The U.S. Courts and 1960s Terrorism

Weather Underground and Other 60s Radical Groups - History - Excerpt 3 from Law Review Book

Although the Department of Justice and the FBI were able to effectively disrupt a number of lethal Vietnam-era terrorist plots—a point frequently overlooked by commentators—their overall efforts against radical groups were closely scrutinized, heavily criticized, intensely challenged by investigative targets, and, in many cases, publicly censured by federal judges. The result was a series of legal reforms that are firmly institutionalized and are now a permanent part of our legal landscape. They make a return to the bad-old-days virtually impossible. This should be reassuring to all but those who are inclined to believe the worst about federal law-enforcement.

By reading the actual cases, one quickly sees the fallacy of today’s critics’ “historical” arguments. One should start with Socialist Workers Party v. Attorney General—a case that set the standard for what constitutes excessive governmental scrutiny of organized political activity, in which private citizens succeeded in collecting damages from the United States for overaggressive investigative techniques and excessive surveillance.20

The lawsuit started on July 18, 1973, when the Socialist Workers Party (SWP), its youth arm, the Young Socialist Alliance (YSA), and several individual members brought an action against the United States and certain individual U.S. officials.21

The plaintiffs, followers of the Trotskyist branch of Marxism, contended that they had been improperly viewed by various government agencies as threats to national security. They objected to the infiltration, disruption, and harassment that they had allegedly suffered over the past forty years, seeking declaratory and injunctive relief and damages. The original complaint was a class action, and included the Attorney General 20. Socialist Workers Party v. Attorney General, as a defendant. An amended complaint, filed in May 1976, included a claim against the United States under the Federal Tort Claims Act (FTCA).22

The bench trial lasted approximately seven weeks, from April 2 to June 25, 1981. The bulk of the evidence at the trial and the discussion in the briefs related to the plaintiffs’ allegations of wrongdoing by the FBI and the Department of Justice. The plaintiffs complained about four types of FBI activity—disruption, surreptitious entries or burglaries, use of informants, and electronic surveillance (telephone wiretaps and “bugs” in offices and dwellings). They also complained about two programs implemented by the Department of Justice and the FBI: the Security Index/Administrative Index (ADEX) program and the loyalty-security program for federal employees.

In connection with the second program, the SWP was included on the Attorney General's list (now terminated) as a so-called subversive organization.

In the end, the trial court found that the plaintiffs were entitled to an award of damages under the FTCA from the United States for the FBI’s disruption activities, surreptitious entries, and use of informants.23 The SWP was awarded damages in the amount of $42,500 relating to disruption activities, $96,500 for the surreptitious entries, and $125,000 for the use of informants, or a total of $264,000. The SWP’s damage claim for electronic surveillance was dismissed for failure to comply with the procedural requirements of the FTCA. The requests for declaratory and injunctive relief were denied because there was no present or threatened activity that warranted such a remedy.

A major factor in the court’s decision was whether the FBI and certain other agencies of the federal government could reasonably have believed at the time that the SWP presented a threat of revolutionary or subversive activity against the United States, thereby justifying certain investigative techniques and other measures.24 This required the court to undertake an analysis of SWP’s ideology and chosen means.

The court found that it would have been reasonable for the U.S. government to take the view that Lenin and Trotsky believed in the denial of democracy, and that they advocated totalitarian rule imposed by military force and terror.25 At trial, the SWP acknowledged that it was in favor of revolution, but simply as a means for transforming society, and that the revolution would come about through a historical process only after the capitalist system had exhausted itself.

According to the SWP, the revolution cannot be brought about by a putsch or coup, or the action of a minority, but only through broad mass action. The court found that the SWP believed in using the electoral process in this country to have the workers gain control of the government, and then amending the Constitution to carry out the nationalization of property required by their economic program. SWP claimed they were not interested in initiating violence, but that since the capitalist class would use violence to prevent the democratic process from running its course, the workers would then resort to armed force to defend themselves. This, according to the court, demonstrated that SWP has not deserted the theory and example of Lenin and Trotsky favoring ultimate violent revolution.

The SWP leaders testified that terrorism was totally contrary to the doctrine of their party, and that it distracted attention and efforts from the development of a mass movement. In 1972, for example, the SWP criticized the attack on Israeli athletes in Munich by “Black September,” a Palestinian terrorist group. The SWP, while sympathizing with the Palestinians, issued a statement that such terrorist tactics are “ineffective and in fact harmful to the Palestinian struggle.”26 In 1974, SWP leader Mary Alice Waters wrote a report denouncing the assassination of Spanish Prime Minister Carrero Blanco by terrorists.

