Why I Won My Case Against The FBIAuthor(s): Frank WilkinsonSource: Human Rights, Vol. 15, No. 2 (Summer 1988), pp. 38-41, 53-55Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27879483 .

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Why I

Won

My Case

Against

The FBI

A personal story of 20 years of invisible persecution

by Frank Wilkinson

"A popular Government with out popular information, or the means of acquiring it, is but a

Prologeue to a Farce or Trag edy..^ people who mean to be their own Governors, must arm themselves with the power,

which knowledge gives/' James Madison, 1822

"The word 'security' is a broad, vague generality whose con tours should not be invoked to

abrogate the fundamental law embodied in the First Amend ment/'

Hugo Black N.Y. Times v. U.S.

On August 25, 1987, Federal Dis trict Judge A. Wallace Tashima signed a settlement order in the case of Wilkinson v. Federal Bureau of In

vestigation. The order called for the FBI to remove from its files some 132,000 pages documenting its sur veillance and disruption of the Na tional Committee Against Repressive Legislation (NCARL). Those docu ments are to be placed under seal for 50 years in the National Ar chives.

In so doing, the Court effectively

"Legal redress in cases involving political surveil lance and disturbance by federal agencies is lim ited/' says Frank Wilkinson (left in photo, with Paul

Hoffman, ACLU, and attorney Douglas Mirell). *%

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Why I won my case against the FBI

terminated a 38-year-long witch hunt by the government aimed, ac

cording to the FBI's own docu ments, at "neutralizing" an American civil liberties organiza tion.

Counsel for NCARL, the Ameri can Civil Liberties Union of South ern California and cooperating attorneys at Loeb and Loeb con sider the agreement extraordi

nary?unprecedented in the history

of this kind of litigation?and an im portant gain for civil liberties. In ad dition to removing every vestige of the government's files on NCARL and the other named plaintiffs, the settlement requires the FBI to turn over all NCARL and NCARL-related documents.

The information initially obtained from various Freedom of Informa tion Act (FOIA) requests which formed the basis of this lawsuit, to

gether with many thousands of ad ditional documents provided in the course of litigation discovery, have proven to be important as educa tional tools regarding the FBI's countless intrusions upon individual and organizational First Amend ment rights.

However, to date thousands of other documents have been en

tirely withheld from NCARL or were received with critical information redacted either in part or wholesale.

While such withholdings or redac tions remain subject to judicial re view, serious questions concerning the plaintiff's right to know remain to be litigated.

Frank Wilkinson is Executive Di rector Emeritus of NCARL, a board

member of the ACLU, and Executive Director of the First Amendment Foundation.

In the early 1950s, Wilkinson founded the Committee to Abolish the House Un-American Activities Committee, the predecessor to NCARL. He was eventually called to

testify before HUAC and refused to answer questions on First Amend ment grounds.

For that refusal, Wilkinson was sentenced to prison and appealed that ruling. In a landmark 5-4 ruling, the U.S. Supreme Court upheld the conviction. Wilkinson served a year's sentence.

We learned a critical lesson in this lawsuit and our mistake in judgment should be viewed as a lesson to oth ers. We should have acted sooner to safeguard our rights. We suffered an acute case of naivete and lack of reasonable diligence to guard our constitutional rights. We should have filed suit immediately upon re

ceiving the first FOIA documents, obscure as they appeared.

Without question, thousands of likeminded, socially concerned individuals and organizations who were under sim ilar political surveillance and disrup tion as were we, have st/7/ not availed themselves of the protective source of information under the FOIA.

Legal redress in cases involving

political surveillance and disruption

by federal law enforcement/intelli gence agencies is limited. In this case, even discovery of First Amendment violations has been minimal. Until Congress overturns President Reagan's Executive Order 12356 on National Security Infor

mation (a 1982 order that reversed a 30-year trend toward increased openness in government) and re

peals its own 1986 so-called Free dom of Information Reform Act, there will be little redress of griev ances sought in cases of this kind.

