Maryland State Police "over-reached" and disregarded civil rights when they spied on anti-death penalty and peace activists in 2005 and 2006, according to a report commissioned by Gov. Martin O'Malley and released yesterday.
Undercover troopers and their bosses were not justified in their surveillance of peaceful protesters and ignored the free-speech implications of their actions, concluded former Maryland Attorney General Stephen H. Sachs in a 93-page report. Police may have violated federal law when they labeled activists as possible terrorists in a multistate database, the report said.
While Sachs found that the police's public-safety rationale for their spying was "sincere," he also called it "misguided" and said that the agency under the administration of former Gov. Robert L. Ehrlich Jr. operated under "systemic obliviousness" to the potential harm caused by spying.
"I believe that the surveillance undertaken here is inconsistent with an overarching value in our democratic society - the free and unfettered debate of important public questions," Sachs states in his report. "Such police conduct ought to be prohibited as a matter of public policy."
Details of the secret police operation were first made public by the American Civil Liberties Union of Maryland this summer, which sued to get the information. ACLU staff attorney David Rocah yesterday called the Sachs report "explosive" and said it "depicts a police force that completely lost its moorings."
But Rocah said a more comprehensive review was needed and that the General Assembly should act to prevent recurrences.
"We want binding legal controls" over state surveillance of activists, said Rocah, who this week filed public-records requests on behalf of more than 30 political groups that fear they may have also been covertly monitored.
Col. Terrence B. Sheridan, the current police superintendent, said his agency would adopt all of Sachs' recommendations. Among them are that spying on political groups be conducted as a last resort and only when there is clear indication of illegal activity. Sachs also recommends that those subjected to unjustified spying should be notified and allowed to view the information gathered about them before it is purged.
Nevertheless, Rocah said "the level of impropriety here is sufficiently serious ... that we should not leave it to mere regulations that can be changed at whim."
Gov. Martin O'Malley, who was mayor of Baltimore when police agents spied on activists in the city, said the report should offer "assurances" that his administration takes the matter seriously.
The Sachs report concludes that O'Malley was unaware of the spying at the time, and that neither Baltimore City, Baltimore County nor Anne Arundel police departments "participated in any way" in the state police operation.
Ehrlich and former police superintendent Col. Tim Hutchins declined to be interviewed by Sachs or state lawyers assisting his review. Hutchins is expected to testify before a state Senate hearing on the matter next week.
Though the Sachs report offers the first independent account of a 14-month surveillance operation that has sparked outrage among Maryland activists across the political spectrum, it does not answer key questions, including when the state police began monitoring political groups, and who ordered the undercover tactics.
"I don't think we know the answer to that," Sachs said in an interview yesterday. "The search for culprits, frankly, may be futile," he said, because the problem was "systemic."
That answer doesn't satisfy Max Obuszewski, a Baltimore peace and anti-death penalty activist whom the report describes as having the most contact with the lead undercover trooper, who went by aliases "Lucy Shoup" and "Lucy McDonald."
"We have to find out who ordered this," Obuszewski said. "How far up the ladder does it go?"
Sachs reports that by late 2004, the state police "may have decided to cast a relatively broad net in the 'protest group' area seeking to learn more about the activist community in general."
But the investigation, which included 32 interviews and thousands of pages of documents, focused on the 14-month surveillance of anti-death penalty groups, starting in March 2005.
The report concludes that the surveillance project was instigated by Maj. Jack Simpson, then in charge of special operations at the state police. Simpson asked subordinates in the police's Homeland Security and Intelligence Division to prepare a "threat assessment" around the upcoming executions of death-row inmates Vernon Lee Evans Jr. and Wesley Eugene Baker.
"It is ... our impression that Simpson's forceful presence, and his rank, influenced" the Homeland Security unit, established just two years earlier, "to launch the covert operation," the report says.
Despite a police analyst's report that "contained nothing to indicate that protests surrounding the planned executions posed a significant threat to public safety," a trooper identified as Trooper No. 1 was dispatched on a 14-month infiltration of anti-death penalty groups, the report found.
Greg Shipley, a police spokesman, declined to say who Trooper No. 1 is, because she may still be "working undercover." Shipley said Simpson now heads up the police department's records division.
In April 2005, after learning that Obuszewski was also an active anti-war advocate, Trooper No. 1's spying expanded to include peace groups, the report said, making the surveillance operation's "connection to crime prevention and public safety ... even more tenuous."
At no point did any of the four troopers who engaged in spying on political groups discover any real threat to public safety, said Sachs, who said he was given unfettered access by state police to their records.
Some Maryland activists have said they are worried that police targeted individuals or groups for political reasons. But Sachs says in the report that he did not find any evidence of that.
"I am convinced that [police] did not attempt to compile political "dossiers" on the participants, or otherwise suppress any particular viewpoint as subversive and threatening by virtue of its ideology," he states. "There is not evidence ... that [police were] motivated by anything other than a desire to protect the public safety.
Though he is sharply critical of the police for failing to take into consideration the civil rights of activists who were spied upon, Sachs does not recommend disciplinary action. Nor does he believe, he said in an interview, that there are grounds for criminal charges, though the reports states that one aspect of the operation may have been technically illegal.
By transmitting some of its surveillance findings to a federally funded regional database designed to target drug trafficking, the state police "violated federal regulations," Sachs reported, because there was no "reasonable suspicion" that the Maryland activists were "involved in criminal conduct."
The report also found that state police in its own database "indiscriminately" and inappropriately designated anti-death penalty activists as under surveillance for "terrorism."
"It is ... important to note that these events occurred in a new and challenging context - the dangerous reality of terrorism that struck home on 9/11 and our understandable insistence on homeland security," Sachs writes.
But he concludes that the people subjected to spying are, in fact, "the opposite of terrorists: they are individuals committed to changing the policies or conduct of the government through strictly nonviolent means."
* State police surveillance of protest or advocacy groups should be prohibited unless a superintendent issues a written finding of "reasonable, articulable suspicion" that a crime could be committed; and that "a less intrusive method of investigation is not likely to yield equivalent results."
* Creation of standards for collection and dissemination of criminal intelligence information, including periodic auditing and the purging of information obtained inappropriately.
* Revise and "possibly discontinue" a Case Explorer database used for homeland security because it encourages the overinclusion of individuals and groups in the database."
* Contact all individuals listed in Case Explorer as being involved in terrorism without involvement in a violent crime, give them opportunity to review the entries as appropriate under law, and purge the entries.
These activists are benign and operating in plain sight. PG 2