[pjw] NEWS: FBI and San Francisco Police Lied about JTTF (Intercept 11/1)

[Peace and Justice Works]

Hello PJW supporters

Two things up front:

1) sorry for duplication with the Copwatch email list on this.

2) don't forget our quarterly meeting is tomorrow!
   (12 noon vegetarian potluck, 12:30 meeting @ Peace house)

---

As we approach the deadline for the Portland Police to release their
first annual report on working with the FBI's Joint Terrorism Task
Force in January, this important article about the San Francisco JTTF
was published by the Intercept yesterday. We received it here from both
the League of Women Voters and the national police-abuse list serv.

It's quite long so I'm just including about half the content here-- the
gist of it is that the FBI was making San Francisco officers conduct
investigations based on hunches-- usually related to First Amendment
protected activities-- while telling the public otherwise.

dan handelman
peace and justice works / portland copwatch

-----------------forwarded message-------------------
From: "Michael Novick
Date: Sat, 2 Nov 2019 03:22:37 +0000 (UTC)
Subject: [stop-polabuse] Fw: [News] FBI and San Francisco Police Have Been
 	Lying About Scope of Joint Counterterrorism Investigations

    ----- Forwarded Message -----
From: Anti-Imperialist News <news at freedomarchives.org>
Sent: Friday, November 1, 2019, 11:56:15 AM PDT

  https://theintercept.com/2019/11/01/fbi-joint-terrorism-san-francisco-civil-rights/
FBI and San Francisco Police Have Been Lying About Scope of Joint
Counterterrorism Investigations, Document Suggests
  Ryan Devereaux - November 1, 2019

San Francisco police officers working on an FBI counterterrorism task
force were routinely given low-level assignments that would invite
violations of local San Francisco law and policy, according to an
internal FBI legal analysis obtained by The Intercept.

The FBI's San Francisco office has long assured the public that its
relationship to the city's police officers could be trusted,
especially when it came to officers assigned to the bureau's secretive
counterterrorism teams. In January, for example, John F. Bennett, the
special agent in charge of the office, wrote to Mayor London Breed to
correct the "inaccurate information promulgated" by the media
concerning its Joint Terrorism Task Force, or JTTF, which the San
Francisco Police Department chose to remove its officers from more than
two years ago.

The split was the extension of an inherent tension: Police officers on
the teams operated under both the rules of the FBI and the rules of
their department, and the rules of the department -- created to protect
the civil and First Amendment rights of San Franciscans and enforced
under a local San Francisco ordinance -- prohibit or strictly regulate
much of the core activities FBI agents routinely engage in. Bennett
downplayed the issue in his letter to the mayor, pointing to an
agreement between the two agencies, which had held that police officers
on the task force would follow local departmental rules when working
with the FBI.

"SFPD officers assigned to the JTTF were expected to abide by their
department's General Orders while serving on the JTTF, and they
did," Bennett wrote.

It was a rosy picture, but it didn'?t tell the whole story. An FBI
white paper authored before Bennett sent his letter to the mayor, shows
that the bureau's San Francisco office considered the city's laws
and policies regarding civil rights and free speech to be a major
problem. The document stated that the bulk of what police officers did
on the San Francisco JTTF were inquiries that would typically be
prohibited under SFPD rules and local law, calling into question nearly
120 operations that task force officers participated in over a
three-year period.

The internal analysis described a legal catch-22 for San Francisco
police officers: They were on one hand required to describe their work
for the JTTF to SFPD supervisors and faced potential discipline or
removal if they didn't. At the same time, the work they did for the
FBI involved classified matters -- and sharing that information, even
with a supervisor, exposed officers to federal criminal liability. The
document presented several potential solutions to the conflicting rules.
The only ones the FBI appeared to endorse were those that would water
down or weaken the local civil rights and First Amendment protections
SFPD officers are required uphold..

For advocates in San Francisco, who have spent decades working with the
police department to hammer out a progressive and constitutionally sound
framework for investigations conducted by SFPD officers, well before the
police department began sending officers to the JTTF in 2002, the white
paper provides confirmation of what many either knew or suspected: that
law enforcement officials in San Francisco were saying one thing in
public and another behind closed doors.

"The white paper shows that both the SFPD and the FBI have been
misleading the community, civil rights organizations and elected
officials on this issue from day one," Javeria Jamil, a staff attorney
at Asian Americans Advancing Justice, told The Intercept. "It confirms
that SFPD was not following local law and policy when participating in
the JTTF, despite their assertions to the contrary."

Jeffrey Wang, a civil rights attorney at the San Francisco office of the
Council on American-Islamic Relations, said the paper "calls into
question both the SFPD and the FBI's credibility" and, in
particular, indicates that Bennett's letter to the mayor
misrepresented facts that his own office was aware of. "They were
painting this wonderful picture, everything is all good, however, this
white paper comes out and here the FBI directly acknowledges significant
conflicts between FBI rules and policies, about how these problems have
been recurring, and also about how compliance is almost impossible."

