Ninth Circuit allows suit challenging military surveillance

Nadia Kayyali

Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. . . There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist’s shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed . . .

While originally written in dissent from the Laird v. Tatum in 1979, Supreme Court Justice William Douglas could have been describing Panagacos v. Towery. The Towery case was decided just a few weeks ago by the US Court of Appeals for the Ninth Circuit, arising from the infiltration of activist groups in Tacoma and Olympia, WA. From 2007 to 2009, John Towery, a criminal intelligence analyst for the army, infiltrated and spied on these groups, going by the name John Jacob.

Unfortunately, Justice Douglas’ statement is from the dissent in the Supreme Court’s ruling in Laird v. Tatum, a 1979 case in which the Supreme Court ruled that the fear of surveillance, leading to chilling of First Amendment activity, was too speculative to support a claim. This precedent, along with other obstacles, has made it almost impossible to sue the Pentagon for domestic spying.

However, one National Lawyers Guild attorney, Larry Hildes, is hoping to change that. A December 17 ruling by the Ninth Circuit breathed new life in his efforts.

Towery’s identity was discovered almost by accident. Brendan Maslaukas Dunn, an activist with Students for a Democratic Society, Port Militarization Resistance, and the Industrial Workers of the World made a Freedom of Information Act request for any communications between the Olympia police and the military concerning anarchists. He recounts:

One of the documents was an email that was sent between personnel in the military, and the email address that was attached to this email was of John J. Towery. We didn’t know who that was, but several people did a lot of research to find out who that was, and they identified that person as being John Jacob.

It is unclear exactly how much information John Towery shared with law enforcement and the military, but there are at least 133 pages of intelligence documents, including Towery’s spying contract with the Pierce County Sheriff’s Department, available online.

The depth of the surveillance was shocking.  Towery not only attended demonstrations and spent time at a local anarchist-run community center, but also administered email lists and even became close friends with some of the activists, including Dunn.  The lawsuit alleges that this information was used to suppress demonstrators in actions around military shipments at local ports, even leading to false arrests.

Mr. Hildes filed the lawsuit against Towery and his supervisors in January 2010 on behalf of Dunn and fifteen other individuals.  The defendants responded with a motion to dismiss all the allegations, which would have stopped the case from proceeding to discovery and trial. The Ninth Circuit’s decision, however, denied the motion (at least for the portion of the complaint alleging violations of the plaintiffs’ First and Fourth amendment rights). More specifically, the court noted that:

Plaintiffs have pled a plausible violation of their clearly established First Amendment rights. Plaintiffs have alleged that defendants “deterred or chilled the plaintiff’s political speech” and that such deterrence motivated defendants’ conduct….As a result of defendants’information sharing and coordination with local law enforcement, plaintiffs were allegedly arrested without probable cause. . . .

The TAC’s allegations also support a plausible inference that defendants were motivated by an impermissible intent to disrupt plaintiffs’ speech activities. Given plaintiffs’ strong anti-war message and defendants’ alleged illegal actions in purposefully facilitating a campaign of false arrests, it is plausible that Towery and Rudd were motivated by a desire to silence the protesters and not just by a desire to protect military shipments. . . .

Finally, it is clearly established that intentionally enabling arrests without probable cause in order to suppress speech violates the First Amendment.

Plaintiffs have also pled plausible violations of their clearly established Fourth Amendment rights. It is clearly established that facilitating arrests without probable cause violates the Fourth Amendment. The district court also correctly determined that the TAC’s allegations that Towery coordinated with local police to covertly break into a private listserve plausibly describe an unconstitutional search. [citations omitted]

This decision proves a point: surveillance does not happen in a vacuum. It has results, and those results can be constitutional violations. What’s more, the fear that the Supreme Court described in Laird as merely speculative has very real effects. As Mr. Hildes notes about PMR:

What made it different from other groups was that it was some of the most effective civil disobedience I’ve ever seen. They could stop military shipments. PMR isn’t very active at this point. This [the spying] really took a toll on people and the organizing.

The ruling in this case suggests that social movements can challenge military spying and disruption, if they can find evidence of the surveillance and establish its impact. There is, however, an aspect of luck here: the effects of surveillance will not always be provable. In the meantime, as Justice Douglas said:

Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government.

Originally appeared on the Bill of Rights Defense Committee's People's Blog for the Constitution.