Senator Jamie Raskin

Last year, we learned that the Maryland State Police had spied on people, investigating their political activities. These people had one thing in common: not one had committed any criminal act.

To prevent this from happening again, the General Assembly should pass the Freedom of Association and Assembly Protection Act of 2009 (SB 256 and HB 182). Anything less will harm public safety efforts.

The MSP's spying included more than just sending undercover officers into meetings. It collected evidence on individuals' political points of view. They then shared this information with federal and state agencies, sometimes labeling it "terrorism." Labeling a person's activities "terrorism" carries the potential of lasting damage, just as it did when government officials labeled people communists during the Red Scare of the 1950s. But according to a report by former Maryland Attorney General Stephen Sachs, no one in the MSP who knew that innocent citizens had been labeled "terrorists" gave this practice a second thought.

MSP adversely affected

Almost as important, the MSP's misadventure in covert surveillance harmed not just the citizens spied upon, but the MSP itself. First, when law enforcement agencies improperly investigate people, they waste precious resources badly needed to combat real threats. At no time in our recent history have police agencies had to carry out their missions under greater strain. State and local budgets have fallen deep into the red and officials are cutting police officer jobs. Many officers have deployed to Iraq and Afghanistan as part of their National Guard duties, thinning police ranks further. On top of this, police have had to undertake a host of new homeland security duties. We face real and present dangers from both criminals and actual terrorist threats. This is the wrong time to squander police manpower spying on people engaged in peaceful and constitutionally protected political activity.

Second, when MSP filled anti-terrorism databases with reports on people who pose no terrorist threat, these databases became corrupted with bad information. These information pipelines have become the lifeblood of our efforts to protect our nation's security. Putting in bogus information threatens to mislead those who work hard to make us safe, sending them on wild goose chases — again, wasting resources.

We literally cannot afford any repetition of this conduct, which is why we need the Freedom of Association and Assembly Protection Act of 2009. The bill puts into law reasonable safeguards assuring that police will only use covert surveillance against activists if the head of the agency makes a written, fact-based finding that there is "a reasonable, articulable suspicion of a present or planned violation of the law" and if there is no other less intrusive way to obtain the information needed. This provision mandates a prior judgment that the surveillance is needed to meet actual — not imagined — criminal activity by the agency leadership.

The bill also requires internal regulation and publicly available policies for police agencies, to make sure that the safeguards remain in place. The dissemination of data collected in such investigations would be limited to cases in which the information is "directly related to criminal activity," and would require audits to assure accountability. These steps are necessary to assure that police agencies in Maryland do not re-injure their citizens or themselves.

Loopholes in competing bill

In contrast, the MSP bill (HB 311/SB 266) includes broad loopholes and exemptions that would actually authorize many aspects of the spying that occurred: covert attendance at meetings, undercover participation in political activities and events, and undercover monitoring of emails and listserv conversations. It does not prohibit building dossiers on the political activities or beliefs of individuals or groups — the heart of the MSP abuse — and does nothing to stop wrongful dissemination of inaccurate or First Amendment-protected information. Worse yet, it requires no leadership oversight of the process or independent auditing. In short, it would actually cement many of the worst practices into law, and would continue the waste of police resources.

In the post 9/11 era, we're told often that we need to give up some of our liberties for the assurance of greater security in this dangerous world. This is simply untrue, because protecting our liberty actually makes us safer. Police departments and intelligence agencies all over the country have shown they can devise and adopt practices that respect our Constitution. And such practices actually help to achieve their core responsibilities because it generates public support when it is most needed. This is the right path for Maryland to follow now.

David A. Harris is a professor of law at the University of Pittsburgh, and author of "Good Cops: The Case for Preventive Policing." He submitted testimony in support of SB 256 and HB 182 before the Senate Judicial Proceedings Committee and House Judiciary Committee.