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Mara Verheyden-Hilliard

Mara Verheyden-Hilliard is Executive Director of the Partnership for Civil Justice Fund

March 22nd, 2012 7:41 AM

PCJF, Michael Moore and NLG Obtain New DHS Documents: Critical Analysis Shows DHS Is Playing Three Card Monte

Documents Received from Department of Homeland Sercurity:

How Homeland Security Is Hiding the Feds' Role in Occupy Crackdown

A trove of documents released today by the Department of Homeland Security (DHS) in response to a FOIA request filed by the Partnership for Civil Justice Fund, filmmaker Michael Moore and the National Lawyers Guild Mass Defense Committee reveal that federal law enforcement agencies began their coordinated intelligence gathering and operations on the Occupy movement even before the first tent went up in Zuccotti Park on September 17, 2011.

On September 17, 2011, a Secret Service intelligence entry in its Prism Demonstrations Abstract file records the opening of the Occupy Wall Street (OWS) movement. The demonstration location that the Secret Service was protecting? The “Wall Street Bull.” The name of the Protectee? The “U.S. Government.”

American taxpayers might find it odd to learn that the Secret Service was on duty to protect the Wall Street Bull in the name of protecting the U.S. Government. But there it is.

The DHS’s Game of Three Card Monte to Deflect Disclosure of Law Enforement Operations

These documents, many of which are redacted, show that the highest officials in the Department of Homeland Security were preoccupied with the Occupy movement and have gone out of their way to project the appearance of an absence of federal involvement in the monitoring of and crackdown on Occupy.

On the street it would be called “Three Card Monte,” a swindler’s game to hide the ball -- a game of misdirection. The House always wins.

The DHS, as revealed in the newly released documents, has engaged in what appears to be a effort to avoid looking for Occupy related materials where it is likely to be found, including in

Fusion Centers and DHS sub-divisions such as the

Operations Coordination & Planning sub-division which is responsible for DHS coordination with local and federal law enforcement partners.

On November 16, DHS Press Secretary Matthew Chandler transmitted an e-mail to top ranking DHS officials, including the Chief of Staff to Janet Napolitano, the Chief of Staff to the DHS General Counsel, among others, in which he reports:

“We’re getting inquiries from CBS, AP, Daily Caller and others on an un-sourced piece that says that DHS and FBI are collaborating with cities by providing tactics and information on removing Occupy protestors. A check of I & A [Intelligence and Analysis] and FPS [Federal Protective Services] shows that this type of outreach is not occurring in any wholesale manner.”

The Press Secretary is careful to couch the official statement, that such is not occurring in any “wholesale” manner, leaving the door open to possible future revelations of such conduct.

But this official statement was based solely on a mid-November inquiry to two DHS sub-sections: Intelligence and Analysis (I&A) and Federal Protective Services (FPS). And

by the date of that statement, Federal Protective Services and apparently also the I&A Directorate had already purged, “restricted and/or rescinded,” any Occupy related intelligence products, as discussed further here.

In other words, having looked into only two drawers - - which had already “restricted and/or rescinded” all Occupy related intelligence products - - it is not surprising that Press Secretary Chandler’s statement that no “wholesale’ coordination of Occupy related actions is based on incomplete information.

The Press Secretary, following the script, conveniently avoided other likely DHS repositories and departmental components, including the personnel deployed to Fusion Centers or to the DHS Operations Coordination & Planning sub-division, which according to the DHS web site is “responsible for monitoring the security of the United States on a daily basis and coordinating activities within the Department and with governors, Homeland Security Advisors, law enforcement partners, and critical infrastructure operators in all 50 states and more than 50 major urban areas nationwide.”

DHS Monitoring, Megacenters and Misdirection

Before the first OWS action took place, the DHS Office Intelligence and Analysis (I&A) produced a series of NCCIC (National Cybersecurity and Communications Integration Center) alerts about the coming OWS demonstrations. When this was picked up by the media and it generated inquiry and press, the DHS learned its lesson: Misdirection.

In an email exchange dated September 29, 2011, DHS officials discuss the NCCIC alert and the fact that they will now need to respond to media inquiries about DHS monitoring and involvement in the response to the Occupy movement. The substantive discussion about how to handle the media is redacted, with one participant writing, “Here it is. That answer works-“ and the rest is redacted.

An October 5, 2011 document reflects that the DHS Philadelphia Megacenter was monitoring the OWS demonstration in New York, titled “Demonstration-Peaceful/Planned”, and reporting on assembly and movements “peacefully protesting union solidarity issues.”

An October 30, 2011 document shows DHS’ Battle Creek Megacenter also reporting that a “peaceful/unplanned” “Occupy Wall Street demonstration is taking place in Ilus W. Davis Park in Kansas City, MO.”

These documents appear to be the tip of the iceberg, carefully submerged by the DHS. While there is policy discussion as to the propriety of a threat assessment regarding Occupy Pittsburgh, other emails reference additional internal inquiries about OWS that were withheld from public disclosure in response to this FOIA request.

