COINTELPRO - Counter-Intelligence Programs

The Birth of COINTELPRO

In the 1960s, the, as dissent against the Vietnam War increased, the FBI formed the provate Secret Army Orgamization as part of its counterdissident COINTELPRO program. The group broke into offices and terrorized journalists, professors, and other dissenters. In Chicago the FBI directed the Legion of Justice to vandalize the offices of the antiwar movement. In the 1980s, as dissent against the Reagan administration's policy in Central America grew; the FBI and National Security Council utilized the World Anti-Communist League and other private groups to harass dissenters and Central American refugees.

The SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS
WITH RESPECT TO
INTELLIGENCE ACTIVITIES UNITED STATES SENATE

The Committee's investigation showed that Army intelligence agents had been in contact with the leader of the Legion of Justice on several occasions in regard to obtaining information on left-wing groups. Army agents insisted, however, that they did not realize that their source was a leader of the terrorist group, nor that the information he was offering the Army had been stolen.

Former members of the terrorist group told the Committee that from 1968 until 1970 "military intelligence" had directed and helped finance their activities against left-wing groups in Chicago. They also alleged that the Army had supplied tear gas, grenades, and bugging devices to be used against left-wing groups. Finally, they suggested that Army intelligence had received a film and various documents stolen by the Legion from left-wing organizations.

The Military Intelligence Group supplied grenades to the Legion of Justice; did they also supply them with cyanide?

The Church Committee learned that beginning in the 1950s, the CIA and FBI intercepted, opened and photographed more than 215,000 pieces of mail by the time the program called "HT Lingual" was shut down in 1973. This program was all done under the "mail covers" program. A mail cover is when the government records without a warrant or notification all information on the outside of an envelope or package, including the name of the sender and the recipient.

The Church report found that the CIA was zealous about keeping the Postal Service from learning that mail was being opened by government agents. CIA agents moved mail to a private room to open the mail or in some cases opened envelopes at night after stuffing them in briefcases or coat pockets to deceive postal officials.

On May 9th the Church Committee decided to call acting CIA director William Colby. That same day Ford's top advisers (Henry Kissinger, Donald Rumsfeld, Buchen, and John Marsh) drafted a recommendation that Colby be authorized to brief only rather than testify, and that he would be told to discuss only the general subject, with details of specific covert actions to be avoided except for realistic hypotheticals. But the Church Committee had full authority to call a hearing and require Colby's testimony. Ford and his top advisers met with Colby to prepare him for the hearing.

The Ford administration, particularly Rumsfeld, was concerned about the effort by members of the Church Committee in the Senate and the Pike Committee in the House to curtail the power of U.S. intelligence agencies. According to Frontline:

"They were very specific about their effort to destroy American intelligence [capabilities]," remembers Robert Ellsworth, a U.S. diplomat. "It was Senator Frank Church who said our intelligence agencies were 'rogue elephants.' They were supposedly out there assassinating people and playing dirty tricks and so forth...Well, that just wasn't true." Rumsfeld and Ellsworth prevented the committees from dismantling the CIA and other intelligence organizations.

After the Church Committee investigation, Congress told America that unwarranted covert activities against U.S. citizens would be stopped.

The Foreign Intelligence Surveillance Act (FISA) and Foreign Intelligence Surveillance Court (FISC) were inspired by the recommendations of the Church Committee. Today, the FISC oversees requests for surveillance warrants of suspected foreign intelligence agents inside the United States by federal police agencies. Also as a result, Colby was replaced by George H.W. Bush as CIA director.

But clearly, spying by the United States government against her citizens did not stop.

In 1988, President Reagan ordered an internal review of the Federal Bureau of Investigation's surveillance of domestic groups opposed to his Central American policy.

A five-year FBI surveillance campaign came to light with the release of about 1,200 pages of internal bureau files obtained under the Freedom of Information Act by the Center for Constituional Rights. The documents show that more than 100 groups, including church organizations and labor unions, came under scrutiny beginning in 1981 because of their ties to critics of the Administration's foreign policy.

Church is widely quoted in regards to the National Security Agency:

"I don't want to see this country ever go across the bridge... I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return."

Bush Consolidates the National Security State

by Tom Burghardt / March 18th, 2008

The Washington Post revealed Friday that the FBI is continuing its systematic violation of Americans’ Fourth Amendment guarantees against “unreasonable searches and seizures.”

A Justice Department report concluded that the Bureau had repeatedly abused its intelligence gathering “privileges” by issuing bogus “national security letters” (NSLs) from 2003-2006. On at least one occasion, the FBI relied on an illegally-issued NSL to circumvent a ruling by the Foreign Intelligence Surveillance Court to obtain records the secret court deemed protected by the First Amendment.

While the Bush regime claims that the Bureau requires sweeping authority to invade the privacy of American citizens to “protect the homeland” from the Afghan-Arab database of disposable intelligence assets, al-Qaeda, Justice Department Inspector General Glenn A. Fine determined that fully “60 percent of the nearly 50,000 security letters issued that year [2006] by the FBI targeted Americans,” according to Post reporter Dan Eggen.

Despite the FISA court twice rejecting Bureau requests to obtain sensitive private records, determining “the ‘facts’ were too thin” and the “request implicated the target’s First Amendment rights,” the FBI used an NSL as a “work around” and proceeded anyway.

The stunning disregard for all legal norms under the Bush regime is encapsulated by FBI general counsel Valerie E. Caproni’s statement to investigators that “it was appropriate to issue the letters in such cases because she disagreed with the court’s conclusions.”

Fine asserted in the Inspector General’s report that the Bureau has recklessly used NSLs to sweep-up vast quantities of telephone numbers and internet searches with a single request.

Jameel Jaffer, national security director at the American Civil Liberties Union, told Eggen,

“The fact that these are being used against U.S. citizens, and being used so aggressively, should call into question the claim that these powers are about terrorists and not just about collecting information on all kinds of people. They’re basically using national security letters to evade legal requirements that would be enforced if there were judicial oversight.”

Dean Boyd, a Justice Department spokesperson, said Fine’s report “should come as no surprise,” tendentiously claiming new “procedural changes” would ameliorate future problems.

According to FBI Assistant Director John Miller, a former correspondent and anchor for ABC News, NSL requests “are now reviewed by a lawyer before they are sent to a telephone company, Internet service provider or other targets.”

Meanwhile, the Bush administration has quietly stripped the independent Intelligence Oversight Board (IOB) of much of its authority to root out illegal spying activities by the intelligence “community,” Boston Globe journalist Charlie Savage reports.

A little noticed February 29 executive order signed by Bush gutted the board’s mandate to refer illegal activities by an ever-expanding national security state to the Justice Department.

According to Savage,

Bush’s order also terminated the board’s authority to oversee each intelligence agency’s general counsel and inspector general, and it erased a requirement that each inspector general file a report with the board every three months. Now only the agency directors will decide whether to report any potential lawbreaking to the panel, and they have no schedule for checking in.

In other words, we’ll police ourselves. Move along!

The IOB was created in 1976 by president Gerald Ford following congressional revelations that a panoply of U.S. intelligence entities including the CIA, FBI, NSA and DIA, had engaged in illegal domestic spying operations, organized the assassination of foreign leaders, incited coups and other destabilization campaigns around the world to advance US geopolitical goals during America’s anticommunist Cold War jihad.

On the domestic front, the FBI’s COINTELPRO, the CIA’s Operation CHAOS, the NSA’s Project SHAMROCK and the DIA’s domestic operations under control of various Military Intelligence Groups, conducted illegal surveillance of antiwar, socialist, feminist and black liberation groups targeted for “disruption and neutralization” during the 1960s and ’70s.

Federal intelligence agents, in addition to conducting illegal surveillance and infiltration of domestic dissident groups, worked closely with local police “red squads” and actually financed and controlled far-right terrorist gangs such as the Minutemen, the San Diego-based Secret Army Organization and the Legion of Justice in Chicago. Dozens of attacks, including fire-bombings, physical assaults and attempted “targeted assassinations” of vocal antiwar activists and socialist organizers were the result.

Even after the “COINTELPRO era” presumably ended with the 1971 Media, PA raid by the “Citizens Committee to Investigate the FBI” that exposed the Bureau’s illegal operations, abuses continued — and multiplied.

* In 1979, five members of the Communist Workers Party were murdered by a combined Ku Klux Klan/American Nazi Party hit team in Greensboro, NC. The anticommunist death squad had been recruited, organized and led by an FBI infiltrator, Edward Dawson. Dawson was also a paid informant for the Greensboro Police Department.

* During the 1980s, the Committee in Solidarity with the People of El Salvador (CISPES), opposed to U.S. intervention in support of El Salvador’s death squad state, was infiltrated by FBI informants and far-rightists’ associated with Rev. Sun Myung Moon’s Collegiate Association for the Research of Principles (CARP). The ultra-right wing Council for Inter-American Security, working as public relations apologists for death squad leader Roberto D’Aubuisson, compiled a dossier on CISPES that was subsequently passed to the FBI. The Bureau then recommended “active measures” be taken to destroy the group.

