The FBI Team Sent to ‘Exploit’ Protesters’ Phones in Portland

The FBI’s Washington, D.C., headquarters sent agents from its “Fly Team,” an elite counterterrorism unit, to Portland this summer during the second weekend in July. Their task was to interview arrested protesters and carry out the “initial exploitation of phones, or other communication devices,” according to FBI emails obtained through a public records request. It is unclear whether the Fly Team operation extended either past that weekend or beyond Portland, but the emails suggest that the FBI has been using counterterrorism tools and powers to map left-wing protest networks just months before an election whose result is likely to be delayed, if not challenged.

“In my day, this would have been unheard of—sending the Fly Team out not against al-Qaeda terrorists but protesters in American streets,” said a former high-ranking FBI official who served through the first post-9/11 decade,“ I don’t mean to imply that it’s wrong. It’s just, like, wow.”

“It would be news to us that any phone taken from arrested protesters was accessed by federal law enforcement,” said a congressional staffer who is involved in investigating the response to the Portland protests, where there have been nearly a thousand arrests since May 29, when protesters began assembling nightly outside the federal courthouse to condemn the killing of George Floyd. By July, the protests themselves had become the center of a national debate, as the Trump administration sent paramilitary units from the Department of Homeland Security to put down the growing crowds with tear gas and “less-lethal” munitions. Many local officials, including Mayor Ted Wheeler, said that the federal response was too violent and had led to an escalation of the protests’ frontline tactics, from graffiti and attacks on property, to roving mobs and more dangerous confrontations. On September 3, a task force headed by the US Marshals Service shot and killed Michael Reinoehl, who was a suspect in the August 29 shooting death of a far-right protester a few blocks from the courthouse. Both men were reportedly armed at the times of their deaths.

The email describing the Fly Team operation and asking for volunteers to assist with “investigative follow up” was written by George Chamberlin, who was then the assistant special agent in charge of the Portland FBI office’s national security branch. Chamberlin, who declined to comment for this story, retired from the agency a few weeks later. In one of the replies to Chamberlin’s email, a colleague in the Portland bureau notes that the Fly Team’s “defintion [sic] of exigency will be different from ours.” Exigency, as a legal concept, denotes one set of circumstances in which a warrantless search can be justified. An official familiar with the Portland operation said the email was facetious in intent and maintained that there was no difference between the legal authorities governing the Fly Team and those that applied to local agents.

FBI correspondence regarding the Portland deployment, July 2020 by The New York Review of Books on Scribd

Last week, members of the House Committee on Homeland Security claimed that cell phones from some Portland protesters had been held by the Department of Homeland Security “for months.” According to Congressman Jim Himes, Democrat of Connecticut, the Federal Protective Service, a division of the DHS, “seized phones of protesters and discussed with I&A the extraction and exploitation of data from those phones in order to identify connections between protesters.” I&A stands for the Office of Intelligence and Analysis, which is the DHS’s in-house intelligence agency. That request, Himes said, was reportedly denied. But a second chain of emails shows that a DHS employee from the Field Operations Division did contact the Portland Police Bureau to inquire about phones seized from arrested protesters and put the police in touch with a colleague from I&A.

As a technical matter, unlocking many smartphones is a trivial problem once the device is in the hands of a forensic technician, especially if the phone is locked with only numbers and not an alphanumeric password. The FBI’s claims in court that it needed Apple’s help to do so was part of a larger campaign against encryption. Most law enforcement agencies have access to devices that can “mirror” a smartphone’s entire hard drive, including emails, texts, contacts, and location data. Making an exact copy of a phone’s data is usually one of the first steps in conducting a thorough forensic analysis. The former FBI official said that the Fly Team could have access to special equipment and techniques. “Sometimes, the field office is not totally aware of all the neat gadgets and whizzbang stuff coming out of the lab,” the former agent said.

Nothing in the emails indicates that the DHS or the FBI exceeded its legal authorities in Portland. But it is not generally understood how extensive those authorities in fact are—they go far beyond those held by the DHS, especially if the president and attorney general get involved. Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US. The Supreme Court has held that the Fourth Amendment generally requires law enforcement agencies to obtain a warrant before searching cell phone data, but there is an exception for “exigent circumstances,” which is supposed to apply only to extreme situations in which lives are in danger.

