San Francisco police officers working on an FBI counterterrorism task force were routinely given low-level assignments that would invite violations of local San Francisco law and policy, according to an internal FBI legal analysis obtained by The Intercept.
The FBI’s San Francisco office has long assured the public that its relationship to the city’s police officers could be trusted, especially when it came to officers assigned to the bureau’s secretive counterterrorism teams. In January, for example, John F. Bennett, the special agent in charge of the office, wrote to Mayor London Breed to correct the “inaccurate information promulgated” by the media concerning its Joint Terrorism Task Force, or JTTF, which the San Francisco Police Department chose to remove its officers from more than two years ago.
The split was the extension of an inherent tension: Police officers on the teams operated under both the rules of the FBI and the rules of their department, and the rules of the department — created to protect the civil and First Amendment rights of San Franciscans and enforced under a local San Francisco ordinance — prohibit or strictly regulate much of the core activities FBI agents routinely engage in. Bennett downplayed the issue in his letter to the mayor, pointing to an agreement between the two agencies, which had held that police officers on the task force would follow local departmental rules when working with the FBI.
“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.
It was a rosy picture, but it didn’t tell the whole story. An FBI white paper authored before Bennett sent his letter to the mayor, shows that the bureau’s San Francisco office considered the city’s laws and policies regarding civil rights and free speech to be a major problem. The document stated that the bulk of what police officers did on the San Francisco JTTF were inquiries that would typically be prohibited under SFPD rules and local law, calling into question nearly 120 operations that task force officers participated in over a three-year period.
The internal analysis described a legal catch-22 for San Francisco police officers: They were on one hand required to describe their work for the JTTF to SFPD supervisors and faced potential discipline or removal if they didn’t. At the same time, the work they did for the FBI involved classified matters — and sharing that information, even with a supervisor, exposed officers to federal criminal liability. The document presented several potential solutions to the conflicting rules. The only ones the FBI appeared to endorse were those that would water down or weaken the local civil rights and First Amendment protections SFPD officers are required uphold.
For advocates in San Francisco, who have spent decades working with the police department to hammer out a progressive and constitutionally sound framework for investigations conducted by SFPD officers, well before the police department began sending officers to the JTTF in 2002, the white paper provides confirmation of what many either knew or suspected: that law enforcement officials in San Francisco were saying one thing in public and another behind closed doors.
“The white paper shows that both the SFPD and the FBI have been misleading the community, civil rights organizations and elected officials on this issue from day one,” Javeria Jamil, a staff attorney at Asian Americans Advancing Justice, told The Intercept. “It confirms that SFPD was not following local law and policy when participating in the JTTF, despite their assertions to the contrary.”
Jeffrey Wang, a civil rights attorney at the San Francisco office of the Council on American-Islamic Relations, said the paper “calls into question both the SFPD and the FBI’s credibility” and, in particular, indicates that Bennett’s letter to the mayor misrepresented facts that his own office was aware of. “They were painting this wonderful picture, everything is all good, however, this white paper comes out and here the FBI directly acknowledges significant conflicts between FBI rules and policies, about how these problems have been recurring, and also about how compliance is almost impossible.”
The inescapable conclusion, Wang added, is that “the SFPD and the FBI were untruthful about what was happening with the JTTF in San Francisco for several years.”
Responding to questions from The Intercept by email, Prentice Danner, of the media office for the FBI’s San Francisco division, wrote that “the white paper was written by counsel for the San Francisco FBI and provided to the Chief of the San Francisco Police Department in December 2016,” and added that FBI “firmly disputes any claim” that the document contradicted Bennett’s letter to the mayor. “The white paper was legal analysis provide [sic] by FBI counsel to the SFPD Chief of police and in no way contradicts the contents of the letter written by SAC Bennett to Mayor Breed.”
The SFPD wrote in an emailed statement that it “stands by” publicly available compliance reports indicating that of the nearly 120 investigative activities task force officers took part in as part of the JTTF from 2014 through 2016, none met the standard set by local guidelines that would require written approval from department leadership. The department, which added that it was not aware of any instances of SFPD officers violating local law or policy while assigned to the JTTF, said it first learned of the white paper in July 2017, contradicting the FBI’s statement that it first gave department leadership the document the previous year.