* In May 1990, Earth First! leaders Judi Bari and Darryl Cherney were targets of a politically-motivated assassination attempt. A bomb was detonated in their car by unknown assailants. At the FBI’s instigation, Oakland Police immediately arrested the pair and charged them with terrorist crimes. After two months of adverse media publicity targeting the victims, charges were dropped. Twelve years later, the environmentalists were awarded $4.4 million in a federal civil suit when a jury determined the FBI had acted recklessly in their handling of the case. The FBI was doomed when their own forensic lab specialist testified the bomb was under the car seat not on the floorboard behind Bari as Bureau counterterrorism “experts” alleged.

* Counterintelligence Field Activity (CIFA) is another in a long-line of corrupt Pentagon “public-private partnerships.” Initially authorized by president William Clinton’s Presidential Decision Directive (PDD)-75, CIFA and its associated TALON/CORNERSTONE database provide “threat assessments” for DoD facilities and personnel. One CIFA-supported database project, managed by defense giant Northrop Grumman was designated “Person Search.” It was designed to “provide comprehensive information about people of interest.” Its intended use included the ability to search government and commercial databases “to track and monitor activities of suspect individuals.” However, numerous reports and internal memoranda published by the National Security Archive clearly document that CIFA’s military and private contractors systematically conducted surveillance and data-mining operations against the antiwar movement. The Archive has posted 9 TALON reports collected by the 902nd Military Intelligence Group documenting CIFA’s repressive activities. Originally falling under the purview of Stephen A. Cambone, Under Secretary of Defense for Intelligence, CIFA’s intelligence and data-mining programs are being spun-off to private contractors. Cambone has since gone on to an executive position with QinetiQ North America. QinetiQ signed a $30 million Pentagon contract in January 2008 for unspecified “security services” to CIFA, according to CorpWatch investigative reporter, Tim Shorrock.

* CISPES is again a target of the Justice Department. Citing the Foreign Registration Act of 1938, Bush’s DOJ is questioning the organization’s relationship with the Farabundo Marti Front for National Liberation (FMLN), a legal political party in El Salvador. With elections looming in 2009, the Bush regime is terrified that another Latin American country will elect a leftist government, thus further weakening US regional domination and control over its shrinking imperialist empire. The Bush plan? Target solidarity activists in an attempt to smear the group as “foreign agents,” or worse.

The gutting of the Intelligence Oversight Board’s authority to investigate criminal activities by the Bush administration comes at a time when domestic spying operations have multiplied exponentially.

Last week The Wall Street Journal exposed the NSA’s data-mining capabilities and revealed that the agency was targeting millions of Americans in its electronic driftnet and has compiled terabytes of data on every aspect of lives.

While administration apologists claim such sweeping and intrusive spying is necessary to “keep America safe,” if history is any judge of past intelligence abuses these practices are designed instead, to “keep America in line,” ever-fearful and obedient servants of our capitalist masters.

Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. In addition to publishing in Covert Action Quarterly and Global Research, an independent research and media group of writers, scholars, journalists and activists based in Montreal, his articles can be read on Dissident Voice, The Intelligence Daily and Pacific Free Press. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press. Read other articles by Tom, or visit Tom's website.

CIA: The Secret Government

People and Groups Monitored by U.S. Millitary Intelligence Groups

In all, the Army probably maintained files on at least 100,000 Americans from 1967 Until 1970. Among them were: Dr. Martin Luther King, Jr., Whitney Young, Julius Hobson, Julian Bond, Arlo Guthrie, Joan Baez, Major General Edwin Walker, Jesse Jackson, Walter Fauntroy, Dr. Benjamin Spock, Rev. William Sloane Coffin, Congressman Abner Mikva, Senator Adlai Stevenson III, as well as "clergymen, teachers, journalists, editors, attorneys, industrialists, a laborer, a construction worker, railroad engineers, a postal clerk, a taxi driver, a chiropractor, a doctor, a chemist, an economist, a historian, a playwright, an accountant, an entertainer, professors, a radio announcer, business executives, and authors" who became subjects of Army files simply because of their participation in political protests of one sort or another.

In addition, one witness told the Ervin subcommittee that "it was no exaggeration to state that (the Army's files) covered virtually every group engaged in dissent in the United States." Cited as examples were the American Civil Liberties Union, the National Association for the Advancement of Colored People, the Ku Klux Klan, the Congress on Racial Equality, the Urban League, the Womens Strike for Peace, the American Friends Service Committee, the Citizen's Coordinating Committee for Civil Liberties, the Southern Christian Leadership Conference, Ramparts, The National Review, Anti-Defamation League of B'nai B'rith, National Committee for a Sane Nuclear Policy, the John Birch Society, Young Americans for Freedom, Clergy and Laymen Concerned About the War, Business Executives Move to End the War in Vietnam, and the National Organization for Women, among others.

619 F.2d 641

6 Fed. R. Evid. Serv. 75

SOCIALIST WORKERS PARTY et al., Plaintiffs-Appellees, Cross-Appellants,
v.
Joseph GRUBISIC et al., Defendants,
and
Bernard Carey, Deponent-Appellant, Cross-Appellee.

No. 79-1406.

United States Court of Appeals,
Seventh Circuit.

Argued Oct. 24, 1979.
Decided April 15, 1980.

Lance Haddix, Chicago, Ill., for plaintiffs-appellees, cross-appellants.

John A. Dienner, III, Asst. State's Atty., Chicago, Ill., for deponent-appellant, cross-appellee, Carey.

Before CASTLE, Senior Circuit Judge, and PELL and TONE, Circuit judges.

PELL, Circuit Judge.

Bernard Carey, State's Attorney for Cook County, Illinois, appeals from an order of the district court requiring him to produce the transcripts of the March 1975 Cook County Grand Jury 655. This court held that it has jurisdiction of this appeal and the plaintiff's cross-appeal in a per curiam decision dated August 7, 1979. Socialist Workers Party v. Grubisic, 604 F.2d 1005 (7th Cir. 1979). The only issue before us, therefore, is the propriety of the district court's disclosure order.

The plaintiffs filed this civil rights action in federal court alleging victimization for their political views during the years 1969 and 1970 by a right-wing, paramilitary organization known as the Legion of Justice. This pattern of harassment allegedly took place as part of a conspiracy with members of the Chicago Police Department and the 113th Military Intelligence Group of the United States Army.

Discovery in this action began in February 1978. The plaintiffs' attempts to depose defendant members of the Chicago Police Department and Legion of Justice assertedly were frustrated by the evasiveness of the witnesses. Earlier, in November 1975, the Cook County Grand Jury 655 issued a report on the results of its investigation of illegal police activities which said in part:

The Chicago Police Department's failure to assist this Grand Jury, seemed to us to be an attempt to frustrate our investigation. The Department's attitude and conduct surprised and disappointed this Grand Jury.

The evidence has clearly shown that the Security Section of the Chicago Police Department assaulted the fundamental freedoms of speech, association, press and religion, as well as the constitutional right to privacy of hundreds of individuals.

One group operating during this period was an organization known as the Legion of Justice, a now defunct militant organization which advocated violence as a means of obtaining its objectives. There is no question that some members of the Security Section (of the Chicago Police Department) maintained a close working relationship with the Legion of Justice. Our conclusion is not based solely upon the testimony of former members of the Legion of Justice, but rather on the totality of evidence presented to the Grand Jury.

Portions of the transcript of these Grand Jury proceedings were released during the state criminal trial of a member of the Legion of Justice. Included in the released portion is the testimony of three defendants in this case, some of which contradicts their current deposition testimony, and some of which supports the plaintiffs' theory of recovery.

Bernard Carey is not a party in this case, but was served with a subpoena duces tecum requesting him, as State's Attorney, to produce records and transcripts of the state grand jury proceedings. Carey moved to quash this subpoena, and the plaintiffs filed a cross-motion to order production of these materials. On April 3, 1979, the district court ordered Carey to turn over the materials to the plaintiffs. The district court's April 3 order said in pertinent part:

Plaintiffs have demonstrated that the evidence presented by witnesses who testified before the extended March 1975 Cook County Grand Jury 655 is otherwise unavailable to plaintiffs from other sources and is relevant to refresh the recollection of or to impeach recalcitrant witnesses. Certain grand jury testimony voluntarily released by the city defendants is inconsistent with discovery in this case. . . .

Under these circumstances, the court finds that the plaintiffs have demonstrated a compelling necessity with sufficient particularity for discovery of the grand jury transcripts. . . .

This order was subsequently modified on April 27, 1979 to permit Carey to

produce immediately that portion of the subpoenaed materials he thinks should be produced in the public interest and submit to the court the balance of the materials for a determination of whether, in fact, they ought not be disclosed to plaintiffs.

The April 27 order was entered after the commencement of the appeal from the original order of April 3. The April 27 modification is before this court pursuant to our order of September 5, 1979 remanding this case for the limited purpose of permitting entry of the April 27 modified order, which entry occurred on September 21, 1979. It is from this modified order that the plaintiff-appellee has cross-appealed. We need not at this time reach the issue whether the district court's order is too broad or not broad enough in its scope because we hold that in the circumstances of this case, notions of comity between the state and federal courts require that the plaintiffs first seek disclosure in the state court with supervisory powers over the grand jury.

