If an Agent Knocks

["Robert Kemp" <sensuant@hotmail.com>]

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http://www.cs.oberlin.edu/students/pjaques/etext/ifanagentknocks.html


If an Agent Knocks
Federal Investigators and Your Rights
Center for Constitutional Rights

Background
What is Political Intelligence?

Do I have to talk to the FBI?

Under what laws do the agents operate?

What federal agencies are likely to be interested in a citizen's political 
activities and affiliations?

How does the FBI learn about citizens and organizations?
What if I suspect surveillance?

How should I respond to threatening letters or calls?
What rights do I have?

What should I do if police, FBI, or other agents appear with an arrest or 
search warrant?

What should I do if agents come to question me?

If I don't cooperate, doesn't it look like I have something to hide?

Are there any circumstances under which it is advisable to cooperate with an 
FBI investigation?

How can grand juries make people go to jail?

Is there any way to prevent grand jury witnesses from going to jail?

What can lawyers do?

Errata
Notes

People opposing U.S. policies in Central America, giving sanctuary to 
refugees from Guatemala and El Salvador, struggling for Black liberation, 
and against nuclear weapons, are today more than ever likely to receive 
visits from FBI agents or other federal investigators. Increasingly, agents 
are also visiting the familist, friends, and employers of these activists.

This pamphlet is designed to answer the most frequent questions asked by 
people and groups experiencing government scrutiny, and to help them develop 
practical responses.

What is Political Intelligence?
Political intelligence is information collected by the government about 
individuals and groups. Files secure under the Freedom of Information Act 
disclose that government officials have long been interested in all forms of 
data. Information gathered by government agents ranges from the most 
personal data about sexual liaisons and preferences to estimates of the 
strength of groups opposing U.S. policies. Over the years, groups and 
individuals have developed various ways of limiting the collection of 
information and preventing such intelligence gathering from harming their 
work.

Do I have to talk to the FBI?
No. The FBI does not have the authority to make anyone answer questions 
(other than name and address [see errata]), to permit a search without a 
warrant, or to otherwise cooperate with an investigation. Agents are usually 
lawyers, and they are always trained as investigators; they have learned the 
power of persuasion, the ability to make a person feel scared, guilty, or 
impolite for refusing their requests for information. So remember, they have 
no legal authority to force people to do anything -- unless they have 
obtained an arrest or search warrant. Even when agents do have warrants, you 
still don't have to answer their question.

Under what laws do the agents operate?
In 1976, FBI guidelines regulating the investigation of political activities 
were issued by Attorney General Edward H. Levi. Criticized by liberals and 
conservatives alike, the guidelines were issued in the wake of a 
Congressional committee's report of highly questionable activities by the 
FBI: monitoring the activities of domestic political groups seeking to 
effect change. The report exposed the FBI's counter-intelligence program 
(COINTELPRO) under which the agency infiltrated groups, compiled dossiers 
on, and directly interfered with individuals engaged in activities protected 
by the First Amendment rights to freedom of expression and association.

The FBI COINTELPRO program was initiated in 1956. Its purpose, as described 
later by FBI Director J. Edgar Hoover, was "to expose, disrupt, misdirect, 
discredit, or otherwise neutralize activities" of those individuals and 
organizations whose ideas or goals he opposed. Tactics included: falsely 
labelling individuals as informants; infiltrating groups with persons 
instructed to disrupt the group; sending anonymous or forged letters 
designed to promote strife between groups; initiating politically motivated 
IRS investigations; carrying out burglaries of offices and unlawful 
wiretaps; and disseminating to other government agencies and to the media 
unlawfully obtained derogatory information on individuals and groups.

In 1983, Attorney General William French Smith issued superseding guidelines 
that authorized "domestic security/ terrorism" investigations against 
political organizations whenever the FBI had a reasonable belief that these 
groups might violate a law. The new guidelines permitted the same intrusive 
techniques the FBI used against organized crime.

The Smith guidelines were justified by the Attorney General's observation 
that "our citizens are no less threatened by groups which engage in criminal 
violence for political... purposes that by those which operate lawlessly for 
financial gain." He concluded: "we must ensure that criminal intelligence 
resources that have been brought to bear so effectively in organized crime 
and racketeering investigations are effectively employed in domestic 
security/ terrorism cases." The guidelines provide, therefore, no safeguards 
to protect against infringements of First Amendment rights.

Worst, they ignore the history of COINTELPRO abuses, and abolish the 
distinction between regular criminal investigations and investigations of 
groups and individuals seeking political change. They fail to limit the 
investigative techniques used to obtain data on political groups, so that 
now the FBI may use any technique, including electronic surveillance and 
informers, against political organizations.

