Andrews, the CTD Intelligence Analyst assigned to the matter, asked in
an e-mail to Crosetti whether Person B was the target of the rally surveillance.
Andrews'’s file contained no written response. The FBI stated that “[i]t is
reasonable to conclude that [Crosetti] did not respond” because Andrews would
have saved any such response in her file. The FBI's argument suggests that
Andrews must have simply inferred that Person B was the target when Crosetti
failed to respond to her question, but that she failed to transmit the draft CTD
response to Berry or Crosetti for review. The FBI asserts that this failure was
not “best practice” but that Andrews had no motive to intentionally craft the
CTD response to be misleading.

We do not agree that it is likely that Andrews, who was a new FBI analyst
who had only recently completed graduate school, would have made the
inference on her own that the target of the surveillance was Person B, without
seeking confirmation. Indeed, the May 16 e-mail chain shows that Andrews
specifically asked Crosetti for confirmation of this important detail. We do not
agree with the FBI that the absence of a written response in Andrews’s file
indicates that she received no such response. Andrews specifically asked the
question, “was Person B the target of the surveillance” and later drafted the
CTD to indicate that he was. We believe that the more reasonable inference
from this sequence is that someone from the Pittsburgh Field Division
answered Andrews'’s question, “yes.” This answer could have been provided
orally, by telephone, or by an e-mail that Andrews did not save in her file.

Moreover, contrary to the FBI's assertion, Andrews specifically told us
she received the answer she put in the draft response from someone in the
Pittsburgh Field Division, although she said she could not recall whom. As the
FBI recognizes, that answer — whoever provided it - was misleading because
Berry was not in fact specifically targeting Person B for surveillance.

We were not persuaded by the FBI's interpretation attributing this
inaccuracy to accident. First, by highlighting Person B’s name in the
documents she provided to CTD, Crosetti conveyed the clear impression that
Person B was the actual target of the surveillance. If the problem was that
Crosetti could not remember, and that the Person B version of events was her
best reconstruction from the documents she found, she should have made this
clear to Andrews, and the CTD response could have acknowledged this
uncertainty. Moreover, if this had been the scenario, a simple check of this
matter with Berry would have shown that this was not true. Again, the FBI
contends that the error could have been the result of extraordinary
carelessness on the part of the FBI employees involved in providing information
in response to Senator Leahy’s Question for the Record. However, we believe
that a more realistic explanation is that someone in the Pittsburgh Field
Division provided this version of events to Andrews because it provided a
stronger justification for the FBI's surveillance than the actual facts. At the
time the FBI was being criticized for this surveillance, and the true reason -

56


Cruelty, and that he is “affiliated with” the Animal Defense League and the
Coalition to Abolish the Fur Trade.

The Norfolk Field Division administratively closed the preliminary
investigation of Carter on February 24, 2004. The closing EC noted that “no
further investigative leads or actions have taken place since the expiration of
the preliminary investigation status,” which would have been May 5, 2003, 180
days after the case was initiated. The case file does not contain any indication
that Carter was entered into or removed from VGTOF. At the time the Carter
case was opened, FBI field offices were not required to enter subjects of
domestic terrorism preliminary inquiries into VGTOF.

2. OIG Analysis

We concluded that the FBI's opening of a preliminary inquiry on Carter
in August 2002, while tenuous, did not violate the Attorney General’s
Guidelines. The opening EC identified arrests of Carter since [jj in
connection with animal rights protests, two of which occurred in different
states and involved some degree of property damage. However, it took more
than a year from when the preliminary inquiry expired for the FBI to close the
case. We question the reason for such a delay, and believe the case should
have been closed upon expiration of the preliminary inquiry.

E. Cheryl Peterson
1. Facts

The Norfolk Field Division initiated a preliminary investigation of Cheryl
Peterson on August 23, 2002.!87 According to the EC opening the case,
Peterson was a PETA
had been involved in several incidents, including a incident in
which Peterson

The EC also asserted that Peterson was involved
in the planning and organization of

Neither the EC nor any other document we reviewed indicated whether
Peterson was among those arrested at this event.

The EC also described two additional events involving Peterson.

137 Cheryl Peterson is a pseudonym.

120


The MIOGs Introduction, § 1-4(4) and Part 1, § 100-4(5) also addressed
the collection of “public-source printed material concerning the exercise of First
Amendment rights” and required that when such material was to be retained,
“a notation must be placed on the material describing the reason(s) it was
collected and retained.” It stated: “The notation must clearly indicate the
specific investigative interest(s) which led to the decision to retain the item.”54
There are no comparable provisions in current FBI policy addressing the
collection of information concerning groups or requiring specific notations on
public source material. However, the DIOG states that investigative activity
may not be based solely on the exercise of First Amendment rights, while
noting that the Privacy Act is an important corollary to this principle in
prohibiting the retention of information describing how a person exercises First
Amendment rights. See DIOG § 4.2.

2. Collection of Publicly Available Information

The MIOG, Part 1 § 100-4, addressed the publications of terrorism
enterprise organizations and the collection of publicly available information.
Part 1 § 100-4(2) stated that while the FBI was authorized to collect as “library
material” general information available to the public, (e.g., news media data
banks, newspapers, magazines), such information “should not be indexed as to
particular individuals or placed in FBI files.” However, publications of a group
that is the subject of an investigation could be collected and placed in an
investigative file or indexed as to particular individuals.*5 Part 1, § 100-4(4)
stated:

All information received or made available to the FBI during the
course of an investigation should be evaluated for its pertinence to
the investigation. This is particularly true when information
concerns exercise of an individual’s or group’s First Amendment
rights. In such cases, the information concerning the exercise of
First Amendment rights should be made a matter of record only if
it is pertinent to and within the scope of the authorized law
enforcement activity.

There are no provisions in current FBI policy expressly addressing the
retention of information concerning the exercise of a group’s First Amendment
rights. The DIOG states that the Privacy Act prohibits the retention of
information describing how a person exercises rights under the First
Amendment. See DIOG § 4.2. Although courts have held that the Privacy Act

Airtel from the FBI Director to All Special Agents In Charge (July 17, 1989).
34 MIOG, Introduction, § 1-4{4), and MIOG, Part 1, § 100-4(5).
35 MIOG, Part 1, § 100-4(3).

22



dedicated to nonviolent pursuit of a peaceful world, organized in response to
the emerging nuclear threat.” The EC stated that 16 organizations had
endorsed the “counter-conference,” including Catholic Worker organizations
from Des Moines, Iowa, and Duluth, Minnesota. The FBI Special Agent who
wrote the EC told us he had no specific information that any of the 16 groups
were involved in unlawful activities and that he did not receive any information
in response to the EC from other FBI offices indicating that any illegal activity
should be expected at the conference.

In a subsequent EC dated August 11, 2003, the Special Agent reported
attending (along with another FBI Special Agent) a public rally held by the
organizing group in Omaha on August 2. This EC identified the name of the
organizing group and stated that the rally was in support of the counter-
conference.!66 The EC stated that “[rlally attendance was estimated to be 100
people which included various vendors and organizers” and stated that no
“illegal activity was observed.”!67 The EC stated that the FBI shared the
information on the number of rally attendees with local and military law
enforcement officials from offices involved in security preparations for the
special event.

b. OIG Analysis

The FBI Omaha Field Division’s action in seeking information about
potential threats to the Stockpile Stewardship Conference was authorized
under the MIOG’s special events planning authorities. The MIOG, Part 1, §
300-1(2) defines a “special event” as an event “which, by virtue of its profile
and/or status, represents an attractive target for terrorist attack.” The FBI
considered the STRATCOM’s conference regarding nuclear policy to be such an
event.

As noted in Chapter Two, threat assessments are authorized pursuant to
the FBI's lead agency responsibilities for countering terrorism threats within
the United States, including at designated special events.!®8 The EC at issue
solicited potential threat-related information from other FBI offices regarding
any groups or individuals who may have targeted the event.

166 Because the organizing group is not one our selected groups, we do not identify it in
our discussion.

167 We found only one reference in the file to illegal activity occurring at the Stockpile
Stewardship Conference. An August 11, 2003, EC stated that one protester was detained for
trespassing at an Offutt gate during a protest. This EC identified the protester by name but it
did not state which if any groups were involved.

168 See generally MIOG, Part 1, § 300-1.

151


shattering of the glass front door of the military recruiting station, constituted
a use of force or violence. Additionally, an anonymous individual claimed
responsibility for the act and stated that the action was on behalf of oppressed
Iraqis, showing a desire to further a particular political view. These facts
therefore fit within the FBI's policy describing the classification of a matter as
domestic terrorism.

2. Ithaca, NY Military Recruiting Station - Albany Field
Division

a. Facts

In an EC dated June 1, 2004, the FBI Albany Field Division opened a full
investigation, under the domestic terrorism classification, on four individuals
for entering a military recruiting station in Ithaca, New York, and pouring
human blood on the walls, pictures, and an American flag.!6! The vandalism
occurred on March 17, 2003, 3 days before the beginning of the Iraq War.
Some of the individuals read a declaration encouraging military members to
“refuse the order to go to war,” and to “leave the military before it is too late.”
According to the opening EC, the four individuals were members of the Ithaca
Catholic Worker.

The four individuals - who came to be known as the “St. Patrick’s Four” —
were initially tried for trespass and felony criminal mischief in state court
(Tompkins County, New York). According to the FBI’s opening EC, in April
2004, after a jury was unable to reach verdicts, the county court judge
declared a mistrial. The Tompkins County District Attorney then requested
that the U.S. Attorney (Northern District of New York) file charges against the
St. Patrick's Four in federal court, which the U.S. Attorney did. The four
individuals were subsequently prosecuted in U.S. District Court on federal
charges of conspiracy to impede an officer of the United States by force,
intimidation and threat, 18 U.S.C. § 372; injury or damage to government
property, 18 U.S.C. § 1361; and two counts of trespass on a military station,
18 U.S.C. § 1382.

The FBI's opening EC stated that the Ithaca Catholic Worker was an
organization the FBI believed to be a support group or chapter for the Prince of
Peace Plowshares. The EC provided detailed information on the Prince of Peace
Plowshares, including a list of criminal acts that group had previously

weeks of the investigation we used it as the controlling authority in this analysis, although we
recognize it was not the version in effect at the time the FBI initially classified this case.

161 When the EC was written, the investigation was classified by the FBI as an act of
terrorism by domestic terrorists involving violent crimes as the predicate offense. On October
6, 2005, the investigation was reclassified as an act of terrorism by domestic terrorists
involving “other” predicate offenses.

146


TABLE OF CONTENTS

TABLE OF CONTENTS. .......::ccssceeeseeeeseeeesseeenereeeneeensneeenereseneeenieeteneeesnneenas i
CHAPTER ONE: INTRODUCTION.........:ccesceeseesetteeneeneeeteeeteeeneenesteeteeeneens 1
I. Background .......0.cccccceeseeecsseeeeeeeeeseeeeneeeeneeeesnieeenieeesnieeesnaeeenteeeseneeenee 1

Il. Scope and Methodology

I. Organization of the Report ..........::cccceeseeeseeeeseeeesteeesseeeeteeeeteeeneneees 3
CHAPTER TWO: AUTHORITIES GOVERNING FBI INVESTIGATIVE
ACTIVITIES 0... eeeeeeeeeeeeeeeeereeeereeeeeeseeereeeeeeseeseeeeeeeseeeneeeernenegs 5
I, PYiOr REVICW ......ccccceeceeceeeeee eee ee eee eeeeeeeee eee eee ee eeeeEE EE EE EE EE EEE DEE rete EEE EEE EEEEE EES 5
Il. FBI Authorities. ...........c.cccccccecccee cece eee eeceeeseeeeeeeessseeeeeeeesauaneeseesseaaaeeee 5

Ill. | General Principles and Policies Addressing Investigative Activities
and the First Amendment....

Iv. Authorities Establishing Types of Investigations ................:::ceceeeeeeee 8
A. Prompt and Extremely Limited Checking Out of Initial Leads ...8
B. Preliminary Inquiries .............0.ccccccceccsseeeeeceeseeeeeeetneeeeeeeetnaeees 9

Cc. Full Investigations

1. General Crimes Investigations ...
2. Terrorism Enterprise Investigations .

D. General Authorities for Using Investigative Techniques
During Preliminary Inquiries and Full Investigations.............. 12

E. Counterterrorism Authorizations under Part VI of the 2002
Attorney General’s Guideline .............cccceeeeeeeeeeeeeeeeeeeeeesereeees 13

1. Visiting Public Places and Events .
2. Research and Online Searches ..

F. Authorities Governing Special Events Investigations .

1. Special Events Classifications and Investigations...
2. FBI Policies Relating to Collection, Retention, and
Dissemination of Special Events Information................. 18

V. Statutes and Rules Governing the FBI’s Collection, Maintenance,
and Dissemination of Information about the First Amendment
Activities of Individuals Or GrOuPS...........ccccccesseceeeeeeteeeeeeeetseeeeeees 19

i


connections to Stop Huntingdon Animal Cruelty, follow-up by the FBI was
consistent with the Attorney General's Guidelines.

As discussed above, the Norfolk Field Division was prepared to close the
preliminary inquiry on PETA when the second extension expired because it did
not believe there was sufficient information to justify converting the case to a
full terrorism enterprise investigation. However, FBI Headquarters advised that
it would approve another 90-day extension because of the information about
PETA’s connections to Stop Huntingdon Animal Cruelty that were cited in

ort of the second extension, as well as because of a

. The rationale
for keeping the Norfolk Field Division’s preliminary inquiry open was to monitor

the Stop Huntingdon Animal Cruelty case for any additional connections to
PESTA. (Ales

. While this rationale might technically satisfy the requirement for
an extension, we questioned whether either of the purposes — neither of which
involved investigative steps or even required the existence of an open case —
was consistent with FBI policy requiring that an investigation with potential
impacts on First Amendment activity “not be permitted to extend beyond the
point at which its underlying justification no longer exists.”

We agreed with FBI Headquarters’ conclusion at the expiration of the
third extension that there was not a sufficient factual basis to convert the
preliminary inquiry to a full terrorism enterprise investigation, and that it was
appropriate after 15 months of investigation for the FBI to close the case.

Cc. Patrick Lewis
1. Facts

The Norfolk Field Division also initiated a full investigation of Patrick
Lewis, BE, on June 28, 2002.!34 The opening EC began, “Past FBI
investigations have developed evidence that PETA had directed or is connected
to members of [ALF],” and again cited the case of the 1992 arson of a Michigan
State University laboratory. The EC identified Lewis as
in the organization. The EC

cited multiple arrests of Lewis, including a

.135 The EC also cited
statements Lewis made at the 2001 Animal Rights National Conference in

134 Patrick Lewis is a pseudonym.

135 According to the EC, Lewis and other activists

116


with certainty who was responsible for the false account that the FBI provided
to the public in the press response.

The false account of events given in the press response was used to
prepare FBI Director Mueller for his testimony to Congress in May 2006. In
response to a question from Senator Leahy, Director Mueller stated that the
FBI's surveillance at the Merton Center event was “an outgrowth of an
investigation,” and that the FBI was “attempting to identify an individual, who
happened to be, we believe, at the rally.” This statement can be traced back to
the press response (which was used to brief Director Mueller) and from there
back to the routing slip (which was used to brief the National Press Office). As
a result, the “individual” mentioned in the Director’s testimony was most likely
Farooq Hussaini, and the “investigation” that the Director referred to was most
likely the Dallas antiterrorism investigation discussed in the routing slip.

For the same reasons the press response was inaccurate, the Director's
testimony was inaccurate. Neither Berry (who conducted the surveillance) nor
Crosetti (his supervisor) was aware of the Dallas investigation when the Merton
Center rally took place. Moreover, we found no evidence that Farooq Hussaini
was in any sense a person of interest to the Pittsburgh Field Division at the
time, much less the subject of an investigation. Nor could we find any basis for
the suggestion that the FBI expected Hussaini (or any subject or other “person
of interest” in a terrorism case) to be present at the rally.

We do not believe that the Director intentionally misled Congress. We
found no evidence that he received information that should have given him
reason to doubt the accuracy of the briefing materials he relied on in preparing
to testify. Yet, it is clear that FBI personnel took insufficient care to ensure
that Director Mueller was given accurate information. In this case, the Director
was poorly served by those responsible for the contents of the routing slip and
press response.

The second inconsistent and inaccurate version of events that the FBI
advanced for the surveillance at the Merton anti-war rally was advanced in the
aftermath of the Director's May 2006 testimony. After the FBI received a
follow-up question for the record from Senator Leahy, the CTD prepared an
internal response that identified Person B, rather than Farooq Hussaini, as the
FBI's target when it conducted surveillance at the Merton Center rally. Person
B was the subject of a preliminary inquiry in Pittsburgh at the time, and it is
therefore plausible that his picture would have been among those in the binder
that Berry reviewed before attending the anti-war rally. However, Berry denied
that Person B or anyone subject was the particular focus of his surveillance,
noting that he did not carry a photograph of Person B to the event. In addition,
we did not locate any contemporaneous document suggesting that the FBI had
any reason at the time of the event to believe that Person B would be in
attendance or that he had any connection to the Merton Center. Moreover, the

65


B. “Special Events” at which Catholic Worker Organizations
Participated in Protests

We found eight incidents in which FBI records reference the Catholic
Worker in an FBI “special events” file, most of which simply noted the expected
participation of a Catholic Worker group and other groups in demonstrations
connected with an FBI-designated special event or on federal property. Below
we discuss two of these incidents that we determined raised issues meriting
examination.

1. USS Ronald Reagan Commissioning - Norfolk Field
Division

a. Facts

On March 5, 2003, the Norfolk Field Division issued an EC that opened a
“special events” matter in connection with the commissioning of the USS
Ronald Reagan in Norfolk, Virginia, scheduled for May 8-11, 2003. The EC
stated that the event would generate significant media attention, that all living
former presidents had been invited to attend, and that President Bush and
other senior government officials were expected to attend. The EC also stated
that past Navy commissioning events “have drawn protest from the [Prince of
Peace] Ploughshares and Little Flower Catholic Worker Party (anti-war
demonstrators).” The EC did not report that these past protests resulted in
any disturbances or the commission of terrorist or criminal acts. It stated that
since the event “has the potential for similar type protest/demonstrations” the
Norfolk Field Division classified it as special events readiness level (SERL) IV.
As described in Chapter Two, SERL IV is the lowest special events readiness
level; generally events classified as SERL IV are supported by state and local
resources and only minimally by the FBI.

The EC requested assistance from all FBI Field Divisions “in identifying
individuals associated” with the groups it referenced who would be “traveling
into the Norfolk Field Division territory or any potential threats.” The EC
requested that the offices provide only “positive intelligence” of a threat or
identified problem.

The records provided by the FBI did not contain any responses to this
request. It also appears that the EC’s request for intelligence on the Little
Flower Catholic Worker did not result in any interviews or other investigative
techniques directed at its members. The Special Agent who wrote the EC told
us he does not believe any such actions were taken. The case agent told us
that when he wrote the EC, he had information that the leader of the Little
Flower Catholic Worker had a prior criminal history involving damage to
government property in connection with protest activities, although this
information was not included in the EC. The agent also said he had

149


the conduct or performance of any federally protected function.” The term
“civil disorder” is defined as “any public disturbance involving acts of violence
of assemblages of three or more persons, which causes an immediate danger of
or results in damage or injury to the property or person of any other
individual.” 18 U.S.C. § 232(1).

We believe that the FBI could have articulated a “reasonable indication”
that the unnamed subjects, potentially including protesters being recruited at
the Pittsburgh conference hosted by the Merton Center and POG, would violate
the civil disorders statute, 18 U.S.C. § 231. In light of the types of direct action
protests previously used in Seattle and those advocated on the POG website,
the FBI believed that protesters would attempt to impede law enforcement
(such as through the use of a Padded Bloc), in a manner that would obstruct
the Miami FTAA meeting, which was likely a “federally protected function.”9
Planning for obstruction of the November 2003 FTAA in Miami, including
through confrontations with police, was a goal stated at the August 2003
conference held in Pittsburgh about the planned Miami protests. In addition,
there was an indication that the protests could fit the definition of a “civil
disorder” due to the history of the prior direct action protests in Seattle
involving significant property damage. As a result, we believe that the FBI's
Miami investigation could have been adequately predicated, although the FBI’s
Miami Field Division did not adequately describe the predication in its EC.%

92 Under 18 U.S.C. § 232(3), the term “federally protected function” includes “any
function, operation, or action carried out, under the laws of the United States, by any
Department, agency, or instrumentality of the United States or by an officer or employee
thereof.”

93 The Attorney General’s Guidelines on “Reporting on Civil Disorders and
Demonstrations” were in effect from 1976 until they were repealed and partially incorporated
into the 2008 guidelines. Two FBI OGC attorneys we interviewed told us it was their
interpretation that the Guidelines required the FBI to request Attorney General approval to
open an investigation under the federal riot statute, 18 U.S.C. § 2101, and the civil disorders
statute, 18 U.S.C. § 231. The Miami investigation was not explicitly opened under the civil
disorders statute, and it appears that no such approval was sought. In July 2008 the DOJ
Office of Legal Counsel (OLC) sent an informal opinion to OGC that stated that the
Demonstration Guidelines do not require Attorney General approval to open an investigation
under the riot statute or the civil disorders statute. However the OLC attorney also said that
“as a prudential matter” the FBI should consider requesting such approval before initiating
investigations under these statutes. The 2008 Attorney General's Guidelines repealed the
Demonstration Guidelines and requires the approval of the Attorney General, Deputy Attorney
General, or the Assistant Attorney General for the Criminal Division only when the FBI collects
information relating to actual or threatened disorders to assist the President in determining
whether, pursuant to 10 U.S.C. § 331-33, “use of armed forces or militia is required and how a
decision to commit troops should be implemented.”

76


The 2002 Guidelines made an important change to terrorism enterprise
investigations that are relevant to the FBI's investigation of PETA: the
Guidelines authorized the FBI to use preliminary inquiries to determine
whether a full terrorism enterprise investigation of a group was warranted.
Under the 1989 Guidelines, a preliminary inquiry could only be used in
connection with individual crimes, and not to determine whether to open a
broader investigation of groups involved in terrorism. Thus, under the 1989
Guidelines the “reasonable indication” standard applied to initiating any
terrorism enterprise investigation, but under the 2002 Guidelines a preliminary
inquiry could be opened based on information indicating the “possibility” of a
group’s involvement in terrorism. The 2008 Guidelines authorize full but not
preliminary enterprise investigations of groups or organizations.

D. General Authorities for Using Investigative Techniques During
Preliminary Inquiries and Full Investigations

The 1989 and 2002 Guidelines contained general statements authorizing
the FBI to use any lawful investigative technique when conducting preliminary
inquiries or full investigations under the Guidelines. The 2002 Guidelines also
stated that the choice of investigative techniques in either a preliminary inquiry
or full investigation is a matter of judgment. These Guidelines also stated that
the FBI should consider a number of factors including the intrusiveness of the
technique, the effect on the privacy of individuals and potential damage to
reputation, and the seriousness of the possible crime and strength of
information indicating its existence or future commission. The Guidelines
stated that where the conduct of a preliminary inquiry or full investigation
“presents a choice between the use of more or less intrusive methods, the FBI
should consider whether the information could be obtained in a timely and
effective way by the less intrusive means.”!® However, the Guidelines also
stated the FBI “should not hesitate to use any lawful techniques consistent”
with the Guidelines, “even if intrusive, where the intrusiveness is warranted in
light of the seriousness of the possible crime or strength of the information
indicating its existence or future commission,” and that this was “to be
particularly observed” in inquires or full investigations “relating to possible
terrorist activities.”!7 Finally, both the 1989 and 2002 Guidelines noted the

16 FBI policy states that in “the case of those investigations with the potential to
infringe upon First Amendment rights, consideration must be given to using those techniques
that are less intrusive and less likely to adversely affect the exercise of those rights.” MIOG,
Introduction, §1-4(3).

17 The 1989 Guidelines had language similar to the 2002 Guidelines stating that the
FBI should consider whether information “could be obtained in a timely and effective way by
less intrusive means.” However, the 1989 Guidelines also stated that the techniques employed
in preliminary investigations “should be generally less intrusive than those employed in a full
investigation.” The 1989 Guidelines did not state that the FBI should not hesitate to use
investigative techniques, particularly in matters related to potential terrorist activities.

12


APPENDIX B


CHAPTER FIVE
INVESTIGATIVE ACTIVITIES DIRECTED AT GREENPEACE

I. Background

According to the Greenpeace International website, Greenpeace was
founded in 1971 by a small group of activists who leased a fishing vessel and
sailed to Amchitka Island in Alaska to “bear witness” to the United States’
underground nuclear testing at Amchitka Island, which was home to 3000
endangered sea otters, bald eagles, peregrine falcons and other wildlife. Their
stated mission was to attempt to place themselves in harm's way in order to
protest nuclear testing off the coast of Alaska.

Greenpeace International, which is based in Amsterdam, the
Netherlands, now focuses on global environmental campaigns. Greenpeace
International coordinates the activities of 41 “National/Regional Offices”
located throughout the world including the United States (Greenpeace U.S.A.).
According to its website, the National/Regional offices are largely autonomous
in carrying out campaigns within their local areas and in obtaining the
necessary financial support to carry out that work.

The most recent annual report for Greenpeace U.S.A. (2008-09) describes
the organization’s mission as follows:

Greenpeace is an independent campaigning organization that uses
peaceful protest and creative communication to expose global
environmental problems and promote solutions for the future.
With 46 offices located throughout the world, Greenpeace works to
protect our oceans and ancient forests, and to end toxic pollution,
global warming, nuclear threats, and genetic engineering. Since
1971, Greenpeace has been the leading voice of the environmental
movement by taking a stand against powerful political and
corporate interests whose policies put the planet at risk.

We limited our review to FBI investigative activities impacting
Greenpeace U.S.A. (“Greenpeace”). We selected Greenpeace because it was one
of the groups that had been featured in the news articles that, beginning in
December 2005, reported that the FBI had improperly monitored the activities
of domestic advocacy groups. As noted in Chapter One, many of these new
articles were based upon information contained in document disclosures
resulting from the FOIA requests to the FBI.

125


construction in a similar fashion and would violate 18 U.S.C. § 1366, as
discussed above.

We also concluded that, under the Attorney General's Guidelines, there
was sufficient predication for the FBI to investigate possible crimes by the
subjects in the Northstar investigation in connection with Greenpeace’s
planned protests regarding the Strategic Missile Defense Initiative. In the
course of the Northstar investigation the FBI learned that some of the same
individuals who participated in the illegal Northstar protest activities were also
involved in the plans regarding Missile Defense protests. The FBI concluded
that there was a reasonable indication that the planned protest activities might
include illegal acts, including, for example, trespass on a military facility, 18
U.S.C. § 1382.144

We also determined that the FBI had sufficient predication to open a
preliminary inquiry of Franklin. Franklin’s reported statement of interest in
blowing up the Alaska pipeline would justify a preliminary inquiry relating to
the possibility of a violation of 18 U.S.C. §§ 844(i) and (m) (bombing of property
used in interstate commerce).

b. Classification as an Act of Terrorism Investigation

We also considered whether this matter was properly classified as an Act
of Terrorism investigation. At the time the investigation was opened, this
classification was applicable to “any investigation of a criminal act which
involves as an individual or individuals affiliated with a domestic terrorist
group.” MIOG Part 1, § 266-1(1). We are not aware of any specific definition of
“domestic terrorist group” that was used by the FBI at that time, although the
1989 Attorney General’s Guidelines defined a “domestic security terrorism
investigations” as “focused on investigations of enterprises . . . whose goals are
to achieve political or social change through activities that involve force or
violence.”

Many of the tactics used by the Greenpeace members in this case, such
as trespassing and even chaining themselves to ice roads, could be considered
forms of civil disobedience and would not normally be considered acts of
terrorism. However, the FBI developed some credible information that the
Greenpeace individuals under investigation were seeking to promote its goals in
part through acts that might include acts of force or violence. In particular,
the FBI had information that one subject had expressed interest in blowing up

144 Although the Alaska Field Division did not open a separate investigation related to
the National Missile Defense protests in Alaska, as we describe in Chapter Seven, in April 2001
the Los Angles Field Division opened an investigation on Greenpeace, The Catholic Worker, and
others for protest activities of the NMD at the Vanderburgh Air Force Base in California.

131


Amendment rights or otherwise act in violation of FBI policies. We also found
no evidence that the FBI investigated the Quakers as a group, or any
individuals identified in FBI documents as Quakers, for their protest activities.

II. Conclusions and Recommendations

In this review we addressed several issues raised by the FBI's
investigation of selected First Amendment advocacy groups. We reached the
following general conclusions.

A. Targeting for First Amendment Views

As noted above, our review examined whether the FBI targeted the
groups or their members because of their First Amendment expressions rather
than for valid law enforcement purposes. The evidence did not indicate that
that the FBI targeted any of the groups for investigation on the basis of their
First Amendment activities. In most cases, the groups were not themselves
subjects of any investigation. Instead, individuals associated with the groups
were named subjects. As detailed in our report, the FBI’s investigations of
these individuals were generally predicated on concerns about potential
criminal acts by the individuals, not their First Amendment views.

However, FBI documents we reviewed gave the impression that the FBI’s
Pittsburgh Field Division was focused on the Merton Center as a result of its
anti-war views. In fact, the FBI did not open any investigation of the Merton
Center at all. Instead, we found that some of the FBI's investigative activities
relating to the Merton Center were the result of poor judgment by agents and
supervisors in unconnected instances, including a supervisor’s decision to
send a probationary agent to monitor an anti-war rally on a slow work day and
an agent’s decision to operate a source in the POG investigation in order to
establish his participation in the FBI’s source program.

B. Predication

A related issue that we addressed was whether the investigations relating
to the groups and their members were adequately predicated under the
Attorney General’s Guidelines and FBI policies. The applicable standard in the
Guidelines for predication was low, especially for preliminary inquiries, which
required only the “possibility” of a federal crime. In part as a result of this
standard, we found in most cases that the FBI did not violate the Guidelines in
opening these investigations.

However, we concluded that in several cases, the FBI’s predication was
factually weak and in several cases there was little indication of any possible
federal crime as opposed to local crime. We also found that in some cases that
matters opened as full investigations should have been opened as preliminary

186


wing organization advocating, among many political causes, pacifism.” It also
described cooperation between the Merton Center and the Islamic Center of
Pittsburgh, which the agent found during his internet research. Yet, the EC
did not describe the agent’s assignment to look for terrorism subjects or report
that he was unable to identify any such subjects. The agent told us that he
wrote the EC in the way he did because he was a probationary agent at the
time and needed to please his supervisor and show her that he would do what
she told him as thoroughly as he could.

In 2006 this EC was publicly released in response to a FOIA request and
became the focus of significant controversy. In response, the FBI issued a
press response in March 2006 stating that the agent had attended the event
“for the sole purpose of determining the validity of information he received from
another source establishing a link between an on-going investigation and the
[Merton Center].” Moreover, during a Congressional hearing in May 2006,
based on information that was provided to him, Director Mueller responded to
a question from Senator Leahy that the surveillance was an outgrowth of an
investigation, and that the agent was “attempting to identify an individual who
happened to be, we believed, in attendance at the rally.” In further response to
a question for the record submitted by Senator Leahy after the hearing, the FBI
declined to provide additional information on the basis that “the investigation
of the individual whose presence at the rally was anticipated is still ongoing.”

Notwithstanding the synopsis line of the EC, we concluded that the FBI
was not targeting the Merton Center or its members for investigation because
of the Merton Center’s anti-war advocacy. Rather, we concluded that the agent
was sent to the event pursuant to an ill-conceived “make work” assignment
given to a probationary agent on a slow work day (the day after Thanksgiving).
However, we concluded that the agent’s attendance at this public event did not
violate the Attorney General’s Guidelines.

The Attorney General’s Guidelines did not require factual predication for
the FBI to attend public events like the rally. They required only that the
purpose of the attendance be “to prevent or detect terrorist activity.” We
concluded that this assignment fulfilled this undemanding requirement, since
the assignment was designed at least in part to check whether any terrorism
subject attended the public event. Although the possibility that any useful
information would result from this make-work assignment was remote, the
“purpose test” of the Attorney General's Guidelines was not violated. Therefore
we believe that attendance at the event was not prohibited by the Attorney
General's Guidelines in effect at the time.

However, we concluded that the agent had no authority for conducting

any follow-up internet research on the Merton Center or for recording and
retaining information about the Merton Center's First Amendment activities in

175


supervising agent listed the November 2002 EC, denied any knowledge of the
LHM and we found no evidence to contradict their claims.

We found no evidence that this document was ever actually
disseminated. It bore no signature, supervisory markings, or the name of
intended recipients. In short, we concluded that the LHM was an inaccurate
document that was not approved or disseminated.

B. Surveillance Relating to the 2003 Miami Free Trade Area of
the Americas (FTAA) Meeting

1. Facts

From November 16 to 21, 2003, the Free Trade Area of the Americas
(FTAA) Eighth Ministerial Meeting took place in Miami, Florida. Attending this
meeting were trade ministers from the United States and other Western
Hemisphere countries. Earlier international trade meetings had drawn anti-
globalization protesters, some of whom had participated in forceful or violent
protest actions, including the protests at the 1999 World Trade Organization
(WTO) Ministerial Conference held in Seattle, Washington.

In August 2003 the FBI conducted surveillance of a meeting organized by
the Merton Center and others in Pittsburgh relating to protests being planned
for the FTAA Miami meeting. In this section, we examine the FBI's conduct in
connection with that activity.

a. Special Events Case Opened

To prepare for the FTAA Miami meeting, the FBI Miami Field Division
opened a special events case. An April 4, 2003, opening EC stated that similar
events had historically drawn large scale demonstrations, both by peaceful
demonstrators and by individuals or groups who wanted to disrupt the
meetings. The EC stated that the FTAA Miami Meeting was expected to attract
an estimated 70,000 demonstrators.

Documents in the FBI's special events file also stated that groups and
individuals may plan violent protests at the FTAA Miami meeting, including the
same individuals or groups who participated in the 1999 WTO Seattle protests.
A July 8, 2003, EC summarized intelligence the FBI received, including threats
from anarchist groups to “use of puppets (posters on a stick) to attack front
line riot police, and use of Molotov cocktails.” Another document in the special
events file stated that the FTAA Miami Meeting would be the first United States

71


CHAPTER THREE
THE THOMAS MERTON CENTER

I. Background

The Thomas Merton Center (Merton Center) describes itself as
“Pittsburgh’s peace and social justice center.” Thomas Merton was a writer
and Trappist monk at an abbey in Kentucky who died in 1968. A recent
Merton Center news publication stated:

[The Merton Center] responds to social issues and effects social
change in the spirit and according to the principles of Thomas
Merton, Trappist monk, priest, poet, and writer. By its work, the
Thomas Merton Center honors his commitment to nonviolence,
social justice, peace and human dignity.

According to its website, the Merton Center opened in 1972 ina
storefront office on the Southside of Pittsburgh “to protest the continuation of
the war in Vietnam.” The Merton Center is now located in Pittsburgh’s Garfield
neighborhood. The Merton Center's website solicits individual members and
volunteers for its projects and campaigns.

The Merton Center aligns itself with “affiliates and friends,” which are
groups that financially support the Merton Center or regularly co-sponsor
events. The Merton Center states in its news publication that affiliates and
friends are “groups that [the Merton Center] feels confident enough in to refer
individuals to join them and/or to participate in their activities.”. However,
according to the Merton Center affiliate status “is NOT an official endorsement
of all the aims, goals and strategies of these organizations.”

The Pittsburgh Organizing Group (POG) is listed in a recent Merton
Center news publication as one of its affiliates.45 We discuss certain FBI
investigations in this chapter that referenced both the POG and the Merton
Center.

45 The POG recently described itself on its website as “an anarchist group” whose “goal
is the creation of a directly democratic, free society capable of maximizing human potential and
freedom within a framework of collective responsibility, mutual-aid, and solidarity.” Its website
described its recent efforts as focused “on combining education and direct action . . . to
strategically fight back against the war machine by confronting its local manifestations:
military recruitment, corporate and educational war profiteers, and militaristic politicians.”

29


services — such as accounting, legal services, and database management - to
PETA and other charitable protection organizations. The Physician’s
Committee for Responsible Medicine states on its website that it is a nonprofit
organization that promotes preventive medicine, conducts clinical research,

and encourages higher standards for ethics and effectiveness in research.

The January 16, 2003, EC documenting the change to the Collins case
described the Foundation to Support Animal Protection as a nonprofit, tax-
exempt organization operating out of PETA's offices in Norfolk, Virginia, that
has “quietly funneled over $4 million in tax-exempt donations from PETA to
various ‘front’ groups in recent years,” the Physician’s Committee for
Responsible Medicine being “the most notable example[.]”_ The EC stated that
the Foundation to Support Animal Protection’s a
EEE 3.10 described some financial
arrangements among the organizations, such as the Foundation to Support
Animal Protection paying the mortgage for PETA’s headquarters. The EC
asserted that “[t]he major purpose of [the Foundation to Support Animal
Protection] appears to be to enable PETA and the Physician’s Committee for
Responsible Medicine to evade public recognition of their relationship, the real
extent of their direct mail expenditures, and the real extent and nature of their
assets.” We determined that the passage in the EC that contains this assertion
and the description of the financial arrangements among PETA, the Physician's
Committee for Responsible Medicine, and the Foundation to Support Animal
Protection tracks verbatim a passage from a report published in November
2002 by a group called Animal People. Animal People’s report was publicized
by Americans for Medical Progress (AMP), a nonprofit organization that,
according to its website, “protects society’s investment in research by nurturing
public understanding of and support for the humane, necessary and valuable
use of animals in medicine.” However, the EC did not attribute any of its
contents to the Animal People report or to AMP’s news service.

Regarding Robinson, the EC stated that

100


RMD’s proposed release of several Merton Center-related documents, including
the November 2002 EC.®2 The routing slip also provided information about the
November 2002 EC that conflicted with what Berry and Crosetti told us.

Kempler’s routing slip stated that “according to the agent” who wrote the
November 2002 EC, “the investigative activity reflected in this EC was directed
at Farooq Hussaini, not the Thomas Merton Center.” Farooq Hussaini was the
person identified in the November 2002 EC as the contact person at the Islamic
Center of Pittsburgh for a recent event that was coordinated by the Merton
Center. The November 2002 EC did not identify Farooq Hussaini or anyone
else as the subject of the surveillance.

The routing slip continued, “[t]he agent stated that his supervisor
directed him to attempt to photograph individuals who were in contact with
FAROOQ HUSSAINI.” The routing slip also stated that Hussaini first became of
interest to the Pittsburgh Field Division on June 7, 2002, as a result of
information developed in an international terrorism investigation being
conducted by the FBI Dallas Field Division. Specifically, a June 7, 2002, EC
from the Dallas file (Dallas EC), reported

The — slip stated that Hussaini was also associated with

(referred to as Person B in this report), who was the subject
of a Pittsburgh full field investigation that “remains in a pending status."53 The
routing slip did not identify any connection between Person B and the leafleting
event or the Merton Center.*4 The routing slip stated that the Pittsburgh Field
Division had never opened an investigation of Farooq Hussaini, but
recommended that his name be redacted from the document because

eS of an FBI interest in him may negatively affect

In sum, the routing slip asserted that Farooq Hussaini was the target of
the November 2002 surveillance of the Merton Center anti-war rally and stated
that the FBI Pittsburgh Field Division became interested in Hussaini as a result
of information developed in an FBI Dallas Field Division international terrorism
investigation of a different subject. However, as described below, the evidence

52 We discuss some of the other Merton Center related documents addressed in the
routing slip separately, in Part III of this chapter.

53 We use “Person B” to refer to this individual in order to limit redactions in the public
version of this report.

54 As detailed in Section 8 below, the FBI later stated that it was Person B, not Farooq
Hussaini, who was the target of the surveillance.

36


interfere with the launch. The source stated that other groups were also
expected to “infiltrate” the VAFB to impede the launch although the source did
not identify any of the other groups.

On May 19 and 20, 2001, approximately 225 people participated in
protest activities at the VAFB. A total of 33 protesters were arrested for
trespassing, including some who were members of the Los Angeles area
Catholic Worker. Of these, 23 were arrested for crossing onto the VAFB during
a rally held outside the base’s main gate on May 19. The other 10 protesters
were arrested the following day for trespassing onto the “backcountry” of the
VAFB in an area known as south base. The FBI Special Agent who opened the
case described these “backcountry” trespassers as Catholic Worker members.
The Special Agent stated they trespassed surreptitiously onto south base and
had to call base officials to alert them to their presence in order to be arrested.
The Special Agent said these trespass activities were typical of the VAFB
protests and were carried out in different locations in an attempt to interfere
with base operations, in addition to protests conducted at the VAFB’s front
gate. Although the opening EC stated that a launch was scheduled for May
2001, it appears that no missiles were launched during this month. !8°

The Special Agent interviewed the Catholic Worker members who were
arrested in May 2001. They provided him with information on the group and
its intentions to block a missile launch. In addition, the agent told us that one
of the Catholic Worker members who was arrested voluntarily called him on
several subsequent occasions. The file did not indicate that the FBI directed
any other investigative activities at the Catholic Worker or its members as a
result of the investigation, and the Special Agent did not identify any such
activities.

Within a few days after the May 2001 protests at the VAFB, the FBI
named the Catholic Worker and another group as additional subjects in the
VAFB investigation.!§! In an EC dated May 22, 2001, the FBI summarized the
case to date and reported on the protest activities that had occurred at the
VAFB on May 19, 2001. The May 22 EC stated that the subject groups
proposed a variety of activities to disrupt or impede future National Missile

180 The FBI file, which includes arrest affidavits and news articles describing the events
of May 19 and 20, does not state that a missile launch occurred during May 2001. File
documents state that the test launches held after the opening EC were in July and December
2001.

181 According to two May 2001 ECs, the other group, which is not one of the groups
selected for this review, had four to eight members present at the protest. This other group
“advocated confrontation, possibly physical confrontation, in order to defeat the capitalist
domination of America.” According to the Special Agent, he observed four protesters, believed
to be members of this other group, who “were advocating confrontation with the Air Force
police.”

161


attendance was part of any unofficial investigation of anti-war activity in
Pittsburgh or that the FBI was focusing on the Merton Center or others
because of their anti-war views. Additionally, we determined that no FBI
employees searched the FBI's investigative databases for key terms such as
“Thomas Merton Center” or the name of the Merton Center executive director in
the month prior to or after the anti-war rally. We found no evidence that prior
to the assignment the FBI had any investigative interest in the Merton Center
at all; indeed, the very first reference to the Merton Center in any official FBI
document provided to us was in the EC itself.

Taking all of the evidence together, we concluded that Berry was sent to
the event pursuant to a casual, spur-of-the-moment assignment given in
substantial part because Berry was a probationary agent with nothing to do on
a slow work day - the day after Thanksgiving. We believe that Berry was told
to look for terrorism subjects at the event, but we could not find any
particularized basis for the FBI to believe that any terrorism subject would be
in attendance. We believe that the surveillance was an ill-conceived “make
work” assignment.

b. Attendance at the Event

Part VI of the 2002 Attorney General Guidelines provided that “for the
purpose of detecting or preventing terrorist activities, the FBI is authorized to
visit any place and attend any event that is open to the public, on the same
terms and conditions as members of the public generally.” The leafleting rally
was open to the public and any member of the public could have done what
Berry did: observe and speak with participants, and take photographs.

As discussed above, we found no evidence to suggest that the FBI had, at
the time of the event, any basis to believe that any Pittsburgh terrorist subject
was connected with the Merton Center or likely to be in attendance. Although
subsequent FBI documents and testimony claimed that the assignment was an
outgrowth of, or related to, a particular anti-terrorism investigation, the
evidence we found contradicted these claims.

However, the “purpose” test for attending public events under Part VI of
the 2002 Attorney General Guidelines did not require any demonstration of an
articulable suspicion to attend the event. It simply required that the agent
ordering the activity have an antiterrorism purpose in mind.

We concluded that this assignment fulfilled this undemanding
requirement, since the assignment was designed at least in part to check
whether any Pittsburgh Field Division terrorism subjects attended the public
event. Although the possibility that any useful information was likely to result
from this make work assignment was remote, the “purpose test” in Part VI of
the 2002 Attorney General Guidelines was not violated. Therefore, we believe

61


U.S. Department of Justice

Federal Bureau of Investigation

In Reply, Please Refer to Pittsburgh, PA 15203-2148
File No. February 26, 2003

INTERNATIONAL TERRORISM
MATTERS

Pittsburgh Division Joint Terrorism Task Force (JITF
investigation has revealed the following information of which
your agency may already be aware:

The Thomas Merton Center (TMC), lécated at 5125 Penn
Avenue, Pittsburgh, Pennsylvania (PA), telephone 412-361-3022,
webpage: www.thomasmertoncenter.org, has been determined to be an
organization which is opposed to the United States' war with
Iraq. A review of the above website revealed that when the
United States begins war with Iraq:

"Rll who desire peace and an end to war
gather at the Federal Building downtown,
corner of Liberty and Grant at 12 noon for an
interfaith prayer vigil, 5 P.M. for a rally,
and possible civil disobedience for those
prepared to do this."

Also listed on the website is the date February 15,
2003. This day is a day of international protestors against the
war promoted by United for Peace and Justice
(www.unitedforoeace.org). The organization hosted the
international rally and march against the war in New York City at
the United Nations Building. Hundreds of people from the
Pittsburgh region were making the trip to New York City for the
protest. In addition, thousands more were anticipated in local
marches, rallies, and vigils in Youngstown, Ohio (OH),
Morgantown, West Virginia (WV), and Butler, Meadville, and
Pittsburgh, PA.

Regional events included:
12:00 P.M. North Side Vigil for Peace in Iraq.

Allegheny UU Church, North Avenue and
Resaca Place (North Side)

This document contains neither recommendations nor conclusions of the FBI, It is the property of the
FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency

D-1


Catholic Worker, as a person who may have been involved in the vandalism.
The EC did not describe in any detail what the witness saw but simply
referenced “a witness to the captioned matter.” According to the EC, the
witness identified the Catholic Worker member as a possible suspect after
viewing a videotape of a protest which occurred at the Federal building in
Milwaukee. !58

The Casa Maria Catholic Worker was a local group with a hospitality
house located in Milwaukee. Twice the FBI interviewed the member of the
Casa Maria Catholic Worker who the witness had identified, both times at his
Milwaukee residence, which was also the Casa Maria Catholic Worker
hospitality house.!5° The individual denied any involvement in or knowledge of
the vandalism. Following additional investigative activity, the FBI closed the
case for lack of evidence that identified any subjects.

b. OIG Analysis

We concluded that under the applicable Attorney General’s Guidelines
the FBI had a sufficient factual basis to open an investigation on unknown
subjects and to interview the Catholic Worker member suspected of the
vandalism. The 2002 Attorney General’s Guidelines in effect at the time of the
investigation stated that a general crimes investigation may be opened “when
facts or circumstances reasonably indicate that a federal crime has been, is
being, or will be committed.” The Special Agent who wrote the opening EC had
a “reasonable indication” that a federal crime was committed from the report of
vandalism at a military recruiting station and an anonymous claim of
responsibility. See 18 U.S.C. § 1361 (willful injury or depredation to United
States property.) Moreover, interviewing the Catholic Worker member at the
Catholic Worker hospitality house was a lawful investigative technique under
the 2002 Attorney General’s Guidelines, based on the witness’ belief that the
Catholic Worker member might have been involved.

We also examined whether this investigation was properly classified as a
domestic terrorism matter. The FBI policy in effect during most of this
investigation stated that such classification “shall include any investigation of a
criminal act which involves an individual(s) who seeks to further political and/
or social goals wholly or in part through activities that involve the use of force
or violence and violate federal law.”!®° The act of vandalism, which involved the

188 The EC did not describe the nature of the videotaped protest, state whether the
Catholic Worker or its members were present at the protest, or identify the reasons the FBI had
possession of the videotape.

159 The FBI memorandum that memorialized the details of the individual's first
interview described the Casa Maria Hospitality House and provided its website address.

160 MIOG, Part 1, § 266-1(1) (July 2003). As noted in Chapter Two, this MIOG
provision went into effect on July 9, 2003. Because this provision was in effect for all but 3
(Cont'd.}

145


Berry told us that in response to Crosetti’s instructions, before going to
the rally he reviewed a binder containing color photographs of Pittsburgh’s
international terrorism subjects, which was maintained in Crosetti’s office. The
binder contained photographs of all international terrorism subjects of full field
investigations or preliminary inquiries originating in Pittsburgh. Berry said he
attempted to memorize the faces depicted in the binder of photographs but he
was “totally unfamiliar” with the subjects’ faces because he was a new agent.

During her OIG interviews, Crosetti told us that she did not have any
present recollection of the circumstances leading up to the decision to conduct
the surveillance of the event. She stated that she believed that Berry -not her -
had initiated the surveillance in order to identify terrorism subjects. She also
told us that she believed the Pittsburgh JTTF possessed information that its
international terrorism subjects would be in attendance at events such as the
Merton Center anti-war rally. We asked Crosetti if she knew the identity of the
subjects the agent went to identify at the rally and could describe the link
between these subjects and the Merton Center. She responded that the
majority of Pittsburgh’s international terrorism subjects congregated at the
Islamic Center of Pittsburgh, and she said that the EC regarding the
surveillance of the anti-war rally stated that the Merton Center had recently
coordinated an event at the Islamic Center.

Apart from the November 29, 2002, EC, we found no FBI documents
created in 2002 that described the purpose or any of the background for the
FBI's surveillance of the anti-war rally. We also found no documents predating
the event suggesting a basis for believing that any terrorism subjects were in
fact associated with the Merton Center or were likely to be present at the event.
Our review of FBI documents referencing the Islamic Center of Pittsburgh,
which Crosetti had pointed to, confirmed that some international terrorism
subjects in 2002 were members of the Islamic Center or attended its functions.
However, as discussed below, we found no evidence the FBI knew of a link
between the Islamic Center and the Merton Center before the anti-war rally
occurred.

According to Berry, he went to the anti-war rally alone. When he arrived
there, he saw a large crowd but he could not recall the faces he had attempted
to memorize from the binder. He told us he did not bring any photographs of
subjects with him to the event.

At some point, a man in the crowd handed Berry a leaflet.48 Berry said
he noticed then that the leaflet was produced by the Merton Center. He told us
that this was the first time that he had heard of the Merton Center.

48 Berry said he did not recall what he did with the leaflet, and the FBI did not provide
us any leaflet from the event in response to our requests for information.

32


subject of any investigation. In the second version, which was generated by the
CTD in response to congressional questions after FBI Director Mueller’s
testimony at a Senate oversight hearing, the alleged target was a different
individual we have referred to a Person B, who was the subject of a Pittsburgh
Division international terrorism investigation.

In the first version, the FBI Pittsburgh Field Division allegedly was
targeting Farooq Hussaini at the Merton Center rally because of information
developed in a terrorism investigation by the FBI’s Dallas Field Division. We
concluded this version was false. Berry told us he had never heard of Hussaini

at the time of the rally. Berry and Crosetti both expressed doubt that Faroo
Hussaini
. Moreover, there was no evidence

that Berry or Crosetti even became aware of the Dallas case until years after
the Merton Center anti-war rally.