These factors led the court to conclude that, while the SWP embraced violent revolution as an ultimate goal, it realized it had no power under current circumstances to carry it out; the fact that it ultimately desired a revolution did not mean that its ideology was antithetical to the political system of democratic processes of the United States. On the question of whether SWP practiced violence, the court concluded that it did not, citing the fact that the FBI had conducted an intensive investigation of the group for over thirty years and had not prosecuted a single SWP or YSA member for any terrorist act. Notably, the court contrasted this to the “numerous acts of violence and destruction in recent times in the United States, particularly during the late 1960s and early 1970s.”27

It is important to put the SWP ruling into perspective: an ostensibly non-violent group had been subject to government surveillance for some thirty-five years and, except for one early exception, the FBI had failed to turn up anything against them to suggest criminal activity.28 The court’s review of that long history of FBI surveillance showed that no FBI informant ever reported an instance of planned or actual espionage, violence, or terrorism by SWP or efforts to subvert the U.S. governmental structure.29 Over the course of approximately thirty years, there was no indication that any informant ever observed any violation of federal law or gave information leading to a single arrest for any federal law violation.30

Could this be said of Al Qaida, Hamas, Hizballah, or any of the other modern terrorist organizations whose U.S.-based representatives have been captured and charged by federal law enforcement over the last few years alone?31

If SWP is the benchmark, these more modern groups and their American sympathizers have a long way to go and much to demonstrate about their non-violent nature before they can successfully claim that the current scrutiny is unfair or unwarranted.

Moreover, unlike the situation giving rise to SWP, today’s counter-terrorism efforts are more transparent, in that they are focused on targets who are defined more clearly than people who believe violent revolution is inevitable and a good thing. The American counter-terrorism law enforcement program currently focuses on specific groups whose names have been published for all of the world to see. This is the Department of State list of “designated foreign terrorist organizations.”32

What is remarkable about SWP is the exacting analysis undertaken by the court regarding the nature of the aggrieved organization and the reasonableness of the government’s actions, in light of what it knew at the time. That type of analysis is not something many of today’s critics would likely welcome, if applied to those entities on which most of the Justice Department’s efforts are currently focused.

This is partly because, unlike the early days of the SWP investigation, the focus of today’s counter-terrorism efforts is clearly defined: it is those groups that have been designated by the Secretary of State—a list that is public.

There are additional lessons from other 1960s-era judicial opinions, falling into three categories that are hotly debated in the post-9/11 climate: electronic surveillance, investigative discretion, and the various tools of law-enforcement that fall within the category of “disruption.” There is also the broader lesson which should give comfort to people on both sides of the current debates: U.S. courts remain available to correct any true transgression by federal law-enforcement.

20. Socialist Workers Party v. Attorney General, 642 F. Supp. 1357 (S.D.N.Y. 1986).

21. See id. at 1362–75 (further discussing the facts of the case).

22. 28 U.S.C. §§ 1346(b), 2671–2680 (1949) (current version at 28 U.S.C. §§ 1346(b), 2671–2680 (2004)).

23. See Socialist Workers Party, 642 F. Supp. at 1364 (detailing the ruling that followed).

24. Id. at 1364.

25. See id. at 1364–75 (discussing the court’s findings about the SWP).

26. Id. at 1373.

27. Id. at 1375.

28. According to the court, the FBI’s investigation of the SWP started with a series of directives issued by President Roosevelt to J. Edgar Hoover in 1936. Id. at 1375. In 1941, eighteen SWP leaders were prosecuted under the Smith Act, 18 U.S.C. § 2385 (1948) (current version at 18 U.S.C. § 2385 (2004)), for advocating the overthrow of the United States. Dunne v. United States, 138 F.2d 137 (8th Cir. 1943), cert. denied, 320 U.S. 790 (1944).

29. Socialist Workers Party, 642 F. Supp. at 1380.

30. Id.

31. The true difference between SWP and these groups is shown by the fact that, since 9/11, the Department of Justice has charged over 100 individuals (in over 20 different judicial districts) with crimes directly related to assistance they provided to a number of terrorist groups, including al Qaida, Hamas, and Hizballah. Robert M. Chesney, Terrorism Prosecution Statistics, available at http://www.wfu.edu/~chesner/ NationalSecurityLaw/Prosecution%20Charts/TerrorismProsecutionStatistics.htm (last visited Dec. 3, 2004).

32. See 8 U.S.C. § 1189 (1952) (current version at 8 U.S.C. 1189 (2004). The full list and description of designated foreign terrorist organizations is contained in the annual State Department publication. DEP’T OF STATE, PATTERNS OF GLOBAL TERRORISM (2003), available at www.state.gov/s/ct/rls/pgtrpt/2003/c12108.htm (last visited Dec. 3, 2004).

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