The Fusion Centers

Moreover, the DHS documents evidence the misdirection to avoid civil liberties issues by handing off OWS monitoring to DHS’s project of Fusion Centers and then failing to make inquiry for information to the Fusion Centers or DHS personnel deployed to them, even though documents indicate that

a push-down of Occupy related information into the massive fusion center clearinghouses was already in play.

By November 16, when the PCJF filed this FOIA request, and when the media was contacting DHS regarding its role in the Occupy crackdown one I&A analyst, following such guidance, reported that I&A “scrupulously avoided any connection with the Occupy movement/protests/dismantlings.

We cannot speak for any individual fusion center or other departmental component...”

On October 17, 2011, the DHS Intelligence Coordination Branch wrote in an email titled “Guidance Requested: Occupy Wall Street” that in response to requests for OWS information, “we have recommended…that our intelligence Officers refer inquiries [i.e., requests for intelligence information] to Fusion Centers and avoid the topic altogether. That being said, given the number of requests that have appeared, we would like to equip the field with formal guidance…”

DHS Guidelines on How To Justify Intelligence Gathering on Free Speech Activities

The DHS then undertakes to draft policy guidance on OWS. Within days, however, the DHS concludes that formal policy guidelines are not going to go into effect. Instead, on October 24, 2011, a redacted email chain includes the recommendation that policy guidance changes have sought “to

take out language that indicates our guidelines are mandatory. For instance replace ‘personnel must’ with ‘personnel should’. I also recommend that we advice only the DHS people and remain silent on whether they should pass along our input to the Pittsburgh folks.”

On October 28, 2011, further exchanges on the guidance draft discuss making the recommendations less specific, and that they should focus on the

“congruence concept.” The “congruence concept” is the creation of a supposedly criminal pretext for investigation into First Amendment activities. It is so loosely applied that any unsupported, unsourced tip -- or agent provocateur statement on a website -- can create the basis for monitoring and investigation.

When the final guidance is produced, it has no mandatory language and states: “If you ever feel you are in put in a situation where first amendment rights could be potentially violated, please refer to the below guidance, which was created after we received a number of questions from around the nation in reaction to the Occupy protests.”

The guidance then explains

how to “justify research into and creation of a product containing First Amendment protected activity…” including the “congruence concept.”

Subsequent discussion on October 31, 2011 regarding how and when DHS can “clear on any [intelligence] product on OWS” is significantly redacted as is the author.

Purging of DHS Files and the Carefully Constructed Media Response

A November 1, 2011 email reflects that following the internal guidance issued to I&A, all Occupy related materials had been “restricted and/or rescinded” including specifically by FPS. The email, from an FPS official, reports that:

“FPS was notified of the guidance to the I&A representatives to restrict production of all Occupy products absent criminal activity and/or life safety issues, FPS has followed this guidance and

restricted and/or rescinded all products (both internal and pass-through).”

By November 16, when the media was barraging the DHS with inquiries about its role in the Occupy crackdown, the responses to media were carefully crafted. “We’re getting inquiries from [various media] on an un-sourced piece that says DHS and FBI are collaborating with cities by providing tactics and information on removing Occupy protestors. A check of I&A and FPS shows that this type of outreach is not occurring in any wholesale manner.”

As we now know, checking with I&A and FPS by November 16 was not likely to lead to responsive information given that the DHS activity was being carried out by other components and that a purge, restriction and/or rescission of intelligence “products” had taken place.

At this point the DHS provided a prepared statement, given over and over to the press, which includes a quotable paragraph and then “background” points.

Documents show that in the drafting of that paragraph, which is disseminated repeatedly to the press, and shows up in numerous press reports from the time,

there is a second paragraph that is removed and appears not to be given to the press. That sentence read: “We have held standard coordination calls and face-to-face meetings with our partners to ensure that the proper resources are available for operations such as street closures, etc,”

Showing the deficiency of response to the FOIA demands, there are no records produced that reflect those “standard coordination calls” and “face-to-face meetings.”

Evading a Complete FOIA Records Search

In addition to these efforts to misdirect the press and the public, the other tactic the DHS has used to stave off inquiry into DHS involvement is to evade a responsive search to this and other FOIA requests. As we stated previously, we had been told by the DHS that other media requestors agreed to narrow their FOIA requests to consist only of materials in the possession of select senior staff. We have not so agreed, and will be pursuing further disclosure of information from the DHS.

Highly conscious of the demand for public disclosure of DHS actions, one official wrote in November of their considered response to FOIA requests and urged the department to release their policy guidance regarding First Amendment activities. He wrote, “I understand we have already received some FOIA requests regarding our possible reporting of the “Occupy…” protests. I think should the FOIA experts find it appropriate to release information about the manner in which this issue was managed with DHS, it could only be perceived as a positive by those in the public who closely observer [sic] the Department.”

So for those of you who wish to “closely observe” the Departments responses, the PCJF is making the documents available in a searchable format. We will also be disclosing and uploading more materials obtained from our national campaign of federal and local FOIA demands as they become available.

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