Outlaw: Hi and welcome to Outlaw, a podcast where we demystify how the law is used to repress social movements. Today, we’re talking to Mo about federal repression and the NLG federal anti-repression hotline.
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Outlaw: Welcome to Outlaw, Mo. To start, could you introduce yourself, how you became the people’s lawyer, and your role in the NLG federal anti-repression hotline?
Mo: Hi, I’m Mo Meltzer-Cohen. I’m based in New York. How did I become a people’s lawyer? Well, I graduated from law school right in the middle of Occupy Wall Street and I aggressively apprenticed myself to a lot of people who were really active in representing the folks who were being targeted for arrest during that time, and those people were National Lawyer’s Guild lawyers and non-lawyer legal workers and legal observers. And they taught me everything I know.
Outlaw: So what do you do now?
Mo: I’m an educator and an attorney and I’m an abolitionist, and I live in New York and try to use the law to do harm reduction and increase people’s autonomy.
Outlaw: And you’ve been working on the NLG federal anti-repression hotline. Can you tell me about how the hotline got started?
Mo: Well, it’s kind of a funny story. Basically, what had happened was my personal cell phone became a little bit of a clearinghouse for people who were calling because they knew someone who knew someone who knew someone who had met me at a court appearance for a mass arrest somewhere in the country and had suggested that they call me to be either assisted directly or connected with someone who could assist them. And it really got to the point where it was so overwhelming that I just asked the National Lawyer’s Guild to just give me a phone number. First of all because it was a little overwhelming for me, but also because I thought, jeez, if this many people know someone who know someone who knows me are calling me, that’s not actually great, because then people who need this kind of assistance have to be a couple of degrees of separation from me specifically, which is not a great basis for accessing legal resources. So I was like, well if I can have a phone number that’s officially focused on at least connecting with appropriate legal resources, it won’t be contingent on someone knowing someone who knows someone who knew me at some point in the last five years in order for people to find what they’re actually looking for.
Outlaw: First, just to make sure everyone is on the same page, what are we talking about when we say federal repression? How does that differ from other kinds of repression?
Mo: Well, so when we talk about state repression, what we’re talking about, or what I’m talking about at least, is the use of state power, government power, to target, harass, limit, chill, disrupt, undermine, criminalize dissent or beliefs, associations, and activities that are protected by the First Amendment but are perceived by the government as being antagonistic to its interests. And when I say criminalize those beliefs, associations, and activities, I don’t necessarily mean that those beliefs, associations, and activities become illegal as much as I’m indicating that they are treated as though they are illegal or they’re treated as though they are a basis for government intrusion like surveillance, monitoring, and increasingly, prosecution, even including things that are not actually illegal.
Outlaw: So that’s when we’re talking about state repression more generally, and federal repression can look often like grand jury subpoenas, FBI door knocks, these are things that I feel like often come up when we talk about federal repression. Am I missing anything there?
Mo: I would say that the targeted monitoring, infiltration, surveillance, efforts to gather information for social mapping, efforts to plant misinformation, efforts to use people’s totally lawful activity in ways that are disruptive even if they don’t involve prosecution. So a lot of the tactics that the government used during COINTELPRO are things that we would still see now. Efforts to stir up division in communities, to exploit existing disagreements or even just personality conflicts. Things like that.
Outlaw: And another sort of marker that we’re talking about is that federal repression is repression that is carried out by federal agencies, although my understanding is that over the past 20 years, I don’t know if that’s a correct marker, there’s increasing collaboration between federal and state.
Mo: Yeah, I would say since 9/11, we really see an increasing merging of those interests, increasing assertion of federal jurisdiction or concurrent use of state and federal law enforcement resources, information sharing, things like what are called fusion centers and joint task forces. Particularly, the joint terrorism task force is a fairly recent animal of law enforcement.
Outlaw: And fusion centers are these secretive centers where there’s law enforcement collaboration, and they’re in different places in the country, right?
Mo: Yeah, they’re all over the country.
