2016-02-24 Plaintiff Surreply (Flores Decl) (Flores V DOJ) (15-CV-2627) (JG) (RLM) (Stampted)

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 1 of 57 PageID #: 1699
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LOUIS FLORES,

Plaintiff,

v.

UNITED STATES DEPARTMENT OF
15-CV-2627 (JG)(RLM)
JUSTICE,

Defendant.

DECLARATION OF LOUIS FLORES

I, LOUIS FLORES, the pro se Plaintiff, declare as follows :
1.
I am a journalist and an activist. I publish the online news Web site,
Progress Queens. I also maintain and own several political and activist blogs on the
Internet. I filed the First FOIA Request, as defined in the accompanying pleadings, on 30
April 2013, with the Defendant United States Department of Justice (the DOJ). I filed
the Second FOIA Request with the Civil Rights Division of the DOJ on 20 October 2015 in
an effort to close the loop on the records being requested from the DOJ.
2.
I ratify as facts all of the statements made by Plaintiff in the Amended
Complaint, particularly, but without exclusivity, all of the statements pertaining to

Plaintiffs efforts to negotiate with the DOJ for the release of records responsive to the
First FOIA Request. (Dkt. No. 15).
3.
Except for minor and reasonable allowances for typographical errors, I
ratify as facts all of the statements made by Plaintiff in all of the documents filed by
Plaintiff in the docket with this Court, and I attest to all documents filed by Plaintiff in
the docket with this Court as true and correct copies of such documents.
- 1 -
4.
This declaration and the exhibits annexed hereto submitted in support
of Plaintiffs opposition motion and Plaintiffs cross-motion for sanctions are true copies
of the documents in possession of Plaintiff.
M.
Attached hereto as Exhibit M is a true and correct copy of :
Excerpt from 2015-10-16 Conference Call between Plaintiff Louis Flores and
Defense Counsel Rukhsanah Singh, Esq.
N.
Attached hereto as Exhibit N is a true and correct copy of :
The first long-form article I have written, based on the few responsive
documents produced in the Second FOIA Response, evidencing the fact that the
Government is not being transparent about the guidelines it follows in the
prosecution of activists. This press report is available online. See Louis Flores,
Federal guidelines for the prosecution of activists appear to reconstruct a legal
framework lost under the Smith Act, Progress Queens (13 February 2016),
http://www.progressqueens.com/news/2016/2/13/federal-guidelines-forthe-prosecution-of-activists-appear-to-reconstruct-a-legal-framework-lostunder- the-smith-act.

In accordance with 28 U.S.C. 1746, I declare under penalty of perjury that the
foregoing is true and correct to the best of my knowledge and belief. Executed on
24 February 2016 (Jackson Heights, Queens).

___________________________________
Louis Flores
34-21 77th Street, Apt. 406
Jackson Heights, NY 11372
Phone : (646) 400-1168
louisflores@louisflores.com
Pro Se Plaintiff
TO :
[By ECF and e-mail to : rukhsanah.singh@usdoj.gov]
Rukhsanah L. Singh, Assistant U.S. Attorney

U.S. Attorneys Office - Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201
Attorney for Defendant
- 2 -
EXHIBIT M

Plaintiffs Exhibit M

Flores v. DOJ (15-CV-2627) (Gleeson) (Mann)

Excerpt from 2015-10-16 Conference Call

Attendees : Plaintiff :
Louis Flores

Defendant : Rukhsanah Singh, Esq.

I.
Receipt of Second FOIA Request
RS
O.K., did you receive the package ?
LF
No, I have not received the physical package, so I dont know what the
Declarations look like, and I dont know what the Exhibits look like, or the
documents that you are providing.

II.
LF
Limiting of Search
Im looking at the various ways that I described what Im looking for.

Number 1, Paragraph 3 says Im looking for limits, rules, procedures or
other guidelines that must or should be taken into consideration before,
during, or after the prosecution of activists, etc., and I have a concern that
when we were at the Initial Conference with the Magistrate Judge, that there
was a narrowing being made of the documents I was requesting. I used
guidelines as a generic term to describe what guides the DOJ in prosecuting
activists or what guides federal prosecutors in prosecuting activists. And the
I dont know if my emphasis on the word guidelines is acting as something
to limit the scope of what the DOJ is searching for. So, until I see what those
Declarations look like, I dont know Im first interested in knowing how the
DOJ is conducting this search.
RS
Yeah, and so the call can be more helpful after you receive the documents,
but what I can tell you is that the Declaration and the search, when it
searched for guidelines, it did not narrow it to documents specifically that
say guidelines. Its guidelines, procedures, protocols. In the
Page M-1


Declaration, the person who conducted the search provided the exact
language of your FOIA Request and and lets see here, it says : it looked for
information concerning activists that have been targeted for prosecution,
and the result was that there was no documents, no records found.
LF
O.K, thats one area Id like to have clarification on, because I recall the Judge
asking at our Initial Conference whether the first search at the U.S. Attorneys
Office or at the EOUSA, or at the District of Columbia office for the United
States Attorneys Office, if I remember, I recall, the Magistrate Judge asking
whether no records were found, or whether no records exist. So, it might be
helpful if the Declarations are going to say that none of these records exist,
period, or whether the DOJs only willing to indicate that no records were
found, because thats kind of two different things.
RS
Well, I think what the Declarations say is that no records were found. The
thing with whether no documents exist under FOIA law, there may be
documents out there in the world that we would not be aware of, and as long
as we do a diligent search, then we have fulfilled our obligations under FOIA.
So, I dont recall the Judge specifically asking at the Conference whether no
documents exist, wholesale, or whether no records were found. But, no
records were found. I can tell you, based on my conversations, that it
appears that its possible that no such records exist of the type that you are
referring to, but, again, were not obligated to make that representation. I
dont think we can say affirmatively that we know for a fact that such records
exist.

III.
5 :28 RS
First Scheduling a Second Call (that never happened)
But, again, it may be helpful for you to receive the documents and then
maybe we can have another call. If you want to send me a letter, maybe in
anticipation of the follow-up call, highlighting some of your questions and
concerns ?
LF
Page M-2
Sure.


IV.
The Unresolved Discretionary Release
LF
Also, looking at the FOIA Request, there were general requests that were
specific to Daniel Choi that I guess were going to have to wait for the
Magistrate Judge to answer, because although I asked her to consider making
a determination about all those public records that were part of the
discretionary release, I dont think we I dont think the Magistrate Judge
has addressed that issue, yet.

V.
LF
Second Scheduling of a Second Call (that never happened)
O.K., I think I have I know I have other questions, but until I see what the
Declaration has to say, I guess it might be best to wait. But, as soon as I get
that information, Ill send you a letter, so we have an outline to discuss before
we set up a follow-up call. That way, as you said, we have some kind of
something to go by.

VI.
RS
Angela George had a copy of the First FOIA Request all along
The EOUSA did not purposely attempt to ignore you in any way. In fact, they
did not have an actual copy of the FOIA Request. That could not respond.
LF
Again, I find that difficult to believe, because in your Answer, the DOJ
acknowledged receiving my e-mail, and attached to that e-mail was the FOIA
Request. But thats besides the point but thats besides the point
RS
It was acknowledged in the Answer
LF
right, right
RS
and what was not clear was that Angela George received we admitted
that, because Angela George did, in fact, receive your e-mail. Angela George
does not work for the EOUSA.
LF
So, youre going to follow those kinds of semantics in
RS
Its not semantics, Im sorry. But theres a procedure for FOIA requests.
Page M-3


VII.
LF
The DOJ Uses the Discretionary Release to Create Obfuscation
O.K., but going back to the issue of that first Conference Call1/ after the
Discretionary Release, the reason I did not accept those two documents you
offered to give me was because I knew that that was not the entire universe
of documents that were missing, and the last thing I was going to do was to
give you a position to say that you provided me with all the missing
documents, when I told you during that call that those two documents were
not the only ones that were missing, and
RS
You know, Im happy to now still provide you with everything thats
missing from the Choi case, if thats what you want. Im just not sure if thats
what you want. Is that what you want ?
LF
Im looking for the documents that were requested in my FOIA Request, and,
again, I believe that that Discretionary Release creates this red herring,
where if that is what I agree to accepting, youre going to use that against me
and say that you satisfied my FOIA Request, when that was not the original
those were not the original documents I requested. And I believe that that
Discretionary Release acts as a distraction, and I will nonetheless ask the
Judge to make a determination about how those documents must be dealt
with, because
RS
Well, let me just tell you this : Were not using it as an excuse for the FOIA
Response. The Discretionary Release is separate and apart from the FOIA
Response.
LF
O.K., but you know what ? FOIA does not work to allow the DOJ to make
discretionary releases, right ? FOIA is not something that is discretionarily
applied by the DOJ. Any executive agency has to produce documents that
exist that are reasonably requested by the public that theres no asterisk
there that allows an agency to make discretionary releases in place of
reasonably requested records, or whatever the wording is in FOIA.

1/
01 September 2015.
Page M-4


RS
I understand that point. What Im telling you is that we are not using the
Discretionary Release in place of the FOIA Response. The FOIA Response
was that there were no records located following the search. And then the
Discretionary Release was provided, because your request related to the
Choi prosecution, and we thought you were interested in the Choi
prosecution, and we thought maybe theres some documents in this
prosecution you would find helpful in your search, so, lets provide it as a
courtesy. Thats all the Discretionary Release was intended to be.
RS
VIII.
The Court Must Address What FOIA Obligations the DOJ Has
With Respect to Publicly-Available Documents in its Possession
Discretionary Release, you mentioned you would ask the Judge for
something ?
LF
Right, Im going to ask the Judge to make a determination about whether or

not the DOJ is allowed to, under FOIA, make discretionary releases Its not
the intention its not my intention in this lawsuit to allow the DOJ to assert
that its allowed to make discretionary releases subject to FOIA.
RS
O.K., our position is that they are entitled to release documents on a

discretionary basis, but so you would like a legal determination is what
youre asking ?
LF
Thats what I asked at the thats what I requested at the date of the Initial
Conference. I did ask the Magistrate Judge for a determination about how
does how is the Court going to treat that Discretionary Release. She did not
address that in her order in her Omnibus Order,2/ thats something I do plan
to raise with her.