This version of events was originally contained in the Pittsburgh FBI's
February 2006 routing slip, prepared in connection with the FOIA request.
Although the routing slip was prepared by the Pittsburgh Field Division legal
staff, we were unable to determine with certainty the original source of the false
account it contains, primarily because several witnesses told us they could not
recall the underlying events. While it is conceivable, as the FBI now asserts,
that the version of events contained in the routing slip reflected carelessness by
several FBI employees, we believe the evidence indicates it more likely was an
effort to reconstruct the events in a manner that would provide a stronger
justification for the FBI’s surveillance of the Merton Center rally than was in
fact the case.

The Farooq Hussaini version of events was also the basis of a press
response issued by the FBI in March 2006 after the Merton documents had
been publicly released pursuant to the FOIA request. Pittsburgh Field Division
attorney Stanley Kempler said he used the routing slip to brief the FBI's
National Press Office about the incident after the Merton Center documents
were released and the FBI's surveillance activities at the Merton Center rally
had become controversial. In the subsequent press response prepared by the
National Press Office, the FBI stated that the surveillance at the rally related to
an “on-going investigation” (referring, we believe, to the Dallas investigation
discussed in the routing slip) and that the FBI had received source information
that there was a “link” between the investigation and the Merton Center.
However, this was false and misleading for the same reasons as the routing slip
on which is was based. Neither Berry nor his supervisor, Crosetti, was aware
of the Dallas investigation at the time of the surveillance, and there was no
suspected “link” between the Dallas investigation and the Merton Center rally
in Pittsburgh. To the extent that the press response was referring to the “link”
between Farooq Hussaini and the Merton Center, that connection was not
known to the FBI until after the surveillance. However, we could not determine

64


inquiries. This distinction had consequences, because the Attorney General's
Guidelines limit the investigative techniques that can be used during
preliminary inquiries and require more frequent review to determine if the
investigation should be closed.

We also found that FBI case agents sometimes did a poor job of
documenting the predication for opening investigations, despite the fact that
FBI policy required “strict compliance” with the Attorney General’s Guidelines,
including the documentation requirement, in cases implicating First
Amendment rights. As a result, in the absence of clear contemporaneous
documentation, FBI agents and supervisors sometimes provided the OIG with
speculative, after-the-fact rationalizations for their prior decisions to open
investigations that we did not find persuasive.

In many of the cases we reviewed, the FBI conducted relatively little
investigative activity of any kind. In those cases in which the FBI conducted
activity, we found with rare exception that the FBI used techniques that were
authorized for the level of investigation that had been predicated, such as a
preliminary inquiry, a full investigation, or pursuant to a special event.

However, in some cases, we found that the FBI extended the duration of
investigations involving advocacy groups or their members without sufficient
basis. This had practical impacts on subjects, whose names were maintained
on watchlists as a result and whose travels and interactions with law
enforcement were tracked. For example, the FBI continued to collect
information about the international travel of two subjects of a PETA-related
investigation after the point that the underlying justification for the case ceased
to exist.

Cc. Collection and Retention of Information

We also reviewed whether the FBI improperly collected or retained
information about the First Amendment activities of the groups or their
members. We found that in most cases, documents in FBI files referencing the
advocacy groups did not focus on the content of their First Amendment
expressions.

However, we found instances in which the FBI used questionable
investigative techniques and improperly collected and retained First
Amendment information in FBI files. These instances, which are summarized
above, related to the Merton Center or the Pittsburgh Organizing Group. In
one case, a probationary agent was sent to look for terrorism subjects at an
anti-war rally in an ill-conceived project on a slow work day that resulted in the
placement of inappropriate information in FBI files, in violation of the Attorney
General's Guidelines. In another, an FBI agent recruited a source to report on
the First Amendment activities of and advocacy group in a poorly supervised

187


U.S. Department of Justice

Federal Bureau of Investigation

Washington, D. C. 20535-0001

September 14, 2010

Honorable Glenn A. Fine

Office of the Inspector General
U.S Department of Justice

Suite 4706

950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Dear Mr. Fine:

The Federal Bureau of Investigation (FBI) appreciates the opportunity to review
and respond to your draft report entitled, "A Review of the FBI's Investigations of Certain
Domestic Advocacy Groups" (hereinafter "Report"). :

We are pleased the Report concludes the FBI did not target any groups for
investigation on the basis of their First Amendment activities. As noted in your Report, "[t]he
FBI's investigations of these individuals were generally predicated on concerns about potential
criminal acts by these individuals, not their First Amendment views."

Additionally, as described in the Report, inaccurate information was provided to
the FBI Director and Congress regarding the basis for an agent's presence at an anti-war rally that
was sponsored by the Thomas Merton Center in November 2002. The FBI regrets that incorrect
information was provided regarding this matter.

In conclusion, based upon a review of the Report, the FBI concurs with the six
recommendations directed to the FBI. Please fee] free to contact me at 202-324-3315 should you
have any questions or need further information.

Sincerely yours,

Timothy P. Murphy
Deputy Director



ee.

The EC did not identify any criminal activity associated with Robinson.
The agent said he believes that he added Robinson as a subject based on the
financial transfers the agent saw involving PETA, the Foundation to Support
Animal Protection, and the Physician's Committee for Responsible Medicine,
combined with information — later determined to be erroneous ~ indicating that

. However, the agent told us that he could

not recall any criminal activity Robinson specifically was suspected of being
involved with. We also note that approximately 6 months before Robinson was
added as a subject, a preliminary review conducted by FBI Headquarters of
some limited financial and public source information provided by the Norfolk
Field Division made the observation that “while . . . there is connectivity
between PETA and [the Physician’s Committee for Responsible Medicine],
transferring money from one charity to another is a common practice tolerated
by the IRS.”

The FBI's analysis of the financial records obtained over the course of the
Collins investigation - the primary focus of the FBI’s case — did not identify any
illegal activity. The most notable finding was a PETA tax record indicating that
on April 20, 2001, PETA donated $1,500 to the North American Earth
Liberation Front (NAELF). PETA publicly acknowledged in 2002 making the
donation, which has been claimed by some organizations to be evidence of
PETA’s support of domestic terrorism.!2!_ According to PETA’s General
Counsel, however, the donation was made to assist NAELF’s press officer “with
legal expenses related to free speech.”

The remainder of the FBI's investigative efforts in the Collins case -
essentially collecting a substantial amount of public and nonpublic
information, interviewing former PETA employees, and performing some link
analysis - were sporadic and, based on our review, did little to advance the

120 According to FBI records, Stop Huntingdon Animal Cruelty is an international
campaign begun in 1999 by animal rights activists to shut down Huntingdon Life Sciences,
Europe's largest animal research laboratory. Huntingdon Life Sciences has offices in New
Jersey. The campaign targets Huntingdon Life Sciences directly, as well as affiliated
companies. An FBI official testified before Congress in 2005 that Stop Huntingdon Animal
Cruelty tactics have included “bombings, death threats, vandalism, office invasions, phone
blockades, and denial-of-service attacks on [] computer systems.” In March 2006, a federal

jury in Trenton, New Jersey convicted several members of Stop Huntingdon Animal Cruelty,
EN (6: conspiracy to violate the Animal

Enterprise Protection Act, 18 U.S.C. § 43.

121 See, e.g., David Martosko, Director of Research, Center for Consumer Freedom,
before the Committee on Environment and Public Works, U.S. Senate, concerning
“Environmental and Animal Rights Terrorism and Its Above-Ground Support System” (May 12,
2005).

101


The Special Agent told us he did not recall having any particular
evidence that the Catholic Worker was coordinating with Greenpeace on the
powered parachute plan. However, he stated that he believed there was an
affiliation among the group members protesting at the VAFB, not just because
they appeared to know each other when arrested for trespassing but also
because they entered the VAFB at different points in a manner that appeared
coordinated. The Special Agent also stated the best recollection he had of
specific information linking the Catholic Worker with the other groups was that
Catholic Worker members contacted a member of another group when the
Catholic Worker members were trespassing on south base.

The Special Agent stated he opened only one investigation containing the
various groups and individuals because they all shared the same objective of
impeding future missile launches on the same date. He said the Catholic
Worker members who he interviewed during the May 2001 protest told him
that they were there to block any missile launches. He also said that one
Catholic Worker member's blog stated that it was his intent to impede a missile
launch. The Special Agent told us that he believed this Catholic Worker
member with a website was speaking to him as “essentially” the leader of the
Catholic Worker group.

Two subsequent ECs in the case file provided details about a “credible
threat” to a July 14, 2001, National Missile Defense launch test from the use of
powered parachutes by Greenpeace. One EC stated that Greenpeace was
“planning on using backcountry hikers, inflatable boats and light aircraft to
attempt to impede” the National Missile Defense launches. These ECs provided
no further information about the Catholic Worker or its members.

In July 2001, 17 persons associated with Greenpeace were arrested for a
variety of trespass activities that succeeded in penetrating an established
missile launch safety zone. The defendants were initially charged with felony
conspiracy, violating an order of a U.S. Coast Guard Captain by entering a
safety zone, as well as misdemeanor trespass. The trespassing acts involved
use of boats to position protesters to swim onshore and enter onto highly
restricted areas of the VAFB. According to the grand jury indictment, the
defendants used four Zodiak vessels to enter the Coast Guard safety zone after
being advised of the zone’s location by Harbor Patrol. Some defendants entered
the water in the safety zone and swam to shore. Helicopter rescues were
ultimately necessary for some of the swimmers who needed immediate medical
attention. According to the Special Agent, some swimmers became
hypothermic and were taken to the hospital. However, the powered parachute
plan was not attempted at the VAFB. There is no record of Catholic Worker
members participating in this protest.

On July 17, 2001, the FBI Los Angeles Field Division opened a separate
full investigation on Greenpeace and the 17 persons arrested during this

164


participation i at World vegan Day and his involvement

with an organization supporting an animal rights activist who had been
convicted in 2000 on a misdemeanor obstruction charge in connection with an
animal rights demonstration.

The Norfolk Field Division initiated a preliminary investigation based on
this information “to determine [Turner's] involvement in criminal activity and
any affiliation with domestic terrorist groups such as ALF.” Early investigative
efforts included verifying Turner's residence and receiving additional
information from the FBI source about Turner, such as |

and his activities as a PETA employee and animal rights activist. The
Norfolk Field Division’s que

had been in
contact with other numbers subscribed to by individuals who, according to FBI
investigative files, were prominent animal rights activists. Two of these
individuals were the subjects of domestic terrorism investigations in other FBI
field offices.

On November 22, 2005, the Norfolk Field Division sent a letter to the
U.S. Attorney’s Office for the Eastern District of Virginia, requesting that the
office open a case on Turner and assign an Assistant United States Attorney to
the matter. The letter described the information the investigation had gathered
about Tumer’s criminal record and affiliation with known animal rights
extremists. On November 27, 2005, the U.S. Attorney’s Office orally advised
the Norfolk Field Division that it would not open a file on Turner at that time
because the information provided in the November 22, 2005, letter did not
meet the office’s threshold for opening a criminal case. The U.S. Attorney's
Office advised that additional evidence linking Turner to domestic terrorism
organizations was needed before a case could be opened.

The Norfolk Field Division's preliminary investigation continued for
several months. Investigative activity included additional records checks, a
review of public source information about Turner, and a request to a unit at
FBI Headquarters to analyze two e-mail addresses used by Turner to identify
possible links to other FBI domestic terrorism subjects. The Special Agent in
Charge of the Norfolk Field Division authorized a 90-day extension of the
preliminary investigation, effective February 26, 2006. According to the EC
requesting the extension, the FBI source that had been providing second-hand
information about Turner was having little success meeting with him directly,
but was continuing to try.

On May 16, 2006, near the conclusion of the 90-day extension, the
Norfolk Field Division sent an EC to FBI Headquarters advising that the Turner
investigation was being closed. The EC summarized the investigation that had
been conducted and gave as the reason for closure the belief that Turner had
left the Norfolk Field Division's jurisdiction. According to the EC, because

123


2002 EC. Thus, both Fritsch and Kempler told the OIG that they were
confident they got the information in the routing slip from Berry, not through a
reconstruction from historical documents, as the FBI’s explanation asserts.

Second, the routing slip contains several details that could not
reasonably be inferred from the stack of historical documents alone. For
example, the routing slip stated that “FAROOQ HUSSAINI became of interest to
the Pittsburgh Office on 06/07/2002... .” (Emphasis added.) Yet, nothing in
the stack of documents generated as a result of the database searches of
Farooq Hussaini’s name suggests that Hussaini became of interest to the FBI
Pittsburgh Field Division on that date or any other date before the surveillance.
Similarly, the routing slip stated that “the agent [Berry] stated that his
supervisor [Crosetti] directed him to attempt to photograph individuals who
were in contact with FAROOQ HUSSAINI.” This statement, which Berry
vehemently denied to the OIG and which the FBI agrees was not true, also
could not have been inferred from the documents resulting from the database
search. This statement either was speculation that the author presented as
fact in an official document, or it was deliberately misleading.

Third, even if Fritsch alone had made the inferences from the stack of
documents to reach the statements made in the routing slip, we find it difficult
to believe that he or Kempler would have sent out this reconstruction without
taking any steps at all to verify its accuracy with Berry or Crosetti, the two
people — both still working in the FBI Pittsburgh Field Division at the time -
who had direct knowledge of the facts.

After reviewing a draft of this report, the FBI also asserted that because
the OIG found that the original surveillance did not violate FBI policy, nobody
had a motive to provide an intentionally misleading account of it. This
argument ignores the fact that the original November 2002 EC did not state
any justification for the surveillance and could be anticipated to generate
significant adverse publicity upon its release. Tying the surveillance to a
particular person of interest or terrorism suspect would be a better justification
than what actually happened, which was that Berry was sent to the rally asa
“make-work” assignment to see if any of the Pittsburgh terrorism subjects
happened to show up without having any reason to think any of them would be
there. Although we concluded that this assignment did not violate the Attorney
General Guidelines, it did not reflect well on the Pittsburgh Field Division and
could likely cause significant concern or embarrassment to the FBI if the true
facts surrounding the surveillance were publicly presented.

At best, the person or persons who were responsible for the version of
events contained in the routing slip were extraordinarily careless in
characterizing their speculation about the basis of the surveillance as
established fact without any attempt to confirm it. In light of the
circumstances described above, however, we believe that it is more likely that

42


The agent told us that the arrangement to use this person as a source
enabled him to “get into the source program,” and “show some source tasking
and reporting.” When asked why he was tasking the source to collect
information on POG at the time the Herman preliminary inquiry was winding
down, the case agent said, “that tasking [was] more motivated by wishing to
participate in the informant program than it [was] POG generally speaking.”
He also stated this was an opportunity to place an individual within the group
to obtain the kind of criminal intelligence that the investigation had not been
able to develop.

The case agent assigned the source to attend
, 2004.98 The agent stated that he selected this

meeting for the source to attend entirely on the basis of the availability of the
source at the time. He said he had no information suggesting that criminal
activity would be discussed, but that his purpose for sending the source was to
“get him accepted into a group for further penetration and actually into the
criminal element somewhere in POG.” The agent told us that he believed, “it
was Clear in [the source’s] mind that [his role was] to try and identify criminal
activity.”

The case agent filed a source report dated a “first
source report”). The report described the meeting at and
was filed in the source file and under the case number for the Herman
preliminary inquiry. The report contained the following information describing

the First Amendment expressions of persons in attendance, which the case
agent drew from an e-mail that the source sent to him:

Source, who is not in a position to testify, provided the following
information:

Source reports that a

Also in attendance were the following persons: [names and ages
redacted].

Meeting and discussion was primarily anti anything supported by
the main stream American.92

98 It is not clear how the agent knew this meeting was connected to POG, but it appears
likely that the agent found a reference to the meeting on the POG website.

99 We made the redactions indicated in the text. The source report contained the
actual identifying information regarding these individuals.

84


CHAPTER TWO
AUTHORITIES GOVERNING FBI INVESTIGATIVE ACTIVITIES

In this chapter we provide background information on the authorities
governing FBI investigative activities. We first describe a prior review we
conducted regarding the FBI's investigation of protest groups. We then discuss
the various statutes, the Attorney Generals’ Guidelines, and FBI policies
governing investigative activities. We examine the predication requirements for
various FBI investigative activities, as well as explicit limitations or conditions
on the FBI's use of investigative techniques that may burden or otherwise
implicate First Amendment rights, including limitations on the collection or
maintenance of records describing how individuals exercise their First
Amendment rights. We also describe how recent DOJ and FBI policy changes
may affect FBI investigative activities in the future with respect to domestic
advocacy groups. As explained in subsequent chapters, recent changes in FBI
policies would have changed our analysis of the FBI’s conduct in particular
cases had they been in effect at the time.

I. Prior Review

The OIG previously conducted a review addressing the FBI's investigative
activities directed at potential protesters planning to attend the 2004
Democratic and Republican national political conventions.? The OIG review
found the FBI's investigative activities were focused on addressing 17 distinct
threats to the 2 conventions falling within the FBI’s Domestic Terrorism
program. That review did not substantiate the allegations that the FBI
improperly targeted protesters for interviews before the conventions in an effort
to chill their First Amendment rights. Rather, we concluded that the FBI's
investigative activities were conducted in accordance with the existing Attorney
General's Guidelines.

Il. FBI Authorities

The FBI does not operate under a general statutory charter that identifies
permitted investigative activities or places limitations on the use of particular
investigative techniques. However there are numerous authorities that govern
the FBI's investigative activities, including the Attorney Generals’ Guidelines
and internal FBI policies.

7 OIG Report, A Review of the FBI's Investigative Activities Concerning Potential
Protesters at the 2004 Democratic and Republican National Political Conventions, (Apr. 27,
2006), available at http://www.justice.gov/oig/special/s0604/index.htm.,


CHAPTER FIVE: INVESTIGATIVE ACTIVITIES DIRECTED AT

GREENPEACE ........cccccccccceccccceceeeeeeeeeseecceeeeeeeeeeeeeeseseeeeeeeteeeeeeeeees 125
1. Background .........ccccccccceecseceeeeesteeeeeeeesseeeeeseseeeeeeeeseeeeeeeeetiseeeeeens 125
Il. Specific FBI Activities Relating to Greenpeace.............00.ccceeeeeeeeee 126
A. FBI Anchorage Division Investigations of Individuals
Associated with Greenpeace — 1999 — 2002 .........::.ceeceeeeees 126
1. Facts

2. OIG Analysis

FBI Dallas Field Division Investigations of Individuals
Associated with Greenpeace ~ 2004 — 2007.

1. Facts..
2. OIG Analysi:

CHAPTER SIX: INVESTIGATIVE ACTIVITIES DIRECTED AT THE
CATHOLIC WORKER MOVEMEDNT.........c:cccccccccssseeeeeessteseeesssteeeeeees 143

I. Background ......ccccecssseseeeeeeceececeeeeeeeeeecceeeeeeseeceeeeseeescceceeeeseeeeeeeesees 143

Il. Specific FBI Activities Relating to the Catholic Worker...
A.

Investigations in Which Catholic Worker Groups or Their

Members Were Made the Subject of an FBI Investigation...... 144
1. Milwaukee, WI Military Recruiting Station —
Milwaukee Field Division .................:ccceceececeeeeeeeeeeeeees 144
2. Ithaca, NY Military Recruiting Station - Albany Field
Division....
“Special Events” at which Catholic Worker Organizations
Participated in Protests ...........0cccccceeseecceeeeseeeeceeneeeeeeeeeenaeeee 149
1. USS Ronald Reagan Commissioning — Norfolk Field
DivisiOn........ccccceeceeeeseeeeeeeeeeeeeeeeeeseeeseceeeeeeeeeeeeeereeeneres 149
2. Strategic Command Conference,
Offutt Air Force Base ........ccccccceeeecesseeesecerseeseneeeeeee 150

The FBI Recorded Information Provided by other
Organizations Regarding the First Amendment Activities of
Catholic Worker Organizations or their Members.................. 153

1. Offutt Air Force Base Protest ...
2. Norfolk Naval Station Protest..

CHAPTER SEVEN: INVESTIGATION OF PROTESTS BY GREENPEACE
AND THE CATHOLIC WORKER AT VANDENBURG
AIR FORCE BASE ........cccccccccccessceceeeeesseceeeesenssaeeeeesenssseeeseessseeesseee 159

iv


committed targeting secure government facilities, including destruction of
government property, destruction or disabling of military weapons systems,
and trespass onto military facilities. The EC stated that these actions were
believed to have been conducted to support the Prince of Peace Plowshares’s
anti-war/anti-nuclear views. The EC also stated that the Prince of Peace
Plowshares’s website described criminal actions previously taken against the
military by two of the four individuals, including damaging military aircraft and
a submarine by the use of hammers and pouring human blood and damaging
another submarine by ramming a vehicle into it.

The opening EC also stated that Prince of Peace Plowshares actions may
be planned at community centers using names such as “Jonah House” or the
“Catholic Worker.” The EC stated that the Jonah House website published the
declaration that was read by one of the four individuals during the action taken
against the Ithaca military recruiting station. The Jonah House website also
contained signatures of individuals who subscribed to the ideology stated in
the declaration. One of the signers was an individual who was not one of the
St. Patrick’s Four but who was then being investigated by the FBI Albany Field
Division for attempting to firebomb a military recruiting station in Vestal, New
York.

The opening EC also stated that the Jonah House website had recently
announced a protest, to be held on June 5, 2004, of the launching of a nuclear
submarine, the USS Jimmy Carter, in Groton, Connecticut. The EC stated that
the protest was being organized by the Hartford Catholic Worker. The FBI case
agent sent a lead to the New Haven Field Division requesting that it
disseminate the information on the planned protest against the USS Jimmy
Carter to local law enforcement and shipyard security personnel. The case
agent sent another lead to the New Haven Field Division requesting local law
enforcement to conduct checks on the St. Patrick’s Four and forward to him
any police reports.

The FBI case file indicates that the St. Patrick’s Four were indicted on
federal charges in February 2005. In preparation for the trial, the FBI case
agent requested in an EC dated September 20, 2005, that the FBI Los Angeles
Field Division contact the Los Angeles Police Department to obtain the police
report for the Los Angeles area arrest of one of the four individuals. The file did
not contain any other evidence of investigative activities directed at the St.
Patrick’s Four.

The defendants were tried and convicted on the federal offense of damage
to government property and two counts of trespass on a military station in
September 2005, and sentenced in January 2006. The four were acquitted of
the most serious charge of conspiracy to impede an officer of the United States
by force, intimidation, and threat.

147


time of the November 2002 rally and that Hussaini was the target of the FBI's
surveillance at the event.

4. Source of the Routing Slip Information

As detailed in Section B below, we believe that the false version of events
in the routing slip influenced subsequent FBI public statements about the
November 2002 EC, including a press response distributed after the FOIA
release and the congressional testimony from the FBI Director. We therefore
attempted to determine who was responsible for the false information
contained in the routing slip. In the next section, we describe the results of
our investigation on this issue. After reviewing a draft of this report, the FBI
submitted a detailed response on this issue, which we respond to in subpart b.

a. OIG Investigation

Pittsburgh Field Division attorney Stanley Kempler’s name appears in the
“from” line on the routing slip. Kempler and Carl Fritsch, a non-attorney
member of the Pittsburgh Field Division legal staff, told us that the routing slip
was primarily drafted by Fritsch and only edited by Kempler.5? Kempler and
Fritsch both told us that they have no current recollection of discussing the
contents of the routing slip with Berry, although they said they believed they
had done so based on statements in the document, which identified the agent
who wrote the November 2002 EC (Berry) as the source of the information.
However, as noted above, Berry denied that Farooq Hussaini was the target of
the surveillance and said he did not recall discussing Hussaini with Kempler,
Fritsch, or anyone else.

In an effort to reconstruct the origins of the routing slip, we reviewed
search logs from the FBI databases near the date of the routing slip. This
review showed that on January 23, 2006, 16 days before the date of the
routing slip, Fritsch and Crosetti both had separately searched a database
using search terms based on Farooq Hussaini’s name.°8 Fritsch was the first
to search the database on January 23, 2006, at 2:30 p.m. His search
produced results that included the Dallas EC. Next, beginning at 4:05 p.m.,
Crosetti conducted a series of database searches related to Farooq Hussaini
and the Dallas EC and case number. She printed 25 ECs that were generated
from the Farooq Hussaini search, including the June 2002 Dallas EC and 4
ECs from the Pittsburgh investigation of Person B. At 5:10 p.m. Fritsch

57 Carl Fritsch is a pseudonym.

58 The logical reason for anyone to search for Farooq Hussaini’s name in the database
in 2006 as a step in finding an explanation for the November 2002 EC was that Hussaini was
identified in the November 2002 EC as being the contact person for an event jointly
coordinated by the Merton Center and the Islamic Center, as detailed above, although the EC
did not identify him as a target of that surveillance.

39


investigative activities against the Catholic Worker or the referenced
individuals.

158


“investigation has revealed” certain information about the Merton Center was
just a generic statement for this type of document.

When we asked the Chief Division Counsel (CDC) about the LHM, he told
us that like Berry’s November 2002 EC, it was a document that he “did not
like.” He said that it was possible that the reference to potential civil
disobedience at the federal building may make it a federal crime, but he
questioned the connection to international terrorism and called that a
“stretch.” The CDC said that the LHM may have been appropriately intended
to alert local officials to potential civil disobedience but he said he would not
have reduced it to writing and the information about a potential disturbance
would better have been communicated orally. He said:

. .. as far as antiwar stances and all this other kind of stuff, just
say hey there is going to be an event that there may be destruction
of property or something or you know disruption of traffic or
whatever may be relevant to the local law enforcement entity, but
to put all of this stuff in there about you know the background of it
and then tie it in with international terrorism? No. It is
inappropriate.

We also showed the February 2003 LHM to four other agents and
supervising agents who were on the JTTF in Pittsburgh at the time of the LHM.
Each one said they did not know who drafted the LHM. Another agent who
was not on the JTIF but worked in Pittsburgh at the time also told us he did
not know who drafted the LHM.

2. OIG Analysis

The language in the LHM indicated that a JTTF “investigation has
revealed” certain information about the Merton Center, including that it “has
been determined to be an organization which is opposed to the United States’
war with Iraq.” As the routing slip acknowledged, the LHM created the
impression that the Merton Center was the subject of an international
terrorism investigation. This was not true. In addition, the LHM contains
information about protest activity without stating what, if any, terrorist acts
had occurred or might occur. Our investigation could not identify the person
who drafted this inaccurate LHM or determine its source and what prompted it.

However, we did not find any evidence that the Pittsburgh Field Division
had in fact opened an investigation of the Merton Center or that it made a
determination that the Merton Center was an organization opposed to the war.
We found no other documents connected to the LHM. The November 2002 EC,
uploaded 3 months earlier, similarly focused on the Merton Center's antiwar
activities, but we found no indication that the 2 documents were related or part
of a coordinated focus on the Merton Center. Berry and Crosetti, the agent and

70


possible. The group was also preparing for the possibility that its members
would be arrested in Miami. FBI files indicated that Waterman had been seen
counter-demonstrating at a white-supremacist rally and had been identified as
a member of an anti-racism group that was in the past “known to associate”
with an anarchist group that “advocates societal change through any means
necessary, including armed conflict.” The opening EC reported that Philips
and Waterman were observed at that event exiting a vehicle with a particular
license number that the Pittsburgh Field Division later determined was not an
active vehicle registration. FBI files indicated that Waterman had no criminal
record, but that in view of his activities and group affiliations, the FBI believed
that he was a member or an associate of the anarchist group.

The EC stated that an Internet search on the POG web site revealed that
POG was scheduling a “Global Day of Action against War and Occupation” on
March 20, 2004, in Pittsburgh. The EC described the information provided on
the POG’s website about this protest, including that the event would include
“autonomous direct actions, teach-ins, tabling, video showings, vigils and a
variety of other events.”96 According to the EC the highlight would be a “major
march and rally in the neighborhood of Oakland, PA.” The EC listed 10
organizations endorsing the march, including the Merton Center.

The Pittsburgh Field Division agent who served as the case agent on one
of the preliminary inquiries told us that these investigations were opened at a
time when the Domestic Terrorism squad was wrapping up another substantial
investigation, “so work is light is what I’m saying. . . . So we are looking for
work, which is why folks in POG even get on the radar.” However, the
Supervisory Special Agent (SSA) who supervised the preliminary inquiries
denied that this was a factor in opening the ECs.

Another SSA who approved the ECs acknowledged that there was a lag of
several months between Pittsburgh’s receipt of the information predicating the
preliminary inquiries and the opening ECs. He said the FBI had “hotter
priorities” at the time, which may have explained the delay.

We asked the case agent who was assigned to one of these preliminary
inquiries, as well as two SSAs with supervisory responsibilities for the cases, to
explain what potential federal crimes could serve as the predicate for the
preliminary inquiries. The case agent and both of the supervisors told us that
a major factor was the publicly stated interest of the POG or its members to
engage in “direct actions” as part of their protests. One supervisor stated that
“direct action” was a “code word” used by protesters for conduct that “is often,

86 The FBI was authorized to conduct Internet research on POG for the purpose of
preventing or detecting terrorism pursuant to Part VI.B.1 of the 2002 Attorney General's
Guidelines, discussed in Chapter Two.

79


U.S. Department of Justice
Office of the Inspector General

A Review of the FBI’s
Investigations of Certain
Domestic Advocacy Groups

Oversight and Review Division
Office of the Inspector General
September 2010


Based upon our review of documents in the Norfolk Field Division’s
investigative files and source files, the FBI did not appear to record information
through any of these sources about individuals solely based on the exercise of
First Amendment activities. Rather, the reporting from these sources generally
concerned individuals who themselves were subjects or who had some
connection to subjects of other FBI investigations, or individuals the FBI might
have an investigative interest in.

3. OIG Analysis

We concluded that the FBI did not violate the Attorney General's
Guidelines when it opened an investigation on Collins concerning her
connections to animal rights activists that engaged in criminal acts. However,
we also believe, as did FBI Headquarters, that the matter should have been
opened as a preliminary inquiry rather than a full investigation. The Attorney
General's Guidelines on General Crimes, Racketeering Enterprise and Domestic
Security/Terrorism Investigations in effect at the time of the investigation (the
1989 Guidelines) stated that a preliminary “inquiry” may be opened in
response to an allegation or information indicating the “possibility” of criminal
activity. A preliminary inquiry “allows the government to respond in a
measured way to ambiguous or incomplete information and to do so with as
little intrusion as the needs of the situation permit.” The information in such a
circumstance does not need to rise to the level of a “reasonable indication” of
criminal activity —- the standard for a full investigation — but its “responsible
handling requires some further scrutiny beyond the prompt and extremely
limited checking out of initial leads.”

At the time the Collins investigation was opened, the case agent had
dated information that Collins had
and funded some of the “direct

actions” of ALF. ALF was an entity designated a domestic terrorist group by
the FBI and responsible for millions of dollars in property ‘ed tl to various

“animal enterprises.” It was also alleged that Collins traveled to
| that instructed animal rights activists about
maximizing economic damage to businesses with techniques that included
raids and arson. !25

125 Yet, the case agent’s opening EC did not identify any specific federal law that Collins
possibly violated or would violate, although other documents in the case file identified several
possibilities, including 18 U.S.C. § 43 (Animal Enterprise Protection Act). As noted earlier, this
statute prohibits individuals from traveling in interstate or foreign commerce, or using any
facility (a means of transportation or communication) of interstate commerce, for the purpose
of damaging or interfering with the operations of an animal enterprise, and in fact intentionally
causing such damage.

105


anti-war protests in Pittsburgh. Although the FBI Pittsburgh Field Division’s
opening ECs did not specify a federal crime, the FBI case agent and supervisors
responsible for this case told us that POG or its members utilize “direct
actions” as part of their protests, and that arson, attacks on military recruiting
centers or other government facilities, and bombings were among the possible
“direct actions” that might violate a federal statute. However, neither the
opening ECs nor any of the agents we interviewed identified any direct link
between the POG and such acts.

We concluded that the factual predication for the preliminary inquiries
opened on the POG members for a federal crime was thin. However, because
the Attorney General's Guidelines provided the FBI wide latitude to open a
preliminary inquiry in response to any information “indicating the possibility of
criminal activity,” we did not find a violation of the applicable predication
standard in the Attorney General’s Guidelines as to two of the three subjects.
Yet, information indicating the possibility of a federal crime by the third
individual was so lacking that we concluded the FBI did not have sufficient
predication under the Guidelines to open a preliminary inquiry of him as a
subject.

We determined that for most of the period of the preliminary inquiries,
the FBI conducted only limited investigative activity relating to the three

subjects. However, near the time that the FBI's prelimin: inquiries were
closed, the case agent for one of the inquiries recruited a asa

confidential informant to collect information regarding members of the POG
who participated in meetings | However, the agent told us

that the recruiting of this source was more “motivated by wishing to participate

in the informant program than it [was] POG generally speaking.” At the agent's
direction, the source attended several
, and provided

information about the other participants to the agent. The FBI files contain a
series of source reports resulting from this activity that recorded information

about the identity and First Amendment expressions of POG members meeting
. The case

agent continued directing his source to monitor POG members at public events
even after the preliminary inquiry under which this assignment was originally
conducted was closed.

We concluded that the agent’s purpose in recruiting this source and
assigning this source to conduct surveillance on | POG
was to establish his participation in the source program, not to prevent or
detect terrorism. Because of this improper purpose, we concluded that the
FBI's collection of information about POG members’ First Amendment activities
was not “pertinent to and within the scope of an authorized law enforcement
activity” and therefore raised serious questions under the Privacy Act, the
Attorney General’s Guidelines, and FBI policy.

179


On August 8, 2000, at the request of attorneys for BP, the federal district
court in Alaska issued a temporary restraining order against Greenpeace. Just
prior to the issuance of the restraining order, several motorized rafts, operated
by Greenpeace members, attempted to halt a tug near Prayeth Bay. After the
order was issued, Greenpeace members and the Greenpeace vessel, M/V Arctic
Sunrise, left the area.

Beginning in late 2000, the FBI expanded the scope of the Northstar
investigation to obtain information about protest activities planned by
Greenpeace and some of its members relating to other issues. For example, the
FBI developed information that Greenpeace and some of its members (as well
as other organizations) were planning to disrupt a different BP project in
Alaska known as the Liberty Oil Field. The FBI also developed information that
Greenpeace and some of its members were planning to protest Strategic Missile
Defense Initiative activities at locations in Alaska and outside of the United
States. The FBI file noted that numerous Greenpeace members who might be
involved in the disruption activity planned for the Liberty project had been
arrested in connection with the Northstar protests.

Throughout 2000 and 2001 the FBI developed detailed information
regarding the plans being developed by Greenpeace to disrupt and delay
construction of the Northstar and Liberty projects and other potential protest
activities. The primary focus of the information recorded in FBI documents
was anticipating and preparing for potential criminal activity in the form of
trespass and other actions such as protesters chaining themselves to
equipment or to the ice. Some documents briefly described the message that
the group was seeking to convey to the public through its acts and the group’s
deliberations and strategies (apart from the acts) for getting the message out.

In early 2001 the FBI case agent filed a report in the Northstar
investigation file describing information the FBI had developed regarding the
upcoming travel and protest plans of three individuals: A. Bartlett, C. Daniels,
and E. Franklin.!43 Bartlett was a Greenpeace member and a named subject of
the Northstar investigation who had been arrested during the Northstar
protests in 2000. Daniels was a Greenpeace member who was not a named
subject. According to FBI documents, Daniels participated in the Northstar
protests, but there was no indication in the FBI files that Daniels had been
arrested. FBI documents identified Franklin as someone who had been
arrested the prior year during the Northstar protests and who was moving to
Alaska. Franklin was identified as a member of Greenpeace and other
environmental organizations. The report did not contain any information about
illegal or planned future illegal activities by these individuals.

143 Bartlett, Daniels, and Franklin are pseudonyms.

128


addition, as the FBI Office of General Counsel Attorney noted, the retention of
an EC in a terrorism enterprise investigation file does not make it more easily
retrievable to the FBI if it later becomes relevant to a terrorism investigation.

2. Norfolk Naval Station Protest
a. Facts

The FBI's Norfolk Field Division distributed two ECs based on
information provided by the Navy that described the activities of two Catholic
Worker anti-war protesters who obstructed traffic during a protest at the U.S.
Naval Station in Norfolk in February 2003. The base police served the
protesters letters ordering them not to return and released them.!74 The FBI
did not attend the protest. The information in the EC was provided to the FBI
by Naval Station officials.

The first EC was written by a Naval Criminal Investigative Service (NCIS)
agent who was detailed to the FBI’s Joint Terrorism Task Force. The second
EC repeated the contents of the first, and it is not clear why it was written.
The ECs were placed in the Norfolk Field Division’s “zero file” relating to
domestic terrorist enterprise investigations. A zero file is a type of file used by
the FBI to retain information relating to a classification that does not at the
time it is collected “require investigation.”!75

The NCIS agent sent the first EC to the Richmond and the Boston FBI
Field Divisions for their information. According to the ECs, one of the
protesters had previously been arrested twice for unspecified “protest activities”
and had been the subject of an investigation by the FBI’s Richmond Field
Division in connection with planned protests of the World Bank in April 2000.
The ECs stated that at the time of the 2003 Norfolk protest, the second
protester was a guest at a Catholic Worker group house in Norfolk that was
also the residence of a different individual who had previously been convicted
numerous times for destruction of U.S. property, including for a 1997 incident
in which he and others associated with the Prince of Peace Plowshares
damaged a U.S. Navy vessel with a hammer and by throwing human blood on
it. An EC prepared by the Boston Field Division in 1997 stated that the
damage to the ship was estimated at $10,000.

The NCIS agent who wrote the first EC regarding the Norfolk incident
told us that the second protester’s link to the individual involved in the 1997
Prince of Peace Plowshares incident was the primary basis for writing the EC.

174 The ECs do not reflect the basis for letters of disbarment. However, trespassing on
naval property is a violation of 18 U.S.C. § 1382.

175 See MAOP, Part 2, § 2-4.1.2.

156


Iv.

2. OIG Analysis ....

B. Surveillance Relating to the 2003 Miami Free Trade Area
of the Americas (FTAA) Meeting.............cccccceeeessseeeeeserseeeeeenes 71

1. Facts
2. OIG Analysis .

C. Pittsburgh FBI Investigations of Pittsburgh Organizing Group
(POG) Members Meeting at the Merton Center 2004 — 2005....77

1, 78
2. OIG Analysis ....

CDC Response To Merton Center Document Release ...........::::::066 91

CHAPTER FOUR: INVESTIGATIVE ACTIVITIES DIRECTED AT PEOPLE

Il.

FOR THE ETHICAL TREATMENT OF ANIMALS..............:seeeeeeeeeeeeeee 93
| S-e) <2) 4010 0 (6 [NERS 93
Specific Activities Relating to People for the Ethical Treatment of
AMIMAIS 000... cece c cece cece cece ee eeeeneeeeeecetnaeeeeeeessaeeeeseesaeeeesesesaaeess 95
A. Alex Collin .......ccccecccceeeeeceeeeeeeeeenseeeeeeeeenieeeeeeesssseeeeeenseeeeees 95
1. FACTS... ccccecececcceceeeceeeccecceeeeeececceeeeeceeeeseeeeeeeeeseeeterereeeeees 95

2. Collection and Retention of Information about First
Amendment Activities
3. OIG Analysis

B. PETA - Terrorism Enterprise Investigation ..................::0005 108
1.
2. OIG Analysis .

Cc. Patrick Lewis «0.0.0.0... cece ee eeeeeeeeeeeeeeeeeeeeeeeeeeeneneneneneeees
1.
2.

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1. Facts
2. OIG Analysis .

E. Cheryl Peterson ............ccccccccceeessceceeseesseeeeeeeestseeseesseseeeeeeeeas
1. Facts
2. OIG Analysis .

F. $5) wb COLCA BD w 0 cs nnn
1. Facts

2. OIG Analysis .

iii


effort to establish the agent’s participation in the source program. This activity
also resulted in the improper retention of First Amendment information in FBI
files.

Moreover, although we did not find that these incidents were part of a
coordinated investigation by the FBI based solely on the First Amendment
activities of these groups, they had an impact on the First Amendment rights of
those groups and their members.

D. _Characterizations of Groups

With one exception, the FBI documents we reviewed relating to the
selected advocacy groups generally did not contain inappropriate
characterizations of the groups. In one case, an agent described a group as
“communistic” in a context in which that characterization was irrelevant to a
law enforcement purpose.

E. Classification as Terrorism Matters

The FBI classified the matters we examined as domestic terrorism cases.
This practice did not violate the broad definitions of domestic terrorism in
federal law, the Attorney General’s Guidelines, and FBI policies. However, this
practice relied upon potential crimes that may not commonly be considered as
“terrorism” (such as trespassing or vandalism) and that could alternatively
have been classified differently, such as under the classification for crimes on
government reservations. The domestic terrorism classification had impact
beyond any stigma resulting from the public release of the documents under
FOIA. For example, persons who are subjects of domestic terrorism
investigations are normally placed on watchlists, and their travels and
interactions with law enforcement may be tracked.

F. OIG Recommendations

Based on this review, and some of the problems we found in the FBI
investigations we examined, we make the following six recommendations.

1. Address False and Misleading Statements to Congress
and the Public

As detailed in this report, we found that in 2006 the FBI made false and
misleading statements to the public and to Congress about the Pittsburgh Field
Division’s surveillance of a Merton Center anti-war rally. Two inconsistent and
erroneous versions of the incident were created in which the FBI claimed that
the surveillance was a response to information that certain persons of interest
in international terrorism matters would be present. This was not true. We
recommend that the FBI examine our findings and determine whether

188



However, as FBI Headquarters noted in its EC to the Norfolk Field
Division, the information was 2 years old. In addition, the reliability of the
source for the information was not indicated and the allegations were
conclusory and lacking in detail. In short, like FBI Headquarters, we do not
believe a full investigation was warranted under these circumstances.

The Norfolk field Division’s decision to open the matter as a full
investigation rather than a preliminary investigation had consequences for the
length of this investigation. The 1989 Guidelines required that preliminary
inquiries be completed within 90 days after initiation, and provided for 30-day
extensions with approval from FBI Headquarters. The 2002 Guidelines
required that preliminary inquires be completed within 180 days after
initiation, and provided for 2 90-day extensions based on Special Agent in
Charge approval and subsequent extensions with FBI Headquarters approval
only. By contrast, full investigations could remain open indefinitely. As
explained below, we believe the case would not have remained open for as long
as it was - 6 years — had it been initiated as a preliminary inquiry and therefore
been subject to review and reauthorization at fixed intervals.

We also believe that there was sufficient support for opening an
investigation on Jerry Robinson in January 2003, but we again believe a full

investigation was not warranted. According to the case agent, the grounds for
adding Robinson as a subject included information that a

a ~ Foundation to Support
Animal Protection and Physician’s Committee for Responsible Medicine - with

financial ties to PETA, an organization the FBI suspected of directing and
funding unlawful activities of animal rights extremists; and

. We believe that such information was tenuous and did not provide
much support for the belief that Robinson was involved in any activity that
violated federal law.

We also concluded that the January 16, 2003, EC that added Robinson
as a subject to the Collins case failed to comply with FBI policy requiring that
“if an individual, group, or activity has been characterized in a certain manner
by the originators of information collected in the course of an investigation, FBI
records . . . should reflect that the characterization was made by another party,
not the FBI.” MIOG Introduction, § 1-4(5). As noted above, we determined that
a passage in the EC that described and characterized the financial
arrangements among PETA, the Physician’s Committee for Responsible
Medicine, and the Foundation to Support Animal Protection tracked verbatim a
passage from a report published in November 2002 by a group called Animal
People, which was in turn publicized by Americans for Medical Progress

106


A subject's inclusion on the consolidated terrorist watchlist could also
have consequences for associates of the subjects, even though they are not
themselves the subject of any investigation. The TSC Associates Project was
developed to identify possible associates of known or suspected terrorists who
are on the watchlist. According to the Terrorist Screening Center:

During their normal course of duties, law enforcement officers,
[Department of State] officials and Border Agents encounter known
or suspected terrorists in the TSDB from querying their case
management systems during an encounter. These encounters
provide valuable information which includes who the known or
suspected terrorist is with at the time of the encounter. These
encounters with possible associates will be documented and
provided to the office of origin for appropriate action.44

During our review we determined that in several cases individual
subjects of the investigations we examined were place on watchlists such as
VGTOF as a result of the FBI's use of the Act of Terrorism classification.

44 U.S. Department of Justice Office of the Inspector General, Review of the Terrorist
Screening Center, Audit Report 05-27, (June 2005) at 100, available at
www.justice.gou/oig/reports/FBI/a0527/final.pdf.

27


The source reports did not contain any information about Herman,
Philips, or Waterman, and did not describe any effort by the source specifically
directed at obtaining information about these named subjects. The Chief
Division Counsel (CDC) in Pittsburgh, told us that he was “shocked” when he
reviewed the source reports in 2006, when the documents were collected for
the FOIA response, because the FBI should not have been “collecting on...
antiwar march planning sessions.” He questioned whether there was any
federal crime being investigated. The CDC told us that after he saw the
documents he told the agent to close the source.

2. OIG Analysis
a. Predication

The 2002 Attorney General's Guidelines, which were in effect at the time,
provided that the FBI may open a preliminary inquiry in response to an
allegation or information “indicating the possibility of criminal activity.” Our
effort to determine whether this standard was satisfied with respect to the
preliminary inquiries relating to the POG was hindered by the fact that the
FBI's opening ECs did not specify a federal crime that the FBI deemed
“possible.” Nevertheless, we did not conclude that the FBI's preliminary
inquiries violated the Attorney General’s Guidelines, given the low predication
threshold contained in the Guidelines.

According to FBI files, Herman was identified as the leader of POG anda
self-described anarchist. Philips was identified in the Miami Field Division EC
as a member of POG and a participant in the August 2003 Pittsburgh
conference where direct action to disrupt the November 2003 FTAA in Miami
was discussed. POG prominently advertised its intention of carrying out
“autonomous direct actions” at an upcoming Pittsburgh anti-war protest, as
well as direct actions in Miami.

However, neither the opening ECs nor the Pittsburgh Field Division
agents we interviewed identified any evidence specifically linking the POG or
the subjects to acts of violence. Instead, the Pittsburgh Field Division agents
told us that they believed the term “direct action” as used by the POG is
commonly known to encompass criminal acts. They stated that such acts may
include arson, vandalism, threats, and assaults. But these are generally state
or local offenses that are only federal crimes under very specific circumstances,
which the opening ECs did not identify. When we interviewed the Pittsburgh
FBI agents, they stated that the POG might be planning actions directed at
particular facilities, such as military recruiting offices or a power plant, which
could be federal crimes. However, the opening ECs contained no such
indication.

86


® sitter °

To: Pittsburgh From: Pittsburgh
Re: 199-0, 11/29/2002

GS. Tim viphing, the Merton Center's executive
director, stated to #ittsburgh Tribune Review columist Mike
Seate that there a more than a few Muslims and people of Middle
Eastern descent among the regulars attending meetings at the
Merton Center's East Liberty headquarters,

A on November 29, 2002, 5 b6
photographed TMC leaflet distributors at the Pavilion in Market

Square, Pittsburgh, Pennsylvania. These photographs are being bIC
reviewed by Pittsburgh IT specialists.

One female leaflet distrib Oo appeared to be
of Middle Eastern descent, inquired if SA was an FBI
Agent. No other TMC participants appears oO be of Middle b6

Bastern descent.
b7C

SEGRET

B-2

|


On February 27, 2004, two FBI agents attended a meeting of
representatives from regional law enforcement agencies led by the Pittsburgh
Police Department. The purpose of the meeting was to plan for security at an
anti-war protest in Pittsburgh scheduled for March 20, 2004, referenced in the
February 4, 2004 opening EC. Information was exchanged about POG,
including the fact that the “direct action” section of the POG website advocated
obstruction techniques and criminal mischief, and also described techniques
for dealing with police. The meeting included discussions regarding the
potential for property damage at a local university and facilities linked to
government defense contracts. An EC describing the meeting stated that
official parade permits for the upcoming anti-war protest had been issued “for
the formal activities sponsored by the [Merton Center].” This was the only
reference in this EC to the Merton Center.

On the day of the anti-war march, two FBI agents monitored “Command
Post” activities and protest activities to verify the participation of the subjects,
Herman, Philips, and Waterman. Herman was observed among the POG
contingent. A document in the FBI file noted that during the protest activities
the police did not observe any “actionable criminal activities” apart from
trespass onto a university’s property, which was not enforced.

The FBI file also contains a report that on April 19, 2004, during a
protest outside of the Pittsburgh Convention Center where President Bush was
delivering a speech, Philips and five other protesters were arrested by local
police for failure to disperse, disorderly conduct, and obstructing a traffic way.
Another FBI report stated that the arrested protesters were POG members.
According to a contemporaneous news account, the protest was organized by
the Merton Center. However, no FBI documents described the Merton Center's
role in this protest, nor did they indicate that the case agents conducted any
surveillance activities in connection with this protest.

On June 3, 2004, the two case agents handling the preliminary inquiries
met with Pittsburgh City Police Department detectives, who provided them with
a list of 11 residences, businesses, or other organizations, including the Merton
Center, known to be frequented by POG members. According to a
memorandum by the case agent, the detectives and the FBI agents conducted
“a drive-by surveillance at each location” as part of a “familiarization process
with these locations.” The memorandum stated that they did not see any POG
members, and noted that “several of the locations had no activity at this time.”
The list stated that some POG members, including Philips, were on the Board
of the Merton Center or served on various Merton Center committees. It also
stated that POG members may attend planning meetings for events or protests
at the Merton Center.

In July 2004, the FBI's Pittsburgh and New York Field Divisions received
information from the FBI Miami Field Division that at a POG meeting held in

81


The lowest level of investigative activity under the 2008 Guidelines is
“assessments,” which may be conducted “to detect, obtain information about,
or prevent or protect against crimes or threats to the national security or to
collect foreign intelligence.” The 2008 Guidelines state that while assessments
require an authorized purpose, no particular factual predication is necessary.
The 2008 Guidelines state that the FBI cannot be content to wait for leads to
come in through the actions of others, but must be vigilant in detecting
terrorist activities and may use the “proactive investigative authority conveyed
in assessments” to discharge its responsibilities. However, under the 2008
Guidelines, in contrast to the former “checking of leads” activity, the
investigative techniques that may be used during assessments are limited to a
prescribed list of methods such as obtaining publicly available information and
engaging in observation or surveillance not requiring a court order.

B. Preliminary Inquiries

The 1989 and 2002 Attorney Generals’ Guidelines provided identical
standards for opening a preliminary inquiry. The Guidelines stated that the
FBI may initiate a preliminary inquiry where the factual predicate for a full
investigation has not yet been met but where “responsible handling requires
some further scrutiny beyond the prompt and extremely limited checking out of
initial leads.” In such circumstances, the FBI could initiate an “inquiry” in
response to an allegation or information that indicates “the possibility of
criminal activity.” The Guidelines stated that a preliminary inquiry is not a
required step when the facts or circumstances reasonably indicate criminal
activity; in those circumstances a full investigation can be opened immediately.
The Guidelines required the FBI supervisor authorizing a preliminary inquiry to
ensure the allegation or other information which warranted the inquiry was
recorded in writing.

