Elison on the Patriot Act

Guild Practitioner (National Lawyers Guild)
Volume 61, Number 4 (Fall 2004)
Copyright © 2004 Bruce Elison and Guild Practitioner.
Article reproduced here by permission from the publishers.

Bruce Elison is a criminal defense lawyer based in South Dakota.
He has represented Leonard Peltier, for 30 years.

Editor’s Note:
As a member of the Editorial Board of the Guild Practitioner, I was privileged to edit Bruce Elison’s article. He does an excellent job of placing the Patriot Act in its historical context. (Information about the Guild Practitioner is available at P.O. Box 46205, Los Angeles, CA 90046. David Gespass is the Editor. Information about the National Lawyers Guild is available at
www.nlg.org.) -Riva Enteen (5-2005)

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July 4, 2004 — European-America’s honoring of its liberation from British colonial rule provided the time and inspiration for this piece.

History shows us that in the name of “domestic security,” especially under imperialism, the government acts most undemocratically towards movements for civil and human rights and for liberation. The USA PATRIOT Act threatens the fundamental freedoms the Bill of Rights guaranteed as protection against authoritarian rule.

Six weeks after the attacks on the World Trade Center and the Pentagon, those seeking global corporate and military dominance rushed a pre-packaged bill through an overly cooperative and timid Congress — the USA Patriot Act. Then-Attorney General John Ashcroft subsequently admitted it did not contain provisions which would have prevented 9/11.

Yet even Senate Minority Leader Tom Daschle and John Conyers voted for the bill without reading it (“Just too many bills to read,” Conyers said). The portions dealing with nationwide phone taps and the elimination of judicial determination of probable cause for covert home and business searches [Fourth and Fifth Amendment-eroding provisions] were proposed by the Clinton Administration, but rejected as too “police state-like” by a majority of Congress when it passed the so-called Anti-Terrorism Act and Effective Death Penalty Act of 1996.(1)

Yet, the provisions of the Patriot Act which give me the most pause and fear are the ones clearly designed to criminalize the free speech and association rights of people determined to challenge the policies and actions of the government and its corporate masters. These are the rights, along with Due Process and Equal Protection, that are basic to a truly free and democratic nation.

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…the provisions of the Patriot Act which give me the most pause and fear are the ones clearly designed to criminalize the free speech and association rights of people determined to challenge the policies and actions of the government and its corporate masters.

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For example, under Section 802 of the Act, “domestic terrorism” is defined as any act considered “dangerous to human life” arguably in violation of either a state or federal law, which “appear[s] to be intended” to “intimidate or coerce a civilian population, to “influence” government policy using “intimidation or coercion,” in addition to “mass destruction, assassination or kidnapping.” Under Section 808, the “crime” of “terrorism” includes “injury to building or property within… jurisdiction of the United States.” Dissent through civil disobedience is now a crime. As stated by former White House spokesman Ari Fleischer in late 2001, Americans “need to watch what they say, watch what they do.” He didn’t say “terrorists,” he said “Americans.” 

The Attorney General can criminalize any group, funders, volunteers, or supporters when put on the right list. The Secretary of Education called the National Educational Association a “terrorist” organization. Nixon had an “enemies list” of those who opposed his regime, which included the League of Woman Voters and the Guild. The Sierra Club is said to include “terrorists.”

There are also Executive Orders, coupled with a concerted propaganda effort instructing us that dissent is not only wrong, but criminal; that Due Process thwarts effective law enforcement and the government’s ability to keep us safe; that limitations on our freedoms are now necessary; that to question any government response is to support terrorism.

Some now in positions of authority have been steadily working on this for at least thirty years. Documentation suggests it has been on the drawing boards since at least the early 1970’s when a series of multi-national corporate policy conferences produced written policies, beginning in the 1990s,(1) that democracy is incompatible with their stability needs.

   In the early 1970s, in the case of United States v. United States District Court,(2) the government espoused the Executive Branch’s inherent authority, in times of national emergency, to suspend the constitutional rights and privileges of any U.S. citizen deemed a threat to the national security, justifying FBI COINTELPRO surveillance operations against the Weather Underground. In declaring the government’s position as contrary to that of a free and democratic society, the U.S. Supreme Court said:

   “History abundantly documents the tendency of Government…to view with suspicion those who most fervently dispute its policies…The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’”(3)

Justice William Douglas, in a concurring opinion went further:

   “[W]e are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those who register dissent or who petition their government for redress are subjected to scrutiny by grand juries, by the FBI, or even the military…befriended by secret government informers.

“…When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court’s long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients.

“…It would indeed be ironic if, in the name of national defense, we would sanction the subversion of… those liberties… which [make] the defense of the Nation worthwhile.(4)”

The 1960s and 1970s civil rights and liberation struggles of People of Color included the Student Non-Violent Coordinating Committee, Black Panther Party, Brown Berets, Weather Underground, Puerto Rican independence groups, and the American Indian Movement (AIM). These and others were targets of the FBI’s COINTELPRO or other-named counter-intelligence programs. The government did not publicly call it a “War on Terrorism” and denied assertions it was to stifle dissent.