2/
(Dkt. No. 14).
Page M-5


LF

IX.
The DOJ is Ignoring the Request For General Guidelines for
the Prosecution of Activists
But I want to state again, and I tried to state this at the date of the Initial
Conference, that Roman Numeral I in my FOIA Request, under number 1,
there are (a) through (six) requests. These were requesting general
guidelines. I requested six different versions of these general guidelines
applicable to the prosecution of activists, before I even started making
requests pertaining specifically to Lt. Choi, and I feel like
RS
I see what youre saying
LF
I feel like getting lost here is that that Discretionary Release and the way
that the DOJ is characterising my FOIA Request is that this is only about Lt.
Daniel Choi. I tried to clear that up at the Initial Conference. And again right
now, Im trying to say that there were more than documents pertaining to Lt.
Choi that I requested.
RS
No, that helps clarify.
LF
X.
The DOJ Made a Misrepresentation About Components
of the DOJ That Have a Criminal Division
Besides the EOUSA that covers the D.C. office of the U.S. Attorneys Office and
besides the Criminal Division at Main Justice, are those the only two
components of the DOJ that would have had or would have such guidelines ?
RS
They are, because the U.S. Attorneys Office would receive their guidelines, if
they were to have any, out of D.C., from the Criminal Division.
LF
And thats only from Main Justice. There is no other component that has a
Criminal Division ?
RS
No. Thats Its just the Criminal Division. Theres the Anti-Trust Division,
for example, theres a FOIA Division. If you look at the Web sites that I
provided to you in
Page M-6


LF
In the letter from last night ?
RS
In I think its two theres a full FOIA contact list, and it itemises the
different departments. But the Criminal Division is the division, which would
have information related to the prosecution of activists.
LF
And is that the office under the Assistant is that under the Office of the
Assistant Attorney General ?
RS
Yes, so the Office of the Assistant Attorney General is essentially the head
policy and enforcement section of the Criminal Division. The policies
originate from that office. Thats why that office was searched.

Full recording can be heard online : https://goo.gl/9iHkB3
Page M-7
EXHIBIT N
24/02/2016 11:09
Federal guidelines for the prosecution of activists appear to reconstruct a legal framework lost under the Smith Act Progress Queens
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Federal guidelines for the

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February 13, 2016
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Page 1 of 46
24/02/2016 11:09
A CONTROVERSIAL PURCHASING AND INVESTMENT

RESTRICTIONS BILL THAT, IF PASSED BY THE NEW YORK STATE
ASSEMBLY, WILL GO BEFORE GOV. ANDREW CUOMO (D-NEW
YORK) (OFFICIAL PHOTOGRAPH/NEW YORK STATE/PUBLIC
DOMAIN) FOR HIS CONSIDERATION. THE PROPOSED BILL
Progress Queens
Today
Wednesday, February 24
Friday, February 26
WOULD EMPOWER NEW YORK STATE OFFICE OF GENERAL
Flores v. DOJ
SERVICES COMMISSIONER ROANN DESTITO (NOT PICTURED)
Showing events until 4/30. Look for more
TO CREATE A LIST OF INDIVIDUALS, CORPORATIONS, AND

GROUPS ENGAGED IN BOYCOTTS OF CERTAIN NATIONS,
INCLUDING ISRAEL, AND SUCH INDIVIDUALS, CORPORATIONS,
AND GROUPS WILL BE BANNED FROM CONTRACTING WITH
NEW YORK STATE. SIMILARLY, COMPTROLLER THOMAS
DINAPOLI (D-NEW YORK) (OFFICIAL PHOTOGRAPH/NEW YORK
STATE COMPTROLLER'S OFFICE/PUBLIC DOMAIN) WOULD BE
FORCED TO CONSULT THE LIST AND BAN ANY STATE
INVESTMENT ACTIVITIES WITH SUCH INDIVIDUALS,
CORPORATIONS, AND GROUPS. IF HUMAN RIGHTS ACTIVISTS
ARE IDENTIFIED ON SUCH A LIST, THEIR ADVOCACY CAREERS
COULD BE TARNISHED BY A STATE-SPONSORED EFFORT TO
RETALIATE AGAINST ACTIVISTS BASED ON THEIR ACTIVISM.
THERE IS NO INFORMATION ABOUT HOW OGS COMMISSIONER
Events shown in time zone:

Eastern Time
Calendar
DESTITO WILL COMPILE SUCH A LIST, BUT ACTIVISTS HAVE

COMPLAINED THAT THE EXISTENCE OF SUCH A LIST MAY LEAD
TO A MODERN-DAY MCCARTHYITE WITCH HUNT OF HUMAN
RIGHTS ACTIVISTS. ONE OF THE LEAD SPONSORS OF THE STATE
SENATE BILL WAS STATE SEN. SIMCHA FELDER (D-BROOKLYN)
(OFFICIAL PHOTOGRAPH/TWITTER). IF THE BILL BECOMES LAW,
SOME HUMAN RIGHTS ACTIVISTS HAVE PREDICTED THAT STATE
SEN. FELDER MAY BECOME COMPARED WITH FORMER U.S.
SENATOR JOSEPH MCCARTHY (R-WISCONSIN) (LIBRARY OF
CONGRESS/WIKIPEDIA/PUBLIC DOMAIN), WHO INSTIGATED
CAREER-RUINING WITCH HUNTS OF POLITICAL ACTIVISTS
SOLELY BASED ON THEIR IDEOLOGY.
By LOUIS FLORES
The New York State Assembly is considering legislation
that would ban New York State from contracting any
Page 2 of 46
24/02/2016 11:09
business with any individual, corporation, or group that

advocates for or is engaged in the boycoC of certain allies
of the United States. A similar bill was passed by the State
Senate on January 18.
The State Assembly bill proposes to empower RoAnn
Destito, commissioner of the New York State Oce of
General Services, to create a list of individuals,
corporations, and groups engaged in boyco^s of signatory
nations to the North Atlantic Treat Organisation, or
NATO ; the Southeast Asia Treaty Organisation, or
SEATO ; and the Rio Treaty of 1947, except Venezuela.
Separately included nations are Ireland, Israel, Japan, and
South Korea.
Although many nations
were included in the State
Senate and State Assembly
bills, political reaction
focused on the state of
Israel.
In recent years, there has
been a growing
international movement
calling for a boyco^,
sanctions, and divestment,
ACTIVISTS FOR
INTERNATIONAL HUMAN
RIGHTS HAVE BECOME AND
MAY CONTINUE TO BE
TARGETS OF FEDERAL
known as BDS, in respect
CRIMINAL AND TERRORISM
of Israel following a
INVESTIGATIONS, EVEN
nding by the United

Nations that the State of
Israel had violated the
THOUGH THE ACTIVISM OF

ACTIVISTS HAS BEEN AND IS
PEACEFUL, A REVIEW BY
PROGRESS QUEENS HAS
Fourth Geneva
FOUND. SOURCE : PHOTO
Convention, a treaty
ILLUSTRATION/PROGRESS
which bars a nation from
QUEENS
transferring its own

Page 3 of 46
24/02/2016 11:09
population from within its own borders into occupied

territories.
That a proposed state law would be created to identify
activists engaged in peaceful activism centered around the
ght for human rights promises to extend existing Federal
law enforcement activity in this area.
Whereas the proposed New York law, no maêr how
legally suspect it may be, would have public consequences
for individuals, corporations, and groups on that list,
Federal actions in this realm are secretive and are focused
on investigating activists for possible criminal prosecution
over their peaceful protest activities or political organizing
work, areas which may also involve boyco^ work,
according to a review of records obtained by Progress
Queens from the U.S. Department of Justice under a
Freedom of Information Act and First Amendment
lawsuit.
Laws and law enforcement are encroaching on the ability
of citizens to engage in political speech, to politically
organize, and to petition their government for changes in
public policy. The range of these laws vary to create
ladders of engagement by law enforcement whereby the
touchpoints would potentially give the Government wide
latitude to treat such activists as targets for endless
investigation, and, possibly, prosecution.
@PROGRESSQUEENS
Progress Queens
RT @maslowsneeds: February
#newsleêr from @ProgressQueens
During the 1940s and 1950s, the United States was swept
#FOIA #NYCHA
up in irrational fears over a Red menace, namely, that
#CampaignForOneNewYork
the spread of the political and economic ideologies of

Communism overseas would inuence American citizens
h^ps://t.co/HCDCQSyeOT
h^ps://t.co/34hrZ3b4Hd
3 hours ago
to demand government and economic reforms that would

potentially subvert the government of the United States.
Progress Queens
U.S. Senator Joseph McCarthy (R-Wisconsin) led the
RT @Ethicsaintpre^: @kirstentheodos
Page 4 of 46
24/02/2016 11:09
charge at that time then to identify without proper

evidence activists or supporters of government and
economic reforms in an eort to silence political and
economic criticism and dissent. Those, whom the late Sen.
@TenantNet @ProgressQueens a combo

of both? im sure he said this in all
earnestness.
3 hours ago
McCarthy accused of engaging in subversive acts, were
Progress Queens
subjected to state-sponsored acts of retaliation, such as
RT @kirstentheodos: @TenantNet
being subpoenaed to provide public testimony, acts that
@ProgressQueens @Ethicsaintpre^ I
led to the creation of blacklists, including in Hollywood

and elsewhere, that ruined careers of many individuals.
Hundreds of individuals were charged with crimes under
a Red scare law known as the Smith Act.
The potential exists that the proposed New York State law
may create a modern day Red scare. Because the
proposed New York State law focuses on the economic
impact of activists political activities, the economic impact
is material to the potentiality of activists coming under
Federal investigation for the same boyco^ work. Under
don't know if I should laugh or cry.

