Oregon court revives activists’ challenge to state’s anti-terrorist center

The court noted the plaintiffs' claims, if true, would "surely test the expectations that Oregonians set for the conduct of our government."SALEM, Ore. (CN) — A group of Oregon advocates and environmental organizations that accused the state’s threat detection intelligence hub of illegal surveillance have another chance to raise their claims after the Oregon Court of Appeals on Wednesday revived the case.“The factual and legal context for plaintiffs’ claims is complex, and, as detailed above, the factual allegations underlying those claims are unsettling,” Oregon Court of Appeals Judge James Egan wrote on behalf of a three-judge panel in the 20-page opinion.The state has operated the Terrorism Information Threat Analysis Network program since 2004, and it has grown into what is now the state’s fusion center. It is part of a network of state-operated domestic intelligence hubs across the country developed by the federal Department of Homeland Security in a post-9/11 push to assist in assessing and anticipating terrorist attacks.But a group of individuals and environmental groups say the state Justice Department has exceeded its legal authority through the operation of a fusion center, which they contend surveils and investigates political actors and activists based purely on their views rather than any connection to criminal activity.The individual plaintiffs — Ka’ila Farrell-Smith, Rowena Jackson, Sarah Westover and Rosemary Francis Eatherington — sued the Oregon Department of Justice, the attorney general and the chief of counsel at the Justice Department’s Criminal Justice Division, in 2021. Rogue Climate and 350Eug intervened.The plaintiffs joined a campaign against the Jordan Cove Liquefied Natural Gas Pipeline, a proposal to build a liquefied natural gas terminal and pipeline in Coos Bay, Oregon, which the state officially canceled in late 2021. They accused the state defendants of targeting them in yearslong surveillance efforts based on their social and political views in violation of the state’s anti-surveillance statute.That surveillance, the plaintiffs claimed, included reports on their advocacy efforts opposing the pipeline that characterized them as potential terrorists or criminal threats without any evidence of criminal wrongdoing or even a connection to criminal activity.The Marion County Circuit Court dismissed the complaint last year and declared the defendants had the authority to operate the fusion center. But the Oregon Court of Appeals disagreed.“Construing the complaint liberally in favor of plaintiffs, as we must, we conclude that the complaint may be fairly read to allege that specific identified activities the fusion center continues to undertake exceed ODOJ’s statutory authority,” Egan wrote.The appeals court noted the complaint may be read to challenge the fusion center’s very existence but may also be read to challenge the center’s particular activities, like the collection and dissemination of political protest activity not connected to criminal activity.Egan noted the central question of the case is not whether a national network of fusion centers or Oregon’s own fusion center is important or supported by federal policy.“The question is whether the activities of Oregon’s fusion center, as alleged in the complaint, are permitted by Oregon law, that is, whether the Oregon legislature has actually conferred to ODOJ the necessary authority to undertake those activities,” Egan wrote.Based on the pleadings, the appeals court concluded the exercise of the asserted power appears substantially broader than the statutes the state identified as the source of the authority.“Federal encouragement does not enlarge the powers conferred on a state agency by state law,” Egan wrote. “Whether Oregon officials may exercise a particular governmental power remains a question of Oregon law.”The appeals court concluded the trial court read the complaint too narrowly and noted there was a lack of direct statutory authority for the activities the plaintiffs claimed.“The conduct of the government as alleged in the complaint — operating a secretive lawenforcement program in excess of statutory authority in a manner that chills political participation and the exercise of constitutionally-protected rights — would surely test the expectations that Oregonians set for the conduct of our government,” Egan wrote.As such, the Oregon Court of Appeals sent the case back to the trial court.Barry Friedman, director of the Policing Project at NYU School of Law and one of the attorneys representing the plaintiffs, called the ruling a victory for the plaintiffs and for the basic principle of law.“Law enforcement cannot just engage in whatever surveillance it wants. No surveillance on a mass scale ever should happen without clear legislative permission and public accountability,” Friedman said. “TITAN has neither, and it is time to fix that.”The Oregon Attorney General’s Office said the state defendants are evaluating the court’s opinion and considering how to proceed, including whether to seek review from the Oregon Supreme Court.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads