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9. Criminalization of Dissent in the United States, ICCPR Coalition Report

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Criminalization of Dissent in the United States:
A Shadow Report on the United States’ Obligations under Articles
19 and 21 of the ICCPR

A Report by the
National Lawyers Guild
and International Association of Democratic Lawyers
Prepared by Merrilyn Onisko
with pleadings from NLG Mass Defense Committee and Partnership for Civil Justice

for the Human Rights Committee
in its review of the United States of America under
the International Covenant on Civil and Political Rights
May 2006

Article 19 of the International Covenant on Civil and Political Rights states:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order
(ordre public), or of public health or morals.
Article 21 of the International Covenant on Civil and Political Rights states:
“The right of peaceful assembly shall be recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity with the law
and which are necessary in a democratic society in the interests of national security or
public safety, public order (ordre public), the protection of public health or morals or the
protection of the rights and freedoms of others.”
The right to assembly and expression are protected under Articles19, 21, and are to be
read broadly. In contravention of those directives, the United States and other local "law
enforcement" agencies which, acting jointly, have participated in illegal tactics to disrupt lawful
protest and assembly and unlawfully use mass arrests as a means to sweep political activists off
the street and as a tool for mass intelligence gathering operations. Tactics used in these sweeps
include collecting fingerprints, identity information, photographs, and information on political
associations for all those who are rounded up, which is then placed in the F.B.I.'s files. Such
methods employed by the United States on those who lawfully assemble to express their political
opinion clearly violate the Covenant’s protections of freedom of speech and assembly.
According to a Nov. 23, 2003, New York Times report citing a confidential bureau
memorandum and several interviews, the FBI has been collecting information on the tactics,
training and organization of anti-war demonstrators who have done nothing illegal.1 Faced with
growing opposition to the war and occupation of Iraq, the Bush administration has apparently

See Eric Lichtblau, “FBI Scrutinizes Anti-War Rallies,” New York Times, November 23, 2003.


targeted its political enemies by unleashing the FBI. The memo was circulated to law
enforcement agencies on Oct. 15, 2003 ahead of antiwar demonstrations in Washington and San
Francisco. It reportedly detailed how protestors have sometimes used "training camps" to
rehearse, used the Internet to raise funds, and employed gas masks to defend against police tear
gas, according to the report. Peaceful political demonstrators in the United States have been
profiled by government agencies based on their political or ideological viewpoints; organizations
to which they belong are being infiltrated by local and federal law enforcement; and they are
being illegally detained, arrested and sometimes beaten based on their participating in politically
expressive activity and/or peaceable assembly.
This chilling criminalization of the right to assembly by the United States, and its lack of
adherence to its obligations under Article 19, and 21 ICCPR can be seen in three instances in the
past five years at which peaceful protesters have been illegally arrested and interrogated by local
and federal agents based on their political opinions: the January 2001 Inaugural protests in
Washington D.C., the April 2002 anti-war protests also in Washington, D.C. and the anti-Free
Trade Association of the Americas (FTAA) protests held in Miami, Florida in November 2003.
In these three cases, all currently being litigated by the Partnership for Civil Justice and
the National Lawyers Guild, local law enforcement has acted in conjunction with the federal
government to stifle the right of people to assemble to convey their political opinions and rights
of expression under the ICCPR.
This criminalization and stifling of political expression violates Articles 19 and 21 of the
International Covenant on Civil and Political Rights. Because of repeated incidents of such
violations by the United States, the Human Rights Committee must hold the US accountable and
require it to adhere to its obligations under international law, specifically Articles 19 and 21 of
the ICCPR.

The following examples illustrate that it is imperative for the Committee to hold the
United States accountable for its lack of adherence to the Treaty.


