialists were legitimately targeted by the Allies.

* It is not disputed that the Pentagon was a military target, or that a CIA office was situated in the World Trade Center. Following the logic by which U.S. Defense Department spokespersons have consistently sought to justify target selection in places like Baghdad, this placement of an element of the American “command and control infrastructure” in an ostensibly civilian facility converted the Trade Center itself into a “legitimate” target. Again following U.S. military doctrine, as announced in briefing after briefing, those who did not work for the CIA but were nonetheless killed in the attack amounted to no more than “collateral damage.” If the U.S. public is prepared to accept these “standards” when the are routinely applied to other people, they should be not be surprised when the same standards are applied to them.

* It should be emphasized that I applied the “little Eichmanns” characterization only to those described as “technicians.” Thus, it was obviously not directed to the children, janitors, food service workers, firemen and random passers-by killed in the 9-1-1 attack. According to Pentagon logic, were simply part of the collateral damage. Ugly? Yes. Hurtful? Yes. And that’s my point. It’s no less ugly, painful or dehumanizing a description when applied to Iraqis, Palestinians, or anyone else. If we ourselves do not want to be treated in this fashion, we must refuse to allow others to be similarly devalued and dehumanized in our name.

* The bottom line of my argument is that the best and perhaps only way to prevent 9-1-1-style attacks on the U.S. is for American citizens to compel their government to comply with the rule of law. The lesson of Nuremberg is that this is not only our right, but our obligation. To the extent we shirk this responsibility, we, like the “Good Germans” of the 1930s and ’40s, are complicit in its actions and have no legitimate basis for complaint when we suffer the consequences. This, of course, includes me, personally, as well as my family, no less than anyone else.

* These points are clearly stated and documented in my book, On the Justice of Roosting Chickens, which recently won Honorary Mention for the Gustavus Myer Human Rights Award. for best writing on human rights. Some people will, of course, disagree with my analysis, but it presents questions that must be addressed in academic and public debate if we are to find a real solution to the violence that pervades today’s world. The gross distortions of what I actually said can only be viewed as an attempt to distract the public from the real issues at hand and to further stifle freedom of speech and academic debate in this country.

Ward Churchill
Boulder, Colorado
January 31, 2005

Just a thought about Jet Jockeys….

I’ve noticed they’ve been flying low over the west-side pretty much every day for the past couple of years. Used to be that was called “hot-dogging” and they weren’t allowed to do it.

See, the lower your altitude, the less room you have to recover when you fuck-up.

Flying the speed of sound (a fraction of what any of the F-series of jets goes) and at a thousand feet above the ground you would have approximately one second to pull out if something goes wrong.

That’s not a lot of time.

They used to do low-altitude practice way the hell out in the ocean off Dago, or over White Sands in New Mexico or the kids at Sheppard would be flying over the Tank Playground at Fort Sill/Altus AFB Oklahoma.

Over MILITARY property, really cleared out areas to begin with and with Fast Response emergency crews on alert when you were doing it.

Did the Navy put the Civilian fire departments cops and ambulance crews on alert when they were hot-dogging over San Diego?

How about when they’re zooming up 24 toward the Ute Pass?

El Paso County votes country bumpkin

Parts of the country which favored McCain/Palin, by how much. El Paso County in no position to make fun of hicks in Kentucky or Tennessee.
Mississippi, Oklahoma 66%; Wyoming 65%; Idaho, Utah 63%
Alaska 62%; Alabama 60%
Arkansas, Louisiana 59%
EL PASO COUNTY 58%
Kentucky, Tennessee 57%
Nebraska, Kansas 57%
Texas, West Virginia 56%
Arizona, South Carolina 54%
North Dakota, South Dakota 53%; Georgia 52%; Montana 50%

Colorado election by countyThe population centers along the Front Range and along the I-70 corridor appear to have gone to the Democrats. The Front Range interrupted only by El Paso and Douglas counties.

In Colorado news, Mark Udall’s IN and Marilyn Musgrave’s OUT; but crooked SOS Mike Coffman is promoted to Congress.

El Paso County lost its 1A jail money, but kept squeaky idiot Doug Lamborn in Congressional District 5.

SENATE DISTRICTS: 4, 9, 10, 11 & 12
Mark Scheffel, (Tim Schultheis), Bill Cardman, (John Morse -D), Keith King

HOUSE DISTRICTS: 14-21
Kent Lambert, Mark Waller, Larry Liston, Dennis Apuan (D), Michael Merrifield (D), Marsha Looper, Amy Stephens, Brian Gardner

Colorization of the Grapes of Wrath

migrant-motherI think it’s time to colorize The Grapes of Wrath. And I don’t mean the Turner Classics process exactly. It may help to dumb down the artistic contrast of the black & white for a contemporary audience palate of splashy Disneycolor, but how about trying to make Steinbeck’s theme more accessible to today’s spoon-fed viewers? Let’s colorize the skin of the poor migrant workers to reflect the inhumanly-treated populations of today’s displaced im-migrants of color.

I can’t remember where I come down on colorizing the old movies. No one’s insisted on infusing CMYK into Ansel Adams or Picasso’s sketchbook, why are masterpieces filmed in black and white supposed to be pigment deficient? We don’t presume to dub dialog over the silent movies made before the age of the talkies. As yet. Of course, Ted Turner was concerned for reviving interest in old intellectual properties, many of which were already in-artful. And perhaps his salesmanship maneuver has been proven effective. When my family sat down to watch Grapes of Wrath, the grey image tuned a number of youthful eyes away.

Like Dorothea Lange’s famous photographs, John Ford’s film depicted disadvantaged Okies with whom the American audience could identify. We may not know what it feels like to be forced off our homes, but how the families cope with the hardship, we all can recognize. I’m curious how the film was received by Californians in 1940, coming less than ten years after the original plague of destitute Oklahoma refugees. How would the characters have faired with our sympathies if they had been played as coarse hillbilly Crackers with guns and a poor person’s chip-on-the-shoulder desperation?

The poor protagonists of The Grapes of Wrath were weakened skinny po-folk, who staked their relief on the strength of a single hopeful job listing flyer, who protested their oppression without resorting to violence, and who accepted hardship as their lot. Seeing into their daily lives, viewers were shown a dignified, earnest people who treated others with respect and compassion. Antagonist characters in the film were less charitable, taking advantage of the hard-luck migrants with guile, violence and authority. People into which the Oklahoma refugees traveled, New Mexico, Arizona and California, treated the migrants like vermin. Even as onlookers might express admiration for the Okies’ determination to cross Death Valley, the better fed Californians held them in disdain for not knowing enough to be in such a predicament. The Okies were blamed for their own poverty. They threatened to burden everyone’s already depleting resources. Only the viewers understood the unfair actions which had landed the otherwise self-sufficient sharecroppers to have to leave their livelihoods.

The circumstances of the Dust Bowl cum great depression era forced removal of the small Oklahoma farmers is eerily familiar to today’s economy and its foreclosures. Homesteaders find themselves made homeless, as a consequence of business decisions between corporations, banks and regulators. The Oklahoma farmers wanted to point their shotguns to warn the financial disruptors from their land, but found the conduits of the dirty work were their own neighbors and relatives. Everyone was merely following orders from someone higher up. That the system could be at fault, left the victims with no clear recourse.

Here’s the classic eviction exchange.

THE MAN
I can’t help that. All I know is I got my orders.
They told me to tell you you got to get off,
and that’s what I’m telling you.

MULEY
You mean get off my own land?

THE MAN
Now don’t go blaming me. It ain’t *my* fault.

SON
Whose fault is it?

THE MAN
You know who owns the land–the Shawnee Land and Cattle Company.

MULEY
Who’s the Shawnee Land and Cattle Comp’ny?

THE MAN
It ain’t nobody. It’s a company.

SON
They got a pres’dent, ain’t they?
They got somebody that knows what a shotgun’s for, ain’t they?

THE MAN
But it ain’t *his* fault, because the *bank* tells him what to do.

SON
All right. Where’s the bank?

THE MAN
Tulsa. But what’s the use of picking on him?
He ain’t anything but the manager, and half crazy hisself,
trying to keep up with his orders from the east!

MULEY
Then who *do* we shoot?

THE MAN
Brother, I don’t know. If I did I’d tell you.
But I just don’t know *who’s* to blame!

There was a lot more in The Grapes of Wrath which could inform a modern world view. The dreaded “Cats” for example. These were the Caterpillar tractors which were shown ravaging the land like locusts, arriving to demolish the houses of the reluctant dispossessed. Bulldozers are still used for that function today. In fact, Caterpillar manufactures armored versions to deploy in war zones for the destruction of houses. Palestinians have shown to be less reluctant than the poor Okies about trying to shoot the bulldozer drivers who are taking aim at their homes. Israel is expanding its settlements in Palestine with the aid of Caterpillar tractors which clear the land of its recalcitrant invadees.

Likewise, the union busting strategies portrayed in Grapes of Wrath are the same used today. Police officers are called in when work supervisors encounter workers who show too much skepticism for the employer’s scam. Troublemakers are arrested lest the workforce succeed in organizing itself. Instigators are paid to infiltrate a social event and start a fight, to give law enforcement the excuse to break in and make its calculated arrests. Casual viewers may think the famous 1939 film depicts a bygone age. Not at all.

Director John Ford made sure that the Okie migrants were deathly skinny, while everyone else, from gas station attendants to deputized union-busters, was immaculately dressed and well fed. But the audience could identify with both sides, because both were white. Imagine if the displaced peoples were not the same color.

Today’s migrant workers are hispanic. They are illegal immigrants, just like Okies passing through the Arizona checkpoint in Steinbeck’s novel.

GUARD
Where you going?

TOM
California.

GUARD
How long you plan to be in Arizona?

TOM
No longer’n we can get acrost her.

GUARD
Got any plants?

TOM
No plants.

GUARD
Okay. Go ahead, but you better keep movin’.

Could a modern audience appreciate the travails of a Mexican family in an exact same predicament? Mexican farmers have been forced from their land in an even less polite manner today. They have similar claim to their homesteads, some of them even have indigenous claims. But American and Mexican corporate interests have been forcing the Mexicans to flee. The migration north is not about seeking fortune; picking lettuce it most certainly is not. The work our illegal immigrants are willing to do is out of desperation and subsistence. Corporate America reserves our agricultural work for migrants because it’s cheaper. Otherwise American citizens have devised unions to ensure that workers are paid an honorable wage. Exploitation of the illegal immigrant is simply a bypass of decent labor practices meant to protect everyone.

In selfish, protectionist terms, hiring illegal immigrants undermines the strength of unionized labor. Ultimately the exploitation of others dehumanizes us all.

I wish Americans could see The Grapes of Wrath as a projection of the ongoing injustices suffered by all exploited migrants. As well-fed American citizens leading prosperous lives, wouldn’t it be our responsibility to help the victims of our system? Instead, we are those cold-hearted leather-jacketed Californians herding them into lives of slow death by hard labor and starvation.

The Grapes of Wrath offered a strong Socialist message, disguised in a protagonist who did not yet have all the answers. Before setting out to light the way, Henry Fonda’s character says this to his mom:

TOM
…maybe I can do sump’n. Maybe I can jus’ fin’ out sump’n.
Jus’ scrounge aroun’ an’ try to fin’ out what it is that’s wrong,
an then see if they ain’t sump’n could be done about it.
But I ain’t thought it out clear, Ma. I can’t.
I don’t know enough.

MA
How’m I gonna know ’bout you?
They might kill you an’ I wouldn’t know.
They might hurt you. How’m I gonna know?

TOM
Well, maybe it’s like Casy says, a fella ain’t got a soul
of his own, but on’y a piece of a big soul–the one big soul
that belongs to ever’body–an’ then…
Then it don’t matter. Then I’ll be all aroun’ in the dark.
I’ll be ever’where–wherever you look. Wherever there’s
a fight so hungry people can eat, I’ll be there.
Wherever there’s a cop beatin’ up a guy, I’ll be there.
I’ll be in the way guys yell when they’re mad
–an’ I’ll be in the way kids laugh when they’re
hungry an’ they know supper’s ready.
An’ when our people eat the stuff they raise,
an’ live in the houses they build, why, I’ll be there too.

I had to see The Grapes of Wrath in high school. It was required. Are schools today trying to infuse students with social wisdom? How about a Grapes Redux starring people of color? Imagine this closing line, spoken by a dark skinned mother, about the hardship that is her people’s fate:

MA
…Maybe that makes us tough. Rich fellas come up an’ they die, an’ their kids ain’t no good, an’ they die out. But we keep a-comin’. We’re the people that live. Can’t nobody wipe us out. Can’t nobody lick us. We’ll go on forever, Pa. We’re the people.

Stop the War in Iraq and BTTHN

Open National Conference to Stop the War in Iraq and Bring the Troops Home Now
Cleveland, Ohio, June 28-29, 2008

National Assembly Endorser List (Partial Listing)
( * = organization or position for identification only)