Today feels like déjà vu all over again.(5)

In 1975, fresh out of school as a National Lawyers Guild attorney, I had the honor to work with the Wounded Knee Legal Defense/Offense Committee (WKLD/OC) in Rapid City, South Dakota. We represented AIM people charged with federal and state offenses in five Midwest states. While I worked with Indian people from all over the hemisphere, most were members of the Oglala band of the Lakota (mis-called “Sioux”) from the nearby (100 miles) Pine Ridge Indian Reservation. Working as a WKLD/OC lawyer, and for 29 years as one of Leonard Peltier’s attorneys, I have documented our government’s efforts to crush this grassroots indigenous people’s movement. The lead agency was the FBI.

America’s current problems began in 1492, when the indigenous population was about 10 million. Today, five centuries later, census figures place the number at less than a million. In western South Dakota, indigenous resistance to European incursion resulted in the defeat of the U.S. Army and the negotiation of a peace agreement — the Ft. Laramie Treaty of 1868. In it, the United States recognized lands west of the Missouri River and east of the Big Horn Mountains (with the Black Hills in the middle) not as part of the United States, but lands of the Lakota and Arapaho — “Indian Country.”

Discovery of gold in the Black Hills, the geographic and spiritual center of Lakota religious beliefs and practices, brought unilateral treaty violations involving U.S. military operations initiated to support corporate mining interests and land speculators. The Hearst empire, for example, was built with Black Hills gold. U.S. Army units initiated a policy of arrest, relocation, and murder, with survivors being herded onto the most desolate and agriculturally useless tracts of land outside the Black Hills. Indigenous resistance included the 1876 defeat of Custer’s 7th Calvary troops as they attacked an encampment near the Little Big Horn River. It largely ended with the U.S. Army’s massacre of nearly 300 men, women, and children on the banks of Wounded Knee Creek in 1890, for which thirteen soldiers received the Congressional Medal of Honor.

By then, some Indian mercenaries were willing to assassinate their own, resulting in the murders of leaders of resistance such as Chiefs Crazy Horse, Spotted Tail, and Dull Knife. The U.S. then said it wanted to ensure security and law and order for the Lakota, so Congress quickly passed the Major Crimes Act, imposing federal criminal jurisdiction over the alleged criminal acts of the Lakota and other Indians on “federal” Indian reservations.

The military suppression of indigenous resistance in the late 1800s required a public face-change for the United States, so control of Indian people and their lands was transferred from the War Department to the Department of Interior.  People and land alike were now regarded and treated as property of the United States.

Indian Country became occupied by the U.S. Army, mining operations, and settlers who were encouraged by government offers of claims and deeds to Indian land. Forced relocation programs uprooted many Lakota families to Chicago, Denver, Minneapolis, Portland, and other large cities in order to depopulate the land, as the Black Hills and surrounding areas were increasingly discovered to contain rich deposits of other precious minerals (oil, gas, iron ore, silver, and later uranium). To eradicate Indian Country, in addition to missionaries, small pox blankets, and the decimation of the buffalo herds, the occupying American forces outlawed traditional religious practices. In the Black Hills, Indian people were arrested into the 1980s for attempting to practice their religion. Indian people became ancient history to most Americans.

In 1934, to destroy the non-western form of traditional governing, the U.S. occupation forces imposed the Indian Reorganization Act (IRA), a purportedly American-style tribal government with three branches, but with no checks and balances. Uncontrolled federal money in the hands of western-educated tribal presidents often led to corrupt and despotic colonial governments. All actions of the tribal government involving people, land, and resources were subject to oversight and veto by an agency of the occupying forces, the Bureau of Indian Affairs (BIA).

By the late 1960s and early 1970s, life in Indian Country was a lower Third World existence, nasty, brutish and short. On the Pine Ridge Reservation, many people lived without electricity or running water, unemployment was 85 percent, and infant mortality rates were ten times the national average. A Lakota man could expect to live to the age of 41. Off the Reservation, Indians faced violence and discrimination in most aspects of life and society.

From the urban ghettos, descendants of forced relocatees joined reservation survivors and formed local and national Indian civil and Treaty rights organizations. Nationally, AIM became the leading indigenous rights organization. Locally, there was the Oglala Sioux Civil Rights Organization (OSCRO). Indian people were determined to become visible and heard.

FBI domestic security operations designed to monitor and destroy AIM began no later than 1970, when FBI agents began surveillance of peaceful protests which challenged the government’s failure to return abandoned “federal” lands in accordance with treaty obligations. The FBI’s response to Indian exercise of First Amendment Rights was to have its “Nationalities Intelligence Section” advise the Secret Service and “responsible military forces” of “pending demonstrations.” Intelligence information was disseminated to military intelligence agencies of the Army, Navy, Air Force, Secret Service, and U.S. Marshals Service.(6) By the 1970 protest at Alcatraz, FBI operations against the Indian rights movements directly involved the White House.(7) FBI Headquarters began referring to Indian dissidents as “subversives” whose “acts” and whose “conduct or statements” indicated “a propensity for violence and antipathy toward good order and government.”(8)

The FBI’s early domestic security operations against AIM also included surveillance of peaceful protests over racially motivated murders of Indian men,(9) education,(10) reduction of BIA educational funds,(11) health care and welfare assistance,(12) hunting and fishing rights,(13) and desecration of burial grounds.(14)

While conducting ever growing efforts to crush Indian dissent, the Minneapolis Police Department, quite familiar with AIM, described the movement as:

“[A]n American Indian civil rights type organization formed… to project social, civil, and economic equality for the American Indian, utilizing a militant approach if necessary, but not extremist methods.(15)”

Yet, the less familiar FBI considered AIM as “a revolutionary-type group which demonstrates for ‘Indian Rights.’ ”(16) This exemplifies the dangers of an ideologically driven executive branch with authority to designate an association or individual as “subversive” or, in the current vernacular, “terrorist.”

