SNOOPS IN THE PEWS

...What I have done for the refugees is no different...

...A covert agent, wired or not, wandering about at will, is like a vacuum cleaner, as defense lawyers put it...

...Instead of going to jail...

...Another of the wired informants, according to a defense lawyer, Ellen Yarosh-efsky of the Center for Constitutional Rights, was a "coyote"—someone who smuggles refugees across the border for money...

...And deportation could mean imprisonment or execution...

...Some day, when we ourselves may need to drink from the same well, we will find it poisoned with floating bodies...

...Therefore, the defense attorneys insist, before the Government can again slither into the house of God, it must get judicial authorization— whether the undercover agent is operating on battery or is collecting information by his natural faculties...

...No undercover agent—whether he or she moves smilingly down the aisle of a church or slips onto a seat in a bar—needs a warrant...

...It is an argument based on the First Amendment, with a vital connection to the Fourth...

...During pretrial hearings in Phoenix for the twelve defendants who will go to trial September 17, an expert witness on religious ethics testified, "The Christian tradition implies a special commitment to serve the needs of the poor and oppressed...

...How I rule, of course, necessarily depends upon the additional information I get, but I would not encourage the Government to regard this, however I rule, as any kind of approbation to them for having done it...

...She's a nurse, the mother of two children, and she says: "If I walked down a street in Lubbock and saw a person lying in the street hurt, people would think something was wrong with me if I didn't help...

...So too, eventually, may readings of the Constitution...

...And, according to the Fourth Amendment, that showing of probable cause would have to include specific reasons for the belief...

...It is truly unfortunate that the whole process is sullied, in a sense, by the informers and the recordings...

...There is, in fact, much evidence to the contrary—reports by the American Civil Liberties Union, for example, of the deaths or disappearances of certain refugees sent back to El Salvador by the Immigration and Naturalization Service...

...Look, he said, "if you and I are meeting in a church building to plan to rob a bank and open with a prayer and close with a prayer, I don't think many people would say this is a church service that should be protected...

...This scheme is repugnant to the very foundations of our constitutional system...

...In putting together a report on the sanctuary movement last May for CBS television's "60 Minutes" program, Ed Bradley found in one group of workers a member of the Republican National Committee and a woman who had voted for Barry Gold-water in the 1964 Presidential campaign...

...The Government contends that the refugees being moved on the underground railroad are trying to settle in this country for economic, not political, reasons...

...The defendants' lawyers don't claim that the Government can never engage in investigative surveillance in a church where, indeed, you and I may be planning to rob a bank...

...Cruz always seemed so anxious to help, so sympathetic to the plight of those fleeing El Salvador and Guatemala...

...Cruz became a paid government informer...

...And even if the jurors came to believe that many who had been returned to El Salvador had been savagely treated, it would still remain to be determined that the particular refugees who were helped by the particular sanctuary workers on trial suffered "a well-founded fear of persecution...

...Those people's rights were also violated—among them, their right to freely exercise their religion without having their dialogue with God recorded on tape to be transcribed into an FBI file...

...The First Amendment protects "the free exercise of religion," but it does not protect illegal acts committed—including harboring undocumented aliens—as an extension of religious belief...

...By planting an undercover operative in a church, the Government may at last have gone too far...

...The Government's case is based almost entirely on about 100 tape recordings, many of them made by paid informants who took concealed recording equipment into Bible-study classes and prayer services in churches involved in the sanctuary movement...

...The meetings gave them an opportunity to stand up and tell about their own lives...

...Running this underground railway are, among others, priests, nuns, social workers, students, ranchers, and housewives...

...Immigration and Naturalization Service...

...During a court session in May, Carroll said: "There should be little occasion or reason...

...They have emphasized, for one thing, that the informants did not tape only those people allegedly conspiring to smuggle and conceal aliens...

...For reasons that defy comprehension, a majority of the Supreme Court has never understood that an undercover agent can be vastly more violative of the Fourth and First Amendments—if unregulated by a neutral court—than a wiretap or a bug (for which the Government does need judicial warrants...

...Indictments were handed down against sixteen sanctuary workers (later reduced to twelve...

...But the American Civil Liberties Union, the Center for Constitutional Rights, and several Arizona lawyers have argued in the District Court that all the evidence from the Government's infiltrators should be thrown out on First Amendment grounds...

...But at a trial of sanctuary workers, the jurors would be bombarded with conflicting affidavits and reports from both sides...

...They are afraid Government informers will be there...

...But the court is being asked to decide whether undercover agents can constitutionally be sent into a church without first going before a judge to ask for a warrant to conduct the surveillance...

...You see," he told Tom Fitzpatrick of the Arizona Republic, "the important thing about the Bible-study meetings was trust...

...One minister, the Reverend Gerald Roseberry, told her: "Everyone knows that in Nazi Germany there were Gestapo agents sitting out in the congregations of German churches...

...If people come here to drink from the well of kindness and we turn them away, we will have poisoned the well...

...As one of the defense briefs states, it won't do to allow the Government "unfettered discretion in the use of informants to penetrate religious activities whenever there is a suspicion that criminal activity is being discussed or planned...

...I never suspected anyone would do this kind of thing in this country...

...I won't die...

...We studied Exodus from the Bible," Oines said...

...But Federal District Judge Earl Carroll asked whether the same Christian tradition that requires breaking the law to help those in dire need also calls for accepting "the penalties involved...

...These violations took place because no one was watching over the Government's shoulder to make sure it was sensitive to constitutional imperatives...

...Come judgment day, said the lawyer, all will be held accountable, and "those who welcome strangers will be given reward and those who don't will pay...

