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Public Eye - Summer 2009 Vol. 24, No. 2

From Movements to Mosques, Informants Endanger Democracy

By Thomas Cincotta

In February, 2009, members of the Islamic Center of Irvine learned that the Federal Bureau of Investigation (FBI) had hired Craig Monteilh, a 46-year-old fitness instructor and convicted con man, to infiltrate their mosque and keep it under surveillance. Members had wondered about Monteilh for a while. Back in 2007, the local chapter of the Council on American-Islamic Relations (CAIR), alarmed by his talk of jihad and plans for a terrorist attack, reported him to Irvine police and secured a three-year restraining order against him.

The news that Monteilh not only infiltrated the Irvine mosque but mosques across Orange, Riverside and Los Angeles counties came out during a bail hearing for Ahmadullah Niazi. [1] Niazi, an Afghan native and U.S. citizen, was up on charges that he had lied about ties to terrorist groups on immigration applications, because he did not disclose that his brother-in-law was Osama bin Laden’s bodyguard, and that he traveled to Pakistan in 2005 where he allegedly met with a terrorist.

Posing as a new convert, Monteilh arrived at the Irvine Islamic Center in 2006 wearing robes and a long beard, using the name Farouk Aziz. Monteilh had a long rap sheet and had served 16 months in state prison on two grand-theft charges. But he found new friends in government in his new role. FBI Special Agent Thomas J. Ropel III testified that Monteilh recorded Niazi on multiple occasions, talking about blowing up buildings, sending money to the mujahedeen, and acquiring weapons, although the government has not charged Niazi with terrorism. Niazi is said to have refused to become an FBI informant after he complained to the agency about Monteilh. [2]

We don’t yet know if Monteilh’s talk of jihad egged Niazi on. Was he an agent provocateur, like the two well-paid FBI informants in the 2006 Sears Tower terror plot,  supposedly concocted by men from Miami’s deeply impoverished and predominantly black Liberty City neighborhood? After two hung juries, in May a third jury finally convicted five out of the six defendants for planning to blow up the Chicago landmark. The New York Times quoted a law professor as saying, “It goes to show that if you try it enough times, you’ll eventually find a jury that will convict on very little evidence.” Previous juries viewed the FBI informant posing as a member of al Qaeda as the driving force behind the plot. Despite paying informants over $130,000, the FBI produced no evidence of explosives, weapons or blueprints, only a videotape of defendants pledging an "oath" to al Qaeda, recorded in a warehouse wired by the FBI. The defendants are petitioning for a new trial.

Since the government’s use of secret informants is increasingly visible, in mosques and in an array of activist networks, so too are questions about whether the spies instigated events and infringed on people’s constitutionally protected rights to free speech, association, and privacy.

In a dozen or so cases exposed within the last few years, informants facilitated bomb-making, provided logistical support, cajoled others with provocative language, and goaded people to break the law. Not every informant can be blamed for provoking illegal activity, and entrapment is a difficult thing to prove. Targets of surveillance do often plan or commit crimes: witness the five men sentenced to life terms in April 2009 for their role in plotting an armed assault on Fort Dix in New Jersey. Yet, even in that case, informants played key roles in planning those crimes.

By and large, evidence shows informants do not merely observe and collect data. They make things happen. Their mere presence creates distrust and conflict, making them an efficient tool of repression that in recent years has affected broad, predominantly Muslim communities in the United States, as well as left-wing activists. Informants can cause confusion and dissatisfaction among members of groups and communities they infiltrate, discrediting leaders, and fostering factionalism as people wonder if any of their colleagues are spies. Their handlers’ structure of incentives – raises, promotions, transfers, financial rewards, waived jail time – creates a system where informants consciously or subconsciously create and then destroy terrorist threats that would not otherwise exist. These pressures can push them from passive observer to aggressive actor, with serious consequences for constitutionally protected free speech. Another unplanned result: government loses legitimacy and support in the eyes of targeted communities, if they feel they have been manipulated.

