Member of Parliament both party Students on college campuses across the country protesting U.S. support for Israel in the Gaza war have called for an FBI investigation, alleging without evidence that they support Hamas terrorism or may be funded by Russia.
In a recent interview, FBI Director Christopher Wray said the bureau provides threat information to campus leaders and local police but “is not monitoring protests.”
Wray’s denial is misleading at best: FBI guidelines allow agents to use a variety of intrusive tactics to investigate individuals and organizations long before there is evidence of a possible crime or threat. And recently released interviews with FBI field supervisors make it clear that they are using these methods to spy on protesters, with dangerous consequences.
Rather than encouraging the FBI to take similar measures against students, Congress has a responsibility to examine how agents are using their current authority and whether FBI guidelines should permit such actions.
Information about the FBI’s counter-protest tactics emerged during depositions given by two FBI field supervisors in a lawsuit over the Standing Rock anti-pipeline protests in 2016. The depositions provide a rare glimpse into the methods and attitudes of FBI agents who are responsible for enforcing FBI policy in the field.
The Standing Rock Sioux tribe opposed the Dakota Access Pipeline project, which they believed would threaten the reservation’s water resources and sacred sites. Protesters often faced violence from private security companies and state and local military police.
FBI supervisors who testified said their role in the special federal, state and local law enforcement task force responding to the protests was primarily to provide intelligence.DepositionWe provide evidence suggesting that internal monitoring mechanisms can prevent unjustified surveillance of protesters.
The surrounding areaNovember 2016For example, a field supervisor asked FBI headquarters for permission to deploy the bureau’s drone to monitor protesters moving from the encampment to the protest site. FBI officials in Washington, DC, denied the request on First Amendment grounds because there was no open investigation at the time that would justify drone surveillance.
But while FBI headquarters denied using drones to spy on protesters from the air, agents were monitoring them through other, possibly more intrusive, means. A local FBI agent said:10 informantsAccording to testimony, investigations into the camp began as early as August 2016, with plainclothes agents periodically wandering the camp and speaking with protesters without revealing their identities.
It may seem hard to understand how sending informants or unidentified government agents into protest camps to befriend them and then betray their trust would violate the First Amendment, while filming protests with drones would violate the First Amendment, yet FBI regulations allow this outcome.
The FBI has no legal charter limiting its investigative powers and is regulated by guidelines issued by the attorney general. The guidelines were first issued in 1976 to thwart misconduct targeting civil rights workers and Vietnam War protesters in the 1960s, but were relaxed after the 9/11 attacks and more significantly in 2008.
Current guidelines allow for “evaluations” and do not require factual basis to suspect criminal activity before deploying intrusive investigative techniques, such as recruiting and assigning informants, searching online public records (including social media posts), or conducting physical surveillance. Some FBI policies calling for greater oversight of the use of informants during evaluations and investigations may violate First Amendment rights, but internal audits and Inspector General investigations have found that these rules are often ignored in practice.
Hiring informants is a risky and difficult job, even when law enforcement uses them to gather evidence about violent organized crime groups, as in the White-Bulger case. Between many othersis proof enough: Bulger led the Winter Hill Gang in South Boston, committing murder and extortion while working as an FBI informant.
When law enforcement agencies use informants to infiltrate protest groups through fraud and deception, it undermines the legitimacy of the government, undermines the democratic process, and does much more damage. But the FBI has longhistoryThese tactics are often used to suppress protests, especially those led by people of color. Far from suppressing crime, informants often foment conflict and incite violence.
Supervisors in depositions argued that the Standing Rock informants’ mission was only to provide information about criminal activity, not a constitutionally protected activity.
But one supervisor said,ShownThe informant provided identifying information about people in the camp, the camp’s buildings and equipment, and potential plans of action. The informant never saw any weapons, he said, and many of the crimes they alleged could not be substantiated. Another supervisor said:I got it.Informants reported weapons stockpiles, but investigations found these reports to be discredited.
Because there is no reward for not reporting threats, false or sensationalized reports by informants are common. Sensationalized reports by informants may help justify more aggressive police tactics and explain violent police responses to primarily nonviolent protests.
The FBI has opened several criminal investigations, including:Arson investigationThe incident occurred after protesters set fire to barricades. But the most serious criminal case the FBI has pursued against Standing Rock protesters highlights the dangers of sending informants into protests.
Red Fawn Farris, an Indigenous activist, was arrested by police during a clearing of one of the protest camps and charged with firing a handgun she had concealed in her pocket, a weapon she had brought to the camp with a man who had become her boyfriend during the protests and who was working as an FBI informant at the time.
The Standing Rock revelations reveal how the FBI’s unlimited use of informants endangers protesters, police officers, and public trust in government institutions.
Rather than encouraging the FBI to spy on Americans without evidence of wrongdoing, congressional overseers should be asking how the agency obtains the information it shares with university officials and local police, and whether these law enforcement measures protect or threaten our democracy.
Mike German is a fellow in the Brennan Center for Justice’s Liberty and National Security Program.