...for the Government to send people...

...More than 200 Roman Catholic parishes, Quaker meetings, Protestant congregations, and Jewish synagogues have publicly defied the Government by proclaiming their houses of God as sanctuaries for refugees from El Salvador, Guatemala, and other Central American countries...

...The witness conceded that it did...

...He attended church meetings in Phoenix regularly and volunteered to drive the refugees from the meetings to the places where they lived...

...Many other people were also present when the tape recorders were silently whirring...

...Some of the religious sanctuary workers who have been violating the immigration law say they have no choice...

...It's as simple as that...

...Why didn't the Government get a warrant before it sent Jesus Cruz and his disguised colleagues into the prayer services and Bible-study classes...

...And if they're caught and deported, the Government says, they need fear no persecution back home...

...The defense attorneys are trying to persuade Judge Carroll that the Constitution obliges him to rule against the Government on the warrantless use of informants in a church...

...There is one defense strategy, however, that could frustrate the Government prosecution in Arizona, the biggest sanctuary case yet, and at the same time provide a landmark ruling in constitutional law...

...Nonetheless, a lawyer for one of the defendants in Arizona kept pressing the First Amendment "free exercise" defense on the ground that if his client failed to do his Christian duty as a member of the sanctuary movement, he'd be in serious trouble when he made his own final emigration...

...Even the Federal judge in the Arizona sanctuary workers case, Earl Carroll, who has otherwise been quite flinty in his attitude toward these eerily selfless defendants, is bothered by the Government's invasion of church space...

...One woman who stands a fair chance of serving time for working on the underground railroad is Nena McDonald, a Texan under indictment in Arizona along with-eleven other defendants for transporting and concealing undocumented aliens...

...One such informant, Jesus Cruz, was described by Tom Fitzpatrick of the Arizona Republic as "a Mexican in his mid-fifties who'd been arrested by the government in Florida on white slavery charges...

...She told him she was willing to risk a prison sentence "because people are dying...

...Now they can't come to church anymore...

...some time in jail, that's not important it I can save a life, or two lives, or maybe more lives...

...Yet a Government agency can plant an agent anywhere—including a private home...

...James Oines, pastor of Alzona Lutheran Church, told of the Sunday night Bible-study meetings at his church, which the refugees and Jesus Cruz, the informer, used to attend...

...They told what had happened to them in their native countries...

...He volunteered to be an undercover agent because the sanctuary workers, who were doing it all free, had cut into his business...

...One of the defendants in Phoenix, the Reverend John Fife, notes that "the use of government informants in the Soviet Union and Czechoslovakia has driven the church underground...

...He was a short, round man and quite likable...

...On ABC News in May, Karen Burnes reported on this historic breakthrough by law-enforcement personnel...

...Another defense position taken by the twelve in Arizona is the argument that the Government itself is the lawbreaker because it does not adhere to the Refugee Act of 1980, which guarantees asylum to anyone in the United States who is "unable to avail himself or herself of the protection of [his or her] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...

...Some non-refugee members of these congregations have also become wary of going to church...

...If the courts eventually decide that no warrant is needed to let an undercover agent loose inside a church, services in this country will increasingly take place underground...

...Cruz drove the refugees from Tucson to Phoenix...

...Cruz's activity in Arizona has already had an effect on churches here...

...They are afraid that their lives will be in jeopardy...

...For them, too, it's a matter of trust...

...Those charged with the investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their task.'" Testimony in the pretrial hearings also dealt with the effect on parishioners of the informants' testimony...

...On the same program, Commissioner Alan Nelson of the Immigration and Naturalization Service was much aggrieved that anyone would "compare this kind of thing with Nazi Germany...

...It was the first time any government agency in this country had admitted to planting undercover agents in a church...

...To obtain a judicial warrant, the Government would have to persuade the judge—the neutral magistrate, as they say in the law—that it had probable cause to believe a crime was being planned in the church...

...His 'Who's on First" column about First Amendment issues appears four times a year, and is supported by a grant from the Evjue Foundation of Madison, Wisconsin, to The Progressive's Morris H. Rubin Memorial Fund...

...Eugene Lefebvre, pastor of the Sunrise Presbyterian Church, said from the stand that one woman in his congregation who had been in the church on a night when one of the tapes had been secretly made is now afraid that her name is "on an FBI list somewhere" and that she might be turned down when she applies for a teaching job...

...It was good for them that they still had the opportunity to gather with others of their own faith in the church...

...Is the person in the next pew a believer or a Government hireling...

...Relying on the tapes and on information the undercover operatives had obtained from the friends they had made in the sanctuary movement, Federal agents arrested sixty-three Salvadoran and Guatemalan refugees around the country last January...

...He made friends easily...

...A jury might consider a guilty verdict a pretty good investment for the defendants: five years for breaking the law now in return for an eternity of reward...

...There are no more Bible study sessions in James Oines's church...

...Cruz began hanging around movement members in both Tucson and Phoenix," Fitzpatrick continued...

...The refugees seemed heartened by it because they saw the similarity in their own lives...

...So if I spend Nat Hentoff, a member of The Progressive's Editorial Advisory Board, writes about music every month...

...Now] we don't know when we come to our churches and our services to worship that there might be some Government spy there with a tape recorder...

...As part of his duties, Cruz became a volunteer for the sanctuary movement...

...paid to do it, and wired to do it, into places of religious interest or concern...

...The refugees are undocumented and subject to deportation by the U.S...

...Because under present constitutional law, it doesn't have to get a warrant...