Outlaw: Tell me about what happens when you call this hotline, who should call, who shouldn’t call?
Mo: Okay, so this hotline really exists to field calls from people who are having encounters or who have had an encounter with federal law enforcement. Now this is getting a little confusing because right now, a lot of people are having contact with ICE. This is not an immigration hotline. This really is about people who are being politically targeted by, like, the FBI. That said, if you call this hotline, I will do my best to have a privileged conversation with you about your rights, risks, and responsibilities, and to connect you with appropriate legal resources. But if you are calling this hotline because you have been arrested by state or city police, or injured by state or city police, or are having an interaction with ICE, or have like a whistleblower matter, these are not the kinds of interactions that this hotline is actually equipped to deal with. This hotline really is to give you an opportunity to be advised in a general way about your rights, your risks, and your responsibilities, with respect to FBI door knocks and federal grand jury subpoenas, and then to be connected with appropriate legal resources in your area or in the relevant jurisdiction where this repression is happening. But if you call this hotline for any reason, whoever answers will do their best to connect you to the right people, okay. But if you’re looking at issues that have to do with protest related arrest, what I would encourage you to do is first reach out to the NLG chapter, the National Lawyers’ Guild chapter in your area. A lot of those do also have hotlines specifically to deal with those kinds of protest-related arrests, and also sometimes those kinds of protest related injuries.
Outlaw: What about stops at the border, like when people are at airports and are potentially being pulled back for questioning because of their involvement in protest activity? Is that a place to call this hotline, or is that outside of what you’re resourced to respond to?
Mo: That’s kind of outside of what we’re resourced to respond to, but I would say for those things, first of all, CUNY Clear has an Instagram and a website that has a ton of know your rights material on it, and if you are someone who is involved in social movements in a way where you think you might be pulled aside for secondary screening at an airport, I would make sure not only to really familiarize yourself with those Know Your Rights resources, but maybe to call an attorney in your area before you do international travel and have a specific conversation with them about what your rights are and whether they would be willing to be on call for you if you were to be pulled into that kind of screening, because at that point, you are probably not even going to have access to your phone. You might be in a situation where you’re pulled aside and all your devices are just taken.
You, by the way, never have to consent to letting any law enforcement look at your devices, but you should know two things. One, you don’t have to consent to them opening up your devices, you never have to give them your passwords, but if you don’t consent, they can take your devices, at least temporarily. And secondly, if you have a smart watch, I don’t care how good the encryption is on your phone, if your watch is connected to your phone and your watch isn’t encrypted, they can get into your phone through your watch. So pro tip, okay. And the third thing I’ll say about digital hygiene at the border is that if you have a finger print or facial recognition, any kind of biometric unlocking for your phone, they can just put your finger on it or wave it in front of your face and unlock it. The best practice here is to have an alphanumeric passphrase and a fully encrypted phone, but people really need to understand that just because your phone is encrypted doesn’t mean that someone can’t read its contents if it’s opened.
So, Roger Stone at one point had this thing where his WhatsApp messages, Paul Manaforte and Roger Stone were in a WhatsApp group, and they were really incensed that law enforcement had been able to read their messages, because they were like, they were encrypted. But like, they’re not encrypted to your eyes, they’re encrypted to your device, and if your device is unlocked, they can be read. So the fact that you’re using Signal, or the fact that you’re using WhatsApp does not mean that law enforcement is unable to read your phone if they’re able to get into it. So just information. Look, okay, back to the hotline.
Outlaw: Back to the hotline
Mo: With respect to the hotline, if you are somebody who is sufficiently involved in social movements that you think you might be pulled aside at an airport, you should have a separate conversation with your own attorney about that. And I would recommend calling your local NLG chapter, CUNY Clear. There are a lot of resources out there for this. This hotline is not going to be helpful in real time if that happens.
Outlaw: So, should people expect to get a real time answer when they call the hotline?
Mo: No, it’s actually sort of a warmline, so if you call, it will ring through, and it will prompt you to leave a very brief message including only your name and your phone number and we will call you back as close to immediately as possible. Often within 10 minutes, usually within 12 hours.
