gray areas A newly disclosed edition of an FBI rule book reveals the gray areas, which informants and undercover agents may manipulate and use when and infiltrating religious and political organizations.. In particular, the rule book raises concerns about the nature of operations directed at environmental activist groups.
The 2011 draft of the “Domestic Investigations and Operations Guide,” was obtained by The Intercept and published as part of a series called, “The FBI’s Secret Rules.” It was published without redactions for the first time.
In recent years, activists organizing against TransCanada’s Keystone XL pipeline reported FBI agents knocked on their doors, called, texted, and contacted family members. They were targeted for “their involvement in protests that delayed northbound shipments of equipment to Canada’s oil sands.”
The Guardian reported more than a year ago that the FBI spied on activists against the Keystone XL pipeline. From November 2012 to at least June 2014, the FBI “collated inside knowledge about forthcoming protests, documented the identities of individuals photographing oil-related infrastructure, scrutinized police intelligence, and cultivated at least one informant.” They targeted the Tar Sands Blockade, which was a group regularly engaged in direct action.
The FBI championed the Keystone XL pipeline as “vital to the security and economy of the United States.”
According to the FBI rule book, the FBI applies certain criteria when deciding if a political organization is “legitimate” or deserves protections that would protect the civil liberties of its members. An organization is “legitimate” if the group is founded for a “lawful purpose” or its activities are “primarily lawful.”
However, “An organization whose primary purpose is to engage in destruction of property as a means to bring public attention to commercial activities that harm the environment” is not a “legitimate organization within the meaning of this definition because its primary purpose is to engage in criminal conduct.”
If a group engages in “some acts of civil disobedience,” it may be a “legitimate organization” so long as it engages in “lawful protest or advocacy” most of the time.
This clearly implicates local activist groups, which were engaged in direct actions along the route of the pipeline. Many of the activists chained themselves to construction machinery or, in the case of the Tar Sands Blockade, they climbed trees and made forts, which could stop bulldozers from clearing a path for the pipeline. The rule book clearly opened them up to FBI infiltration.
Informants and undercover FBI agents are allowed to engage in “infrequent attendance,” which means they can attend five meetings or less, and it is the view of the FBI that they are not “participating” in a group.
For example, as indicated in the rule book, informants or undercover agents may attend a “No Tree Unsaved” meeting as a “passive observer,” if the group is being advertised as “more effective than ELF [Earth Liberation Front] in saving the planet.” They may report back on any relevant information learned, and this is not “participation.”
Under this rule, the FBI could simply send a different informant or undercover FBI agent after they attend five meetings so they could keep collecting information without having to go through protocols in place to take into consideration First Amendment rights of citizens.
The FBI does not require “supervisory approval” for operations if an informant voluntarily provides information without any specific request from the Bureau. This arrangement allows a private citizen, including someone who might work for TransCanada or other oil and gas interests, to inform on activists without triggering processes that weigh risks to civil liberties.
Another glaring loophole is the fact that a larger group may be deemed to engage in entirely lawful activity, but if the FBI determines a smaller faction within the group is committed to “criminal activities or otherwise violating laws,” then certain authorizations are not required for informants and undercover agents to target and participate in that group.
One can easily imagine the FBI focusing on a division of Greenpeace, 350.org, or the Rainforest Action Network. They could justify targeting the group by claiming to be after only a few activists, who organize under the umbrella of either of these organizations.
The FBI does not believe an informant or undercover agent is “influencing activities” of a group if he or she votes or expresses an opinion on business matters, core activities, or the future direction of the group. It’s unclear if recommending plans for actions constitutes an opinion. If it is not, informants and undercover agents would be allowed to endorse acts that may draw a group closer to violating the law so the FBI can further justify targeting the group.
So long as an informant or undercover agent is not “substantially affecting” the agenda of a group, it is not “influencing the First Amendment rights” of the group or infringing upon them, according to the rule book.
A section of the rule book deals with sensitive and non-sensitive “undisclosed participation” by informants or undercover FBI agents in groups. “Sensitive undisclosed participation” covers any activities of “political, religious, or media organizations, an academic institution, an organization having an academic nexus, or an organization devoted to advocacy relating to social, religious, or political causes or the education of the public about such causes.”
“Non-sensitive undisclosed participation” covers participation in businesses or clubs that are formed for “recreational or social purposes.”
“Undisclosed participation” or infiltration may need approval by the Chief Division Counsel (CDC) or Special Agent-In-Charge (SAC). Once given approval, that could potentially increase the nature in which the FBI spies upon a group.
An example in the rule book involves “Cindy.” She is part of a “friends of the environment” group. They remove trash from waterfront areas and wilderness trails in parks. But she overhears members of the group talking about how “Citizen’s Alliance,” another group of which they are members, plans to do more than hold peaceful demonstrations to stop commercial development on a river. They plan to “take a more activist role in preventing the construction from moving forward. “Cindy” is uncomfortable and contacts the FBI. The FBI recruits “Cindy” to report on the group’s activities as an informant.
Supervisory approval is needed, according to the rule book. “Because Citizen’s Alliance advocates through demonstrations and public education about environmental issues, it is a legitimate group even though it may also be using destruction of property as a tool to deliver its message.”
That does not necessarily match other sections of the rule book, which clearly would enable undercover agents or informants to skirt approval processes if desired.
As The Guardian reported, the FBI admitted it did not appropriately follow internal policy and obtain approval necessary for targeting activists organizing against the Keystone XL pipeline. The Houston branch opened an investigation into activists in early 2013. This was months after a “high-level strategy meeting between the agency and TransCanada.”
President Donald Trump has pledged to help TransCanada complete its tar sands oil pipeline project. Trump has also committed to helping Energy Transfer Partners complete the Dakota Access pipeline, which includes construction on indigenous tribal land in North Dakota that belongs to the Sioux.
It is unclear whether the FBI has targeted organizers, who worked to halt construction of the Dakota Access pipeline in 2016, but if the pipeline was deemed vital to the economy at any point, it is reasonable to believe they paid some attention to activists. The rule book would have at least allowed them to use informants and undercover agents to spy on organizers.
With Trump as president, he will be interested in doing whatever he can to stymie resistance to his plans to open up more lands to destructive oil and gas drilling projects. These are the kind of gray areas the FBI will wield to justify targeting activist groups engaged in efforts against extractive industries, which are more committed to profits than the threat of climate change.