h^ps://t.co/Smdb51pSVt
3 hours ago
Progress Queens
RT @informedvoting: .@WBAI is radio
for the 99% ! Make a donation of $25 to
become a member. Donate now :
h^ps://t.co/0aAupq8GQH
#keepthesignalontheair
3 hours ago
Follow @ProgressQueens
some of the Federal guidelines that govern the prosecution

of activists, law enforcement ocials can investigate
activists if their demonstrations have an impact on the
property of foreign governments. Activists, who advocate
for or are engaged in the boyco^ of certain nations, would
naturally have an economic impact on the nations, and the
creation of a list the purpose of which would serve to
facilitate state-sanctioned retaliation against activists
today harkens back to the McCarthy era that led to the
creation of blacklists and the Smith Act trials.
A state list of activists would make it

easier for Federal law enforcement
ocials to target activists for
investigation and possible prosecution
Speaking on background and not for a^ribution, a state
legislative source told Progress Queens that, in the
Page 5 of 46
24/02/2016 11:09
viewpoint of Albany ocials, it was not fair to compare

McCarthy era laws with the proposed Albany law.
Legislators rejected the McCarthyite accusations, Progress
Queens was told by the legislative source. The legislative
intents of the bills was to allow the state to refuse to
LINK LIST
Atlantic Yards/Pacic Park Report
Clean Up Jamaica, Queens Now
contract with activists boycoîng the named nations, that

the list being created would not lead to the arrest of
activists, and that the protections being oered by the
proposed New York State law would apply to some of
Americas important trade partners, according to the
information provided to Progress Queens by the state
Ethics Ain't Pre^y

New York City Council Watch
The Pen is Mightier than the Person
legislative source.
Queens Crap
Under the proposed New York State law, the worst that
Robert Reich
activists would face would be to be banned from

contracting with New York State, according to the state
legislative source. But that is not a complete and accurate
representation of the impact of the proposed New York
State list of boyco^ activists, according to records obtained
from the DOJ. Existing Federal law gives Federal law
#SaveNYC
Welcome 2 The Bronx
Willets Point United
enforcement ocials the discretion to commence

investigations of activists when their activism, even when
peaceful, may have a detrimental impact on the property
of foreign governments.
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Whereas the proposed New York State law instructs the

OGS Commissioner to notify the activists that the activists
have been identied and placed on the purchase
Enter your email address:
restrictions list to give the activists an opportunity to

respond to the information, there is no requirement that
Federal law enforcement ocials similarly notify activists
if activists have been identied for investigation or
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prosecution for what could be the same or similar

activism. Not only is there a lack of a Federal notication
Delivered by FeedBurner
or response requirements, but Federal investigations of

activists may take place in secret, including involving the
Page 6 of 46
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use of Federal investigations, principally conducted by the

Federal Bureau of Investigation, or FBI, acting to
represent Federal interests in the protection of the
property of foreign governments. And this FBI
involvement can take the form of FBI agents doing
undercover work, and, to further cloak the Federal
involvement, the prosecution of activists, if any cases lead
to the ling of criminal charges, can be delegated by
Federal law enforcement ocials to state or local ocials,
if Federal prosecutors determine that the protest work of
activists could be similarly prosecuted under state or local
law. The intent of such mandating would serve to further
keep Federal involvement cloaked in secrecy, according to
records reviewed by Progress.
The guidelines for such Federal involvement are outlined
in 9-65.880-82 of the United States Aôrneys Manual,
or USAM. These sections were identied to Progress
Queens by the U.S. Department of Justice as the guidelines
where the DOJ must seek approval before it can prosecute
activists for activism. It is important to note that the DOJ
has not fully answered many requests for documents in
the Federal lawsuit over the FOIA and First Amendment
lawsuit led by the publisher of Progress Queens, nor has
the DOJ answered questions following a due diligence
review of the few responsive records produced by the
Government. Nevertheless, according to the information
provided thus far, the following analysis of records and
information can be made.
Following an explication of the three sections from the
USAM.
USAM 9-65.880 : DEMONSTRATIONS

The applicable Federal legal statute that governs law
Page 7 of 46
24/02/2016 11:09
enforcement investigations and prosecutions is 18 U.S.

Code 970, which nominally codies the protection of
property occupied by foreign governments. In looking at
18 U.S. Code 970, the Federal prosecutors from the U.S.
ACorneys Oce, or USAO, normally look at violations
occurring during demonstrations of sizable numbers of
people that may involve the property of foreign
governments, like at embassies or missions. In such
instances, the USAO allows local police departments to
maintain order and to make arrests, if necessary. It can be
said that the USAO gives its implicit approval for policing
and arrests by allowing local police departments to take
the lead. Even so, the USAO is not relieved of its
responsibilities when it allows local police departments to
take the lead in policing and the making of arrests, if
necessary. The USAOs responsibilities commence by
participating in coordinated intelligence sharing on
potential disturbances likely to aect a foreign facility
and arrangements for needed law enforcement response.
Thus, even if the USAO allows local police departments
to take the lead on policing of demonstrations aecting
foreign facilities or foreign properties, the USAO must
aênd to the exchange of intelligence and the arrangement
of law enforcement response.
The USAO pre-plans for an Assistant U.S. ACorney, or
AUSA, to be assigned to monitor the demonstration. For
such demonstrations, the FBI, dispatches observers to the
scene, and the FBI observers provide spot reports to the
AUSA. If the USAO does not pre-plan for an AUSA to be
assigned to a demonstration, then, upon notication of a
demonstration likely to result in a disturbance, then the
USAO should assign an AUSA to monitor the
demonstration. Note that the USAO normally considers
demonstrations under the applicable law to involve
sizable numbers of people. Therefore, it can probably be
Page 8 of 46
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said that all demonstrations of such size would be likely to

result in a disturbance of some kind, such as aecting
street trac or the use of sidewalks, etc. Therefore, the
wording in the USAM exists to trigger the assigning of an
AUSA and the dispatch of FBI observers for all large
demonstrations that may be held at foreign facilities or
involve foreign properties, like embassies or missions, for
example.
The wording in the USAM cast violations of the law
protecting foreign facilities or foreign properties to be an
extension of violations of local law, and the wording in the
USAM highlights an expectation that local police
departments will make arrests for those violations of the
local law. In instances where there is no local law that
could be used for violations of the federal law protecting
foreign facilities or foreign properties, then the USAM
authorises arrests under the federal law without law
enforcement having to obtain any prior authorisation from
the Criminal Division of the DOJ. According to
information obtained by Progress Queens during
negotiations with the DOJ, policy of the Criminal Division
is set by the Oce of the Assistant ACorney General.
(Although 18 U.S. Code 970 deals with property that the
USAM treats as embassies or missions for purposes of
demonstrations, the DOJ cited USAM 9-65.880-82 as
authority for the Governments discretion to commence
prosecution of the late Internet activist Aaron Swarx, who
had been being prosecuted before his suicide for having
downloaded intellectual property, indicating that Federal
law enforcement authorities apply a very liberal
interpretation of what constitutes foreign property for
purposes of investigations and prosecutions.)
The USAM reveals that the FBI observers, who are
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dispatched to demonstrations to obtain spot reports, are

not in uniform. Thus, they act as observers in plainclothes. According to the guidelines, these plain-clothes
FBI observers cannot make any arrests, because their
purpose is to act as observers. Additionally, the
guidelines indicate that if the FBI observers wore
uniforms, the identication of their explicit presence
would create resistance to their work. In exceptional
circumstances, like a member of a foreign facility or
foreign property, like a mission, is aâcked, the FBI
observer or observers would be expected to take
protective measures for protected foreign ocials.
However, in instances where there are no exceptional
circumstances, the USAM provides that all protective
measures, including the making of arrests for aâcks on
mission members, should be taken by uniformed ocers.
Almost at all costs, the guidelines in the USAM appear to
want to prevent plain-clothes FBI observers from revealing
their identities as law enforcement ocers.
For maêrs under this section that are of Federal interest
(an area that was deliberately worded to have broad
implications), the Counterterrorism Section of the
National Security Division has general responsibility for
demonstrations. The USAM cautions U.S. ACorneys
(those prosecutors that oversee the AUSAs) to be alert for
demonstrations that indicate militant political
motivation, international in scope with subversive
overtones. (This wording seems to suggest an intent to
target activists based on ideology.) Thus, demonstrations
by people, who express radical dissent, are escalated from
an AUSA to the U.S. Aôrney, according to the
guidelines. In such escalated instances, the U.S. Aôrney
must consider reported violations and insure that any
other factors, which may highlight a Federal interest in the
demonstration and which may aect the prosecutorial
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merit of a possible violation, are documented in the FBIs

report of the demonstration.
These guidelines are silent about demonstrations that do
not involve sizeable numbers of people. Although the
focus of the guidelines in these sections appear to be in
respect of embassies or missions, property can also refer to
personal property, giving broad latitude to AUSAs and
U.S. Aôrneys.