<snip>

In the event the plaintiffs are unsuccessful in obtaining disclosure in the state court, the federal district court very well may have to take custody of the grand jury materials and rule on specific requests for disclosure, taking into account the need for secrecy developed during the state disclosure proceeding. See id., (approving procedure whereby the district court supervising the grand jury made a written evaluation of the need for continued secrecy and a determination whether the evidence before it justified disclosure and then forwarded materials to the district court where civil case was pending); Sarbaugh, supra, 552 F.2d at 773 n. 5. Should the district court ultimately determine that disclosure is appropriate, the State's Attorney should be notified prior to disclosure, and the district court should stay disclosure for a time sufficient to preserve the secrecy of the materials pending an appeal by the State.5

Accordingly, the order of the district court is reversed and the cause remanded for proceedings not inconsistent with this opinion. Costs shall be awarded to the deponent-appellant.

Iberia Hampton et al., Plaintiffs-appellants, v. Edward v. Hanrahan et al., Defendants-appellees.united States of America Ex Rel. Honorable Joseph Sam Perry, Appellee, v. Jeffrey H. Haas, Attorney at Law, Contemnor-appellant.united States of America Ex Rel. Honorable Joseph Sam Perry, Appellee, v. G. Flint Taylor, Attorney at Law, Contemnor-appellant

United States Court of Appeals, Seventh Circuit. - 600 F.2d 600

Argued Aug. 14, 1978.Decided April 23, 1979.As Amended April 30, 1979.Rehearing and Rehearing En Banc Denied Sept. 12, 1979

The national COINTELPRO program adopted a variety of tactics which seemingly were aimed not at preventing violence, but at neutralizing the BPP as a political entity. These tactics included efforts to discredit the BPP among "liberal" whites, the promotion of violent conflicts between the BPP and other groups,⁷ the encouragement of dissension within the BPP, and the disruption of the BPP's Breakfast Program for Children. Memoranda from Washington directing the local employment of such tactics were transmitted to Johnson, Robert Piper (after March 1969 the chief of the Racial Matters Squad of the Chicago FBI which was responsible for FBI programs regarding the BPP), and Roy M. Mitchell (special agent assigned to the Racial Matters Squad in Chicago).

The evidence presented by plaintiffs indicates that when the local chapter of the BPP opened in Chicago in November 1968, the Chicago FBI was quick to implement the tactics mandated by Washington. One of the key figures in the Chicago FBI's program to disrupt the Panthers was William O'Neal. O'Neal was a paid FBI informant whom Mitchell originally had contacted while O'Neal was incarcerated in the Cook County Jail. Mitchell recontacted O'Neal and instructed him to join the BPP. O'Neal walked into the BPP office at 2350 West Madison Street the day it opened in November 1968 and joined, soon becoming the local chief of security for the Panthers.

The FBI had other means of monitoring the BPP in Chicago. Johnson and Piper requested and received authorization for a warrantless wiretap on BPP headquarters. And in June 1969 the FBI, based on information provided by O'Neal, executed a fugitive arrest warrant at Panther headquarters. No shots were fired; however, several Panthers were arrested for harboring a fugitive and weapons were seized. All the charges against the arrested Panthers ultimately were dropped.

The FBI in Washington urged its offices implementing COINTELPRO to develop liaisons and working relationships with local law enforcement officials to comply with the FBI's mandate to provide information to these agencies as well as to help effectuate the FBI's counterintelligence goals. In Chicago the FBI had an ally which also was quite concerned about the growth of militant black groups. In November 1968 Edward V. Hanrahan was elected Cook County State's Attorney. Hanrahan appointed Richard Jalovec an Assistant State's Attorney and made him the chief of the office's Special Prosecutions Unit (SPU). By April 1969 the primary focus of the SPU was on black street gangs. About this same time Mitchell contacted Jalovec and told him that the FBI had an informant, O'Neal, within the Chicago BPP.

Before June 1969 the State's Attorney's Office had relied on its own police force which it used only for routine matters. At that time, however, the State's Attorney's Office requested that nine Chicago police officers Groth, Davis, Carmody, Jones, Ciszewski, Howard, Marusich, Kelly, and Joseph be assigned to the SPU. Groth was next in command after Jalovec, to whom all the officers reported.

Tension and hostilities between the BPP and local law enforcement agencies in Chicago escalated throughout the summer and fall of 1969. Shooting incidents involving Chicago police and Panthers occurred at the BPP headquarters in July and October. On July 21 and October 3 the BPP headquarters was ransacked by Chicago police. And on November 13, 1969 two Chicago policemen were killed in an ambush-shootout with Jake Winters, who was closely associated with the BPP.⁹ Winters also was killed and seven other Chicago police officers were wounded.

After his meeting with O'Neal on November 19, Mitchell met with members of the Chicago Police Department's Gang Intelligence Unit (GIU) and conveyed to them the information contained in the floorplan. Mitchell also told them that a large quantity of weapons was stored at the apartment, including the sawed-off shotgun and the stolen police gun.¹⁰ Piper was aware of the transfer of this information to the GIU and at a meeting with Johnson informed him of the same.¹¹ On the basis of this information, the GIU planned a raid on the apartment to seize the weapons.

This same day, on December 3, 1969, Johnson and Piper approved a counterintelligence memorandum sent to the Director in Washington. The memorandum stated that local police¹⁴ planned "a positive course of action" based on the information regarding the West Monroe Street apartment which the Chicago FBI had provided local law enforcement officials.

The fourteen raiders met at the State's Attorney's Office for a briefing at 4:00 a. m. the morning of the raid. Groth described the apartment's layout and informed the other officers that it was a BPP dwelling frequented by Fred Hampton. Armed with a machine gun, a sawed-off shotgun, a semi-automatic .30-caliber carbine, and other weapons, they arrived at the apartment at 4:30 a. m. Groth instructed seven officers (the nonshooters) to guard the apartment's exterior. Groth, Jones, Gorman, and Davis approached the front of the apartment while Broderick, Carmody, and Ciszewski circled to the rear door.

Immediately after the raid, the four wounded occupants were taken to a hospital and the three other survivors were incarcerated in Cook County Jail. On the basis of sworn complaints which stated that the plaintiffs fired at the raiders, charges of attempted murder, aggravated battery, and unlawful use of weapons were filed against the survivors. Bond was set for each at $100,000. (Several survivors remained in jail until December 21 when their bond was lowered.)

As the day unfolded, an atmosphere of confusion and tension developed in Chicago's black community. Hanrahan met with the raiders and decided to engage in a series of media activities because "there were no methods of getting the officers' story to the public as effectively." The initial phase began around noon on December 4 when he issued a statement to the press in the presence of Jalovec, Groth, and other raiders. Although aware of conflicting stories, he adopted the raiders' version of the incident and urged the support of the citizens of Chicago for the courageous actions of the police officers. He frequently emphasized his words by pointing to a display of seized weapons and, in particular, to a revolver which he said was "used by Hampton in the course of the attack on the police."

On December 8, amidst the continuing storm of controversy surrounding the raid, Hanrahan called his second press conference. Reading from a prepared statement, he reiterated the raiders' account of the incident and summarily dispelled conflicting reports referred to by reporters. Despite further potential pre-trial prejudice to the survivors' criminal defense, Hanrahan continued to publicize the incident and decided to employ additional media tactics to promote the raiders' version of the incident. At his behest the Chicago Tribune published an exclusive interview with the raiders on December 11. The article stated that the occupants initiated the firing and contained photographs provided by the State's Attorney's Office which showed holes in walls and doors of the apartment which purportedly represented shots originating from guns fired in the bedrooms. At trial a reporter for the newspaper testified that his sole source of material for the article was the information obtained from Hanrahan, Jalovec, and the raiders during an interview.

The following day a reenactment of the raid was filmed by CBS-TV in Chicago. Hanrahan asked the broadcasting company to film the story for television without editing by CBS. A set was constructed at the State's Attorney's Office, and Jalovec assisted the production directors. All the raiders were present for the event and those who participated in the reenactment were informed that the film could be cut as the raiders desired. To insure the production's conformity with his previous press statements, Hanrahan visited the set during portions of the taping. The broadcast was aired the same evening. Hanrahan held his final press conference the following day. When confronted with questions from reporters that focused on the photographic misrepresentations contained in the Chicago Tribune article, Hanrahan again confirmed the accuracy of the officers' stories without investigating the conflicting reports. At trial Hanrahan testified that he believed his publicity efforts were necessary to maintain the integrity and reputation of law enforcement in the community.

The role of the federal defendants continued in the post-raid period. Mitchell, Piper, and Johnson testified that they first learned of the raid through the news media the morning of December 4. Later that day, they received information from the State's Attorney's Office that Hampton's body had been positively identified. Johnson then approved the transmission of an "urgent" teletype to FBI headquarters in Washington reporting the raid. Pursuant to Piper's instructions, Mitchell spoke with Jalovec and Groth at the State's Attorney's Office to obtain more details. At this meeting Jalovec asked Mitchell whether he would be concerned if "it got out" that Mitchell was the source of the preliminary information for the raid.

The FBI continued to monitor BPP activities through O'Neal's assistance, and it was during this early post-raid period that FBI officials wrote a series of memoranda highlighting their involvement in the raid. Piper sent a memorandum to Bureau headquarters on December 11 which requested a bonus for O'Neal. The request was "justified" on the grounds that the raid was based on information furnished by O'Neal and that this information was not available from any other source. Shortly thereafter, a three hundred dollar bonus was approved. On December 12 Mitchell wrote a memorandum which stated for the first time that federally illegal weapons had been present in the apartment a few days prior to the raid. The memorandum also noted that the FBI communicated with the State's Attorney's Office around the first of December regarding the illegal weapons. Mitchell's memorandum was not sent to the Washington office of the FBI but instead was placed in the Chicago FBI's "O'Neal" file which also contained the floorplan that had been furnished to Mitchell prior to the raid.

