Legal Memo


Written by an attorney with the National Lawyers Guild.

I have reviewed ideas for non-violent civil disobedience for the upcoming Pledge of Resistance style opposition to the War on Terrorism and conclude that there is no significant added risk to participants or organizers due to post Sept 11 legislation, such as the Patriot Act or local variations, or SLAPP type lawsuits. I believe that there are the standard risks involved with non-violent civil disobedience.

The Patriot Act has had little impact on those who commit non-violent civil disobedience. Terrorist related charges have yet to be laid in any but a few scattered cases, and the wire-tapping and surveillance provision only expand already existing powers. An example of the expanded power is that the Patriot Act allows for increased surveillance of activists, including the use of phone tap warrants attached to the person, not the phone, and expanded ease in obtaining warrants. So, the same rules that have always applied apply post Sept 11- don't discuss your non-violent civil disobedience plans over the telephone.

In any case, the same constitutional rights of freedom of speech, freedom of assembly, freedom to petition the government, and freedom of religion still remain for those who oppose the war in Iraq.

However, you should be aware of the expanded definition of "terrorism." They are defined as "acts dangerous to human life that are a violation of the criminal laws…if they "appear to be intended…to influence the policy of a government by intimidation or coercion."

I should add that you have consulted with me based on my legal experience in representing activists who have engaged in civil disobedience. You should also know that I do not encourage, condone, support, or conspire with any individual or group who independently has determined that they want to engage in non-violent civil disobedience.

As long as the group rigorously sticks to its stated pledge of non-violence and no property destruction, there is little likelihood of charges being brought against "participants", "organizers" or "leaders."

This is because the Government is concerned with groups who are likely to commit violence or property destruction, and your pledge against it, as well as the training, will ensure that the non-violent goals of your movement are achieved. It is critical however, that there be no "mushiness" in your guidelines, that you have to explicitly state "We will not use violence." and "we will not destroy any property." There cannot be any exceptions to those guidelines, and persons or groups who disagree cannot be encouraged to be part of your coalition. In fact, they should be actively discouraged from joining your coalition. You should be cautious about the phrases "we encourage a diversity of tactics," or "while we do not condone certain actions, individuals or groups who choose to act as they see fit according to the dictates of their conscience."

Also, the source of funds needs to be more carefully vetted than pre-Sept 11, as there are now many more organizations and individuals, that are classified as "terrorist" by the US Government than pre-Sept 11. The best way to see if a group is listed as terrorist, is to check the State Department website. Before accepting any funds, a process should be established to ensure that the list is consulted before any money is deposited. If there are any questions about the source of funds, the funds should returned.

One area that has significantly changed is the treatment of non-citizens who commit civil disobedience. Non-citizens have always (since the 1980's) faced a theoretical risk of deportation and exclusion (inability to return after deportation for a certain number of years), but the risk is certainly more real post-Sept 11, as the Patriot Act allows for expanded powers. For example, INS Border Officials can exclude (not allow in) any person suspected of involvement in or support for "terroristic" acitivity. And aliens, and immigrants picked up can be held for up to 7 days without an immigration charge or a criminal charge being laid. And we are hearing reports of activists with prior convictions having trouble entering the United States, or of US activists being placed on "no-fly" lists by the new Transportation Security Agency.

The Patriot Act is designed in part, to scare resistance movements away from being active and challenging Government policy. If we allow ourselves, we can be divided. Therefore, it behooves us during this time period to be more active to show that we understand our rights and intend to exercise our rights. As with any form of exercise, what you don't use, you can lose. So, exercise your rights, and as long as you do so in a peaceful, non-violent way, you should have no major problems.

In this quickly evolving world, it is best to check back periodically, as this advice is only true as of the day that it is being written.