Revolution #194, March 7, 2010
Don't Be Bamboozled by Agents of Repression—
We find ourselves living in a popular culture where the TV shows, from the tabloid programs to the ever-present law and order shows of one kind or another, and even the news, all trumpet the same theme: An individual accused or just suspected of a crime is presumed guilty from the start; exercising one's legal rights is viewed as further evidence of guilt; even the most basic right—getting a lawyer to defend oneself from the legal and illegal onslaught of cops, prosecutors and judges—is depicted with a sneer as "lawyering up." Those who through speech and dissent politically expose, oppose and stand up against this repressive government and protest its crimes are slandered and labeled as "terrorists," while those who knowingly condemn innocent people to prison and death row; who routinely terrorize, beat, and kill people in the inner cities; and who brutally torture people in interrogation rooms are glorified as "heroes." This is nothing but a police state and a martial law culture—this is truly intolerable and should not be tolerated.
Invoking the "threat of terrorist attacks" the government has unleashed police agencies of every kind to repress any serious political opposition to the crimes they are committing worldwide. They are waging a "war on terror" that is in reality a war for empire to remain the world's only superpower and it requires repression of protest and, in fact, attempts to totally eliminate all effective resistance.
The following examples are a snapshot of the sweeping measures employed by the police, FBI, and government prosecutors which show that far from being neutral arbiters of justice, these authorities are the repressive arm of the government. Many of these measures were institutionalized and expanded after 9/11; they continue to be in effect and have been upheld by the Obama administration.
- The USA Patriot Act, passed in the aftermath of 9/11, gave the government sweeping authority to snoop into the lives of everyone. The FBI, CIA and local authorities were given the power to abuse the basic privacy of everyone: to look into people's private financial and medical records; to check out what library books they read; and to wiretap and check out people's emails.1 They were given legal protection to spy in these ways without having the burden of providing evidence of probable crimes being committed.
- In the aftermath of 9/11, basic standards of law and due process were discarded as scores of immigrants, Muslims, and those of Middle Eastern descent were rounded up, denied access to lawyers, and held indefinitely without charges.
- Under the policy of "extraordinary rendition," those suspected of terrorism have been whisked away to secret dungeons in foreign countries where they can be sadistically tortured.
- A state version of the USA Patriot Act was used to charge organizers of protests against the 2008 Republican National Convention in Minnesota (the RNC 8) with felonies "in furtherance of terrorism."2
- Under the guise of the "war on terror," the New York Police Department has become the model for a new way of policing, one that deliberately undermines "due process of law" and the standard of "probable cause" in order to target not only any persons they arbitrarily label "incipient terrorist cells" but also political dissent.3
- In just 6 months in 2008, 273,000 people—overwhelmingly people of color and youth—were "stopped-and-frisked" by the New York Police Department for no probable cause, with all of their names added to an NYPD criminal database. An atmosphere of terror and repression is being systematically enforced on a generation of youth.4
So what rights DO people have when agents of repression come sniffing around?
Your Rights If Arrested
In the event a person is arrested, other than providing his/her name, the person has the right to remain silent, as well as the right to an attorney. The American Civil Liberties Union (ACLU) offers the following advice if a person is arrested:
Once a person demands an attorney, by law, the authorities are supposed to stop questioning him/her. The ACLU advises, "Ask for a lawyer right away. Repeat this request to every officer who tries to talk to or question you." If a person is arrested, he/she should only discuss the case with their own lawyer and with other reliable and trustworthy activists, such as a defense team formed to mount a political and legal defense, although even there it should be with and under the advice of a lawyer. In order to get a person to talk freely and reveal information that can be used against himself/herself (as well as others), the authorities sometimes plant a snitch in the same cell or coerce another prisoner to become an informant. While activists and political prisoners often discuss their politics and views with new-found compadres in jail or prison, they should be careful about what they say and be alert and become wary if a cell mate begins to ask intrusive questions about one's case or the circumstances of one's arrest. Any jail phone call will be monitored, so if a person is making their "one phone call," he/she should clearly inform the person who is called where he/she is being held, but should not discuss the details or circumstances of the arrest.