The inescapable conclusion, Wang added, is that "the SFPD and the FBI
were untruthful about what was happening with the JTTF in San Francisco
for several years."

<snip>

The clash over the SFPD's work with the FBI is part of a broader
pattern of self-described sanctuary cities pulling back on
collaborations between police departments and federal law enforcement
amid concerns that local officers will be roped into the Trump
administration's efforts to depopulate the nation of undocumented
immigrants.

But the issues raised by the white paper also precede the current
president, reflecting the FBI's post-9/11 transformation into a
secretive domestic intelligence agency and the challenges that creates
for municipal police departments eager to cooperate with the feds but
less capable of shielding themselves from local accountability by
invoking "national security" claims. That tension is compounded by
San Francisco's reputation as both a proudly progressive city, and a
place where Arab, Middle Eastern, Muslim, and South Asian communities
have at times found themselves at the center of damaging and
unconstitutional law enforcement investigations.

<snip>

What the FBI Is Really Doing

The SFPD chose to pull its officers from the San Francisco JTTF in
February 2017, shortly after Donald Trump's inauguration. There were
rumors in the months that followed that the department might rejoin the
task force, and the union representing San Francisco police officers ran
a series of radio ads in 2018 complaining about the decision. Mostly
though, the issue appeared dormant.

It wasn't until October 2018 that advocates learned of a white paper
related to the JTTF. It was referenced in documents that had come in
through a public records request. The advocates requested the white
paper through the SFPD, and in March of this year filed a complaint
with San Francisco's Sunshine Ordinance Task Force to compel its
release. The SFPD resisted, informing the coalition seeking the document
that it was doing so at the federal government's request.

<snip>

Advocates immediately noticed that the white paper stated that SFPD
officers assigned to the JTTF "are primarily assigned guardian leads
(Type 1&2 assessments) in and around the City of San Francisco," and
that "FBI SF JTTF Guardian leads usually involve on some level the
exercise of First Amendment activities."

An assessment is like an investigation, in that it can involve
interviews, surveillance, and the procurement of all sorts of personal
records and information. The critical difference is that unlike a
traditional investigation, an FBI assessment does not require reasonable
suspicion, already a low evidentiary hurdle. FBI agents don't even
need to suspect that a crime has happened, is happening, or might
happen. A San Francisco police officer can't do that. Police officers
in San Francisco are expected to perform investigations, and those
investigations are expected to involve a reasonable suspicion of
criminal activity. In cases where an officer's investigation might
involve examining activities protected under the First Amendment, local
law and policy requires that the operation receive written approval by
senior officers and that a paper trail is created that can be assessed
in annual, publicly available compliance reports.

Unlike a traditional investigation, an FBI assessment does not require
reasonable suspicion, already a low evidentiary hurdle.

One of the reasons assessments matter is because of their tendency to
impinge upon activity protected under the First Amendment, said Vasudha
Talla, a senior staff attorney at the ACLU of Northern California.
"The FBI will say that their guidelines prohibit them from focusing
solely on individuals' exercise of First Amendment activity," Talla
explained. "But what we have seen from other documents and reporting
is that the FBI, in looking at and investigating and conducting
assessments of certain communities -- Muslim communities, Middle
Eastern communities, south Asian communities, and other communities such
as Black Lives Matter activists and border activists and Standing Rock
activists -- often do focus on First Amendment activities, and that is
incredibly troubling."

<snip>

According to the most recent publicly available compliance reports, SFPD
task force officers took part in 119 activities with the JTTF from 2014
through 2016. During that period SFPD officers never requested written
authorization that would greenlight law enforcement activities involving
free speech-related activities. "The FBI understands the restrictions
placed on members of the SFPD and they have been cooperative in efforts
to ensure the officers assigned to the JTTF adhere to SFPD policy,"
the reports routinely said. The compliance reports indicated that there
were never any violations of the city's ordinance, and that task force
officers were rarely, if ever, assigned to full investigations, which
require reasonable suspicion and reflect the kind of investigative
activity that San Francisco law and policy actually permits.

<snip>

John Crew, a retired ACLU attorney who continues acts as a consultant
for civil rights organizations in San Francisco, told The Intercept that
he "strongly" suspects that "the vast majority if not all" of
the 119 activities SFPD task force officers participated in "were in
violation of San Francisco law and policy."

