The Informant

Ali Winston

Human Rights Commissioner Theresa Sparks (standing), SFPD Chief Greg Suhr and Police Commissioner Joe Marshall at a May 17, 2011 hearing on the JTTF

Admist complaints from Bay Area Muslim, Southeast Asian and Middle Eastern residents of unwarranted surveillance, harassment at San Francisco International Airport and federal agents offering fast-track immigration status in exchange for information, , the participation of the San Francisco Police Department in the local Joint Terrorism Task Force came under review at last night’s joint hearing of the Police and Human Rights Commissions.

Last night also saw the introduction of a proposal from the American Civil Liberties Union of Northern California and the Asian Law Caucus to alter SFPD’s participation in the JTTF to give more local control over city police officers participating in the anti-terrorism team.

Currently, SFPD has 2 officers allocated to the Bay Area JTTF, which is run by the Federal Bureau of Investigation’s San Francisco office. SFPD participates in the task force under a memorandum of understanding, and has done so since 2002 under the oversight of the Police Commission.

According to ACLU-Norcal Police Practices John Crew, the MOU was altered without notifying the Police Commissioner. Unlike the 2002 MOU, the current agreement, signed in 2007, loosens the standards for intelligence-gathering by SFPD’s JTTF liaisons and throws up obstacles to oversight of their actions by the department, the Police Commission and the Office of Civilian Complaints.

The current MOU still deputizes SFPD officers as federal agents, which the ACLU and the Asian Law Caucus claims allows them to conduct intelligence assessments and investigate people without the “reasonable suspicion” standard required by the California Constitution and SFPD’s own regulations. Here is the passage at issue:

“When there is a conflict of interest between the standards or requirements of the Participating Agency and the FBI, the standard or requirement that provides the greatest organizational protection or benefit will apply, unless the organizations jointly resolve the conflict.”

Furthermore, the MOU also places SFPD’s liaisons under the oversight of the FBI instead of San Francisco’s own police and independent watchdog agencies and requires federally-approved security clearances in order for supervisors or civilians to review JTTF activities. Similar concerns have also been raised over an identical agreement between the FBI and the Oakland Police Department.

Police Chief Greg Suhr, who has been in his position for less than a month, said he does not believe SFPD’s JTTF officers are conducting intelligence assessments or are engaging in improper conduct towards local Middle Easterners. To address the gaps between the current MOU and the publicly-reviewed 2002 agreement, Suhr issued a department-wide General Order yesterday instructing officers assigned to the JTTF to identify themselves as SFPD officers and may work with the task force “only on investigations of suspected terrorism that have a criminal nexus.” The General Order also restricts intelligence gathering in accordance with San Francisco and California law:

“In situations where the statutory law of California is more restrictive of law enforcement than comparable federal law, the investigative methods employed by SFPD officers working on JTTF investigations shall conform to the requirements of such California statutes. While cross-designated and deputized as federal officers for purposes of their JTTF assignments, when not operating in a covert or undercover capacity SFPD officers shall always identify themselves to members of the public as SFPD officers.”

Chief Suhr also said that he has resolved the issue of supervisors having appropriate security clearance by transferring oversight of the JTTF officers from SFPD’s Homeland Security Unit to the department’s Special Investigations Unit.

Veena Dubal of the Asian Law Caucus told the commissioners that Suhr’s General Order, while welcome, would not resolve the issue. Based on conversations Dubal and Crew had with the local FBI Special Agent in Charge, Stephanie Douglas, the Bureau will disregard any local order restricting JTTF activity as long as SFPD participates in the JTTF through the current MOU.

“The FBI Special Agent in charge has told us the FBI will continue to block key local policies central to oversight,” Dubal said. Citing Congressional testimony that the FBI has opened more than seventy thousand investigations over the past four years that are not based on evidence of criminal activity, Dubal argued the Bureau has “sown the seeds of anger and distrust in the Muslim community” and “considers certain communities more suspect than others.”

The MOU is not the only way San Francisco can have its police officers do counter-terror work with the JTTF. John Crew of the ACLU said the city can follow the example of Portland, Oregon, opt out of the MOU, and sign a resolution with the FBI that would direct SFPD officers to act according to local and state laws.

“The Federal government says you can do this as long as you’re not under an MOU,” Crew said. “If there are activities the SFPD is involved in that they shouldn’t be involved in, don’t we want that to stop?”

The option of transitioning SFPD’s relationship with the JTTF was not on last night’s agenda as an action item, but it is certain to be a subject of discussion in weeks to come. At the beginning of the meeting Police Commission President Thomas Mazzucco, a former city and federal prosecutor, voiced his confidence that the FBI and SFPD are not engaging in unlawful surveillance. After hearing Crew and Dubal’s presentation, as well as concerns from community members present, Mazzucco took a firmer tone. “We will not tolerate any form of discrimination or profiling in this city,” said Police Commissioner Mazzucco. “I dont think any San Franciscan should feel threatened by anybody.”

Although the the FBI was invited to participate in last night’s hearing, they did not send a representative. The Bureau’s absence was noted by several commissioners and community members. Zahra Billo, the outreach director for the local chapter of the Council on American-Islamic Relations, viewed their decision not to attend with suspicion

“If they’re not willing to have these conversations in the open like they did in Portland,” Billo said, “the question comes to mind, what are they hiding?”

Both commissions will continue to discuss the city’s relationship with the JTTF in the weeks to come. A date has yet to be set for further hearings.