[Ppnews] Spies in blue - JTTF - SF cops working as FBI spies

[Political Prisoner News]

Spies in blue

By caitlin
Created 04/26/2011 - 4:25pm

A secret memo indicates that SF cops may be 
working as FBI spies ­ with no local oversight

<mailto:sarah at sfbg.com>sarah at sfbg.com

San Francisco cops assigned to the FBI's 
terrorism task force can ignore local police 
orders and California privacy laws to spy on 
people without any evidence of a crime.

That's what a recently released memo appears to 
say ­ and it has sent shockwaves through the civil liberties community.

It also has members of the S.F. Police Commission 
asking why a carefully crafted set of rules on 
intelligence gathering, approved in the wake of 
police spy scandals in the 1990s, were bypassed 
without the knowledge or consent of the commission.

"It's a bombshell," said John Crew, a long-time 
police practices expert with the American Civil 
Liberties Union of Northern California.

The ACLU obtained the document April 4 under the 
California Public Records Act after a long 
battle. It's a 2007 memorandum of understanding 
outlining the terms of an agreement between the 
city and the FBI for San Francisco's 
participation in the Joint Terrorism Task Force.

And, according to Crew, it effectively puts local 
officers under the control of the FBI. "That 
means Police Commission policies do not apply," 
Crew said. "It allows San Francisco police to 
circumvent local intelligence-gathering policies 
and follow more permissive federal rules."

Veena Dubal, a staff attorney at the Asian Law 
Caucus, agreed: "This MOU confirms our worst fears," she said.

Dubal noted that in the waning months of the Bush 
administration, the FBI changed its policies to 
allow federal authorities to collect intelligence 
on a person even if the subject is not suspected 
of a crime. The FBI is now allowed to spy on 
Americans who have done nothing wrong ­ and who 
may be engaged in activities protected by the First Amendment.

FBI activity under this new "assessment" category 
has since come under fire, and a recent report in 
The New York Times showed that the FBI has 
conducted thousands of assessments each month, 
and that these guidelines continue under Obama.

And if the feds do control San Francisco police 
policy, then the San Francisco cops could be 
spying on innocent people ­ a dramatic change 
from long standing city policy. "The MOU is 
disturbing," Police Commission member Petra 
DeJesus told the Guardian. "The department is 
assuring us that local policies are not being 
violated ­ but it looks as if it's subject to interpretation."

It's the latest sign of a dangerous trend: San 
Francisco cops are working closely with the feds, 
often in ways that run counter to city policy.

And it raises a far-reaching question: With a 
district attorney who used to be police chief, a 
civilian commission that isn't getting a straight 
story from the cops, and a climate of secrecy 
over San Francisco's intimate relations with 
outside agencies, who is watching the cops?


SPIES LIKE US

San Francisco has a long ­ and ugly ­ history of 
police surveillance on political groups. SFPD 
officers spied on law-abiding organizations 
during the 1984 Democratic National Convention; 
kept files in the 1980s on 100 Bay Area civil, 
labor, and special interest groups; and carried 
out undercover surveillance of political groups 
focused on El Salvador and Central America. {not 
to speak of the 'red' squad, Cointelpro, the 
coordinated attacks on groups like the Black Panthers - cm}

Those abuses led the Police Commission to develop 
a departmental general order in 1990 known as DGO 
8.10. The local intelligence guidelines require 
"articulable and reasonable suspicion" before 
SFPD officers are allowed to collect information on anyone.

Even those rules weren't enough to halt the spies 
in blue. In 1993, police inspector Tom Gerard was 
caught spying on political groups ­ particularly 
Arab American and anti-apartheid organizations 
and groups Gerard described as "pinko" ­ and 
selling that information to agents for the Anti-Defamation League.

As the ACLU and Asian Law Caucus noted in a 
December 2010 letter to Cdr. Daniel Mahoney: 
"That scandal was not just about the fact that 
peaceful organizations and individuals were being 
unlawfully spied upon and their private 
information sold to foreign governments, but that 
the guidelines adopted in 1990 had never been 
fully implemented by SFPD. No officers had been 
trained on the new guidelines and no meaningful 
audit had ever been implemented."

Over the years, the commission has tried to keep 
tabs on police intelligence and prevent more spy 
scandals. The general order mandates that local 
police officials have to request general 
authority from a commanding officer and the chief 
to investigate any activity that comes under 
First Amendment protections ­ and must specify in 
the request what the facts are that give rise to 
this suspicion of criminal activity. The order 
also states that the chief can't approve any 
request that doesn't include evidence of possible criminal activity.