In the Reagan administration, less information has been made avail able to the public. Reagan's belief has been?when in doubt, classify it. Compare that with the Eisen hower administration, which re leased any document that was more than 20 years old. Even Nixon fol lowed Eisenhower's practice re

garding release of documents. As the lead plaintiff and initial ex

ecutive director of NCARL and its

predecessor, the National Commit tee to Abolish the House Commit tee on Un-American Activities, I believe that this lawsuit offers sev eral important lessons that may be of interest to all persons who have been, with or without their knowl edge, subject to similar violations of First Amendment rights by the FBI or other federal law enforcement agencies.

Although the FBI admits to having initiated its surveillance and subse quent disruption of my personal work in civil rights and liberties 46 years ago when I was 28 years of

age, and ultimately accumulated a

pile of documents which if placed one on top of another would rise to the height of a 7-story building, I did not know I had been under such surveillance nor can I recall seeing FBI agents in either official or un dercover capacities!

On the few occasions when I had received rumors of such activities, NCARL's records show that prompt and careful inquiry were to no avail. (NCARL and its predecessor files are stored in the Wisconsin State His torical Society Archives, and at all times have been open to the pub lic). On the other hand, the FBI's own

records reveal consistent and me ticulous efforts at concealment. Un der the Bureau's COINTELPRO (Counter Intelligence Program), FBI Director J. Edgar Hoover issued scores of memoranda to all agents following my cross-country speak ing tours in the 1960s, directing them "to expose, discredit, or dis rupt" our education/action efforts to abolish HUAC. Once learning my travel schedule, Hoover would write to the Special Agent in Charge (SAC) in each

city, as follows:

"Each office...should give careful consideration to possible counter

intelligence plans to disrupting ef forts of Wilkinson to carry out these speaking engagements." After

which he always

added a caution ary note regarding secrecy, saying: "Since Wilkinson's speaking en gagements are scheduled to be held on college campuses, the utmost discretion will be necessary to avoid any possible basis for allegations that the Bureau is interfering with aca demic freedom."

In one 11-page memorandum is sued by Hoover on September 18, 1967, he called for a review of the

counterintelligence program, stat

ing: "It is believed desirable for each office at this time to re-evaluate its operations under the Counterintel ligence Program and determine if the full potential of our disruptive techniques is being utilized."

Then after citing a series of suc cessful

disruptions in the preceding

years, including a cancellation of a

meeting where I was to speak at the Minneapolis Labor Temple and a TV interview in Cleveland with Mike

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Frank Wilkinson

Douglas where both NCARL's Dick Criley and I had been invited to

speak, Hoover closed with this se vere warning regarding secrecy and concealment: "Each SAC receiving this letter is instructed to have only those Agents assigned to the Coun terintelligence Program read this letter and after it has been thor

oughly read it should be personally destroyed by the SAC and the Bu reau advisea that it has been so de stroyed."

That injunction which might well have been taken from the script of TV's "Mission Impossible."

In 1976, the U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelli gence Activities, chaired by Sen. Frank Church, (D-ldaho), published an exhaustive report revealing that between 1965 and 1975 the FBI had opened 500,000 "headquarters files," covering over one million Americans. The General Account ing Office estimated only 1.25 per cent of those files contained information relating to proper law enforcement purposes. NCARL did not utilize the FOIA to ascertain if the Agency had included us

amongst its political targets.

It was only by accident that we obtained information that led to the initiation of this suit in March of 1980. We had known of three "po litical burglaries" of NCARL's na tional office in Los Angeles. There

were two break-ins during June of 1961, and another in August of 1969. We felt the break-ins were polit

ical because, although the office had been left in shambles, only mailing lists and a steel filing cabinet iden tified as "Correspondence" were removed. Valuables such as type

writers, postage stamps and petty cash had been untouched.

Our suspicions were confirmed when HUAC conducted a hearing in Los Angeles sometime after the break-ins and subpoenaed a com

munity leader for questioning based on information relating to a letter

purloined from the stolen files. We

believed that the robberies were the work of agents of HUAC, which we were then actively working to abol

ish.

