Excerpt from National Security and Local Police published by the Brennan Center for Justice
The most significant oversight problem with assigning police officers to JTTFs is that there is no mechanism geared towards ensuring compliance with state and local laws. This problem is exacerbated by the fact that rules relating to how police officers should act in the event of a conflict between their federal and state/local obligations are sometimes unknown and almost always unclear. Several municipalities and government reports have expressed concern that local officers assigned to JTTFs may be asked to engage in activities not permitted under state and local rules.
A 2005 report by the DOJ Inspector General found that the FBI did not have signed memoranda of understanding (MOUs) addressing these matters with many of the agencies participating in JTTFs.338 While 88 percent of the police departments in the Brennan Center survey now have MOUs, the language of these documents is ambiguous and provides little concrete guidance.*
For example, the Houston MOU cites the FBI guidelines as a “controlling document” with only a caveat that any conflict with state or local law “will be jointly resolved.” 339 This hedging provides Houston officers with little practical instruction as to what to do in case of conflicts. In Detroit’s case, the police department signed an MOU with the JTTF but, disturbingly, it does not appear to have retained a copy.340
There is also an ongoing concern that the JTTF structure undermines state and local supervision of personnel and information. The FBI Special Agent in Charge of a JTTF supervises assigned police personnel.341 These officers, deputized as United States Marshals, must obtain high-level security clearances.342 But because JTTF operations are often classified, police commanders and city officials who commonly do not hold federal security clearances are unable to supervise and oversee the work of their own officers who are detailed to the JTTF.
The experiences of the Portland and San Francisco police departments demonstrate the problems police personnel can encounter when working on JTTFs. Oregon state law is stricter than the federal guidelines, and requires a criminal predicate before collecting information about political, religious, or social views.343 Recognizing this discrepancy, MOUs between the Portland Police Bureau and the FBI were (uncharacteristically) clear that should a conflict between the federal and local directives arise, Portland officers must comply with Oregon law.344 But the MOUs did not provide for any mechanism to review the work of Portland police assigned to JTTFs.345 Moreover, officers uncertain about their authority were not permitted to consult with the City Attorney to obtain legal advice about compliance with Oregon law.346 The FBI refused to allow the City Attorney to apply for the necessary security clearance or to assure the mayor and police chief that they would have access to the same information as their officers serving on the JTTF.347 Consequently, Portland withdrew from the JTTF in 2005, agreeing instead to work with the FBI on a case-by-case basis, if and when there was sufficient criminal predicate.348
The Portland Police Bureau rejoined the JTTF in 2010. The following year, the City Council passed a resolution clearly delineating the circumstances under which an officer could be detailed to a JTTF and providing for stronger oversight.349 The police chief can now assign officers to a JTTF on an asneeded basis but only for investigations “of suspected terrorism that have a criminal nexus.”350 In other words, the investigation must meet the reasonable suspicion requirement. Both the police chief and the Commissioner-in-Charge are to receive security clearances and the City Attorney is supposed to have access to classified information when necessary.351 This would leave the FBI in control of JTTF investigations but permit supervisors to understand the context of their officers’ actions. Any officer asked to do something in violation of Oregon law must report the incident immediately to the police chief. 352 Finally, the police chief must provide an annual public report about Portland officers’ work for JTTFs.353
San Francisco confronted many of the same issues following a lengthy February 2011 report by the San Francisco Human Rights Commission. The study questioned whether San Francisco’s association with the JTTF compromised compliance with police policy,354 which requires reasonable suspicion of criminal activity before monitoring First Amendment-protected activity.355 Indeed, without informing the Police Commission or the public, the police department signed a revised MOU in 2007 that eliminated all provisions ensuring the full application of local rules to San Francisco officers participating in the JTTF.356 The MOU did not become public until 2011. The San Francisco Board of Supervisors responded by adopting an ordinance that requires local participation in the JTTF to be consistent with state and local privacy laws as well as department policies, procedures, and orders.357 The ordinance also mandates that any MOU with the JTTF be open to public notice and comment and that the police chief provide annual public reports on the police department’s work with the JTTF.358
Portland and San Francisco are national leaders in a “legislative approach” to defining local law enforcement participation in JTTFs. Other agencies surveyed still rely on MOUs that are not publicly debated and might perpetuate uncertainty about the law and create barriers to effective supervision and oversight of local officers.359 Five police departments have agreements like the 2007 San Francisco MOU that eliminate restrictions based on local laws.360
By passing local legislation, Portland and San Francisco provided clear, practical guidance to ensure that officers dispatched to JTTFs comply with state and local laws. These lawmakers set out procedures for annual audits and public reports. Local legislators, especially in jurisdictions with strong state privacy laws or local rules that require a criminal predicate before conducting intelligence activities, may do well to follow the examples of these two West Coast cities.