A series of investigations and inquests followed the December 4 raid. On December 12 Hanrahan requested Chicago Police Superintendent Conlisk to initiate an internal police investigation. Internal investigations generally were conducted by Ervanian and Kukowinski, director of the Internal Investigations Division of the Chicago Police Department (IID) and head of the Excessive Force Unit of the IID, respectively. This investigation, however, was placed under the direct supervision of Mulchrone, a deputy police superintendent. Meade, a police department legal advisor, was placed in charge of the investigation by Mulchrone. Meade designed a few questions based on Groth's official report and typed in answers which, as Mulchrone stated, "would justify the use of entry and force by the officers." Ervanian and Kukowinski were informed of the limited nature of the inquiry and of Meade's and Mulchrone's decision that all of the raiders' statements were to be identical. Although dismayed at the proposed procedures, neither protested. Copies of Meade's material were distributed to Assistant State's Attorneys Sorosky and Meltreger who were advising the officers at the December 16 questioning. Jalovec, Kukowinski, Ervanian, Mulchrone, and Meade also were present at the interviews. Prior to the commencement of the inquiry, Groth was shown the prearranged questions and answers and then requested to give his account of the raid. Thereafter the other raiders met privately with Jalovec and Sorosky and were shown copies of both the Meade material and Groth's statement. During the interviews each officer was asked substantially the same four questions:

Does Groth's statement describe what occurred at the apartment?

Did you use excessive force in effecting these arrests?

Did other officers use excessive force in effecting these arrests?Is there anything you wish to add?

Each of the raiders answered "yes" to the first question and "no" to the next two. They gave a varied assortment of immaterial answers to the fourth question.¹⁶ The survivors were asked to participate in the IID investigation by filing complaints, but declined.

A federal grand jury had been convened in December 1969 to investigate whether the occupants' civil rights had been violated. Jerris Leonard, Assistant Attorney General in charge of the Civil Rights Division, was assigned by the Department of Justice to present evidence to the grand jury, and Leonard Treviranus served as case agent for the grand jury on behalf of the FBI.¹⁷ Johnson instructed Treviranus that all requests for evidence from the grand jury and Leonard were to be channelled through Johnson. Additionally, Johnson and Leonard met throughout the investigations and Leonard revealed to Johnson what information he was seeking for presentation to the grand jury.

101

The grand jury began to hear evidence in January 1970 and Johnson was requested to appear before it to testify concerning the June 1969 raid on the BPP headquarters. Treviranus sent a memorandum to FBI headquarters in Washington which assured that Johnson's testimony would not relate to "the circumstances" of the December 4 raid, insuring that "no exposure" to the Bureau would occur. Leonard, however, informed Johnson that the grand jury was interested additionally in what information the FBI had supplied to local authorities prior to the raid. Johnson asked a member of his staff to brief him on the information that had been disseminated. Although Johnson knew Mitchell had provided information about the BPP to local authorities, he asked neither Mitchell nor Piper about these communications. On February 11, 1970 Johnson testified before the grand jury. He stated that the Chicago office of the FBI was not aware that illegal weapons were in the apartment prior to the raid. Additionally, Johnson failed to mention that a floorplan was furnished by Mitchell to the State's Attorney's Office. On the same day that Johnson testified, Mitchell wrote the FBI Director on behalf of the Chicago office for authorization to continue paying O'Neal as an informant. In the letter Mitchell justified the request, as Piper had justified the earlier bonus for O'Neal, by reminding headquarters that O'Neal had provided a detailed floorplan of the apartment, as well as other information, which subsequently "saved injury and possible death to police officers" participating in the December 4 raid.

102

Neither Mitchell nor Piper testified before the grand jury. The Racial Matters Squad, however, which was under Piper's supervision, regularly provided Treviranus with selective intelligence information on the BPP and the raid. Included in this information flow were Bureau files on the survivors, a report on Hampton's activities one week before the raid, and Mitchell's November 21 weapons memorandum listing the legally purchased weapons reported by O'Neal to be in the apartment. Conspicuously absent was information on the floorplan and Mitchell's December 12 memorandum concerning the presence of illegal weapons in the apartment prior to the raid. O'Neal was never made available to testify before the grand jury nor to be interviewed by the prosecutors in charge of the grand jury despite Bureau instructions issued in September 1969 that efforts should be made to convince informants to testify about information they had furnished concerning the BPP.

103

During the first weeks of February 1970, Zimmers conducted exhaustive tests of the ballistics evidence and weapons involved in the raid. Zimmers concluded that the spent shells identified in the Sadunas report as having been fired from Brenda Harris' gun actually had been fired from Officer Ciszewski's weapon. Sadunas was informed of this discrepancy in mid-February. Upon receiving the evidence and weapons from the FBI, Sadunas retested the shotshells and test-fired Ciszewski's gun for the first time. His findings confirmed Zimmers'. Several weeks later Sadunas appeared before the federal grand jury and testified to his previous error. Hanrahan, who was in charge of the state prosecution, learned of Sadunas' error in March. He discussed the corrected findings with the raiders and asked if they wanted to make further statements. Hanrahan and the raiders decided that the raiders should testify before the federal grand jury to relate their accounts of the incident. At the same time Hanrahan was considering dismissal of the state indictments.

104

According to Leonard, Hanrahan, the raiders, and other police officers eventually became "targets" of the federal grand jury investigation. Hanrahan was warned of this several weeks before he was requested to testify. Subsequently Leonard discussed the potential indictments with Johnson and informed him that "an arrangement" had been made between Hanrahan and him, whereby the raiders' testimony would be given to Hanrahan after they testified and that Hanrahan would drop the indictments against the survivors within thirty days. Leonard hoped that the survivors would then testify before the federal grand jury. Shortly after this discussion, Johnson informed Treviranus of the "arrangement" and, on the basis of this conversation, Treviranus sent a teletype to FBI headquarters on April 8. The teletype stated that the dismissal of the local indictments would be based on the change in Sadunas' testimony.¹⁸ Enclosed with the teletype was a draft of the first chapter of the grand jury report.

105

Groth and the other raiders began their testimony before the grand jury on the same day that Treviranus dispatched the teletype and the report. Groth was not requested to reveal the identity of his informant even though Leonard's assistants had requested this information from the State's Attorney's Office and Groth in early February. At that time the State's Attorney's Office informed the assistants that "Jalovec was informed by a federal employee: (and) Groth may consider course of action if asked before the Grand Jury." The raiders refused to conform their testimony to the ballistics evidence and physical evidence shown them by the federal prosecutors prior to their appearance.

106

On May 4 Hanrahan appeared before the grand jury and testified that it was his intention to dismiss the indictments based on the revised Sadunas report. Four days after Hanrahan's appearance, the indictments against the survivors were dropped. The Government sought the seven survivors' testimony before the grand jury on May 11; however, the plaintiffs refused to testify. No indictments were returned and the federal grand jury was discharged on May 15.

107

In June 1970 a special prosecutor was appointed by the Chief Judge of the Criminal Division of the Circuit Court of Cook County to inquire into the police and Black Panther actions on December 4. A special state grand jury was convened in December 1970 which returned indictments against Hanrahan, Jalovec, Mulchrone, Meade, Sadunas, Koludrovic, Groth, Broderick, Carmody, Ciszewski, Corbett, Davis, Gorman, and Jones for conspiring to obstruct justice. On October 25, 1972 these defendants were found not guilty after a bench trial in the Criminal Court of Cook County.

139

On the basis of the post-trial facts, plaintiffs claim that defendants conspired to cause the false arrest, imprisonment, and prosecution of the survivors of the raid. All defendants are named as participants in the post-raid conspiracy. As a further result of the conspiracy, plaintiffs allege that the Cook County criminal prosecution against them was prolonged to May 8, 1970 and that they incurred unnecessary legal expenses and suffered mental anguish and injury to their reputations. Relief is sought under sections 1983 and 1985(3).

140

A. Hanrahan, Jalovec, the raiders, and the federal defendants

141

We hold that plaintiffs have presented sufficient evidence to establish a prima facie case that Hanrahan, Jalovec, the raiders, and the federal defendants participated in a post-raid conspiracy to harass the survivors of the raid and to conceal the facts surrounding the raid, thereby injuring plaintiffs.²⁷

142

On the morning of December 4 several raiders met with Hanrahan and Jalovec to discuss the raid. Mitchell met with Groth and Jalovec the same morning and left immediately prior to Hanrahan's first press conference. From these conversations emerged an allegedly distorted, if not false, account of the raid which justified the officers' actions. In the days that followed, Hanrahan instituted a promotional campaign. Despite their awareness of conflicting stories, Hanrahan, Jalovec, and the raiders continued to circulate reports to justify the continuation of plaintiffs' detention. And it was the raiders' testimony which provided much of the basis for the indictments Hanrahan brought against the survivors.

