Senator Barbara Boxer
1130 O Street, Suite 2450
Fresno, CA 93721

April 21, 2004

Re: Undercover Surveillance of Peace Fresno

Dear Senator Boxer,

For the first six months of 2003, Aaron Kilner, a member of the Fresno County Sheriff's Department's Anti-Terrorism unit infiltrated and conducted undercover surveillance of Peace Fresno, a community organization based in Fresno California. Since then, Peace Fresno has sought information from the Fresno County Sheriff, the Federal Department of Justice, and the FBI about why this surveillance occurred and what information was gathered. We have not received a complete accounting from any source. We are therefore writing on behalf of Peace Fresno to ask for your assistance in resolving how and why this infiltration occurred and in developing policy to prevent this from occurring in the future.

Activities of the Fresno County Sheriff's Department

Peace Fresno is a community organization of largely Fresno residents who advocate for nonviolence, peace, and social justice. In 2003, the organization met weekly at the Fresno Center for Nonviolence in the evenings. While the organization's meetings were open to new and unknown persons, members of Peace Fresno expected those who attended to identify themselves truthfully and join in the spirit of collaboration to bring about progressive social change, including but not limited to the end of the United State's war against and occupation of Iraq.

In January 2003, a man identifying himself as Aaron Stokes started attending Peace Fresno meetings and events. When members of Peace Fresno asked what kind of work he did, he claimed to not be working because he had received a small inheritance. He distributed flyers for peace Fresno, participated in street protests, and joined members of Peace Fresno on a bus trip to Sacramento on June 23, 2003 to protest the corporate globalization of agriculture. He also took notes during Peace Fresno meetings.

On August 31 and September 3, 2003, the Fresno Bee ran news stories about the death of a member of the Fresno County Sheriff's Department named Aaron Kilner. The Bee ran a picture of Mr. Kilner, and members of Peace Fresno immediately recognized that Aaron Kilner was the same person as Aaron Stokes who had been attending their meetings for the past six months. In fact, Aaron Stokes was a false name that had been provided by Mr. Kilner during the course of his undercover surveillance.

Possibility of Federal Involvement

While Aaron Kilner worked directly for the Fresno County Sheriff Department, we are concerned that there may have been federal involvement as well. In recent years - but especially since September 11, 2001 - there has been a major push by the federal government to create Joint Terrorism Task Forces (JTTFs) to coordinate and expand intelligence-gathering practices. JTTFs are made up of state, local, and federal officers and are coordinated by the FBI. The Fresno County Sheriff Department is a member of the Fresno JTTF and was a member of the JTTF during much of the time that Peace Fresno was infiltrated.

The concern about federal involvement is highlighted by the lax federal guidelines covering intelligence gathering and surveillance of political, community, and religious activity. Two years ago without congressional hearings or input - much less approval - or any public debate, Attorney General Ashcroft eliminated or significantly loosened a number of key provisions in the guidelines controlling FBI intelligence practices. Most chillingly, the guidelines now encourage a "fishing expedition" approach to intelligence gathering by permitting near standardless monitoring of political, community, and religious activities - without requiring any particular belief or suspicion that evidence related to terrorism or crime generally might be obtained. The federal government is now claiming the right to send agents to religious services, political rallies and organizing meetings open to the public to monitor who says what and to see who is associating with whom.

These "guidelines" apparently provide the basis for Fresno County Sheriff intelligence gathering as well. In a September 30, 2003 letter justifying the Department's intelligence gathering practices, Sheriff Richard Pierce essentially quotes the FBI guidelines verbatim writing, "for the purpose of detecting or preventing terrorist activities, the Fresno County Sheriff's Department may visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally."[1]

The prospect of federally sponsored surveillance of political, community, and religious organizations is especially disturbing in light of the long history of the FBI infiltrating and disrupting groups that disagree with administration policy. While it is unclear the extent, if any, of FBI involvement in the infiltration of Peace Fresno, the Sheriff Department's membership on the JTTF, the fact that Aaron Kilner was a detective with the Sheriff's Anti-Terrorism Unit, and the incorporation of the FBI guidelines into Sheriff Pierce's letter raise the possibility that the FBI was in some way involved.

Efforts to Obtain Information

Since the infiltration of Peace Fresno was discovered, Peace Fresno members have consistently sought out information about why their organization was monitored. Attorney Catherine Campbell and the ACLU of Northern California have made repeated requests on behalf of Peace Fresno to the Fresno County Sheriff's Department for information related to the infiltration and we have yet to receive a full accounting and explanation of what happened.