International Action Center v United States of America
The protests and consequent litigation surrounding the first inauguration of George W.
Bush first exposed the use of the FBI's Joint Terrorism Task Forces against political dissenters,
and revealed that the District of Columbia police department has been carrying out an illegal
ongoing domestic spying operation in which officers are sent on long-term assignments to pose
as political activists. Through difficult discovery litigation significant information has been
obtained regarding the illegal conduct of local and federal law enforcement against persons
engaging in political assembly and expressive activity which violates not only the First
Amendment but Articles 19 and 21 of the ICCPR.3
Facts of the Case:
On January 20, 2001, tens of thousands of people converged on Washington, D.C. to
demonstrate against the policies of George W. Bush. At a primary entry and check point to the
Parade route and the location finally given by permit to protestors, the private Bush-Cheney
Presidential Inaugural Committee working jointly with the D.C. Police and federal law
enforcement officers prevented activists from entering, creating a highly provocative situation, in
order to stop activists from being along the route of the Presidential motorcade. At another
location along the parade route, government agents provocateurs carried out felonious assaults,
beating and pepper spraying peaceful protesters in order to disrupt their demonstration and
assembly activities. Elsewhere, hundreds of protesters who were marching to get to the parade
route were surrounded on all sides trapped, and detained and falsely imprisoned by law
enforcement officers with violence and force.4
The Inaugural demonstrations and illegal law enforcement activity surrounding them
revealed systematized mechanisms of government disruption of free speech and assembly to
criminalize dissent, including the tactics, deployment, and use of Civil Disturbance Units by the

This section is an abridgment of a PCJ publication available at
See IAC et al., v. USA, U.S. Dist. for Dist. of Columbia, 01-CV-0072 for more details on this case.



D.C. Metropolitan Police Department acting in conjunction with federal law enforcement
authorities, against peaceful protesters.5 The tactics include the unconstitutional use of police
lines to surround activists and detain and arrest them against their will, and the unconstitutional
use of plain clothes or undercover intelligence agents to disrupt lawful protest, including the use
of violent agents provocateurs as part of "intelligence" operations at the Bush Inauguration.
Misconduct on the part of the government became apparent when it refused to provide
demonstrators access to space along the parade route and was reserving to itself the unfettered
discretion to obstruct, delay and prevent demonstrators from approaching the parade route
through the use of a maze of checkpoints which made assembly and access to the desired area of
protest extremely difficult if not impossible.
Judge Gladys Kessler, U.S. District Court for the District of Columbia, referring to the
checkpoints as "odious" and connoting "a presence which is totally inconsistent with our way of
life" required that the Government conform its conduct to the requirements of the First and
Fourth Amendments of the U.S. Constitution.6 Judge Kessler did not, however, prevent the
government from using the checkpoints. On the day of the Inauguration, despite the
representations made to the Court to the contrary, local and federal police agencies, also acting in
concert and joint action with the private Bush/Cheney Presidential Inaugural Committee, carried
out widespread violations of the free speech rights of people who came to express their
viewpoint in opposition to the incoming administration. It has been discovered through litigation
that in advance of the Inauguration, the DC Police Department infiltrated organizers’ meetings,
including at home, deploying police to pose as long-term members of political groups. The
infiltrators not only reported on the organizing activities and meetings of lawful political
assembly, but also proposed that illegal conduct be carried-out by the activists.7
That the US government would work in conjunction with local law enforcement to
physically prevent protesters from voicing their political opinion and assembling peacefully
along the parade route to express their discontent itself violates the spirit of the ICCPR and
specifically Articles 19 and 21 relating to freedom of expression and assembly. But that the




government admits to infiltrating political organizations when there is no indication that groups
or individuals were planning any unlawful activity, is a frightening example of the extent to
which the US has attempted to chill and stifle political expression and assembly.

Barham et al, v. District of Columbia et al.
"I don't know why we have to wait until after they've inflicted damage."9 Capitol Police Chief
Terrance W. Gainer indicating a willingness to arrest peaceful protesters in the absence of probable cause.

