If An Agent Knocks: Federal Investigators and Your Rights
If an Agent Knocks: Federal Investigators and Your Rights
Background
1.What is Political Intelligence?
2.Do I have to talk to the FBI?
3.Under what laws do the agents operate?
4.What federal agencies are likely to be interested in a citizen's
political activities and affiliations?
5.How does the FBI learn about citizens and organizations?
6.What if I suspect surveillance?
7.How should I respond to threatening letters or calls?
8.What rights do I have?
9.What should I do if police, FBI, or other agents appear with an
arrest or search warrant?
10.What should I do if agents come to question me?
11.If I don't cooperate, doesn't it look like I have something to hide?
12.Are there any circumstances under which it is advisable to cooperate
with an FBI investigation?
13.How can grand juries make people go to jail?
14.Is there any way to prevent grand jury witnesses from going to jail?
15.What can lawyers do?
Errata
Notes
Background
People opposing U.S. policies in Central America, giving sanctuary
to refugees from Guatemala and El Salvador, struggling for Black
liberation, and against nuclear weapons, are today more than ever
likely to receive visits from FBI agents or other federal
investigators. Increasingly, agents are also visiting the familist,
friends, and employers of these activists.
This pamphlet is designed to answer the most frequent questions
asked by people and groups experiencing government scrutiny, and
to help them develop practical responses.
What is Political Intelligence?
Political intelligence is information collected by the government
about individuals and groups. Files secure under the Freedom of
Information Act disclose that government officials have long been
interested in all forms of data. Information gathered by government
agents ranges from the most personal data about sexual liaisons and
preferences to estimates of the strength of groups opposing U.S.
policies. Over the years, groups and individuals have developed
various ways of limiting the collection of information and
preventing such intelligence gathering from harming their work.
Do I have to talk to the FBI?
No. The FBI does not have the authority to make anyone answer
questions (other than name and address [see errata]), to permit a
search without a warrant, or to otherwise cooperate with an
investigation. Agents are usually lawyers, and they are always
trained as investigators; they have learned the power of persuasion,
the ability to make a person feel scared, guilty, or impolite for
refusing their requests for information. So remember, they have no
legal authority to force people to do anything -- unless they have
obtained an arrest or search warrant. Even when agents do have
warrants, you still don't have to answer their question.
Under what laws do the agents operate?
In 1976, FBI guidelines regulating the investigation of political
activities were issued by Attorney General Edward H. Levi.
Criticized by liberals and conservatives alike, the guidelines were
issued in the wake of a Congressional committee's report of highly
questionable activities by the FBI: monitoring the activities of
domestic political groups seeking to effect change. The report
exposed the FBI's counter-intelligence program (COINTELPRO)
under which the agency infiltrated groups, compiled dossiers on,
and directly interfered with individuals engaged in activities
protected by the First Amendment rights to freedom of expression
and association.
The FBI COINTELPRO program was initiated in 1956. Its
purpose, as described later by FBI Director J. Edgar Hoover, was
"to expose, disrupt, misdirect, discredit, or otherwise neutralize
activities" of those individuals and organizations whose ideas or
goals he opposed. Tactics included: falsely labelling individuals as
informants; infiltrating groups with persons instructed to disrupt
the group; sending anonymous or forged letters designed to
promote strife between groups; initiating politically motivated IRS
investigations; carrying out burglaries of offices and unlawful
wiretaps; and disseminating to other government agencies and to
the media unlawfully obtained derogatory information on
individuals and groups.
In 1983, Attorney General William French Smith issued
superseding guidelines that authorized "domestic security/
terrorism" investigations against political organizations whenever
the FBI had a reasonable belief that these groups might violate a
law. The new guidelines permitted the same intrusive techniques
the FBI used against organized crime.
The Smith guidelines were justified by the Attorney General's
observation that "our citizens are no less threatened by groups
which engage in criminal violence for political... purposes that by
those which operate lawlessly for financial gain." He concluded:
"we must ensure that criminal intelligence resources that have been
brought to bear so effectively in organized crime and racketeering
investigations are effectively employed in domestic security/
terrorism cases." The guidelines provide, therefore, no safeguards to
protect against infringements of First Amendment rights.
Worst, they ignore the history of COINTELPRO abuses, and
abolish the distinction between regular criminal investigations and
investigations of groups and individuals seeking political change.
They fail to limit the investigative techniques used to obtain data
on political groups, so that now the FBI may use any technique,
including electronic surveillance and informers, against political
organizations.