The Just Law Collective pamphlet for the 2004 Republican National Convention also advises that people should be careful what they sign while in custody:
In regards to providing a DNA sample (hair, blood, saliva, etc.), the National Lawyers Guild (NLG) points out that if a person is arrested by federal agents, "Even before being charged with a crime, they can take a DNA sample and send it to the CODIS (Combined DNA Index System) database." They also point out that the legal authority for DNA sampling varies from state to state, and that as of the writing of the 2009 NLG pamphlet, the following states allowed it if a person is under arrest by local or state authorities: Alaska, Arizona, California, Kansas, Louisiana, Minnesota, New Mexico, North Dakota, Tennessee, Texas and Virginia.
The principle of "Don't Talk" is important at all times, including after a person is arrested. The cops may try to get a person to drop their guard, make damaging statements, or reveal information about themselves or other people or activities. The cops will use various ruses to try to get a person to talk: they may even become friendly, almost buddy-buddy; and they may convey distaste for having to be in this line of work and pretend to be genuinely interested in you and your politics.
To repeat the ACLU's advice: If arrested, "Do not tell the police anything except your name. Anything else you say can and will be used against you. Ask to see a lawyer immediately."
In the period after an arrest (for instance, as part of a public defense campaign) it is also important that any statements made by a defendant or potential defendant, or anyone speaking on behalf of a defendant, be cleared with their lawyer. These types of statements can also be used against an activist being persecuted by the government.
History has shown that where movements refuse to concede the moral authority on what is right and what is wrong, these movements are better able to withstand repression and continue to grow. If they do not take this approach, they find themselves in a situation where, as described by the organization The World Can't Wait, "That which you do not resist and mobilize to stop, you will learn—or be forced—to accept." Part of building a culture of defiance and resistance, based on mass movements of people, is refusing to allow the government to either intimidate or bamboozle people into giving up resistance, and refusing in any way to enter into complicity with such intimidation and repression.
The authorities are not interested in the truth; they are not out to seek justice. They have an agenda—using the legal system (as well as illegal means) to repress serious movements of resistance of all kinds. As bitter experience has shown, not only will they outright murder revolutionaries (as they did with Black Panther leader Fred Hampton, who was gunned down as he slept in his bed), but they will spin a web of lies and fabricated evidence in order to use the courts to frame and railroad those whom they want to silence.5
When facing agents of government repression (here we are talking about the local police and prosecutors, state or federal law enforcement or various government agencies), the principle of "Don't Talk" is an important legal principle which is crucial in fighting to protect the various movements of resistance and of revolution from government repression. This principle is stressed very strongly by criminal defense lawyers and civil rights organizations.
The Right to Remain Silent—Don't Talk
The American Civil Liberties Union (ACLU), the National Lawyers Guild (NLG), the Center for Constitutional Rights (CCR), and other progressive legal organizations have published materials to inform people about "what rights you have when you are stopped, questioned, arrested or searched by law enforcement officers."6
No matter which police agency or arm of the state (i.e., FBI, Homeland Security, Immigration, IRS, etc.) is doing the questioning, the ACLU clearly states:
"You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested or you are in jail. You cannot be punished for refusing to answer a question."7
Leading legal professionals stress that it is very important to find an attorney who is very clear on the right to remain silent, who understands and will agree to uphold this basic principle of due process. Not all lawyers are firm on these basic principles, so it is extremely important to get a lawyer who understands that it is quite likely that any questioning done by legal authorities is done with the intention of developing evidence to charge and convict people, and that despite assurances to the contrary, they will attempt to use anything said to go after people—including the person being questioned.
The NLG advises what to do if an FBI agent or police officer knocks at the door:
"Do not open the door. State that you are going to remain silent. Do not answer any questions, or even give your name. Anything you say, no matter how seemingly harmless or insignificant, can be used against you or others. Ask the agents to slide their business cards under the door and tell them that your lawyer will contact them. If the agent or officer gives a reason for contacting you, take notes and give the information to your lawyer."8
"If I don't cooperate, won't it look like I have something to hide?"