Another example of recent violations of ICCPR rights are the political activists, legal
observers and passers-by who were subjected to arrest and detention on the morning of
September 27, 2002 in advance of several days of planned protests against corporate
globalization and war in Iraq.10
The mass arrests were also used for a mass intelligence gathering operation by the F.B.I.
on lawful political activity. Using the false arrests, confinement and compulsion of identification
information including fingerprints and photographs, the D.C. police allowed the F.B.I. to collect
intelligence and identification information on the political activists and persons associating with
or in the proximity of the demonstrations.
The plaintiffs bringing this action include protestors, National Lawyers Guild legal
observers, and passers-by, including nurses attending a nearby conference, the Executive
Director of Greenpeace, a professor, and bicyclists, all of whom were suddenly surrounded by
pop-up police lines of armor-clad riot police brandishing clubs who would not let plaintiffs
leave. Plaintiffs were rounded-up, taken away on busses, shackled and hogtied right-wrist to leftankle and detained for up to 30 hours, many being released on the streets outside of the Blue
Plains police training center in the middle of the night with no knowledge of where they were
and no access to transportation.11
Those who are forcibly arrested and deprived of their liberty suffer great fear, harm, and


This section is an abridgment of a PCJ publication available at and is based on the case
Barham et al. v. District of Columbia , et al. (2002) , See "Third Amended Complaint", (29 July 2005)


personal injury. The stigma of having been arrested carries on beyond the immediate
personal and physical consequences of the deprivation of liberty. The collection and
dissemination of personal information and political associations effects an invasion and
loss of privacy, as well as a profound loss of ICCPR rights of expression and assembly to be
protected when engaging in or associating with First Amendment protected activity.
Furthermore, these round-ups and mass arrests of political activists are anathema to democracy.
These challenged police actions create a substantial chilling effect and deterrent to the future
exercise of one's political rights now carries with it the risk of arrest, of being wrongfully subject
to the criminal process of the state, of being threatened with physical harm by the police, being
bound with handcuffs, having one's identification and political activities be collected and
recorded - - for no reason other than having political associations that have been targeted by the
federal government or by the local chief of police or mayor.12
The actions of federal and local law enforcement surrounding the anti-war protests on
September 27, 2002, are in clear violation of Articles 19 and 21 of the ICCPR. This is an
illustration of how the criminalization of dissent has become part of the culture of law
enforcement in the context of protests in the United States, and why the Committee must
pressure the United States to implement policies ensuring true freedom of expression and
assembly, without fear of being shackled and arrested.

C. Free Trade Area of the Americas (FTAA) Protests in Miami
"The easiest way to prevent violence and disturbance at the FTAA Summit was to use a
heavy police presence to limit protest." Miami police officer John Timoney13
During the Free Trade Area of the Americas (FTAA) protests in November 2003 in
Miami, law enforcement coordinated an all-out assault on political assembly and expressive
activity, engaging in widespread political profiling, and swept the streets of anyone viewed as
being an anti-FTAA activist in the city for ten days. Pursuant to a joint federal and local
operation plan under the auspices of Homeland Security, the Miami Police Department
"spearheaded" a multi-agency taskforce, which included the Miami-Dade Police Department, the


See Third Amended Complaint Killmon et al, v City of Miami et al. (2003), Case No. 04-CV- 20707


Broward County Sheriff, and 23 other local law enforcement agencies, 7 state agencies and 7
federal law enforcement agencies, in carrying out a deliberate plan to disrupt political protest. In
addition to the unabashed comments made by officer Timoney above, former Sheriff and current
Mayor, Carlos Alvarez, told his command staff in a videotaped meeting that, essentially, law
enforcement would be in a position to arrest just about anyone for anything during the FTAA
In this climate of lawlessness, nearly 300 people were arrested, with over 200
prosecutions and convictions. The National Lawyers Guild filed a class action lawsuit for
violations of demonstrators’ First, Fourth and Fourteenth Amendment rights, which also violates
ICCPR Articles 19 and 21, against, in addition to the city of Miami and its Police Department,
John Ashcroft, (former) Attorney General of the United States and Tom Ridge, Secretary of the
U.S. Department of Homeland Security. Agents of the FBI and ATF (Alcohol, Tobacco and
Firearms) participated in developing plans for, and, on information and belief, were present at,
law enforcement operations for the FTAA ministerial meetings in Miami in November, 2003.15