Outlaw: Okay, so because of the usually pretty quick response, it still would make sense for someone to call if the FBI is knocking at their door or something like that?
Mo: Yes. I cannot guarantee that we will always be able to put you in touch with someone who can represent you for free, but we will do everything we can to get you in touch with appropriate legal resources. And if you manage to reach us while feds are, in fact, actively at your door, we’ll help you to say the thing that you need to say. That said, you can just take a piece of paper and write the following on it. “Leave your name and number, and a lawyer will call you. I am not going to answer any questions without first speaking to an attorney.” You know, if they don’t have a warrant, that is all you should have to say. And if they keep talking to you, you can just repeat that. You can call the hotline, we’ll do our best to answer as quickly as possible, but those are really the magic words.
Outlaw: How does that work in terms of confidentiality? How can people know that they can trust who is on the other end of the hotline?
Mo: It’s going to be an attorney, so it will be a privileged conversation in contemplation of representation. We aren’t collecting anybody’s data. We’re not keeping track of it. And we wouldn’t give it to anyone anyway. But also, if the feds are already there, they know that you exist. They know that they have visited you. So we’re not going to be collecting any information during that call that would be in any way compromising. If you’re calling because there are federal agents at your door, what we’re trying to do is walk you through that interaction and get enough information about what jurisdiction you’re in to connect you with an appropriate attorney who can then be your attorney.
But what you should know, if the FBI is knocking at your door, again, please understand, I know people are really educated to be polite, but they don’t get to come into your home unless they can produce a search warrant, and you have no obligation to speak to them under any circumstances. Even if they have a warrant, even if they have a warrant for your arrest, you have no obligation to speak to law enforcement of any kind or participate in their investigations or answer their questions. That doesn’t mean you can obstruct them. It doesn’t mean you can hide or destroy evidence. It means that if they ask you a question, you don’t have to answer. However, what is safest is to invoke your rights, and if you’re under arrest, you can invoke your rights by saying, “I’m going to remain silent. I want to speak to a lawyer” or “I want to speak to my lawyer.” And if the FBI or another federal agency is knocking at your door, it’s safest to say only, “I’m represented by counsel. Leave your name and number and a lawyer will call you.”
Now if you aren’t represented by counsel, you don’t have to say that part. You can just say, “Leave your name and number and a lawyer will call you.” Your right not to talk to law enforcement is protected by the Constitution. It’s not evidence of guilt. It’s not evidence that you’re hiding something, no matter what they say. There is a reason that the rich white guys on TV lawyer up immediately, and that is because it is effective. It is illegal to lie to federal agents. I’m going to say that again. It is illegal to lie to federal agents. And so, it is safer to say nothing except “Leave your name and number and a lawyer will call you.”
Now, we want you to say this to them. We want you to get their information, because if you don’t get their information, there’s no way to follow up. And we want to follow up because A, we want to find out what they want, and B, we want to let them know that you’re represented by counsel, because once they know that you have a lawyer, they can’t come at you directly anymore. They have to go through your lawyer. And so, we can act as a shield. We can say, “What do you want? What do you wanna ask my client about?” And if it’s First Amendment protected conduct or associations or beliefs, we can say, “Well, I’ll talk to my client, but you don’t actually have any right to this information.” And usually, that’s enough to make them go away. And usually, they know that.
I think sometimes, law enforcement will give a good performance of being kind of offended that you don’t want to talk to them. That’s okay. They can act offended. But they are used to this. They know very well that you have no obligation to talk to them. This is par for the course for them. Don’t let them fool you into thinking that you’re somehow violating the social contract.
Outlaw: Totally. Social contract, not the priority in this moment.