PROCEDURES
The wording in this section of the USAM is complex, and
it was probably done intentionally.
Once the FBI receives information indicating a violation or
potential violation of the federal law protecting foreign
facilities or foreign properties, the FBI will notify the U.S.
Department of State and will consult with the appropriate
U.S. Aôrney. A demonstration is coded to be a violation
or potential violation of the federal law protecting foreign
facilities or foreign properties. According to the
guidelines, the FBI will initiate an investigation as is
deemed necessary if it is determined that Federal presence
is warranted, without qualifying how that is determined.
The contact with the Department of State is nominally
described as notication, however, if the Department of
State did not require an investigation, the time that the
Department of State would make that known would be
when the FBI notied the Department of State of a
violation or potential violation of the Federal law. Indeed,
when the U.S. Aôrney is not certain as to whether the
incident will adversely aect the foreign relations of the
United States, the U.S. Aôrney is provided a hotline to
the Department of State, that will connect the U.S.
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Aôrney with the appropriate Department of State ocial

with whom to consult. Here, the code word for
demonstration shifts from a violation or potential
violation of Federal law protecting foreign facilities or
foreign properties, to an incident that will adversely
aect the foreign relations of the United States. The
severity of the terminology has escalated within one
paragraph of the guidelines in this section.
Once a determination has been made that an investigation
is deemed necessary, and corresponding action has been
initiated, the FBI will report to each of the Criminal
Division of the DOJ, the respective U.S. Aôrney involved
in the investigation, the U.S. Secret Service, and the
Department of State without delay. Whenever there is
an unresolved dierence of opinion between the FBI, the
U.S. Secret Service, the Department of State, and the U.S.
Aôrney concerning action, or lack thereof, the FBI will
bring that unresolved issue to the Criminal Division of the
DOJ. There exists legal guidelines from the Department of
State that violations of the federal law protecting foreign
facilities or foreign properties that indicate that most
conduct in possible violation of the federal law is more
appropriate for disposition under local law. (Progress
Queens has made a request for such legal guidelines and
for records likely to exist before the U.S. District Court in
its on-going litigation with the DOJ. The court has yet to
rule on Progress Queens request.)
If a U.S. Aôrney receives a complaint about a violation of
the federal protecting foreign facilities or foreign
properties, the individual making the complaint will be
referred to the applicable FBI eld oce, with advice of
the applicable Department of State guidelines. However,
the FBI will report the complaint to the appropriate
United States authorities for consideration of possible
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Federal disposition. Although the appropriate United

States authorities in not spelled out here, presumably this
loops back up to the Criminal Division of the DOJ, the
respective U.S. Aôrney involved in the investigation, the
U.S. Secret Service, and the Department of State without
delay.
When the oense is of a nature that merits Federal
prosecution, the investigation should be conducted
without regard for whether the pertinent foreign ocials
will agree to appear as witnesses at an ensuing trial.
Here, the code for a demonstration has shifted to the
oense. Once the investigation has identied a subject,
and once the investigation has accumulated sucient
evidence to form the basis for Federal charges,
investigators should make a determination as to whether
the relevant foreign ocials will agree to testify. (Since
prosecutors generally only pursue prosecutions in trials
that can result in convictions, the repeated emphasis on
the pertinent foreign ocials agreeing to appear as
witnesses may be key for prosecutors to determine
whether to pursue a prosecution.)
Even when an investigation of an oense has determined
that there is a Federal interest sucient to proceed under
of the protection of foreign ocials statutes, the USAM
guidelines still indicate that there may be an advantage
to defer to a local prosecutor, particularly when local
laws beêr t the crime than do Federal laws.
(Presumably, if the crime is just a demonstration by
activists that, for example, is likely to result in a
disturbance of some kind, such as aecting street trac or
the use of sidewalks, etc., Federal prosecutors may be
rightly deferring the maêr to the local prosecutor to
impose prosecution with proportionally-appropriate
implications. However, in instances when Federal
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prosecutors defer the trying of criminal charges to local

prosecutors, there can be said to be an implicit admission
that the automatic triggering of Federal oversight over
activists engaging in local demonstrations may be
ensnaring activists for potential Federal scrutiny, even
though demonstrations may never result in the bringing of
Federal charges.)
Notwithstanding the deferral by Federal prosecutors of
criminal charges to local prosecutors, the USAM
guidelines gives USAOs the discretion to insure that the
FBI will monitor the progress of the local prosecution,
giving the FBI quasi-oversight over local prosecutors. In
instances where the local prosecutor should drop criminal
charges against an activist, the USAO should revaluate
the maêr, and a new prosecutive determination should
be rendered, meaning that, even if an activist had been
scrutinised by Federal prosecutors, but the maêr was
deferred to local prosecutors, before the activist can be
completely cleared of any charges dropped by local
prosecutors, the Federal prosecutors at the USAO are
given an opportunity to consider the brining of Federal
criminal charges against the activist anew.
None of the procedures noted in 9-65.880 are noted in
9-65.881.

INVESTIGATIVE DECISIONS BY U.S. ATTORNEYS
Local police departments have requirements for and give
instructions in respect of demonstrations by activists.
Furthermore, the USAM guidelines indicate that FBI
agents will explain Federal laws to activists. Federal law
enforcement ocials expect that activists will aêmpt to
comply with the requirements, the instructions, and the
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explanation of Federal laws. When a demonstration by

activists is deemed to be clearly objectionable by
investigators, such as obstructing an entrance to a
building), then the U.S. Aôrney may ask the FBI to
conduct an investigation in addition to the normal
procedures outlined in 9-65.880 (and possibly in 965.881). As the U.S. Aôrney decides whether to
commence a Federal investigation, prime factors that the
U.S. Aôrney must consider are the availability and
willingness of local police departments to act, given that
local police departments have the resources and the
traditional responsibility to protect people and
property. However, the USAM guidelines have been
shown to include particular sensitivity to the political
ideology of activists (if activists subscribe to revolutionary
political ideology, for example), or if the demonstrations
will adversely aect the foreign relations of the United
States, then the nominal focus for Federal responsibility
to protect people and property is not entirely limiting.
As the U.S. Aôrney decides whether to commence a
Federal investigation, the U.S. Aôrney may consult the
Department of State to discuss the potential impact upon
the foreign relations of the U.S. government. Here, it
becomes evident that when activists hold demonstrations
that intersect with the foreign policies of the U.S.
government, then the USAO may act to investigate
activists on behalf of the Department of State. Although
the USAM guidelines speak of demonstration actions that
are very minor or incidental, such as perhaps blocking a
doorway or the use of amplied sound systems (like a
bullhorn), the USAM acknowledges that these are
usually violations of local law statutes or ordinances.
Yet, the USAM guidelines escalate these minor or
incidental violations to a degree that they can have
potential impact upon the foreign relations of the U.S.
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government. Regardless of the imbalance between

actuality of any potential minor violations of local laws or
ordinances and a perception that these violations may
somehow impact U.S. foreign relations, the USAM
guidelines further acknowledge that local police
departments will enforce the local laws or ordinances.
The U.S. Aôrney will normally act after the
demonstration has ended or when the local police
departments fail to or cannot bring charges against
activists. The USAM guidelines specically note the
possibility that local police departments may lack
statutory authority to bring charges against activists. In
such cases, or where Federal action is deemed necessary,
the U.S. Aôrney will investigate activists.
Federal guidelines for the prosecution

of activists under the law that protects
the property of foreign governments
can overlap with the prosecution of
activists under the runaway terrorism
laws
Given the authority of law enforcement ocials to
commence investigation and prosecution of activists,
agents from the FBI and prosecutors from the U.S.
Aôrneys Oce may potentially seize on the proposed
New York State list of boyco^ activists as a starting point
to launch probes under 9-65.880-82 of the USAM.
However, it is not known to what extent Federal law
enforcement ocials will jump at the chance to
incorporate potentially new information about the
economic activism of human rights activists for purposes
of Federal criminal investigations and prosecutions of
activists.
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For this report, the press oce for the U.S. Aôrneys
Oce for New Yorks southern district did not answer
general questions submiêd in advance by Progress
Queens. There was an indication that perhaps the DOJ
may not fully instruct U.S. Aôrneys Oces about
guidelines applicable to criminal prosecution of activists
with First Amendment implications. Consequently, the
press oce referred these policy questions about the
prosecution of activists to the DOJ. In turn, the DOJ did
not answer these general policy questions submiêd by email for response, and the DOJ did not answer a follow-up
request for an interview for this report.
There is another, much larger, gray area when activism
that includes human rights issues, whether or not they
involve boyco^s of foreign nations, may be considered by
Federal law enforcement ocials to constitute providing
material support to dissident groups in those foreign
nations that are classied as terrorist groups. Because the
work of international human rights activists can also
potentially adversely aect the foreign relations of the
United States, if the U.S. government were to support an
oppressive foreign regime, then any U.S.-based human
rights activist may already be submiîng himself or
herself to Federal law enforcement investigation for
purposes that could potentially lead to their prosecution.
THE ADMINISTRATION OF FORMER PRESIDENT GEORGE W.

BUSH (OFFICIAL WHITE HOUSE PHOTOGRAPH BY ERIC
DRAPER/WIKIPEDIA/PUBLIC DOMAIN) OVERSAW TWO
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REVISIONS IN INVESTIGATORY GUIDELINES APPLICABLE TO

THE FEDERAL BUREAU OF INVESTIGATION, OR FBI. THESE
INVESTIGATORY GUIDELINES WERE PROMULGATED BY THE
OFFICE OF THE U.S. ATTORNEY GENERAL. IN 2002, FORMER
ATTORNEY GENERAL MICHAEL MUKASEY (NOT PICTURED)
UPDATED THE ATTORNEY GENERALS GUIDELINES FOR THE FBI.
IN 2008, FORMER ATTORNEY GENERAL JOHN ASHCROFT
(OFFICIAL PHOTOGRAPH/USDOJ/WIKIPEDIA/PUBLIC DOMAIN)
MADE FURTHER REVISIONS TO THE ATTORNEY GENERALS
GUIDELINES. SOME OF THESE GUIDELINES INCLUDE SPECIFIC
FIRST AMENDMENT CONSIDERATIONS. THE INVESTIGATION OF
THE 23 MIDWEST PEACE ACTIVISTS BEGAN UNDER THE 2002 A.G.
GUIDELINES AND LATER CONTINUED UNDER THE 2008 A.G.
GUIDELINES. THROUGHOUT ALL THAT TIME, THE FBI WAS
HEADED BY DIRECTOR ROBERT S. MUELLER (OFFICIAL
PORTRAIT/FBI/WIKIPEDIA/PUBLIC DOMAIN). IN THE
SUBSEQUENT ADMINISTRATION, PRESIDENT BARACK OBAMA
(OFFICIAL WHITE HOUSE PHOTO BY PETE
SOUZA/WIKIPEDIA/PUBLIC DOMAIN) RETAINED DIRECTOR
MUELLER AS HEAD OF THE FBI THROUGH 2013, A PERIOD
WHICH INCLUDED THE INVESTIGATION OF THE 23 MIDWEST
PEACE ACTIVISTS. IT WAS UNDER FORMER ATTORNEY
GENERAL ERIC HOLDER (OFFICIAL
PORTRAIT/USDOJ/WIKIPEDIA/PUBLIC DOMAIN) THAT THE FBI
PROBE OF THE 23 MIDWEST PEACE ACTIVISTS ESCALATED INTO
ATTEMPTS BY FEDERAL LAW ENFORCEMENT OFFICIALS TO
PROSECUTE THE ACTIVISTS. A BUSH-ERA FEDERAL
PROSECUTOR, FORMER U.S. ATTORNEY PATRICK FITZGERALD
(OFFICIAL PHOTOGRAPH/USAO/WIKIPEDIA/PUBLIC DOMAIN),
TOOK THE LEAD IN TRYING TO PROSECUTE THE ACTIVISTS IN
THE CHICAGO AREA. GRAND JURY SUBPOENAS WERE ISSUES,
AND SEARCH WARRANTS WERE EXECUTED. HOWEVER, NO
CRIMINAL CHARGES WERE EVER FILED AGAINST THE
ACTIVISTS. IN LITIGATION UNDER THE FREEDOM OF
INFORMATION ACT AND THE FIRST AMENDMENT, PROGRESS
QUEENS IS ATTEMPTING TO OBTAIN GUIDELINES APPLICABLE
TO FEDERAL PROSECUTORS IN CRIMINAL CASES THAT THE
GOVERNMENT BRINGS AGAINST ACTIVISTS FOR THEIR
ACTIVISM. THE GUIDELINES FOR FEDERAL PROSECUTION ARE
DISTINCT AND SEPERATE FROM THE GUIDELINES APPLICABLE
FOR FEDERAL INVESTIGATION.
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In September 2010, agents from the FBI searched the

