by D.B. LeConte-Spink (www.wrinko.net)
I authored this article during my time as a political prisoner, in 2011. It was submitted to the good folks at 2600 Magazine, who published it in the Spring 2013 edition. I believe the concerns I raise in this article are more important now than when raised in 2011, and that they'll get more so over time. Unfortunately. My hope is that these hard-earned bits of wisdom prove useful to many other activists in the months and years ahead.
Lately, the daily news cycle has been filled with the story of Chen Guancheng, a Chinese human rights activist, self-taught lawyer... and target of what is routinely described as "extra-legal harassment" by local Chinese authorities. After serving years in prison on trumped-up charges, he was "released" to his home - only to find himself imprisoned there by armed thugs, working for the state. These thugs not only put him on de-facto house arrest, but they also prevented his free contact with outside parties, attacked his family members, and otherwise made his life miserable - for more than two years. This spring, he "escaped" (from what was, theoretically, freedom) and has been engaged in high-stakes negotiations to save himself and his family from further state-sponsored, extra-legal harassment.
The purpose of this article is to explore the concept of extra-legal harassment, to outline the main techniques used, and to share hard-won lessons as to how activists can most effectively protect themselves against these forms of attack. It is essential for activists of all flavors to be aware of the risks of such extra-legal attacks, as they are becoming increasingly commonplace - and are increasingly the "go-to" tactical response of censorious, police-state regimes seeking to silence voices of dissent. Unfortunately, this is far from unique to heavy-handed regimes such as that found in China - extra-legal attacks are now routinely deployed by agents of the American censorship regime, and even appear to be spreading to Europe in some cases. And, while it's true that extra-legal harassment is becoming more commonplace, it's also true that the roots of this suite of anti-dissident tactics run historically deep. By understanding both contemporary examples and some of those deeper roots, we are best able to illuminate the risk landscape of extra-legal harassment.
If it is true that these kinds of attacks are more common nowadays, what is the driver for this uptick in extra-legal tactics? Ironically enough, evidence suggests that the rise of extra-legal tactics is directly - and negatively - correlated with overall increases in formal, legal protections offered to dissidents, minorities, and activists worldwide. Two examples: not only are (some) previously-persecuted sexual minorities now explicitly protected from discrimination by newly-passed laws, but the general concept of respect for diverse opinions is recognized (or, at the least, given lip service) by court systems in more and more countries. In America, the famous Lawrence v. Texas ruling by the Supreme Court removed once and for all the (legal) grounds for discrimination against minority sexual orientations. In Spain, critics of the Franco regime (and its descendants) speak more and more openly, with the support of judges actively supportive of genuine human rights. However, the more that courts actually embody a respect for the even-handed application of rule of law (and for genuine diversity in human affairs), the more that opponents of exactly these trends are forced to seek extra-legal tools to attack activists, dissidents, and minorities. So, in this sense, the success of legal campaigns for formal equality of treatment under law lead indirectly to extra-legal harassment.
Perhaps the canonical example of modern extra-legal harassment is, of course, the persecution brought to bear by rogue U.S. government officials against the WikiLeaks team. All of the elements of an extra-legal campaign are to be found in this example: an absence of substantive claims of any actual laws broken; whipping-up of mob frenzy and demagogic hatred towards the victims; reliance on elements of the corporate-oligarchic power structure to implement punitive measures; and the shadowy nature of who, exactly, is managing and implementing the extra-legal campaign itself. These are all red flags for a coordinated, extra-legal attack. However, despite the broad nature of extra-legal attacks promulgated against the WikiLeaks team, there's an even bigger menu of possible extra-legal tools that have been deployed successfully by rogue state elements. These include...
