Raided by the FBI: What to Do
by Sue Basko, esq.
This is a guide for activists who have been or might soon be raided by the FBI. This applies to online and IRL (in real life) activists. After a recent raid of a client, I spoke with a lawyer for the FBI. She was perturbed that I used the word "raid," rather than her preferred term, "execution of a lawful search warrant." The legality of such searches is always in question. And, when a person's home is stormed by FBI agents with guns, it is popularly referred to as
a raid.
This guide
does not apply to you if the FBI is raiding you mainly for stashes of guns, bomb-making supplies, chemical agents or other weapons, illegal porn or obscenity, drugs, or because you have bodies hidden in your crawl space. Okay? You're not an activist.
This guide also
does not apply if the FBI raid is on a business. For helpful hints on how to prepare and deal with a business raid, see this
GUIDE by the law firm of Kirkland and Ellis. Some of the ideas in that guide, such as videoing the search, sound difficult to pull off. However, the guide is likely to be helpful overall and it is well worth reading now and implementing the advance preparations.
WHY THE FBI RAIDS ACTIVISTS: The FBI ostensibly raids the homes of activists because they believe that by searching the homes, they will find evidence of a crime. In fact, it appears that the FBI conducts raids on the homes of activists to rein them in, warn them, threaten them with what could happen, to cause them trouble in their lives. Raiding the home of an activist has a chilling effect against that activist, their group, and may scare off other participants from exercising their First Amendment rights.
The legally stated purpose is that an FBI agent believes evidence of a crime will be found in the house. That crime does not have to be one committed by you for your home to become subject to a search warrant. The alleged crime may be one committed or planned by others in your group. That's why it's real important to watch out who you let into your activist circles and to exclude those advocating violence, etc.
Today's buzzwords that help back up "probable cause" to raid an activist include: anarchist, black bloc, Anonymous, hacker. Back in the 1950s, it was Communists. In the 1960s and early 1970s, it was anti-war, SDS, Yippie. In the later 1970s and 1980s, the focus was on cults and communes. In the 1990s, the fear was of protesters against animal and ecological abuse. The 2000s brought fear of alleged terrorists. Now, it's Black Bloc with their bandannas and Anonymous with their Guy Fawkes masks.
Be careful not to portray yourself or allow others to portray you in ways that do not reflect reality. For example, an online news site wrote of one of my clients, "Another Anonymous Hacker Raided by FBI." I pointed out that he was not a "hacker." Then, they called him an "Anonymous Leader." Again, I pointed out -- he was not a leader, and Anonymous has no leaders. Another irresponsible website called one of my clients "a mind control occultist." He had nothing to do with mind control or the occult. And on and on. If the website or writer is not malicious, they will make the correction and remove the offending material.
SIGNS YOU'LL BE RAIDED:
1) Harassment. Before the home of an activist is raided, the FBI will almost always make contact with that person. This is in the FBI protocol handbook. This may happen in the form of a contractor. Usually, there will be someone in person or online who is harassing, following, being too nosy. Or there may be several people. If you are an online activist or have an online presence, there are likely to be so-called "trolls" or abusers bothering you. Some activists, before and after being raided, have been harassed, impersonated, lied about, etc., by strangers or acquaintances online. Many of these harassers may be sock puppet personas. The activist may "know" the persona, but not know in actuality who is behind it.
The correlation between being abused online and being raided is very strong, and it can be most helpful to take action to block the abusers.
2) Visit from an agent. An FBI agent or two may come to your door to talk to you. This may happen months before you are raided. If they show up at your door, you are on their radar. Anything you tell them can and will be used against you. It is illegal to lie to an FBI agent, so you are much better off declining to speak than rattling off a mistruth. "I don't know," is a lie if you do know. If there is a situation where your telling what you know is likely to save lives or keep people safe, then there is good reason for you to share what you know. Otherwise, the usual legal advice is to say you cannot talk, but ask for a business card. Then you can speak with a lawyer and decide what to do.
3) Someone casing your place. Before the FBI gets a warrant for a raid, they send an agent to the building to get very exact directions and descriptions on how your place can be found. They take photos of the building exterior, and hallways and doorways. If you are in an apartment, they may get a floor layout from the management. These items end out attached as part of the search warrant. Several people who have been raided noticed this reconnaissance mission about 1 - 2 weeks before they were raided. There was someone who did not belong. The person will go all the way to door and past it, to see what is beyond. Several people who have been raided have told me they saw such a person at their home or apartment building, and thought it odd. It can be a warning sign that the warrant is being prepared and a raid is imminent.