* The NYPD and Dearborn Police Department are the only two local law enforcement agencies surveyed that claim not to have an MOU with the JTTF. See Letter from Richard Mantellino, Records Access Officer, N.Y.C. Police Dep’t, to Faiza Patel, Co-Director, Liberty & Nat’l Sec. Program, Brennan Ctr. for Justice (Mar. 2, 2012) (on file with the Brennan Center) (“A thorough and diligent search was conducted for Memorandums of Understanding between the NYPD and the FBI concerning the Joint Terrorist Task Force. However, no responsive records were located pursuant to our search.”); Letter from Office of the Corporate Counsel, City of Dearborn Mich., to Michael Price, Counsel, Brennan Ctr. for Justice (Mar. 21, 2012) (on file with the Brennan Center) (“There is no current MOU presently in force and copies of a past MOU are not available.”). But see Memorandum from Michael Jacobson, Assistant Gen. Counsel, Fed. Bureau of Investigation 4 (Sep. 5, 2003), available at http://www.scribd.com/doc/61419208/FBI-NYPD-Joint-Terrorism-Task-Force-Dysfunction (“There is a new updated MOU on D’Amuro’s desk which is very different from the previous MOUs. The previous MOUs were 3 pages, and this is a booklet, with a far different tone.”).
339 Fed. Bureau of Investigation, U.S. Dep’t of Justice, Joint Terrorism Task Force: Standard Memorandum of Understanding Between the Federal Bureau of Investigation and Houston Police Department (2007) [hereinafter Houston JTTF MOU] (on file with Brennan Center).
340 The City of Detroit responded to a Brennan Center freedom of information request by stating that it “does not possess such a record,” but only because it did not retain a copy: “Based on information provided by a DPD personnel [sic], although the DPD was required to sign the MOU, the Department did not retain a copy of the agreement.” Letter from Ellen Ha, Senior Assistant Corp. Counsel, Governmental Affairs Section, Detroit Police Dep’t, to Michael Price, Counsel, Liberty & Nat’l Sec. Program, Brennan Ctr. for Justice (Apr. 26, 2012) (on file with the Brennan Center).
341 Most police departments detail just a handful of officers to their local JTTF. In New York, however, the size of this contingent increased dramatically after 9/11, jumping from 17 to 130 officers. Kelly May 18, 2004 Testimony, supra note 54, at 4; see also Raymond Kelly, Comm’r, N.Y.C. Police Dep’t, Address at the Council on Foreign Relations Meeting: The Post-9/11 NYPD: Where Are We Now? (Apr. 22, 2009), available at www.cfr.org/homeland-security/ post-911-nypd-we-now/p19198. By some accounts, this was Commissioner Kelly’s attempt to “pack” the JTTF with loyal officers who would feed information to the revamped Intelligence Division and give the NYPD greater control over Task Force operations. Comiskey, supra note 14, at 18; Craig Horowitz, The NYPD’s War on Terror, N.Y. Mag., Feb. 3, 2003, available at http://nymag.com/nymetro/news/features/n_8286/index1.html (“One of Kelly’s earliest moves was to pump up the number of detectives from 17 to 125, a huge commitment that the FBI matched. Kelly’s intensity and his willingness to push the envelope were demonstrated early on when he tried to muscle control of the JTTF away from the FBI.”). But it is not clear that Kelly’s plan had the intended effect. Recent reports indicate a rift between the JTTF and the Intelligence Division, with NYPD JTTF officers “in total sync” with the FBI while Intelligence Division officials are “running their own pass patterns.” E-mail to Fred Burton, V.P. of Intelligence, Stratfor Global Intelligence (Nov. 30, 2011), available at http://wikileaks.org/gifiles/docs/915038_ re-alpha-note-feedback-fbi-nypd-tensions-highlighted-in.html.
