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 longstanding 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?
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.
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.
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."
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.'"
A 2011 Human Rights Commission report documents frequent complaints from Arab, Muslim, and South Asian communities facing racial and religious profiling while traveling and unwaraanted 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."