4) On the day of the raid: WHEN: Most federal search warrants are required to be executed between 6 a.m. and 10 p.m. Most raids take place bright and early. A search warrant can be executed while no one is home, and the door will be broken into. On homes, that is rare, though I have heard of it happening on offices of activist groups. If the FBI claims that you present a special risk, they can ask the Judge to allow the raid to take place at any time. That's when they do a raid at night using night vision goggles, etc. This is more likely if there is strong reason to think there are weapons likely to be used by those inside.
Local police are also more likely to conduct a raid at night, use flashbangs, hold those inside handcuffed and at gunpoint, etc. Local police units conducting such raids tend to be sloppy, illegal, and highly dangerous. The FBI will usually follow the FBI rules, which require the raid to be conducted between 6 a.m. and 10 p.m., and using force only if needed.
Several people have told me that the first sign they knew they were being raided was they heard unusual sounds. These may be the sounds of many vehicles arriving, agents surrounding the residence, a walky-talky radio, voices heard outside windows that are in private locations, the sound of things being moved outside, such as patio furniture being moved, nearby dogs barking, etc.
Where force is used, the people may hear flashbangs, which are percussive fireworks, loud bangs that sound like very loud gunshots or a small explosion. I guess the flashbangs are supposed to wake up the occupants and let them know they are being raided. After flashbangs are used, the raiders then shout out "FBI!" or "Police!" This generally scares the shit out of the people inside, and sets the tone for a very aggressive, unpleasant experience for all. It is illegal for the FBI to use force unless a Judge has given permission in a warrant or if circumstances truly require it, which they rarely do.
5) On the day of the raid: HOW: Often, an agent will go to the front door of a residence. When the person answers, the agent will announce he or she has a warrant. They are supposed to show the warrant and give a copy. Then the raid team will enter the residence.
6) On the day of the raid: WHO: In most raids that I know of lately, there have been 12 or more agents entering the home, and guns have been drawn. The people participating in the raid may be a combination of FBI, NSA, local police, US Marshals, Secret Service, DHS, etc., depending on the location and situation.
7) THE WARRANT: Affidavit. To get a search warrant, an FBI agent must write up an affidavit, which is a document that has numbered statements of alleged fact on it, and it is signed. The affidavit must tell WHAT crime the agent believes has been committed and WHY he thinks there is evidence to be found at your house, and WHAT evidence he thinks is at your house. The FBI agent then brings the affidavit to a magistrate judge, who decides whether or not to issue a search warrant. I am told that if a magistrate judge wishes to keep his job, he approves all search warrant applications brought to him by the FBI.
In theory, the person named in the search warrant may be able to get a copy of the affidavit. This can be useful as evidence to challenge whether there was probable cause to conduct the search. In reality, most federal cases against activists are kept sealed and the documents are not revealed. Many such searches do not turn into indictments and are never unsealed. Thus, it usually remains a mystery what probable cause, if any, was used to get a search warrant on the home of an activist.
A search warrant is usually against a specific location. That might be a house, an apartment, an office, a storage locker, etc. I have also seen search warrants against a specific computer server or against a server cabinet. The search warrant will specify if it is looking for items belonging to or under control of a certain named person.
WHY IT IS SO IMPORTANT TO AVOID "TROLLS" ONLINE: Many of the "trolls" online are actually people working as contractors/ informants. It is very likely their (mis)information is used as a basis for probable cause to get a search warrant. "Trolls" are known to lie, fabricate entire events, circumstances, and connections, impersonate, fabricate responses, set people up to respond or participate in their own self-defense, create false documents, send false emails, and on and on.
This is why it is so important for activists to shun "trolls" or those with "trollish" behavior. It should be assumed that any person engaging in such behavior has a paycheck coming for it. If not, then they would stop such behavior upon having it pointed out to them that it is socially unacceptable.
