Desiree Hellegers: Portland Versus the FBI

At the end of April, Portland, Oregon became the first city in the country to pull out of its local Joint Terrorism Task Force (JTTF) agreement with the FBI. The move marked the culmination of a five year struggle by an ad hoc coalition of some thirty activist organizations, led by the Oregon ACLU and Portland Copwatch, to convince the city to withdraw from an agreement that invested Portland police with free reign to investigate--and obstruct--the political activities of Portland residents. If the FBI feared that other cities would be inspired to follow Portland's lead, recent developments in Denver, coupled with the emergence of an ACLU campaign focused on JTTFs, suggest that those fears may have been well-founded. JTTFs may soon become increasingly visible--and effective--sites of resistance to the Bush administration's culture of fear and secrecy.

At the center of the Portland controversy was the City Council's insistence that renewal of the JTTF be contingent upon the FBI granting the Mayor and City Attorney security clearances equal to those given Portland police assigned to the task force, to ensure that the officers comply with Oregon state laws. While the first JTTF dates back to 1980, the FBI's website indicates that the "number of task forces has nearly doubled since September 11, 2001," and nationwide, they now number sixty six. In Portland, as in other cities, police officers assigned to the JTTF have been deputized, effectively operating as FBI agents, and supervised only by the FBI. In 2002, the Justice Department eliminated regulations put in place after the Church Commission hearings in the 1970s, which disclosed evidence of politically motivated spying and obstruction of first amendments rights by the FBI's notorious COINTELPRO division. The FBI can now, once again, legally spy on political and religious organizations. Since 1981, however, Oregon law has barred police-INS collaboration and police surveillance in the absence of evidence of criminal activity. As Andrea Meyer, Legislative Director of the Oregon ACLU noted in her testimony before the Portland City Council, "While the federal government is relying more and more on local law enforcement agencies to carry out its mission, the Justice Department has been obsessed with maintaining unprecedented levels of of secrecy. The city is right to insist that the shroud of secrecy shouldn't be allowed to prevent elected officials and the city attorney from doing their job of ensuring that city employees comply with Oregon law and the Oregon Constitution."

In previous years, the Portland City Council has effectively surrendered supervision of Portland Police to the FBI with empty assurances of forthcoming provisions for local oversight. This year, however, under the leadership of City Commissioner Randy Leonard, a career firefighter with strong union ties, and newly elected Mayor Tom Potter, ironically, a former Chief of the Portland Police Bureau, the City Council drew a clear line in the sand. While this year, for the first time, the FBI agreed that the Portland Chief of Police would be provided security clearance equal to officers serving on the task force, it effectively shut out the Mayor and City Attorney--despite the fact that in Portland, the Mayor doubles as Police Commissioner.

"What constitutes proper local control and supervision cannot be determined by the federal government," countered Leonard at one of two city council hearings on the issue. "It must and will be decided by the duly-elected officials of Portland who are responsible for all Portland Police officers, including those assigned to the JTTF." Potter went one step further in his thinly veiled critique of the Bush administration in noting that, "[I]n this country there's an old-fashioned principle, that the police or the military have to be answerable to civilian oversight. The president has to have that control over the United States military. The police commissioner has to have that oversight over the Portland police bureau."

In a surprizing turnaround, Leonard suggested that his position was strongly informed by his own misguided faith in the Bush administration's justifications for waging war against Iraq, which had informed his decision to oppose a resolution against the war. "I want to remind people that it was my vote from this very seat that I cast the no vote two years ago that caused the resolution to fail that opposed the invasion of Iraq until the United Nations supported the invasion," said Leonard. "I believed the president when he argued that there were weapons of mass destruction in Iraq. I believed that the State of Israel would be the target...of a nuclear or biochemical attack by Iraq. As it turned out, my trust in what I was told was betrayed. I now have adopted another guiding principle that guided another president: 'Trust, but verify.'"

Invoking the 9/11 Commission Report, City Commissioner Erik Sten argued that the secrecy surrounding the JTTF impeded, rather than advanced, effective responses to terrorist threats. "What [the report] says," noted Sten, "is that a lack of communication caused 9/11. A lack of communication means you have to broaden the loop to get all the necessary people into it and that includes local elected officials and others." The FBI, he argued, "needs to get people like Tom Potter into the loop, not tell him he can't be trusted." Sten stressed the importance of "community policing" in averting terrorist strikes, implicitly invoking testimony from members of the Muslim community like Portland resident Abdul Masjid, who spoke of the "panic" he feels as when he sees a police car in his rear view mirror, and worries about being arrested and not "seeing my family a second time." Terrorism, argued Sten, is averted by "having the community involved. The community cannot be involved if they don't feel safe...."