When the Watergate scandal

broke, we noted with more than a little interest that G. Gordon Liddy and other "plumbers" were charged with burglarizing the office of Dan iel Ellsberg's psychiatrist in nearby Beverly HMIs. We wondered, "Could Liddy have hit Ellsberg one night and NCARL the next?"

With this possibility in mind, we wrote a letter of inquiry to Water gate Special Prosecutor Archibald Cox, who told us that his investiga tions had revealed no such evi dence. We still didn't believe that the timing of the two burglaries was coincidental. Cox contacted the FBI on our behalf, but in a meeting with us the FBI denied complicity in the burglaries of our office. Only then did we resort to the FOIA to learn whether the FBI had possibly been disrupting NCARL's work.

As the initial 4,500 pages of FBI documents trickled into NCARL's

Washington, D.C. office, it was still not clear to us exactly what the FBI had done. Wholesale redactions of pages and the clever use of coded memorandum numbers made it all but impossible for the lay person

to pass judgment. Obviously, some form of surveillance had taken place, primarily in the early 1960s. We appealed for more docu

ments, or to at least learn what had been redacted. In response, the FBI told us we should not expect any more information. All the initial documents were then shipped to my office in Los Angeles, where I personally conducted a three-day perusal. By the end of the third day, I drew the same uncertain judg

ment as to violated rights and pos sible remedies.

It was only after a final review by Richard Criley, NCARL's Northern California director, that we knew with certainty that NCARL had a

justifiable First Amendment case

against the FBI. Criley spent more than a month indexing the FBI in formation in chronological order, striving to read between the lines of redactions, and employing a detec tive's eye to catch concealed FBI

coding and methodology. The FBI gave each document a number and often referred only to the document

by number, not by content. Only by going over the massive amount of

(Please turn to page 53)

Over 46 years, the FBI file of documents would

equal the height of a seven-story building

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Like the American democratic process itself, the civil and human rights of black Americans have been secured through struggle. It is

through struggle that black Ameri

cans have helped move the nation closer to the true meaning and spirit of the Constitution. And it is through continuing struggle that we shall sustain the rights and protections

that the Constitution promises to all Americans.

This article is reprinted with per mission from Black Enterprise.

How I won my case against the FBI (from page 41) information and cross-checking documents to their numbers could be begin to understand what the FBI had. Criley was able to prepare a

preliminary report on the FBI's at tempts to disrupt NCARL's pro grams. His summary of the initial 4,500 documents revealed that the FBI had:

Disrupted or caused the can

celling or at least 46 NCARL meetings Manipulated the media by leaking information aimed at

discrediting NCARL to confi dential press sources favored by Hoover and his media liai son officer, Cartha DeLoach, such as: Fulton Lewis, Jr.; Jack Lotto; the American Legion's Firing Line; the Los Angeles Ex aminer's E.F. Tompkins; the Chicago Tribune's Walter Tro han; Paul Harvey, and scores of local newspapers and radio/ TV.

Sent poison pen letters and created several false letter heads to distribute derogatory information about NCARL. Interfered with legislative ac tions, and maintained a sub rosa relationship with HUAC in

Washington, D.C. to disrupt li aison between NCARL and anti-HUAC representatives. Conducted surveillance and

disrupted fund raising through clandestine relationships with various banks. The FBI moni tored checks received and

written by NCARL, noted de crease in meeting collections where disruptions had been carried out, started new sur veillance files on contributors to NCARL. Placed informers/agent provo cateurs within NCARL. Utilized illegal and intrusive

methods of surveillance against NCARL. Although redacted for concealment, evidence reveals extensive use of wiretaps. Doc uments from another lawsuit reveal that the burglary of NCARL's Midwest Regional Office on Jan. 13, 1966, was authorized by national office of the FBI (Assistant Director Sul livan) and the SAC in Chicago (Marlin W. Johnson).

