Response to Sam Adams' JTTF Proposal
A clear analysis of major problems in Mayor Sam Adams' JTTF proposal.
The draft JTTF resolution does a very good job trying to balance the interests of FBI with local interests in the abstract given that proposal choses to entangle the PPB with the JTTF once again. It is a really tremendous first effort and shows its roots in the diversity, creativity and populism of Portland and the Mayor's office. Certainly, a proposal not to coordinate with the JTTF except to receive information would be the more wise choice for safety and privacy of our citizens (though politically dangerous). Notwithstanding the poor choice to engage with the JTTF at all, there are several fatal flaws in the proposal as it stands which will ultimately fail again to protect the civil rights and liberties of Portland and Oregon citizens. Unfortunately, the proposal in its current form amounts to a return to business as usual for the PPB and JTTF. This draft is just the a kinder, gentler Old Emperor in new clothes that are not so transparent.
First, while the proposal and S.O.P for the PPB have many reporting and notification requirements, neither the proposal or SOP has concrete methods for deterring police conduct. In short, the proposal and SOP have no teeth and will not be effective to limit the abuses it seeks to address. Rather than flimsy notification and reporting requirements, the resolution should put in place mechanisms that will shut down the PPB's entanglement with the JTTF given certain triggering events without the need for political intervention. That is, there must be concrete consequences for failures, not just reportage of the failures which can be addressed at the discretion of the Police Chief or Commissioner.
For example, a provision in the resolution which temporarily, and later permanently, halts all PPB involvement with the JTTF in the event of increasing bad conduct by the PPB or FBI, which the PPB knows or has reason to know, violates any Oregon statute, local, or common law. Under the current proposal, when there is a failure to conform to applicable law, it is, if one is so naive to belief, merely reported within the PPB hierarchy. Infinite numbers of such violations can occur, yet there is no mechanism that requires the operation to be shutdown. It should be noted that political will is generally not forthcoming when even fabricated threats to the safety of the voting public are involved. That is, leaving it to the mayor and city council to build consensus shut things down when the operation inevitably goes awry, will be to no avail. The fact that there is even this proposal now from the Mayor's office to step back into mouth of the whale after our previous experience shows just how much political pressure there is to go off fighting terrorist windmills or be perceived as not "tough on terrorism". The chances of the Mayor, Chief, or Commissioner shutting it down even with glowing violations (entrapment of a young minority boy, for example) is slim to nil.
Further, while *maybe* the current city administration would make the right call, this resolution continues into future administrations which may not be so open, inclusive, or concerned with privacy and civil rights. Without real enforcement of consequences for violations of the resolution which internally stop the operation, citizens can expect the same violations of their civil rights as before. Many options which will be effective at deterring and stopping violations could be added to the proposal; now it is toothless.
Second, even if one were to believe in effective notification, reporting, or the tooth fairy, the proposal lacks effective citizen/civilian oversight. A key provision missing from the proposal is the office of the Mayor having the clearance necessary to monitor the operation. Perhaps if the Mayor was the police commissioner, this would not be as big an issue. However, when the Mayor is not the Commissioner, the secret information can not likely be shared without an NDA.
Beyond this, there is no citizen oversight. Citizen oversight of the PPB has, at times, been effective (when it has teeth) to curb abuses. Likely, the only effective oversight of the process will require a citizen review board which will be composed of at least one member who also receives the secret clearances. Lastly, the Police Chief's non-classified summary report to the City Council is most likely to be pro-forma and contain no useful guidance to the public. To remedy this, the resolution should include, with particularity, what data will be required so that it is not left to the discretion of either the Chief or the city administration. For instance, this data should include, at least, the number of times PPB officers asked the City Attorney for clarifications or reported suspect or actual violations of applicable laws. it should also include the current number of ongoing investigations, race of the targets, and the operations rough locations. A citizen oversight commission should, at least, be empowered to approve or reject the Chief's report and ask for additional non-classified information. Without detailed and *enforceable* reporting requirements, the JTTF / PPB operation will again be a black box with little black fingers inside which stretch out into the personal, political and social lives of citizens. Especially those that have views or associations unpopular with current federal administration.
Lastly, it is arguable that the restriction that "PPB officers assigned to the JTTF must at all times comply with all Oregon laws, including but not limited to ORS 181.575 and 181.850, and City policies and SOPs." is no restriction at all. The PPB, and state officials generally, are not in the business of enforcing federal law, but work with JTTF entangles them with federal law. While ORS 181.575 and applicable case law may be more restrictive when applied to the types of crimes as defined by Oregon and local statutes, these restrictions may do little or nothing to curb civil rights violations when applied to enforcing federal laws like the incredibly vague anti-terrorism laws like 18 USC 2331 and its ilk.
The very law cited by the proposal, 18 USC 2331, sounds remarkably like the Espionage and Sedition acts, not only in their vagueness, but in their spirt. ORS 181.575 prevents law enforcement from "collect[ing]t or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct." But, this restriction applies to criminal activities and conduct as defined by Oregon *state* law most of the time. So, it is one thing to keep PPB from collecting information about the social/political views of citizens when it is related to everyday murder, rape, or theft, but what limit is there really when the investigation relates to criminal activity that "appear[s] to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion ..."? (18 USC 2331). The PPB acting under the direction of the JTTF to do "full investigations" involving federal crimes will have to figure out how to decide whether it is violation of Oregon law to collect information on someone that, for instance, might *appear* to be *intending* to *intimidate* a civilian population. It is a good thing that the City Attorney *might* be asked clarifications, because a Oregon Supreme Court Justice would probably lose a night's rest trying to figure out how privacy law developed in the context of state criminal conduct applies to vague federal statutes.
In short, there is not enough guidance for PPB officers working with JTTF as to how to apply Oregon's privacy laws and this can not likely be overcome in the context of the current proposal. For example, a real limit would be to authorize the PPB to participate in "full investigations" with the FBI only with respect to conduct with is crime under Oregon or local state law. PPB resources and officers could go after targets doing criminal conduct as defined under state law, and the G-Men could handle the more alchemic stuff. In this way, citizens would be guaranteed that PPB would be operating within the sphere of state law and the officers would be in familiar policing territory, rather than having to turn in their badges for the black robes of a high court judge.
With respect to ORS 181.850, the proposal does little to ensure the rights of the diverse immigrant population in Portland. Sure, the PPB won't be able to help pursue immigration violations, but in the JTTF context they would never be asked to do that. The proposal's cite to 181.850 as a protection is a red herring. Regardless of whether the allegation is true that the JTFF entrapped the Somalian boy in Pioneer square this last year, the JTTF was not interested in deporting him, they were interested in stopping him from (or encouraging him to) set off a bomb. If they singled him out because of his nationality or skin color, it was not to put him on boat back to Somalia, but to pick the right type of character to tell the story. To protect the diverse citizens of Portland, the proposal needs to itself impose a strict anti-discrimination protocol with explicit reporting guidelines and enforcement mechanisms which deter abuse.
contribute to this article
contribute to this article
add comment to discussion
view discussion from this article