143

The irregularities in the series of official investigations into the raid also constitute evidence from which there could be found a concerted effort to suppress facts about the planning and execution of the raid and to justify the charges filed against the survivors. For example, at the internal investigation (IID) conducted by the Chicago Police Department, customary procedures were abandoned. Detailed statements normally taken were never obtained. Jalovec and Sorosky, present at Hanrahan's direction, met with the raiders immediately before the raiders supplied their previously prepared, uniform answers to predetermined questions. At the same time, a ballistics report, compiled under pressure from the State's Attorney's Office and several of the raiders, was issued by Sadunas of the Chicago Police Department. Despite its lack of completeness, the report immediately was used to support the raiders' account of the raid, the IID findings, and the Cook County indictments.

144

The concerted effort to suppress facts is further evidenced by the obstruction of the federal grand jury investigation, caused by the failure of the federal defendants to turn over materials sought by the grand jury. The evidence shows that a jury could find that Johnson's testimony before the grand jury was false and misleading and concealed the involvement of FBI headquarters and the roles of Piper, Mitchell, and O'Neal in the planning of the raid. Additionally, Johnson participated in the arrangement between Hanrahan and Leonard whereby Leonard agreed not to obtain indictments against any state officials for their actions with regard to the raid in exchange for the dismissal of the state indictments against the survivors. And during the pretrial discovery in this suit, the federal defendants continued to engage in dilatory and obstructive tactics to conceal evidence of their involvement in the planning of the raid. See infra, pp. 639-642.

145

A jury reasonably could infer that a conspiracy existed to conceal the facts of the raid and to continue an unfounded prosecution against plaintiffs.

187

The police officers who went to 2337 West Monroe Street on December 4, 1969 were acting pursuant to a warrant issued by a Cook County circuit judge. The warrant was supported by an affidavit in which Groth stated that a reliable informant had provided information that illegal weapons were present in the Monroe Street apartment. Groth's complaint for the search warrant further stated that Jalovec told Groth that he too had a conversation with a reliable informant who told him that illegal weapons were stored in the apartment.

188

The plaintiffs seek disclosure of the identity of Groth's informant.³⁷ The plaintiffs contend that only disclosure of the identity of Groth's informant if, in fact, one exists will permit a full inquiry into whether probable cause existed for the issuance of the warrant. If Groth did not have an informant, or his informant did not provide the information contained in the affidavit, or the informant was unreliable, the validity of the warrant would be in jeopardy and plaintiffs' Fourth Amendment violation claims would be strengthened.³⁸ Further, plaintiffs contend that the search warrant was merely a pretext for the raid and that misrepresentations in the affidavit would constitute evidence of a conspiracy to violate the civil rights of the plaintiffs. If Groth did not receive the information contained in his affidavit from a reliable informant, this contention would be strengthened.

189

In his complaint for the search warrant, Groth stated that his informant had been inside the Hampton apartment on December 1 and had seen illegal weapons. The complaint also stated that this informant had provided reliable information which led to two prior, successful raids for illegal weapons and information which led to several convictions. At his deposition five years later, Groth said that this informant had told him about illegal weapons, persons who frequented the apartment, and the layout of the apartment. When asked about the informant's identity and reliability, however, Groth refused to elaborate further upon the information contained in the affidavit, saying that to do so would endanger the lives of other persons.

190

At trial Groth persisted in his refusal to answer questions which related to the identity of the informant. Plaintiffs moved to compel his testimony. The trial judge then held a private, In camera, off-the-record meeting with Groth in which he asked him only one question the identity of his informant. Groth refused to answer, saying that he would maintain his silence even if it would lead to "consequences" for him. On the record the court repeated the question and received the same answer. The court then denied plaintiffs' motion to compel Groth's testimony.

191

The trial court did not permit the development of a record on the questions of Groth's credibility regarding the existence and reliability of his informant and the danger the informant might be subjected to if his identity were disclosed. The court concluded that the reliability of Groth's informant was established by the results of the raid and, therefore, inquiry into his identity was irrelevant. At the end of trial, the judge refused to give instructions to the jury which would have allowed it to decide whether the informant existed and whether information about the informant was relevant to the conspiracy and Fourth Amendment claims of plaintiffs.

196

A considerable amount of evidence was introduced leading to the conclusion that either Groth did not have an informant and merely repeated information he had received from Jalovec in the affidavit for the warrant or that O'Neal was Groth's informant as well as the ultimate source for Jalovec's information. First, Groth had no record of payments to his informant since, according to Groth, the informant's information was provided for advancement in other areas. Groth never elaborated what these incentives were. Further, the similarity of the content and the timing of the information received by Jalovec and Groth is striking: Each said that on December 2 his informant told him about the weapons, inhabitants and visitors to the apartment, the apartment's layout, and the BPP meeting on December 3. And while, as the state defendants correctly indicate, this could mean simply that the reports provided by two different sources were corroborated, the fact that each report was similarly incorrect about the number of sawed-off shotguns in the apartment casts doubt on this explanation. Groth's destruction of all the information he received from his informant, including the floorplan he allegedly constructed based on his informant's description of the apartment, also undermines Groth's claim that he had an independent source. More importantly, Jalovec asked Mitchell after the raid if he cared whether it was disclosed that he was "the source" for the information leading to the raid. And both Piper and Mitchell sent memoranda to the FBI in Washington which said that O'Neal was the only source for the preraid information about the weapons and the apartment.⁴²

200

This case, in which plaintiffs have alleged gross misconduct by federal and state law enforcement officials and have presented serious evidence to support these claims, is of paramount significance. There is a serious factual controversy focusing on the existence or identity of Groth's informant, and a resolution of this controversy is essential to a just adjudication of plaintiffs' claims. Thus, we conclude that the public's interest in encouraging the flow of information to law enforcement officials cannot prevail in this case, and that Groth must disclose the identity of his informant. In order to minimize both the risks to this particular informant and any adverse effects on law enforcement generally, we suggest that the appropriate parties move at the retrial for a protective order to set the terms of this disclosure.

201

Even though the judgments for the defendants must be vacated and the cause remanded for a new trial because of the trial judge's errors in directing verdicts for the defendants, we deem it necessary to discuss a separate issue: the delaying and obstructive tactics of the federal defendants and their counsel in matters of discovery. To demonstrate the importance of the delay and its crippling effect on plaintiffs' case, a full summary must be undertaken. Only for the sake of brevity do we refrain from reciting all the details.

202

In March 1974 a subpoena duces tecum was issued for FBI Agent Roy Mitchell's deposition calling for all information furnished by O'Neal on plaintiffs and the BPP from 1968 through 1970. In April 1974 thirty-four documents were turned over by the defendants. By affidavit the FBI represented that these were the only ones within the scope of the subpoena. Government counsel affirmed this in open court.

203

In July 1974 a subpoena duces tecum was served on Marlin Johnson for FBI files on plaintiffs and the BPP. No documents were produced, and Johnson refused to answer questions on deposition about the FBI's counterintelligence program and the federal grand jury proceedings.

204

In the latter part of 1974 plaintiffs subpoenaed FBI Agent Robert Piper and the Special Agent-in-Charge of the Chicago FBI office, Richard Held, for depositions duces tecum. No documents were furnished. Assistant United States Attorney Arnold Kanter informed the court that he had reviewed the FBI files and found the thirty-four documents already furnished were the only ones that were relevant. Piper refused to answer deposition questions on matters such as the counterintelligence program, wiretaps, and informants.

205

In response to the Held subpoena, Government counsel, in February 1975, delivered a packet of counterintelligence documents to the trial judge for an In camera inspection on the representation that the documents were "irrelevant." Over plaintiffs' protest the judge examined the documents before plaintiffs could be heard on the propriety of the submission. The judge ruled that the counterintelligence information which he had examined In camera was "irrelevant and immaterial." Later it was discovered that among the documents submitted were the Jeff Fort "hit letter;" a memo which applauded the December 4, 1969 raid as a counterintelligence achievement; documents which showed O'Neal to be implementing counterintelligence operations and acting as a provocateur; and a directive from the FBI headquarters in Washington which called for measures to "cripple" the BPP.

206

In March 1975 the trial judge entered an order at plaintiffs' request requiring the production of documents that contained information relating to plaintiffs or the raid. In June 1975 plaintiffs received 193 documents in response to this order.

207

The FBI witnesses continued to refuse to answer any questions on deposition that related to their counterintelligence activities on the BPP. In August 1975 plaintiffs renewed their attempts to subpoena documents from the FBI files. Government counsel resisted and made representations to the effect that plaintiffs had received all pertinent documentary material. The subpoena was denied by the trial judge. Three additional attempts made by plaintiffs prior to trial brought similar results. In fact, the last effort to obtain relevant documents was denied by the judge before Government counsel filed their response.

212

On April 8, three months after the trial began, Government counsel completed the turnover to plaintiffs of the twelve volumes of Hampton files and sixteen volumes of O'Neal files. One of the O'Neal files contained a document written by Piper claiming FBI credit for the December 4 raid and asking that the FBI pay a bonus to O'Neal for his furnishing the floorplan of the apartment and setting up the raid. At that point the Government's entire turnover consisted of fifty volumes of documents, of which plaintiffs had received about six percent before Mitchell's inadvertent reference to the O'Neal document.

213

On April 16, 1976 the FBI revealed to the court and plaintiffs' counsel the existence of 45 additional files in its possession pertaining to the case. On May 6 the Government furnished two volumes of documents relating to plaintiffs.

Among these documents were instructions from the FBI's headquarters in Washington "to destroy what the BPP stood for," to engage informants in thefts of BPP records and documents, to escalate actions against the Panther Breakfast Program for Children and other similar activities, and to combat the adverse publicity of the December 4 raid. Many of these instructions had Piper's and Johnson's initials on them.

