October 29, 2003

(Updated) City Council Unanimously Renews Terrorism Task Force, Protests USA PATRIOT Act

Note: This post has been updated. Any and all updates appear at the end of the original post.

Discussion of the sometimes conflicting demands of law enforcement, civil liberties, and civilian oversight dominated City Council chambers this afternoon, as the Council took up the related issues of Portland's participation in the Joint Terrorism Task Force, and the debate over provisions of the USA PATRIOT Act.

Re-approval of a so-called "memorandum of understanding" which authorizes the inclusion of members of the Portland Police Bureau on the Task Force was never really in question. But this year's session was markedly different than last year's.

For one thing, the peanut gallery was essentially empty, devoid of the overflow crowd which attended the JTTF renewal hearing last year, the heckling of some of whom had prompted Mayor Katz at one point to threaten to clear the chambers altogether.

"Depending on how one looks at it, the Joint Terrorism Task Force is very effective," said one of the final people to testify on the renewal, "One year ago, this room was overflowing with people. Today it's half-full." At the very least, it's likely safe to say that this afternoon's hearing was not as overwhelmingly-attended by JTTF critics precisely because the renewal was a foregone conclusion.

But this year's renewal hearing was different in one other respect. It's an important one, and it's the one element of the renewal hearing on which I'm going to focus here. The issue of proper public, civilian oversight of the local JTTF was at the forefront of most testimony (which included representatives from the ACLU of Oregon, the Japanese American Citizens League, League of Women Voters, Peace and Justice Works, and other political and religious organizations), and was latched onto by members of the City Council itself.

Within this area, it came as something of a surprise to seemingly everyone present -- including members of the City Council -- that former Police Chief Mark Kroeker was once offered the opportunity to apply for the security clearance required to have access to the day-to-day activities of the JTTF -- and he declined the offer. By contrast, it was also learned today, that same offer has been extended to Chief Derrick Foxworth (and an assistant chief) and to Mayor Katz as well (although in her capacity not as Mayor, but police commissioner). And unlike Mark Kroeker, they are indeed pursuing such clearance.

Critics of the JTTF did however press for further civilian oversight, mainly calling for either the City Attorney or the City Auditor (or both) be granted the authority to review JTTF files to help ensure that the officers of the Portland Police Bureau assigned to the Task Force are not engaging in any activity that violates Oregon law. In essence, the argument is that oversight by the Police Chief and the Mayor (as police commissioner) arguably might not be "civilian" enough.

At one point, Katz asked Robert J. Jordan, Special Agent in Charge for the FBI in Oregon, if someone such as the City Attorney could apply for the necessary security clearance. "I'm not able to make that offer," Jordan replied, explaining that such clearance was offered only to those considered to be a "recognized law enforcement officer" -- in other words (for oversight purposes) a police chief or police commissioner.

Somewhat on the other side, Mayor Katz did move to reassure those present, including members of the City Council, that to her mind she has never been kept in the dark on pressing matters before the JTTF with which its Portland Police Bureau members were involved.

This, of course, misses the point. Proper access and authority to oversee the activities of our own local police officers cannot simply be left to the good graces of the FBI or the Department of Justice. Nor can it simply be left to behind-closed-doors oversight by Congressional committee. These are our police officers, here in our city, our neighborhoods. Authority to oversee their activities as they relate to the JTTF must itself be local. And because the graces of those in higher authority can change, that authority must be enshrined into actual processes and structures.

Not surprisingly, Commissioner Sten had much to say in the issue of such proper civilian oversight. It's the almost-routine concern he raises in discussions of Portland's participation in the Task Force. "I'm convinced we're better off cooperating," said Sten. "But I'm concerned about the inability for community oversight." Underscoring the reasonableness of basic oversight authority, Sten added, "There is a middle ground between no oversight, and putting everything on the Internet."

Fortunately, this year Commissioner Sten had at least one vocal ally on the City Council: Commissioner Randy Leonard, who at one point simply asked, "Would it be inappropriate to have approval [of Portland's participation in the JTTF] contingent upon Mayoral oversight?"

In some sense, Commissioners Sten and Leonard tag-teamed this issue. In response to the FBI arguing that oversight by Senate committee counts as civilian oversight, Commissioner Leonard countered that some oversight at the local level was appropriate as well. Commissioner Sten added that it is his belief that there has been a "pattern of holding things back" on the Federal level, and therefore local oversight is necessary as well.

In the end, of course, the City Council unanimously passed the ordinance approving the memorandum of understanding which authorizes Portland's participation in the JTTF. But everyone seemed inclined, although to different degrees and in different ways, toward some kind of oversight.

"There needs to be oversight," said Commissioner Jim Francesconi before casting his vote. "I'm comforted that this issue of civilian oversight will be worked out," said Commissioner Leonard before casting his. Referencing a possible timeframe mentioned earlier in the context of Chief Foxworth and Mayor Katz applying for security clearance, he added, "Trust, but verify. We'll be back in three months."