1. Cindy Sheehan, Gold Star Families for Peace*
2. Howard Zinn, Author, Historian, Social Critic, Political Scientist, Playwright
3. U.S. Labor Against the War (USLAW)
4. Veterans for Peace
5. Vietnam Veterans Against the War, Utah Chapter
6. National Lawyers Guild
7. North Shore AFL-CIO Federation of Labor (Formerly Cleveland AFL-CIO)
8. Donna Dewitt, President, South Carolina AFL-CIO*
9. Navy Petty Officer Jonathan W. Hutto, Author of “Anti-War Soldier” and Co-Founder of Appeal For Redress*
10. Los Angeles County Federation of Labor, AFL-CIO, Los Angeles, CA
11. Progressive Democrats of America
12. A.N.S.W.E.R. Coalition (Act Now to Stop War and End Racism)
13. The Iraq Moratorium
14. United Teachers Los Angeles
15. Northeast Ohio Anti-War Coalition (NOAC)
16. Ramsey Clark, former U.S. Attorney General
17. Green Party of Ohio
18. Progressive Action, a coalition of the Duluth Central Labor Body, Democratic Farmer-Labor Party, and the Duluth Area Green Party
19. Scott Ritter
20. Anti-War Committee of the Thomas Merton Center, Pittsburgh, PA
21. Colia Lafayette Clark, Chair, Richard Wright Centennial Committee, Philadelphia, PA
22. Ohio State Council UNITE HERE
23. Women Speak Out for Peace and Justice – the Cleveland Branch of Women’s International League for Peace and Freedom
24. Chris Silvera, Secretary-Treasurer, Teamsters Local 808*, Long Island, NY
25. Cleveland Peace Action
26. Peninsula Peace and Justice Center, Palo Alto, CA
27. Greater Boston Stop the Wars Coalition (STWC)
28. John W. Braxton, Co-President, American Federation of Teachers Local 2026*; Faculty and Staff Federation of Community College of Philadelphia*
29. Eduardo Rosario, Executive Board, NY City Chapter – Labor Council for Latin American Advancement*
30. RI Mobilization Committee to Stop War and Occupation
31. Steve Early, Member, National Writers Union/UAW*, Labor Journalist
32. Bethlehem Neighbors for Peace
33. Northeast Ohio American Friends Service Committee
34. Cynthia McKinney, Former Congresswoman from Georgia
35. Allen Cholger, United Steelworkers Union Staff Representative*, Southfield, MI
36. Malcolm Suber, Reconstruction Activist; 2007 City Council Candidate in New Orleans, LA
37. Greg Coleridge, Coordinator, Northeast Ohio Anti-War Coalition; Economic Justice & Empowerment Program Director, Northeast Ohio American Friends Service Committee
38. Marilyn Levin, Member, Coordinating Committee, Greater Boston United for Justice with Peace; Founder, Middle East Crisis Coalition
39. Jeff Mackler, Founder, Mobilization for Peace, Jobs and Justice, San Francisco, CA
40. Jerry Gordon, former National Co-Coordinator of the Vietnam-era National Peace Action Coalition (NPAC); Member, U.S. Labor Against the War Steering Committee, Cleveland, OH
41. Barbara Lubin, Director, Middle East Children’s Alliance
42. Jamilla El-Shafei, Kennebunkport, Maine, (the Kennebunkport Peace Department)
43. Mumia Abu-Jamal
44. Alan Netland, President of the Duluth Central Labor Body and AFSCME Local 66*
45. Will Rhodes, Chair, Minnesota 8th Congressional District, Green Party; Steering Committee of the Duluth Area Green Party
46. Leonard Weinglass, Attorney for the Cuban Five
47. Gail Schoenfelder, Co-Chair, Clayton-Jackson-McGee Memorial; Board Member of the Duluth League of Women Voters*
48. California Peace and Freedom Party
49. Greater Cleveland Immigrant Support Network
50. Wasatch Coalition for Peace and Justice of Northern Utah
51. Alan Benjamin, Member, Executive Board, San Francisco Labor Council; Member, National Steering Committee, U.S. Labor Against the War
52. Rev. Dr. Diana Gibson, Co-Director, Council of Churches of Santa Clara County, San Jose, CA*
53. Sacramento Chapter, Labor Council for Latin American Involvement (LCLAA), AFL-CIO, Sacramento, CA
54. Iranians for Peace and Justice, CT and Texas Chapters
55. Youth Against War & Racism, MN
56. Samina Faheem, Executive Director, American Muslim Voice
57. National Education Association Peace and Justice Caucus
58. Union de Trabajadores Inmigrantes (Union of Immigrant Workers), Madison, WI
59. The L.A. Palestine Labor Solidarity Committee, Los Angeles, CA
60. San Jose Peace and Justice Center
61. Andy Griggs, Board of Directors, United Teachers Los Angeles; Chair, National Education Association Peace and Justice Caucus; Continuations Committee, American Federation of Teachers Peace and Justice Caucus*; Steering Committee Member, U.S. Labor Against the War, Los Angeles, CA
62. Office of the Americas, Los Angeles, CA
63. Fernando Suarez del Solar, Founder and Director, Guerrero Azteca Peace Project Escondido, CA
64. Doug Bullock, 1st Vice President, Albany Federation of Labor and Member of the Albany County Legislature
65. Arlington (MA) United for Justice with Peace
66. Sarah Martin, Member, Women Against Military Madness, MN
67. Paul Krehbiel, Iraq Moratorium, Los Angeles, CA
68. Sharon Smith, Haymarket Books
69. Francesca Rosa, Member SEIU Local 1021, Delegate, San Francisco Labor Council*, Member, Bay Area Labor Committee for Peace and Justice*
70. National Benedictines for Peace
71. Elizabeth Aaronsohn, Professor of Education and Faculty in the Peace Studies Program*, Central CT State University, New Britain, CT
72. Adirondack Progressives
73. Pam Africa, International Concerned Family and Friends of Mumia Abu-Jamal and Move Organization
74. AfterDowningStreet.org
75. Kali Akuno, Member, Malcolm X Grassroots Movement, Gulf Coast Reconstruction Movement activist, New Orleans, LA*
76. Richard Brooks Alba, Co-Chair Emeritus, SF Pride at Work (AFL-CIO), Berkeley, CA
77. Mike Alewitz, Labor Art and Mural Project, New Britain, CT
78. All-African People’s Revolutionary Party (G-C), Washington, D.C.
79. Stephen Allen, Steve Allen Painting, Akron, OH
80. Alliance for Global Justice
81. Dr. Sabah Alwan, Associate Professor of Leadership & Organizational Behavior, College of St. Scholastica, Duluth, MN
82. American Federation of Musicians Local 1000, NY, NY
83. Andy Anderson, Veterans for Peace, Chapter 80
84. Jeff Anderson, Duluth City Councilor
85. Thomas Atwood, Community Organizer, Peninsula Interfaith Alliance (PICO); Unitarian Universalist Fellowship of Redwood City, CA*
86. Mark Bailey, member and seminary student, United Church of Christ*, Elyria, OH
87. Jared A. Ball, Producer, Independent/Mixtape Journalism: FreeMix Radio, Words, Beats and
Life Global Journal of Hip-Hop Culture, Washington, D.C.*
88. Russ Banner, Co-Coordinator, Pax Christi – Manasota Chapter, FL
89. Hans Barbe, Iraq Moratorium, Students for a Democratic Society, Grosse Pointe Park, MI
90. Ana Barber, UTLA Board of Directors, Long Beach, CA
91. Bay Area United Against the War
92. Karen Bernal, International Longshore Workers Union Project Organizer, San Francisco, CA
93. Dennis Bernstein, Producer Flashpoint/KPFA Radio, Berkeley, CA
94. Marcia Bernsten, North Shore Coalition for Peace & Justice, Evanston, IL
95. Prof. Hal Bertilson, Professor of Psychology and UWS Psychology Program; Coordinator; Member, Amnesty International; Unitarian Universalist Congregation of Duluth Peace and Justice Committee
96. Thomas Bias, President, Northwest New Jersey Peace Fellowship
97. Stephen Bingham, Attorney, Political Activist, San Francisco, CA
98. Bloomington Peace Action Coalition, Nashville, IN
99. Roy Blount, President, Taxi Workers Alliance of Pennsylvania
100. Iver Bogen, Progressive Action Secretary, Duluth, MN
101. Scott Bol, St. Croix Valley Peacemakers, Stillwater, MN
102. Bolivarian Circle of Los Angeles “Ezequiél Zamora”, Sherman Oaks, CA
103. Blasé Bonpane, Director, Ofice of the Americas, Los Angeles, CA
104. Theresa Bonpane, Executive Director, Office of the Americas, Los Angeles, CA
105. Boston May Day Coalition, http://www.bostonmayday.org
106. Laura Bothwell, Founder of the St. Scholastica College Democrats; Former Director, Programs at the Columbia Univ. Center for the Study of Science and Religion; NY, NY
107. Frank Boyle, Wisconsin State Representative, 73rd Assembly District
108. Patrick Boyle, Progressive Action Steering Committee, Duluth, MN
109. Heather Bradford, Co-Founder, Students Against War, College St. Scholastica
110. Lenni Brenner, Author, Zionism in the Age of the Dictators
111. Lyn Broach, Steve Allen Painting, Akron, OH
112. Brooklyn Greens, Brooklyn, NY
113. Don Bryant, President, Greater Cleveland Immigrant Support Network
114. Cafe Intifada, Los Angeles, CA
115. California Federation of Teachers
116. Joseph Callahan, member, Coalition to March on the Republican National Convention & Stop the War; Iraq Peace Action Coalition; Twin Cities, MN*
117. Campaign for Labor Rights
118. Campus Antiwar Network
119. Campus Anti-War Network, Fordham University Chapter
120. Michael Carano, Ohio Progressive Democrats of America State Co-Coordinator
121. Patrick Carano, Ohio Progressive Democrats of America State Co-Coordinator
122. Steve Carlson, Peace North, Northern Wisconsin Coordinator for the Iraq Moratorium Project
123. Mary Carmichael, Northwoods People for Peace, Ironwood, MN
124. Tim Carpenter, National Director, Progressive Democrats of America
125. Central CT State University Progressive Students Alliance, New Britain, CT
126. Central CT State University Peace Studies Program, New Britain, CT
127. Central Ohioans for Peace
128. Chapter 39 (Northeast Ohio) Veterans for Peace
129. Chatham Peace Initiative
130. Chelsea Unièndose en Contra de la Guerra, Chelsea, MA
131. Chicago Coalition Against War and Racism, Chicago, IL
132. Chicago Labor Against the War, an affiliate of U.S. Labor Against the War
133. Chicago Socialist Party
134. Chippewa County Anti-War Coalition, Dafter, MI
135. Jim Ciocia, Staff Representative, Ohio Council 8, American Federation of State, County and Municipal Employees (AFSCME)*, Cleveland, OH
136. Citizen Soldier
137. Cleveland Middle East Peace Forum
138. Coalition for World Peace (CFWP) – An affiliate of UFPJ, Los Angeles, CA
139. Code Pink, Pittsburgh Chapter
140. Columbus Campaign for Arms Control/For Mother Earth
141. Committee in Solidarity with the People of El Salvador (CISPES – Los Angeles, CA)
142. Common Ground Relief/New Orleans – Malik Raheem, Co-Founder
143. Dave Conley, Douglas County Board Supervisor, WI
144. Jan Conley, Founder and President of Environmental Assn. for Great Lakes Education
145. Polly Connelly, International Representative, United Auto Workers (retired), Tucson, AZ
146. Cliff Conner, Author, “A People’s History of Science” New York, NY
147. Victor Crews, Utah Jobs with Justice, Wasatch Coalition for Peace and Justice, United for Peace and Justice Steering Committee Member
148. Cuba Solidarity, NY, NY
149. Tony Cuneo, Duluth City Council*
150. Denise D’Anne, Senior Action Network, San Francisco, CA*
151. DailyRadical.org, Boston, MA
152. Alan Dale, member, Iraq Peace Action Coalition, MN
153. Warren Davis, Former International Executive Board Member, United Auto Workers, Cleveland, OH
154. De Kalb Interfaith Network for Peace and Justice, De Kalb, IL
155. Declaration of Peace – San Mateo County, San Mateo, CA
156. Declaration of Peace, Bloomington, IN
157. Democratic Socialists of Central Ohio
158. Jesse Diaz, Jr., University of California, Riverside; Political Action Committee – La Hermandad Mexicana Transnacional, Riverside, CA
159. Ron Dicks, International Vice President, Western Region, International Federation of Professional and Technical Employees (IFPTE), San Francisco*
160. Different Drummer
161. Frank Dorrell, Addicted to War, Los Angeles, CA
162. Doug Dowd – Political economist, author, professor, Bologna, Italy
163. Dubuque Peace & Justice, Dubuque, IA
164. Mark Dudzic, National Organizer, Labor Party*
165. Larry Duncan, Labor Beat Co-Producer, Chicago, IL
166. East Central Ohio Green Party
167. Jebb Ebben, lead vocal of The Dear Astronaut band, Milwaukee, WI
168. Charlie Ehlen, Member, Veterans for Peace, Glenmora, LA
169. El Militante Sin Fronteras
170. Erie Benedictines for Peace, PA
171. Every Church a Church of Peace (Duluth, MN area chapter)
172. Farid Farahmand, Iranians for Peace, New Britain, CT
173. Christian Fernandez, Greater Boston Stop the Wars Coalition
174. Bob Fertik, founder of Democrats.com
175. Jeanne Finley, Albany, NY
176. First Presbyterian Church of Palo Alto, CA
177. Milton Fisk, South Central Indiana Jobs with Justice; Emeritus Prof. of Philosophy, Indiana Univ.- Bloomington
178. Jon Flanders, member and past president IAM Local Lodge 1145; Trustee, Troy Area Labor Council, NY
179. Carlos Flores, Secretary-Treasurer, Graphic Communications Conference-IBT Local 4N*
180. Focus the Nation, Portland, OR
181. Folk the War, Kent, OH
182. Dennis Foster, Westlake, OH
183. Christine Frank, Climate Crisis Coalition of the Twin Cities, Minneapolis, MN
184. FreedomJournal.Tv, Akron, OH
185. Freedom Socialist Party, Seattle, WA, Henry Noble, National Secretary
186. Frente de Mexicanos en el Exterior/FME (Front of Mexicans Aboard), Sacramento, CA
187. Anna Fritz, Retiree, Cleveland Heights, OH
188. Emily Gaarder, Assistant Prof. of Sociology/Anthropology, Univ. of MN-Duluth, MN
189. GABNet, a Philippines women’s organization
190. Dennis Gallie, Member UAW Local 235, St. Louis, MO*
191. Sharla Gardner, Duluth City Councilor and Former Executive Board Member of AFSCME Local 66, Duluth, MN
192. Christine Gauvreau, Organizing Committee, CT United for Peace*
193. Gay Liberation Network, Chicago, IL
194. Paul George, Director, Peninsula Peace and Justice Center, Palo Alto, CA
195. Mirène Ghossein, member of Adalah-NY: Coalition for Justice in the Middle East*, WESPAC (Westchester County Peace and Action Network)*
196. Isaac Alejandro Giron, Chairman of the SLC Autonomous Brown Berets
197. Martin Goff, Minnesota UNITE HERE Organizer*
198. David Goldberg, UTLA Treasurer, Los Angeles, CA
199. Sam Goldberger, We Refuse to Be Enemies, West Hartford, CT*
200. Marty Goodman, Transport Workers Union Local 100*, NY, NY, former Executive Board member
201. Dayne Goodwin, Secretary, Wasatch Coalition for Peace and Justice, Salt Lake City, UT
202. Steve Gordon, Former President of UTU Local 1732 & Lead Vocalist for the bands Workerand Black Market Bombs, Conway, SC
203. Kevin Gosztola, Author for OpEdNews; member, Peace Movement
204. Grandmothers for Peace, Northland Chapter
205. Grandmothers for Peace International, Elk Grove, CA
206. Greater Glastonbury for Peace and Justice, Glastonbury, CT
207. Green Party of Brooklyn, Brooklyn, NY
208. Green Party of Rhode Island, Providence, RI
209. Suzanne Griffith, Professor of Counseling, Univ. of Wisconsin-Superior; Member of Women in Black
210. Guerrero Azteca Peace Project, Escondido, CA
211. Cheryl Gustafson, Western University (Salt Lake City) Community Relations*
212. Ioanna Gutas, Middle East Crisis Committee, New Haven, CT*
213. Guyanese American Workers United, New York, NY
214. Jim Hamilton, St. Louis; Member, State Executive Board of American Federation of Teachers, MO*
215. Carol Hannah, Peace North, Hayward, WI
216. Mo Hannah, Ph.D., Chair, Battered Mothers Custody Conference
217. John Harris, Co-Founder, Greater Boston Stop the Wars Coalition, Boston, MA; Co-Founder, Chelsea Uniéndose en Contra de la Guerra, Chelsea, MA; Regional Coordinating Committee member, New England United*
218. Alan Hart, Managing Editor, UE News, United Electrical, Radio and Machine Workers of America (UE)*
219. Hawaii Solidarity Committee, NY, NY
220. Rose Helin, Former President, Students Against War, Univ. of Wisconsin-Superior
221. Stan Heller, The Struggle Video News Network, West Haven, CT*
222. Melissa Helman, former School of the Americas Protest Prisoner of Conscience, Ashland, WI
223. Inola F Henry, UTLA Board of Directors, Los Angeles, CA
224. Laura Herrera, Co-Coordinator, The Mobilization to Free Mumia Abu-Jamal, Northern California
225. Fletcher Hinds, Vietnam Veteran, MN Veterans & Military Families for Progress*, Duluth, MN
226. Fred Hirsch, Plumbers and Fitters Local 393 Executive Board; Delegate to the South Bay AFL-CIO Labor Council, San Jose, CA*
227. Suzanne and William Hodgkins, Niskayuna, NY
228. Marvin Holland, http://www.homestationonline.org, Jersey City, NJ
229. Julie Holzer, Staff Representative, District 12, United Steelworkers Union*
230. Dr. Bill Honigman, Progressive Democrats of America, California State Coordinator, Laguna Hills, CA
231. Kathleen Hopton, Mentor, OH
232. Houston Coalition for Justice Not War, Houston, TX
233. Humanity, Asheville, NC
234. Jeff Humfeld, Board of Directors, KKFI Community Radio, Kansas City, MO*
235. ICUJP-Interfaith Communities United for Justice and Peace, Los Angeles, CA
236. Interfaith Council for Peace in the Middle East, Cleveland, OH
237. International Socialist Organization (ISO)
238. Iraq Peace Action Coalition, Twin Cities. MN
239. Khalil Iskarous, Middle East Crisis Committee, New Haven, CT*
240. lbrahim Jibrell, Trinity College Antiwar Coalition, Hartford, CT*
241. Jeni Johnson, Former News Editor for the Promethean newspaper
242. Laurie Johnson, Former Duluth City Councilor; Business Agent AFSCME Council 5, Duluth, MN
243. Peter Johnson, Progressive Action Steering Committee & Duluth Professional Firefighters Union*, Duluth, MN
244. Todd Jordan, Future of the Union, UAW Local 292*, Kokomo, IN
245. Paul Kangas, Vice President, Veterans for Peace
246. Kansas City Labor Against the War, a U.S. Labor Against the War affiliate
247. Dan Kaplan, Executive Director, AFT Local 1493; San Mateo (CA) Community College Federation of Teachers*
248. David Keil, Greater Boston Stop the Wars Coalition; New England United*
249. Kemetic Inst, Columbus, OH
250. Kent State Anti-War Committee, Kent, OH
251. Sky Keyes, CT United for Peace, Middletown, CT
252. Tim Kettler, Secretary, Green Party of Ohio
253. Joel Kilgour, Truth in Recruiting Committee, Duluth, MN
254. John Kirkland, Stop the War Committee, Carpenters Local 1462*, Bristol, PA
255. Philip Koch, Professor, Maryland Institute College of Art, Baltimore, MD
256. Dr. Gary Kohls, Every Church a Church of Peace
257. Bob Kosuth, Steering Committee of the Northland Anti-War Coalition
258. Gene Kotrba, Northeast Ohio Anti-War Coalition (NOAC), Berea, OH
259. Dennis Kucinich, U.S. Representative, Lakewood, OH
260. Rev. Kurt Kuhwald, Unitarian Universalist Church of Palo Alto, Palo Alto, CA*
261. Rick Kurki, Board Member of the Tyomies Society, Highbridge, WI
262. Zev Kvitky, President, SEIU Local 2007, Stanford, CA
263. La Hermandad Transnacional , Los Angeles, CA
264. Ray LaForest, International Haiti Support Network, New York, NY
265. Lake Superior Greens
266. Werner Lange, Professor of Sociology, Edinboro University of Pennsylvania*
267. Ben Larson, Singer for the band Crew Jones
268. Prof. Mark Lause, Department of History, University of Cincinnati
269. Peter LaVenia, Co-Chair, New York Green Party
270. Paul Le Blanc, Prof. of History, LaRoche College; Member, Anti-War Committee, Thomas Merton Center, Pittsburgh
271. James Marc Leas, National Lawyers Guild
272. Fernando B. Ledezma, UTLA Board of Directors, El Monte, CA
273. Rosemary Lee, Member, CFT Civil, Human and Women’s Rights Committee*, Los Angeles,
CA
274. Pat Levasseur, East Coast Director, Lynne Stewart Defense Committee; former political prisoner, Ohio 7
275. Libertarian Party of Northeast Ohio
276. Liberty Street Agitators, Ann Arbor, MI
277. Jack Lieberman, Jewish Arab Dialog Association*, Miami , FL
278. Jerimarie Liesagang, CT Transadvocacy Coalition, Hartford, CT
279. Peter Linebaugh, Author, Magna Carta Manifesto
280. Michael Livingston, Professor of Psychology, St. John’s University, Collegeville, MN
281. Janet Loehr, Middle East Peace Forum, Cleveland, OH
282. Joe Lombardo, Bethlehem Neighbors for Peace and Coordinator, Northeast Peace and Justice Action Coalition
283. Los Altos Voices for Peace, Los Altos, CA
284. Jennifer Lyon, Iraq Veterans Against the War (IVAW)*, Las Vegas, NV
285. David Macko, Chairman, Libertarian Party, Northeast Ohio*, Solon, OH
286. Dorotea Manuela, Co-Coordinator, Boston May Day Coalition, Boston, MA
287. Jorge Marin, Circula Bolivarimo – Martin Luther King, Jr.*, Boston MA
288. Jennifer Martin-Romme, Editor, Zenith City Weekly Newspaper
289. Logan Martinez, Green Party West Central Ohio
290. Jamshid Marvesti, M.D., Author of four books, most recently “Psycho-Political Aspects of Suicide Warriors, Terrorism and Martyrdom,” Manchester, CT
291. James Mattingly, Kaukauna, WI
292. Mayday Books, MN
293. Bob McCafferty, Andover, NJ
294. Prof. Bud McClure, Faculty Against War, Univ. of Minnesota-Duluth
295. Rick McDowell, Belmont, ME
296. Kay McKenzie, Douglas County Board Supervisor, WI
297. Michigan Emergency Committee Against War & Injustice, Detroit, MI
298. The Middle East Crisis Committee, CT
299. Mimbrez Publishers, Oklahoma City, OK
300. Judy Miner, Office Coordinator, Wisconsin Network for Peace and Justice*, Madison, WI
301. Minnesota Labor Against the War
302. Mobilization to Free Mumia Abu-Jamal
303. Suren Moodliar, Mass Global Action*
304. Hal Moore, Progressive Action Treasurer, Duluth, MN
305. More than Warmth, Nashville, TN
306. Tess Moren, Intl. Peace Studies Student Assn., Univ. of Wisconsin-Superior
307. Dorinda Moreno, Co-Moderator, indyiraqaction; Convenor, Fuerza Mundial Collaborative, Santa Maria, CA*
308. Amy Moses, Leader, Young Adult Group, of the 1st Unitarian Universalist Society of SF
309. Denis Mosgofian, Graphic Communications Conference-IBT Local 4N, past president,
current Delegate to San Francisco Labor Council*
310. Peter and Gail Mott, Co-Editors INTERCONNECT: (national newsletter)
311. David Moulton, Loaves & Fishes Catholic Worker Community, Duluth, MN
312. MoveOn/East Bay, Barrington, RI
313. Bill Moyer and The Backbone Campaign
314. Jorge Mujica, March 10 Coalition*
315. MJ Muser, World Can’t Wait-Cleveland
316. Muslim Solidarity Committee
317. Muslim Youth Brotherhood for Political Action (MYB). Chaplin, CT
318. My Homework Channel, Cambridge, MA
319. National Network on Cuba, San Francisco, CA
320. Native Earth Education Project, Shelburne, MA
321. Kamran Nayeri, Political Economist, University of California
322. Near West Citizens for Peace and Justice
323. Neighbors for Peace, IL
324. Nevada Workers Against the War, Las Vegas, NV
325. New England United
326. New York State Greens/Green Party of New York, New York, NY
327. Nicaragua Network
328. Mary Nichols-Rhodes, Ohio Progressive Democrats of America State CD Organizer
329. Victor Nieto, President of Lodge 1043 Transportation and Communications Union*, Bronx, NY
330. North Shore Coalition for Peace and Justice, IL
331. Northland Anti-War Coalition
332. Jim Northrup, Native American Playwright, Poet, Author and Syndicated Columnist of Column “Fond du Lac Follies”
333. NY Metro Raging Grannies, New York, NY
334. Ohio State Labor Party
335. Barb Olsen, President, Progressive Action, Political Commentator for KUMD-FM Radio and Political Columnist for the Reader Weekly Newspaper
336. Bill Onasch, Midwest Chapter Representative, Labor Party Interim National Council*
337. Steve O’Neil, St. Louis County Board Commissioner, Duluth, MN.
338. Organized Workers for Labor Solidarity, Seattle, WA
339. Debbie Ortman, National Field Director of the Organic Consumers Assn.; Former Hermantown, MN City Councilor; President, Duluth League of Women Voters
340. Our Spring Break, Washington D.C.
341. Pan-African Roots, Washington, D.C.
342. Jeff Panetiere, Western Connecticut State Univ. Youth for Justice, Danbury, CT*
343. Parma Democratic Committee, Hilton, NY
344. Pax Christi Northern California, San Jose, CA
345. PDX Peace Coalition, Portland, OR
346. Peace & Social Justice Committee*, La Roche College, Pittsburgh, PA
347. Peace Action of San Mateo County, San Mateo, CA
348. Peace and Freedom Party, Sacramento, CA
349. Peace and Justice Center of Eastern Maine, Bangor, ME
350. PeaceMajority Report, Lindenhurst, IL
351. Josh Pechthalt, UTLA/AFT Vice President, Los Angeles, CA
352. Paula J. Pedersen: Assistant Professor of Psychology, Univ. of MN-Duluth
353. Penn Action, Pittsburgh, PA
354. Helen Pent, President, Northland College Student Assn.
355. People of Faith CT, West Hartford, CT
356. Peoples Fightback Center, Cleveland, OH
357. John Peterson, National Secretary, U.S. Hands Off Venezuela
358. Millie Phillips, Editorial Board, The Organizer Newspaper*
359. Physicians for Social Responsibility, Hudson-Mohawk Chapter
360. Jan Pierce, Retired National Vice President – Communications Workers of America District One
361. Angela T. Pineros, Greater Boston Stop the Wars Coalition
362. Larry Pinkney, Black Activist Writers Guild & Columnist, Twin Cities, MN*
363. Andy Pollack, Adalah–NY: Coalition for Justice in the Middle East,* Brooklyn, NY
364. Joseph Pollard, Transport Workers Union Local 100*, NY,NY
365. Portage Community Peace Coalition, Brady Lake, OH
366. Michael L. Postell, Transport Workers Union Local 250A, Chairperson, Green Division, San Francisco Municipal Railway*, San Francisco, CA
367. Dolores Perez Priem, Iraq Moratorium and UUs for Peace, San Francisco, CA
368. Progressive Action Steering Committee, Duluth, MN
369. Progressive Democrats of America Los Angeles (PDALA) Los Angeles, CA
370. Progressive Democrats of America – Ohio
371. Progressive Peace Coalition, Columbus, OH
372. Radical Women, San Francisco, CA
373. Radio Free Maine, Augusta, ME
374. Dr. Chengiah Ragaven, Professor of International Relations, Central CT State Univ., New Britain, CT*
375. Rainbow Affinity Tribe/Yippies, Brooklyn, NY
376. Walter Raschik, Host, Walt Dizzo Show on KUWS-FM Radio
377. Jack Rasmus, Co-Chair, Natl. Writers Union, UAW Local 1981, Richmond, CA*
378. Sami Rasouli , Founder & Director, Muslim Peacemaker Teams*, Najaf, Iraq
379. Austin Reams, Oklahoma City, OK
380. Revolutionary Workers Group, San Francisco, CA
381. Rogelio Reyes, California Faculty Association, Calexico, CA *
382. Sergio Reyes, Co-Coordinator, Boston May Day Coalition
383. Marc Rich, Delegate, LA County Federation of Labor
384. Walter Riley, Civil Rights Attorney, Political Activist, San Francisco, CA
385. Adam Ritscher, Douglas County Board Supervisor; Northland Anti-War Coalition
386. Christopher Robinson, Cambridge, MA
387. Rockland Coalition for Peace and Justice, Chestnut Ridge, NY
388. Lorena Rodriguez, International Partnership Coordinator of the Student Trade Justice Campaign, Duluth, MN/Montevideo, Uruguay
389. Mike Rogge, Co-Founder, Students Against War, College of St. Scholastica.
390. Al Rojas, Coordinator, FME (Front of Mexicans Abroad), Sacramento, CA
391. Emma Rosenthal, Los Angeles, CA
392. Martin Rosner, NY Social Activist
393. Donald Rucknagel, M.D., Ph.D., Cincinnati, OH
394. Barb Russ, Progressive Action, Duluth, MN
395. Carl Sack, Northland Anti-War Coalition, former Northland College Student Senator
396. Sacramento for Democracy, Sacramento, CA
397. Sundiata Sadiq, Former President, Ossining, NY NAACP
398. San Diego Coalition for Peace and Justice, San Diego, CA
399. San Mateo County Central Labor Council AFL-CIO, Foster City, CA
400. Ajamu Sankofa, National Conference of Black Lawyers*, Brooklyn, NY
401. Tony Saper, ATU Local 1287 Representative to the Kansas City Regional Transit Alliance, Kansas City, MO
402. Evan Sarmiento, Outreach Coordinator, Greater Boston Stop the Wars Coalition
403. Renee Saucedo, Director, La Raza Centro Legal; Member, SEIU Local 1021, San Francisco*
404. Fred Schnook, former Mayor of Ashland, WI.
405. Ralph Schoenman and Mya Shone, Co-producers, Taking Aim-WBAI Radio-NY, Vallejo, CA
406. Paul Schrade, former International Executive Board Member, United Auto Workers, Los Angeles, CA
407. John Schraufnagle, Northland Anti-War Coalition, Superior, WI
408. Michael Schreiber, Editor, Socialist Action, San Francisco, CA
409. Rodger Scott, Delegate and Past President, American Federation of Teachers Local 2121, City College of San Francisco
410. Mary Scully, member, Iraq Peace Action Coalition, Twin Cities
411. Steve Seal, UTLA Board of Directors/Chair, Human Rights Committee*, Los Angeles, CA
412. Vann Seawell, Assistant Director, UNITE HERE, Columbus, OH
413. Leonard Segal, UTLA Board of Directors, Northridge, CA
414. Rob Segovia-Welsh, Agriculture Rural Labor Inspector for the State of North Carolina
415. Dallas Sells, Director, Ohio State Council, UNITE HERE
416. Shaker Heights High School Students for a Democratic Society (SDS), Shaker Heights, OH
417. Peter Shell, Anti-War Committee of the Thomas Merton Center, Pittsburgh, PA
418. Adam Shils, Vice-President, Aptakisc Education Association (NEA)*
419. Shura Council, Anaheim, CA
420. Joel Sipress, Duluth Area Green Party, former candidate for MN State Senate, Duluth, MN
421. Debbie Ginsberg Smith, Social Activist, New York
422. Michael Steven Smith, Co-Producer, Law and Disorder, WBAI radio
423. Social Action Committee, Unitarian Universalist Fellowship of Redwood City, CA
424. Social Action Committee, West Shore Unitarian Universalist Church, Rocky River, OH
425. Socialist Action
426. Socialist Alternative
427. Socialist Organizer
428. Socialist Party, Boston
429. Socialist Party of CT
430. Socialist Party of Massachusetts
431. Socialist Party USA (National Committee)
432. Socialist Viewpoint
433. Solidarity, Detroit, MI
434. Asiyahola Somburu, Co-Chair of the Emerging Black Leadership Symposium
435. Gary Sorenson, President of Veterans for Peace, Chapter 80
436. South Dakota A.N.S.W.E.R. Coalition, Brandon, State Council
437. Southeast Minnesota Alliance of Peacemakers, Rochester, MN
438. Mark Stahl, Event Coordinator, Rhode Island Community Coalition for Peace
439. Lynne Stewart, Lynne Stewart Organization, NY, NY
440. Judith Stoddard, First Unitarian Universalist Society of San Francisco*
441. Students for a Democratic Society, Kirtland, OH
442. Students for Change, Norwich, CT
443. Hal Sutton, Member, UAW Local 1268 Retirees Chapter, Rockton, IL*
444. David Swanson, Washington Director, Democrats.com and of Impeachpac.org; Co-Founder, AfterDowningStreet.org
445. Shakeel Syed, Executive Director, Shura Council, Culver City, CA
446. Teach Peace Foundation
447. Tennessee Code Pink, Summertown, TN
448. Texans for Peace, Austin, TX
449. Linda Thompson, Guilford Peace Alliance, AFSCME Retirees, CT United for Peace
450. Sara Thomsen, singer/songwriter, South Range, WI
451. Gale Courey Toensing, Editor, The Corner Report, NW CT and Member, Middle East Crisis Committee, CT*
452. Troops Out Now Coalition, New York, NY
453. Troy Area Labor Council, Troy, NY
454. Jerry Tucker, former International Executive Board Member, United Auto Workers, St. Louis, MO
455. Twin Cities Peace Campaign-Focus on Iraq
456. Twin Cities Year 5 Committee to End the War Now
457. U.S. Hands Off Venezuela
458. Imam Warith Deen Umar, Chaplain for 25 years in New York state prisons
459. United Educators of San Francisco
460. Unitarian Universalist Fellowship of Redwood City (entire congregation), Redwood City, CA
461. University of Toledo Anti-War, Toledo, OH
462. Upper Hudson Peace Action, Albany, NY
463. Utah Jobs with Justice, Salt Lake City
464. Utah Peace & Freedom Party, Salt Lake City, UT
465. James E. Vann, Architect; Co-Founder, Oakland Tenants Union, Oakland, CA
466. Chuck Vaughn, UTLA Board of Directors, Pico Rivera, CA
467. Venezuela Solidarity Network
468. Veterans for Peace, Chapter 80
469. Veterans for Peace, Chapter 118, Utah
470. Veterans for Peace – Chapter 153, Iraq Moratorium Project, Peace North, Hayward, WI
471. Carlos Villarreal, Executive Director, National Lawyers Guild*, San Francisco Bay Area Chapter
472. Voters Evolt!, Long Beach, CA
473. Voters for Peace, Baltimore, MD
474. Julie Washington, UTLA Elementary Vice President, Los Angeles, CA
475. Washington Peace Center, Washington D.C.
476. Harvey Wasserman, Founder of Solartopia.org, Bexley, OH
477. WE Project, Los Angeles, CA
478. Carl Webb, Iraq War Veteran; Texas National Guard
479. Tegan Wendland, Douglas County Board Student Representative, WI
480. Coly Wentzlaff, Students for Peace, Univ. of Minnesota-Duluth
481. West Shore Unitarian Universalist Church Social Action Committee, Rocky River, OH
482. Don White, Peace and Justice Activist, Los Angeles, CA
483. Craig Wiesner, President, MicahsCall.org, Palo Alto, CA*
484. David Wilson, Nicaragua Solidarity Network of Greater New York*, NY,NY
485. Marcy Winograd, President, Progressive Democrats of Los Angeles*, Los Angeles, CA
486. Dorothy Wolden, Events Coordinator for the Northland Chapter of Grandmothers for Peace and former Douglas County Board Supervisor, WI
487. Women Against War, Capital District, New York
488. Women for Democracy and Fair Elections, Chicago, IL
489. Women’s International League for Peace and Freedom, Peninsula Branch, Palo Alto, CA
490. Women’s International League for Peace and Freedom, Pittsburgh Chapter, Pittsburgh, PA
491. Women’s International League for Peace and Freedom, U.S. Section; Philadelphia, PA
492. Kent Wong, Founding President of the Asian Pacific American Labor Alliance, Los Angeles, CA
493. Worker to Worker Solidarity Committee, Tucson, AZ
494. Workers International League (Socialist Appeal)
495. World Prout Assembly, Highland Heights, KY
496. Mark Wutschke, UTLA Board of Directors, Los Angeles, CA
497. Gustav Wynn, Writer & Contributing Editor, OpEd News, NY,NY
498. Carol F. Yost, Member, ADALAH-NY Coalition for Justice in the Middle East* Steering Committee Member, Private Health Insurance Must Go Coalition*
499. Youth for International Socialism
500. Marela Zacarias, Founder of Latinos Against the War, Hartford, CT

George Carlin follows Kurt and Utah shit- pissfuckcuntcocksuckermotherfuckertits


George Carlin died yesterday. Here’s his 2007 bit on Who Owns You.

Transcript of THE SEVEN DIRTY WORDS prepared for FCC:

Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can’t say, that you’re not supposed to say all the time, [’cause] words or people into words want to hear your words.

Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (laughter)

Okay, I was thinking one night about the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever, [‘]cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur)

Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn’t and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself.

The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter)

And now the first thing that we noticed was that word fuck was really repeated in there because the word motherfucker is a compound word and it’s another form of the word fuck. (laughter) You want to be a purist it doesn’t really — it can’t be on the list of basic words.

Also, cocksucker is a compound word and neither half of that is really dirty. The word — the half sucker that’s merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty — dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. “And the cock crowed three times,” heh (laughter) the cock — three times. It’s in the Bible, cock in the Bible. (laughter) And the first time you heard about a cock-fight, remember — What? Huh? naw. It ain’t that, are you stupid? man. (laughter, clapping) It’s chickens, you know, (laughter)

Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it’s not really okay. It’s still a rude, dirty, old kind of gushy word. (laughter)

They don’t like that, but they say it, like, they say it like, a lady now in a middle-class home, you’ll hear most of the time she says it as an expletive, you know, it’s out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling)

Read it! (from audience)

Shit! (laughter) I won the Grammy, man, for the comedy album. Isn’t that groovy? (clapping, whistling) (murmur) That’s true. Thank you. Thank you man. Yeah. (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [‘]cause (laughter) that’s based on people liking it man, yeh, that’s ah, that’s okay man. (laughter) Let’s let that go, man. I got my Grammy. I can let my hair hang down now, shit. (laughter)

Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, will ya? I don’t want to see that shit anymore. I can’t cut that shit, buddy. I’ve had that shit up to here. I think you’re full of shit myself. (laughter) He don’t know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shinola people feel about that (laughter) Hi, I’m the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don’t know whether to shit or wind my watch. (laughter) Guess, I’ll shit on my watch. (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house. (laughter) Up, he’s up shit’s creek. (laughter) He’s had it. (laughter) He hit me, I’m sorry. (laughter)

Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I always like that. He ain’t worth shit in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn’t there. (murmur, laughter)

All the animals — Bull shit, horse shit, cow shit, rat shit, bat shit. (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit. (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit. (laughter)

Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them. (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know. (laughter) Hey, I’m shit-face. (laughter) Shitface, today. (laughter)

Anyway, enough of that shit. (laughter)

The big one, the word fuck that’s the one that hangs them up the most. [‘]Cause in a lot of cases that’s the very act that hangs them up the most. So, it’s natural that the word would, uh, have the same effect. It’s a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it’s easy. Starts with a nice soft sound fuh ends with a kuh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word.

Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter)

It’s an interesting word too, [‘]cause it’s got a double kind of a life — personality — dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We’re going to make love, yeh, we’re going to fuck, yeh, we’re going to fuck, yeh, we’re going to make love. (laughter) we’re really going to fuck, yeah, we’re going to make love. Right?

And it also means the beginning of life, it’s the act that begins life, so there’s the word hanging around with words like love, and life, and yet on the other hand, it’s also a word that we really use to hurt each other with, man.

It’s a heavy. It’s one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can’t make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man.

It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you’ll fuck that engine again. (laughter)

The other shit one was, I don’t give a shit. Like it’s worth something, you know? (laughter) I don’t give a shit. Hey, well, I don’t take no shit, (laughter) you know what I mean? You know why I don’t take no shit? (laughter) [‘]Cause I don’t give a shit. (laughter) If I give a shit, I would have to pack shit. (laughter) But I don’t pack no shit cause I don’t give a shit. (laughter) You wouldn’t shit me, would you? (laughter) That’s a joke when you’re a kid with a worm looking out the bird’s ass. You wouldn’t shit me, would you? (laughter) It’s an eight-year-old joke but a good one. (laughter)

The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three. (laughter)

Fart, we talked about, it’s harmless It’s like tits, it’s a cutie word, no problem.

Turd, you can’t say but who wants to, you know? (laughter) The subject never comes up on the panel so I’m not worried about that one.

Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it’s the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn’t have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We’re going to snatch that pussy and put him in a box and bring him on the airplane. (murmur, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you’re riding into town on a religious feast day. (laughter) You can’t say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close.

Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also. (clapping whistling)

PCMS wildfire initiates Army PHASE 1B

Bridger Fire initiates US Army scorched earth policy
PINON CANYON MANEUVER SITE, Colo- The US Army refused assistance in fighting the PCMS Bridger Fire, and now it’s jumped the Pergatoire River and is leading the aquisition of PARCELS 1B and 2A, a year ahead of the Army’s until now thwarted expansion schedule.

Pictured above is an enhanced diagram of a leaked Army map, revealing the expansion planned to create the USA Joint Combat Training Center which will occupy the full Southeastern corner of Colorado. A legend is posted below.

PCMS (blue) Existing Pinon Canyon Maneuver Site
PHASE 1 (green) years 1&2, Wildlife Buffer
PHASE 1a (purple) year 3
PHASE 1b (maroon) year 3
PHASE 2a (yellow) year 4
PHASE 2b (lavender) years 5-10
PHASE 3a (dark grey) year 11
PHASE 3b (grey) year 12
PARCEL 2 (orange) years 13-16
PARCEL 5 (light grey) years 17-18
JCTC (rose) expansion to Oklahoma and Kansas borders

Anniversary of OK City bombing fiction

Missed this anniversary date April 19, 1995. …13 years later still no real investigation or explanation other than the “lone nut” theory. Although it is fact that multiple bombs were found, then ignored and covered up. Also it is known that FBI withheld thousands of documents in the trial.

Anyone who by now does not understand state sponsored terrorism should look back in history to 1963 when Kennedy and MacNamara would not approve CIA/Army Intelligence Joint Chiefs OPERATION NORTHWOODS, a false flag operation to implement CIA covert acts against Americans, blame them on Fidel Castro, then launch a full scale military invasion of Cuba.

Oklahoma City was a practice run for 9-11 and to begin restricting civil liberties. Operation Northwoods was the template. Ain’t it great living in a country run by Pentagon criminals? I know it’s delusional to think we’ll ever get to the bottom of these events and put the actual perpetrators in jail. A fascist-capitalist system won’t allow that. I just want to pass this info along. For the record.

www.whatreallyhappened.com/RANCHO/POLITICS/OK/ok.html

whatreallyhappened.com/RANCHO/POLITICS/OK/bombs/bombs.html – Proof of Additional Bombs

911research.wtc7.net/non911/oklahoma/index.html – good analysis

911busters.com/OKCB/index.html – Audio of witnesses

americanfreepress.net/html/okc_cover-up_.html

americanfreepress.net/html/okc_bombshell.html

911review.com/precedent/decade/okc.html

www.apfn.org/apfn/okc_coverup.htm

Alex Jones Investigative piece.
www.youtube.com/watch?v=G6m88MAsR8I
– Excellent coverage as the event unfolded. Original new footage etc…

www.serendipity.li/more/ok_bomb.html

www.geocities.com/northstarzone/OKC.html

www.hourofthetime.com/okcbombingcoverup.html

www.stopcovertwar.com/McVeigh.html

www.patshannan.com/gagantwo.html – Pat is director writer of Murder in the Heartland dvd.

okc.digitalstyledesigns.com/movies/CharlesKey1.mov

I can’t get these to work. I get not found or redirected to a postage stamp site. These were sites by people in OK City
www.okctruth.com/
www.okcbombing.org/News Articles/ckey_bio_indepth.htm

1995 interview with Dale Phillips, Charles Key, Chris Emory
www.blackopradio.com/black216a.ram – Part 1
www.blackopradio.com/black216b.ram – Part 2

RELATED MATERIAL:
MP3: Jesse Trentadue on The Alex Jones Show

Nichols Fingers FBI Agent Directing McVeigh in OKC Bombing By Name

New OKC Revelations Spotlight FBI Involvement In Bombing

Ashcroft Gagged Nichols From Exposing McVeigh’s OKC Bombing Conspirators

Letter from Terry Nichols

The Trentadue Files: New documents offer details of the FBI’s secret OKC investigation

FLASHBACK: In the matter of Kenneth Michael Trentadue

FLASHBACK: McVeigh Video Destroys OKC Bombing Official Story

propagandamatrix.com/articles/february2007/230207insidejob.htm

Marx and Steinbeck

Steinbeck Grapes of WrathKarl Marx died today in 1883. Though I consider communism to be largely a failed experiment, I do agree with many of Marx’ tenets. Here is the opening paragraph of The Communist Manifesto:

The history of all hitherto existing society is the history of class struggles. Freeman and slave, patrician and plebian, lord and serf, guild-master and journeyman, in a word, oppressor and oppressed, stood in constant opposition to one another, carried on an uninterrupted, now hidden, now open fight, a fight that each time ended, either in a revolutionary reconstitution of society at large, or in the common ruin of the contending classes.

Today in 1939, John Steinbeck’s The Grapes of Wrath was published. The following passage typifies the message of the book which made Steinbeck and his novel a capitalist-socialist battleground.

One man, one family driven from the land; this rusty car creaking along the highway to the west. I lost my land, a single tractor took my land. I am alone and I am bewildered. And in the night one family camps in a ditch and another family pulls in and the tents come out. The two men squat on their hams and the women and children listen. Here is the node, you who hate change and fear revolution. Keep these two squatting men apart; make them hate, fear, suspect each other…

When word of the book burnings, bannings, denouncements and death threats reached Congress, an Oklahoma representative rose up to “say to you, and to every honest, square-minded reader in America, that the painting Steinbeck made in this book is a lie, a black, infernal creation of a twisted, distorted mind.”

I don’t know if it makes me feel better or worse to know that truth that threatens the status quo has always been suppressed, and its proponents ever maligned. But remember that those on the fringe are the ones whose positions provoke a rethinking of assumptions, who spark epiphanies and change the course of human history. In the immortal words of another rabble rouser, Henry David Thoreau, Let your life be a counter-friction to stop the machine. Yes, let’s!

No more reporting on the beef recall?

Suspect beef product ON HOLD on school shelvesThe largest beef recall in history has taught us what, so far? That 37 million pounds went to the USDA school lunch program, which was distributed to schools unknown. We quietly presume the USDA had been pawning off the questionable product to the poor and dismissible among our population. But why won’t they release the names of the schools? In whispered tones with food program insiders, you learn why. Because the USDA product goes to ALL schools. (NOTE: Corpus Christi School found the recalled meat on their shelves and made the switch to a safer supplier, shouldn’t your school do the same?)

While all or any of the Colorado schools may have taken delivery of the Hallmark suspect product, the USDA school food program in Colorado gets the bulk of its meat from Advanced Meatpacking out of Oklahoma. Advanced is regarded by industry watchers as likely worse than Hallmark. We’re not talking about the tip of an iceberg, we’re [not] talking about the as yet largely unexposed large underbelly of American factory farming.

What’s so bad about US meat that foreign markets won’t buy it? Our government regulators won’t test it adequately. Individual meatpackers who want to submit their product for voluntary testing are prevented by the USDA, for fear of creating a stigma around non-tested meat.

Other countries test their 100% of their herd animals for BSE. They also prohibit the feeding of rendered animals to other animals. This is the process by which BSE spreads. The US does not prohibit the use of rendered feed. US calves are raised on a diet of milk and blood: milk fortified with the blood of their predecessors. It redefines “adulterated” I think.

US methods to prevent mad cow disease resemble more the measures necessary not to see it. The official word is that the USA doesn’t have mad cow disease. Cattle which display the traits resembling mad cow disease in Europe, here are called “downer cows.” Our safety guidelines are thus: keep those cows from reaching the meat packers. Easy enough, unless you run across slaughterhouse workers with the initiate to use forklifts and chains to harvest downed cows like any other. Then you need video cameras to catch them.

But video cameras cannot catch the biggest flaw in this screening process. Most cattle infected with BSE do not begin to show symptoms until after they are two years old. Most cattle in the US reach the slaughterhouse before they are two.

Even with a breach of our paltry preventive procedures, the USDA is still unwilling to say their prescribed screening is insufficient.

Perhaps the USDA fears that implementing European testing standards would reveal a huge chunk of US beef to be tainted with mad cow. This would profoundly impact the food industry and our economy as a whole. Perhaps a few thousand CJD fatalities five years from now is a small price to pay for stability now. Besides, those in the know have money to buy organic beef from verifiable sources. The prosperity of the market has always been borne on the backs and at the expense of the common mortal. CJD means fewer to reach retirement.

Newspapers don’t want to touch this subject, many of their advertisers are restaurants which can’t afford to deal in the more expensive meats. Alternative news-weeklies rely on supermarkets for their distribution sites.

