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<h1><b>Spies in blue</b></h1><font size=3>By <i>caitlin<br>
</i>Created <i>04/26/2011 - 4:25pm<br><br>
</i>A secret memo indicates that SF cops may be working as FBI spies
with no local oversight<br><br>
<a href="mailto:sarah@sfbg.com">sarah@sfbg.com</a> <br><br>
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.<br><br>
That's what a recently released memo appears to say and it has sent
shockwaves through the civil liberties community.<br><br>
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.<br><br>
"It's a bombshell," said John Crew, a long-time police
practices expert with the American Civil Liberties Union of Northern
California.<br><br>
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.<br><br>
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."<br><br>
Veena Dubal, a staff attorney at the Asian Law Caucus, agreed: "This
MOU confirms our worst fears," she said.<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
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?<br><br>
</font><h4><b>SPIES LIKE US</b></h4><font size=3>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<i>. {not to speak of the 'red' squad, Cointelpro, the coordinated
attacks on groups like the Black Panthers - cm}<br><br>
</i>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.<br><br>
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.<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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."<br><br>
We asked Mahoney to clarify: does that mean the local cops could be held
to the FBI's standards?<br><br>
"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.<br><br>
That's confusing; do they follow SFPD policies, or obey the MOU?<br><br>
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.<br><br>
"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."<br><br>
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."<br><br>
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.<br><br>
Again: not exactly clear, and not exactly reassuring.<br><br>
"At some point they need to say whether SFPD officers are engaged in
assessments," Crew said.<br><br>
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.<br><br>
</font><h4><b>SPY FOR US OR LEAVE</b></h4><font size=3>The concerns are
likely to be intensified by recent developments in Portland,
Ore.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
"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."<br><br>
"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."<br><br>
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.<br><br>
"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."<br><br>
</font><h4><b>ASK THE FEDS FIRST</b></h4><font size=3>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.<br><br>
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."<br><br>
"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.<br><br>
And Gascón is now district attorney.<br><br>
"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."<br><br>
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.<br><br>
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."<br><br>
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."<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
"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."<br><br>
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.<br><br>
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"<br><br>
"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.<br><br>
"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.'" <br><br>
</font><h4><b>COMMUNITIES UNDER SIEGE</b></h4><font size=3>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.<br><br>
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."<br><br>
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.<br><br>
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.<br><br>
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<br><br>
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.<br><br>
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."<br><br>
"The materials are not particular to Northern California, but they
show how FBI maps communities based in ethnic concentrations," Dubal
said.<br><br>
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.<br><br>
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."<br><br>
"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.<br><br>
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."<br><br>
"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."<br>
<hr>
<b>Source URL:</b>
<a href="http://www.sfbayguardian.com/2011/04/26/spies-blue">
http://www.sfbayguardian.com/2011/04/26/spies-blue</a><br><br>
<b>Links:<br>
</b>[1]
<a href="mailto:sarah@sfbg.com" eudora="autourl">mailto:sarah@sfbg.com<br>
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