March 29, 2005
New FBI Website On JTTF Fails To Answer Important Questions
May Also Contain An Outright Falsehood
There are three elements to the new section on the JTTF posted to the website of the Portland office of the FBI: A list of questions and answers, a link to the Leonard/Potter oversight resolution, and a copy of Robert Jordan's statement at last week's press conference.
According to the list of questions and answers, Task Force members are granted "top secret" clearances "so that they may work full-time at the FBI office and have full access to FBI resources" while superiors at a "parent agency" are granted "secret" clearances "so that they can communicate with their officer/agent about work matters."
In addition, one part of the document appears to tie into today's Oregonian op-ed piece by Jordan, in which we says that the City wants "unrestricted access to our computers and information systems". The document's discussion of the differences between the two levels of security clearance says this: "It allows individuals to access FBI space and databases without having to be escorted or constantly supervised."
To our knowledge, this is the first time this has ever been asserted, despite years of discussion -- and months of very intense discussion -- in Portland about JTTF oversight issues. Nonetheless, it's been raised now, and we'll see what follow-up or other information there is during tomorrow's hearing.
This page also presents a model of what sort of information is and is not available to officials with "secret" security clearance.
For instance, if there is a threat against a facility in a city, the chief would be briefed on the threat, any local suspects, the investigation and the level of credibility given the intelligence. However, he or she would not be briefed that the information came from "X" person in "Y" country through "Z" channels.
Which still doesn't address the fundamental question at hand: If "top secret" lets someone know how a person came to be the target of an investigation, how can those with "secret" clearance ensure that Portland officers are complying with Oregon law? What needs to be seen, if Jordan or other FBI officials testify tomorrow, is what kind of information is presented when the Chief (or the Mayor) is "briefed on ... the investigation". Does it, or does it not, include details which would make it clear whether or not the activities which led to someone being deemed the target of an investigation are in compliance with Oregon law?
Further, the document goes on to address the question of the supervision of Task Force members at various levels and from different agencies.
Externally, task force members also fall under their own agency’s supervisory system and regulations. There are a few, limited cases where federal law or regulations differ from Oregon law or regulations. If there is any possibility that a task force member’s work would not be acceptable to his or her parent agency, the parent agency’s policy takes preference. The task force agent will not participate in that particular case or activity.
This, of course, is the fundamental issue at hand. First, while the FBI characterized the differences between Federal law and Oregon law as "few" and "limited", those differences certainly are not unimportant. ORS 181.575 and ORS 181.850 may be only two provisions out of the entire set of Oregon Revised Statutes, but they contain some fairly serious prohibitions -- and ones which we know from Jordan himself that the FBI doesn't examine.
So while the FBI says that when it comes to Oregon law that "the parent agency’s policy takes preference" and that the local officers "will not participate in that particular case or activity", it remains unestablished by the FBI just how the officers themselves or their superiors can make the determination of a possible conflict with Oregon law if they don't know how a target was designated a target.
Of course, there's more. The document goes on to make an assertion that already has been directly contradicted during prior discussions over Portland's participation in the JTTF.
In addition, all JTTF matters are subject to oversight by various Congressional committees, including the House Judiciary Committee and the Senate Select Committee on Intelligence among others. Oregon Senator Ron Wyden sits on the Senate Select Committee on Intelligence.
Unfortunately, this appears to be rather untrue. While in 2002 then-Mayor Vera Katz asserted that she would have Wyden examine the records of the JTTF, the Portland Tribune reported that this, in fact, was impossible. So why the idea is being perpetuated on the local FBI website is something else that they perhaps will need to explain tomorrow evening.
And, the site makes this statement: "Finally, the federal court has ultimate oversight capabilities in its ability to monitor the course of an investigation and to launch its own investigation if it feels any federal law has been violated."
As already and repeatedly addressed, this is irrelevant to the issue at hand. As Jordan himself has confessed, the FBI does not review its investigations for compliance with Oregon law, so the above statement about Federal oversight of Federal law means absolutely nothing in terms of the oversight resolution being heard by City Council tomorrow.