(NOTE: Except Ralph Routon and the Independent, March 6)

No one wants to shake consumer confidence in the food supply. The problem extends beyond beef, beyond poultry, beyond farmed fish, beyond ocean fisheries, beyond imported produce, beyond domestic agribusiness, beyond pesticides, irradiation and biogenetics. So the media is not going to start with any of it. As it is with the American health care system, your health is up to you.

By the way, most of the meat being recalled has already been consumed. Of what’s left, the USDA is only asking schools to set it aside for the time being. It is being neither recalled, nor destroyed. Probably it would be too alarming to ask cafeteria workers to destroy what only a day before they had been serving up for their kids for years.

This is good news for you, if you want to find out which schools were serving the bad meat. You still have a chance to call those responsible for the food service at your child’s school. Public or private, I assure you the probability is similar. Ask them if they’ve got the recalled Hallmark stock on hold.

Evo Morales on Jon Stewart’s Daily Show

My wife loves this guy and his name because his name, Evo Morales, translates as… ‘Eve Morals’. A boy named Evo in Bolivia might have a life just a little like a boy named Sue in Oklahoma would! Who knows? Here he is on Jon Stewart’s Daily Show

Maybe Ahmadinejad should have done that program instead of visiting Columbia University? He could have done some jokes along the lines of….

There was an Imam, Pastor, and Rabbi who all went out to lunch together with God and here’s what they all ordered….

Jon Stewart certainly would have treated him with respect and dignity instead of trying to incite a war.

Alcatraz of the Rockies

Supermax fortress in Florence ColoradoWho’s being kept at SUPERMAX in Florence Colorado? Here’s a Frommer’s guide to the celebrity enemies of the state, actually an abridged list:

Ted Kaczynski -the Unabomber

Terry Nichols -1995 Oklahoma City bombing conspirator

Eric Rudolph -abortion-clinic bomber

Ramzi Ahmed Yousef -1993 bombing of the World Trade Center

Wadih El-Hage -1998 bombings of U.S. embassies in East Africa

Omar Abdel-Rahman -blind sheik convicted of plot to blow up New York City landmarks

Richard Reid -“shoe bomber”

Zacarias Moussaoui -9/11 conspirator

Antonio Guerrero -alleged spy, Cuban Five

Not on the list: Manuel Noriega, Kenneth Lay or OJ Simpson.

COINTELPRO report presented to UN

Report presented to the UN High Commissioner for Human Rights in September 2001. Authored by Paul Wolf.

COINTELPRO: The Untold American Story

By Paul Wolf with contributions from Robert Boyle, Bob Brown, Tom Burghardt, Noam Chomsky, Ward Churchill, Kathleen Cleaver, Bruce Ellison, Cynthia McKinney, Nkechi Taifa, Laura Whitehorn, Nicholas Wilson, and Howard Zinn.

Presented to U.N. High Commissioner for Human Rights Mary Robinson at the World Conference Against Racism in Durban, South Africa by the members of the Congressional Black Caucus attending the conference: Donna Christianson, John Conyers, Eddie Bernice Johnson, Barbara Lee, Sheila Jackson Lee, Cynthia McKinney, and Diane Watson, September 1, 2001.

Table of Contents

Overview
Victimization
COINTELPRO Techniques
Murder and Assassination
Agents Provocateurs
The Ku Klux Klan
The Secret Army Organization
Snitch Jacketing
The Subversion of the Press
Political Prisoners
Leonard Peltier
Mumia Abu Jamal
Geronimo ji Jaga Pratt
Dhoruba Bin Wahad
Marshall Eddie Conway
Justice Hangs in the Balance
Appendix: The Legacy of COINTELPRO
CISPES
The Judi Bari Bombing
Bibliography

Overview

We’re here to talk about the FBI and U.S. democracy because here we have this peculiar situation that we live in a democratic country – everybody knows that, everybody says it, it’s repeated, it’s dinned into our ears a thousand times, you grow up, you pledge allegiance, you salute the flag, you hail democracy, you look at the totalitarian states, you read the history of tyrannies, and here is the beacon light of democracy. And, of course, there’s some truth to that. There are things you can do in the United States that you can’t do many other places without being put in jail.

But the United States is a very complex system. It’s very hard to describe because, yes, there are elements of democracy; there are things that you’re grateful for, that you’re not in front of the death squads in El Salvador. On the other hand, it’s not quite a democracy. And one of the things that makes it not quite a democracy is the existence of outfits like the FBI and the CIA. Democracy is based on openness, and the existence of a secret policy, secret lists of dissident citizens, violates the spirit of democracy.

Despite its carefully contrived image as the nation’s premier crime fighting agency, the Federal Bureau of Investigation has always functioned primarily as America’s political police. This role includes not only the collection of intelligence on the activities of political dissidents and groups, but often times, counterintelligence operations to thwart those activities. The techniques employed are easily recognized by anyone familiar with military psychological operations. The FBI, through the use of the criminal justice system, the postal system, the telephone system and the Internal Revenue Service, enjoys an operational capability surpassing even that of the CIA, which conducts covert actions in foreign countries without having access to those institutions.

Although covert operations have been employed throughout FBI history, the formal COunter INTELligence PROgrams (COINTELPRO’s) of the period 1956-1971 were the first to be both broadly targeted and centrally directed. According to FBI researcher Brian Glick, “FBI headquarters set policy, assessed progress, charted new directions, demanded increased production, and carefully monitored and controlled day-to-day operations. This arrangement required that national COINTELPRO supervisors and local FBI field offices communicate back and forth, at great length, concerning every operation. They did so quite freely, with little fear of public exposure. This generated a prolific trail of bureaucratic paper. The moment that paper trail began to surface, the FBI discontinued all of its formal domestic counterintelligence programs. It did not, however, cease its covert political activity against U.S. dissidents.” 1

Of roughly 20,000 people investigated by the FBI solely on the basis of their political views between 1956-1971, about 10 to 15% were the targets of active counterintelligence measures per se. Taking counterintelligence in its broadest sense, to include spreading false information, it’s estimated that about two-thirds were COINTELPRO targets. Most targets were never suspected of committing any crime.

The nineteen sixties were a period of social change and unrest. Color television brought home images of jungle combat in Vietnam and protesters and priests burning draft cards and American flags. In the spring and summer months of 1964, 1965, 1966, 1967 and 1968, massive black rebellions swept across almost every major US city in the Northeast, Midwest and California. 2 Presidents Johnson and Nixon, and many others feared violent revolution and denounced the protesters. President Kennedy had felt the opposite: “Those who make peaceful revolution impossible will make violent revolution inevitable.”

The counterculture of the sixties, and the FBI’s reaction to it, were in many ways a product of the 1950s, the so-called “Age of McCarthyism.” John Edgar Hoover, longtime Director of the FBI, was a prominent spokesman of the anti-communist paranoia of the era:

The forces which are most anxious to weaken our internal security are not always easy to identify. Communists have been trained in deceit and secretly work toward the day when they hope to replace our American way of life with a Communist dictatorship. They utilize cleverly camouflaged movements, such as peace groups and civil rights groups to achieve their sinister purposes. While they as individuals are difficult to identify, the Communist party line is clear. Its first concern is the advancement of Soviet Russia and the godless Communist cause. It is important to learn to know the enemies of the American way of life. 3

Throughout the 1960s, Hoover consistently applied this theory to a wide variety of groups, on occasion reprimanding agents unable to find “obvious” communist connections in civil rights and anti-war groups. 4 During the entire COINTELPRO period, no links to Soviet Russia were uncovered in any of the social movements disrupted by the FBI.

The commitment of the FBI to undermine and destroy popular movements departing from political orthodoxy has been extensive, and apparently proportional to the strength and promise of such movements, as one would expect in the case of the secret police organization of any state, though it is doubtful that there is anything comparable to this record among the Western industrial democracies.

In retrospect, the COINTEPRO’s of the 1960s were thoroughly successful in achieving their stated goals, “to expose, disrupt, misdirect, discredit, or otherwise neutralize” the enemies of the State.

Victimization

The most serious of the FBI disruption programs were those directed against “Black Nationalists.” Agents were instructed to undertake actions to discredit these groups both within “the responsible Negro community” and to “Negro radicals,” also “to the white community, both the responsible community and to `liberals’ who have vestiges of sympathy for militant black nationalists simply because they are Negroes…”

A March 4th, 1968 memo from J Edgar Hoover to FBI field offices laid out the goals of the COINTELPRO – Black Nationalist Hate Groups program: “to prevent the coalition of militant black nationalist groups;” “to prevent the rise of a messiah who could unify and electrify the militant black nationalist movement;” “to prevent violence on the part of black nationalist groups;” “to prevent militant black nationalist groups and leaders from gaining respectability;” and “to prevent the long-range growth of militant black nationalist organizations, especially among youth.” Included in the program were a broad spectrum of civil rights and religious groups; targets included Martin Luther King, Malcolm X, Stokely Carmichael, Eldridge Cleaver, and Elijah Muhammad.

A top secret Special Report 5 for President Nixon, dated June 1970 gives some insight into the motivation for the actions undertaken by the government to destroy the Black Panther party. The report describes the party as “the most active and dangerous black extremist group in the United States.” Its “hard-core members” were estimated at about 800, but “a recent poll indicates that approximately 25 per cent of the black population has a great respect for the BPP, incuding 43 per cent of blacks under 21 years of age.” On the basis of such estimates of the potential of the party, counterintelligence operations were carried out to ensure that it did not succeed in organizing as a substantial social or political force.

Another memorandum explains the motivation for the FBI operations against student protesters: “the movement of rebellious youth known as the ‘New Left,’ involving and influencing a substantial number of college students, is having a serious impact on contemporary society with a potential for serious domestic strife.” The New Left has “revolutionary aims” and an “identification with Marxism-Leninism.” It has attempted “to infiltrate and radicalize labor,” and after failing “to subvert and control the mass media” has established “a large network of underground publications which serve the dual purpose of an internal communication network and an external propaganda organ.” Its leaders have “openly stated their sympathy with the international communist revolutionary movements in South Vietnam and Cuba; and have directed others into activities which support these movements.”

The effectiveness of the state disruption programs is not easy to evaluate. Black leaders estimate the significance of the programs as substantial. Dr. James Turner of Cornell University, former president of the African Heritage Studies Association, assessed these programs as having “serious long-term consequences for black Americans,” in that they “had created in blacks a sense of depression and hopelessness.” 6

He states that “the F.B.I. set out to break the momentum developed in black communities in the late fifties and early sixties”; “we needed to put together organizational mechanisms to deliver services,” but instead, “our ability to influence things that happen to us internally and externally was killed.” He concludes that “the lack of confidence and paranoia stimulated among black people by these actions” is just beginning to fade.

The American Indian Movement, arguably the most hopeful vehicle for indigenous pride and self-determination in the late 20th century, was also destroyed. As AIM leader Dennis Banks has observed:

“The FBI’s tactics eventually proved successful in a peculiar sort of way. It’s remarkable under the circumstances – and a real testament to the inner strength of the traditional Oglalas – that the feds were never really able to divide them from us, to have the traditionals denouncing us and working against us. But, in the end, the sort of pressure the FBI put on people on the reservation, particularly the old people, it just wore ’em down. A kind of fatigue set in. With the firefight at Oglala, and all the things that happened after that, it was easy to see we weren’t going to win by direct confrontation. So the traditionals asked us to disengage, to try and take some of the heaviest pressure off. And, out of respect, we had no choice but to honor those wishes. And that was the end of AIM, at least in the way it had been known up till then. The resistance is still there, of course, and the struggle goes on, but the movement itself kind of disappeared.” 7

The same can be said for socialist movements targeted by COINTELPRO. Alone among the parliamentary democracies, the United States has no mass-based socialist party, however mild and reformist, no socialist voice in the media, and virtually no departure from Keynesian economics in American universities and journals. The people of the United States have paid dearly for the enforcement of domestic privilege and the securing of imperial domains. The vast waste of social wealth, miserable urban ghettos, the threat and reality of unemployment, meaningless work in authoritarian institutions, standards of health and social welfare that should be intolerable in a society with such vast productive resources — all of this must be endured and even welcomed as the “price of freedom” if the existing order is to stand without challenge.

COINTELPRO Techniques

From its inception, the FBI has operated on the doctrine that the “preliminary stages of organization and preparation” must be frustrated, well before there is any clear and present danger of “revolutionary radicalism.”

At its most extreme dimension, political dissidents have been eliminated outright or sent to prison for the rest of their lives. There are quite a number of individuals who have been handled in that fashion.

Many more, however, were “neutralized” by intimidation, harassment, discrediting, snitch jacketing, a whole assortment of authoritarian and illegal tactics.

Neutralization, as explained on record by the FBI, doesn’t necessarily pertain to the apprehension of parties in the commission of a crime, the preparation of evidence against them, and securing of a judicial conviction, but rather to simply making them incapable of engaging in political activity by whatever means.

For those not assessed as being in themselves, necessarily a security risk, but engaged in what the Bureau views to be politically objectionable activity, those techniques might consist of disseminating derogatory information to the target’s family, friends and associates, visiting and questioning them, basically, making it clear that the FBI are paying attention to them, to try to intimidate them.

If the subject continues their activities, and particularly if they respond by escalating them, the FBI will escalate its tactics as well. Maybe they’ll be arrested and prosecuted for spurious reasons. Maybe there will be more vicious rumors circulated about them. False information may be planted in the press. The targets’ efforts to speak in public are frustrated, employers may be contacted to try to get them fired. Anonymous letters have been sent by the FBI to targets’ spouses, accusing them of infidelity. Others have contained death threats.

And if the subject persists then there will be a further escalation.

According to FBI memoranda of the 1960s, “Key black activists” were repeatedly arrested “on any excuse” until “they could no longer make bail.” The FBI made use of informants, often quite violent and emotionally disturbed individuals, to present false testimony to the courts, to frame COINTELPRO targets for crimes they knew they did not commit. In some cases the charges were quite serious, including murder.

Another option is “snitch jacketing” – making the target look like a police informant or a CIA agent. This serves the dual purposes of isolating and alienating important leaders, and increasing the general level of fear and factionalism in the group.

“Black bag jobs” are burglaries performed in order to obtain the written materials, mailing lists, position papers, and internal documents of an organization or an individual. At least 10,000 American homes have been subjected to illegal breaking and entering by the FBI, without judicial warrants.

Group membership lists are used to expand the operation. Anonymous mailings of newspaper and magazine articles may be mailed to group members and supporters to convince them of the error of their ways. Anonymous or spurious letters and cartoons are sent to promote factionalism and widen rifts in or between organizations.

According to the FBI’s own records, agents have been directed to use “established local news media contacts” and other “sources available to the Seat of Government” to “disrupt or neutralize” organizations and to “ridicule and discredit” them.

Many counterintelligence techniques involve the use of paid informants. Informants become agents provocateurs by raising controversial issues at meetings to take advantage of ideological divisions, by promoting emnity with other groups, or by inciting the group to violent acts, even to the point of providing them with weapons.

Over the years, FBI provocateurs have repeatedly urged and initiated violent acts, including forceful disruptions of meetings and demonstrations, attacks on police, bombings, and so on, following an old strategy of Tsarist police director TC Zubatov: “We shall provoke you to acts of terror and then crush you.”

A concise description of political warfare is given in a passage from a CIA paper entitled “Nerve War Against Individuals,” referring to the overthrowing of the government of Guatemala in 1954:

The strength of an enemy consists largely of the individuals who occupy key positions in the enemy organization, as leaders, speakers, writers, organizers, cabinet members, senior government officials, army commanders and staff officers, and so forth. Any effort to defeat the enemy must therefore concentrate to a great extent upon these key enemy individuals.

If such an effort is made by means short of physical violence, we call it “psychological warfare.” If it is focussed less upon convincing those individuals by logical reasoning, but primarily upon moving them in the desired direction by means of harassment, by frightening, confusing and misleading them, we speak of a “nerve war”. 8

The COINTELPROs clearly met the above definition of “nerve wars,” and, in the case of the American Indian Movement in Pine Ridge, South Dakota, the FBI conducted a full-fledged counterinsurgency war, complete with death squads, disappearances and assassinations, recalling Guatemala in more recent years.

The full story of COINTELPRO may never be told. The Bureau’s files were never seized by Congress or the courts or sent to the National Archives. Some have been destroyed. Many counterintelligence operations were never committed to writing as such, or involve open investigations, and ex-operatives are legally prohibited from talking about them. Most operations remain secret until long after the damage has been done.

Murder and Assassination

Among the most remarkable of the COINTELPRO revelations are those relating to the FBI’s attempts to incite gang warfare and murderous attacks on Black Panther leaders. For example, a COINTELPRO memo from FBI Headquarters mailed November 25, 1968, informs recipient offices that:

a serious struggle is taking place between the Black Panther Party (BPP) and the US [United Slaves] organization. The struggle has reached such proportions that it is taking on the aura of gang warfare with attendant threats of murder and reprisals.

In order to fully capitalize upon BPP and US differences as well as to exploit all avenues of creating further dissension in the ranks of the BPP, recipient offices are instructed to submit imaginative and hard-hitting counterintelligence measures aimed at crippling the BPP. 9

According to the national chairman of the US organization, who became a professor at San Diego State, the US and the Panthers had been negotiating to avoid bloodshed: “Then the F.B.I. stepped in and the shooting started.”

A series of cartoons were produced in an effort to incite violence between the Black Panther Party and the US; for example, one showing Panther leader David Hilliard hanging dead with a rope around his neck from a tree. The San Diego office reported to the director that:

in view of the recent killing of BPP member SYLVESTER BELL, a new cartoon is being considered in the hopes that it will assist in the continuance of the rift between BPP and US. This cartoon, or series of cartoons, will be similar in nature to those formerly approved by the Bureau and will be forwarded to the Bureau for evaluation and approval immediately upon their completion.

Under the heading “TANGIBLE RESULTS” the memo continues:

Shootings, beatings, and a high degree of unrest continues to prevail in the ghetto area of southeast San Diego. Although no specific counterintelligence action can be credited with contributing to this over-all situation, it is felt that a substantial amount of the unrest is directly attributable to this program.

Between 1968-1971, FBI-initiated terror and disruption resulted in the murder of Black Panthers Arthur Morris, Bobby Hutton, Steven Bartholomew, Robert Lawrence, Tommy Lewis, Welton Armstead, Frank Diggs, Alprentice Carter, John Huggins, Alex Rackley, John Savage, Sylvester Bell, Larry Roberson, Nathaniel Clark, Walter Touré Pope, Spurgeon Winters, Fred Hampton, Mark Clark, Sterling Jones, Eugene Anderson, Babatunde X Omarwali, Carl Hampton, Jonathan Jackson, Fred Bennett, Sandra Lane Pratt, Robert Webb, Samuel Napier, Harold Russell, and George Jackson.

One of the more dramatic incidents occurred on the night of December 4, 1969, when Panther leaders Fred Hampton and Mark Clark were shot to death by Chicago policemen in a predawn raid on their apartment. Hampton, one of the most promising leaders of the Black Panther party, was killed in bed, perhaps drugged. Depositions in a civil suit in Chicago revealed that the chief of Panther security and Hampton’s personal bodyguard, William O’Neal, was an FBI infiltrator. O’Neal gave his FBI contacting agent, Roy Mitchell, a detailed floor plan of the apartment, which Mitchell turned over to the state’s attorney’s office shortly before the attack, along with “information” — of dubious veracity — that there were two illegal shotguns in the apartment. For his services, O’Neal was paid over $10,000 from January 1969 through July 1970, according to Mitchell’s affidavit.

The availability of the floor plan presumably explains why “all the police gunfire went to the inside corners of the apartment, rather than toward the entrances,” and undermines still further the pretense that the barrage was caused by confusion in unfamiliar surroundings that led the police to believe, falsely, that they were being fired upon by the Panthers inside. 10

Agent Mitchell was named by the Chicago Tribune as head of the Chicago COINTELPRO directed against the Black Panthers and other black groups. Whether or not this is true, there is substantial evidence of direct FBI involvement in this Gestapo-style political assassination. O’Neal continued to report to Agent Mitchell after the raid, taking part in meetings with the Hampton family and their discussion with their lawyers.

There has as yet been no systematic investigation of the FBI campaign against the Black Panther Party in Chicago, as part of its nationwide program against the Panthers.

Malcolm X was supposedly murdered by former colleagues in the Nation of Islam (NOI) as a result of the faction-fighting which had led to his splitting away from that movement, and their “natural wrath” at his establishment of a separate mosque, the Muslim Mosque, Inc.

However, the NOl factionalism at issue didn’t just happen. It had been developed by deliberate Bureau actions, through infiltration and the “sparking of acrimonious debates within the organization,” rumor-mongering, and other tactics designed to foster internal disputes. 11 The Chicago Special Agent in Charge, Marlin Johnson, who also oversaw the assassinations of Fred Hampton and Mark Clark, makes it quite obvious that he views the murder of Malcolm X as something of a model for “successful” counterintelligence operations.

“Over the years considerable thought has been given, and action taken with Bureau approval, relating to methods through which the NOI could be discredited in the eyes of the general black populace or through which factionalism among the leadership could be created. Serious consideration has also been given towards developing ways and means of changing NOI philosophy to one whereby the members could be developed into useful citizens and the organization developed into one emphasizing religion – the brotherhood of mankind – and self improvement. Factional disputes have been developed – most notable being Malcolm X Little.” 12

In an internal FBI monograph dated September 1963 found that, given the scope of support it had attracted over the preceding five years, civil rights agitation represented a clear threat to “the established order” of the U.S., and that Martin Luther “King is growing in stature daily as the leader among leaders of the Negro movement … so goes Martin Luther King, and also so goes the Negro movement in the United States.” This accorded well with COINTELPRO specialist William C. Sullivan’s view, committed to writing shortly after King’s landmark “I Have a Dream” speech during the massive civil rights demonstration in Washington, D.C., on August 28 of the same year:

We must mark [King] now, if we have not before, as the most dangerous Negro in the future of this Nation from the standpoint of communism, the Negro, and national security … it may be unrealistic to limit [our actions against King] to legalistic proofs that would stand up in court or before Congressional Committees.

The stated objective of the SCLC, and the nature of its practical activities, was to organize for the securing of black voting rights across the rural South, with an eye toward the ultimate dismantlement of at least the most blatant aspects of the southern U.S. system of segregation. Even this seemingly innocuous agenda was, however, seen as a threat by the FBI. In mid-September of 1957, FBI supervisor J.G. Kelly forwarded a newspaper clipping describing the formation of the SCLC to the Bureau’s Atlanta field office – that city being the location of SCLC headquarters – informing local agents, for reasons which were never specified, the civil rights group was “a likely target for communist infiltration,” and that “in view of the stated purpose of the organization you should remain alert for public source information concerning it in connection with the racial situation.” 13

The Atlanta field office “looked into” the matter and ultimately opened a COMINFIL (communist-inflitrated group) investigation of the SCLC, apparently based on the fact that a single SWP member, Lonnie Cross, had offered his services as a clerk in the organization’s main office. 14 By the end of the first year of FBI scrutiny, in September of 1958, a personal file had been opened on King himself, ostensibly because he had been approached on the steps of a Harlem church in which he’d delivered a guest sermon by black CP member Benjamin J. Davis. 15 By October 1960, as the SCLC call for desegregation and black voting rights in the south gained increasing attention and support across the nation, the Bureau began actively infiltrating organizational meetings and conferences. 16

By July of 1961, FBI intelligence on the group was detailed enough to recount that, while an undergraduate at Atlanta’s Morehouse College in 1948, King had been affiliated with the Progressive Party, and that executive director Wyatt Tee Walker had once subscribed to a CP newspaper, The Worker. 17

Actual counterintelligence operations against King and the SCLC seem to have begun with a January 8, 1962 letter from Hoover to Attorney General Robert F. Kennedy, contending that the civil rights leader enjoyed a “close relationship” with Stanley D. Levison, “a member of the Communist Party, USA,” and that Isadore Wofsy, “a high ranking communist leader,” had written a speech for King. 18

On the night of March 15-16,1962, FBI agents secretly broke into Levison’s New York office and planted a bug; a wiretap of his office phone followed on March 20. 19 Among the other things picked up by the surveillance was information that Jack ODell, who also had an alleged “record of ties to the Communist party,” had been recommended by both King and Levison to serve as an assistant to Wyatt Tee Walker. 20 Although none of these supposed communist affiliations were ever substantiated, it was on this basis that SCLC was targeted within the Bureau’s ongoing COINTELPRO-CP,USA, beginning with the planting of five disinformational “news stories” concerning the organization’s “communist connections” on October 24, 1962. 21 By this point, Martin Luther King’s name had been placed in Section A of the FBI Reserve Index, one step below those individuals registered in the Security Index and scheduled to be rounded up and “preventively detained” in the event of a declared national emergency; Attorney General Kennedy had also authorized round-the-clock surveillance of all SCLC offices, as well as King’s home. 22 Hence, by November 8,1963, comprehensive telephone taps had been installed at all organizational offices, and King’s residence. 23

By 1964, King was not only firmly established as a preeminent civil rights leader, but was beginning to show signs of pursuing a more fundamental structural agenda of social change. Meanwhile, the Bureau continued its efforts to discredit King, maintaining a drumbeat of mass media-distributed propaganda concerning his supposed “communist influences” and sexual proclivities, as well as triggering a spate of harassment by the Internal Revenue Service (IRS). 24 When it was announced on October 14 of that year that King would receive a Nobel Peace Prize as a reward for his work in behalf of the rights of American blacks, the Bureau – exhibiting a certain sense of desperation – dramatically escalated its efforts to neutralize him.

Two days after announcement of the impending award, COINTELPRO specialist William Sullivan caused a composite audio tape to be produced, supposedly consisting of “highlights” taken from the taps of King’s phones and bugs placed in his various hotel rooms over the preceding two years.

The result, prepared by FBI audio technician John Matter, purported to demonstrate the civil rights leader had engaged in a series of “orgiastic” trysts with prostitutes and, thus, “the depths of his sexual perversion and depravity.” The finished tape was packaged, along with an accompanying anonymous letter (prepared by Bureau Internal Security Supervisor Seymore F. Phillips on Sullivan’s instruction), informing King that the audio material would be released to the media unless he committed suicide prior to bestowal of the Nobel Prize.

King, look into your heart. You know you are a complete fraud and a great liability to all of us Negroes. White people in this country have enough frauds of their own but I am sure that they don’t have one at this time that is any where near your equal. You are no clergyman and you know it. I repeat you are a colossal fraud and an evil, vicious one at that. …

King, there is only one thing left for you to do. You know what it is. You have just 34 days in which to do (this exact number has been selected for a specific reason, it has definite practical significant. You are done. There is but one way out for you. You better take it before your filthy, abnormal fraudulent self is bared to the nation. [sic]. 25

Sullivan then instructed veteran COINTELPRO operative Lish Whitson to fly to Miami with the package; once there, Whitson was instructed to address the parcel and mail it to the intended victim. 26 When King failed to comply with Sullivan’s anonymous directive that he kill himself, FBI Associate Director Cartha D. “Deke” DeLoach attempted to follow through with the threat to make the contents of the doctored tape public:

The Bureau Crime Records Division, headed by DeLoach, initiated a major campaign to let newsmen know just what the Bureau [claimed to have] on King. DeLoach personally offered a copy of the King surveillance transcript to Newsweek Washington bureau chief Benjamin Bradlee. Bradlee refused it, and mentioned the approach to a Newsday colleague, Jay Iselin. 27

Bradlee’s disclosure of what the FBI was up to served to curtail the effectiveness of DeLoach’s operation, and Bureau propagandists consequently found relatively few takers on this particular story. More, in the face of a planned investigation of electronic surveillance by government agencies announced by Democratic Missouri Senator Edward V. Long, J. Edgar Hoover was forced to order the rapid dismantling of the electronic surveillance coverage of both King and the SCLC, drying up much of the source material upon which Sullivan and his COINTELPRO specialists depended for “authenticity.”

Still, the Bureau’s counterintelligence operations against King continued apace, right up to the moment of the target’s death by sniper fire on a Memphis hotel balcony on April 4, 1968. 28 By 1969, “[FBI] efforts to ‘expose’ Martin Luther King, Jr., had not slackened even though King had been dead for a year.” 29

Those seeking independence for Puerto Rico were similarly attacked. The Bureau considered independentista leader Juan Mari Bras’ near-fatal heart attack during April of 1964 to have been brought on, at least in part, by an anonymous counterintelligence letter:

[deleted] stated that MARI BRAS’ heart attack on April 21, 1964, was obviously brought on by strain and overwork and opinioned that the anonymous letter certainly did nothing to ease his tensions for he felt the effects of the letter deeply. The source pointed out that with MARI BRAS’ illness and effects of the letter on the MPIPR leaders, that the organization’s activities had come to a near halt.

[paragraph deleted]

It is clear from the above that our anonymous letter has seriously disrupted the MPIPR ranks and created a climate of distrust and dissension from which it will take them some time to recover. This particular technique has been outstandingly successful and we shall be on the lookout to further exploit the achievements in this field. The Bureau will be promptly advised of other positive results of this program that may come to our attention. 30

The pattern remained evident more than a decade later when, after reviewing portions of the 75 volumes of documents the FBI had compiled on him, Mari Bras testified before the United Nations Commission on Decolonization:

[The documents] reflect the general activity of the FBI toward the movement. But some of the memos are dated 1976 and 1977; long after COINTELPRO was [supposedly] ended as an FBI activity … At one point, there is a detailed description of the death of my son, in 1976, at the hands of a gun-toting assassin. The bottom of the memo is fully deleted, leaving one to wonder who the assassin was. The main point, however, is that the memo is almost joyful about the impact his death will have upon me in my Gubernatorial campaign, as head of our party, in 1976. 31

When Mari Bras suffered from an attack of severe depression the same year, the San Juan Special Agent in Charge noted in a memo to FBI headquarters that, “It would hardly be idle boasting to say that some of the Bureau’s activities have provoked the situation of Mari Bras.” Given the context established by the Bureau’s own statements vis a vis Mari Bras, it also seems quite likely that one of the means by which the FBI continued to “exploit its achievements” in “provoking the situation” of the independentista leader was to arrange for the firebombing of his home in 1978.

Lethal COINTELPRO operations against the independentistas continued well into the 1980s. As Alfredo Lopez recounted in 1988:

[O]ver the past fifteen years, 170 attacks – beatings, shootings, and bombings of independence organizations and activists – have been documented … there have been countless attacks and beatings of people at rallies and pickets, to say nothing of independentistas walking the streets. The 1975 bombing of a rally at Mayaguez that killed two restaurant workers was more dramatic, but like the other 170 attacks remains unsolved. Although many right-wing organizations claimed credit for these attacks, not one person has been arrested or brought to trial. 32

A clear instance of direct FBI involvement in anti-independentista violence is the “Cerro Maravilla Episode” of July 25,1978. On that date, two young activists, Arnaldo Dario Rosado and Carlos Soto Arrivi, accompanied a provocateur named Alejandro Gonzalez Malave, were lured into a trap and shot to death by police near the mountain village. Official reports claimed the pair had been on the way to blow up a television tower near Cerro Maravilla, and had fired first when officers attempted to arrest them. A taxi driver who was also on the scene, however, adamantly insisted that this was untrue, that neither independentista had offered resistance when captured, and that the police themselves had fired two volleys of shots in order to make it sound from a distance as if they’d been fired upon. “It was a planned murder,” the witness said, “and it was carried out like that.” What had actually happened became even more obvious when a police officer named Julio Cesar Andrades came forward and asserted that the assassination had been planned “from on high” and in collaboration with the Bureau. This led to confirmation of Gonzalez Molave’s role as an infiltrator reporting to both the local police and the FBI, a situation which prompted him to admit “having planned and urged the bombing” in order to set the two young victim up for execution. In the end, it was shown that:

Dario and Soto [had] surrendered. Police forced the men to their knees, handcuffed their arms behind their backs, and as the two independentistas pleaded for justice, the police tortured and murdered them. 33

None of the police and other officials involved were ever convicted of the murders and crimes directly involved in this affair. However, despite several years of systematic coverup by the FBI and U.S. Justice Department, working in direct collaboration with the guilty officers, ten of the latter were finally convicted on multiple counts of perjury and sentenced to prison terms ranging from six to 30 years apiece. Having evaded legal responsibility for his actions altogether, provocateur Gonzalez Molave was shot to death in front of his home on April 29,1986, by “party or parties unknown.” This was followed, on February 28,1987, by the government’s payment of $575,000 settlements to both victims’ families, a total of $1,150,000 in acknowledgment of the official misconduct attending their deaths and the subsequent investigation(s).

