Civil Liberties

Broken Window Theory

Reining in the surveillance society, one vandal at a time


California may currently be playing its vital recurring role as America's national laughingstock, but there are signs that the Golden State may lead the way toward a more sane approach in one area. This month, the state's attorney general announced an unexpected curb on using the rubric of anti-terrorism to justify excessive surveillance of political and religious activity.

"I strongly agree with the need to make clear that we don't investigate religious and political groups unless there's been criminal activity," California attorney general Bill Lockyer said, announcing a new set of guidelines designed to separate anti-terrorism activities from intelligence gathering on political protestors—even civil-disobedience protestors whose lawbreaking doesn't qualify as terrorism.

At issue is the California Anti-Terrorism Information Center (CATIC), an office established after the September 11 attacks to centralize information applicable to terrorist threats. Though the state of California got off to a less than promising start in the terrorist threat department—with Governor Gray Davis' Chicken Little prediction about militants' designs on the Golden Gate Bridge in the fall of 2001—CATIC has been liberal in issuing terrorist threat advisories.

CATIC's mission was not unlike the revised federal guidelines U.S. Attorney General John Ashcroft put out in May of last year, allowing law enforcement officials greater leeway in monitoring religious and political activities even when there is no clear suspicion that the people or groups being investigated are involved in a crime. The example circulated at the time—that under previous guidelines cops were not even authorized to enter a mosque that was otherwise open to the public—seems reasonable, and greater latitude in policing is likely to enhance the kind of creative thinking the mission of pre-empting terrorism presumably requires. Moreover, neither the federal nor the state guidelines cover any warranted-search activity, only general efforts to keep tabs on suspicious characters.

The experience of CATIC demonstrates how easily such a clear mission can get fudged, however. Since its inception, the office has issued 30 warnings about political protest groups, out of concern that they would steer legitimate protest activities into violence.

That too is a reasonable concern, but in a climate where Homeland Security resources are used to track down truant Texas state legislators, there is value in defining "terrorism" as narrowly as possible, says Mark Schlosberg of ACLU Northern California.

"Some things, like civil disobedience or minor vandalism, may involve lawbreaking, but they're not terrorism," Schlosberg says. "Blowing up a building clearly is terrorism. Now there are going to be gray areas where it's not entirely clear where the distinction is. And there are law enforcement interests in stuff that's not related to terrorism—for example, if there's a splinter group that commits vandalism, and police have reason to believe that group will be attending a protest. But that doesn't make those people terrorists. We're glad the guidelines will make clear that not only constitutionally protected activity but also minor criminal activity is not terrorism."

How tough these things can be to call is illustrated by an intriguing press-conference exchange recorded in the Oakland Tribune:

"[Civil disobedience activity such as laying down in front of a train] is not something we consider as having any causal relationship or any factual relationship to terrorism activity," said Peter Siggins, Lockyer's chief deputy for legal affairs.

"As opposed to a protester who throws a brick through a window," added Steve Cooney, the deputy attorney general for administration and policy.

"It depends on the window," said Siggins. "We don't see as particularly terrorist-related someone breaking the front window of Macy's because they want to protest the fact that they sell fur coats…. To attack that under the rubric of terrorism is, I think, not right."

This issue came to a head during a demonstration at the Port of Oakland this April. Following a CATIC alert, police prepared a forceful "less-than-lethal" response designed to keep the protest from getting out of control. In the ensuing dust-up, protestors were pelted with wooden slugs and bean bags, resulting in a few hospitalizations and an ongoing civil rights lawsuit.

It is not clear that, in the absence of a CATIC alert, the police response would have been less forceful. (Among other things, the cops had reason to expect vandalism and violence at the rally.) But California has not been immune to anti-terrorism mission creep in policing. Recently, "LA Impact," a county-wide Los Angeles task force originally designed to combat drug trafficking, has added homeland security to its mission. It doesn't take much imagination to see how this could turn into an updated version of the LAPD's old squad designed to spy on hippies.

Ultimately, the war on terrorism's effect on police work at the local and state level may be greater than the impact of the relatively high-profile USA PATRIOT act or the well-publicized efforts of Attorney General Ashcroft. Turning local cops into anti-terrorism warriors bodes ill for everybody's civil liberties, and California's top law enforcement official deserves credit for cooling his own heels.