Today’s informants carry the same disruptive potential as their counterparts in the FBI’s 1960s-era counterintelligence program (COINTELPRO), which aimed “to expose, disrupt, and otherwise neutralize the New Left organizations, their leadership and adherents.” [3] Today’s agents are shrugging off constraints placed on them in 1976, after the program’s illegal break-ins, assassinations, and dirty tricks against civil rights, antiwar and other activists were exposed. Following high-profile investigations, Congress limited the Bureau to investigating activists they believed were about to be, or were actually engaged in, criminal activity. [4]

But in the post-9/11 environment, intelligence gathering is driven by a theory of preventive policing: in order to anticipate the next terror attack, authorities need to track legal activities – much like the “pre-crime” units depicted in the film Minority Report. Pre-emptive policing dovetails with a police-promoted belief that “radicalization” is a key cause of violent extremism. [5]

This emphasis on prevention and radicalization blurs the distinction between thought and action by specifying ideological orientation as grounds for suspicion. It justifies investigating anyone or any group identified as fostering “subversive” ideas. It focuses not on crime, but on the possibility that a crime might be committed at some future date. This entire approach conflicts with the democratic notion – enshrined in the Constitution and numerous Supreme Court decisions – that government may not inquire into or restrict thought and speech.

Attorney General Eric Holder has not stated whether he will revisit lax Bush-era guidelines (see box). Despite the availability of alternative, less constitutionally “iffy” investigative techniques, the use of informants appears to remain a favorite tactic – not only of the FBI, but, as we know from 2008’s political conventions, local police as well.

Agents Provocateurs at the RNC

Few civil liberties advocates were surprised when they learned police had deployed informants before and during the 2008 Republican National Convention in St. Paul, Minnesota. Both the FBI and the Ramsey County Sheriff’s Department dispatched informants to spy on protest organizations. Their efforts eventually led to the arrest of eight activists prior to the convention on charges of conspiring to commit illegal acts. While the county prosecutor dropped terrorism charges against them in early April, the RNC 8 still face felony conspiracy charges that they promoted riot and property destruction in an effort to “shut the city down.” The trial is expected to begin in September 2009. [6] But activists and civil libertarians have already learned about tactics that cause grave concern about the protection of free speech rights.

The spies filed about a thousand pages of reports for an investigation that cost $300,000 to the county alone. [7] The sheriff’s three undercover operatives are notable for their diversity: a female narcotics officer in her 50s, a 20-something female jail guard, and a headstrong muscular guy looking to be pushing 30.

Marilyn Hedstrom, the narcotics officer, introduced herself to anarchists as “Norma Jean Johnson” in August, 2007, telling activists she had issues with Bush and the Iraq war. [8] She cooked meals, ran errands, worked the security detail, and represented the organization at gatherings. Her reports show no talk of property damage or even protests at meetings she attended, but much discussion of internal strains, gripes, and names of activists.

Changes in Justice Department Guidelines Needed

Today many of the abuses of COINTELPRO are no longer illegal. Break-ins, wiretaps, and mail covers have been supplanted by national security letters and “sneak and peak” searches, authorized under the USA Patriot Act enacted after 9/11. The danger of these intrusions to privacy and free speech is magnified by the expansion of the domestic security apparatus. The fruits of surveillance can flow rapidly through 70 state intelligence fusion centers, channeling information across jurisdictions from local police to national security agencies.

The election of Barack Obama does not portend a sea change in domestic intelligence policy. There are no signs that his administration is rolling back definitions of terrorism stretched to encompass acts of nonviolent civil disobedience. [39] FBI Director Mueller, who serves a ten-year term, worked with former Attorney General Mukasey to issue new Guidelines for Domestic Operations in 2008 that:

Informant Rachel Nieting, a guard in the county jail, accompanied Hedstrom posing as her niece, but did not fit in. Complete with a fake Facebook page under the alias “Amanda,” Nieting did not gain the same level of acceptance from the anarchists as Hedstrom had, and dropped out. Hedstrom covered for “Amanda,” explaining that she found a new boyfriend.

In their various roles, undercover agents can seriously distort the life of a social movement, as sociologist Gary Marx has argued. [9] Hedstrom and Nieting’s participation made the organization seem larger and more inclusive. Nieting wrote that she and Hedstrom were the only two women to join Karen Redleaf at a women’s caucus. Redleaf, a committee member, talked about how disconnected she felt and said was only coming to Sunday meetings because “Norma Jean” was there. [10]

The third informant, Chris Dugger, had tattoos and resembled a biker. He portrayed himself as participating in a radical movement for the first time. Still, he was accused by another member of being a cop. Denying the charge that he was an informer, Dugger became visibly emotional, wiping his eyes, blowing his nose, and telling the group how bad he felt. He must have been convincing, since two of the anarchists later told him “a cop would have just walked away and never returned and wouldn’t cry.”

