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involvement with other activist groups, including the anti-Vietnam War movement. 11.

Case, Handshu

Another Cointelpro case, Handshu, resulted in the Handschu agreement.  This is a set of guidelines that regulate police behavior in New York City with regard to political activity.

Footnote

This case involves a challenge to various surveillance and investigative practices directed at political organizations by the New York City Police Department.  The case began as a challenge to various police practices that involved the maintenance of dossiers on political activists and the use of various undercover and surveillance techniques to monitor the activities of political organizations and individuals. 

The decree also established a system of record-keeping and procedures for approval of investigations by a three-member body, called the Handschu Authority.  The system was designed to create a “paper trail” in order to ensure against abuse.  In September 2002, the NYPD moved to modify the 1985 consent decree upon the claim that the decree impeded the Police Department’s efforts to investigated potential terrorism.  In a decision rendered on Feb. 11, 2003, the District Court approved a modification of the decree so long as the Police Department developed new guidelines that would be consistent with those developed by the U.S. Department of Justice for investigations conducted by the FBI.  The Police Department’s modified guidelines were accepted by the district court on April 8, 2003. … However, during anti-war demonstrations in February and March 2003, the NYPD employed certain “debriefing” practices in which arrested protesters were subjected to inappropriate interrogation into their past political associations.  Class counsel moved to remove the modified guidelines. The court granted the class counsel’s motion and claimed that “operational ignorance” on the part of the NYPD’s top officials did not excuse the actions of its officers.  The photographic and video surveillance practices conducted by the NYPD during the Republican National Convention have raised new issues in this case. 

The Handshu agreement, (agreement made, 1971) or decree, was the result of a class-action lawsuit filed against the City of New York, its Police Commissioner and the Intelligence Division of the New York City Police Department (NYPD) on behalf of Barbara Handschu and fifteen other plaintiffs affiliated with various political or ideological associations and organizations, known as Handschu v. Special Services Division, 605 F.Supp. 1384, affirmed 787 F.2d 828.[3] The plaintiffs claimed that “informers and infiltrators provoked, solicited and induced members of lawful political and social groups to engage in unlawful activities”; that files were maintained with respect to “persons, places, and activities entirely unrelated to legitimate law enforcement purposes, such as those attending meetings of lawful organizations”; and that information from these files was made available to academic institutions, prospective employers, licensing agencies and others. In addition, plaintiffs protested seven types of police misconduct: (1) the use of informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5) summary punishment; (6) intelligence gathering; and (7) electronic surveillance, and alleged that these police practices which punished and repressed lawful dissent had had a “chilling effect” upon the exercise of freedom of speech, assembly and association, that they violated constitutional prohibitions against unreasonable searches and seizures, and that they abridged rights of privacy and due process.12.

In 1985, the court found that police surveillance of political activity violated constitutional protections of free speech. This ruling resulted in a consent decree which prohibited the NYPD from engaging “in any investigation of political activity except through the … Intelligence Division [of the Police Department]" and required that any “such investigations shall be conducted” only in accordance with the Guidelines incorporated into the Decree. The Guidelines further prohibited the Intelligence Division from “commencing an investigation” into the political, ideological or religious activities of an individual or group unless “specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime….” 

According to the terms of the agreement, purely political activity can only be investigated by the Public Security Section (PSS) of the NYPD's Intelligence Division, and then only when the Section suspects criminal activity. When the PSS does suspect criminal activity on the part of political groups, it must obtain a warrant from the three-person Handschu Authority, a commission made up of two deputy commissioners and a mayor-appointed civilian.

The agreement also prohibits indiscriminate police video recording and photographing of public gatherings when there is no indication that unlawful activity is occurring.

The department is also prohibited from sharing information pertaining to political activity with other law enforcement agencies unless those agencies agree to abide by the terms of the Handschu agreement.

The court order mandates the compiling of annual, publicly available reports listing the surveillance requests made by the NYPD and the number of such requests granted.  13.

 In the Socialist Workers Party v. Attorney General of US, 642 F. Supp. 1357 (S.D.N.Y. 1986) US District Court for the Southern District of New York  it was adjudicated:

“The SWP is entitled to an award of damages under the FTCA against the United States for the FBI’s disruption activities, surreptitious entries and use of informants.  As to these claims, the SWP complied with procedural requirements of the FTCA.  Also, since these activities were violations of the constitutional rights of the SWP and lacked legislative or regulatory authority, they were not discretionary functions within the meaning of the FTCA exception.  Finally, the SWP has a right to recover damages under applicable tort law. 

