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A new St. Paul, Minn., police policy for investigating protest groups draws praise from police experts for its sensitivity to dissent, but criticism from those who worry that police will spy on activists leading up to the Republican National Convention.
“It looks like they are in the business of infiltrating groups,” said Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota, after reviewing a copy of the policy requested by the Minneapolis-St. Paul Star Tribune.
“I am not sure what would prompt them to say that because I don’t think that the document says that,” responded Tom Walsh, a St. Paul police spokesman.
The policy, adopted in January by Chief John Harrington, has nothing do with the Sept. 1-4 convention, said Walsh. “We have completely redone our manual. We do that periodically. This is not tied to the RNC.”
Asked if the new policy would be used to investigate convention protesters, Walsh said: “That presumes there will be those investigations and I don’t think we can presume that.”
To former Minneapolis Police Chief Tony Bouza, there’s no question the policy was prepared with the convention in mind. “It’s the 800-pound gorilla in the room,” he said.
After reading the policy, civil-rights lawyer David Kairys said it signals a police plan to investigate protest groups coming to the convention. “It sounds like they are going to do it, putting in language that would be useful if it is challenged,” said Kairys, who is also a law professor at Temple University in Philadelphia.
The new document is called “Policy and guidelines for investigations and information-gathering operations involving First Amendment Activity.” It involves monitoring “the activities of groups involved in or planning demonstrations and counterdemonstrations which may affect public safety; violate state, local or federal laws; or which may result in a public safety risk.”
It states that the department cannot launch investigations of groups “based solely upon the lawful exercise of their constitutional rights.” There must be “the reasonable suspicion that unlawful acts have occurred or may occur.”
The policy’s protection of free-speech rights gets mixed reviews.
Bouza calls it “eloquent” for its “sensitivity” to protesters’ constitutional rights. But he said the guidelines should be more clear about the right of police to infiltrate groups and demonstrations. The policy says undercover operatives are barred from “instigating unlawful acts” and cannot take leadership positions in a group.
“This was drafted by somebody to provide protections for someone spying on people,” says Michael Avery, a law professor at Suffolk University in Boston and former president of the National Lawyers Guild.
“I think, as it is written, it has a lot of progressive elements to it,” said Alex Vitale, assistant professor at Brooklyn College who wrote a report for the New York ACLU on the 2004 Republican convention, which was held in New York City.
“My big problem with it is the lack of independent oversight or accountability. … Basically you have police keeping a paper trail on their own decision-making, but how does anyone else know that they are adhering to those requirements?”
The policy requires David Korus, commander of the Police Department’s Special Investigations Unit, to notify Harrington every 180 days on “the status of any work.” While not altogether clear, it appears to allow Korus to launch less invasive inquiries — such as sending undercover agents to public meetings — without approval.
However, Harrington or his designee must sign off on full investigations, which appears to include sending undercover operatives to private meetings, and Harrington must approve continued use of such operatives every 120 days.
Walsh declined to answer most questions about the policy, saying it speaks for itself.
In 2003 and 2004, New York City police traveled across the country, to Canada and to Europe to investigate protest groups before the Republican convention in New York. Asked if St. Paul police would investigate protest groups in Minneapolis, where most planning meetings are being held, Walsh said, “We are not following the New York model. We’ve been saying that from the beginning.”
Bouza also expressed doubts that St. Paul police will infiltrate groups. He wishes they would; he said it is needed to learn about potential violence to prevent it during the convention. He said that surveillance of groups coming to the 2008 convention probably is limited to telephone wiretaps by the National Security Agency, with the information turned over to the FBI.
Minneapolis FBI spokesman Paul McCabe said the FBI would not investigate a group unless it learned of plans for property destruction, violence or terrorist activity.