Wednesday, April 16, 2008

Undercover and out of control

I'm no fan of people who abuse or kill wildlife without just cause. Hunting is one thing; so is shooting a mountain lion that's about to take a piece out of you or a coyote that's about to have your cat for lunch. I think the pigeon fanciers -- owners of unique roller pigeons -- who killed large numbers of rare raptors in defense of their prized birds stepped over the line. Their motives were understandable, but they went too far.

But going farther still were the federal agents who went undercover to actually infiltrate roller pigeon clubs, prowled around suspects' homes at night in full commando regalia and arguably induced suspects to commit crimes above and beyond those they'd done of their own accord.

Undercover police work has a long and dishonorable history. Undercover officers have infiltrated peaceful anti-war protests and political organizations and often acted as agents provocateurs -- engaging in or provoking illegal activity to give the authorities an excuse to move in and make arrests. Laws against victimless activities like drug use and prostitution almost require the use of undercover agents to induce people to engage in activities that would otherwise go undetected. Since such "crimes" are consensual, there's no wronged party to file a complaint -- unless a police officer covertly engages in a forbidden transaction.

So there's good reason to be leery of people like Ed Newcomer.

Newcomer is the "hero" of a May 2008 Backpacker magazine article about the operation leading to the arrest of the above-mentioned pigeon-fanciers. He's a U.S. Fish and Wildlife Service Special Agent and former prosecutor who specializes in undercover operations -- a revelation to those of us who had no idea the game and fish folks needed or should be permitted to run surveillance and infiltration operations. For months he posed as a novice pigeon fancier. Once inside, he befriended pigeon fanciers, learned of the often brutal techniques they used to kill raptors who preyed on their birds, induced them to sell him restricted traps -- and then slapped the cuffs on them.

To infiltrate Southern California's pigeon breeding circles, Newcomer made himself into Ted Nelson, a blue-collar worker with a mustache straight out of My Name is Earl. Through a roller pigeon website, Newcomer made contact with a fancier who invited Ted to a show. That weekend, dozens of members of the Inner City Rollers Club gathered in an alley behind The Pigeon Connection, a bird shop near Inglewood, to check out each other's pigeons. Newcomer wired himself up--"I can't tell you the specifics," he told me, "but video cameras these days are so small you can practically stick one on your wristwatch -- and walked in.

Newcomer's tactics degenerate from there, turning into an object lesson in everything that's wrong with American law-enforcement.

To get proof of McCormick baiting his traps, Newcomer and another agent, John Brooks, staked out his house at night. Armed with AR-15 rifles, Newcomer and Brooks donned camouflage suits and used night-vision scopes to crawl across an empty field adjacent to McCormick's yard. ...

To nail McGhee, Newcomer arranged to by a hawk trap from him in the fall of 2006. In wildlife cases, suspects so often use ignorance as an excuse -- I didn't know it was illegal to kill those hawks -- that U.S. Fish and Wildlife Service agents often coax statements of legal awareness out of unwitting suspects ...

On their way out, Jojola noticed garbage cans sitting by the curb of Navarro's street. "Going through the trash is one of the best and most-under-utilized investigative tols," Jojola later told me. "It's a lot of work, though, and there's a risk of being burned." ("Burned" is undercover cop talk for getting recognized as a police officer.)

Newcomer and Jojola found nothing but trash and pigeon waste on that first garbage run, but a week later Newcomer and special agent Ho Truong hit pay dirt. At the bottom of Navarro's can, Truong discovered a dead Cooper's hawk. The bird, tied up in a white plastic bag, had been beaten to death. The next morning, Newcomer examined the surveillance photos. They showed Navarro, with a wooden stake in his hand, approaching the trapped hawk. The next photo showed an empty, re-baited trap, and Navarro holding a lumpy white plastic bag.

Remember, all of this effort, including multiple undercover agents, surveillance cameras, covert armed expeditions and trash-picking, is to catch hobbyists who are being overly aggressive in defense of their pigeons. We can only hope so much effort and expense is going into the effort to find Osama bin Laden.

So who are these undercover agents? What kind of people engage in covert surveillance of peaceful strangers as a career choice? There are any number of things that can lead people to a life in law enforcement, such as careerism, a desire to exercise power over other people, honest belief in the law in and of itself, or a true-believer devotion to a cause that can be pursued on the taxpayers' dime. But what drove the undercover agents in the roller pigeon case?

In the Backpacker article, Newcomer, at least, comes across as a serious nature-lover who takes wildlife photographs as a hobby and disdains those who violate game and fish laws.

"There are no informants among animals," says Newcomer. "A mother bear can't call me up when somebody poaches her cub."

But, for an undercover agent, Newcomer isn't that far undercover. He maintains a personal Website (since removed) that includes photos of a trip to Yellowstone. Another personal Website (since removed) is devoted to Tae Kwan Do and features a smiling photo of him in a suit and eyeglasses.