By August, 2008, Dugger reportedly urged one anarchist to suspect another of being an informer. This highly disruptive practice, known as “snitch-jacketing,” was a common tactic of COINTELPRO operatives. Snitch-jacketing not only stirs distrust, but can also provoke violence. For his efforts, Dugger’s handlers won him a job in the county jail.

The FBI’s informant, Andrew Darst, infiltrated the “action faction” having been first seen in anarchist circles three years before. He became active in committee meetings of the RNC Welcoming Committee and reported on events held by other, nonanarchist organizations. Not only did he record meetings, his apartment in Minneapolis was wired for audio and video recording. [11] In March, 2009, Darst pled guilty to two counts of misdemeanor assault and one count of property damage after breaking into a house by ripping the door off its hinges, confronting his wife, and striking two men present.

But this Minnesota-based spy was not the only person the FBI deployed to track people planning to protest the RNC. The example of Brandon Darby, a magnetic, discontented Texas activist, reveals how easily the fuzzy line between informer and instigator can be crossed.

The Darby Case

For eighteen months before the 2008 RNC, the FBI paid more than $11,000 to Darby, a gun-toting, outspoken Texas radical, to spy on fellow activists in Austin and then St. Paul. Darby was a charismatic leader with a reputation for defying authority who infiltrated the Austin Affinity Group for the FBI after becoming disgruntled with anarchist tactics. Government infiltration by a respected leader, handled by an FBI agent untrained in handling informants, presented the perfect setting for an agent provocateur to thrive.

Darby’s deep involvement illustrates the pressures inherent in the informant’s role. Informants must choose between being passive observers who yield sparse information and wield little influence, or more active participants who produce better information, but also affect what happens more directly – raising the risk of possible complicity and entrapment.

On the eve of the convention, two activists under Darby’s surveillance, 22-year old David McKay and 23-year-old Bradley Crowder, concocted eight Molotov cocktails and stored them in a basement. Crowder pled guilty in the fall of 2008, but McKay’s case went to trial. The jury split evenly on the issue of whether Darby, the elder turncoat, had entrapped him. McKay eventually pled guilty before his second trial began, saying he would have made the Molotov cocktails even without Darby’s encouragement. But the question remains: Were the two men egged on by the charismatic Darby?

Darby was a self-identified revolutionary who slept with a gun under his pillow, according to friends. In the aftermath of Hurricane Katrina, he took an AK-47 and a handgun to New Orleans to help rescue an old friend in a neighborhood inundated by muddy water and White militias. He was a leader of the Common Ground relief effort in New Orleans and a member of the Austin activist community for more than ten years. Friends in New Orleans say he openly supported the use of firebombing as a tactic.

Given the need for informants to observe rather than lead, it is curious that the FBI found someone like Darby suitable for the task. Guidelines require the Bureau to evaluate the potential informer’s motivation, dangerousness, and the extent to which the FBI can ensure that the information gathered is related to criminal matters. The guidelines do not address the potential for provocation per se, but FBI Agent Timothy Sellers said he cautioned Darby not to take a leading role. [12]

Sellers charged Darby with spying on a range of Austin-area activists, particularly the Austin Affinity Group. [13] Darby gathered information on a number of people engaged in lawful activism, including some who had no plans to attend the Republican Convention. He described meetings with his affinity group and people in Austin, Minneapolis, and St. Paul for the FBI. At times he wore recording devices, including a transmitter embedded in his belt. Four months before the RNC, he went to Minnesota and provided detailed narratives to authorities on meetings with activists from New York, San Francisco, Montana, and elsewhere. [14]

“The wider net cast by Darby in his information gathering shows that he was part of an FBI campaign to suppress political dissent and activism,” said Will Potter, a journalist with the alternative press. “By gathering information on law-abiding activists and then defending his actions as stopping violence, Darby contributes to the public perception that political dissent is criminal, which has a chilling effect on free speech.” [15]

Sociologist Gary T. Marx’s study of agents provocateurs and informants suggests that the nature of informing may lead the informer beyond his or her assigned task, particularly when the motivation is personal or ideological. In his study, Marx identifies the potential motives of informants, including patriotism, coercion, financial reward, disaffection with activists, double agents who want to assist the movement, converts who lose their zeal, and provocateurs who find success in the role by exceeding their mandate. [16]

After returning from a trip to Venezuela, Darby said, he began to see major problems with “violent elements” of the movement and actions being planned by the RNC Welcoming Committee. Explaining his motivation to work for the FBI, he said he merely wanted to protect the Republicans’ right to participate in the political process.