Those requests are reviewed monthly by the Police 
Commission and there are annual audits of the 
SFPD files to monitor compliance ­ so the notion 
that the local cops are joining the FBI spy squad 
without commission oversight is more than a little disturbing.

Officials with the FBI and SFPD are doing their 
best to reassure the local community that there's 
nothing to worry about. But so far their replies 
seem to duck questions about whether FBI 
guidelines trump local policies. For example, the 
MOU states that "when there is a conflict, [task 
force members] are held to the standard that 
provides the greatest organizational benefit."

We asked Mahoney to clarify: does that mean the 
local cops could be held to the FBI's standards?

"The San Francisco Police Officer(s) who are 
assigned to the Joint Terrorism Task Force always 
have and continue to be required to follow all 
SFPD's policies and procedures," Mahoney replied in a statement.

That's confusing; do they follow SFPD policies, or obey the MOU?

We asked FBI special agent-in-charge Stephanie 
Douglas whether SFPD officers are involved in 
surveillance and "assessments" (that FBI code 
word for creating spy files on individuals and 
groups) and whether they are identifying as SFPD or FBI officers.

"The FBI only initiates investigations on 
allegations of criminal wrongdoing or threats to 
our national security," Douglas replied April 21. 
"Our investigations are conducted in compliance 
with the Constitution, the laws of the United 
States, the Attorney General Guidelines, the 
Domestic Investigation and Operations Guide, and all other FBI policies."

Okay, that's typical FBI-speak. Here's more: "The 
JTTF is a task force comprised of FBI special 
agents, agents from other federal agencies, and 
local police officers who have been officially 
deputized as federal task force officers (TFOs) 
who have the power and authority of a federal 
agent. Because all JTTF TFOs are actually de 
facto federal agents, they are required to 
operate under federal laws and policies when involved in a JTTF case."

So the cops are actually feds. But wait: "Our 
standard JTTF MOU recognizes, however, that the 
JTTF TFOs do wear two hats, as it were, and 
directs JTTF TFOs to follow his or her own 
agency's policy when it is stricter than the FBI 
policy under certain circumstances," Douglas concluded.

Again: not exactly clear, and not exactly reassuring.

"At some point they need to say whether SFPD 
officers are engaged in assessments," Crew said.

These questions have spurred the Police 
Commission and Human Rights Commission to 
schedule a joint hearing in May to discuss what 
the document means, why SFPD never alerted the 
civilian oversight authorities, and whether a 
clarifying addendum can be tacked onto the agreement.


SPY FOR US OR LEAVE

The concerns are likely to be intensified by 
recent developments in Portland, Ore.

Portland dropped out of the Joint Terrorism Task 
Force in 2005 over concerns that local cops would 
be violating privacy laws. But in November 2010, 
the FBI thwarted a bomb plot allegedly linked to 
terrorists, and city officials came under pressure to rejoin the JTTF.

But Mayor Sam Adams has insisted on language that 
would bar local cops from doing surveillance and 
assessments, which, apparently, won't fly with the feds.

On April 20, Willamette Week, the Portland 
alternative paper, wrote that Adams "effectively 
scuttled" Portland's reentry into its local JTTF 
because of his anti-spying language.

In an April 19 letter to Adams, U.S. Attorney for 
Oregon Dwight Holton stated that Adams' proposal 
of only allowing officers with the Portland 
Police Bureau to be involved in investigations 
and not in FBI assessments was a deal-breaker.

"Unfortunately, as currently drafted, the 
proposed resolution does not provide a way in 
which the PPB can rejoin the team," Holton wrote. 
"There is a single provision that stands as a 
roadblock to participation ­ specifically the 
provision that seeks to have the City Council 
delineate only certain investigative steps a task 
force officer can take part in. Specifically, the 
resolution seeks to dictate for the JTTF which 
stages of an investigation task force officers 
from the [Portland police] can work on."

"Investigation and prevention of complex crimes 
and terrorism are typically fluid and 
fast-moving," he added. "It makes no sense to ask 
[Portland police] officers to be in for one part 
of a conversation, but out for another part of 
the same conversation as investigators discuss 
findings from assessments, investigations, etc. 
in evaluating and addressing terrorist threats in Portland and beyond."

The message isn't lost on San Francisco civil 
liberties activists. If you don't let your cops 
join the spy squad, they can't be a part of the task force.

