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September 2, 2008

Michael Dever

Bureau of Justice Assistance

810 7^th^ Street NW

Washington, DC 20531

Re: OJP Docket No. 1473, Comments on Department of Justice Proposed
Amendments to 28 C.F.R. 23, Criminal Intelligence Systems Operating
Policies

(Submitted electronically)

Dear Mr. Dever,

OMB Watch submits these comments as an organization dedicated to
government accountability, transparency, civic participation and a
strong civil society. We urge the Department of Justice (DOJ) to
withdraw proposed amendments to 28 C.F.R. 23, which governs programs
that receive funding under the Omnibus Crime Control and Safe Streets
Act of 1968 (Safe Streets Act), published in the Federal Register on
July 31, 2008. The proposed changes are unnecessary to protect public
safety and national security, and harmful because they threaten freedom
of speech and association, and relax quality control for information
collected and stored.

The proposed rule is a major shift in long established policies that is
being rushed through with a short comment period. It also violates a
memo from White House Chief of Staff Joshua Bolton that states,
\"\[R\]egulations to be finalized in this administration should be
proposed no later than June 1, 2008\" and finalized by Nov. 1, except in
extraordinary circumstances.

Law enforcement officials do not need the proposed amendments to collect
and share information about criminal activity, including terrorism. Both
the current rule and the powers in the Patriot Act provide law
enforcement with expansive investigative powers. Instead, it appears the
real justification for the proposed new rule is after-the-fact
validation of illegal surveillance and investigation of lawful
activities of Americans. This illegal surveillance has been well
documented by the ACLU Spy Files Project[^1] and revelations of illegal
warrantless surveillance of Americans under the guise of the Foreign
Intelligence Surveillance Act.[^2] Illegal information sharing was
revealed in criminal charges brought against military reservists at Camp
Pendleton in California for stealing classified information to share
with local law enforcement in Los Angeles.[^3]

Specifically, we object to:

*Opening the door to investigation of legal activities*

The proposed amendment to 28 C.F.R. 23.2 would add \"domestic and
international terrorism, including material support thereof\" to the
list of activities that could be investigated. This is redundant, since
terrorism and providing material support for it are crimes, and the
current rule already covers criminal activity. A separate listing
implies that non-criminal activity could be subject to investigation.

This is not just a potential danger. The government has treated free
speech activities as a terrorist threat, using anti-terrorism resources
to investigate people and groups that publicly and vocally dissent from
Bush administration policies. For example, in July 2008 ACLU reports
revealed that Maryland state police infiltrated the Baltimore Pledge of
Resistance, a peace group, the Coalition to End the Death Penalty
(CEDP), and the Committee to Save Vernon Evans[^4] despite the fact that
no violent protests were planned. The state police shared information
from the surveillance with at least seven federal, state, and local law
enforcement agencies. Similarly, in 2005, the Department of Defense
identified a 79 year-old grandmother attending an anti-war meeting at a
Quaker meeting house in Florida as \"potential terrorist activity\"[^5]
after the American Friends Service Committee invited the public to join
a protest against the Iraq war.

*Making speech and association targets of investigation*

The addition of \"organizations\" to the list of targets for information
collection and storage in proposed 28 C.F.R. 23.20(a) invites government
scrutiny based on political point of view or religious belief. The
current regulation clearly allows investigation of individuals using
organizations to carry out criminal activity. Expanding the list of
investigative targets to \"organizations\" threatens freedom of
association, since Americans may become reluctant to participate in
organizations if they feel it will make them targets of government
investigations. Nonprofit organizations are essential to fostering free
exchange of ideas and healthy debate on public policy issues. When
government investigative powers are used to intimidate or silence this
voice, our entire democratic system suffers.

This problem is exacerbated by the expansive information sharing
proposal in the rule at proposed 28 C.F.R. 23.(e), which would allow
private information, untested by rules of evidence or a validation
process, to be shared with employers, creditors, landlords and others.
The practical effect of such sharing could be to effectively blacklist
the subject of the investigation, even when no criminal activity is
suspected.