Ideological motives may produce poor information, says Marx. Disgruntled informants tend to exaggerate or even lie: “There is no limit to which people will go to get even for a real or imagined wrong.” [17] Darby shared his employers’ assumptions that anarchists were determined to use violence. “Such agents may thus feel free to encourage activists to take violent action or to report false information. They may feel that the group poses such a severe threat that any means (even lying to superiors) are necessary to destroy it,” warns Marx. [18]

The FBI did not require Darby to shed his revolutionary fervor. Militant language and a reckless temperament remained part of his public persona. According to Lisa Fithian, who worked with Darby for a number of years, “Brandon was always provoking discord and aggression, in the antiwar movement in Austin in 2003, in protests in Houston against Halliburton, and in disaster relief at Common Ground in New Orleans.” [19] At his first meeting with McKay and Crowder, he said, “I’m going to shut this f..ker down” and “any group I go with will be successful.” Darby lambasted the two for looking like a bunch of “tofu-eaters” who needed to “start eating meat and bulk up” so they could fight. [20] In fact, he trained them in martial arts.

There was no reason for Darby to tone down his rhetoric as an informant, although such language could inspire illegal action by younger colleagues. The informant’s secret status frees him or her from the constraints with which more prudent activists contend. Just as Monteilh championed violent jihad, Darby could express militancy without fear of reprisal. As Frank Donner observed, “the infiltrator’s secret knowledge that he alone in the group is immune from accountability for his acts dissolves all restraints on his zeal.” [21]

One of Darby’s big moments came after the FBI seized shields that the affinity group made to use in blocking streets during the Republican Convention. Darby told McKay, “We’re not going to take this lying down. You’ve got to do something about it.” The next night, McKay and Crowder bought materials for Molotov cocktails. Darby claims that he urged restraint. When McKay considered hurling the Molotov cocktails at police cars parked at a station, Darby texted him, “It’s your call. I support you making whatever choice you are comfortable with. Be proud of yourself for your work and take a chill.” When McKay suggested that there were too many police around, Darby texted, “it’s all good, sometimes it’s best to fight another day … – it’s ok, I’ll support you.”

Although Darby wore a wire to transmit his conversation with McKay about the Molotov cocktails, FBI agents took notes but made no recording. This raised suspicion among jurors that Darby had crossed the line from surveillance to provocation.

Informers and Muslim Americans

Informers generate suspicion deep into the communities under surveillance. “What these guys have done is create an environment where every person begins to suspect the other and with the infighting and inward suspicion, the community becomes its own victim,” said Shakeel Syed, executive director of the Islamic Shura Council in southern California.

Across the country in New Jersey, two FBI informers helped lead the five Duka brothers down a similar path, ending with their sentencing on April 28, 2009 for conspiracy to commit terrorism. [22] Authorities opened the Fort Dix file in 2006 after a Circuit City clerk showed police a video the brothers asked him to convert to DVD. On the video, camouflaged, bearded men shot semi-automatic weapons at a shooting range in the Poconos, where the defendants played paintball, skied, rode horses, and played videogames with their male buddies. On tape, the men shouted “Allahu Akbar,” meaning “God is Great.” Thinking the weapons were automatic, the clerk phoned police. In the eyes of the FBI, these were gun fanatics taping a training video or training for jihad. Had they not been Albanian Americans, the shooters’ bravado might not have raised suspicion. But in the post-9/11 world, the video offered cause for investigation. [23]

Who is Anna?