"It was one thing to join the JTTF 10 years ago 
when they were operating under guidelines that, 
while not to the ALCU's taste, were at least tied 
to some level of suspicion," Adams said. "But 
they have taken their procedures and guidelines 
and moved them to the far right. It's one thing 
to say that it's necessary for the FBI to do 
that, and quite another to say that local 
agencies have to forfeit their own policies ­ and 
with no public debate or decision-making."


ASK THE FEDS FIRST

Further complicating the question of police 
oversight is the fact that George Gascón, who was 
police chief when civil liberties groups started 
asking for a copy of the MOU last fall, refused 
to turn over the document without asking the feds first.

In a Jan. 4 letter to the ACLU and ALC, Gascón 
and Mahoney stated that the SFPD could not speak 
to information about the duties, functions, and 
numbers of officers assigned to the Joint 
Terrorism Task Force "without conferring with our 
partners in the Federal Bureau of Investigation."

"I am sure you can appreciate the delicate 
balance we hold in crafting policy that not only 
supports our mission in the ultimate protection 
of life, but also in advancing democratic values 
through collaboration with the communities we serve," Gascón and Mahoney wrote.

And Gascón is now district attorney.

"It raises the question of accountability," said 
Public Defender Jeff Adachi "We want to make sure 
that police officers working in the city, 
regardless of whether it be for the feds or the 
SFPD, are complying with general orders and 
policies established by the department. But when 
officers go on an assignment with the feds, we 
don't know if they are operating under parameters set by local law."

Unearthing the FBI's hitherto clandestine MOU 
with the SFPD appears to be yet another sign that 
local police are increasingly being subjected to 
federal policies not in keeping with local procedures.

As the Guardian previously reported, the 2008 
decimation of San Francisco's sanctuary city 
legislation and the 2010 activation of the 
federal government's controversial Secure 
Communities program, which both happened during 
former Mayor Gavin Newsom's tenure, means that 
the city of St. Francis now ranks among the top 
38 counties nationwide that are deporting "noncriminal aliens."

Dubal also noted that the FBI came to the SFPD in 
1996 asking for help with the task force, but 
also sought a waiver from the Police Commission 
so officers could participate without having to 
follow local rules. "And within two weeks, then 
Mayor Willie Brown said, not in our town," Dubal 
said. "So in 1997, the SFPD said we are not going 
to join unless we can follow our own rules. And 
in 2001, when the SFPD joined, it was under an 
MOU that required them to comply with SFPD rules 
and was signed in 2002 by then-SFPD Chief [Earl] Saunders."

Dubal said that after local law enforcement 
agencies sign an MOU with the FBI, they designate 
and assign officers to work from FBI 
headquarters. "In the past, two SFPD officers, 
paid with San Francisco tax dollars, physically 
worked in the FBI's office in a secure room where 
you can only go if you have security clearance. 
But they still can't spy without reasonable 
suspicion, and they also need audits."

Crew and Dubal said that in a recent meeting, 
SFPD officials assured them that local police 
were following General Order 8.10, but that they 
are open to creating an MOU addendum to clarify this.

Crew and Dubal remain unsure if the FBI would be 
agreeable to signing off on that. They note that 
the FBI has previously stated that its JTTF has 
sensitive investigations going on so it can't 
give the public all the information. "Fine, but 
the issue is, Are these investigations based on 
suspicion, or are they based on religious 
background, associations, ethnicity, and travel patterns?" Dubal said.

They also doubt that the MOU would even have 
surfaced if not for comments that then SFPD Chief 
Gascón made, first in October 2009, then in March 
2010, that triggered an uproar in the local 
Muslim, Arab, and Pakistani and Afghani communities.

At the time, Gascón, who has a law degree and 
graduated from the FBI Academy, had just landed 
in San Francisco fresh from a stint as police 
chief for Meza, Ariz., where he drew praise for 
speaking out against Maricopa County Sheriff Joe 
Arpaio's inhumane treatment of undocumented 
immigrants Given this seemingly progressive 
stance, Gascón shocked civil libertarians in San 
Francisco when he said he wanted to unearth 
SFPD's intelligence unit, which was disbanded amid scandal in the early 1990s.

"We have to realize that in the post-9/11 world, 
San Francisco is an iconic city, like New York, 
Washington. and Los Angeles," Gascón said. "If 
somebody wanted to make a big statement about 
something they disliked about America, doing it 
here would definitely get attention. We need to 
know what is going on under the surface of the city."

But Gascón did not say how a revived police spy 
unit, which had been shut down in large part due 
to Crew's work, would operate. And six months 
later, he upset Bay Area Muslims during a March 
2010 breakfast by reportedly saying that the Hall 
of Justice building was not just susceptible to 
earthquakes, but also to an attack by members of 
the city's Middle Eastern community who could 
park a van in front of it and blow it up.

