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Note: This letter from noted historian Howard Zinn was filed as Appendix A to the Plaintiffs’ “Motion for Justice” filed in the Bari/Cherney civil rights suit against the FBI and Oakland Police. The letter is addressed to Dennis Cunningham, lead counsel.

                        Howard Zinn

                        Auburndale, MA 02466

April 30, 2001

Dear Mr. Cunningham:

It is my considered opinion, knowing of the car bomb explosion which injured Judi Bari and Darryl Cherney in 1990, and knowing of their speedy subsequent arrest on sensational criminal charges, that the apparent ‘frame-up’ of the two as supposed bombers — as reflected in the evidence described in the “big brief” from Bari v. USA — is consistent with the history of the Federal Bureau of Investigation. That history, for many years before 1990, and continuing after that, shows that the FBI has repeatedly attempted to harass, injure, even cause the death of individuals in order to disrupt the activities of organizations critical of government and the Establishment.

That history indicates that in the pursuit of this disruption, the FBI has again and again violated the constitutional rights of Americans, including their right to freedom of speech and freedom of association. It indicates that the FBI would have been ready, willing and able to pervert the Constitution, and their own law enforcement responsibility under it, in the ways the plaintiffs allege, in the attempt to discredit and “neutralize” a movement like Earth First! and other allied forces working to preserve and protect the environment.

The most powerful evidence for my claim, buttressing my opinion, is in the government's own documents, chiefly the Final Report of the Select Committee to Study Governmental Operations With Respect to Intelligence Activities, of the United State Senate, published in 1976 by the Government Printing Office (informally known as the Church Committee).

That report details the covert activities of COINTELPRO (standing for Counterintelligence Program), an FBI program designed, as the Committee report says, to "disrupt" and "neutralize" target groups and individuals. The Church committee's report was based, it says, on a staff study of more than 20,000 pages of Bureau documents, depositions of many of the Bureau agents involved in the programs, and interviews of several COINTELPRO agents.

COINTELPRO began in 1956 "in part because of frustration with Supreme Court rulings limiting the Government's power to proceed overtly against dissident groups" and was claimed to have ended in 1971, the committee report says, "with the threat of public exposure." That the FBI tactics, violating constitutional rights, described in the committee report, was not confined to those years, is clear from what it was doing before 1956 and after 1971, so that its actions against Judi Bari and Earth First in 1990 do not represent a departure from its history.

The violations of constitutional rights go back to the first World War, when the long-time, powerful head of the FBI, J. Edgar Hoover, was in charge of the Bureau of Investigation, predecessor to the FBI. According to the FBI's own document, quoted in the Church committee report (p. 381) there was a "mass deprivation of rights incident to the deserter and selective service violator raids in New York and New Jersey in 1918..." What happened is that 35 Bureau Agents assisted by police and military personnel and a "citizens auxiliary" of the Bureau, "rounded up some 50,000 men without warrants of sufficient probable cause for arrest."

In 1920 the Bureau, along with Immigration Bureau agents, carried on the "Palmer Raids" (authorized by Attorney General A. Mitchell Palmer), which, in 33 cities rounded up 10,000 persons. The Church Committee report (p.384) talks of "the abuses of due process of law incident to the raids," quoting a scholarly study (Robert Preston, Aliens And Dissenters) that these raids involved "indiscriminate arrests of the innocent with the guilty, unlawful seizures by federal detectives..." and other violations of constitutional rights.

The Church committee (p.385) cites a report of distinguished legal scholars (Roscoe Pound, Felix Frankfurter and others) made after the Palmer Raids, and says the scholars "found federal agents guilty of using third-degree tortures, making illegal searches and arrests, using agents provocateurs...."

When in 1924, Harlan Fiske Stone became Attorney General, he succeeded in temporarily halting the unconstitutional activities of the Bureau, saying: "When a police system passes beyond these limits [conduct forbidden by law] it is dangerous to the proper administration of justice and to human liberty." (quoted in Morton Halperin et al, The Lawless State, p. 95)

World War II brought a return of the FBI to counterintelligence operations as President Franklin D. Roosevelt in a 1940 memorandum gave the FBI the power to use warrantless wiretaps against suspected subversives. This was contrary to a Supreme Court decision of 1937 (Nardone v. U.S.) saying that a Congressional statute making it a crime for "any person" to intercept wire communications applied to federal agents also.

