In the 1970s, Seattle police compiled secret files on dozens of political dissidents. They noted sexual orientations and religious affiliations. They clipped letters to newspapers from people critical of the police and military, and they added those letters to the relevant files. According to the old Seattle Post-Intelligencer, activist Larry Gossett, now a King County Council member, was described in his police file as having an "M.O."—"Advocate of various Third World Causes."
Then a civil liberties group got its hands on the police files, prompting an outcry, and the city made history by becoming the first in the nation to enact an intelligence ordinance. Seattle's 1979 law created the position of police intelligence auditor—an independent watchdog who was to inspect police files twice annually.
In the wake of grand jury decisions not to indict the white police officers who killed Eric Garner in New York and Mike Brown in Missouri, Seattle is once again a hotbed of protest against racial injustice. But organizers of the demonstrations say undercover or plainclothes police have been infiltrating their events and quietly taking photos of protesters. And on December 8, I saw an SPD photographer take pictures of peaceful protesters, in what looked like a clear violation of the department's policy—which was written to comply with the 1979 intelligence ordinance.
After I raised questions about these practices, police chief Kathleen O'Toole asked the department's current intelligence auditor to perform a special third audit this year, specifically looking at any information police have gathered on recent protesters.
Which raises the question: Who, exactly, is this person charged with protecting the civil liberties of Seattle's protesters and political dissidents? Meet David Boerner, professor emeritus at Seattle University School of Law and former chief criminal deputy in the King County Prosecuting Attorney's Office.
Or rather, don't meet him. As of press time, Boerner had not responded to several voice mails and e-mails left with both him and his secretary over a five-day period. When I went to check out his corner office, at the back of the reserve section of the Seattle University law library, I couldn't find him there, either. A librarian said he comes in "occasionally."
Boerner was appointed to a three-year term in 2005 by then-mayor Greg Nickels, and he's apparently been kept on since then. It's not clear whether he's being paid for his work. SPD Lieutenant Eric Barden told the council that he believed being intelligence auditor was a "volunteer position." However, city budget documents show $4,000 being paid to a police auditor in 2003 and 2004. The intelligence ordinance requires that Boerner submit semiannual audits to the city council, but for at least the past three years, he has not personally done so (with one exception in 2013). Instead, Lieutenant Barden has presented Boerner's reports. Several times, they've been approved by the council's public safety committee in a matter of two or three minutes, without council members asking any questions. In December of 2013, Lieutenant Barden told the committee that Boerner "picks a random sample of case files and reviews it for compliance with the ordinance." Boerner was supposed to be at that December 2013 committee meeting—he was listed as a presenter on the council agenda. But Barden said that he couldn't make it.
"We've done a few of these, and there don't seem to be any anomalies in this situation," said committee chair Bruce Harrell. With only Council Members Nick Licata and Mike O'Brien present, the committee voted to accept the report and submit it to the city clerk.
On multiple other occasions, Harrell has commented that the audits seem to be "perfunctory," and when the committee met on April 12, 2012, Harrell expressed concern that Boerner wasn't available for questioning. The audit, Harrell noted at the time, "says David Boerner, he arranged with you, and you provided him, the material for him to audit."
"Yes," Barden replied.
"So he's auditing what you've given him. Which is really not the way an audit works," Harrell said. "Usually... they look at everything... I don't question the substance of it all, quite frankly. But it just seems a little unusual that the auditor isn't presenting the audit."
Since then, Boerner has shown up just once, on April 3, 2013, alongside Barden. "I found no problems at all," Boerner said in April of 2013. "Nothing even on the borderline." The committee members there that day—Harrell, Licata, and Mike O'Brien—didn't take the opportunity to question Boerner and approved the report in three minutes. "There's fewer questions at the end of the day," one of them can be heard joking on Seattle Channel video as they adjourn the committee meeting.
Chief O'Toole met with Boerner on December 12, after requesting the special audit of intelligence gathered on recent protesters. She said she left the meeting with "a comfort level that everything that has been done to date is in complete alignment with the ordinance and our policy."
Seattle's intelligence auditor position is a rarity among American police departments. But "if there's no information coming out to the public of any substance," said Michael Price, a lawyer at the Brennan Center for Justice who wrote a 2013 report on security and police, "it does little to instill confidence that the police are actually following the rules."
Price expressed some dismay that the Seattle auditor's reports have been "so routine and rubber-stamped in the past." In light of the city's recent protests and the concerns about police gathering intelligence on peaceful demonstrators, Price added: "If there was ever a time to do things differently, it seems like now would be that time."