Mo: Yeah, also not something that they’re actually upset about. They know that people have lawyers. They know that people don’t have to talk to them. They know that that’s not evidence of guilt. They know that doesn’t mean you’re hiding something. They know that doesn’t mean you’re obstructing their investigation. You just have no obligation to do their job for them, right? And the safest thing to say is “Leave your name and number and a lawyer will call you,” because that lets them know that they’re not going to get anything from you, that they have an obligation to direct all further inquiries to this lawyer, who, you know, hopefully you can call us and we’ll put you in touch with an appropriate lawyer. And then hopefully, that’s the end of it.
Outlaw: So, patterns. What patterns have you seen on the hotline? What kind of trends do you want people to know about that being on the back end of the hotline has given you access to, or other parts of your work?
Mo: So after January 6, one of the tactics that feds were using was they would go to someone’s parents house. This was actually, we saw it after January 6, and we also saw it after Charlottesville. They would go to someone’s parents house, and they would say, “We have credible evidence that someone on the far right is making threats against your child, and don’t you want to talk to us about your kid, and who they’re associated with?” So that’s information. These are some of the things that we saw emerging across the country, the strategies that they were using to try to get people, to try to convince people to speak to them. So that was one of them.
During George Floyd, they would do a similar thing where they were saying, “We have evidence that neo-Nazis are targeting your community, and we know that you’re involved with Black Lives Matter,” and so they would sort of claim that there is a threat against your movement people and that the threat is from whoever they believe your antagonist is.
During the early days of the most recent upsurge in Palestine solidarity activism, they were going to people’s homes and saying, “We understand that you’re a subject matter expert in the conflict between Israel and Palestine, and wouldn’t you just like to sit down and educate us about that conflict,” which is a wild thing to say, particularly because most of the people they were saying this to did not consider themselves to be subject matter experts. You know, they weren’t like historians, they were people who had at some point hosted a JVP meeting.
Based on target of the day, it becomes very clear very quickly who the federal government is interested in at any given moment. So we’ve gone through phases where they’re very interested in Black Lives Matter, where they’re very interested in Antifa, we’ve gone through phases where of course, they’re very interested in Palestine solidarity. And we’ve also gone through phases where they’re very preoccupied with Boomers posting memes. Like liberals posting extremely unremarkable, making fun of Donald Trump type memes.
And I guess what I would say is, we can really see, in real time, that the federal government looks at your Facebook page. They look at your Instagram, and you absolutely have First Amendment rights to post all kinds of things that are critical of the government, but you should be aware that the government is often watching, and that even where the government is not itself watching, regular conservatives are watching and are making reports to the FBI about things that they claim are threatening. Whether or not they actually are threatening is a different question. And I would say nine times out of ten, or maybe even 99 out of 100, what we’ll get is the FBI showing up at somebody’s door, saying, “Well, you posted this thing on Facebook and so-and-so was frightened or somebody was frightened by it, and so we’re following up.” And then if I call the agent, and I say, “Hi, you want to talk to my client about something they posted on the internet that’s absolutely First Amendment protected,” the agent will say, “Well, yeah, but you know, no big deal.” And I’ll say, “Well, they don’t want to talk to you,” assuming they don’t, and the agent will say, “Okay, thank you, goodbye.” And that’s the end of it.
I say this to make very clear that most of the time, they are just poking around, fishing, trying to see if somebody will speak to them voluntarily. The reason that they’re trying to see if someone will speak to them voluntarily is because they do not have a warrant. The reason they don’t have a warrant is because they have no evidence that anyone has done anything unlawful. The way they would get that evidence, whether or not anyone has done anything unlawful, the way that federal agents acquire what they will spin as sufficient evidence to obtain a search warrant is by people speaking with them voluntarily, which then gives them the opportunity to interpret whatever has been said in the most sinister possible way. Again, whether or not any federal offense has actually occurred.
They always say “You’re not in trouble. We don’t think you’ve done anything.” Which is probably true. You’re not in trouble. They don’t think you’ve done anything. They are trying to gather intelligence. That is their job. The fact that the federal government has shown up at your doorstep does not mean that they believe you have committed a crime. It means they are trying to gather intelligence about your activism, and they are not entitled to that intelligence. That said, it is illegal to lie to them, so it is safest not to say anything.
