A pair of bare-bones reports on the city's collaboration with the FBI's Joint Terrorism Task Force are due before the Portland City Council on Wednesday afternoon—and the ACLU of Oregon, which initially blessed the city's reunion with the JTTF, has just issued a stinging takedown of both reports.
Irked that the city seems to have blown off its demand for a robust set of reports, one of the conditions behind the ACLU's tepid JTTF approval, the group is calling for Portland officials to "suspend its engagement with the JTTF" and add "independent oversight" of the city's work with the FBI.
The ACLU's 20-page analysis (PDF), prepared by Dave Fidanque and Andrea Meyer, accuses the city of ignoring "the most important safeguards" in a JTTF resolution passed by the council last April.
Meyer and Fidanque say it's not clear that Chief Mike Reese has personally vetted every request for help from the FBI. They question why work with the JTTF started even though Reese and Mayor Sam Adams, the police commissioner have yet to receive the security clearances prescribed by the city's resolution, and whether the city attorney's office has a free enough hand to make sure our cops don't violate our state's stricter civil rights laws.
Unfortunately, these first reports from the Chief of Police and the Mayor fall far short of providing any information other than vague reassurances to the public that the City is actually in compliance with the requirements of the Resolution, Oregon law and the Constitution, including protections for lawful political, religious and social activities.
The analysis demands much of what the ACLU has already asked for: more details about the number of investigations Portland cops have been working on, for how long they worked on them, and at what stage of the investigation their work began. Reese explained in his report that he couldn't release even that modest level of information without jeopardizing ongoing cases.
"It appears that the teeth we thought were in the resolution have been pulled or ignored," Dave Fidanque, ACLU of Oregon director, told me this afternoon.
Fidanque says he and Meyer have not had any sitdowns with the mayor's office about their concerns, but also that "I don't know there's very much in our analysis that's going to be news." Meyer has had conversations with the city commissioners over the past week, where she also raised the same points.
"Basically i think the majority of the council understands that they don't want the Portland police operating the way the FBI has," he added. "I hope they're not. The problem is we have no way of knowing based on the draft reports."
• So why is it important that Reese and Adams tell us what stage of an FBI investigation Portland cops are joining in at? And why should Reese be making a call on a case's "criminal nexus" each time the FBI asks?
Making that independent determination, including ascertaining the stage of the FBI investigation, is important because between March 25, 2009 and March 31, 2011, the FBI opened 82,325 assessments of people and groups, of which 42,888 were assessments of people or groups possibly related to terrorism or espionage. Assessments do not require a particular factual basis for suspecting a target of wrongdoing according to the FBI manual. Almost all of those assessments, more than 95%, were closed without finding evidence of wrongdoing that would have justified further inquiry. Nevertheless, all information collected during these assessments is retained and maintained by the FBI.
Assessments do not require a “criminal nexus,” the requirement which is necessary under the terms of the Resolution in all cases when the Police Bureau assists the FBI....
As a result, the FBI’s current policies allow them to collect and maintain information on a person based primarily on constitutionally protected First Amendment activity even when there is no articulable suspicion of criminal wrongdoing. When the FBI is engaged in “assessments” or “preliminary investigations,” the risk of activity that violates Oregon law is at its highest. While Council did not specifically bar Portland from assisting at those stages, it did require that Portland would not participate in any investigative work which includes investigating a person’s political, religious or associational activities unless there is reasonable suspicion the individual is involved in terrorist activity.
• Would giving out that information really harm active investigations?
We find the one sentence excuse by the Chief in his report as to why no quantitative information of any kind will be released regarding the number and types of investigations the Bureau participated in to be nonsensical....
While we do not purport to be experts on what type of information should be kept confidential, we are confident that merely providing the number of inquiries in which PPB collaborated, the types of inquiries, and whether such inquiries are open or closed, would not in and of itself “compromise ongoing investigations” or reveal Portland’s “operational tempo” on terrorism work.
This assertion appears to simply be an excuse for a decision possibly made by the Department of Justice that no quantitative information would be provided by the City. If there has been such an informal or formal requirement imposed by the FBI, the U.S. Attorney or the leadership of the Justice Department in Washington, D.C., the public should be informed. To suggest that stating, for example, that the two officers combined spent a total of 60 hours in 2011 engaged in two full investigations that remain open would somehow compromise an ongoing investigation would be offensive if it were not so ridiculous.
As noted above, in response to a Freedom of Information Act request, the FBI itself has reported the number and types of assessments it opened over a 2 year period. The FBI also disclosed the number of preliminary and full investigations that were opened and remain open based on those assessments. It’s worth noting that absent a public records request, the FBI was not providing this information. A desire by a public agency, especially a law enforcement agency, to shroud itself in secrecy under the guise of public safety and security not only has no legal basis but has, in the past, been used to cover up illegality.
• If no one in the city attorney's office has a security clearance, meaning the office has to rely on others to provide updates, what good is the promise that the office will provide oversight?
The Reports provide no information on whether there was any verification process by the City Attorney to independently ascertain whether there have been any violations of Oregon law. Other than the Chief’s description of his and other supervisors’ oversight, the report contains only vague assurances that nothing bad has happened. This concern cannot be emphasized strongly enough as it is critical to ensuring compliance with the Resolution.
The Justice Department’s refusal in 2005 to allow the City Attorney to apply for a security clearance was one of the reasons Mayor Potter and the Council chose to withdraw from direct participation in the JTTF at that time.
The context of this requirement for officers to inquire of the City Attorney, which ACLU urged and Council adopted, was that the PPB has a long history of well-documented abuses of violating Oregon law regarding the surveillance of lawful political, religious and social activity. Requiring independent City Attorney oversight, including examining all CIU files on a regular basis, which occurs today, is critical to prevent such abuses now and in the future.
• Did the training for the officers working with the JTTF include information on standard FBI conduct, presumably so the officers would better be able to distinguish gray areas between what they can't do but the FBI can?
The Report indicates there were two separate in-service trainings for the entire CIU, portions of which covered JTTF work. In response to our request for copies of the training material, we were advised the training material constituted a written copy of the Resolution and of ORS 181.575.
• If the mayor hasn't received any clearance yet, how meaningful were his regular briefings, really?
We do not understand how the Mayor was briefed by the FBI SAC absent FBI security clearance. The briefings were premised on the fact that the Mayor and Chief would have security clearance and be able to discuss any and all issues related to Portland’s assistance with JTTF work.
We take the Mayor at his word that he received meaningful briefings on the work of the FBI JTTF as well as a status report of “terrorist threats” in the Portland area. What we don’t understand is how that could have been accomplished without prior approval of the Mayor’s application for security clearance. His report should have addressed this issue.
• If there are questions about how well the city has been following the letter of the resolution guiding its work with the FBI, how has that work even been possible?
We hope that Council will insist that the final reports address these concerns and, in light of the facts, that there will be a critical examination of further use of PPB officers with the FBI at this time. To do otherwise, suggests the terms of the Resolution are not really binding and that the annual report need not be more than a generalized summary reflecting the historic “Trust Us” approach that has not served the City of Portland in the past and is fundamentally contrary to the purpose of the Resolution.