Despite tens of thousands of pages of documentary evidence, the idea that the Bureau would utilize private right-wing operatives and terrorists is a chilling, alien concept to most Americans. Nevertheless, the FBI has financed, organized, and supplied arms to right-wing groups that carried out fire-bombings, burglaries, and shootings. 34

This was the case during the FBI’s COINTELPRO in South Dakota in the 1970’s against the Oglala Sioux Nation and the American Indian Movement. Right-wing vigilantes were used to disrupt the American Indian Movement (AIM) and selectively terrorize and murder the Oglala Sioux people 35, in what could only be described as a counter-insurgency campaign. During the 36 months roughly beginning with the 1973 seige of Wounded Knee and continuing through the first of May 1976, more than sixty AIM members and supporters died violently on or in locations immediately adjacent to the Pine Ridge Reservation. A minimum of 342 others suffered violent physical assaults. As Roberto Maestas and Bruce Johansen have observed:

Using only these documented political deaths, the yearly murder rate on Pine Ridge Reservation between March 1, 1973, and March 1, 1976, was 170 per 100,000. By comparison, Detroit, the reputed “murder capital of the United States,” had a rate of 20.2 in 1974. … The political murder rate at Pine Ridge between March 1, 1973, and March 1, 1976, was almost equivalent to that in Chile during the three years after the military coup supported by the United States deposed and killed President Salvador Allende. 36

To commemorate the 1890 massacre of Wounded Knee, in which 300 Minnecojou Lakota were slaughtered by the U.S. Seventh Cavalry, hundreds of Native Americans from reservations across the West gathered in Wounded Knee, on the Pine Ridge Reservation in South Dakota, during the winter of 1972-73. 37

This situation was already tense due to a series of unsolved murders on the reservation, and a struggle between the administration of the Oglala Sioux tribal president, Dick Wilson, and opposition organizations on the reservation, including AIM. Wilson had been bestowed with a $62,000 Bureau of Indian Affairs (BIA) grant for purposes of establishing a “tribal ranger group” – an entity which designated itself as “Guardians Of the OgIala Nation” (GOONs). Wilson’s “goon squads” patrolled the reservation, unleashing a reign of terror against Wilson’s enemies. When victims attempted to seek the protection of the BIA police, they quickly discovered that perhaps a third of its roster – including its head, Delmar Eastman (Crow), and his second-in-command, Duane Brewer (OgIala) – were doubling as GOON leaders or members. For their part, BIA officials – who had set the whole thing up – consistently turned aside requests for assistance from the traditionals as being “purely internal tribal matters,” beyond the scope of BIA authority.

On Feb 28th, 1973, residents of Wounded Knee, South Dakota found the roads to the hamlet blockaded by GOONs, later reinforced by marshals service Special Operations Group (SOG) teams and FBI personnel. By 10 p.m., Minneapolis SAC Joseph Trimbach had flown in to assume personal command of the GOONs and BIA police, while Wayne Colburn, director of the U.S. Marshals Service, had arrived to assume control over his now reinforced SOG unit. Colonel Volney Warner of the 82nd Airborne Division and 6th Army Colonel Jack Potter – operating directly under General Alexander Haig, military liaison in the Nixon White House – had also been dispatched from the Pentagon as “advisors” coordinating a flow of military personnel, weapons and equipment to those besieging Wounded Knee. As Rex Weyler has noted:

Documents later subpoenaed from the Pentagon revealed that Colonel Potter directed the employment of 17 APCs [armored personnel carriers], 130,000 rounds of M-16 ammunition, 41,000 rounds of M-40 high explosive, as well as helicopters, Phantom jets, and personnel. Military officers, supply sergeants, maintenance technicians, chemical officers, and medical teams remained on duty throughout the 71 day siege, all working in civilian clothes [to conceal their unconstitutional involvement in this “civil disorder”]. 38

On March 5, Dick Wilson – with federal officials present – held a press conference to declare “open season” on AIM members on Pine Ridge, declaring “AIM will die at Wounded Knee.” For their part, those inside the hamlet announced their intention to remain where they were until such time as Wilson was removed from office, the GOONs disbanded, and the massive federal presence withdrawn.

Beginning on March 13, federal forces directed fire from heavy .50 caliber machineguns into the AIM positions. The following month was characterized by alternating periods of negotiation, favored by the army and the marshals – which the FBI and GOONs did their best to subvert – and raging gun battles when the latter held sway. Several defenders were severely wounded in a firefight on March 17, and on March 23 some 20,000 more rounds were fired into Wounded Knee in a 24-hour period.

The FBI’s “turf battle” with the “soft” elements of the federal government rapidly came to a head. On April 23, Chief U.S. Marshal Colburn and federal negotiator Kent Frizzell were detained at a GOON roadblock and a gun pointed at Frizzell’s head. By his own account, Frizzell was saved only after Colburn leveled a weapon at the GOON and said, “Go ahead and shoot Frizzell, but when you do, you’re dead.” The pair were then released. Later the same day, a furious Colburn returned with several of his men, disarmed and arrested eleven GOONs, and dismantled the roadblock. However, “that same night… some of Wilson’s people put it up again. The FBI, still supporting the vigilantes, had [obtained the release of those arrested and] supplied them with automatic weapons.” The GOONs were being armed by the FBI with fully automatic M-16 assault rifles, apparently limitless quantifies of ammunition, and state-of-the-art radio communications gear. When Colburn again attempted to dismantle the roadblock:

FBI [operations consultant] Richard [G.] Held arrived by helicopter to inform the marshals that word had come from a high Washington source to let the roadblock stand … As a result the marshals were forced to allow several of Wilson’s people to be stationed at the roadblock and to participate in … patrols around the village. 39

On the evening of April 26, the marshals reported that they were taking automatic weapons fire from behind their position, undoubtedly from GOON patrols. The same “party or parties unknown” was also pumping bullets into the AIM/ION positions in front of the marshals, a matter which caused return fire from AIM. The marshals were thus caught in a crossfire. At dawn on the 27th, the marshals, unnerved at being fired on all night from both sides, fired tear gas cannisters from M-79 grenade launchers into the AIM/ION bunkers. They followed up with some 20,000 rounds of small arms ammunition. AIM member Buddy Lamont (Oglala), driven from a bunker by the gas, was hit by automatic weapons fire and bled to death before medics, pinned down by the barrage, could reach him.

When the siege finally ended through a negotiated settlement on May 7, 1973, the AIM casualty count stood at two dead and fourteen seriously wounded. An additional eight-to-twelve individuals had been “disappeared” by the GOONs. They were in all likelihood murdered and – like an untold number of black civil rights workers in the swamps of Mississippi and Louisiana – their bodies secretly buried somewhere in the remote vastness of the reservation.

Of the 60-plus murders occurring in an area in which the FBI held “preeminent jurisdiction,” not one was solved by the Bureau. In most instances, no active investigation was ever opened, despite eye-witnesses identifying members of the Wilson GOON squad as killers.

U.S. Court of Appeals Judge Gerald Heaney, after reviewing numerous court transcripts and FBI documents, concluded that the United States Government overreacted at Wounded Knee. Instead of carefully considering the legitimate grievances of Native Americans, the response was essentially a military one.

While Judge Heaney believed that the “Native Americans” had some culpability in the firefight that day, he concluded the United States must share the responsibility. It never has. The FBI has never been held accountable or even publicly investigated for what one Federal petit jury and Judge Heaney concluded was complicity in the creation of a climate of fear and terror on the Pine Ridge Reservation.

Other AIM casualties include Richard Oaks, leader of the 1970 occupation of Alcatraz Island by “Indians of All Tribes,” who was gunned down in California the following year. Larray Cacuse, a Navajo AIM leader, was shot to death in Arizona in 1972. In 1979, AIM leader John Trudell, preparing to make a speech in Washington, was told by FBI personnel that, if he gave the speech, there would be “consequences.” Trudell not only made his speech, calling for the U.S. to get out of North America and detailing the nature of federal repression in Indian country, he burned a U.S. flag as well. That night, his wife, mother-in-law, and three children were “mysteriously” burned to death at their home on the Duck Valley Reservation in Nevada.

Agents Provocateurs

Many details are now available concerning these extensive campaigns of terror and disruption, in part through right-wing paramilitary groups organized and financed by the national government, but primarily through the much more effective means of infiltration and provocation of existing groups. In particular, much of the violence that occurred on college campuses can be attributed to government provocateurs.

The Alabama branch of the ACLU argued in court that in May 1970 an FBI agent “committed arson and other violence that police used as a reason for declaring that university students were unlawfully assembled” — 150 students were arrested. The court ruled that the agent’s role was irrelevant unless the defense could establish that he was instructed to commit the violent acts, but this was impossible, according to defense counsel, since the FBI and police thwarted his efforts to locate the agent who had admitted the acts to him. 40

William Frapolly, who surfaced as a government informer in the Chicago Eight conspiracy trial, an active member of student and off-campus peace groups in Chicago, “during an antiwar rally at his college, … grabbed the microphone from the college president and wrestled him off the stage” and “worked out a scheme for wrecking the toilets in the college dorms…as an act of antiwar protest.” 41

One FBI provocateur resigned when he was asked to arrange the bombing of a bridge in such a way that the person who placed the booby-trapped bomb would be killed. This was in Seattle, where it was revealed that FBI infiltrators had been engaged in a campaign of arson, terrorism, and bombings of university and civic buildings, and where the FBI arranged a robbery, entrapping a young black man who was paid $75 for the job and killed in a police ambush. 42

In another case, an undercover operative who had formed and headed a pro-Communist Chinese organization “at the direction of the bureau” reports that at the Miami Republican convention he incited “people to turn over one of the buses and then told them that if they really wanted to blow the bus up, to stick a rag in the gas tank and light it.” They were unable to overturn the vehicle. 43

The Ku Klux Klan

During the 1960’s, the FBI’s role was not to protect civil rights workers, but rather, through the use of informants, the Bureau actively assisted the Ku Klux Klan in their campaign of racist murder and terror.

Church Committee hearings and internal FBI documents revealed that more than one quarter of all active Klan members during the period were FBI agents or informants. 44 However, Bureau intelligence “assets” were neither neutral observers nor objective investigators, but active participants in beatings, bombings and murders that claimed the lives of some 50 civil rights activists by 1964. 44

Bureau spies were elected to top leadership posts in at least half of all Klan units. 45 Needless to say, the informants gained positions of organizational trust on the basis of promoting the Klan’s fascist agenda. Incitement to violence and participation in terrorist acts would only confirm the infiltrator’s loyalty and commitment.

Unlike slick Hollywood popularizations of the period, such as Alan Parker’s film, “Mississippi Burning,” the FBI was instrumental in building the Ku Klux Klan in the South,

“…setting up dozens of Klaverns, sometimes being leaders and public spokespersons. Gary Rowe, an FBI informant, was involved in the Klan killing of Viola Liuzzo, a civil rights worker. He claimed that he had to fire shots at her rather than ‘blow his cover.’ One FBI agent, speaking at a rally organized by the Klavern he led, proclaimed to his followers, ‘We will restore white rights if we have to kill every negro to do it.'” 46

Throughout its history, the Klan has had a contradictory relationship with the national government: as a defender of white privilege and the patriarchal status quo, and as an implicit threat, however provisional, to federal power. Depending on political conditions in society as a whole, vigilante terror can be supplemental to official violence, or kept on the proverbial shortleash. 47 As a surrogate army in the field of terror against official enemies, the Klan enjoys wide latitude. But when it moves into an oppositional mode and attacks key institutions of national power, Klan paramilitarism – but not its overt white supremacist ideology – is treated as an imminent threat to the social order, suppressed, but never destroyed, unlike other COINTELPRO target groups.

These roles are not mutually exclusive. As anti-racist researcher Michael Novick warns: “The KKK and its successor and fraternal organizations are deeply rooted in the actual white supremacist power relations of US society. They exist as a supplement to the armed power of the state, available to be used when the rulers and the state find it necessary.” 48

The Klan’s “supplemental” role, particularly as a private armed force sporadically deployed to arrest the development of movements for Black freedom, is best considered by comparison to other Bureau operations. Unlike other COINTELPROs, the “Klan – White Hate Groups” program was of a different order entirely. Senior FBI management and a majority of agents in the field endorsed the Klan’s values, if not the vigilante character of their tactics; from militaristic anti-communism to extreme racial hatred; from ultra-nationalism to misogynist puritanism. 49

This was evident during the civil rights struggles of the sixties, when Freedom Riders and local community activists directly confronted hostile police forces – many of whom were openly allied with the Klan. Despite clear jurisdictional authority to enforce federal law, the FBI consistently refused to protect civil rights workers under attack across the South. More than once, the Bureau refused to warn those under imminent threat of violence.

FBI inaction in the area of civil rights enforcement wasn’t simply a matter of what the Pike Committee of the House of Representatives dubbed “FBI racism.” Rather, FBI bureaucratic lethargy, when it came to protecting Black lives, underscored its mission against subversion for constituents whose privileges and power were threatened by a militant movement for Black rights. 50

Strikingly different from anti-communist COINTELPROs that enmeshed broad social sectors in a web of entanglements, FBI monitoring of the Klan was strictly confined to the organization itself. No serious efforts were made to explore the supplemental role of White Citizens’ Councils, many of which were active Klan fronts, let alone investigate the obvious and widespread police complicity in racist violence. 51 Bureau surveillance of the Klan was purely passive, hardly the directed aggression reserved for left-wing targets.

In May, 1961, as civil rights activists turned up the heat, the FBI passed information to the Klan about Freedom Rider buses on their way to Birmingham, Alabama. A police sergeant, Thomas Cook, attached to the Birmingham police intelligence branch was plied with reports by Bureau informants. A Klan member himself, Cook furnished this information to Robert Shelton’s Alabama Knights and arranged several meetings to discuss “matters of interest.” Cook supplied Klan leaders with the names of “inter-racial organizations,” the location of meetings, and the membership lists of civil rights groups for circulation in Klan publications. FBI informant Gary Thomas Rowe wrote a confidential memo to the Birmingham Special Agent in Charge (SAC) stating that Cook had handed over inter-office intelligence memos on civil rights activists during a Klan meeting. Rowe insisted that Cook not only gave him relevant information that police had in their files, but urged Rowe to “help himself to any material he thought he would need for the Klan.” 52

According to documents obtained by the American Civil Liberties Union, the Birmingham SAC called Cook and informed him of the progress that Freedom Rider buses had made and when they were scheduled to arrive in the city. According to Rowe, Cook and Birmingham’s public safety director, arch-segregationist Eugene “Bull” Connor conspired with Klan leaders and directly organized physical attacks on Freedom Riders when the buses reached their destination. According to one FBI memo, Connor declared: “By God, if you are going to do this thing, do it right.” 53

In consultation with Shelton’s group, Birmingham police agreed not to show up for 15 or 20 minutes after the buses pulled in, to give Klansmen sufficient time to carry out their attack. Assailants were promised lenient treatment if through some fluke, they managed to get arrested. During a planning meeting that finalized logistical details, Grand Titan Hubert Page advised Klansmen that Imperial Wizard Shelton had spoken with Detective Cook, and was informed that Freedom Rider buses were scheduled to arrive at 11:00 am.

Earlier that day, the KKK intercepted another bus on its way to Birmingham, beating the passengers and setting the vehicle ablaze. As agreed during consultations with Klan leadership, when the buses arrived no police were present at either of Birmingham’s bus terminals, but 60 Klansmen – including Rowe – were waiting. Klansmen attacked civil rights workers, reporters and photographers, viciously beating anyone within reach with chains, pipes and baseball bats.

According to ACLU attorney Howard Simon, “We found that the FBI knew that the Birmingham Police Department was infiltrated by the Klan, that many members of the police department were Klan members, that they knew a person in intelligence was passing information directly to leaders of the Klan, and they also knew their undercover agent had worked out an agreement with the police department to stay away from the terminals. They knew all that and still continued their relationship with the police department.” 54

Though the Bureau claimed that its “Klan – White Hate Groups” COINTELPRO was launched in order to stifle white supremacist activities, the historical record proves otherwise. The more well known, but by no means only examples of Klan terror during the period – the 1963 bombing of the Sixteenth Street Baptist Church that killed four black children; the 1964 murders of civil rights workers Goodman, Chaney and Schwerner in Mississippi: and the 1965 assassination of Viola Liuzzo and her companion near Selma, Alabama, point to knowledge of the crimes, and complicity in subsequent cover-ups by FBI officials.

Bureau informant Gary Thomas Rowe was a central figure in some of the most publicized crimes of the period, indulging in freelance acts of racist terror. He was suspected of involvement in firebombing the home of a wealthy Black Birmingham resident, the detonation of shrapnel bombs in Black neighborhoods and the murder of a Black man during a 1963 demonstration. He became a prime suspect in the Birmingham church bombing after he failed two polygraph tests. His answers were described by investigators as “deceptive” when he denied having been with the Klan group that planted the bomb. 55

Despite enough evidence to open a preliminary investigation, the FBI refused, covering-up for Rowe even when another informant, John Wesley Hall, named him as a member of a three-man Klan security committee holding veto power over all proposed acts of violence. Years later, an independent inquiry uncovered evidence that Hall became a Bureau informant two months after the bombing and despite the fact that a polygraph test convinced the Alabama FBI that he was probably involved in the attack himself, Hall admitted to having moved dynamite for the plot’s ringleader, Robert E. Chambliss, a Klan member since 1924. Even though court testimony and a wealth of evidence linked Hall, Rowe and other members of the Alabama Knight’s to the bombing, the suspects were convicted on a misdemeanor charge – “possession of an explosive without a permit.” It took more than a decade and three bungled investigations to finally convict Chambliss of the crime. 56

In July 1997, almost 35 years after the Sixteenth Street Baptist Church bombing, the FBI re-opened its investigation based on “new information.” However, mainstream news accounts failed to report the pivotal role played by Bureau informants. The Rev. Fred Shuttlesworth, a target of a 1963 Klan assassination plot, believes he knows why only one man was convicted for the bombing. “It is well known,” the 75-year old civil rights leader said, “there was collusion all along between the FBI, local law enforcement and the Klan.” Rev. Shuttlesworth should know: Bureau informant John Wesley Hall was the man who proposed killing the minister. 57

New light was shed on Rowe’s privileged position as an FBI provocateur tasked to “disrupt and neutralize” the civil rights struggle. During a subsequent investigation into the murder of Viola Liuzzo, evidence surfaced that it was Rowe who actually fired the fatal shots that took her life. But instead of prosecuting Rowe, the Bureau placed him in a federal witness protection program. 58

In 1978, Rowe was indicted by an Alabama grand jury as Liuzzo’s killer. But complicity in shielding Rowe and the Bureau from exposure came to light when the contents of a J. Edgar Hoover memo to President Lyndon Johnson became public. Hours after the killings Hoover wrote: “A Negro man was with Mrs. Liuzzo and reportedly was sitting close to her.” In a subsequent memo to aides, Hoover said he informed the President that “she was sitting very, very close to the Negro in the car, that it had the appearance of a necking party.” 59 While providing a glimpse into the pathological nature of Hoover’s racism and misogyny, the Director fails to enlighten us as to the mechanics of a “necking party” during a 100 mph car chase in the dead of night, a “party” by terrorized individuals fleeing armed Klan thugs intent on killing them in cold blood. However twisted, Hoover’s slander was calculated to establish a motive; one that would “justify” Mrs. Liuzzo’s murder on grounds of breaking one of nativism’s primal laws: the prohibition against sex between the races.

On November 3, 1979, a posse organized by Klansmen and neo-Nazis murdered five members of the Communist Workers Party (CWP) in broad daylight. The CWP had organized a “Smash the Klan” demonstration in Greensboro, North Carolina among the city’s mostly black and working class mill workers. CWP members included union organizers and activists who had upset “the fundamental order of things.” 60

An essential component for the operation, organized by night-riding Klansmen, was U.S. Bureau of Alcohol, Tobacco, and Firearms (BATF) agent, Bernard Butkovich. The BATF agent, a Vietnam veteran and demolitions expert undercover in the local branch of the American Nazi Party, helped the Klan obtain automatic weapons, and also in making their escape. 61

The posse had been organized and led by an FBI infiltrator, Edward Dawson. Dawson was also a paid informant for the Greensboro Police Department. 62 Dawson reported to his handlers that eighty-five Klansmen meeting in nearby Lincolnton had expressed their intent to counter-demonstrate on November 3. 63

The night-riders had stated they intended to arm themselves for their counter-demonstration and that Klan leader, Grand Dragon Virgil Griffin, was actively calling out Klansmen from other states to participate. It was also rumored that neo-Nazis from the Winston-Salem area had obtained a machine gun and other weapons. Dawson reported to Greensboro detective Jerry Cooper that Klansmen and neo-Nazis were assembling at the home of a local Klan member and that they were armed. 64

The police/FBI informant had received a copy of the parade route the day before the CWP-initiated march; a map had been supplied by Detective Cooper. Dawson had driven over the parade route three hours earlier with a contingent of out-of-town Klansmen. Dawson also alerted Cooper that the Klansmen and neo- Nazis possessed three handguns and nine long-barrelled rifles, including automatic weapons supplied by BATF agent Bernard Butkovich. 65

Prior to the beginning of the CWP’s march and demonstration, Cooper and other police officials drove by the house where the Klansmen and neo-Nazis were assembling. They jotted down license plate numbers and then declared a lunch break — at approximately 10 a.m. 66 Less than an hour later, Cooper, trailing behind the Klan caravan reported, “shots fired” and then “heavy gunfire.” The tactical squad assigned to monitor the march were still out to lunch. 67

Two other officers, responding to a domestic disturbance call, noted the absence of patrol cars usually assigned to the area. They arrived at the Morningside projects, the site of the CWP march. Officer Wise later reported having received a most unusual call from the police communications center. The officers were asked how long they anticipated being at their call; they were subsequently advised to “clear the area as soon as possible.” 68

Moments later, five demonstrators lay dead, murdered in broad daylight by members of the Ku Klux Klan and the American Nazi Party. 69 According to Michael Novick, the Greensboro massacre “set the tone for neo-Nazi organizing by the KKK and other white supremacists in the ensuing decade.” 70

A subsequent civil suit brought against the neo-Nazis, the Klan and the Greensboro police resulted in a partial award to the surviving family members. FBI and BATF agents walked away scott-free.

The Secret Army Organization

Convinced that the United States was under threat of an imminent communist takeover, Robert DePugh, a disenchanted member of the John Birch Society, founded the Minutemen in the early sixties. Forged as a “last line of defense against communism,” DePugh’s secret warriors were dedicated to building an underground army to fight against “the enemy within.” 71

However absurd this paranoia may appear on the surface, it had serious and deadly consequences for anyone caught in the cross-hairs. Before their undoing in 1969, the result not of a sinister plot by “communist infiltrators in the government,” but because DePugh and others were prepared to rob banks to finance the organization, the Minutemen had built a formidable national network, with thousands of members stockpiling secret arsenals with more than enough firepower to match their feverish rhetoric. In 1966, 19 New York Minutemen were arrested and accused of plotting to bomb three summer camps allegedly used by “Communist, left wing and liberal” groups “for indoctrination purposes.” Subsequent raids uncovered a huge arms cache that included military assault rifles, bombs, mortars, machine guns, grenade launchers and a bazooka.

In February 1970, six Minutemen from four states led by Jerry Lynn Davis held a clandestine summit in northern Arizona. Surveying the ruins, they were convinced that “communist elements” in the Justice Department had destroyed the group. Undeterred by recent events, they formed the nucleus of the Secret Army Organization (SAO).

As conceived by Davis and the others, the SAO would be armed but low-key: a propaganda group with a potential for waging guerrilla war against leftists, should the need arise. Emphasizing regional autonomy and a decentralized structure, they believed they had inoculated themselves against unwanted attention from “communist-controlled” government agencies. Shortly after the meeting, chapters were established in San Diego, Las Vegas, Phoenix and Seattle with promising contacts made in Portland, El Paso, Los Angeles and Oklahoma. 72

A review of events in San Diego, submitted to the Church Committee in June 1975 and based on “pubic admissions of the officers and agents involved, including sworn testimony at various criminal trials and statements given to news reporters and investigators,” 73 describes how the FBI played a central role in the creation of the Secret Army Organization, placing informant Howard Berry Godfrey in a leadership position.

Godfrey, a San Diego fireman, devout Mormon, and self-styled commando, was an FBI informant for more than five years. According to ex-members, it was Godfrey who was the real force behind the SAO. While employed by the FBI, Godfrey selected the organization’s name and defrayed its start-up costs, including expenditures for printing and mailing literature. By September 1971, there were four active cells in San Diego. Little did they know they were under the direction of the FBI, the State’s ultimate “secret army organization.”

San Diego was the center of a thriving activist community committed to a multitude of projects anathema to the nativist right. With 200,000 active-duty soldiers stationed at nearby bases, the Movement for a Democratic Military (MDM) was the outgrowth of antiwar efforts to influence soldiers bound for Vietnam. MDM organizing had made small, but promising chinks in the military’s armor. Campus organizing by the Students for a Democratic Society (SDS), and the emergence of militant Chicano organizations in the area were viewed as serious threats to the successful prosecution of the war. A thriving underground press, in the form of the San Diego Street Journal, was in stark contrast to the conservative and establishment-oriented media. But when the Journal ran a series of exposes on the shady financial empire of Nixon crony, C. Arnholt Smith, the response from the right was swift. It would soon turn violent. 74

Between November 1969 and January 1970, remnants of the Minutemen launched attacks against the Journal. Bullets were fired into the office, paint splashed over furniture, equipment smashed, records and subscription lists stolen, staff cars firebombed, Journal vending machines vandalized. When the newspaper attempted to relocate to new offices, their prospective landlord was arrested by the San Diego police on a fabricated murder charge. Released after an hour, he told the Journal they’d have to look elsewhere. As the SAO gradually came online as a Bureau surrogate, attacks against the newspaper and its staff intensified. 75

Another SAO target was Dr. Peter Bohmer, a radical economics professor at San Diego State University who was popular with students and an articulate spokesperson against the war. Harassed by conservative university bureaucrats who objected to his antiwar activism, Bohmer was fired after a protracted struggle. Predictably, his much-publicized battle with the university drew SAO scrutiny. Beginning in 1971, a vicious campaign was launched against the professor. In April, tear gas crystals were dumped in a car parked in front of his home. On May 4, a muffled voice warned over the phone “the cross hairs are on you.”

In the summer of 1971, San Diego was chosen as the site for the 1972 Republican convention. Harassment against Bohmer increased, punctuated by assaults targeting the antiwar and Chicano movements. 76 Among these acts were destruction of newspaper offices and book stores, firebombing of cars, and the distribution of leaflets giving the address of the collective where anti-war activist Peter Bohmer lived “for any of our readers who may care to look up this Red Scum, and say hello.”

On January 6, 1972 the SAO dramatically upped the ante. Earlier that day SAO cross-hair stickers were plastered on the door of Bohmer’s office; that evening a caller threatened, “This time we left a sticker, next time we may leave a grenade. This is the SAO!”

A few hours later, in a car parked outside Bohmer’s home, SAO soldier George Mitchell Hoover fiddled with a gun. Sitting next to him was Godfrey, the FBI’s informant. Aiming a 9mm Polish Radom pistol, Hoover fired two shots into the house; he would have fired a third but the weapon jammed. The first bullet struck San Diego Street Journal reporter Paula Tharp, shattering her elbow. The second shot narrowly missed Shari Whitehead and lodged in a window frame above her head. Two shell-casings matching the slug removed from Tharp’s arm were retrieved from the street.

The next day Godfrey turned over the gun to his FBI control agent, Steve Christiansen, a devout Mormon and dedicated anti-communist himself. The Special Agent hid the weapon under his couch for more than six months while the San Diego police conducted a half-hearted investigation. Though guilty of covering-up a criminal act, Christiansen insisted that Bureau superiors knew he was hiding the gun and fully approved of his actions to protect “confidential sources.” 77

Although the Tharp shooting generated considerable publicity, and even some pressure to make arrests, the San Diego police responded with the absurd story that Bohmer carried out the attack himself in an effort “to attract sympathy for his cause.” 78

Relentless harassment continued throughout the spring of 1972; more firebombings, threatening phone calls, more cross-hair stickers, just another day at the office for right-wing counterguerrillas. But then the group made a fatal mistake, one that would cost them dearly.

On June 19, 1972, William Yakopec entered the Guild Theater, a local porno house; concealed under his jacket was a bomb. After he pried a cover loose from a vent at the rear of the building, he hurriedly left the premises. Moments later a powerful explosion ripped through the theater, destroying the screen, blowing debris 60 feet into the air and showering the terrified audience with concrete shards and two-by-fours. Unfortunately for Yakopec and the SAO, a deputy district attorney and a San Diego cop were in the audience, conducting an “investigation” to determine whether I am Curious (Yellow) met pertinent criteria to be banned as pornography. 79

Though city fathers had no problem when right-wing militias directed their wrath at suitable targets, taking out a cop and a district attorney was too much even in San Diego. Rubien D. Brandon, the officer who narrowly escaped being blown to kingdom come, angrily phoned the FBI and demanded the name of their informer. A week later, seven members of the SAO were behind bars. Yakopec was charged with the Guild Theater bombing, George Hoover with the Tharp shooting and the group’s nominal leader, Jerry Lynn Davis, with receiving stolen property and possession of illegal explosives. Reluctantly, the Bureau realized the time had come to shut the project down.

During the investigation of the Guild Theater bombing, the Yakopec home and those of other SAO members were raided by police. Investigators recovered two half pound blocks of C-4 plastique, HDP primers, blasting caps, 30-40 feet of fuses, SAO literature, stacks of cross-hair stickers ready to go and a small arsenal of weapons, including an unopened case of M-16’s valued at more than $60,000. During a simultaneous raid on the home of Genevieve and Richard Fleury, police seized ammunition, dozens of revolvers, lugers and eight bandoliers containing more than a thousand rounds of 30-caliber bullets. It was later revealed that some of these munitions had been transferred to the SAO from the Marine base at Camp Pendelton by a right-wing physician, Dr. Harold Young. Ex-Minuteman Dino Martinelli claimed he had been involved in the transfer and that the SDPD and FBI were aware of the thefts but did nothing. 80

American Civil Liberties Union (ACLU) attorney Frederick Hetter discovered during a subsequent investigation “that [FBI infiltrator] Godfrey supplied 75% of the money for the SAO” in order for the terrorist army to acquire the weapons. 81

What were the results of exposing the extensive links between federal authorities and the Secret Army Organization? While Yakopec, Hoover and Davis went to prison, Godfrey, the FBI’s point-man, was rewarded with a job in the state fire marshal’s office. Agent Christiansen left the Bureau shortly after his role in the affair came to light. Refusing to talk, Christiansen would only tell reporters that “The FBI is taking good care of us.” 82 The FBI then continued with other illegal intelligence and terror programs directed against Bohmer and associates, including several assassination plots. Not one FBI agent or informer has been prosecuted.