342 See generally Fed. Bureau of Investigation, U,S. Dep’t of Justice, Joint Terrorism Task Force Memorandum of Understanding (MOU), available at http://www.it.ojp.gov/fusioncenterguidelines/joint_terrorism_task_ force_mou.pdf (generic JTTF MOU).
343 Or. Rev. Stat. § 181.575 (2011) (Information Not to be Collected or Maintained). By contrast, the Attorney General Guidelines governing FBI investigations do not require a criminal predicate in order to collect information about activities protected by the First Amendment. Emily Berman, supra note 7, at 22.
344 See, e.g., Fed. Bureau of Investigation, U.S. Dep’t of Justice, Joint Terrorism Task Force: Memorandum of Understanding Between the Federal Bureau of Investigation (Portland) and the Portland Police Department (2000) , available at http://www.portlandonline.com/shared/cfm/image.cfm?id=329922 (“[I]n situations where the statutory or common law of Oregon is more restrictive than comparable Federal law, the investigative methods employed by state and local law enforcement agencies shall conform to the requirements of such Oregon statutes or common law.”); Fed. Bureau of Investigation, U.S. Dep’t of Justice , Joint Terrorism Task Force: Memorandum of Understanding Between the Federal Bureau of Investigation (Portland) and the Portland Police Department (2002) (same), available at http://www.portlandonline.com/shared/cfm/image.cfm?id=329912.
345 See Am. Civil Liberties Union of Or., ACLU Backgrounder: Joining the FBI Joint Terrorism Task Force Is Still a Bad Idea 2 (2011) [hereinafter ACLU Backgrounder], available at http://aclu-or.org/sites/default/files/ JTTF_Backgrounder_Feb_2011_0.pdf; City of Portland Withdraws From JTTF!, Am. Civil Liberties Union of Or. (Apr. 28, 2005), http://aclu-or.org/content/city-portland-withdraws-jttf-2005.
346 ACLU Backgrounder, supra note 345, at 3.
347 City of Portland Withdraws From JTTF!, supra note 345.
348 Portland, Or., Resolution Substitute 36315 (April 26, 2005), available at http://www.portlandonline.com/shared/ cfm/image.cfm?id=329904.
349 Portland, Or., City Council Resolution 36,859 (2011), http://www.portlandonline.com/auditor/index. cfm?a=349687&c=54882. The resolution enjoyed the support of all five members of the Portland City Council, including Mayor Adams, as well as the ACLU of Oregon. Press Release, Am. Civil Liberties Union of Or., Portland City Council Passes JTTF Substitute Resolution; ACLU Supports with Reservations (Apr. 28, 2011), available at http://aclu-or.org/content/portland-city-council-passes-jttf-substitute-resolution-aclu-supports-reservations.
350 Portland, Or., supra note 349.
353 Id. A copy of the Resolution is included with the Standard Operating Procedure used by the Criminal Intelligence Unit of the PPB when working with the JTTF. Portland Police Bureau, supra note 80, at 4-7.
354 City and Cnty. of S.F. Human Rights Comm’n, Community Concerns of Surveillance, Racial and Religious Profiling of Arab, Middle Easter, Muslim, and South Asian Communities and Potential Reactivation of SFPD Intelligence Gathering 16 (2011), available at http://www.safesf.org/wp-content/ uploads/2012/02/SF-Human-Rights-Commission-Report-Community-Concerns-of-Surveillance-Racial-andReligious-Profiling-of-Arab-Middle-Eastern-Muslim-and-South-Asian-Communities-and-Potential-Reactivationof-SFPD-Intelligence-Gathering1.pdf.
355 Id.; SFPD DGO 8.10, supra note 128 at 1, 3.
356 S.F., Cal., Ordinance 120046 § 1(g) (Jan. 9, 2012) (proposed), available at http://www.safesf.org/wp-content/ uploads/2012/02/Proposed-Safe-SF-Civil-Rights-Ordinance.pdf.