Gascón subsequently claimed that he "never 
referred to Middle Easterners or Arab Americans," 
but that he had instead singled out the 
Afghanistan and Yemen communities because they pose "potential terrorism risks"

"In light of Gascón's comments and his desire to 
resurrect the intelligence unit, people were 
asking, 'Is it possible that the SFPD is also 
doing the same thing?'" Dubal asked, noting that 
she started getting complaints in 2009 and throughout 2010 about the FBI.

"Folks were saying that the FBI was asking about 
their religious identity, their family situation, 
and their political activities," she recalled. "I 
certainly saw an upswing in innocent people being 
contacted. People were saying, 'What the hell? ­ 
the FBI knocked on my door at 5 a.m.'"


COMMUNITIES UNDER SIEGE

A 2011 Human Rights Commission report documents 
frequent complaints from Arab, Muslim, and South 
Asian communities facing racial and religious 
profiling while traveling and unwaranted 
interrogation, surveillance, and infiltration by 
local and federal law enforcement personnel at 
their homes, places of worship, and workplaces.

The report recommended asking the supervisors and 
the Police Commission to "ensure that all SFPD 
officers, including those deputized to the Joint 
Terrorism Task Force, follow and comply with 
local and state privacy laws, including DGO 8.10."

On April 5, the Board of Supervisors voted 10-0 
to approve a resolution, sponsored by Sup. Ross 
Mirkarimi and cosponsored by Sups David Chiu, 
Eric Mar, David Campos, and John Avalos, to endorse the HRC report.

All this is happening against the backdrop of FBI 
guidelines that have been loosened twice since 
September 2011, first by U.S. Attorney General 
John Ashcroft in the wake of the 9/11 terrorist 
attacks, then by Attorney General Michael Mukasey 
in the dying days of the Bush administration, and 
now by the Obama administration.

And as The New York Times reported in March, 
records obtained through a Freedom of Information 
Act request show that between Dec. 2008 and March 
2009, the FBI began 11,667 assessments of people 
and groups for criminal/terror links, completed 
8,605 assessments, and launched more than 400 
intensive investigations based on the 
assessments. The FBI also told the Times that 
agents continue to open assessments at about the same pace

Crew noted that Mukasey's guidelines marked the 
first time since 1976 that the FBI has been 
allowed to do assessments and collect files 
without a suspicion that a crime has occurred.

Dubal observed that the most relevant documents 
to emerge from a recent FOIA request to determine 
if the FBI has engaged in disturbing intelligence 
gathering activities are those related to "geomapping."

"The materials are not particular to Northern 
California, but they show how FBI maps 
communities based in ethnic concentrations," Dubal said.

Dubal also pointed to the case of Yasir Afifi, an 
Egyptian American student from Santa Clara, who 
found an FBI tracking device on his car when he 
took it in for an oil change. In March 2011, CAIR 
filed suit in Washington, D.C., alleging that the 
FBI violated Afifi's First, Fourth, and Fifth 
Amendment rights by failing to obtain a warrant.

DeJesus recently told the Guardian that the 
Police Commission was never made aware of the 
MOU's existence. "The chief should have checked 
in with the commission president, at the very 
least," she said. "The idea that they were not 
reporting this to anyone is disconcerting."

"The SFPD does not have the authority to enter 
into a secret agreement with the FBI whereby some 
of its officers are allowed to conduct 
intelligence operations in violation of the 
Police Commission's General Order 8.10," Crew added.

In a Jan. 25 letter to Mahoney, representatives 
from the ACLU and the ALC noted that "in the 
past, the SFPD had not previously deferred to the 
FBI on whether or how to openly address how San 
Francisco police officers will be supervised and 
held to well-established and painstakingly and 
collaboratively crafted San Francisco general orders."

"These are low-level investigations that require 
no criminal predicate, meaning that when 
initiating an assessment, FBI agents can conduct 
intrusive forms of investigation without any 
criminal suspicion," Dubal said. "These include 
interviewing innocent Americans, infiltrating 
organizations, using open source data to spy and 
surveil, going into religious centers such as 
mosques to spy and surveil, and recruiting and using informants."

----------
Source URL: 
<http://www.sfbayguardian.com/2011/04/26/spies-blue>http://www.sfbayguardian.com/2011/04/26/spies-blue

Links:
[1] mailto:sarah at sfbg.com




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