The FBI is infiltrating protests. Congress wants to sic it on students.
Members of Congress from both parties have called on the FBI to investigate students protesting U.S. support for Israel in the war in Gaza on college campuses across the country, alleging without evidence that they support Hamas terrorism or may be funded by Russia.
In a recent interview, FBI Director Christopher Wray said that while the bureau provides threat intelligence to campus leaders and local police, “we don’t monitor protests.”
Wray’s denial is misleading at best. FBI guidelines authorize agents to deploy a host of intrusive tactics to investigate individuals and organizations well before any evidence indicating a potential crime or threat exists. And recently revealed interviews of FBI field supervisors show they have used these tools to spy on protesters, with dangerous results.
Rather than encouraging the FBI to deploy similar methods against students, Congress has a responsibility to investigate how agents use their current authorities and whether the bureau’s guidelines should permit such practices.
Information about the FBI’s anti-protest tactics emerged when two FBI field supervisors provided depositions in a lawsuit concerning the 2016 Standing Rock anti-pipeline protests. The depositions provide a rare glimpse into the methods and attitudes of FBI agents responsible for applying bureau policies in the field.
The Standing Rock Sioux tribe opposed the Dakota Access Pipeline project because tribe members believed it threatened the reservation’s water resources and sacred lands. These protesters were often met with violent force from private security contractors and militarized state and local police.
The deposed FBI supervisors said their role in the ad hoc task force of federal, state and local law enforcement agencies responding to the protests was primarily to provide intelligence. The depositions provide some evidence suggesting internal oversight mechanisms can prevent unwarranted monitoring of protesters.
Around November 2016, for example, the field supervisors sought FBI headquarters’ approval to deploy a bureau drone to monitor the protesters as they moved from an encampment to protest sites. FBI officials in Washington, D.C. denied the request on First Amendment grounds, as there was not an open investigation to justify drone monitoring at the time.
However, even as FBI headquarters denied the use of drones to spy on the protesters from the sky, agents were monitoring them through other, potentially more intrusive means. Local FBI agents had deployed as many as 10 informants into the camps from as early as August 2016, per the deposition. Agents dressed in plain clothes regularly walked through the camps and chatted with protesters without revealing their identities.
It might seem hard to fathom how recording protesters from a drone could be a First Amendment violation while placing informants and unidentified government agents into their camps to befriend them and then betray their confidence is not. But FBI regulations allow this outcome.
The FBI does not have a legislative charter circumscribing its investigative authorities; instead, it is governed by guidelines issued by the attorney general. These guidelines, initially issued in 1976 to stem abuses that targeted civil rights advocates and anti-Vietnam war protesters in the 1960s, were loosened after the 9/11 attacks and then even more significantly in 2008.
The current guidelines authorize “assessments,” which require no factual basis to suspect criminal activity before deploying intrusive investigative techniques, including recruiting and tasking informants, searching online public records (including social media posts) and conducting physical surveillance. While some FBI policies requiring greater oversight of the use of informants during assessments and investigations might infringe on First Amendment rights, internal audits and inspector general reviews have found these rules are often ignored in practice.
Employing informants is a fraught and dangerous business even when law enforcement uses them to gather evidence about violent organized crime groups, as the Whitey Bulger scandal, among many others, amply demonstrates. Bulger led South Boston’s Winter Hill Gang, committing murders and extortion while serving as an FBI informant.
When law enforcement uses informants to infiltrate protest groups through fraud and deception, it does even more damage, undermining government legitimacy and tainting democratic processes. Yet, the FBI has a long history of using these tactics to suppress protest movements, particularly when they are led by people of color. Rather than suppress crime, informants often stir conflict and instigate violence.
The deposed supervisors claimed the Standing Rock informants were tasked only with providing information about criminal acts, rather than constitutionally protected activity.
One supervisor, however, indicated the informants provided identifying information regarding individuals in the camps, the structures and facilities at the camp and potential action plans. Tellingly, he said the informants never saw weapons, and that many of the crimes they alleged couldn’t be proven. The other supervisor noted that the informants reported weapons stockpiles, but, upon investigation, these reports were not credible.
False or sensationalized informant reporting is common because they don’t get rewarded if they don’t report threats. The sensationalized informant reports then justify more aggressive policing tactics, which may help explain the violent police responses to predominantly non-violent protests.
The FBI did open a handful of criminal investigations, including arson investigations after protesters lit barricades on fire. But the most serious criminal case the FBI pursued against a Standing Rock protester highlighted the dangers of inserting informants into protest movements.
Indigenous activist Red Fawn Fallis was charged with firing a revolver hidden in her pocket after being tackled by law enforcement officers as they swept one of the protest camps. The weapon was brought into the camp by a man who had become her romantic partner during the protests. He was serving as one of the FBI’s informants at the time.
The Standing Rock revelations reveal how the FBI’s unchecked use of informants can put protesters, police officers and public trust in government institutions at risk.
Rather than encouraging FBI spying operations targeting Americans without evidence of wrongdoing, congressional overseers should question how it is acquiring the intelligence it shares with campus administrators and local police, and whether these law enforcement methods protect our democracy, or threaten it.
Mike German is a fellow with the Brennan Center for Justice’s Liberty and National Security Program.