Agents of the FBI and ATF participated in the interrogation of political activists at both the City
of Miami Police Headquarters and at the Dade County Jail and TGK Facility. Information
collected by all of the defendants from the unlawful interrogations and surveillance of each of
the plaintiffs was provided to the central databases of the FBI and ATF, which have maintained
and disseminated this information to monitor the lawful expressive activities of plaintiffs and
others based on their political and ideological beliefs and associations.16 Prior to the FTAA
meetings in Miami, employees and agents of the federal agencies within the Department of
Homeland Security provided local and state law enforcement, including those named in this
action, with information concerning the plaintiffs and those with whom they associate.17 Agents
of the Bureau of Immigration Control Enforcement (BICE) and the Office of Domestic
Preparedness (OPD) participated in the interrogation of plaintiffs following their unlawful
arrests, including the interrogations of plaintiffs. Information collected by these agents and the
other defendants during the unlawful arrests and interrogations of plaintiffs and others has been
entered into computer database maintained by the Department and/or given to other federal



agencies that maintain such databases to monitor the lawful politically expressive activities of
protesters and others.
Prior to the FTAA meetings, federal and local agents met with representatives of nearly
40 other government agencies on the federal, state and local level to create a Legal Committee,
which was composed of police commanders, representatives of the State Attorney’s Office, FBI,
ATF, U.S. Attorney’s Office, Dade County Clerk’s Office and the Police Legal Counsels from
the defendants Miami police department, Miami-Dade Police Department, Broward County
Sheriff’s Office, as well as the Miami Beach Police Department, the Miami-Dade County
Corrections and Rehabilitation Department, and the Florida Department of Law Enforcement.
The Miami Police Department’s After-Action Report reported that, during the FTAA event,
members of the Legal Committee were present, including “on-scene at demonstrations,” to
provide legal advice to commanders “in an instant.”18
The class action was filed because hundreds of people’s right to assembly and expression
were violated in clear violation of the ICCPR Articles 19 and 21 and U.S. Constitutional rights.
Hundreds of protesters and by-standers’ rights were violated like Plaintiff Bentley Killmon. On
November 20, 2003, Killmon, a 71-year-old retired airline pilot and Korean War veteran,
participated in the permitted AFL-CIO rally and march in conjunction with the FTAA meetings.
He was accosted without warning by approximately 50 to 60 officers as he walked along the
railroad tracks in the general area of a group of 15 to 20 individuals trying to leave the downtown
area, while trying to find his bus for the return trip to Ft. Myers. He was forcibly shoved to the
ground, handcuffed and arrested, without probable cause and with unreasonable force, by
officers, who wore no visible identifiable agency or name information, but who are believed to
be employees of the defendant Broward Sheriff’s Office, acting in coordination with supervisors
and officers from the Miami Police Department and the Miami-Dade Police Department. The
Killmon’s arresting officer could not and did not see Mr. Killmon violate any law or engage in
an unlawful assembly, as charged.19 The police used such force in the process of handcuffing
Mr. Killmon that he suffered damage to his shoulder, requiring surgery. Mr. Killmon was held
for an excessive period of time, including for approximately five hours after all charges against
him were dismissed and he was ordered released by the court. He was initially held in a



makeshift detention facility, similar to dog kennels, where he was kept in handcuffs in the
“kennel” cell for extended time, denied access to food, water and bathroom facilities and denied
the right to make a phone call in a timely manner. All charges against him were dismissed at the
initial bond hearing.20
Mr. Killmon, like the hundreds of other peaceful protesters who were arrested, wants to
return to the Miami area to participate in other similar large-scale expressive activities, but fears
that he will be subjected to arrest and prosecution without probable cause again and solely on the
basis of some political and ideological profiling by the police, and that such information has and
will be disseminated by all of the Defendants, including the federal defendants. Mr. Killmon’s
case is a prime example of the Government’s attempt to chill dissent.
ICCPR Article 19 (1) “Everyone shall have the right to hold opinions without
interference. “
ICCPR Article 21 “The right of peaceful assembly shall be recognized. No restrictions
may be placed on the exercise of this right other than those imposed in conformity with
the law and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public health or
morals or the protection of the rights and freedoms of others.”

