Public Comment

On June 19 Will Berkeley City Council Renew Unconstitutional/Unlawful Police Department Agreements?

By Gene Bernardi M.A., UC Berkeley, and member of SuperBOLD
Thursday June 14, 2012 - 04:22:00 PM

A Berkeley City Council Worksession on Police Department agreements is scheduled for 5pm-7pm, June 19, 2012 at Old City Hall, followed by a Special Meeting at which the Police Department agreements will be considered for action by the Council.

One of the recommendations is from the Berkeley Police Review Commission which calls for the Council’s approval of the Police Department agreements with the Northern California Regional Intelligence Center (NCRIC) and the Urban Areas Security Initiative (UASI). NCRIC is coordinated with the FBI’s Joint Terrorism Task Force. 

NCRIC’s core program is the dispatching of Suspicious Activity Reports (SARs) to its data fusion center, where active duty military personnel, in violation of the Posse Comitatus Act of 1878, are employed (ACLU, What’s wrong with Fusion Centers, 2007). The Berkeley Police Department (BPD) has two sworn Terrorism Liaison Officers (TLOs) in conjunction with the Joint Terrorism Task Force (JTTF) who “facilitate information sharing and investigative collaboration”. (Item 3.12, Berkeley City Council Review [BCCR]/Approval Binder). The one page on NCRIC in the Council’s Review Binder makes no mention of SARs or what information the TLOs are sharing or what constitutes “investigative collaboration”. 

SARs, according to the latest Attorney General Guidelines for Domestic FBI Operations, may be issued “without suspicion of criminal activity” (S.F. City and Co. Board of Supervisors [SF], File # 120046 p.4). The Coalition to Stop LAPD Spying reports there are sixteen non-criminal behaviors considered suspicious, such as; taking a photo of a building or a bridge; writing in a notebook; buying fertilizer; changing your appearance. The FBI Investigation Guidelines “authorize activities such as searching people’s trash without suspicion of wrong doing and infiltrating up to five meetings of a lawful organization before rules governing this so-called ‘undisclosed participation’ would apply”. (SF, Ibid.) 

The California Constitution, establishes privacy as an inalienable right providing “greater protection than federal law against unwarranted intelligence gathering. The California Attorney General’s Model Standards and Procedures for Maintaining Criminal Intelligence Files… [2007] warns local law enforcement that gathering intelligence without a factual criminal predicate based on reasonable suspicion of criminal activity violates California’s inalienable right to privacy”. (SF, Cit Op.. p.5) 

Would you feel your privacy rights were violated if you were reported as “suspicious” because you took a photo of the Golden Gate Bridge, or if you learned a TLO had “investigated” your trash? 

Berkeley Area Commanders are now meeting in neighborhoods with community members to teach them how to report Suspicious Activities. A new effort was reported in 2004 “to identify potential extremists inside the United States….[I]nformation has indicated that potential attackers might not be young Arab men, but religious extremists from other countries, possibly in Africa.” FBI agents are “starting to conduct interviews in communities where potential terrorists might seek to blend in with local populations.” (N.Y.Times 7/5/2004) emphasis added 

UASI under which Urban Shield holds urban warfare exercises with local police departments is a Homeland Security funded program. UASI is also involved in investigation activities and is said to work in conjunction with NCRIC. The half page on UASI in the BCCR (Item 3.6) makes no reference to urban warfare exercises conducted under UASI auspices. Police Magazine credited the “effectiveness” of the raid on Occupy Oakland to the urban warfare exercises that had been held, not long before, on the U.C. Berkeley campus. 

The NCRIC and UASI programs violate the Berkeley Municipal Code Sections 2.04.170 through 2.04.190 which require that BPD agreements be “reduced to writing”. The mere outlines of the programs in the BCCR are not inclusive of all aspects of the programs, e.g. Suspicious Activity Reports and Urban Warfare exercises. These and all other aspects of the programs must be comprehensively described and terms such as “suspicious” be defined. Otherwise these programs remain mere verbal agreements. 

San Francisco discovered, by virtue of an ACLU Freedom of Information Act request, that its Memorandum of Understanding (MOU) with the FBI regarding the JTTF, “places SFPD members under the control of the FBI and holds them accountable only to federal policies”. The MOU further clarifies “that SFPD members may obtain guidance on investigative activities only from the FBI and U.S. Department of Justice and expressly prohibits discussing these activities with their own SFPD supervisors without the specific approval of a FBI supervisor”. (SF, Op cit. p.3-4) 

The BPD has not supplied the Police Review Commission with an FBI MOU governing NCRIC and its coordination by the FBI’s JTTF. The unrevealed MOU with BPD may well be similar to that in San Francisco. 

As long as documents governing these programs are covert, we cannot exercise civilian oversight to determine whether there is compliance with our inalienable State Constitutional right to privacy, whether residents’ First Amendment activities are protected, and whether racial and religious profiling are not taking place. 

Please attend the June 19, 2012, 5pm to 7pm Worksession on Police Department agreements and speak there or at the Special Meeting at 7pm. Both meetings will take place at the Old City Hall, 2134 M.L. King Jr. Way, between Allston Way and Center Street.