The 2008 Guidelines allow preliminary investigations to be initiated on
the basis of “information or an allegation indicating the existence” of
circumstances including activity constituting a federal crime or a threat to the
national security or the targeting for attack or victimization of an individual,
group, or other entity in violation of federal law. The DIOG states that the
“purpose of and predication for a preliminary investigation must be
documented in the initiating EC [Electronic Communication].” DIOG § 6.7.A.

The 1989, 2002, and 2008 Attorney Generals’ Guidelines generally
permitted the FBI to use any lawful investigative technique during a
preliminary inquiry, except certain specified techniques that were prohibited.
The 1989 Guidelines prohibited the use of mail covers, mail openings,
nonconsensual electronic surveillance, or any other investigative techniques
covered by Chapter 119 of Title 18 of the United States Code, the Electronic
Communication Privacy Act (ECPA). The 2002 Guidelines also prohibited all of
these investigative techniques except the use of mail covers. The 2008




We found an October 2002 EC memorializing EEE of Person B
that was conducted by the FBI agents assigned to his case. The EC did not
describe any association between Person B and the Merton Center. Rogers told
us that he does not recall if he learned during J of Person B
whether he was associated with the Merton Center. Rogers said that he would
not view such an association as a significant fact.

We found a few documents that associated Person B with the Merton
Center, but each of these was dated after the rally, and we found no evidence
indicating that the association identified in the document was known to the
FBI before the rally. The earliest such document was dated July 10, 2003, 8
months after the rally. Moreover, when we showed these documents to Berry
and Crosetti they said it did not refresh their recollections of their having any
pre-rally knowledge of a link between Person B and the Merton Center.

Information learned by the FBI after the anti-war rally was summarized
in the CTD response in a manner that created the misimpression that such
information was known before the event and was the basis for the surveillance
at the Merton Center. For example, the only documents in the Person B file
stating that he was involved in anti-war activities and had been observed at
rallies protesting the war in Iraq and the U.S. Government’s National Security
Entry Exit Registration (NSEER) were dated after the rally. The only pre-
leafleting information in the file that even touches on Person B’s anti-war

protest activities is a notation of his “strong pro-Palestinian sentiment” and a
collection of local newspaper articles that

Moreover, we found no evidence to support the claim that international
terrorism subjects “are believed to be associated with the Thomas Merton
Center,” except for the Person B link noted in post-rally documents. In
response to our document request, the FBI did not supply us with any
document identifying any association between the Merton Center and any other
Pittsburgh subject of an international terrorism matter.

In sum, the CTD response to Senator Leahy’s questions provided an
entirely new version of the events surrounding the FBI's surveillance of the
Merton Center rally. As with the prior versions, the witnesses and
contemporaneous documents indicate this version of events was also false.

b. Source of Information for the CTD Response

We attempted to determine how the CTD response was created and
sourced. We provide the results of our investigation in this subsection. Again,
because the FBI provided a detailed response regarding this matter after
reviewing a draft of this report, we also address the FBI's assertions about the
CTD response in the next subsection.

51


had some marginal relevance in explaining the group’s motive for trespassing,
memorializing the characterizations in an FBI file as the agent did showed
questionable judgment, particularly given the way it was stated.!9°

Cc. Classification as an Act of Terrorism Matter

We considered the FBI's decision to classify its investigation of
Greenpeace, the Catholic Worker, and their members as relating to Acts of
Terrorism. FBI policy in effect at the time stated that the classification for
domestic terrorism investigations “shall include any investigation of a criminal
act which involves an individual or individuals affiliated with a domestic
terrorist group.” MIOG, Part 1, § 266-1(1). We are not aware of any specific
definition of “domestic terrorist group” that was used by the FBI at that time,
although the 1989 Attorney General's Guidelines defined a “domestic security
terrorism investigations” as “focused on investigations of enterprises . . . whose
goals are to achieve political or social change through activities that involve
force or violence.”

The documents we were provided do not show that the FBI had
designated Greenpeace or the Catholic Worker as a “domestic terrorist group,”
or a terrorist enterprise. Although other classifications were available, in light
of the nature of the alleged protest plans, we did not conclude that this
classification was a violation of FBI policy. However, this matter, like several
others described in this report, illustrates the consequences of the broad
definitions of terrorism used by the FBI to classify investigations involving
potential crimes by domestic protesters.

199 When the ECs were written, the MIOG, Introduction, § 1-4(5) addressed
characterizations of groups or individuals and required that characterizations in FBI records
reflect whether the characterization was made by a third party. The MIOG, Introduction, § 1-
4(5), also provided that the FBI record may also state if the characterization comports with the
results of an independent FBI investigation. The FBI substantially complied with this provision
since the ECs stated that the characterizations were attributed to the special agent’s “overhears
and conversations” with the Catholic Worker protesters as well as “interpretation of comments”
made by the Catholic Worker protesters.

168


CHAPTER FOUR
INVESTIGATIVE ACTIVITIES DIRECTED AT
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS

I. Background

Founded in 1980 by Ingrid Newkirk, People for the Ethical Treatment of
Animals (PETA) states that it is the largest animal rights organization in the
world. PETA has been based in Norfolk, Virginia since 1996 and has affiliates
in the United Kingdom, Germany, the Netherlands, India, and Asia. According
to its website, PETA operates on the principle that “animals are not ours to eat,
wear, experiment on, or use for entertainment.” PETA primarily focuses its
efforts on four areas that it believes create the largest and most intense amount
of suffering among animals: factory farms, laboratories, the clothing trade, and
the entertainment industry. PETA focuses attention on these and other causes
through public education, investigative work, congressional and celebrity
involvement, and consumer boycotts. PETA is registered with the Internal
Revenue Service as a nonprofit, tax-exempt organization.

In May 2001, the FBI’s Domestic Terrorism Operations Unit drafted a
report summarizing information that the FBI had collected about PETA through
various authorized investigations involving animal and environmental rights
extremists. The report stated that PETA disavows any connection to terrorism
or criminal activity, but that it does provide “what can be considered at least
tacit support for the [Animal Liberation Front]!°6 and its illegal activity,” and
that several leading PETA members have expressed support for ALF activities
and refused to condemn them. The report stated that PETA had financed or
contributed to the legal defense funds of some animal rights extremists charged
with crimes. 107

106 According to FBI documents, the Animal Liberation Front, or ALF, is a loosely
organized movement whose goal is to end animal abuse and exploitation. Described as the
radical arm of the animal rights movement, ALF carries out “direct actions” against entities
that ALF activists believe are exploiting animals for research or economic gain. The closely
associated and similarly structured Earth Liberation Front, or ELF, has as its goal to stop the
destruction of the natural environment and the exploitation of Earth's resources. The FBI
considers each organization a domestic terrorism group and commonly refers to them in
documents jointly as ALF/ELF.

107 The report provided two such examples. The first concerned the legal defense for
Rodney Coronado, a member of ALF arrested and convicted for a 1992 arson of a research
laboratory at Michigan State University. According to the report, PETA contributed more than
$45,000 to Coronado’s defense. The second example concerned PETA's contribution to the
legal defense of Roger Troen, an animal rights activist arrested for an October 1986 arson at
the University of Oregon.

93


We identified one PETA-related case that we believe did not have a
sufficient factual basis even for a preliminary inquiry. The communication that
opened the case did not contain any indication that the individual made
statements advocating force or violence, and the only information indicating
involvement in unlawful acts was one, or possibly two, arrests several years
prior to the case being opened for protest activities not uncommon for animal
rights activists. We believe these previous arrests were not sufficient to justify
the opening of a preliminary inquiry. We also determined that the FBI field
division responsible for this case also failed to comply with FBI policy requiring
that a domestic terrorism subject be removed from federal watchlists when the
case was closed. As a result, the subject was not removed until 3 years after
the investigation was closed.

Cc. Greenpeace

According to its annual report, Greenpeace is a global environmental
organization that “uses peaceful protest and creative communication to expose
global environmental problems and promote solutions for the future.”

Our review did not find that the FBI targeted Greenpeace or its members
for investigation based solely on their exercise of First Amendment rights.
Rather, the FBI opened investigations of individuals associated with
Greenpeace based on concerns about potential illegal conduct, such as
trespass, vandalism, and other crimes.

In one case we reviewed involving Greenpeace protest activities in Alaska,
the FBI's investigation was based on evidence of potential conduct that could
violate federal laws such as 18 U.S.C. § 1366 (Destruction of an Energy
Facility). We concluded that the FBI had sufficient factual predication to open
a preliminary inquiry and later a full investigation on members of Greenpeace
in that case. For similar reasons, we found that the FBI was authorized to
collect and retain information about the future travel and protest plans of the
subjects.

In another case, we reviewed the FBI's predication for a full investigation
of Greenpeace members relating to their planned protest activities with respect
to two corporations in Texas (Exxon and Kimberly-Clark). In prior years, the
Greenpeace members had been arrested

. The FBI opened an investigation
based on the belief that the subjects might be planning similar or perhaps
more destructive protest activities in the future. The FBI used a wide variety of
investigative techniques in this investigation, including surveillance.

We did not conclude that the FBI was investigating the subjects solely as
a result of their First Amendment activities. However, the FBI articulated little

182


trespassing onto a military installation, 18 U.S.C. § 1382, in an attempt to
impede an National Missile Defense test launch. Therefore, at that time the
FBI had evidence that a federal crime had been committed and the Catholic
Worker members’ statements provided further evidence that the group would
likely commit a trespassing crime on the VAFB in the future in an attempt to
impede National Missile Defense test launches. 188

The FBI subsequently converted the preliminary inquiry to a full
investigation. The 1989 Attorney General’s Guidelines stated that a general
crimes investigation may be open “when facts or circumstances reasonably
indicate that a federal crime has been, is being, or will be committed.” We
believe the reasonable indication standard was satisfied at the time the FBI
opened the initial preliminary inquiry based on all the facts and circumstances
then known to the FBI. When the FBI later converted the matter to a full
inquiry it had additional information, particularly about the Greenpeace
powered parachute plans. !89

B. Characterizations of the Catholic Worker

As noted above, in the May 22 and 23 ECs written after the arrests of
Catholic Worker members for trespassing on the VAFB, the FBI agent
characterized the group’s ideology as advocating “peace with a Christian and
semi-communistic ideology,” “love and peace thru prayer,” “impeding [National
Missile Defense] launches thru non violent civil disobedience,” and “a
communist distribution of resources.”

The MIOG, Introduction, § 1-4(4), stated that “[t]he collection of
information concerning groups and individuals must be justified as reasonable
and necessary for investigative purposes.” We concluded the characterization
of the Catholic Worker’s alleged advocacy of a communist distribution of
resources lacked a reasonable and necessary relationship to any alleged
actions on the group’s part to impede National Missile Defense launches. The
agent who wrote the ECs told us that one of the reasons the Catholic Worker
members stated that they trespassed on the VAFB was to draw attention to
their ideology. The ECs characterized the group as communistic but did not
explain that one of the group’s motives for trespassing was to obtain publicity
for its political philosophy. Even assuming the “communist” characterizations

188 There do not appear to have been any investigative activities directed at the Catholic
Worker as a result of the group being named as a subject. The investigative techniques were
focused on the powered parachute plan and directed at other individuals or groups, including
Greenpeace.

189 While our review did not focus on the other groups or individuals that were
additional subjects of the preliminary inquiry and full investigation, we found no evidence to
indicate that the FBI lacked a predicate as to these groups and individuals or targeted them
solely on the basis of their exercise of protected First Amendment activities.

167


hosted trade event since the 1999 WTO Seattle Conference and could become a
terrorism target in an attempt to embarrass the United States.88

In a July 26, 2003, EC, the FBI's Special Events Management Unit,
designated the FTAA Miami meeting a SERL III event. The MIOG, Part 1, §
300-1(4), describes SERL III events as those for which FBI Headquarters would
support only limited augmentation of field division resources tailored to the
actual event. The July 2003 EC stated that “although no specific threat
information had been received at this time the attractiveness of the event
makes it a potential target for terrorists or those individuals wanting media
attention for their cause.”89

The United States Trade Representative was selected to lead the United
States delegation. In addition it was expected that the United States Secretary
of Commerce would attend. The FBI’s operation order stated that President
George W. Bush might make an appearance at the FTAA Miami Meeting.

b. Domestic Terrorism Full Investigation Opened

In addition to opening the special events case, the FBI Miami Field
Division opened a full investigation on unknown subjects and the anti-FTAA
anarchist movement in South Florida under the classification for an act of
terrorism by domestic terrorists. The July 21, 2003, opening EC stated that
the FTAA Miami meeting was expected to attract local anarchists and
“members of well established domestic terrorist groups such as ALF/ELF will
also participate in the more violent demonstrations.” The EC reported that
local undercover officers had made significant inroads into infiltrating local
anarchist groups “whose agendas include violence aimed at the FTAA meeting

88 The special events file contained many references to the 1999 WTO Seattle protests.
For a detailed factual recitation of the protests and the legal claims which followed, see Menotti
v. City of Seattle, 409 F. 3d 1113 (9th Cir. 2005).

89 The day before the start of the FTAA Meeting in Miami in November 2003, the FBI
issued an “Intelligence Bulletin” to law enforcement agencies stating that many protesters
expected to attend the FTAA were “openly planning to disrupt the conference through violence
rather than merely conducting organized demonstrations.” The Bulletin requested law
enforcement agencies to forward any information they obtain “regarding possible terrorist
threats or threats of violent or destructive civil disturbance directed against the FTAA.” In
response to a complaint, the Department of Justice Office of Legal Counsel (OLC) reviewed the
constitutionality of the Intelligence Bulletin and a similar one the FBI had issued the previous
month for another large scale demonstration. OLC stated that the bulletins limited reports to
potentially illegal acts or threats of violence, and they “were limited to criminal activity that
falls outside the First Amendment . . . .”. OLC concluded that, “[gliven the limited nature of
such public monitoring, any possible ‘chilling effect’ caused by the bulletins would be quite
minimal and substantially outweighed by the public interest in maintaining safety and order
during large-scale demonstrations." Memorandum for Glenn A. Fine, Inspector General, from
Jack L. Goldsmith, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of
Certain FBI Intelligence Bulletins (Apr. 5, 2004).

72


Berry also told us that although he could not recall the faces of the
subjects in the binder for whom he was supposed to be looking, he decided he
would take a couple of photographs of a woman who was in attendance. He
said he did so because he believed he needed to show his supervisor that he
was “earning his pay” and was doing what he was told. Berry said he did not
know whether the woman he photographed was a terrorism subject. He said
some of the terrorism subjects in Pittsburgh for whom he was supposed to be
looking were female, but at the time he took the photographs he did not
remember what the female subjects looked like. He told us that he had a
conversation at the rally with a female leaflet distributor he perceived to be of
Middle Eastern descent. Berry told us that the woman was probably the
person he photographed, although he qualified this by saying that he did not
remember her.

Berry said he was at the event for a short time, not longer than 30
minutes and “probably a total of 10 minutes,” because it was a “nonstarter”
given that he could not “even remember what [the subjects] look[ed] like.” He
said that had he been able to identify individual subjects the assignment may
have developed into something worthwhile. But he said that he was not
prepared and did not have the knowledge he needed to have to do the job his
supervisor asked him to do. Berry said this was the first surveillance activity
he conducted in a terrorism matter. He said that this was the only time that
he conducted surveillance activities at an anti-war protest.

Berry said he had a vague recollection of showing the photographs he
took of the woman to others in the JTTF, but no one could identify her. He
said that at that point he discarded the photographs.

2. The November 2002 EC

Berry told us he drafted the EC, including its synopsis line, when he
returned to the office on November 29, 2002, the day he conducted the
surveillance. According to Berry, after his return to the office he conducted
Internet research, including visiting the Merton Center’s website, to obtain
some of the information that he provided in the EC.

Crosetti approved the EC and it was placed in the Pittsburgh Field
Division's “zero” file, for the “199” classification, which is used for investigative
matters related to international terrorism.*® Berry said he had no recollection
of discussing the EC with Crosetti or any others in 2002. He told us he would

49 A zero file is a type of file used by the FBI to retain information relating to a
classification that does not require investigation at the time it is collected. See MAOP, Part 2,
s. 2-4.1.2. The 199 classification was, at the time of the EC, used for the National Foreign
Intelligence Program (NFIP) -International Terrorism matters.

33


determine the origins and author of the LHM, which was found on the hard
drive of an FBI Pittsburgh Field Division stenographer’s computer. The LHM
was an inaccurate document that was not approved or disseminated outside
the FBI Pittsburgh Field Division. Yet, contrary to the impression given by the
document, we did not find any evidence that the FBI's Pittsburgh Field Division
had in fact opened an investigation of the Merton Center.

3. Surveillance Relating to the 2003 Miami Free Trade Area
of the Americas (FTAA) Meeting

In 2008, the FBI's Miami Field Division opened a special events case in
preparation for the upcoming Free Trade Area of the Americas (FTAA) meeting
in Miami. The FBI was concerned that the event could attract violent protests
similar to the 1999 World Trade Organization protests in Seattle. The Miami
Field Division also opened a full investigation on unknown subjects planning to
disrupt the event.

The FBI Miami Field Division requested that the FBI Pittsburgh Field
Division collect intelligence related to efforts by the Merton Center and another
advocacy group, the Pittsburgh Organizing Group (POG) to recruit protesters
for the FTAA meeting. The POG is a self-described anarchist group that the
Merton Center has publicly identified as an “affiliate.” We found no evidence
that the Pittsburgh Field Division collected the requested intelligence.
However, three JTTF agents from Miami traveled to Pittsburgh to monitor a
conference sponsored by the Merton Center and POG and to conduct related
surveillance.

We concluded that the FBI's special events case and the full investigation
relating to the FTAA did not violate the Attorney General's Guidelines and FBI
policies. Although FBI documents did not make explicit what federal criminal
statute the FBI relied on in opening the full investigation, the FBI had
information supporting a “reasonable indication” that the unnamed subjects,
possibly including protesters being recruited at the Pittsburgh conference,
would violate the civil disorders statute, 18 U.S.C. § 231. For similar reasons
we found that the Attorney General's Guidelines and FBI policies allowed the
FBI to monitor the Pittsburgh conference and to conduct related investigative
activities.

4. Investigation of POG Members and Surveillance of First
Amendment Activities

In another matter, in 2004 and 2005 the FBI Pittsburgh Field Division
conducted investigative activities relating to individuals associated with the
POG. Several of these individuals were also allegedly associated with the
Merton Center or attended meetings at the Merton Center. The FBI opened two
preliminary inquiries on three POG members in connection with upcoming

178


Dallas investigation discussed in the routing slip, and the “information” that
the FBI supposedly recess 2
a The “link between” the investigation and the Merton Center
appears to be a reference to the fact that, as mentioned in the 2002 EC, Farooq
Hussaini was identified as the contact person for an event sponsored by the
Merton Center. As noted above, none of this information was known to the
Pittsburgh Field Division before the rally, and it was not the reason for Berry's
attendance at the rally. In fact, neither Berry nor Crosetti was aware of the
Dallas investigation at the time, and Berry did not learn of Hussaini's
connection to the Merton Center until after he returned to the office.

We found several local and national newspaper articles published in the
days after the release of the press response that quoted directly from the press
response or the Pittsburgh Field Division’s Media Coordinator, and, in one
instance, from the Public Affairs Specialist.64

The contents of the press response were also included in an internal FBI
newsletter, “The Horizon,” which is used by the Assistant Director of the Office
of Public Affairs to brief the FBI Director about media matters.

In sum, it appears that in response to the FOJA request for documents,
Pittsburgh Field Division attorney Kempler discussed the matter with the FBI's
National Press Office, which in turn drafted and released the press response.
However, that response was not an accurate depiction of the reasons for the
FBI's attendance at the Merton Center anti-war rally. The press response was
subsequently quoted in news accounts and, as detailed below, was likely used
to brief the Director for his congressional testimony.

6. Director Mueller Testifies About Merton Center
Surveillance (May 2006)

On May 2, 2006, Director Mueller testified before the Senate Judiciary
Committee in an FBI oversight hearing. At the hearing, Senator Leahy
questioned Director Mueller about FBI documents released under FOIA that
Senator Leahy stated suggested that the FBI was using its enhanced
counterterrorism capabilities “to conduct domestic surveillance on law-abiding
American citizens simply because they oppose the Government’s war policy in

63 As detailed below, subsequent FBI documents later claimed that another individual,
Person B, was the target of the surveillance and that the Pittsburgh Field Division investigation
of Person B was the “on-going investigation.” We found no evidence that this version of events
had been articulated by anyone at the time the press response was created.

64 See, e.g., Paula Reed Ward, “Peace Group Claims FBI Spied on Activities; Feds Say
their Interest was in an Individual, Not Merton Center,” Pittsburgh Post-Gazette, Mar. 15, 2006,
at Bl; Nicholas Riccardi, “FBI Keeps Watch on Activists,” Los Angeles Times, Mar. 27, 2006, at
1.

45


activist on the day and immediately after the activist disappeared and became
a fugitive. 152

FBI Headquarters did not immediately act on the fourth extension

request, and on January 4, 2005, the case agent reported to Headquarters two
developments that might affect the extension decisio t,
Second,

the FBI developed a former PETA employee as a source. Later in January
2005, FBI Headquarters counterterrorism personnel and representatives from
the FBI Office of General Counsel met to discuss how the case should proceed.
They concluded that they could not support a fourth extension and that there
was not sufficient evidence of PETA’s involvement in any federal criminal
violations to warrant converting the case to a full terrorism enterprise
investigation. As a result, the Norfolk Field Division closed its investigation.

2. OIG Analysis

We concluded that the FBI did not violate the Attorney General's
Guidelines when it opened a preliminary inquiry on PETA in August 2003 to
determine whether grounds existed to initiate a broader, terrorism enterprise
investigation of the organization. Under the 2002 Guidelines, a terrorism
enterprise investigation could be initiated when facts or circumstances
“reasonably indicated” that two or more persons were engaged in an enterprise
for the purpose of furthering political or social goals wholly or in part through
activities that involved force or violence and violation of federal criminal law.
Thus, a preliminary inquiry could be initiated when information or allegation
indicated the “possibility” of such activity.

In the PETA preliminary inquiry, the second element required that the
activities used to further a political or social goal involve force or violence. The
opening memorandum for the PETA preliminary inquiry stated PETA was
suspected of funding and directing individuals affiliated with ALF/ELF and
other extremist animal rights groups and individuals, entities that have
engaged in unlawful acts resulting in millions of dollars in property damage. !33
While the memorandum did not provide specific examples of these activities,
ALF-attributed “direct actions” involved the destruction of property of animal
enterprises. In addition, other groups and their members identified in the

132 As described earlier, the Physician's Committee for Responsible Medicine is the
nonprofit organization | Jerry Robinson. The fugitive animal rights activist, Daniel
Andreas San Diego, was wanted at the time for his alleged involvement in the bombings of two
corporate offices in California with ties to Huntingdon Life Sciences. San Diego was indicted on
federal charges in July 2004 and currently is on the FBI's list of Most Wanted Terrorists.

133 According to the opening memorandum, ALF and ELF in 1993 claimed solidarity in
action, and since 1987 individuals affiliated with the groups were responsible for unlawful acts
that resulted in more than $50 million in damages.

114


remember distinctly looking at the [subject] book and trying to
internalize all these different pictures and being overwhelmed.

Moreover, as noted above, Berry told us he took two pictures of a woman
at the event. Person B was a male. We would not have expected that Berry
would take pictures of the woman if he had been instructed to identify and
conduct surveillance on a particular male subject.

Further, Berry did not report his activities at the anti-war rally in the
Person B case file, as one would expect if he was asked to conduct surveillance
on Person B. As a former CTD manager told us, one would expect the results
of the surveillance activity, even if those results are negative, to appear in the
file of the ongoing investigation relating to the target of the surveillance, and
not in a zero file.

Daniel Sampson, the primary agent assigned to the Person B case, also
told us he did not direct Berry to attend the Merton Center rally, did not know
who did, and had no knowledge of why Berry attended the event.73 Sampson
said he first became aware of the November 2002 EC during his OIG interview
when we asked him to review it. He said that if Berry had been directed to
identify a particular subject at the event or was sent to conduct surveillance
related to a pending investigation he would have expected that the results
would be reported in the case file.

In addition, Alfred Rogers, the co-case agent assigned to the Person B
case, told us he did not direct Berry to attend the Merton Center rally, did not
know who did, and had no knowledge of why Berry attended the event.7*
Rogers said he first became aware of the November 2002 EC when he was
contacted by the OIG for an interview. Rogers also told us that he served as
Berry's training agent and if Berry had been directed to identify Person B at the
event, Rogers would have expected Berry to report the results of the
surveillance activities in the Person B file.

We were also unable to find any documents to support the key facts of
the CTD response. We reviewed the entire Person B case file looking for
precisely the document Senator Leahy requested — any investigative
memorandum that predated the anti-war rally that would document the basis
for the FBI believing that Person B or any other person of interest in an
International Terrorism matter would be present during Merton Center
leafleting activities. We found no such document.

73 Daniel Sampson is a pseudonym.

74 Alfred Rogers is a pseudonym.

50


INTERNATIONAL TERRORISM
MATTERS

12:00 P.M. East End Community Stand for Peace, corner
of Penn and Highland (East Liberty)

12:00 P.M. Regent Square Community Vigil for Peace in
Iraq. Waverly Church corner of Forbes and

Braddock (Regent Square)

The above information is for your use and any action
deemed appropriate.



. The FBI determined that 1 of the
had likely been in contact with Harris and with the
subjects of other domestic terrorism cases. This individual was added as the
fourth subject of the FBI Dallas Field Division investigation.

Beginning in May 2004 (and ending in April 2006), on at least seven
separate occasions the case agent conducted surveillance of the residence at
the address given by Harris and Johnson when arrested, taking note of all
vehicles parked near it. Later the tag numbers on these vehicles were
submitted to the state’s department of motor vehicles in order to obtain vehicle
registration information, which was kept in the FBI file.

150

The FBI conducted database and Internet research on the subjects and
some of their associates. Information from this research was placed in the FBI
case file, including summaries of the subjects’ involvement with activist
organizations, information from a database, photographs obtained through a
state driver license image retrieval system, and other personal information.

On January 4, 2005, the case agent received information from corporate
security at Kimberly-Clark Corporation that the company had been targeted by
Greenpeace for its use of pulp from non-recycled wood in many of its paper
products.!5! A neighbor of Kimberly-Clark’s CEO reported seeing a green van,
occupied by two males taking pictures of the CEO’s residence, but was unable

to obtain the license plate number. Kimberly-Clark’s officials were aware of
RENNIN cd wanted to open a dialog with

Greenpeace to prevent similar actions from occurring against Kimberly-Clark.

150 According to FBI files,

151 Kimberly-Clark's corporate security informed the FBI that Greenpeace members had
been sending voluminous e-mails (e-mail attacks) aimed at overloading the corporate server.

135


Iraq.”65 Senator Leahy asked in particular about the surveillance of the Merton
Center anti-war rally discussed in the November 2002 EC. After quoting from
the November 2002 EC, Senator Leahy asked: “What possible business does
the FBI have spying on law-abiding American citizens simply because they may
oppose the war in Iraq?”66 Director Mueller responded:

On that particular case, sir, it was an outgrowth on an
investigation. We were attempting to identify an individual. The
agents were not concerned about the political dissent. They were
attempting to identify an individual who happened to be, we
believed, in attendance at that rally.67

Senator Leahy pressed the FBI Director by quoting twice from the
synopsis line of the November 2002 EC (‘To report results of investigation of
Pittsburgh anti-war activity”). Director Mueller responded by stating that he
had given “the background of that report” and he would be “happy to have the
IG followup on that.”68

During our investigation, the FBI provided us with the written materials
Director Mueller used in advance of his May 2006 testimony to the Senate
Judiciary Committee relating to the allegations that the FBI was “spying” on
domestic advocacy groups. Among these materials, we found only one
document that referenced the Merton Center surveillance. This document,
titled “ACLU Allegations of Spying,” and dated March 22, 2006, was prepared
by the FBI’s Director’s Research Group.®? The FBI's Office of Congressional
Affairs used the document in the Director’s “briefing book” for the May 2006
Senate hearing. The document contained the following one-paragraph
reference to the Merton Center surveillance:

65 FBI Oversight: Hearing Before the S. Comm. on Jud., 109th Cong. 13 (2006). The
FBI's Office of Congressional Affairs prepared a “note” to the Director in advance of the May
2006 hearing reporting on the anticipated questions from Senators. The note stated that
Senator Leahy would want “assurances that the FBI is not spying on anti-war groups because
of their beliefs.”

66 Id. at 15.
87 Id.

68 Id. Senator Leahy also referred to allegations of FBI surveillance of other groups and
individuals, including the Quakers and Glen Milner, which we discuss later in this report.
Director Mueller stated that to his knowledge the FBI has not surveilled the Quakers. As
discussed in Chapter Eight, we found no evidence that the FBI surveilled the Quakers during
the time period of our review.

69 The functions of the Director's Research Group include preparing briefing materials
for the FBI Director, including materials used to prepare the director for congressional
testimony.

46


location in Miami. The information reported in these ECs was collected during
the FTAA meeting and retained in the FBI Miami Field Division's files in both
the special event file and the act of terrorism full investigation file which had
been opened in relation to the FTAA meeting.

The FTAA meeting took place as scheduled in November 2003, resulting
in numerous local arrests for a variety of offenses including unlawful assembly,
disorderly conduct, carrying a concealed weapon, battery on a police officer,
and, in one instance, inciting a riot. No federal prosecutions resulted.

2. OIG Analysis
a. Predication

We concluded that there was sufficient predication for the FBI to open a
special events case relating to the Miami FTAA meetings. Given the events
connected to the 1999 WTO meetings in Seattle, the fact that high-level officials
(including possibly the President) would be in attendance at the Miami FTAA
meeting, and the threat information received by the FBI, the FBI believed that
the Miami FTAA meetings represented an attractive target for a terrorist attack.

We also examined the predication for the domestic terrorism
investigation initiated in Miami because the FBI conducted surveillance
activities of a Merton Center sponsored conference in Pittsburgh in connection
with the Miami investigation. The 2002 Attorney General's Guidelines in effect
at the time provided that the FBI may open a full investigation “where the facts
or circumstances reasonably indicate that a federal crime has been, is being, or
will be committed.” We were hindered in our analysis of the predication for the
Miami domestic terrorism investigation because the FBI Miami Field Division
failed to specify in the opening EC the facts and circumstance meeting the
standard of reasonable indication for a federal crime. Although we believe that
there was evidence that provided a reasonable indication that protesters would
commit direct actions that might include violations of state or local laws
regarding trespassing, vandalism, resisting arrest, or obstructing police, it was
not clear what federal criminal statute the FBI relied on in opening this
investigation.

We found a document in the Miami case file indicating that the Miami
FBI Chief Division Counsel had concurred with the surveillance of a similar
conference in a different city on the basis that the activity would violate 18
U.S.C. § 231, relating to civil disorders. Among other things, this statute
prohibits “commit[ting] or attempt[ing] to commit any act to obstruct, impede,
or interfere with any fireman or law enforcement officer lawfully engaged in the
lawful performance of his official duties incident to and during the commission
of a civil disorder which in any way or degree obstructs, delays, or adversely
affects commerce or the movement of any article or commodity in commerce or

75


The source report did not contain any information about potential
criminal activity. The case agent told us: “The only reason that document is
really written is so I can get credit for source participation.” He stated that he
did not want to file a “negative report,” so he simply described what the source

told him.

At the request of the case agent, the source attended several other POG-
related functions in late 2004 and early 2005

. The source sent ails
regarding each one to the case agent, which the case agent converted into
source reports.

For example, one report indicated that on |, 2004, the source
observed POG members

Another source report dated a. 2005, (after the case agent had
i iry), reported

A source report dated

port also dated , 2005, described a

100 The POG website included information about a device made with PVC pipe known
as the “sleeping dragon,” used for locking two protesters together.

85


searched the database again, this time using the case number for the Person B
investigation.59

During our interview of Fritsch, which took place before we had received
the database search logs, he denied having spoken to Crosetti in connection
with the preparation of the routing slip, and he denied having conducted any
database searches himself in order to find information for the routing slip. He
stated that if he had relied on a database search or on information from
Crosetti in drafting the routing slip, he would have said so in the routing slip.

We also determined that the search logs contradicted Crosetti’s
statement to the OIG that she had never seen the Dallas EC before. When we
discussed the search logs with Crosetti, she told us they did not refresh her
recollection about having any conversations with Kempler or Fritsch about
Farooq Hussaini being the target at the anti-war rally or of having reviewed and
considered the relevance of the Dallas EC. Crosetti said she believed she was
prompted to conduct this database search activity by an inquiry from someone,
most likely Kempler, but she said she did not recall the search activity or who
prompted it.

Kempler told us he recalled having spoken to Crosetti in connection with
the routing slip. Kempler said Crosetti provided a “stack of documents” that
she had printed from a database search but that the documents did not
provide any useful context for explaining the November 2002 EC. Kempler said
he believes he told Crosetti that the documents were not helpful.

We concluded that the version of events contained in the routing slip
about why the FBI had attended the anti-war rally — allegedly to determine if
Farooq Hussaini was there - was an after-the-fact reconstruction that was not
corroborated by any witnesses or contemporaneous documents. This version
conflicted with statements from Berry, who attended the rally, and Crosetti, his
supervisor, about why Berry went to the event. The timing, pattern, and
similarity of the database searches in 2006 indicate that Crosetti and Fritsch
coordinated research for the routing slip or otherwise communicated about

Farooq Hussaini in the days leading up to the routing slip. Those database
searches uncovers

in the Dallas EC and therefore were likely the source of the

59 The only other Pittsburgh employee who searched the databases during this time
period using search terms based on Farooq Hussaini'’s name was a different Pittsburgh Special
Agent who conducted such a search on February 7, 2006, the day before the routing slip was
sent to the Records Management Division. This agent was also supervised by Crosetti. The
agent told us he did not recall why he searched for information related to Hussaini. He told us
he had no knowledge of the routing slip or its creation. Crosetti told us she did not ask this
agent to conduct the database searches related to Hussaini.

40


Il. Specific FBI Activities Relating to Greenpeace

Our review of FBI files identified several investigations in which
individuals associated with Greenpeace were identified as subjects and the
predication for those investigations was unclear. In the next sections, we
analyze the predication for the investigations, as well as related issues. !42

A. FBI Anchorage Division Investigations of Individuals
Associated with Greenpeace - 1999 - 2002

The FBI’s Anchorage Field Division opened a series of related
investigations of individuals associated with Greenpeace during 1999 - 2002.
The FBI initially focused on plans by several members of Greenpeace to disrupt
British Petroleum/Amoco (BP) energy development projects in Alaska. Later
the scope of the investigation expanded to include alleged plans by Greenpeace
members and others to protest or disrupt Strategic Missile Defense Initiative
activities in Alaska and at another location outside the United States. We
examined whether the investigations were adequately predicated and whether
the collection and retention of information about the planned protest activities
were consistent with FBI policies.

1. Facts

In an Electronic Communication (EC) dated December 28, 1999,
(‘opening EC”) the FBI’s Anchorage Field Division opened a preliminary inquiry
to determine whether two named subjects and unknown others were involved
in a conspiracy to commit “terrorist related criminal activity” in connection
with the Northstar offshore oil development project in the Arctic operated by
British Petroleum/Amoco (“BP”). The FBI opened the preliminary inquiry under
the investigative classification for Acts of Terrorism by domestic terrorists.

The opening EC and another FBI document cited information received by
the FBI that the subjects and unknown others were preparing to disrupt or
halt the construction of BP’s Northstar Project, an offshore energy development
project in Alaska. During the course of the preliminary inquiry, the FBI added
additional subjects who were members of an “environmental pressure group”
(later identified as Greenpeace) that was planning to interrupt or delay
construction of Northstar, although Greenpeace itself was never made a subject
of the investigation. According to the FBI's information, the group’s plan was
to interfere with BP’s construction of two 6-inch sub-sea pipelines from Seal
Island to the Mainland where it would connect to the Alaska Pipeline, by,
among other things, cutting trenches across BP’s “ice road” used to transport

142 We identified one matter in which the FBI investigated the protest activities of both
Greenpeace and The Catholic Worker, as well as other groups. We address that investigation
separately in Chapter Seven.

126


militant grassroots animal rights organizations,” some of whose members are
“key ALF/ELF members and/or are subjects of ongoing FBI investigations.”
The memorandum briefly identified some of these members and their links to
PETA. 128

The memorandum also asserted that “PETA’s officers and employees
have a history of criminal activities relating to animal rights activities/
extremism, which suggests PETA’s involvement in directing and controlling
animal rights campaigns through harassment, threats of violence, vandalism,
and extortion[.]” The memorandum identified several incidents that
purportedly illustrated this involvement:

e In February 1999, a source of unknown reliability advised that
Collins was training people to carry out terrorist attacks.

e In April 2001, a source of known reliability advised that Collins
and that
Collins travels to where

attendees are instructed on protest techniques, including arson
and bombings, that cause maximum economic damage to
business.

e In January 1999, three PETA activists were arrested in connection
with a protest of a government pork purchase program at which
hay bales were burned on the steps of the U.S. Capitol Building.

e In February 2000, two PETA activists assaulted the CEO of Proctor
& Gamble with a tofu pie and pled guilty to state charges.

¢ In May 2000, a PETA activist assaulted the Secretary of Agriculture
with a pie at the National Nutrition Summit.

¢ In November 2002, several PETA activists were arrested for
disorderly conduct in connection with threatening and harassing a
Victoria’s Secret model for modeling fur.

According to the memorandum, PETA’s possible violations of federal law
included 18 U.S.C. § 43, Animal Enterprise Terrorism; 18 U.S.C. § 1951, the
Hobbs Act; and 18 U.S.C. § 2339A, Providing Material Support to Terrorists.

On September 25, 2003, following discussions with the Norfolk Field
Division personnel, FBI Headquarters requested that a new opening

128 Based on our review of the investigative file, we believe the first two items the EC
cited as indications of PETA’s support of ALF/ELF are related and do not represent
independent examples. PETA's May 2002 public acknowledgement that it provided funds to
ELF was in specific reference to the disclosure of the $1,500 check.

110


duration of the case. Moreover, the FBI's decision to place the case on
“pending inactive” status in October 2003 had the effect of unnecessarily
extending the matter nearly 2 years.

D. Randy Carter
1. Facts

The Norfolk Field Division initiated a preliminary investigation of Randy
Carter on August 5, 2002.!36 According to the opening EC, the Norfolk Field
Division received information from the FBI's field office in Portland, Maine that
Carter had moved to Norfolk from . The EC
indicated that Carter had been arrested on several occasions for activities
related to animal rights. The first arrest occurred in when Carter was
arrested by the

. According to the EC, Carter participated
in a protest in which activists

A second arrest occurred in
when, according to the EC, Carter attempted to
. Carter also was arrested in for vandalism associated
with protest activities, and again in for trespassing
and refusing to disperse in connection with protest activities. The EC did not
provide the disposition of any of the arrests.

The EC indicated that i, carter listed his place of

employment as PETA, and that based on the information provided by the
jurisdictions where he was arrested, Carter “has been identified as being
employed by PETA with a history of violence and arrests during animal rights
activities.” The Norfolk Field Division initiated a preliminary investigation to
assess whether Carter was involved in any criminal activity.

The Norfolk Field Division's investigation obtained Carter's

. According to investigative records, the FBI determined that Carter was
employed by PETA as an “activist liaison,” that he was a well known animal
rights activists “intimately involved” in the activities of Stop Huntington Animal

136 Randy Carter is a pseudonym.

119


Turmer traveled extensively as part of his employment with PETA and did not
have a new permanent residence, there was no specific FBI field office to notify.
The case file does not contain any indication that Turner was entered into or
removed from VGTOF.!#!

2. OIG Analysis

We concluded that the FBI preliminary inquiry on Turner did not violate

the Attorney General’s Guidelines. Turner was identified by a source as a
“hardcore” animal rights activist <4 rr
in a manner referring to the Animal Liberation Front. Additional information
indicated that Turner had traveled to two states to participate in protests, one
that resulted in his arrest and another that possibly could have resulted in

property damage to an animal enterprise.

We also concluded that there was a factual basis for the Norfolk Field
Division to authorize a 90-day extension for the preliminary inquiry. When the
investigation did not obtain any further evidence of criminal activity, the FBI
closed the investigation.

141 At the time the Turner case was opened, FBI field offices were not required to enter
subjects of domestic terrorism preliminary inquiries into VGTOF.

124


b. OIG Analysis

We concluded that under the Attorney General’s Guidelines the FBI had
sufficient predication to open a full investigation on the four alleged members
of the Ithaca Catholic Worker for a general crimes investigation, including for
the crime of trespassing onto government lands or military installations. The
2002 Attorney General's Guidelines, which were in effect at the time of the
investigation, stated that a general crimes investigation may be opened “when
facts or circumstances reasonably indicate that a federal crime has been, is
being, or will be committed.” The predication for the investigation was the
allegation of a crime itself and not the First Amendment activities of the
protesters.

We also concluded that the Albany Field Division’s action in sending a
lead to the New Haven Field Division to alert it to a planned Hartford Catholic
Worker protest at a shipyard did not violate any guidelines or FBI policies. We
based this conclusion on several factors, including: (1) the Ithaca Catholic
Worker members were alleged to have committed a federal offense at an Albany
military recruiting station; (2) an affiliated group had a long history of criminal
acts directed at military weapons systems; and (3) the website that published
the declaration read at the Albany military recruiting station also publicized
the Hartford protest. 162

We also considered whether this investigation was properly classified as
a domestic terrorism matter. The FBI policy in effect at the time stated that
acts of domestic terrorism matters “shall include any investigation of a criminal
act which involves an individual(s) who seeks to further political and/or social
goals wholly or in part through activities that involve the use of force or
violence and violate federal law.”!63 The FBI made a determination that the
acts of spilling human blood on the walls, an American flag, and pictures were
forceful acts — going beyond simple trespass - resulting in damage to
government property. !64 We concluded that it was not improper for the FBI to
classify this matter under the Act of Terrorism classification.

162 The file index for this investigation does not list a document indicating what, if any,
actions were ultimately taken by the New Haven Field Division, Groton, Connecticut local law
enforcement, or shipyard security personnel as a result of this lead. The opening EC is the
only document provided to us during our review that referenced the anticipated Hartford
Catholic Worker protest of the USS Jimmy Carter on June 5, 2004.

163 MIOG, Part 1, § 266-1(1).

164 Willful injury or depredation to United States property is an offense listed in the
definition of the federal crime of terrorism for which the 2002 guidelines authorized the FBI to
open a terrorism enterprise investigation.

148


We did not find any specific rationale described in the July 2003 ECs or
in the FBI file for the conclusion that this event was in fact an attractive target
for attack. The ECs did not characterize the 16 participating groups beyond
the brief description quoted above, and the ECs did not suggest that the groups
were suspected terrorist organizations or posed any threat. However, in light of
the high profile subject of the conference, the large number of senior
government officials who were participating, and the sensitivity of the location,
we did not conclude that the FBI abused its discretion in designating the
conference as a special event.

We also considered whether the FBI was authorized to attend and
monitor the public rally held in Omaha on August 2 at which Catholic Worker
activists may have been present.!69 At the time, Part VI.A.2 of the Attorney
General's Guidelines provided that “[f]or the purpose of detecting or preventing
terrorist activities, the FBI is authorized to visit any place and attend any event
that is open to the public, on the same terms and conditions as members of the
public generally.” As noted above, by designating the Stockpile Stewardship
Conference as a “special event,” the FBI had determined that it posed a
potential target for terrorist activity. Accordingly, the FBI was authorized to
attend the rally under Part VI.A.2.!79 Part VI did not require any objective
evidence of a threat in order to attend this public event.

We also considered whether the FBI complied with applicable policies
regarding the retention of information about First Amendment activity. We
concluded that the FBI should not have retained the information contained in
the August 11 EC that described the public rally’s organizing group, its
purpose, and number of attendees. Part VI.A.2 of the 2002 Attorney General's
Guidelines stated: “No information obtained from such visits shall be retained
unless it relates to potential criminal or terrorist activity.” As noted in Chapter
Two, the FBI also issued Field Guidance dated October 7, 2002, explaining that
if a visit to a public event does not develop information relating to potential
criminal or terrorist activity, the only information that should be recorded is
the “date, time and place visited, and that the visit had negative results.” The
August 11 EC stated that no “illegal activity was observed” at the August 2
rally in Omaha and contained no observations relating to potential future

169 We believe that Catholic Worker activists were likely present at the August 2 Omaha
event, given the participation of two Catholic Worker organizations in endorsing the counter-
conference. However, the FBI report relating to this rally did not identify particular
participants other than the umbrella group that organized the events.

170 In addition, the Omaha Field Division's action in obtaining website information
about the group organizing the counter-conference was authorized under Part VI.B.2 of the
2002 Attorney General's Guidelines. That provision stated: “[flor the purpose of detecting or
preventing terrorism or other criminal activities, the FBI is authorized to conduct online search
activity and to access online sites and forums on the same terms and conditions as members of
the public generally.”

152


A. The Privacy Act Of 1974 .......ccccceccccceceeeeeeeeeeeeeeeeseeeeeeeeerereeees 19
B. Attorney General’s Guidelines ..............:cccceessseeeeeestteeeeeeeeeneee 20
Cc. bo 5) 0 2x0) 0 Ce An 21
1. Collection of Information Concerning First
Amendment Exercise ...........:::::eeeeeeeeeeeeeessseeessssssaaeeeeee 21
2. Collection of Publicly Available Information .................. 22
3. Characterization of Groups or Individuals in
FBI Records. ........ccccccccccceeeeeeeeeeeeeeeeeeeeeeeeeeeeecneeeeeeeeeneenes 23
VI. FBI Terrorism Classifications ...............::cceseeeeeseeessesesesessseeeaaeeneeeeneee 23
A. Terrorism Enterprise Investigations .............: cee eeeteeees
B. Act of Terrorism —- Domestic Terrorist
Cc. Placement of Individuals on Terrorist Watchlists...
CHAPTER THREE: THE THOMAS MERTON CENTER........::0:ccccsseeeeseeeesees 29
I. Background..
Il. The Anti-War Rally in Pittsburgh...............::::eeeeeeeeseeeeeeeeeteeeeeaeeeenees 30
A. Factual Chronology...........ccccccccecsscceceeeesseeeceseesseeeeeeeessseeeeeegs 31
1. FBI Surveillance of the Anti-War Rally ..
2. The November 2002 EC
3. Pittsburgh Division Legal Staff Drafts Routing Slip
Regarding FOIA Response (February 2006)...
4. Source of the Routing Slip Information
5. FBI Headquarters Issues Press Response
(March 2006)......ccccccccsceesseeesseesesseeesseeseseeeesseeseseereraeens 43
6. Director Mueller Testifies About Merton Center
Surveillance (May 2006) ............:.::ccceesssseeeeseesseeeeeeeeeeee 45
7. FBI Responds to Follow-Up Question From
Senator Leahy (May and June 2006)
8. The Counterterrorism Division Response
B. OIG Amallysis.........ccccccccccccececceccceeeceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeenes
1. Issues Raised by the FBI's Attendance at the Anti-War
Rally .....
2. Issues Raised by the s Statements to
ll. Other FBI Activities Related to the Merton Center..............:00::ceeee 67
A. — The 2003 Pittsburgh Field Division Letterhead

Memorandum.

1. Facts

ii


THIS PAGE LEFT INTENTIONALLY BLANK

142


be searched, inspected, or questioned. However, according toa

he was questioned and delayed at airports by
customs officers on 12 occasions from January 2003 to September 2005
during international travel.!22

In at least one instance, Collins and Robinson traveling together were
subjected to a thorough secondary inspection as a result of the alert. On
— 2003, an inspector with the Bureau of Immigration and Customs

Enforcement (ICE) assigned to Airport contacted the FBI’s
field office in , to alert the FBI that Collins and Robinson were

arriving on a flight and to request guidance about what, if any, inspection the
FBI wanted ICE to perform. The FBI agent who received the call was unable to
speak with the Norfolk Field Division case agent and therefore requested that
ICE conduct a thorough secondary inspection that included copying Collins's
and Robinson's personal documents and interviewing each for information
about their overseas travel. According to ICE, the secondary inspection took
approximately 30 minutes and the results were forwarded to the FBI.

On August 22, 2005, the Norfolk Field Division submitted paperwork to
FBI Headquarters to modify Collins’s and Robinson's VGTOF status. The
Norfolk Field Division requested that Collins and Robinson be removed from
the database that was causing them to be subjected to additional customs
inspection during international flights. This modification did not remove
Collins and Robinson from VGTOF. That step, according to the case file, was
taken upon closure of the case, on December 19, 2006, with respect to
Robinson, and on April 19, 2007, with respect to Collins.!23 However, the
modification did not end the travel alerts the FBI received relating the Collins's
and Robinson’s international travel because each apparently remained in at
least two government databases that can cause travelers to be screened ~ the
Terrorist Identities Datamart Environment and the Treasury Enforcement

122 Several years before

123 On June 14, 2007, Norfolk Field Division resubmitted the request that Collins be
removed from VGTOF. It appears this was done to comply with a requirement that VGTOF
forms be submitted in a new electronic format.

103


section), including the agent’s characterization of the Merton Center as a “left-
wing organization,” should not have been recorded in the EC and retained in
FBI records.

As described above, Berry’s EC contained information about the Merton
Center, including some First Amendment material. Berry (who was a
probationary agent at the time) told us that he included this information
because he had not identified any subjects, it was information he collected at
the rally, and because he was trying to fill out his EC so that it would not be
“just three sentences long.” Reviewing the EC during his interview, Berry said
it was “atrocious on many levels,” “a horrible mistake,” and “a terrible EC.” We
agree, and we believe that when the agent returned from what appeared to be a
fruitless endeavor he went too far in seeking to show productive work. Berry
did precisely what the synopsis line states — he reported on results of
investigation of Pittsburgh anti-war activity. But there was no law enforcement
basis for retaining such information. Crosetti also admitted to us that she
should not have approved the EC or permitted it to become an FBI record.

Berry did comply with the prohibition on retention of information in Part
VI when he discarded the photographs he took during the event after
determining that nobody in the Pittsburgh Field Division could identify the
person depicted.

Finally, it is important to note that there are not any applicable policies
or guidelines that would prohibit the retention of the information in the EC or
the photographs if they were collected today pursuant to an “assessment”
under the 2008 Attorney General Guidelines.

2. Issues Raised by the FBI’s Statements to the Public

In response to the controversy sparked by the FOIA release of the
November 2002 EC about the Merton Center anti-war leafleting, the FBI made
several statements to the public and to Congress that were inaccurate and
misleading. The substance of these statements was that the FBI’s purpose in
attending the rally was to identify a particular subject or person of interest in
an international terrorism investigation, on the basis of information that the
FBI had received indicating that the person would be present at the event.