homes of peace activists in Chicago, Minneapolis, and
Grand Rapids in an anti-terrorism investigation. Some of
the activists had been being monitored by Federal law
enforcement ocials since at least the 2008 Republican
National Convention, held in St. Paul, Minnesota, that
year then, for unknown reasons, reported The Chicago
Tribune in an article about the law enforcement
investigations. In the time leading up to the execution of
the 2010 search warrants, Federal law enforcement
ocials asserted that they had developed necessary
predicates to launch a formal and serious investigation of
the peace activists, according to a recounting of a
conversation one activist had with former U.S. Aôrney
General Eric Holder, as reported in an article published by
The Washington Post.
At the time of the 2008 RNC, Federal law enforcement
ocials were subjected to a set of rules established by the
DOJ, rules that were referred to as the 2002 ACorney
Generals Guidelines. The 2002 AG 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, according to a 2010 report of the DOJ Oce of
the Inspector General, or OIG. Under these rules, there
were further guidelines for the special treatment of First
Amendment activities in the FBIs Manual of
Investigative Operations and Guidelines, or MIOG. The
FBIs policy in the MIOG acknowledged the First
Amendment activities and the importance of these rights
in American society.
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Some of the guidelines changed after the 2008 RNC. In the

December following the 2008 RNC, the standard for
Federal law enforcement ocials to commence a general
crimes investigation were made simpler with the
issuance of the 2008 ACorney General's Guidelines,
according to the 2010 OIG Report. However, there
remained an emphasis on respecting the First Amendment
rights of activists, particularly in the FBIs Domestic
Investigations and Operations Guide, or DIOG, issued in
2008, which included a reexive reference to the Aôrney
Generals Guidelines that governed FBI investigations. A
fundamental principle of the Aôrney Generals
guidelines for FBI investigations and operations since the
rst guidelines were issued in 1976 has been that
investigative activity may not be based solely on the
exercise of rights guaranteed by the First Amendment to
the United States Constitution. And a key provision in
respect of investigations probing statements made that
advocate crimes of violence may be investigated unless it
is apparent, from the circumstances or the context in
which the statements are made, that there is no prospect of
harm.
Notwithstanding these guidelines, the 23 Midwest peace
activists, who came under Federal investigation in 2010,
faced a terrorism probe that began after some of their
political activities leading up to, during, and reportedly
after the 2008 RNC -- activities which should have been
protected by the First Amendment -- somehow helped
Federal law enforcement ocials to establish a predicate
to conduct a terrorism investigation, as it was publicly
revealed two years later.
The 2008 RNC proved to be problematic for activists,
generally -- even before the rst day of the convention,
and not just for the Midwest peace activists later targeted
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for investigation.
Law enforcement ocials executed search warrants on
protesters one week before the convention started. Glenn
Greenwald reported that the FBI was cordinating the
raids on RNC protesters in accordance with information
that the FBI was collecting from informants. Local police,
however, described the crackdown on activists as part of a
long-term investigation on anarchists, according to a
report published by Minnesota Public Radio.
What Progress Queens has been able to determine, based
on the preferences of DOJ ocials, U.S. Aôrneys, and
agents of the FBI, is that the Federal government
deliberately sought to delegate the investigation of
activists to local law enforcement authorities so that the
hand of the Federal law enforcement ocials could
remain cloaked. This hand-o is documented in 965.880-82 of the USAM. Whereas Mr. Greenwalds report
colored the FBI raid as part of the nations endless war on
terror and the corrupting role of the controversial law
known as the Foreign Intelligence Surveillance Act, or
FISA, nobody was apparently looking to already existing
guidelines that empowered the Federal law enforcement
authorities to conduct surveillance of, potentially target
activists for investigation, and to ultimately, if so
determined, to mount criminal prosecutions of activists.
Adding to the confusion is that Federal law enforcement
ocials have succeeded in cloaking their involvement in
the prosecution of activists behind the actions of local
police departments. Indeed, in New York, one prominent
civil liberties group contacted by Progress Queens would
not comment about the Federal implications of the
prosecution of activists for this report, instead referring
questions about First Amendment considerations missing
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from Federal prosecution guidelines to the prominent civil

liberties groups advocacy eorts to curtail a local police
departments mistreatment of activists.
Whereas there have been a substantive issuance of
guidelines governing the conduct of investigations by the
FBI in the last 15 years due to revisions in 2002 and 2008 of
the Aôrney Generals Guidelines, the last time the United
States Aôrneys' Manual was comprehensively revised
was in 1997.
FBI investigations of the Midwest

activists triggered a backlash
The FBI raids on the 23 Midwest peace activists were seen
as being so egregious that the lower Minnesota state
legislative house passed a resolution asking President
Barack Obama and the U.S. Congress to review the raids.
For their part, activists formed a group to called the
Commiêe to Stop FBI Repression to do similar advocacy
on their own behalf, only the activists also directly focused
some of their advocacy on then Aôrney General Holder,
too. On the groups Web site is a timeline, through 2012,
of the case.
Eorts were made by the public to try to piece together
the Governments rationale for the raids. In January 2014,
a Minneapolis newspaper, The Star Tribune, joined a legal
action to obtain records about the FBI raids on
Minneapolis activists. One month later, documents
obtained by two activists and reviewed by The Associated
Press for a report revealed that an undercover FBI
informant obtained information indicating that some of
the activists believed in the violent, armed revolution
against the U.S. and that some of the activists had raised
money for Colombian and Palestinian organizations the
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government considers to be terrorists, according to The

Associated Press report. Because the Federal guidelines
applicable to the prosecution of activists, as known to
Progress Queens, show particular sensitivity to an
ideology that includes militant political motivation, that
loose standard, which is subject to subjective
interpretation, may be enough to make many protesters
on the vanguard of activism to become vulnerable to
Federal criminal investigation.
Nearly a year after the FBI executed its search warrants on
the Midwest peace activists, a June 2011 article published
by The Washington Post noted that some of the activists,
who had been targeted, included prominent peace
activists and politically active labor organizers, raising
the spectre that the probe would possibly create some
political discomfort for President Barack Obama, since
some of the activists had crossed paths with then State
Senator Obama. Other activists had been active in labor
unions, which had supported State Senator Obamas
political rise, the article noted. Yet, the report in The
Washington Post improbably raised the question about
whether President Obama was even aware of the probe of
some of his past political supporters, even though any
serious DOJ investigation that would potentially have a
political bearing on the White House would have required
political clearance of some sort. During the term of former
Aôrney General Holder, no probe was ever launched
that could have caused a political embarrassment for
President Obama.
For this report, Progress Queens contacted the FBI eld
oces in each of Chicago and Minnesota.
A source in the FBI eld oce in Chicago would not
conrm or deny any details about any investigation of the
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activists. The source said that, generally, in such

investigations, the FBI conducts the investigations, and
Federal prosecutors with the U.S. Aôrneys Oces
would follow the manual in respect of the cases against
the activists. Federal prosecutors would determine
whether thresholds were met in regard to prosecutions
and investigations, saying of Federal prosecutors, They
are the ones, who decide.
In response to a request for an interview, a source with the
FBI eld oce in Minneapolis said, Im not at liberty to
discuss those kinds of investigations.
Aêmpts to conduct interviews with ocials with the U.S.
Aôrneys Oces for Illinois northern district and for the
Minnesota district were unsuccessful.
A never-ending encroachment by
Federal law enforcement on the
political activities of activists
None of the 23 peace activists in Illinois, Minnesota, or
Michigan, who which were ensnared in the 2010 FBI
probe, have testied before a grand jury, despite having
been served with subpoenas compelling them to do so.
And none of the 23 activists have faced criminal charges,
indication in the eyes of activists and their aôrneys that
the Government never had a credible criminal case against
them. What is more, an aôrney for some of the activists
said during an interview for a report published by The
Star Tribune that the blowback that the DOJ received for
having targeted activists for investigation may have
deterred Federal law enforcement ocials from pressing
forward with prosecutions, another sign that the cases
may have involved overreach to test the publics
acceptance of the prosecution of activists, even if the
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prosecutions would have compromised the activists First