The use of disinformation, misinformation, slander, and planted lies in order to smear targets of governmental ire is perhaps as old as central government itself. However, modern forms of black propaganda ("white" propaganda is disinformation spread to make one side of a conflict look good; black seeks to make the other side look bad) have reached their nasty apotheosis in the work of both the Soviet KGB/FSB and the American CIA, during the Cold War. As the two superpowers battled back-and-forth in their propaganda wars, the techniques they developed inevitably leaked back into civilian spheres. Perhaps most famously, in America the FBI (& other agencies) engaged in an orgy of illegal propaganda campaigns against Native American activists, Black Panthers, peace proponents... basically, anyone who dared to stand up to American hegemony. Dubbed "COINTELPRO," this massive program was eventually unmasked by congressional investigators - although (predictably) not one of the thugs-with-badges who conceived of, implemented, and profited from this illegal conspiracy ever went to prison for their crimes. While far from unique, the disclosures that came from the COINTELPRO unmasking demonstrated authoritatively that black propaganda is an effective, efficient, and always-tempting tool of governmental forces bent on destroying a target's life - without bothering to bring criminal charges.
Classical forms of black propaganda involve spreading lies about a target's sexual life, family configuration, religious beliefs, personal past (particularly "crimes" they never committed), or any other wedge issue that can turn mainstream public opinion against the target. Sometimes, false "proof" of such claims are fabricated by the authors of black propaganda campaigns - but that's not always the case. Particularly when coupled with press hit-jobs (see below), black propaganda can be successfully deployed with no objective "evidence" whatsoever. It's worth nothing that the Pentagon has invested heavily in tools to spread disinformation via online social networks, which are an ideal vehicle for their transmission. In the WikiLeaks extra-legal assault, claims of "rape" were an effective tool of black propaganda against a key team member: although objective, factual data disconfirmed any such claims, the spread of the "rape" meme served a useful function in splintering supporters of the team, distracting the public from the deeper story unfolding, and draining the emotional and financial resources of the propaganda's targets. In other words, it worked.
Whilst black propaganda involves disinformation aimed at discrediting a target, a frame-up is less subtle. And, while frame-ups are indeed part of the extra-legal toolkit, they make use of the formal legal system as key element of their approach. When we think of examples of activists being the victim of frame-jobs, examples that come to mind include Soviet-era campaigns to "convict" noted dissidents of "crimes" that never took place. The pure-form are the famous Stalin show-trials, in which party cadres who had fallen from favor were paraded through court hearings that remained formally rigid in their adherence to procedural standards - even as it was clear to most observers that the actual charges (and any putative evidence) were entirely fraudulent. Lawyers were present, judges sat in studious postures... but the whole thing was built on a foundation of shit. They were kangaroo courts, hearing "cases" that had no substance.
Modern frame-ups, in contrast, tend to be both more subtle and more insidious. This is particularly true in the U.S., so-called "land of the free," where the crime of "conspiracy" has grown in the penal code like noxious, deadly plague. Nowadays, Americans (as well as citizens of other countries, who can be freely kidnapped from anywhere in the world by US forces, whether they've ever set foot in the U.S. or not) can - and routinely are - sentenced to decades in prison for "conspiring" to do things... without ever taking active steps to do anything. Of course, the ground was prepared for such injustice as the War on Drugs turned mere discussions about narcotics into federal crimes - but today, conspiring to commit essentially any "crime" can result in indictment, trial, and imprisonment. This is ideal for frame-ups, because the only "evidence" that need be presented in court is statements from self-professed witnesses/co-conspirators. So, if a corrupt prosecutor wants to send a dissident to prison, all she need do is illegally pressure some sorry target into making a false statement against her target - and he's off to federal prison, for years (I know all about this one, firsthand). Any activist is at-risk of such frame-ups, since by definition activists work closely with other colleagues, contacts, and allies of varying degrees of familiarity and law-enforcement-resistance savvy. All it takes is one or two of those contacts to be pressured into making false statements, and the frame-up is a success.
Worse yet, think on this: if a corrupt cop (or prosecutor, or whoever) really wants to attack an activist, she can do this: have him arrested and seize any computing devices he might be carrying (smartphone, tablet, etc.). Gain access to the filesystem, and plant a few select files (including, say, images of underage humans... of which law enforcement agencies have endless libraries available at their fingertips) - being careful to ensure the metadata is all doctored appropriately along the way (cop-only forensic tools like EnCase make this trivially easy even for technical noobs); now, you've got an indictment, a guaranteed "win" in front of an enraged jury, and decades in prison for the activist. Even if the activist protects himself with well-implemented encryption, what's to stop that corrupt cop from simply wiping the entire HD, installing a new OS, and planting a few files on that? Sure, the target can hire his own forensic experts to contest the whole setup... but who will the jury _really_ believe? If this sounds far-fetched, remember that the only thing preventing such things is the assumed "honesty" of cops. Given how many cops are busted, each and every day, for all manner of corruption and lawbreaking (and those are only the ones who are caught!)... do you feel lucky, punk? If only 1 in 10 cops are corrupt, that's still a 10% chance of going to prison for decades.