COINTELPRO developed out of the anti-Communist hysteria of the cold war years, but led to FBI actions against groups that had nothing to do with Communism. The Church committee reports that COINTELPRO, presumably set up to protect national security and prevent violence, actually engaged in other actions "which had no conceivable rational relationship to either national security or violent activity. The unexpressed major premise of much of COINTELPRO is that the Bureau has a role in maintaining the existing social order, and that its efforts should be aimed toward combating those who threaten that order." (p.7)

This meant that the Bureau would take actions against individuals and organizations simply because they were critical of government policy. The Church committee report gives examples of such actions, violations of the right of free speech and association, where the FBI targeted people because they opposed U.S. foreign policy, or criticized the Chicago police actions at the 1968 Democratic National Convention. The documents assembled by the Church committee "compel the conclusion that Federal law enforcement officers looked upon themselves as guardians of the status quo" and cite the surveillance and harassment of Martin Luther King Jr. as an example of this. (p.7)

The report quotes former Assistant to Director Hoover, William C. Sullivan: "This is a rough, tough, dirty business, and dangerous....No holds were barred." The Church committee says: "In the course of COINTELPRO's fifteen year history, a number of individual actions may have violated specific criminal statutes, a number of individual actions involved risk of serious bodily injury or death to the targets (at least four assaults were reported as 'results'....)"

Was that "rough, tough, dirty business" confined to the official life-span of COINTELPRO (1956 to 1971)? The Church committee's report discusses this question. "If COINTELPRO had been a short-lived aberration, the thorny problems of motivation, techniques, and control presented might be safely relegated to history. However, COINTELPRO existed for years on an 'ad hoc' basis before the formal programs were instituted, and more significantly, COINTELPRO-type activities may continue today under the rubric of 'investigation.'" (p.12)

The Church committee cites the testimony in 1975 of FBI director Clarence M. Kelley as indication that even after the official end of COINTELPRO, "faced with sufficient threat, covert disruption is justified." (p. 14)

The FBI continued to violate the constitutional rights of citizens through the 1980's, up to 1990, as revealed by Ross Gelbspan in his book Break-Ins, Death Threats And The FBI. Utilizing thousands of pages of FBI documents secured through the Freedom of Information Act, Gelbspan found that activists who opposed U.S. policy in Central America "experienced nearly 200 incidents of harassment and intimidation, many involving...break-ins and thefts or rifling of files." (p.1) Gelbspan’s intent was to "add a small document to the depressingly persistent history of the FBI as a national political police force." The Bureau's proper function is to catch criminals, he points out in his book. When it operates as a political police "it is an affront to the basic rights of free speech and association and an insult to the letter and the spirit of the Constitution."

From all this and more, as my study continues, it seems clear that the history of the FBI is consistent with the charges that it sought to discredit and “neutralize” Judi Bari and Darryl Cherney, and the environmental cause they were working for, by smearing them publicly with sensational false charges of possession of a bomb, and that it did not hesitate to violate their constitutional rights to achieve its ends.

My sources for the above include the report of the Church Committee, and the other works cited; in addition, I would point out the following books:

I am Professor Emeritus of Political Science, Boston University. I plan to serve pro bono in this case.  I haven’t testified in any case, as expert or otherwise, for several years. Attached is a biographical summary of my academic career and my writings.

 

Sincerely,

Howard Zinn


      APPENDIX

 

BIOGRAPHICAL SUMMARY

 Howard Zinn, historian, playwright

Education:            

Books Published:

Articles:  in Harper’s, The Nation, The Crisis, The Antioch Review, The American Scholar, The New Republic, Commonweal, The New York Times, The Saturday Review, Le Monde Diplomatique, The Progressive, etc.

Awards:  Thomas Merton Award 1991, Eugene Debs Award, 1998, Lannan Literary Award, 1998, Upton Sinclair Award, 1999.

Note: This letter is Appendix A to the Plaintiffs' "Motion for Justice" filed in the Bari/Cherney civil rights suit against the FBI and Oakland Police. You may jump from here to Appendix C, the statement of former FBI Special Agent John Ryan.