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“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association,” Supreme Court Justice John Harlan wrote in 1958. “It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as [other] forms of governmental action.”
Harlan’s words echoed the opinion of the sitting SCOTUS in its decision in National Association for the Advancement of Colored People (NAACP) v. Alabama.The dispute between the day’s premier civil rights organization and the “Heart of Dixie” arose when state officials crusading to uphold Jim Crow tried to silence the NAACP. When the NAACP bucked back, the state of Alabama demanded that they divulge a list of all members’ names and addresses. This decree posed a threat to NAACP who would be making themselves vulnerable to harassment, intimidation and/or worse if they complied. The group’s monetary support would also be jeopardized. The issue made it to the highest court in the land and justices unanimously ruled in favor of the NAACP’s right to privacy in a 9-0 vote.
Yes, society has changed (somewhat) in the 60+ years that have passed since that landmark decision, but the more things change, the more they stay the same. There are still advocates for many causes challenging the existing system. At the same time, the state remains paramount and will use its omnipotence– even if unethically– to squash any resistance. Times may be different, but political advocacy still needs protection from government obstruction.
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In recent months, a situation concerning the government and those helping/reporting on the Central American migrant caravan of around 5,000 seeking asylum at the Mexican border. The refugees’ journey through Mexico to the United States’ front door in 2018 has been well-documented. When the caravan arrived at the San Ysidro Port of Entry (the largest land border crossing between San Diego and Tijuana), it was greeted by American advocates, journalists, and attorneys. According to reports, government agencies created a database of 59 of those activists, journalists, and lawyers and had them under surveillance.
In the months that followed, journalists and those aiding caravan members felt like targets due to the intense pressure applied to them by border officials during inspections. Some were detained for hours by the authorities and questioned about their activities before being denied entry into Mexico. The skepticism was validated in March when NBC San Diego released a report of alleged government corruption after a compilation of documents and screenshots titled “San Diego Sector Foreign Operations Branch: Migrant Caravan FY-2019, Suspected Organizers, Coordinators, Instigators and Media,” was leaked. The intelligence gathering campaign dubbed “Operation Secure The Line” was a collaborative effort by agents in the Department of Homeland Security (DHS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the U.S. Border Patrol and the San Diego arm of the Federal Bureau of Investigation (FBI). Furthermore, the graphic emblazoned on the cover of the documents (dated January 9, 2019) features the American and Mexican flags over a banner with “ILU-OASIS-OMEGA” on it. According to a Homeland Security official, the “ILU” element indicates that the documents were produced by the International Liaison Unit (ILU), a body that coordinates intelligence between the United States and Mexico.
The documents list individuals who the powers-that-be felt should be monitored and targeted for screening at the border. Each name is accompanied by a photo ripped from either that person’s passport (which may or may not have had an alert placed on it that could flag them for additional screening) or his/her social media accounts. Personal information for each such as birthday, “country of commencement” and supposed role in relation to the caravan is also included. A colored “X” drawn on a photo means the person has been interviewed, arrested, or had their visa or SENTRI pass revoked. Additionally, the government created dossiers for everyone listed, which the DHS whistleblower denounced as an abuse of power.
In response to these revelations, 103 civil liberties and press rights organizations have banded together to call out the DHS for this seemingly unconstitutional spy game. The methodology of the operation appears to violate the First Amendment rights of the individuals listed based on viewpoint. The determined coalition is demanding that the DHS cease all surveillance and that an investigation into how it all started and its full extent be opened. Also, full disclosure of the information collected has been called for.
The DHS has not commented on the matter. The CPB issued statements explaining its motivations for participating in the investigation. According to the agency, the people listed in the database were all on hand for violence that broke out at the border in November. They added that journalists were being watched to learn more about the violence. “It is protocol following these incidents to collect evidence that might be needed for future legal actions and to determine if the event was orchestrated,” reads one of the statements.
There is a recent instance of the people taking the state to task over privacy issues. In October, a federal judge ruled that the Memphis Police Department violated a consent decree between the American Civil Liberties Union (ACLU) of Tennessee and the city of Memphis by surveilling several Black Lives Matter protestors through the department’s “political spying program.” It appears that the coalition holding down the activists, attorneys, and journalists targeted in the caravan investigation has the passion to endure a standoff with the feds, but can they win? They’re receiving support from high places. Most notably, presidential hopeful Sen. Kamala Harris is behind them, evidenced by a tweet she posted on May 11 that reads, “My colleagues and I are calling on DHS to answer for its disturbing surveillance of journalists, activists, and lawyers in recent months. This abuse of power is contrary to the ideals of our country – DHS should be focusing on actual threats to our homeland, not civilians.”
