By Becky Straus, Contributing
Columnist
On March 27, with
dissenting votes from Commissioners Fritz and Novick, the Portland City Council
voted to accept the annual report on the Portland Police Bureau’s collaboration
with the Joint Terrorism Task Force (JTTF). The report, submitted by Chief Mike
Reese, was nearly identical to the report that was accepted last year and
provided very minimal detail about the number and types of cases where PPB is
lending resources to the FBI’s terrorism investigations.
We in Portland are
left to wonder not only how and when PPB is lending resources to the FBI, but
also whether we should continue to endorse a partnership we know very little
about.
Without adequate
detail of the implementation of the JTTF agreement, we are forced to accept a “trust
us” approach to oversight. And while we
all wish we could trust our government to do what is right, history has taught
us that unless there is adequate oversight and opportunities for accountability
to the public, we should not.
The ACLU has appeared
before City Council on numerous occasions over the past 15 years in order to
educate the Council and the public about inappropriate political, religious and
ethnic surveillance carried out by the FBI and other federal, state and local
law enforcement agencies.
With our coalition
partners, we endeavored to sound an alarm regarding inappropriate investigative
techniques and surveillance prior to the attacks of Sept. 11, 2001. Our
efforts, at least in part, led to the decision in 2005 by former Mayor Tom Potter
and the Council to withdraw from formal participation in the FBI’s JTTF. When
Mayor Adams renewed public discussions concerning the relationship between the
Police Bureau and the JTTF in 2010, the ACLU provided expert testimony and
documentary evidence regarding the conflicts between Oregon law and the
guidelines and policies under which the FBI and its Joint Terrorism Task Force
operates.
Two years ago we
testified in support of Council Resolution 36859 which now governs the
relationship between the Police Bureau and the JTTF. We did so despite our
continued high degree of concern over the ability of the Bureau to navigate and
respect the great differences between the very malleable federal guidelines and
polices under which the FBI operates and the tighter restrictions of Oregon
laws and the Oregon Constitution under which the city of Portland must operate.
We remain concerned that cooperation between the police bureau and the JTTF
will inevitably expose Portland officers to violations of Oregon law.
We frequently
remind the Council that, since 1981, Oregon law has prohibited any state or
local police agency from collecting or maintaining any information about
political or religious or social activities of individuals or organizations
unless they’re directly related to criminal activities.
We arrived at our
position in support of the resolution in 2010 in part because we considered it
to be the continuation, not the end, of an ongoing conversation regarding the
appropriate boundaries and safeguards for PPB’s task of protecting the safety
of all Portland residents, workers and visitors, while at the same time
complying with and respecting the constitutional and statutory rights of
individuals and organizations.
In 2011 we set out
very specific expectations that we had for the annual reports on the city’s
relationship with the JTTF and the FBI.
We urged the mayor and police chief to put the systems in place that
would ensure both that the terms of the resolution would be honored and that
Portland would be a model of transparency.
After significant
revisions to the first draft, the 2012 Annual Report was submitted with some
detail, but not enough detail to truly inform the public of the nature of PPB’s
participation on the JTTF — certainly not enough to compel anyone to point to
Portland as a model of transparency.
This year’s report
was similarly disappointing.
Once again, missing
from this report was data indicating the number of investigations, the types of
investigations, at what stage of the FBI inquiries PPB was asked to work with
the JTTF, and the total number of hours the investigating criminal intelligence
unit officers worked on terrorism inquiries. The ACLU has never asked the city
to disclose specific factual information regarding the individual matters on
which PPB cooperates with the FBI.
Disclosing the number of inquiries and the stage of the inquiry at the
time of the FBI request to the city, however, would not disclose information
that could compromise an ongoing inquiry or investigation.
In 2011, we had
urged that the Resolution limit PPB involvement to only those inquiries
designated as “full investigations” by the FBI. The FBI’s investigation
guidelines and policies permit them to carry out “assessments” and “preliminary
investigations” without a reason to believe that the target of the inquiry is
or may be involved in terrorism activity.
Based on other
Freedom of Information Act requests and investigations by the Office of
Inspector General, we know there is a greater likelihood that FBI “assessments”
and “preliminary investigations” will result in surveillance and collection of
information related to political, religious and social activities that are
lawful and constitutionally protected. Only inquiries at the “full
investigation” stage require a factual predicate towards a specific individual,
group or organization.
Thus, if the FBI
request of PPB is made during either the “assessment” or “preliminary
investigation” stage, it should automatically trigger heightened inquiry by the
chief, the commissioner-in-charge and the active involvement of the city
attorney to ensure that the city’s involvement will not violate either the
resolution or Oregon law. Especially because the “criminal nexus” standard of
the resolution is undefined and fuzzy, it is critical for the public and the
Council to know how many inquiries PPB officers have participated in and at
what stage (as classified by the FBI). If we knew that few, if any, of our
officers worked on either “assessments” or “preliminary investigations,” it
would go a long way toward public verification that the city is in compliance
with the resolution and Oregon law. Conversely, if PPB officers were involved
only in “assessments” and “preliminary investigations,” it would indicate there
was a much greater likelihood that the city was in violation of the Resolution
and Oregon law.
Before casting his
no vote at Council in March, Commissioner Novick talked about the ongoing
frustration with receiving a JTTF report that cites so little detail about PPB’s
involvement. While the ACLU disagrees that abandoning the reporting requirement
is the appropriate response to this frustration, we wholeheartedly agree with
Novick that until we can break the cycle of presenting and accepting such bare
bones reports, the mechanism over which JTTF activities are monitored will
remain inadequate and we in Portland will be forced to accept this “trust us”
approach.
Becky Straus is the Legislative Director with the ACLU of
Oregon. She directs advocacy and
lobbying efforts before the Oregon Legislature and is the ACLU’s primary
lobbyist on City of Portland matters. Much of this commentary comes from
testimony delivered to the City Council on March 27 by ACLU of Oregon Executive
Director David Fidanque.
This article appears in 2013-04-12.