As discussed above, this was not true. The FBI's two different versions of
why it had sent an agent to the Merton Center rally were the basis of
inaccurate statements the FBI provided to Congress and to the public. These
versions were inconsistent, were contradicted by Berry’s statements, and were
also contradicted by contemporaneous documents. In the first version, which
was contained in a routing slip that was created in response to a FOIA request
in February 2006, the alleged target of the FBI surveillance at the anti-war rally
was Faroog Hussaini, who was supposedly a “person of interest” but not the

63


Two photos of a single female were taken at the Market Street rally,
and were subsequently destroyed after JTTF members were unable
to identify an individual as a subject. The purpose of the
[November 2002 EC] was to indicate that no further investigative
activity was necessary as no Pittsburgh IT subjects were identified
and no nexus to international terrorism was uncovered. The
Merton Center was detailed in the communication to convey that
the rally was a political event and not an activity that required
further investigation.

However, the CTD response did not address the core request by Senator
Leahy for investigative memorandums that predated the anti-war rally which
documented the FBI's reasons for attending. As explained below, we believe
that the response prepared by the CTD was inaccurate and misleading.

a. Person B

At the time of the Merton Center anti-war rally, Person B was the subject
of an international terrorism preliminary investigation in the FBI's Pittsburgh
Field Division. However, we found no evidence - either a witness or a
document written before the rally —- that suggested Person B was a particular
focus of the Pittsburgh Field Division’s surveillance at the anti-war rally.

Neither Berry nor Crosetti substantiated the assertion that Person B was
the reason that Berry attended the event. As discussed above, Crosetti said
she did not have a current memory of the instructions Berry was acting on
when he attended the rally. After we received the CTD response from the FBI,
we interviewed Berry again and asked him specifically if he went to the antiwar
rally to see if Person B was attending. Berry told us he did not recall being
sent to target anyone specifically, “let alone [Person B].” Although Berry added
in his second interview that the possibility exists that those were the
instructions he was given and no longer remembered, he said to the best of his
recollection he was “not sent to target” Person B. He also said that he doubted
he even knew who Person B was in 2002. In addition, Berry told us that he did
not take a picture of Person B with him to the anti-war rally. He said:

Knowing how I operate, even as a probationary agent, if I was going
out on one guy, I would have brought a photo with me. I

49


participating law enforcement agencies identified four groups, including
Ground Zero, that were planning “some sort of demonstration” for the arrival of
the Navy ships in Elliot Bay on July 30. According to the FBI file, an agent
from the Coast Guard Investigative Service contacted Milner under the pretext
of being a Ground Zero sympathizer and began obtaining more information
about the demonstration plans from Milner. The extent of the contacts
between the agent and Milner is not clear from the FBI file.

According to the FBI file, the antiwar groups had informed the Navy and
the Coast Guard that they intended to launch a “peace navy” to meet the fleet
when it entered Elliot Bay. The FBI file indicates that a source provided further
information about the anti-war protest activities planned for Seafair, including
evidence that the protest organizers included individuals who had been
involved in two prior Seattle protests that resulted in arrests: the Law
Enforcement Intelligence Unit protest that occurred in June 2003, and the
1999 World Trade Organization protest. The FBI also received “uncorroborated
information” indicating that the protesters might be planning a sit-in or some
other form of physical demonstration during the public tours on one of the
navy ships, and that the groups might attempt to secure themselves to the
inside of the vessels (by handcuffs or other means), secure themselves to the
outside of the vessels while in transit, or prevent the vessels from departing
their moorings at the end of Seafair.

On July 30, the day of the Fleet Arrival, a federal law enforcement agent
(not from the FBI) conducted a surveillance of the launching of two small boats
flying anti-war flags. According to the FBI file, a total of five protesters’ boats
met the fleet in Elliot Bay and conducted a peaceful protest without breaching
the 500 yard security zone around the military vessels. No incidents were
reported. Milner later stated in a 2006 article on the Ground Zero website that
the “activists’ civil liberties were not violated” during the 2003 protests.!92 The
FBI file does not indicate that any of the acts of civil disobedience attributed to
the “uncorroborated information” actually took place.

Seafair concluded on August 3, 2003. On August 5, 2003, in a closing
EC, the case agent noted that the Seafair events proceeded as planned without
disruption or need for FBI assistance. All told, the FBI case file for the 2003
Seafair special event contained 6 entries and consisted of 10 total pages

Milner’s 2006 article also described events at the 2004 Seafair in which
protesters were allegedly detained by the Coast Guard and Milner was
prosecuted for breaching the 500-yard security zone. According to public
source documents, Milner was detained for protest activities undertaken in

192 “Spying in Seattle,” http: //www.gzcenter.org/articles/spying_in_seattle.htm (June
2006).

170


an animal enterprise by intentionally stealing, damaging, or causing the loss of,
any property (including animals or records) used by the animal enterprise”
shall be punished as provided by the statute. 18 U.S.C. § 43(a). The statue
defined “animal enterprise” as “a commercial or academic enterprise that uses
animals for food or fiber production, agriculture, research, or testing.” 18
U.S.C. § 43(d)(1)(A). The definition also included zoos, aquariums, circuses,
rodeos, and other businesses, events, and competitions. 18 U.S.C. §
43(d)(1)(B), (C).1#5

Approximately 1 month after the Collins investigation was opened, the
Domestic Terrorism Operations Unit at FBI Headquarters in Washington, D.C.,
sent an EC to the Norfolk Field Division recommending that the case be
changed from a full investigation to a preliminary inquiry.!!® According to the
Headquarters EC, dated June 19, 2001, the information in the Norfolk Field
Division’s opening EC indicating that Collins travels to

and that Collins financially supported direct actions carried out by

members of ALF was 2 years old, and the source that provided the information
to the FBI about Col; aaa

. The EC stated that the information contained in the
opening EC did not appear to “warrant” a full investigation and that the case
should be converted to a preliminary inquiry.

However, the case agent responsible for the Collins matter told us that
based upon what he viewed as a long association between PETA and ALF, he
did not believe that the passage of 2 years detracted from the information's
relevance to the predication determination. The Norfolk Field Division therefore
declined to implement FBI Headquarters suggestion to convert the matter from
a full investigation to a preliminary inquiry. !!7

115 The Animal Enterprise Protection Act was amended in 2006 by the Animal
Enterprise Terrorism Act, Pub. L. No. 109-374 (2006). Among other changes, the 2006 Act
broadened the definition of “animal enterprise” and expanded the statute's coverage to address
a tactic referred to as “tertiary targeting” in which animal rights activists target the property of
a person or other entity “having a connection to, relationship with, or transactions with an
animal enterprise.”

116 As discussed in Chapter Two of this report, under the 1989 and 2002 investigative
guidelines the FBI could initiate a full investigation “when facts and circumstances reasonably
indicate that a federal crime has been, is being, or will be committed.” A preliminary inquiry
could be initiated “when there is information or an allegation which indicates the possibility of
criminal activity and whose responsible handling requires some further scrutiny beyond
checking initial leads.”

117 As discussed below, the practical effect of not converting the matter to a preliminary
inquiry was that the investigation did not have to be reauthorized at fixed intervals. The
Attorney General's 1989 Guidelines required that preliminary inquiries be completed within 90
days after initiation, and provided for 30-day extensions with approval from FBI Headquarters.
The 2002 Guidelines required that preliminary inquires be completed within 180 days after
(Cont'd.)

98


does not apply to corporations and other organizations, the FBI also applies
this DIOG provision to such groups.

3. Characterization of Groups or Individuals in FBI Records

The MIOG Introduction, § 1-4(5), addressed characterizations of groups
or individuals and required that characterizations in FBI records reflect
whether the characterization was made by a third party. However, the MIOG
provided that the FBI record may also state whether the characterization
comports with the results of an independent FBI investigation. These same
requirements were also applicable to characterizations of a group or individual
appearing in printed public source material disseminated by the FBI.°6 The
DIOG superseded the MIOG, Introduction, § 1-4(5), and current FBI policy does
not otherwise expressly address these requirements.

The MIOG, Part 1, § 100-3.1.5, and the FBI’s Manual of Administrative
Operations and Procedures (MAOP), Part 2, § 10-17.13.1, also addressed
certain characterizations appearing in certain FBI records about a subject
organization at the time when a domestic security/terrorism investigation was
initiated under the Terrorism Enterprise classification used for domestic
terrorist groups. Such characterizations were required to “include a statement
regarding the political or social goals which the group hopes to achieve through
violence, its geographic area of operation, and a summary of the violence or
criminal activity it either has been involved in or is advocating in the future.”37
These MIOG and MAOP provisions are still in effect.

VI. FBI Terrorism Classifications

The FBI classified many of the investigations we reviewed as pertaining to
“acts of domestic terrorism” and, in one case, as a Terrorism Enterprise
investigation. These classifications raised questions about whether the FBI has
expanded the definition of domestic terrorism to people who engage in
mainstream political activity, including nonviolent protest and civil
disobedience. As described in this section, the consequences of being identified
as the subject of a “terrorism” investigation may include being placed on a
terrorism watchlist. In subsequent chapters, we discuss some specific cases in
which the FBI’s naming of individuals as subjects of terrorism investigations
have led to their being placed on terrorism watchlists.

36 MIOG, Part 1, § 100-4(6).
37 MIOG, Part 1, § 101.3.1.5.

23


such information may be retained. However, DIOG § 5.13 provides that if an
assessment turns up no sufficient basis to justify further investigation of an
individual or group, then the records must be clearly annotated to state that
the individual or group identified during the assessment does not warrant
further FBI investigation.

Vv. Statutes and Rules Governing the FBI's Collection, Maintenance,
and Dissemination of Information about the First Amendment
Activities of Individuals or Groups

In this section, we provide a background on the applicable standards
governing the collection, retention, and dissemination of information about the
First Amendment activities of individuals and groups. These standards are
primarily found in the Privacy Act of 1974, the Attorney Generals’ Guidelines,
and the MIOG’s Part 1, §§ 1-4 and 100-4.

A. The Privacy Act of 1974

The Privacy Act of 1974, 5 U.S.C. § 552a, contains various provisions
relating to federal agency records that reference information about individuals.
These provisions include requirements on agencies collecting, maintaining, or
disseminating records about individuals. However, the Privacy Act applies only
to records that provide certain information about individuals and not to
references in agency records about corporations, organizations, or groups.
Below we discuss the requirements placed on agencies by the Privacy Act that
are most relevant to our review.

The Privacy Act, 5 U.S.C. § 552a(e)(7), prohibits agencies from
maintaining records “describing how any individual exercises rights guaranteed
by the First Amendment unless expressly authorized by statute or by the
individual about whom the record is maintained or unless pertinent to and
within the scope of an authorized law enforcement activity.”

Office of Management and Budget (OMB) Guidelines interpreting the
Privacy Act advise agencies to “apply the broadest reasonable interpretation”
when determining whether a record describes an individual's First Amendment
exercise. 40 Fed. Reg. 28,948, 28,965 (July 9, 1975). Courts have held that
the prohibition applies only to records that describe how the individual
exercised his or her First Amendment Rights and not to records that merely
indicate “that such a right was exercised.”26

28 Pototsky v. Department of Navy, 717 F. Supp. 20, 23 (D. Mass. 1989). See also
England v. Commissioner of Internal Revenue, 798 F.2d 350 (9th Cir. 1986). (IRS's
classification of individual as “tax protestor” based on tax return the individual submitted
(Cont’d.)

19


investigation. The case agent told us that PETA's size made it a difficult case
for a single agent to handle, especially one who had other responsibilities and
investigations. The agent said he unsuccessfully requested FBI Headquarters
to assign an analyst to the PETA case because he did not have regular
analytical support in the Norfolk Field Division during the investigation.

On December 18, 2006, Robinson was removed as a subject from the
investigation. According to the closing EC, “no nexus to terrorism has been
associated with [Robinson].” Approximately 5 months later, on April 19, 2007,
the Collins investigation was closed. The closing EC stated:

FBI Norfolk has been unable to determine any direct connection
between [Collins] and ALF. [Collins] has stated publicly that
[Collins] supports ALF and the liberation of all animals; however,
at this time there is no evidence to show any criminal activity
conducted by [Collins] on behalf of ALF. A financial analysis was
conducted on [Collins] to determine if [Collins] had funded ALF or
any extremist animal rights organizations. The analysis provided
negative results.

The agent who opened the Collins case told us that he was ona
temporary duty assignment when the case was closed but did not disagree with
the decision. He said that he thinks the case remained open for as long as it
did - 6 years - because the office sporadically received information relating to
PETA - though “it never amounted to anything that was significant” - and that
it was easier to leave it open than to reopen it when information was received.
The agent also said a point came when his involvement in the case essentially
ended and he asked a new agent to the office to review the case with some
“fresh eyes.” The case was closed following that review. The Norfolk Field
Division did not refer any part of the case to the U.S. Attorney's Office for
prosecution.

As discussed in Chapter Two of this report, a significant consequence of
the FBI's investigation classifications is that individuals identified as subjects
in full investigations and preliminary inquiries in domestic terrorism matters
can be placed on watchlists, such as the Violent Gang and Terrorist Offender
File (VGTOF), a database that provides identifying information about such
individuals to law enforcement personnel with whom they come in contact
(through a traffic stop, for example). From January 2002 to June 2002, FBI
policy required field offices to enter the subjects of domestic terrorism
investigations and preliminary inquiries into VGTOF. Collins and Robinson
were each added to VGTOF on February 1, 2002. Asa result, the Norfolk Field
Division received several alerts from the U.S. Customs Service relating to
Collins’s and Robinson's foreign travel. According to the records we reviewed in
the investigative file, in most instances the FBI collected only itinerary
information related to the travel, and did not request that Collins or Robinson

102


CHAPTER SEVEN
INVESTIGATION OF PROTESTS BY GREENPEACE AND
THE CATHOLIC WORKER AT VANDENBURG AIR FORCE BASE

The FBI opened a preliminary inquiry and full investigation into the
activities of Greenpeace, the Catholic Worker, and other groups and individuals
with respect to the Vandenberg Air Force Base (VAFB or Vandenberg) in
Central California. Because of the complexity of this case we are addressing
this investigation in this separate chapter. In reviewing the FBI’s actions, we
examined the adequacy of predication for opening the investigation and the
appropriateness of the FBI's characterizations of the Catholic Worker in
internal records.

I. Facts

The Vandenberg Air Force Base is a Department of Defense facility that is
used for space and missile testing as well as satellite launching. Because the
VAFB has been the site of test launches of the National Missile Defense
Initiative, a nuclear missile defense program, it has regularly drawn protests
from various groups.

In an EC dated April 25, 2001, a Special Agent working in the FBI Los
Angeles Field Division's Santa Maria Resident Agency opened a preliminary
inquiry on Greenpeace and three other groups, two individuals, and unknown
subjects.!76 The FBI opened the preliminary inquiry under the investigative
classification designated for acts of terrorism by domestic terrorists occurring
on government reservations. As detailed below, the Catholic Worker was added
as a subject in a subsequent EC.

The opening EC alleged the following facts. Greenpeace, along with other
groups and individuals, planned to disrupt test launches of a National Missile
Defense missile, including a test launch in May 2001. One of the individuals
solicited volunteers to “participate in an ‘encampment’ on Vandenberg Air
Force Base days before the launch and, on the day of the launch, visibly enter
the safety zone in order to preclude the test launch.”!77 The other individual
had been arrested for trespass at the Vandenberg in October 2000 and had
stated his intention to continue to attempt to illegally impede future launch

176 The three additional groups and two individuals are not any of the groups or the
individual that we selected for this review.

177 This individual had previously served a federal prison term for damage to
government property, and an FBI document stated that he was responsible for $3 million in
damage to a government global positioning satellite.

159


Defense missile launches. The EC stated that “the subject groups have
proposed trespassing onto the VAFB and entering the ‘safety zone,’ thereby
causing the launch to be aborted.” The methods, according to the EC, “could
be as simple as hiking on to the base or by using the Greenpeace ships to
launch rubber boats into the safety zone... .. One method that poses a
serious threat that would be hard to counter (without injuring someone) would
be to launch powered parachutes and hover over the missile silo.” The May 22
EC stated that based on “overhears and conversations with protesters, the
Catholic Workers advocated peace with a Christian and semi-communistic
ideology.” The EC also characterized the ideology of two other groups present
at the protest.

Another EC, dated May 23, 2001, provided additional information about
the protest at the VAFB. It quoted one Catholic Worker protester who was
arrested as having stated that the Catholic Worker group “advocates love and
peace thru prayer.” According to the EC, this protester and another Catholic
Worker protester “advocated impeding [National Missile Defense] launches thru
non-violent civil disobedience.” The Special Agent who wrote the EC told us
that prior to interviewing the Catholic Worker protesters he did not associate
the Catholic Worker with the goal of impeding future missile launches. After
noting that the Catholic Worker protesters advocated nonviolent means to
impede the National Missile Defense, the agent wrote that based on his
“interpretation of comments made by various [Catholic Worker] protesters, [the
Catholic Worker Group] also advocates a communist distribution of resources.”

The FBI Special Agent stated that when he spoke to the Catholic Worker
members as a group during their May 2001 arrests, he shared with them his
interpretation of how they described the philosophy of the group. He told the
OIG that he told the members that his interpretation was that they believed in
peace, Christian love and in a “communist distribution of resources.”!82 The
Special Agent stated that the members, who did not all agree on wording, liked
how he characterized the group. According to the Special Agent, one member
stated his desire to have the characterization appear in the Special Agent’s
report because their purpose in going to the VAFB was to trespass and get their
message heard. !8°

182 According to the Special Agent, the Catholic Worker members described themselves
as believing in “distributionism and communitarianism.” The Special Agent paraphrased for us
what some of the Catholic members told him they believed: “everybody works according to
their abilities, and gets according to their needs, but we are anti-Communist when it goes
outside the scope of the distribution of resources and wealth because Communists are
Atheists, and we are strongly Christian.”

183 As noted in Chapter One, after the disclosure of documents pursuant to the FOIA
request, the FB] came under criticism for these characterizations of the Catholic Worker.
According to a December 20, 2005, New York Times article, an ACLU official stated: “You look
(Cont'd.)

162


Documents in the FBI file indicate that the FBI

sometime after their arrests.!87 According to the FBI file, on
August 1, 2001, most of these individuals were convicted of several counts of

misdemeanor conspiracy and trespass onto milit roperty. The FBI file
indicates that these individuals were | on

May 18, 2002.

An April 2002 news column appearing in a Catholic oriented national
publication alleged that a police officer had “recently” stopped one of these
individuals for speeding in Arizona. According to the column, the officer
handcuffed the individual for about an hour and justified the procedure by
stating that the individual was “affiliated with a terrorist organization.” We
found no other information suggesting the individuals were detained or
otherwise subjected to greater investigative scrutiny

Il. OIG Analysis
A. Predication for the Investigation

We concluded that under the Attorney General's Guidelines the FBI had
factual predication to open the initial preliminary inquiry on Greenpeace to
determine whether it was planning to disrupt the National Missile Defense
missile launches at the VAFB. The 1989 Attorney General's Guidelines in
effect at the time provided that the FBI may open a preliminary inquiry in
response to an allegation or information “indicating the possibility of criminal
activity.” When the FBI opened the initial preliminary inquiry, it had
information that Greenpeace had purchased two powered paraglider aircraft to
use in attempts to impede the National Missile Defense test launches. This
information indicated the possibility that Greenpeace planned to commit a
federal offense, such as interference with the national defense of the United
States, 18 U.S.C. § 2155.

The FBI added the Catholic Worker as a subject of the preliminary
inquiry after Catholic Worker members were arrested for trespassing onto the
backcountry of the VAFB in May 2001. When the Catholic Worker protesters
were arrested at the VAFB, the FBI had information indicating a “possibility”
that the group had violated and may again violate a federal law such as

187 Documents also indicate that the two individuals who were initially named subjects

of the prelimin: inquiry in the opening EC, but who were not arrested for trespassing in May
2001, were es We found no documents in the case files

indicating that any of the Greenpeace members were

166


and any of the other assertions or allegations that you’ve made in
terms of our investigating persons who are exercising their First
Amendment rights.

In addition, in response to follow-up Questions for the Record to the FBI
from Senator Leahy, the FBI stated that “[t]he investigation of the individual
whose presence at the rally was anticipated is still ongoing,” and declined to
provide further information.

As discussed below, we determined that for a variety of reasons the FBI's
explanations were inaccurate and misleading.

A. Factual Chronology
1. FBI Surveillance of the Anti-War Rally

During his OIG interview, Berry described the circumstances leading to
his surveillance activities at the Merton Center rally in Pittsburgh. Berry told
us that he graduated from the FBI Academy in August 2002 and was assigned
to the Pittsburgh Field Division’s Joint Terrorism Task Force (JTTF) to work on
international terrorism cases. At the time of the surveillance he was still in
probationary status with the FBI, on a training rotation working on a variety of
criminal investigations. His international terrorism caseload consisted of one
case.

Berry told us that when work was slow he would ask his supervisor,
Supervisory Special Agent Susan Crosetti, for a work assignment.47 Berry said
November 29, 2002, the Friday after Thanksgiving, was one of those slow work
days. Berry told us that he asked Crosetti for work, and she directed him to go
to an anti-war rally in downtown Pittsburgh to identify Pittsburgh Field
Division terrorism subjects “and to see what they are doing.” Berry said he
could not precisely recollect Crosetti’s instructions but that “the gist of it was
that [I] needed to go identify our subjects’ involvement in the anti-war protest.”
Berry told us he could not recall whether Crosetti told him why she believed
that any terrorism subjects would attend the event.

The Merton Center web site described the event as an anti-war leafleting
event held on the Pavilion in Market Square, an open park-like space in
downtown Pittsburgh. The web site stated that the participants would “[flan
out in teams to leaflet and engage people in the Square and downtown
shopping spots” to “[tlake the anti-war message to more people” on “the biggest
shopping day of the year.” Berry described the event as an anti-war protest or
rally “with many people in attendance.”

47 Susan Crosetti is a pseudonym.

31


activity took place at Seafair, and the special events case was closed 2 days
after Seafair ended.

In sum, we found no evidence that the FBI improperly investigated
Milner because of his exercise of First Amendment rights or otherwise acted in
violation of FBI policies.

Finally, as noted above, Milner was described in a Seattle Post-
Intelligencer article as a “Quaker peace activist.” This reference was the subject
of a question by Senator Leahy, in response to which Director Mueller stated,
“[tlo my knowledge, we have not surveilled the Quakers.”!94 We attempted to
determine whether the FBI had surveilled or otherwise investigated the
Quakers (also known as the Religious Society of Friends) during the period of
our review. Our review of FBI documents did not reveal any evidence that the
FBI investigated the Quakers as a group or any individuals identified in FBI
documents as Quakers for protest activities. 195

194 FBI Oversight: Hearing Before the S. Jud. Comm. 109th Cong. 15 (2006).

198 After the May 2006 hearing, Senator Leahy submitted a written question asking
whether the FBI was involved in surveillance of protests at Seattle’s Seafair Festival. We did

not find any evidence to contradict the FBI response, which stated that it did not participate in
the surveillance.

172


investigation as a preliminary inquiry — instead of converting the case to a full
investigation - the field office must articulate the justification for an extension
to FBI Headquarters and obtain its approval.

The PETA preliminary inquiry received three 90-day extensions: the first
two extensions were authorized by the Special Agent in Charge, and the third
extension was authorized by FBI Headquarters. !3!

The EC setting forth the justification for the first extension, dated
February 23, 2004, stated that as part of the financial investigation of PETA,
agents were still awaiting records from a particular company. The EC stated
that it was expected these records would create investigative leads overseas to
identify the recipients of certain PETA wire transfers. The EC also stated that
agents had identified a disgruntled former PETA employee who appeared
cooperative and possibly in possession of relevant information, and the FBI was
in the process of making arrangements to debrief a second former employee
who might have knowledge of criminal actions by PETA.

The EC setting forth the justification for the second extension, dated
May 26, 2004, stated that agents had identified over $100,000 in wire transfers
between PETA and a firm in London, England that provides “ethical/

environmental design” consulting. According to the EC, the directors of the
fim were ass0cia(ed 1, A rr
HMM. The EC also summarized the results of agents’ interviews of the two
former PETA employees referenced in the EC that sought the first 90-day
extension. The first individual did not provide any evidence of criminal activity
and identified another former employee who might be receptive to an interview.
The second individual, who worked for PETA from a claimed to
have observed acts of vandalism by PETA employees, and encouraged by
Collins, which targeted fast food restaurants and butcher and fur shops. This
individual also claimed that PETA’s co-founder made statements indicating
that PETA was formed as cover for ALF and that the groups were one and the
same. This individual also identified several other former PETA employees who
might speak with the FBI. The FBI subsequently administered a polygraph
examination of this source to assess the veracity of his statements linking
PETA and ALF. During the examination, the source retracted some
statements, modified others, and was ultimately determined by the examiner to
be “deceptive.”

131 The preliminary inquiry was considered officially opened on August 29, 2003, and
was set to expire on February 28, 2004. The first 90-day extension authorized by the Special
Agent in Charge extended the case to May 28, 2004, and the second extension carried the case
to August 28, 2004. FBI Headquarters then authorized a third 90-day extension. That
extension expired on November 28, 2004, and the case was closed.

112


findings and recommendations in this report to help avoid similar problems to
those in the investigations discussed in this report.

191


including surveillance and the use of a pole camera. We examined the
adequacy of the predication for this investigation and whether the investigation
was predicated solely on First Amendment activities.

1. Facts

The FBI's Dallas Field Division opened an investigation under the Acts of
Terrorism classification against two individuals (G. Harris and I. Johnson)
associated with Greenpeace on May 17, 2004.!45 The opening EC did not

ify the potential federal criminal violations, but later documents

stated that the investigation
related to possible violations of criminal statutes: conspiracy, civil disorders,
interruption of an energy facility, and traveling to riot, 18 U.S.C. §§ 231, 371,
1366 and 2101.146

According to the file, the facts known to the FBI case agent at the time
the full investigation was opened included that Harris and Johnson were

arrested

The FBI file noted that when Harris and Johnson were arrested, the
ave as their address a

. The file also noted that Harris had
contacts with the subjects of other FBI Act of Terrorism investigations.

The case agent also knew as a result of a different FBI investigation that
Harris had numerous contacts with a person who was suspected of

145 G. Harris and I. Johnson are pseudonyms.

146

133


This chapter first summarizes the findings contained in this report
regarding the FBI's investigations on the five domestic advocacy groups and the
individuals associated with those groups. It then provides our conclusions and
recommendations regarding the FBI's investigations of these groups and
individuals.

I. Findings Regarding Individual Groups
A. Thomas Merton Center

The Thomas Merton Center describes itself as “Pittsburgh’s peace and
social justice center” and advertises its commitment to “nonviolence, social
justice, peace and human dignity.” We found numerous references to the
Merton Center in documents from the FBI's Pittsburgh Division describing its
investigative activities. In general, we found that the FBI’s investigations
related to the Merton Center and its statements describing the basis for that
investigation raised the most troubling issues in this review. The FBI’s
Pittsburgh Field Division conducted surveillance of a Merton Center anti-war
rally in 2002 and the FBI later provided inaccurate and misleading information
about this incident to Congress and to the public when describing the basis for
this FBI investigation.

1. Surveillance of the November 2002 Merton Center Anti-
War Event

Our review determined that in late November 2002, a probationary FBI
agent in the Pittsburgh Field Division attended a public anti-war leafleting
event sponsored by the Merton Center. The agent told us that his supervisor
sent him to the rally on a slow work day (the day after Thanksgiving) when he
asked the supervisor for work, and that the supervisor instructed him to go to
the rally to look for Pittsburgh Field Division international terrorism subjects.
We found no evidence that the assignment was made pursuant to a particular
investigation or in response to any information suggesting that any particular
terrorism subject might be present at the rally. The agent was unable to
identify any terrorism subjects at the event, but he photographed a woman in
order to have something to show his supervisor. He told us he had spoken to a
woman leafletter at the rally who appeared to be of Middle Eastern descent,
and that she was probably the person he photographed. He said he discarded
the photographs after other agents in the Pittsburgh Field Division Joint
Terrorism Task Force (JTTF) were unable to identify the woman pictured in
them.

The agent told us that after he returned to his office he conducted some
internet research on the Merton Center, and then wrote an EC about the event.
The synopsis line of the EC stated: “to report results of investigation of
Pittsburgh antiwar activity.” The EC described the Merton Center as a “left-

174



conducted by Berry.8° We believe that Crosetti’s May 16 e-mail was where the
inaccurate suggestion that the Person B case was the target of the surveillance
of the Merton event originated.

ITOS-II Intelligence Analyst Andrews wrote a draft of the CTD response,
which she provided to us, that was substantially identical to the final version of
the CTD response. Andrews said she showed the draft to her supervisor,
Steele, and she then provided it to Parkman for review. Parkman said he had
no recollection of this. Andrews said she does not believe the draft CTD
response came back to her for further work after that point. She also said she
does not recall whether the Pittsburgh Division ever reviewed any drafts of the
CTD response.

In sum, we determined that the CTD response was another inaccurate
description of the reason for Berry's surveillance at the Merton Center anti-war
rally. The CTD response to Senator Leahy’s question was based on documents
dated several months after the event that were provided to the CTD by
Pittsburgh Supervisory Special Agent Crosetti. In this version of the event,
Person B was the target of the surveillance. Yet, although Crosetti highlighted
the Person B case in an e-mail she sent to the CTD, her e-mail did not identify
him as the target. Berry denied ever stating that Person B was the target of his
surveillance, and Crosetti said she did not recall how she had answered
Andrews’s question about this. However, Andrews told us that she recalled
that information confirming Person B’s status as the target was provided by
Pittsburgh, most likely in an e-mail.

c. FBI Interpretation

After reviewing a draft of this report, the FBI agreed that the CTD
response contained inaccurate statements but argued again that these errors
were accidental, based on the FBI's following interpretation of events.

According to the FBI, when the CTD sent the Congressional Questions
for Record to Pittsburgh Field Division attorney Kempler, he asked Pittsburgh
SSA Crosetti for help. Crosetti conducted another database search, this time
turning up 38 documents that she sent to Kempler, highlighting documents
relating to Person B. According to the FBI, Crosetti repeated the error she had
committed in connection with the routing slip, by failing to tell Kempler that
she had no specific recollection of whether Person B was the target of the
surveillance.

80 Rogers, the Person B co-case agent, retired from the FBI in December 2004. He told
us he first became aware of Merton Center anti-war rally that Berry attended and the
November 2002 EC when the OIG called him to request an interview.

55


on information indicating the “possibility” of a group's involvement in
terrorism.

1. Facts

From approximately December 2002 through September 2004, the
Norfolk FBI case agent who had opened the Collins investigation also
attempted to obtain approval to initiate a full terrorism enterprise investigation
on PETA. The agent drafted on at least three occasions documents that
included what he believed to be sufficient predication to establish that there
was a “reasonable indication” PETA as an organization was involved in
terrorism. The drafts were reviewed and edited in the Norfolk Field Division by
the agent’s supervisor and the Division’s Chief Division Counsel, and at FBI
Headquarters by personnel in the Domestic Terrorism Operations Unit and
Office of the General Counsel. Based on our review of e-mails and edited
drafts, it appeared that the FBI had concerns about the lack of current
information indicating PETA’s involvement in any terrorism-related activity, the
strength of the evidence indicating such involvement, and the sheer length of
the agent’s drafts (the page length ranged from 20-40 pages). The consensus
appeared to be that the initiation document should be more focused and
drastically shortened, and that consideration should be given to opening the
case as a preliminary inquiry.

As a result, in the summer of 2003, a second agent in the Norfolk Field
Division was asked to review the case agent’s drafts and distill the information
into a shorter statement of predication for FBI Headquarters’ consideration.
The second agent told us that he pulled and verified those key facts from the
drafts that he wanted to use and then drafted a new predication memorandum.
The Norfolk Field Division Special Agent in Charge approved the memorandum
and on August 20, 2003, the Norfolk Field Division again requested FBI
Headquarters concurrence to initiate a full terrorism enterprise investigation
on PETA. !27

The 3!2-page memorandum began by stating PETA was suspected of
providing financial and logistical support to ALF/ELF. The memorandum
provided some background information about the groups and listed three
pieces of information to support the opening of an investigation of PETA: (1) a
May 2002 public acknowledgement by a PETA spokesperson that PETA
provided funds to ELF; (2) a check from PETA dated May 25, 2001, in the
amount of $1,500 made payable to the North American Earth Liberation Front;
and (3) PETA tax records for 1999 indicating contributions to “several small,

127 FBI policy at the time provided that a full terrorism enterprise investigation could be
authorized by a Special Agent in Charge only with the concurrence of the appropriate FBI
Headquarters official, which was the Counterterrorism Division Section Chief with program
responsibility for the type of case being opened.

109


in Miami.” The EC stated that the undercover officers were able to identify
“local anarchist leaders, local meeting locations, as well as specific plans for
importing weapons in the security zones and tactics to be employed... .” The
EC also stated that public source information was monitored daily, resulting in
the identification of other cities in which individuals are recruited to attend and
disrupt the FTAA meetings.

c. Investigative Activities Relating to the Merton
Center

On July 25, 2003, the FBI Miami Field Division sent an EC to the FBI
Pittsburgh Field Division reporting that an “Anti-FTAA Consulta” (conference)
would be held in Pittsburgh from August 29-31, 2003, and hosted by the
Pittsburgh Organizing Group (POG) and the Merton Center, for the purpose of
recruiting activists to travel to Miami to disrupt the FTAA meetings. The EC
attached Merton Center and POG website materials stressing the planned use
of “direct action” to disrupt the FTAA. Merton Center website material stated:

Jail: There will be a wide variety of tactics employed by groups
opposed to the FTAA meetings. Some of these will likely involve
the possibility of arrest. Because of this we are making
arrangements to make sure that anyone arrested will have a way
back to Pittsburgh. We Will Not Leave Anyone Behind!

Another Merton Center web posting was a call to action against the
FTAA, making reference to the derailing of the 1999 WTO meetings in Seattle
and stating that at the FTAA Miami meeting the “confrontation will be decided
in the streets and the meeting rooms of Miami, and everything is at stake.”
POG web material included a call to “Smash the FTAA - Call for a Padded Bloc
in Miami.”9° It stated: “[t]he goal of global justice movement in Miami must be
to materially disrupt the summit to such a degree that it is impossible to
continue any negotiation.” It also stated the August 29-31 conference in
Pittsburgh would continue the discussion among groups on what they can do
to prepare for the FTAA meetings and “obtain the training and materials
necessary to make” the FTAA protest a success.

The FBI Miami Field Division's July 2003 EC requested that the FBI
Pittsburgh Field Division collect intelligence related to Merton Center and POG
efforts to recruit individuals to travel to Miami to disrupt the FTAA meeting.
Specifically, the Miami Division requested that Pittsburgh conduct surveillance
at the conference to “collect tag information and take photographs of
individuals in attendance.”

90 The POG material described a Padded Bloc as “a contingent of people protected from
police violence through the use of padding, shields, banners, and/or other materials.”

73


instructed field supervisors to review pending domestic terrorism cases fitting
the above description in order to ensure compliance with the new policy.

The new requirements issued in this EC were added to Part 1, § 266-3(6)
of the MIOG, which stated that “investigations that target subjects engaged at
least in part in the exercise of constitutionally protected freedoms, such as
protest, demonstrations and civil disobedience must comply” with the new
policy requirements. In 2009, the FBI's Inspection Division issued a report of
the FBI's Domestic Terrorism program in which it found a 47 percent
compliance rate with the requirements in MIOG Part 1, § 266-3(6).

Cc. Placement of Individuals on Terrorist Watchlists

One significant consequence of the FBI's terrorism classifications is that
persons identified as subjects of full investigations in Act of Terrorism cases
must be placed on watchlists. One such watchlist list is the Violent Gang and
Terrorist Offender File (VGTOF). VGTOF became fully operational on
October 1, 1995, and provides identifying information about persons placed in
the database to members of the law enforcement community who come into
contact with such persons such as during a traffic stop.4° Initially, VGTOF was
primarily used to track violent street gangs and gang members. Also, initially a
person was entered on VGTOF at the discretion of an FBI agent or other law
enforcement official if criteria was satisfied indicating the person was
associated with a violent street gang or terrorist organization. Beginning in
January 2002, the FBI required its field divisions to enter all subjects of
international and domestic terrorism preliminary inquiries and full
investigations into VGTOF. In June 2002, the FBI modified this requirement
and allowed field divisions the discretion to enter subject identities of
international and domestic terrorism preliminary inquiries. In January 2004,
the FBI modified the policy again to remove the field division's discretion to
enter subjects of international terrorism preliminary investigations and require
their entry into VGTOF.

In March 2004, the FBI's Terrorist Screening Center (TSC) created the
consolidated terrorist watchlist, also known as the Terrorist Screening
Database (TSDB). The consolidated terrorist watchlist merged terrorist
watchlists that were separately maintained by various federal government
agencies. The watchlist is used to alert officials who may screen individuals at
various points such as when an individual attempts to travel on a commercial
airline or is stopped by a law enforcement officer for a traffic violation. The

40 The VGTOF is one of many files in the National Crime Information Center (NCIC), “a
computerized database of documented criminal justice information available to virtually every
law enforcement agency nationwide, 24 hours a day, 365 days a year.” Hearing before the S.
Comm. on Homeland Sec. & Gov. Affairs, 109» Cong. 22-199 (2005) (statement of Thomas E.
Bush, Assist. Dir., Crim. Just. Info. Serv. Div., FBI).

25


identifying information about a particular person allegedly active in POG.
These reports contained precisely the sort of First Amendment information
protected under the Privacy Act. Although the Privacy Act permits the
collection and retention of such information “within the scope of an authorized
law enforcement activity,” as noted above we do not believe that the source’s
attendance was properly authorized.

With one exception, none of these reports contained anything of apparent
evidentiary value.!°5 Rather, the agent recruited a friend of his son and gave
him surveillance assignments with at best thin relevance to any open
investigation or to preventing terrorism. In addition, when creating a written
record of his source’s activities, the agent paid little or no attention to the First
Amendment implications of what he recorded. The resulting reports raised
significant questions under the Privacy Act, the Attorney General’s Guidelines,
and the MIOG.

Even if the FBI’s conduct did not violate the Privacy Act, we are
concerned by the lack of justification for the FBI's activities in this matter and
the resulting implications for the First Amendment rights of individuals. The
FBI established a confidential source to attend political meetings and protests
and collect information that was almost exclusively focused on the First
Amendment activities of persons who were not the subject of any investigation.
Although the source was nominally operated in connection with a thinly
predicated preliminary inquiry, the source collected no information regarding
the named subject of that inquiry and continued to collect and report
information on First Amendment activities after the inquiry was closed.

IV. CDC Response To Merton Center Document Release

Finally, we believe that the FBI’s Chief Division Counsel (CDC) for the
Pittsburgh Field Division took prompt and appropriate action when he read the
documents related to the FBI's investigation of the Merton Center. The CDC
told us he was “taken aback” when he first read the Merton Center documents
released in response to the FOIA request, including the 2002 EC, the 2003
Letterhead Memorandum, and the source reports relating to the POG meetings.
The CDC took immediate action to address the concerns he spotted. He told us
he brought his concerns to the Pittsburgh Field Division’s Special Agent in
Charge and Assistant Special Agent in Charge. After the FOIA release in March
2006, the CDC conducted a series of PowerPoint training sessions with the

105 One report described the conduct of one participant who opened the door to a
military recruiting office while carrying a bag containing PVC pipe, which the case agent told us
he thought might have implied a bomb.

91


Beginning in 1976, the Attorney General has issued and revised
guidelines that address specific types of investigations and investigative
techniques.’ The primary Guidelines regulating FBI domestic investigations
addressed predication standards for opening general crimes, racketeering, and
terrorism enterprise investigations. The Attorney General’s Guidelines issued
in 1989 were in effect until May 2002, when new Guidelines were issued.? The
1989 and 2002 Guidelines provided standards for opening preliminary
inquiries and full investigations, in addition to providing guidance on
investigative techniques and dissemination of information to other agencies. !°
In addition to these Guidelines, over the years Attorneys General have issued
separate guidelines addressing the use of various investigative techniques,
including confidential informants, undercover operations, and consensual
monitoring.

In addition, the FBI has issued policies describing in detail the
procedures and guidelines that control the conduct of investigations. During
our entire review time period, from January 2001 to December 2006, the vast
majority of applicable FBI policies were contained in the Manual of
Investigative Operations & Guidelines (MIOG), and the Manual of
Administrative Operations and Procedures (MAOP). In addition to the MIOG
and MAOP, the FBI issued policy guidance through internal memoranda
relevant to the issues in this review. These memoranda were issued by the

8 For a detailed historical background on the evolution of the Attorney General's
Investigative Guidelines, see the DOJ OIG report, The Federal Bureau of Investigation’s
Compliance with the Attorney General's Investigative Guidelines, (Sept. 2005), at Chapter Two,
available at http: / /www.usdoj.gov/oig/special/0509/index.htm.

° The 2002 Guidelines were the result of an Attorney General review of investigative
guidelines to enhance the Department of Justice’s ability to detect and prevent terrorist attacks
in the aftermath of the September 11, 2001, terrorist attacks. The 2002 Guidelines stated in
its preamble that the FBI's “highest priority” in discharging its investigative responsibilities was
“to protect the security of the nation and the safety of the American people against the
depredations of terrorists and foreign aggressors.” The 2002 Guidelines made a series of
changes, including authorizing preliminary inquiries for racketeering and terrorism enterprise
investigations, lengthening the time period for preliminary inquiries, adding additional bases
for initiating terrorism enterprise investigations, and providing new authorization to conduct
counterterrorism investigative activities such as visiting public places and attending public
events.

10 “The Attorney General's Guidelines for FBI Foreign Intelligence Collection and
Foreign Counterintelligence Investigations” (FCI guidelines) were in effect during the first part
of our review time period (January 1, 2001, to October 30, 2003). The Attorney General’s
Guidelines for FBI National Security Investigations and Foreign Intelligence Collection” (NSI
guidelines) replaced the FCI guidelines and were in effect during the last part of our review time
period (October 31, 2003, to December 31, 2006). The FCI and NSI guidelines, portions of
which were classified, provided the FBI with additional investigative authority to conduct
certain national security investigations, including international terrorism and espionage, and
collection of foreign intelligence. We did not find that the FCI or NSI guidelines were implicated
in any of the investigations we reviewed.


We did not find any evidence in FBI files indicating that Pittsburgh Field
Division personnel conducted the requested surveillance. However, according
to FBI documents, the Miami Field Division sent three JTTF members to
Pittsburgh to monitor the conference to learn what “violent direct actions”
might be planned against law enforcement during the FTAA, to gather
intelligence on “potentially destructive individuals,” and to identify Miami-
based subjects in attendance.

According to a post-surveillance report, when the Miami Field Division
JTTF members arrived in Pittsburgh in August 2003, they met with a detective
from the Pittsburgh Police Department, who gave them a driving tour of the
relevant locations for the conference, including the Merton Center. The
detective informed the JTTF members of the location where all the “direct
action” techniques would be discussed. The detective also drove the JTTF
members by the home of Nicholas Herman, who was identified as one of the
POG’s most vocal members, and they also pointed out another individual,
Arnold Philips, who was identified as one of the POG’s leaders. Both
individuals had publically stated they would attend the November FTAA
meeting in Miami. The detective also provided the JTTF members with
information on 11 POG members, including biographical information on
Herman and Philips.9!

The next day, the JTTF members and an agent from the FBI Pittsburgh
Field Division conducted surveillance near the location where the POG direct
action discussions took place. The agents took photographs and video during
their surveillance, presumably of individuals entering the building. The file
does not indicate that the FBI conducted any surveillance of the meetings that
the Merton Center hosted at its location.

A Miami Field Division Division EC dated November 17, 2003, contained
information describing a short-term lease entered into by the Merton Center for
space in a Miami building for use during the FTAA meeting. The EC provided
descriptions and some identifying information for the three individuals who
appeared at the lease signing, presumably representing the Merton Center. A
subsequent EC described information the FBI had received indicating that the
space would be used as a clinic for protesters who might be injured during the
anti-FTAA demonstrations. One of the individuals present at the lease signing
was reported to have been teaching first aid techniques to other “anti-FTAA
subjects” in the leased space. Another EC indicated that the Merton Center
and another organization had secured a 27,000 square foot space in a different

1 Philips and Herman are pseudonyms. The Pittsburgh Field Division would later
open a preliminary inquiry on Philips and Herman in connection with their participation in the
FTAA meeting. We discuss these preliminary inquiries, which included FBI attendance at
Merton Center meetings, in Section C of this chapter.

74


but not limited to, criminal activity that destroys property or causes economic
loss in furtherance of ideological goals. Criminal direct actions have included
vandalism, arson, attempted arson, as well as threats and assaults.” He stated
that the POG website referenced direct action, which he took to mean “they are
planning on engaging in criminal activity which will be in violation potentially
or possibly in violation of a federal statute.” The supervisors identified arson,
attacks on military recruiting centers or other government facilities, and
bombings as types of “direct actions” that might violate a federal statute.
However, neither the opening ECs nor any of the agents we interviewed
identified any direct link between the POG and such acts, although both
supervisors told us that the POG’s advocacy of direct action raised the
possibility that some members might be planning such acts.

Material on the POG website that we recently reviewed stated that POG
“utilize[s] a diversity of tactics, which have typically included pickets, protests,
sit-ins, street theatre, conferences, civil disobedience and non-violent direct
action such as blockades and unpermitted marches. ... As a group we
absolutely never organize anything involving destruction of property or physical
harm to human or non-human animals.” Other materials on the POG website
describe direct actions such as blockades and “lockdowns” (devices or
strategies used to chain people together or to objects to prevent their being
easily removed or separated by police).

The Pittsburgh Field Division Supervisory Special Agent who approved
the opening ECs cited the fact that the POG advertises itself as an “anarchist”
group and that the POG intended to send 300 people to Miami to establish a
“padded bloc” to confront police. He said that until then, the Pittsburgh Field
Division did not know anything about the POG, so the information that they
could mobilize 300 people “got our attention.” He noted that anarchists had
conducted bombings in Pittsburgh 100 years ago and that anarchist groups in
general are the subject of a domestic terrorism subprogram in Headquarters.

The case agent for the Herman preliminary inquiry cited Herman's 2003
arrest for failure to disperse, disorderly conduct, and obstruction of traffic
during an anti-war protest as a fact supporting opening the preliminary inquiry
on him. The case agent stated that being “willing to be arrested and engage
law enforcement takes you to another level,” opening the possibility that the
individual might be planning more violent acts constituting federal crimes. He
also stated that the POG had listed the “Bettis Atomic Energy Plant” as a
potential target for direct action, and that trespassing on that property would
be a federal crime.

b. Investigative Activities

We examined the FBI's investigative activity in connection with the
preliminary inquiries of Herman, Philips, and Waterman.

80


e« Greenpeace USA;
e The Catholic Worker;
e Glen Milner, (an individual); and,

e The Religious Society of Friends (the “Quakers”).+

In the case of PETA, our review focused on the investigative activities of
the FBI's office in Norfolk, Virginia (Norfolk Field Division). PETA’s corporate
headquarters are located in Norfolk, Virginia, and during the time period
covered by our review, the FBI's Norfolk Field Division conducted the
investigation of PETA and several related investigations of PETA members.®

Our review focused on FBI investigative activities and documents that
related to the exercise of First Amendment rights, most commonly protest
activities. In general, we addressed the following issues raised by the FBI
documents relating to these groups:

e« Whether the FBI targeted the groups or their members because of
their First Amendment expressions rather than for a valid law
enforcement purpose;

« Whether investigations of the groups or individuals affiliated with
them were adequately predicated under applicable Department of
Justice (DOJ) or FBI policies;

¢ Whether the FBI improperly collected or retained information
about the First Amendment activities of the groups or their
members;

¢ Whether FBI documents contain improper characterizations of the
groups or their members based on their First Amendment views;
and,

¢ Whether the FBI improperly classified investigative matters relating
to these groups or individuals as terrorism matters.

In this review, we examined over 8,000 pages of FBI documents
referencing these groups. From this broad review we identified particular FBI
investigations and other activities that potentially implicated the First
Amendment activities of the groups or their members. In several of these
matters, we examined additional FBI documents, including the complete
investigative files of cases.

4 Our review period encompasses most of the years covered by the FOIA requests and
ends in 2006, when the OIG received the Congressional inquiries.

5 PETA was the only one of the groups we reviewed that the FBI had investigated
during our review period as a terrorism enterprise.


Amendment activity “not be permitted to extend beyond the point at which its
underlying justification no longer exists.” MIOG Introduction, § 1-4(2).

The Collins case also illustrates the impact a lengthy investigation can
have on individuals who are subjects of FBI preliminary and full investigations.
Because this case was classified as a domestic terrorism matter, Collins and
Robinson were placed in the VGTOF database and then on a federal watchlist.
As a result, the FBI collected information about Collins’s and Robinson's travel
activities for several years. At least one time that they returned to the country,
they were both subjected to a secondary inspection that included copying their
personal documents. The FBI's Norfolk Field Division submitted paperwork in
August 2005 to have Collins and Robinson removed from the international
travel watchlist, but this did not occur and the FBI continued to receive
information relating to their travel through 2006.

The FBI finally removed Collins and Robinson from VGTOF when the
investigation as to each was closed - on December 19, 2006, with respect to
Robinson, and on April 19, 2007, with respect to Collins. We concluded that
the investigations remained open “beyond the point at which [the] underlying
justification no longer exists.” Consequently, Collins and Robinson remained
in the VGTOF database substantially longer than they should have.

B. PETA - Terrorism Enterprise Investigation

In this section, we examine the FBI Norfolk Field Division’s decision to
open a preliminary inquiry on PETA as a terrorism enterprise.

According to the May 2002 Attorney General’s Guidelines, a “terrorism
enterprise investigation” refers to an investigation that focuses on an enterprise
that seeks to further political or social goals through activities that involve
force or violence, or that otherwise aims to engage in terrorism or terrorism-
related crimes. A terrorism enterprise investigation is concerned with the
entire enterprise, rather than just individuals and specific acts, and examines
the structure and scope of the enterprise as well as the relationships of the
members.

The 2002 Guidelines made an important change to terrorism enterprise
investigations that is relevant to the Norfolk Field Division’s investigation of
PETA: the guidelines authorized the FBI to use preliminary inquiries to
determine whether a full terrorism enterprise investigation of a group was
warranted. Under the 1989 Guidelines, a preliminary inquiry could only be
used in connection with individual crimes, not to determine whether to open a
broader investigation of groups involved in terrorism. Therefore, under the
1989 Guidelines the “reasonable indication” standard for opening a full
investigation applied to initiating any terrorism enterprise investigation, but
under the May 2002 Guidelines a preliminary inquiry could be opened based

108


Organizing Group (POG), a self-described anarchist group that the Merton
Center has publicly identified as an “affiliate.”. Some of these individuals were
also allegedly associated with the Merton Center or attended meetings at the
Merton Center. We examined the Pittsburgh Field Division's activities with
respect to its investigations of these individuals.