Today, the FBI may begin a full investigation whenever there is a
reasonable indication that "two or more persons are engaged in an
enterprise for the purpose of furthering political or social goals
wholly or in part through activities that involve force or violence
and a violation of the criminal laws of the United States." The FBI
has interpreted "force or violence" to include the destruction of
property as a symbolic act, and the mere advocacy of such property
destruction would trigger an investigation. Even without any
reasonable indication, under a separate guideline on "Civil
Disorders and Demonstrations Involving a Federal Interest," the
FBI may investigate an organization that plans only legal and
peaceful demonstrations.
Another set of rules governing federal intelligence gathering is
Executive Order 12333, in force since 1981. It authorizes the FBI
and CIA to infiltrate, manipulate and destroy U.S.political
organizations, as well as to use electronic surveillance -- under the
pretext of an international intelligence investigation.
What federal agencies are likely to be interested in a citizen's
political activities and affiliations?
The FBI is still the major national intelligence-gathering agency.
There are also many other federal, state, local and private
investigative agencies. At least 26 federal agencies may gather
intelligence, including the Immigration & Naturalization Service,
Internal Revenue Service, and the Treasury Department's Bureau of
Alcohol, Tobacco and Firearms. Local police agencies sometimes
contain "special services" units and narcotics or other "strike
forces" in which federal, state, and local agencies cooperate. The
Central Intelligence Agency and National Security Agency are
particularly active when a political organization has or is suspected
to have international contacts. Military security agencies and
increasingly significant "private" research institutes and security
agencies also gather intelligence.
A recent Freedom of Information Act request on behalf of the
Livermore Action Group, an anti-nuclear organization, revealed that
the Navy, the U.S. Marshal's Service, and the Marine Corps all sent
agents to the Group's public meetings and kept newspaper reports
of such meetings. Most chilling was the revelation that the Federal
Emergency Management Agency (FEMA) -- the federal agency
charged with implementing martial law in the event of a nuclear war
-- was also watching the Livermore group.
Federal and state, local and private agencies, all tend to share
information in a variety of ways.
How does the FBI learn about citizens and organizations?
Political intelligence is gathered from public sources, such as
newspapers and leaflets. It is also collected by informers who may
be government employees or people recruited by them. Political
intelligence is also collected through FBI visits to your home or
office. We are here most concerned with this aspect of intelligence
gathering.
Agents may be sent to interview people after FBI officials decide
there is a "reasonable indication" that an organization or person
meets the guidelines for a "domestic security" investigation. Such
interviews are a primary source of information, for most people are
not aware of their right not to talk to federal agents.
Most people are also unaware of the limits to the power of FBI and
other investigative agents. Many people visited by agents are also
afraid of being rude or uncooperative. Agents may be friendly and
courteous, as if they are attempting to protect you or your
organization, or express admiration for your organization and its
goals. Occasionally, the FBI may persuade a disaffected member of
an organization to give them information about other members,
including their personal lives, character and vulnerabilities.
A major job of FBI agents is to convince people to give up their
rights to silence and privacy. For example, after a Quaker pacifist
spoke in Anchorage, Alaska, at a memorial Service for El
Salvador's Archbishop Romero, FBI agents visited a local priest
and interrogated him about the speaker. The agents asked about the
speaker's organizational affiliations and expressed fears about
"terrorist connections." The agents informed the priest that they
would do a "computer check" on the speaker and his wife, and
asked the priest if the two might do violence to the U.S. President,
scheduled to visit the area. These interrogations were repeated in
the community by agents who later admitted there was no basis for
their questions about "terrorist connections" and the danger to the
President.
What if I suspect surveillance?
Prudence is the best course, no matter who you suspect, or what the
basis of your suspicion. When possible, confront the suspected
person in public, with at least one other person present. If the
suspect declines to answer, he or she at least now knows that you
are aware of the surveillance. Recently, religious supporters of a
nation-wide call to resist possible U.S. intervention in Central
America noticed unfamiliar people lurking around their offices at 6
a.m., but failed to ask what they wanted and who they were. If you
suspect surveillance, you should not hesitate to ask the suspected
agents names and inquire about their business.
The events giving rise to suspicions of surveillance vary widely, but
a general principle remains constant: confront the suspected agents
politely and in public (never alone) and inquire of their business. If
the answer does not dispel your suspicion, share it with others who
may be affected and discuss a collective response. Do not let fears
generated by "conspicuous" surveillance create unspoken tensions
that undermine your work and organization. Creating fear is often
the purpose of obvious surveillance. When in doubt, call a trusted
lawyer familiar with political surveillance, or call the Movement
Support Network Hotline: (212) 477-5652.