With these facts in hand, what does a subsistence volunteer civil liberties association do? The pro spective costs of filing suit against the federal government were astro nomical and prohibitive. Fortu

nately, in Los Angeles we were able to turn to the powerful affiliate of the American Civil Liberties Union for pro bono assistance, and through ACLU to the large and highly re

spected law firm of Loeb and Loeb. In March of 1980, our lawsuit was filed in the Federal District Court. We had problems with

discovery. In addition to the approximately 4,500 documents we received un der the FOIA at the time the suit was filed, the government attorneys ad vised us that there were another 11,000 pages of documents which still needed to be processed before they could be turned over, yielding a total of approximately 15,000 pages for us to analyze.

In August 1981, 17 months after our lawsuit first began the govern ment notified the Court that 40,000 additional documents had been found and asked for a

three-year processing postponement. Subse quently the government "found" 70,000 additional documents, con

ceding that the total would approx imate 132,000. "The sheer enormity

of the volume of documents seems to indicate that the FBI has done more extensive damage to NCARL than we originally believed," was

the comment at the time by a co lead counsel, Paul Hoffman.

Compounding the discovery problem were delays in production. As late as June of 1984, the govern ment had produced only 7,500 documents above the initial filing count.

In the intervening time, President Reagan promulgated his Executive Order 12356, effective August 1, 1982, sharply curtailing information heretofore available under the FOIA. Prior to this, under President Carter's Executive Order 12065, the FBI documents which we had re ceived, though often severely re dacted, nevertheless provided us with basic information regarding both surveillance and disruption of our work. For example, the last batch we received processed under E.O. 12065 revealed the following:

The FBI's substantial interest in my discharge as Assistant to the Director of the Los Angeles Housing Authority during a controversy over integrated site selections for new public hous ing in 1952. J. Edgar Hoover's instructions to contact an unidentified source within the United States Su preme Court regarding ways to "expedite" my imprisonment during the appelate processes following my unsuccessful First Amendment challenge of HUAC. The FBI's close tracking to can cel or disrupt my speaking en

gagements following the Supreme Court's decision. The Bureau's monitoring my activities during my

term of im prisonment, including the "vol ume of mail thus far received"

by the companion case, Carl Braden, and me. Documents indicating the FBI's

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Why I won my case against the FBI

knew about and was contacted "to assist in an assassination at tempt" against me when I was

speaking before an ACLU meeting in Los Angeles in 1964, including date, time place, "stakeout" arrangements; but,

without taking action to warn me of the danger.

Thereafter, under Reagan's E.O. 12356, two thirds of the documents received were comletely censored, including dates, subject matter, au thors, recipients, routings, and even secretarial initials. The classification scheme embodied in E.O. 12356

was argued by the government as necessary to protect "national se

curity information...the national de fense or foreign relations of the United States."

Ironically at this time, the FBI turned over to us a September, 1974, memorandum recommend ing to itself that I be removed from their security index, stating

" it does

not appear that he has shown the willingness or capability of engaging in acts which would significantly in terfere with or be a threat to the sur vival and effective operation of our national government. NCARL...has for some time mainly devoted itself to speech-making by area represen tatives and the publishing of peri odic newsletters and pamphlets.

Wilkinson is not presently nor has he in the recent past been engaged in other materially pertinent, sub versive activities which can be con sidered a threat to our national security."

Our litigation challenge to the government's broad-based FOIA

exemptions has been long and te dious. Our problems were com

pounded in 1986 when Congress enacted the Freedom of Informa tion Reform Act as an amendment to new drug control legislation.

In April, 1986, the U.S. District Court for the Central District of Cal ifornia concluded that the FBI had failed to meet its burden of proving

why its assertion of various statutory exemptions under the FOIA was

justified. The Court gave the FBI one additional opportunity to prepare additional affidavits containing evi dence sufficient to meet the statu tory burdens. The FBI failed to do so, and the Court ordered in camera

inspection of a representative sam

pling of the thousands of pages re

leased to plaintiffs in redacted form. The results ofthat in camera inspec tion are currently the subject of a

pending appeal before the 9th Cir cuit Court of Appeals.