357 S.F., Cal., Admin. Code § 2A.74 (2012), available at http://www.amlegal.com/nxt/gateway.dll/California/administrative/ chapter2aexecutivebranch?f=templates$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$anc=JD_2A.74. The Board of Supervisors initially approved a much stronger version of the ordinance. See S.F., Cal., supra note 356. But Mayor Ed Lee vetoed the legislation. Steven T. Jones, Lee Veto Protects the SFPD’s Ability to Spy on You, S.F. Bay Guardian (Apr. 11, 2012), http://www.sfbg.com/politics/2012/04/11/lee-veto-protects-sfpds-ability-spy-you.
358 S.F., Cal., supra note 357; Steven T. Jones, Mayor Lee Signs Watered-Down Limits on SFPD Spying, S.F. Bay Guardian (May 9, 2012, 4:56 PM), http://www.sfbg.com/politics/2012/05/09/mayor-lee-signs-watered-downlimits-sfpd-spying. SFPD Chief Greg Suhr presented the first public report in January 2013, but it was roundly criticized for its lack of detail. Steven T. Jones, Activists Slam Hollow Report of SFPD-FBI Spying, S.F. Bay Guardian (Jan. 31, 2013, 4:33 PM), http://www.sfbg.com/politics/2013/01/31/activists-slam-hollow-report-sfpd-fbi-spying. Suhr then issued an apology for the sparse report and pledged to work with activists to develop a more detailed report. Steven T. Jones, Suhr Apologizes for Sparse Spying Report, Pledges More Info, S.F. Bay Guardian (Feb. 1, 2013, 5:54 PM), http://www.sfbg.com/politics/2013/02/01/suhr-apologizes-sparse-spying-report-pledges-more-info.
359 In addition to Portland and San Francisco, Miami-Dade may be the only other jurisdiction in the Brennan Center survey with a policy requiring officers assigned to the local JTTF to comply with local rules. However, the Brennan Center was unable to verify this information. In response to an open records request, the Miami-Dade Police Department stated that FBI requirements prevented it from releasing a copy of its memorandum with the JTTF. At the same time, the department issued a written response stating that “MDPD Task Force Officers must not, in the course of their assignments, violate any of the policies set forth by the MDPD’s Departmental Manual.” Letter from Glen Stoltzenberg, Major, Miami-Dade Police Dep’t, to R. Kyle Alagood, Brennan Ctr. for Justice (May 24, 2012) (on file with the Brennan Center).
360 In Houston, a memorandum in effect since 2007 cites the FBI guidelines as a “controlling document” with only a caveat that any conflict with state or local law “will be jointly resolved.” Houston JTTF MOU, supra note 339. This leaves Houston officers assigned to the JTTF with little practical guidance. By comparison, a previous memo from 1993 clearly stated that “personnel of the HPD shall be required to utilize only those investigative techniques consistent with their given standards and procedures.” Hous. Counterterrorism Task Force, Memorandum of Understanding 1 (1993) (on file with the Brennan Center). It also mandated that “[t]o the extent that HPD standards and procedures impose any greater restrictions upon the use for their informants and cooperating witnesses, such personnel shall be bound by those restrictions.” Id. at 4-5. Police in Chicago, Philadelphia, Washington, D.C., and Minneapolis all operate under language identical to the 2007 San Francisco MOU. The St. Paul Police Department adheres to an MOU that is even less specific, although the department was in the process of negotiating a new agreement as of March 2012. The existing MOU states any “[p]roblems or difficulties which may arise” will be “mutually addressed…at the lowest possible administrative level.” Minneapolis Joint Terrorism Task Force, Memorandum of Understanding 1-2 (n.d.) (on file with the Brennan Center). And the Los Angeles Police Department permits officers assigned to a multiagency task force to engage in the investigative methods authorized for the agency heading that task force, “as long as those methods do not violate current laws.” Intradepartmental Correspondence from Charlie Beck, Chief, L.A. Police Dep’t, to the Honorable Board of Police Comm’rs, Amendment to Major Crimes Division Standards and Procedures 15 (Mar. 17, 2010) (on file with the Brennan Center). Without additional guidance, there remains a risk that local officers will be unsure of which set of current laws they must follow.