“This paper outlines current legal and policy issues for points of discussion, including potential solutions and actions,” David Stevenson, the SFPD’s Director of Strategic Communications, said of the 2016 document.
The mayor’s office did not provide a comment by publication.
The clash over the SFPD’s work with the FBI is part of a broader pattern of self-described sanctuary cities pulling back on collaborations between police departments and federal law enforcement amid concerns that local officers will be roped into the Trump administration’s efforts to depopulate the nation of undocumented immigrants.
But the issues raised by the white paper also precede the current president, reflecting the FBI’s post-9/11 transformation into a secretive domestic intelligence agency and the challenges that creates for municipal police departments eager to cooperate with the feds but less capable of shielding themselves from local accountability by invoking “national security” claims. That tension is compounded by San Francisco’s reputation as both a proudly progressive city, and a place where Arab, Middle Eastern, Muslim, and South Asian communities have at times found themselves at the center of damaging and unconstitutional law enforcement investigations.
“The community here in the Bay Area and specifically in San Francisco worked really hard for almost two decades to ensure that local police follow stronger local laws and policies when engaging with the FBI and not weaker federal standards,” Javeria, the attorney at Asian Americans Advancing Justice, said. “For us, it’s important that this information is brought to light and the SFPD publicly engage with the information in the white paper before engaging in any policy changes on this issue.”
What the FBI Is Really Doing
The SFPD chose to pull its officers from the San Francisco JTTF in February 2017, shortly after Donald Trump’s inauguration. There were rumors in the months that followed that the department might rejoin the task force, and the union representing San Francisco police officers ran a series of radio ads in 2018 complaining about the decision. Mostly though, the issue appeared dormant.
It wasn’t until October 2018 that advocates learned of a white paper related to the JTTF. It was referenced in documents that had come in through a public records request. The advocates requested the white paper through the SFPD, and in March of this year filed a complaint with San Francisco’s Sunshine Ordinance Task Force to compel its release. The SFPD resisted, informing the coalition seeking the document that it was doing so at the federal government’s request.
Bennett devoted a full section of his January letter to the mayor on the importance of “community engagement,” writing that confronting violence “can only be successful when law enforcement works in close collaboration with the communities and the citizens they serve,” and adding that “it is essential the FBI maintains a robust relationship with our local partners, both inside and outside of law enforcement, based on a common and accurate understanding of what we do and how we do it.” At an October 3 hearing regarding the SFPD’s departure from the JTTF, San Francisco supervisor Gordon Mar noted that he had both heard about the white paper and, in keeping with bureau’s professed commitment to transparency, filed a letter formally requesting the document ahead of the discussion.
The FBI provided the document an hour after the hearing was over. The U.S. attorney’s office sent a copy to the advocates minutes later.
Advocates immediately noticed that the white paper stated that SFPD officers assigned to the JTTF “are primarily assigned guardian leads (Type 1&2 assessments) in and around the City of San Francisco,” and that “FBI SF JTTF Guardian leads usually involve on some level the exercise of First Amendment activities.”
An assessment is like an investigation, in that it can involve interviews, surveillance, and the procurement of all sorts of personal records and information. The critical difference is that unlike a traditional investigation, an FBI assessment does not require reasonable suspicion, already a low evidentiary hurdle. FBI agents don’t even need to suspect that a crime has happened, is happening, or might happen. A San Francisco police officer can’t do that. Police officers in San Francisco are expected to perform investigations, and those investigations are expected to involve a reasonable suspicion of criminal activity. In cases where an officer’s investigation might involve examining activities protected under the First Amendment, local law and policy requires that the operation receive written approval by senior officers and that a paper trail is created that can be assessed in annual, publicly available compliance reports.
Unlike a traditional investigation, an FBI assessment does not require reasonable suspicion, already a low evidentiary hurdle.
One of the reasons assessments matter is because of their tendency to impinge upon activity protected under the First Amendment, said Vasudha Talla, a senior staff attorney at the ACLU of Northern California. “The FBI will say that their guidelines prohibit them from focusing solely on individuals’ exercise of First Amendment activity,” Talla explained. “But what we have seen from other documents and reporting is that the FBI, in looking at and investigating and conducting assessments of certain communities — Muslim communities, Middle Eastern communities, south Asian communities, and other communities such as Black Lives Matter activists and border activists and Standing Rock activists — often do focus on First Amendment activities, and that is incredibly troubling.”
