Spying case shrouded

Investigation: Results of probe withheld from records about surveillance of war protesters

December 3, 2010 

The Army still refuses to release the results of its investigation into spying on members of the anti-war group Olympia Port Militarization Resistance by John Jacob Towery, a civilian intelligence specialist at Joint Base Lewis-McChord.

Officials released more than 100 pages of records this week to The Associated Press in response to a Freedom of Information Act request, most with names redacted. The Army withheld the results and recommendations made by an investigating officer, citing law enforcement and privacy exemptions.

The documents outline the scope of the Army’s inquiry, which initially was completed in mid-2009 and then was reopened early this year to determine whether military legal advisers were given complete and accurate information about the protest group’s infiltration.

Col. John Wells of the Army’s Litigation Division noted an ongoing federal civil-rights lawsuit brought by the activists and the possibility of criminal charges against Army employees, and he said releasing the documents could impair the rights of those involved to fair trials or disciplinary proceedings.

Attorney Larry Hildes, who is representing OlyPMR members in the lawsuit, said he believes Towery’s superiors at Lewis-McChord knew he was monitoring OlyPMR members under an assumed name. He said he bases that opinion on the records released to the AP showing that before the story broke, senior officials at the base were concerned about bad publicity “should mainstream media decide to report U.S. ‘spying’ on protesters,” and that they were upset that local agencies, including the City of Tacoma, had turned over documents to the protesters revealing Towery’s involvement.

“Future information sharing operations with local agencies are at risk because we cannot depend on them to comply with FOIA restrictions and/or our dissemination guidance,” said a “point paper” dated March 2, 2009.

The base’s leadership should “express their displeasure with their Tacoma counterparts (for) the mishandling of this FOIA request,” the paper said.

SURPRISE DISCOVERY

OlyPMR members discovered in early 2009 that the administrator of their e-mail list-serve, whom they knew as John Jacob, was actually Towery, then an employee of the Force Protection Division at Lewis-McChord. The Force Protection Division includes civilian and military workers who support law enforcement and security operations to ensure the security of Fort Lewis personnel.

Towery had been attending the group’s meetings for two years, and information he collected about the protesters appears to have been passed to his superiors on base as well as local law enforcement, documents released to the AP show.

The Reconstruction-era Posse Comitatus Act prohibits the Army from directly engaging in domestic law enforcement.

The Army launched its investigation in July 2009, after the group complained. The investigating officer’s marching orders said the inquiry should focus on Towery’s actions, whether he undertook them at the behest of civilian law enforcement, whether he was paid by any civilian police agency, what his supervisors knew of his activities, and whether he might have violated federal law or Army directives.

The highest-ranking person interviewed for the investigation appears to have been a colonel, whose name is redacted.

One of the documents provided to the AP, an “information paper” apparently prepared by the Force Protection Division, says, “Information provided by (redacted) and a law enforcement official with the Pierce County Sheriff’s Office (PCSO) indicate that the activities alleged by the Olympia activist were done in support of the PCSO and Tacoma Police Department as a confidential informant/source and not as a member of the FP Division.”

FURTHER SUSPICIONS

Hildes said he also believes the Army knew about Towery’s activities because the U.S. Attorney’s Office on Thursday announced a partial Westfall Act certification for Towery and another defendant in his civil lawsuit. It states that Towery “was an employee of the United States Army and, when on duty or when expressly authorized, was acting within the scope of his employment in all respects relevant to the common law tort allegations in the Complaint.”

Generally speaking, the Westfall Act is a federal law that gives immunity to federal employees for negligence or wrongful acts provided in lawsuits, provided that the federal employee was acting within the scope of his or her employment.

Another defendant in Hildes’ federal civil suit, Thomas Rudd, also was given Westfall Act certification in relation to Hildes’ suit, and his certification has broader language than Towery’s.

Rudd’s certification, signed by U.S. Attorney for Western Washington Jenny Durkan, states that Rudd “was acting within the scope of his employment at all times and in all respects relevant to the common law tort allegations in the Complaint.”

Rudd, Towery’s former boss, still is an employee for JBLM Force Protection; Towery is no longer a Lewis-McChord employee.

Hildes said he is not optimistic that the Army will release the a full account of its investigation of Towery’s behavior to the public.

“The Army did not need to do an investigation to know what Towery was doing,” Hildes said. “He was doing what they told him to do. Everybody did exactly as they were told to. The problem is that what they were being told to do was illegal.”

Hildes added that he and the clients are participating in the suit “for more than money.”

“We need to make sure that this doesn’t happen again,” Hildes said. “In a free society, you need to be able to speak out and dissent from the government policy without the government figuring out ways to get retribution and retaliation against you by spying on you.”

OlyPMR member Drew Hendricks, who helped uncover Towery’s activities in joining in OlyPMR under an assumed name, added that no one from the Army has ever tried to interview him to find out about Towery’s participating in OlyPMR. He also is dismissive of an Army investigation of Towery being made public.

Officials with the U.S. Attorney’s Office in Seattle could not be reached for comment Thursday.

Gene Johnson of The Associated Press and Jeremy Pawloski of The Olympian contributed to this report.

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