A related form of extra-legal harassment to overt frame-ups are paper-thin indictments. This is, again, more common in the U.S. since there's essentially no cost to a prosecutor who brings frivolous, mean-spirited, or outright bizarre indictments against targets. Once an indictment is birthed - and essentially any prosecutor can whip one up on their word - the target is officially a "defendant." He can be arrested, strip-searched, paraded in front of a frothing, naive press corps. He can be imprisoned, denied bail (if the prosecutor claims he is a "threat to society," regardless of facts), placed in solitary confinement, denied access to attorneys (incidentally, every one of these has been done to me, personally, so none are as far-fetched as they sound). From there, he has to try to defend himself. Good luck with that. Sure, in theory, one is "innocent until proven guilty." Keep reminding yourself of that as you sit in solitary confinement: denied access to phones, legal mail monitored by police goons, etc.
The power of paper-thin indictments is that they can set the entire tone of debate when it comes to their targets. He's a "defendant," and he's "accused" of whatever crimes the prosecutor makes up. Even if he "wins" and beats the indictment, the taint of that entire experience will stick to him, essentially forever. It's really a form of modified black propaganda - using the criminal system as a white-hot branding iron. Worse still, in the U.S. the defendant will need to pay for his own defense (or he can rely on overworked public defenders... if he's a complete fool) - and even if he wins, he's not reimbursed a penny for his costs. With the deck stacked that firmly against defendants, the paper-thin indictment is a tried-and-true tool of extra-legal attack. Finally, the corrupt prosecutor can use the vacuous indictment as a fishing expedition, thereby putting pressure on friends, colleagues, and associates (see "Support Network Attack," below) and perhaps generating a genuine frame-up along the way.
Once again, the WikiLeaks example - the Swedish "rape" hysteria - serves as an excellent example of this form of extra-legal attack. Whether the target is ever actually "convicted" or anything, or not, is largely irrelevant.
Support Network Attacks
Many dissidents, activists, and social-rights campaigners are willing to personally pay a high price in support of their chosen life's work. So, while government goons may well deploy any of the above extra-legal tactics against such individuals, it is unlikely those people will "break" and give up their work (forcing such a break is generally the goal of extra-legal attackers). When a target comes to realize that she is able and willing to withstand the worst a police state can throw at here and not only survive but actually thrive under the assault, she steps up a level and becomes all the more threatening to the forces of subjugation.
This is where support network attacks come into play. Even the most hardcore activist likely has someone in her life who she loves and who she would do (almost) anything to protect. Friends, family, colleagues, shareholders... even pets can be targeted in this kind of extra-legal assault. Let's say an anti-censorship activist has proven willing and able to survive and operate under withering assault from the censorship apparatus. Perhaps she learns that her aged mother is being harassed by tax authorities. Or, her brother is getting anonymous phone calls "warning" him that his sister's (imaginary, black-propaganda) sexual proclivities are going to be broadcast to a fawning press (a Press Hit-Jobs, below). What now? What activist can stand up under attacks against not only her, but her (relatively defenseless) loved ones, as well?
