In its cooperation with the FBI's Joint Terrorism Task Force (JTTF), the SFPD has potentially been misleading the public for years about its own violations of local law with regard to the investigation of "First Amendment activities," including those relating to religion and political affiliation.
The revelation comes via a white paper written by the FBI and sent to the SFPD in late 2016 and obtained by The Intercept, which sought to help sort out the conflicts SFPD officers were finding between following department procedure and complying with federal law in aiding in FBI investigations. As part of their work with the JTTF, officers were at times exposed to classified information that they were not permitted to share with anyone, including their supervisors. And as the white paper discusses, in obeying federal law in these cases, SFPD officers were disobeying their own department regulations about reporting their work to supervisors.
Some of this work, as the paper discusses, violates city law — in particular a 2012 ordinance that restricts SFPD officers from cooperating in federal investigations that infringe on basic civil liberties. And information in the white paper, which was apparently written by legal counsel on behalf of the San Francisco FBI office, suggests that the SFPD has potentially been violating that 2012 ordinance repeatedly in the years since. "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 white paper states.
Mission Local appears to have also been chasing down this white paper, which the Asian Law Caucus, the Council on Islamic-American Relations of California, and PolicyLink jointly sued the SFPD over in June, seeking to get it released. As they report, all three groups as well as the ACLU have been concerned that the SFPD has been misleading the public about potential violations of local law with regard to its cooperation with the JTTF. Not only are there implications for immigrants — getting flagged in a federal database via the FBI, for any reason, can lead to ICE finding new undocumented individuals to target — but there are implications for activists, Muslims, and people of color as well.
Retired ACLU attorney John Crew tells Mission Local, after reviewing the white paper, "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."
An SFPD spokesperson, David Stevenson, tells The Intercept that the department only learned of the white paper in July 2017, despite the feds saying they sent it in December 2016. And in an emailed statement, Stevenson said that the department "stands by” its compliance reports that stated that none of the almost 120 investigative activities that SFPD officers took part in as part of the JTTF between 2014 through 2016 would have required written approval from department leadership. Under the 2012 law, any investigative work that touched on "First Amendment activities" would have required such approval, and the FBI white paper admits that most of the assignments SFPD officers received from the JTTF "involve on some level the exercise of First Amendment activities."
The SFPD's relationship with the FBI goes back many, many years. The FBI's Cointelpro (a portmanteau of COunter INTELligence PROgram) notoriously hounded members of the anti-war movement, the Black Panther Party, the Nation of Islam, and did so with the help of local law enforcement, including the SFPD. Controversy over decades of civil rights violations by the FBI — including an uptick in the profiling and investigating of Muslims following the September 11, 2001 attacks — led civil rights advocates to call for the 2012 local ordinance, which was passed unanimously by the SF Board of Supervisors. It would be another five years before San Francisco would officially pull out of its deal with the JTTF, following the public outcry over President Trump's travel ban.
"We want all persons to feel comfortable in contacting SFPD... to report crimes and emergencies without concern as to their immigrations status,” SFPD spokesman Michael Andraychak said at the time. "The city has a history and tradition of demonstrations and other First Amendment activity, and the SFPD works with the community to help facilitate First Amendment activity."
The revelation of the white paper further undercuts the feds' ongoing efforts to re-establish the cooperative relationship with the SFPD.
As The Intercept writes:
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.
In a letter to Mayor London Breed in January 2019, Special Agent in Charge of the San Francisco Division of the FBI John F. Bennett sought to rekindle the feds' relationship with the FBI, citing "1,000 allegations per year of domestic terror." And Bennett said that "SFPD officers assigned to the JTTF were expected to abide by their department’s General Orders while serving on the JTTF, and they did." But that now appears not to be the case.
"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," says Jeffrey Wang, an attorney with the Council on American-Islamic Relations, speaking to The Intercept.
It would be up to the Police Commission to re-up with the feds, renewing a ten-year agreement on JTTF cooperation that expired in February 2017. But now opponents of the deal have a smoking gun, as it were, to keep that from happening.