Profiling, Arresting, Pepper-Spraying and Beating Protesters is not
“necessary in a democratic society in the interests of national security, public
order or the protection of the public health.” ICCPR Article 19
Although defendants claim their plan was executed to prevent violence and avert
“terrorism,” in fact, law enforcement deliberately and maliciously prevented lawful expressive
activity from taking place in the first instance. In the course of the FTAA meetings, the police
swept up hundreds of demonstrators and subjected them to meritless criminal charges and
prosecutions in retaliation for lawful expressive activity. Those opposing the FTAA were
arrested for alleged misdemeanor violations of the City’s unconstitutional public assembly laws
and various Florida criminal statutes, including “loitering and prowling,” unlawful assembly, and
failure to disperse. For days, time after time, the police targeted demonstrators and supporters of
the protestors, including street medical providers and legal observers, and subjected them to
unwarranted custodial detentions, illegal searches and false arrest.



Defendants established an undefined and floating “no-protest zone” by making
downtown Miami and the area surrounding it off limits to political dissent during the FTAA
meetings unless the various law enforcement personnel decided to permit expression, and, even
then, only for as long as law enforcement allowed peaceful demonstrators to remain in traditional
public fora. Repeatedly, demonstrators were deliberately ensnared when they assembled with
explicit police agreement to allow them to gather at a particular location, only to have the police
arbitrarily and almost immediately revoke this “permission” and order the group to disperse on
the pretext that the demonstrators were violating state and municipal public assembly laws.

Use of Force and Other Factors to Stifle Dissent in Violation of ICCPR
Articles 19 and 21
The common factors in all of these actions was the use of force to intimidate and stifle
dissent, coupled with the absence of any probable cause to disperse or arrest those assembled or
simply walking on a public way. In some instances, the police utilized arrest forms, which were
partially filled out in advance, requiring only the entry of names, height, weight and other
individual identifiers to supplement the boilerplate and generic descriptions of the supposed
unlawful activity. Arrests were made without arresting officers even knowing what law had
been violated.21 It was sufficient that the individual detained was believed to be protesting
against the FTAA, in a sense arresting on guilt by and for association.
The actions of the defendants in violating the rights of the demonstrators were so
egregious that one state criminal court judge who happened to be in the area during the
demonstrations stated in open court that he witnessed “no less than 20 felonies committed by
police officers.” The judge characterized the actions of law enforcement as “pretty disgraceful”
and said that he would have also been arrested while walking on Biscayne Boulevard but for the
fact that one of the police officers recognized him from court.22
The use of force by law enforcement was particularly malicious, with officers literally
beating and shooting people, who 1) had violated no law, or, at worst, had only committed a
minor criminal offense, 2) posed no threat to the safety of officer or others, and 3) were not
evading arrest. Moreover, the completely unrestrained use of force in this instance, even if some



force might have been warranted in isolated instances to effectuate a lawful arrest, was far
outside the bounds of any possible permissible force as it involved potentially “lethal” force,
including, but not limited to baton strikes to the head of demonstrators, shooting less-lethal
munitions and projectiles at close range and at the heads and upper torsos of demonstrators, and
repeatedly spraying pepper spray and other chemical irritants directly into the eyes, noses and
mouths of non-violent protestors who were trapped by police.23
Officer Timoney has stated publicly that the police intended to use the unlawful tactics
described above as a prophylactic measure to prevent possible violence, even where no violence
was threatened, and that law enforcement believed it was lawful and proper to prevent speech
because some persons in the assembly might engage in unlawful conduct.24

Miami and Federal Law Enforcement Intelligence and Planning Committee
Almost nine months before the FTAA meetings in Miami, a Planning and Intelligence
Committee began meeting on a regular basis. As part of this early stage, officers from various
governmental entities worked undercover to gather “intelligence” for their respective law
enforcement agencies.25 In addition to these types of institutional abuses, defendants began a
campaign to demonize the demonstrators in the press and with local businesses. A Power Point
presentation, created with the assistance of the federal defendants, showed incidents of alleged
protestor violence at other locations to create a climate of fear in Miami.
In addition, the Power Point presentation highlighted the role of the National Lawyers
Guild’s legal observers, identified by their bright-green caps. The police characterized the NLG
Legal Observers as being there to “antagonize police.” Thus, it was no accident that at least
15% of the legal observers in Miami at the FTAA were targeted for arrest and physical abuse in
retaliation for doing nothing more than standing in public fora and observing police abuse of
demonstrators. As part of their pre-protest demonization and targeting of the demonstrators, the
police presentations also singled out Street Medics who provided first aid to protesters. With
buzz words such as “anarchist” and images of widespread property destruction, defendants laid




