If the San Francisco Police Department isn't working with the FBI to secretly spy on law-abiding local residents – as a secret document released last year  indicated they had the authority to do – then why are Police Chief Greg Suhr, Mayor Ed Lee, and others opposing legislation that would ban such surveillance ?
That's the question that longtime police policy expert John Crew of the American Civil Liberties Union of Northern California is asking as he tries to get two more members of the Board of Supervisors to join the six current co-sponsors of the legislation, which the board will consider on Tuesday, in anticipation of having to override a mayoral veto.
“What's the harm?” Crew told us. “There's something that doesn't add up here.”
As we reported at the time, the ACLU last year obtained a 2007 memorandum-of-understanding between the SFPD and the FBI establishing procedures for the Joint Terrorism Task Force, in which SFPD personnel would be under the command of the FBI, circumventing local and state restrictions on domestic surveillance of people who haven't committed any crimes.
After the ensuring controversy and under pressure from members of the Police Commission, Police Chief Greg Suhr issued Bureau Order #2011-07 to clarify that SFPD personnel are bound by local and state privacy protections. "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 us last month.
Suhr and Lee have each made public statements  indicating that the new legislation – developed by the ACLU and carried by Sup. Jane Kim with five progressive supervisors as co-sponsors – is redundant and unnecessary. But Crew and the ACLU made a Sunshine Ordinance request for any modifications to the MOU or communications with the FBI indicating that SFPD's contractual obligations no longer apply, and there were no such documents.
“When you talk about civil rights, you put it in writing,” Crew said. “This really doesn't add up. We're getting conflicting explanations. And the bottom line is this problem has been solved in Portland.”
When a similar issue arose in Portland, Oregon, civil libertarians pressured the city to withdraw from its MOU with the FBI and create a new one that includes restrictions on the surveillance of people who were not suspected of any crimes, but who may have been subjected to FBI attention because they were Muslims or because of their political beliefs. And Crew said it didn't harm the relationship of the two policing agencies.
At an emotional hearing last week before the Public Safety Committee, a long string of representatives from groups that have been singled out for FBI surveillance that violated protections under the California Constitution – Muslims, anarchists, anti-war activists, Occupy demonstrators, immigrant groups, environmentalists, animal rights activists, etc. – urged supervisors to stand up for them. The legislation has a long and diverse list of organizational supporters .
Sup. Scott Wiener – one of two supervisors that Crew is hoping to win over – told us, “I agree that local surveillance rules should govern. But I'm not convinced that we need this legislation.”
Wiener said he still hasn't made up his mind, and he plans to speak with Portland's mayor before Tuesday's hearing.
So why wouldn't he support legislation that simply made his position official city policy? Wiener said he's wary of telling SFPD how to do law enforcement and with “reducing the ability of the department to be flexible in the future.”
Crew said representatives of the Mayor's Office, which did not respond to our calls for comment, have told him that Lee would defer to the SFPD's determination of whether to sign the legislation. “That's a pretty stunning claim,” Crew said, “which does not bode well in terms of reasonable civilian control of the SFPD for the next few years. I sure hope they back off that.”
Kim, who has a good relationship with the Mayor's Office, also did not return calls for comment. But Crew was incredulous about why anyone who believes in civil liberties would oppose this legislation, telling us, “This is not a radical stand here.”