Snitch Jacketing

Under the guidance of the FBI, informants were often able to work their way into positions of power, such as was the case with Chicago-BPP Chief of Security William O’Neal, or American Indian Movement bodyguard Douglas Durham. Such individuals were often considered valuable due to the (FBI-supplied) information they were able to provide. Besides misleading and provoking the infiltrated groups, another technique used by informants was to “snitch jacket” genuine activists, to make them appear to be the informants. One such person was Kwame Toure, formerly Stokely Carmichael.

Utilizing the services of an infiltrator who had worked his way into a position as the Student Nonviolent Coordinating Committee leader’s bodyguard, the Bureau deliberately created the false appearance that Stokely Carmichael was himself an operative. 83 In a memo dated July 10, 1968, the SAC, New York, proposed to Hoover that:

… consideration be given to convey the impression that CARMICHAEL is a CIA informer. One method of accomplishing [this] would be to have a carbon copy of an informant report supposedly written by CARMICHAEL to the CIA carefully deposited in the automobile of a close Black Nationalist friend … It is hoped that when the informant report is read it will help promote distrust between CARMICHAEL and the Black Community … It is also suggested that we inform a certain percentage of reliable criminal and racial informants that “we have it from reliable sources that CARMICHAEL is a CIA agent. It is hoped that the informants would spread the rumor in various large Negro communities across the land. 84

Pursuant to a May 19,1969 Airtel from the SAC, San Francisco, to Hoover, the Bureau then proceeded to “assist” the BPP in “expelling” Carmichael through the forgery of letters on party letterhead. The gambit worked, as is evidenced in the September 5, 1970 assertion by BPP head Huey P. Newton: “We … charge that Stokely Carmichael is operating as an agent of the CIA.” 85

Snitch jacketing has even resulted in the target’s death. This appears to have occurred in 1975 in the case of Anna Mae Pictou Aquash, a young Micmac woman working with the American Indian Movement on the Pine Ridge Reservation. According to attorney Bruce Ellison,

“I represented a young mother and AIM member named Anna Mae Pictou on weapons charges. She told me after her arrest that the FBI threatened to see her dead within a year unless she cooperated against members of AIM. In an operation [similar to those] previously used against members of the Black Panther Party, the FBI, through an informant named Doug Durham who had infiltrated AIM leadership, began a rumor that she was an informant.

“Six months later her body was found on the Pine Ridge Reservation. The FBI said she died of exposure. They cut off her hands, claiming that this was necessary to identify her, and buried her under the name of Jane Doe.

“We were able to get her body exhumed, and a second, independent autopsy revealed that rather than dying of exposure, that someone had placed a pistol to the back of her head and pulled the trigger. When I asked for her hands after the second autopsy, because she was originally not buried with her hands, an FBI agent went to his car and came back and handed me a box, and with a big smile on his face he said, ‘You want her hands? Here.'” 86

The FBI agents involved then used the morgue photos of Aquash to frighten another victim, Myrtle Poor Bear, a woman with a history of deep psychological disorder, for which she had undergone extensive treatment, explaining to their captive that she’d end up “the same way” unless she did exactly what they wanted. Poor Bear quoted Agent Wood as informing her, in specific reference to Aquash, that “they [Price and Wood] could get away with killing because they were agents.” Poor Bear was coerced into giving false testimony which led to the extradition of Leonard Peltier, who remains a political prisoner to this day. [See “Political Prisoners” section].

The Subversion of the Press

In 1960, the FBI implemented a formal COINTELPRO with the expressed intent of destroying pro-independence groups in Puerto Rico. In doing so, the Bureau engaged in the same kind of political warfare that was used by the United States in Chile and elsewhere in Latin America. In an August 4, 1960 memorandum to the Special Agent in Charge, San Juan, Director Hoover wrote:

“In considering this matter, you should bear in mind the Bureau desires to disrupt the activities of these organizations and is not interested in mere harrassment.” 87

San Juan complied, at least on the level of planting disinformation in the island press. Agents systematically planted articles and editorials, often containing malicious gossip concerning independentista leaders’ alleged sexual or financial affairs, in “friendly” newspapers, and dispensed “private” warnings to the owners of island radio stations that their FCC licenses might be revoked if pro independence material were aired.

There is clear evidence that agents “talked to” the owners of radio stations WLEO in Ponce, WKFE in Yauco and WJRS in San German about their licensing as early as 1963. One result was cancellation of the one hour daily time-block allotted to “Radio Bandera,” a program produced by the APU. Such tactics to deny a media voice to independentistas accord well with other, more directly physical methods employed during the 1970s, after COINTELPRO supposedly ended:

[There was] the bombing of Claridad [daily paper first of the MPIPR and then the PSP] printing presses which has occurred at least five times in the present decade. Although the MPI [now PSP] usually furnished the police with detailed information as to the perpetrators of these acts, not even one trial has ever been held on this island in connection with these bombings, nor even one arrest made. The same holds true for a 1973 bombing of the National Committee of the [PIP]. 88

In the same memo, Hoover recommended gearing up the COINTELPRO, using existing infiltrators within “groups seeking independence for Puerto Rico” as agents provocateurs. The director felt that “carefully selected informants” might be able to raise “controversial issues” within independentista formations. Further, he pointed out that such individuals might be utilized effectively to create situations in which “nationalist elements could be pitted against the communist elements to disrupt some of the organizations, particularly the MPIPR and … FUPI.”

Hoover also instructed that “the San Juan Office should be constantly alert for articles extolling the virtues of Puerto Rico’s relationship to the United States as opposed to complete separation from the United States, for use in anonymous mailings to selected subjects in the independence movement who may be psychologically affected by such information.”

The Bureau engaged in intensive investigation of independentista leaders both on the island and in New York in order to ascertain their “weaknesses” in terms of “morals, criminal records, spouses, children, family life, educational qualifications and personal activities other than independence activities.” The findings, however flimsy or contrived, were pumped into the media, disseminated as bogus cartoons or “political broadsides,” and/or surfaced within organizational contexts by provocateurs, all with the express intent of setting the leaders one against the other and at odds with their respective organizational memberships.

When evidence to support such redbaiting contentions could not be discovered, the FBI’s COINTELPRO specialists simply made it up:

MPIPR leaders, cognizant of the basic antipathy of Puerto Ricans, predominantly Roman Catholic, to communism, have consistently avoided, at times through public statements, any direct, overt linkage of the MPIPR to communism … The [San Juan office] feels that the above situation can be exploited by means of a counterintelligence letter, purportedly by an anonymous veteran MPIPR member. This letter would alert MPIPR members to a probable Communist takeover of the organization. 89

Not only did the Bureau’s systematic denial of media access to, spreading of disinformation about, and fostering of factionalism within the independentista movement have the effect of negating much of the movement’s electoral potential within the island arena itself, such tactics also subverted other initiatives to resolve the issue of Puerto Rico’s colonial status in a peaceful fashion. This concerns in particular a plebescite called for July 23, 1967. During the ten months prior to the scheduled referendum to determine the desires of the Puertorriqueno public with regard to the political status of their island, the Bureau went far out of its way to spread confusion. The COINTELPRO methods used included creation of two fictitious organizations Grupo pro-Uso Voto del MPI (roughly, “Group within the MPIPR in Favor of Voting to Achieve Independence”) and the “Committee Against Foreign Domination of the Fight for Independence” – as the medium through which to misrepresent independentista positions “from the inside .” One outcome was that Puertorriqueno voters increasingly shied away from the apparently jumbled and bewildering independentista agenda and “accepted” continuation of a “commonwealth” status under U.S. domination.

A 1967 Airtel from SAC, San Juan to J. Edgar Hoover describes a portion of the COINTELPRO methods to be used in subverting the 1967 United Nations plebescite to determine the political status of Puerto Rico:

[deleted] of the MPIPR Youth, has a personal following, and the San Juan Office feels that if [deleted] can be split from the MPIPR at this time, enough of the MPIPR Youth members would be sufficiently confused and disgruntled to effectively neutralize the MPIPR during the critical period just prior to the plebescite scheduled for July 23, 1967. 90

With this accomplished, the Bureau set about seeing to it the independentistas remained artificially discredited (and the overall Puertorriqueño option to mount a coherent effort to protest or reconvene the plebescite truncated) by shifting responsibility for the disaster onto its foremost victims:

It might be desirable to blame the communist bloc and particularly Cuba for the failure of the United Nations and to criticize Mari Bras and others for isolating the Puerto Rican independence forces from the democratic countries. 91

The other COINTELPRO’s also made use the news media. One tragic story concerns Jean Seberg, a well known actress and white supporter of the Black Panther Party. According to former FBI agent M. Wesley Swearingen, who worked in Los Angeles at the time, a culture of racism had so permeated the Bureau and its field offices that the agents seethed with hatred toward the Panthers and the white women who associated with them.

“In the view of the Bureau,” Swearingen reported, “Jean was giving aid and comfort to the enemy, the BPP … The giving of her white body to a black man was an unbearable thought for many of the white agents. An agent [allegedly Richard W. Held] was overheard to say, a few days after I arrived in Los Angeles from New York, ‘I wonder how she’d like to gobble my dick while I shove my .38 up that black bastard’s ass [a reference to BPP theorist Raymond “Masai” Hewitt, with whom Seberg was reputedly having an affair].” 92

On May 27, 1970, when Seberg was in her fifth month of pregnancy, Held sent a telegram to headquarters requesting approval to plant a story with Hollywood gossip columnists to the effect that Seberg was pregnant, not by her husband, Romaine Gary, but by a Panther. Held’s idea was approved, although implementation was to be postponed “approximately two additional months,” to protect the secrecy of a wiretap the Bureau had installed in the LA and San Francisco BPP headquarters, and until the victim’s “pregnancy would be more visible to everyone.” Hoover felt that Seberg should be “neutralized” because she’d been a financial supporter of the Black Panther Party.

The schedule was apparently accelerated, because on June 6, Held sent Hoover a letter and attached newspaper clipping demonstrating the “success” of his COINTELPRO action: a column by Joyce Haber, which had run in the Los Angeles Times on May 19. Known by the FBI to have been emotionally unstable and in the care of a psychiatrist before the operation began, Seberg responded to the “disclosure” by attempting suicide with an overdose of sleeping pills. This in turn precipitated the premature delivery of her fetus; it died two days later. Seberg held a press conference, and brought the fetus in a glass jar, to prove that it was white.

Henceforth, a shattered Jean Seberg was to regularly attempt suicide on or near the anniversary of her child’s death. In 1979, she was successful. Romaine Gary, her ex-husband, who all along maintained he was the father of the child, followed suit shortly thereafter. There is no indication that this was ever considered to be anything other than an extremely successful COINTELPRO operation.

The FBI actively promoted the idea that the Panthers and other black nationalists were anti-Semitic, in order to weaken their support “among liberal and naive elements.” In one indicent, the New York Office sent anonymous letters to Rabbi Meir Kahane of the right-wing Jewish Defense League to try to provoke a response against the BPP. In reference to a July 25, 1969 FBI report entitled, “JEWISH DEFENSE LEAGUE, RACIAL MATTERS” the New York Field Office proposed:

Referenced report has been reviewed by the NYO in an effort to target one individual within the Jewish Defense League (JEDEL) who would be the suitable recipient of information furnished on an anonymous basis that the Bureau wishes to disseminate and/or use for future counterintelligence purposes.

NY is of the opinion that the individual within JEDEL who would most suitably serve the above stated purposed would be Rabbi MEIR KAHANE, a Director of JEDEL. It is noted that Rabbi KAHANE’s background as a writer for the NY newspaper “Jewish Press” would enable him to give widespread coverage of anti-Semetic [sic] statements made by the BPP and other Black Nationalist hate groups not only to members of JEDEL but to other individuals who would take cognizance of such statements. …

In view of the above comments the following is submitted as the suggested communication to be used to establish rapport between the anonymous source and the selected individual associated with JEDEL:

Dear Rabbi Kahane:

I am a negro man who is 48 years old and served his country in the U.S. Army in WW2 and worked as a truck driver with “the famous red-ball express” in Gen. Eisenhour’s Army in France and Natzi Germany. One day I had a crash with the truck I was driving, a 2 1/2 ton truck, and was injured real bad. I was treated and helped by a Jewish Army Dr. named “Rothstein” who helped me get better again.

Also I was encouraged to remain in high school for two years by my favorite teacher, Mr. Katz. I have always thought Jewish people are good and they have helped me all my life. That is why I became so upset about my oldest son who is a Black Panther and very much against Jewish people. My oldest son just returned from Algiers in Africa where he met a bunch of other Black Panthers from all over the world. He said to me that they all agree that the Jewish people are against all the colored people and that the only friends the colored people have are the Arabs.

I told my child that the Jewish people are the friends of the colored people but he calls me a Tom and says I’ll never be anything better than a Jew boy’s slave.

Last night my boy had a meeting at my house with six of his Black Panther friends. From the way they talked it sounded like they had a plan to force Jewish store owners to give them money or they would drop a bomb on the Jewish store. Some of the money they will get will be sent to the Arabs in Africa.

They left books and pictures around with Arab writing on them and pictures of Jewish soldiers killing Arab babys. I think they are going to give these away at Negro Christian Churchs.

I thought you might be able to stop this. I think I can get some of the pictures and books without getting myself in trouble. I will send them to you if you are interested.

I would like not to use my real name at this time.

A friend”

It is further suggested that a second communication be sent to Rabbi KAHANE approximately one week after the above described letter which will follow the same foremat [sic], but will contain as enclosures some BPP artifacts such as pictures of BOBBY SEALE, ELDRIDGE CLEAVER, a copy of a BPP newspaper, etc. It is felt that a progression of letters should then follow which would further establish rapport with the JEDEL and eventually culminate in the anonymous letter writer requesting some response from the JEDEL recipient of these letters. 93

Political Prisoners

When the government can select a person for criminal persecution because of their political activity, when they can fabricate evidence against that person and suppress evidence proving that fabrication, and prosecute a person and put them in prison for any amount of time, let alone for life, then you have a political prisoner.

There are numerous people in American jails who’ve dedicated their lives to the transformation of their country, who put the benefit of their communities ahead of themselves, who believed that transformation was not only possible but they were willing to die for it. They were willing to die to end brutality, racism, economic discrimination, imperialism, war.

In the case of AIM, this has meant the wholesale jailing of the movement’s leadership. Virtually every known AIM leader in the United States has been incarcerated in either state or federal prisons since (or even before) the organization’s formal emergence in 1968, some repeatedly. After the 1973 siege of Wounded Knee the FBI caused 542 separate charges to be filed against those it identified as “key AIM leaders.” This resulted in 15 convictions, all on such petty or contrived offenses as “interfering with a federal officer in the performance of his duty.” Russell Means was faced with 37 felony and three misdemeanor charges, none of which held up in court. Organization members often languished in jail for months as the cumulative bail required to free them outstripped resource capabilities of AIM and supporting groups.

Another example was the “Panther 21” case, which in 1969 was the longest criminal trial in New York history. It took the jury just ninety minutes to reach “not guilty” verdicts in all of the 156 of the charges against the thirteen defendants who ultimately stood trial.

A fair accounting of American political prisoners is beyond the scope of this report, which seeks only to draw attention to the problem of political repression and the tactics used, making note of a few illustrative cases.

Leonard Peltier

U.S. Court of Appeals Judge Gerald Heaney, after reviewing numerous court transcripts and FBI documents, concluded that the United States Government overreacted at Wounded Knee. Instead of carefully considering the legitimate grievances of Native Americans, the response was essentially a military one which culminated in a deadly firefight on June 26, 1975, between Native Americans and FBI agents and U.S. Marshals.

While Judge Heaney believed that the “Native Americans” had some culpability in the firefight that day, he concluded the United States must share the responsibility. It never has. The FBI has never been held accountable or even publicly investigated for what one Federal petit jury and Judge Heaney concluded was complicity in the creation of a climate of fear and terror on the Pine Ridge Reservation.

The resulting firefight near Oglala was preceded by FBI documents internally declaring AIM to be one of the most dangerous organizations in the country and a threat to national security. It followed by two months the issuing of a position paper entitled “FBI Paramilitary Operations in Indian Country,” a how-to plan for dealing with AIM in the battlefield. It used such terms as “neutralization,” which in the document was defined as “shooting to kill.” It included the role of the then-Nixon White House in handling complaints as to such military tactics being utilized domestically.

It followed by one month the build-up of FBI personnel on the Pine Ridge Reservation with mostly SWAT team members from various divisions of the FBI. It followed by three weeks an inspection tour of the reservation by senior FBI officials and the reporting of concern by those officials for the widespread support enjoyed by AIM in the outlying communities on the Pine Ridge Reservation, such as Oglala.

The FBI headquarters document further referred to an area near Oglala which reportedly contained bunkers and would require the use of paramilitary forces to assault. Three weeks later a firefight broke out on the ranch of elders Cecelia and Harry Jumping Bull which lasted for nearly nine hours. FBI documents describe as many as 47 people being involved in the battle with SWAT teams of the FBI, the Bureau of Indian Affairs, and State police agencies.

Three young men lost their lives that day, each shot in the head, two FBI agents and one AIM member. Members of the American Indian Movement, before they escaped, sat and prayed for the three men who died that day. The FBI has always only considered that only two men died that day, their own agents.

One of the agents had in his briefcase a map of the reservation. It had the Jumping Bull ranch circled with the word “bunkers” written next to it. The bunkers turned out to be aged and crumbling root cellars.

Leonard Peltier and other AIM members from outside the reservation had come into the Jumping Bull area to join other local AIM members because the climate of violence on the reservation had gotten so intense that people felt the need to gain assistance from the outside, so men and women came in, including Leonard Peltier, and they brought with them their single-shot 22’s and their rusted shotguns and a few hunting rifles that they were able to get, and they were in a camp on the Jumping Bull ranch.

The government used the incident to increase its campaign of disruption and destruction of the American Indian Movement. FBI agents, dressed and equipped like combat soldiers, searched homes and questioned Pine Ridge residents at gunpoint. Armored vehicles patrolled the reservation, as did SWAT teams and National Guard helicopters.

This was accompanied by a public disinformation campaign by the FBI, designed to make Oglala residents and their guests appear to be the aggressors and, in fact, terrorists. The U.S. Commission on Civil Rights would soon report, “It is patently clear that many of the statements released to the media regarding the incident are either false, unsubstantiated, or directly misleading.”

Noting Leonard Peltier’s regular presence and involvement in AIM activities throughout the country, the FBI targeted him for prosecution from the desks of its agents. According to FBI documents, about two and a half weeks after the firefight, the Bureau was going to, in its own words, “develop information to lock Peltier into the case,” and it set out to do so.

The FBI eventually charged four AIM members, including Peltier, with the killing of the agents. No one has ever been prosecuted for the killing of AIM member Joe Stuntz that day.

After hearing testimony of numerous eyewitnesses to the violence directed at AIM members by the goon squad and the Federal Bureau of Investigation, two of Leonard Peltier’s codefendants were acquitted on self-defense grounds by an all-white jury in the conservative town of Cedar Rapids, Iowa — truly a remarkable thing, but people who were willing to keep their eyes and their ears open and listen to the truth, and were able, by a judge who had the courage and willingness to learn himself, to allow this evidence to be presented.

However, after those acquittals, the FBI analyzed why these two men, these two long-haired indian militant men could be acquitted by an all-white jury, and decided a new judge was needed. FBI documents show that in a meeting in Washington, D.C. at FBI headquarters, there was a decision made to “put the full prosecutive weight of the Federal Government” against Leonard Peltier.

Evidence shows the government used now admittedly false eyewitness affidavits to extradite Peltier from Canada. This would catch the attention of Amnesty International and the Eighth Circuit Court of Appeals, but only a little bit.

The Court of Appeals would call such conduct “a clear abuse of the investigative process by the FBI” and give credence to the claims of indian people that if the government is willing to fabricate evidence to extradite a person in this country, it is willing to fabricate evidence to convict those branded as the enemy. Well, absolutely true, but Leonard Peltier remains in prison.

At Peltier’s trial the government presented evidence and argued to the jury that he personally shot and killed the agents. To do this, the government presented ballistics evidence purportedly connecting a shell casing found near the agents’ bodies with a rifle said to be possessed by Peltier on that day, and the coerced and fabricated eyewitness account of a terrified teenager, claiming that the agents followed Peltier in a van, precipitating the firefight in Oglala.

Documents obtained under the Freedom of Information Act show that the ballistics evidence was a fraud; that the rifle could not have fired the expended casing found near the body. Further, the FBI had suppressed evidence showing the agents followed a pickup, not a van, into the compound, and thought someone else, not Peltier, was in that vehicle.

Citing the case of Leonard Peltier as an example, Amnesty International has called for an independent inquiry into the use of our criminal justice system for political purposes by the FBI and other intelligence agencies in this country. Amnesty cited similar concerns for other members of AIM and other victims of the COINTELPRO-type operations by the FBI.

Upon disclosure of these documents, a renewed effort in a new trial was sought from the courts. While concluding that the suppressed evidence “casts a strong doubt” on the government’s case, the appellate courts denied relief. The U.S. Attorney’s office has now admitted in court that it had no credible evidence Leonard Peltier killed the agents, and speciously claimed it never tried to prove it did. Under our system, if there is a reasonable doubt, then Leonard Peltier is not guilty, yet he has been in prison for nearly 25 years for a crime he did not commit.

The FBI still withholds thousands of pages of documents in this case, claiming in many instances that disclosure would compromise the national security. In the absence of such disclosure, no further efforts in a new trial are possible. And Leonard Peltier is not alone in his imprisonment for his political activities.

Mumia Abu Jamal

In the case of Mumia Abu-Jamal, neutralization occurred by falsely creating the appearance that he was in commission of a crime he did not commit, to put him in prison. The cost of political activism can include judicial railroading into the electric chair, or the gas chamber or lethal injection.

It is unquestionable that from a very early age, Mumia Abu-Jamal was specifically targeted for neutralization by the Federal Bureau of Investigation and the Philadelphia Police, and that the pattern of police activity evident in that targeting, was continued, as it was in a number of comparable cases, so long as he maintained political activism, and this creates the basis to believe that he was in fact framed for the crime.

Mumia was deprived a fair trial, in which key witnesses were not allowed to testify, exculpatory evidence was excluded, and a key witness had been arrested numerous times for prostitution, opening the possibility that her testimony was paid or coerced. Although no motive was ever shown for why Mumia would have killed a police officer, there was a certainly a motive to neutralize and frame him.

Geronimo ji Jaga Pratt

Elmer Gerard (“Geronimo” or “G” ji Jaga) Pratt was an active member of the Los Angeles Black Panther Party (LA-BPP) Chapter during the counterintelligence campaign which resulted in the “shooting war” described earlier, between the US organization and the Panthers.

When Bunchy Carter and Ed Huggins were assassinated by US gunmen on January 17, 1969, it was discovered that Carter had prepared an audio tape for such an eventuality, designating Pratt his successor as head of the LA-BPP. Pratt was also named by Carter to succeed himself and Huggins as chapter representative on the national Panther Central Committee. 94 It was at precisely this point that he appears to have been personally targeted for “neutralization” through the application of COINTELPRO techniques.

Pratt was designated a “Key Black Extremist” by the L.A. Bureau office and placed in the National Security Index. 95 As a consequence, he was targeted not only for neutralization by the FBI, but, as former Panther infiltrator Louis Tackwood had pointed out, this automatically placed him “on the wall’ of the Los Angeles Police Department’s (LAPD) Criminal Conspiracy Section (CCS) “glass-house” (headquarters) as an individual to be eliminated by local police action. As the informant explained the CCS operation:

The room is broken up into divisions, see my point? Black, white, chicano and subversives. Everybody’s there. And every last one of the walls has pictures of them. This one black, the middle all white, and the chicanos all on this side. Most of the files are on the walls, you see? … They got everybody. Panthers, SDS, Weathermen. Let me explain to you. They got a national hookup. You see my point? And because of this national power, they are the only organization in the police department that has a liaison man, that works for the FBI, and the FBI has a liaison man who works with the CCS.” 96

The inevitable consequence of this was that the new LA-BPP was placed under intensely close surveillance by the FBI 97 and subjected to a series of unfounded but serious arrests by the Bureau’s local police affiliates at CCS.

A conspiracy investigation of Pratt was opened with regard to the robbery of a Bank of America facility already known by the Bureau to have been carried out by US members. 98 Pratt was also made the subject of a personalized series of COINTELPRO cartoons designed to make him a target for the attentions of US.

This was followed very closely by a Bureau effort to ensnarl both Pratt and Roger Lewis in a violation of the 1940 Smith Act and plotting of “insurrection.” 99

Four days after a similar raid on a Panther apartment in Chicago (the raid which left Mark Clark and Fred Hampton dead), forty men of the Special Weapons and Tactics (SWAT) squad, with more than a hundred regular police as backup, raided the Los Angeles Panther headquarters at 5:30 in the morning … (No suggestion has been made that the two raids were linked. But it’s interesting to note that Fred Hampton had been in Los Angeles one or two days before his death, meeting with Geronimo Pratt, whom Tackwood says was the main target of the second raid.) The Panthers chose to defend themselves, and for four hours they fought off police, refusing to surrender until press and public were on the scene. Six of them were wounded. Thirteen were arrested. Miraculously, none of them were killed. 100

The similarities between the Chicago and Los Angeles raids are undeniable, with a special local police unit closely linked to the FBI involved in both assaults, spurious warrants seeking “illegal weapons” utilized on both occasions, predawn timing of both raids to catch the Panthers asleep and a reliance upon overwhelming police firepower to the exclusion of all other methods. Both raids occurred in the context of an ongoing and highly energetic anti-BPP COINTELPRO, and – as in the Hampton assassination – bullets were fired directly into Pratt’s bed. Unlike the Chicago leader, however, Pratt was sleeping on the floor, the result of spinal injuries sustained in Vietnam. 101

Pratt was explicitly singled out for neutralization by the head of the Bureau’s LA-COINTELPRO section, Richard Wallace Held – the son of Richard G. Held, who orchestrated the coverup of FBI involvement in the Hampton-Clark assassinations. 102

In both instances, the FBI had managed to place an infiltrator/provocateur very high within the local BPP chapter – O’Neal in Chicago, in Los Angeles it was Melvin “Cotton” Smith, number three man in the LA-BPP, who provided detailed floorplans, including sleeping arrangements of the Panther facility, prior to the raid. 103 And, in both cases, surviving Panthers were immediately arrested for their “assault upon the police.” 104

When the resultant case against the L.A. Panthers was finally prosecuted in July, 1971:

… there was a “surprise” development. Melvin “Cotton” Smith turned up as a star witness for the prosecution. According to Deputy District Attorney Ronald H. Carroll, Smith had turned State’s evidence to escape prosecution … [However] on November 22, 1971, Tackwood testified … he had started working for [CCS Sergeant R.G.] Farwell in the fall of 1969, before the December 8 raid, and had been told by Farwell that [FBI infiltrator] Cotton Smith was to be Tackwood’s contact. Since Smith’s testimony was crucial to the State’s case, Tackwood’s exposure of Smith’s real role was a devastating blow to the prosecution. 105

One consequence of this revelation was that, after eleven days of deliberation, the jury returned acquittals or failed to reach any verdict whatsoever relative to charges of conspiring to assault and murder police officers brought against all thirteen Panther defendants. Oddly, nine of the defendants, including Pratt, were convicted of the relatively minor and technical charge of conspiring to possess illegal weapons. 106 In addition:

In order for the armed police assault on the Panther headquarters to have been justified, the police contention that the Panthers had fired on them first would have had to have been true, in which case at least some of the Panthers would have been guilty of conspiracy to commit murder and assault charges … The failure of the jury to return guilty verdicts on these charges represented a total repudiation of the CCS [and FBI] “conspiracy” theory that led to the raids on December 8. 107

On December 18, 1968, two black men robbed and shot a white couple, Caroline and Kenneth Olsen, on a Santa Monica, California tennis court. Caroline Olsen died one week later.

Pratt was accused of “the tennis court murder” in a letter dated August 10, 1969, addressed to LAPD Sergeant Duwayne Rice by an “underworld informant” and marked “Do Not Open Except In Case of My Death.” Although the informant had not died, Rice opened and read the accusation, and turned it over to CCS detective Ray Callahan for presentation to a grand jury which secretly indicted Pratt.

The informant would later testify at trial that Pratt, in direct personal conversation with him, had “bragged” of the crime. He further testified that a .45 calibre Colt automatic seized by the LAPD, belonging to Pratt but not ballistically matching the tennis court murder weapon, was actually the gun in question, Pratt having “changed the barrel” in order to alter its ballistic pattern. A second informant, who did not testify, corroborated this testimony. 108

The supposed informant corroboration testimony, it was later revealed, was obtained from Cotton Smith, already unmasked as an infiltrator/provocateur during the 1971 shootout trial and thus unable to credibly take the stand in the Olsen murder case. In 1985, Smith totally recanted his allegations against Pratt, stating unequivocally that the former Panther leader had been “framed,” but by “the FBI rather than local police”; he specifically named LA FBI COINTELPRO operative George Aiken as having been instrumental in the affair. 109

Kenneth Olsen, the surviving victim, identified Pratt as the murderer in open court, as did Barbara Reed, a shopkeeper who had seen the gunmen prior to the shooting. Mitchell Lachman, who had been near the tennis court on the evening of the murder, testified the gunmen fled in a vehicle matching the description of Pratt’s white over red GTO convertible.

However, both Olsen and the District Attorney omitted mention of the fact that he had positively identified another man – Ronald Perkins – in a police lineup very shortly after the fact, on December 24, 1968; they had similarly neglected to mention that LAPD personnel had “worked with” Olsen from photo spreads for some months prior to the trial, with an eye toward obtaining the necessary ID of Pratt. 110 Again, both the prosecutors and Mrs. Reed, the other witness who offered a positive ID on Pratt, “forgot” comparable police coaching, and all parties to the State’s case somehow managed to overlook the fact that both Olsen and Reed had repeatedly described both gunmen as “clean shaven,” while Pratt was known to have worn a mustache and goatee for the entirety of his adult life. 111 This leaves Lachman’s testimony that the assailants fled the scene in a white-over-red convertible “like” (but not necessarily) Pratt’s; even if it were the same car, it was well established – and never contested by the State – that virtually the whole LA-BPP had use of the vehicle during the period in question. 112

Pratt’s defense was that he was in Oakland, some 400 miles north of Santa Monica, attending a BPP national leadership meeting on the evening in question. Presentation of this alibi was, however, severely hampered by the refusal of many of those also in attendance – such as David, June, and Pat Hilliard, Bobby and John Seale, Nathan Hare, Rosemary Gross and Brenda Presley (all of the Newton faction) – to testify on his behalf. 113 Kathleen Cleaver, also in attendance at the meeting, did testify that Pratt was in Oakland from December 13-25, 1968, but even her efforts to do so had been hampered by COINTELPRO letters to her husband “explaining” that it was “too dangerous” for her to return to the United States during the trial. 114 With the weight of testimony heavily on the side of the prosecution, Pratt was convicted of first degree murder on July 28, 1972 and sentenced to seven years to life. 115

There were other problems with the case which went beyond Pratt’s inability to assemble defense witnesses. For instance, it did occur to the defense that if the FBI were tapping the phones of the BPP national offices in Oakland during December of 1968 – as seems likely – the Bureau itself might well be able to substantiate Pratt’s whereabouts on the crucial night. The FBI, however, submitted at trial that no such taps or bugs existed, an assertion which was later shown to be untrue. 116

The Bureau then refused to release its logs from the wiretaps, on “national security” grounds, until forced to do so by an FOIA suit brought by attorneys Jonathan Lubell, Mary O’Melveny and William H. O’Brien. 117 At that point (1981), the transcripts were delivered, minus precisely the records covering the period of time which might serve to establish Pratt’s innocence; “The FBI has indicated that the transcripts of the conversations recorded by these telephone taps have been lost or destroyed,” wrote the frustrated judge. 118

The State’s star witness, who first accused Pratt of the tennis court murder in his letter to Rice, testified to Pratt’s “confession” of the crime (i.e., “bragging”) and finally reconciled the prosecution’s ballistics difficulties, was none other than the infiltrator/provocateur, expelled from the BPP by Pratt, Julius C. (aka Julio) Butler. At the trial, the prosecution went considerably out of its way to bolster Butler’s credibility before the jury by “establishing” that the witness was not a paid FBI informant:

Q: And when you were working for the Black Panther Party, were you also working for law enforcement at the same time?