the groundwork for their plan to “limit” protest through arbitrary police actions, unconstitutional
police lines, the use of extraordinary violence against the demonstrators.
A key element of the plan was the use of unreasonable force and preemptive arrests
based on political and ideological profiling, without any probable cause to believe that criminal
conduct was imminent or had occurred. Defendants conducted unlawful stops and interrogations
of individuals throughout the City, randomly detaining people on public sidewalks and pulling
over vehicles based solely on the belief those targeted by these surveillance actions were in
Miami to protest the FTAA meetings. During these stops, the police questioned anyone who fit
the “FTAA protestor” profile as to who they were, where they were from, and their viewpoint on
the FTAA. Several people were arrested as a result of these unlawful stops and charged with
violating a City ordinance barring “obstructing” sidewalks that has since been repealed as a
result of post-FTAA litigation brought against the City.
Once the FTAA meetings began on November 20th, defendants escalated the plan to
limit protest by targeting and intimidating ideological demonstrators. Defendants deployed
mobile police lines to interfere with freedom of association; encircled protestors with lines of
riot-gear clad officers with weapons drawn; dispersed lawful assemblies; unlawfully detained,
searched and arrested those opposed to the FTAA without probable cause; and used
unprecedented brutal force and various chemical toxins against peaceful demonstrators. In
effect, defendants became judge and jury on the street, meting out severe punishment for the
lawful exercise of First Amendment rights to send a message to the demonstrators that violence
would not be tolerated in Miami. But the only violence was by the police against demonstrators.


Recommendations 26
The three examples cited in this report of the criminalization and stifling of dissent in the
United States are only a few among many similar instances that have occurred surrounding
protest activity. These examples make it clear that the United States is in violation of its
obligations under the ICCPR, particularly those Articles which refer to freedom of expression
and assembly (Articles 19 and 21), and the Committee should recommend the United States act
on the following:
1. Formulate and articulate to the public a clear definition as to what constitutes legitimate law
enforcement activity, including what purpose may be served by surveillance of political
2. Surveillance is defined as the systematic, on-going undercover monitoring of a group's
activities and includes police attendance at public meetings or social activities. Law enforcement
officials in the United States, including the FBI and local police, should conduct intelligence
operations solely for a legitimate law enforcement purpose. Before police undertake surveillance
of any group engaging in constitutionally protected expression or freedom of association and
assembly, there should be reasonable suspicion to believe that the group is engaging in, planning
to engage in, or about to engage in criminal activity.
3. U.S. and local law enforcement should be prohibited from using undercover officers to
conduct surveillance of individuals or organizations based solely on the content of their political
speech or ideology.
4. U.S. and local law enforcement should be required to have an internal oversight mechanism
once an undercover operation is underway that, on a regular basis, reviews the activity of and
information gained by undercover officers and determines whether undercover surveillance is
still warranted.
5. U.S. and local law enforcement should immediately cease such surveillance once facts made
known to them no longer support reasonable suspicion.
6 U.S. and local law enforcement should be prohibited from using agents provocateur.

See D.C. City Council Committee on the Judiciary, “Report on Investigation of the (D.C.) Metropolitan Police
Department’s policy and practice in handling demonstrations in the District of Columbia” for more details on the
investigation into MPD handling of demonstrators during mass demonstrations in Washington D.C. and the
Council’s recommendations to the MPD.


7. Prior to each mass demonstration, the police chief and the person in charge of the federal
agents acting in conjunction with local authorities, should issue a directive saying that the overall
mission during mass demonstrations is to protect demonstrators’ right to assemble and protest
(under ICCPR Article 19 and 22), and that in the event that individuals engage in unlawful
behavior, those individuals shall be arrested without abridging the rights of others lawfully
8. Finally, the United States should adopt the ICCPR Optional Protocol to allow for individual
reporting of violations of civil and political rights to the Human Rights Commission.