The Trail of Broken Treaties involved the caravanning of hundreds of indigenous people from nations all throughout the county to Washington, D.C. to protest U.S. failures to honor various treaty obligations. Frustration with the White House refusal to meet led to the occupation of the Bureau of Indian Affairs [BIA] building a week before presidential elections in 1972.(17) Even the National Security Agency joined the fray.(18) Leonard Peltier was among those identified at the BIA Building by intelligence sources.

The FBI’s response was to “intensify” its “efforts” against AIM members and organizations “who may be planning future violent demonstrations or criminal activities.”(19) The shift to branding AIM as criminal and violence-prone, rather than being engaged in legitimate political activities, was emerging. In all internal correspondence, the Bureau began to label those involved in the BIA Building’s occupation as “considered dangerous,” placing their lives at risk. To meet this purported threat to the nation’s security, all Indian men, women, and children were seen as potential subversives, and their ravaged communities and lands as potential sources for AIM support. Every FBI Division was ordered to provide Headquarters with the “[a]pproximate number of Indians” residing within the Division, as well as the “[n]umber of reservations” and “number of Indians residing thereon,” the identity of each tribe, and the “[i]dentity” of any “known extremist organizations” or “extremist individuals active within the Indian community.” Informants were planted into communities. Headquarters assigned the “Extremist Intelligence Section of the Domestic Intelligence Division” to supervise the “intelligence gathering” of the operation.(20)

    Within a few weeks of Leonard Peltier’s return from Washington, D.C., he was attacked, beaten, and arrested for the alleged attempted murder of an “off-duty” Milwaukee Police officer. A little more than five years later, during the only trial he would have where a full defense was permitted, the jury found him not guilty.(21) The jury heard evidence that the handgun was inoperable, that police provoked the confrontation and savagely beat Peltier, and testimony from Belle-Ann Guild, the former girlfriend of the purported victim-officer, that he showed her a picture of Peltier and told her that he was helping the FBI “catch a big one.”(22)

The FBI tracked and initiated “investigations” on AIM leaders and members around the country,(23) went after funding sources,(24) and monitored press conferences.(25)

Even where there was no evidence or information that an AIM chapter or individual was involved in or advocating violence, it was enough if the FBI believed that an informant or analyst thought there was a “potential” for violence in the future(26) — usually suggested by the informant.

The early 1970s was also a time of frenzied acquisition of leases and claims by 27 multinational energy and mineral corporations interested in the vast gold, uranium, coal, and other resources in the Black Hills region. This time, it was the FBI, and not the Army, which took the lead in crushing indigenous resistance. Significantly, at the time when the FBI declared AIM as one of the most “dangerous” organizations in the country, it simultaneously documented AIM’s shift in priorities to include stopping environmentally destructive mining activities.(27) Public actions to protect the Earth have long been, and remain, a focus of FBI domestic security operations.

The Black Hills Region, including the Pine Ridge Indian Reservation, soon became a literal battleground. Away from the watchful eyes of all but local, often hostile media, a climate of misunderstanding, ignorance, and fear was generated and encouraged. A peaceful demonstration at Mount Rushmore by Lakota men, women, and children to demand enforcement of the 1868 Treaty brought the Washington, D.C.–based U.S. Park Rangers “Strike Team” and a request for National Guard troops.(28)

A year later AIM protested the manslaughter, instead of murder charges, filed against a white man who said: “I’m going to get me an Indian” before walking into the street and fatally stabbing Wesley Bad Heart Bull. A subsequent confrontation in Custer, South Dakota (near where Custer’s military expedition discovered gold) was peaceful until the victim’s mother was beaten as she tried to pass through police lines to attend a meeting with the local officials about her son’s murder. Police then attacked protesters who came to her aid. The confrontation was misrepresented by the media, which painted AIM in particular, and Indians in general, as the perpetrators, rather than the victims of police violence. This set a propaganda pattern for the government’s disinformation campaign, directed towards the local white community, where fear of righteous and angry Indians over land issues has historically been used to foment racism, ignorance, and division so as to thwart the dreams of their Lakota neighbors.

Within weeks of the Custer protest, a peaceful protest against the despotic Dick Wilson Tribal Administration at the site of the 1890 massacre at Wounded Knee brought hundreds of combat-clad federal troops. The demonstrators were quickly surrounded by FBI agents and U.S. Marshals equipped by the Army with armored vehicles mounted with .30 and .50 caliber machine guns and M-16 assault rifles. The U.S. Air Force provided aerial reconnaissance of the besieged area with fighter jets and helicopters. FBI domestic security operations against AIM had evolved to include counter-insurgency. During the 71-day siege, the Army tested a secret plan for military involvement in the suppression of dissent. Government forces fired hundreds of thousands of military bullets at the insurgents and their supporters, killing two and wounding a dozen. One of those killed was OSCRO leader and recent Viet Nam veteran, Buddy LaMonte, shot by a government sniper. Targeted assassination in the name of domestic security had come (again) to America.