"There's always a balancing act," said Commissioner Dan Saltzman. However, he added that he doesn't think Portland's participation in the JTTF needs to be contingent upon civilian oversight.

Commissioner Sten, as usual in these renewal hearings, seemed to have the most to say when casting his vote, reiterating that it "continues to be a difficult issue." Reminding those present that "both the FBI and our Police Bureau have a long history of abusing surveillance," Sten insisted that there is a crystal clear line which must prevent law enforcement agencies from surveilling people for their beliefs, race, or affiliations. Defending his conflicted approval, however, Sten argued that "the chance of abuse is somewhat smaller with the [local] police in the room than out of the room." But, of course, he continued his press for oversight.

"The flaw in the Federal goverment's strategy right now is the notion that we'll all be safer if we don't have these approaches. [But in fact] we'll be safer ... with checks and balances."

And rounding out the call for at least some form of oversight, Mayor Katz wished "that our city would be cleared, and we will push [for it]."

Which brings us to the other matter before the City Council this afternoon, the one closer to my heart, since (warning: standard disclaimer approaching) until the middle of this year, I was involved in the campaign to try to bring it before the Council for consideration.

Last week, as part of a growing nationwide movement, the 200th American community passed a resolution in protest of provisions in the USA PATRIOT Act which violate Constitutional guarantees of individual liberty. The movement for such a resolution in Portland began a year ago, when merely a dozen or so communities had taken such stands.

Hopefully, I'll be forgiven if I say that it was hard today to not hear "better late than never" resounding in the back of my mind. After all, none of the concerns raised today were new. All of the arguments were being made this time last year. Portland lost out on the chance to be a leader in the national municipal movement against the USA PATRIOT Act. But at least when it showed up the the party, it did so resoundingly.

What we did learn today was just what prompted Commissioner Dan Saltzman to be the one to step up and place a resolution before City Council. As it turns out, it appears to have been the passage this year of Senate Joint Memorial 7 by the Oregon Senate. An attempt to make Oregon the fourth state to pass a resolution in protest of the USA PATRIOT Act, SJM 7 failed to pass the Oregon House. But what was important about the Senate's action -- and what seems to have prompted Saltzman to take up the call -- was that Senators on both sides of the political spectrum identified themselves as sponsors of the measure and indeed voted for it.

Considering himself to be "an average person who has become increasingly aware," Saltzman introduced his resolution, explaining tha it is not a blanket condemnation of the Act, but instead a call on Congress to fix the clear problems with the Act. Indeed, the resolution urges Congress to support efforts currently underway to do just that, and resist any attempts at expanding the Act, given that the government hasn't provided adequate information or oversight of the original Act's usage as it stands.

Commissioner Saltzman also went out of his way to explain that nothing in the resolution ran counter to the just-expressed support of the Council for participation in the JTTF. This may or may not have been a reference to language in the original drafts of this resolutition which specifically prohibited local law enforcement from engaging in certain types of activities.

"Some may say this is not the city's business," Saltzman said, taking on one of the often-mentioned criticisms of such resolutions (and an argument made, for example, by Commissioner Francesconi against the antiwar resolution). "This is the right time to be discussing this, and the USA PATRIOT Act is very much in play right now."

Representatives of the ACLU of Oregon, Portland Bill of Rights Defense Committee, Japanese American Citizens League, AFL-CIO, American Immigration Lawyers Association, and other organizations testified in support of the resolution. No one testified against it, unless you count the one supporter who nonetheless lamented that the langugage did not specifically prohibit local law enforcement from certain types of activities.

Heading into today, I admit that I did not have a complete read on how the vote would go down. Certainly it was clear that Commissioner Saltzman, being the sponsor, would support it, as it was clear that Commissioner Sten would as well, since he was the earliest to express a definite interest when the resolution was first being shopped around to members of City Council last year. And, although I have no real contacts in the Mayor's office, her vote was never really in doubt as far as I'm concerned.

The mysteries going into today were, for me, Commissioners Francesconi and Leonard. While the two issues are not parallel or reflective of each other, I admit (as would, I think, others), that part of this mystery was the result of their votes on the antiwar resolution -- Francesconi because he didn't believe it was the city's business, and Leonard for reasons I criticized a long time ago now on this site.

Earlier this afternoon, in Council Chambers, I was told that everyone had said they were going to support the resolution. So, at that point, what remained was to see just what Francesconi and Leonard had to say about the issues involved. They were, of course, the first to cast their votes.

"It's important the government be able to fight terror," said Commissioner Francesconi. "[But] in my mind, the PATRIOT Act does violate the First Amendment." He also said it was "clearly a local interest, clearly a local issue." Saying that the Act "goes too far," Francesconi indeed voted in favor of the resolution.