1. Facts
a. The Opening ECs

A few months after the November 2003 Free Trade Areas of the Americas
(FTAA) meetings in Miami, the Pittsburgh Field Division opened two
preliminary inquiries on three individuals believed to be active members of the
Pittsburgh Organizing Group (POG). The opening Electronic Communications
(EC) for the investigations were dated January 8, 2004, and February 4, 2004.
The January 2004 opening EC named Nicholas Herman as a subject and
stated he was believed to be the most “vocal/active” member of the POG and its
leader. The February 2004 opening EC named Arnold Philips and Terry
Waterman as subjects, “dba” (doing business as) the POG.9° The FBI opened
the preliminary inquiries under the classification for an act of domestic
terrorism.

Both ECs referenced the Miami Field Division’s pre-FTAA meetings
domestic terrorism investigation, described above in Section III.B, regarding
anarchist groups and individuals from Pittsburgh who allegedly planned to
travel to Miami to disrupt the meetings and potentially engage in violence or
criminal activity. According to one of the ECs, “Miami reported on 9/18/2003
that POG intended to send approximately 300 individuals to the Miami area
Financial District for the FTAA event and to establish a ‘padded bloc’ during
the event.”

The opening ECs provided the following additional information on the
three subjects. Philips and Herman were identified as active members of the
POG by the Miami Field Division during its FTAA investigations. The January
2004 opening EC stated that Herman had a prior arrest for failure to disperse,
disorderly conduct, and obstruction of traffic during an anti-war protest held in
Pittsburgh on March 20, 2003.

The February 2004 opening EC also stated that Philips and Waterman
had attended a workshop organized by a different protest group in another city
in October 2003 to discuss the then-upcoming FTAA protest in Miami.
According to FBI files, the other group (not POG) was planning to stop the
FTAA meetings through demonstrations and infiltration of the meetings, if

98 Herman, Philips, and Waterman are pseudonyms.

78


recorded the information explained the potential relevance of this information
to the FBI's anti-terrorism mission.

We also concluded that the FBI's classification of one of these matters
under the Act of Terrorism classification was inappropriate, because the acts in
question (trespass on a military facility) did not include the use of violence or
force. Other file classifications were also available to the FBI and their use
would not have interfered with the FBI's ability to retrieve the information in
the event that it became relevant to a future terrorism investigation.

E. Vandenberg Air Force Base

The FBI opened a preliminary inquiry and full investigation into the
activities of Greenpeace, the Catholic Worker, and other groups and individuals
with respect to planned protests at the Vandenberg Air Force Base (VAFB) in
Central California in 2001. Our review found no evidence that the FBI targeted
Greenpeace or the Catholic Worker based on their exercise of First Amendment
rights in this protest activity. We found that the Vandenberg investigations did
not violate Attorney General’s Guidelines. The FBI had obtained information
that Greenpeace was planning or considering actions to disrupt a National
Missile Defense test launch by activities that would exceed trespass. The
planned activities would constitute a federal offense, such as interference with
the national defense (18 U.S.C. § 2155). When the FBI added the Catholic
Worker as a subject to its investigation, the FBI had information that the group
had violated and might again violate a federal law such as trespassing onto a
military installation, 18 U.S.C. § 1382.

However, the FBI included its files characterizations of the Catholic
Worker as advocating, among other things, “peace with a Christian and semi-
communistic ideology,” and “a communist distribution of resources.” FBI
guidance states that “[t]he collection of information concerning groups and
individuals must be justified as reasonable and necessary for investigative
purposes.” See the FBI MIOG, Introduction, § 1-4(4). We concluded that these
characterizations of the Catholic Worker lacked a reasonable and necessary
relationship to any alleged actions on the group's part to impede the National
Missile Defense launches.

F, Glen Milner

We also examined the FBI’s investigative activity relating to Glen Milner,
who was described in a Seattle Post-Intelligencer article as a “Quaker peace
activist” who was “under watch” for protest activities carried out at the 2003
Seafair festival in Seattle, Washington. Although the FBI utilized its special
events authorities in connection with the Seafair, most of the information in
FBI files reflected investigative activity by other agencies. We concluded that
the FBI did not improperly investigate Milner because of his exercise of First

185


Communications System.!24 According to documents we reviewed, the FBI
received travel information relating to five international trips that occurred
after August 2005 - one in late 2005 and two in 2006 taken by Robinson, one
in 2006 taken by Collins, and one in 2006 taken by Robinson and Collins
traveling together. The FBI's investigations of Robinson and Collins were still
open when the FBI received this travel information.

2. Collection and Retention of Information about First
Amendment Activities

The Norfolk Field Division opened three confidential human sources in
connection with and during the Collins and PETA investigations. The first of
these sources was opened specifically to collect information about persons
affiliated with PETA and was “instructed to only attempt to identify members of
[ALF] and or [ELF] or those providing funds to the ALF/ELF to commit criminal
acts in furtherance of their social or political objectives.” According to FBI
documents, the source was expressly told “not to pursue gathering intelligence
on anyone who is simply expressing their first amendment freedoms.”

While working with the FBI, this source maintained regular contact with

employees and members of PETA and attended conferences and protests where
PETA activists were present,
. The source also

provided some assistance to other FBI field offices in their investigations of
animal rights extremists.

The second source opened by the Norfolk Field Division assisted
investigations related (0 i cing

conducted by other FBI field offices and did not collect information for the
Norfolk Field Division related to Collins or PETA.

The third source was | siistssCSd The Norfolk Field

Division tasked this source with providing information relating to the structure
of PETA and current and former PETA employees, and about animal rights
extremists with whom the source had contact. This source also assisted a
national terrorism enterprise investigation of “animal rights extremism/eco-
terrorism” being conducted by FB] Headquarters by, for example, attending a
national animal rights conference to attempt to network with individuals
possibly involved in criminal activities.

124 The Terrorist Identities Datamart Environment is the U.S. government's central
repository of information on individuals known or suspected to be involved in international
terrorism. The Treasury Enforcement Communication System serves as the principal
information system supporting border management and the law enforcement mission of the
Department of Homeland Security's U.S. Customs and Border Protection, as well as other
federal law enforcement agencies.

104


fact that the agent continued sending the source to the POG events even after
the preliminary inquiry of Herman was closed.

We also note that after the preliminary inquiry was closed, an alternative
basis for the FBI to attend the POG events could have been Part VI.A.2 of the
Attorney General’s Guidelines, which authorized the FBI to attend public
events for the purpose of detecting or preventing terrorist activities. According
to FBI guidance, a source operating under the FBI's direction can only be
directed to attend an event that an agent would also be permitted to attend.
The Part VI.A.2 “purpose test” was an extraordinarily low threshold to satisfy
and did not require the FBI to have a factual basis for believing that POG was
involved in terrorism. It only required that the FBI's purpose be “detecting or
preventing terrorism.” Moreover, Part VI authorities were available even in the
absence of a named subject or a predicated investigation of any kind.

Yet, the evidence indicated that the primary purpose for the source
assignments was not the detection or prevention of terrorism but rather to
enable the case agent to “get into the source program,” and “show some source
tasking and reporting.” Tellingly, the case agent admitted that the source
tasking was “more motivated by wishing to participate in the informant
program than it [was] POG generally speaking.” We do not believe that the
desire to establish performance statistics is an appropriate basis for using the
sensitive and intrusive investigative technique of instructing a confidential
source to attend political discussions or protest marches. We found that the
case agent’s claim that the source was collecting information regarding
potential crimes was not his primary purpose.

We were also concerned by the Pittsburgh case agent's use of
as a confidential source. Although compliance with source policies was

outside the primary scope of this review, we believe that the agent’s
recruitment of this source was questionable practice. For example, FBI policy
states that “FBI personnel directing, overseeing the direction of, or closely
involved with the operation of a CHS [confidential human source] may never . .
. [s]ocialize with the CHS, except to the extent necessary and appropriate for
operational reasons... .”!93 Yet, the case agent had a long-standing and
continuing social relationship with the source, which included the source
providing computer assistance to the agent. In addition, FBI policy states that
“FBI personnel directing, overseeing the direction of, or closely involved with
the operation of a CHS may never . . . [iJnterfere with, inappropriately
influence, or impede any criminal investigation, arrest, or prosecution of that
CHS or any civil action in which the CHS is a litigant or witness.”!°4 Although
the case agent provided a vague account of his efforts to assist the source with

103 FBI Confidential Human Source Policy Manual 1.12. Prohibitions.
104 Td.

89


FBI's Counterterrorism Division in consultation with personnel from the
Pittsburgh Field Division. According to this second version, the FBI attended
the rally to look for a completely different person (referred to as “Person B” in
this report) who was at the time the subject of a preliminary inquiry in the
Pittsburgh Field Division. We found no evidence to substantiate this version
either. The agent who attended the rally told us although he was looking for
terrorism subjects in general he was not looking for Person B in particular and
that he was not even carrying a picture of Person B at the time of the
surveillance. The agent who attended the rally also made no mention of this
subject in the EC and did not file the EC under the case number pertaining to
the subject. In addition, the FBI case agent who was responsible for the
preliminary inquiry told us that he was not aware that any surveillance of his
subject was being conducted at the rally. Moreover, we found no evidence to
suggest that the FBI had any reason to believe that this subject would be in
attendance at the rally.

Again, although it is conceivable that the errors in the second version
were also inadvertent, we believe they were more likely the result of an effort by
FBI personnel in Pittsburgh Field Division or the Counterterrorism Division to
justify the surveillance and to substantiate the Director’s testimony. However,
we were again unable to determine with certainty who was responsible for this
misleading version of events.

We concluded that the Director was not aware that the information that
was the basis for his testimony and the FBI's response to Senator Leahy’s
follow-up letter was inaccurate. We found no evidence that Director Mueller
received information that should have given him reason to doubt the accuracy
of the briefing materials he relied on in preparing to testify. Rather, we
concluded that FBI personnel took insufficient care to ensure that Director
Mueller was given accurate information and that Congress was accurately
informed about the basis for the FBI's actions in the Merton investigation. We
recommend that the FBI review this case to determine if action is warranted for
any of the individuals involved in the creation of the inaccurate justifications
for the FBI's surveillance of the Merton anti-war rally.

2. The 2003 Letterhead Memorandum

The FBI's FOIA release of Merton Center documents also included a
Letterhead Memorandum (LHM) dated February 26, 2003, and titled,
“International Terrorism Matters.” The LHM indicated that a JTTF
“investigation had revealed” certain information about the Merton Center,
including that it “has been determined to be an organization which is opposed
to the United States’ war with Iraq.” It described the Merton Center's plans for
an upcoming anti-war rally (different from the one discussed above). As
written, the LHM created the inaccurate impression that the Merton Center
was the subject of an international terrorism investigation. We were unable to

177


Even if the FBI’s conduct did not violate the Privacy Act, we are
concerned by the lack of justification for the FBI’s activities in this matter and
the resulting implications for the First Amendment rights of individuals. The
FBI established a confidential source to attend pd
and to collect information that was almost exclusively focused on the First
Amendment activities of persons who were not the subject of any investigation.
Moreover, the source collected no information regarding the subject of the
preliminary inquiry under which he was operated, and the source continued to
collect and report information on First Amendment activities after the FBI's
inquiry was closed.

B. People for the Ethical Treatment of Animals

The People for the Ethical Treatment of Animals (PETA) was founded in
1980 and today is the largest animal rights organization in the world. PETA
has been based in Norfolk, Virginia since 1996 and has affiliates in the United
Kingdom, Germany, the Netherlands, India, and Asia. According to its website,
PETA operates on the principle that “animals are not ours to eat, wear,
experiment on, or use for entertainment.” It primarily focuses its efforts on
four areas that it believes create the largest and most intense amount of
suffering among animals: factory farms, laboratories, the clothing trade, and
the entertainment industry.

We reviewed the PETA-related cases conducted by the FBI’s Norfolk Field
Division because PETA’s headquarters is located in that city and the Norfolk
Field Division conducted several investigations of PETA or individuals
associated with PETA. Our review did not find that the FBI targeted PETA or
its members for investigation based solely on their exercise of First Amendment
rights. Rather, the evidence indicates that the FBI opened investigations of
several individuals and of PETA as an organization to determine whether PETA
or any of its leadership was funding or directing the criminal activities of the
Animal Liberation Front (ALF) and other animal rights extremists.

We concluded that the FBI did not violate the Attorney General's
Guidelines when it opened most of these investigations. However, we
questioned whether the FBI had a sufficient factual basis to open several of the
cases as full investigations rather than preliminary inquiries. We concluded
with respect to one individual that the facts contained in the opening EC did
not support opening any investigation at all.

The most significant PETA-related cases the FBI opened were against
Alex Collins and against the organization itself.198 The case against Collins,
which remained open for nearly 6 years, was based on information that Collins

198 Alex Collins is a pseudonym.

180


that Berry was monitoring the Merton Center anti-war rally in response to a
“make work” assignment — was not helpful.

Moreover, there is another reason indicating that the errors in the CTD
response were not accidental. The Question for Record that the CTD Response
was addressing specifically requested information from before the Merton
Center rally to show that the FBI expected a person of interest to be there. As
explained above, the CTD response contained out-of-sequence information
about Person B that the FBI did not learn until after the time of the
surveillance. Citing these facts without acknowledging when they were learned
created the impression that this information was developed prior to the rally
and was part of the basis for expecting Person B to be present at the rally. The
dates on which the FBI learned those facts would be apparent to anyone
reviewing the documents that Crosetti assembled. We believe that this
presentation of later-learned information about Person B also provides evidence
of an effort to mislead.

The FBI also asserts that the fact that the Farooq Hussaini version and
the Person B version were inconsistent indicates that the inaccuracies were
unintentional. We agree that it is strange that the first time Crosetti was asked
about the surveillance in January 2006 she provided a stack of documents
pointing Fritsch and Kempler toward Hussaini, but that when she was asked
again about the matter in May 2006 she provided a different stack of
documents pointing Kempler and Andrews toward Person B. However, we do
not believe that the inconsistency between the versions indicates that the
inaccuracies were unintentional.

The CTD response contains language lifted nearly verbatim from the
routing slip regarding other matters.8! This shows that someone involved in
developing the CTD response was aware of the routing slip version of events,
which focused on Faroog Hussaini. There are several reasons that someone
involved in preparing the CTD response could have realized the routing slip
version could not be corroborated. For example, it is clear that someone
involved in preparing the CTD response spoke to Berry. Based on our interview
of Berry, we believe he would have rejected the suggestion that Farooq
Hussaini was the target of his surveillance. Further, the persons involved in
preparing the routing slip could have realized that there was no actual
connection between Farooq Hussaini and the Dallas investigation. These
factors would logically cause someone who was interested in providing a more
favorable justification for the Merton Center rally surveillance to abandon the
“Farooq Hussaini” version in favor of the “Person B” version, which had the

81 The first paragraph of page 3 of the routing slip, relating to the Letterhead
Memorandum discussed in Section III.A of this chapter, is reproduced almost verbatim in the
last paragraph of the CTD response.

57


given re the event. To my knowledge, only one [Special Agent] was
involved.

Crosetti copied Berry on this e-mail. When we showed Berry the e-mail chain,
he said he did not recall it.

Crosetti told us that she included the information in the e-mail because
it was information she found from her search of the database that was
potentially relevant to answering Senator Leahy’s question. She said that she
viewed the information she provided in her email as raw data and not as an
analysis or a conclusion that Person B was the target. She said she only
“highlighted” the Person B matter because her search revealed documents
associating him with the Merton Center.

Kempler forwarded the Crosetti e-mail to ITOS-II Supervisor Steele,
stating that Crosetti had provided him “a pile of documents” and asking Steele
if he wanted them. Steele responded to Kempler that he should hold on to the
documents for now and that Steele would have ITOS-II Intelligence Analyst
Andrews pull up the documents at Headquarters herself and contact Crosetti
directly.

Later in the day on May 16, Andrews e-mailed Crosetti asking a few
questions, including “do we know who was being investigated at the rally? -
[Person B]...?” Andrews told us that her file (where she found the e-mail
chain described above) did not contain any further or responsive e-mails on
this matter. Andrews told us she was unable to recall whether Crosetti
responded to this e-mail. Crosetti told us she did not recall whether or how
she responded to Andrews’s question.

However, Andrews stated to us that someone in the Pittsburgh Field
Division, probably Berry or Crosetti, had provided the information identifying
Person B as the person who Berry was sent to identify at the anti-war rally, as
stated in the first sentence of the CTD response.’§ Andrews said she was
“fairly confident” the information came to her in an e-mail.79

78 Andrews said she recalled contacting Berry by e-mail and said that she thought
Berry did not provide a lot of information because he had been “advised by (Kempler]” in some
fashion. She also said she did not know what the nature of the advice was or whether it
affected his ability to provide information.

When we showed Andrews the routing slip, she said she had not seen it before and she
did not believe she ever heard during her work Farooq Hussaini’s name mentioned as a person
of interest at the anti-war rally. When we showed Andrews the press response she said she
may have seen it and it may have been e-mailed to her.

79 We requested all e-mails from the Pittsburgh employees connected with this matter
for the relevant dates. However, the FBI provided none that pertained to this matter.

53


public event under Part VI.A.2. According to the Guidance, such a policy
would “help ensure that the attendance is for a law enforcement purpose
authorized by this section, and reflects the appropriate balance between law
enforcement and First Amendment concerns.” The Field Guidance stated that
supervisors “may want to consider” factors such as “the potential to detect or
prevent terrorist activity and the potential chilling effect on First Amendment
protected activity” when assessing the use of Part VI.A.2 authority.

The 2002 Field Guidance provided instructions for the retention of
information from a public place or event visit. It stated that, “if information
obtained during the visit rises to the level of a lead, such information should be
properly documented, including a statement describing how the information is
related to potential criminal and/or terrorist activity, and then filed
accordingly.” On the other hand, “[i]f the visit does not develop information
relating to potential criminal or terrorist activity, an agent should note in the
file the date, time and place visited and that the visit had negative results. No
other information may be recorded.”2°

2. Research and Online Searches

Part VI.B.1 of the 2002 Guidelines authorized the FBI to conduct general
topical research, including conducting online searches and accessing online
sites and forums on the same terms and conditions as members of the public.
General topical research was defined to mean “research concerning subject
areas that are relevant for the purpose of facilitating or supporting the
discharge of investigative responsibilities.". However, the FBI was prohibited
from using this authority to conduct online searches for information by
individuals’ names or other individual identifiers, except where such a search
was incidental to the topical research, (e.g., searches for writings on a topic by
a particular author). The 2002 guidance stated that this provision, while new
to the Guidelines, clarified “pre-existing policy.”

Part VI.B.2 stated that the FBI may conduct online search activity and
access online sites and forums on the same terms and conditions as members
of the public generally, “for the purpose of detecting and preventing terrorism
or other criminal activities.”. The 2002 Field Guidance stated that this
provision expanded the FBI's ability to gather investigative information from

20 Our 2005 report on the FBI's compliance with the Attorney General's Guidelines
described our difficulties in ascertaining the degree to which the FBI has used the Part VI.A.2
authority and found no standardized reporting, a lack of clear guidance, and “zero” files which
served as repositories for information relating to a Part VI.A.2 activity. See DOJ OIG report,
The Federal Bureau of Investigation’s Compliance with the Attorney General's Investigative
Guidelines, (Sept. 2005) at 188-202. As we detail in Chapters Four and Eight of this report, we
found several instances in which the FBI used this authority with respect to the advocacy
groups we selected for this review or their members.

15


investigation and the group engaging in anti-war protests. Finding
no such link, he terminated his surveillance.®!

The press response also stated that since 2002 the FBI had issued
additional directives that “reiterated and, where appropriate, clarified policy
pertaining to investigations that in some way involve public demonstrations or
protest activities.”

We believe that the press response was drafted by the FBI’s National
Press Office based in substantial part on information provided by Pittsburgh
Field Division attorney Kempler.®2 Kempler told us he responded to questions
from someone in the FBI's National Press Office sometime before the press
response was released, but he said he could not remember who specifically it
was. Kempler told us that he did not recall the telephone conversation in any
detail but that he “just parroted what was in the routing slip.” Kempler said
that the Pittsburgh Field Division did not create the press response and that it
originated from the National Press Office.

We were unable to determine specifically who in the National Press Office
drafted the press response. A Public Affairs Specialist from the FBI's National
Press Office told us he recalled a telephone conference that he and his Section
Chief participated in with Kempler during which Kempler explained to them
what had occurred with regard to the November 2002 EC and the anti-war
rally. He said that what Kempler told them was consistent with what was
contained in the press response. However, the Public Affairs Specialist said he
did not write the contents of the press response and did not know who did.

We also interviewed the person who was the Section Chief of the National
Press Office at the time. He said he did not remember who wrote the press
response, how it was created, what was discussed, or the telephone conference
with Kempler. He said he did not recognize the press response as something
that he would have written.

Like the routing slip on which it was based, the press response contained
important information that was false. The press response stated that an FBI
agent was present at the rally in order the “determine the validity of
information he received from another source establishing a link between an on-
going investigation and the group engaging in anti-war protests.” The “ongoing
investigation” discussed in the press response is apparently a reference to the

61 The press response also described a February 26, 2003, FBI Letterhead
Memorandum that was also released under FOIA. We discuss the Letterhead Memorandum in
the next section of this report.

62 A portion of the press response that is not at issue here was likely drafted by an
attorney in the FBI's Office of General Counsel.

44


The second question pertained to a February 26, 2003, FBI Letterhead
Memorandum that referred to the Merton Center. We discuss this
memorandum in the next section of this chapter. The third question asked
whether the Director had referred the Merton Center matter to the OIG for
review.

The FBI's Office of Congressional Affairs was assigned to prepare
responses to the questions about the anti-war rally and the Letterhead
Memorandum, although the Department of Justice Office of Legislative Affairs
submitted the final responses to Congress. The responses were based on
information the Office of Congressional Affairs received from the FBI's
Counterterrorism Division (CTD).72 As detailed below, the information provided
by the CTD ultimately led to the submission of another inaccurate response to
Congress.

8. The Counterterrorism Division Response

The CTD prepared a detailed 3-paragraph response to Senator Leahy’s
question about the Merton Center anti-war rally in a document that is dated
June 5, 2006, and that was provided to the FBI's Office of Congressional
Affairs. While the CTD’s response was not provided to Congress, it influenced
the final response that was submitted to Congress. The CTD response stated
in relevant part:

One agent from the Pittsburgh Division JITTF was sent to the
November 29, 2002 public rally in Market Square in Pittsburgh,
Pennsylvania to identify and conduct surveillance of Pittsburgh
Division International Terrorism (IT) subject [Person B], who was
involved in anti-war activities. The supervisor at the time claims
that no specific written or verbal tasking was given to the agent.
The agent recalls that his purpose on 11/29/02 was to identify
and conduct surveillance of Pittsburgh Division’s IT subjects
involved in the anti-war activities going on in Market Square, to
include [Person B]. The Thomas Merton Center has never been the
subject of an investigation; however, IT subjects are believed to be
associated with the Thomas Merton Center.

72 Typically, when the Office of Congressional Affairs receives questions for the record it
distributes the questions to the appropriate FBI divisions best able to provide a response to the
substance of the question. In this case, the Office of Congressional Affairs sent Senator
Leahy’s questions regarding the Merton Center surveillance and the Letterhead Memorandum
to the CTD for a response.

48


b. Investigative Techniques

For similar reasons, we concluded that the Attorney General’s Guidelines
and FBI policies allowed the FBI to conduct surveillance at the Merton Center-
sponsored conference in Pittsburgh. The FBI had a factual basis for believing
that individuals who may have been planning to disrupt the Miami FTAA
meetings would be in attendance at the Pittsburgh conference. The Merton
Center and POG website material promoting the conference recruited persons
to conduct direct actions that might violate federal law. The Merton Center
website material indicated that some protesters at the FTAA would be using
tactics likely to result in arrests, and that the Merton Center would ensure that
arrested individuals would have transportation back to Pittsburgh.

As discussed in Chapter Two, the 2002 Attorney General's Guidelines
stated that the choice of investigative techniques in an investigation is a matter
of judgment and the FBI should consider whether the information could be
obtained in a timely and effective way by less intrusive means. Further, FBI
policy stated that surveillance coverage may be used to “identify and/or locate
unknown subjects, victims, witnesses and locations.” MIOG, Part 2, § 9-
1(1)(a). The file does not indicate that the FBI conducted surveillance of the
meetings held in Pittsburgh at the Merton Center building. Instead, the FBI's
surveillance was focused on the location where the POG was hosting sessions
on direct action disruption techniques.9*

While not calling for violence, the Merton Center website materials stated
that it would provide support to individuals who might be involved in protest
activities leading to their arrest. The FBI believed that some protesters who
would seek the assistance of the Merton Center might themselves have engaged
in violent acts. The gathering of information about the Merton Center's lease
therefore had some nexus, albeit remote, to the law enforcement mission
focused on special event security and the collection of intelligence on
potentially violent protesters.

Cc. Pittsburgh FBI Investigations of Pittsburgh Organizing Group
(POG) Members Meeting at the Merton Center 2004 - 2005

We determined that the FBI’s Pittsburgh Field Division conducted
investigative activities relating to individuals associated with the Pittsburgh

94 The special events and the full investigation domestic terrorism files, which were
voluminous, contained brief references to the expected attendance of and location of
Greenpeace at the FTAA meeting. One EC in the full investigation file reported information
received from local law enforcement about the attendance of two PETA members at an anti-
FTAA “direct action” training camp. We concluded that the retention of this information was
pertinent to the FBI's special events mission and not based solely on the exercise of First
Amendment rights.

77


HE were investigated and prosecuted by local authorities under
state law. There is no federal criminal statute prohibiting trespass on private
property. The case agent was unable to specify to us any particular federal
crime that he had in mind at the time he opened the investigation in 2004. He

said that his focus was more broadly aimed at preventing criminal acts such as
those that occurred from being committed at future
events. Yet, the were charged only with state

crimes, not federal crimes. The case agent also stated that he was concerned

the protesters might escalate their future protests by engaging in more violent
and destructive a's bec: ar

, but we found no basis in the opening EC to support

this concern. !55

Court documents filed by the prosecutor after the case was opened
described the investigation as relating to potential violations of 18 U.S.C. §§
371 (conspiracy), 231 (civil disorders), 1366 (interruption of energy facility) and
2101 (riot).

We believe that at the time the investigation was opened the most likely
predication for a potential violation related to the riot statute, 18 U.S.C. §
2101.156 The riot statute prohibits traveling in interstate commerce or using a
facility of interstate commerce to incite, organize, promote, encourage,
participate in, or carry on a riot. The statute generally defines a riot as an act
or threat of an act of violence, by a person who is part of an assemblage of
three or more persons, constituting a clear and present danger of, or resulting
in, damage or injury to the property or person of an individual. 18 U.S.C. §
2102.

Based 011 [i

a. the FBI may have had indication that the subjects would promote
or encourage the travel of out-of-state protesters in interstate commerce or
otherwise use interstate facilities (cell phones) for similar future activities.
However, we found scant evidence suggesting that the subjects were planning
protest activities that would satisfy the “act or threat of an act of violence”
element of the riot statute. The only specific information suggesting that the
subjects might engage in acts or threats of acts of “violence” was the

155 The case agent identified the “federal nexus” as the fact that most of the [I
| had traveled from out of state in a conspiracy to commit criminal acts, indicating that
the subjects might solicit persons from out of state to commit criminal acts. However, under
18 U.S.C. § 371, the subject of the conspiracy must be an “offense against the United States.”
The agent did not specify any federal crimes that were the subject of the potential conspiracy.

156 As noted in footnote 93 of Chapter Three, two FBI OGC attorneys told us they
interpreted the Attorney General's Guidelines on “Reporting on Civil Disorders and
Demonstrations” to require Attorney General approval to open an investigation under the riot
statute. The FBI file contains no record that such approval was sought in this case.

139


the Alaska pipeline. We therefore concluded that there was a basis for the FBI
to classify this investigation as an Act of Terrorism matter.

c. Collection and Retention of Information about
First Amendment Activities

Some of the FBI reports in the files related to the Greenpeace Alaska
investigations contained information about the actual or planned travel and
First Amendment activities of Greenpeace or individuals associated with
Greenpeace. In particular, the FBI collected information about the travel and
protest plans of Bartlett, Daniels, and Franklin. In some of these documents,
no specific connection between this information and any possible illegal action
was made explicit. These documents could create the impression that the FBI
was investigating Greenpeace or the individuals solely on the basis of their
First Amendment activities. We therefore considered whether the FBI collected
and retained this information in compliance with applicable guidelines.

As detailed in Chapter Two, the Privacy Act and the FBI’s MIOG provide
that information concerning the exercise of First Amendment rights should be
made a matter of record only if it is “pertinent to and within the scope of
authorized law enforcement activity.” 5 U.S.C. § 552a(e)(7); MIOG
Introduction, § 1-4(4). After reviewing the FBI file as a whole, we did not
conclude that it was unreasonable for the FBI to consider the information
about the First Amendment activities of Greenpeace and its members to be
pertinent to and within the scope of the authorized preliminary and full
investigations described above. The purpose of collecting this information
appears to have been to track the location and future intentions of subjects of
the investigations or other persons who had participated in protest activity
relating to the Northstar project that included illegal acts. Greenpeace
members had already engaged in actual and attempted illegal acts, including
efforts to disrupt an energy facility by, for example, trespassing, boarding an oil
company barge, and chaining themselves to equipment, and they had
demonstrated an intention to continue to conduct future protest activities that
could include illegal acts similar to those attempted earlier. In addition, at
least one subject had reportedly expressed an interest in blowing up the Alaska
pipeline. Given these activities, the specific plans and intentions of individuals
involved in these plans as to future travel and future targets for protest were
pertinent to the investigation.

B. FBI Dallas Field Division Investigations of Individuals
Associated with Greenpeace - 2004 - 2007

In 2004 the FBI's Dallas Field Division opened a full investigation against
four individuals associated with Greenpeace relating to their protest activities
with respect to Exxon-Mobil (Exxon) and Kimberley-Clark Corporation. During
this investigation the FBI utilized a wide variety of investigative techniques,

132


Guidelines prohibit mail openings, electronic surveillance, and physical
searches during preliminary investigations.

Both the 1989 and 2002 Attorney Generals’ Guidelines described the
supervisory approvals required for various investigative techniques during a
preliminary inquiry. The DIOG describes the supervisory approvals currently
required for investigative techniques used during preliminary investigations.
See DIOG § 11.

C. ‘Full Investigations

The 1989 and 2002 Guidelines provided predication standards for
opening two types of full investigations: general crimes investigations and
criminal intelligence investigations (including terrorism enterprise
investigations).

1. General Crimes Investigations

The 1989 and 2002 Attorney Generals’ Guidelines contained identical
standards for opening a full investigation on a general crimes matter. The
Guidelines stated that the FBI may initiate a general crimes investigation
“when facts or circumstances reasonably indicate that a federal crime has
been, is being, or will be committed.” The Guidelines stated that the
“reasonable indication” standard is “substantially lower than probable cause.”
The Guidelines stated that an FBI Special Agent could take into account any
facts or circumstances “that a prudent investigator would consider,” and that
the standard requires “specific facts or circumstances indicating a past,
current, or future violation.” The Guidelines stated that “there must be an
objective, factual basis for initiating the investigation; a mere hunch is
insufficient.”

Under the 2008 Attorney General’s Guidelines, “predicated investigations
may be carried out to detect, obtain information about, or protect against
federal crimes or threats to the national security or to collect foreign
intelligence.” The core predication standard for investigations under the 2008
Guidelines is based on an articulable factual basis of a “reasonable indication”
that a federal criminal violation or threat to the national security “has or may
have occurred, is or may be occurring, or will or may occur... .”

Under the 1989 and 2002 Guidelines, the FBI supervisor authorizing a
full investigation was required to “assure that the facts or circumstances
meeting the standard of reasonable indication have been recorded in writing.”
Likewise, the DIOG requires that the “purpose of and predication for a full
investigation must be documented in the initiating EC.” See DIOG § 7.7.A.
Each of the Attorney Generals’ Guidelines stated that the FBI may use any
lawful investigative technique in an investigation and also provided further

10


involvement in an alleged conspiracy to

Although Harris was not a named subject of this other investigation, he was
suspected of involvement in the alleged conspiracy.

The case agent told the OIG that he recommended that the full
investigation be opened prior to Exxon’s upcoming May 24, 2004, annual
shareholder meeting because he was concerned about the subjects committing
the same kinds of criminal acts that they committed [He stated that
“[oJur mission in the counterterrorism field is to try and prevent these kinds of
things from happening.” He was unable to cite a particular federal criminal
statute that was at issue, stating:

I wasn’t picking out statutes to try and go. I was running it asa
counterterrorism investigation primarily. I saw pretty good facts
and hoped to prevent future acts. There was a possibility for
several charges. I do not know them off the top of my head but I
was looking at finding out if there was going to be any future
attacks.

The agent told us that he was concerned that the activists who
participated in the might resort to more violent actions such as
arson because
The case agent also stated that the “federal nexus” was the fact that most of
the persons traveled from out of state or from
foreign countries “to be part of this conspiracy to commit a crime.”

A week after the full investigation was initiated, the FBI added a third
subject, K. Lewis.!48 Lewis had also been

,!49 and had contacts with
the subject of another domestic terrorism investigation in a different FBI field
division. FBI documents filed in this investigation after the Exxon meeting
made no mention of any protests, crimes, or arrests in connection with the
meeting, although they continued to reference EE. On
December 6, 2004, the FBI Dallas Field Division learned about a

148 K. Lewis is a pseudonym.

149 The FBI case file does not contain any information that criminal activity occurred in
relation to the —TTEIE 1: also docs not sae it a retar

_ were filed as a result of the activities stemming from the

134


The CTD response was prepared by the CTD’s Executive Staff from a
draft written by the CTD’s International Terrorism Operation Section II (ITOS-
I), Iraq Unit. The Unit Chief at the time was Clarence Parkman.’> On May 16,
2006, Parkman received an e-mail from CTD’s Executive Staff requesting by
May 22 a response to Senator Leahy’s questions about the Merton Center.
Parkman forwarded the e-mail to Dorothy Andrews, an ITOS-II Intelligence
Analyst, and David Steele, her supervisor.’ Steele then forwarded the e-mail
to Kempler in the Pittsburgh Field Division, requesting that Kempler provide
anything he had on the matter by the next day. Steele copied Berry on the e-
mail to Kempler.

We interviewed Parkman before we received the e-mails described in this
section. Although Parkman’s name appeared on the CTD response, he told us
he was not in any way involved in preparing it. However, the e-mail exchange
and Andrews'’s testimony make it clear that the Unit Parkman supervised was
in fact responsible for preparing a draft of the CTD response. Moreover, the
database logs showed that minutes before Parkman received the first e-mail
from the CTD executive staff he conducted one search using the search term
“Thomas Merton Center.”

We determined that after Kempler received the e-mail request from the
CTD on May 16, he forwarded the e-mail to Crosetti, writing in the e-mail: “I
cannot answer these questions. I just received the documents. Can you
assist?”77 Less than 3 hours later on May 16, Crosetti responded by e-mail
that she had found from a search of FBI databases 38 documents that
referenced the Merton Center. She then noted for international terrorism
cases, “the one case that is highlighted” regarding the Merton Center is the
Person B case and provided case opening dates and its pending status.
Crosetti also stated in the e-mail response that she would provide copies of
each of the documents, including the most recent annual summary of the
Person B case, contained in a Letterhead Memorandum dated December 7,
2005. Her e-mail also stated:

There was no investigation of the [Merton Center], only notations in
various FBI program files re activities at the [Merton Center].
[Berry] had public access to the event at the Pavilion in Market
Square, downtown Pittsburgh, PA. No specific written tasking was

78 Clarence Parkman is a pseudonym.

78 Dorothy Andrews and David Steele are pseudonyms. Andrews had just been hired
by the FBI a few months before the e-mail and was previously a graduate student.

77 We found no indication that Kempler referred to the routing slip discussed above,
which was dated February 8, 2006 (just a few months earlier), and which suggested that the
reason Berry had attended the rally was because of Farooq Hussaini.

52


I. Facts.. .. 159
Il. OIG AmalySis ........cccccccceccceeseeceeeeeeeeeeceeeeeeeeeeeeescceseeeeeeeeeeeeeeeeeeseeeres 166
A. Predication for the Investigation.............cccccssesseeeseeeeeeees 166
B. Characterizations of the Catholic Worker ..........:...:0cccceeee 167
Cc. Classification as an Act of Terrorism Matter.............00:00c8 168

CHAPTER EIGHT: INVESTIGATIVE ACTIVITIES DIRECTED AT GLEN

MILNER... .. 169
I. FACtS...ccccccccecseeeeceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee® 169
Il. OIG Analysis.... 171
CHAPTER NINE: CONCLUSIONS AND RECOMMENDATIONS ............0065 173
I. Findings Regarding Individual Group6................::ccccsceeeeesseeeeeeees 174
A. Thomas Merton Center .............ceececeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeneees 174

1. Surveillance of the November 2002 Merton Center
Anti-War Event...
2. The 2003 Letterhead Memorandu .
3. Surveillance Relating to the 2003 Miami Free Trade
Area of the Americas (FTAA) Meeting .
4. Investigation of POG Members and Surveillance of

174
. 177

.. 178

First Amendment Activities.............cccccccceeeeeeeeeeeeeeeeee 178

B. People for the Ethical Treatment of Animals...........00.....0005 180
Cc. GYCENPCACE.... eee ccceeee cece cea eeeeeeeeeeseeeeeceesauneerrsesseaaaneeeeeeanen 182
D. The Catholic Worker .............:ccceeeeeeeeeeeeeeeeseeeeeeeeeeeeeeeeeees 183
E. Vandenberg Air Force Base .........ccccccccccccssceeceeeeeeeeeeeeeeeteeeeees 185
F. Glen Milner... 185
Il. Conclusions and Recommendations .................cccccceeceeeeeeeeeeeeeeeeeeee 186
A. Targeting for First Amendment ViewS..............:0ccceceeeeeeees 186
B. Predication .............eeeeeeeeeeeeeeeceeceeeeeeeeeeeeeeeeseeeeeeeeeeeenneeeeeeeenes 186
Cc. Collection and Retention of Information... 187
D. Characterizations of Groups .. 188
E. Classification as Terrorism Matters 188
F, OIG Recommendations .... 188


August 2004 and received a warning for failing to keep a proper distance from
a naval vessel.!93 However, we found no documents indicating that the FBI
was involved in responding to the 2004 protests.

Il. OIG Analysis

We concluded that the Seattle Field Division's action in seeking
information about potential threats to 2003 Seattle Seafair summer festival
was authorized under the FBI's special events planning authorities. The MIOG
Part 1, § 300-1(2), defines a “special event” as an event “which, by virtue of its
profile and/or status, represents an attractive target for terrorist attack.”
Given the government's heightened security concerns in the wake of the Iraq
war and the presence of a U.S. naval fleet in Elliot Bay we believe that the FBI
had grounds to designate the 2003 Seattle Seafair to be such an event. The
FBI classified this event as a SERL IV event, which under the MIOG is
“generally supported by state and local resources,” typically warranting “only
minimal support by the FBI field division.” MIOG Part 1, § 300-1(4).

The FBI's opening EC solicited potential threat-related information from
other FBI offices regarding any groups or individuals who may target the event.
The opening EC specifically stated that no intelligence had been gathered and
did not suggest any individuals or groups were suspected of terrorist activity or
posed any threat. Over the next few weeks, the FBI received information from
other law enforcement officials indicating that various protest groups might be
planning to impede the progress of U.S. Navy and U.S. Coast Guard vessels
upon their arrival into Elliot Bay or that various protesters might attempt to
secure themselves to the inside or outside of the Navy vessels. The case file
contains no evidence that the FBI conducted surveillance of any of the
advocacy groups or their members, although another agency did conduct
surveillance of a boat launching. Consistent with a SERL IV special event, only
minimal support by the FBI field division was provided, and this special event
was generally supported by state and local resources.

Our document request to the FBI sought all documents containing Glen
Milner’s name during our review period, and the only case file the FBI
produced containing any reference to Milner was the special events file for the
2003 Seattle Seafair.

There is also no indication in the FBI file documenting that the FBI
attended or monitored the Seafair event. The closing EC noted that no criminal

193 U.S. Department of Homeland Security, United States Coast Guard Hearing Office:
Activity No, 2220407.

171


(Rev, 08-28-2000)

b6
bIC

DECLASSIFIED BY 60309AUCtam/deg/mbh |

Bee

Precedence: ROUTINE
To: Pittsburgh

From: Pittsburgh
Squad 4

Contact: SA

Approved By?

Drafted By:

Ero aso)

Case ID #: Q 199-0 (Pending)

Title: Dx} IT Matters

Synopsis: asl To report results of investigation of Pittsburgh

anti-war activity.

A Derived From: G-3
Declassify On: Xl

Details: J The. Thomas MertosrCenter (TMC),
Pittsburgh, Pennsylvania, telephone: (412) 361-3022, —

9

FEDERAL BUREAU OF INVESTIGATION

Dater

11/29/2002

b6
bI7C

5125 Penn Avenue,

‘webpag

www. thomasmertoncenter.org, {8 a left-wing organization

advocating, among many poyitical causes, pacificism.

TMC holds daily leaflet distribution activities in
downtown Pittsburgh and is currently focused on its opposition to

the potential war with Iraq. According to these leaflets, Iraq
does not possess weapons of mass destruction and that, if the

United States invades Iraq, Sadam Hussien [sic] will unleash bio-

chemical weapons upon American soldiers.

: TMC advertises its activities on its webpage.
November 24, 2002, TMC coofdinated the 8th Annual An-Nass

(Humanity) Day at the Is¥amic Center of Pittsburgh, 4100 Bigelow
Blyd,, Pittsburgh, Pennsylvania 15213.

this event was Farooq Hus
telephone: . (412) 622-883

www
Nass Day was "to br:

‘The contact person for
ini of the Islamic Center, work

fi home telephone:
=pgh.or

email:
The purpose of An-
all people of Pittsburgh together in

understanding and respecting each other and also to inform them

_ spr

Te \4 533 Tag Ol, EC

about Islam and Muslims.”

on 01-22-2006

199-0734

on



attempts by trespassing and other ‘non-violent’ activities.!78 The FBI also
received information indicating that Greenpeace purchased two powered
paraglider aircraft “with the purpose of impeding the [National Missile Defense
Initiative] test launches.” Greenpeace, in alliance with one of the other groups
that was also named in the opening EC as a subject, called for the Vandenberg
trespassers to carry walkie-talkie radios and other equipment. This other
group’s website solicited protesters to engage in “nonviolent civil disobedience”
in order to interfere with the May 2001 launch.!79 The opening EC stated that
the solicited actions (to intrude on the base) at a minimum constituted
violations of federal law prohibiting illegal entry on military property, malicious
mischief, “and possibly” destruction of national defense materials.

The opening EC also contained the following statement, portions of which
were restated in other file documents:

The majority of people involved in protesting the [National Missile
Defense Initiative] are exercising legitimate and proper First
Amendment rights. The FBI has no interest in collecting
information derived from free speech. This is an investigation of
violations of Federal Law only. Extraordinary care will be taken
that no source or other government agent interferes with the free
speech of protestors. No information will be gathered from any
school records.

The FBI file contained other reports of information obtained from a
source detailing Greenpeace’s plans to impede the National Missile Defense
through the use of powered parachutes.

. The source expressed concern that the plans were
dangerous and, if attempted, could result in accidental loss of life. The source
provided additional information over several months detailing Greenpeace’s
plans. The source also stated that hundreds of groups would attempt to

178 An e-mail from the Air Force Office of Special Investigations (OSI) attached to the
opening EC stated that at the October 2000 protest, 200 people demonstrated at the VAFB’s
main gate and blocked traffic. The e-mail stated that 23 persons were cited for trespass and
released. The Special Agent who wrote the opening EC told us he believed the Catholic Worker
may have been involved in the October 2000 protest at the VAFB because movie actor Martin
Sheen was arrested for trespass at that protest. The Special Agent said he remembered there
was discussion at the October 2000 protest of Sheen starring in a movie about the Catholic
Worker and its founder.

179 The e-mail from the Air Force OSI attached to the opening EC stated that at the
previous launch date in July 2000, various groups announced their intention to disrupt the
launch and seven individuals hiked through the rough terrain of the base in an attempt to
disrupt the launch. The seven individuals were located and removed prior to the launch
window. They were charged with trespassing.

160


and contains no markings indicating supervisory approval for
entering into any FBI record keeping system. The Pittsburgh
Division where the document was located was unable to identify
the actual author or locate a file associated with this document.
The document could possibly have been a draft that was never
approved for filing. As a loose document it could be retrieved only
by someone with access to the computer on which it had been
saved.87

We interviewed the FBI stenographer whose computer contained the
LHM. In a June 2005 e-mail from the stenographer to the Chief Division
Counsel paralegal that coordinated the FOIA document collection for the
Pittsburgh Field Division, the stenographer identified a Pittsburgh Field
Division Special Agent as the author of the LHM. The stenographer told us she
believed she identified this agent as the author from a review of her logs that at
the time recorded information about her typing work, including the name of the
person making the typing request. However, she said that given the high
volume of her typing work, she had only a vague recollection of having typed
the LHM and did not have a current memory of who requested that she type it.

When we interviewed the agent that the stenographer identified, he
denied that he was the author of the LHM. He said that at the time of the
February 2003 LHM he was the Pittsburgh Field Division’s JTTF coordinator
and also worked on investigations in the domestic terrorism squad. The agent
said he believed it was possible the LHM may have derived from source
reporting that may have prompted an agent to review websites and obtain the
information in the LHM. However, he said he was not aware of any
investigations that were focused on or would have affected the Merton Center
in any way.

The LHM was titled “International Terrorism Matters.” The supervisor of
the JTTF’s international terrorism squad at the time of the LHM was Susan
Crosetti, the supervisor who approved Berry’s November 29, 2002, EC that is
discussed in the prior section. When we showed Crosetti the LHM, she told us
she did not know who drafted it but said she believed it may have been titled
international terrorism because the person who drafted it may have worked on
that squad. She said that the LHM would only have been distributed outside
the FBI with supervisory approval, and she said she did not sign it. Crosetti
told us after reading the LHM that she believes it was probably drafted to alert
local law enforcement about potential civil disobedience, what she
characterized as “situational awareness in regards to the safety of participants
and also the public.” She said that the language in the LHM stating that

87 FBI Oversight: Hearing Before the S. Comm. On Jud., 109' Cong. 126 (2006).

69


A. Terrorism Enterprise Investigations

Part 1, § 100 of the MIOG, reserves an investigative classification for
suspected domestic terrorist groups and incorporated the definition of a
Terrorism Enterprise investigation found in the 2002 Guidelines, discussed
above.

B. Act of Terrorism - Domestic Terrorist

According to the MIOG, the Act of Terrorism classification “was developed
in order to focus upon the specific criminal activity of the domestic terrorist,”
that is, specific criminal violations “on the part of a person or persons affiliated
with a domestic terrorist group.”38 For the first several years of our review
period, the MIOG, Part 1 § 266-1(1), stated that the Act of Terrorism
classification “shall include any investigation of a criminal act which involves
an individual or individuals affiliated with a domestic terrorist group.”

Effective July 9, 2003, the FBI changed this language to state that the
Act of Terrorism classification “shall include any investigation of a criminal act
which involves an individual(s) who seeks to further political and/or social
goals wholly or in part through activities that involve the use of force or
violence and violate federal law.”99

In a September 1, 2004, EC, the FBI Counterterrorism Division issued
new policies regarding investigative activities directed at domestic groups or
individuals who engage, at least in part, in exercising constitutionally protected
rights, such as protest activities. The EC required any Act of Terrorism matter
which is “directed at groups or persons who may be engaged in planning
criminal or terrorist activity in relation to their exercise of constitutionally
guaranteed freedoms” to be “reviewed for sufficient predication by the field
office Chief Division Counsel prior to the opening of the case.” “[I]n order to
ensure compliance with established directives and policies regarding
preservation of civil liberties,” the EC mandated the “continuous involvement”
of the Chief Division Counsel in the Act of Terrorism investigation “through
periodic consultation, at least semi-annually,” which must be documented in
the Act of Terrorism file. The September 2004 EC also stated that opening ECs
for this category of Act of Terrorism cases must fully set forth the predication
and document the Chief Division Counsel’s concurrence. Further, the EC

38 MIOG, Part 1, § 266-1(2).

33 These MIOG provisions suggest that the Act of Terrorism classification was, at least
for a time, reserved only for investigations of criminal acts by individuals. However, effective
December 30, 2004, revisions to the MIOG, Part 1, § 266-3(6), referenced Act of Terrorism
investigations as “directed at groups or persons who may be engaged in planning criminal or
terrorist activity..." (Emphasis added.)

24


The FBI's subsequent public statements about the incident were based on
inaccurate after-the-fact reconstructions of events, and claimed stronger
justification for the surveillance than was in fact the case.

Ill. Other FBI Activities Related to the Merton Center
A. The 2003 Pittsburgh Field Division Letterhead Memorandum
1. Facts

The FBI's FOIA release of Merton Center documents also included a
Letterhead Memorandum (LHM) dated February 26, 2003, and titled,
“International Terrorism Matters.”84 The LHM stated: “Pittsburgh Division
Joint Terrorism Task Force (JTTF) investigation has revealed the following
information of which your agency may already be aware.” It then provided
contact information for the Merton Center and stated that it “has been
determined to be an organization which is opposed to the United States’ war
with Iraq.” The LHM stated that a review of the Merton Center website revealed
a call for “[a]ll who desire peace and an end to the war” to gather at the Federal
building in downtown Pittsburgh “when the United States begins war with
Iraq.” The LHM quoted from the website the details of the anticipated protest
that was to include an interfaith prayer vigil at noon, and at 5 p.m. a rally “and
possible civil disobedience for those prepared to do this.”

Next, the LHM described national and regional anti-war protest events
promoted by another organization that had previously occurred on
February 15, 2003. The past event information appears also to have been
acquired from the Merton Center's website. The LHM concluded by stating that
this information was provided “for your use and any action deemed
appropriate.”

We were unable to determine the origins and author of the February
2003 LHM. We were also unable to determine to whom the LHM was sent, or
whether it was distributed outside the Pittsburgh Field Division. The LHM
bears no signature, initials, or routing information. It did not have a file
number assigned to it. The LHM was on an FBI form used to disseminate
information to other law enforcement agencies, but it did not identify its
intended recipients.8>

84 The LHM is attached as Appendix D. According to the FBI, an LHM is a formal
document typically used to provide information to an outside agency.

85 The LHM contains a disclaimer stating: “This document contains neither
recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to
your agency; it and its contents are not to be distributed outside your agency.”

67


CHAPTER SIX
INVESTIGATIVE ACTIVITIES DIRECTED AT THE
CATHOLIC WORKER MOVEMENT

I. Background

According to its website, the Catholic Worker movement began in 1933
as a newspaper published in New York City and edited by Dorothy Day, the
movement's founder. Today, the Catholic Worker movement is a collection of
an estimated 180 autonomous community groups located mostly in the United
States.!5? The Catholic Worker has no central organizational structure. It
operates hospitality houses, located mostly in urban area. Catholic Worker
volunteers and members, some of whom live in the hospitality houses,
commonly provide “soup kitchen” meals to the needy.

