Activists seek answers in new anti-spying law
ACLU leads push for release of full files
When Patrick Elder organized an anti-war protest at Lockheed Martin headquarters in Bethesda in January 2008, he received calls from Montgomery County police.
"What were protesters planning?" they'd ask.
About 20 people on the sidewalk, he'd tell them, promising they wouldn't give officers reason to intervene by wandering into traffic.
Elder said he expects the same openness from Maryland State Police, since a law that took effect Thursday requires police to contact citizens — including Elder — whose peaceful activities were labeled "terrorism" in a police database used to track drug trafficking and terrorism.
The information was then passed along to a federal database for the Baltimore-Washington, D.C. region.
Under the law, people who were listed in the database without being suspected of criminal activity are to be contacted and offered copies of the database entries pertaining to them. The entries are to be purged, and police must revise or discontinue use of the database.
The law, passed earlier this year by the General Assembly, also requires written permission from the head of a law enforcement agency before conducting covert surveillance. The permission must include the finding of a "reasonable articulable suspicion of criminal activity" that warrants the surveillance.
Elder and 52 others received letters from state police last year saying that their activities had been categorized as terrorism and offering access to their files.
Nearly a year later, Elder is still wondering what police had on him. His file, which he was able to copy only after negotiations between state police and the American Civil Liberties Union, was heavily redacted.
"I'd like to be able to look up under that magic marker," Elder said.
A state police spokeswoman said Tuesday there is nothing more to release.
State police have spent an "exhaustive amount of time" turning files over to activists, said Elena Russo, a state police spokeswoman.
We believe we have at this point released all the documents that we have," she said.
Gov. Martin O'Malley (D) ordered an investigation by former attorney general Stephen H. Sachs into the state police spying operation following the ACLU's release in July 2008 of documents showing that state police had spied on peace activists and groups opposed to capital punishment in 2005 and 2006.
While activists have been able to obtain copies of their files, many of those documents were heavily redacted. Activists also believe that more documents exist.
"In our view, the disclosure is inadequate," said David Rocah, staff attorney of the ACLU of Maryland, which turned up documents related to the spying after filing a Maryland Public Information Act lawsuit seeking documents related to surveillance of Baltimore-based peace activists.
State police have filed a motion in Baltimore city Circuit Court to dismiss the lawsuit.
A second round of requests, filed Sept. 30, 2008, seeks files on a variety of groups, including animal rights, anti-war and anti-abortion organizations. Though not yet a court matter, that request "very well may become the subject of litigation," Rocah said.
The ACLU is not opposed to police blacking out names of undercover officers, he said. But state police have not offered specifics about what else is redacted or why, he said.
Under the law, state police must report by Jan. 1 to the Senate Judicial Proceedings and House Judiciary committees on the agency's effort to turn over files to activists, purge the database and revise or discontinue its use.
"It seems to me that with everybody from the governor on down acknowledging that a wrong was committed, it's sort of flabbergasting that we're still in this situation," Rocah said. "But time will tell."
Elder is tired of waiting, and his frustration is evident.
"They passed a law where they said they'd come clean and they haven't," he said. "I'm outraged. I'm upset. I'm angry at my governor, my legislature and whoever I'm supposed to be angry at."
He worries about the chilling effect the wait for answers could have on protesters.
"Time kills activism," he said.