We have also filed a Freedom of Information Act ("FOIA") request with the FBI and the Federal Department of Justice asking for information relating to the infiltration as well as more general information about the relationship between the FBI and the Fresno County Sheriff Department, procedures for determining whether a group or individual is to become a target for infiltration, and for monitoring and surveillance of political, community, and religious organizations in California.[2]

While the FBI responded that "the automated indices [of] the central records system files at FBI Headquarters and the Sacramento Field Office" contain "no records responsive to [our] FOIA requests," we know this is not the case as we have copies of at least some responsive records that we have obtained from independent sources. For example, we requested "any memoranda of understanding (MOU) between the FBI and the County of Fresno...relating to the formation of a Joint Terrorism Task Force." While the FBI claims that no such records exist, we have a copy of the MOU from the Fresno County Sheriff Department. While we are unsure the extent to which the FBI has records on Peace Fresno, their inadequate response to our FOIA certainly raises serious questions as to whether their claim to have no records is accurate or not.

Regardless of the particulars of the FOIA request, Peace Fresno members are still left wondering why they were the targets of a six-month investigation, whether some law enforcement agency has records (including Aaron Kilner's notes) on Peace Fresno and its individual members, who authorized the surveillance, and if their organization is still being monitored by law enforcement.

Steps to Protect Privacy Rights

 In light of the substantial violation of Peace Fresno members' privacy rights and the failure of the Fresno County Sheriff and FBI to adequately account for what happened, we ask that you take the following action:

1. Write to FBI Director Mueller Requesting a Full Accounting of the FBI's Involvement in the Surveillance of Peace Fresno and of Political, Community, and Religious Organizations in General. Specifically, we request that you ask Director Mueller the following questions:

(1) Was the FBI involved in any way in the infiltration of Peace Fresno?

(2) Did the FBI have any knowledge of the infiltration of Peace Fresno when it was occurring?

(3) Did the FBI receive any information from the Fresno County Sheriff Department or any of its members regarding Peace Fresno or any of its members?

(4) Does the FBI claim the right to send undercover agents to peace and social justice meetings in the absence of any suspicion of a crime?

(5) Of all the religious services and public meetings that occur every day in California and throughout the country, how do FBI agents decide which ones to attend, without using politics or ideology as a guide?

(6) Please describe what an FBI agent visiting a meeting could do under the U.S. Attorney General's Guidelines.[3] Could he or she wear a tape recording device?

(7) According to the U.S. Attorney General Guidelines, information obtained from surveillance of public meetings must be related to potential criminal or terrorist activity: who decides whether or not the information is related to any potential criminal or terrorist activity? How will the decision be made? What kind of information will be gathered? In the event it is decided the information is not related to potential criminal or terrorist activity, what becomes of the agents' notes?

(8) Have other JTTFs in California been involved in the surveillance of peace and social justice organizations - if so, please provide details of these activities;

(9) What oversight does the Justice Department or the FBI conduct over the members of the JTTF?

(10) Does the Justice Department or the FBI direct members of the JTTF to infiltrate particular groups? Does it  "suggest" infiltration of particular groups or types of groups?

(11) What is the FBI doing and what will the FBI commit to doing to prevent state, local, and federal agents on JTTFs from monitoring political, community, and religious organizations in the absence of reasonable suspicion of a crime;

2. Publicly Release Your Letter to Director Mueller and Any Response You Receive. The undercover infiltration of Peace Fresno - and the FBI's overall use of its enhanced surveillance powers - is an issue of public concern. Members of Peace Fresno and the public in general are left wondering why Peace Fresno was infiltrated and if similar operations are ongoing elsewhere. It is therefore vital that any information about how and why Peace Fresno was investigated as well as information on the FBI's practices regarding surveillance be made public.

 The infiltration and surveillance of Peace Fresno and other organizations like it are inconsistent with the democratic values of a free society and have a chilling effect on speech and expression. When such activity occurs, it must be fully examined with the details of the law enforcement activity aired in public.

 Please let us know if you have any questions or if we can be of any further assistance. We look forward to hearing from you and can be reached at 415-621-2493. Thank you for your investigation into this matter.

     Sincerely,

     Mark Schlosberg
     Police Practices Policy Director
     ACLU of Northern California

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Notes:
1 The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (2002) state: "For the purpose of detecting or preventing terrorist activities, the FBI is authorized to visit any place and attend any event that is open to the public, on the same terms and conditions as members of the public generally."
2 Complete FOIA request and response are attached.
3 The Attorney General Guidelines on General Crimes, Racketeering Enterprise, And Terrorism Enterprise Investigations (2002).