Make A Better Case, FBI

Evan Manvel

As the Portland City Council considers how closely it ties the City to the FBI’s Joint Terrorism Task Force, a disturbing – albeit unsurprising – report was released last month by the Electronic Frontier Foundation.

The report found the FBI admitted nearly 800 violations of laws or policies from 2001 to 2007 – while refusing to provide any details, or whether anyone was disciplined. This comes on top of the Justice Department’s 2007 finding that “the FBI may have violated the law or government policy as many as 3000 times since 2003 in the course of secretly collecting telephone, bank and credit card records without warrants… as many as 600 of these could be ‘cases of serious misconduct.’… Those figures were far higher than the FBI acknowledged or reported to the [Intelligence] oversight board.” Of course, that may just be the tip of the iceberg - we can't know.

This is nothing new. The FBI abused its power through its counterintelligence program from 1956 to 1971, working to undermine the NAACP, National Lawyers Guild, feminist groups, the American Indian Movement, and the work of Dr. Martin Luther King, Jr. More recently, it has poured resources into monitoring anti-war, animal rights, anti-choice, and environmental groups. In 2002, a jury ordered the FBI to pay environmental activists $4.4 million for violation of their first amendment rights. Many have noted how Muslim groups and animal rights and environmental groups are characterized as “terrorists” by the FBI, while the murderous actions of white people go unlabeled.

We want to be safe. By and large, the FBI works towards that end, fighting human trafficking, white collar crime, serious violent crimes, environmental crimes, and so forth. I’m grateful for most of their work. Yet for the past six years, they’ve been able to do their work without Portland being part of the JTTF. And the City still engages with them on a case by case basis.

The momentum for rejoining the JTTF is driven by the Thanksgiving operation near Pioneer Courthouse Square, a.k.a. “the averted terrorist incident.” Of course, Portland police worked with the FBI on that incident, which the FBI created. An FBI representative also said yesterday, “At no time was there any, any danger.”

The editors of The Oregonian editorialized today, saying the city should rejoin the JTTF and we could create clear agreements. They wrote:

We have a different president, a stronger commitment to civil liberties and stronger oversight emanating from the very top of the FBI itself. This time, too, the agency is expressing more tolerance and flexibility for devising a unique working relationship with the city -- one that meets Portland's need for extra vigilance.

That's the solution here. Portland should craft a memorandum of understanding with the FBI that makes the city's oversight of its own employees clear and explicit.

I’ll keep an open mind about unique proposals. But while The Oregonian editors argued one thing, the paper’s front page story revealed the FBI failed to follow the current agreement with the City, apparently not even realizing it existed.

Nor is there a major difference in the Bush and Obama FBIs – the leadership has remained the same. And the policies? As noted in yesterday's hearing:

"On their face, the FBI's polices are in violation of the Oregon statute," [former FBI Special Agent Mike German] said. "More important would be to study what the FBI's actual practices are... The way the guidelines are actually interpreted by the FBI in practice is actually worse than the base of what the guidelines require."

The FBI doesn't just change overnight. It is a long-standing institution, made up of people - an institution whose culture seems to foster a disregard of individual rights, conceptually in exchange for security. The problematic agents don’t simply change their views on civil liberties because we get a new President, and don’t take well to oversight or new policies.

As the EFF report makes clear, even as the Patriot Act and other laws have dramatically shifted the balance of power to favor security over the our individual rights, FBI employees routinely break and disregard the weakened laws protecting our privacy. They lie about how often they do it. And there is no clear way to hold them accountable.

Such systemic failure to follow the law shifts the burden of proof to those who advocate for the City of Portland to rejoin the Joint Terrorism Task Force. They need to demonstrate how security would improve if we were to do it, and how we could retain our critical personal freedoms.

I’m open to a proposal for a unique relationship. But for now, as FBI agents continue to repeatedly abuse the fundamental rights of American citizens, and have failed to follow their existing agreement with the City, our rejoining the JTTF would reward a broken system, to the detriment of our basic freedoms.

Interested in more? Check out the solid ACLU backgrounder page on this issue.

Also, take another look at Chris Lowe's probing questions, most of which I haven't heard answered.

UPDATE: Willamette Week has a great editorial this week on why we shouldn't rejoin the JTTF.

By Evan Manvel Feb. 16, 2011