Locally concerns about the targeting of members of the city's Muslim community were heightened by the May 2004 arrest of Brandon Mayfield, which was invoked several times throughout the hearing. A convert to Islam, Mayfield was held as a material witness for two weeks based on the FBI's claim that his fingerprints matched those found on a bag of detonators linked to the Madrid training bombing that killed 191 people and wounded 2000 in March. Though by mid-April Spanish authorities had dismissed any link between Mayfield and the fingerprint, it was only after Spanish investigators definitively linked the print to an Algerian national that Mayfield was released from U.S. custody. "Obviously at least one Portland citizen, Brandon Mayfield, has been terrorized by the terrorism task force that is supposed to protect us against terrorism," said activist Lily Mandel in her testimony before the Council. In her testimony on behalf of the ACLU, Meyer raised questions--which went unanswered--about whether the Mayor or city commissioners had any insight into "the extent of the involvement of the Portland police officers who were--or why may have been--involved in the Mayfield investigation."

Nationally JTTFs gained visibility in December, when the National ACLU was joined by affiliates in Oregon, Colorado, California, Illinois, Iowa,Michigan, New Jersey, and Washington, in filing expedited Freedom of Information (FOIA) requests on behalf of individuals and organizations believed to have been targets of illegal police spying under local JTTFs. According to Meyer, in Portland FOIA requests for JTTF files on behalf of seventeen individuals and organizations, including members of the Muslim community and peace, environmental and animal rights activists, have so far yielded confirmation of the existence of eight documents--one of them 227 pages long. The documents themselves have yet to be released and the extent of Portland Police participation in gathering data remains an open question.

In some major U.S. cities, the FBI, local governments and law enforcement agencies have refused to disclose not simply the nature of individual investigations conducted under the auspices of JTTF agreements, but the specific terms of the actual task force agreements themselves. Queried before the city council about security clearances provided the chiefs of police and mayors under JTTF agreements in Washington, D.C. and New York City, Robert Jordan, special agent in charge of the Oregon office of the FBI, pleaded ignorance, but assured the council, "That's something we could obviously find out." If Jordan could likely find out the information, it's doubtful he would share it. In some cities, including, but not limited to, New York, Washington, D.C. and Los Angeles, JTTF agreements are effectively treated as immune from public disclosure laws. While the Portland JTTF agreement was entered into by the City Council and came up for annual renewal at public city council meetings, a survey of twelve publically available JTTF agreements, compiled by Prof. Alasdair S. Roberts, Director of the Campbell Public Affairs Institute at Syracuse University, and available on line at http://faculty.maxwell.syr.edu/, indicates that most JTTF agreements are signed by chiefs of police--and as such, may never be subject to public review--or disclosure--unless activists bring pressure to bear on the issue.

In a phone interview, Roberts, author of the forthcoming book from Cambridge University Press, Blacked Out: Government Secrecy in the Information Age, observed that "We're moving into a world in which intelligence and security agencies are more tightly linked to one another and this is being done in the name of improved information sharing, but very often the terms of the information sharing arrangements block the disclosure of shared information to people outside the network like citizen groups or legislators...." The sharing of "so called homeland security information by the federal government to state and local governments," he noted, is done with the proviso that all of that information will be protected from disclosure under state and local public record laws."

In the case of JTTFs, Roberts believes that "local governments have been reluctant to do anything that might upset the FBI and so they're not going to take the initiative to disclose information if they suspect the FBI might not want it disclosed. They're not going to step out in the name of disclosure--in the name of transparency."

In 2003 the ACLU filed a lawsuit against the City of Denver, when the city denied the ACLU access to the local JTTF agreement, ostensibly because of security concerns. In 2004, the City surrendered copies of JTTF agreements from 1998 and 1999. As Mark Silverstein, Legal Director of the Colorado ACLU noted, however, "it's entirely possible that a new jurisdiction could join the JTTF and it wouldn't be reflected in the signature pages we have here." The Denver agreement, it turns out, was entered into by a former chief of police, who was fired shortly thereafter for unrelated reasons. “I think the public has a right to know the rationale of the chief of police who makes the decision to assign one or two or how many officers to a task force like this,” remarked Silverstein in a recent phone interview. “In essence, Denver has surrendered the services” of law enforcement agents to the FBI, and they are “no longer answerable to the Denver City Government.”