How should I respond to threatening letters or calls?
If your home or office is broken into, or threats have been made
against you, your organization, or someone you work with, share
this information with everyone affected. Take immediate steps to
increase personal and office security. You should discuss with your
organization's officials and with a lawyer whether and how to
report such incidents to the police. If you decide to make a report,
do not do so without the presence of counsel.
What rights do I have?
1.The Right to Work for Change. The First Amendment to the U.S.
Constitution protects the rights of groups and individuals who
advocate, petition, and assemble to accomplish changes in laws,
government practices, and even the form of government Political
intelligence gathering is not supposed to interfere with these rights.
2.The Right to Remain Silent. The Fifth Amendment of the
Constitution provides that every person has the right to remain
silent in the face of questions (other than name and address) posed
by any police officer or government agent.
Since 1970, however, federal prosecutors may request judges to
order a subpoenaed witness to testify, after a grant of immunity, at
a grand jury hearing or at a criminal trial. This grant of immunity
means that your Fifth Amendment right to refuse to testify is taken
away. What is given to you is only the promise not to use your
testimony against you in a subsequent criminal prosecution. But
you can still be charged with a crime. Failure to testify after a grant
of immunity is discussed below.
3.The Right to be Free from "Unreasonable Searches and Seizures."
Without a warrant, no government agent is allowed to search your
home or office (or any other place that is yours and private) You
may refuse to let FBI agents come into your house or into your
workplace. unless they have a search warrant. Politeness aside, the
wisest policy is never to let agents inside. They are trained
investigators and will make it difficult for you to refuse to talk.
Once inside your home or office, just by looking around, they can
easily gather information about your lifestyle, organization, and
reading habits.
The right to be free from "unreasonable searches and seizures" is
based on the Fourth Amendment lo the Constitution. This
Amendment is supposed to protect against government access lo
your mail and other written communications, telephone and other
conversations. Unfortunately, it is difficult to detect government
interference with writings and conversations. Modern technology
makes it difficult to detect electronic surveillance on a telephone
line, other listening devices, or cameras that record whatever occurs
in a room. Also common are physical surveillance (such as agents
following in car or on foot), mail covers, and informers carrying
tape recorders.
What should I do if police, FBI, or other agents appear with an
arrest or search warrant?
Agents who have an arrest or search warrant are the only ones you
are legally required to let into your home or office. You should ask
to see the warrant before permitting access. And you should
immediately ask to call a lawyer. For your own physical safety you
should not resist, even if they do not show you the warrant, or if
they refuse to let you call your lawyer. To the extent permitted by
the agents conducting a search, you should observe the search
carefully, following them and making mental or written notes of
what the agents are doing. As soon as possible, write down what
happened and discuss it with your lawyer.
What should I do if agents come to question me?
Even when agents come with a warrant, you are under no legal
obligation to tell them anything other than your name and address.
It is important, if agents try to question you, not to answer or make
any statements, at least not until after you have consulted a lawyer.
Announce your desire to consult a lawyer, and make every
reasonable effort to contact one as quickly as possible. Your
statement that you wish to speak to the FBI only in the presence of
a lawyer, even if it accomplishes nothing else, should put an end to
the agents' questions. Department of Justice policy requires agents
to cease questioning, or refrain from questioning, anyone who
informs them that he or she is represented by a lawyer. To reiterate:
upon first being contacted by any government investigator the
safest thing to say is, "Excuse me, but I'd like to talk to my lawyer
before I say anything to you." Or, "I have nothing to say to you. I
will talk to my lawyer and have her [or him] contact you." If agents
ask for your lawyer's name, ask for their business card, and say you
will have your lawyer contact them. Remember to get the name,
agency, and telephone number of any investigator who visits you. If
you do not have a lawyer, call Movement Support Network Hotline
(212) 477-5652, or call the local office of the National Lawyers
Guild.
As soon as possible after your first contact with an investigator,
write a short memo about the visit, including the date, time,
location, people present, any names mentioned by the investigators,
and the reason they gave for their investigation. Also include
descriptions of the agents and their car, if any. This may be useful
to your lawyer and to others who may be contacted by the same
agents.
After discussing the situation with your lawyer, you may want to
alert your co-workers, friends, neighbors, or political associates
about the visit. The purpose is not to alarm them, but to insure that
they understand their rights. It might be a good idea to do this at a
meeting at which the history of investigative abuse is presented.
If I don't cooperate, doesn't it look like I have something to hide?