As concluded by Eighth Circuit U.S. Court of Appeals Judge Gerald Heaney:

   “[T]he United States government over-reacted at Wounded Knee.  Instead of carefully considering the legitimate grievances of the Native Americans, the response was essentially a military one which culminated in a deadly firefight on June 26, 1975 between the Native Americans and the FBI agents and the United States marshals.(29)”

This was yet another example of this country’s long history of suppression of dissent through military means.

Internally, the FBI described AIM as “a pertinent threat to the welfare of the United States Government and its citizenry of the first magnitude.”(30) This was completely refuted in later (compelled) testimony of the FBI Director that his “very definite knowledge” was that AIM “is a movement” with “fine people,” a “general consideration of what needs to be done,” and “something that is worthwhile.” However, he then either perjured himself or was kept ignorant by senior FBI bureaucrats when, in sworn testimony, he stated that “it is not tabbed by us as an un-American, subversive or objectionable organization.”(31) In language nearly verbatim to the definition of a “domestic terrorist” under the Patriot Act, some thirty years ago Senior FBI and Justice Department officials formalized continued domestic security investigations against AIM members alleging illegal use of force, property damage, and violence “for the purpose of substantially impairing the functioning of” U.S., state, and tribal governments “in order to influence decisions and policies of the federal government.”(32)

Targeting the leaders of the most politically powerless and impoverished Indian community as that day’s “unlawful combatants,” FBI Headquarters claimed, in language resonating today:

   “The government’s right to continue full investigation of AIM…may create relevant danger to a few citizens’ privacy and free expression, but this danger must be weighed against society’s right to protect itself against current domestic threats.(33)”

To accomplish this, the FBI proceeded upon the premise:

   “It is necessary that the federal government do what is reasonable to protect itself… To accept at face value, an AIM argument, that it is being set upon by the Central Intelligence Agency (CIA), FBI, and Bureau of Indian Affairs (BIA), as part of a government conspiracy to destroy the movement and as a result, back off, would result in the eventual abdication of this governmental responsibility.(34)”

However, senior FBI officials as recently as 2000 and 2001 publicly maintained no such domestic security operations ever existed.(35)

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In language nearly verbatim to the definition of a “domestic terrorist” under the Patriot Act, some thirty years ago Senior FBI and Justice Department officials formalized continued domestic security investigations against AIM members alleging illegal use of force, property damage, and violence “for the purpose of substantially impairing the functioning of” U.S., state, and tribal governments “in order to influence decisions and policies of the federal government…” [t]argeting the leaders of the most politically powerless and impoverished Indian community as that day’s “unlawful combatants…”


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FBI operations against AIM and OSCRO during Wounded Knee and afterwards were directly under the command of the head of the FBI’s Domestic Security Section, Richard Held.(36) Held ran his operations against AIM from both the field at Pine Ridge and his office in Chicago. From Chicago, he also oversaw similar operations against the Black Panther Party, including the murder of Panther leader Fred Hampton and member Mark Clark, and the wounding of others in a police raid set up through an FBI informant.

AIM members were then subjected to “extremist matter” investigations, predicated on their alleged acts of “rebellion or insurrection” under 18 U.S.C. §2383, and “seditious conspiracy” under 18 U.S.C. §2384.(37) Listed individuals were considered for inclusion in the “extremist photograph album, Administrative Index, and Key Extremist List,” which the Bureau still maintains and supplements with known dissidents today.

An individual AIM member’s “militancy” alone was enough for a place in the FBI’s Administrative Index computer.(38) As the U.S. Commission on Civil Rights later reported, veterans of the 1973 Wounded Knee siege and other AIM members had “a genuine fear” that the FBI was “out to get” them.(39)

With the end of the siege, FBI domestic security field operations against AIM and OSCRO took another shift. Hundreds of AIM members and supporters were arrested for interfering with federal officers in the lawful performance of their duties. The FBI consciously used the criminal justice system to attempt to inhibit the First Amendment activities of AIM:
 
   “[I]t should be recognized that these investigations involving militant extremists are of such a nature that they will be tied up in court proceedings and under the court’s jurisdiction during the forthcoming summer, and, it is felt, will greatly contribute to inhibiting their activities.(40)”

However, the opposite occurred, perhaps explaining our government’s current disdain for due process. U.S. district courts dismissed hundreds of cases against those prosecuted for participating in or providing material support for those under siege, ruling the FBI and U.S. Marshals had acted illegally, in part through the active involvement of the military in the suppression of dissent.(41) Over 560 indictments against AIM membersand supporters were issued.(42) There were approximately a dozen convictions.