Crew was part of the original committee of civil rights advocates that
crafted San Francisco's policy on SFPD investigations involving
political activity in the early 1990s. He has been working on the issue
ever since.. In 2012, after it was learned that the SFPD and the FBI
had for four years been secretly operating a revised agreement that
circumvented the local rules, San Francisco's board of supervisors
voted unanimously to pass the Safe San Francisco Civil Rights Ordinance.
Under the law, the SFPD would provide annual public reports to the San
Francisco Police Commission, the department's oversight body,
summarizing the activities of local officers working on federal task
forces and reporting problems complying with local law. "Everything
that happened after that was based on this claim that turned out to be a
fiction," Crew said, and he believes the white paper proves it.

"The FBI never took this seriously because they never thought any of
this would become public," Crew said. Though the document is undated,
Crew had correctly speculated that it was likely authored in either
December 2016 or January 2017. The language, he said, was consistent
with arguments a senior San Francisco FBI official made in a meeting the
pair had weeks before Trump's inauguration.

<snip>

"The FBI is concerned about setting a precedent that the ACLU and our
partners in communities across the country can use to ask for further
transparency," Talla, the ACLU attorney in San Francisco, said. "The
FBI really doesn't want to set a precedent in having to be transparent
anywhere, to any local body."

Chasing Ghosts

As Bennett noted in his letter to Mayor Breed earlier this year, the FBI
has more than 100 JTTFs operating across the country, and frequently
recruits the "most accomplished and professional officers" from
local police departments. Whether those officers' time and skills are
being used in a manner that is both productive and in line with the
vision of law enforcement held by the community they are sworn to serve
and protect would presumably be of the utmost importance to their chiefs
and city leaders.

The FBI's post-9/11 abandonment of core investigative principles such
as reasonable suspicion in favor of creating new categories of
investigative activities, like assessments, was "both unnecessary and
likely to result in the abuses we've seen," said Michael German, a
former FBI special agent, now a fellow at the Brennan Center for
Justice.

German, author of "Disrupt, Discredit, and Divide: How the New FBI
Damages Democracy," which traces the FBI's post-9/11 evolution, has
followed the fight over the JTTF in San Francisco closely. He testified
at the hearing last month, telling supervisor Mar that it would be
"extremely difficult" for SFPD officers to "meaningfully comply"
with local rules on sensitive investigations should the department chose
to rejoin the JTTF. The purpose of the hearing was to discuss the
publication of a report by a civil grand jury, which had decided
somewhat mysteriously to examine the issue of the SFPD's split from
the FBI as a problem that needed to be solved two years after the fact.
German met with the jurors and disagreed with several of the conclusions
they came to in the report that was ultimately produced.

The white paper was interesting not just for the solutions it
recommended, German explained, but also for those it did not. The FBI
did not, for example, suggest that it could appeal to the attorney
general to restore pre-9/11 investigative standards.

If the FBI is so intent in having SFPD officers on the JTTF, then it
should only assign them to full investigations, German said -- a
prospect that German himself did not endorse. There would still be a
problem of officers having access to FBI databases full of information
gained through dubious, reasonable suspicion-free assessments, he
explained, but at least the SFPD could be sure that its personnel
weren't in a state of constant, potential legal jeopardy. "Of
course, the FBI doesn't want that because they want the agents working
the full investigations," German said. FBI agents have a deeper
understanding of FBI rules, he explained, and if they mess up, the
bureau can fire them. The same might not be true of a police officer on
a JTTF. But it's also "a matter of prestige," German explained.
"Telling the agents you have to work this nonsense, low-level, garbage
leads rather than legitimate investigations would cause quite a
controversy within the FBI."

Two years after the SFPD left the JTTF, the Portland Police Department
did the same. The unifying theme running through both cases, German
argued, was not that the police departments chose not to participate in
the JTTFs -- most police departments do not -- but that their
noncompliance involved calling FBI policy into question. "The FBI
doesn't want to change its policy," he said. "It wants to change
state and local policies to comply with what the FBI wants to accomplish
regardless of whether that serves the communities."

For Crew, the veteran San Francisco civil rights attorney, the
disclosure of the white paper offered a sense of relief, a feeling that
the "FBI could no longer pretend or claim credibility on these
issues." If the FBI wants to have a public debate about its work with
the SFPD, that's fine, Crew said. The problem, he explained, is that
ever since San Francisco passed its ordinance requiring local cops to
follow local laws, which according to the white paper marked the
beginning of the recurring "problems," the FBI has been absent from
those conversations.

"We've been chasing ghosts," he said.

With the paper's release, Crew believes that lawmakers and the people
of San Francisco are now armed with an important truth: that the FBI
spent the last several years hiding behind vague claims of classified
secrets and national security to avoid an important public debate about
its impact on the city's hard-won civil rights protections.

"The release of that white paper ends that possibility in San
Francisco," he said. "And it ought to, frankly, end that possibility
everywhere. Everybody should understand how local police resources are
being used by the FBI, and it ought to be a local choice."