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Alliance to End Repression v. City of Chicago

July 2, 1997

ALLIANCE TO END REPRESSION, ET AL.,

PLAINTIFFS,

AND

CHICAGO CISPES, ET AL.,

PETITIONERS-APPELLEES,

v.

CITY OF CHICAGO, ET AL.,

DEFENDANTS,

AND

FEDERAL BUREAU OF INVESTIGATION,

RESPONDENT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 74 C 3268 and 75 C 3295 Ann Claire Williams, Judge.

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Argued April 24, 1997

Decided JULY 2, 1997

These are consolidated appeals growing out of a petition to enforce a 1981 consent decree. In one appeal, the Federal Bureau of Investigation claims that the order enforcing the decree is based on a flawed interpretation of its language; the other appeal is from an award of attorney fees to the petitioners.

In 1974, the original plaintiffs in this case, including the Alliance to End Repression and the American Civil Liberties Union, filed a class action complaint against the City of Chicago, the Chicago Police Department, the U.S. Attorney General, and the Director of the FBI, alleging that the defendants were engaging in unconstitutional conduct directed at their First Amendment activities. After several years, the case was settled in August of 1981 by the entry of a consent decree which was approved by a district judge. *fn1 Alliance to End Repression v. Chicago, 91 F.R.D. 182 (N.D. Ill. 1981).

The consent decree purported to give standing for enforcement petitions to all former named plaintiffs, any member of the plaintiff class, or any U.S. person residing in Chicago prior to the effective date of the stipulation. That is why the current petitioners, including the Chicago Committee in Solidarity with the people of El Salvador -- CISPES -- claim to have standing to bring this enforcement action. CISPES falls within the plaintiff classes in the original actions; and because in the current petition it alleges injury-in-fact, we agree that the organization has standing to bring this enforcement action.

The allegation before us is that the FBI violated the consent decree during its investigation of CISPES from March 1983 through June 1985. In the suit, CISPES sought an order requiring the FBI to expunge records growing out of its investigatory surveillance. CISPES also sought an order requiring the FBI to provide additional training concerning the consent decree to its agents in Chicago. Both sides filed for summary judgment. Ultimately, the district judge found that the defendants had violated the decree. She ordered the relief requested. The FBI has appealed, concentrating on a narrow question: Was the investigation, in the words of the consent decree, in "serious intentional non-compliance" with the decree?

The record shows that in September 1981 the FBI began an investigation of CISPES to see whether it was in compliance with the provisions of the Foreign Agents Registration Act. No violations of the Act were found, although it was discovered that in its literature CISPES endorsed the objectives of two Salvadoran terrorist groups. This investigation was closed in December 1981.

Then in March 1983, the Dallas field office of the FBI received information from a Central American expatriate named Frank Varelli, which prompted a new investigation of CISPES to see whether it was offering active financial or other support to El Salvadoran terrorist groups and whether it was planning terrorist activities in the U.S. The investigation began in Washington but spread, including to Chicago, and lasted from March 1983 through June 1985. In Chicago, in addition to the investigation of CISPES itself, there were 19 spin-off investigations.

The investigation involved checks of public records, photographic and visual surveillance, undisclosed attendance by government agents at public meetings, reviews of financial, utility, and telephone records, and checks of law enforcement records. There were no court-ordered searches, telephone monitoring, nor other electronic surveillance.

The FBI filed periodic reports within the United States Department of Justice. In response to a report in March 1985, overseers at the DOJ questioned whether there was a sufficient basis to continue the investigation. In June 1985 the investigation was closed.

When William Sessions became head of the FBI in 1987 he ordered an in-depth inquiry into the CISPES investigation. He acknowledged in congressional testimony that the national investigation of CISPES was flawed. He said that informant Varelli's background and reliability, and thus the accuracy of his information, were never adequately verified by the Dallas field office of the FBI. He concluded that there was "negligence all along the line" with the way Varelli was handled, but he also maintained that there were no violations of constitutional rights committed by the FBI.

Director Sessions requested that the Attorney General approve the formation of a working group consisting of members of the FBI and of other officials within the Department of Justice but outside the FBI to make recommendations regarding the modification of existing FBI guidelines; he restricted to FBI headquarters the decision to initiate an international terrorism investigation; he refined the review process; he ordered additional training of agents in regard to First Amendment activities; and he moved all records accumulated during the CISPES investigation to the National Archives. He also disciplined certain personnel involved ...


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