March 30, 2005
JTTF Questions Just Get Curiouser And Curiouser
Police Bureau Memo Prompts Need For Even More Answers
Having spent some time now with the Portland Police Bureau memo to Mayor Potter regarding the Joint Terrorism Task Force, we're prepared to offer up our latest round of questions regarding how the Task Force functions, and the role played by local officers.
There's a section headed "Operational Accountability" contained on pages three and four of the memo. It's relevant not only because it directly addresses security clearances and oversight but because it appears to open up yet another set of issues that likely need to be addressed. We present that entire section in full.
The subject of security clearances should be addressed. A secret clearance allows the holder to be privy to classified informationand a top-secret clearance allows the holder to be briefed on source information or the origin of the information discussed. Irrespecitve of whether a person has a top secret or secret clearance, handling and sharing of information is governed by the need to know. A secret clearance provides more than enough information for PPB and city leadership to determine compliance with state law by members of PPB. Currently, the 2-PPB officers assigned to the JTTF have top secret security clearances. The CIU Lieutenant has a secret clearance. The Assistant Chief of Investigations and the Chief of Police each have secret clearances as well. The FBI had granted Mayor Katz secret clearance and Mayor Potter has been provided with an application for the same level of clearance.
Current Portland Police Bureau officers assigned to the JTTF report to FBI supervisors who provide them with case assignments and investigative follow-up. Daily, these investigators have contact with the Lieutenant of the Portland Police Bureau's Criminal Intelligence Unit (PPB-CIU) and provide a briefing on current investigations. On all newly assigned cases, the JTTF officer is required to articulate a clearly defined criminal predicate for conducting the investigation. These officers and the CIU Lieutenant meet on a frequent basis with the Assistant Chief of Investigations to provide case briefings and verify compliance with state and federal law (ORS 181.010, 181.575, 28CFR(23)). The Assistant Chief meets with the Chief of Police frequently to keep the Chief updated as to the activities of the JTTF as well as compliance with state law. This team meets with the Chief of Police periodicially to brief him as a group on the JTTF cases as well as to ensure accountability. The FBI supervisors and the CIU Lieutenant meet frequently to discuss operational issues and accountability. In addition, the Chief of Police and the Assistant Chief of Investigations meet regularly and have frequent contact with the FBI SAC and FBI supervisors to discuss investigative and operational issues as well as ensuring accountability.
We've emphasized a small portion of the above because it's the area upon which we wish to focus for the purposes of this item. It raises some additional questions about what JTTF-assigned officers may or may not know, and may or may not be able to determine.
According to the above, the JTTF-assigned officers are provided with their "case assignments and investigative follow-up" by their supervisors from the FBI, and are "required to articulate a clearly defined criminal predicate for conducting the investigation" to the Lieutenant from the Criminal Intelligence Unit of the Portland Police Bureau.
At issue here is nature of the "case assignments and investigative follow-up" -- by which we mean this question: At the point at which our JTTF-assigned officers are given their assignments or investigative follow-up, has the determination of targets already been made by the FBI?
That's an important question because so much of the current concerns over ensuring compliance with ORS 181.575 and ORS 181.850 (the latter of which, you might note, is entirely absent in the above quoted section of the memo) have to do with why a target is a target. Under state law, someone cannot become a target of investigation solely because of their religious or political affiliations, or solely because their only crime is violation of Federal immigration law.
What we're getting at is this: If what our JTTF-assigned officers are given (to over-simplify it) is a target and instructions to investigate them, the officers would have no way to know for certain whether or not the initial spark for the investigation was the target's religious or political affiliations or violation of immigration laws.
Just to be clear, we understand that if this is the case, it would not technically be a violation of those Oregon statutes because the initial designation of the target would have been made by Federal agents, and not by the local officers. But it would still raise the troubling prospect of an end-run around state law, by letting the Feds (who aren't bound by state law) pick the target and then simply handing off the investigation to a local officer.
There's an implication in the above quoted section of the memo that our officers might not ever be involved in the initial stage of designating a target for investigation. By the time a case is assigned to a local officer, Federal agents may already have taken an initial instance of a religious/political affiliation or violation of immigration law, and used it to dig up information of a possibly more implicating nature -- and that possibly more implicating information might be the only thing passed along to local officers.
At which point, the JTTF-assigned officers could in all good faith report to their CIU Lieutenant that there was a "clearly defined criminal predicate" for conducting the investigation, because those officers never would have been told of the initial non-criminal information which actually prompted the target selection.
Which would inherently mean those local officers could truthfully report to their superiors in the Portland Police Bureau that they have not done anything to violate Oregon law. But, if true, it would also appear to mean that our local officers would be involved in investigations that nonetheless began, unbeknownst to them, with nothing more than a legitimate affiliation or a simple violation immigration law.
Again, that would take those local officers off the hook as far as questions of compliance with Oregon law. If they were not present for or involved in an initial use of a religious/political affiliation or a violation of immigration law as a pretext to investigate someone, then those local officers did not violate ORS 181.575 or ORS 181.850.
It would also mean no consequences whatsoever for the Federal partners in the JTTF, who are not bound by the provisions of ORS 181.575 or ORS 181.850 at all.
All of which would constitute something of a rather bloody mess in terms of oversight, because it would put the critical determinations of identifying targets entirely in the hands of the Federal authorities.
It wouldn't, however, negate all of the concerns about oversight. In addition to the basic questions we re-posed earlier, we now need to know at what point in the JTTF chain of command the determination of targets is made.
If that determination is always made by Federal agents, there may very well never even be the opportunity for local officers to violate ORS 181.575 and ORS 181.850. If the determination sometimes is made by the local officers, then the original questions of how best to ensure compliance with state law remain.