I think the thing that people often will think is, “Well, I haven’t done anything illegal, and so I have nothing to hide.” The fact that you haven’t done anything wrong is important, but it doesn’t mean that you should just open up your Gmail and your address book and your phone and all of your contacts and all of your plans to federal law enforcement. As a matter of privacy, as a matter of strategy, as a matter of keeping yourself and everyone in your community a little bit safer.
I used to say, “your innocence will not protect you, but it’s a good start.” I think that my faith in that statement is eroding a little bit. But whether or not you are innocent, that is not necessarily entirely relevant to whether you could be targeted by law enforcement, or whether your life of your social movements or your community can be disrupted by targeted harassment, by arrest, whether or not that arrest ends up being seen as justified once it gets in front of a prosecutor, or once it gets in front of a judge.
The fact is anyone can be arrested at any time for any reason or no reason at all. I don’t say this to frighten you into believing that everyone is subject to arrest willy-nilly and that you should all be frightened and hiding under the bed. The solution to this is not self-censorship. It’s courage. And in fact, one of the things about this moment is that we really do have quite a clear understanding that the government is targeting social movements and who they’re targeting and why. And in some ways, that might give us an interesting basis to resist some of these intrusions.
Outlaw: Could you briefly speak to why it’s important to talk to a lawyer who knows specifically about federal law and federal repression?
Mo: I think first of all, an attorney who is not admitted to federal practice probably wouldn’t agree to talk to you about this because they presumably would know that they weren’t, that it was a bad idea for them to be doing legal advice about, I mean that would be a jurisdiction that they weren’t licensed to practice in.
But even experienced federal criminal defense attorneys might not be entirely familiar with the degree to which the federal government does politically motivated targeting of people on the basis of their First Amendment protected beliefs, associations, and activities. And so, I think sometimes there are people who will say, “Just talk to them. If you haven’t done anything illegal, don’t worry about it, just talk to them.” The issue here is not that you are trying to hide your crimes. Lots of people have not done any crimes, and nevertheless their communities can be disrupted or their lives can be disrupted by speaking to federal agents.
The issue here really is that you have a Fifth Amendment right not to give the government information that they can use against you, and you have no way of knowing what kinds of information they might try to use against you. And so it is safer not to speak to them. And if you have an attorney, who’s really used to dealing with, I don’t know, drug trafficking or something like that, where what that attorney might have learned over many years might be that it can be very beneficial to their individual client to speak to the federal government. You know, they might say, “Well, I just don’t see what the problem is here, if you haven’t done a crime.” So it can be useful to have somebody who’s more conversant with some of the history of how the federal government uses politically motivated targeting, arrest, search, intrusion, infiltration, prosecution, specifically against social movements.
Outlaw: Do you have any final thoughts you want to add?
Mo: Yeah, my final thoughts are that you should not ever talk to cops, definitely not before talking to a lawyer, but you should say, “I’m going to remain silent. I want to speak to a lawyer.” And if they’re at your door without a warrant, you should say, “Leave your name and number, and a lawyer will call you. I’m not going to answer any questions before speaking to an attorney.”
Outlaw: And guess what. You can even practice that with your friends over dinner.
Mo: You can, and I encourage you to do so. You can say it in the morning while you brush your teeth to yourself in the mirror like an affirmation.
Outlaw: You can put it on a little Post-It note on your fridge with some hearts.
Mo: You can leave it as a note for your partners.
Outlaw: And that number, ’cause we haven’t read it out yet is 212-679-2811, so that’s just another little love note for your partners or an affirmation for your mirror.
Mo: Thank you so much.
Outlaw: Yeah, thanks, Mo. Bye.
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Outlaw: Thanks for listening to Outlaw. Stay tuned for our next episodes wherever you get your podcasts. Feel free to reach out to us with questions, ideas, topic proposals or collaboration pitches at outlawpod@proton.me Finally, thank you to Brass Tapestry for our theme music. Check out the full track, Tortugita, wherever you get your music.