A: No.

Q: You had severed any ties you had with law enforcement?

A: That’s correct.

Q: Have you at any time since leaving the Sheriffs Department worked for the FBI or the CIA?

A: No.

Q: Are you now working for the FBI or CIA?

A: No.

This testimony was entered despite the fact that Los Angeles FBI Field Office informant reports concerning one Julius Carl Butler show he performed exactly this function, at least during the period beginning in August of 1969 (the time when he ostensibly made his initial accusation against Pratt) until January 20, 1970 (after Pratt was jailed without bond on the Olsen murder charge). During the whole of 1970, he filed monthly reports with the Bureau, he was “evaluated” by the FBI as an informant during that year, and his informant file was not closed until May of 1972 – immediately prior to his going on the witness stand. 119

Louis Tackwood has consistently contended that Butler was an FBI infiltrator of the BPP from the day he joined the Party in early 1968 and that he actively worked with CCS detectives Ray Callahan and Daniel P. Mahoney to eliminate Pratt. 120

At the trial, the Bureau also submitted that Pratt was not the target of COINTELPRO activity; several hundred documents subsequently released under the FOIA demonstrate this to have been categorically untrue. Further:

On 18 December 1979, eight years after Pratt’s trial, the California Attorney-General’s office filed a declaration in court that his defense camp had been infiltrated by one FBI informant. The Deputy Attorney-General wrote to the court and defense counsel on 28 July 1980, enclosing a copy of a letter of the same date from the Executive Assistant Director of the FBI. This letter revealed that two had been in a position to obtain information about Elmer Pratt’s defense strategy. 121

One reason for the seemingly blanket recalcitrance of the authorities – federal, state and local – in extending even the most elementary pretense of justice in the Pratt case may revolve around his quiet refusal to abandon the political principles which caused him to become a COINTELPRO target in the first place. Whatever the particulars of official motivation in the handling of the Pratt case, it must be assessed within the overall COINTELPRO-BPP context, especially a counterintelligence-related instructional memo, dated October 24, 1968, and sent by Bureau headquarters to all field offices. It reads in part:

Successful prosecution is the best deterrent to such unlawful activities [as dissident political organizing]. Intensive investigations of key activists … are logically expected to result in prosecutions under substantive violation within the Bureau’s jurisdiction. 122

To this, the Church Committee’s rejoinder in its investigation of the Bureau’s COINTELPRO illegalities still seems quite appropriate: “While the FBI considered Federal prosecution a ‘logical’ result, it should be noted that key activists were chosen not because they were suspected of having committed or planning [sic] to commit any specific Federal crime.” 123 After 27 years in prison and five habeus corpus motions, the conviction for the tennis court murder was finally vacated and Geronimo ji Jaga was released.

Dhoruba Bin Wahad

In 1966, the New York City Police Department commenced its own investigation of the Black Panther Party. Detective Ralph White of the New York City Police Department was directed to infiltrate the Black Panther Party and submit daily reports on the Party and its members. The NYPD regularly communicated with police departments throughout the country, sharing information on the BPP, its members and activities.

The NYPD was also working with the FBI on a daily basis. On August 29, 1968 FBI Special Agent Henry Naehle reported on his meeting with a member of an NYPD “Special Unit” investigating the BPP. SA Naehle acknowledged that the FBI?s New York Field Office (NYO) “has been working closely with BSS in exchanging information of mutual interest and to our mutual advantage.”

An FBI “Inspector?s Review” for the first quarter of 1969 shows that the NYPD, in conjunction with the FBI, had an “interview” and “arrest” program as part of their campaign to neutralize and disrupt the BPP. The NYPD advised the FBI that these programs have severely hampered and disrupted the BPP, particularly in Brooklyn, New York, where, for a while, BPP operations were at a complete standstill and in fact have never recovered sufficiently to operate effectively.

A series of FBI documents reveal a joint FBI/NYPD plan to gather information on BPP members and their supporters in late 1968. During an unprovoked attack by off-duty members of the NYPD on BPP members attending a court appearance in Brooklyn, the briefcase of BPP leader David Brothers was stolen by the NYPD and its contents photocopied and given to the FBI. Rather than seeking to prosecute the police officers for this theft, the FBI ordered “a review of these names and telephone numbers [so that] appropriate action will be taken.”

That “appropriate action” included an effort to label Brothers and two other BPP leaders, Jorge Aponte and Robert Collier, as police informants. On December 12, 1968, the FBI?s New York Office proposed circulating flyers warning the community of the “DANGER” posed by Brothers, Collier and Aponte. The NYO proposed that the flyers “be left in restaurants where Negroes are known to frequent (Chock Full of Nuts, etc.)” BSS later told the FBI that its proposal was successful in that David Brothers had come under suspicion by the BPP. An FBI memorandum dated December 2, 1968 captioned “Counterintelligence Program” lists several operations during the previous two-week period. It closes by stating that “every effort is being made in the NYO to misdirect the operations of the BPP on a daily basis.”

In August 1968, Dhoruba Bin Wahad, then known as Richard Dhoruba Moore, joined the BPP, and within a few months was promoted to a position of leadership. He was soon identified by the Bureau and by the NYPD as a “key agitator” and placed in the FBI’s “Security Index”, “Agitator Index,” and “Black Nationalist Photograph Album.” FBI supervisors instructed the NYO to “develop better liaison and closer working relationship with the NYCPD” in their investigation of Dhoruba Bin Wahad.

On April 2, 1969 Bin Wahad and 20 other members of the Black Panther Party were indicted on charges of conspiracy in the so-called “Panther 21” case. A NYPD memorandum notes that the Panther 21 arrests were considered a “summation” of the overt and covert investigation commenced in 1966. In a bi-weekly report to FBI Headquarters listing several counterintelligence operations the FBI reported that

To date, the NYO has conducted over 500 interviews with BPP members and sympathizers. Additionally, arrests of BPP members have been made by Bureau Agents and the NYCPD. These interviews and arrests have helped disrupt and cripple the activities of the BPP in the NYC area. Every effort will be made to continue pressure on the BPP…

In July 1969, the NYPD sent officers to Oakland, California to monitor the Black Panther Party’s nationwide conference calling for community control of police departments. An NYPD memorandum candidly acknowledged that community control of the police, “may not be in the interests of the department.”

Through its warrantless wiretaps of BPP telephones, the FBI learned that the BPP was trying to raise the $100,000 bail that had been set for Bin Wahad, whose release was considered by the BPP to be a priority over the other 20 defendants, due to his leadership role in the organization. Fundraising efforts were impeded by FBI/NYPD counterintelligence operations. For example, following a fund raiser at the home of conductor Leonard Bernstein, the FBI sent falsified letters to those in attendance in order to “thwart the aims and efforts of the BPP in their attempt to solicit money from socially prominent groups…” Unable to raise bail, Dhoruba Bin Wahad spent the next year incarcerated.

The FBI continued to target BPP community programs. For example, the FBI pressured several churches not to institute the BPP’s Free Breakfast for Children Program at their parishes. In September, 1969, an NYPD BSS representative told the FBI that the BPP was disintegrating in New York.

By March of 1970, the BPP had raised enough money to post bail for the most articulate leaders and chose Mr. Bin Wahad for release. The FBI ordered that he be immediately and continuously surveilled and that donors of bail money be identified. Director Hoover reminded his New York Office that the activities of Panther 21 defendants were of “vital interest” to the “Seat of Government”.

Through their warrantless wiretaps of BPP offices and residences, the FBI became aware in May 1970 of dissatisfaction among New York BPP members, including Bin Wahad, with West Coast BPP members. A COINTELPRO operation prepared by the New Haven Field Office and submitted to the FBI’s New York Office consisted of an FBI-fabricated note wherein Bin Wahad accused BPP leader Robert Bay of being an informant.

This successful operation resulted in Dhoruba Bin Wahad’s demotion within the BPP. Aware of his disillusionment, the FBI disseminated information regarding BPP strife to the media and participated in a plan to either recruit Bin Wahad as an informant or have BPP members believe he was an agent for the FBI.

In August 1970, BPP leader Huey P. Newton was released from prison. A plethora of counterintelligence actions followed which sought to make Newton suspicious of fellow BPP members, particularly those, like the Bin Wahad, who were on the East Coast.

By early 1971, the plan bore fruit. On January 28, 1971, FBI Director Hoover reported that Newton had become increasingly paranoid and had expelled several loyal BPP members:

Newton responds violently…The Bureau feels that this near hysterical reaction by the egotistical Newton is triggered by any criticism of his activities, policies or leadership qualities and some of this criticism undoubtedly is result of our counterintelligence projects now in operation.

This operation was enormously successful, resulting in a split within the BPP with violent repercussions. In early January 1971, Fred Bennett, a BPP member affiliated with the New York chapter, was shot and killed, allegedly by Newton supporters. Newton came to believe that Bin Wahad was plotting to kill him. Bin Wahad, in turn, was told by Connie Matthews, Newton?s secretary, that Newton was planning to have Bin Wahad and Panther 21 co-defendants Edward Joseph and Michael Tabor killed during Newton?s upcoming East Coast speaking tour. As a result of the split and fearing for his life, Bin Wahad, along with Tabor and Joseph, were forced to flee during the Panther 21 trial.

On May 13, 1971, the Panther 21, including Dhoruba Bin Wahad, were acquitted of all charges in the less than one hour of jury deliberations, following what was at that time the longest trial in New York City history. BSS Detective Edwin Cooper begrudgingly reported to defendant Michael Codd that the case “was not proven to the jury?s satisfaction.” Alarmed and embarrassed by the acquittal, Director Hoover ordered an “intensification” of the investigations of acquitted Panther 21 members with special emphasis on those, like Bin Wahad, who were fugitives.

On May 19, 1971, NYPD Officers Thomas Curry and Nicholas Binetti were shot on Riverside Drive in Manhattan. Two nights later, two other officers, Waverly Jones and Joseph Piagentini, were shot and killed in Harlem. In separate communiques delivered to the media, the Black Liberation Army claimed responsibility for both attacks.

Immediately after these shootings, the FBI made the investigation of these incidents, called “Newkill,” a part of their long-standing program against the BPP. Before any evidence had been collected, BPP members, in particular those acquitted in the Panther 21 case, were targeted as suspects. Hoover instructed the New York Office to consider [the] possibility that both attacks may be result of revenge taken against NYC police by the Black Panther Party (BPP) as a result of its arrest of BPP members in April, 1969 [i.e. the Panther 21 case].

On May 26, 1971, J. Edgar Hoover met with then President Richard Nixon who told Hoover that he wanted to make sure that the FBI did not “pull any punches in going all out in gathering information…on the situation in New York.” Hoover informed his subordinates that Nixon’s interest and the FBI’s involvement were to be kept strictly confidential.

“Newkill” was a joint FBI/NYPD operation involving total cooperation and sharing of information. The FBI made all its facilities and resources, including its laboratory, available to the NYPD. In turn, NYPD Chief of Detectives Albert Seedman, who coordinated the NYPD’s investigation, ordered his subordinates to give the FBI “all available information developed to date, as well as in future investigations.”

On June 5, 1971, Bin Wahad was arrested during a robbery of a Bronx after hours “social club”, a hangout for local drug merchants. Seized from inside the social club was a .45 caliber machine gun. Although the initial ballistics test on the weapon failed to link it with the Curry-Binetti shooting, the NYPD publicly declared they had seized the weapon used in May 19. The NYPD now had in custody a well-known and vocal Black Panther leader and the alleged weapon linked to a police shooting. His prosecution and conviction would both neutralize an effective leader and justify the failed Panther 21 case. But there was no direct evidence linking Bin Wahad to the shooting.

Pauline Joseph, a diagnosed paranoid schizophrenic, became the prosecution?s star witness. Ms. Joseph first surfaced when she made a phone call to the NYPD on June 12, 1971, supplying her name and address and stating that Bin Wahad and Edward Joseph (a Panther 21 defendant who jumped bail with Bin Wahad) were innocent of the Curry-Binetti shooting. She told the police that Bin Wahad “did not do it, either the Riverside Drive [Curry-Binetti] shooting or the 32nd precinct [Piagentini-Jones] shooting…”

The first person to arrive at Ms. Joseph?s apartment was NYPD Lieutenant Kenneth Sauer, the head of the 24th precinct detective squad. Contrary to her testimony at trial, Ms. Joseph continued to maintain that Bin Wahad was innocent of the Curry-Binetti shooting. Later that day she was interviewed by BSS Detective Edwin Cooper. Joseph repeated that Bin Wahad was innocent.

Ms. Joseph was arrested, and committed as a material witness. For nearly two years she remained in the exclusive custody of the New York County District Attorney?s Office. She was repeatedly interviewed by state and federal authorities.

Ms. Joseph, while in the custody of the District Attorney, was recruited as a “racial informant” for the FBI. She was paid for her services and housed first in a hotel and then in a furnished apartment, paid for by the District Attorney. Pauline Joseph, a diagnosed paranoid schizophrenic, became the prosecution?s star witness in the case.

Dhoruba Bin Wahad was indicted for the attempted murder of Officers Curry and Binetti on July 30, 1971. Although the NYPD and FBI continuously interviewed Ms. Joseph, and prepared written memoranda of those interviews, the Assistant District Attorney represented that, except for a one paragraph statement made on the night of her commitment and her grand jury testimony, there were no prior statements. The text of Ms. Joseph?s initial phone call was withheld by the prosecution through two trials. No notes of memoranda of the initial, exculpatory interviews by Lieutenant Sauer and Detective Cooper were ever provided to Bin Wahad. Neither were reports of subsequent interiews during the two years she was in custody. After three trials, Dhoruba Bin Wahad was convicted of attempted murder and sentenced by Justice Martinisto to the maximum penalty, 25 years to life.

In December 1975, after learning of Congressional hearings which disclosed the FBI’s covert operations against the BPP, Dhoruba Bin Wahad filed a lawsuit in Federal District Court, charging that he had been the victim of numerous illegal and unconstitutional actions designed to “neutralize” him, including the frame-up in the Curry-Binetti case.

In 1980, the FBI and NYPD were ordered by the Court to produce their massive files on Mr. Bin Wahad and the BPP, that they had claimed did not exist. The FBI and NYPD documents revealed that Mr. Bin Wahad was indeed a target of FBI/NYPD covert operations and, for the first time, depicted the FBI’s intimate involvement in the Curry-Binetti investigation. The “Newkill” file, which was finally produced in unredacted form in 1987, after 12 years of litigation, contains numerous reports which should have been provided to Dhoruba Bin Wahad during his trial.

In a decision announced December 20, 1992, Justice Bruce Allen of the New York State Supreme Court ordered a new trial. The court exhaustively analyzed the prosecution?s circumstantial case, particularly the testimony of Pauline Joseph. The court found that the inconsistencies and omissions in the prior statements contradicted testimony “crucial to establishing the People?s theory of the case”. The inconsistencies, said the Court “went beyond mere details” and involve “what one would expect to have been the most memorable aspects of [the night of the shooting]”. On January 19, 1995, the District Attorney moved to dismiss the indictment, acknowledging that they could not prove their case. The indictment was dismissed. After more than 20 years in prison, Mr. Bin Wahad is at liberty today, residing in Accra, Ghana.

The COINTELPRO off-shoot “Newkill” and later “Chesrob” (an FBI acronym named after Assata Shakur, aka Joanne Chesimard) had other targets as well. Members of the Black Panther Party forced underground by Cointelpro-instigated violence were hunted down by local and federal law enforcement officials. In the three years after the 1971 BPP split, BPP members, Harold Russsel, Woody Green, Twyman Meyers and Zayd Shakur were killed during confrontations with law enforcement. Others were captured and charged with crimes. All were tried at a time when the public (and juries) knew nothing of COINTELPRO. During these trials, as in the trials of Dhoruba Bin Wahad and Geronimo Pratt, exculpatory evidence was withheld and other violations of the United States Constitution were committed. However, post-conviction motions on behalf of these former BPP members were unsuccessful and they remain in prison today. They include Anthony Jalil Bottom, Herman Bell, Robert Seth Hayes, Sundiata Acoli, Abdul Majid and Bashir Hameed. Two of these former BPP members died while in prison: Albert Nuh Washington in 2000 and Teddy Jah Heath in 2001. Both spent over 25 years in prison but were denied compassionate release even in their last days.

Marshall Eddie Conway

In 1970, Marshall Eddie Conway was Minister of Defense of the Baltimore chapter of the Black Panther Party. He was also employed by the United States Postal Service. Unbeknownst to Conway, some of the founding members of the Baltimore chapter were undercover officers with the Baltimore Police Department, who reported daily on his activities in the chapter. At the same time, the Federal Bureau of Investigation began its own investigation of Conway, recording his whereabouts, contacting his employers at the Post Office and maintaining “liaison” with the Baltimore Police Department.

On April 23, 1970, a Baltimore Police officer was shot and killed. Later that night, another officer named Nolan was fired upon by an unapprehended Black male. Two men arrested at the scene of the first shooting were allegedly associates of members of the Baltimore BPP chapter. Because of this, the police attributed both incidents to the BPP. Not surprisingly, Nolan then claimed that a picture of Conway, a well-known BPP member, resembled the unapprehended shooter. The next day, Conway was arrested while working at the Post office. He was charged with both the homicide and the attempted homicide of Nolan. Conway was held without bail.

Conway petitioned the court to have either Charles Garry or William Kunstler, two attorneys who consistently represented party members, represent him at his trial. Although both offered their services free of charge, the court denied Conway?s request. Instead, a lawyer was appointed who performed no pre-trial investigation and never met with Conway. Deprived of his rights, Conway chose to absent himself from much of his January, 1971 trial.

But the state’s case, relying solely upon Nolan?s equivocal and highly suspect photo identification, was shaky. To buttress their case, the state called one Charles Reynolds, a known jailhouse informant. He ultimately testified that while he shared a cell with Conway pre-trial, Conway made admissions to him. In fact, as was verified by the court transcript, Conway loudly objected when Reynolds was placed in his cell because everyone knew he was an informant. Reynolds, who was a fugitive from Michigan, was promised release if he testified. When the trial was over, he got his wish.

Represented by inadequate counsel and tried at a time when the existence of COINTELPRO was not known, Conway was convicted and sentenced to life imprisonment. All appeals have been denied and he has been denied parole, as are all “lifers” in the State if Maryland. He has now been incarcerated for over 31 years and is probably the longest held political prisoner in the United States, if not the world.

Justice Hangs in the Balance

Although COINTELPRO was first exposed during the Watergate period, and incomparably more serious than anything charged against Nixon, it was virtually ignored by the national press and journals of opinion. A review of these programs demonstrates the relative insignificance of the charges raised against Nixon and his associates, specifically, the charges presented in the Congressional Articles of Impeachment. 124

In the early 1970s, there occurred a seemingly endless series of revelations about governmental transgressions. A “credibility gap” was engendered by the federal executive branch having been caught lying too many times, too red-handedly and over too many years in its efforts to dupe the public into supporting the U.S. war in Southeast Asia. This had reached epic proportions when Daniel Ellsberg leaked the “Pentagon Papers,” a highly secret government documentary history of official duplicity by which America had become embroiled in Indochina, and caused particularly sensitive excerpts to be published in the New York Times. 125

Then on March 8, 1971, a group calling itself the Citizen’s Commission to Investigate the FBI, broke into an FBI office in a small town called Media, Pennsylvania. They subjected the FBI to what the FBI has been habitually subjecting political dissidents to throughout the course of its history. That is, in Bureau parlance, a black bag job. The information they obtained was widely distributed through left and peace movement channels, and summarized the following week in the Washington Post. 126

An analysis of the documents in this FBI office revealed that 1 percent were devoted to organized crime, mostly gambling; 30 percent were “manuals, routine forms, and similar procedural matter”; 40 percent were devoted to political surveillance and the like, including two cases involving right-wing groups, ten concerning immigrants, and over 200 on left or liberal groups. Another 14 percent of the documents concerned draft resistance and “leaving the military without government permission.” The remainder – only 15% – concerned bank robberies, murder, rape, and interstate theft. 127

“Among the 34 cases [of infiltration] for which some information is available, 11 involved white campus groups, 11, predominantly white peace groups and/or economic groups; 10, black and Chicano groups; and two right-wing groups.” Furthermore, “in two-thirds of the 34 cases considered here, the specious activists appear to have gone beyond passive information gathering to active provocation.” 128

One year later, the political scandal known as Watergate began to unravel, when five men were arrested for breaking into the headquarters of the Democratic National Committee, located in the Watergate apartment and office complex in Washington, D.C. It was soon discovered that one of the men was employed by the Committee to Re-elect the President (CRP or CREEP) and that the break-in had been planned by two others with close ties to the White House.

In this peculiar and potentially volatile set of circumstances, a government-wide effort was undertaken to convince the public that its institutions were fundamentally sound, albeit in need of fine-tuning and a bit of housecleaning. It was immediately announced that U.S. ground forces would be withdrawn from Vietnam as rapidly as possible. Televised congressional hearings were staged to “get to the bottom of Watergate,” a spectacle which soon led to the resignations of a number of Nixon officials, the brief imprisonment of a few of them, and the eventual resignation of the president himself.

The ousting of Richard Nixon for his misdeeds on August 9, 1974 was described in the nation’s press as “a stunning vindication of our constitutional system.” 129 Yet the Watergate affair — allegedly the media’s finest hour — merely demonstrated their continued subservience to power and official ideology. Until the dust had settled over Watergate, there was virtually no mention of the government programs of violence and disruption or comment concerning them, and even after the Watergate affair was successfully concluded, there has been only occasional discussion.

Beginning in 1974, the Senate held hearings to investigate COINTELPRO and other intelligence agency abuses. No other congressional investigation into these types of matters has been so extensive, either before or since.

The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, commonly known as the Church committee, after Chairman Frank Church, produced a extensive series of reports entitled, “Intelligence Activities and the Rights of Americans,” encompassing not only COINTELPRO, but also a wide variety of other subjects, including electronic surveillance by the National Security Agency, domestic CIA mail opening programs, the misuse of the IRS, the assassination of President Kennedy, covert actions abroad, assassination plots involving foreign leaders, and various topics related to military intelligence.

The Church committee found that COINTELPRO, presumably set up to protect national security and prevent violence, actually engaged in other actions “which had no conceivable rational relationship to either national security or violent activity. The unexpressed major premise of much of COINTELPRO is that the Bureau has a role in maintaining the existing social order, and that its efforts should be aimed toward combating those who threaten that order.”

This meant that the Bureau would take actions against individuals and organizations simply because they were critical of government policy. The Church committee report gives examples of such actions, violations of the right of free speech and association, where the FBI targeted people because they opposed U.S. foreign policy, or criticized the Chicago police actions at the 1968 Democratic National Convention. The documents assembled by the Church committee “compel the conclusion that Federal law enforcement officers looked upon themselves as guardians of the status quo” and cite the surveillance and harassment of Martin Luther King Jr. as an example of this.

With regard to COINTELPRO, the Church committee’s report was based, it says, on a staff study of more than 20,000 pages of Bureau documents, and included depositions of many of the Bureau agents involved in the programs. The FBI eventually acknowledged having conducted 2,218 separate COINTELPRO actions from mid-1956 through mid-1974. These, the bureau conceded, were undertaken in conjunction with other significant illegalities: 2,305 warrantless telephone taps, 697 buggings, and the opening of 57,846 pieces of mail. 130 This itemization, although an indicator of the magnitude and extent of FBI criminality, was far from complete. The counterintelligence campaign against the Puerto Rican independence movement was not mentioned at all, while whole categories of operational techniques – assassinations, for example, and obtaining false convictions against key activists – were not divulged with respect to the rest. There is solid evidence that other sorts of illegality were downplayed as well.

The FBI’s quid pro quo for cooperating in this charade seems to have been that none of its agents would actually see the inside of a prison as a result of the “excesses” thereby revealed. 131 The result was that

“The Justice Department has decided not to prosecute anyone in connection with the Federal Bureau of Investigation’s 15-year campaign to disrupt the activities of suspected subversive organizations.” 132

J. Stanley Pottinger, head of the Civil Rights Division, reported to the attorney general that he had found “no basis for criminal charges against any particular individuals involving particular incidents.” The director of the FBI also made clear that he saw nothing particularly serious in the revelations of the Church and Pike Committees. There is as yet no public record or evidence of any systematic investigation of these practices. The press paid little heed to the record that was being exposed during the Watergate period and even since has generally ignored the more serious cases and failed to present anything remotely resembling an accurate picture of the full record and what it implies.

The object of all this muscle-flexing was, of course, to create a perception that congress had finally gotten tough, placing itself in a position to administer appropriate oversight of the FBI. It followed that citizens had no further reason to worry over what the Bureau was doing at that very moment, or what it might do in the future.

In 1975 the Senate Select Committee concluded that in order to complete its (re)building of the required public impression, it might be necessary to risk going beyond exploration of the Bureau’s past counterintelligence practices and explore ongoing (i.e.: ostensibly post-COINTELPRO) FBI conduct vis a vis political activists. Specifically at issue in this connection was what was even then being done to the American Indian Movement, and hearings were scheduled to begin in July. But this is where the Bureau, which had been reluctantly going along up to that point, drew the line. The hearings never happened. Instead, they were “indefinitely postponed” in late June of 1975, at the direct request of the FBI. 133

The Church committee cites the testimony of FBI director Clarence M. Kelley as indication that even after the official end of COINTELPRO, “faced with sufficient threat, covert disruption is justified.” 134

The Legacy of COINTELPRO

The repression of dissident groups can be traced far back into US history, at least to the passage of the Alien and Sedition Acts, by which “the Federalists sought to suppress political opposition and to stamp out lingering sympathy for the principles of the French Revolution,” or to the judicial murder of four anarchists for “having advocated doctrines” which allegedly lay behind the explosion of a bomb in Chicago’s Haymarket Square after a striker had been killed by police in May 1886. 135 The Pinkerton Detective Agency, a private investigating agency of the ninteenth century, made extensive use of informants, strike-breakers and provocateurs.

During the first World War, when the long-time, powerful head of the FBI, J. Edgar Hoover led the Bureau of Investigation, there was a “mass deprivation of rights incident to the deserter and selective service violator raids in New York and New Jersey in 1918…” 136 What happened is that 35 Bureau Agents assisted by police and military personnel and a “citizens auxiliary” of the Bureau, “rounded up some 50,000 men without warrants of sufficient probable cause for arrest.”

In 1920 the Bureau, along with Immigration Bureau agents, carried on the “Palmer Raids” (authorized by Attorney General A. Mitchell Palmer), which, in 33 cities rounded up 10,000 persons. The Church Committee report 137 talks of “the abuses of due process of law incident to the raids,” quoting a scholarly study 138 that these raids involved “indiscriminate arrests of the innocent with the guilty, unlawful seizures by federal detectives…” and other violations of constitutional rights.

The Church Committee cites a report of distinguished legal scholars 139 made after the Palmer Raids, and says the scholars “found federal agents guilty of using third-degree tortures, making illegal searches and arrests, using agents provocateurs….”

Attorney General Palmer justified his actions “to clean up the country almost unaided by any virile legislation” on grounds of the failure of Congress “to stamp out these seditious societies in their open defiance of law by various forms of propaganda”:

Upon these two basic certainties, first that the “Reds” were criminal aliens, and secondly that the American Government must prevent crime, it was decided that there could be no nice distinctions drawn between the theoretical ideals of the radicals and their actual violations of our national laws. Palmer’s “information showed that communism in this country was an organization of thousands of aliens, who were direct allies of Trotzky.” Thus “the Government is now sweeping the nation clean of such alien filth,” with the overwhelming support of the press, until they perceived that their own interests were threatened. 140

Elsewhere he described the prisoners as follows:

Out of the sly and crafty eyes of many of them leap cupidity, cruelty, insanity, and crime; from their lopsided faces, sloping brows, and misshapen features may be recognized the unmistakable criminal type.

Palmer’s declared purpose was “to tear out the radical seeds that have entangled American ideas in their poisonous theories.” 141

One early FBI target was Marcus Garvey, founder of the Universal Negro Improvement Association. Under his leadership, UNIA, which to this day remains the largest organization of African Americans ever assembled, devoted itself mainly to the realization of various “bootstrapping” strategies (i.e., undertaking business ventures as a means of attaining its twin goals of black pride and self-sufficiency).

Nonetheless, despite UNIAs explicitly capitalist orientation, or maybe because of it, Hoover launched an inquiry into Garvey’s activities in August 1919. When this initial probe revealed no illegalities, Hoover, railing against Garvey’s “pro-Negroism,” ordered that the investigation be not only continued but intensified. UNIA was quickly infiltrated by operatives recruited specifically for the purpose, and a number of informants developed within it. Still, it was another two years before the General Intelligence Division was able to find a pretext – Garvey’s technical violation of the laws governing offerings of corporate stock – upon which to bring charges of “mail fraud.” Convicted in July 1923 by an all-white jury, the UNIA leader was first incarcerated in the federal prison at Atlanta, then deported as an undesirable alien in 1927. By then, the organization he’d founded had disintegrated. Hoover, in the interim, had vowed to prevent anyone from ever again assuming the standing of what he called a “Negro Moses.”

World War II brought a return of the FBI to counterintelligence operations as President Franklin D. Roosevelt issued a series of instructions establishing the basic domestic intelligence structure for the federal government. Roosevelt was advised by Hoover to proceed with the utmost degree of secrecy:

In considering the steps to be taken for the expansion of the present structure of intelligence work, it is believed imperative that it proceed with the utmost degree of secrecy in order to avoid criticism or objections which might be raised to such an expansion by either ill-informed persons or individuals having some ulterior motive … Consequently, it would seem undesirable to seek any special legislation which would draw attention to the fact that it was proposed to develop a special counterespionage drive of any great magnitude. 142

According to William C. Sullivan, Hoover’s assistant for many years:

Such a very great man as Franklin D. Roosevelt saw nothing wrong in asking the FBI to investigate those opposing his lend-lease policy — a purely political request. He also had us look into the activities of others who opposed our entrance into World War II, just as later Administrations had the FBI look into those opposing the conflict in Vietnam. It was a political request also when he [Roosevelt] instructed us to put a telephone tap, a microphone, and a physical surveillance on an internationally known leader in his Administration. It was done. The results he wanted were secured and given to him. Certain records of this kind … were not then or later put into the regular FBI filing system. Rather, they were deliberately kept out of it. 143

The passage in 1940 of the Smith Act, made “sedition” a peacetime as well as a wartime offense. The doctrine was laid out clearly by Supreme Court Justice Robert H. Jackson in his opinion upholding of the Smith Act on the grounds “that it was no violation of free speech to convict Communists for conspiring to teach or advocate the forcible overthrow of the government, even if no clear and present danger could be proved.” For if the clear and present danger test were applied, Jackson argued, “it means that Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law, the Government can move only after imminent action is manifest, when it would, of course, be too late.” Thus there must be “some legal formula that will secure an existing order against revolutionary radicalism…. There is no constitutional right to `gang up’ on the Government.” Opposition tendencies, however minuscule, must be nipped in the bud prior to “imminent action.”