This is one of the most frequently asked questions. The answer
involves the nature of political "intelligence" investigations and the
job of the FBI. Agents will try to make you feel that it will "look
bad" if you don't cooperate with them. Many people not familiar
with how the FBI operates worry about being uncooperative.
Though agents may say they are only interested in "terrorists" or
protecting the President, they are intent on learning about the
habits, opinions, and affiliations of people not suspected of
wrongdoing. Such investigations, and the kind of controls they
make possible, are completely incompatible with political freedom,
and with the political and legal system envisaged by the
Constitution.
While honesty may be the best policy in dealing with other people,
FBI agents and other investigators are employed to ferret out
information you would not freely share with strangers. Trying to
answer agents' questions, or trying to "educate them" about your
cause, can be very dangerous -- as dangerous as trying to outsmart
them, or trying to find out their real purpose. By talking to federal
investigators you may, unwittingly, lay the basis for your own
prosecution -- for giving false or inconsistent information to the
FBI. It is a federal crime to make a false statement to an FBI agent
or other federal investigator. A violation could even be charged on
the basis of two inconsistent statements spoken out of fear or
forgetfulness.
Are there any circumstances under which it is advisable to
cooperate with an FBI investigation?
Never without a lawyer. There are situations, however, in which an
investigation appears to be legitimate, narrowly focused, and not
designed to gather political intelligence. Such an investigation
might occur if you have been the victim of a crime, or are a witness
to civil rights violations being prosecuted by the federal
government. Under those circumstances, you should work closely
with a lawyer to see that your rights are protected while you
provide only necessary information relevant to a specific incident.
Lawyers may be able to avoid a witness' appearance before a grand
jury, or control the circumstances of the appearance so that no one's
rights are jeopardized.
How can grand juries make people go to jail?
After being granted immunity and ordered to testify by a judge,
grand jury witnesses who persist in refusing to testify can be held
in "civil contempt." Such contempt is not a crime, but it results in
the witness being jailed for up to 18 months, or the duration of the
grand jury, whichever is less. The purpose of the incarceration is to
coerce the recalcitrant witness to testify. In most political cases,
testifying before a grand jury means giving up basic political
principles, and so the intended coercion has no effect -- witnesses
continue to refuse to testify.
Witnesses who, upon the request of a grand jury, refuse to provide
"physical exemplars" (samples of handwriting, hair, appearance in a
lineup, or documents) may also be jailed for civil contempt, without
having been granted immunity.
The charge of "criminal contempt" is also available to the
government as a weapon against uncooperative grand jury
witnesses. For "criminal contempt" there is no maximum penalty --
the sentence depends entirely on what the judge thinks is
appropriate. Charges of criminal contempt are still rare. They have
been used, however, against Puerto Rican independentistas,
especially those who have already served periods of incarceration
for civil contempt.
Is there any way to prevent grand jury witnesses from going to jail?
There is no sure-fire way to keep a grand jury witness from going to
jail. Combined legal and community support often make a
difference, however, in whether a witness goes to jail and, if so, for
how long. Early awareness of people's rights to refuse to talk to the
FBI may, in fact, prevent you from receiving a grand jury subpoena.
If the FBI is only interested in getting information from you, but
not in jailing you, you may not receive a grand jury subpoena.
What can lawyers do?
A lawyer can help to ensure that government investigators only do
what they are authorized to do. An attorney can see to it that you do
not give up any of your rights. If you are subpoenaed to a grand
jury your lawyer can challenge the subpoena in court, help to raise
the political issues that underlie the investigation, and negotiate for
time. Your lawyer can also explain to you the grand jury's
procedures and the legal consequences or your acts, so that you can
rationally decide on your response.
ERRATA
A law enforcement official can only obtain your name and address
if he or she has a reasonable suspicion to believe that you have
committed or are about to commit a crime [note #2]. Thus, if an
FBI agent knocks at your door you do not have to identify yourself
to him; you can simply say "I don't want to talk to you," or "You'll
have to speak to my lawyer," and then close the door. An FBI agent,
unlike a local police officer, does not have jurisdiction to
investigate violations of state statute.
First Edition published March 1985.
Published by
Center for Constitutional Rights
853 Broadway, 14th Floor
NY, NY 10003
(212) 674-3303
Notes:
1.See Final Report of the Senate Select Committee to Study
Governmental Operations, 94th Congress, 2d Session, Report No.
94-755
2.See e.g. United States v. Hensley, 83 L. Ed. 2d 604
(1985); Kolander v. Lawson, 461 U.S. 352 (1983); Brown v. Texas,
443 U.S. 47 (1979).
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