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SUV Burning Spurred Internal Debate at DHS on Its Role Regarding Occupy, First Amendment Activity
On October 24, 2011, a domestic terrorism analyst with the Department of Homeland Security’s (DHS) Homeland Counterterrorism Division emailed colleagues an article he or she had come upon in Grey Coast Anarchist News entitled, “Eugene: SUV covered in anti-oil, pro-occupation graffiti and set on fire.” The analyst said he or she was, “interested in a possible write up of the event for the state and locals.”
“Before I spent the time writing on this, however,” according to an email DHS released to Truthout Wednesday morning along with hundreds of pages of other documents in response to our Freedom of Information Act (FOIA) request. “I’d like to know what objections CRCL [the department’s Office of Civil Rights and Civil Liberties] might pose to such a product concerning the Occupy movement – which has thus far been nonviolent.”
The responses were varied. A policy adviser for CRCL registered skepticism that Occupy Wall Street’s activities fell under the purview of the DHS, citing, “our longstanding position that DHS should not report on activities when the basis for reporting is political speech.”
“Any violence thus far,” observed the analyst:
seems to be limited to clashes between some individuals who are or may be associated with the movement (the order of events in Oakland doesn’t seem to be clear) during attempts to remove protestors from certain locations or enforce curfews. In a product on the incident in Eugene, we’d be particularly concerned about attribution of the incident. The article notes that the police say they don’t know who set the fire or why they did it, and while some of the graffiti contains slogans consistent with some of the Occupy movement’s protests, the police say it would be ‘unfair to blame any one group’ for the incident, and the spokesperson for Occupy Eugene denounced the event and said it was not part of their tactics. Unless there is other intelligence that indicates that the vandalism can be attributed to the group, the product would have to be very careful not to attribute the incident to the movement.
That respondent elaborated on the central question of whether the fire in Eugene could meaningfully be said to have been committed by Occupy, writing, “[I]t is unclear what is appropriately attributable to the Occupy movement versus individuals who may later enter into a conflict with policy.”
Read More: Homeland Security: The Occupy Files
Another CRCL policy adviser had a divergent perspective, postulating a similarity between Occupy Wall Street and the Earth Liberation Front, considered an “eco-terrorist” faction: “I expect that the analyst considers the single incident to be an incident of domestic terrorism (similar to ELF attacks on SUVs), and would argue that the DHS authority to report would be based on this being a suspected domestic terrorism incident. I think a reasonable case could be made for that.”
The respondent, whose name, though redacted, bears the title “Esq.,” thought that a counterterrorism report should confine itself to the SUV incident rather than the movement at large, contending, “Given that their only foray into illegal activities, as a movement, seems to be violating permit rules and clashes with the police over removals (mostly, but not exclusively, through civil disobedience tactics), a product would tend to appear as merely reporting on the First Amendment activity.”
Another respondent took exception even to that view, insisting that, “[I]f the basis for reporting is a single incident, not the general movement, the single incident does not appear to be a Homeland Security issue,” additionally expressing fear that, “[N]o matter how you parse a potential report, any product on OWS which seeks to report on the movement in general, or the potential for violence nationwide would largely be reporting on First Amendment protected activity.”
Shala Byers, a DHS analyst, saw fit to remind those on the email thread of CRCL guidance for situations, “where first amendment rights could be potentially violated.” Those guidelines:
The government may never collect or disseminate information based solely on First Amendment protected activities, or conduct investigations on that basis. Generally, reporting should be about the violence or criminality of a particular individual or group. Reporting on activities without a nexus to violence or criminality often raises First Amendment concerns. To justify research into and creation of a product containing First Amendment protected activity, personnel should consider whether they have a lawful predicate (e.g. a lawful purpose to perform their authorized law enforcement functions or other activities, that is not based on the protected activity itself). Once a lawful predicate has been established, personnel should ensure the scope of the research and reporting on the First Amendment protected activity is limited to the threat posed. This is often referred to as congruence. The treatment of groups that may be involved in the First Amendment protected activity or related events should be even handed and free of bias (e.g., not reporting more extensively or negatively on one group based on their viewpoint alone).
The question of the health and safety of the public (which was ultimately the justification given for the eviction of occupations around the country) raised controversy in the thread. One person wrote: “Other concerns appear to be health and safety related (use of heating equipment, disposal of trash, etc). As these concerns generally are localized and not related to domestic terrorism, to our knowledge, it would be difficult for DHS to justify a product on what is largely First Amendment protected activity that doesn’t appear to have a nexus to a DHS mission.”
Another person, however, wasn’t so quick to dismiss health and safety issues as outside DHS’s focus, bringing up “reports on the environment created at the protests sites that would endanger public health and safety, where the health and safety concern relates to a DHS mission.”
J.A. Myerson has reported previously on attempts to link Occupy protests with terrorism.