According to the Center for Constitutional Rights (CCR),
"This is one of the most frequently asked questions. The answer involves the nature of political 'intelligence' investigations and the job of the FBI. Agents will try to make you feel that it will 'look bad' if you don't cooperate with them. Many people not familiar with how the FBI operates worry about being uncooperative….(T)hey [the FBI] are intent on learning about the habits, opinions, and affiliations of people not suspected of wrongdoing....
FBI agents and other investigators are employed to ferret out information you would not freely share with strangers. Trying to answer agents' questions, or trying to 'educate them' about your cause, can be very dangerous—as dangerous as trying to outsmart them, or trying to find out their real purpose. By talking to federal investigators you may, unwittingly, lay the basis for your own prosecution—for giving false or inconsistent information to the FBI. It is a federal crime to make a false statement to an FBI agent or other federal investigator. A violation could even be charged on the basis of two inconsistent statements spoken out of fear or forgetfulness."9 (Emphasis added)
Ruses, lies and threats...
The FBI and other law enforcement agencies are well known for using any number of ruses, lies, and threats to try to get people to talk.
A very common and calculated ploy is to start out with seemingly "innocuous" questions. A person may naively start to talk, but then, as the line of questioning changes and the questions begin probing into who they know, their political beliefs and activities, etc., the person may realize the real agenda of the police. The ACLU points out that legally "Even if you have already answered some questions, you can refuse to answer other questions until you have a lawyer."10 While this is true (and it is certainly better to stop talking rather than to continue answering their questions), the problem with not practicing "Don't Talk" in the first place is twofold: First, the authorities will take and twist any answers to their advantage. Second, they will make up their own conclusions about why certain questions caused a person to stop cooperating.
Police and other law enforcement agents are trained to encourage people to try to "figure out" what an agent is after. In their textbooks on interrogation they write about this as a potential gold mine of useful information. A person may think that he/she is "pretending to cooperate," but in fact, by going along with the interrogation and answering any questions, he/she actually is cooperating and providing information.
Your Rights If Stopped on the Street
According to the American Civil Liberties Union [ACLU], if police stop a person on the street:
Lawyers counsel that even in states where a person is technically not required by law to provide his/her name, authorities routinely demand that the person provide his/her name and identification (driver's license, etc.), and not complying potentially invites arrest. Consequently, they advise that a person who is stopped provide his/her name (and ID), but draw the line there and provide no other information.
If a person thinks that he/she can just "bullshit" an agent, this too is a trap. The investigators are trained to be "friendly" and listen to people's stories. To quote a textbook on interrogation techniques, "Letting the subject tell a few lies, and letting him apparently get away with them, is an excellent technique, and works well with many types of subjects. We have seen that lying on the part of the subject works to the advantage of the interrogator...." The ACLU/NLG have pointed out:
"Keep in mind that although they are allowed to lie to you, lying to a government agent is a crime. Remaining silent is not. The safest things to say are 'I am going to remain silent,' 'I want to speak to my lawyer,' and 'I do not consent to a search.'"11
Remember, Martha Stewart went to prison because when FBI agents showed up at her door asking questions, she foolishly tried to answer them and then was prosecuted for false statements.
Another reason agents like it if you lie to them: then they have something on you which they can use to pressure you to give information about someone else, and if you refuse, they can prosecute you for the false statements.
They may act as though they are trying to help or protect you, and on that basis try to enlist your cooperation. In the case of environmental activist Judi Barr, who was severely injured when a bomb that was planted in her car exploded, when she and others cooperated with authorities, suddenly she found herself being treated not as the victim, but as the perpetrator and the target of their investigation.
They will do anything to get a person to talk: from good cop/bad cop approaches (aimed at getting the person to "open up" to the more sympathetic cop) to threats and outright brutality. They also use "mind games" such as saying that others have already informed on a person; or even going so far as falsely telling someone a family member has died in order to get the person to let down his/her guard and reveal information about themselves or others.
