Published in The Oregonian, December 1, 2010
By David Fidanque and Andrea Meyer

Last week’s FBI-choreographed fake attempted bombing at Pioneer Courthouse Square was the stuff of high drama. The Oregonian editorial board justifiably applauded the coordinated law enforcement efforts designed to ensure public safety as the FBI’s efforts unfolded.

Unfortunately, the editorial board also used this latest drama as an occasion to urge the City of Portland to rejoin the FBI’s Joint Terrorism Task Force. The editorial also misrepresented the reasons that Portland withdrew from the JTTF in 2005. Those reasons were important and all Oregonians should know them.

The fundamental reason was – and is – that once state and local police officers join the FBI’s JTTF they are beyond the reach of their home agency supervisors, legal counsel or civilian authorities.

When Portland was part of the JTTF, Portland officers on the task force were not subject to the oversight or command of the Police Chief, the Police Commissioner or the City Attorney.

The Chief of Police is responsible for the actions of all officers serving under his or her command. The Police Commissioner, currently the Mayor, is also part of the chain of command and also would be responsible if officers acted outside their authority. As for the City Attorney, part of her job is to provide legal advice and oversight to ensure that police officers aren’t violating state and local laws.

Unfortunately, the FBI’s rules of participation in the JTTF don’t allow the normal chain of command to do its job. If Portland Police Bureau officers on the JTTF violated the law, the City would still be legally responsible even though the Chief, the Mayor and the City Attorney couldn’t have done anything to stop it.

History has shown us repeatedly what happens when law enforcement and “intelligence” officers act in complete secrecy – especially when the real or supposed threats are difficult to identify. In the past, the FBI, state and local police have chosen to treat innocent individuals as suspect merely because of their political, religious or social activities.

It happened again in the Brandon Mayfield case when the FBI incorrectly accused Mayfield of involvement in the 2004 Madrid train bombing case because of a faulty fingerprint ID and the “coincidence” that Mayfield is Muslim. The federal Justice Department eventually settled Mayfield’s civil lawsuit for $2 million.

It is also important to note that the ability of the FBI and other federal agencies to engage in sophisticated electronic surveillance and to obtain other private records in secret and without judicial oversight has expanded exponentially since 2001. The safeguards against federal agencies snooping on innocent groups and individuals were swept away by the Bush Administration. The Obama Administration has done very little to undo that damage. There may be new leaders in the White House and at the U.S. Justice Department, but the investigation and intelligence laws, policies and practices are essentially the same.

Until the Portland City Council can be assured that the City’s chain of command and legal oversight will be respected by the federal government, the City should stay out of the FBI’s Joint Terrorism Task Force. That will not prevent the City from working jointly with the FBI on a case-by-case basis – as it has in the most recent case.
David Fidanque is the Executive Director and Andrea Meyer is the Legislative Director/Counsel of the American Civil Liberties Union of Oregon (ACLU).