Three other sources, each familiar with the Fly Team, told me they were not surprised at the dispatch of Fly Team reinforcements, especially considering that local FBI squads had “been running hard for several weeks,” according to Chamberlin’s email. The unit, sometimes also known as the “Fly Away Team,” was created by former FBI Director Robert Mueller during the months after the September 11, 2001, attacks as part of a broader reorganization of intelligence and counterterrorism agencies. Fly Team agents receive training in digital evidence collection, interrogation, electronic surveillance, as well as other specialized skills, and are often sent to assist with major terrorism-related investigations, both foreign and domestic. In the past, Fly Team agents have been sent to investigate terrorist attacks in Saudi Arabia and Morocco and to interview detainees held at the notorious Abu Ghraib prison in Iraq.

Raymond Holcomb, a retired FBI agent who helped form the first Fly Team in 2002, said the unit was created to speed up the flow of critical information between the field and headquarters in Washington, D.C. “Mueller wasn’t happy with the reporting system,” he said. “He wanted to be able to send experienced investigators to any location on very short notice so they could report back to headquarters and give the ground truth,” meaning facts reported firsthand from the field.

As far as the Fly Team’s Portland deployment is concerned, “it could really just be that local agents needed a rest,” said Michael German, another retired FBI agent, now a fellow at the Brennan Center for Justice. “But because the Fly Team was created to handle counterterrorism cases using a different set of tools, it raises significant questions about the rules they operate under when they’re in Portland or any other domestic location.”

“What lawful authority did they have over the phones,” asked the first former FBI official. “Did they always ask for consent? Did they get written consent? Did they get a search warrant for everybody?”

It is unclear how long the Fly Team agents remained in Portland after the weekend of July 11–12. In a statement, a spokesperson at FBI headquarters cited “the ongoing nature of operations and investigations” and declined to provide any specifics about FBI personnel. “As their focus has been on identifying and disrupting criminal activity, the standard limitations around use of investigative authorities applies,” the spokesperson added. “As with all of our operations, FBI investigative activity has been conducted in accordance with all of our legal requirements [including internal FBI and DOJ guidelines]…We have not been focused on peaceful protests.”

The DHS declined to comment. In Portland, a spokesperson for Wheeler said the mayor’s office was not aware of the Fly Team. “We are working with the Police Bureau to determine what, if any, communication or coordination occurred,” they added.

Whatever the duration of its operation, the presence of the Fly Team suggests that the administration’s alarmist language about the protests in Portland being “hijacked” by “anarchists” and “domestic terrorists” was more than mere talk—the government had acted using capabilities designed to meet a real threat of terrorism. And that action extended beyond public moves in Washington such as Attorney General William Barr’s deployment of fifty-six local Joint Terrorism Task Forces and the formation of a special DHS task force dedicated to protecting statues. Despite efforts by FBI Director Chris Wray to avoid validating Trump’s politicized rhetoric about Antifa, his agency has participated in policing Portland.

Not all former—and perhaps current—FBI agents agree with the director’s assessment in congressional testimony that Antifa is “a movement or an ideology,” and “not a group or organization.” Holcomb argued that, in some respects, Antifa does resemble a terrorist organization. “They’re extremely well-organized,” he said. “I would suspect that government agencies, whether it’s the FBI or others, are looking at them and trying to discern if there’s any international influence or support. I suspect that’s why they’re out there.”

Senator Ron Wyden, Democrat of Oregon, said the Fly Team emails raised questions about the broader federal law enforcement effort. “It’s high time for the FBI and DHS to give Oregonians a straight answer about what their agents have been up to in Portland,” he said in a statement. “The full extent of federal surveillance in Portland remains unknown, but it would be outrageous if Oregonians were targeted because of their political activities.”

The Fly Team’s presence in Portland also raises questions about the FBI’s decisions on how to allocate resources to meet varying domestic terrorism threats. A recent study from the Center for Strategic and International Studies identifies far-right terrorism as a significantly more serious menace than either foreign radicals or the far-left in the US. And this week saw the release of a DHS report—which had allegedly been suppressed for months by the agency’s leadership—that called violent white supremacy “the most persistent and lethal threat in the homeland.” In another email, an FBI agent in the Portland bureau notes that the agency worked with police to confiscate two AR-15 rifles from “two far-right extremists” in June.

How the FBI quantifies and responds to a threat of violent extremism from the left, as opposed to the right, could become a pressingly consequential issue around Election Day. The bureau is reportedly preparing to coordinate a federal response to any political violence and civil unrest from a command center on Pennsylvania Avenue, a short walk from the Department of Justice.