More insidiously, support network attacks can make use of the police state's corporate allies to sever essential components of infrastructure from targeted activists, teams, and projects. Yet again, we've got excellent examples of this attack in the WikiLeaks case - think of the American censorship regime's calling of "favors" from PayPal, Amazon.com, and the credit card associations in order to disrupt & delay the team's ability to receive financial support from its network of supporters. Another excellent example is the active cooperation of ATT, Verizon and other big telecom companies in the NSA's massive, illegal spying campaign against American citizens: even though all these companies knew they were breaking the law in doing so, they did "favors" for the U.S. goons and turned over details on countless activists to law enforcement thugs eager for any weapons to use against their targets. Note that no court orders were issued, no formal process was pursued; instead, it's the old-boys' network of police state supporters which enables these kinds of attacks. The signature experience of victims of such campaigns is an ever-increasing difficulty in procuring any kind of basic corporate services - from payment processing, through bank accounts, to advertising placements, hosting arrangements, public relations representation... you name it. When confronted, representatives of these various corporate interests will present dubious, ever-shifting explanations for why service has been suddenly cut off, denied outright, etc. - but, if pushed, they'll admit that they "got a call and received some information" and that they "need to make the right decision for their business, sorry." In recent years, the preferred avenue of attack by American goons seems to be payment processing: cut off access to financial resources, the censors seem to have concluded, and you handicap whatever target you've chosen. Choosing providers outside of highly-censorious countries is a great idea... but the arm of police states is longer than most folks think, and they can "call favors" from corporate entities halfway around the world if they so choose. Surprisingly few companies have the backbone, integrity, and honesty to stand up to such "requests" for police state assistance. If you think you might be a target of this one, choose wisely when it comes to service providers - that tiny minority willing to stand tall against the covert pressure to cooperate is worth more than its weight in gold.
This form of extra-legal attack is almost always combined with one of the others listed above, and in an age of hyperbolic media frenzy it's both deadly effective and increasingly commonplace. However, we must distinguish press hit-jobs from the general tendency of conventional press outlets to demonize that which they do not understand. The latter is a habit of mainstream reporting that is as old as the press itself, and we really can't label it a tool of state repression so much as a bad habit of humanity itself. However, the former is an dark art that has only come into itself fully in modern times. Even so, there's examples of press hit-jobs that go back much further - in pre-revolutionary America, political authorities would issue anonymously-printed, slanderous handbills against hated colonial agitators... a good example of extra-legal attack. In all press hit-jobs, the core of the attack lies in the distribution of false "facts" to press organs willing (or eager) to publish them, and the refusal of those same self-styled "journalists" to fact-check these lies into oblivion, or print corrections once these false facts are called to account.
In the modern context, one can identify a press hit-job by several signature attributes. One is that the source of the slanderous "information" (actually, disinformation) is almost never listed by name. Instead, these stories are attributed to "anonymous government officials" or "police sources" or some such. This helps to shield the perpetrators of such smears from civil liability for defamation. Two, the smears themselves are at once seemingly specific, and yet remain blurry and indistinct. Perhaps someone is accused of "ties to criminal hacking groups," or "involvement in serious illegal activities." Most perniciously, a press hit-job will sneak in a mention to some kind of alleged "underage content" and let readers fill in the blanks themselves (read: CP). Three, if the target of such a hit-job tries to contact the writers who have foisted off such lies on their reading public, the authors take extraordinary steps to hide from accountability. Phone calls refused, emails unanswered. Go up the chain of command to publishers, ombudsman, and the like, and the same holds true: the wall of silence. No correction will ever be printed, no apology offered. The hit-job exists to smear, and factual reality has no role to play.
Of all the extra-legal tactics discussed thus far, outsourced thuggery is perhaps the most frightening when deployed aggressively. In modern society, the central government retains what political scientists call a monopoly on violence. If someone assaults you or robs your house, you're supposed to call the police - who will handle capturing the attackers, punishing them, and so on. They have a monopoly on the use of force in society, and you are able to - indeed, _required_ to - allow them to take care of such matters on your behalf. It's a fundamental tenet of rule by law.
However, this aspect can be turned on its head by extra-legal partisans within government. Let's say you are a dissident and local cops don't like you as a result of your political beliefs, activism, online work, whatever. If they send actual, badge-carrying police to your house to beat you up, you're surely going to sue them in civil court and it's even possible you'll win the case (although unlikely the cops would actually go to prison, in today's day and age of "protect the cops" politics). However... if the cops simply authorize someone _else_ to assault you with the promise that the attacker won't face any kind of prosecution or punishment and, in fact, will receive some form of "off the books" benefits from the cops, then you've been the victim of outsourced thuggery. A particularly nauseous form of this extra-legal attack involves the cops telling thugs that it's "fair game" in stealing from targeted activists - the benefit promised to the thugs is that they can keep whatever they steal, no questions asked, no prosecution. As an activist facing outsourced thugs, you can't actually fight back against them - since you'll be charged with "assault" if you engage in violence (which the police, remember, have a legal monopoly on). You're in a Catch-22 situation, damned if you do and damned if you don't. Outsourced thuggery can escalate to vicious physical attacks or even murder (this happens, for example, in Russia to many dissident leaders and brave journalists exposing official corruption); in America, it's more commonly a tacit agreement that police will allow vigilantes to target activists without any risk these attacks will be prosecuted.