One final note, on the statement Jordan made at last weeks press conference held to respond to the oversight resolution. We've commented on this before, but it can't be stressed enough.
You trust people or you don’t. I can assure you that the Portland Police men and women who work on our task forces are of the highest quality. They investigate some of the most critical issues we face, and they put their lives on the line daily to protect all of our citizens. They have my respect, and I would hope they have yours. They deserve it.
One of the things so many of us find so aggravating about the quality of the "debate" from the other side of this issue is that they have this apparently-uncontrollable obsession with trying to smear their opponents.
Parse what Jordan says and you understand what he's saying to people: If you insist upon ensuring that our laws are being complied with rather than simply assuming that they are, you somehow are disrespecting Portland Police Bureau personnel.
If we were to take Jordan's statement at face value, it would unravel the entire concept of the rule of law. The implication is that we shouldn't have any laws whatsoever regarding the conduct of law enforcement officers, but should simply trust them to always do the right and proper thing.
We're fairly certain that's not what Jordan wants to see, but it is the natural extension of the demogoguery that keeps falling from his lips.
You've heard us say it before: We are (or are meant to be) a nation and a City of laws, not of men. To demand the existence of processes to guarantee the rule of law makes not a single pejorative statement about the character of the people whose job is to serve and protect.
Comments (3)
The One True b!X on 29 Mar 2005
A quick comment about the notion of unrestricted access to computer and information system, something Jordan in his op-ed piece said was being requested, and a comment we described as misdirection.
We maintain that characterization, and this is why: Until the posting of these new pages on the JTTF site, we don't recall Jordan or anyone else arguing that this is what "top secret" clearance meant. Therefore -- even if it does turn out to be what "top secret" clearance means -- no City official has ever asked for unrestricted access to computers and information systems.
I can ask for a Tylenol, and if someone spiked it with cyanide but no one knew that, you can't claim I asked for cyanide.
doretta on 29 Mar 2005
That claim just doesn't make any sense. A "top secret" clearance can't possibly mean that you automatically get access to any document, computer system, etc. that you want access to without having to justify a need for that access, can it?
If that's what it means in the FBI then perhaps we should just dismantle the whole sloppy organization and start over with a more sensible structure.
I've always understood it to mean that IF you had a "need to know" some particular piece of information and that info was labelled "top secret" then you could get access to it if you had a "top secret" clearance and you couldn't if you didn't.
I'm sure the mayor and the city council would be happy to stipulate that they agree not to ask to see any secret information that has nothing to do with the activities of the Portland officers involved in the JTTF.
CW on 30 Mar 2005
Generally speaking, "Top Secret" clearance does not allow an individual access to information not related to their immediate duties -- hence the "need to know" condition. I'm assuming that the City Council resolution isn't concerned with SCI/SAP endorsments to their request for Top Secret clearance as that would add an extra wrinkle to the debate at hand. In either case, something that has escaped mention in most of the coverage of the debate is that even if the Mayor, Chief and City Attorney were allowed to apply for TS clearance, it is highly unlikely that they would pass/be allowed to pass the background checks, and that the process itself is likely to take anywhere from 6 mos. to a year to complete. Also worth consideration is the argument that, outside of a handful of Federal electeds in the House, Senate and Oval Office, politicians don't have access to Top Secret information as the systems for classification and compartmentalization of our nation's secrets was not designed to withstand abuses that politicians themselves may be prone to. A good example of which (albeit inexact) is the 1987 resignation of Sen. Patrick Leahy (someone whom I admire) from the Senate intelligence Committee after he revealed secret information to members of the press. That said, is improved oversight better for Portlanders? Absolutely. It just strikes me that there are still plently of unexplored aspects of the current City Council resolution that our elected leaders and local federal officials would be wise to examine before finalizing their positions on how to proceed/not proceed with Portland's involvement in the JTTF.