businesses. even some f.b.i. officials as reported by "the new york times" have found this practice troubling. but it's part of their guidelines, it's part what have the f.b.i. does and it's what we know they're doing in san francisco. the message that this kind ofagetivity sends is that the f.b.i. considers certain communities more suspect and less american than others. the practice is alienate communities and strain law enforcement relationships. the san francisco police department cannot afford to participate in these practices. we need community trust to keep all of our communities safe. thank you. >> i'm john crew for the american civil liberties union and rather than take too much time, i want to just echo the thanks that veena already offered. briefly ac knowledge -- acknowledge chief suhr. we really appreciate you trying to dive into this issue so quickly and also comblations -- congratulations to your new command staff. i'm particularly pleased to echo also the comments made by director sparks, by both the

commissioners up here. good news again is that we're all on the same page. we share the same goal. no one wants sfpd officers to be under the complete control of the f.b.i. what we need to do is to collectively find a solution that will actually achieve that goal, we're not there yet, we really appreciate this opportunity and your time. i'll try to be quick. to outline for you the elements of the solution. but first i need to briefly update you on how we got here. i don't want to focus on the path, i want to focus on the future, about we need to briefly understand what your predecessors have done that got us higher. and build on their success. we gave you in your packet a couple of pages of abbreviated history on this issue. i won't go through all of that. the highlights are though i need to correct chief suhr briefly. this issue first came up in terms of action in san francisco in 19 the when the human rights -- 1989 when the human rights commission held a hearing similar to the ones you held in september and came up with the recommendations that called on the sfpd to overhaul their intelligence policies.

this was based on not one incident but in fact a number of incidents that had taken place over a number of years and decades, some that have is referred to your packet. we gave you complips about. that the good news is that the police commission, your predecessors, responded to that recommendation by appointing a special committee that sat down with then chief which will withs i over six months and crafted a new intelligence policy. the police commission appointed myself to that committee, staff members of the human rights commission, other members of the public, and what we did is we looked through at best practices from over cities. we took policy provisions that were already in place and working to protect civil liberties and civil rights. the result was a consensus recommendation that the police commission adopted unanimously. that we were very optimistic about. but of course the work isn't done when you just pass a policy. three years after that event, a major scandal broke out in 1993. which is known as the gerard scandal. and there are lots of elements of that, i won't go into all of the details. but part that have scandal had

to do with the failure admitted by the chief of the department to actually implement the prior reforms. so after that, in 1994, the police commission strengthened 8.10 by strengthening the key civilian auditing procedures, to make sure that there is accountability and that they could uncover when there are problems. so, that's how we got here and i would say after 1994 we really haven't had controversy around these issues in san francisco. after swarming controversy. i see chief suhr nodding his head. so i think that's a sign that these policies worked. the good news is that these previously, your predecessor were careful to make sure they were applied to the gttf context. in late 1996 the f.b.i. created the first jfff -- jttf in san francisco, i think there were only 12 nationwide then, and they came to san francisco and said, we want you, we need you to be part of this task force. the predecessor. but we don't want you under your policies, we want you to get a

waiver from the police commission so there's no civilian oversight, you're not operating under san francisco values and standardses, you're operating under us. and in early 1997, the mayor brown said, nope, we have san francisco policies we're going to apply them. the public was outraged and within a matter of days, the san francisco police commission rejected that proposal and said, we're happy to cooperate, but we're not going to forfeit our values and forfeit our rules. fast forward to 2002, after 9/11, the sfpd did join the gttf but under an m.o.u. that very carefully preserved san francisco policies, with a number of specific provisions that said san francisco policies apply completely. the predecessors on the police commission followed oun that. in 1994, i believe it was, the police commission asked the police department, are the gttf officers still following 8.10? promises up and down absolutely. still in effect. 2005, civil rights groups go to

the special agent in charge himself at the f.b.i., ask the same question, he promised up and down, absolutely local policy only. so this arrangement was working. there is precedent for applying these policies locally. but in 2007 the f.b.i. came to the sfpd with a new standard m.o.u. and perhaps inadvertently, there was no review by the city attorney, no notice to the police commission, the sfpd signed that m.o.u. and it's a drastically different m.o.u., unfortunately. now, we didn't know about that m.o.u. because it was kept secret at the instistence of the f.b.i. for four years. and we appreciate when we met with them recently the f.b.i. took responsibility for that secrecy. week of been operating in this town for 20 years with an atmosphere of open discussion and open grappling with what sometimes are difficult issues that sometimes people disagree about. but when we met with the police department in 2010 we were told