The proposal in 28 C.F.R 23.20(h) to allow information collected under
the proposed rule to remain in government databases for ten years before
it is reviewed or validated greatly increases the potential for harm to
innocent Americans. It also decreases the likelihood such databases will
provide useful information to law enforcement, since solid information
will be needles buried in a haystack of inaccurate and outdated data.

Abuse and politicization of investigative powers are not just a
potential danger. The problem already exists, and has been exposed in
the press. In our July 2008 report, *Collateral Damage: How the War on
Terror Hurts Charities, Foundations, and the People They Serve,*
co-authored with Grantmakers Without Borders, we devoted an entire
chapter to examples of government surveillance and investigation of
peaceful organizations whose only \"crime\" was to dissent from Bush
administration policies.[^6] In that report we noted that:

> \"These actions illustrate an unfortunate historical tendency by the
> U.S. government to use overbroad police and national security powers
> for political purposes. This result almost inevitably flows when the
> law lacks clear standards, transparency, due process, and independent
> review. Beginning with the Alien and Sedition Acts of 1798, the U.S.
> government\'s response to national emergencies has included
> suppression of political dissent and opposition. This includes the
> Palmer Raids during World War I, the internment of Japanese-Americans
> during World War II, the civil liberty abuses of the McCarthy era, and
> the FBI\'s COINTELPRO program during the 1960s that interfered with
> civil rights and peace groups.\"

The original regulation in 28 C.F.R. 23 was written to protect Americans
from this kind of abuse. The need for such protections has not gone
away. In fact, recent history proves it is needed more than ever.

*Conclusion*

In 1968 when Congress passed the Safe Streets Act it instructed the
Office of Justice Programs to come up with regulations that insure
criminal intelligence systems are \"not utilized in violation of the
privacy and constitutional rights of individuals.\"[^7] The current
regulation, at 28 C.F.R. 23.20(b) clearly states:

> \"A project shall not collect or maintain criminal intelligence
> information about the political, religious or social views,
> associations, or activities of any individual or any group,
> association, corporation, business, partnership, or other organization
> unless such information directly relates to criminal conduct or
> activity and there is reasonable suspicion that the subject of the
> information is or may be involved in criminal conduct or activity.\"

The proposed rule would be inconsistent with the Safe Streets Act and
effectively repeal this very necessary protection of our constitutional
rights. As a result, it should be withdrawn.

Yours truly,

![](media/image3.png){width="1.25in" height="0.40625in"}

Kay Guinane

Director, Nonprofit Speech Rights

[^1]: http://www.aclu.org/safefree/spyfiles/index.html

[^2]: \"Illegal Government Surveillance: It\'s Not Just for
    Foreigners\", *Electronic Frontier Foundation*, Jan. 30, 2008 at
    http://www.eff.org/deeplinks/2008/01/illegal-government-surveillance-its-not-just-foreigners

[^3]: Rick Rogers *\"*2 Marines charged in secrets theft ring*\"*, *San
    Diego Union Tribune*, July 18, 2008

[^4]: Press Release \"ACLU of Maryland Lawsuit Uncovers Maryland State
    Police Spying Against Peace and Anti-Death Penalty Groups\", July
    17, 2008 at
    http://www.aclu-md.org/aPress/Press2008/071708_PeaceGroups.html

[^5]: *Collateral Damage: How the War on Terror Hurts Charities,
    Foundations and the People They Serve*, OMB Watch and Grantmakers
    Without Borders, p. 70 July 2008

[^6]: Chapter 8: Counterterrorism Measures Used to Limit Dissent and
    Debate on Public Policy Issues, at
    http://www.ombwatch.org/npadv/PDF/col42 U.S.C.A.3789(g)
    lateraldamage_chapter8.pdf

[^7]: 42 U.S.C.A.3789(g)