Courtroom exposure of the government’s use of fabricated eye-witness testimony in the prosecutions of AIM leaders Russell Means and Dennis Banks, and the cover-up of the witness’s rape of a 16-year-old girl while acting under FBI direction, led to the dismissal of the remaining charges.(43)

The FBI began to recognize that Indian activism would not be stopped by prosecuting the dissidents.(44)

On the Pine Ridge Reservation, the government created of a climate of terror in those communities where support was surging. The government made no effort to “win the hearts and minds” of the more traditional Lakota, who generally supported AIM. Instead, a group was formed under the auspices of the tribal IRA government and under the immediate command of the Tribal Chairman Wilson. The Guardians of the Oglala Nation, or GOON Squad,45 was made up of federally funded tribal employees and eventually included BIA police officers and Tribal Rangers. As later admitted by a former leader, the GOONs understood their job to be surveillance and destruction of AIM activities in cooperation with the FBI.(46)

The relationship between the FBI and the GOON Squad began during Wounded Knee where armed GOONs openly manned extra-judicial roadblocks where AIM members and supporters were harassed, beaten, robbed, and sometimes worse. U.S. Marshals intervened in one incident and arrested GOONs who pointed rifles at them. When Agent Held arrived, the FBI intervened, had the GOONs released, the Marshals withdrawn, and secured the roadblock until the GOONs were able to resume their posts.(47) It was the beginning of FBI interference with the prosecution of GOONs for violence perpetrated against Movement members and supporters, if not other federal officers.

More covertly, the FBI began to provide the GOON Squad with armor-piercing bullets and intelligence information about the location of individuals, which it knew would be used against members and supporters of AIM.(48) For example, OSCRO leader Pedro Bissonette was hunted down and assassinated by BIA police.(49) The GOON Squad had access to plastic explosives and hand grenades,(50) as well as automatic and semi-automatic rifles, including M-16s and AR-15s, which were provided by the government.(51) GOONs were then involved in ambush murders,(52) shooting at homes,(53) firebombing homes,(54) beatings,(55) and general acts of terrorism directed against AIM members and their families.(56)

    During the less than three year period leading up to the deadly clash between the FBI and AIM members and supporters in 1975, nearly 60 men, women, and children were killed and hundreds wounded on the Pine Ridge Reservation. What reservation residents called the “Reign of Terror”(57) was sanctioned by the government as a means to suppress dissent.(58) No one in the government, despite repeated requests, cared to stop it until it was over. One of the few criminal prosecutions, the torture, rape and murder of 14-year-old Sandra Wounded Foot (daughter of AIM sympathizers), by BIA Investigator Paul Herman resulted in a minimal involuntary manslaughter conviction.(59) He served little more than three years of a ten-year sentence as a “protected witness”(60) — an interesting parallel to current manslaughter prosecutions of military and CIA-contract interrogators for torture-murdering their captives.(61) A U.S. Commission on Civil Rights request for a Congressional investigation of what the FBI was doing on the Pine Ridge Reservation was ignored.(62)

Two months before the Oglala firefight, the FBI issued a position paper outlining the FBI’s plan for dealing with AIM by counter-insurgency forces, “The Use of Special Agents of the FBI in a Paramilitary Law Enforcement Operation in the Indian Country,”(63) which included the planned use of deadly force. It noted a history of denial by the U.S. Army of combat forces for assault operations and the military’s concern that “the use of Army troops against these Indians might be misinterpreted by the press and some citizens.” This time, the FBI would do the whole thing itself, with a cooperative White House to handle any criticism of such domestic military-type operations.(64)

The FBI’s shift to counter-insurgency was clearly related to its assessment of local, grassroots support for AIM activists:

“There are pockets of Indian population which consist almost exclusively of American Indian Movement (AIM) members and their supporters on the Reservation. It is significant in some of these AIM centers the residents have built bunkers which would literally require military assault forces if it were necessary to overcome resistance emanating from the bunkers.”

One area referenced by the Memorandum was “near Oglala.”(65)

Three weeks later, a firefight erupted between numerous Oglala residents and AIM members from other parts of the country, and the FBI, U.S. Marshals Service, the GOON Squad, and various police agencies. At the end of the eight hour conflict, three young men lay dead, shot in the head — two FBI agents and an AIM member. The rest of the men, women, and children vanished through police lines.

Claims by Attorney General Ashcroft that an information “wall” between criminal and intelligence investigations helped terrorists attack us September 11, 2001 are belied by FBI methodology of nearly 30 years. The day of the firefight, the criminal investigation of the deaths of the two agents (only) was placed under the command of the head of the Domestic Security Section, Richard Held.(66) In addition to the resources of the Intelligence Division, Held now officially had use of the greater resources of the General Investigative Division. Any criminal homicide investigation and prosecution would be merged with the ongoing domestic security operations against AIM and specifically targeted individuals.

Within weeks, the FBI set out to “develop information to lock Peltier…into this case.”(67) Within four months, he was charged with murder.

Within a year, a pickup chased onto the private ranch by the (soon deceased) agents transformed into a van sometimes driven by Peltier. Most significantly, an exculpatory ballistics test was suppressed and a less conclusive “match” made and testified to between a casing reportedly seized near agents’ bodies and a rifle said to be Peltier’s. Peltier was then ordered extradited from Canada, where he was seeking asylum, upon false eyewitness affidavits. When the purported eyewitness recanted during an offer of proof at Peltier’s murder trial, the judge responded, that: if believed by the jury, the facts testified… would shock the conscience of the Court and the interests of justice should be considered by the jury.”(68) But the judge decided it best allow the jury not evaluate her testimony themselves.(69) To prepare for trial against Peltier, children were threatened with death by FBI interrogators, one tied to a chair for hours after being subjected to sleep deprivation interrogation techniques over a 24-hour period.(70) This was the United States— not Iraq.