“Anna” was an FBI informant for two years, who came to activists’ attention at a Fort Lauderdale protest of the Organization of American States (OAS) meeting in June, 2005. Ray Del Papa watched her, dressed as a medic with a red cross on her shirt and bag, directing young people to sit down in the street directly in front of a line of police in riot gear, using provocative language even though organizers had decided against sit-ins. [41] They had not counted on an informer in their midst. Anna went on to sleep with a young anarchist who was eventually given a prison sentence of 19 years and seven months for conspiring to sabotage a U.S. Forest Service genetics tree lab and nearby fish hatchery in Rancho Cordova, California. Juror statements that they felt unfairly hemmed in by the judge’s instructions on whether the anarchist, Eric McDavid, was “predisposed” to commit the crime before meeting the informant; that now forms some of the basis of his appeal. [42]

Rather than interview the brothers, or merely monitor them – investigative options that seem old hat in the informer age – the FBI dispatched two untrained civilians to ingratiate themselves with the men in the video. The first informer, Mahmoud Omar, was a convicted felon who entered the United States illegally in 1992 and faced fraud charges. The FBI told him they would clear his debts and help him obtain legal residence, and paid him $238,000 for his undercover work. The second informant, Besnik Bakalli, received $13,000 from the FBI, immigration assistance, and pardon for an old shooting charge from Albania.

Informant Omar was the apparent leader of any plot against Fort Dix. He organized “reconnaissance missions” in which he drove Mohamed Shnewer around potential targets while he railed against the United States. Omar stoked Shnewer’s fire, although he claimed during the trial that he was just trying to fit in. But Shnewer took the bait. On August 1, Shnewer told Omar, “If you want to do anything here, there is Fort Dix and I don't want to exaggerate, and I assure you that you can hit an American base very easily…When you go to a military base, you need mortars and RPGs.” Omar offered to turn such fantasies to reality, promising to introduce his comrades to an arms dealer and giving them a list of weapons he could procure.

The recordings stretched out over a month, during which Omar badgered defendant Serdar Tatar to get him a map of Fort Dix. Tatar eventually did – but not before he called Philadelphia police to report being pressured for the map and voiced concern that it could be terror related. [24]

Without the FBI’s agents provocateurs, there might never have been a plot or weapons. Transcripts record some defendants explicitly rejecting violence. In a conversation recorded in April, 2007, Dritan Duka rebuffed Bakalli’s appeals for violent action. “We are good the way we are,” he tells him. “We are not going to kill anyone. Even if we kill anyone, you can’t run away. They will catch you right away.” But this did not deter the informers. At some points, the defendants seemed too scared to do anything. When they were supposedly shopping for weapons, one defendant worried that “as Muslims, if we get caught, we all get sent away to f...ing Guantanamo Bay for ten years with no court date.” [25] Nevertheless, several defendants were caught on tape talking callously about killing as many soldiers as they could in a fantastic assault on the Fort. FBI arrested the six after the Duka brothers bought seven high-powered rifles in a deal set up by Omar.

“Many in the Muslim community will see this as a case of entrapment,” said Jim Sues, executive director of the New Jersey chapter of the Council on American-Islamic Relations (CAIR), who attended the trial. “From what I saw, there was a significant role played by the government informant.” [26] Dr. Ian Lustick, political science professor at the University of Pennsylvania, notes that, Ever since 9/11, national, state and local authorities have tried with enormous resources to find, prosecute, and punish Muslim terrorists inside the United States. The result has been an increasingly embarrassing string of trumped-up charges that trigger much War on Terror warrior chest-pounding, and screaming, terrifying headlines for weeks following the arrests and indictments. Then, months or even years later, when evidence is put before juries and the public, we find that the real “perpetrators” were the paid government informants, seeking profit by inciting and enabling cheap talk and any acts they can produce by gullible, emotional and foolish suckers. [27]

The Impact on Mosques or Movements

Whether in a mosque or a movement organization, informants achieve the same results: demoralization, helplessness, cynicism, and immobilizing paranoia. After Brandon Darby admitted spying on his friends, Lisa Fithian told Democracy Now, “We feel traumatized. We feel as if somebody that we thought actually had good intentions and cared for this community has been a lie.” Conventional invasions of privacy are alienating and even dehumanizing. But government surveillance goes further, tampering with the very group dynamics through which political change is brought about. [28]

According to a recent study by sociologists Amory Starr and Luis Fernandez, government surveillance causes activists and citizens to fear participation in completely legal events and to be reluctant to donate to organizations, sign petitions, and receive newsletters. Civic participation is cut back. Allies such as churches will abandon groups under surveillance. Perceiving an increase in government repression, some activists quit entirely. Those who remain active find an organizing culture that was once open is replaced with a “security culture,” complete with reduced discussion, less note-taking (since it makes people look suspicious), and more secretive planning. A broad perception is created that activists’ political work is marginal, criminal, or suspicious. [29]