214

On May 11, 1976, four months into the trial, the court ordered the production of other FBI files, including the balance of its counterintelligence program file. In response the Government furnished thirteen additional files. These included three volumes of counterintelligence, three volumes relating to federal grand jury proceedings, two volumes relating to the Breakfast Program, and one volume concerning the June 4, 1969 search of the BPP headquarters. In these files were counterintelligence documents which called for the destruction of the Breakfast Program and for the use of local police to harass the BPP for possession of guns. Many of these documents were approved by Johnson, Piper, and Mitchell. On June 14, 1976 the Government furnished the plaintiffs two more volumes of documents; these related to wiretaps on the BPP.

216

It is clear that federal defendants, Johnson, Piper, and Mitchell, and their counsel, rather than promptly furnishing relevant documents as requested, deliberately impeded discovery and actively obstructed the judicial process, thus denying plaintiffs the fair trial to which they were entitled.⁴⁴ Regrettably, the trial judge permitted these tactics. Moreover, he repeatedly exonerated the federal defendants for their derelictions. Instead of applying sanctions on these defendants and their counsel, the court assessed costs against plaintiffs in excess of $26,000 for the Government's time in reproducing the documents which were finally furnished to plaintiffs only under the orders of the court.

217

If there were any doubts about the sufficiency of the evidence when considered under the applicable standard constituting a jury question on liability, the delay of the federal defendants in meeting their obligations to produce relevant documentary material would supply a basis for an inference that plaintiffs were unable to present all the available evidence and thus were denied the opportunity to prove their case. On retrial the court should consider plaintiffs' contention that they ultimately were denied full discovery. Moreover, sanctions should be imposed, pursuant to Fed.R.Civ.P. 37(b)(2), against the federal defendants and counsel representing them at the first trial for repeatedly disobeying court orders to produce documentary material.⁴⁵

220

For the reasons set forth in the State defendants' original motion, their recent motion and in the arguments of counsel for the State defendants and based upon the entire record of this case, the court finds that said counts 15, 16 and 17 should be dismissed.

221

The actual dismissal order was entered July 1, 1977.

222

Prior to the events just described, the district court on April 15, 1977 granted motions for directed verdicts in favor of all defendants except the seven shooters. Later, on June 20, 1977, the court granted directed verdicts in favor of these seven and entered judgment for all the defendants on the basis of the directed verdicts. The court's order reads:

223

It is Ordered and Adjudged that the Court finds as a matter of law that the plaintiffs and each of them have failed to sustain their burden of proof on the issues of each and every count remaining in the plaintiffs' amended complaint, accordingly the defendants' motion for a directed verdict in favor of each and every defendant and against each and every plaintiff is granted and judgment is entered herein together with costs against each and every plaintiff and in favor of each and every defendant.

326

PELL, Circuit Judge, dissenting in part, concurring in part.

327

It has been difficult for me to place this case in a proper perspective, but following the effort to do so I am convinced that the opinion written by Judge Swygert reaches an incorrect result in a substantial number of instances. Therefore while concurring in that opinion wherein it affirms the district court's judgment and with regard to the reversal as to one group of defendants on one issue, I otherwise respectfully dissent, all as set forth hereinafter.

331

The remaining five plaintiffs, designated for convenience as the Anderson plaintiffs, includes the Administratrix of the Estate of Mark Clark and two more of those who were wounded. While all of these people no doubt will not spurn any recovery that might be made in their behalf, I come away from an examination of this case with the distinct sensation that the Anderson plaintiffs' lawyers, although equally willing for and desirous of a substantial money recovery, are fervently bent on attempting to demonstrate the existence of a widespread and sinister conspiracy among top law enforcement officials, state and federal, serving in the Chicago area in 1969, to kill Fred Hampton and other functionaries of the Black Panther Party. Their wide-ranging and vociferous charges indicate that the conspiracy was racially motivated to put down and destroy people associated with a political movement. But, the tenor and scope of their assertions is best illustrated by these quotations from their brief's Introduction and Statement of the Case:

332

In response to this challenge to white supremacy, the F.B.I. mobilized to stop this political movement. They implemented and refined illegal, unconstitutional counterintelligence tactics designed to neutralize and destroy these organizations with special, violent emphasis on those leaders and organizations such as the B.P.P. who sought the liberation of black people. This program, implemented and run in Chicago by the F.B.I. Defendants, solicited and obtained the willing assistance of State's Attorney EDWARD HANRAHAN who was himself anxious to gain political prominence by exploiting racism. HANRAHAN and his special political police force, in conspiracy with these F.B.I. Defendants, planned and executed the murderous December 4th raid at the apartment of the Plaintiffs. . . . After Hampton and Mark Clark were killed, a concentrated effort was launched by City, County and Federal officials to cover up both the true nature of the political assassination as well as their involvement in it. They manipulated the judicial system at every turn to accomplish this end. HANRAHAN used his power as State's Attorney to falsely charge the survivors, and to prosecute them for six months to mask his culpability and that of his police. Richard Nixon's Justice Department, in cooperation with the F.B.I., used a Federal Grand Jury investigation to cover up the F.B.I. involvement in the raid and subsequently entered into an agreement with HANRAHAN which saved him from indictment in exchange for HANRAHAN's continued silence concerning the F.B.I. involvement.

The Justice Department then attempted to put the controversy to rest in the public eye by releasing a report which was critical of both the police and the Panthers. . . . By the fall of 1975, pretrial discovery, because of Defendants' obstructions, served little purpose except to frustrate the search for truth, the Court's prejudice having similarly frustrated this search. . . . January 1976, the Plaintiffs went to trial in front of a Judge determined to defeat their claims and with much of the evidence which proved the F.B.I. Defendants' involvement in the raid still being concealed by the Defendants and their attorneys. . . . After 15 months of treachery to the Plaintiffs' claims the District Court, four days before the mayoral primary in which HANRAHAN was a candidate, directed verdicts for all the Defendants except those seven raiders who admitted to firing their weapons at the apartment. . . . Plaintiffs appeal, but they seek not only reversal of these grossly unfair and illegal verdicts, but sanctions and fees against the parties and their attorneys who knowingly obstructed justice in the Court below, and appropriate orders to assist them to finally obtain the discovery to which they are entitled, and strong rebuke to the trial Court who completely abused his power, trammelled the Constitution and nullified the Civil Rights Act.

333

Thus it seems although they are not charged as unindicted co-conspirators that the entire officialdom of government from the President to the federal district judge were intent upon bringing about the elimination of a small group of people who simply desired to achieve the desirable and constitutionally required status of racial equality.

337

I do not mean to suggest that the multi-page portions of the brief from which the above extracts were taken is not replete with specific instances purporting to show the asserted unbridled bias and prejudice of the trial judge. A close analysis of these supportive instances reflects, however, that many of them pertained to rulings in evidentiary matters as to which the trial judge is accorded substantial discretion. Any trial lawyer of any competence is aware that he doesn't prevail on every ruling of the court but that his failure to do so is no ground for a legitimate claim of bias and prejudice. Such a lawyer also is sufficiently perceptive to realize the scope of the judge's rulings and that to attempt another tack on the same forbidden subject may well occasion a rebuke. Nevertheless, the Anderson plaintiffs' trial counsel pursued such a course and then when rebuked claimed this to be another example of the unfairness of the judge. I find the claim of unfair limitation of the presentation of their case to be virtually frivolous. A year and a half of trial and 37,000 pages of testimony scarcely is supportive of a restrictive evidentiary limitation. Nor can I find any real indication in this record that the ebullient trial counsel were intimidated by the judge. In this circuit, voir dire of the jury is conducted by the trial judge. Yet in this civil case, failing to get special treatment, the plaintiffs claim they were treated unfairly.

338

If there is merit in claims of incorrect judicial rulings, those rulings should speak for themselves in requiring reversal and they do not need to be sandwiched in a desperate collage of conclusory overstated characterizations. Even though it often might seem that heaping abuse on public officials is now a favorite public pastime, it does appear to me that the proper place for this steam-venting is other than in the area of appellate review. We have here the matter of the propriety of directed verdicts. I should think that while hyperbolic and cynical character castigations might create an atmosphere of suspicion and distrust, even though unfounded, it does not upon examination provide a case or controversy to go to a jury. I do not, I hasten to add, mean to suggest that history has not recorded corrupt governments, or public officials who have intentionally deprived citizens of those rights which are given to them by our constitution. When, however, the charge is a broadside condemnation of the entire fabric of law enforcement in a large metropolis, we at the very least ought to examine most carefully the underlying facts to see if the charges are reasonably inferable or are nothing more than fanciful conjectures.

339

Chief Judge Fairchild observes in his concurring opinion that the main objective of the plaintiffs appears to be the recovery of damages arising from the events of the raid. I agree with him insofar as the Hampton plaintiffs are concerned but, as I have already indicated, it appears to me that the Anderson plaintiffs have a secondary objective, indeed, one which may well be a primary objective in view of their emphasis on it, and that is to use this litigation as an exposition ground for political philosophy and the courtroom as a political forum. If law enforcement or other government officials are demonstrated by evidence as having deprived citizens of their constitutional rights and in the process of such litigation those officials get smeared with the brush of villainy then it must be so; it is simply that I think the process should not go in reverse.