One tactic they may use is to threaten a person with a grand jury subpoena if he/she refuses to answer their questions. The ACLU exposes this threat and advises:
"(Y)ou still do not have to answer the officer's questions right then and there, and anything you do say can be used against you. The officer may or may not succeed in getting the subpoena. If you receive a subpoena or an officer threatens to get one for you, you should call a lawyer right away."12
To underline: Even if the agents do produce a grand jury subpoena, you are still not obligated to talk to them. And if you do get a subpoena and don't have a lawyer, call the Federal Defender Office.
The authorities' objectives may be not only to get a person to talk, but to get the person to spy on fellow activists. In order to coerce or convince a person to become an informant, they may use threats of legal charges or argue that this is a way to "protect" people. In one recent case, the government tried to enlist people to go to "vegan pot lucks" to gain information on plans for protests at the 2008 Republican National Convention. One courageous University of Minnesota student not only refused to be an informant, but he went public and exposed the government's effort to recruit him.
Any information that a person provides—no matter how seemingly insignificant—can be twisted and used against those who expose and oppose the crimes of this system. The government has a long history of lying about the facts and fabricating "evidence" in order to frame movement activists and revolutionaries. They take intelligence gathered from a variety of sources and use it in the most sinister ways, even including murder. Consequently, there is no reason to be in the least defensive about not talking to or cooperating with authorities.
"What harm can talking do?"
Your Rights in the Face of a Search
Despite what the authorities might tell a person, if the authorities do not have a search warrant, they have no legal right to search a person's house or belongings without the person's consent.
The National Lawyers Guild (NLG) offers this advice for how to respond to a request to search a person's home or office:
If the authorities have a warrant, the person has a right to see the warrant before letting them in, and the NLG advises:
The NLG points out that while the police and FBI can ask for a DNA sample (for example, samples of hair, blood, or saliva), this falls into the same category as a search of a person's home—unless they present a warrant, the person has a right to say no. The NLG advises that if they request a DNA sample, "You can, and should, refuse the request." The same applies to handwriting samples.
Myth #1-—Cooperating will make the authorities go away.
In fact, it often does just the opposite. After all, if they size someone up as a "talker" or weak link, they'll milk this person for all the information they can get. They may return with more questions or continue this line of questioning with others.
Myth #2—Talking will prevent being arrested.
The authorities promote the illusion that a person should try to "save their own hide" by cooperating and talking. In reality, as the ACLU and NLG underscore, in many circumstances talking may increase the chances of a person being busted, and may be sealing the case against himself/herself as well as others.
Myth #3—As long as the information provided is harmless, there's nothing wrong with talking.
When people don't know their rights and talk freely to the authorities, this can do great harm—no matter what information they provide.
First of all because the person doesn't know the full agenda of the authorities, he/she has no basis to evaluate whether or not information is "harmless." Even if the authorities claim to be investigating something that has nothing to do with your politics or political activities (or those of others), appearances can be deceiving. The authorities can and will twist any information to their advantage.
Secondly, the act of talking encourages the authorities to pursue this tactic and go after others.
Finally, and most importantly, talking fuels the government's efforts to eliminate any movements of opposition and dissent, while standing firm and not talking as a matter of principle contributes to building a culture of resistance and defiance.
Defy Government Repression—Don't Talk
As spoken to throughout this article, as part of trying to beat down movements of protest and revolution, agents of the government (police, FBI, prosecutors, etc.) have developed methods to trick, intimidate and brutalize people into giving up legal rights and protections established by the legal system in this country. These are not "rogue cops"; this represents business as usual in this country and is an expression that, in essence, the "rule of law" (the legal system, its laws and especially how those laws are enforced) serves, in one way or another, to enforce and reinforce the rule of the prevailing system of capitalism-imperialism. This basic dynamic and truth needs to be clearly understood, and if various organizations and movements are serious about the challenges they face, they need to grapple with how—mainly by relying on mass movements of the people—to resist such repression.