Today, the FBI may begin a full investigation whenever there is a reasonable 
indication that "two or more persons are engaged in an enterprise for the 
purpose of furthering political or social goals wholly or in part through 
activities that involve force or violence and a violation of the criminal 
laws of the United States." The FBI has interpreted "force or violence" to 
include the destruction of property as a symbolic act, and the mere advocacy 
of such property destruction would trigger an investigation. Even without 
any reasonable indication, under a separate guideline on "Civil Disorders 
and Demonstrations Involving a Federal Interest," the FBI may investigate an 
organization that plans only legal and peaceful demonstrations.

Another set of rules governing federal intelligence gathering is Executive 
Order 12333, in force since 1981. It authorizes the FBI and CIA to 
infiltrate, manipulate and destroy U.S.political organizations, as well as 
to use electronic surveillance -- under the pretext of an international 
intelligence investigation.

What federal agencies are likely to be interested in a citizen's political 
activities and affiliations?
The FBI is still the major national intelligence-gathering agency. There are 
also many other federal, state, local and private investigative agencies. At 
least 26 federal agencies may gather intelligence, including the Immigration 
& Naturalization Service, Internal Revenue Service, and the Treasury 
Department's Bureau of Alcohol, Tobacco and Firearms. Local police agencies 
sometimes contain "special services" units and narcotics or other "strike 
forces" in which federal, state, and local agencies cooperate. The Central 
Intelligence Agency and National Security Agency are particularly active 
when a political organization has or is suspected to have international 
contacts. Military security agencies and increasingly significant "private" 
research institutes and security agencies also gather intelligence.

A recent Freedom of Information Act request on behalf of the Livermore 
Action Group, an anti-nuclear organization, revealed that the Navy, the U.S. 
Marshal's Service, and the Marine Corps all sent agents to the Group's 
public meetings and kept newspaper reports of such meetings. Most chilling 
was the revelation that the Federal Emergency Management Agency (FEMA) -- 
the federal agency charged with implementing martial law in the event of a 
nuclear war -- was also watching the Livermore group.

Federal and state, local and private agencies, all tend to share information 
in a variety of ways.

How does the FBI learn about citizens and organizations?
Political intelligence is gathered from public sources, such as newspapers 
and leaflets. It is also collected by informers who may be government 
employees or people recruited by them. Political intelligence is also 
collected through FBI visits to your home or office. We are here most 
concerned with this aspect of intelligence gathering.

Agents may be sent to interview people after FBI officials decide there is a 
"reasonable indication" that an organization or person meets the guidelines 
for a "domestic security" investigation. Such interviews are a primary 
source of information, for most people are not aware of their right not to 
talk to federal agents.

Most people are also unaware of the limits to the power of FBI and other 
investigative agents. Many people visited by agents are also afraid of being 
rude or uncooperative. Agents may be friendly and courteous, as if they are 
attempting to protect you or your organization, or express admiration for 
your organization and its goals. Occasionally, the FBI may persuade a 
disaffected member of an organization to give them information about other 
members, including their personal lives, character and vulnerabilities.

A major job of FBI agents is to convince people to give up their rights to 
silence and privacy. For example, after a Quaker pacifist spoke in 
Anchorage, Alaska, at a memorial Service for El Salvador's Archbishop 
Romero, FBI agents visited a local priest and interrogated him about the 
speaker. The agents asked about the speaker's organizational affiliations 
and expressed fears about "terrorist connections." The agents informed the 
priest that they would do a "computer check" on the speaker and his wife, 
and asked the priest if the two might do violence to the U.S. President, 
scheduled to visit the area. These interrogations were repeated in the 
community by agents who later admitted there was no basis for their 
questions about "terrorist connections" and the danger to the President.

What if I suspect surveillance?
Prudence is the best course, no matter who you suspect, or what the basis of 
your suspicion. When possible, confront the suspected person in public, with 
at least one other person present. If the suspect declines to answer, he or 
she at least now knows that you are aware of the surveillance. Recently, 
religious supporters of a nation-wide call to resist possible U.S. 
intervention in Central America noticed unfamiliar people lurking around 
their offices at 6 a.m., but failed to ask what they wanted and who they 
were. If you suspect surveillance, you should not hesitate to ask the 
suspected agents names and inquire about their business.

The events giving rise to suspicions of surveillance vary widely, but a 
general principle remains constant: confront the suspected agents politely 
and in public (never alone) and inquire of their business. If the answer 
does not dispel your suspicion, share it with others who may be affected and 
discuss a collective response. Do not let fears generated by "conspicuous" 
surveillance create unspoken tensions that undermine your work and 
organization. Creating fear is often the purpose of obvious surveillance. 
When in doubt, call a trusted lawyer familiar with political surveillance. 
Please do not call the number that was printed here as the Movement Support 
Network Hotline, because it is no longer active, and is now the private 
residence of an unrelated person.

