Judge Weighs Punishing City Lawyers Over Delay on Protest Log

A federal judge said yesterday he was "deeply concerned" about newly revealed evidence that FBI intelligence agents interrogated war protesters about their political views at a Washington rally in April 2002 and was seriously considering sanctioning D.C. government lawyers for insisting for three years that they had no record of the FBI's involvement.

The D.C. attorney general's office surprised the court March 23 by reporting that it had found a D.C. police log from the day of the rally -- the same log city attorneys had repeatedly said did not exist since protesters sued the D.C. police in 2003. The heavily redacted document confirmed that FBI intelligence officers were with D.C. police at a downtown parking garage April 20, 2002, and were directly involved in the questioning of 23 protesters later arrested for trespassing.

Yesterday, U.S. District Judge John D. Bates ordered the city to explain within the next week why it took so long to find a log that the police department routinely maintains during protests and why several attorneys had said it didn't exist. He also ordered the FBI to immediately begin looking more deeply for records of its presence and role in the incident.

Protesters claim in the suit that their constitutional rights to free speech were violated and that they were illegally detained on the pretext of trespassing. Protesters said plainclothes FBI agents who did not identify themselves asked them one by one while being videotaped about their political and religious beliefs and their associates in protest groups.

The FBI considered them suspicious because they wore black clothes, the log shows, a color the FBI associated with anarchist groups. Some protesters were retrieving food from a van parked in the garage.

All charges were dropped for lack of evidence.

The judge said the log provided "credible evidence" that intelligence agents from the FBI's Washington field office interviewed the protesters that day, and he questioned why the FBI repeatedly told him that the bureau also had no record of the incident. He said he found it difficult to believe, after having represented the FBI himself while a Justice Department lawyer, that the bureau would have handed over the interview information to another agency or destroyed it as a routine practice.

"You have some experience in this town and with the FBI. And so do I," Bates told the FBI's attorney, Mark Nebeker. "I don't know about you, but it's a little hard for me to accept the assertion that the FBI intelligence personnel would go to the trouble of gathering this information and then destroy it . . . or give it away. It seems to me to be entirely inconsistent with the concept of intelligence gathering. Intelligence gathering is for future use."

The mystery surrounding the log's discovery deepened yesterday with the revelation that a D.C. police technician said he had alerted police lawyers to the log more than three years ago. The police sergeant, who helped maintain logs for protests, said in a sworn deposition March 26 that he forwarded copies of the April 2002 logs to the D.C. police's legal department in December 2003 and again in February 2006, both times in response to requests for documents related to the protesters' lawsuit. The log was turned over to the protesters' attorneys one business day before the sergeant's deposition.

The Partnership for Civil Justice, which is representing the protesters and several other groups in similar suits, argued that city attorneys should face punishment for failing to turn over information critical to the case. The FBI recently asked the judge to dismiss the lawsuit against the bureau, saying it had no relevant role or records.

Carl Messineo, a lawyer for the partnership, contended in a court filing that authorities were trying to cover up the law enforcement actions, including "federal efforts to spy on and gather intelligence on anti-war and political activists."

Traci Hughes, a spokeswoman for the D.C. attorney general's office, said city attorneys look forward to explaining the delay to the judge but declined to elaborate.

"District lawyers do not believe they've done anything improper and will convey that," she said. "Our position is always that MPD has not done anything improper. Of course, there are instances when things can fall through the cracks."

Joseph Persichini Jr., assistant director in charge of the FBI's Washington field office, declined to comment yesterday about the case. But he recently wrote a letter to The Washington Post disputing the protesters' account of the FBI's role and insisting that two FBI agents conducted "routine interviews" to help D.C. police and that the results were provided to them that day.

"It was routine law enforcement assistance, not the work of the described 'secret intelligence unit,' " Persichini wrote. "No such entity exists and, moreover, there is nothing secret about the FBI's actions that day. "