Though Judge Tashima initially rejected our claims that the so-called government's "state secrets privi lege" has no application to this case, the Court has yet to rule upon this privilege's applicability in the dis covery context to the specific doc uments withheld or redacted by the government.

Congress must enact legislation that will prevent the FBI and other federal criminal law enforcement agencies from undertaking investi gations that threaten the exercise of First Amendment rights.

On April 5, 1976, President Ger ald Ford authorized "Guidelines for Domestic Security Investigations" by the FBI, reflecting the national outrage which arose following the publication of the comprehensive Church Committee Report. Pur portedly aimed at reforming the FBI into a Federal Bureau of Criminal In vestigation, it specifically stated: "All investigations undertaken through these guidelines shall be designed and conducted so as not to limit the full exercise of rights protected by the Constitution and laws of the United States."

As drafted by Attorney General Edward Levi, preliminary investiga tions were to be limited, "pertinent to verifying or refuting allegations received." Intrusive techniques at this stage were forbidden. Even for full investigations, the guidelines

were relatively positive. They stat ed: "Full investigations must be au thorized by FBI Headauarters...on the basis of specific and articulable facts giving reason to believe that an individual or a group is or may be engaged in activities which involve the use of force or violence and

which involve or will involve the vi olation of federal law."

Further, the following factors were to be considered in determining

whether a full investigation should be undertaken: "...magnitude

...immediacy...and the danger to the privacy and free expression posed by a full investigation."

However, without the repeal of the so-called "speech crimes" of the 1940s and 1950s (including the Riot

Act, the Smith Act, Seditious Con

spiracy Act, Voorhis Anti-propagan da Act, Peace Time Military Sedition Act, and War Time Military Sedition Act), and with interpretations at the time given to the press that the new

guidelines would not interfere with the ongoing surveillance regarding such "crimes," civil liberties leaders protested the guidelines.

In the summer of 1976, NCARL's constitutional law authorities joined with others in ACLU to draft a leg islative charter. Those efforts result ed in the introduction of HR 6051 at the opening of the 95th Congress on April 5,1977. Although co-spon sored by 35 Representatives in 10 states, the legislative effort failed for lack of public support and a

prom ise of an "FBI Charter" by the in coming Carter Administration. With the inauguration of the Re

agan administration in 1981, Exec utive Orders expanding the Covert Operations authority of the CIA (in cluding heretofore forbidden work on U.S. soil (Dec. 2, 1981), and the FBI (in the form of William French Smith Guidelines (March 7, 1983)), were announced. The latter, in ef fect, returned the FBI to the most intrusive techniques of the old FBI under J. Edgar Hoover: wiretaps and informants beginning at the prelim inary stage of investigations. Ac cording to the judgment of Rep. Don Edwards, Chair of the House Judiciary Subcommittee on Civil & Constitutional Rights, "The rules permit the FBI to launch an inves tigation based solely on what a per son advocates."

Most distressing, the Smith guide lines established for the first time an artificial bifurcation of authority to the FBI to investigate not only vio lations of federal criminal statutes

(including the "speech crimes"), but into an area characterized as Do

mestic Security/Terrorism enter prises. In reviewing this section, NCARL's constitutional law advisor, Professor Thomas I. Emerson, de clared: "The impact of these provi sions falls entirely on the sensitive areas of political freedom where so cial change is nourished."

Recent disclosures of FBI abuses

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Frank Wilkinson

directed at opponents of our Cen tral America policy, "undesirable" foreign students, harassment of black voters in the South, provide ample evidence that, unless re versed quickly, we shall return to the First Amendment violations which have been revealed in NCARL's lawsuit.

The basic answer has now been formulated." On Jan. 1, 1988, a pe tition to the 101 st Congress (January, 1989) will be launched by NCARL's constitutional law advisors, calling for a legislative charter to end political surveillance and disruption by the law enforcement/intelligence agen cies of our government. The initiat

ing teachers of public law, Carole Goldberg-Ambrose (Associate Dean, UCLA Law School), Vern Country man (Royal Professor of Law Emeri tus, Harvard Law School) and Thom as I. Emerson (Lines Professor of Law Emeritus, Yale Law School) invite all to join in this fundamental educa tional and action effort.