He also posts videos on YouTube. A couple have wildlife themes, one homemade cartoon features "Spy Guy" (since removed) peering around a corner with gun in hand, while "Overheated Planet" (since removed) is another homemade cartoon earnestly warning of the supposed dangers of global warming (Didn't he get Al Gore's memo that "global warming" is now "climate change?").

Newcomer also gives lots of law-school talks on the enforcement of environmental laws.

Overall, Newcomer comes across as a serious fellow who likes to kick butt and is a committed environmentalist -- a combination of a true believer and a person who enjoys wielding the power of the state.

That's probably the right sort of person to send undercover against terrorists and other folks who pose a violent threat to life, liberty and property, but is it really so wise to hand a true believer a fake identity and send him out against petty law breakers?

Let's look at it another way. Let's suppose we sent Ann Coulter undercover against anti-war demonstrators who might be toying with petty mischief. Is there any doubt that Special Agent Coulter, who already loathes the beliefs and the culture of the people she's investigating, would come back with reports of serious crimes?

Likewise, sending a committed environmentalist undercover against people of whom he's already likely to be suspicious -- hunters, fishermen and people simply on the other side of wildlife issues -- is just begging for trouble. The temptation to take "bad people" down with extraordinary tactics is going to be hard to resist. And the ability to detect casual lawbreaking that many people must engage in during the conduct of everyday life in a highly regulated society can easily turn into a record of a pattern of criminality among people he dislikes. That threat to spy on and ensnare people in any area of life becomes a powerful weapon with which the state can inspire fear and coerce submission -- or breed resentment -- among people who just don't know whether the new guy is a state agent sent to catch them violating any one of the myriad of laws in which modern life is tangled.

In Backpacker:

"Are there undercover agents still out there?" I asked.

Ed Newcomer leaned back in his chair and smiled. "Who knows?" he said. "Maybe there are."

That's a threat of total surveillance. And that's why undercover work should be confined to the investigation of extraordinary dangers that pose an imminent threat to life and limb.

People who kill wildlife without just cause are worthy of attention. But there are very few crimes so heinous that they justify the use of undercover investigations that threaten liberty and privacy.

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Blogger mtr said...

When did the use of night vision equal what a normal person could see if in a legally rightful place to be?

I thought the supreme court has said devises that surpass what a normal person could expect to see was an illegal method of search and seizure.

April 16, 2008 3:55 PM  
Blogger J.D. Tuccille said...

Court decisions on this issue are pretty confusing and convoluted. In Kyllo, the Supreme Court ruled that thermal imaging scans are impermissible searches unless performed subject to a warrant. But drug-dog searches have generally been permitted. Basically, the decisions seem to permit "natural" senses and enhancements of the same (such as binoculars) while disallowing technologies that detect things beyond the range of even enhanced human senses.

I can't find any definitive answer about night-vision equipment, but I believe they fall into the same "enhanced" category as binoculars.

April 16, 2008 7:00 PM  
Anonymous Anonymous said...

Mr. Tuccille:

Being a writer, I'll automatically assume you'll take my following comment with a huge grain of salt--but that's okay. I'll trust you'll listen anyway.

My father is Sam Jojola, the agent you mentioned in your article.

One time when I was a boy I stumbled upon some old papers while digging through the basement in our home. They were old notes of bird observations written by my father as a 12-year-old. He used to spend hours watching birds bathe in his backyard bird fountain.

He was fascinated by birds. They consumed him and still do to this day.

When we would take me hiking, my father would hear a bird singing and he would instantly identify that bird just by its song. He could identify dozens of birds.

My father has been in love with birds his whole life. He spent years working as an undercover agent to catch people smuggling exotic parrots in the US in inhumane ways (packed like sardines in gas-tanks or bundled up in boxes in extreme temperatures).

It was his idea that prompted the release of thick-billed parrots back into their natural habitat.

When I was a boy, he would sometimes leave my family behind for days to conduct undercover operations involving bird smugglers.

Without dangerous undercover work conducted by my father and Agent Newcomer, many smugglers would continue to violate the law.

The fact is, my father is passionate about the protection of wildlife and passionate about enforcing the laws.

Yes you may find the enforcement of such laws trivial compared to the hunt for Osama Bin Laden.

You also feel that such undercover practices don't warrant such enforcement.

As you know, criminals don't offer evidence to people wearing badges on their breast.

Perhaps if you have a better way to catch these types of criminals, you can publish an article about that.

May 6, 2008 8:55 PM  
Blogger J.D. Tuccille said...

Mr. (I assume) Jojola,

You can talk all day if you like about your father's dedication to wildlife, conservation and the law. I don't doubt his sincerity, or that of Mr. Newcomer. But you ignore the dangers I raised about the use of undercover operatives.

As I pointed out in my post, not too many years ago, undercover officers rose to lead antiwar protests in Oakland -- a position that gave them the power to choose the tactics used by protesters, and potentially to lead thousands of people into lawbreaking and arrest.