Denver city policy, like Oregon state law, prohibits political surveillance in the absence of reasonable suspicion of criminal activity. In 2003, the City of Denver settled a class action lawsuit brought by the ACLU against the City on behalf of "as many as 3200 individuals and 208 organizations" believed to have been targeted for police surveillance in violation of the city policy. Among the plaintiffs in the case were the American Friends Service Committee and a 73 year old Franciscan nun, both labeled "criminal extremist[s]" in their police files. Conditions for the settlement of the lawsuit in 2003 included the review and subsequent purging of existing police files, the development of more stringent guidelines for Denver police, including specific provisions against videotaping and photographing activists engaged in legal protests, and
mandated audits of police files to ensure compliance. Recently, however, Judge Steve C. Briggs, the independent auditor contracted by the city to review Denver police files, concluded that the secrecy surrounding files maintained by Denver Police officers operating under the JTTF effectively precludes compliance with the terms of the “spy files” settlement. In mid-May, Mark Silverstein, Legal Director of the Colorado ACLU, sent an open letter to Denver Mayor John Hickenlooper and the Denver City Council advising them to follow Portland’s example and withdraw from the Denver JTTF, to ensure compliance with the 2003 settlement.

The day that the Denver letter went out, ACLU affiliates in Georgia, Idaho, Kentucky, Maine, Massachusetts, Missouri, North Carolina, Pennsylvania, Rhode Island and Wisconsin filed new FOIA requests for JTTF documents.

In a press conference announcing the new FOIA requests, ACLU Associate Legal Director Ann Beeson asserted that

But ironically, a persistent concern threaded throughout the Oregonian coverage was the spectre of the federal government punishing the city--and region--by withholding funding and services, particularly around "Homeland security." In one Oregonian story, Lt. Bruce McCain of the Multnomah Sheriff's Office was quoted as stating that "'the region could suffer from Portland's apparent leftist reputation in Washington, D.C....A year ago, it was gay marriage licenses. Now it's the task force.'"

After blasting the Mayor for failing to "trust that the two Portland officers on the task force [and the Chief of Police] are responsible enough to uphold Oregon law," columnist Renee Mitchell offered evidence that "The feds are apparently not above retaliation." She reported that in the week preceding the anticipated decision, the city had received an e-mail from the the Office for Domestic Preparedness under the Department of Homeland Security, "canceling a week of free technical training for law enforcement agencies unless Portland stays in the task force." "That training," Mitchell noted, "would have helped coordinate how the agencies share information, monitor terrorist activities and deal with federal anti-terrorist mandates."

As Scott Porter, Director of the Office of Consolidated Emergency Management for neighboring Washington County, whose office received the e-mail, confirmed in a recent phone interview, however, "The feds reversed their decision on that fairly quickly...within a week or two we got another e-mail saying, [essentially] "Sorry we didn't mean it. My employee acted without proper council."

The City Council decision has been greeted with elation in Portland's progressive community, though Portland Copwatch Co-Founder Dan Handelman views it as a "qualified victory" that still provides limited public accountability for police collaborating with the FBI and that leaves open questions about how information already gathered by the JTTF will be used. "Basically, we have never known actually what these officers have been doing and there's no way for us to know now," said Handelman.Testifying before City Council, Kayse Kayse Jama, Director of the Community, Language and Culture Bank of Portland greeted the impending decision as a "symbolic victory," but affirmed that "symbols can have a profound effect. I belive it is symbolic because it sends a clear message to the federal government that the civil liberties of all are important, even the rights and liberties of Portlanders who go to the mosque on Friday. I believe it's symblic, because the Muslims feel that there are elected officials that care about their concerns," giving them "greater trust to engage in civic structure, and to be partners in the security of our community."

If many activists had felt a measure of trepidation at the prospect of a former chief of police stepping into the role of Mayor, the JTTF decision--and the Mayor's framing of it--went along way toward building confidence in his leadership. Before casting his vote, the Mayor reflected, "I don't think Portland is a strange city. I don't think that we're really that much different than most any other city in the United States. I think, though, that we are concerned about ensuring that we have a proper balance between protecting people's physical security, [and] the property that they own, and balancing that against their rights....If we don't have all the protections of the Constitution, we will not survive as a country." The new agreement, he stated, would work to "ensure the safety of our people," while also "ensur[ing] that when you see a police car in your rearview mirror, you know it's there to protect you."

Desiree Hellegers is Associate Prof. of English at Washington State University and a board member of Peace and Justice Works, of which Portland Copwatch is a project. She can be reached at: helleger@vancouver.wsu.edu

Civic Resistance to the Bush Administration's Culture of Fear and Secrecy

Portland Versus the FBI