Commissioner Leonard explained that in the aftermath of the attacks of September 11, 2001, people believed it to be "appropriate to give the benefit of the doubt the the administration" that they would know how best to respond to what had happened. "At this point," Leonard continued, "there are a lot of Americans concerned about the basis of those acts." And he considered himself to be among them. "Fool me once, shame on you," Leonard said. "Fool me twice, shame on me."

What's most remarkable about this to me is that Commissioner Leonard appears to be doing something of a "mea cupla" at least as it concerns the atmosphere in the nation which led to his rationale for opposing the antiwar resolution. While this does not necessarily mean that he believes his vote to have been wrong, but it seems (or at least it does to me), that he's come out of the haze of automatic unity that grew out of September 11 and has a better appreciation for criticism of relevant administration policies. Admitting his misgivings not just about the PATRIOT Act and the "war on terror" but on the Bush administration's "ability to lead the country with confidence," Leonard expressed a kind of exasperation with lockstep, uncriticial patriotism, saying that it had "reached a point of being disgusting to me." Commissioner Leonard, indeed, voted in favor of the resolution.

Commissioner Saltzman, of course, it should go without saying, voted in favor of the resolution which he sponsored.

Thanking the Portland Bill of Rights Defense Committee for "keeping the pressure on," Commissioner Sten said he was "very pleased this is before us."

"It's not just a matter of fixing the flaws in this PATRIOT Act," Sten said. Criticizing the way in which the Bush administration cynically capitalized on a nations' fears, he added, "Much of this agenda was there before September 11."

Once again thanking the PDX BoRDC, Sten added, "You've been relentless and appropriately so." Commissioner Sten, as expected from the very beginning one year ago, voted in favor of the resolution.

Mayor Katz, as it turns out, and as she explained to those present, is who suggested to Commissioner Saltzman that the resolution regarding the USA PATRIOT Act be taken up on the same day as the renewal of Portland's participation in the Joint Terrorism Task Force.

Why? Because it both affirms "that the fight against terrorism requires city, county, state and federal law enforcement agencies to cooperate in efforts to investigate, prosecute, and prevent acts of terrorism," and also "that the fight against terrorism must not be waged at the expense of the essential rights and liberties of the residents of this state, as contained in the United States Constitution and Bill of Rights and the Constitution of the State of Oregon." Mayor Katz, as predicted, voted in favor of the resolution.

And so ended three and a half hours of discussion regarding law enforcement, civil liberties, and proper civilian oversight of police powers.

On one issue -- the Joint Terrorism Task Force -- local activists might not have gotten what they wanted (although some want the JTTF to be disbanded altogether, which is simply not likely to happen). But what they did get was a clear move on the part of the City Council -- one would think Commissioner Sten might be thinking, "At long last!" -- towards pushing for real civilian oversight of the activities of members of the Portland Police Bureau within the Task Force. Clearly, the opening is there now. And at least one prominent local proponent of police accountability was vigrously nodding his head during the repeated calls for oversight coming from members of the City Council itself. An opportunity presented itself today, and continued pressure might just make something of it.

On the other issue -- opposition to the USA PATRIOT Act -- local activists might not have gotten everything they wanted here either. And certainly we're coming late to the game. While it would have been heartening to see Portland lead in this movement, what's most important at this stage is that the city has officially lent its voice to the growing opposition. Also important is the demonstration that people can, in fact, become educated on the issues involved. Members of the City Council had clearly listened, and clearly done their research. This time last year, I'm fairly certain none of them truly knew what was involved when it came to the USA PATRIOT Act.

It may have taken a year, but today's vote shows that people can see the dangers when presented with the facts. Patience and perseverance have fed a nationwide movement to defend Constitutional liberty, and they led today to Portland joining the fray.

On a personal level, would I have liked to see some things happen differently?

Sure, it would have been nice if participation in the JTTF had immediately been made contingent upon local civilian oversight. But that's unrealistic. And the truth is, the quality and level of the concerns expessed regarding lack of such oversight pushed the debate over the JTTF into regions it's never quite managed to reach before.

In other words, progress was made today.

Sure, it would have been nice to see a resolution against the USA PATRIOT Act that explicitly reiterated that members of the Portland Police Bureau were not to engage in suspect activities such as spying on people because of their religious or political affiliations -- especially since it would merely have been a reiteration of current law, and therefore would have done no harm by its inclusion. But politics is politics, and ultimately what counts most is the addition of another voice to the chorus of dissent, and the addition of further political support for those members of Congress daring at last to challenge the demands of John Ashcroft.

In other words, progress was made today.

As a friend of mine (who was also once involved with the Portland Bill of Rights Defnese Committee) said today: It felt nice to feel like we were living in Portland again.

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