340

I regret to do so, but feel compelled in candor to add, that it appears to me that Judge Swygert's opinion, although I would question whether it was so intended, lends aid and succor to the political espousal objective of the Anderson plaintiffs. I come away from each reading of the opinion, despite occasional references therein to the requirement that plaintiffs to recover must prove their case to the trier of fact, with the feeling that the author of the opinion thinks that the case has already been convincingly proven in many respects.

341

Thus, on a random basis, I note:

342

Plaintiffs' prima facie case offers a number of constitutional deprivations to accompany their conspiracy allegations . . . Plaintiffs' evidence in the instant case indicates that the federal and state defendants share in instigating and preparing for the raid . . . The BPP was a black organization with a distinct political ideology and a variety of politically-oriented programs. FBI documents offered by plaintiffs demonstrate that certain FBI activities directed against the BPP transcended mere "law enforcement." . . . Without the information the federal defendants furnished the state defendants, the state defendants could not have acted in furtherance of the purpose which plaintiffs contend the state and federal defendants share inflicting injury to the BPP. . . . In granting the directed verdicts, the trial judge repeatedly usurped this (the jury's) function. . . . Despite their awareness of conflicting stories, Hanrahan, Jalovec, and the raiders continued to circulate reports to justify the continuation of plaintiffs' detention. . . . The evidence shows that a jury could find that Johnson's testimony before the grand jury was false and misleading and concealed the involvement of FBI headquarters and the roles of Piper, Mitchell, and O'Neal in the planning of the raid. . . . And during the pretrial discovery in this suit, the federal defendants continued to engage in dilatory and obstructive tactics to conceal evidence of their involvement in the planning of the raid. . . . His (Sadunas') examination resulted in a crucial misidentification which would have remained uncorrected absent Zimmers' subsequent tests and conclusions. . . .

343

Because of the high esteem in which I hold my brother Swygert, it is with considerable regret that I feel compelled to observe that had I not had an acquaintanceship with the case as a member of the panel prior to reading Judge Swygert's opinion I could, upon the completion of the lengthy process of reading it, well have entertained the idea that the case involved a group of political idealists who had been subjected to a cleverly orchestrated governmental persecution designed not just to neutralize their effectiveness1 but to remove them from the American scene physically. It is time, it seems to me, to look realistically at the group to which the local authorities directed their activities pursuant to a judicially authorized search warrant.

344

The state defendants have summarized from the record of this case the matters pertaining to the Black Panther Party which undoubtedly engaged the attention of law enforcement agencies. Because this factual information does not appear to be subject to challenge as to accuracy I note some of the salient aspects thereof.

345

The Black Panther Party was a militant, black, extremist, paramilitary, uniformed organization formed in Oakland, California in 1966. It was a violent, revolutionary organization, which by party edict required its members to own and know how to use weapons and to have access to more than one weapon. The Illinois Chapter of the Black Panther Party proclaimed that a class struggle in this country required the leadership of an armed revolutionary party, and that the Black Panther Party was simultaneously a military organization and political organization with leaders holding both military and political rank.

346

Black Panther publications called for killing policemen. The party's policy was that if at least one shot was not fired by a member being arrested, then the party would not stand behind that member. Black Panthers were called on to "revolt," "to arm themselves," to "dynamite," to "kill the pigs everywhere," to "not dissent from American government, we will overthrow it," and were admonished that "political power grows out of the barrel of a gun." Black Panthers published a "Destruction Kit" which described how to make and use incendiary bombs and other similar devices.

347

Much emphasis is placed in the record on the social service to the community provided by the Black Panther Party particularly with regard to their "Breakfast for Children Program." However, the record also reflects that drawings were made on blackboards instructing children to "Kill the Pigs." At these breakfasts there was distributed a "Black Panther Coloring Book" depicting in cartoons pictures of children killing policemen. At one similar Black Panther Breakfast program the children were given revolutionary posters entitled "Free Huey, In Revolution One Lives and One Dies, and Off The Pig." A report concerning the FBI raid of Panther headquarters on Madison Street on June 4, 1969 reflects that the material seized therein included posters which advocated violent overthrow of the government, numerous weapons, both handguns and long guns including stolen weapons, and press releases promoting Panther propaganda. The Black Panther Publications during 1969 contained quotations of various of their leaders such as

348

Huey P. Newton When the people move for liberation, they must have the basic tool of liberation the gun . . . The blood, sweat, tears and suffering of Black people are the foundation of the wealth and power of the United States of America. We were forced to build America, and if forced to we will tear it down. The immediate result of this destruction will be suffering and bloodshed. But the end result will be perpetual peace for all mankind.

349

In one exhibit there appears a description of a "Plan for the Complete Breakdown of the State of Illinois Power Structure." This plan documents the Panthers advocating the bombing and destruction of buildings and public systems as well as the killing of government leaders.

350

There had been numerous shooting confrontations and clashes between the Black Panthers and police prior to December 4, 1969, both nationally and locally. Several policemen had been wounded and there had been shooting with Chicago police at the Black Panther Party headquarters a block from the apartment in question on July 31, 1969, and October 4, 1969. On November 13, 1969, two Chicago police officers were killed in a shootout with Spurgeon Jake Winters. Winters was killed in the incident and seven other Chicago police officers were wounded. The Black Panthers boasted of the killing of these police officers by Winters and claimed Winters as a member.

351

Hampton's own propensities as a leader in the Black Panther Party were evident from his proposal to murder a state trooper who was approaching his car stalled on a highway on a trip to Rockford, his conviction by a jury for robbery in May 1969, his kidnapping and torturing of a party member who is accused of stealing a Panther weapon, his use of weapons during a shootout of the Panthers with the Blackstone Rangers in Robbins, Illinois, and his often-quoted statement, "If you kill one pig, you get a little satisfaction, if you kill some more pigs you get more satisfaction, if you kill all the pigs, you get complete satisfaction." Others of the plaintiffs who were at the apartment in question had criminal records and all had familiarity with handling firearms.

352

Finally, on the matter of the Black Panthers being a political party it must be remembered that the nine people who occupied this relatively small apartment on the morning in question were in the midst of a private arsenal consisting of 19 unregistered weapons, including 12 shotguns and rifles, among which were a stolen Chicago Police Department riot gun and 2 sawed-off shotguns, 7 handguns and several hundred rounds of ammunition. The occupants were not without knowledge in the use of the weapons and were members of an organization that advocated use of the weapons when a confrontation with police was involved.

353

This brings me to a final difficulty in placing this case in a proper perspective and that is the role of martyrdom in which many now regard Hampton and Clark. Irrespective of whether that shroud of martyrdom is misconceived, I cannot imagine that prior to December 4, 1969, this posthumously acquired respectability would have been accorded by many persons, either black or white, other than those subscribing to ochlocracy even though many persons, both black and white supported the goal of equal recognition and treatment for black people. The emotionalism of the plaintiffs' sinister conspiracy presentation should not obliterate the fact that there were ample grounds for regarding Hampton and those in the apartment with him as law violators.

354

Perhaps this is not in keeping with the time in which we live, but I cannot believe simply because a minority group, even one composed of people who have been rather consistently repressed and denied equal treatment before the law, calls itself a political party and espouses a commendable purpose, that there is created some sort of an irrebuttable presumption that it is above the law, or that it can accomplish its goals by violence or other illegal means.

355

In saying the above I am not ignoring the fact that in our system of jurisprudence every law violator is guaranteed the full scale of rights provided for by law, including the constitution, statutes, and case law. I am simply endeavoring to put this case into the perspective in which it clearly was viewed by law enforcement officials in 1969, that there was a group of people who were dangerous to the law-abiding citizens of the community. Also, this case concerns itself with the Black Panther Party as it existed and functioned in 1969 and what its subsequent direction or conduct may have been is immaterial.

356

Turning then to my views on the disposition of the various components of this case, as I have already indicated, I concur in the relatively limited portions of Judge Swygert's opinion in which the judgment of the district court was affirmed.

357

Judge Swygert's opinion directs that sanctions should be imposed, pursuant to Fed.R.Civ.P. 37(b)(2), against the federal defendants and counsel representing them at the first trial for repeatedly disobeying court orders to produce documentary material. I do not agree with the premise. This was a trial in which the judge told the jury on the first day that it would last many weeks, "possibly as much as three months," but which in fact continued some six times that long. The district judge was on a day-by-day basis aware of the extreme difficulties of complying with the every-nook-and-cranny discovery demands of the plaintiffs, was in an excellent position to gauge the good faith of the defense efforts to comply with those orders, and also knew that these government files were not at the beck and call of former employees, were monumental in nature, contained much information not pertinent to the present lawsuit but which involved national security and which in any event was duplicative of that which had already been furnished. I cannot believe that this respected trial judge, who for the most part patiently continued presiding over a trial that was stretching beyond the wildest preliminary estimates, would have, in the words of Judge Swygert, "repeatedly exonerated the federal defendants," if in his position to observe there had been reason to support Judge Swygert's basis for sanctions that the federal defendants, other than O'Neal and their counsel "deliberately impeded discovery and actively obstructed the judicial process." It flies in the face of reason to think that the judge would not have reacted promptly to any defense obstructionist tactics which were further lengthening the time of this tediously long trial.

358

For these reasons I would see no necessity for the imposition of sanctions. Nevertheless, because the case is going back and so that the mandate of this court is clear, I will join Chief Judge Fairchild with regard to a direction to the district court to giving consideration to the matter, rather than requiring it to impose sanctions.