suddenly the police department couldn't even talk about these issues without the permission of the f.b.i. that set off a warning sign. there's a truism in police practices that openness, particularly on issues related to controversial tactics, openness breeds trust. openness breeds confidence. it is necessary for collaborative problem solving. unnecessary secrecy breeds suspicion and breeds distrust and it's a major barrier and suddenly we're faced with secrecy around this issue. so eventually six weeks ago we finally got the m.o.u. released and unfortunately our suspicions and concerns were confirmed. this m.o.u. places firmly -- places the sfpd by its very terms in the control of the f.b.i. and major provisions that were previously in m.o.u., if you could call up the slide that shows that, not working, there we go, these provisions were in

the m.o.u. that was in effect from 2002 until 2007. very specific provisions that were carefully put there and insisted upon to protect san francisco policy and san francisco oversight and control. every single one of these plo visions is missing, was taken out. in and the m.o.u. that was adopted in 2007 and is in effect to this day. and what it's replaced by is language that puts the complete control in the hands of the f.b.i. now, a number of are you lawyers, but clearly first year contract, you look at the two documents defining the same relationship, if there are provisions in the prior one that are suddenly taken out, you assume that has meaning. you assume in fact that they no longer apply. and indeed as much as we would all like to say, and i appreciate the desire here to say that in fact san francisco policies are still applying, that's not what the f.b.i. is saying. istically with respect to key provisions related to civilian

oversight and your ability to oversee and control what's going on. let me speed this up a little bit. so what puts at risk here, operating under this m.o.u., first and foremost, is the very concept of civilian control. the general orders of the police department are in fact the policies of the police commission, under the charter you set policies. signing a document with an outside agency undermining the concept of the police commission's authority and if a secret deal can be reached, maybe unintentionally, to undermine the policy on protecting the first amendment, what about the use of force policy? what about the deadly force policy? clearly even if you disagree on the merits of this, the police commission needs to reassert its authority. veena already talked about the local standards, they are significantly different. the command authorizations

however are key. this is the specific matter that the special agent in charge told us directly that they will not allow or not allowing now the requirement 8.10 that officers involved in these activities get command level authorization. that's very important not only so officers stop and think and apply the policy and it allows supervisers to monitor and make sure it's being applied appropriately, but those authorizations in fact create the paper trail in the sfpd that provides for the oversight in 8.10. so those authorizations are the documents that the designated police commissioner is supposed to review on a monthly basis, that is provided to the public. the f.b.i. is saying, even though they provide that information to their civilian oversight, they provide that willingly to congress, they say they will block, as long as are you operating under the m.o.u., they will block that key

provision from being applied. in the interest of time i'm going to skip those particular other aspects that are key and actually let's skip the bureau of general order. the one comment i will make of the bureau of general order, i'm thankful to hear it's a work in progress, there may be opportunities on it so i will not go niece those details right now but we don't think that in fact the bureau of general order is sufficient to address this issue. just one comment, as a bureau order, it can be changed at any time without the notice of the police commission, without a public hearing. and i think that this is an issue that has to be dealt with at the police commission level, given 8.10 is a police commission policy. but the good news is there's a solution. there are two federally approved ways to participate in the gttf. under an m.o.u. and under a resolution. the correct chief suhr, the portland city council chose not to center into an m.o.u., specifically because it restricts the ability to provide local control and local

oversight. we are not saying opt out, we are not saying leave the gttf relationship, we're saying there needs to be a transition. you're currently under an m.o.u., there's a model the federal government has endorsed, transition to it by passing a resolution and it's easy to do. let me go through the elements here that the portland resolution addresses. d it maintains local control over the assignment of officers and provides all these elements of civilian oversight, every single one with of these things has an analogous provision in 8.10. the federal government says you can do it as long as you're not doing it under an m.o.u. and these involved security -- voven involve security clearances, allows for annual public reports, it allows for training and it makes sure that nothing can change. no more secret m.o.u.'s being

signed but changes only take place after public notice, public hearings and discussion like this. so the question is, if the federal government and the u.s. attorney for oregon says that's a huge win for combating terror and that those are effective and sensitive civil rights protections, if that level of protection is available now to the people in oregon, why would san francisco not take the same deal? why are we operating under an m.o.u. that leaves our officers under the control of the f.b.i. and continues this argument when the easy thing to do is to simply start this transition now? we understand this is not a meeting where you have an action item tonight, but this is very simple to do. all you have to do is give 60 days' notice to the f.b.i. that are you going to start this transition to a resolution. that notice period allows the f.b.i. to have any comment or express any concerns they want, i think it's very regrettable that they choust chose not to participate tonight and unfortunately i think it says something in terms of how

