Legislation seeks to prevent SFPD from working with the FBI to spy on lawful citizens
Under the MOU, SFPD paid officers work out of the local FBI office. The secure nature of their work means they must seek federal permission to even talk to their superiors in the SFPD about their work, effectively removing them from the local chain of command. Despite mandated requirements on local law enforcement, the MOU does not allow for any civilian oversight of the work of officers assigned to the JTTF.
San Francisco Chief of Police Greg Suhr said he believes that the concerns have already been addressed. In his first days in office, Chief Suhr issued a binding Bureau Order #2011-07 setting forth the requirement that officers comply with local standards.
An excerpt of the order reads, "SFPD officers shall work with the JTTF only on investigations of suspected terrorism that have a criminal nexus. In situations where the statutory law of California is more restrictive of law enforcement than comparable federal law, the investigative methods employed by SFPD officers working on JTTF investigations shall conform to the requirements of such California statutes."
"With this Bureau Order, the language of the 2007 Memorandum of Understanding no longer applies and SFPD personnel are bound by the provisions of the 2011 Order," SFPD Public Information Officer Albie Esparza told the Guardian.
But Crew said that as long as the MOU between the SFPD and federal law enforcement remains in place, Suhr's order at best creates contradictory policy. "The Memorandum of Understanding is a binding legal contact with the federal government. Which do you think will take legal precedence when it comes up against a local police chief's departmental order?" said Crew, who urged the department to clarify the matter by withdrawing from the MOU, a step the SFPD has thus far been unwilling to take.
A letter from Sept. 28 of last year to Coalition for Safe SF from FBI Special Agent Stephanie Douglas regarding the contradiction clarifies the matter. "I do retain the right to assign FBI JTTF cases," states Douglas, who goes on to assert it is she who makes the confidential judgment of which cases fall afoul of the state and city rules and which do not.
After years of intelligence-gathering authorized under a secret memorandum, public mistrust in the SFPD's relationship to federal law enforcement persists. Kim says she believes the proposed ordinance will still help make San Francisco safer. "It increases the trust of the community members that are working with public safety in reporting, and in cooperating around many of the actual criminal activities that might be going on in the city," she said.
The proposed legislative approach of regulating the scope of local participation in federal JTTF work is not unprecedented. The city has the option of terminating the MOU with 30 days notice, a step that the city of Portland, Oregon has taken to prevent its police force from spying on citizens in violation of local and state law.
In December, the city of Berkeley suspended its agreement with the Northern California Regional Intelligence Center (an arm of the Joint Terrorism Task Force) as part of a broad review of that city's relationship to other local and federal law enforcement agencies (see "Policing the police," 12/13/11).
"What this is about is maintaining local control of law enforcement and ensuring the civil liberties of the people of San Francisco," Crew said. "Don't San Franciscans deserve the same protection of their civil liberties as the people of Portland?"