In this context, the legal principles underlying "Don't Talk" take on heightened importance. Those confronted by police agents should not be bamboozled into giving up what legal rights still exist, as this will only lead to strengthening the repressive apparatus of the state, and in particular this will undercut the ability to build the necessary mass movements to fight the crimes of this system, including its increasing repression.
Used for This Article
Know Your Rights—When Encountering Law Enforcement, ACLU Booklet, available at www.aclu.org/files/kyr/kyr_english.pdf.
"Operation Backfire: A Survival Guide for Environmental and Animal Rights Activists," by National Lawyers Guild, 2009.
"Punishing Protest: Government Tactics that Suppress Free Speech," by Heidi Boghosian and the National Lawyers Guild, 2007. Available at www.nationallawyersguild.org/NLG_Punishing_Protest_2007.pdf.
"Know Your Rights! What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers," by National Lawyers Guild, S.F. Bay Area Chapter, the ACLU of Northern California and the American Arab Anti-Discrimination Committee (ADC-SF), 2004. Available at nlg.org/resources/kyr/kyr_English2004.pdf.
PublicEye_org _ If an Agent Knocks.htm - Posted on Center for Constitutional Rights Web site, originally published 1985. www.publiceye.org/liberty/Feds/If_an_Agent_Knocks.html
Just Cause Law Collective, "Legal Briefing for Activists at the Republican National Convention," 2004. Available at www.lawcollective.org/article.php?id=201.
1. "F.B.I. Violated Rules in Obtaining Phone Records, Report Says", New York Times, Charlie Savage, January 20, 2010. [back]
2. "The Political Persecution of the RNC 8," Revolution Online February 23, 2008 & #158, March 8, 2009. [back]
3. "The NYPD—Securing the City for Whom?," Revolution #182, November 8, 2009. [back]
4. "NYPD Stop-and-Frisk Brutality," Revolution #154, February 1, 2009.[back]
5. See The Assassination of Fred Hampton: How the FBI and the Chicago Police Murdered a Black Panther, Jeffrey Haas, Lawrence Hill Books, November 2009; and for discussion on how police framed and jailed youth in "the Central Park jogger case" see "A Roundtable with Revolution newspaper," Revolution Online, November 19, 2009—a discussion about the film, William Kunstler: Disturbing the Universe, with Sarah Kunstler and Emily Kunstler (filmmakers and two youngest daughters of Bill Kunstler); Margaret Ratner Kunstler, progressive lawyer and Sarah and Emily's mom; Michael Ratner, president of Center for Constitutional Rights), an important legal advocacy organization cofounded by Bill Kunstler; and Yusef Salaam, exonerated in a rape case known as "the Central Park jogger case"; Bill Kunstler was his lawyer. [back]
6. While informing people of their basic rights, these publications state that they are not a substitute for legal advice, and people should contact an attorney if they are arrested or think their rights have been violated. [back]
7. The ACLU points to two exceptions to this rule: 1) In some states a person must provide his/her name to law enforcement officers if the person is stopped and told to identify themselves—but the person is not required to answer any questions 2) If a person is driving and pulled over for a traffic violation, the person can be required to show their license, vehicle registration and proof of insurance—but again the person does not have to answer questions. The ACLU also points out some limited exceptions for non-citizens, but these apply to immigration authorities only. See ACLU's Know Your Rights for more information on special circumstances for non-citizens. [back]
8. "Operation Backfire: A Survival Guide for Environmental and Animal Rights Activists," by National Lawyers Guild,2009. [back]
9. PublicEye.org, "If an Agent Knocks." Posted on Center for Constitutional Rights Web site, originally published 1985. www.publiceye.org/liberty/Feds/If_an_Agent_Knocks.html. [back]
11. "Know Your Rights! What to Do if Questioned by Police, FBI, Customs Agents or Immigration Officers," by National Lawyers Guild, S.F. Bay Area Chapter, the ACLU of Northern California and the American Arab Anti-Discrimination Committee (ADC-SF), 2004. Available at nlg.org/resources/kyr/kyr_English2004.pdf. [back]
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