I've faced outsourced thuggery myself, and - after my home was burglarized and valuable assets stolen by a known thief - been told by the prosecutor in the county where I lived that (and I quote verbatim) "the law doesn't exist to protect _people like you_." This is an excellent example of the tactic. Unfortunately, it's extremely difficult to fight back against these kinds of harassment - one cannot, in practical terms, "force" a prosecutor to bring a case against outsourced thugs. Worse, for those of us who much prefer not to ask police or other compromised authority figures for "help" or for any role in our personal lives, we're already hesitant to call the cops when we are attacked. In point of fact, the best response to outsourced thuggery - as we'll discuss below - is to document the circumstances and aggressively publicize the specific details of corrupt police-state employees who partake of this form of extra-legal attack.
Finally, a straightforward extra-legal attack involves police-state forces simply stealing the target's personal property in order to hamstring her ability to continue her activist work. Perhaps a car is impounded for "bad tags" (even though tags are in order), or real estate is suddenly encumbered with liens, old tax bills, and so forth. For technology-centric activists, an increasingly common tactic is to steal computers, servers, smartphones, etc. This is technically "illegal," of course - but good luck holding police to task for it. The target might someday get back the expropriated property... or not. Personally, I'm fighting for return of a stolen, encrypted computer currently - the Feds want to give it back, but wipe it of all data first. This is an excellent example of extra-legal expropriation of 100% legal, private property.
Surviving the Attack
For those who find themselves the target of extra-legal harassment, the experience can be disorienting. Indeed, that's part of the proven effectiveness of such tactics - particularly in countries where "the rule of law" is touted as more than just an empty slogan (in other countries, where state power doesn't even pretend to follow laws, extra-legal harassment can be just as damaging, of course - albeit less surprising). The uncertainty and sense that one is, for lack of a better phrase, living in one of Orwell's brutal dreams can lead one to a sense that there's little way to mount an effective defense. That feeling is, I've realized, an essential part of the extra-legal puzzle: it's demoralizing, disempowering, and profoundly disorienting.
However, having survived a spate of aggressive extra-legal harassment by U.S. federal goons, I've learned some valuable firsthand lessons that can serve other activists well. I'll break these lessons down into three broad categories: the power of survival, the catalyst of humor, and the leverage of reverse surveillance. We'll take these in reverse order.
Extra-legal harassment is undertaken by individuals within state power structures; this may seem self-evident, but it's worth emphasizing. Whilst the "criminal justice system" has itself evolved into a well-oiled, well-staffed, and well-insulated bureaucratic tool for suppressing and punishing dissent, the extra-legal tactics explored above are rarely systematized in the same way. Rather, they take place when a small cadre of corrupt state actors - the proverbial "thugs with badges," high on their own perceived power and feeling immune from any consequences - chooses to step beyond the boundaries of formal legal behavior and to, as they will often describe it, "take matters into their own hands." These groups are, by definition, small and ill-defined. Often, extra-legal harassment is enabled by the phenomenon of "cops helping cops," i.e. the old-boys'-network tendency of badge-carrying thugs to assist each other, cover for each other's crimes, and generally support their assumed position "above" mere mortals such as taxpaying citizens (and activists, of course). These unofficial networks of corruption are extremely vulnerable to disclosure and disintegration via the harsh spotlight of objective publicity. And while these thugs will usually declaim their putative loyalty to their fellow conspirators, in point of fact they will routinely turn on one another if one is aggressively exposed in his criminal, extra-legal shenanigans. Consequently, an extraordinarily powerful reply to extra-legal assaults is what I call reverse surveillance: discovering, documenting, and disseminating the fine-grained details on individual participants in such corrupt cartels. This can be done via litigation (RICO-based civil claims are particularly powerful in their ability to use "discovery" to uncover hidden connections and personal details), via social engineering, via old-fashioned investigative research... or a combination of all three. The key step is publishing these data, in a secure, non-censorable location online. When corrupt thugs find themselves in the unwanted spotlight of public awareness, they often as not sell each other out, deny their past actions, and otherwise set themselves up for even more legal difficulties when the inevitable civil litigation unfolds. The old saying is that sunlight is the best disinfectant; this is certainly the case when it comes to extra-legal gangs.
