[News] FBI and San Francisco Police Have Been Lying About Scope of Joint Counterterrorism Investigations

[Anti-Imperialist News]

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 
<https://www.documentcloud.org/documents/6535344-FBI-White-Paper.html> 
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 
<https://missionlocal.org/2019/02/sf-left-the-joint-terrorism-task-force-two-years-ago-now-the-fbi-wants-to-pick-things-back-up/>.

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.”

Responding to questions from The Intercept by email, Prentice Danner, of 
the media office for the FBI’s San Francisco division, wrote that “the 
white paper was written by counsel for the San Francisco FBI and 
provided to the Chief of the San Francisco Police Department in December 
2016,” and added that FBI “firmly disputes any claim” that the document 
contradicted Bennett’s letter to the mayor. “The white paper was legal 
analysis provide [sic] by FBI counsel to the SFPD Chief of police and in 
no way contradicts the contents of the letter written by SAC Bennett to 
Mayor Breed.”

The SFPD wrote in an emailed statement that it “stands by” publicly 
available compliance reports indicating that of the nearly 120 
investigative activities task force officers took part in as part of the 
JTTF from 2014 through 2016, none met the standard set by local 
guidelines that would require written approval from department 
leadership. The department, which added that it was not aware of any 
instances of SFPD officers violating local law or policy while assigned 
to the JTTF, said it first learned of the white paper in July of 2017, 
contradicting the FBI’s statement that it first gave department 
leadership the document the previous year.

“This paper outlines current legal and policy issues for points of 
discussion, including potential solutions and actions,” David Stevenson, 
the SFPD’s Director of Strategic Communications, said of the 2016 document.

The mayor’s office did not provide a comment by publication.

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 
<https://theintercept.com/2019/09/14/fbi-mike-german-book/> 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.

“The community here in the Bay Area and specifically in San Francisco 
worked really hard for almost two decades to ensure that local police 
follow stronger local laws and policies when engaging with the FBI and 
not weaker federal standards,” Javeria, the attorney at Asian Americans 
Advancing Justice, said. “For us, it’s important that this information 
is brought to light and the SFPD publicly engage with the information in 
the white paper before engaging in any policy changes on this issue.”


      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 
<https://sanfrancisco.cbslocal.com/2018/01/08/police-union-ad-sfpd-terrorism-task-force/> 
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 
<https://sfgov.org/sunshine/> to compel its release. The SFPD resisted, 
informing the coalition seeking the document that it was doing so at the 
federal government’s request.

Bennett devoted a full section of his January letter to the mayor on the 
importance of “community engagement,” writing that confronting violence 
“can only be successful when law enforcement works in close 
collaboration with the communities and the citizens they serve,” and 
adding that “it is essential the FBI maintains a robust relationship 
with our local partners, both inside and outside of law enforcement, 
based on a common and accurate understanding of what we do and how we do 
it.” At an October 3 hearing regarding the SFPD’s departure from the 
JTTF, San Francisco supervisor Gordon Mar noted that he had both heard 
about the white paper and, in keeping with bureau’s professed commitment 
to transparency, filed a letter formally requesting the document ahead 
of the discussion.

The FBI provided the document an hour after the hearing was over. The 
U.S. attorney’s office sent a copy to the advocates minutes later.

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.”

“The white paper really reveals the disconnect between what the FBI is 
saying around First Amendment activity investigation and what it is 
actually doing,” she added.

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.

In other words, according to the paperwork, SFPD task force officers 
were engaged in a healthy amount of work for the JTTF over multiple 
years, but that work never touched on activity that might be protected 
under the First Amendment, nor did it involve full investigations based 
on reasonable suspicion, but it was all still somehow in line with San 
Francisco law and policy.

Advocates had already raised concerns about this improbable scenario 
before they saw the white paper, in part because investigative activity 
involving the inherently political and religious issue of suspected 
terrorism almost always involves brushing up against some sort of 
activity potentially protected under the First Amendment. Those concerns 
are now heightened, given that the white paper itself noted that 
assessments “usually involve on some level the exercise of first 
amendment activities” and that was what task force officers were 
“primarily assigned” to do.

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 
<https://sfpublicpress.org/news/2012-05/sf-mayor-signs-civil-rights-ordinance-into-law-0> 
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.

With San Francisco police officers on the JTTF primarily assigned to 
assessments, the FBI’s white paper acknowledged the existence of 
multiple problems in its collaborations with the police department, 
including the fact that requirements set forth in the FBI’s 
investigative rulebook “MAY be in conflict” with the city guidelines 
that SFPD officers must follow.

The paper went on to detail how measures intended to promote 
transparency were untenable for the FBI, and that this was the result 
local law and policy. SFPD officers are required “to make certain 
disclosures of their FBI investigative activities,” the white paper 
said, referring to task force officers’ accountability to local command 
structure. The FBI, however, prohibits the sharing of classified 
information. Local cops were thus in a bind, the document noted: failing 
to abide by local law and policy could result in discipline or 
dismissal, while compliance with those very same rules could open 
officers up “to possible criminal exposure for disseminating/disclosing 
FBI documents to include classified documents.”

“The problems presented by these issues have recurred every year since 
2013,” the white paper said, referring to the first full year that San 
Francisco’s civil rights ordinance was in effect, and they were “driven 
predominantly” by the existence of annual city compliance reports. “The 
SFPD Chief of Police can not comply with this ordinance unless the FBI 
approves and provides the Chief with authorized language/information.”

The FBI could provide the SFPD task force officers with sanitized 
information, the document noted, but then the bureau would be at risk of 
inspiring similar acts of transparency nationwide. “This production of 
sanitized information due to problems specific to the SF JTTF would set 
a precedent which may lead to similar ACLU requests to other JTTFs.”

“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 
<http://civilgrandjury.sfgov.org/2018_2019/JTTF_Final_Report.pdf> 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.”

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
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