Criminalizing Dissent (3/04)

This isn’t the article I planned to write. My initial idea was to analyze the Patriot Act, especially the way this law has given license to federal, state, and local law enforcement to curtail due process protections by blurring the line, more fluid than ever, between what law enforcement can do in the name of foreign intelligence and during a domestic criminal investigation.

However, the end of 2003 brought even more bad news about civil liberties and the First Amendment. In response, my cautionary narrative about what might happen if we don’t pressure Congress to repeal the Patriot Act became a chronicle of recent events that should send a chill up the spines of all who believe in the US Constitution. It’s no longer a matter of what might happen, but what is already happening.

Disturbing Episodes

October 15: Although widely reported in the November 23, 2003, edition of the New York Times, the FBI Intelligence Bulletin entitled “Tactics Used During Protests and Demonstrations” was dated October 15, 2003. After admitting that “most protests are peaceful events,” the memo goes on to suggest that some demonstrations, like International Monetary Fund and World Bank protests, “are more likely to be violent and disruptive and to require enhanced law enforcement security.”

The FBI memo also lists tactics traditionally used by demonstrators, including coordination of activities, fundraising, training, surveillance of locations prior to a demonstration, banners, use of cell phones for communication, and videotaping of arrests. Even though none of these are illegal, the document closes with the following directive: “Law enforcement agencies should be alert to these possible indicators of protest activity and report any potentially illegal acts to the FBI Joint Terrorism Task Force.”

Week of November 17: Tens of thousands come to Miami, Florida, to protest the Free Trade Area of the Americas (FTAA). They are greeted with brutal repression, a display of militaristic force by local law enforcement, and an apparent suspension of the Bill of Rights. Protesters are subjected to illegal arrests, random searches, destruction of personal property, physical intimidation, and physical and sexual abuse while in jail. Among those arrested are members of the independent media, including the producer of Democracy Now, along with legal observers and lawyers.

November 21: An interview with General Tommy Franks in Cigar Aficionado receives media attention. Franks offers his thoughts about what might happen in a “practical sense” if a Western country, not necessarily the US, were hit with a massive casualty-producing event. If that happened, he suggests, it would cause people in the US to “question our own Constitution and to begin to militarize our country…”

November 23: Protesters gather in Fort Benning, Georgia, at the US Army’s old School of the Americas (SOA). Protests have occurred here annually for the last 13 years, but this time the situation is particularly troubling. An Associated Press report includes the following statement by an army officer: “We’re on our side, just keeping an eye on them. We would like to see this get over with as peacefully as possible. We don’t have any reason to think it won’t.”

The experience of Kathy Kelly, an activist with Voices in the Wilderness, tells a different story. Kelly is arrested, aggressively body searched, hog-tied at the wrists and ankles, given a black eye, and threatened with pepper spray. Commenting on her ordeal, Kelly says the soldiers “must have been ordered not to tolerate the slightest dissent. They were practicing intimidation tactics far beyond what would be needed to control an avowedly nonviolent group.” Protesters at the SOA have never caused any disruption when being arrested.

November 30: In April 2002, Greenpeace activists boarded a ship thought to be carrying illegally harvested mahogany. They were arrested and pled guilty to a misdemeanor charge. The Department of Justice (DOJ) then charged the organization with operating a criminal enterprise, under an obscure 1872 criminal statute. In November, the DOJ amends the original indictment and hauls Greenpeace into federal court for another arraignment.

Meanwhile, the California Attorney General’s office releases new surveillance guidelines and advises local law enforcement to observe these stricter standards when it comes to spying on the public. The guidelines were developed when it became public that a Fresno sheriff’s deputy posed as a peace activist with Peace Fresno for six months, attending meetings and spying on the group. The November 30, 2003, Boston Sunday Globe reports that when the Fresno Sheriff’s department was asked about the new guidelines, officials said they had no plans to change their methods and were unapologetic about the incident.

These episodes aren’t about locating terrorists or preventing violence. Rather, they are examples of a dangerous push to redefine certain free speech activities. Nonviolent dissent apparently is no longer protected by the First Amendment. Quite the opposite, it is a primary target for a law enforcement community that is flexing newly developed muscles. For the first time in decades, the government is making a concerted effort not only to curtail dissent, but also criminalize it.

Defending Dissent

Why are we seeing increased repression of First Amendment activities? Activists who care about peace, economic justice, the environment, gender equality, human rights, and the other pressing issues haven’t become more criminal. Rather, the definitions have changed. Behavior once considered nonviolent dissent is being redefined and placed squarely into the category of domestic terrorism, as defined in the Patriot Act.

Section 802 of the Act, hastily passed in October 2001 after the horrific events of 9/11, defines domestic terrorism as “acts dangerous to human life that are a violation of the criminal laws of the United States or of any State and appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion.”

Many people nevertheless remain complacent. I’ve heard it said that if you aren’t committing a crime, you have nothing to worry about. If you accept that logic, consider the organizations you support, the groups with which you associate, and the activities they pursue. Then, closely read the definition of domestic terrorism and see if your confidence is shaken a bit.

The effect of increased repression will ultimately be a chilling of dissent. Only by tolerating, even supporting, dissent can we show that we value democracy achieved through an unfettered dialogue between opposing perspectives. It isn’t just valuable to our society, it’s absolutely essential.

That discussion can’t be confined to Congress, state houses, city halls, and the media, since not all perspectives have access to such channels. If you rely on traditional mass media for your news, for example, you probably didn’t hear much about the incidents cited above. And if you rely only on elected officials, the status quo isn’t likely to be challenged. The dialogue, therefore, must be taken to the streets, as it was by those who took part in the Boston Tea Party, women’s suffrage, the civil rights, anti-war, and anti-apartheid movements, and other great and ultimately successful, campaigns.

Dissent is never neat and rarely calm. It messes things up, stirs us out of our complacency, makes us think and take sides. In a recent civil disobedience sentencing hearing in Bangor, Maine, Superior Court Justice Alan Hunter spoke eloquently about how civil disobedience makes us uncomfortable. He ended by saying, “I’m not so sure that’s a bad thing.”

We have reached a critical juncture: either accept the gradual whittling away of constitutional rights, accepting a burgeoning police state in the pursuit of national security, or take the less comfortable road. Registering dissent can include going to courts and schools, trying to catch the mainstream media’s attention, and supporting independent media. It also involves vigilance, never forgetting that fundamental rights weren’t simply given to us. From the Bill of Rights and the 13th, 14th, and 15th Reconstruction Amendments to the 19th Amendment, which gave women the right to vote, courageous citizens have fought to expand and protect rights. Now is no time to stop.

Postscript: On December 3, the 9th Circuit Court of Appeals strikes down part of a 1996 federal statute that was a precursor to the Patriot Act. At issue is the government’s definition of what constitutes “material support” to terrorist groups. The court holds that the statute’s definition is impermissibly overbroad and therefore void for vagueness under the First and Fifth Amendments. The Department of Justice is likely to appeal.

Lynne Williams, an attorney who lives in Maine, is a Northeast Regional VP of the National Lawyers Guild. She can be reached at


Useful info on many civil liberties issues, along with resources for communicating with Congress and the White House, are available from the American Civil Liberties Union (ACLU) at, Center for Constitutional Rights at, and National Committee Against Repressive Legislation (NCARL)  at Lawyers, academics, journalists, researchers, and activists from 13 countries examine civil liberties in the European Union on the Statewatch site at Voting-related Websites include Black Box Voting, which has a press kit and links to other sites at, and Verified, covering electronic voting, state issues, and related legislation.