The second effective response to extra-legal harassment is humor. This may seem surprising - or even counter-intuitive - but it's nevertheless true. The kind of corrupt cop who engages in extra-legal attacks against dissidents and activists is generally extremely puffed-up with sanctimonious self-importance (either due to religious beliefs, deeply-held personal prejudices, or just the thrill of causing harm through the use of force) - these kinds of people seem to have been surgically stripped of their sense of humor. This would be merely sad, did it not also open up an extremely useful weakness: they cannot stand to be laughed at. Indeed, one of their worst fears seems to be serving as the butt of jokes they cannot control (like all bullies, they can throw punches but are constitutionally incapable of taking them without crybaby panic), and therefore turning humor on them preys on those fears in a tangible and profound way. My personal advice on using humor to crack the shell of extra-legal cop conspirators is to craft the humor memes in such a way that they act as a caricature of the very hatreds, prejudices, and bigotries that the conspirators hold most dear. Thus, for example, if an extra-legal assault is powered by the cops' personal prejudice against a minority sexual orientation, an effective humor-based counter is to author "camped-up" faux press releases in the name of those same key conspirators - and release them to news agencies. This kind of satirical publication is well-protected against censorious (legal) attack in most all civilized countries; it's also proven effective in placing its targets in a Catch-22 position. Like the man who is asked when he stopped beating his wife - and can't answer the question without indirectly acceding to the frame of the question itself - the target of such hyperbolic satire is, even in denying the satirical statements attributed to her, inevitably linked to the topic itself in all future search engine queries, as well as in the public mind. They hate this, trust me. Humor is their nightmare - use it wisely.
Finally, there's a deep structural reality to extra-legal harassment: as Mr. Chen has proved through his durability despite years of extra-legal repression by Chinese state authorities, the ability to survive is the most fundamental weapon of all. When the extra-legal hits just keep coming - when they escalate, and mutate, and seem like they'll never end - one fact always: the attacks will end, sooner or later. Those who can survive them (however they manage to do so), and not only survive but retain their integrity and even sense of humor, have "won" - and corrupt authority figures know this. Extra-legal campaigns are always of a limited duration; it may be weeks, or months, or years... but it will end. Corrupt cops eventually lose interest, they betray each other and end up fighting amongst themselves, or their own ineptitude eventually "outs" them and their illegal schemes. It's inevitable. Those of us who are targets of such campaigns prove ourselves and prove our durability by outliving these nasty monsters. We do even more than that when we recover from extra-legal campaigns not only to continue our activist work, but to do so as smarter, wiser, stronger, and braver activists as a result. Most of all, we help construct a bulwark against attacks on other activists, in the future, by sharing our experience and hard-won knowledge - so that others can learn from what we've survived, and protect themselves more effectively at all levels.
That's been the intent of this article - to help you, the reader, prepare for this kind of attack. Pre-warned is prepared, and the ability to "de-mystify" the tools of extra-legal harassment is one of your strongest shields against any such situation you (or your friends, or family, or colleagues) may face in the future. Extra-legal harassment thrives in the shadows, it feeds on ignorance and a lack of visibility. The more we are able to name it, study it, and counter it... the more we take this tool away from power-mad central authorities who will (quite literally) stop at nothing to hinder the activists they see as their enemies. And, while these extra-legal tricks can be effective in a vacuum, they in fact turn on their corrupt initiators when we are able to see them for what they truly are: they are the last-gasp efforts of power-maddened thugs who, in their deepest souls, are nothing more than small-time bullies looking for a way to make someone else suffer for their own lack of genuine spirit.