seriously they take these concerns. i think this is a seamless transition because what everyone has said is that the officers in the jttf right now are not vitevie lating local policy. so if we went to a resolution that merely asserted local policy, then they could keep doing exactly what they're doing now. literally no transition. on the other hand, if it turns out perhaps -- [inaudible] to any of us that there's activities that sfpd is involved in that they shouldn't be involved in, the only -- don't we want those stopped? wouldn't this accomplish this? so this is a win-win, it is a preapproved way to solve this problem, we're very pleased, once we finally got this m.o.u. out, because of the leadership of the human rights commission, that we're talking about solutions. but there is a solution on the table readily approved that san francisco can start to implement the next time we get this on the police commission agenda. so again, we're very thankful to be here, i'm sorry that i took

so much time but thought it was important to try to brief you and let you know there is a way to solve this without changing the relationship at all but puts san francisco back in control where it needs to be. unless you have questions i'll leave it to that. president mazzucco: thank you very much, mr. crew, mrs. dubal. before we move into public comment on this matter, we need to give sfgtv approximately two minutes to change up their format, is that correct? >> they want to adjust some audio issues. i'll call them. president mazzucco: we'll take a two-minute recess and then the commissioners will be able to ask questions and then we'll move into

president mazzucco: ladies and gentlemen, if yude please take your seats -- if you'd please take your seats. ladies and gentlemen, we're back in session. we do have a quorum of the police commission and a quorum of the human rights commission. so, ladies and gentlemen, at this time we're going to have some comments from the commissioners regarding the presentation and i just want to start with, i'd like to thank everybody again for their presentations. we did meet with the f.b.i. today and the u.s. attorney's office and there was some

clarification of things that were said in the presentation by the aclu and the asian law caucus. we were told something differently. i do want to state for the record that the men and women of the f.b.i. and the men and women of the department of justice prosecute civil rights cases and i can say that being a former u.s. assistant attorney and what we saw today, i can't speak on behalf of those offices, but we saw people interested in the complapets we heard and that they -- complaint wes heard and they prosecute civil rights violations, they want the facts. we were also told today that there are no random assessments, there has to be a predicate of a criminal violation. they need to set the record straight that that's the business that the f.b.i. and the u.s. attorney's office is in and i refer back to what was quoted in an article about the f.b.i. director robert mull who are i worked for when there was a won flick in this issue and it was highlighted in "time" magazine issue where he asked that the attorney general not sign off on

a particular warrant and offered his resignation. so with honorable people like bob muller running the f.b.i., there should be a level of confidence that there will not be any violations. i know the world's not perfect, but, but we do put our faith and trust in those folks. so we did hear a little bit of a different presentation today from the f.b.i. i can't speak on their behalf. but it was somewhat comfort doing hear what we heard. so, without further ado i now turn it over to the commissioners for their questions. i'll let commissioner sweet handle the human rights commission because the names are jarbled here. commissioner sweet: i thank commissioner chan. it says commissioner -- it's commissioner mavis. >> thank you. i would like to thank everybody including the commissioners from the police commission and my fellow commissioners here at the human rights commission, the police department staff, and everybody involved for this joint hearing.

it's been extremely useful and beneficial and i've learned a lot thus far. i would like to say that after hearing the brief presentations and especially after hearing chief suhr's comments and also after having had an opportunity to only briefly glance really at this new bureau order that's dated may 16, i have tried during the speech as best i can to read it and understand it. from my understanding of what's here, it's very difficult for me to understand yet whether or not this really does move us in the right direction. the understanding that i have for why we're all here today is because of the second memorandum of understanding that was introduced -- entered into in 2007 with the f.b.i. and it's my understanding that the reason that we're here is because of concerns that many of us have

about whether or not that memorandum of understanding is in conflict with some of the values that san francisco and the people who live in the city and county have. it's very difficult for from this bureau order to know whether or not it addresses those concerns. i think a great deal of discussion really needs to take place on that particular issue. and the latest comments that i heard from the aclu tonight do not specifically address this particular bureau order. and i think that that is in itself interesting as well and it also concerned me slightly that some of the comments that the aclu made were referring to whether or not the city of san francisco and county of san francisco should be removing it self from the m.o.u. or whether or not it should be removing itself from the joint terrorism task force as well. there were some conflicting statements that i heard with respect to that as well. so with all of that, i know my comments have been quite long and i don't have a particular question other than to make clear that i think a great deal of study still needs to take place regarding this particular

bureau order and i look forward to that continues discussion. thank you very much. commissioner chan: thank you for this opportunity. i had several questions that i'd like to direct to the chief that are germane to the proposed bureau order. and chief, i commend you for moving very quickly to address the concerns and -- in the community, in the proposed bureau order. i do have a few general questions since i haven't had a chance to study the bureau order in depth and they really go toward the m.o.u. as it's presently constituted and what you're understanding is and that of the command staff as to how the department should -- and its members should comport itself. section 8-a of the m.o.u. states

