Spies in blue

Sarah Phelan sfbayguardian.com April 26, 2011

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

<mailto:sarah@sfbg.com>sarah@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."