How should I respond to threatening letters or calls?
If your home or office is broken into, or threats have been made against 
you, your organization, or someone you work with, share this information 
with everyone affected. Take immediate steps to increase personal and office 
security. You should discuss with your organization's officials and with a 
lawyer whether and how to report such incidents to the police. If you decide 
to make a report, do not do so without the presence of counsel.

What rights do I have?
The Right to Work for Change. The First Amendment to the U.S. Constitution 
protects the rights of groups and individuals who advocate, petition, and 
assemble to accomplish changes in laws, government practices, and even the 
form of government Political intelligence gathering is not supposed to 
interfere with these rights.

The Right to Remain Silent. The Fifth Amendment of the Constitution provides 
that every person has the right to remain silent in the face of questions 
(other than name and address) posed by any police officer or government 
agent.

Since 1970, however, federal prosecutors may request judges to order a 
subpoenaed witness to testify, after a grant of immunity, at a grand jury 
hearing or at a criminal trial. This grant of immunity means that your Fifth 
Amendment right to refuse to testify is taken away. What is given to you is 
only the promise not to use your testimony against you in a subsequent 
criminal prosecution. But you can still be charged with a crime. Failure to 
testify after a grant of immunity is discussed on page 12 below.

The Right to be Free from "Unreasonable Searches and Seizures." Without a 
warrant, no government agent is allowed to search your home or office (or 
any other place that is yours and private) You may refuse to let FBI agents 
come into your house or into your workplace. unless they have a search 
warrant. Politeness aside, the wisest policy is never to let agents inside. 
They are trained investigators and will make it difficult for you to refuse 
to talk. Once inside your home or office, just by looking around, they can 
easily gather information about your lifestyle, organization, and reading 
habits.
The right to be free from "unreasonable searches and seizures" is based on 
the Fourth Amendment lo the Constitution. This Amendment is supposed to 
protect against government access lo your mail and other written 
communications, telephone and other conversations.
Unfortunately, it is difficult to detect government interference with 
writings and conversations. Modern technology makes it difficult to detect 
electronic surveillance on a telephone line, other listening devices, or 
cameras that record whatever occurs in a room. Also common are physical 
surveillance (such as agents following in car or on foot), mail covers, and 
informers carrying tape recorders.

What should I do if police, FBI, or other agents appear with an arrest or 
search warrant?
Agents who have an arrest or search warrant are the only ones you are 
legally required to let into your home or office. You should ask to see the 
warrant before permitting access. And you should immediately ask to call a 
lawyer. For your own physical safety you should not resist, even if they do 
not show you the warrant, or if they refuse to let you call your lawyer. To 
the extent permitted by the agents conducting a search, you should observe 
the search carefully, following them and making mental or written notes of 
what the agents are doing. As soon as possible, write down what happened and 
discuss it with your lawyer.

What should I do if agents come to question me?
Even when agents come with a warrant, you are under no legal obligation to 
tell them anything other than your name and address. It is important, if 
agents try to question you, not to answer or make any statements, at least 
not until after you have consulted a lawyer.
Announce your desire to consult a lawyer, and make every reasonable effort 
to contact one as quickly as possible. Your statement that you wish to speak 
to the FBI only in the presence of a lawyer, even if it accomplishes nothing 
else, should put an end to the agents' questions. Department of Justice 
policy requires agents to cease questioning, or refrain from questioning, 
anyone who informs them that he or she is represented by a lawyer. To 
reiterate: upon first being contacted by any government investigator the 
safest thing to say is, "Excuse me, but I'd like to talk to my lawyer before 
I say anything to you." Or, "I have nothing to say to you. I will talk to my 
lawyer and have her [or him] contact you." If agents ask for your lawyer's 
name, ask for their business card, and say you will have your lawyer contact 
them. Remember to get the name, agency, and telephone number of any 
investigator who visits you. If you do not have a lawyer, call Movement 
Support Network Hotline (212) 477-5652, or call the local office of the 
National Lawyers Guild.

As soon as possible after your first contact with an investigator, write a 
short memo about the visit, including the date, time, location, people 
present, any names mentioned by the investigators, and the reason they gave 
for their investigation. Also include descriptions of the agents and their 
car, if any. This may be useful to your lawyer and to others who may be 
contacted by the same agents.
After discussing the situation with your lawyer, you may want to alert your 
co-workers, friends, neighbors, or political associates about the visit. The 
purpose is not to alarm them, but to insure that they understand their 
rights. It might be a good idea to do this at a meeting at which the history 
of investigative abuse is presented.

If I don't cooperate, doesn't it look like I have something to hide?
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. Though agents may say they are only 
interested in "terrorists" or protecting the President, they are intent on 
learning about the habits, opinions, and affiliations of people not 
suspected of wrongdoing. Such investigations, and the kind of controls they 
make possible, are completely incompatible with political freedom, and with 
the political and legal system envisaged by the Constitution.
While honesty may be the best policy in dealing with other people, 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.