“The white paper really reveals the disconnect between what the FBI is saying around First Amendment activity investigation and what it is actually doing,” she added.
According to the most recent publicly available compliance reports, SFPD task force officers took part in 119 activities with the JTTF from 2014 through 2016. During that period SFPD officers never requested written authorization that would greenlight law enforcement activities involving free speech-related activities. “The FBI understands the restrictions placed on members of the SFPD and they have been cooperative in efforts to ensure the officers assigned to the JTTF adhere to SFPD policy,” the reports routinely said. The compliance reports indicated that there were never any violations of the city’s ordinance, and that task force officers were rarely, if ever, assigned to full investigations, which require reasonable suspicion and reflect the kind of investigative activity that San Francisco law and policy actually permits.
In other words, according to the paperwork, SFPD task force officers were engaged in a healthy amount of work for the JTTF over multiple years, but that work never touched on activity that might be protected under the First Amendment, nor did it involve full investigations based on reasonable suspicion, but it was all still somehow in line with San Francisco law and policy.
Advocates had already raised concerns about this improbable scenario before they saw the white paper, in part because investigative activity involving the inherently political and religious issue of suspected terrorism almost always involves brushing up against some sort of activity potentially protected under the First Amendment. Those concerns are now heightened, given that the white paper itself noted that assessments “usually involve on some level the exercise of first amendment activities” and that was what task force officers were “primarily assigned” to do.
John Crew, a retired ACLU attorney who continues acts as a consultant for civil rights organizations in San Francisco, told The Intercept that he “strongly” suspects that “the vast majority if not all” of the 119 activities SFPD task force officers participated in “were in violation of San Francisco law and policy.”
Crew was part of the original committee of civil rights advocates that crafted San Francisco’s policy on SFPD investigations involving political activity in the early 1990s. He has been working on the issue ever since. In 2012, after it was learned that the SFPD and the FBI had for four years been secretly operating a revised agreement that circumvented the local rules, San Francisco’s board of supervisors voted unanimously to pass the Safe San Francisco Civil Rights Ordinance. Under the law, the SFPD would provide annual public reports to the San Francisco Police Commission, the department’s oversight body, summarizing the activities of local officers working on federal task forces and reporting problems complying with local law. “Everything that happened after that was based on this claim that turned out to be a fiction,” Crew said, and he believes the white paper proves it.
“The FBI never took this seriously because they never thought any of this would become public,” Crew said. Though the document is undated, Crew had correctly speculated that it was likely authored in either December 2016 or January 2017. The language, he said, was consistent with arguments a senior San Francisco FBI official made in a meeting the pair had weeks before Trump’s inauguration.
With San Francisco police officers on the JTTF primarily assigned to assessments, the FBI’s white paper acknowledged the existence of multiple problems in its collaborations with the police department, including the fact that requirements set forth in the FBI’s investigative rulebook “MAY be in conflict” with the city guidelines that SFPD officers must follow.
The paper went on to detail how measures intended to promote transparency were untenable for the FBI, and that this was the result local law and policy. SFPD officers are required “to make certain disclosures of their FBI investigative activities,” the white paper said, referring to task force officers’ accountability to local command structure. The FBI, however, prohibits the sharing of classified information. Local cops were thus in a bind, the document noted: failing to abide by local law and policy could result in discipline or dismissal, while compliance with those very same rules could open officers up “to possible criminal exposure for disseminating/disclosing FBI documents to include classified documents.”
“The problems presented by these issues have recurred every year since 2013,” the white paper said, referring to the first full year that San Francisco’s civil rights ordinance was in effect, and they were “driven predominantly” by the existence of annual city compliance reports. “The SFPD Chief of Police can not comply with this ordinance unless the FBI approves and provides the Chief with authorized language/information.”
The FBI could provide the SFPD task force officers with sanitized information, the document noted, but then the bureau would be at risk of inspiring similar acts of transparency nationwide. “This production of sanitized information due to problems specific to the SF JTTF would set a precedent which may lead to similar ACLU requests to other JTTFs.”