Amendment rights.
The records reviewed by The Associated Press showed
that the Government had used government resources to
inltrate dissident political groups, adding that the
Government had sought to use evidence of political
activity opposed to U.S. foreign policy as proof of criminal
intent, Bruce Nestor, an aôrney for two of the
Minneapolis-based activists, told The Associated Press.
It was clearer now that activists, who opposed the foreign
policy of the U.S. government were going to potentially
become the targets of Federal investigation by the Obama
administration.
That the activists evidently faced years of investigation
that ultimately led to no prosecution might violate
applicable investigation policies and procedures.
Guidelines in place during the 2008 RNC directed that
checking of initial leads should be conducted with an eye
toward promptly determining whether further
exploration, either a preliminary inquiry or a full
investigation)[,] should be conducted. The checking of
leads by the FBI were not limited to any types of
investigative techniques under the guidelines applicable
during that time then.
After the 2008 AG Guidelines came into eect, however,
FBI procedures created a loophole, allowing the agency to
initiate assessments as a type of investigation without
any factual predication. The only limitation restricting the
conduct of assessments as a type of investigation were
investigative techniques that included obtaining publiclyavailable information, engaging in observation, or
engaging in surveillance that did not require a court order.
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Notwithstanding the direction that the checking of leads

for the most minimal type of investigation be made
promptly, it is not known if there existed then, or exist
now, any restrictions on Federal prosecutors with the
various U.S. Aôrneys Oces around the nation to
reasonably terminate dead-end investigations once they
have been begun.
Nor is it known if there are any First Amendment-specic
policies applicable to Federal prosecutors that could be
comparable to the First Amendment-specic policies
applicable to the FBI, for example. The lawsuit led by
the publisher of Progress Queens in Brooklyn Federal
court has sought to obtain records about how Federal
prosecutors balance the First Amendment, civil rights,
civil liberties, and other civil rights of activists in cases that
the Government may bring against activists over their
activism. In dispositive motion practice lings with the
U.S. District Court for New Yorks eastern district made by
Assistant U.S. Aôrney Rukhsanah Singh, the
Government rejected accusations that the DOJ was
withholding such records because, There can be no
withholding when, as in this case, no responsive records
exist. To no surprise, AUSA Singh and others, including
Assistant U.S. Aôrney Angela George, have
surreptitiously acted to thwart the release of such records.
AUSA George is a Federal prosecutor, who tried LGBT
civil rights activist Lt. Daniel Choi for his activism that
largely contributed to the over-turning of the
Governments formerly discriminatory policy against
open gays and lesbians from serving in the U.S. military,
known as Dont Ask, Dont Tell. In opposition
pleadings, Progress Queens has demonstrated that records
likely exist and has made a demand for those records.
It is not precisely known at what type of investigation the
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FBI initiated in respect of the information its undercover

informant had received in the case of the 23 Midwest
peace activists. Because the policies and procedures allow
for basic inquiries to graduate to higher forms of
investigations, the type of investigation could have
changed over time.
Expanding the ability of Federal law enforcement to
prosecute activists for anti-war activism was the
PATRIOT Act of 2001. Prior to passage of the PATRIOT
Act, it had already been unlawful to provide material
support to groups identied by the U.S. Secretary of State
to be foreign terrorist organizations. What the PATRIOT
Act did was to expand the denition of material support
or resources to include the provision of expert advice or
assistance. In a test case that went all the way up to the
U.S. Supreme Court, the Supreme Court justices ruled that
the amended material support law does not violate
activists freedom of speech guaranteed by the First
Amendment.
The Governments case against the 23 Midwest peace
activists, once the FBI had completed enough of whatever
type of investigations they commenced, were handed up
to the U.S. Aôrneys Oces in each of Chicago and
Minneapolis. It was shown that Federal prosecutors were
seeking information from the execution of the search
warrants about records showing whether the activists had
provided material aid to groups identied by the U.S.
Secretary of State to be foreign terrorist organizations,
including the Popular Front for the Liberation of Palestine.
Two Minneapolis-based activists were members of a

group known as the Freedom Road Socialist
Organization, a group that, according to The Associated
Page 27 of 46
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Press, had been open about its Marxism philosophy, and

members of Freedom Road had been, in turn, supportive
of another group, the Revolutionary Armed Forces of
Columbia, a group referred to in that nation by the
acronym, FARC. The Government made fantastical
accusations against one of the members of Freedom Road,
claiming that Freedom Road, despite not having enough
members and not being there yet, had a plan to seize
locations as part of armed revolution. The Government
also claimed that Freedom Road had used activism to
steer money to the Popular Front for the Liberation of
Palestine. Both FARC and the Popular Front were
designated in 1997 as terrorist organizations by the U.S.
Department of State by former Secretary of State
Madeline Albright during the second term of former
President Bill Clinton.
One Minneapolis activist described the fantastical
Government accusations as lies, according to The
Associated Press report.
A potential Federal political bias

against making economic and
democratic progress
Just because some activists may subscribe to revolutionary
thought does not necessarily mean that their ideology
cannot be allied with the U.S. government. During World
War II, the progressive administration of President
Franklin Roosevelt had a no-strike policy with some
Communists union activists in order to guarantee steady
industrial production from Americas factories. The ideas
of social and economic protections for Americans is what
led to the creation of policies that provided some
employment and income protections for workers. After
the war, the political sensibilities changed in Washington,
Page 28 of 46
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and the high degree of central Government planning of

the economy that helped ght the Great Depression
began to be unwound, and activists with a revolutionary
bent became the target of McCarthyism eorts to purge
the nation of any ideology that could potentially disrupt
the nancial boon from the rapid spread of capitalism that
was set to enrich the coers of large U.S. corporations.
Many human rights activists have long objected to the
classication of some groups as terrorist organizations.
Minneapolis activists targeted by the Government for
investigation, for example, objected to the Department of
State classifying FARC and the Popular Front as terrorist
organizations. Separately, human rights activists opposed
to the illegal Israeli occupation of the West Bank and the
Gaza strip have informed Progress Queens that when the
Department of State classies certain groups as terrorist
organizations, the United States is prolonging human
rights violations in the foreign countries where those
groups operate, like in Israel. Israel, for example, has been
found to be in violation of Fourth Geneva Convention, a
treaty which bars a nation from transferring its own
population from within its own borders into occupied
territories. Despite the human rights violations,
recognized by the United Nations, the United States has
essentially made it illegal for activists to advocate on
behalf of some human rights groups within Israel.
Intersecting with Federal guidelines for the prosecution of
activists is the new, proposed New York State law, which
could potentially give Federal authorities a list of human
rights activists advocating for economic sanctions against
Israel, which could conceivably be interpreted by Federal
prosecutors to lead to a diminishment of the property of a
foreign government. Morever, as one of the aôrneys for
the 23 Midwest peace activists warned, the Government
Page 29 of 46
24/02/2016 11:09
has been seeking to use evidence of political activity

opposed to U.S. foreign policy as proof of criminal intent.
Of the proposed New York State law, international human
rights activist Pauline Park told Progress Queens that
state legislators were creating a backdoor way to punish
free speech by banning activists from contracting with
New York State, adding that this amounted to a
curtailment of civil liberties and rights of individuals and
organizations to advocate in the public sphere.
To some human rights activists, the Governments eorts
to target activists in respect of demonstrations, including
advocating for boyco^s and economic sanctions of foreign
governments, conveniently overlook the advocacy of other
groups that essentially want to maintain a status quo of
human rights violations. Whereas the United Nations has
declared that Israel is violating human rights of its
citizens, the United States is sidestepping any
responsibility to act to pressure Israel to comply with
international human rights laws. Instead, the Government
has been targeting human rights activists, and some
activists told Progress Queens that the Governments
actions may have something to do with the inuence of
overseas groups advocating a status quo. If it were true
that the U.S. government has been more concerned with
political inuence, international in scope with subversive
overtones, then the U.S. has been being duplicitous about
the equal application of its own legal standard, eectively
allowing political bias to determine which international
inuence to treat as subversive.
Speaking of the New York State Senators, who voted to
pass the purchasing and investment restrictions bill, Ms.
Park said, They are afraid of BDS, because its gaining
traction, referring to the international boyco^, division,
Page 30 of 46
24/02/2016 11:09
and sanctions movement against the State of Israel. Who

knows what the actual impact of the bill will be, Ms. Park
added, but it will have a chilling eect [on speech].
Whereas the focus of some activists may be on the
technicalities of the proposed New York State law,
activists are overlooking the role that the list being created
could have on triggering Federal investigations of activists
under laws applicable to the protection of the property of
foreign governments. Besides the state bill, other laws,
already in eect, like the protest permit law in New York
City, could potentially be used against activists under
Federal investigations if the demonstrations aect the
property of foreign governments. The shifting of these
touchpoints to local and state laws masks the reach of
Federal law enforcement ocials, particularly the FBI and
Federal prosecutors from the U.S. Aôrneys Oces.
Using terrorism investigations to

circumvent First Amendment
protections of activists
During the 2008 RNC, the guidelines applicable to general
crimes investigations would have allowed Federal law
enforcement authorities to commence a full investigation
when there was a reasonable indication that a federal
crime has been, is being, or will be commiêd. This
standard is substantially lower than having to establish
probable cause, and amongst the circumstances that an
investigator could consider included a future violation.
Some guidelines in place during the 2008 RNC allowed
Federal law enforcement ocials to investigate the
relationships between members of a group being
investigated as a terrorism enterprise, even as applicable
regulation cautioned investigators about the use of
investigative techniques having an eect on the privacy
Page 31 of 46
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rights of individuals and any resulting potential damage

to the reputations of individuals under investigation.
Other guidelines in place during the 2008 RNC were more
restrictive, because a mere hunch was insucient to
initiate a general crimes investigation. And Federal law
enforcement authorities could not keep records solely
about the First Amendment activities of individuals.
In respect of terrorism enterprise investigations, the
guidelines in place during the 2008 RNC stated that mere
speculation that force or violence may occur during the
course of an otherwise peaceful demonstration was not
sucient to initiate a terrorism enterprise investigation.
However, the same applicable guidelines would have
allowed a terrorism enterprise investigation to be initiated
if there was reasonable indication that two or more
persons were purposefully furthering political or social
goals wholly or in part through activities that involve
force or violence and a violation of Federal criminal law,
again creating the possibility that activist, who subscribed
to revolutionary or vanguard political thought, could
become targets of investigation solely because of their
ideology.
Anytime that violence is the subject of a Federal criminal
investigation, a question arises about the Government
meeting the applicable holding legal standard in
prosecution cases, namely, that violence must involve an
intent to harm to become a prosecution that will uphold
in court. The fact that the Government could not meet
that standard in the case of the 23 Midwest peace activists
may indicate that the Government may be abusing
terrorism investigations as a way to investigate the
political activities of activists. Since there appear to be
fewer or no First Amendment considerations in terrorism
enterprise investigations (as opposed to general crimes
Page 32 of 46
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investigations), the Government has more leeway to probe

the political organizing of activists in the realm of
terrorism investigations.
U.S. ATTORNEY PREET BHARARA IS THE NATION'S TOP