Inevitably, surveillance and even the fear of surveillance on the part of those not actually monitored produce a pervasive self-censorship. One activist described the effect: “I had to learn not to welcome people and not give out information . . . I’m interested in community building, and then you’re taught to be suspicious and not welcome people; it’s antithetical to your theory of change.” [30]

When a person’s politics come under hostile investigation by a secret police unit in a country like the United States that boasts of its freedom, it is traumatic, to say the least. The undercover character of the investigation, the assumed guilt of the person, the denial of an opportunity to answer any charges and confront the accuser, can all be shattering. People are made even more vulnerable by the secrecy of the probe and the knowledge that government may maintain a file on them for the rest of their lives. [31] The hallmarks of a security culture are exclusion, wariness, withholding information, and avoiding diversity. As Starr and Fernandez report: “It’s hard to build when you’re suspicious.” [32]

The same is true for Muslim communities – it is harder to organize if you are wary about others. Through the reckless use of informants, the government has actively cultivated distrust in both activist and targeted populations.  “It gives you a little bit of apprehension about who you trust,” said Omar Turbi of the Islamic Center of Irvine. “Makes you think twice about what you say; what if people misunderstand you?” Hussam Ayloush, Executive Director of CAIR in Anaheim, added, “Some average Muslims interested only in praying are avoiding mosques for fear of somehow being monitored or profiled. Everybody is afraid, and it is leading to an infringement on the free practice of our religion.” [33]

Not only is freedom of religion being chilled, but the government’s use of informants is alienating Muslim Americans. As recently as this spring, allegations of widespread infiltration of mosques led several Muslim and Arab civil rights and community organizations to call for ending ties with law enforcement. [34] David Cole notes that “when law enforcement and intelligence officials treat a wide cross-section of the Arab and Muslim community as suspect largely by virtue of their ethnicity or religion, Arabs and Muslims will be less likely to cooperate with authorities and provided needed information.” [35] CAIR, the largest Muslim group in the country, had played an important role as liaison between the agency and Muslim communities.

Do Informants Make People Violent?

A team of behavioral scientists paid by the U.S. Department of Homeland Security is studying what turns radicals into violent extremists. But what about the influence of highly motivated informants? Paid informants are highly intrusive, aggressive, and potentially provocative. The ability of informants to neutralize democratic change and disrupt communities should raise concerns about whether pre-emptive policing is worth its social and political costs. As civil rights lawyer Frank Donner said, sizing up the surveillance through the 1970s, “under the warrant of protecting the democratic process from disruption and violence, the intelligence state is seriously jeopardizing it.” [36]

When Maryland activists learned that a state trooper infiltrated dozens of social justice groups over a fourteen-month period, they banded together with the ACLU and Defending Dissent Foundation to urge passage of a state oversight bill. [37] Social justice groups, including animal rights and environmental activists, must strengthen ties with Muslim, Arab, Middle Eastern, South Asian, and immigrant groups facing infiltration to demand constraints on how and when informants may be used to spy on Americans. Demands should include the use of less intrusive means of surveillance when a crime is suspected; independent oversight to ensure better supervision and training related to the use of informants for legitimate law enforcement purposes; and a ban on compiling dossiers on individuals and groups based solely upon their political, social or religious activities and beliefs. At a minimum, progressives must insist on re-establishing the protections instituted after the disastrous COINTELPRO programs, requiring suspicion of criminal activity as a threshold for government spying.

These are all in the best interests of the government, not just its citizens. In the long run, the government risks losing crucial support and legitimacy when its investigative tactics even appear to cross the line into provocation and unlawful investigation of protected First Amendment activities.

Candidate Obama explicitly invited Americans to mobilize as a counterweight to the “undue influence of the lobbyists” who “stand in our way.” [38] “I'm asking you to believe,” he said, “not just in my ability to bring about real change in Washington; I'm asking you to believe in yours.” For that energy and enthusiasm to coalesce into an organized political force, the Obama administration must rein in domestic intelligence practices that disrupt communities and discourage activism.