The Catholic Worker’s website states that it is a religious community
whose members may adopt “lives of voluntary poverty” and share a Christian/
pacifist philosophy derived from the Sermon on the Mount and certain
teachings of the Catholic Church. It has no official affiliation with the Catholic
Church. An article on its website described Catholic Worker activities as
follows:

Beyond hospitality, Catholic Worker communities are known for
activity in support of labor unions, human rights, cooperatives,
and the development of a nonviolent culture. Those active in the
Catholic Worker are often pacifist people seeking to live an
unarmed, nonviolent life. During periods of military conscription,
Catholic Workers have been conscientious objectors to military
service. Many of those active in the Catholic Worker movement
have been jailed for acts of protest against racism, unfair labor
practices, social injustice and war.

We selected the Catholic Worker for this review because it was one of the
groups that had been featured in the news articles that, beginning in December
2005, reported that the FBI had improperly monitored the activities of
advocacy groups. As noted in Chapter One, many of these news articles were
based upon information contained in document disclosures resulting from
Freedom of Information Act (FOIA) requests to the FBI.

157 In this section, we will refer to the Catholic Worker movement generically as “the
Catholic Worker,” or “Catholic Worker group(s)” and, where a local community forms the
context, by the local group’s name (such as “the Des Moines Catholic Worker").

143


Berry told the OIG that the EC was poorly written and did not accurately
portray the nature of his assignment that day. He stated that he was not busy
that day and when he asked Crosetti (his supervisor) for work she instructed
him to attend the event to identify any Pittsburgh Field Division terrorism
subjects, and that in advance of this event he reviewed photographs of those
subjects maintained in a binder in the office. He stated that after arriving at
the event he realized he was unable to recall any of the faces he had reviewed
with sufficient certainty to make any identifications. He photographed one
woman who appeared to him to be of Middle Eastern descent handing out
leaflets, and then returned to the FBI offices.

In assessing Berry's explanation for the surveillance, we attempted to
determine whether the FBI had a basis to believe that any terrorism subjects
would be present at the rally. We found no documents, witnesses, or other
evidence suggesting that the FBI had identified any particularized reason at the
time the anti-war rally took place to expect that any terrorism subjects would
be attending the event.

Berry told us that although Crosetti might have explained the basis for
her assignment to him, he could not recall what it was. Crosetti told us she
had no current recollection of the reasons for the surveillance. After reviewing
Berry’s EC during her interview, Crosetti pointed to the discussion in the EC
about a Merton Center-coordinated event at the Islamic Center of Pittsburgh,
and stated that the link between the Merton Center and the Islamic Center of
Pittsburgh might have been the basis for concluding that terrorism subjects
would be present at the anti-war rally. However, we did not find any
documents in FBI files suggesting that the FBI was aware of a link between the
Islamic Center and the Merton Center or the rally before the event. In fact,
Berry told us he learned that the Merton Center had coordinated the Islamic
Center event after he returned from the rally, when he visited the Merton
Center website. We found no pre-event FBI documents corroborating Crosetti’s
suggestion that the FBI's interest in the Islamic Center was any factor in the
decision to send Berry to the anti-war rally.®°

Although we found no corroboration for the notion that terrorism
subjects would be present at the event, we also found no evidence that Berry
was sent to the event to monitor the First Amendment activities of the Merton
Center or anyone else because of their anti-war activities. We found no
evidence that the FBI ever opened any kind of investigation in which the
Merton Center was a named subject. We also found no evidence that the FBI's

83 Berry's EC did not indicate that his purpose in attending the event was to identify
terrorism subjects and that it did not report his failure to do so. Berry said he did not know
why he omitted this information except that he was inexperienced at the time and that it was a
“poorly written EC” that “does not capture exactly what was going on.” Nevertheless, we found
that Berry gave a credible account of the circumstances of his presence at the event.

60


1. Special Events Classifications and Investigations

The FBI created a Special Events Readiness Level (SERL) rating system to
determine the amount of administrative and operational support it should
dedicate to special events. Each event is classified on a four-part scale based
upon several factors, including whether high-level U.S. and foreign government
officials will participate, whether previous terrorist incidents are associated
with the event or similar events, the degree of media attention, and the current
level of domestic and global terrorist activity. The system ratings range from
SERL I, the highest designation for special events requiring the greatest
resources to support it, to SERL IV, a designation for events that generally are
supported by state and local resources.24 The approvals for the various SERLs
also have a corresponding range, from certification by the Attorney General or
his designee (SERL I) to designation by the Special Agent in Charge (SERL IV).

In addition to its SERL rating system, the FBI has created a case
management classification code for counterterrorism activities at special events
— the 300A classification. FBI policy provides that this classification is
administrative and that no active criminal investigation should be conducted
under it.25 In the event a criminal act occurs at a special event, the MIOG
states that a separate investigative file should be opened under the substantive
violation.26

The MIOG, Part 1, § 300-1, contains several references to threat
assessments of a special event’s potential for a terrorist incident. Such threat
assessments should provide the information necessary to establish a SERL
rating, which in turn determines the level of federal resources to be deployed at
the special event.

In a May 14, 2004, EC from the FBI’s Counterterrorism Division (CTD) to
all FBI divisions, the FBI provided some guidance on the type of investigative
conduct it is permitted to engage in during its management of special events in
the absence of a predicate to open a preliminary inquiry or full investigation.
The EC reminded agents that Part VI of the 2002 Guidelines included authority
to conduct certain investigative activities, and that these activities “may be
quite useful in the context” of special events preparations. The EC stated this
authorized conduct included “attendance at public events and visiting public

24 For additional details and background on the FBI's special events mission, see DOJ
OIG report, A Review of the FBI’s Investigative Activities Concerning Potential Protesters at the
2004 Democratic and Republican National Political Conventions, (Apr. 27, 2006), at 4-7,
available at http://www.usdoj.gov/oig/special/s0604/final.pdf, hereinafter, “2006 Protesters
Report.”

25 MIOG, Part 1, § 300-1(5)(b).

26 Id.

17


have placed the EC in Crosetti’s inbox and that would have been the last time
he thought of it in 2002.

The 2-page EC was entitled “IT Matters.” The synopsis stated: “To report
results of Pittsburgh anti-war activity.” The EC did not identify any individual
who was a subject or person of interest in an FBI investigation. Nor did it state
that the Merton Center or any other group was the target of an investigation.5°
The EC began by providing the Merton Center’s contact information and
characterizing it as “a left-wing organization advocating, among many political
causes, pacificism [sic].”. Berry told us he came up with this characterization of
the Merton Center, and that he believes he based this characterization on the
leaflet’s content. The EC stated that the Merton Center held daily leaflet
distribution activities in downtown Pittsburgh and was then “currently focused
on its opposition to the potential war with Iraq.” It described the leaflets as
stating that, “Iraq does not possess weapons of mass destruction and that, if
the United States invades Iraq, Sadam Hussien [sic] will unleash bio-chemical
weapons upon American soldiers.”

The EC stated that the Merton Center advertises its activities on its
webpage and that 5 days earlier the Merton Center “coordinated the 8th
Annual An-Nass (Humanity) Day at the Islamic Center of Pittsburgh.” The EC
identified Farooq Hussaini as the contact person for the event at the Islamic
Center. The EC stated that Hussaini was affiliated with the Islamic Center,
and the EC provided his contact information. Berry told us that he obtained
this information from the Internet research he conducted after he returned to
the office on the day of the surveillance. He stated that he had never heard of
Farooq Hussaini before doing the Internet research for the EC after the rally.

The EC identified the Merton Center’s executive director by name and
stated that he had told a local newspaper columnist that “there are more than
a few Muslims and people of Middle Eastern descent among the regulars
attending meetings” at the Merton Center. Berry told us that he also obtained
this information from his Internet research after the surveillance.

The EC stated that Berry had photographed Merton Center leaflet
distributors during the event, and that the “photographs are being reviewed by
Pittsburgh IT (international terrorism) specialists.”. The EC concluded by
stating that one female leaflet distributor, who appeared to be of Middle
Eastern descent, inquired whether the Special Agent was an FBI agent and that
no other Merton Center participants appeared to be of Middle Eastern descent.

50 The EC was classified at the Secret level when it was created in 2002. It was
declassified during the FOIA process in 2006. A copy of the declassified version released to the
public is contained in Appendix B of this report.

34


The EC attached a news article that quoted the protest organizer
describing the incident, stating that the Catholic Worker group planned to
return to the base, and inviting others to join them. Although the Special
Agent said he did not believe that either the individual protesters or the
Catholic Worker Group were the subject of any FBI investigation, the EC was
sent to the attention of domestic terrorism supervisors in field offices
corresponding to the addresses of the eight detained protesters for whatever
action the field offices deemed appropriate. The EC was placed in two files in
the Omaha Field Division: a file relating to administrative matters and a
“control file” relating to terrorist enterprise investigations of suspected domestic
terrorist groups. Control files are administrative tools “established for the
purpose of administering specific phases of an investigative matter or
program.”!72 The EC was also placed in a control sub file that the Omaha Field
Division opened in 1997 to store intelligence information obtained from federal,
state and local law enforcement agency contacts who report on domestic
security/terrorism problems in the Field Division.!73

When we asked the Omaha FBI Special Agent how a nonviolent protest
resulting in the detention but not the arrest of some individuals could be
viewed as potential domestic terrorism matter, he stated that when the FBI
reports information or intelligence the act need not be serious and it need not
be a criminal act or domestic terrorism attack. He said the FBI's intent is to
create a database of intelligence in case “there is a planning or a process that's
going on with a certain group or individual that we can track that. We can
notice indicators if there is going to be an attack.” The Special Agent also
stated that he believed that evidence of nonviolent civil disobedience, while not
necessarily an indicator of terrorist activity, certainly indicates that a person is
“willing to break the law and to disobey an authoritative command not to cross
into military property” which he considered to be important information.

An attorney in the FBI’s Office of General Counsel who provides legal
support to the FBI’s Domestic Terrorism Program told us that an EC should be
filed in the most logically corresponding file or files and the decision on where
to place the EC is within an agent's discretion. The attorney told us that
placing an EC in a terrorism enterprise investigation file does not make it more
easily retrievable than it would if it were placed in a non-terrorism file. The
attorney also said that the individuals named in the Omaha Field Division EC
were not at risk of facing any greater consequences because they were

172 See MAOP, Part 2, § 2-4.1.5. FBI policy states that leads on occasion may be
assigned out of control files. Id.

173 The FBI policy addressing control files states that “[iJn circumstances where neither
an investigation nor an inquiry is warranted, the FBI may ascertain the general scope and
nature of criminal activity in a particular location or sector of the economy.” MAOP, Part 2, §
2-4,1.5(2).

154


Berry told us that he did not know the source of the statement in the
CTD response that he was sent to identify Person B because he had no
recollection of being sent for that specific purpose. He also said the first
sentence in the CTD response - that he was sent to the rally to identify and
conduct surveillance of Person B - was not “wholly accurate” because he was
sent to conduct surveillance on Pittsburgh subjects in general, not Person B in
particular. He also said that “in reality, I was sent, I think, to get me out of
[Crosetti]’s hair.” Berry held open the possibility that the information he
provided was used as the source of the first sentence in the CTD response
because he would have said he was sent to identify multiple subjects, and
Person B was one of the Pittsburgh subjects at that time. However, as noted
above, Berry told us he did not take a picture of Person B with him to the anti-
war rally and if he had been sent there to conduct surveillance on one
individual he would have taken a photograph of the individual.

Crosetti told us that she did not remember receiving a telephone call
from someone in FBI Headquarters regarding the Director's testimony, and if
she had received such a phone call, she would remember it because she would
have made certain to alert the Pittsburgh Special Agent in Charge.

We also showed Crosetti the May 16 e-mail chain containing the
communications with FBI Headquarters regarding the Director’s testimony.
She told us she viewed her e-mail as simply responding to Kempler’s request
for basic information and she believed he was coordinating the Pittsburgh
Division’s response to the CTD. Crosetti told us the May 16 e-mail chain did
not refresh her memory of any additional communications with Headquarters
on the topic.

Kempler told us the only inquiry he recalled receiving from another FBI
component was the one call from the National Press Office regarding the press
response. When we showed Kempler the May 16 e-mail chain, he told us it did
not refresh his recollection regarding any communications with the CTD on a
response to Senator Leahy’s questions.

As stated above, the e-mail that Crosetti sent on May 16 noted the
Person B case, the one international terrorism matter which referenced the
Merton Center. The December 2005 LHM that Crosetti referred to in the e-mail
contains a sentence indicating Person B had been observed at rallies protesting
the Iraq War and the National Security Entry Exit Registration. That sentence
appears almost verbatim in the CTD response to Senator Leahy’s question.
Sampson, the primary agent on the Person B case, worked in the Pittsburgh
Field Division until January 2007. He told us that he had no recollection of
ever being contacted by anyone from the Pittsburgh Field Division or from FBI
Headquarters regarding the November 29, 2002, surveillance activities

54


When the FBI describes an individual's exercise of First Amendment
rights in a record, 5 U.S.C. § 552a(e)(7) permits retention if it is expressly
authorized by statute, by the individual, or if the information is “pertinent to
and within the scope of an authorized law enforcement activity.” What
constitutes “authorized law enforcement activity” (a term not defined in the
Privacy Act) is a question that has been the subject of voluminous litigation.
As discussed in the next section, the Guidelines provide guidance for
interpreting this language with respect to FBI records.

B. Attorney General's Guidelines

The 2002 Guidelines referenced the law enforcement exception contained
in the Privacy Act, 5 U.S.C. § 552a(e)(7). The Guidelines defined “authorized
law enforcement activities” for purposes of the Privacy Act to “include carrying
out and retaining information resulting from the checking of leads, preliminary
inquiries, or investigations” as well as activities authorized in Part VI of the
Guidelines.22 However, the 2002 Guidelines stated that this list of activities
was not exhaustive, “and does not limit other authorized law enforcement
activities, such as those relating to foreign counterintelligence or foreign
intelligence.” The 2008 Guidelines contain a comparable provision. In sum,
according to the Guidelines any information that may be collected and retained
under the Guidelines is deemed to be “within the scope of an authorized law
enforcement activity” and therefore falls within the Privacy Act exception, 5
U.S.C. § 552a(e)(7).

The 2002 Guidelines also expressly authorized the FBI to disseminate
information acquired during the checking of leads, preliminary inquiries or full
investigations — including properly collected information about an individual’s
exercise of First Amendment rights - to other components of the Department to
Justice. In addition, the 2002 Guidelines authorized dissemination of such
information to other federal agencies or to state or local criminal justice
agencies when the information: (1) falls within the investigative or protective
jurisdiction or litigative responsibility of the agency; (2) may assist in
preventing a crime or the use of violence or any other conduct dangerous to
human life; (3) is required to be furnished to another agency by Executive
Order 10450; or (4) is required to be disseminated by statute, interagency
agreement approved by the Attorney General, or Presidential Directive.3° The

relates “only to the determination of tax liability, not to how [individual] has exercised his first
amendment rights.”)

29 The 1989 Guidelines did not address this provision of the Privacy Act.

30 The 1989 Guidelines authorized dissemination of information “during investigations”
but did not reference checking of leads or preliminary inquiries. The 1989 Guidelines
permitted dissemination to another agency based on the four circumstances identified in the
2002 Guidelines.

20


2006. The Dallas Field Division investigation did not result in the collection of
any evidence of potential criminal acts by the subjects, and several
shareholders meetings of the target companies took place during the pendency
of the investigation without incident.

In fact, the investigation was originally opened to prevent possible crimes
at the 2004 Exxon annual shareholder meeting. When we asked the case
agent why he kept the investigation open after the 2004 shareholder meeting
passed without incident, he stated that the fact that no criminal actions were
taken at one shareholder meeting did not compel the conclusion that no
criminal actions were being planned for the next.

Yet, under the circumstances we believe that, under the Attorney
General's Guidelines and FBI policies, the FBI should have closed the Dallas
investigation and removed the subjects from the VGTOF database sooner than
July 2007. The investigation was held open more than a year after the Dallas
Field Division’s last investigative activity. During that time the FBI continued
to collect information about the subjects’ travel and other activities pursuant to
the VGTOF database. We believe the FBI kept the Dallas investigation open
“beyond the point at which its underlying justification no longer existed,” which
failed to comply with the MIOG.

141


The “possibility” standard in the Attorney General’s Guidelines is a low
threshold to meet, and it appears to permit reliance on information and
inferences of the type used by the Pittsburgh Field Division to open its
preliminary inquiries. The FBI had information that could be interpreted to
indicate the possibility that Herman and Philips might be planning with others
to engage in activities that could include federal crimes such as injury or
depredation against property of the United States (18 U.S.C. § 1361),
destruction of an energy facility (18 U.S.C. § 1366)(the Bettis power plant), or
trespassing onto a military installation (18 U.S.C. § 1382). Therefore, although
we believe the factual predication for these inquiries was thin, we did not
conclude that the FBI violated the applicable predication standard. 10!

In short, due in substantial part to the fact that the only predication
required to open a preliminary inquiry was “information indicating the
possibility” of a federal crime, we did not find a violation of the predication
standard in the Attorney General’s Guidelines.!°2 However, these cases
illustrate the broad scope of the FBI's authority under the Attorney General's
Guidelines to open preliminary inquiries based on extremely limited
information, including information about the First Amendment expressions of
subjects. Moreover, because of the easily attainable and speculative
“possibility” standard, these cases also demonstrate the importance of the FBI
adhering to the Guidelines requirements that federal criminal offenses are
suspected and that such offenses be documented, along with the underlying
predicating facts, to minimize the risk of opening unpredicated investigations
that could improperly intrude upon and potentially have a chilling effect on
constitutionally protected activities and expression.

We next considered whether the FBI's decisions in July 2004 to extend
the Herman and Philips preliminary inquiries for 180 days complied with the
Attorney General’s Guidelines and FBI policy. FBI policy required that an
investigation with potential impact on First Amendment activity “not be

101 We believe the predication as to the third subject, Waterman, was weaker than for
the other two subjects. Like the other subjects, Waterman was identified in the opening EC as
“dba” the POG. However, the only connection between Waterman and the POG stated in the
opening EC was that Waterman had been seen with Philips at a meeting of a different group
{not POG), in another city, that was also planning to attempt to stop the Miami FTAA meetings
by means that the group anticipated might result in arrests. Although there were other facts
developed in a different investigation potentially linking Waterman to an anarchist group other
than the POG, the facts linking Waterman to the POG or Pittsburgh were extremely thin. The
Pittsburgh investigation did not relate to the other anarchist group. Although the FBI Field
Division in the other city had an open investigation relating to the other anarchist group,
Waterman was not a named subject of that investigation. Accordingly, we question whether
there was a basis for FBI Pittsburgh open a preliminary inquiry as to Waterman.

102 By contrast, we do not believe that adequate predication ever existed to open a full
investigation of these subjects under the “reasonable indication” standard.

87


CHAPTER EIGHT
INVESTIGATIVE ACTIVITIES DIRECTED AT GLEN MILNER

We examined the FBI's investigative activity relating to Glen Milner, an
anti-war activist. Media accounts based on documents released under FOIA
indicated that the FBI had monitored the First Amendment activities of several
anti-war groups and individuals, including the Ground Zero Center for
Nonviolent Action (Ground Zero) and one of its members, Milner. Milner was
described in a Seattle Post-Intelligencer article as a “Quaker peace activist” who
was “under watch” for protest activities carried out at the 2003 Seafair festival
in Seattle, Washington. The article detailed various reports released from FBI
files. As detailed below, although the FBI utilized its special events authorities
in connection with the Seafair, most of the information in FBI files was
collected by other agencies.

I. Facts

The Seafair, the largest festival in the Pacific Northwest, is an annual 5-
week festival featuring various events in July and August. One of the annual
events included in Seafair is a “Fleet Arrival,” in which a Navy flotilla sails into
Seattle’s Elliott Bay. In 2003, the Fleet Arrival was scheduled for July 30.

According to the Ground Zero website, “Ground Zero Center for
Nonviolent Action offers the opportunity to explore the meaning and practice of
nonviolence from a perspective of deep spiritual reflection, providing a means
for witnessing to and resisting all nuclear weapons, especially Trident. We seek
to go to the root of violence and injustice in our world and experience the
transforming power of love through nonviolent direct action.”!9! In 2003,
Milner was elected to Ground Zero’s Stewardship Council, which defines the
policies for the organization and oversees all of its programs, assets, and
finances.

According to the Seattle Field Division, on July 7, 2003, the Special
Events Management Unit at FBI Headquarters designated the Seattle Seafair as
a SERL IV special event. On that same date, the special events case agent in
the FBI's Seattle Field Division sent a query to all FBI field offices asking them
whether they had any information on potential threats against the Seattle
Seafair.

The Seattle Division began working with other federal, state, and local
law enforcement agencies to develop information regarding Seafair. Relying
primarily on publicly available information from antiwar websites, the

191 http: //www.gzcenter.org/aboutgz.htm

169


inaccurate assertion in the EC that Pittsburgh Field Division became interested
in Hussaini as a result of evidence developed in the Dallas investigation.

Fritsch acknowledged that he drafted the routing slip and that Kempler
edited it. The routing slip identified Berry as the source of the information for
the routing slip, although Berry told us he was not the source and denied he
was sent to identify Farooq Hussaini. Based on the database logs, we believe
that Crosetti also had a hand in generating the version of events contained in
this document. The version of events given in the routing slip presented the
surveillance in a manner that was different from, and more favorable to, the
FBI Pittsburgh Field Division than what had actually occurred. However, we
were unable to determine with certainty the original source of the false account
contained in the routing slip, primarily because the witnesses told us they
could not recall the underlying events.

b. FBI Interpretation of the Facts

After reviewing a draft of this report, the FBI acknowledged that the
version of events stated in the routing slip was inaccurate, but the FBI argued
that the inaccuracies were not intentional.

According to the FBI's suggested interpretation, when Kempler found the
November 2002 EC in connection with the FOIA response, he asked SSA
Crosetti to provide context for the EC. Crosetti responded by conducting a
database search of Faroog Hussaini, believing the surveillance might have been
related to him. Crosetti provided a stack of 25 ECs resulting from her database
search to Fritsch, which according to the FBI “implied to any reasonable
person that the basis of the surveillance could be found in them.” According to
the FBI, Crosetti did not tell Fritsch that she had no recollection of the
underlying facts. Fritsch then created an erroneous reconstruction of the
events surrounding the November 2002 surveillance based entirely on the
stack of documents provided by Crosetti (which included the Dallas EC), but
Fritsch never showed his reconstruction to Berry or Crosetti. The FBI asserts
that although Fritsch’s failure to show the routing slip to Berry or Crosetti was
not a “best practice,” the errors in the routing slip were accidental.

For a variety of reasons, we were not convinced by the FBI's explanation.
First, the available evidence, while somewhat contradictory, does not support
the FBI's characterization of the sequence of events. The routing slip itself
identifies Berry as the sole source of the information (a claim that Berry
vehemently denied to the OIG) but it makes no mention of a reconstruction of
events from historical documents. Fritsch told us that if he had relied on the
database search or on information from Crosetti in drafting the routing slip he
would have said so in his draft, and the draft does not say that. In addition,
Kempler specifically denied that the documents Crosetti provided as a result of
her database search provided any useful context for explaining the November

Al


Pittsburgh, POG members discussed plans for “direct action,” including
vandalism, against the Republican National Convention to be held that year in
New York City. The information indicated that the POG intended to employ the
“padded bloc” tactic and engage law enforcement at the Republican National
Convention.

In an EC dated July 9, 2004, the case agent for the Herman preliminary
inquiry obtained an extension of the preliminary inquiry. The EC described
Herman as an active participant in “POG’s anarchist activities and has been
observed directing protest activities of ‘direct action’ operatives wearing black
clothing and face coverings.” The EC stated that these actions were primarily
criminal mischief during protests, but were “viewed as distraction activities for
possible more significant ‘actions.” The EC stated that many POG members
are affiliated with university campus activities, and that “several are students,
and regularly targeted multi-million dollar facilities that are University owned
and contracted by the U.S. Government.”

In an EC dated July 30, 2004, the case agent working on the preliminary
inquiry of Philips and Waterman obtained an extension of the preliminary
inquiry. The EC stated that the FBI had learned that Philips had used an alias
and had engaged in “limited criminal activity” with other POG members,
although it did not specify what that criminal activity was. The EC also
referenced a Seattle Field Division EC that had identified Philips as one of
many individuals arrested for protest activities during the World Trade
Organization (WTO) Ministerial Conference in Seattle on November 28 to
December 4, 1999.

Further information gathered for the FBI file during August and
September 2004 indicated that Waterman had no criminal history but was
known to the Chicago Field Division to be associated with the anarchist
movement. However, local law enforcement officials in Pittsburgh indicated
that they had not encountered Waterman during their investigations of local
anarchists.

In October 2004, the case agent in the Herman preliminary inquiry
began operating a confidential informant in connection with collecting
information about members of the POG. Because of the unique issues raised
by this activity, we address it separately in the next section of this report.

The FBI file contains a document from the Pittsburgh Police Department
in November 2004 that informed the FBI that Philips was arrested the previous
day in Pittsburgh for disorderly conduct during an anarchist rally. Philips
allegedly attempted to prevent an officer from arresting another protester who
had set fire to an American flag on the street.

82


CHAPTER NINE
CONCLUSIONS AND RECOMMENDATIONS

The Office of the Inspector General (OIG) initiated this review in response
to congressional inquiries that raised concerns over whether the FBI had
improperly targeted domestic advocacy groups for investigation based upon
their exercise of First Amendment rights. The congressional inquiries were
prompted by media reports describing FBI documents released by the FBI
pursuant to Freedom of Information Act (FOIA) requests. In a congressional
hearing, Senator Leahy had questioned FBI Director Mueller about allegations
the FBI had “targeted Americans based on their exercise of First Amendment
rights,” and Director Mueller stated that he would welcome an investigation by
the OIG.196

This OIG review examined FBI investigative activity relating to five
advocacy groups and one individual who were mentioned in the news articles
and congressional inquiries related to the release of FBI documents. Our
review addressed FBI activities over a 6-year period, from January 2001 to
December 2006, related to: (1) the Thomas Merton Center of Pittsburgh,
Pennsylvania; (2) People for the Ethical Treatment of Animals (PETA); (3)
Greenpeace USA; (4) the Catholic Worker; (5) Glen Milner, (an individual); and
(6) the Religious Society of Friends (the “Quakers”).!97 In general, we addressed
the following issues raised by the FBI documents relating to these groups:

e Whether the FBI targeted the groups or their members because of
their First Amendment expressions;

¢ Whether investigations of the groups or individuals affiliated with
them were adequately predicated under applicable Attorney
General's Guidelines and FBI policies;

¢ Whether the FBI improperly collected or retained information
about the First Amendment activities of the groups or their
members;

e¢ Whether FBI documents contain characterizations of the groups or
their members based on their First Amendment views; and

e Whether the FBI improperly classified investigative matters relating
to these groups or individuals as terrorism matters.

196 FBI Oversight: Hearing Before the S. Jud. Comm. 109th Cong. 14 (2006).

197 Our review period encompasses most of the years covered by the FOIA requests and
ends in 2006, when the OIG received the Congressional inquiries.

173


APPENDIX D


the person of interest would be present. An accurate response would have
stated that “no such earlier memos exist.”8?

B. OIG Analysis

In this section, we first analyze the FBI’s conduct in attending the anti-
war rally and creating and retaining the November 2002 EC. We then analyze
the FBI's inaccurate and misleading descriptions of the matter in statements to
the public and in response to Congressional questions.

1. Issues Raised by the FBI’s Attendance at the Anti-War
Rally

The FBI’s conduct in sending an agent to conduct surveillance at the
Merton Center anti-war rally, and the agent’s recording of information in an
EC, raised several issues: (1) whether the FBI was monitoring the Merton
Center or its members because of the Merton Center’s anti-war advocacy; (2)
whether the FBI's attendance at the event was authorized under the Attorney
General Guidelines; (3) whether the agent’s follow-up Internet research
regarding the Merton Center and associated persons and organizations was
authorized under the Attorney General Guidelines; and (4) whether the
retention of information about the First Amendment activities of the Merton
Center in the EC complied with the Attorney General Guidelines. We address
each of these issues in turn.

a. Monitoring of First Amendment Activities

The synopsis line of the November 2002 EC prepared by Special Agent
Berry following his attendance at the Merton Center anti-war rally stated: “To
report results of investigation of Pittsburgh anti-war activity.” This synopsis,
together with other facts set forth in the EC, raised questions regarding
whether the FBI was monitoring the First Amendment activities of the Merton
Center or other protesters because of their opposition to the Iraq war.

We found the November 2002 EC extremely troubling on its face. It
described no legitimate purpose for the FBI to attend the event. It created the
strong impression that the FBI’s reason for being there was to monitor the First
Amendment activities of persons with anti-war views. It supplied no evidence
or even suspicion that any criminal or terrorist element was associated with
the Merton Center or likely to be present at the event.

82 However, the Office of Congressional Affairs attorney who prepared the response to
Congress told us that she would not have confirmed or denied the existence of an earlier
investigative memorandum because whether such a document exists is an aspect of a pending
investigation that the FBI does not publicly reveal.

59


In an EC dated January 20, 2005, the FBI closed the preliminary inquiry
on Herman. The EC stated that Herman had participated in a “direct action”
protest but was not involved in any known criminal activity during the
investigative period. The EC stated that Herman was not observed to be
present during many of the local direct action protests and appeared to be
“minimizing his protest activities.”

In an EC dated January 26, 2005, the FBI closed the preliminary inquiry
on Philips and Waterman. The EC stated that Philips had “been involved in
criminal activity, mainly in connection with his activities with the [POG], and
connected to Civil Disobedience.” The EC also stated that no information had
been found to indicate that Waterman lives in or routinely visits Pittsburgh.
The EC stated that the all logical investigation had been completed.9”

c. Use of a Confidential Informant

Beginning in JJ 2004, the FBI utilized a confidential informant to
collect information regarding members of the POG who participated in meetings
at a. The case agent for the Herman preliminary inquiry
developed this informant, and told us that FBI agents are generally expected to
develop a “network of sources.” The case agent, who had recently arrived at
the Pittsburgh Field Division from another FBI field office, said that his “grace
period” was coming to an end and that his supervisor was asking about his
source activity. The agent told us he recruited
source. This source was a

. According to the agent, this source was “willing to, at my behest, try
and find out what he could about POG criminal activity.”

At the time the source was recruited, he had charges pending against
him for es. In one e-mail from the
source to the case agent during the time he was acting as a source, the source
described his efforts to obtain an extension on “my court date,” and asked if
the case agent had contacted a particular officer connected to the case. The
case agent told us that he may have exchanged phone calls with the officer
“after the whole matter was resolved.” The case agent said that he had not
made any promises to the source about taking care of the court case, and that
the source’s arrest “had absolutely nothing to do with [him] being my source.”

97 In a January 28, 2005, EC, the case agent for the Philips preliminary investigation
discussed an Internet article that described his attempt to interview Philips. The article named
the case agent and alleged that he entered “two other normally locked doors” of Philips’s
apartment building to leave a note for Philips to call him. The case agent explained in the EC
that he and another agent opened one unlocked exterior door and left the note on Philips’s
apartment door. The article, which was attached to the EC, stated that the apartment was the
home of a Merton Center intern and staff member.

83


On October 6, 2003, the Norfolk Field Division changed the status of the
Lewis investigation from “pending” to “pending inactive” because “other
investigative initiatives” involving Lewis — the preliminary inquiry on PETA as a
terrorism enterprise — had been initiated. Nearly 2 years later, on June 29,
2005, the Norfolk Field Division closed the Lewis investigation because “no
current evidence indicates that [Lewis] is presently involved in any terrorist
activity[.]”

We determined that Lewis was entered into the VGTOF watchlist on
February 1, 2002, several months before he was officially identified as a subject
of an investigation. Our review of case files identified several instances of the
FBI collecting information about Lewis's activities as a result of his bein;
entered into VGTOF. For example, in

company targeted by PETA for alleged cruelty to animals. The FBI also
received information about a 2004 international flight and 2005 domestic flight
Lewis took.

On March 15, 2005, the Norfolk Field Division submitted paperwork to
FBI Headquarters to request his removal from the database that could cause
him to be subjected to additional inspection during air travel. This action did
not remove Lewis from VGTOF. The FBI told the OIG that Lewis in fact was
removed from the VGTOF watchlist, although it could not locate the paperwork
or identify when this occurred.

2. OIG Analysis

We concluded that the FBI did not violate the Attorney General’s
Guidelines when it opened an investigation on Lewis in June 2002. We believe
it is a close question whether there was a sufficient basis to open a full

investigation rather than a preliminary inquiry. The opening EC identified
Lewis —— in PETA who demonstrated a willingness to

engage in unlawful destruction of property and who had recently made
rovocative statements in support of violent action
directed at various animal enterprises

|. However, Lewis's only
conviction occurred in , nearly a decade before the Norfolk Field Division
case was opened. We question whether the information available at the time
the case was opened provided a “reasonable indication” of a violation of federal
law that would support initiating a full investigation.

While investigative steps used by the FBI were permissible under the
applicable guidelines both for preliminary inquiries and full investigations,
opening a full investigation rather than a preliminary inquiry affected the

118


APPENDIX A


The second incident the EC described involved a

The EC concluded that based on these activities, together with the fact
that Peterson was
a preliminary inquiry was
warranted “to determine the extent of Peterson’s criminal activities.”

Similar to other matters we describe in this chapter, the Norfolk Field
Division
. According to the investigative file, the Norfolk
Field Division determined that Peterson was considered
at which, according

to an FBI source, instruction was provided about making bombs and
incendiary devices.

The Norfolk Field Division administratively closed the preliminary
investigation of Peterson on February 24, 2004. The closing EC noted that “no
further investigative leads or actions have taken place since the expiration of
the preliminary investigation status,” which was May 23, 2003, 180 days after
the case was opened.

Peterson was placed on the VGTOF watchlist on February 1, 2002,
several months before she was officially identified as a subject of the
preliminary investigation. On June 14, 2007 - over 3 years after the
investigation was closed - the Norfolk Field Division submitted paperwork to
FBI Headquarters requesting that Peterson be removed from VGTOF. Our
review of case files identified multiple alerts the Norfolk Field Division received
from 2003 to 2005 relating to Peterson’s domestic and foreign air travel. In
some instances, the FBI collected copies of Peterson’s travel documents; in
others, no information was collected other than her flight information.

2. OIG Analysis

We believe that, under the Attorney General’s Guidelines, the information
contained in the opening EC did not provide a sufficient factual basis to open a
preliminary inquiry on Peterson in August 2002. Unlike in the Lewis case,
there is no indication that Peterson made statements advocating force or

121


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28


criminal or terrorist activity. Therefore there was no basis to retain the
information about the public rally that went beyond noting “the date, time and
place visited and that the visit had negative results.”

We also considered whether the FBI Omaha Field Division complied with
applicable policies in retaining the First Amendment information from the
umbrella group's website, describing the purpose of the counter-conference,
and identifying the groups that had endorsed it. The MIOG, Introduction, § 1-
4(4), provided: “Information concerning the exercise of the First Amendment
rights should be made a matter of record only if it is pertinent to and within the
scope of the authorized law enforcement activity.” We concluded that at the
time information about the participation of Catholic Worker and other groups
was originally recorded and disseminated, it was pertinent to the FBI’s
authorized activity in assessing the potential threat of terrorist activity in
connection with the conference, as discussed above.!7!

Cc. The FBI Recorded Information Provided by other
Organizations Regarding the First Amendment Activities of
Catholic Worker Organizations or their Members

We found two incidents in which the FBI recorded and retained
information provided by another organization regarding peaceful incidents of
civil disobedience involving the Catholic Worker or its members.

1. Offutt Air Force Base Protest
a. Facts

In 2004, a Special Agent in the FBI’s Omaha Field Division distributed an
EC based on information provided by the Air Force that described an anti-war
protest by Catholic Workers at the Offut Air Force Base. The EC recorded the
names, social security numbers, and contact information for eight protesters
who were briefly detained (but not arrested or charged) after peacefully
trespassing on base property. We found no indication that the FBI was
involved in surveilling the protesters at the time of the incident; the FBI merely
recorded facts about the incident provided by the military after the fact.

171 Under the 2008 Attorney General's Guidelines, the FBI would be authorized to
attend rallies protesting the conference if it were held today, as part of an assessment. Any
information obtained from such an assessment could be retained because the 2008 Attorney
General's Guidelines do not have a provision analogous to the 2002 Guidelines, Part I.A.2,
which stated that no information obtained from attending a public event shall be retained
unless it relates to potential criminal or terrorist activity. However, as noted in Chapter Two,
the DIOG states that if an assessment results in no sufficient basis to justify further
investigation of an individual or group, the records must be clearly annotated to state that the
individual or group identified during the assessment does not warrant further FBI
investigation. See DIOG § 5.13.

153


the EC, given that the information did not relate to potential criminal or
terrorist activity.

Moreover, we concluded that the FBI’s statements to Congress and the
public about the reason the agent attended the event were inaccurate and
misleading. As noted above, the FBI stated in a press response and Director
Mueller stated in Congressional testimony that the FBI’s surveillance at the
event was based on specific information from an ongoing investigation and
conducted to identify a particular individual. These statements were not true.
We found no evidence that the FBI had any information at the time of the event
that any terrorism subject would be present at the event. Instead, we found
that FBI personnel created two inconsistent and erroneous explanations of the
surveillance of the anti-war rally, stating inaccurately that the surveillance was
a response to information that certain persons of interest in international
terrorism matters would be present.

The first version appeared in a document created by the Office of the
Chief Division Counsel in the FBI Pittsburgh Field Division in early 2006, in
the course of preparing a response to a FOIA request. This version eventually
became the basis for the press response issued by the FBI and in turn for
Director Mueller’s Congressional testimony. In this version, the surveillance
was supposedly directed at Farooq Hussaini, an individual living in Pittsburgh
who had become “of interest” to the FBI based on evidence developed in a
terrorism investigation in a different field office. However, we determined that
this version of events was not true. First, the agent who attended the rally
denied this version of events. Second, we found no evidence that Hussaini had
been identified by anyone in the FBI's Pittsburgh Field Division as a person of
interest at the time of the rally. Neither the agent, his supervisor, nor anyone
else in the Pittsburgh Field Division was even aware of the evidence developed
in the other field office investigation at the time of the rally. Moreover, the
agent who attended the rally told us that the chance that the evidence
developed in the other field office actually related to Farooq Hussaini in
Pittsburgh was “almost non-existent.”

We recognize that the possibility exists that the inaccurate statements in
this first version of events were inadvertent. However, we believe it is more
likely that this version reflected an effort to state a stronger justification for the
surveillance. Several Pittsburgh Field Division employees may have had a
hand in creating this inaccurate document, but we were not able to determine
with certainty who was specifically responsible for creating this inaccurate
version of events.

We also determined that later the FBI created another different,
inconsistent, and also inaccurate explanation for the FBI’s surveillance of the
Merton Center rally in response to follow-up inquiries from Senator Leahy.
This second inaccurate version is contained in a document prepared by the

176



than minimally intrusive, or the references to a group contained in FBI
documents presented unique issues.

Chapter Nine summarizes our findings regarding the individual groups
and sets forth our overall conclusions and recommendations.®

6 The FBI reviewed a draft of this report and submitted a formal response, which is
attached as Appendix A.


The information about Kimberly-Clark, along with other past information
in the case file, led to the case agent’s request, on March 3, 2005, to his
supervisor to install a pole camera es ::: The case agent was
concerned that the subjects planned to disrupt shareholder’s meetings
scheduled for Kimberly-Clark and Exxon in April and May, 2005. The case
agent said he therefore requested the installation of a pole camera
— which he believed served as a meeting and preparation
location for individuals involved in illegal activity. The agent stated that this
technique would be useful in identifying additional subjects and vehicles at the
residence. The request was granted and the pole camera was installed on
April 21, 2005. The FBI installed two pole cameras for
the purpose of determining the pattern of activity in
preparation for the upcoming Exxon and Kimberly-Clark annual meetings. The

case agent stated that nothing significant was learned as a result of the pole
cameras. !53 -

On March 25, 2005, the case agent requested and obtained the
assistance of the Special Operations Group (SOG) to conduct surveillance of
Harris’s residence. The case agent told us that the FBI had learned about a
threat to bomb the World’s Best Technology conference being held in Arlington,
Texas. The case agent stated that because this conference was close in time to
the Exxon and Kimberly-Clark annual meetings, he was concerned that the
same subjects were involved in the threat. When further investigation revealed
that the individual making the bomb threats was not related to any of the
subjects of this investigation, a separate investigation was opened and
surveillance of the target residence was discontinued.

On July 11, 2007, 3 years after the initiation of the full investigation, the
FBI closed the matter. FBI documents contain no evidence or allegation that
any of the subjects of the investigation disrupted the operations of Exxon or

Kimberly-Clark during this 3-ye eriod. The closing EC noted that the target
residence (the residence of Harri:
The closing EC stated

that the information collected on the subjects was being provided to the FBI
field office for any action deemed appropriate.

All of the subjects were placed on the Violent Gang and Terrorist
Offender File (VGTOF) database at the time they were named as subjects. The

182 Also referred to as a closed-circuit television camera, a pole camera is typically
installed on a utility pole outside the target residence or place of business allowing investigative
agencies to observe and record activities in areas where individuals have no expectation of
privacy.

153 The pole cameras were removed some time prior to the investigation being closed in
2007, but we were not able to determine the precise date.

136


Il. Specific FBI Activities Relating to the Catholic Worker

The FBI's investigative activity with respect to Catholic Worker groups’
and their members’ protest activities during the period of our review fell into
three general categories: cases in which a local Catholic Worker group or its
members were made the subject of an FBI investigation, cases in which the FBI
investigated the activity of a local group or its members in connection with a
“special event,” and cases in which the FBI retained records of the activities of
a local Catholic Worker group or its members based on reports submitted by
other agencies.

A. Investigations in Which Catholic Worker Groups or Their
Members Were Made the Subject of an FBI Investigation

We found three cases in which the FBI opened preliminary inquiries or
full investigations in which local Catholic Worker groups or their members were
named subjects or a member was an unnamed subject in connection with
protest activity. We discuss below the two cases in which Catholic Worker
members were named subjects or a member was an unnamed subject.

Because the third case was an investigation of the Catholic Worker group,
Greenpeace, and others, we discuss that case in Chapter Seven.

1. Milwaukee, WI Military Recruiting Station - Milwaukee
Field Division

a. Facts

In an Electronic Communication (EC) dated June 18, 2003, the FBI
Milwaukee Field Division opened a full investigation on unknown subject(s) for
an act of vandalism that occurred at a military recruiting station near the
campus of the University of Wisconsin, Milwaukee. According to the opening
EC, in the early morning hours of June 17, 2003, unknown subject(s) damaged
three large glass panel windows and shattered the glass front door of the
building. In addition, the subjects threw four or five Christmas ornaments
filled with red paint into the recruiting station, causing further damage. The
EC did not state whether any military personnel or other persons were in the
building at the time of the incident. Army personnel reported that it appeared
nothing had been taken from the office. The EC also stated that an
anonymous e-mail sent to a local newspaper and TV news station claimed
responsibility and asserted the action was taken on “behalf of the people of Iraq
who suffered under Saddam Hussein and now suffer under the United States.”
The FBI opened the investigation under the investigation classification that is
designated for acts of terrorism by domestic terrorists occurring on government
reservations.

According to an EC dated October 24, 2003, during the investigation a
witness to the vandalism identified an individual, a member of the Casa Maria

144


information that the Little Flower Catholic Worker and the Prince of Peace
Ploughshares consisted of the same membership using different group names.

We found no indication in the records provided by the FBI that there
were any criminal acts or other disturbances at the event. FBI records
provided to us did not contain any description of the First Amendment
activities of the Catholic Worker group during this event.

b. OIG Analysis

The FBI's MIOG, Part 1, § 300-1(2) defines a “special event” as an event
“which, by virtue of its profile and/or status, represents an attractive target for
terrorist attack.” The FBI considered the commissioning of the USS Ronald
Reagan to be such an event. Having designated the commissioning as a special
event, the Norfolk Field Division was authorized to collect information relevant
to assessing the threat of a terrorist incident at the event, including the
solicitation of background and threat information from other FBI offices about
individuals associated with groups known to have previously protested at
similar events. !65

2. Strategic Command Conference, Offutt Air Force Base
a. Facts

The FBI Omaha Field Division distributed an EC dated July 7, 2003, that
sought threat information from other FBI offices in connection with a
conference at the Offutt Air Force Base regarding U.S. nuclear policy sponsored
by the United States Strategic Command (the “Stockpile Stewardship
Conference”). The EC stated that the purpose of the conference was to evaluate
various aspects of U.S. nuclear policy and that it would be attended by 126
participants from various government agencies. According to the EC, the
Offutt Air Force Base is the home of the United States Military Strategic
Command (STRATCOM), the command center that oversees all U.S. strategic
nuclear weapons. In an EC dated July 21, 2003, the FBI designated the
Stockpile Stewardship Conference a SERL IV event.

The EC stated that the Air Force had requested the FBI to provide threat
information regarding “any individuals or groups who may target this event to
determine the level and method of force protection needed at the air base.” The
EC stated that an anti-war advocacy group had posted on its website its
intention to hold a “counter-conference,” including rallies and protests to be
held over the course of 3 days in Omaha culminating with a demonstration at
the base. The group described itself as “a coalition of concerned citizens,

165 See generally MIOG, Part 1, § 300-1.

150


the person or persons intentionally drafted a version of events in the routing
slip that provided a stronger justification for the surveillance of the Merton
Center anti-war rally than was in fact the case.

5. FBI Headquarters Issues Press Response (March 2006)

The release of the Merton Center documents to the ACLU in February
2006 generated significant media interest and resulted in questions to the FBI
regarding the documents and the FBI's investigative interest in the Merton
Center. On March 14, 2006, the FBI issued a “press response” that addressed
the Special Agent’s surveillance at the Merton Center anti-war rally and the
November 2002 EC that resulted from this surveillance.®° The FBI press
response stated, in relevant part:

Some FBI documents recently released to the ACLU under the
Freedom of Information Act refer to an FBI Agent taking
photographs at a public anti-war event in Pittsburgh in November
2002.

While the Agent was acting with all appropriate investigative
authorities, it is important to emphasize some points not evident in
the publicly released documents. First, the photos taken at the
November 29, 2002, event were taken as a direct result of
information provided to the FBI, related to an ongoing
investigation. Specifically, the photos were compared with
photographs of a person under FBI investigation. Once that
comparison was made, and determined to be of no value to the
ongoing investigation, the photos taken at the event were
destroyed.

ek Ok

A related internal communication that was also released [the
November 2002 EC] was written in a manner that suggests it is a
report on the activities of an anti-war group. Sucha
characterization would be factually misleading. The Agent was not
in attendance at the event for the purpose of monitoring this
group’s political activities. As noted above, he was present for the
sole purpose of determining the validity of information he received
from another source establishing a link between an on-going

60 Appendix C contains a copy of the press response. According to the FBI's Assistant
Director for the Office of Public Affairs, a “press response” is usually distributed to a reporter
who initiates an inquiry about the matter addressed in the response, in contrast to a press
statement that the FBI proactively releases to many media outlets.

43


We conducted over 40 interviews of FBI field office and Headquarters
personnel, including interviews of current and former FBI Special Agents to
obtain more detailed information on predication where it was not apparent
from our document review. In addition, we interviewed attorneys in the FBI's
Office of General Counsel to obtain information on FBI policies relating to FBI
investigative activities and the First Amendment, as well as policies governing
the FBI’s Domestic Terrorism program.

We also examined federal laws, the Attorney General's Guidelines, and
FBI policies and guidance addressing FBI investigative authorities. During the
course of our review, the Attorney General issued new FBI investigative
guidelines that went into effect in December 2008. We also reviewed the 2008
Attorney General's Guidelines and the new FBI policies implementing them.

The specific FBI investigations we examined in this report occurred
several years ago when different FBI policies and versions of the Attorney
General's Guidelines were in effect. Nevertheless, this report is relevant to
current and prospective FBI investigations that may implicate First
Amendment considerations. Although the current Attorney General’s
Guidelines and FBI policies contain some restrictions on the conduct of such
cases, they continue to allow the FBI wide latitude to pursue these
investigations. As described in this report, these current policies and
guidelines, like prior policies and guidelines, allow the FBI to open preliminary
and full investigations through standards that are easily met. We therefore
believe that the findings of this report, concerns about the FBI's activities in
cases we reviewed, and the recommendations we make in this report are
important for current FBI practices.

Ill. Organization of the Report

This report is divided into nine chapters. Chapter Two describes the
relevant statutes, the Attorney Generals’ Guidelines, and FBI policies governing
the conduct of FBI investigations. Chapter Two also examines the predication
requirements for certain investigative activities and the limitations or
conditions on the FBI's use of investigative techniques that implicate First
Amendment rights, including limitations on the collection or maintenance of
records describing how an individual exercises his or her First Amendment
rights.

Chapters Three and Four analyze the FBI's investigative activities
directed at the Thomas Merton Center and PETA. Chapters Five, Six, and
Seven examine the FBI's investigations of Greenpeace and The Catholic
Worker. Chapter Eight analyzes the FBI's investigative activities directed at
Glen Milner. In each of these chapters, we focus on those instances where
predication was not readily apparent, the investigative activities were more


showed that these assertions were not true. We determined that these
inaccurate assertions also became the basis of subsequent inaccurate
statements made by the FBI to the public and by FBI Director Mueller to
Congress.55

We interviewed Berry a second time after we received the routing slip
from the FBI. When we asked Berry to review the routing slip he told us he
was “certain” he was not sent to the rally to find Farooq Hussaini. He stated
that he did not know who Hussaini was prior to going to the rally. When we

showed Berry the Dallas EC, he said he had never seen He said that the
chance of
was “almost non-existent.” Berry said

the routing slip was “utterly false” and “wholly, factually inaccurate.” Berry
said the routing slip “absolutely blows me out of the water” and that he had “no
knowledge” of it. He told us he had no current memory of discussing the
routing slip or Farooq Hussaini with Pittsburgh Field Division attorney Kempler
or anyone else. He said that he gave Kempler the same account of the
November 2002 surveillance that he gave to the OIG.

When we showed the routing slip to Crosetti, she told us Berry did not go
to the anti-war rally to identify Farooq Hussaini because he was not a subject,
and that Berry went to the event to see if Pittsburgh Field Division subjects
might attend. When we asked Crosetti to review the Dallas EC she said she
had never seen this document and to her knowledge it was never brought to
the attention of the Pittsburgh Field Division. She pointed out that

Crosetti told us she had never seen the routing slip, was not contacted
during its preparation, and was not a source of information contained in it.
She disputed the routing slip’s assertion that she directed Berry to photograph
persons in contact with Farooq Hussaini. Crosetti told us she would never
have given such an instruction as it would have been “improper” because the
Pittsburgh Field Division did not have a case open on Hussaini.