FEDERAL PROSECUTOR FOR NEW YORK'S SOUTHERN DISTRICT.
HE HAS EARNED ACCOLADES FOR PROSECUTING POLITICAL
AND CAMPAIGN CORRUPTION. HOWEVER, HE HAS
PROSECUTED CASES AGAINST ACTIVISTS, AND HIS OFFICE LED
THE CHARGE ON INVESTIGATING ACTIVISTS OVER THEIR
POLITICAL SPEECH THAT HAD NO PROSPECT FOR HARM,
LEADING TO CRITICISM THAT HIS OFFICE WAS TRAMPLING ON
THE FIRST AMENDMENT RIGHTS OF ACTIVISTS. SOURCE :
LOUIS FLORES/PROGRESS QUEENS/FILE PHOTOGRAPH
(But even in general crimes investigations, the

Government has been aêmpting to ignore having to
establish the legal predicate of intent to harm. In 2015, the
U.S. Aôrneys Oce for New Yorks southern district
issued a Grand Jury subpoena to Reason.com, seeking
Page 33 of 46
24/02/2016 11:09
identifying information, such as e-mail addresses, I.P.

addresses, and device information, of readers of
Reason.com whom had posted comments that beli^led a
Federal judge, who had, in turn, presided over the Silk
Road case, even though there had been no intent to harm
established in the comments of Reason.com readers.)
Policies and procedures that would be introduced with the
2008 AGs Guidelines would have allowed predicated
investigations to 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 2002 AG Guidelines would not have
allowed the FBI to open preliminary enterprise
investigations using a lower legal standard that had
existed under the previous applicable guidelines, and the
2008 AG Guidelines restricted the FBI to opening full
investigations of groups suspected of terrorism, rather
than giving the FBI the option of opening a preliminary
inquiry, an authority that had existed under the 2002 AG
Guidelines. It was amidst the loosening and the
tightening of Federal investigation guidelines that the
Government was able to, according to former Aôrney
General Holder, establish a predicate to prosecute the 23
Midwest peace activists.
After more than three years had passed from the
September 2010 raids and The Associated Press had
published its report of the raid documents, the
exasperation of activists had reached a new peak, because
nobody had been formally charged with any Federal
crimes. There had been no crimes of violence, and that
was because there were no statements made by activists
with a real prospect for harm, the legal standard that
needed to have been met for Federal criminal
investigations of activists that could have trumped the
Page 34 of 46
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activists First Amendment rights.

In the view of some activists, the Government was not so
much targeting the activists as much as the Government
was focusing on those supporting FARC and the Popular
Front, the two groups that the Department of State had
classied as terrorism organizations.
Speaking about her observations about the Governments
case as a lawyer for some of the activists, Chicago aôrney
Melinda Power told Progress Queens that, in her view,
the Governments case against the 23 Midwest peace
activists would have solely been a First Amendment
violation if the government had targeted the peace
activists. If their claim had been legitimate, Ms. Power
said, referring to the Governments accusation that the
activists were acting with an intent to harm, then it
would not have been a First Amendment violation.
Since the Government did not establish a predicate for an
intent to harm, that leaves open for interpretation whether
the net eect of the Governments intrusion on the
political activities of the activists and the miscasting of the
reputations of the activists as suspects in terrorism
investigations may have violated the 2002 AG Guidelines
in respect of the use of investigative techniques during
preliminary and full investigations for investigations that
commenced in the time leading up to the 2008 RNC.
Ms. Power told Progress Queens that if the Government
had been intending to disrupt the free speech of activists,
who supported human rights in Columbia and in Israel,
then the Governments case against the 23 Midwest peace
activists backred.
The Government did not have the response that they
Page 35 of 46
24/02/2016 11:09
wanted, the Government did not chill the First

Amendment rights of activists, and people were so mad
that they organized a campaign to push back against the
Governments intrusion on activists political organizing,
Ms. Power told Progress Queens.
Ms. Power made the distinction that whilst the First
Amendment was not violated, it was also not respected.
The Governments eorts to intrude on the political
activists of activists were met with resistance, since the
Government tried and was unsuccessful to intimidate
people, she said, adding that, since none of the activists
were ever prosecuted, that was signicant in and of
itself.
Indeed, the work of the Commiêe to Stop FBI
Repression has continued to raise scrutiny about the First
Amendment implications of Federal law enforcements
investigations of activists by organizing to stop FBI
harassment of anti-war and international solidarity
activists.
The case of the 23 Midwest peace activists was unique, in
the sense that the activists were connected to inuential
Leftists groups, like labor unions, and the activists had
access to knowledgeable and courageous legal counsel. In
many other cases, where the Government may target
activists, that may not be the case. Even when activists do
have access to resources and expert legal counsel, as did
the late Mr. Swarx, the Government may act in vindictive
prosecution that can ultimately ruin lives.
With all of the questions surrounding the Governments
inept aêmpt to prosecute the 23 Midwest activists,
Federal law enforcement ocials never explained
themselves to the lawyers for the 23 Midwest activists.
Page 36 of 46
24/02/2016 11:09
U.S. Aôrney Patrick FiZgerald, who no longer holds the

post, was an appointee of President George W. Bush. U.S.
Aôrney Fixgerald was never in communication with Ms.
Power, for example. Ms. Power said that lawyers had
tried to speak with ocials with the FBI to demand the
return of the property seized from activists during the
execution of the September 2010 search warrants.
For a period of time, a group can be

labeled a terrorism organization by the
United States, only to later be
recognized with political legitimacy
What makes the Chicago case disturbing to human rights
activists is that the Government is treating groups that
oppose oppressive regimes in their respective homelands
as terrorist organizations in the United States, but the
United States takes no actions against the oppressive
regimes.
For example, the Government applied this duplicitous
treatment to the African National Congress, the South
African anti-apartheid group formerly chaired by the late
Nelson Mandela. The United States treated the African
National Congress as a terrorist organization after the
apartheid regime in South Africa viewed eorts to end the
status quo of apartheid as a threat to the state. Moreover,
South African ocials raised ags about some African
National Congress members having established allies with
Soviet Communist ocials. For decades, the United States
ocially treated the African National Congress as a
terrorist organization, and Mr. Mandela, even after he was
awarded the Nobel Peace Prize, was still on the U.S.
governments terrorism watch list.
Activists supporting anti-apartheid eorts in Israel have
Page 37 of 46
24/02/2016 11:09
modeled their BDS movement after the successful eorts

that activists used in the divestment movement against
South Africa that eventually pressured the South African
government to end apartheid. Indeed, the rst step that
the nation of South Africa took to end apartheid was to
formally recognize the African National Congress and
other anti-apartheid groups as legitimate political
organizations. Ultimately, the U.S. followed suit, but it
was decades later.
To many human rights organizations, that the United
States was wrong to classify the African National
Congress as a terrorist organization and its slow response
to ocially recognize the groups work for its legitimate
political purposes points to the Governments fallibility in
the realm of global human rights work. To some human
rights activists, supporting the work of groups engaged in
the struggle to end apartheid in Israel, or, alternatively, to
support a boyco^ of Israel until Israel ends its regime of
apartheid, is comparable to when human rights activists
supported the work of the African National Congress to
end apartheid in South Africa decades ago, or
alternatively, to have supported a boyco^ of South Africa
until South Africa ended its regime of apartheid. The
logic of the Government to label groups like the African
National Congress as a terrorist organization means that,
to some degree, the United States was defending
apartheid in South Africa. By the same logic, by opposing
the work of some anti-apartheid groups in Israel, the
United States has been similarly defending apartheid in
Israel.
Federal guidelines for the prosecution

of activists appear to be an attempt to
reauthorize the Government to try
activists under a legal framework lost
Page 38 of 46
24/02/2016 11:09
under the old Smith Act
Federal investigation and failed

prosecution of Midwest peace
activists
(http://littlesis.org/maps/1270federal-investigation-andfailed-prosecution-of-midwestpeace-activists)
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Federal prosecutors may be extending laws that protect the property of

foreign governments to trigger investigations of activists based on their
ideology to defend the foreign policy of the U.S. government.
view this map on Li^leSis

