Should Bay Area cities continue supplying local police officers to the FBI’s Joint Terrorism Task Force? That’s a question that the San Francisco Board of Supervisors took on Tuesday, and one that privacy groups are hoping will result in an end to the use of an increasingly controversial intelligence-gathering program. A group of lawyers from the ACLU of Northern California and the Asian Law Caucus recently received copies of agreements between the FBI and the San Francisco Police Department they say demonstrate that officers involved in the San Francisco JTTF have been operating under an agreement with the FBI that violates state and local law–by authorizing San Francisco police officers to spy on individuals in the community without having to demonstrate that those individuals are suspected of crimes or plotting crimes.
The San Francisco Police Department has not yet returned requests for responses to these allegations.
Here’s a primer on the issue, which is likely to heat up in San Francisco politics over the next couple of weeks.
What are Joint Terrorism Task Forces?
In 1980, the US Department of Justice established a program meant to involve local police departments in collecting intelligence for the purposes of homeland security. Most major cities now have a Joint Terrorism Task Force, consisting of one or more local police officers, as well as federal officers from agencies like the Department of Homeland Security, the Internal Revenue Service, and the Federal Bureau of Investigation. A relatively small program before September 11, 2001, the JTTF ballooned afterwards–71 out of 106 JTTFs started after 9/11. Local police officers assigned to the JTTF are police department employees, paid for by the city, with the salary, benefits, vacation, and pensions provided by the department. They report to superiors in both the police department and FBI, but they work out of FBI offices.
What do they do?
According to the FBI, JTTF officers “chase down leads, gather evidence, make arrests, provide security for special events, conduct training, collect and share intelligence, and respond to threats and incidents at a moment’s notice.” JTTFs, they say, have been instrumental in “breaking up cells like the ‘Portland Seven,’ the ‘Lackawanna Six,’ and the Northern Virginia jihad… Chances are, if you hear about a counterterrorism investigation, JTTFs are playing an active and often decisive role.”
In December 2008, at the end of former President George W. Bush’s second term, the FBI’s powers of surveillance expanded–presumably, the powers of surveillance also changed for JTTF officers. According to a 2009 New York Times article written shortly after the changes were revealed, the new manual authorized “agents to open an ‘assessment’ to ‘proactively’ seek information about whether people or organizations are involved in national security threats. Agents may begin such assessments against a target without a particular factual justification. The basis for such an inquiry ‘cannot be arbitrary or groundless speculation,’ the manual says, but the standard is ‘difficult to define.’ Assessments permit agents to use potentially intrusive techniques, like sending confidential informants to infiltrate organizations and following and photographing targets in public.”
Why are privacy advocates concerned?
Groups like the ACLU have previously questioned these expanded FBI powers–whether the FBI, which has increasingly focused on domestic threats, isn’t intruding on individuals’ privacy by investigating those who they don’t yet suspect of any wrongdoing.
A recent New York Times article by Charlie Savage shed light on the debate over casting a wide net looking for signs of terrorism:
“Within months after the Bush administration relaxed limits on domestic-intelligence gathering in late 2008, the F.B.I. assessed thousands of people and groups in search of evidence that they might be criminals or terrorists, a newly disclosed Justice Department document shows.
In a vast majority of those cases, F.B.I. agents did not find suspicious information that could justify more intensive investigations. The New York Times obtained the data, which the F.B.I. had tried to keep secret, after filing a lawsuit under the Freedom of Information Act.”
Civil libertarians are particularly concerned that American Muslims are being investigated by the FBI simply because of their religion–not because they’re suspected of wrongdoing. In San Francisco, says attorney Veena Dubal of the Asian Law Caucus, local police do not have these legal powers–and those officers participating in the JTTF could be violating local law.
Why are there allegations that the JTTF violates the law?
At issue is Section 8.10 of the police department’s General Orders, which govern when and how a San Francisco police officer can investigate someone based on characteristics and activities that derive from their religion, political views, activism, or anything related to their First Amendment rights. The code states that the department may conduct such a criminal investigation “when there is an articulable and reasonable suspicion to believe” that they are “planning or engaged in criminal activity” and “the First Amendment activities are relevant to the criminal investigation.”
John Crew, an ACLU police practices expert helped write that section of the police code back in 1990. Crew says the policy was written after a series of scandals hit the Bay Area, centering around intelligence-gathering collaborations between local and federal agents that focused on political activists. “Now, the same thing is happening, 22 years later,” Crew says.
Originally, Dubal of the Asian Law Caucus says, when San Francisco first agreed to participate in a JTTF in 2003, it was agreed that any San Francisco police officers assigned to the Task Force would abide by this local law. Specifically, a clause appears in the original 2003 agreement addressing this issue:
“To the extent that SFPD standards and procedures impose any greater restrictions upon the use of their informants and cooperating witnesses, such personnel shall be bound by those restrictions.”
This clause does not appear in the latest version of the agreement–there is no mention of the difference between SFPD and FBI standards for surveillance in that document, signed in 2007.
There are other slight differences in the documents when it comes to supervising these agents, who work out of FBI offices and are given necessary security clearances to access sensitive federal information. In 2003, the agreement included language guaranteeing managerial oversight by the police department:
“Security clearances will be granted for any applicable and relevant SFPD Managers or Supervisors, up to and including the Chief. Investigative restrictions imposed by the SFPD shall not be voided by deputation of their respective personnel.”
The 2007 document does not contain this clause and appears to more strictly limit what JTTF officers can discuss with their SFPD supervisors. It reads:
“Each Participating Agency fully understands that its pernonnel detailed to the JTTF are not permitted to discuss official JTTF business with supervisors who are not memebrs of the JTTF unless the supervisor possesses the appropriate security clearance and the dissemination of discussion is specifically approved by the FBI JTTF Supervisor. Participating Agency heads will be briefed regarding JTTF matters by the SAC or ADIC, as appropriate, through established JTTF Executive Board meetings.”
What does that difference mean? “It’s possible that the police department is not supervising” these officers, says Crew. And that means, he says, they may not be complying with San Francisco’s police code.
SFPD has not yet responded to requests for comment, but the San Francisco Examiner interviewed former US Attorney Kevin Ryan, who said that the FBI is aware of and sensitive to San Francisco’s laws. The Examiner also writes that San Francisco Police Commander Daniel Mahoney says officers assigned to the JTTF are required to comply with department rules.
What’s happening nationally?
JTTFs are becoming more of an issue nationally. And the debate is playing out extensively in Portland, Oregon, the first locality, back in 2005, to decide to shut down its JTTF. Dubal says Portland’s “local police said that this is not what local law enforcement should be about.”
The FBI had been in talks with the Portland City Council about how to restart the program, while still complying with local restrictions on police surveillance. The City Council has not yet decided whether to reinstate the program.
“If San Francisco continues in the program”, Dubal says, “we should have a similar directive” to that offered to Portland. And, Dubal says, the city–through the Police Commission–should participate in auditing the program.
“This program is a huge resource to the FBI,” Dubal says. And they shown that if a city has certain rules for their officers, “they’re willing to put those into the agreement.”
Yesterday, the San Francisco Board of Supervisors voted to endorse a report by the city’s Human Rights Commission that calls for greater oversight of the program.