Hoover claimed that in 1940, “advocates of foreign isms” had succeeded in boring into every phase of American life, masquerading behind front organizations. 144 In 1939, Hoover told the House Appropriations Committee that his General Intelligence Division had compiled extensive indices of individuals, groups, and organizations engaged in subversive activities, in espionage activities, or any activities that are possibly detrimental to the internal security of the United States.. . . Their backgrounds and activities are known to the Bureau. These indexes will be extremely important and valuable in a grave emergency. 145

After World War II, the FBI’s attention turned from fascism to communism. This was the beginning of the Cold War. In March of 1946, Hoover informed Attorney General Tom Clark that the FBI had found it necessary to intensify its investigation of Communist party activities and Soviet espionage cases and it was taking steps to list all members of the Communist party and any others who might be dangerous in the event of a break with the Soviet Union, or other serious crisis involving the United States and the USSR.. . . It might be necessary in a crisis to immediately detain a large number of American citizens. 146

As for the Communist party, “ordinary conspiracy principles” sufficed to charge any individual associated with it “with responsibility for and participation in all that makes up the Party’s program” and “even an individual,” acting alone and apart from any “conspiracy,” “cannot claim that the Constitution protects him in advocating or teaching overthrow of government by force or violence.” 147

In 1948, the Mundt-Nixon bill, calling for the registration of the Communist party, was reported out of Nixon’s House Committee on Un-American Activities. Senate liberals objected, and after a Truman veto they proposed as a substitute “the ultimate weapon of repression: concentration camps to intern potential troublemakers on the occasion of some loosely defined future ‘Internal Security Emergency’,” 148 including, as one case, “insurrection within the United States in aid of a foreign enemy.” 149

This substitute was advocated by Benton, Douglas, Graham, Kefauver, Kilgore, Lehman, and Humphrey, then a freshman senator. Humphrey later voted against the bill, though he did not retreat from his concentration camp proposal. In fact, he was concerned that the conference committee had brought back “a weaker bill, not a bill to strike stronger blows at the Communist menace, but weaker blows.” The problem with the new bill was that those interned in the detention centers would have “the right of habeas corpus so they can be released and go on to do their dirty business.” 150

In 1949 the attorney general’s list was established, excluding members of “communist front organizations” from federal employment, since their influence on government policies would be such that those policies will either favor the foreign country of their ideological choice or will weaken the United States government domestically or abroad to the ultimate advantage of the … foreign power. Consequently, [Mr. Hoover] urged that attention be given to the association of government employees with front organizations. These included not only established fronts but also temporary organizations, spontaneous campaigns, and pressure movements so frequently used by subversive groups. If a disloyal employee was affiliated with such fronts, he could be expected to influence government policy in the direction taken by the group. 151

The first formal COINTELPRO, aimed at the U.S. Communist Party, commenced on August 28, 1956. Although this was the first instance in which the Internal Security Branch was instructed to employ the full range of extralegal techniques developed by the bureau’s counterintelligence specialists against a domestic target in a centrally coordinated and programmatic way, the FBI had conducted such operations against the CP and to a lesser extent the Socialist Workers Party (SWP) on an ad hoc basis at least as early as 1941.

Instructively, Hoover began at the same time to include a section on “Negro Organizations” in reports otherwise dedicated to “Communist Organizations” and “Axis Fifth Columnists.” In 1954 there was also the Communist Control Act, a statute outlawing the CP and prohibiting its members from holding certain types of employment.

Viewed against this backdrop, it is commonly believed that, however misguided, COINTELPRO-CPUSA was in some ways well intended, undertaken out of a genuine concern that the CP was engaged in spying for the Soviet Union. Declassified FBI documents, however, reveal quite the opposite. While espionage and sabotage “potentials” are mentioned almost as afterthoughts in the predicating memoranda, unabashedly political motives take center stage. The objective of the COINTELPRO was, as Internal Security Branch chief Alan Belmont put it at the time, to block the CP’s “penetration of specific channels of American life where public opinion is molded” and to prevent thereby its attaining “influence over the masses.”

From the outset, considerable emphasis was placed on intensifying the bureau’s long-standing campaign to promote factional disputes within the Party. To this end, the CP was infiltrated more heavily than ever before. It has been estimated that by 1965 approximately one-third of the CP’s nominal membership consisted of FBI infiltrators and paid informants, while bona fide activists were systematically snitch jacketed. A formal “Mass Media Program” was also created, “wherein derogatory information on prominent radicals was leaked to the news media.”

The programs directed against the Communist party continued through the 1960s, with such interesting innovations as Operation Hoodwink from 1966 through mid-1968, designed to incite organized crime against the Communist party through documents fabricated by the FBI, evidently in the hope that criminal elements would carry on the work of repression and disruption in their own manner. 152

In October 1961, the “SWP Disruption Program” was put into operation against the Socialist Workers Party. The grounds offered, in a secret FBI memorandum, were the following: the party had been “openly espousing its line on a local and national basis through running candidates for public office and strongly directing and/or supporting such causes as Castro’s Cuba and integration problems…in the South.” The SWP Disruption Program, put into operation during the Kennedy administration, reveals very clearly the FBI’s understanding of its function: to block legal political activity that departs from orthodoxy, to disrupt opposition to state policy, to undermine the civil rights movement.

CISPES

The FBI has continued to violate the constitutional rights of citizens through the 1980’s, up to 1990, as revealed by Ross Gelbspan in his book Break-Ins, Death Threats And The FBI. Utilizing thousands of pages of FBI documents secured through the Freedom of Information Act, Gelbspan found that activists who opposed U.S. policy in Central America “experienced nearly 200 incidents of harassment and intimidation, many involving…break-ins and thefts or rifling of files.” Gelbspan?s intent was to “add a small document to the depressingly persistent history of the FBI as a national political police force.”

During the 1980’s as the FBI waged an “active measures” campaign against the Committee In Solidarity with the People of El Salvador (CISPES), a former FBI informant, Frank Varelli, became disillusioned with the Bureau’s attempt to destroy CISPES. Acting on disinformation supplied by the murderous Salvadoran National Guard, false information was forwarded by the FBI to the Defense Intelligence Agency.

The National Guard claimed that one FMLN coalition member, the Armed Revolutionary Group (GAR), “were to promote in North America a strong and violent campaign of agitation and propaganda on behalf of FMLN-FDR, having obtained immediate support from different sectors of North American society. Among the groups providing support were labor unions, Gay Power groups, Pro- Abortion groups, groups involved in the women’s liberation movement, and organizations that are opposed to the strengthening of the military forces of the US.” 153

Although not a shred of evidence existed linking these North American organizations to the GAR, the groups were included in the National Guard communique — at the direct request of the FBI.

According to Varelli, “Can you imagine if gay rights groups, abortion rights groups, the Equal Rights Amendment groups were known to support a group that had killed more than 20 police and soldiers in a year?” The informant added, “Once the FBI had this data in their files, they could proceed to investigate all these other groups. What is even worse, the FBI knew that this material from the National Guard was strictly disinformation. But they passed the same material along to the Secret Service, the Defense Intelligence Agency and other agencies in the intelligence community without alerting them to the fact that it was completely fabricated.” 154

The FBI found it “imperative to formulate some plan of attack against CISPES,” not because of its suspected involvement in terrorism or any other criminal activity, but because of its association with “individuals [deleted] who defiantly display their contempt for the U.S. government by making speeches and propagandizing their cause.” In plain English, CISPES was politically objectionable to the Bureau – no more, or less – and was therefore deliberately targeted for repression. 155

The investigation was ultimately expanded to include not only CISPES itself, but nearly 2000 organizations and individuals with which CISPES had some sort of interactive relations. This included pastors of local churches who were sympathetic to the Salvadorean peasantry, and Duke University, which provided meeting space.

The Bureau admits it paid Varelli from 1981 to 1984 to infiltrate CISPES. Varelli has testified that the FBI’s stated objective was to “break” CISPES. He recounts a modus operandi straight out of the annals COINTELPRO – from break-ins, bogus publications and disruption of public events to planting guns on CISPES members and seducing CISPES leaders in order to get blackmail photos for the FBI. 156

Alerted by Varelli’s disclosures, the Center for Constitutional Rights obtained a small portion of the Bureau’s CISPES files and released them to the press. The files show the U.S. government targeting a very broad range of religious, labor and community groups opposed to its Central America policies. They confirm that the FBI’s objective was to attack and “neutralize” these groups. 157 Mainstream media coverage of these revelations elicited a flurry of congressional investigations and hearings. Publicly exposed, the FBI tried to scapegoat the whistle blower. Its in-house investigation found Varelli “unreliable” and held that his reports of CISPES terrorism were false. The Bureau denied any violation of the constitutional rights of U.S. citizens or involvement in the hundreds of break-ins reported by Central America activists. A grand total of six agents received “formal censure” and three were suspended for 14 days. FBI Director William Sessions declared the case closed, a mere “aberration” due to “failure in FBI management.” 158

The Judi Bari Bombing

There is no better example than the Judi Bari “boom and bust” case to show that the FBI kept on well into the 1990s using covert action tactics against political movements and activists which they perceived as threats to the established order. One can make a case that the FBI is still using such tactics in the Bari case in 2001.

The car bombing of Judi Bari and Darryl Cherney on May 24, 1990 made headlines across the nation. At the FBI’s instigation, Oakland California police immediately arrested the two nonviolent environmental leaders and told the media that they were terrorists blown up by their own bomb. For the next two months, the FBI and police held a series of press conferences where they dribbled out false evidence of the pair’s guilt to feed a drumbeat of sensational media coverage.

But there was clear evidence that Bari was targeted because of her leftist environmental and labor organizing. Someone wanted to stop the two Northern California Earth First! leaders, the organizers of Redwood Summer, the largest ever campaign of nonviolent protests against corporate liquidation logging of the redwoods.

After two months, the Alameda County District Attorney declined to file any charges, citing lack of evidence against the pair. There is evidence, though, from the FBI’s own files, that agents falsified evidence, suppressed exonerating evidence, and conspired with Oakland police to frame the two bombing victims. Moreover, the records show that the FBI stubbornly refused to do a genuine investigation of the bombing, and failed to pursue real evidence and leads turned over to them, such as fingerprints or death threats Bari received.

Bari, the mother of two young daughters, was nearly killed when the powerful motion-triggered pipe bomb wrapped with nails for shrapnel effect blew up directly under her driver’s seat. The bomb caused horrifying maiming and crippling injuries, leaving her with a paralyzed right foot and unending pain for the rest of her life.

Bari and Cherney were on an organizing tour for their campaign, which at first they called Mississippi Summer in the Redwoods in homage to the civil rights movement that inspired it. The idea was to have mass nonviolent civil disobedience to delay the cutting of redwoods long enough to let voters decide the issue in November 1990, when two statewide timber reform initiatives would be on the ballot. The call went out to college students across America: Come to Northern California and save the redwoods.

In the June 10, 1990 San Francisco Examiner, writer Jane Kay raised the issue of law enforcement interest:

“Environmental activism is the new target of political suspicion and surveillance, and law enforcement agencies are stepping up action against those who demand radical change. Calling them agitators, outsiders, the mafia and extremists, local, state and federal investigators and prosecutors say they suspect them of violent acts — or the potential for them. They have responded in the last year with arrests, searches, seizures and questioning.”

FBI files contained evidence of Bari and Cherney’s innocence, but not until three years after the bombing did the FBI begin (grudgingly) to disclose that evidence, and then only under court order and Congressional pressure. A year after the bombing, with no progress in the official investigation, and with the FBI still telling the media that there were no other suspects but Bari and Cherney, the pair filed a federal civil rights suit against the FBI and Oakland Police, charging them with conspiring “to suppress, chill and ‘neutralize’ their constitutionally protected activities in defense of the environment.”

Now Bari and Cherney could investigate the bombing themselves, using civil discovery and subpoena power to compel the FBI and police to turn over files and evidence and to submit to questioning under oath. Ten years later, their charges are supported by over 20,000 pages of evidence, including FBI files and the testimony of over 70 FBI agents and police officers. The evidence of police misconduct is strong enough that the suit has survived repeated motions by the FBI and Oakland to dismiss it.

Bari and Cherney discovered that police crime scene photos clearly showed that the bomb ripped a two foot by four foot hole in the floorboard centered directly under the driver’s seat. FBI files revealed that a top explosives expert, agent David R. Williams, inspected the bombed car three weeks after the explosion and showed the local agents that the bomb had been completely hidden under the driver’s seat. He told them the bomb was detonated by a motion trigger, and had functioned as designed rather than exploding accidentally.

That put the lie to FBI statements that the bomb was on the back seat floorboard where they would have seen it — the principal claim used to justify arresting Bari and Cherney for possession and transportation of an explosive device. Knowing full well from their own expert’s testimony that Bari and Cherney were innocent victims, the FBI and Oakland police continued to lie to the media for another five weeks, saying they had plenty of evidence they were the bombers.

Bari’s last work in her life was to oversee a crucial phase of her lawsuit so that her legal team could take the case to trial on behalf of her children, to clear her name, and to secure the rights of all activists to be free from FBI interference with their constitutional rights. Although she died of cancer on March 2, 1997, the suit is continued by Bari’s estate and Cherney.

Bari felt sure as soon as it happened that timber interests were behind the bombing. She told investigating officers in the hospital that she began receiving death threats soon after she had announced plans for Redwood Summer. Police found copies of written threats in her bombed car.

Perhaps the key incident that made her the target of the bomb attack was her demand for government seizure of timber corporation property. Bari appeared in a coalition with Louisiana Pacific workers before an April 3, 1990 meeting of Mendocino County’s Board of Supervisors. LP had closed several sawmills as the trees were used up, leaving many of their workers jobless. Bari demanded that the county use eminent domain powers to seize LP corporate timberlands and turn them over to the workers.

Her property seizure demand and her coalition with disgruntled timber workers certainly focused negative timber industry attention on Bari, and probably the FBI’s too. A local paper published a large front page photo of Bari from the board meeting. A copy of that photo with the circle and cross hairs of a rifle scope drawn over her face was the most frightening death threat Bari received, she said. The photo was smeared with excrement and stapled to the door of the Mendocino Environmental Center along with a yellow ribbon, the symbol of timber industry support groups opposed to Redwood Summer and Proposition 130, the “Forests Forever” initiative on the November ballot.

If the “Forests Forever” initiative, Prop. 130, had passed in the fall 1990 election, the three big logging corporations of the redwood region — Georgia Pacific, Louisiana Pacific and Pacific Lumber — would have lost billions of dollars. It would have put an end to unsustainable liquidation logging and clearcutting, and ended industry control over the board that wrote timber regulations.

With an enormous financial motive to defeat the initiative, the corporations hired the giant public relations firm Hill & Knowlton to manage a PR campaign to turn public opinion against the initiative. An important part of the campaign was to derail Redwood Summer. It was drawing media attention to the overlogging, which would work in favor of Prop.130.

There were many signs of an orchestrated COINTELPRO-like campaign of harassment and intimidation against Bari and other environmentalists in the weeks before the bombing. Someone cooked up counterfeit EF! flyers and press releases calling for violence and sabotage during Redwood Summer, and Pacific Lumber and Louisiana Pacific knowingly distributed the fakes to workers, community members and media in a move calculated to deceive people about EF!’s nonviolent intentions and create an atmosphere of hatred and violence toward environmentalists.

As the FBI and police smeared Bari, Cherney and Earth First! as terrorists after the bombing, the PR company quickly put out propaganda falsely labeling Prop. 130 “the Earth First! initiative,” and calling it “too extreme.” By some reports, they spent up to $20 million by the time voters defeated the initiative by a narrow margin.

FBI records obtained through the Freedom of Information Act show that the FBI infiltrated and spied on Earth First! almost from its beginning in 1980, with the earliest known FBI report on it dated 1981. Heavily censored FBI documents obtained through Bari’s suit indicate weekly meetings in spring 1990 between an FBI agent and a secret informant in Northern California. Deposition testimony by Oakland Police Department officers and FBI agents states the FBI had an informant on EF! leaders, and the FBI told OPD that Cherney and Bari were already “the subjects of an investigation in the terrorist field” when they were bombed. They could have been under surveillance when the bomb was placed.

Just before the Bari bombing, the FBI was wrapping up “Operation Thermcon” in Arizona, a 3-year covert operation employing over 50 FBI agents designed to entrap and discredit EF! and its co-founder Dave Foreman as explosive-using terrorists. The FBI infiltrated a tiny Arizona EF! group with an undercover agent provocateur, won their trust over a couple of years, and tried to persuade them to use thermite, an explosive incendiary, to take down a power line. The activists refused the FBI infiltrator’s offer to provide explosives, and he settled for providing them with a cutting torch instead. The FBI provocateur provided the equipment, trained the activists in its use, chose the target, drove them to the site, and joined an FBI strike team in busting them in the act on May 31, 1989, almost a year to the day before the Bari bombing. Foreman was not directly involved, but was charged with conspiracy for providing $100 to the group. The resulting “Arizona Five” trial ended in plea bargains in August, 1991, with prison sentences for two of the activists, and with probation and fines for the others, including Foreman. Note that the Bari bombing came midway between the arrest and the trial in the Thermcon case.

Thermcon was the FBI’s code name meaning “thermite conspiracy,” but there was no thermite involved except in the FBI scheme to tie EF! to explosives despite the fact they have never advocated or used explosives in their entire history. The FBI had a public relations goal in Thermcon, to deceive the public into believing EF! were violent extremists so as to neutralize their effectiveness and isolate them from public support. It was a classic COINTELPRO against Earth First!

The true goal of Thermcon was revealed when Michael Fain, the FBI’s undercover agent provocateur in the case, accidentally left his body wire running and recorded his conversation with other agents. On the tape, Fain is heard to say, “I don’t really look for them to be doing a lot of hurting people. (Foreman) isn’t really the guy we need to pop — I mean in terms of an actual perpetrator. This is the guy we need to pop to send a message. And that’s all we’re really doing. . . . Uh-oh! We don’t need that on tape! Hoo boy!” The FBI’s true goal was to “send a message” to the public that Earth First! was a terrorist group.

Bari and Cherney’s investigation turned up several connections between the timber industry and the FBI, including a chummy “Dear Bill” letter sent to FBI Director William Sessions by a board member of Maxxam, which owns Pacific Lumber.

Louisiana Pacific had an FBI connection that directly involved bombs. One month before the Bari bombing, the FBI conducted a bomb investigator school in Humboldt County. FBI terrorist squad bomb expert Frank Doyle blew up cars with pipe bombs on a Louisiana Pacific logging site, then his students practiced investigating. Louisiana Pacific was the company whose timberlands Bari asked the government to seize, after which she immediately began receiving death threats.

There is the mystery of another bomb at an LP sawmill in Cloverdale, California, about an hour’s drive south of Bari’s home. Two weeks after the FBI bomb school (and two weeks before Bari’s car exploded), a partly-exploded firebomb was found. That bomb, a pipe bomb next to a can of gasoline, failed to fully explode or to ignite the gasoline. A cardboard sign near the firebomb bore the words, “LP screws millworkers,” a message that could be associated with Bari. A cardboard sign next to a firebomb makes no sense, unless it was designed to fail and to leave evidence that could be used to help to frame Bari for the Oakland bomb two weeks later.

The FBI lab found that the Cloverdale and Oakland bombs matched exactly in components and construction method, and were built by the same person(s). This same type of bomb was studied at the FBI bomb school two weeks earlier, according to testimony of an Oakland officer who was there. Investigators found a usable fingerprint on the cardboard sign, but there is no record that the FBI ever tried to match the print to Bari or Cherney, or to anyone else.

Less than an hour after the Oakland explosion, none other than Special Agent Frank Doyle, the bomb school instructor, took charge of the bomb scene investigation. There were at least five of his bomb school students at the scene, and they were overheard on a videotape joking about the scene being the “final exam.” Since he was the FBI’s terrorist squad bomb expert and their instructor the other FBI and Oakland bomb investigators who were at the scene first deferred to his pronouncements about the evidence.

It was Doyle who overruled the Oakland sergeant who got there first and said the bomb was under the driver’s seat and that he could see the pavement under the car through the hole in the seat bottom. It was Doyle who falsely said the bomb was on the floor behind the driver’s seat where it would have been easily seen. It was also Doyle who falsely claimed that two bags of nails found in the back of Bari’s car matched nails taped to the bomb for shrapnel effect, when in fact they were not even the same type, and were clearly different to the naked eye. (Bari worked as a carpenter, and always had tools and nails in the car.)

Other officers on the scene testified that Doyle argued with them, and quoted him saying, “I’ve been looking at bomb scenes for 20 years, and I’m looking at this one, and I’m telling you you can rely on it. This bomb was visible to the people who loaded the back seat of this car.”

Exactly three weeks later, when Supervisory Special Agent David R. Williams — the FBI crime laboratory’s top explosives expert — inspected the bombed car, he pointed out to Doyle that impact marks left by the pipe bomb’s end caps on the transmission tunnel and driver’s door, combined with the location of the hole in the floorboard and the damage to the seat cushion, clearly proved the bomb was under the driver’s seat, not in the back where Doyle had said.

Despite this early clear evidence that Bari was the target of attempted murder, the FBI and Oakland PD continued telling the media and the court that Bari and Cherney were their only suspects, and fabricating other stories about nails from the bomb matching nails found in Bari’s house. Repetition is a fundamental of the “Big Lie” propaganda technique, maintaining a drumbeat of false information until it is accepted by the media and the public as the truth. There can be no doubt that the FBI was knowingly lying about the evidence.

M. Wesley Swearingen, a retired career FBI agent with first-hand inside knowledge of COINTELPRO wrote in his book “FBI Secrets — An Agent’s Expose:

“(COINTELPRO) is still in operation today, but under a different code name. The operation is no longer placed on paper where it can be discovered through the release of documents under the Freedom of Information Act. ? A clear example of the FBI’s continued COINTELPRO is in the FBI’s alleged involvement in the 1990 bombing of the vehicle occupied by Judi Bari and Darryl Cherney … which was an effort to neutralize Judi Bari.”

There could hardly have been a more ideal location than Oakland for an FBI covert operation against Bari. The media coverage of the Oakland bombing was far more extensive, and was far more easily manipulated by the FBI, than if it had happened in Mendocino or Humboldt Counties where Bari lived and spent nearly all of her time. Oakland was the home of the Black Panther Party for Self Defense, which bore the brunt of the most extreme COINTELPRO of all, including multiple assassinations and frame-ups of its leaders. The Oakland Police Department has a long history of cooperating with the Bureau in targeting progressive and radical groups.

In deposition in the Bari case, OPD intelligence division chief Kevin Griswold admitted that his department keeps files on over 300 political groups and individuals in the Bay Area. Griswold said the Oakland Police have spied on EF! since 1984, and had their own informant inside EF! who reported back to Griswold on plans for upcoming demonstrations. This even though EF! is not based in Oakland and was not active there prior to the Bari bombing. Griswold said he shares information from his spies with the FBI. Encouraging and tapping into political spying operations run by local police like Oakland’s was one of the key ways the FBI got around the Attorney General’s guidelines that barred the bureau from purely political spying.

The special agent in charge of the FBI’s San Francisco office at the time of the bombing was Richard W. Held, a 26-year veteran of the FBI’s COINTELPRO “dirty tricks” campaigns against the Black Panthers, American Indian Movement and Puerto Rican independence activists.

Under deposition under oath in the Bari case, Held claimed he was unaware of the details of the Bari-Cherney case, and implied that it was not important enough to merit his attention. But files in the San Francisco FBI office contained a memo from Washington ordering his office to provide weekly reports on the Bari case so that headquarters could respond to the “numerous inquiries” they were getting from the media. Held’s testimony was also contradicted by FBI agents under his command who said in their depositions that they briefed him daily on the case.

The unraveling of the frame-up of Bari and Cherney may have brought an early end to Held’s 25-year FBI career. It is a strong tradition in the FBI not to embarrass the bureau. Held announced his early resignation from the FBI in May of 1993, the day before Bari held a press conference with the newly released Oakland Police crime scene photos exposing the FBI lies about the location of the bomb. Held told reporters he resigned because he expected reassignment to a new post and didn’t want to move his family. His father, Richard G. Held, had risen to the high post of Deputy Director of the FBI, and Held’s career track was headed for the top as well. He told reporters his mother cried when he told her he was resigning, so clearly Held’s FBI career was very important to him and his family, and it seems unlikely he would end it early just to avoid a relocation.

Other cases have come to light where the FBI allegedly used bombs to frame radicals twenty years before the Bari bombing. FBI agent provocateur David Sannes was used to get radicals in Seattle to use bombs so that they could be arrested and discredited. When he learned that the FBI wanted him to set up one bomber to die in a booby-trapped explosion, he refused to go along and went public.

Sannes said in an interview on WBAI radio “My own knowledge is that the FBI along with other Federal law enforcement agencies has been involved in a campaign of bombing, arson and terrorism in order to create in the mass public mind a connection between political dissidence of whatever stripe and revolutionaries of whatever violent tendencies.”

Though the Seattle cases happened in the early 1970s, just before the supposed termination of COINTELPRO, the goal of the FBI’s Operation Thermcon at the time of the Bari bombing 20 years later was to connect well-known Earth First! leaders with the use of explosives in the public mind, the same FBI strategy Sannes exposed in the Seattle cases.

Until the Bari-Cherney suit finally has its day in court, beginning October 1, 2001, many questions will lie unanswered. But it seems more rational than paranoid to believe there was an FBI and corporate timber connection to the bombing. Both timber and the FBI had ample motives, history, means and opportunity to bomb Bari. There are also FBI connections to both Maxxam/Pacific Lumber and Louisiana Pacific — even involving bombs, in LP’s case.

Big Timber’s PR firm may have planned the bombing and arranged the FBI cooperation in the frame-up, but it meshed perfectly with the FBI’s own Operation Thermcon to neutralize Earth First! by trying to connect its best known leaders to explosives, first Dave Foreman, then Judi Bari and Darryl Cherney.

Judi Bari was the redwood timber industry’s most outspoken, brilliant, and effective opponent. The industry would go to any length to defeat Prop. 130, because billions of dollars were at stake. Framing Judi Bari for a bombing would serve that goal. It would be used to demonize Earth First! as violent extremists. Then voters could be turned against the initiative by falsely linking it with Earth First!. And that’s exactly what they did.

The bombing was expertly planned, including the Cloverdale sawmill bomb which the FBI immediately cited as evidence of Bari’s guilt in her own bombing. Both bombs were expertly conceived and built, according to the FBI’s top expert, and the one in Bari’s car functioned as designed. Because of that, Bari believed the bombing was a professional hit.

The bombing happened in the midst of a sophisticated psychological warfare blitz of disinformation, intimidation and death threats, while Bari was organizing the biggest mass demonstrations against corporate overlogging in history, while she was taking on multi-billion dollar corporations and threatening their bottom line, and while she was building a coalition between timber workers and environmentalists by pointing to the corporations as the problem. She had also led Earth First! in her region to disavow tree-spiking and equipment sabotage, and insisted that a strict non-violence code be adhered to during Redwood Summer. The fact that Bari was an outspoken advocate of nonviolence gave all the more sensational impact to framing her as a terrorist bomber.

In depositions the FBI agents involved in the Bari investigation admitted that they never found any evidence whatsoever that she built the bomb that nearly killed her, or any other bomb, But the FBI has never issued any statement of exoneration or any apology. Not only has the FBI not retracted their false charges, they continue to repeat them. Speaking to students at an October 1999 Humboldt State University recruiting event, FBI agent Candice DeLong told the students: “Judi Bari was a terrorist. They were carrying that bomb.” The FBI recently spent $200,000 of the taxpayers’ money paying a U. S. Air Force laboratory to do simulation experiments aimed at showing that the bomb could have been in the back seat of Bari’s car after all.

Regardless who bombed Bari, it is plainly evident that FBI agents made a determined effort to frame her for it. After years of delay by the FBI, Bari’s civil rights suit is set for trial beginning October 1, 2001 in federal court in Oakland.

Footnotes

1 Civil Liberties, no. 273, December 1970; publication of the ACLU.

2 Race, Reform and Rebellion, Marable, pp. 102-3. For more on the Detroit rebellion, see Hersey, John, The Algiers Motel Incident, Alfred A. Knopf Publishers, New York, 1968. Of related interest, see Hayden, Tom, Rebellion in Newark: Official Violence and Ghetto Response, Vintage Books, New York, 1967; and Gilbert, Ben W., et. al., Ten Blocks From the White House: Anatomy of the Washington Riots of 1968, Frederick A. Praeger Publishers, New York, 1968. For an overall appraisal of the motivations underlying the urban rebellions from the perspective of a former CORE field secretary, see Wright, Nathan Jr., Black Power and Urban Unrest: Creative Possibilities, Hawthorn Books, Inc., New York, 1967. In general, see Boesel, David, and Peter H. Rossi (eds.), Cities Under Siege: An Anatomy of the Ghetto Riots, 1964-1968, Basic Books, New York, 1971.

3 Hoover, statement, July 26, 1950 (Harry S. Truman Library, Bontecore Papers), from Ideological Warfare: The FBI’s Path Toward Power, Frank M. Sorrentino, Associated Faculty Press, Inc. 1985.

4 See Memorandum from F.J. Baumgardner to W.C. Sullivan, October 1, 1964; Memorandum from Sullivan to A. Belmont, August 30, 1963; J. Edgar Hoover, chairman, Interdepartmental Intelligence Conference Report to McGeorge Bundy, special assistant to the President, July 25, 1961, enclosing IIC, Status of U.S. Internal Security Programs, July 1, 1960, through June 30, 1961. From Ideological Warfare, op. cit.

5 Special Report of Interagency Committee on Intelligence (Ad Hoc), Chairman J. Edgar Hoover, along with the directors of the CIA, DIA, and NSA, prepared for the President, June 25, 1970, marked “Top Secret.” A censored version was later released. Quotes are from Book 7, Part 1: Summary of Internal Security Threat.

6 C. Gerald Fraser, “F.B.I. Action in 1961 Called Still Harmful to Hopes of Blacks,” New York Times, April 6, 1974. See also Jesse Jackson and Alvin Poussaint. “The Danger Behind FBI Obstruction of Black Movements,” Boston Globe, April 2, 1974.

7

8 Nerve War Against Individuals, forwarded to CIA station in Guatemala City on June 9, 1954 http://www.parascope.com/ds/articles/nervewardoc.htm

9

10 John Kifner, “F.B.I. Gave Chicago Police Plan of Slain Panther’s Apartment,” New York Times, May 25, 1974. Although the act of FBI involvement in the Hampton assassination, along with other details of this major state crime, was not widely publicized outside of Chicago, nevertheless there were a few reports, such as this one. There can be no excuse for the general silence on this matter, which alone overshadows the entire Watergate Affair by a substantial margin.