Undercover operations lend themselves to the manufacture of crimes. The temptation to do so may be especially strong among officers who strongly believe in the laws they enforce and who hold the subjects of their investigations in disdain.

There are very few laws that I can think of that merit the infiltration of society by government agents and the likelihood that many of those agents will actually manufacture violations of the laws they enforce.

May 7, 2008 1:30 PM  
Anonymous Anonymous said...

I have to agree with your comments about going over board. I have bene in the roller hobby for many years. The depredation on our birds is really hard to accept. The officials when contacted on how to prevent such attacks, merely said just don't fly your birds. The government has the obligation to allow people the pursuit of happiness. The federal agency over exaggerated the number of raptors killed. They picked a few people and made a mountain out of a mole hill. Non violent indivduals were slammed to the ground when arrested. Guns drawn like something out of a Dirty Harry movie. If agent Newcomer really wanted to help birds of prey, he should come up with a solution to the depredation problem, not just arrest a bunch of decent people just trying to protect their family pets. Most state agenies spend thousands of dollars killing large mammalian predators, way more magnificient and valuable to the resource than a Cooper's hawk. The feds claim our rollers are defective freaks of nature. Anyone who claims to love birds should be awestruck by these amazing birds. Newcomer is a hippocrit and out of control. Pigeon flyers of all types are going to continue to have raptors killing their birds. Not flying our birds isn't an option.Agent Newcomer nor the USFWS has not done anything to help the average Joe bird fancier. All the feds have done is added one more reason to mistrust our government. A sad state of affair in the name of wildlife protection.

May 8, 2008 12:03 PM  
Anonymous bird lover said...

Mr. Newcomer may have been reading blogs wherein people criticize him for having allowed 14 months of raptor killing to go on unmitigated. The articles written recently in the Audubon and Backpacker now seem to reflect that he was heartbroken at the amount of killing going on, which he gleamed from a few individuals and extrapolated to include everyone in the hobby. It is understandable that if asked today about his tactics and the case, he'd say that he had to put a stop to it. It doesn't seem right to allow an innocent (if we call hunting prey innocent) victim to die for the prospect of a prosecution. But FOURTEEN months into it? REALLY? I mean, even if you see a few guys doing these illegal activities, you stop them on the spot, issue them a citation and obligate them to spread the word. This, if Newcomer was truly concerned about wild life, would have saved--in his estimation--thousands of raptors. But what does he do? He engages the vast resources of the USFWS, your and mine tax dollars, to play this game of midnight stalker, peering over fences and carrying weapons of war strapped to his back? Into the suburbs? For the sake of nabbing a few more bandits? Why not put a stop to it sooner. Either help prevent or educate those who seem to be doing the lawbreaking and earn an 'atta boy from his superiors. No, Mr Newcomer suffers from what appears to be a perfectionist, near mental disorder. It's an incapacity to pull himself out of his predisposed disdain for the bird fliers and ignores the killing to get his promotion or his pat on the back or whatever it is that drives him. A self proclaimed animal lover would never allow a bird or prey to be harmed for the sake of a few convictions. It is only now, and in these high profile articles, that he goes through the work of convincing us that he had had enough of the killing....14 months into it. Also, mind you, most of the guys who were found guilty pleaded guilty to the lesser charge of a misdemeanor to avoid a felony prosecution of lying to an officer. Who knew that they were talking to an undercover officer? How can that even be right? Heck, if we put an undercover guy at a fishing convention, he may have cases against everyone who volunteers about that fabled big fish they caught, which was actually a tiny minnow.

Now Peter DiFazio, rep for Oregon is trying to make these class B misdemeanors felonies. FELONIES?! Aren't there enough people in jail as it is? If you successfully fine the individuals responsible for breaking the law, at the tune of thousands of dollars, aren't you making a strong enough point?! Do you really think that they'll commit the crime again? I sincerely doubt it. None of the guys arrested, from what I have read, had any previous records. Some people will not be content until these guys are hanging from a noose. And Mr. Newcomer will be right there, pulling the pin on the gallows.

May 20, 2008 2:36 PM  
Anonymous Anonymous said...

Whoa! You're not getting it. wildlife crime is tough to prosecute and you have to have hard core evidence of wrong doing or people walk. If you read the article, you saw that the F&W service went after club leaders. Tickets? No. That would not have exposed the extent of the problem and would not have deterred anyone. If you closely read the various articles, you'd have seen that this case involced pigeon rollers in FIVE states. It takes time to make these cases and I'm glad the agents did it.

As for the felonies? My read of the articles told me that the lies took place after the arrests. So, lying to an undercover is not a crime just lying to an agent when you know it's an agent.

As for the amended laws? that's for the American people to decide through their elected leaders.

September 23, 2008 6:55 PM  
Anonymous Anonymous said...

^^ nice blog!! ^@^

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March 19, 2009 12:45 AM  

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