The SWP is awarded damages in the amount of $42,500  relating to disruption activities, $96,500 for the surreptitious entries, and $125,000 for the use of informants, or a total of $264,000.”

In this case and similar cases, such as Bivens and Handshu, the acts and intentions of the Cointelpro program of  the U.S. intelligence agencies, were found to be legally violative and illegal under American law. 

This section explains how some of the complexities and ultimate unconstitutional aspects of Cointelpro, became almost a totalitarian umbrella, encompassing most citizens and suppressing citizens, as innocent of sedition, as Will Geer and Lucille Ball.  This section well explains the occurrence of the Federal government’s program, Cointelpro, overriding the states’  rights, which was later to occur in FISA.

As support for their arguments, the plaintiffs stated:

Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 6. And see Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230-2731.

In this case, we think that each of several tests of supersession is met.

First,

"[t]he scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it."

Rice v. Santa Fe Elevator Corp., 331 U.S. at 331 U. S. 230. The Congress determined in 1940 that it was necessary for it to reenter the field of anti-subversive legislation, which had been abandoned by it in 1921. In that year, it enacted the Smith Act, which proscribes advocacy of the overthrow of any government -- federal, state or local -- by force and violence and organization of and knowing membership in a group which so advocates. Conspiracy to commit any of these acts is punishable under the general criminal conspiracy provisions in 18 U.S.C. § 371. The Internal Security Act of 1950 is aimed more directly at Communist organizations.  It distinguishes between "Communist action organizations" and "Communist front organizations," (Page 350 U. S. 503) requiring such organizations to register and to file annual reports with the Attorney General giving complete details as to their officers and funds.  Members of Communist action organizations who have not been registered by their organization must register as individuals.  Failure to register in accordance with the requirements of Sections 786-787 is punishable by a fine of not more than $10,000 for an offending organization and by a fine of not more than $10,000 or imprisonment for not more than five years or both for an individual offender -- each day of failure to register constituting a separate offense.  And the Act imposes certain sanctions upon both "action" and "front" organizations and their members. The Communist Control Act of 1954 declares:

"that the Communist Party of the United States, although purportedly a political party, is, in fact, an instrumentality of a conspiracy to overthrow the Government of the United States,"

and that

"its role as the agency of a hostile foreign power renders its existence a clear present and continuing danger to the security of the United States. “

It also contains a legislative finding that the Communist Party is a "Communist action organization" within the meaning of the Internal Security Act of 1950, and provides that "knowing" members of the Communist Party are "subject to all the provisions and penalties" of that Act.  It furthermore sets up a new classification of "Communist-infiltrated organizations," (Page 350 U. S. 504) and provides for the imposition of sanctions against them.14.

We examine these Acts only to determine the congressional plan. Looking to all of them in the aggregate, the conclusion is inescapable that Congress has intended to occupy the field of sedition. Taken as a whole, they evince a congressional plan which makes it reasonable to determine that no room has been left for the States to supplement it. Therefore, a state sedition statute is superseded regardless of whether it purports to supplement the federal law. As was said by Mr. Justice Holmes in Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U. S. 597, 237 U. S. 604:

"When Congress has taken the particular subject matter in hand, coincidence is as ineffective as opposition, and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go." “

Second, the federal statutes

"touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject."

Rice v. Santa Fe Elevator Corp., 331 U.S. at 331 U. S. 230, citing Hines v. Davidowitz, supra. Congress has devised an all-embracing program for resistance to the various forms of totalitarian aggression. 15.

 Our external defenses have been strengthened, and a plan to protect against internal subversion has been made by it. (Page 350 U. S. 505).

It has appropriated vast sums, not only for our own protection, but also to strengthen freedom throughout the world. It has charged the Federal Bureau of Investigation and the Central Intelligence Agency with responsibility for intelligence concerning Communist seditious activities against our Government, and has denominated such activities as part of a world conspiracy. It accordingly proscribed sedition against all government in the nation -- national, state and local. Congress declared that these steps were taken. 16.

"to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government. . . . "

Congress having thus treated seditious conduct as a matter of vital national concern, it is in no sense a local enforcement problem. As was said in the court below:

"Sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts, where this defendant has, in fact, been prosecuted and convicted and is now under sentence.  It is not only important, but vital, that such prosecutions should be exclusively within the control of the Federal Government. . . . "

Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Since 1939, in order to avoid a hampering of uniform enforcement of its program by sporadic local prosecutions, the Federal Government has urged local authorities not to intervene in such matters, but to turn over to the federal authorities immediately and unevaluated all information concerning subversive activities. (Page 350 U. S. 506).  The President made such a request on September 6, 1939, when he placed the Federal Bureau of Investigation in charge of investigation in this field:

"The Attorney General has been requested by me to instruct the Federal Bureau of Investigation of the Department of Justice to take charge of investigative work in matters relating to espionage, sabotage, and violations of the neutrality regulations."