that membership in the jttf is a two-year term with no maximum number of sworn and nonsworn personnel from each participating agency in jttf and i was curious how many members of the department, sworn or nonsworn, are currently operating under this federal departmentization -- deputyization. >> we don't generally discuss the specific numbers but i will tell you it's to the discretion of the department and how many members they can allow. but i will tell that you we've never had less than two officers assigned to the jttf. commissioner chan: it's my understanding that you have moved the -- in terms of the department's chain of command, this is out of homeland security and back under s.i.d., is that correct? >> yes. i gave that order today and i believe this order is actually dated today. commissioner chan: and

presumably that means that the police commissioner assigned to monitor audit on a monthly basis activities under general order 8.10 then would meet with the head of special investigations. >> yes. commissioner chan: my overall concern about the bureau order and it's already been expressed has been the standard of the criminal nexus andists interest -- i was interested in whether the department was amenable to conforming the terminology to the standard as anuns yatesed in 8.10 which requires that there be planning or indications of the actual engaging in criminal activity, a reasonable expectation of body >> i i will injury or property damage -- of bodily injury or property damage or a felony or

misdemeanor hate crime and that first amendment activities -- [inaudible]. do you expect to be more work done on the bureau order? >> we can certainly do that. the intent of the order was to align it with 8.10 and to close any gap that was in the 2007 m.o.u., to basically return it back to the 2002 stat wruss we had had no problems for many years -- status where we had had no problems for many years. if you want to specifically use the language that you just stated, i don't think that would be a problem. commissioner chan: either that or the bureau orders should incorporate the standards under 8.10 section 1-b i think would probably be the shorthand way of doing that. but i don't want to trample on the purr view of my colleague. >> we're trying to make it so it's a bureau order that everybody sees plainly closes the gaps that were of concern.

commissioner chan: the next sentence in the proposed order states that in situations where the statutory law of california is more restrictive of law enforcement than comparable federal law, then that would be the standard to be applied. do you also intend to incorporate by reference the whole body of local law both administrative and statutory for the city and county of san francisco? >> that's the intention of the order. commissioner chan: ok. i want to commend you again for promulgating a rule that would require members of the department to identify themselves. which of course raises the matter of individual officers which as you know during my stint on the commission was always a matter of concern that rules be promulgated so that members would clearly understand their rights and obligations under the d.t.o.'s. where do you -- that being done

and it's already been raised in previous conversations here, regarding the role of civilian oversight, the section 5-b-5 of the m.o.u. contains a standard that had caused me and my colleagues at the h.r.c. some concern that the f.b.i. here states that whether there's a conflict between standards or requirements of the participating agents in the f.b.i., the standard or requirement that provides the, quote, greatest organizational protection or benefit will apply. unless the organizations jointly resolve the conflict otherwise. is it your intention in the part of the command staff that to the greatest extent possible that where it is appropriate for them

absent the factor of the jttf being present that they would have the same access and the ability to investigate whether or not to sustain charges in the event of an allegation of officer misconduct? >> with regard to the san francisco police officers, yes. that's the reason why we asked the officers to identify themselves as sfpd, where then the ordinary complaint process that all officers are subject to would kick in. commissioner chan: that brings me to section 6-a of the m.o.u. wherein it states that jttf members are strictly for biden from disclosing any classified information -- forbidden from disclosing any classified information. my concern here is that what would the -- or do you have in mind a framework or an approach

if a case arices wherein an officer -- arises wherein an officer, in order to defend himself against an allegation of misconduct, or a citizen skeeking -- seeking to discover facts and other evidence relating to an incident bumps up against this need to know and the fact that apparently the jttf activities are, quote, under a federal classified information. do you have a plan that would enable the securing of a security clearance, for example, of the head of the o.c.c. or other complaint personnel in order to do their job in such a case? >> i don't -- it's not my province to pass out security

clearances but i can certainly speak with the special agent in charge fp dr. hicks would seek such a clearance. i don't -- commissioner chan: i think what i'm getting at here is we could very well have officers or the o.c.c. between a rock and a hard place where they are -- because of the explicit terms of the m.o.u. and federal statute, in essence prohibited from getting to the bottom of charges in the event a complaint is made about particular officer misconduct while engaged in jttf activities. that isn't a question but i think that would probably need to be flushed out in subsequent drafts of the bureau order. >> i'm trying to think of an instance where the information that they would be sworn to keep private would actually come into

play versus their conduct. i think their conduct would be subject to the complaint which would be outside of whatever the privileges information would be. commissioner chan: i know hypotheticals are tough but i was thinking of mr. crew's crew, if you will, brings a 1983 action for the violation of someone's civil rights based on the fact that they've alleged to have been a victim of some federal intelligence activity in which one of the co-defendants would be the city and county of san francisco and they would want to know how the subject in the investigation, whether the agreed party came to the attention or whether it's a product of federal assessment or -- a confidence informant. that sort of thing. >> general order 8.10 and -- was >> general order 8.10 and -- was the governing document with