“The FBI is concerned about setting a precedent that the ACLU and our partners in communities across the country can use to ask for further transparency,” Talla, the ACLU attorney in San Francisco, said. “The FBI really doesn’t want to set a precedent in having to be transparent anywhere, to any local body.”
As Bennett noted in his letter to Mayor Breed earlier this year, the FBI has more than 100 JTTFs operating across the country, and frequently recruits the “most accomplished and professional officers” from local police departments. Whether those officers’ time and skills are being used in a manner that is both productive and in line with the vision of law enforcement held by the community they are sworn to serve and protect would presumably be of the utmost importance to their chiefs and city leaders.
The FBI’s post-9/11 abandonment of core investigative principles such as reasonable suspicion in favor of creating new categories of investigative activities, like assessments, was “both unnecessary and likely to result in the abuses we’ve seen,” said Michael German, a former FBI special agent, now a fellow at the Brennan Center for Justice.
German, author of “Disrupt, Discredit, and Divide: How the New FBI Damages Democracy,” which traces the FBI’s post-9/11 evolution, has followed the fight over the JTTF in San Francisco closely. He testified at the hearing last month, telling supervisor Mar that it would be “extremely difficult” for SFPD officers to “meaningfully comply” with local rules on sensitive investigations should the department chose to rejoin the JTTF. The purpose of the hearing was to discuss the publication of a report by a civil grand jury, which had decided somewhat mysteriously to examine the issue of the SFPD’s split from the FBI as a problem that needed to be solved two years after the fact. German met with the jurors and disagreed with several of the conclusions they came to in the report that was ultimately produced.
The white paper was interesting not just for the solutions it recommended, German explained, but also for those it did not. The FBI did not, for example, suggest that it could appeal to the attorney general to restore pre-9/11 investigative standards.
If the FBI is so intent in having SFPD officers on the JTTF, then it should only assign them to full investigations, German said — a prospect that German himself did not endorse. There would still be a problem of officers having access to FBI databases full of information gained through dubious, reasonable suspicion-free assessments, he explained, but at least the SFPD could be sure that its personnel weren’t in a state of constant, potential legal jeopardy. “Of course, the FBI doesn’t want that because they want the agents working the full investigations,” German said. FBI agents have a deeper understanding of FBI rules, he explained, and if they mess up, the bureau can fire them. The same might not be true of a police officer on a JTTF. But it’s also “a matter of prestige,” German explained. “Telling the agents you have to work this nonsense, low-level, garbage leads rather than legitimate investigations would cause quite a controversy within the FBI.”
Two years after the SFPD left the JTTF, the Portland Police Department did the same. The unifying theme running through both cases, German argued, was not that the police departments chose not to participate in the JTTFs — most police departments do not — but that their noncompliance involved calling FBI policy into question. “The FBI doesn’t want to change its policy,” he said. “It wants to change state and local policies to comply with what the FBI wants to accomplish regardless of whether that serves the communities.”
For Crew, the veteran San Francisco civil rights attorney, the disclosure of the white paper offered a sense of relief, a feeling that the “FBI could no longer pretend or claim credibility on these issues.” If the FBI wants to have a public debate about its work with the SFPD, that’s fine, Crew said. The problem, he explained, is that ever since San Francisco passed its ordinance requiring local cops to follow local laws, which according to the white paper marked the beginning of the recurring “problems,” the FBI has been absent from those conversations.
“We’ve been chasing ghosts,” he said.
With the paper’s release, Crew believes that lawmakers and the people of San Francisco are now armed with an important truth: that the FBI spent the last several years hiding behind vague claims of classified secrets and national security to avoid an important public debate about its impact on the city’s hard-won civil rights protections.
“The release of that white paper ends that possibility in San Francisco,” he said. “And it ought to, frankly, end that possibility everywhere. Everybody should understand how local police resources are being used by the FBI, and it ought to be a local choice.”
Update: November 3, 2019
Following publication, the FBI’s San Francisco division informed The Intercept that its original statement contained an inaccuracy. While the white paper was authored in December 2016, it was not provided to San Francisco’s chief of police until July 2017. The FBI’s original statement to The Intercept had said that the white paper was both authored and shared with the police department in December 2016.