"This task must be conducted in a comprehensive and effective manner on a national basis, and all information must be carefully sifted out and correlated in order to avoid confusion and irresponsibility."

"To this end, I request all police officers, sheriffs, and all other law enforcement officers in the United States promptly to turn over to the nearest representative of the Federal Bureau of Investigation any information obtained by them relating to espionage, counterespionage, sabotage, subversive activities and violations of the neutrality laws. "

The scope of this spying nationwide on American citizens is illustrated in this passage:

“At the Federal-State Conference on Law Enforcement Problems of National Defense, held on August 5 and 6, 1940, only a few weeks after the passage of the Smith Act, the Director of the Federal Bureau of Investigation said:

"The fact must not be overlooked that meeting the spy, the saboteur and the subverter is a problem that must be handled on a nationwide basis. An isolated incident in the middle west may be of little significance, but, when fitted into a national pattern of similar incidents, (Page 350 U. S. 507) it may lead to an important revelation of subversive activity. It is for this reason that the President requested all of our citizens and law enforcing agencies to report directly to the Federal Bureau of Investigation any complaints or information dealing with espionage, sabotage or subversive activities. In such matters, time is of the essence. It is unfortunate that, in a few States, efforts have been made by individuals not fully acquainted with the far-flung ramifications of this problem to interject superstructures of agencies between local law enforcement  and the FBI to sift what might be vital information, thus delaying its immediate reference to the FBI.

 This cannot be if our internal security is to be best served. This is no time for red tape or amateur handling of such vital matters. There must be a direct and free flow of contact between the local law enforcement agencies and the FBI. The job of meeting the spy or saboteur is one for experienced men of law enforcement. "  17.

“to strengthen freedom throughout the world.  It has charged the Federal Bureau of Investigation and the CIA responsible for intelligence concerning common seditious activities as part of a world conspiracy.  It accordingly proscribed sedition against all governments in the nation – national state and local … “

So the FBI and CIA would conduct surveillance on its own citizens, even to their bedrooms, follow them to the grocery store, walking their children to the part, etc.  This was acceptable, here, by their perceptions of possible world domination,  so that – we could “strengthen freedoms around the world.

There is no such nomination, no such title.  We created it and apparently tried to live it by badgering innocent citizens – trying to make them believe their own innocent activities – were not “innocent” by ‘their’ standards, but were in fact, communistic, a threat not only to the U.S.’s freedom, but to the world’s “freedom”.

It is seen, in these passages, that we were ignoring our long held insistence on State/Federal balance, to keep reason in our acts and laws.  The Federal government in the Blacklist, Cointelpro and FISA became the sole and later secret arbitrer in perceived alleged misallegiences.

And that mere comments or suggestions, that things could be better, could be judged as “espionage” or a “violation of neutrality regulations.”

The efforts of states, described here, seems an effort to invalidate claims, or examine claims, which may not be actual threats. Here, in the Cointelpro directive, this step of “reasoning” has been eliminated. Here is an area, which may have allowed the admitted actions, which later brought actress Jean Seberg to her death.

 Later, similarly in the FISA, the loss of due process and ability to answer charges the legal reasoning or any reasoning step attempted in the name of fairness or due process, is similarly eliminated.  This violates the very basic tenants of our court system – the ability of the accused to face his accuser.

Enactors of FISA may find the inclusion of state interference to be a dangerous course of action. This section explains how some of the complexities and ultimate unconstitutional aspects of Cointelpro, in FISA, become almost a totalitarian umbrella, encompassing most citizens and suppressing citizens, as innocent of sedition, as Will Geer and Lucille Ball. This well explains the occurrence of the Federal government overriding the states’ rights, concerning surveillance.  . 

This is explained here, in the SWP case (Socialist Worker’s Party Case).                                                                                                                                                 

Implication of the Pennsylvania Statute (SWP)

Moreover, the Pennsylvania Statute presents a peculiar danger of interference with the federal program. For, as the court below observed:

"Unlike the Smith Act, which can be administered only by federal officers acting in their official capacities, indictment for sedition under the Pennsylvania statute can