Are there any circumstances under which it is advisable to cooperate with an 
FBI investigation?
Never without a lawyer. There are situations, however, in which an 
investigation appears to be legitimate, narrowly focused, and not designed 
to gather political intelligence. Such an investigation might occur if you 
have been the victim of a crime, or are a witness to civil rights violations 
being prosecuted by the federal government. Under those circumstances, you 
should work closely with a lawyer to see that your rights are protected 
while you provide only necessary information relevant to a specific 
incident. Lawyers may be able to avoid a witness' appearance before a grand 
jury, or control the circumstances of the appearance so that no one's rights 
are jeopardized.

How can grand juries make people go to jail?
After being granted immunity and ordered to testify by a judge, grand jury 
witnesses who persist in refusing to testify can be held in "civil 
contempt." Such contempt is not a crime, but it results in the witness being 
jailed for up to 18 months, or the duration of the grand jury, whichever is 
less. The purpose of the incarceration is to coerce the recalcitrant witness 
to testify. In most political cases, testifying before a grand jury means 
giving up basic political principles, and so the intended coercion has no 
effect -- witnesses continue to refuse to testify.

Witnesses who, upon the request of a grand jury, refuse to provide "physical 
exemplars" (samples of handwriting, hair, appearance in a lineup, or 
documents) may also be jailed for civil contempt, without having been 
granted immunity.

The charge of "criminal contempt" is also available to the government as a 
weapon against uncooperative grand jury witnesses. For "criminal contempt" 
there is no maximum penalty -- the sentence depends entirely on what the 
judge thinks is appropriate. Charges of criminal contempt are still rare. 
They have been used, however, against Puerto Rican independentistas, 
especially those who have already served periods of incarceration for civil 
contempt.

Is there any way to prevent grand jury witnesses from going to jail?
There is no sure-fire way to keep a grand jury witness from going to jail. 
Combined legal and community support often make a difference, however, in 
whether a witness goes to jail and, if so, for how long. Early awareness of 
people's rights to refuse to talk to the FBI may, in fact, prevent you from 
receiving a grand jury subpoena. If the FBI is only interested in getting 
information from you, but not in jailing you, you may not receive a grand 
jury subpoena.

What can lawyers do?
A lawyer can help to ensure that government investigators only do what they 
are authorized to do. An attorney can see to it that you do not give up any 
of your rights. If you are subpoenaed to a grand jury your lawyer can 
challenge the subpoena in court, help to raise the political issues that 
underlie the investigation, and negotiate for time. Your lawyer can also 
explain to you the grand jury's procedures and the legal consequences or 
your acts, so that you can rationally decide on your response.

ERRATA
A law enforcement official can only obtain your name and address if he or 
she has a reasonable suspicion to believe that you have committed or are 
about to commit a crime [note #2]. Thus, if an FBI agent knocks at your door 
you do not have to identify yourself to him; you can simply say "I don't 
want to talk to you," or "You'll have to speak to my lawyer," and then close 
the door. An FBI agent, unlike a local police officer, does not have 
jurisdiction to investigate violations of state statute.


First Edition published March 1985.
Published by
Center for Constitutional Rights
853 Broadway, 14th Floor
NY, NY 10003
(212) 674-3303
The Center for Constitutional Rights (CCR) is a non-profit legal and 
educational corporation dedicated to advancing and protecting the rights 
guaranteed by the United States Constitution and the Universal Declaration 
of Human Rights.

Contributions to the CCR are tax-deductible.

Additional copies or this publication can be ordered from the Center for 
Constitutional Rights at the address above. Your comments about this 
publication will be appreciated and will be useful in preparing future 
editions.

This pamphlet was prepared by The Movement Support Network with the help of 
Linda Backiel, Joan Gibbs, Jonathan Ned Katz, Margaret L. Ratner, Audrey 
Seniors, and Dorothy M. Zellner.
Photographs: Maddy Miller

Notes:
See Final Report of the Senate Select Committee to Study Governmental 
Operations, 94th Congress, 2d Session, Report No. 94-755
See e.g. United States v. Hensley, 83 L. Ed. 2d 604 (1985); Kolander v. 
Lawson, 461 U.S. 352 (1983); Brown v. Texas, 443 U.S. 47 (1979).

This pamphlet is reproduced for educational purposes. I am not a lawyer, and 
i can not give legal advice. I did not write this pamphlet. If you need 
legal help, contact the Center for Constitutional Rights at the address 
above, or contact the local Americal Civil Liberties Union (ACLU).

Peter Jaques <pjaques@cs.oberlin.edu>


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