DID COINTELPRO EVER REALLY END?

Excerpts from article By Brian Glick

Public exposure of COINTELPRO in the early 1970s elicited a flurry of reform. Congress, the courts and the mass media condemned government "intelligence abuses." Municipal police forces officially disbanded their red squads. A new Attorney General notified past victims of COINTELPRO and issued Guidelines to limit future operations. Top FBI officials were indicted (albeit for relatively minor offenses), two were convicted, and several others retired or resigned. J. Edgar Hoover--the egomaniacal, crudely racist and sexist founder of the FBI--died, and a well-known federal judge, William Webster, eventually was appointed to clean house and build a "new FBI."

Behind this public hoopla, however, was little real improvement in government treatment of radical activists. Domestic covert operations were briefly scaled down a bit, after the 60s' upsurge had largely subsided, due inpart to the success of COINTELPRO. But they did not stop. In April, 1971, soon after files had been taken from one of its offices, the FBI instructed its agents that "future COINTELPRO actions will be considered on a highly selective, individual basis with tight procedures to insure absolute security." The results are apparent in the record of the subsequent years:

-A virtual war on the American Indian Movement, ranging from forgery of documents, infiltration of legal defense committees, diversion of funds, intimidation of witnesses and falsification of evidence, to the para-military invasion of the Pine Ridge Reservation in South Dakota, and the murder of Anna Mae Aquash, Joe Stuntz and countless others;

-Sabotage of efforts to organize protest demonstrations at the 1972 Republican and Democratic Party conventions. The attempted assassination of San Diego Univ. Prof. Peter Bohmer, by a "Secret Army Organization" of ex-Minutemen formed, subsidized, armed, and protected by the FBI, was a part of these operations;

-Concealment of the fact that the witness whose testimony led to the 1972 robbery-murder conviction of Black Panther leader Elmer "Geronimo" Pratt was a paid informer who had worked in the BPP under the direction of the FBI and the Los Angeles Police Department;

-Infiltration and disruption of the Vietnam Veterans Against the War, and prosecution of its national leaders on false charges (Florida, 1971-74);

-Formation and operation of sham political groups such as "Red Star Cadre," in Tampa, Fla., and the New Orleans "Red Collective" (1972-76);

-Mass interrogation of lesbian and feminist activists, threats of subpoenas, jailing of those who refused to cooperate, and disruption of women's health collectives and other projects (Lexington, KY., Hartford and New Haven,Conn., 1975);

-Harassment of the Hispanic Commission of the Episcopal Church and numerous other Puerto Rican and Chicano religious activists and community organizers (Chicago, New York City, Puerto Rico, Colorado and New Mexico, 1977);

-Entrapment and frame-up of militant union leaders (NASCO shipyards, San Diego, 1979); and

-Complicity in the murder of socialist labor and community organizers (Greensboro, N.C., 1980).

IS IT A THREAT TODAY?

All this, and maybe more, occured in an era of reform. The use of similar measures in today's very different times cannot be itemized in such detail, since most are still secret. The gravity of the current danger is evident, however, from the major steps recently taken to legitimize and strengthen political repression, and from the many incidents which are coming to light despite stepped-up security.

The ground-work for public acceptance of repression has been laid by President Reagan's speeches reviving the old red-scare tale of worldwide "communist take-overs" and adding a new bogeyman in the form of domestic and international "terrorism." The President has taken advantage of the resulting political climate to denounce the Bill of Rights and to red-bait critics of US intervention in Central America. He has pardoned the FBI officials convicted of COINTELPRO crimes, praised their work, and spoken favorably of the political witchhunts he took part in during the 1950s.

For the first time in US history, government infiltration to "influence" domestic political activity has received official sanction. On the pretext of meeting the supposed terrorist threat, Presidential Executive Order 12333 (Dec. 4, 1981) extends such authority not only to the FBI, but also to the military and, in some cases, the CIA. History shows that these agencies treat legal restriction as a kind of speed limit which they feel free to exceed, but only by a certain margin. Thus, Reagan's Executive Order not only encourages reliance on methods once deemed abhorent, it also implicitly licenses even greater, more damaging intrusion. Government capacity to make effective use of such measures has also been substantially enhanced in recent years:

-Judge Webster's highly-touted reforms have served mainly to modernize the FBI and make it more dangerous. Instead of the back-biting competition which impeded coordination of domestic counter-insurgency in the 60s, the Bureau now promotes inter-agency cooperation. As an equal opportunity employer, it can use Third World and female agents to penetrate political targets more thoroughly than before. By cultivating a low-visibility corporate image and discreetly avoiding public attack on prominent liberals, the FBI has regained respectability and won over a number of former critics.

-Municipal police forces have similarly revamped their image while upgrading their repressive capabilities. The police "red squads" that infiltrated and harassed the 60s' movements have been revived under other names and augmented by para-military SWAT teams and tactical squads as well as highly-politicized community relations and "beat rep" programs, in which Black, Hispanic and female officers are often conspicuous. Local operations are linked by FBI-led regional anti-terrorist task forces and the national Law Enforcement Intelligence Unit (LEIU).

-Increased military and CIA involvement has added political sophistication and advanced technology. Army Special Forces and other elite military units are now trained and equipped for counter-insurgency (known as"low-intensity warfare"). Their manuals teach the essential methodology of COINTELPRO, stressing earlier intervention to neutralize potential opposition before it can take hold.

The CIA's expanded role is especially ominous. In the 60s, while legally banned from "internal security functions," the CIA managed to infiltrate the Black, student and antiwar movements. It also made secret use of university professors, journalists, labor leaders, publishing houses, cultural organizations and philanthropic fronts to mold US public opinion. But it apparently felt compelled to hold back--within the country--from the kinds of systematic political destabilization, torture, and murder which have become the hallmark of its operations abroad. Now, the full force of the CIA has been unleashed at home.

-All of the agencies involved in covert operations have had time to learn from the 60s and to institute the "tight procedures to insure absolute security" that FBI officials demanded after COINTELPRO was exposed in 1971. Restoration of secrecy has been made easier by the Administration's steps to shield covert operations from public scrutiny. Under Reagan, key FBI and CIA files have been re-classified "top secret." The Freedom of Information Act has been quietly narrowed through administrative reinterpretation. Funds for covert operations are allocated behind closed doors and hidden in CIA and defense appropriations.

Government employees now face censorship even after they retire, and new laws make it a federal crime to publicize information which might tend to reveal an agent's identity. Despite this stepped-up security, incidents frighteningly reminiscent of 60s' COINTELPRO have begun to emerge.

The extent of the infiltration, burglary and other clandestine government intervention that has already come to light is alarming. Since the vast majority of such operations stay hidden until after the damage has been done, those we are now aware of undoubtedly represent only the tip of the iceberg. Far more is sure to lie beneath the surface.

Considering the current political climate, the legalization of COINTELPRO, the rehabilitation of the FBI and police, and the expanded role of the CIA and military, the recent revelations leave us only one safe assumption: that extensive government covert operations are already underway to neutralize today's opposition movements before they can reach the massive level of the 60s.

PROFILES OF ORGANIZATIONS
EXPECTED TO ATTEND THE
1972 POLITICAL CONVENTIONS

I. Organizations which are believed to be coming to the National Political Conventions as of May 22, 1972.

A. Organizations which may be violent or may engage in non-violent, but unlawful activities.

1. VIETNAM VETERANS AGAINST THE WAR (VVAW)
2. CUBANS
3. MINUTEMEN
4. PEOPLE'S COALITION FOR PEACE AND JUSTICE (PCPJ)
5. FLORIDA PEOPLE'S COALITION (FPC)
6. SUNSHINE RESISTANCE
7. SAN DIEGO CONVENTION COALITION (SDCC)
8. MIAMI LIBERATION FRONT
9. PROGRESSIVE LABOR PARTY - WORKER'S ACTION MOVEMENT
10. YOUTH INTERNATIONAL PARTY (YIP)
11. CONGRESS FOR RACIAL EQUALITY
12. WEATHERMAN

<snip>

II. Organizations who have the potential to plan activities at either or both of the Conventions, but as of May 22, 1972, have not announced any plans.

1. COMMUNIST PARTY USA
2. PAN AFRICAN LIBERATION LEAGUE
3. FLORIDA MINORITIES COALITION
4. FLORIDA BLACK FRONT
5. CRY OF BLACK YOUTH
6. GAINESVILLE RESEARCH COLLECTIVE
7. LEGION OF JUSTICE
8. MALCOLM X UNITED LIBERATION FRONT
9. JUNTA OF MILITANT ORGANIZATIONS
10. JEWISH DEFENSE LEAGUE
11. NATIONAL SOCIALIST WHITE PEOPLE'S PARTY
12. YOUNG SOCIALIST ALLIANCE
13. BLACK LIBERATION ARMY
14. THE EXTERMINATORS

UNDER CONSTRUCTION

AMERICAN FRAUD and The Tylenol Murders

Bush Consolidates the National Security State

United States Court of Appeals, Seventh Circuit. - 600 F.2d 600

Argued Aug. 14, 1978.Decided April 23, 1979.As Amended April 30, 1979.Rehearing and Rehearing En Banc Denied Sept. 12, 1979

DID COINTELPRO EVER REALLY END?