The San Francisco Police Department for years coordinated with the Federal Bureau of Investigation’s Joint Terrorism Task Force in violation of local laws and the SFPD’s own policies restricting information-gathering on civilians based on political and religious affiliation, and other activities protected by the First Amendment.
This revelation is laid bare in a whitepaper written by FBI officials and first sent to the SFPD in 2016, in which the FBI states explicitly that it was directing SFPD officers to collect information on individuals, absent suspicion of criminal activity.
That is in direct conflict with the 2012 Safe San Francisco Civil Rights Ordinance. That law, passed unanimously by the Board of Supervisors and signed by Mayor Ed Lee, restricts SFPD officers’ ability to participate in precisely those kinds of operations that infringe on the civil liberties of San Franciscans.
Mission Local recently obtained a copy of the whitepaper.
Five years after the passage of the civil rights ordinance, in February 2017, the city cut ties altogether with the FBI Joint Terrorism Task Force (JTTF). While the task force had been coordinating with the SFPD to ostensibly thwart terrorism threats, it continued to induce concern among groups who argued that the task force targeted immigrants and religious minorities.
Under the 2012 Safe San Francisco Civil Rights Ordinance, SFPD officers are barred from collecting information on activities protected by the First Amendment unless the chief and two other SFPD higher-ups sign off. Between 2014 and 2016 alone, while Police Chief Greg Suhr was in command, no such approval was given in the 119 times SFPD officers assigned to the task force conducted investigations.
Police Commission audits determined that none of those investigations involved “First Amendment activity.”
And, yet, the FBI’s own whitepaper makes clear that the investigations SFPD officers were primarily assigned to “usually involve, on some level, the exercise of First Amendment activities.”
“The core fiction promoted by the SFPD and the FBI had been that the FBI would never assign SFPD officers to … matters that would violate department policy when, in fact, the opposite was true,” said John Crew, a retired ACLU attorney who independently reviewed the white paper.
“Nearly everything the FBI had SFPD do in those years violated local policy.”
The document also appears to contradict statements by FBI Special Agent in Charge John F. Bennett in a Jan. 29 letter sent to Mayor London Breed — a letter touting the benefits of the task force. “SFPD officers assigned to the JTTF were expected to abide by their department’s General Orders while serving on the JTTF, and they did,” Bennett wrote.
The whitepaper indicates that officers did not abide by SFPD policies.
The San Francisco Police Department and the FBI were not able to respond to Mission Local’s inquiries by press time. A message left on a recent cell number for Suhr was not immediately returned.
But, in a related story published by The Intercept hours ago, FBI spokesman Prentice Danner said the document was “written by counsel for the San Francisco FBI and provided to the Chief of the San Francisco Police Department in December 2016.” Danner said the FBI disputes the claim that the whitepaper contradicts Bennett’s January letter to Mayor Breed.
In contrast to the FBI, SFPD spokesman David Stevenson told The Intercept that the SFPD first learned of the document in July 2017, and was not aware of instances in which SFPD officers violated department policy and local law. “This paper outlines current legal and policy issues for points of discussion, including potential solutions and actions,” Stevenson told the investigative news site of the 2016 document.
The document, which Mission Local independently obtained, explains that SFPD officers assigned to the task force were primarily assigned to “assessments” — gathering information on people without any demonstrable “reasonable suspicion” of wrongdoing. A 2013 ACLU records request revealed that these assessments could often be baseless, such as: “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.”
Javeria Jamil, a staff attorney at the Asian Americans Advancing Justice — Asian Law Caucus, said that when local law enforcement coordinates with the FBI to create files on innocent people, oftentimes immigrants, the results can be disastrous.
She said that every time information is gathered from these so-called assessments, it’s uploaded into a database that can be accessed across federal agencies — including Immigration and Customs Enforcement.
“In other words, every time an assessment is opened against an individual, ICE finds out if the person is undocumented or not,” she said. ICE “can then use this information for immigration enforcement, and in fact has done so on multiple occasions.”
The coordination was occurring in San Francisco even as SFPD officials continued to assure the public that the department was in full compliance with its policies and city law.
“SFPD officers have, and will continue to, comply with department policy,” Lt. Darryl Fong told the Police Commission at a Jan. 13, 2016, meeting. “The FBI has not placed the SFPD members in a position at risk of policy violations.”
Furthermore, the FBI memo notes how the specific tasks assigned to the SFPD officers were in contravention to city law, and compliance with the law as it was written would have been a problem with the FBI. For example, SFPD officers participating in the program were required by law to disclose to superiors the nature of their investigations.
“The FBI will not allow such disclosure.” It would be a violation of FBI guidelines.
Sharing such information with SFPD higher-ups for approval, furthermore, “essentially translates to SFPD having oversight of FBI investigations,” which the FBI clearly did not want.
Notably, these issues were raised by the FBI at least three and a half years after the city’s requirements took effect. “The problems presented by these issues have recurred every year since 2013 driven predominantly by the annual SFPD report” to the Office of Citizen Complaints, the whitepaper says.
SFPD’s leadership apparently knew there was a conflict with city law because they sought guidance on how to resolve it. The whitepaper clearly states: “SFPD is seeking guidance on how they can resolve the conflicts between [its policy] and FBI policy.”
Conducting investigations of the sort the 2012 ordinance sought to forbid was, in fact, the vast majority of local police officers’ work with FBI task force.
Mike German, a retired FBI agent and a fellow at New York University’s Brennan Center for Justice, said that the SFPD should have known its officers were primarily doing assessments. “It was something I assumed was true,” German said. “Because that’s the bulk of the grunt work.”
The SFPD has been fighting in court to keep the whitepaper out of public view. The Asian Law Caucus, the Council on Islamic-American Relations of California, and PolicyLink in June sued the SFPD to release the whitepaper, arguing that the information is subject to local public records laws. A California Superior Court judge in late August denied their request, arguing that the paper is “property of the federal government” and the SFPD is “prohibited by federal law from disclosing it.” (The groups are appealing the decision.)
The contents of the whitepaper also deeply undercut the conclusions of a July San Francisco Civil Grand Jury report. Its investigation detected no “instance of non-compliance with [department policy] by SFPD officers that had been assigned to the JTTF.” It furthermore set guidelines for the Mayor’s Office and the Police Commission to rejoin the FBI task force. If such a desire existed, a new agreement should be drafted “no later than July 1, 2020,” the grand jury advised.
Evidence of noncompliance made headlines in March 2015, when advocates filed a complaint against the department that alleged an SFPD sergeant and an FBI agent improperly questioned Google software engineer Sarmad Gilani at Google’s San Francisco offices in June, 2014. The Department of Police Accountability, with whom the complaint was filed, found in August 2016 that incident was a result of “inadequate training.”
Jamil added that the whitepaper confirms what she and other advocates have suspected for some time.
“By explicitly discussing conflicts between local regulations and FBI rules, both parties demonstrated that they have knowingly violated local law and policy all along,” she said. “The whitepaper also signals that the SFPD has been misleading everyone since 2012, when they first stated that SFPD officers participating in the JTTF were complying with local laws.”