The O'Malley administration's attempt to ensure state police can pursue covert operations of legitimate concern on protest groups while protecting civil liberties falls short. That's because it favors the investigators. The legislation now before the Maryland General Assembly has loopholes that even the clumsiest spy could slip through, with or without his trench coat. The state police's past foray into domestic spying demonstrated what can happen when agents work on their own without adequate supervision and guidelines and for an indeterminate period of time: Groups of peaceniks, death penalty opponents and environmentalists are infiltrated without good cause.
There's no reason to repeat those mistakes, and the administration's bill doesn't sufficiently guard against them.
Here's an example. The legislation attempts to set out the parameters for investigating groups that are exercising their First Amendment rights. State police must have a "reasonable suspicion" that the group is planning or engaged in criminal activity before they can send someone to a rally or public meeting in an undercover capacity, and the agency has to feel there is no "less intrusive" way to check out the group. Those are standards used by federal law enforcement now, but the O'Malley administration's bill includes a blanket authorization that permits the state police to conduct a covert investigation "for a legitimate law enforcement objective" without defining just what that is or might be.
The American Civil Liberties Union, which exposed the state police's slipshod domestic spying activities, is supporting a stringent bill sponsored by state Sens. Jamie Raskin and Jennie M. Forehand. It would require the state police to adopt regulations governing covert operations on peaceful or protest groups, and would restrict the collection or dissemination of any information gleaned on the organizations.
That bill is a good starting point for the administration to establish reasonable guidelines that would protect First Amendment activities and allow the state police to do their job. The spying abuses that occurred during the past administration and were confirmed in a review by former Maryland Attorney General Stephen H. Sachs provide a road map for what must be done. The state police need to develop clear, concise guidelines for such covert operations, and they should include rigorous oversight by commanders, a purge process to ensure deletion of unsubstantiated information and sunset provisions for files to be closed. The agency should rely on the policies approved by the U.S. Justice Department.
Spying on fellow citizens who exercise their First Amendment rights sounds un-American. If an undercover operation is necessary, it should conform to the best practices in use today.