As much as $4.5 million in federal funding for the Maryland State Police would be at risk if an ongoing investigation reveals that its use of a criminal database to track peaceful activists violated federal rules.
The undercover infiltration of the protest groups appears legal under state law, legal analysts said. But entering a Baltimore activist’s name in the drug-trafficking and terror suspect database without apparent justification could violate 1970s-era regulations stemming from revelations of domestic spying by national intelligence agencies. It also could breach Maryland privacy laws.
State Sen. Brian E. Frosh, chairman of the Judicial Proceedings Committee, has set a hearing for Sept. 16 on the scandal. If the covert operation, including the infiltration of peaceful groups, did not violate state law, Mr. Frosh told The Washington Times Thursday, he expects legislation to ban the practices would be introduced.
“It doesn’t appear that anything illegal was done,” said Raquel Guillory, a spokeswoman for Maryland Attorney General Douglas F. Gansler, whose office is participating in a probe ordered by Gov. Martin O’Malley. “We’ll find out 100 percent for sure” after the investigation is complete, she said.
State Police personnel spied on groups opposed to the death penalty and the Iraq war from March 2005 to May 2006, logging more than 288 hours attending meetings and rallies, according to documents obtained by the American Civil Liberties Union through the state’s Public Information Act. Ironically, that law is also the one troopers may have violated. The act covers individual privacy as well as the public’s right to government documents.
The State Police could lose all or some of its federal funds for violating the federal rules on gathering personal information, said David Rocah, staff attorney for the Maryland ACLU.
“It seems to me patently obvious they violated these [federal] regulations,” Mr. Rocah said Wednesday. “There is no basis for any of this.”
State and federal laws do not explicitly bar police infiltration of activist and political groups, but they do set limits on how personal information is collected and used.
State Police collected information about several protesters and created a record for one Baltimore activist in a terrorist tracking database, according documents released by the state last month in response to a public information request from the ACLU.
“It’s important to say and remember that even if this wasn’t illegal, it should be illegal and it’s wrong,” Mr. Rocah said.
Mr. Frosh said he plans to invite the both State Police Superintendent Col. Terrence B. Sheridan and former State Police Superintendent Thomas E. “Tim” Hutchins, under whom the spying occurred, to the Sept. 16 hearing.
Mr. Frosh, Montgomery Democrat, said he was unsure whether the police actions violated state law or forfeited federal funding, but hopes to find out during the hearing.
“It may be that the law is quite settled, and we haven’t figured it out yet,” Mr. Frosh said. “But if the state of the law is what it seems to be at the moment, I would bet you there will be a lot of proposals.”
The Maryland Public Information Act also requires that any agency collecting personal data - including physical descriptions, addresses and telephone numbers - notify the subject, with a few exceptions, including for criminal investigations.
State Police created a record in the U.S. database for activist Max Obuszewski, categorizing the entry under “terrorism- anti-government” and “terrorism- anti-war protesters.” He did not learn about his listing on the High Intensity Drug Trafficking Area database until State Police released the documents last month.
“It’s still very, very shocking to me,” Mr. Obuszewski said Thursday. “It suggests to me that State Police and the Joint Terrorism Task Force were looking for enemies. I’m a dissident and I’m a protester.”
Analysts said civil libertarians could have a strong basis to argue that State Police violated rules on personal data.
“If there’s federal money involved then there are federal rules involved,” said Daryl Brown, criminal law professor at the University of Virginia.
Rep. Bennie Thompson, the Mississippi Democrat who chairs the House Homeland Security Committee, requested last month that Homeland Security Secretary Michael Chertoff detail any information State Police shared with his agency and tally federal funds provided to the State Police.
A Homeland Security spokeswoman said the agency is gathering the information for Mr. Thompson.
Since the Sept. 11 terrorist attacks, spying on antiwar groups and protesters appears to have increased across the country. The ACLU uncovered in 2002 a Denver police program that maintained files on activist groups - including information on about 3,200 people and 208 groups.
Between 2003 and last year, hundreds of protesters and antiwar groups were entered into in a federal database, Talon, which was designed to track potential terrorist threats. The database was ultimately shut down.
But scholars point out that in many cases, the surveillance tactics police use may not be illegal.
“If all that they’re doing is attending meetings that are open to the public, there’s probably nothing in the law of criminal procedure that bars that,” Mr. Brown said.
Lawmakers occasionally have tried to address the challenge of allowing the police the intelligence-gathering tools necessary to prevent crime while protecting individual privacy and free-speech rights.
In 1975 and 1976, the Church Committee in the House of Representatives uncovered domestic spying on political activists by national agencies and spurred a series of safeguards, including the federal regulations at issue in the Maryland State Police operation.
In 1975, Maryland senators investigated extensive covert operations by the Baltimore Police Department in the late 1960s and early ‘70s that included wiretapping of political campaigns, activists and journalists, and the collection of financial and telephone data.
Mr. Frosh, who is reviewing the Maryland Senate committee report of that period empaneled in 1975 to investigate the Baltimore police spying, said Thursday he wants information about the extent of the state police force’s surveillance of peace groups, and whether it conformed to the law.
“I want to find out what the law is now,” he said. “Part of what we’ll do is we’ll sort that out.”