From what I have seen in recent case after case is that online "trolls" harass and stalk the activist target before and after a raid. In the case of Barrett Brown, "trolls" were even present in the chat room while he was raided and arrested. The correlation between an activist being harassed by "trolls" and being raided seems very high, and it seems the higher the intensity of troll activity aimed at a person, the higher the likelihood they are to be raided.
8) THE WARRANT: What's in it. The search warrant lists what places may be searched and what may be taken. You should ask upfront for a copy of the warrant and read it before allowing the agents into your home. Of course, it is hard to have the presence of mind to do such a thing when you are confronted by people with guns. If you can do so, calmly take your time and read the warrant. This could easily take 20 minutes or more, as there are likely to be 4 - 8 pages. It is a good idea to read it.
NEVER GIVE PERMISSION for any area to be searched if it is not listed on the warrant and never give permission for anything to be taken if it is not listed. NEVER sign anything agreeing to any such actions. For example, a warrant may be for items under the control of the person named in the warrant. If the residence is shared, permission should never be granted to search the rooms or seize items not under control of the person named in the warrant. This is especially crucial in roommate or shared housing situations or in family situations where there are older or adult children. ALSO, as to planning, if you are in a shared housing situation, it is a good idea to have a house rule that no one is allowed to keep their personal items in shared common spaces.
It can also be extremely dangerous to share a computer with anyone. And if you have wifi, have each person have their own password. Never leave wifi unprotected without a password. It is a good idea to password protect a computer if you are leaving it alone. I had a client years ago, a university student, whose landlord was entering the apartment while the student was at school. The landlord would use the student's computer to download obscene materials. Try to be sure no one else has access to your computer(s), because you can be blamed for everything that takes place on your computer.
10) WHAT IS LIKELY TO BE TAKEN IN A RAID: When searching the home of an activist, the items that are most likely to be taken are:
- Computers of any kind or size, hard drives, disks, data sticks, and any other data storage device.
- Cell phones.
- Notebooks and papers.
- Photographs.
- Masks, banners, pamphlets, fliers, bandannas.
Other Items: If any other items are in the residence and are illegal but were not listed on the warrant, a second warrant may be issued. For example, if there are illegal weapons of any kind or illegal drugs, even a pot plant, the agents may hang around for a long time while one goes and gets a second warrant to take those items.
11) SEARCH: What they do: Many agents with guns will enter your home. They may handcuff you or the other occupants. They may force you to stay in a certain location. They may say you are free to go, but most likely, you want to be there to have some idea of what they are doing to your stuff. There will be one or more agents who will work on your computer, possibly downloading things or checking things. They will later pack up your computers and take them. The other agents will tear your house apart, moving furniture and dismantling things. They will load things into bags and carry them out. They will leave your home in an absolute, ransacked mess. They will give you a receipt for the items they took. You may lose your data, your records, precious photos, etc. They will take your computers, phones, papers, etc.
12) TRUST. It bears mentioning that once your home is searched, you will never again trust the government or law enforcement. If you are an activist, the same applies to your relatives, neighbors, friends, your circle of activists, and others who hear of the situation. I estimate that for every FBI raid on the home of an activist, trust is decreased in probably over a million people, in varying amounts, and for a time period probably extending 50 years. The ripple effect seems to be very wide and very long-lasting. These kind of raids harm the fabric of society and erode any confidence in the integrity of law enforcement. It is very easy to view law enforcement officers as thugs when they show up at the homes of citizens and take the computers they use for their work, the phones they use to talk with family and friends, years of personal photos, and personal journals. At this time, such raids have become widespread. We are in a dire time in U.S. history. Please pay attention.
13) SEARCH WARRANT VS ARREST WARRANT: A search warrant gives the FBI the right to search the place and seize the items listed in the warrant. An arrest warrant gives them the right to seize and take a person. Once an activist has had a search warrant against their home, they are usually afraid that an arrest warrant will follow. By the apparent numbers, this rarely happens. Most of the searches appear to be "fishing expeditions" or based on false or trumped up "probable cause." (Hence, see the notes herein warning about "trolls.")
After a raid, it may be in your best interest to get off social media, or if you stay on, at least remove contact by trolls or problematic people. It may also be in your best interest to let your lawyer handle certain contacts, such as with media, people with questions or concerns that seem nosy or inappropriate, etc.
WHAT TO DO and DON'T DO DURING A RAID:
- DON'T answer questions and don't offer information.
