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