In short, both Berry and Crosetti disputed the facts in the routing slip.
The Dallas EC

55 The Legal Administrative Specialist in the RMD who processed the Merton Center
FOIA request told us he believed Hussaini’s name was not redacted from the November 2002
EC because he was listed as a contact person in public information.

37


McLean, Virginia. According to the EC, Lewis

The EC concluded, “Many of the acts of violence by animal rights groups
are the direct result of a criminal conspiracy by Collins, Lewis, and their
followers, to commit crimes against state lines, thereby affecting commerce,
lawful businesses, public policy, and Government approved financial programs
by use of force, extortion, coercion, threats, violence, and arson. These acts of
violence have resulted in destruction of personal and real property, personal
injury, and death (overseas), thereby constituting Federal crimes by violating
the Animal Enterprise Protection Act, Title 18 United States Code (USC),
Section 43; the Hobbs Act, Title 18, USC, Section 195; and the Racketeering
Influenced Corrupt Organizations Act (RICO), Title 18, USC, Section 1961.”

Early steps in the FBI's full investigation of Lewis included

learned that Lewis’s and PETA’s telephone numbers

. They also determined that

According to the investigative file, there were indications that Lewis was
involved in funding other animal rights activists implicated in criminal
activities. For example, Lewis’s name appeared on a list of “funding sources”
discovered during a search of the residence of a former ALF spokesperson.

The investigative file also noted additional statements made by Lewis.
For example,

117


the Internet by allowing the FBI to conduct online searches to gather
information related to terrorist or other criminal activities even prior to
checking a lead. “In the past, the FBI could utilize the Internet to gather
potentially evidentiary material only . . . if agents were working on a
preliminary investigation, full investigation, or, at the very least, checking out a
lead.”

The 2008 Guidelines have loosened the restrictions on Internet research.
They authorize the use of “online services and resources (whether nonprofit or
commercial)” for assessments and do not state that use of online services must
be on the same terms and conditions as members of the public or provide
limitations on searching by individuals’ names. The FBI's DIOG states that
“[a]s part of an assessment or predicated investigation, an FBI employee may
use any FBI-approved online service or resource that is available by
subscription or purchase, including services available only to law enforcement
entities.” DIOG § 5.9.E.

F. Authorities Governing Special Events Investigations

In addition to its authorities relating to preliminary inquiries and full
investigations, the FBI has investigative authority relating to “special events”
that may be targets for terrorists. Acting pursuant to Presidential Directives
and a federal statute designating the FBI as the lead agency for countering
threats or acts of terrorism in the United States, the FBI established a special
events subprogram.?! In its MIOG, the FBI defined a special event as “a
significant domestic or international event, occurrence, circumstance, contest,
activity, or meeting which, by virtue of its profile and/or status, represents an
attractive target for terrorist attack.”22 According to the MIOG, the FBI
provides enhanced involvement in “security planning issues at major domestic
special events, and crisis management of any critical incident response to
terrorism at a special event.” As detailed in subsequent chapters of this
report, our review found several incidents in which the groups or individuals
that were the subjects of our review were referenced in FBI files relating to
special events.

21 Presidential Decision Directive 39 (June 21, 1995); 18 U.S.C. § 2332bif). See also 28
C.F.R. § 0.85(l) and Homeland Security Presidential Directive 5 (February 2003).

22 MIOG, Part 1, § 300-1(2).

23 MIOG, Part 1, § 300-1(1). In addition, Presidential Decision Directive 62, issued by
President Clinton in May 1998, assigns responsibility to the FBI for special events that are
designated as National Special Security Events warranting stringent federal security measures.
In a March 19, 2004, EC, the FBI stated that its special events subprogram includes events
designated as National Special Security Events under Presidential Decision Directive 62 as well
as other highly publicized and widely attended events for which the FBI has responsibility as
part of its “general mission to detect and prevent terrorism.”

16


guidance about the use of certain intrusive techniques, as described below in
Section D.

2. Terrorism Enterprise Investigations

The 1989 and 2002 Guidelines authorized criminal intelligence
investigations for two types of criminal enterprises: racketeering or terrorism
enterprises. The racketeering enterprise standards focused on investigations of
organized crime and are generally not relevant to this review.

The 1989 Guidelines referred to terrorism enterprise investigations as
“domestic security/terrorism investigations” and stated that they were “focused
on investigations of enterprises other than those involved in international
terrorism, whose goals are to achieve political or social change through
activities that involve force or violence.” The 2002 Guidelines expanded the
grounds for opening a terrorism enterprise investigation and provided that
such a case could be initiated when facts or circumstances reasonably indicate
that two or more persons are engaged in an enterprise for the purpose of: (1)
furthering political or social goals wholly or in part through activities that
involve force or violence and a violation of federal criminal law; (2) engaging in
“international terrorism” or “domestic terrorism” as defined in federal law; or (3)
committing any federal criminal offense listed in the federal law that defines
the “federal crime of terrorism” or a pattern of racketeering activity involving
any of the listed offenses. The first of these alternative predications was
applicable to the FBI's investigation of PETA that we analyze in Chapter Four.
The 2008 Guidelines provide for “enterprise investigations” and include
predication language that is substantially similar to the 2002 Guidelines.

Both the 1989 and 2002 Guidelines described terrorism enterprise
investigations as focused on the structure and scope of the entire enterprise as
well as the relationship of its members, rather than on just individual
participants and specific criminal acts. The 2008 Guidelines contain similar
language describing the scope of enterprise investigations. The 1989 and 2002
Guidelines also stated that “mere speculation that force or violence might occur
during the course of an otherwise peaceable demonstration is not sufficient
grounds for initiation” of a terrorism enterprise investigation. The Guidelines
cautioned that investigations of organizations alleged to be involved in
politically motivated acts may present special problems necessitating “special
care” be exercised “in sorting out protected activities from those which may
lead to violence or serious disruption of society.”!5

15 The Guidelines stated: “There is ‘often . . . a convergence of First and Fourth
Amendment values’ in such matters that is ‘not present in cases of ‘ordinary’ crime.” 2002
Guidelines at 12, quoting, United States v. United States District Court, 407 U.S. 297, 320
(1972).

11


Address False and Misleading Statements to
Congress and the Public...........c:ccccccceeeeeesteeeeeeeeeeee 188
Establish Procedures to Track Source of Facts

Provided to the Public and Congress..
Require Identification of Federal Crime as Part 0
Documenting Predication ..............cccccceeeceeeeeeeteeeee 189
Consider Revising Attorney General's Guidelines and
DIOG to Reinstate Prohibition on Retention of

Irrelevant First Amendment Material from

Public Events ...
Clarify When First Amendment Cases Should Be

Classified as “Acts of Terrorism” Matters .............:0666 190

FBI Inspection Division Should Review Pittsburgh

Division Cases............cccccccceeeeeeeeeeeeeeeeeeeeeeneeeeeeeeeeeeennee 190
CONCIUSIONS..........cccccceecceeeeeeeeeceeeecceeeeeeeeeecteseeseeeeeeeeeteeeeeeeees 190


On May 14, 2001, the FBI opened a preliminary inquiry relating to
Franklin and the Ruckus Society, a group described as being closely tied to
Greenpeace through cooperation and common employees. The opening EC
described information that the FBI developed that Franklin had mentioned an
interest in blowing up the Alaska pipeline. The EC described Ruckus as
specializing in high profile direct actions, which the FBI called a “euphemism
for criminal activity.” The EC stated that Ruckus and other environmental
extremist groups, through Franklin, would become increasingly active in
targeting projects in Alaska, potentially including the Alaska Pipeline, the
Strategic Missile Defense Initiative, and others.

Through the rest of 2001, the FBI collected and recorded information
regarding Franklin’s efforts to establish a Ruckus “direct action” training camp
in Alaska. The FBI also collected and recorded information about Daniels’s
political positions and protest-related activities, including an alleged plan to
conduct reconnaissance of missile defense sites in Alaska in preparation for
protest activities. The FBI also collected and recorded information about
Greenpeace’s plans for protesting the Strategic Missile Defense Initiative,
including plans for protest activities at a location outside the United States.
This information was retained in both the Northstar full investigation file and
the Franklin preliminary inquiry file.

On September 6, 2001, the FBI Anchorage Field Division case agent
reported that there was no indication that Ruckus would approve a direct
action training camp in Alaska. The agent stated that the investigation had not
determined that Franklin had the intention or the means to blow up the Alaska
Pipeline. On December 13, 2001, the case agent reported that Franklin had
left the state, and the preliminary inquiry of Franklin was closed.

In January 2002 the FBI Anchorage Field Division case agent prepared
an EC noting that Greenpeace had signed a plea agreement stating that
American Greenpeace members would not trespass on U.S. military property
linked to the National Missile Defense, and that Greenpeace was stepping back
from National Missile Defense issues in the United States. The full
investigation that had originally been opened in connection with the Northstar
matter was closed.

2. OIG Analysis
a. Predication for the Investigations

We concluded that under the applicable guidelines, the FBI had a
sufficient factual predication to open a preliminary inquiry and full
investigation on members of Greenpeace for a general crimes investigation in
connection with the Northstar investigation. While the opening ECs did not
identify a specific federal law that the subjects may have been planning to

129


through its news service. The EC did not attribute any of its contents to either
of these entities. We also believe, wholly apart from this particular FBI policy,
that relying on - without any attribution - the analysis of a non-FBI party with
a diametrically opposed viewpoint from the target of an FBI investigation is a
practice that can undermine the credibility of the investigation.

We also do not believe there was sufficient factual basis at any point
during the case that warranted the FBI opening a full investigation on either
Collins or Robinson, and found that the investigations of Collins and Robinson
should have been closed earlier than they were. Based on our review of the
case file, by the end of 2003, the financial analyses that had been performed
did not identify any illegal activity, the leads sent to P|
———————e did not produce evidence of criminal acts tied
to Collins or Robinson, and the effort to develop useful information from
human sources was not successful. The investigation identified associations
among animal rights activists and organizations, including activists and groups
who had been or were believed to be involved in criminal acts, but we do not
believe these linkages were sufficient to have found there was a “reasonable
indication” that Collins or Robinson had violated or would violate any federal
law.

As discussed in the next section, the preliminary inquiry of PETA as an
organization - classified as a terrorism enterprise investigation - remained
open for approximately 15 months. The authority for the preliminary
investigation of PETA was not extended when it expired in November 2004.
Because the case against PETA and the Collins investigation essentially were
conducted by the Norfolk Field Division as a consolidated case, we saw no
basis for the Collins investigation to remain open for over 2 years after the
terrorism enterprise investigation of PETA was closed.}26

We believe that had the Collins case been conducted as a preliminary
inquiry, and therefore been subject to the requirement that such cases be
renewed at defined intervals, it likely would not have continued for the 6 years
that it did, a period that we found unreasonable and inconsistent with FBI
policy requiring that an investigation with potential impacts on First

126 The case agent who initiated the Collins case told us that he believes the
investigation remained open as long as it did in order to have a new agent to the office review
the evidence with “fresh eyes.” The case agent also said that in hindsight it might have been
easier to close the case and reopen it if something developed, although he thought the case
remained open in part because the office continued to receive sporadic information about
PETA. We do not believe either of these explanations warranted keeping the investigation open
as long as it was. A fresh review of the case did not require that it remain open, and the case
agent himself acknowledged - and our review of the case file confirmed - that the sporadic
information about PETA that Norfolk Field Division received in the later stages of the
investigation “never amounted to anything that was significant.”

107


CTD response included several facts about Person B that were not documented
by the FBI in the Person B file until after the anti-war event, but the CTD
response implied that these facts were part of the basis for the surveillance.
This was not true.

We determined that the Person B version of the explanation for the FBI’s
surveillance of the Merton Center leafleting originated with an e-mail exchange
on May 16, 2006, between the Pittsburgh Field Division and the CTD unit that
had been assigned to draft a response to Senator Leahy’s question. After the
CTD’s inquiries about the matter were forwarded to Pittsburgh Field Division
SSA Crosetti, she conducted a database search for documents referencing the
Merton Center. She then highlighted Person B in an e-mail that was forwarded
to the CTD, which we believe was the basis for the CTD response.

The Person B version of events was reconstructed after the fact and
provided a version of events from available information that was consistent
with the Director’s testimony. Yet, this account was inconsistent with the
Farooq Hussaini version of events, which was the original basis for the
Director's testimony. Unlike the Farooq Hussaini version, the Person B version
may have had a strand of accuracy in it, since Person B (unlike Hussaini) was
in fact the subject of an FBI investigation at the time. However, we found no
evidence that this investigation was the reason Berry went to the Merton
Center rally. Moreover, this account was misleading in that it cited information
that was not documented in the Person B file at the time of the anti-war rally
and suggested Person B was the singular focus when in fact that was not the
case.

The CTD sent its response to the FBI's Office of Congressional Affairs,
which prepared a formal response to Senator Leahy declining to provide the
requested information because “the investigation of the individual whose
presence was anticipated is still ongoing.” This response was also misleading.
The “individual” referenced in the Office of Congressional Affairs response was
Person B. But as discussed above, there is no evidence that Person B's
presence at the anti-war rally was “anticipated” by the FBI.

In short, we found that the FBI made a series of misleading and
inaccurate statements to Congress and the public about the circumstances
surrounding the Pittsburgh Field Division’s surveillance of the Merton Center
anti-war rally.

In fact, the true reason for the FBI's surveillance of the Merton Center's
anti-war rally was that a probationary agent was sent to the event on an ill-
conceived, spur-of-the-moment assignment given to him on a slow work day,
and was told to look for terrorism subjects. Finding none, he attempted to
document his efforts by writing an EC that resulted in the improper retention
of information that was not relevant to any criminal or terrorist investigation.

66


2008 Guidelines contain a comparable provision, except that dissemination is
authorized to other federal, state, local or tribal agencies “if related to their
responsibilities and, in relation to other Intelligence Community agencies, the
determination whether information is related to the recipient's responsibilities
may be left to the recipient.”

Cc. FBI Policy

FBI policy, primarily in the MIOG, addresses the collection, retention,
and dissemination of information in FBI records about groups or individuals
and the implications on First Amendment activities. Below we discuss the
provisions that were most relevant to our review.

1. Collection of Information Concerning First Amendment
Exercise

Section 1-4 of the Introduction to the MIOG addressed the FBI’s
investigative authority and the First Amendment and mirrored requirements of
the Privacy Act, 5 U.S.C. § 552a(e)(1) and (7).3!_ However, the MIOG expanded
the application of Privacy Act principles to include protection for groups as well
as individuals.°? Section1-4(4) states:

[T]he collection of information concerning groups and individuals
must be justified as reasonable and necessary for investigative
purposes. Information concerning the exercise of First
Amendment rights should be made a matter of record only if it is
pertinent to and within the scope of the authorized law
enforcement activity . . . .”33

31 Similar provisions were contained in MIOG, Part 1, § 190-5.1.

32 The FBI's CTD emphasized in an April 2004 EC that it is advisable to apply the
Privacy Act restrictions to information concerning not just individuals, but also to groups -
especially those with social or political agendas. The EC stated that, “treating FBI records of
information about a group's constitutional activities with the same level of retention criteria
required for individual record of these activities would be consistent with agency policy on
protecting civil liberties during the course of investigative activity.”. Current FBI policy does not
have a provision requiring references to groups be justified as reasonable and necessary for
investigative purposes. However, the DIOG § 5.13 provides that if an assessment turns up no
sufficient basis to justify further information on an individual or group, then the records must
be clearly annotated to state that the individual or group identified during the assessment does
not warrant further FBI investigation.

33 A 1989 FBI document addressing the First Amendment and Privacy Act
requirements contained a similar statement. It stated:

the FBI must ensure that our files are not repositories of all information
concerning an individual or group under investigation. FBI files must contain
only that information that is reasonably believed to be useful and necessary to
the accomplishment of our mission.

(Cont'd.)

21


. The case

agent told us that based on a conversation with local police he believed that
He said he did not

know the extent of that injury.

We note that the FBI also had information showing contacts between
Harris and another person who was suspected of being involved in a conspiracy

to make specific threats of violence against the employees of a different
op) AE Ti. FEI may have been
concerned that such unlawful threats of violence might therefore be used in
potential future protests of Exxon and Kimberly-Clark in Dallas. However, the
available record does not establish a link between Harris and the threatened
acts of violence in the J company case, the agent did not offer
during our interview such a link as a reason for targeting Harris, and there is
no evidence that the FBI considered this link at the time it opened the
investigation. In sum, we concluded that the predication for this investigation
as relating to a federal crime was weak and likely did not satisfy the Attorney
General's Guidelines.

We also considered whether this investigation was properly classified
under the FBI’s “Acts of Terrorism” classification. As previously noted, FBI
policy permitted the use of this classification for investigations of individuals
who seek to further political or social goals through activities that involve the
use of force or violence and violate federal law. Yet, we found scant evidence
supporting the “force or violence” element of this test for the same reasons that
we found that the FBI's predication for the “acts or threats of violence” element
under the federal riot statute was weak.

This classification caused the subjects to be placed in the VGTOF
database and on a federal watchlist. As a result, the FBI collected information
about the subjects’ travel and protest activities throughout the United States.
For example, when local police stopped one of the subjects for
they submitted the subject’s name to the FBI's Terrorist Screening Center.
Because the subject was in the VGTOF database, information regarding a
passenger in the car was also collected and retained in the case file for the
Dallas investigation as part of the Terrorist Screening Center’s “Associates
Project” for identifying possible associates of “known or suspected terrorists.”

We also considered the long duration of this investigation in light of FBI
policy requiring that the duration of any investigation with potential impacts on
First Amendment activity “must not be permitted to extend beyond the point at
which its underlying justification no longer exists.” MIOG Introduction, § 1-

4(2). The investigation was opened in 2004 and was not closed until 2007,
when a The last investigative activity

reflected in this case file was a “spot check” of the target residence in April

140


FBI's Office of General Counsel (OGC), Counterterrorism Division, or Criminal
Investigative Division.

Effective December 1, 2008, the Attorney General’s Guidelines for
Domestic FBI Operations (2008 Guidelines) replaced the 2002 Attorney
General's Guidelines and various other guidelines regulating FBI
investigations, including the Attorney General’s Guidelines for FBI National
Security Investigations and Foreign Intelligence Collection. A major objective of
the 2008 Guidelines was to provide “simpler, clearer, and more uniform
standards and procedures.”!! To that end, on December 16, 2008, the FBI
issued the Domestic Investigations and Operations Guide (DIOG) “to
standardize policy so that criminal, national security, and foreign intelligence
investigative activities are consistently and uniformly accomplished whenever
possible (e.g., same approval, notification, and reporting requirements).”

III. General Principles and Policies Addressing Investigative Activities
and the First Amendment

The 1989 and 2002 Attorney Generals’ Guidelines contained general
principles addressing FBI investigative activities and the First Amendment.
The Guidelines stated that investigations initiated to anticipate or prevent a
crime may “not be based solely on activities protected by the First Amendment
or the lawful exercise of any other rights secured by the Constitution or laws of
the United States.” This principle was reaffirmed in the 2008 Attorney
General’s Guidelines. The Guidelines stated that statements that advocate
criminal activity, particularly crimes of violence, may warrant investigation
“unless it is apparent, from the circumstances or the context in which the
statements are made, that there is no prospect of harm.” The Guidelines
contained other references to specific investigative activities or techniques and
the First Amendment, some of which we describe below when discussing the
investigative activity or technique.

FBI policy in the MIOG Introduction, § 1-4, addressed the FBI's
investigative authority and the First Amendment, referring to the “importance
of these rights in American society” and “careful scrutiny” of law enforcement
activities that impact these rights by the legislative and judicial branches. The
FBI policy required “strict compliance” with the Attorney General's Guidelines
and FBI policies in initiating investigations of “individuals or members of
assembled groups who advocate political or social goals through violent means,
as well as investigations into the causes of civil or social disorder.”!2 In

11 Memorandum from the Attorney General to Heads of Department Components,
Sept. 29, 2008 at 1.

12 MIOG, Introduction, § 1-4(1).


2. OIG Analysis

Based on our review of the case file as a whole and our interview of the
FBI Special Agent and the Assistant United States Attorney assigned to this
matter, we did not conclude that the FBI's Dallas Field Division targeted
Greenpeace or its members solely on the basis of their First Amendment
activities. The FBI documents and witnesses stated that the FBI was seeking
to investigate the subjects who the FBI believed might engage in protest
activities against Exxon that could include criminal acts such as trespass that
could ultimately result in damage to property or injuries to individuals. The
FBI cited the participation of the subjects in a

. In addition, the FBI had information that at least

Although we did not conclude that the FBI was investigating the subjects
solely as a result of their First Amendment activities, we concluded that the
predication for this investigation as relating to a federal crime was extremely
weak.

Moreover, we found that the FBI Dallas Field Division did not comply
with Section II.C3. of the Attorney General’s Guidelines, which required that
the “FBI supervisor authorizing an investigation shall assure that the facts or
circumstances meeting the standard of reasonable indication” be recorded in
writing. The importance of complying with the writing requirement in cases
implicating the exercise of First Amendment rights is underscored by the FBI
policy requiring “strict compliance” with Attorney General's Guidelines and FBI
policies in initiating investigations of “individuals or members of assembled
groups who advocate political or social goals through violent means, as well as
investigations into the causes of civil or social disorder.” MIOG, Introduction, §
1-4(1), (2).

The FBI did not comply with these requirements. First, the opening EC
provided no information to support the suspicion that the subjects were
planning any future protest against Exxon in Dallas (or elsewhere), other than
the fact that the subjects 12d [i TAITE in tie past and
were in regular contact with others who were the subjects of domestic
terrorism investigations.

Second, even assuming that the available information created a
reasonable indication that the subjects were planning future protests
, the opening EC did not explain how such a protest might
involve a violation of federal law. All the crimes that occurred during —

138


, and traveled to foreign
countries that instructed animal rights activists about
maximizing economic damage to businesses with techniques that included
raids and arson. However, FBI Headquarters recommended to the field office
responsible for the matter that it convert the case from a full investigation to a
preliminary inquiry for several reasons, including that the information about
Collins was 2 years old. In addition, the reliability of the source for the
information was not indicated and the allegations were conclusory and lacking
in detail. We agreed with FBI Headquarters that the information did not
warrant conducting that case as a full investigation.

The Field Division’s decision to operate the case as a full investigation
contributed to the case remaining open for 6 years. We concluded that the
lengthy duration of the investigation was unreasonable and was inconsistent
with FBI policy requiring that an investigation with potential impacts on First
Amendment activity “not be permitted to extend beyond the point at which its
underlying justification no longer exists.” Had the investigation been
conducted as a preliminary inquiry, and therefore been subject to the
requirement that such cases be renewed at defined intervals, we believe it is
likely the case would have been closed considerably earlier than it was.

The FBI's investigation of Collins also illustrates the impact a lengthy
investigation can have on individuals who are subjects of FBI preliminary and
full investigations. Because this case was classified as a domestic terrorism
matter, Collins was placed on federal watchlists. As a result, the FBI collected
information about Collins’s travel activities for years. At least one time Collins
returned to the country, Collins was subjected to a secondary inspection that
included copying personal documents. Although the FBI had Collins removed
from a watchlist that tracked international travel, Collins apparently remained
in at least two other government databases that caused the FBI to continue
receiving international travel alerts relating to Collins. The FBI, pursuant to its
policy, did not remove Collins from a separate FBI watchlist until the
investigation was closed. For the reasons explained above, we believe this
would have occurred substantially earlier had the case been conducted as a
preliminary inquiry.

The FBI also opened a preliminary inquiry on PETA to determine whether
grounds existed to initiate a broader, terrorism enterprise investigation of the
organization. The investigation remained open for a total of 15 months, during
which time the case received 3 90-day extensions. We concluded that the FBI
did not violate the Attorney General’s Guidelines opening this case or in
extending the inquiry on the first two occasions. However, we questioned the
factual basis for the third extension.

181


TSDB maintains all watchlist data and exports information to several
“downstream” screening databases, including the FBI’s VGTOF.*!

Since 2008, the FBI has been the only agency within the Department of
Justice that formally nominates individuals to the consolidated terrorist
watchlist.42 FBI policy requires that all subjects of international terrorism
preliminary and full investigations and domestic terrorism full investigations be
nominated to the consolidated terrorist watchlist. Subjects of domestic
terrorism preliminary inquiries may be nominated to the watchlist at the
discretion of the field office opening the matter.48

During the time period under review, FBI policy required that subjects of
closed investigations be removed from the watchlist and prohibited the
nomination of subjects from closed investigations. However, under limited
circumstances, FBI policy allowed certain subjects of closed international
terrorism full investigations to be retained on the watchlist. FBI policy required
that all domestic terrorism subjects and international terrorism preliminary
inquiry subjects be removed from the watchlist when the case is closed.

41 Other downstream screening databases include the Interagency Border Inspection
System, Consular Lookout and Support System, No-Fly List and Selectee List. See U.S.
Department of Justice Office of the Inspector General, The Federal Bureau of Investigation’s
Terrorist Watchlist Nomination Practices, Audit Report 09-25, (May 2009) at 5, 69-70, available
at www. justice.gov/oig/reports/FBI/a0925/final. pdf.

42 Although other DOJ components share information with the FBI about known or
suspected terrorists, only the FBI formally nominates individuals to the watchlist. According to
the FBI, the responsibility for the FBI to nominate individuals was established by a Department
of Justice memorandum issued on October 3, 2008. Prior to then, other DOJ components
could nominate individuals to the consolidated terrorist watchlist. For a discussion of the
terrorist watchlist and the FBI's nomination process and practices, see U.S. Department of
Justice Office of the Inspector General, The Federal Bureau of Investigation’s Terrorist Watchlist
Nomination Practices, Audit Report 09-25, (May 2009),and U.S. Department of Justice Office of
the Inspector General, Audit of the U.S. Department of Justice Terrorist Watchlist Nomination
Processes, Audit Report 08-16, (March 2008), available at
www. justice.gov/oig/reports/plus/a0816/final. pdf.

43 The FBI stated that it has “thoroughly reviewed and updated the watchlist policies in
a classified EC dated December 7, 2009. The FBI also stated that “the Terrorist Review and
Examination Unit which has program management responsibilities for the watchlisting process
has implemented major changes and detailed oversight protocols to monitor compliance” with
watchlist policies. In addition, the FBI has stated that nomination to the watchlist is no longer
automatic for subjects of terrorism preliminary investigations. The December 2009 EC
provides that the FBI may nominate an individual only if it has “reasonable suspicion to believe
that the subject is a known or suspected terrorist,” based on “articulable” intelligence or
information and an “objective factual basis.” This is a higher evidentiary standard than the
“possibility” standard for opening preliminary inquiries. The OIG has conducted a series of
audits on the consolidated terrorist watchlist, and we intend to conduct more work in this
area.

26


The Special Agent told us that he characterized the Catholic Worker
political philosophy in these ECs because he felt it was important to explain
the Catholic Worker's two motives in trespassing onto the VAFB: (1) to
publicize their belief in a communist distribution of resources, and (2) to
impede National Missile Defense missile launches. The Special Agent told us
that when he asked the group members why they came to the VAFB to violate
the law they told him they trespassed to get the word out that they want a
communist distribution of resources.184 He said the Catholic Worker's peace
philosophy and Christian ideology explained the group's additional motive of
wanting to impede missile launches. !85

On June 1, 2001, the FBI issued an EC that converted the case from a
preliminary inquiry to a full investigation, maintaining the domestic terrorism
on government reservations classification. The June 1 EC stated that the FBI
had received information from a reliable source that “a group associated with
Greenpeace intends to use powered parachutes to trespass” onto VAFB, in
order to impede the launch of the National Missile Defense, and that “[t]he
parachutes will be violating restricted airspace.” The EC stated that the
Special Agent in the past year had interviewed trespassers who have “made
general comments that they support actions to impede test launches.”
According to the EC, one arrestee stated that “the use of powered parachutes to
block a launch, is at least in theory,” a method that he supported. The EC
concluded by stating that “the use of a powered parachute to impede a military
operation is a possible violation of Title 18 U.S.C. Section 2155” (destruction of
national-defense materials, national-defense premises, or national-defense
utilities) and accordingly the case would be converted to a full investigation.

The June 1 EC did not identify any additional facts about the Catholic
Worker Group to support the conversion from a preliminary inquiry to a full
investigation. The only additional facts the EC added that were linked to a
subject group or individual was information appearing to confirm Greenpeace’s
intent to use powered parachutes to impede a National Missile Defense test
launch.

at these documents and you think, wow, we have really returned to the days of J. Edgar
Hoover, when you see in FBI files that they're talking about a group like the Catholic Workers
league as having a communist ideology.”

184 The FBI file contained documents memorializing the interviews of two of the
Catholic Worker members, and these documents do not state that these two Catholic Worker
members told the agent they entered the base because they wanted to publicize their belief in a
communist distribution of resources.

185 The FBI file did not contain characterizations of Greenpeace's political or social
goals or philosophy.

163


or no basis for suspecting a violation of any federal criminal statute. The

subjects had previously been prosecuted for (iy
EERE 2c the F5I's opening EC did not articulate any

basis to suspect that they were planning any federal crimes. Moreover, the FBI
did not comply with the Attorney General’s Guidelines, which required that the
“FBI supervisor authorizing an investigation shall assure that the facts or
circumstances meeting the standard of reasonable indication” be recorded in
writing.

We also found that the FBI kept this investigation open for over 3 years,
long past the corporate shareholder meetings that the subjects were
supposedly planning to disrupt, and over a year beyond the last investigative
activity in the case. We concluded that the investigation was kept open
“beyond the point at which its underlying justification no longer existed,” which
was inconsistent with the FBI’s Manual of Investigative and Operational
Guidelines (MIOG).

The FBI's investigations of these subjects were also classified as Acts of
Terrorism investigations. We considered whether these matters satisfied the
broad definitions of terrorism in the MIOG and therefore could be classified
under the FBI's Acts of Terrorism investigative classification. In the Alaska
case, we found that the FBI had developed credible information regarding the
potential use of force or violence by at least one of the subjects, thereby
providing a basis for the FBI to classify the case as an Act of Terrorism matter
under the MIOG. In the Texas case, however, we found scant basis for the FBI
to suspect the subjects were planning acts that would involving “force or
violence,” as the MIOG required to classify the matter as relating to Acts of
Terrorism.

The classification of this investigation as a terrorism case had significant
consequences to the subjects, who were placed on a federal watchlist like other
subjects of Acts of Terrorism investigations. As a result, the FBI collected
information about their travel and protest activities throughout the United
States.

D. The Catholic Worker

Our review concluded that the FBI did not target the Catholic Worker or
its members for investigation based on their exercise of First Amendment
rights. Although several incidents related to Catholic Worker protests of the
Iraq War, investigative activities and documents relating to the Catholic Worker
or its members were generated by an array of FBI field divisions responding to
discrete circumstances.

Our review of the documents related to the investigations of members of
the Catholic Worker revealed that most did not describe the exercise of First

183


Il. Specific Activities Relating to People for the Ethical Treatment of
Animals

Between 2001 and 2006, the FBI's field office in Norfolk, Virginia (Norfolk
Field Division) initiated preliminary or full investigations of [J members of
PETA and a preliminary terrorism enterprise investigation of PETA as an
organization. Each of the investigations of the PETA members was opened
under the FBI's “266” investigative classification, which at the time was
designated for “any investigation of a criminal act which involves an individual
or individuals affiliated with a domestic terrorist group.” The investigation of
the PETA organization was opened under the “100” classification, which is
reserved for investigations of domestic terrorist groups authorized by the
provisions of the general crimes guidelines on terrorism enterprise
investigations. !09

The first PETA-related investigation that the Norfolk Field Division
initiated was directed at Alex Collins, i 0
This was the longest and most expansive of the FBI’s PETA investigations we
reviewed. The case lasted nearly 6 years, from May 2001 to April 2007, and
overlapped with the terrorism enterprise investigation of PETA as an
organization, which opened in August 2003 and closed in February 2005. We
describe and analyze the predication and classification of these two cases first,
and then do the same for the other [J members of PETA who were
investigated by the Norfolk Field Division between 2001 and 2006.

A. Alex Collins
1. Facts

The FBI Special Agent who was the case agent for most of the Collins
investigation had transferred to the Norfolk Field Division from the FBI's field
office in Atlanta, Georgia in January 1998. As the only agent in the Norfolk
Field Division assigned to work on domestic terrorism matters, he was

109 As described in Chapter Two, the 1989 Attorney General's Guidelines referred to
terrorism enterprise investigations as “domestic security/terrorism investigations” and stated
that they were “focused on investigations of enterprises other than those involved in
international terrorism, whose goals are to achieve political or social change through activities
that involve force or violence.” The 2002 Guidelines expanded the predicate to open a
terrorism enterprise investigation, stating that this type of investigation may be initiated when
facts or circumstances reasonably indicate that two or more persons are engaged in an
enterprise for the purpose of: (1) furthering political or social goals wholly or in part through
activities that involve force or violence and a violation of federal criminal law, (2) engaging in
“international terrorism” or “domestic terrorism” as defined in federal law, or (3) committing
any federal criminal offense listed in the federal law that defines the “federal crime of terrorism”
or a pattern of racketeering activity involving any of the listed offenses.

10 Alex Collins is a pseudonym.

95


FBI Dallas Field Division thereafter received information about law enforcement
encounters involving the subjects and in some cases the subjects’ associates.
For example, in one of the subjects and several friends were questioned
in another city by a local policeman who found them a

in a residential neighborhood. Although no citation was issued, the
officer recorded the vehicle license plate number and forwarded the identities of
the occupants to the FBI. Because one of the occupants was a subject of the
Dallas investigation who was in the VGTOF database, information about this
encounter was forwarded to the Dallas Field Division and placed in the case
file. According to the file, the police officer reported the incident because a
conference was recently held in that city which had drawn protests from
various “animal rights/eco-terrorism” groups.

The case file also contained a VGTOF alert relating to Harris's travel
outside the country a. Although Harris's travel was not delayed, as a
result of this alert the FBI connected Harris’s trip with an anonymous
complaint from , entered in the FBI’s Automated Case Support (ACS)
system, indicating that

. The complaint
further alleged that the “attacks may include destruction, immobilizing, setting
fires and destroying bulldozers.”

As discussed in Chapter Two, at the time of the Dallas investigation FBI
policy required that subjects of a domestic terrorism full investigation be
nominated to the consolidated terrorist watchlist (thereby placing the subject’s
identity into the VGTOF database) and that the subject be removed from the
watchlist upon the case closure. The agent told us that he requested that the
subjects of the Dallas investigation be removed after the case was closed.
However, it appears that this did not occur. We found that the FBI file
contained a VGTOF alert about one subject's arrest at an
a unrelated to the Dallas investigation that took place

after the Dallas matter was closed. The case agent told us that when
he received this alert he again requested that the subjects be removed from
VGTOF.!54 The agent’s second request was probably successful, because we
found no subsequent VGTOF alerts in the case file.

154 The watchlist removal delays we found here were consistent with the findings of an
OIG audit of the FBI's consolidated terrorist watchlist nomination practices. The May 2009
audit found that 72 percent (61 of 85) of the subjects of closed international and domestic
terrorism cases were removed from the watchlist in an untimely manner. See U.S. Department
of Justice Office of the Inspector General, The Federal Bureau of Investigation’s Terrorist
Watchlist Nomination Practices, Audit Report 09-25, (May 2009) at 38. On average, removals
were delayed 60 days from case closure. Id. The audit found that the FBI had no timeliness
requirement for subject removals from the watchlist. Id. at 44. During the audit, the FBI put
in place a new requirement that field offices submit watchlist removals within 10 days of a case
closure request. Id.

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permitted to extend beyond the point at which its underlying justification no
longer exists.” MIOG, Introduction, Part 1-4(2).

During the initial preliminary inquiry period, Philips and other POG
protesters were arrested in April 2004 by local police for actions taken during a
protest of a speech by President Bush in Pittsburgh, such as obstructing
traffic, disorderly conduct and failure to disperse. The EC requesting an
extension on the Herman preliminary inquiry stated that this type of criminal
activity is “viewed as distraction activity for possibl[y] more significant actions.”
Further, 2 weeks before the Pittsburgh Field Division requested an extension of
the Philips preliminary inquiry, the Pittsburgh Field Division received
information from the Miami Field Division that POG members had recently
discussed plans for “direct action,” including vandalism, against the
Republican National Convention to be held that year in New York City. Given
these facts, and again due to the low threshold required for predicating a
preliminary inquiry, we did not conclude that the FBI’s decision to extend the
preliminary inquiries violated the Guidelines or FBI policy because there
remained a continuing “possibility” that Herman or Philips would commit a
federal crime. As noted in footnote 101 above, the FBI had little or no
information linking Waterman to POG or Pittsburgh at the time the preliminary
inquiry was opened. No additional information was developed during the
investigation. Accordingly, we do not believe the preliminary inquiry should
have been extended as to Waterman following its initial expiration.

We also considered whether these preliminary inquiries were properly
classified under the FBI's “Acts of Terrorism” classification. As previously
noted, beginning in 2003, FBI policy permitted the use of this classification for
investigations of individuals who seek to further political or social goals
through activities that involve the use of force or violence and violate federal
law. We found scant evidence beyond the POG’s advocacy of “direct action”
protest techniques supporting the “force or violence” element of this test, and
we therefore question whether the preliminary inquiries should have been
classified as domestic terrorism investigations.

b. Source Activity

We also analyzed the FBI's use of the confidential source to attend the
meetings and protests involving POG members. According to the agent, these
events were open to the public and advertised on the Internet.

We do not believe that the FBI satisfied the applicable tests for sending
its source to the POG meetings. The case agent acknowledged that his primary
purpose in sending his source to the events was to document his participation
in the FBI source program and to establish statistics. The weak connection
between these assignments and the preliminary inquiry is highlighted by the

88


5. Clarify When First Amendment Cases Should Be
Classified as “Acts of Terrorism” Matters

We identified several cases in which the FBI investigated acts of
nonviolent civil disobedience that could constitute federal crimes (such as
trespassing on military facilities). These investigations were classified as Acts
of Terrorism matters. We recommend that the FBI and the Department
consider and provide further guidance on when such cases involving First
Amendment issues should be classified as Acts of Terrorism matters and when
they should not.

6. FBI Inspection Division Should Review Pittsburgh
Division Cases

In light of the problems in investigations by the FBI’s Pittsburgh Field
Division described in this report, we recommend that the FBI Inspection
Division conduct an inspection of recent domestic terrorism cases in the
Pittsburgh Field Division to assess the Division’s compliance with applicable
statutes, Attorney General’s Guidelines, and FBI policies involving First
Amendment issues.

G. Conclusions

In sum, the evidence in our review did not indicate that that the FBI
targeted any of the groups for investigation on the basis of their First
Amendment activities. However, we also concluded that the factual basis for
opening some of the investigations of individuals affiliated with the groups was
factually weak. Moreover, in several cases there was little indication of any
possible federal crimes as opposed to state crimes. In some cases, we also
found that the FBI extended the duration of investigations involving advocacy
groups or their members without adequate basis, and in a few instances the
FBI improperly retained information about the groups in its files. In some
cases, the FBI classified some investigations relating to nonviolent civil
disobedience under its “Acts of Terrorism” classification.

We recognize that the FBI investigations we examined in this report
occurred several years ago, when different FBI policies and versions of the
Attorney General’s Guidelines were in effect. Nevertheless, we believe this
report is relevant to current and prospective FBI investigations that may
implicate First Amendment considerations. Although the current Attorney
General's Guidelines and FBI policies contain some restrictions on the conduct
of such cases, they continue to allow the FBI wide latitude to pursue these
investigations. We therefore believe that the findings of this report, the
concerns about the FBI's activities in cases we reviewed, and the
recommendations we make in this report are important for current FBI
practices. We therefore believe that that the FBI should carefully consider our

190


addition, the MIOG stated that “the scope of each investigation must be
carefully tailored to fit the circumstances giving rise to the investigation;
although expansion in the scope of an investigation may be undertaken if
justified by a change in these circumstances.”!3 The MIOG also required that
the duration of these investigations “must not be permitted to extend beyond
the point at which its underlying justification no longer exists.”!4

The FBI’s Domestic Investigations and Operations Guide (DIOG)
currently addresses FBI investigative authority and the First Amendment in a
separate section that discusses related privacy and civil liberty issues. See
DIOG § 4. In addition, the DIOG restates First Amendment, civil liberty, and
privacy considerations in the sections that address various types of FBI
investigative activities. See e.g., DIOG § 6.3.

IV. Authorities Establishing Types of Investigations

FBI policies in effect during the period of our review established several
different levels or types of investigations, each with its own predication
requirement and its own set of authorized investigative techniques. In this
section, we summarize the types of FBI investigations, describe the predication
required to open each type of investigation, and summarize the investigative
techniques approved or prohibited for use in each type of investigation during
the period covered by our review.

A. Prompt and Extremely Limited Checking Out of Initial Leads

Both the 1989 and 2002 Attorney Generals’ Guidelines authorized the
FBI to conduct the “checking out of initial leads” as the lowest level of
investigative activity. The 1989 Guidelines made a passing reference to this
authority, and the 2002 Guidelines described the “prompt and extremely
limited checking out of initial leads” as the lowest level of investigative activity
“which should be undertaken whenever information is received of such a
nature that some follow-up as to the possibility of criminal activity is
warranted.” The Guidelines stated that the checking of leads “should be
conducted with an eye toward promptly determining whether further
investigation (either a preliminary inquiry or a full investigation) should be
conducted.” While the 2002 Guidelines described the checking of leads as
“extremely limited,” it did not identify the investigative techniques the FBI
could not use when checking leads.

13 Id. at § 1-4(2).
14 Id.


According to the FBI report, FBI investigations had revealed “a potential
ongoing relationship between PETA and the ALF/ELF activities,” and cited as
an example PETA's sponsorship of “internships” for animal rights activists that
would serve to launch the recipients into prominent positions within the
animal rights movement. The report also stated that it was believed PETA had
been involved in target selection for past ALF/ELF attacks and that PETA was
alleged to have established a faction within PETA to secretly support ALF/ELF
activities. In addition, the report said law enforcement officials “have long
suspected that PETA provides financial assistance to ALF/ELF activities
and/or cells” and that some recent investigative activity supported this
suspicion.!08 The report indicated that some of the information about the
relationship between PETA and ALF/ELF was based on reporting from human
sources and from the FBI's investigation of Coronado following the arson at
Michigan State University.

The PETA website states that the animal rights movement is nonviolent
and holds as a principal tenet that no animal —- human or otherwise — should
be harmed. On the specific issue of ALF and the millions of dollars in property
damage caused by individuals claiming affiliation with ALF, the PETA website
states:

Throughout history, some people have felt a need to break the law
to fight injustice. The Underground Railroad and the French
Resistance are examples of movements in which people broke the
law in order to answer a higher morality. The ALF, which is simply
the name adopted by people who act illegally on behalf of animal
rights, breaks inanimate objects such as stereotaxic devices and
decapitators in order to save lives. ALF members burn empty
buildings in which animals are tortured and killed. ALF “raids”
have given us proof of horrific cruelty that would not have
otherwise been discovered or believed and have resulted in
criminal charges being filed against laboratories for violations of
the Animal Welfare Act. Often, ALF raids have been followed by
widespread scientific condemnation of the practices occurring in
the targeted labs, and some abusive laboratories have been
permanently shut down as a result.

We reviewed the FBI's activities related to PETA because it was one of the
groups featured in news articles that, beginning in December 2005, reported
that the FBI had monitored the activities of domestic advocacy groups.

108 The report cited as an example PETA’s alleged $50,000 contribution to an
ALF/Animal Defense League member for the production of a documentary that might have
included footage of criminal activity. In addition, according to the report, a source told the FBI
that an animal rights group in Utah was required to submit “direct action” proposals to PETA
in order to receive funding for the activity.

94


Amendment rights by Catholic Worker members, or the contents of their
expressions. In those documents that did reference First Amendment
activities, information the FBI collected and retained related to concerns about
potential criminal actions such as damaging military property. We also
concluded that the retention of this information did not violate Attorney
General's Guidelines or FBI policy.

However, in one case we concluded that the FBI improperly retained
information about a public event that Catholic Worker members may have
attended. This information did not relate to “potential criminal or terrorist
activity” and therefore should not have been retained under the Attorney
General's Guidelines then in effect.

In the two investigations we reviewed in which Catholic Worker members
were named or unnamed subjects, we concluded that the investigations did not
violate the Attorney General's Guidelines and that the investigative techniques
used during these investigations were limited.

We also reviewed two incidents in which FBI records referenced the
Catholic Worker in a “special events” file. We determined that in one case the
FBI retained information that described a public anti-war rally’s organizing
group, its purpose, and number of attendees. Under the Attorney General's
Guidelines in effect at the time, as well as in FBI field guidance, this
information should not have been retained because it contained no
observations relating to potential future criminal or terrorist activity.

We also considered two instances in which the FBI retained in a
domestic terrorism file ECs referencing anti-war related civil disobedience by
Catholic Worker members. The FBI ECs retained information about nonviolent
civil disobedience (peaceful trespass on a military facility). Retaining this
information ~ which pertained to a federal crime — was not prohibited by the
Privacy Act, Attorney General's Guidelines, or FBI policy.

However, we question the FBI's collection and retention of this
information. The acts in question were nonviolent civil disobedience, and the
FBI has at various times disavowed interest in such activity. For example, in
April 2006, following the FBI’s release of documents pursuant to a FOJA
request, the FBI’s Executive Secretariat Office responded to a letter from a
citizen expressing concern that the FBI was “investigating the Catholic Worker”
by stating: “[T]he FBI is not targeting lawful civil disobedience. Our
organization does, however, seek to prevent unlawful violent activities. In order
to do so, we advise our partners in law enforcement of the tactics used by those
who wish to impinge on the civil rights of others by violently disrupting
otherwise peaceful marches and assemblies.” Yet, the information the FBI
collected in one case had no relationship to any “violent activities,” much less
to terrorism. Nothing contained in FBI files or stated by the Special Agent who

184


The primary focus of the Collins investigation was to uncover evidence of
Collins’s financial support to individuals affiliated with ALF or to other animal
rights activists involved in criminal activities. At the Norfolk Field Division’s
request, the U.S. Attorney’s Office for the Eastern District of Virginia agreed to
open a case on Collins. Beginning in October 2002, the FBI case agent
obtained financial records concerning Collins. The Norfolk Field Division also
continued to solicit information from other FBI field offices about Collins and

requested various FBI Legal Attaché offices to seek information about Collins
from el

Although Collins was the named subject of the Norfolk Field Division’s
case, the investigative activity described above extended to PETA as an
organization. As discussed below, the Norfolk Field Division opened a
preliminary inquiry on PETA as a terrorism enterprise in August 2003.

source report and document that he

The case agent told us that eve:
and

reviewed indicated that Collins
likely . From the agent’s

erspective, Collins and PETA were
a Thus, according to the agent, it was reasonable to

obtain financial records on the organization and request information about

PETA's possible involvement in criminal activities from
eS Many investigative documents in the case file
that we reviewed reflected this approach.!!8 The financial and other
information collected on Collins, PETA, and several other subjects (described

below) was regularly provided to FBI Headquarters for financial and link
analysis.

On January 16, 2003, the Norfolk Field Division added Jerry Robinson

as a subject in the investigation.!19_The case caption also was changed to
include the ovanizaticns [arr These
organizations were PETA, the Foundation to Support Animal Protection, and
the Physician's Committee for Responsible Medicine. According to PETA's
website, the Foundation to Support Animal Protection (also known as the PETA

Foundation) was formed in 1993 to provide general and administrative support

initiation, and provided for 2 90-day extensions based on Special Agent in Charge approval and
subsequent extensions with FBI Headquarters approval only. By contrast, full investigations
could remain open indefinitely.

18 For example, on April 11, 2002, Norfolk Field Division provided various documents
to FBI Headquarters with the request that appropriate units analyze the information “to assess
whether PETA is involved in money laundering, financial institution fraud or tax fraud; as well
as, the financing of ALF/ELF terrorist groups in furtherance of PETA's social and political
objectives.”

19 Jerry Robinson is a pseudonym.

99


) ( e

PRESS RESPONSE NATIONAL PRESS OFFICE
March 14, 2006 (202) 324-3691

Some FBI documents recently released to the ACLU under the Freedom of
Information Act refer to an FBI Agent taking photographs at a public anti-war event in
Pittsburgh in November 2002.

While the Agent was acting with all appropriate investigative authorities, it is
important to emphasize some points not evident in the publicly released documents. First,
the photos taken at the November 29, 2002, event were taken as a direct result of
information provided to the FBI, related to an ongoing investigation, Specifically, the
photos were compared with photographs of a person under FBI investigation. Once that
comparison was made, and determined to be of no valie to the ongoing investigation, the
photos taken at the event were destroyed.

Second, the February 26, 2003, document contained in the FOIA release, a

‘Letterhead Memorandum, was actually a draft which was never finalized -- nor made a

part of an FBI file. The draft was retrieved from a work file and processed under FOIA,
as part of the ACLU request. A related internal communication that was also released
was written in a manner that suggests it is a report on the activities of an anti-war group.
Such a characterization would be factually misleading. The Agent was not in attendance
at the event for the purpose of monitoring this group’s political activities. As noted
above, he was present for the sole purpose of determining the validity of information he
received from another source possibly establishing a link between an on-going
investigation and the group engaging in anti-war protests. Finding no such link, he
terminated his surveillance.

Finally, while the photographs taken in 2002 were authorized under the Attorney
General investigative guidelines, and FBI policy, several subsequent FBI-wide policy
directives have been issued. Directives in 2003 and 2004 reiterated and, where
appropriate, clarified policy pertaining to investigations that in some way involve public
demonstrations or protest activities. These directives were part of an effort to ensure that
field Agents fully understood all applicable guidelines, policy and law. Field Agents
must regularly strike a proper, legally-defensible balance between aggressively pursuing
investigative leads to address and mitigate national security threats, and not chill the
exercise of constitutionally protected rights of free speech and assembly.

HH


administrative or other action is warranted for any individuals in connection
with this matter.

2. Establish Procedures to Track Source of Facts Provided
to the Public and Congress

As described above, we had difficulty tracing the sources of information
that the FBI provided to Congress and the public regarding the Pittsburgh Field
Division's surveillance of the 2002 anti-war rally sponsored by the Merton
Center. We recommend that the FBI seek to ensure that it is able to identify
and document the source of facts provided to Congress in testimony and
questions for the record, as well as in press releases.

3. Require Identification of Federal Crime as Part of
Documenting Predication

The Attorney General’s Guidelines require that FBI agents document the
basis of predication for preliminary and full investigations. FBI policy requires
“strict compliance” with this documentation requirement. As detailed in this
review, we found that in some cases the predication appeared to be based on
possible violations of state law, rather than federal offenses. We recommend
that the FBI specify the potential violation of a specific federal criminal statute
as part of documenting the basis for opening a preliminary or full investigation
in cases involving investigation of advocacy groups or their members for
activities connected to the exercise of their First Amendment rights.