For decades, the Government has been predisposed
against some political ideologies to the consternation of
activists.
Page 39 of 46
24/02/2016 11:09
In 1940, the United States made it a crime for citizens to

become members of groups that advocate the violent
overthrow of the Government. The crime was established
with the passage of the Smith Act.
The Smith Act was hastily passed through Congress after
a national paranoia had been created about the possibility
of treason from within the United States in the time
leading up to World War II, and one intent of the Smith
Act was to target Communists in response to this fear.
The Smith Act also served to silence anti-war activists,
because critics of the Governments war policies would be
portrayed as being part of a Red menace eort to
oppose the United States entry into World War II. (As
with the case against the 23 Midwest peace activists and,
now, against New York BDS activists, the Government
appears to be targeting critics of U.S. foreign policy in new
and novel ways.)
According to the political ideology known as MarxismLeninism, moving a society from capitalism to socialism
could involve revolution. Consequently, individuals, who
are members of groups that follow a Marxist ideology,
faced prosecution under the Smith Act.
Over 200 individuals were prosecuted under the Smith
Act until the United States Supreme Court ruled that
individuals had a First Amendment right to belong to
groups that espouse unlawful means to achieve their
political ends.
What happened in the case of the Illinois, Minnesota, and
Michigan activists was that it has appeared to some
activists that the Government was trying to use the nexus
of various Federal guidelines to be able to target activists
for prosecution. If there was no prospect of harm in
Page 40 of 46
24/02/2016 11:09
those cases, as it surely came to be seen, given that none of

the activists ever faced criminal charges, then the
Government may have been solely basing its cases against
the activists on the activists ideology. However, ever
since 1957, when the nations top court ruled in Yates v.
United States, it has been established law that the abstract
teaching of a radical doctrine, like the overthrow of a
government, does not violate the Smith Act, unless there is
a showing of an incitement to action that would forcibly
overthrow the Government.
As much as can be gleaned about the Governments case
against the 23 Midwest peace activists, the Government
investigation basically rested on records about the
activists First Amendment-protected political organizing
that is protected by the rights to free speech and free
association. If the Government never established an
intent of harm, then the Governments bases that
established the predicate for the investigations-- which
one of the activists described as lies -- would have only
been recordations of activities protected by the First
Amendment, a violation of Part VI of the 2002 AG
Guidelines applicable to investigations authorized for
counterterrorism purposes, applicable in the time leading
up to the 2008 RNC. However, those same guidelines still
allowed for counterterrorism investigations to be
authorized even in the absence of a checking of initial
leads, preliminary inquiry, or full investigation,
according to the 2010 OIG Report. Indeed, the 2002 AG
Guidelines in eect at the time of the 2008 RNC, to which
the case of the 23 Midwest peace activists can be traced,
allowed the FBI to investigate the structure, scope, and
relationship of members in a terrorism enterprise
investigation. The focus was supposed to be on these
aspects rather than on the individual participants and the
acts of individuals ; although, the laêr aspects were not
Page 41 of 46
24/02/2016 11:09
entirely ruled out. This analysis is premised on the

assumption that when the U.S. Aôrneys Oces in
Chicago and Minneapolis, which took the lead on the
investigations of the activists for possible prosecution,
were handling investigations classied as domestic
terrorism.
Some guidelines in place during the 2008 RNC allowed
Federal law enforcement ocials to investigate the
relationships between members of a group being
investigated as a terrorism enterprise, even as applicable
regulations cautioned investigators about the use of
investigative techniques having an eect on the privacy
rights of individuals and any resulting potential damage
to the reputations of individuals under investigation.
For this report, Federal prosecutors in the U.S. Aôrneys
Oce for New Yorks southern district, arguably the most
busy and the one with the best-trained lawyers, who
handle the most complex Federal legal cases, denied
requests made by Progress Queens to discuss Federal
guidelines applicable to the U.S. Aôrneys in cases that
involved the prosecution of activists. Therefore, this
report does not include representations that could be
made by the Government. True to the intentions of
Federal law enforcement ocials to hide behind the hand
of local or state law enforcement, other ocials with
Federal law enforcement agencies did not want to
comment about the cases of the 23 Midwest activists.
Nonetheless, a source from the Federal prosecutors oce
in Manhaân denied that the Government targeted
activists for prosecution, writing in an e-mail that, as an
overarching principle, Federal prosecutors bring cases
based on a probable cause nding by a judge or grand
jury that federal laws have been broken. People are not
prosecuted for the exercise of Constitutionally protected
Page 42 of 46
24/02/2016 11:09
activities, including those protected by the First

Amendment. Rather than to frame cases against activists
as involving the First Amendment, it appears that Federal
law enforcement ocials categorize those cases as being
about the breaking of Federal laws, even though Federal
investigation guidelines exist that specically contain First
Amendment considerations.
In contravention of Federal guidelines that included
considerations about the potential damage to the
reputation of individuals, the Government did commence
terrorism investigations of 23 peace activists without ever
making a probable cause nding of intent of harm.
In time leading up to the 2008 RNC in St. Paul, the
Minneapolis Joint Terrorism Task Force was recruiting
people to serve as informants to inltrate vegan
gatherings in order for the informants to rub shoulders
with RNC protestors then report back to the Joint
Terrorism Task Force, according to a report originally
published by Firedoglake. The 2010 OIG Report, which
reviewed the FBIs investigations of domestic advocacy
groups, documented the FBIs terrorism investigations of
anti-war activists in Pi^sburg, animal rights activists
associated with People for the Ethical Treatment of
Animals, or PETA, and other groups. Whereas the Smith
Act had been guêd by U.S. Supreme Court decisions,
including the Yates case, the Government was able to
nonetheless turn to the 2002 and 2008 AG Guidelines
applicable to the FBI to apparently target activists for their
ideology. These guidelines are self-promulgated by the
U.S. Aôrney General.
No maêr which pockets of activists that the Government
has investigated, Federal law enforcement ocials
aêmpts to overreach their powers to target activists for
Page 43 of 46
24/02/2016 11:09
their ideology have turned up empty. From the 23 peace

activists in the Midwest, to the anti-war activists in
Pi^sburg, to activist members of PETA, the Government
has not been able to prove it established the predicates to
commence or continue investigations that were basically
founded on activists ideology and apparently nothing
else. Of the 2010 OIG Report, the journalist Andrew
Cohen led a report for The Atlantic, concluding that, The
209-page report, signed by Inspector General Glenn A.
Fine, concluded that while none of the groups were
targeted by the FBI for their views alone -- one of the key
allegations made by critics of the surveillance -- the
Bureau nevertheless engaged in tactics and strategies
toward those groups and their members that were
inappropriate, misleading, and in some cases
counterproductive.
The Government appears to be focused on regaining the
power to investigate and prosecute activists solely for
their ideology, as was the case between the time after the
Smith Act was enacted but before the Smith Act was
guêd by U.S. Supreme Court decisions. Within Federal
law enforcement agencies, there must still run a Red
scare-like paranoia about the reform eorts of grassroots
groups that has now transcended worries about the
spread of Communism, but now includes critics of U.S.
foreign policy and, even, animal rights activists.
The 2010 OIG Report looked back at cases that the FBI
investigated during the administration of former President
George W. Bush, but, as demonstrated by the case of the
23 Midwest peace activists, which were investigated
during the administration of President Barack Obama, the
intent of the Government to expand its investigatory
powers over activists has crossed party lines and
presidential administrations.
Page 44 of 46
24/02/2016 11:09
Ms. Power, one of the aôrneys for the 23 Midwest peace

activists, said that, Its not a Democrat or Republican
issue. Its the nature of the state. It will do what it needs,
to preserve itself.
FEATURED
! !
Federal guidelines
for the prosecution
of activists appear to
reconstruct a legal
framework lost
under the Smith Act
Preet Bharara sues

Glenwood
Management,
alleging fair housing
accessibility
violations
Feb 13, 2016
Feb 4, 2016
New York bill on

boyco^s may have
criminal implications
for human rights
activists [Corrected]
Schneiderman,
Bharara mum on
ProPublica 421-a
investigations
[Updated]
Feb 2, 2016
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2016-02-24 Plaintiff Surreply (Flores Decl) (Flores V DOJ) (15-CV-2627) (JG) (RLM) (Stampted)

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Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 1 of 57 PageID #: 1699

UNITED STATES DISTRICT COURT

I am a journalist and an activist. I publish the online news Web site,

I ratify as facts all of the statements made by Plaintiff in the Amended

Complaint, particularly, but without exclusivity, all of the statements pertaining to

Except for minor and reasonable allowances for typographical errors, I

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 2 of 57 PageID #: 1700

This declaration and the exhibits annexed hereto submitted in support

[By ECF and e-mail to : rukhsanah.singh@usdoj.gov]

Rukhsanah L. Singh, Assistant U.S. Attorney

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 3 of 57 PageID #: 1701

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 4 of 57 PageID #: 1702

Receipt of Second FOIA Request

O.K., did you receive the package ?

Im looking at the various ways that I described what Im looking for.

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 5 of 57 PageID #: 1703

First Scheduling a Second Call (that never happened)

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 6 of 57 PageID #: 1704

The Unresolved Discretionary Release

Second Scheduling of a Second Call (that never happened)

It was acknowledged in the Answer

So, youre going to follow those kinds of semantics in

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 7 of 57 PageID #: 1705

The DOJ Uses the Discretionary Release to Create Obfuscation

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 8 of 57 PageID #: 1706

With Respect to Publicly-Available Documents in its Possession

Right, Im going to ask the Judge to make a determination about whether or

O.K., our position is that they are entitled to release documents on a

(Dkt. No. 14).

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 9 of 57 PageID #: 1707

The DOJ is Ignoring the Request For General Guidelines for

the Prosecution of Activists

I see what youre saying

No, that helps clarify.

The DOJ Made a Misrepresentation About Components

of the DOJ That Have a Criminal Division

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 10 of 57 PageID #: 1708

In the letter from last night ?

Case 1:15-cv-02627-JG-RLM Document 33 Filed 02/24/16 Page 11 of 57 PageID #: 1709

Federal guidelines for the

SHARE ON TWITTER AND GOOGLE

A CONTROVERSIAL PURCHASING AND INVESTMENT

WOULD EMPOWER NEW YORK STATE OFFICE OF GENERAL

SERVICES COMMISSIONER ROANN DESTITO (NOT PICTURED)

Showing events until 4/30. Look for more

TO CREATE A LIST OF INDIVIDUALS, CORPORATIONS, AND

Events shown in time zone:

DESTITO WILL COMPILE SUCH A LIST, BUT ACTIVISTS HAVE

business with any individual, corporation, or group that

known as BDS, in respect

CRIMINAL AND TERRORISM

nding by the United

THOUGH THE ACTIVISM OF

FOUND. SOURCE : PHOTO

which bars a nation from

transferring its own

population from within its own borders into occupied

up in irrational fears over a Red menace, namely, that

the spread of the political and economic ideologies of

to demand government and economic reforms that would

U.S. Senator Joseph McCarthy (R-Wisconsin) led the

charge at that time then to identify without proper

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