While Peltier’s extradition from Canada was pending, two of his co-defendants were tried before a federal jury in Cedar Rapids, Iowa. The government tried to ensure a guilty verdict in this political-criminal case. However, it depended on the judge remembering he worked for the government, and was not a neutral jurist. Wrong judge. The FBI fretted over defense presentation of eyewitness testimony of people from Pine Ridge and an official of the U.S. Commission on Civil Rights who detailed the sources and nature of the climate of terror against the traditional Lakota. The all-white, working-class jury therefrom concluded “the FBI created a climate of fear on the Reservation which precipitated the murders.”(71) The defendants were acquitted on self-defense grounds. The FBI was outraged. Said the jury foreman: “If Peltier had been tried in Cedar Rapids by that same jury, he’d be innocent, he would have been… found not guilty.”(72)

Perhaps fear of the jury system and potential exposure of abuses of the government’s domestic security apparatus caused it to change the rules and create “unlawful combatants,” asserting that even American citizens could be beyond Constitutional protections at their whim. Fortunately, this time, the Supreme Court has said “no,” but time will tell. As with AIM, the FBI’s domestic security apparatus works around obstacles such as truth and due process.

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Perhaps fear of the jury system and potential exposure of abuses of the government’s domestic security apparatus caused it to change the rules and create “unlawful combatants.”

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The FBI blamed the trial Judge, Chief Judge Edward McManus. A post-trial FBI analysis concluded the acquittals were the result of the judge’s decisions which “forced” the FBI to disclose “all FD-302s” (agent reports) in the case, permitting the defense the “freedom of questioning of witnesses,” the lack of a “gag” order to silence the defense team outside the courtroom, and (after months of government issued, false and inflammatory press releases) that the unsequestered jury was exposed to “numerous press reports detrimental to the FBI in unrelated matters [which appeared] in local newspapers,” and the admission of evidence showing FBI complicity in the violence and terror on Pine Ridge.(73) Upon Peltier’s extradition, his case was administratively removed from the Judge who tried his co-defendants, and given to a more cooperative and easily co-opted judge in North Dakota.(74) Ex-parte meetings occurred between the FBI and the new judge. The FBI worked hard to convince the judge that Peltier, his supporters, and his defense team were an extreme threat to his physical safety, and that of the jury and the courtroom.(75) The new judge, ruling that the FBI was not on trial, reversed every ruling of Chief Judge McManus, and cut the defense to less than three days of the five week trial. He also welcomed a high level of security which permitted a constant climate of fear surrounding the courtroom, and sequestered the jury — 24 hours a day.

Peltier was convicted and sentenced to two consecutive life sentences. At the first oral argument of his direct appeal, William Webster sat on the Eighth Circuit panel, a month after he knew he was the designated nominee Director of the FBI.(76) The FBI also sent false intelligence information to the Appeals Court warning of a plan by AIM to kidnap a judge’s daughter.(77) Of course, such plans never existed, but fear, not reality, was the purpose of this operation. Peltier’s conviction was affirmed.(78)

Subsequently, Peltier was the target of an unsuccessful effort to assassinate him during a contrived escape attempt in which he was led to believe he had to escape to save his life. In his trial on charges including escape, the Judge concluded that the evidence showed a basis for Peltier to have “a well-grounded fear that aplot existed among federal officials to assassinate him.”(79) However, due to the cooperative judge, the government was again able to block the jury and the public from hearing the evidence, and Peltier was convicted.

When FOIA disclosures revealed the FBI suppressed exculpatory ballistics evidence that the rifle attributed to Peltier could not have fired the casing found near the agents’ bodies, a new trial was sought. The Court of Appeals found Peltier’s proof exceeded the Bagley standard (“casts a doubt”),(80) characterizing it as “casting a strong doubt” on the government’s case. Yet, the Court then said the Bagley standard was not met and denied a new trial.(81) Justice?

   Leonard Peltier remains in prison. He is living proof the government has targeted people for political activities, presented false evidence to convict, suppressed evidence of its falsity, and even when all this is revealed, use its full prosecutive weight to keep people detained. Such has been the case for 30 years, making justice illusory for Leonard Peltier. And he is certainly not alone.

An Amnesty International report called for an independent inquiry into the use of our criminal justice system for political purposes by the FBI and other federal agencies.(82) It cited AIM, Leonard Peltier, the Black Panthers, and other movements and individual cases as examples.

Congress failed to examine the well documented abuses of the Bureau’s domestic security work since the Judiciary Subcommittee closed up shop in 1976, stopping the investigation of FBI operations which targeted dissident individuals and/or organizations. The Church Committee halted a planned inquiry into FBI operations against AIM the day after two FBI agents were killed June 26, 1975 on the Pine Ridge Reservation. Other movements have similar stories, similar evidence of the lengths to which our government has gone to suppress dissent.

As Joint Terrorism Task Forces reach out into our communities, our computers, our banks, our homes and offices, and our doctors’ offices, and the Administrative Index grows, it seems like déjà vu, only much more. For a new dawn, the decision is left with each of us to decide on the kind of country we are going to leave our children, whether it will be free and democratic — and what we intend to do about it.

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NOTES

(1) 18 U.S.C. §2332b-e.