4. Consider Revising Attorney General's Guidelines and
DIOG to Reinstate Prohibition on Retention of Irrelevant
First Amendment Material from Public Events

The 2008 Attorney General’s Guidelines and the FBI’s Domestic
Investigative and Operational Guidelines (DIOG) in various places address First
Amendment issues in connection with federal criminal investigations. The
2008 Attorney General’s Guidelines loosened the limitations on the FBI's
retention of information collected in connection with attendance at public
events. Under Part VI of the Attorney General’s Guidelines, the FBI formerly
was prohibited from retaining any such information unless it relates to
potential criminal or terrorist activity. This limitation has been removed from
the most recent Guidelines. Therefore, some of the violations of policy we
found in this review would not be violations if they occurred today. We
recommend that the Department examine the Guidelines and the DIOG to
determine whether to reinstate the prohibition on retaining information from
public events that is not related to potential criminal or terrorist activity.

189


opening memorandum were subjects of FBI investigations for their involvement
in criminal activities that included destruction of property.

The third element in the 2002 Guidelines also required that the activities
violate federal criminal law. The opening memorandum for the PETA case cited
three criminal statutes, including 18 U.S.C. § 43. As previously described, this
statute prohibits individuals from traveling in interstate or foreign commerce,
or using any facility of interstate commerce for the purpose of damaging or
interfering with the operations of an animal enterprise and in fact intentionally
causing such damage. The opening memorandum alleged an effort by PETA to
fund and direct on a national level unlawful acts that included the destruction
of property of animal enterprises. Such an effort, if proven, could violate 18
U.S.C. § 43. We therefore concluded that the FBI's opening of a preliminary
inquiry on PETA did not violate the Attorney General’s Guidelines or FBI policy.

We also considered whether there was a sufficient factual basis for the
three 90-day extensions authorized in the PETA preliminary inquiry. The
investigative guidelines in effect at the time provided that an extension to a
preliminary inquiry may be granted “based on a statement of the reasons why
further investigative steps are warranted when there is no ‘reasonable
indication’ of criminal activity.” We believe the first two extensions did not
violate the guidelines, but we questioned the third extension. At the time of the
first extension, FBI agents were awaiting additional subpoenaed financial
records that they believed might create investigative leads overseas. The
agents also had identified a disgruntled former PETA employee who appeared
cooperative and possibly in possession of relevant information, and were in the
process of making arrangements to debrief a second former employee who
might have knowledge of relevant criminal activity. The 90-day extension
provided the agents additional time to continue these lines of investigation.

The EC that requested the second extension highlighted some wire
transfers between PETA and a London environmental firm, although it did not
identify any anticipated follow-up investigation. The request also summarized
the results of interviews with the two former PETA employees referenced in the
first request for an extension. One witness did not provide any information
about possible violations of federal law, but did identify another disgruntled
former PETA employee who might speak with the FBI. The other witness
initially provided agents some potentially useful information; however, when a
polygraph examination was administered, the witness retracted some
statements, modified others, and was ultimately determined by the examiner to
be “deceptive.” The EC also reported on some recent connections to PETA that
were identified in two pending investigations in other FBI offices, including in
connection with the indictment of the Stop Huntingdon Animal Cruelty
organization. On balance, we concluded that because of the potential
additional witness identified by the former PETA employee and PETA’s

115


that attendance at the event was not prohibited by the Attorney General
Guidelines in effect at the time.

c. Online Research

Berry stated that after returning from the event he conducted online
research and reported the results in several paragraphs of the EC. The results
included information about the Merton Center, its executive director, and its
activities. The EC also reported information about an interfaith event that it
stated was coordinated by the Merton Center at the Islamic Center of
Pittsburgh.

Part VI of the Attorney General Guidelines, which addressed Internet
research, permitted such activity “for the purpose of detecting and preventing
terrorism or other criminal activities.” We concluded that Berry’s Internet
research regarding the Merton Center and the Islamic Center was not
authorized under this provision. If Berry had identified any Pittsburgh Field
Division terrorism subjects at the event or if he had any other information at
the time linking such subjects to the Merton Center — which he did not — his
research might have been authorized as the collection of another piece of
information for the purpose of detecting or preventing terrorism. But Berry
could not identify any authorized purpose for conducting this research, and no
such purpose is suggested in any contemporaneous documents. To the
contrary, Berry told us that he collected the information after the event in order
to have something to give his supervisor despite having failed to identify any
terrorism subjects at the event.

d. Retention of Information

The November 2002 EC contains information about the First Amendment
activities of the Merton Center, including the contents of the Merton Center
leaflets and information from the Merton Center website.

Part VI of the Attorney General Guidelines prohibited the FBI from
retaining information obtained from visits to public events unless it related to
“potential criminal or terrorist activity.” When Berry returned from the event,
he had no basis for suspecting that the photographs he took of a woman who
appeared to him to be of Middle Eastern descent would help identify any
terrorism subject who was present at the event.

In the end, Berry did not identify any terrorism subjects at the event and
he collected no other information linking the Merton Center to terrorism.
Therefore, the information he collected at the event (in the form of the Merton
Center leaflet and descriptions of Merton Center leaflet distributors) did not
relate to potential criminal or terrorist activity and should not have been
retained. Similarly, the information from the Merton Center website (which
was collected during the agent’s online research, discussed in the prior

62


As discussed in the prior section, we obtained a “routing slip” dated
February 8, 2006, prepared by the Pittsburgh Field Division Chief Division
Counsel's office in response to the FOIA request. The routing slip “strongly
urge[d]” the FBI’s Record Management Division (RMD) not to release the LHM
on the grounds that it did not appear to be an “agency record.”8° The routing
slip stated that the LHM “contains no author, no file number, and contains no
marking indicating supervisory approval for entering into any FBI record
keeping system.” The routing slip also stated that the LHM gave the wrong
impression that the Merton Center “was the subject of an FBI investigation
involved in international terrorism matters.” In describing the background for
the LHM, the routing slip stated:

The source of this document appeared on a stenographer’s
computer hard drive. The Pittsburgh Division was unable to
identify the author of this document. Attempts to locate a file
associated with this document were negative. The Pittsburgh
Division believes that this document could possibly have been a
draft that was never approved for filing.

In the March 2006 press response that primarily addressed the leafleting
event, the FBI commented on the February 2003 LHM. The press response
stated that the LHM “was actually a draft which was never finalized - nor made
a part of an FBI file.” It also stated that the “draft was retrieved from a work
file and processed under FOIA as part of the ACLU request.”

We asked the FBI to provide the “work file” referred to in the FBI's press
response but were told that there is no work file associated with the LHM,
consistent with the routing slip’s assertion. The FBI also stated in its response
to our request that the LHM was located on a stenographer’s computer, but the
Pittsburgh Field Division was unable to identify the author.

At the May 2006 Senate Judiciary Hearing, Director Mueller was not
asked about the February 2003 LHM. However, one of Senator Leahy’s written
follow-up questions addressed the LHM and requested detailed information
about the investigation referenced in the LHM. The FBI's response stated:

In response to the FOIA request the FB] conducted a manual
search beyond its record system for all information responsive to
the request. The 2/26/03 document was discovered during the
search of a stenographer’s computer hard drive for responsive
information. This document identifies no author or file number

86 The routing slip cited the case law standards for determining what constitutes an
“agency record.” We assume that the RMD considered the applicable legal standards before
releasing the LHM. We did not analyze this question.

68


APPENDIX C


need to comply with all requirements for use of an investigative technique set
by statute, Department regulations and policies, and Attorney General's
Guidelines. !8

The 2008 Guidelines contain language similar to the earlier Guidelines
regarding choice of investigative techniques. In addition, the 2008 Guidelines
state that in circumstances where different investigative methods “are each
operationally sound and effective,” the “least intrusive method feasible is to be
used in such situations.”

E. Counterterrorism Authorizations under Part VI of the 2002
Attorney General’s Guidelines

Part VI of the 2002 Guidelines authorized investigative activities designed
to further the FBI's “central mission of preventing the commission of terrorist
acts against the United States and its people.” (The 1989 Guidelines did not
contain a comparable provision to Part VI.) Part VI of the 2002 Guidelines
provided authority for specified activities that could be conducted even in the
absence of a checking of initial leads, preliminary inquiry, or full investigation.
Part VI stated that “the FBI must draw on available sources of information to
identify terrorist threats and activities .... It cannot be content to wait for
leads to come in through the actions of others . . . .”. However, the Guidelines
stated that the activities authorized under Part VI “do not include maintaining
files on individuals solely for the purpose of monitoring activities protected by
the First Amendment or the lawful exercise of any other rights secured by the
Constitution or laws of the United States.”

Part VI of the 2002 Guidelines identified several investigative activities,
some of which were focused on counterterrorism and others that were
authorized for both counterterrorism and general crimes matters. Below we
describe the Part VI provisions most relevant to this review. Although the 2008

18 The Guidelines expressly addressed one technique and its impact on the First
Amendment, stating: “In situations involving undisclosed participation in the activities of an
organization by an undercover employee or cooperating private individual, any potential
constitutional concerns relating to activities of the organization protected by the First
Amendment must be addressed through full compliance with all applicable provisions of the
Attorney General's Guidelines on FBI Undercover Operations and the Attorney General's
Guidelines Regarding the Use of Confidential Informants.” The 1989 Guidelines also stated:
“Undisclosed participation in the activities of an organization by an undercover employee or
cooperating private individual in a manner that may influence the exercise of rights protected
by the First Amendment must be approved by FBIHQ [FBI Headquarters], with notification to
Department of Justice.” The 2008 Guidelines state: “Undisclosed participation in
organizations in activities under these Guidelines shall be conducted in accordance with FBI
policy approved by the Attorney General.” The DIOG contains FBI policy regarding undisclosed
participation in organizations and provides that the FBI's policy for undisclosed participation
“uses a risk model: higher approval levels are required for [undisclosed participation] that
carries a greater risk to civil liberties because it is more intrusive.” DIOG §16.1.B.

13


This link was what made the information potentially relevant to domestic
terrorism, according to the agent. He stated that he was memorializing the
possibility of a connection between the Catholic Worker group and Prince of
Peace Plowshares, the individual involved in the 1997 Prince of Peace
Plowshares incident, and the potential for a threat to the naval base.

We found no other FBI documents referencing the Catholic Worker
indicating that the FBI conducted any further investigative activity with respect
to the incident in Norfolk or the two detained Catholic Worker protesters.

b. OIG Analysis

The 2002 Attorney General's Guidelines authorized the “prompt and
extremely limited checking out of initial leads” that “should be undertaken
whenever information is received of such a nature that some follow-up as to
the possibility of criminal activity is warranted.” See 2002 Attorney General's
Guidelines, Introduction, § A. We believe the agent’s activities were authorized
by this provision. The agent received information from another law
enforcement entity and followed up on it by checking the criminal histories of
the detained protesters, drawing a connection to a person with a criminal
history, and forwarding this information internally to other field offices that
might have use for the information. The brief references to the Catholic
Worker's First Amendment activities provided context for the incident and were
“pertinent to and within the scope of authorized law enforcement activity,”
within the meaning of the Privacy Act and Section 1-4(4) of Part 1 of the MIOG.

We also concluded that it was not a violation of FBI policy to retain the
ECs in the Norfolk Field Division's zero file relating to the domestic terrorism
program's classification for terrorism enterprise investigations. While the act of
nonviolent civil disobedience described in the ECs did not alone appear related
to a terrorism enterprise investigation, the FBI identified a link between one of
the protesters, the Catholic Worker, and an individual who 6 years earlier had
been convicted, along with other Prince of Peace Plowshares members, of
damage to a U.S. Navy ship. The individual and his fellow Prince of Peace
Plowshares members were convicted of damage to government property, an
enumerated offense under the definition of the “federal crime of terrorism.”
Given this link, the FBI could place the ECs describing the Norfolk protest and
the Catholic Worker’s role in that protest in the Norfolk Field Division's zero file
relating to terrorism enterprise investigations. However, as noted above, the
EC placement in a terrorism file did not make it more easily retrievable to the
FBI than it would if it were placed in a non-terrorism file.

As stated earlier, a zero file is a type of file holding information that does
not require investigative action. We found no FBI documents referencing the
Catholic Worker which show that, as a result of the EC, the FBI initiated any

157


responsible for assessing the domestic terrorism threat in the Norfolk Field
Division's territory and identifying potential sources of information. The agent
reviewed past complaints the FBI had received and civil rights investigations
that had been conducted, spoke with officers of state and local law enforcement
departments, and attended domestic terrorism conferences conducted by the
FBI. He said that PETA was one of the organizations that local law
enforcement and agents in other FBI field offices identified as possibly being
involved in criminal activities, including funneling money to ALF.

The agent conducted additional research about PETA by focusing on the
organization’s leadership and locating in FBI investigative files multiple
references to some individuals, including Collins, and their connection to
criminal investigations. Based on the agent’s research, the Norfolk Field
Division initiated a full investigation of Collins on May 10, 2001. The opening
Electronic Communication (EC) for the case stated that the FBI had considered
ALF a terrorist organization since 1987 and that “[plast FBI investigations
conducted to date developed evidence that members of the ALF were connected
to or directed by PETA.” The examples cited in the EC were the 1992 arson of
a laboratory at Michigan State University!!! and a 1997 raid of several fur
farms in Wisconsin by ALF members.!!2 The EC also asserted that PETA was
believed to hire interns for the sole purpose of committing criminal acts at
protests.

With respect to Collins specifically, the EC stated that the Norfolk Field
Division had received source information (obtained from other FBI field offices)
indicating that Collins the North American ALF, that Collins was ALF’s
, and that Collins traveled to
each year t which attendees are taught how to
maximize economic damage to businesses through protests, raids, and

11 During the investigation of the 1992 arson, a search warrant was served on the

private residence of a PETA employee. The search recovered a briefcase belonging to then-
PETA ._ The briefcase contained, among other items, false
identification , a credit card issued under one of EE aliases,

surveillance logs, lock-picking devices, code words for a university research facility, and
advising of a possible raid on a fox farm on Pennsylvania. The search of the
residence also recovered approximately $2,000 contained in an envelope
. The search also found various pieces of equipment, including night-vision goggles,
two-way radios, ski masks, and rubber gloves.

112 The investigation of the raid determined that the two individuals who conducted the
raid called PETA's anti-fur coordinator prior to the raid occurring. In addition, the two
participants, after being indicted, contacted another individual at the telephone number
subscribed to by the PETA anti-fur coordinator and obtained prepaid transportation from
Wisconsin to Washington, D.C. This same contact provided one of the participants a prepaid
airline ticket from Newark, New Jersey, to London, England, and contact information for a safe
house.

96


places on the same terms [as] the public for the purpose of detecting and
preventing terrorism or conducting an assessment of a terrorist threat, using
on-line resources, and conducting topical research . . . .”27

Although neither the 1989 nor the 2002 Attorney Generals’ Guidelines
referenced special events, the 2008 Guidelines state that the FBI may conduct
assessments as part of its special events management responsibilities. More
broadly, the 2008 Guidelines state: “participation of the FBI in special events
management, in relation to public events or other activities whose character
may make them attractive targets for terrorist attack, is an authorized exercise
of the authorities conveyed by these Guidelines.”

2. FBI Policies Relating to Collection, Retention, and
Dissemination of Special Events Information

FBI policies permit the collection, retention and dissemination of
information relevant to the FBI’s special events responsibilities, even in the
absence of a preliminary inquiry or full investigation.

In an EC dated May 14, 2004, the FBI addressed the collection, retention
and dissemination of information during special events. The FBI sent this EC
to all FBI divisions to clarify the terminology that field division agents should
use when sending lead requests to other divisions. The EC stated that the type
of information which should be collected, retained, and disseminated is that
which is relevant to an open preliminary inquiry or full investigation, sufficient
to predicate a newly authorized preliminary inquiry or full investigation, or
relevant to an authorized FBI law enforcement function such the FBI special
events mission. The May 2004 EC concluded by requiring FBI field offices to
include the following sentence in the last paragraph of any EC that requests
special events related information from other FBI offices: “Forward positive
intelligence from sources with knowledge of planned activity by individuals,
domestic or international groups under open preliminary inquiries or full
investigations, as well as intelligence from any source indicative of unlawful
activity or other acts of violence.”

As stated above, the 2008 Guidelines state that the FBI may conduct
assessments as part of its special events management responsibilities. As a
general matter, the 2008 Guidelines authorize the retention of records created
relating to the activities pursued under the Guidelines. The DIOG addresses
information obtained as a result of an assessment and generally states that

27 The FBI originally provided similar guidance in an April 26, 2004, EC. Other aspects
of this EC are discussed in greater detail below. In the March 19, 2004, EC, issued by the
FBI's General Counsel and sent to all FBI divisions, the FBI stated that its agents could attend
and conduct surveillance of public events in connection with the special events mission
authorized by Presidential Decision Directive 62.

18


FBI agents have attended First Amendment protected activities
when acting under all appropriate investigative authorities. For
example, in November 2002, an agent took photographs of an
individual at a peace rally, based on information directly related to
an investigation. Upon further investigation, the individual in the
photographs proved unconnected to the criminal matter under
investigation, and the photographs were destroyed. No monitoring
of First Amendment protected activities occurred.

Given the similarly of content and that it is dated a few days after the
press response was issued, it appears that the press response was a source for
the Director's Research Group document.7° FBI officials told us they were
unable to identify any individual who briefed the Director specifically about the
Merton Center matter in advance of the hearing. Director Mueller told us that
he has testified to Congress many times since the May 2006 hearing and he did
not have a current recollection of who briefed him on the Merton Center
surveillance. He said he could not recall the materials he may have reviewed
when preparing for his testimony.

Director Mueller’s testimony was not accurate for the same reasons the
press response on which it was based was not accurate, as discussed above.
However, we found no evidence indicating that Director Mueller was aware of
the inaccuracy of the information that was provided to him and that was the
basis for his testimony.

7. FBI Responds to Follow-Up Question From Senator Leahy
(May and June 2006)

Soon after the May 2, 2006, Senate Judiciary Committee hearing,
Senators submitted written follow up “Questions for Record” to the FBI.
Senator Leahy’s questions included four related to the FBI's alleged domestic
surveillance of peace groups. Three of the questions related to the Merton
Center. One question asked:

You testified that the agents “were attempting to identify an
individual who happened to be, we believed, in attendance at that
rally.” Please provide copies of earlier investigative memos that
document the basis for the agents’ belief that a person of interest
in an International Terrorism Matter would be present during
[Merton Center] leafleting activities on November 29, 2002.7!

70 The Director's Research Group document does not identify the Merton Center as the
protesting group or Pittsburgh as the site of the investigative activity described in the
paragraph.

7. FBI Oversight: Hearing Before the S. Comm. on Jud., 109th Cong. 125 (2006).

47


Pittsburgh Field Division agents on FBI investigative activities and the First
Amendment.

92


We selected the Merton Center for this review because it was one of the
groups whose FOIA releases prompted significant media attention and
congressional inquiries.

The remainder of this chapter is organized into three additional sections.
Section II addresses an incident in 2002 in which the FBI conducted
surveillance at a Merton Center-sponsored antiwar leafleting event. We
address this incident at length because the FBI’s conduct in connection with
the event raised significant issues, and the FBI’s subsequent statements to the
public and Congress about the incident were not accurate.

Section III of this chapter addresses several other incidents in which FBI
investigative activities touched upon the Merton Center. Section IV describes
the FBI’s response to issues brought to the public’s attention when the Merton
Center documents were released.

II. The Anti-War Rally in Pittsburgh

In February 2006, the FBI publicly released an Electronic
Communication (EC) dated November 29, 2002, that was written by Mark
Berry, an FBI Special Agent based in Pittsburgh.46 Berry stated in the EC that
he photographed leaflet distributors participating in an anti-war rally relating
to Iraq at Pittsburgh’s Market Square Pavilion, sponsored by the Thomas
Merton Center. The synopsis line stated that the EC was written “[t]o report
results of investigation of Pittsburgh anti-war activity.” The EC was released
pursuant to a Freedom of Information Act (FOIA) request, and its disclosure led
members of the public and Congress to question whether the FBI was spying
on protestors because of their anti-war views.

A press response from the FBI shortly after the FOIA release stated that
the agent took photographs of a participant at the Merton Center anti-war rally
“as a direct result of information provided to the FBI, related to an ongoing
investigation.”

In a Senate hearing in May 2006, Senator Patrick Leahy questioned FBI
Director Mueller about the FBI's surveillance of the Merton Center, and in
particular the November 29, 2002, EC about the anti-war rally in Pittsburgh.
Director Mueller responded by stating:

We were attempting to identify an individual. The agents were not
concerned about the political dissent. They were attempting to
identify an individual who happened to be, we believed, in
attendance at the rally. I'd be happy to have the IG look into that

46 Mark Berry is a pseudonym.

30


incident. This investigation was also classified as a domestic terrorism on
government reservations matter. The investigation was focused on the July
2001 arrests and subsequent prosecution of the 17 persons associated with
Greenpeace. In a January 2002 EC, the Special Agent stated that according to
a source, as a result of recent guilty pleas from Greenpeace members for VAFB
activities, most organized groups “would refrain from any civil disobedience
that exceeds the threshold of misdemeanor trespassing.”!8° The persons
arrested in July 2001 were convicted in January and April 2002. The file
contains no indication of any further activity of significance by any of the
groups at the VAFB.

In a July 2002 EC, the FBI closed the original investigation, stating that
at that time there was no indication that any of the subjects intended to
further violate the law. The FBI also closed its full investigation of Greenpeace
and the 17 persons arrested and convicted for the trespass activities at the
VAFB in July 2001.

The FBI Special Agent told us that the classification of the investigation
of Greenpeace and Catholic Worker as an act of domestic terrorism was
justified because while the actions themselves were nonviolent, they could be
dangerous to human life, an element of the statutory definition of domestic
terrorism. He said that although he did not believe that simple trespass should
generally be equated with domestic terrorism, in this case the entry onto
designated safety zones, the planned use of aircraft that may not be safely
flown in the area of the safety zone, or swimming in extremely cold waters, are
acts that while not involving the use of force or violence would expose
individuals to serious danger and were thus potential acts of domestic
terrorism. He said that while he did not have specific evidence that Catholic
Worker members were involved in the dangerous acts, he did not know at the
time the extent of their involvement with Greenpeace’s plans and believed the
groups could be affiliated. The Special Agent also said that they used the
domestic terrorism classification for the Catholic Worker “only for processing”
the VAFB trespass arrests and he would not have taken issue if “someone
would have said it belongs under crimes under government reservations.”

186 Jn addition to the individual criminal prosecutions of the 17 persons associated with
Greenpeace for the July 2001 trespass activities, the federal government sued Greenpeace
civilly in federal district court. The case was settled by the parties and in January 2002 the
court entered a stipulated judgment and injunction requiring Greenpeace to pay the United
States $150,000 in monetary damages and to refrain for 5 years from trespassing onto the
VAFB or any other federal military installations involved in the National Missile Defense
program. The settlement agreement was also conditioned on the court’s acceptance of a plea
agreement on the criminal prosecutions of the 17 individuals. See United States v. Greenpeace
Inc., No. CV-02-00156 (C.D. Cal. Jan. 16, 2002).

165


violate, the facts and circumstances known to the FBI at the time of the
opening ECs supported a preliminary inquiry and later a full investigation
relating to a potential violation of 18 U.S.C. § 1366 (Destruction of an Energy
Facility). This statute provided that “[w]hoever knowingly and willfully . . .
damages or attempts or conspires to damage the property of an energy facility
in any amount and causes or attempts or conspires to cause a significant
interruption or impairment of a function of an energy facility, shall be
punishable by a fine under this title or imprisonment for not more than ten
years, or both.” 18 U.S.C. § 1366(a) (effective to October 25, 2001). The
statute defines “energy facility” as “a facility that is involved in the production,
storage, transmission, or distribution of electricity, fuel, or another form or
source of energy, or research, development, or demonstration facilities relating
thereto, regardless of whether such facility is still under construction or is
otherwise not functioning.” 18 U.S.C. § 1366(c).

At the time that the preliminary inquiry was opened, the FBI concluded
that there was a “possibility of criminal activity” as required under the Attorney
General's Guidelines. Once under construction, the Northstar Project would
clearly be an energy facility within the meaning of the statute. The FBI also
had credible information (later confirmed by the conduct of Greenpeace
members) that Greenpeace members were planning activities which, if
successful, would interrupt or impair the function of the facility. Similar
actions to impede the activities of a target organization had been used by
Greenpeace members on numerous other occasions. Interrupting or impairing
the facility was Greenpeace’s central purpose. This information was sufficient
to support a conclusion that Greenpeace activities would possibly satisfy the
“damage to facility property” element of 18 U.S.C. § 1366.

By the time the full investigation was opened in April 2000, the FBI had
more information about the potential actions of the Greenpeace members that
provided sufficient predication for a full investigation under the “reasonable
indication” standard of the Attorney General's Guidelines. By that time, at
least 15 members of Greenpeace had been arrested while trying to impede or
impair construction of the project through means such as chaining themselves
to equipment. Under the circumstances, the FBI concluded that there was a
reasonable indication that 18 U.S.C. § 1366 would be violated.

As noted above, the focus of the full investigation shifted to efforts to
disrupt a different BP project (the Liberty Oil Field) and to protests relating to
Missile Defense, and we concluded there was adequate predication for a full
investigation into these additional matters. As to the BP Liberty Oil Field
project, although the FBI did not open a separate investigation, based on the
activities and arrests of Greenpeace members protesting the Northstar project
and other information there was a reasonable indication that these individuals
or others associated with Greenpeace would continue to disrupt or impede

130


Guidelines do not contain a separate section addressing the Part VI activities,
the Part VI activities described below would be authorized by the 2008
Guidelines as part of an assessment.

1. Visiting Public Places and Events

Part VI.A.2 of the 2002 Guidelines provided that “for the purpose of
detecting or preventing terrorist activities, the FBI is authorized to visit any
place and attend any event that is open to the public, on the same terms and
conditions as members of the public generally.”!9 However, this provision
prohibited the FBI from retaining information obtained from such visits unless
it related to “potential criminal or terrorist activity.” Neither the 2008
Guidelines nor the DIOG contain a provision restricting retention of
information obtained from such visits.

The FBI issued “Field Guidance,” dated October 7, 2002, (“2002
guidance”), which stated that Part VI.A.2 was designed to “enhance the FBI's
ability to visit public places and attend public events” while still imposing
“sufficient limitations to properly balance public safety and civil liberties ... .”
This Field Guidance stated that “use of this investigative tool proactively,
meaning prior to the development of a lead, is explicitly limited to the detection
and prevention of terrorist activities.” For collection of evidence of other
crimes, an agent must have had authorization based on the “extremely limited
checking out of leads, a preliminary inquiry, or a full investigation.”

The 2002 Field Guidance emphasized that while the terms and
conditions for gaining access to the event as a member of the public “may vary
depending on the public place or event, it is logical to conclude that gaining
access to public places or events through pretext or undercover activity is not
permissible under” Part VI.A.2. A March 19, 2004, EC from the FBI's General
Counsel expanded on this point, stating: “Undercover activity, surreptitious
entry into a private gathering at these events, and certain other investigative
techniques (e.g., consensual recording of conversations) are not permitted
under this authority.” The EC also stated that a source operating at the FBI's
direction would “stand in the same shoes as the agent and, therefore, can only
be directed to attend an event that an agent would also be permitted to attend
under the Guidelines.”

The 2002 Field Guidance also stated that, time permitting, agents should
obtain a supervisor's approval before visiting a public place or attending a

19 Courts have generally held that no chilling effect on First Amendment activities
results from certain intelligence gathering activities, including government agents’ attendance
at public meetings, the recording of information collected at public meetings, and the collection
and retention of publicly available information or information provided by other law
enforcement agencies. See Laird v. Tatum, 408 U.S. 5, 6 (1972).

14


advantage of being partly accurate, in that Person B was in fact the subject of a
Pittsburgh Field Division terrorism investigation. Therefore, we were not
persuaded that the fact that the two versions were different was compelling
evidence of an innocent error.

We acknowledge that the passage of time and the inconsistency and
incompleteness of witness accounts made it difficult to determine with
certainty whether the inaccuracies in the routing slip and the CTD response
were intentional or accidental. We acknowledge that it is conceivable that
these inaccurate reconstructions of events could have been the product of
chain of events indicating extraordinary carelessness by several FBI employees
involved in creating the inaccuracies. However, we believe the evidence
suggests that it was more likely an effort to present a version of events that
would provide stronger justification for the FBI Pittsburgh Field Division's
surveillance of the rally than could be found in the true reasons for the
surveillance.

d. Final Response Sent to Congress

The CTD response was an internal document that was not released to
Congress or the public. However, this response was used by an attorney in the
FBI's Office of Congressional Affairs as the basis for the public response that
went to the DOu’s Office of Legislative Affairs and that was ultimately sent to
Congress in response to Senator Leahy’s question.

As noted above, the central request from Senator Leahy was: “Please
provide copies of earlier investigative memos that document the basis for the
agents’ belief that a person of interest in an International Terrorism Matter
would be present during Merton Center leafleting activities on November 29,
2002.” The final FBI response to this question stated:

The investigation of the individual whose presence at the rally was
anticipated is still ongoing. Consequently, we are not able to
discuss this investigation further.

Because the final response was based on the CTD response, it was also
misleading. The final response refers to “the individual whose presence at the
rally was anticipated.” Because Person B is apparently the “person of interest”
referred to in the final response, the final response is inaccurate. As detailed
above, the FBI did not have any evidence to suggest that any person of interest
in an international terrorism matter would attend the Merton Center anti-war
rally. Moreover, the evidence demonstrates that the Berry was not sent to the
Merton Center rally specifically to look for Person B. Rather, this claim was an
after-the-fact justification, based on a search of documents in 2006, not based
on anything that occurred before the rally. Senator Leahy requested copies of
“earlier investigative memos” documenting the basis for the agents’ belief that

58


equipment over sea ice to the site, chaining themselves to pipes embedded in
the ice in the path of BP’s activities, or chaining themselves to BP’s
construction equipment.

According to the FBI file, on February 24, 2000, representatives from BP
security, Alaska State Troopers and the Alaska North Slope Borough met with
members of Greenpeace to advise them that certain areas, such as the right of
way for the pipeline and the ice roads that have been constructed for the
purposes of the sub-sea pipeline construction, were designated as
“environmentally sensitive areas” requiring special permission for entrance.
The Greenpeace members were informed that any trespassers would be
arrested for entering restricted areas. They were also informed that a special
Alaska State permit to camp in excess of 14 days in one location on “State
Land” was required.

On March 10, 2000, three individuals were arrested by state and local
law enforcement authorities for trespassing onto BP property. A fourth
individual was arrested a few weeks later for trespassing. Several more
members of Greenpeace were arrested in the ensuing weeks. At least two of
the protesters were in possession of thick chains and were attempting to secure
themselves to the cab of a backhoe when they were arrested. On April 11,
2000, five Greenpeace members were arrested while trespassing onto BP
property, and some of those individuals were in possession of chains and bolt
cutters. One of the arrested individuals was driving a snowmobile, which
dragged a warming hut containing two protesters chained together. The
activities for which the Greenpeace members were arrested were consistent
with the information that the FBI relied on in opening the investigation.

On April 18, 2000, the FBI opened a full investigation of 10 individuals
associated with Greenpeace in connection with the Northstar project. The
opening EC for the full investigation stated that based on the arrest of 15
members of Greenpeace and other information, Greenpeace activists remained
committed to engaging in direct action activities to halt the production of
petroleum energy in Alaska’s Arctic region by hindering, delaying, or halting
BP’s planned transportation of oil drilling equipment for the Northstar Project
during the upcoming summer months.

On August 7, 2000, seven members of Greenpeace boarded a 420-foot
barge carrying drilling equipment for BP’s Northstar Project. In boarding the
barges, the protesters crossed the 400 yard “safety zone” around the tug and
barge. As a result of the boarding, the barge was forced to turn around and
return to the nearest port. Greenpeace members erected a polar survival
shelter on the barge and sent an e-mail to BP employees describing the direct
action campaign against Northstar. In addition, Greenpeace members hung up
banners and flags on the barge.

127


communication be submitted to open the case on PETA as a preliminary
inquiry instead of as a full terrorism enterprise investigation.

According to the Norfolk agent who drafted the initial communication,
converting the case to a preliminary inquiry was not a point of contention with
the Norfolk Field Division, primarily because the change was not expected to
have a practical effect on how the investigation was conducted. The agent told
us that there was little difference between a preliminary inquiry and a full
investigation under the 2002 Guidelines in terms of the investigative
techniques that could be used. The Norfolk Chief Division Counsel similarly
recalled that the PETA case did not look like a matter that was going to involve
techniques that could only be employed in a full investigation, such as
electronic surveillance.!29 However, a preliminary inquiry, unlike a full
investigation, was required by the 2002 Guidelines to be renewed at fixed
intervals “based on a statement of the reasons why further investigative steps
are warranted when there is no ‘reasonable indication’ of criminal activity.” A
full investigation did not have to be renewed in this manner and, as in the
Collins case described earlier, could remain open for a long period of time.

The Norfolk Field Division, relying on the identical predication contained
in the original memorandum, submitted an opening EC to FBI Headquarters on
November 13, 2003, advising that the case on PETA was being converted to a
preliminary inquiry. 19°

In the preliminary investigation, the FBI collected and analyzed PETA
financial records, and identified and interviewed former PETA employees about
their experiences with the organization. Many of the ECs documenting the
investigative activity referenced both the preliminary inquiry terrorism
enterprise investigation and the Collins investigation, and the U.S. Attorney’s
Office treated the investigations as a single matter. In fact, the only significant
difference between the two investigations was the requirement that the PETA
preliminary inquiry be periodically reauthorized.

As noted above, the 2002 Attorney General's Guidelines and the FBI's
implementing policies provide that an FBI Special Agent in Charge may
authorize a preliminary inquiry terrorism enterprise investigation for a period
not to exceed 180 days, and may renew or extend the inquiry an additional 180
days. After that 360-day period, if the field office seeks to continue the

129 The 2002 Guidelines permitted the use of all lawful investigative techniques in a
preliminary inquiry, except mail openings and nonconsensual electronic surveillance (or any
other investigative technique covered by Chapter 119 of Title 18, United States Code (Wire and
Electronic Communications Interception and Interception of Oral Communications)).

130 Under FBI policy at the time, preliminary inquiry terrorism enterprise investigations
could be authorized by the Special Agent in Charge and did not require concurrence from FBI
Headquarters.


The EC justifying the second extension also cited cases in two other FBI
field offices that contained suggestions of PETA’s involvement in criminal
activity. In one case, a PETA employee was detained sometime in June 2003
with a bag containing items, including a pistol, ski mask, rope, bolt cutters,
and flashlight. In the other case, agents determined that a vehicle observed in
a driveway to a residence that Stop Huntingdon Animal Cruelty recently moved
into was registered to PETA. Agents in this case also

during which the leader of Stop Huntingdon Animal Cruelty said PETA was, as
stated in the EC, “a good group and helped out a lot.”

The PETA investigative file indicates that the Norfolk Field Division
intended to close the case at the conclusion of the second 90-day extension
because there was not enough information to justify converting the case to a
full terrorism enterprise investigation. However, as the Norfolk Field Division
was in the process of drafting a closing EC, personnel at FBI Headquarters
called the office and advised that it would grant an additional 90-day extension
for the preliminary inquiry. According to the EC from FBI Headquarters
documenting the extension, the decision was based on (1) the potential links
between PETA and Stop Huntingdon Animal Cruelty as described in the EC for
the second extension, and (2)

. In an EC confirming the 90-day extension, the Norfolk
Field Division summarized the investigative activities it expected to conduct
during the period: identify and interview additional disgruntled former PETA

employees, monitor the Stop Huntingdon Animal Cruelty investigation for
additional links to PETA, and maintain contact with the Se]

The third extension was set to expire on November 28, 2004. Several
days before this date, the Norfolk Field Division submitted an EC to FBI
Headquarters requesting what would be the fourth 90-day extension. The only
new information contained in the EC was an interview with a former PETA
employee who had described some suspicious activity by senior PETA
management

and indications of telephonic contact between the Physician’s
Committee for Responsible Medicine and the girlfriend of an animal rights

113


CHAPTER ONE
INTRODUCTION

I. Background

The Office of the Inspector General (OIG) initiated this review in response
to congressional inquiries that raised concerns over whether the Federal
Bureau of Investigation (FBI) had improperly targeted domestic advocacy
groups for investigation based solely upon their exercise of First Amendment
rights. }

The congressional inquiries were prompted by media reports describing
FBI documents released by the FBI pursuant to Freedom of Information Act
(FOIA) requests. For example, in a letter to the OIG, Congresswoman Zoe
Lofgren stated that the circumstances described in the news reports “suggest
that the FBI is investigating these advocacy groups based solely on their
engagement in peaceful, lawful speech and assembly activities protected under
the [First] Amendment.” In a congressional hearing, Senator Patrick Leahy
questioned FBI Director Mueller about allegations that the FBI had “targeted
Americans based on their exercise of First Amendment rights,” and Director
Mueller stated that he would welcome such an investigation by the OIG.°

Il. Scope and Methodology

We reviewed FBI investigative activity relating to five groups and one
individual because they were among those mentioned in the news articles and
congressional inquiries related to the release of FBI documents. Our review
addressed FBI activities over a 6-year period, from January 2001 to December
2006, related to the following entities:

e The Thomas Merton Center of Pittsburgh, PA;
¢ People for the Ethical Treatment of Animals (PETA);

1 The FBI has identified some material in this report as “sensitive but unclassified”
information that the FBI believes, if distributed publicly, could compromise the law
enforcement operations of the U.S. Department of Justice or affect the privacy of certain
individuals. This information is redacted (blacked out) in the public version of this report.

2 Letter from The Honorable Zoe Lofgren, U.S. House of Representatives, to Glenn A.
Fine, Inspector General, Department of Justice Office of the Inspector General (May 18, 2006).

3 FBI Oversight: Hearing Before the S. Jud. Comm. 109% Cong. 14 (2006). Senator
Russell Feingold also wrote the FBI Director expressing concerns about the released FBI
documents. See Letter from The Honorable Russell D. Feingold, U.S. Senate, to Director
Robert S. Mueller, III, Federal Bureau of Investigation (April 24, 2006).


resolving the HR charge against him, we believe that this
involvement raised significant questions about whether the agent complied

with FBI policy. We also found no indication in FBI files that these questions
were addressed in connection with approving or supervising the agent’s
operation of this source.

c. Collection and Retention of Information about
First Amendment Activities

The source reports included information regarding the First Amendment
activities of POG members. In fact, the first source report filed in the Herman
preliminary inquiry contained virtually no information other than information
about First Amendment expressions of participants in a political discussion
group in the Merton Center. This report had no apparent connection to any
actual or potential crime and focused solely on the identity of the participants
and the content of their speech.

As noted above, the source’s assignments were the product not of
genuine investigative activity but primarily were based on the agent's effort to
participate in the source program. The problems stemming from his actions
were compounded by the collection and retention of First Amendment
information in the source reports that resulted from this activity.

Among other things, the source reports raise significant questions under
the Privacy Act and FBI policy. As discussed in Chapter Two, the Privacy Act
prohibits agencies from maintaining records “describing how any individual
exercises rights guaranteed by the First Amendment . . . unless pertinent to
and within the scope of an authorized law enforcement activity.” This principle
was repeated in the 2002 Attorney General’s Guidelines and Section 1-4(4) of
the MIOG, Introduction. As noted above, we do not believe that the source’s
attendance at the POG events was an authorized law enforcement activity.
Moreover, even if the assignment had been appropriate, much of the
information collected by the source should have been excluded from FBI files.
The first source report was limited to identifying information about the
participants in a political discussion together with characterizations of the
content of the speech of the participants. No information remotely relevant to
actual or potential criminal activity was collected. We do not believe that any
of the information recorded in the report regarding the Merton Center political
discussion was pertinent to the Herman preliminary inquiry or any other
authorized law enforcement activity.

The subsequent source reports also raised Privacy Act issues. One
report identified certain individuals and described how they exercised their
First Amendment rights by participating in a “peaceful anti-war protest.” Three
reports related to planning meetings held at the Merton Center for an anti-war
protest, as well as a report on the protest itself. These reports included

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The EC did not contain any description of the FBI’s purpose in attending
the event. It did not state that the FBI was attempting to identify any terrorism
subjects or that Berry had been unsuccessful in doing so. Berry told us he did
not know why he did not include this information in the EC. He said he
believes his lack of experience explained why he wrote the EC as he did. He
told us that knowing what he knows now, “there would be no point” in having
written an EC documenting his activities. He said that it was a “poorly written
EC” that did “not capture exactly what was going on.” He also described the
EC as “atrocious on many levels” and stated that “the EC was a horrible
mistake” and that he could “understand why people would become inflamed
about it.” He stated that he wrote the EC as he did because he was a
probationary agent at the time and needed to please his supervisor and to
show her that whatever she told him to do he would do as thoroughly as he
could. He said that he did not want to give his supervisor an EC that was just
“three sentences long.” Berry said that he realized the significance of the
synopsis line - “To report results of Pittsburgh anti-war activity” - when he
reread the EC in preparation for his interview with the OIG. He stated that
when he read the synopsis line, his “jaw hit the table” and that it did not
“accurately indicate what was going on.”

Crosetti told us that the EC did not adequately describe Berry's activities.
She said there is “a lot of stuff behind this that we didn’t put in there and
shame on me for approving it and you know | can’t blame” the agent who wrote
it. She said that the EC should have stated the reasons that Berry conducted
the surveillance activities. She said the EC “could have less information on
some things, more information on others.” She stated that the synopsis line
was a bad choice of words.

3. Pittsburgh Division Legal Staff Drafts Routing Slip
Regarding FOIA Response (February 2006)

In May 2005, the American Civil Liberties Union (ACLU) filed a FOIA
request for FB] documents referencing the Thomas Merton Center. Legal staff
in the FBI Pittsburgh Field Division coordinated the FOIA response with the
Records Management Division (RMD), the FB] Headquarters Division
responsible for releasing nonexempt responsive documents pursuant to FOIA.
Berry’s November 2002 EC was one of the responsive documents. Stanley
Kempler, a Pittsburgh Field Division attorney, became involved in coordinating
the Pittsburgh Field Division’s response.5!

Just prior to the FBI's release of Merton Center related documents,
Kempler sent the Records Management Division a memorandun,, titled “routing
slip,” dated February 8, 2006. The routing slip recommended redactions to the

51 Stanley Kempler is a pseudonym.

35


identified in a domestic terrorism control file and that the EC was placed in a
file holding information that had been determined not to require investigative
action.

b. OIG Analysis

The recording of information about the Offut Air Base incident in an EC
was authorized under FBI policies because the information related not solely to
First Amendment activity but also to a violation of a federal criminal statute
prohibiting trespass on a military facility. The information about the protest
was “pertinent to and within the scope of authorized law enforcement activity,”
specifically the “checking out of initial leads” relating to a federal crime of
trespass on a military facility, 18 U.S.C. § 1382. See Privacy Act, 5 U.S.C. §
552a(e)(7), 2002 Attorney General’s Guidelines at Introduction, Part A; MIOG,
Introduction, § 1-4(4).

Although we found that retention of this information was not prohibited
by the Privacy Act, Attorney General's Guidelines or FBI policy, we questioned
the FBI's retention and dissemination of information of this type. The acts in
question were nonviolent civil disobedience, and the FBI has at times
disavowed interest in such activity. For example, in April 2006, following the
FBI's release of documents pursuant to a FOIA request, the FBI's Executive
Secretariat Office responded to a letter from a citizen expressing concern that
the FBI was “investigating the Catholic Worker” by stating: “[T]he FBI is not
targeting lawful civil disobedience. Our organization does, however, seek to
prevent unlawful violent activities. In order to do so, we advise our partners in
law enforcement of the tactics used by those who wish to impinge on the civil
rights of others by violently disrupting otherwise peaceful marches and
assemblies.” Yet, the information collected in this case had no relationship to
any “violent activities,” much less to terrorism.

In addition, we concluded that the FBI violated its own policies by
retaining and disseminating a news article about the protest. The MIOG,
Introduction, § 1-4(4) states that “[w]hen public-source printed material
concerning the exercise of First Amendment rights is obtained and a decision
made to retain such material, a notation must be placed on the material
describing the reason(s) it was collected and retained. The notation must
clearly indicate the specific investigative interest(s) which led to the decision to
retain the item.” The required notation was not included on the article in FBI
files or in the EC.

We also believe that it would have been more appropriate to retain the
EC in a file corresponding to crimes occurring on government reservations than
under the Acts of Terrorism classification. The EC did not state, nor did the
Special Agent tell us, that the individuals detained on the base were involved in
any terrorist or violent acts or associated with any suspected terrorists. In

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violence, and the only information indicating Peterson’s involvement in
unlawful acts was one, or possibly two, arrests several years ago for protest
activities not uncommon for animal rights activists. Under the guidelines in
effect at the time, preliminary inquiries “allow[ed] the government to respond in
a measured way to ambiguous or incomplete information” in order to assess
whether a full investigation was warranted. We found nothing to indicate that
Peterson's previous arrests were sufficient to justify the opening of an FBI
preliminary inquiry. !88

We also found that the Norfolk Field Division failed to comply with FBI
policy requiring that a domestic terrorism subject be removed from VGTOF and
other watchlists when the case was closed. The Peterson preliminary inquiry
was closed in February 2004, yet the Norfolk Field Division did not seek to
remove the individual from VGTOF until June 2007, more than 3 years later.
As a result, during these 3 years, the FBI collected information about
Peterson's travel activities that it would not have if Peterson’s VGTOF status
had been closed in accord with FBI policies.

F, Bruce Turner
1. Facts

The Norfolk Field Division initiated a preliminary investigation of Bruce
Turner on August 31, 2005.189 According to the EC opening the case, an FBI
source advised that Turner was a “hardcore” animal rights activist employed in
PETA's . The source told the FBI that because Turner's
the source
believed Turner supported ALF activities. The source also told the FBI that
Tumer was in at the time

The Norfolk Field Division conducted records checks that indicated
Turner had in Norfolk and that he was arrested in [J in
for burglary and disorderly conduct.!4° Turner’s name was also
referenced in FBI investigative files, including information indicating Turner's

138 According to a January 2, 2003, EC contained in the Peterson investigative file, the
Norfolk Field Division obtained information indicating that in

that provided instruction on
illegal protest activities. There was insufficient information in the file about this allegation for
us to determine that a preliminary inquiry was warranted on this basis.

189 Bruce Turner is a pseudonym.
140 The arrest report indicated that Turner was arrested in connection with his protest
|. Turner pled “no contest” to a misdemeanor
and was sentenced to .

122


arson.!13 The EC also asserted that Collins, i, was providing
financial support to members of ALF and other animal rights extremists to
conduct “direct actions,” a term the FBI generally defined as criminal activity
designed to cause economic loss or to destroy property or operations. The EC
did not provide any examples of this financial support. The EC also noted that
multiple businesses within the Norfolk Field Division’s territory had been
targeted by animal rights activists with graffiti, glued doors, and anti-meat
posters.

In addition, the opening EC cited examples of public statements Collins
had made in the past, such as

This interview, according to the EC, “gave further insight into
PETA’s alliance with ALF[.]” The EC noted that Collins had several
misdemeanor arrests “that appear to be relative to animal rights actions.”

The EC did not identify any specific federal crime that Collins had
committed, was committing, or might commit in the future. Rather, the EC
cited a statute that was violated by the activities attributed to ALF. This
statute, the Animal Enterprise Protection Act, 18 U.S.C. § 43, was cited in
subsequent investigative documents in the Collins case file and was relied
upon to support the predication for other PETA-related investigations,
including the terrorism enterprise investigation of PETA as an organization
opened in August 2003.!!4 At the time of the Collins investigation, this statute
provided that, “[w]hoever travels in interstate or foreign commerce, or uses or
causes to be used the mail or any facility of interstate or foreign commerce, for
the purpose of causing physical disruption to the functioning of an animal
enterprise; and intentionally causes physical disruption to the functioning of

13 This information is described in more detail in a memorandum discussed in Section
ILB. below, which was prepared by the Norfolk Field Division in support of its opening a
preliminary terrorism enterprise investigation of PETA as an organization.

114 For example, on June 15, 2001, the Norfolk Field Division requested that FBI

Headquarters send leads to various FBI Legal Attaché offices for any information Jil
TE cht fave about Collins and

PETA. In the EC to FBI Headquarters making the request, the Norfolk Field Division asserted
its belief that Collins, PETA, and the organization’s members were engaged in a criminal
conspiracy “to commit crimes across state lines, thereby affecting commerce, lawful
businesses, public policy, and government approved financial programs by use of force,
extortion, coercion, threats, violence, and arson that have resulted in the destruction of
personal and real property, personal injury, and human death (overseas), thereby constituting
Federal crimes by violating the Animal Enterprise Protection Act, Title 18 U.S. Code, Section
43; the Hobbs Act, 18 U.S. Code, Section 195; and the Racketeering Influenced Corrupt
Organizations Act (RICO), 18 U.S. Code, Section 1961.”

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HE. We found no basis to conclude that there was any

actual connection between Farooq Hussaini in Pittsburgh and the Dallas
investigation or the Dallas EC.

Several news articles in Pittsburgh publications from 2001 to 2003
described a Farooq Hussaini who was associated with the Islamic Center of
Pittsburgh. According to the news articles, he was active in fostering interfaith
relations and understanding of Islam in Pittsburgh. In fact, following
Hussaini’s death in May 2008, the Pittsburgh City Council designated June 8,
2008, as “Syed Farooq Hussaini Day,” in recognition of his contributions to the
community.

We found no evidence suggesting that anyone in the Pittsburgh Field
Division was even aware of the Dallas EC before the anti-war rally, much less
that it triggered any interest by the Pittsburgh Field Division in Farooq
Hussaini. As noted above, both Berry and Crosetti told us they never saw the
Dallas EC. Indeed, no one in the Pittsburgh Field Division would have been
alerted to the Dallas EC since it was not addressed to the Pittsburgh Field
Division but rather was placed in the Dallas file and sent to the attention of an
FBI office in Idaho.

The FBI Special Agent who wrote the Dallas EC told us she could not
imagine any reason why she would have forwarded the EC to the Pittsburgh
Field Division, and she did not believe she would have done so informally by
telephone or e-mail. The FBI analyst in Pocatello, Idaho who received the
Dallas EC and a told us she would only contact an
FBI field office in writing and that she found no FBI records indicating that she
alerted the Pittsburgh Field Division to the Dallas EC.

We also obtained query logs showing FBI employee searches of the FBI
databases routinely used in investigations. If Farooq Hussaini in fact had been
a person of interest to the Pittsburgh Field Division, we would have expected to
find documentation or database searches relating to him prior to the anti-war
rally. We found that no one in the Pittsburgh Field Division had ever searched
the databases using Farooq Hussaini’s name as a Search term prior to the
rally.56 We found no Pittsburgh Field Division documents referencing Farooq
Hussaini dated before the event.

In sum, we concluded that the routing slip falsely stated that the
Pittsburgh Field Division had investigative interest in Farooq Hussaini at the

56 Employees from other FBI field offices searched the databases for the name “Farooq
Hussaini” during this time period. We interviewed those who from the circumstances of their
searches might plausibly have alerted the Pittsburgh Field Division to Hussaini in the time
before the leafleting event. Based on these interviews, we found no evidence that anyone did.

38