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<div class="header reader-header reader-show-element"> <font
size="-2"><a class="domain reader-domain"
href="https://theintercept.com/2019/11/01/fbi-joint-terrorism-san-francisco-civil-rights/">https://theintercept.com/2019/11/01/fbi-joint-terrorism-san-francisco-civil-rights/</a></font>
<h1 class="reader-title">FBI and San Francisco Police Have Been
Lying About Scope of Joint Counterterrorism Investigations,
Document Suggests</h1>
<div class="credits reader-credits">Ryan Devereaux - November 1,
2019</div>
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<p><u>San Francisco police officers</u> 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 <a
href="https://www.documentcloud.org/documents/6535344-FBI-White-Paper.html">internal
FBI legal analysis</a> obtained by The Intercept.</p>
<p>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.</p>
<p>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.</p>
<p>“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 <a
href="https://missionlocal.org/2019/02/sf-left-the-joint-terrorism-task-force-two-years-ago-now-the-fbi-wants-to-pick-things-back-up/">wrote</a>.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>“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.”</p>
<p>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.”</p>
<p>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.”</p>
<p>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.”</p>
<p>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.</p>
<p>“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.</p>
<p>The mayor’s office did not provide a comment by
publication.</p>
<p>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.</p>
<p>But the issues raised by the white paper also precede
the current president, reflecting the FBI’s post-9/11
transformation into a <a
href="https://theintercept.com/2019/09/14/fbi-mike-german-book/">secretive
domestic intelligence agency</a> 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.</p>
<p>“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.”</p>
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<h3>What the FBI Is Really Doing</h3>
<p>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 <a
href="https://sanfrancisco.cbslocal.com/2018/01/08/police-union-ad-sfpd-terrorism-task-force/">complaining</a>
about the decision. Mostly though, the issue appeared
dormant.</p>
<p>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 <a
href="https://sfgov.org/sunshine/">Sunshine
Ordinance Task Force</a> to compel its release. The
SFPD resisted, informing the coalition seeking the
document that it was doing so at the federal
government’s request.</p>
<p>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.</p>
<p>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.</p>
<p>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.”</p>
<p>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.</p>
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<p>Unlike a traditional investigation, an
FBI assessment does not require reasonable suspicion,
already a low evidentiary hurdle.</p>
</blockquote>
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<p>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.”</p>
<p>“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.</p>
<p>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.</p>
<p>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.</p>
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<p>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.</p>
<p>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.”</p>
<p>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 <a
href="https://sfpublicpress.org/news/2012-05/sf-mayor-signs-civil-rights-ordinance-into-law-0">voted
unanimously</a> 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.</p>
<p>“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.</p>
<p>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.</p>
<p>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.”</p>
<p>“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.”</p>
<p>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.”</p>
<p>“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<strong>.”
</strong></p>
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<h3>Chasing Ghosts</h3>
<p>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.</p>
<p>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.</p>
<p>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 <a
href="http://civilgrandjury.sfgov.org/2018_2019/JTTF_Final_Report.pdf">report</a>
that was ultimately produced.</p>
<p>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.</p>
<p>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.”</p>
<p>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.”</p>
<p>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.</p>
<p>“We’ve been chasing ghosts,” he said.</p>
<p>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.</p>
<p>“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.”</p>
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