Judge restricts scope of suit challenging Oregon’s anti-terrorism fusion center
Published 2:21 pm Thursday, August 18, 2022
- People protest against the Jordan Cove LNG Pipeline in Medford in January 2016. A judge has narrowed the scope of a lawsuit that alleges Oregon’s anti-terrorism center unlawfully spied on peaceful demonstrators opposing the pipeline.
A judge on Thursday narrowed a lawsuit filed by four protesters who are challenging the authority of Oregon’s anti-terrorism center to gather intelligence.
Marion County Judge Audrey Broyles’ decision from the bench came during the first court hearing on the suit and marked a win for the state Department of Justice.
The four environmental, Indigenous and social justice advocates who filed the suit allege the state’s TITAN Fusion Center unlawfully spied on peaceful demonstrators fighting the $10 billion Jordan Cove pipeline and that the center is operating without any state legislative authority.
They want the court to compel the center “to destroy and expunge all records related to plaintiffs and the organizations with which they work.”
Attorney George S. Pitcher, representing the state, urged the judge to strike the last seven words of the above clause from the lawsuit that would extend any records expungement to the plaintiffs’ various groups.
“These plaintiffs don’t have authority to represent these organizations,” Pitcher argued.
The suit referenced at least eight organizations that it said the demonstrators have volunteered in or worked with: Rogue Climate, Signal Fire, Klamath Tribes Administrative Office, Phoenix City Council, No LNG Exports Coalition (an alliance of environmental groups), Oregon Women’s Land Trust, Rogue Action Center and Real Solutions.
Attorney Tim Cunningham, who argued on behalf of the plaintiffs, countered that the state’s request was unjustified and premature.
He said all four plaintiffs have protested the liquefied natural gas pipeline and export terminal in their roles as leaders and organizers of different activist organizations.
“When the government surveils organizations, that means they surveil people, people who are taking action on behalf of the organizations of which they are leaders, members or directors,” he argued.
“These plaintiffs’ participation in organizations is related to themselves,” Cunningham told the judge. “It’s part and parcel of who they are and what they do. It’s their activism.”
But the judge agreed with the state’s lawyers that the organizations don’t have standing in the lawsuit.
She said the organizations could potentially include dozens, if not hundreds of members.
Any relief that the activists seek in this case is “separate and distinct” and they won’t be allowed to “throw out a wide net,” Broyles ruled.
Oregon’s Fusion Center is one of about 80 across the country started in the wake of the Sept. 11, 2001, terrorist attack.
Attorneys from the Policing Project at New York University School of Law filed the suit in Marion County Circuit Court in December, marking the first litigation initiated by the public safety research nonprofit.
They’re using a novel legal argument, contending that while the Oregon Department of Justice administers the program, the state has no law that recognizes or regulates the center. The Legislature would need to authorize the center and put up “appropriate guardrails,” the suit says.
Further, they argue that given the lack of a law, the center’s collection of intelligence or surveillance documents on the four individuals who filed the case and the organizations they’re involved in is unlawful, Cunningham wrote to the court.
“Plaintiffs seek the destruction of records not on behalf of the organizations — as Defendants seem to imagine — but on their own behalf, in order to remedy the harm done to them because of their ties to the organizations TITAN unlawfully surveilled,” he wrote in a court filing.
The four plaintiffs in the suit are: Ka’ila Farrell-Smith, a member of the Klamath Tribes and a resident of Modoc Point who serves as a board member for environmental justice nonprofit Rogue Climate; Rowena Jackson, a member of the Klamath Tribes who lives in Klamath Falls; Sarah Westover, a community organizer and social justice advocate who lives in Phoenix, Oregon; and Francis Eatherington, an environmental activist and president of the Oregon Women’s Land Trust, a nonprofit based in Southern Oregon. They’ve each helped organize opposition to Jordan Cove.
Cunningham said he’s concerned that the state’s fusion center may not have kept records on the four named plaintiffs, but on the organizations that they’re active in, and that the restricted scope will next prompt the state to try to dismiss the full complaint.
The suit alleges the center has coordinated intelligence operations on Jordan Cove with firms hired by the private company funding the project with the aim of suppressing public dissent.
Calgary-based Pembina Pipeline Corp. proposed a liquefied natural gas export terminal in Coos Bay with a feeder pipeline, the Pacific Connector, stretching halfway across Oregon. Yet on Dec. 1, the developers that had hoped to build the Pacific Connector Pipeline and Jordan Cove Energy Project told the Federal Energy Regulatory Commission they did not intend to move forward with the project.
Emails obtained by the plaintiffs that were first reported by The Guardian news agency show that law enforcement agencies, including the FBI, have monitored opponents of Jordan Cove and shared information on an email list that included a public relations company supporting the pipeline project.
Kristina Edmunson, a spokesperson for the state Justice Department and Attorney General Ellen Rosenblum, has said previously that when the department learned of the concerns about improper surveillance of Jordan Cove protesters, “We followed up immediately and shortly thereafter placed the Fusion Center employee on administrative leave. After an internal investigation, we issued the employee a pre-dismissal notice and he chose to resign.”
She said the center works with federal, state and local law enforcement agencies to produce threat assessments, officer safety bulletins, reports of missing persons and general crime bulletins.
It also provides training to law enforcement agencies, businesses and first responders about various public safety topics, including active shooters, cybersecurity and crime trends. It’s supported by both federal grants and funding from Legislature, Edmunson said.
The judge Thursday also granted a protective order to keep certain confidential documents from being made public as the case proceeds. The next court date was set for November.