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Leaked Department of Homeland Security memo suggests intelligence being gathered on racial justice protesters, report says

The memo appears tied directly to President Trump's executive order punishing protesters who topple statues

Graig Graziosi
Tuesday 21 July 2020 22:08 BST
Descendent of Robert E. Lee criticises Trump's defence of statues

A leaked memo from the US Department of Homeland Security suggests that federal investigators are gathering intelligence on protest movements in US cities where efforts to topple statues have been prevalent.

The memo was obtained by Lawfare and described US intelligence officials "collecting and reporting on various activities in the context of elevated threats targeting monuments, memorials, and statues." It also provided legal guidelines for the "expanded intelligence activities necessary to mitigate the significant threat to homeland security" posed by protesters.

The activities discussed in the memo flow directly from Donald Trump's executive order aiming to dole out substantial punishments on anyone who destroys a federal monument or statue.

According to the executive order, "it is the policy of the United States to prosecute to the fullest extent permitted under Federal law, and as appropriate, any person or any entity that destroys, damages, vandalizes, or desecrates a monument, memorial, or statue within the United States or otherwise vandalizes government property."

The order then calls on the attorney general to work with state and local law enforcement to prosecute individuals who have destroyed monuments or statues.

The leaked memo suggests that enforcing Mr Trump's order is a priority for the DHS, and instructs intelligence gathering agencies to use the "least intrusive" means of intelligence gathering possible.

"I&A personnel are required to use the least intrusive collection techniques feasible and sufficient when collecting [US person information] or when collecting intelligence or information within the United States. ... I&A personnel are permitted to engage in physical surveillance, the use of mail covers, and the use of monitoring devices only to the extent permitted by and consistent with [existing rules for collecting information relating to counterintelligence]. I&A personnel are not permitted to engage in electronic surveillance or unconsented physical searches," the memo says.

This would include on-the-ground intelligence gathering during protests and the monitoring of people's social media accounts.

The memo also lays out three instances where intelligence gathering missions are appropriate under the new guidance. Protest activities that threaten statues or monuments, protest activities which aim to harm "law enforcement personnel, facilities or resources" and any threat to "damage, destroy or impede the functioning of other government facilities."

According to the memo, federal agents consider protesters toppling statues a threat to national security and are planning to respond as such.

Intelligence agencies are directed not to collect information in a manner that might impede protesters First Amendment rights and that their agents have to establish a "reasonable belief" that a person or group is going to engage in one of the three mission-specific scenarios.

The memo says that "Persons merely engaging in non-violent protest activities near MMS (monuments, memorials or statues), or making hyperbolic statements about MMS likely do not constitute a threat to MMS," but does allow intelligence officials to collect information on "(i) threats to MMS, (ii) individuals or groups that pose such threats, or their tactics, techniques, or procedures (TTPs), and (iii) information that otherwise informs an overall assessment that threats to MMS will materialize."

According to Lawfare editor in chief Benjamin Wittes and University of Texas law professor Steve Vladeck, who authored the original report on the memo, the guidance does not call for "the federal government to take any coercive action against protesters in Portland — or anywhere else," but is still "equal parts unpersuasive and alarming."

"It is unpersuasive because it should be obvious that vandalism and other damage to monuments, even federal monuments, does not threaten the security of the homeland to any greater extent than most property crimes," the authors wrote. "The premise is alarming because it uses the cover of minor property damage, whether to federal property or otherwise, to justify intelligence gathering against ordinary Americans--most of whom have nothing to do with the underlying property damage, and many of whom are engaged in the most American of activities: peacefully protesting their government."

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