- DON'T interfere.
- DO Make it known if you have medical conditions that need to be tended to.
- DO get a copy of the warrant and read it before you let them in.
- DO get a copy of the receipt.
- DO try to call a lawyer.
- DO take videos or photos of the agents, etc. You are legally allowed to film law enforcement officers while they are working, so if you can, then do so. It is likely to cause a ruckus, so be aware if you are going to try it.
The Right to Remain Silent only works for those who keep their mouth shut. If you start blabbing, trying to explain, offering information, trying to assure the officers that you have done nothing, answering questions, etc., you are giving up your right to remain silent and everything you say can and will be used against you. Can and
will be.
WHAT TO DO AFTER A RAID:
- Get a lawyer. This is crucial. You don't necessarily need a criminal defense lawyer since you have not been charged with anything. But you need a lawyer to protect you and look out for your good. Ask around for lawyers from different organizations. Put the word out that you need a lawyer. Most often, there will be a lawyer willing to help you. Once you get a lawyer, let them handle things for you, such as any contact with the FBI. Also, let your lawyer screen or front media contacts for you. Let them decide if they want you to talk with any given media person and on what terms.
- Try to get your stuff back. Have a lawyer work on this. There is a motion that can be filed to try to get your things returned. The requirements of this motion are nearly impossible to meet, so much so that it is unlikely anyone has ever gotten their items returned by using the federal motion. In addition, since most activist cases remain sealed, there is no way to really file a motion since the paperwork cannot be viewed. Also, if the items can be replaced by purchasing new ones, it is assumed in law that you can simply go buy new ones -- even if you have no money. Also, after a certain amount of time when charges are not filed, sometimes the FBI will just return your items. Have a lawyer ask for you. Don't do this yourself.
- Get medical help. If your home has been raided, you likely have medical injuries as a result. This can come from being held in one place for too long, not having medications, from the stress and shock, from handcuffs, etc.
- Get psychological help. You have been in a terrifying situation and it is best to have professional help to deal with it. You will likely experience nightmares, panic, fear, etc. You may face loss of a job, an apartment, and even loss of some friends.
- Decide if you want to go public. This is something you should carefully consider. Most activist cases are kept sealed during the warrant phase. If you don't publicize it yourself, it may not become public news. People have been fired from jobs or lost their apartments because of being raided by the FBI or police. In most situations, this is legal. On the other hand, the only way to gather support is by letting others know what happened and what kinds of help you need. A downside is that going public tends to draw more "trolls" who are likely to criticize, lie, spread misinformation, harass your friends and supporters, stalk your lawyer, and try to thwart your efforts to gather funds or support.
- Avoid Online "Trolls" or in-person Stalker types. These people may be merely annoying busybodies, but they may also be contractors or informants or agents trying to gather information or trying to trick you into saying something or doing something that will give cause for you to be arrested, and will impede your efforts to get legal help, funding, or support. You may be best to get off social media for a while, or to limit your contacts and remove those who are trolls.
ADDITIONAL SEARCHING THAT MAY HAPPEN: When your place has been raided by the FBI, you are under investigation, and it is not likely to stop with the search of your home. In addition, the FBI may also have a secret warrant to place a video surveillance camera in your place, and may be doing that during the raid, if it is taking them a long time. They may also get warrants or subpoenas against your email, social media, and other online accounts. They may also do a "mail cover," which is when they ask the postmaster for data of all the mail that has gone to and from your address. The outside of all mail is photographed and when a mail cover is requested for a certain span of dates, that information is turned over to the FBI. They may also subpoena your ISP (internet service provider) or phone records. If they wish to listen in on your phone calls, they may place a fake "stingray" cell tower that attracts your phone signal, so they can listen in. If you drive a car, they might get a
subpoena to put a gps tracker on your car.
As one of my clients says, in the face of all usurpations of your constitutional rights, "Just keep swimming." Just keep engaging in legal, constitutionally-protected First Amendment activities.
David Coombs, attorney for American prisoner of conscience US Army Pvt. Chelsea (formerly Bradley) Manning, will speak at three upcoming West Coast events hosted by the Private Manning Support Network. Mr. Coombs continues to represent the heroic WikiLeaks whistle-blower recently sentenced to 35-years in military prison.