Breaking New Ground (from page 14)

"The EHA requires all participat ing states (receiving federal funding) to provide education to all handi capped children, regardless of the severity of disability. To ensure pa rental participation in the educa tional process, Congress prohibited schools from changing the educa tional placement of the child over the parents' objections until review

proceedings were completed. The Court made pointed reference to the conspicuous absence from the act of "any emergency exception for

dangerous students." The Court upheld the lower court

decisions as representing a proper balance between the disabled stu dent's interest in receiving a free education in compliance with the EHA, as against the interest of the school officials in the maintenance of a "safe learning environment for all their students."

Rough water ahead for citizen pollution suits The Supreme Court ruled in a re cent case that the federal govern ment does not have jurisdiction to entertain citizen suits brought un der the Clean Water Act for past pollution violations.

The Clean Water Act forbids the

Contributors to Breaking New Ground from New York Law School Journal of Human Rights include Kevin O'Keefe, Penina Wollman, Steven Wislocki, Lena Sinha, Natalie Branchini, Gary L. Edelson, Deborah Gildener and Marsha Coopersmith. janet A. Di Giorgio is Managing Edi tor.

polluting of our national waters without a

permit?although the Na

tional Pollutant Discharge Elimina tion System allows the discharge of some pollutants into our waters by those who have been issued per mits. The U.S. Environmental Pro tection Agency (EPA) administers the program and issues the permits. The EPA may also allow the individual states to administer permits under approved programs.

The citizen suits provision of the act allows any citizen to "com mence a civil action on his own be half?against any person . .. who is

alleged to be in violation" of a water standard or in violation of a permit issued by the EPA or a state pro

gram. In Gwaltney of Smithfield v. Ches

apeake Bay Foundation, 56 U.S.L.W 4017 (U.S. Dec. 1, 1987), the com pany had been illegally polluting the Chesapeake Bay, from 1981 to 1984, by discharging pollutants in excess of the amount allowed by its permit. The respondents, Chesa peake Bay Foundation and National Resources Defense Council (NRDC), sent notice in February of 1984 to the company (Gwaltney) and to the governmental agencies that they intended to bring a civil suit for these violations. Gwaltney began to install pollution control equipment in 1982 and 1983. As a result of this new equipment, the last violation occurred in May of 1984. Despite the discontinuance of vio lations, the respondents brought their suit in June 1984.

The Supreme Court concluded that the citizen's suit provision of the act was present and future-looking only, that Congress intended the act to be used to stop present violators

and polluters of waterways. The Court pointed to examples

where Congress used language in other statutes allowing suits to be brought for past events. Since Con gress knows how to write statutes which allow civil actions for past acts, the Court concluded that Con gress clearly did not intend the Clean Water Act to be used as a tool to reach past polluters. Language in the act requires a current status, one in which the individual is currently

alleged to be in violation.

The Court remanded in Gwalt ney, however, because it was not clear whether the company was not

currently in violation. Simply be cause a polluter is not in violation at the moment of the suit, the Court said, does not make it immune from enforcement. Intermittent polluters are subject to civil actions brought under the act, just as the continuous polluter is. The purpose of the re mand was to determine if Gwaltney was deemed an intermittent viola tor, or whether it truly had brought itself into conformity with the pro visions of its permit. If the lower courts upon remand determine that Gwaltney is no longer a continuous violator, nor an intermittent one, then the Clean Water Act cannot be used as the basis of the respond ents' suit.

As a result of its decision in

Gwaltney, the

Supreme Court has

limited the role of citizens in bring ing suits against past polluters. The

Court has determined that Con gress intended that citizens

play an

active role in enforcing the act

against current polluters?but that state courts are the proper jurisdic tions for recovering damages as a result of past pollution.

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