(2) M. Crozier, S. Huntington, J. Watanuki, The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission (1973).

(3) U.S. v. U.S. District Court, 407 U.S. 297 (1972).

(4) Id. at 315.

(5) Id. at 332-333.

(6) Yogi Berra.

(7) Letter from SAC, Albany to Director, Demonstrations by American Indians in the United States, 2 (Apr. 9, 1970).

(8) FBI Teletype, San Francisco to Director, Indian Occupation of Alcatraz Island, 2 (Jun. 2, 1970).

(9) Cover sheet from Director, FBI, to Director, Secret Service, Possible Civil Disorder, Gallup Indian Ceremonial Indians Against Exploitation (Aug. 31, 1970).

(10) Informative Note, Domestic Intelligence Division (Mar. 7, 1972).

(10) Teletype, SAC Oklahoma City to Director, Protest Demonstration, Chilocco Indian School, (Dec. 28, 1971).

(11) Teletype, Minneapolis to Acting Director (Oct. 25, 1972).

(12) Teletype, Minneapolis to Director, Demonstration Pine Ridge, (Mar. 13, 1972).

(13) Memorandum, Minneapolis, Possible Confrontation Between Whites and American Indians Over Hunting–Fishing Rights Minnesota (Apr. 4, 1972).

(14) Teletype, SAC Omaha to Director, AIM—Burial Ground Incident (Aug. 31, 1972).

(15) Memorandum, supra note 13.

(16) See, Note, Letter from J. Edgar Hoover to [name deleted] (March 1, 1972).

(17) The AIM manifesto from the Trail of Broken Treaties can be found at www.aimovement.org/ggc/trailofbrokentreaties.html.

(18) Id. The CIA would later be added. See, FBI Memorandum, American Indian Movement, 53 (1976).

(19) Airtel, Acting Director, to SAC Albany, American Indian Movement; Extremist Matters, Extremist Informants (Nov. 2_, 1972).

(20) See, Teletype, SAC Oklahoma City to Acting Director, 1-2 (Dec. 19, 1972).

(21) See, Teletype, Milwaukee to Director, Leonard Peltier (Jan. 28, 1978).

(22) See, State v. Peltier, _______ (Milwaukee Co.).

(23) See, e.g., Teletype, Los Angeles to Acting Director, American Indian Movement (Dec. 4, 1972); Teletype, Los Angeles to Acting Director, American Indian Movement, 3 (Dec. 8, 1972); Airtel, Acting Director to SACs, American Indian Movement—Extremist Matters—American Indian Activities, 2 (Dec. 29, 1972).

(24) Informative Note, Domestic Intelligence Division (Nov. 30, 1972).

(25) Teletype of Dec. 8, 1972, supra note 23 at 1-2.

(26) Airtel, Acting Director to SAC, Omaha, American Indian Movement—EM—American Indian Activities, 2 (Jan. 18, 1973).

(27) FBI File, MP 157-1458.

(28) Teletype, Minneapolis to Director (Attn: Domestic Intelligence Division), Indian Demonstration, Mount Rushmore, 1 (Jun. 6, 1971).

(29) Letter of Justice Heaney to Sen. Daniel Inouye, 2 (Apr. 18, 1991).

(30) FBI Memorandum, supra note 18 at 51.

(31) Transcript of Trial, U.S. v. Butler and Robideau, CR 76-11 (N.D.Iowa July 7, 1976), at 2615.

(32) Memorandum for FBI Director William Webster, RE: American Indian Movement (AIM) Domestic Security, 1 (July 8, 1978).  See, DOJ Memorandum, Attorney General to FBI Director, American Indian Movement, 1 (Sep. 14, 1975).

(33) FBI Memorandum, supra note 18 at 52.

(34) Id., at 53.

(35) Debate with ASAC Minneapolis, S.D. Public Radio Forum (Jun. 26, 2000).

(36) See, e.g., FBI Memo., W.M.Felt to Gebhardt, 1, 4 (Apr. 24, 1973); FBI Nitel, Chicago to Director, et al, Wounded Knee, (Oct. 24, 1973); FBI HQ Letter from John J. O’Connell to Callahan (May 11, 1973).

(37) FBI Memorandum, Predication for Investigation of Members and Supporters of AIM (Mar. 3, 1975).

(38) FBI Nitel__________, 1-2 (Feb. 16, 1976).

(39) Report on U.S. Commission on Civil Rights, Rocky Mountain Regional Office, 2 (Jul. 9, 1975).  See also, Report of the U.S. Commission on Civil Rights, 4 (Mar. 31, 1976).

(40) Memorandum, R.F.Bates to Gebhardt, Wounded Knee, 1 (Jun. 25, 1973). See also, Teletype, Minneapolis to Acting Director,  Wounded Knee, 3 (Jun. 21, 1973).

(41) See, e.g., United States v. Jaramillo, 380 F.Supp. 1375 (D.Neb. 1974); United States v. Red Feather, 392 F.Supp. 916, 923 (D.S.D. 1975).

(42) See, W. Churchill and J. Vander Wall, The Cointelpro Papers (Southend Press, 1990), at 253.

(43) See, United States v. Banks and Means, 383 F.Supp. 389 (D.S.D. 1974), aff’d., 513 F.2d 1329 (8th Cir. 1975).

