TWO VIEWS • Portland's tolerance won't save it from being a target, but should we give in to fear?
All of the reasons that the city of Portland had in 2005 to pull out of the FBI's Joint Terrorism Task Force are just as compelling in 2011. In fact, today there are even fewer constraints to prevent First Amendment abuses by the FBI than there were six years ago.
The Portland City Council should reaffirm the city's relationship with the FBI and cooperate on a case-by-case basis as equal partners when threats to public safety arise.
Both the FBI and the Portland Police Bureau have a 70-year history of carrying out surveillance on thousands of innocent individuals and organizations because of their political, religious or social activities - or because of their race or national origin - rather than because there was evidence of criminal activity.
When the FBI's abuses first came to light as the result of congressional investigations in the 1970s, there were pledges of reform but no federal laws were passed to prohibit similar abuses in the future. Instead, in 1976, U.S. Attorney General Edward Levi adopted guidelines on FBI activities that were intended to require particularized suspicion of criminal activity prior to the start of any investigation or surveillance of individuals or organizations.
Since that time the attorney general's guidelines have been substantially revised on four occasions and each time the 1976 restrictions have been weakened, undermined or removed.
Numerous investigations in the past decade by the Justice Department's Office of Inspector General have found that the FBI repeatedly has violated the attorney general's guidelines. In the waning days of the Bush Administration, in December 2008, the guidelines were weakened once again. Those changes now permit sweeping 'assessments' of individuals and organizations that are engaged in lawful political, religious and social activity. No individualized suspicion of criminal conduct is required.
Some have suggested that with President Obama in the White House and Eric Holder as attorney general, Oregon should no longer be concerned about FBI abuses. But Attorney General Holder has made no changes to the 2008 guidelines and he has made no change in the leadership of the FBI.
Here in Oregon, we chose a different path of reform. In 1981, the Oregon Legislature approved the current law (ORS 181.575) that prohibits any state or local law enforcement agency from collecting or maintaining information about the political, religious or social views, associations or activities of any individual or group unless that information directly relates to a criminal investigation and there is reasonable suspicion the individual or group is or may be involved in criminal conduct.
The Oregon law protects innocent people from being subject to police surveillance in two ways. At the front end, police must have evidence of possible wrongdoing before they can collect information related to constitutionally protected activity. Just as important, if the basis for the police action was incorrect - and an investigation indicates the individual is not a criminal - then police are required to purge the information from their files.
Oregon's law is designed to ensure that state and local police don't waste their time investigating people who are not criminals. When police follow reliable evidence of criminal activity, they can prevent and solve more crimes.
Unfortunately, Oregon's law has also been violated repeatedly during the years.
A 2002 Portland Tribune investigation uncovered voluminous files of the former Portland Red Squad/Criminal Intelligence Unit that - despite the 1981 law - continued to monitor the lawful political and social activities of Portland residents until it was disbanded by Police Chief Penny Harrington in 1985 (see ' 'Watcher' files find new home,' Jan. 13, 2004). Among the records obtained by the Tribune were files on many organizations, including the ACLU, as well as hundreds of photographs of peaceful political demonstrators.
Portland's violations of the law didn't stop in 1985. Following lawsuits in the 1990s, the Portland city attorney agreed to periodic reviews of Police Bureau criminal intelligence files to ensure that records were not collected or maintained in violation of Oregon law.
When Portland intelligence officers later joined the FBI Task Force, they were federally deputized and given top secret security clearance by the federal government. In that role, they operated under the supervision of federal officials and the information they collected became FBI files, outside the restrictions of Oregon's law.
Nevertheless, those officers still had an obligation to comply with Oregon law. The Catch-22 was that Portland's JTTF officers could not consult with the chief of police, the police commissioner or the city attorney for guidance about Oregon law because those officials either didn't have the same level of security clearance or were not allowed any clearance at all.
It was this break in the chain of command that led City Council to pull Portland officers out of the JTTF and instead have the Police Bureau work with the FBI on a case-by-case basis.
Portland's City Council should reaffirm that 2005 decision and continue city cooperation with the FBI when a specific threat arises. The council should refuse to allow Portland officers to operate outside of the normal chain of command of the Portland Police Bureau.
David Fidanque is executive director of the ACLU of Oregon.