Strong Legislation Is Needed to Protect Protesters in Maryland

Tuesday, February 24, 2009

THE ONLY THING that surprises us anymore about the Maryland State Police's infamous undercover spying program is that officers were able to squeeze in so much bumbling in such a short period. In only 14 months during the administration of former Gov. Robert L. Ehrlich Jr. (R), law enforcement agents labeled activists working to establish a bike lane as terrorists; designated a group of antiwar protesters as white supremacists; determined that consumers who fought an electricity rate hike were a security threat; and discovered that middle-aged peaceniks had shared cookies with security guards. It appears that investigators were closer to finding a good snickerdoodle recipe than they were to uncovering a scintilla of intelligence about wrongdoing. The Maryland General Assembly should pass legislation that ensures that such a disregard for civil liberties, not to mention squandering of tax dollars, doesn't happen again.

Lawmakers are considering two bills that purport to rein in overzealous investigators; only one offers real protections. A bill backed by Gov. Martin J. O'Malley (D) is well-intentioned but ultimately too vague and loophole-riddled to be effective. The legislation would require police to have "reasonable suspicion" that an individual or group is carrying out criminal activities to initiate a covert operation. That is a good start, but a key clause -- that police can conduct covert surveillance "for a legitimate law enforcement objective" -- undermines the potential protections provided by the bill. Officers would have considerable leeway to couch any type of clandestine monitoring as "legitimate."

A bill sponsored by several Montgomery County legislators is the better alternative. The legislation would require police to adopt strict and specific rules guiding how officers carry out covert surveillance. The police superintendent would have to approve proposed surveillance operations, and officers would be prevented from "collecting, disseminating, or maintaining certain information" gathered through covert spying unless the intelligence was obtained lawfully and was directly related to criminal activity. Also significant, the bill's provisions would apply to all Maryland law enforcement agencies, not just to the state police as in the proposal supported by Mr. O'Malley.

Critics say such restrictions could inhibit the ability of law enforcement agencies to monitor criminals. In fact, most of the provisions are in line with Justice Department guidelines and are necessary to undo the chilling effect that the state police's abuses may have had on lawful political activity. Activists say some would-be protesters are still hesitant to speak out, fearing that they will be spied on or that their names will appear on terrorism watch lists. Marylanders need to feel free to express dissent; strong legislation would help to encourage that.

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