(44) Teletype, Minneapolis to Director, 5 (Aug. 12, 1973);  Memorandum from R.F. Bates, supra note 40 at 4.

(45) See, Transcript of (video recorded) Interview with GOON leader Duane Brewer, 34, 41, 97 (1986).

(46) Id., at 7-8.

(47) FBI Memorandum, W.M. Felt to Gebhardt, 1, 4 (Apr. 24, 1973).

(48) Brewer Transcript, supra note 45 at 97.

(49) See, Statement by Vern Long and Eddie White Wolf (Oct. 18, 1973); Brewer Transcript, supra note 45 at 32-33.

(50) Id., at 15, 36; see also p. 134

(51) Id.

(52) Brewer Transcript, supra note 45 at 1, 60, Supp. 1 of 2 (Byron DeSersa);  31 (Jeanette Bissonnette), 56-58 (DeSersa), 86-88 (Pedro Bissonette);  114 (“white hippie”); 132-133 (Anna-Mae Pictou Aquash).

(53) Id., at 32, 54, 90-93, 109.

(54) Id.,at 30, 60.

(55) Id., at 7-8, 23-25, 54, 110.

(56) Id., at 26, 55-56, 69-72, 90.

(57) Report of the U.S. Commission on Civil Rights, 1 (Jul. 9, 1975).

(58) Where non-law enforcement personnel act with official encouragement, they are treated as government agents in the determination of any issue of outrageous government conduct. United States v. Janotti, 501 F.Supp. 1182, 1203 (E.D. Pa. 1980).

(59) Superseding Information filed Dec. 19, 1978, United States v. Paul Herman, CR 78-50054-01 (D.S.D.).

(60) Judgment and Commitment Order dated February 9, 1979, United States v. Paul Herman, CR 78-50054-01 (D.S.D.).

(61) Soldiers charged in Iraqi death, Rapid City Journal, July 3, 2004.

(62) U.S. Commission on Civil Rights Report, S.H.Witt & W.F.Muldrow to John Buggs, Events Surrounding Recent Murders on the Pine Ridge Reservation in South Dakota, 4 (Mar. 31, 1976).

(63) This document discussed how the FBI had determined that it would be necessary to utilize paramilitary forces against the AIM. It discussed the FBI’s counter-intelligence operations against AIM, as beginning in 1972. Id., at 2. This document was attached as Exhibit R to the 11/1/90 Affidavit of Counsel.

(64) Civil Rights Report, supra note 62 at 2.

(65) Memorandum, Bassett to Callahan,  1 (Jul. 8, 1975).

(66) FBI Memorandum, R.E. Gebhardt to Mr. O’Connell, RESMURS, 1 (Jun. 27, 1975).

(67) Daily Summary Teletype, Rapid City to Director, et al., 10 (Jul. 17, 1975).

(68) Trial Transcript, U.S. v. Peltier, C77-3003 (D.N.D),  4707-4708.

(69) The Eighth Circuit later referred to the FBI’s use of these Affidavits as “a clear abuse of the investigative process by the FBI.” United States v. Peltier, 585 F.2d 314, 335 n.18 (8th Cir. 1978).

(70) See, Testimony of Mike Anderson, Transcript of Trial, U.S. v. Peltier, C77-3003 (D.N.D.).

(71) Teletype, Rapid City to Director, RESMURS,  4 (Jul. 20, 1976).

(72) Interview (video-recorded) of Robert Bolin, 39, 52 (Dec. 4, 1990).

(73) Teletype, Rapid City to Director, RESMURS, 1-6 (Jul. 20, 1976).

(74) As reflected in the Dec. 6, 1982 Affirmation of William Kunstler, U.S. v. Peltier, No. C77-3003 (D.N.D.), in a telephonic conversation, Chief Judge McManus stated that he did not recuse himself as Peltier’s trial judge and was prepared to try him upon extradition from Canada. The Chief Judge did not know how the assignment to Judge Benson had been made.

(75) FBI Teletype, Rapid City to Director,  2 (Dec. 29, 1976); FBI Memo., B. H. Cooke to Gallagher, RESMURS—Prosecution Of Leonard Peltier, Security Of Old Federal Building, Fargo, N.D., 1 (Mar. 1, 1977);  FBI Teletype, Director to Minneapolis and Rapid City, RESMURS—Prosecution Of…Peltier; Security Of…Building, 1-2 (Apr. 5, 1977);  FBI Memo., BH Cooke to Moore, RESMURS—Prosecution Of…Peltier; Security Of…Building, 1-2 (Apr. 6, 1977).

(76) Reported in Newsweek.

(77) FBI documents on file with the author, obtained in the course of his representation of Leonard Peltier.

(78) U.S. v. Peltier, 585 F.2d 314 (8th Cir. 1978).

(79) Transcript of Trial, U.S. v. Peltier, CR-791-607 (C.D.Cal.), 2523.

(80) United States v. Bagley, 478 U.S. 667 (1985).

(81) U.S. v. Peltier, 800 F.2d 772 (8th Cir. 1986).

(82) U.S. v. Peltier, 800 F.2d 772  (8th Cir. 1986).82.  Amnesty International, Proposal for a Commission of Inquiry into the Effect of Domestic Intelligence Activities on Criminal Trials in the United States of America (London, 1981).