Portland and the Joint Terrorism Task Force

Chris Lowe

In the aftermath of the alleged Pioneer Courthouse Square bombing plot / FBI sting / FBI provocation exercise, depending on your view, Mayor Adams has set in motion a review of Portland's decision in 2005 to withdraw from participation in a federal Joint Terrorism Task Force. To facilitate public participation in that review, the mayor has set up a website linking to a number of documents. The mayor has also requested public comment by today, December 17, 2010, on a draft workplan (downloads a PDF) linked on the website.

Here is the comment I sent, in an e-mail to the mayor, the other city commissioners, and the city auditor, who has responsibility for aspects of civilian oversight of the Portland Police Bureau (PPB). The gist is that the draft workplan is inadequate in its definition of "key questions of inquiry," for addressing the concerns of critics of participation in the JTTF. The comment then lays out a number of such questions. At the end I have appended the draft Key Questions of Inquiry.

The comment

Dear Mayor Adams, Commissioners Fish, Fritz, Leonard and Saltzman, and Auditor Griffiin-Valade:

This is a response to Mayor Adams' call for public comments on a draft workplan about considering Portland's participation in Joint Terrorism Task Force(s).

In my view the draft workplan is woefully inadequate.

The most important element of the workplan is the "Key Questions of Inquiry." The draft "key questions" for the most part fail to address the concerns that critics of participation in JTTF(s) have raised, which the City Council in 2005 deemed to be sufficiently serious to lead to Portland withdrawing from participation in at least one JTTF. (It is my understanding that the Federal government seeks to set up JTTFs both within major metropolitan areas and within the jurisdiction of U.S. attorneys, and that Portland withdrew from participation or full participation in the JTTF relevant to the Portland metro area. I am not sure where the city has stood in relation to the state JTTF organized under the auspices of the U.S. attorney for the State of Oregon).

Failure to address these concerns adequately in the final workplan will lead inevitably to the conclusion by many that the workplan has been rigged to point to a pre-ordained conclusion that Portland and the PPB should participate in the JTTF(s). Conversely, addressing those concerns seriously will contribute to perception that the process was honest and open, whatever its conclusions. It is in the interests of the city and public confidence that those concerns be addressed.

A portion of those concerns in 2005 had to do with secrecy and security clearances extended to lower ranked officers, but not to top officers nor to civilian overseers of the police, compromising chain of command and civilian oversight and control over the PPB. Information in the case of the recent FBI sting or possible entrapment exercise in the case of the alleged would-be Pioneer Court House Square bomber appears to show that Chief Reese had information that he withheld from those responsible for civilian oversight and control of the PPB. This presents prima facie evidence that the concerns of 2005 remain relevant today.

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The draft workplan addresses only one concern of critics of participation, partially: "Is there a history of the Portland Police Bureau having violated U.S. or Oregon law in intelligence gathering activities?" This question, whose answer clearly is yes, should be pursued particularly with respect to activities since 1981 under Oregon Revised Statute 181.575, and also with respect to the U.S. and Oregon constitutions considered as the supreme "U.S. or Oregon law." It would be good to specify the constitutional aspect at both levels.

Moreover, several related questions should be asked:

1) Does the Portland Police Bureau interpret ORS 181.575 with sufficient attention to the civil rights and liberties of Portland citizens and residents, or does it interpret the statute so as to maximize its investigatory powers and activities at the expense of civil rights and liberties? What should the city policy be in directing the PPB as to how to interpret that statute? Is it vigorous enough in defense of citizen and resident civil rights and liberties?

2) Do the conditions, requirements and powers of the JTTF(s) under the so-called USA-PATRIOT Act and other relevant federal law require or potentially require PPB participants to violate ORS 181.575, or other rights and liberties under the U.S. and Oregon constitutions?

3) If the PPB participants were so required to act, would they be permitted to make that fact public? Would they be permitted to make that fact known to their Portland police and civilian supervisors, without being subject to prosecution for Federal secrecy violations?

4) If PPB police and civilian supervisors were informed of violations of ORS 181.575 or of other citizen and resident rights under the U.S. and Oregon constitutions, would they be permitted to make that fact public, without being subject to prosecution for Federal secrecy violations?

5) In sum, would or could PPB participation in a JTTF require the City of Portland and its agencies and employees to become party to the violation of the civil rights and liberties of city citizens and residents under Oregon law and under the federal and state constitutions, and make public servants subject to punishment for revealing such violations?

6) Should it be city policy that it is permissible for the PPB to be party to violations of Oregon statutes and the federal and state constitutions, in the interest of participation in a JTTF?

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Another set of questions ought to be posed as to whether the conditions of the JTTFs would allow any PPB participant to opt out of such participation if he or she believed the JTTF activities involved they types of violations described above, without punishment, retribution or disciplinary consequences from either JTTF supervisors or PPB police or civilian supervisors?

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One of the most surprising absences from the set of "key questions" relates to the chain of command and to civilian oversight and control of the PPB, and whether those relationships would be compromised or disrupted by participation in a JTTF. This absence is particularly surprising because it was questions about lower level police personnel having higher level security clearances than their police and civilian supervisors, and being restricted thereby in reporting on some of their activities or potential activities, including violations of civil rights and liberties of citizens and residents, that led to Portland's original withdrawal from a JTTF in the first place.

Questions that should be asked include:

1) Do the conditions, requirements and powers of the JTTF(s) inherently lead to compromise and disruption of PPB internal chain of command and control, and civilian oversight and control?

2) Do the conditions, requirements and powers of the JTTF(s) lead potentially but not inherently lead to such compromise and disruption?

3) Would police officials and civilian overseers have enough access to information to determine if such compromise and disruption was occurring, or would secrecy rules governing the JTTF prevent them from knowing of such compromise and disruption?

4) If such compromise and disruption of internal PPB chain of command and internal and civilian oversight and control were to occur, what remedies if any would the city have to rectify that situation?

5) Should it be city policy that it is permissible for PPB internal chain of command and control, and civilian oversight and control to be compromised and disrupted, in the interest of participation in a JTTF?

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Finally, if the answers to the questions about permissibility of participation in violation of rights and liberties under laws and constitutions, and permissibility of compromise and disruption of chain of command and civilian oversight and control, as a matter of city policy, be no, as they should be if we are to be a city and society governed by rule of law, should the city participate in a JTTF absent absolute guarantees that PPB personnel will not take part in such violations and compromise and disruption?

Thanks you for considering these comments.

yours sincerely,

Christopher C. Lowe [address, phone # and e-mail address]

(The text above has corrected a number of minor typographical errors that were in the original e-mail.)

KEY QUESTIONS OF INQUIRY

(From the Draft Workplan pdf downloaded from the mayor's website):

What was the relationship between PPB, state and federal law enforcement agencies prior to the creation of a JTTF and Portland's participation in it?

What are the relevant City ordinances that have previously addressed this relationship?

From 2005-present, have there been changes to relevant laws, policies, administrative rules, practices at the federal, state, or local level?

From 2005-present, have there been both failures and accomplishments in Oregon's efforts to address criminal acts of terrorism? Describe.

How have other state and local governments interacted with a JTTF and what have been their experiences? Have any changed their membership status since 2005?

Is there a history of the Portland Police Bureau having violated U.S. or Oregon law in intelligence gathering activities?

Would any events, including the November 2010 Pioneer Square threat, have unfolded differently were the City of Portland a fully participating member in the JTTF?

By Chris Lowe Dec. 17, 2010