11 On the significance of the threat, both actual and potential, as perceived at high levels of policy planning, see Noam Chomsky’s review of some of the evidence contained in the “Pentagon Papers” in _For Reasons of State_, chapter 1. For discussion of the impact on the American expeditionary force, see David Cortright, _Soldiers in Revolt_, Doubleday, 1975).

12 January 22, 1969 memo from SAC, Chicago, to Director Hoover, cited in The COINTELPRO Papers, by Ward Churchill and Jim Vander Wall, South End Press.

13 Kelly’s memorandum is reproduced in U.S. Department of Justice, Report of the Justice Department Task Force to Review FBI Martin Luther King, Jr., Security and Assassination Investigations, Washington, D.C., January 11, 1977.

14 Cross is mentioned in a memorandum from Atlanta agent Robert A. Murphy to J. Stanley Pottinger, at FBI headquarters, in July 1958. Interestingly, Murphy suggests the “SWP connection” is not a sufficient basis from which to undertake a COMINFIL investigation. Pottinger apparently did not agree; see Pottinger, J. Stanley, “Martin Luther King Report” (to U.S. Attorney General Edward H. Levi), U.S. Department of Justice, Washington, D.C., April 9,1976.

15 The King file was opened by the New York rather than Atlanta field office. It should be noted that although the Bureau has always maintained that there was no COMINFIL activity directed at King and the SCLC during the 1950s, the code prefixed to the files on both was “100,” indicating they were viewed as “internal security” or “subversive” matters. The numerical file prefix for material accruing from what was considered an investigation of civil rights activities per se would have been “44.”

16 See U.S. Senate, Committee on the Judiciary, FBI Statutory Charter – Appendix to Hearings Before the Subcommittee an Administrative Practice and Procedure, Part 3, 95th Congress, 2d Session, U.S. Government Printing Office, Washington, D.C., 1979, pp. 33-73.

17 Concerning King see Lee v. Kelly, Civil Action No. 76-1185, U.S. District Court for the District of Columbia, “Memorandum Opinion and Order” (by U.S. District Judge John Lewis Smith, Jr.), January 31, 1977. Certain of the information on both King and Walker was attributed by FBI Associate Director Cartha D. DeLoach to NAACP head Roy Wilkens (see report on the SCLC from Atlanta agent Robert R. Nichols to DeLoach, dated July 1961). Wilkens later vehemently denied any such interaction between himself and the Bureau; see Lardner, George Jr., ‘Wilkens Denies Any Link to FBI Plot to Discredit King,” Washington Post, May 31, 1978.

18 Levison’s CP membership was never established although it was demonstrable that he maintained dose relations with party members from roughly 1949 through ’54. The speech attributed to Wofsy was actually drafted by Levison and can be found in Proceedings of the Fourth Constitutional Convention of the AFL-CIO, Vol. 1, American Federation of Labor – Congress of Industrial Organizations, Washington, D.C., 1962, pp. 282-9. Levison also had much to do with the preparation of the manuscript for King’s first book Stride Toward Freedom (Harper and Brothers Publishers, New York, 1958); see King, Coretta Scott, My Life With Martin Luther King, Jr., Holt, Rinehart and Winston Publishers, New York, 1969.

19 Such Bureau activities with regard to Levison were nothing new and seem to have stemmed largely from reports coming from “Solo,” two brothers – Jack and Morris (Chilofsky) Childs – who served from as early as 1951 as highly placed FBI informants within the CP, USA. It was they who appear to have originally ‘linked” Levison to the party even though they could never attest to his actual membership and essentially stopped referring to him by early 1954. J. Edgar Hoover’s predictable (and quite unsubstantiated) response was to declare Levison a “secret” CP member; see Garrow, op. cit., pp. 21-77.

20 Memorandum, SAC, New York, to Director, FBI, captioned “Martin Luther Kin& Jr., SM-C,” and dated June 21, 1962. Shortly thereafter, the New York field office began to openly affix a COMINFIL caption to correspondence concerning King and the SCLC. The Atlanta field office followed suit on October 23. The designation was officially approved by FBI headquarters supervisor R.J. Rampton in identical letters to the SACs on the latter date.

21 Targeting the SCLC under COINTELPRO-CP, USA was first proposed by the SAC, New York in a memorandum to Hoover dated September 28,1962. The operation was approved by memo in an exchange between Assistant Director William C. Sullivan and one of his aides, Fred J. Baumgardner, on October 8. The initial five newspapers selected for purposes of surfacing the anti-King propaganda were the Long Island Star-Journal, Augusta (GA) Chronicle, Birmingham (AL) News, New Orleans Times-Picayune, and the St. Louis Globe Democrat (where the reporter utilized in spreading the lies was Patrick J. Buchanan, later part of the White House press corps under Presidents Nixon and Reagan, as well as a current host on the Cable News Network Crossfire program).

22 The ELSURS authorization was signed by Kennedy on October 10, 1963 and provided to FBI liaison Courtney A. Evans. The attorney general’s main concern, detailed in the minutes of his meeting with Evans, seems to have been not that the bugging and tapping of King and the SCLC for purely political purposes was wrong but that it might be found out. Once Evans convinced him that this was genuinely improbable, “the Attorney General said he felt [the FBI] should go ahead with the technical coverage of King on a trial basis, and to continue if productive results were forthcoming.” See Denniston, Lyle, “FBI Says Kennedy OKed King Wiretap,” Washington Evening Star, June 18,1969. Also see OLeary, Jeremiah, “King Wiretap Called RFK’s Idea,” Washington Evening Star, June 19, 1969. Concerning continuation of the taps after the “trial period” had concluded, see Rowan, Carl, “FBI Won’t Talk about Additional Wiretappings,” Washington Evening Star, June 20,1969.

23 The New York SAC reported in a memorandum to Hoover, dated November 1, 1963, and captioned ‘Martin Luther Kin& Jr., SM-C; CIRM (JUNE),” that his agents had tapped all three SCLC office lines in his area of operations, with coverage on two lines beginning October 24. He also recommended installation of a tap on the residence line of civil rights leader Bayard Rustin; the tap was approved and installed in early January 1964. On November 27,1963, the Atlanta SAC informed Hoover by a memo captioned “COMINFIL, RM; Martin Luther Kin& Jr., SM-C (JUNE),” that Atlanta operatives had tapped King’s home phone and all four organizational SCLC lines in that city as of November 8.

24 For its disinformation campaign, the Bureau made ample use of “friendly media contacts” such as the nationally syndicated columnist Joseph Alsop, who proved quite willing to smear King in print on the basis of FBI “tips” lacking so much as a shred of supporting evidence. Concerning the IRS, as Garrow (op. cit.) notes at p. 114, ‘in mid-March [1964) the Internal Revenue Service reported that despite careful scrutiny it had been unable to discover any violations in either King’s or SCLC’s tax returns. Director Hoover scrawled ‘what a farce’ on the margin when the disappointing memo reached his desk.”

25

26 The instructions by Sullivan to Whitson and others are summarized in a memorandum from a member of the Internal Security Section named Jones to FBI Associate Director Cartha D. DeLoach on December 1, 1964, captioned simply ‘Martin Luther King, Jr.” For further information, see Lardner, George, Jr., “FBI Bugging and Blackmail of King Bared, Washington Post, November 19,1975. Also see Horrock, Nicholas M., “Ex-Officials Say FBI Harassed Dr. King to Stop His Criticism,” New York Times (March 9,1978), and Kunstler, William, “Writers of the Purple Page,” The Nation (No. 227, December 30, 1978).

27 Garrow, op. cit., p. 127. It appears DeLoach had to content himself with the “contributions” of right-wing hacks like Victor Riesel. However, Bureau efforts to place the “story” in more respectable quarters are known to have included overtures to – at the very least -reporters John Herbers of the New York Times, James McCartney of the Chicago Daily News, David Kraslow of the Los Angeles Times, Eugene Patterson of the Atlanta Constitution, Lou Harris of the Augusta Chronicle, and syndicated columnist Mike Royko. Herbers appears to have passed word of what was happening to civil rights leader James Farmer, who confronted DeLoach with the matter during an appointment on December 2, 1964.

28 There are serious questions concerning the possibility that the FBI might have been involved in the assassination of Martin Luther King. See, for example, Lane, Mark, and Dick Gregory, Code Name “Zorro:” The Assassination of Martin Luther King, Jr., Prentice-Hall Publishers, Englewood Cliffs, NJ, 1977. Also see Lawson, James, “And the Character Assassination That Followed,” Civil Liberties Review, No. 5, July-August 1978. Of further interest, see Lewis, David L., King: A Biography, University of Illinois Press, Urbana, 1979, especially pp. 399-403.

29 Gid Powers, Richard, Secrecy and Power: The Life of J. Edgar Hoover, The Free Press, New York, 1987, p. 4,58.

30 Churchill, Ward, The COINTELPRO Papers, http://www.derechos.net/paulwolf/cointelpropapers/copap4.htm

31 Ibid.

32 Ibid.

33 Ibid.

34 For a review of some of these actions, see Dave Dellinger, More Power than We Know (Garden City, NY: Doubleday, 1975); Gary T. Marx, “Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the Informant,” American Journal of Sociology, vol. 80, no. 2 (September 1974, pp. 402-42).

35 Ward Churchill and Jim Vander Wall, Agents of Repression: The FBI’s Secret Wars Against the Black Panther Party and the American Indian Movement, South End Press, Boston, MA, 1990.

36 Churchill, Ward, The COINTELPRO Papers, http://www.derechos.net/paulwolf/cointelpropapers/copap7a.htm

37 Kunstler, William, My Life as a Radical Lawyer

38 Voices From Wounded Knee, 1973, (Institute for Policy Studies, Washington, D.C., 1974)p. 81. Warner and Potter were specifically ordered to wear civilian clothes, in order to hide the fact of direct military participation at Wounded Knee. They arranged for supply sergeants, maintenance personnel and medical teams to be present on the federal perimeter throughout the 71-day siege, all similarly attired in civilian garb. Further, the colonels placed a special army assault unit to be placed on 24-hour-a-day alert at Ft. Carson, Colorado for the duration of the siege. See The Nation, November 9,1974. Also see University Review, the same month.

39 Churchill, Ward, The COINTELPRO Papers, http://www.derechos.net/paulwolf/cointelpropapers/copap7b.htm

40

41 Dave Dellinger, More Power than We Know (Garden City, NY: Doubleday, 1975) Many such cases have been exposed throughout the country.

42 For information on these and other FBI actions in Seattle, see Dellinger, op. cit., and Frank J. Donner, “Hoover’s Legacy,” Nation, June 1, 1974.

43 John M. Crewdson, “Ex-Operative Says He Worked for F.B.I. To Disrupt Political Activities up to ’74,” New York Times, February 24, 1975.

44 Donner Frank Donner, Protectors of Privilege: Red Squads and Police Repression in Urban America, University of California Press, Berkeley, 1990, p. , P. 207

45 Ibid.

46 Michael Novick, “BLUE BY DAY, WHITE BY NIGHT: Organized White Supremacist Groups in Law Enforcement Agencies,” People Against Racist Terror (PART), PO BOX 1990, Burbank, CA 91507, Revised and Updated, February 1993, p. 4

47 Ken Lawrence, “Vigilante Repression,” Covert Action Information Bulletin, Washington, D.C., Number 31, Winter 1989

48 Michael Novick, White Lies, White Power. The Fight Against White Supremacy and Reactionary Violence, Common Courage Press, Monroe, Maine, 1995, PP. 35-57

49 For an insider’s account of FBI racism and misogyny, particularly the Bureau’s role in the frame-up of Black Panther Party leader Geronimo ji Jaga [Pratt] see: M. Wesley Swearingen, FBI Secrets: An Agent’s Expose, South End Press, Boston, 1995

50 For a discussion of the nature of the FBI’s “White Hate Groups” COINTELPRO see: Donner 1980, PP. 204-211

51 Donner Frank Donner, Protectors of Privilege: Red Squads and Police Repression in Urban America, University of California Press, Berkeley, 1990, p. 206

52 Frank Donner, Protectors of Privilege: Red Squads and Police Repression in Urban America, University of California Press, Berkeley, 1990, p. 309

53 National Lawyer’s Guild, Counterintelligence: A Documentary Look at America’s Political Police, Volume One, Chicago, 1978, p. 7

54 “Documents detail FBI-Klan links in early rights strife,” Chicago Tribune, August 2,1978

55 Howell Raines, “Police Given Data on Boast by Rowe, The New York Times, July 14, 1978

56 Churchill and Vander Wall, The COINTELPRO Papers, p. 369

57 Elizabeth Wine, “Blacks Hope for Best as Feds Reopen Bombing Case,” Reuters, July 21, 1997

58 The COINTELPRO Papers, p. 170

59 Donner, Protectors of Privilege, p. 214

60

61 Churchill And Vander Wall, op. cit., p. 182

62 Frank Donner, PROTECTORS OF PRIVILEGE: Red Squads and Police Repression in America, University of California Press, Berkeley and Los Angeles, 1990, p. 360

63 ibid.

64 ibid.

65 Novick, op. cit., p. 4

66Donner, op. cit., p. 361

67 ibid.

68 ibid.

69 ibid.

70 Novick, op. cit., p. 4

71 Ridgeway, op. cit. pp. 76-81

72 Peter Biskind, “The FBI’s Secret Soldiers,” New Times, Volume 6, Number 1, January 9, 1976, pp. 21-22

73 Everett R. Holles, “A.C.L.U. Says F.B.I. Funded `Army To terrorize Antiwar Protesters’,” N.Y. Times, June 27, 1975. Information and quotes are from the 18-page single-space report submitted to the Senate Select Committee on June 27, 1975, unless otherwise indicated. See also Steven V. Roberts, “F.B.I. Informer Is Linked to Right-Wing Violence, N.Y. Times, June 24, 1974.

74 Biskind, op. cit., P. 21

75 ibid.

76 CARIC, op. cit., PP. 5-6

77 Biskind, op. cit., P. 23

78 Ibid.

79 Ibid.

80 CARIC, op. cit., p. 6

81 Churchill and Vander Wall, op. cit., p. 182. Also, Godfrey “has testified in a California court that the bureau gave him $10,000 to $20,000 worth of weapons and explosives for use by the [SAO] in addition to his $250-a-month salary as an informant.” John M. Crewdson, “Kelley Discounts F.B.I.’s Link to a Terrorist Group,” N.Y. Times, January 12, 1976.

82 Biskind, op. cit., P. 25

83

84 The Bureau was also busy trying to split up the SNCC leadership during this period. In Agents, op. cit., at p. 50, a document is reproduced proposing a bogus letter designed to achieve this effect vis a vis H. Rap Brown, Stokely Carmichael and James Forman.

85 See Newton, Huey P., To Die for the People, Vintage Books, New York, 1972, p. 191.

86 Current Political Prisoners – Victims of COINTELPRO, roundtable dicsussion of Congresswoman Cynthia McKinney, September 14, 2000 http://www.house.gov/mckinney/news/if_000914_humanrights.htm

87 Churchill, Ward, The COINTELPRO Papers, http://www.derechos.net/paulwolf/cointelpropapers/copap4.htm

88 Ibid.

89 Ibid.

90 Ibid.

91 Ibid.

92

93 Churchill, Ward, The COINTELPRO Papers, http://www.derechos.net/paulwolf/cointelpropapers/copap5a.htm

94 Summary, p. 5.

95 The “Key Black Extremist” tag seems to have been adopted for local use by the LA office COINTELPRO group from at least as early as January 20, 1969, based upon internal office memos. A memo from SAC, Los Angeles to the Director, dated 4/21/69 and captioned BLACK PANTHER PARTY-ARRESTS, RESTS, RACIAL MATTERS, recommended placing both Pratt and his second in command, Roger Lee Lewis, in the National Security Index.

96 Durden-Smith, op. cit., pp. 145-46.

97 This is readily borne out in a Bureau document, LA 157-3436 which, in Section V (MISCELLANEOUS ITEMS RELATING TO ACTIVITIES ASSOCIATED WITH THE BPP), describes how Pratt and several other Panthers, in a private residence, had sawn off the barrels of “15 to 20 weapons” (a legal act, so long as resulting barrel length is not less than 18 inches) during January of 1969; for no apparent reason, it stated that “it was believed the weapons were obtained in a burglary.” The document then goes on to itemize other legal activities in which Pratt had engaged, such as target practice in the Mojave Desert, travel to and from Kansas City, providing a guided tour of the local BPP office for Angela Davis, etc. This is intermixed with suggestions (no reference to evidence of any sort) that Pratt illegally possessed at least one .45 caliber submachinegun and engaged in other criminal behavior.

98 Memo from SCA, Los Angeles to the Director, FBI, dated 5/6/69 and captioned ELMER PRATT, BR–CONSPIRACY states, “As the Bureau is aware, Los Angeles is investigating one bank robbery committed by persons known to be involved in ‘US’ [several words deleted] UNSUBS 131; BANK OF AMERICA, NT & SA, Jefferson HUI Branch, 3320 South Hill Street, Los Angeles, California, 1/10/69, BR’).” The document then goes on, for no logical reason, to announce that BPP members “have possibly been involved in bank robbery matters in the Los Angeles area,” singles Pratt out by name in a heavily deleted passage, and ends with the observation that, “A bank robbery conspiracy case is being opened in the Los Angeles Office on ELMER PRATT … appropriate investigation to attempt to develop a conspiracy case will be conducted [emphasis added].” In a memo to the Director dated 6/5/69 and captioned “ELMER PRATT, BR–CONSPIRACY,” the SAC, Los Angeles, eventually acknowledged that the matter was being dropped because “no information has been developed to indicate that any Black Panther Party (BPP) members have been plotting bank robberies in Los Angeles or elsewhere.” The document concludes that the “captioned case is … subject to being reopened at any time information is received to indicate that Pratt or other members of the BPP are plotting or are responsible for bank robberies.”

99 Los Angeles office Field Report, LA 157-3553, dated 5/14/69. The character of the case reported upon is described as, “RM-SMITH ACT OF 1940; SEDITIOUS CONSPIRACY AND INSURRECTION.”The document was circulated to 8 Bureau offices, the Norton Air Force Base Office of Strategic Intelligence, 115th Military Intelligence Group, and the Secret Service in its initial distribution.

100

101 Summary at p. 6.

102 See Counterintelligence Report from the SAC, Los Angeles, to Director, FBI, (LA 157-17511), dated 6/3/69 and captioned “COUNTERINTELLIGENCE PROGRAM, BLACK NATIONALIST-HATE GROUPS, RACIAL INTELLIGENCE (BLACK PANTHER PARTY).” As to the younger Held’s position in the LA-COINTELPRO operation, see Swearingen deposition, op. cit., p. 1: “1 knew RICHARD WALLACE HELD as head of the COINTELPRO section in Los Angeles [during this period].”

103 Durden-Smith, op. cit., p. 136, quotes Tackwood describing Cotton Smith before the raid, “cutting up this cardboard and making this budding, and he’s putting little dolls with names on them, where they were, and associations and such and such.” The LA version of the O’Neal floorplan in Chicago was thus apparently in three dimensions.

104 Although not so straightforward as the Chicago memoranda in the aftermath of the HamptonClark assassinations, a memo from SAC, Los Angeles to Director, FBI, dated 12/8/69 and captioned BLACK PANTHER PARTY, ARRESTS-RACIAL MATTERS, indicates the Bureau was directly involved in the LA raid and that the local FBI office sought credit for this “success.” Among the BPP members listed in this document as having been arrested on (spurious) attempted murder charges and other offenses as a result of Bureau/police efforts on 12/8 are Robert Bryan, Roland Freeman, Craig Williams, Jackie Johnson, Wayne L. Pharr, Isiah Houston, Elmer Pratt, Sandra Lane Pratt (wife), Willie Stafford, Tommy E. Williams, Renee Moore, Paul Redd, Albert Armor, Melvin Smith and George Young. The situation seems to have sparked substantial interest at the very highest levels of the FBI, as is indicated by a memo on the matter between national COINTELPRO head W.C. Sullivan and his primary operational coordinator, G.C. Moore, dated 12/17/69, in which Moore expresses delight that, “Both Pratts were arrested for their participation in the shooting battle with the Los Angeles Police Department on 12-8-69.”

105 Churchill, Ward, The COINTELPRO Papers, http://www.derechos.net/paulwolf/cointelpropapers/copap5a.htm

106 See “63 Verdicts End Panther Trial”, Los Angeles Times, December 24, 1971.

107 The Glass House Tapes, op. cit., pp. 104-105.

108 Summary at pp. 1-2.

109 Richardson, Lee, “Ex-FBI Agent Exposes Use of Informants to Destroy the BPP,” Freedom Magazine, 18:5, January 1985, P. 31.

110 Summary at P. 3; this was a matter raised in a motion for retrial by Johnnie Cochran, which was denied by trial judge Kathleen Parker.

111 Ibid. at p. 2.

112 Ibid. at pp. 91-93.

113 On prosecution presentation, see ibid. at pp. 2-3; on Newton faction refusal to testify for Pratt, see pp. 94-96.

114 AIRTEL from SAC, Los Angeles, to Acting Director, FBI, dated 7/18/72 (caption deleted), from The COINTELPRO Papers.

115 An “URGENT” Teletype, sent at 1:26 PM, 7-28-72, from the Los Angeles Field Office to the Acting Director, FBI, and reading, “LOS ANGELES SHERIFF’S OFFICE INTELLIGENCE, ADVISED INSTANT DATE ELMER GERARD PRATT FOUND GUILTY FIRST DEGREE MURDER … DETAILS TO FOLLOW,” gives some indication of the ownership and priority the Bureau felt in this case, from The COINTELPRO Papers.

116 See Amnesty International, Proposal for a commission of inquiry into the effect of domestic in telligence activities on criminal trials in the United States of America, Amnesty International, New York, 1980, p. 29: “[The defense obtained] over 7,000 pages of FBI surveillance records dated after 2 January 1969. Elmer Pratt claimed earlier records would reveal that he was at a meeting in Oakland at the time of the murder on 18 December 1968 but the FBI’s initial response to this was that there had been no surveillance before 1969. This was later shown to be untrue.”

117 See Elmer G. Pratt v. William Webster, et al., United States Court of Appeals in the District of Columbia (No. 81 1907) for presentation of the case, and Pratt v. Webster; et. al. (508 F. Supp. 751 [19811) for the ruling. The federal “national security” argument may be found in the reply brief (No. 81-1907).

118 For Judge J. Dunn’s dissenting remarks, see his minority opinion In Re: Pratt, 112 Cal. App. 3d. 795,-Cal. Rptr. (Crim. No. 3 7534. Second Dist., Div. One. 3 December 1980); hereinafter referred to as “Minority’ and “Majority. ”

119 Proposal for a commission of inquiry into the effect of domestic in telligence activities on criminal trials in the United States of America, op. cit., pp. 107-110. Informant Reports and related memoranda on file.

120 Summary at p. 15.

121 Proposal for a commission of inquiry into the effect of domestic in telligence activities on criminal trials in the United States of America, op. cit., p. 25.

122 The document also posits “the absolute necessity for intensive investigative efforts in [political] matters.”

123 Select Committee, Final Report, Book III, OP. cit., p. 517.

124 See New York Times, August 4, 1974, for documents and commentary.

125 This led directly to one of the three post-1971 “COINTELPRO-type” operations:”The leaking of derogatory information about Daniel Ellsberg’s lawyer to Ray McHugh, chief of the Copley News Service.” (Spying on Americans, op. cit., p. 151).

126 The break-in at the Media resident agency, which occurred on the night of March 8, 1971, compromised the secrecy of COINTELPRO and thereby set in motion a process of high level “re-evaluation” of the program’s viability. This led to an April 28 memorandum from Charles D. Brennan, number two man in the COINTELPRO administrative hierarchy, to his boss, FBI Assistant Director William C. Sullivan. Brennan recommended the acronym be dropped, but that the activities at issue be continued under a new mantle “with tight procedures to insure absolute secrecy.” Hoover’s famous “COINTELPRO termination” memo of the following day was merely a toned-down paraphrase of the Brennan missive. In another connection, it should be noted that publication of the COINTELPRO documents taken from the Media office was not in itself sufficient to cause the FBI to admit either the long-term existence or the dimension of its domestic counterintelligence activities. Instead, this required a suit brought by NBC correspondent Carl Stern after the reporter had requested that Attorney General Richard Kleindienst provide him with a copy of any Bureau document which “(i) authorized the establishment of Cointelpro – New Left, (ii) terminated such program, and (iii) ordered or authorized any change in the purpose, scope or nature of such program” on March 20,1972. Kleindienst stalled until January 13, 1973 before denying Stern’s request. Stern then went to court under provision of the 1966 version of the FOIA, with the Justice Department counter-arguing that the judiciary itself “lacks jurisdiction over the subject matter of the complaint.” Finally, on July 16, 1973 U.S. District Judge Barrington Parker ordered the documents delivered to his chambers for in camera review and, on September 25, ordered their release to Stern.

The Justice Department attempted to appeal this decision on October 20, but abandoned the effort on December 6. On the latter date, Acting Attorney General Robert Bork released the first two documents to Stern, an action followed on March 7,1974 by the release of seven more. By this point, there was no way to put the genie back in the bottle, and the Senate Select Committee as well as a number of private attorneys began to force wholesale disclosures of COINTELPRO papers.

127 Examples abound. Early instances come with Jimmy Carter’s Executive Order 12036, signed on January 24,1978, which moved important areas of intelligence/counterintelligence activity under the umbrella of “executive restraint” rather than effective oversight, and the electronic surveillance loopholes imbedded in S. 1566, a draft bill allegedly intended to protect citizens’ rights from such police invasion of privacy, which passed the senate by a vote of 99-1 on April 20,1978. This was followed on December 4,1981 by Ronald Reagan’s Executive Order 12333, expanding the range of activities in which U.S. intelligence agencies might “legally” engage. Then there was the Intelligence Identifies Protection Act of 1982 which made it a “crime” to disclose the identities of FBI informants, infiltrators and provocateurs working inside domestic political organizations. And, in 1983, Reagan followed up with Executive Order 12356, essentially allowing agencies such as the FBI to void the Freedom of Information Act by withholding documents on virtually any grounds they choose. Arguably, things are getting worse, not better.

128 For analysis and texts of the Media documents, see Paul Cowan, Nick Egleson, and Nat Hentoff, State Secrets (Holt, Rinehart and Winston, 1973).

129 Henry Steele Commager, “The Constitution Is Alive and Well,” New York Times, August 11, 1974. Commager, who has been forceful in defense of civil liberties and opposition to the Indochina war, states that prior to Nixon, “no President has ever attempted to subvert” the Constitution or “challenged the basic assumptions of our constitutional system itself.” But “the system worked” and the challenge was defeated.

130

131 The classic articulation of how this was rationalized came in the 1974 Justice Department report on COINTELPRO produced by an “investigating committee” headed by Assistant Attorney General Henry Peterson. After reviewing no raw files (innocuously worded FBI “summary reports” were accepted instead), but still having to admit that many aspects of COINTELPRO violated the law, the Peterson committee nonetheless recommended against prosecuting any of the Bureau personnel involved. “Any decision as to whether prosecution should be undertaken must also take into account several other important factors which bear on the events in question. These factors are: first, the historical context in which the programs were conceived and executed by the Bureau in response to public and even Congressional demands for action to neutralize the self-proclaimed revolutionary aims and violence prone activities of extremist groups which posed a threat to the peace and tranquility of our cities in the mid and late sixties; second, the fact that each of the COINTELPRO programs were personally approved and supported by the late Director of the FBI; and third, the fact that the interference with First Amendment rights resulting from individual implemented program actions were insubstantial.” The Senate Select Committee and other bodies went rather further in their research and used much harsher language in describing what had happened under COINTELPRO auspices, but the net result in terms of consequences to the Bureau and its personnel were precisely the same: none.

132 “Charges Over F.B.I.’s Tactics on Subversive Suspects Barred,” Washington Star-News; New York Times, January 4, 1975.

133 For an in-depth analysis of the disinformation campaign at issue, see Weisman, Joel D., “About that ‘Ambush’ at Wounded Knee,” Columbia Journalism Review, September-October 1975.

134

135 David Brion Davis, ed., _The Fear of Conspiracy_ (Ithaca: Cornell University Press, 1971). A fifth committed suicide before the sentence of death could be executed. Three others were sentenced to hanging as well, but were not executed. No proof was offered that any of the eight had been involved in the bomb-throwing.

136

137

138

139

140 See excerpts from Palmer in Davis, _op. cit._ On the role of the press, see Levin, _op. cit._.

141 See excerpt in Davis, op.cit.

142

143

144 Proceedings of the Federal-State Conference on Law Enforcement Problems of National Defense, August 5-6, 1940. From Ideological Warfare, op. cit. p. 44.

145 U.S. Congress, House, House Committee on Appropriations, First Deficiency Appropriations Bill, Hearing, February 19, 1941, pp. 188-89. 77th Congress, 1st session. From Ideological Warfare, op. cit. p. 43.

146 Personal and confidential memorandum from Hoover to Attorney General Tom Clark, March 8, 1946. Ibid., p. 44-45.

147

148

149

150

151

152

153 Ross Gelbspan, “Break-ins, Death Threats and the FBI: The Covert War Against the Central American Movement,” South End Press, Boston, MA, 1991, pp. 71-72

154 Ibid.

155 For further information on the FBI’s anti-CISPES operations, see Buitrago, Ann Mari, Report on CISPES Files Maintained by the FBI and Released under the Freedom of Information Act, FOIA, Inc., New York, January 1988.

156 U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Civil and Constitutional Rights, Break-Ins at Sanctuary Churches and Organizations Opposed to Administration Policy in Central America, Serial No. 42, 100th Congress, 1st Session, Government Printing Office, Washington, D.C., 1988, Hearing of February 19 20,1987, pp. 432 ff. Also see Harlan, Christi, “The Informant Left Out in the Cold,” Dallas Morning News, April 6,1986, Gelbspan, Ross, “Documents show Moon group aided FBI,” Boston Globe, April 118,1988; and Ridgeway, James, “Spooking the Left,” Village Voice, March 3, 1987. For more on Varelli’s role and the FBI’s attempt to scapegoat him, see Gelbspan, Ross, “COINTELPRO in the’80s: The ‘New’ FBI,” Covert Action Information Bulletin, No. 31 (Winter 1989), pp. 14-16.

157 See, for example, the FBI teletype on p. 18. Also see Buitrago, Report on CISPES Files Maintained by FBI Headquarters and Released Under the Freedom of Information Act, Fund for Open Information and Accountability, Inc., New York, 1988; Groups Included in the CISPES Files Obtained from FBI Headquarters, Center for Constitutional Rights, 1988; Ridgeway, James, “Abroad at Home: The FBI’s Dirty War,” Village Voice, February 9, 1988.

158 U.S. House of Representatives, Committee on the Judiciary, Subcommittee on Civil and Constitutional Rights, CISPES and FBI Counter-Terrorism Investigations, Serial No. 122, 100th Congress, 2nd Session, U.S. Government Printing Office, Washington, D.C., 1989, Hearing of September 16,1988, pp. 116-27. The changing public positions taken by Webster and Sessions concerning the FBI’s CISPES operations are well traced in Buitrago, Ann Mari, “Sessions’ Confessions,” Covert Action Information Bulletin, No. 31 (Winter 1989), pp. 17-19.

Bibliography

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