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As the nation's largest law enforcement agencynearly twice the size of the Federal Bureau of Investigationthe New York City Police Department could be the biggest Big Brother of all. Yet it faces quite a stumbling block. A long-standing federal order, imposed after a landmark lawsuit revealed rampant surveillance abuses of political activists, prevents the NYPD from spying on whomever it wants.
Now the NYPD is fighting to gut the order and get its old powers back.
Police currently cannot investigate people who are exercising their constitutional rights, no matter how unpopular the cause, unless there is some indication of a crime. Street protesters are the most obvious beneficiaries. But also covered are those who pray, attend community meetings, write editorials, or express their views in almost any other way.
The police department insists it needs broader authority to hunt terrorists, who may masquerade as regular law-abiding folks until the moment they strike. But if police win this bid, the followers of "extremist Muslim fundamentalism" they have mentioned won't be the only ones in their sights. Everyone becomes fair game.
The NYPD relinquished its spying autonomy as a result of a 1971 class-action suit filed by a diverse group of activists who accused police of using dossiers and undercover agents to chill and punish lawful dissent. Officials eventually admitted as much. In a historic settlement over a decade later, police promised to heed certain guidelines and be monitored by an oversight body when investigating constitutionally protected activity. Federal Judge Charles Haight signed the settlementknown as the Handschu agreement after one of the plaintiffsinto effect in 1985.
Shaba Om and Steven Fischler, targets of surveillance during the NYPD's Red Squad years.
(Photo: Pak Fung Wong)
This September the Bloomberg administration submitted a request to Haight that he strike nearly every aspect of the Handschu agreementespecially the core requirement that police establish some trace of criminal activity before surveilling someone. The NYPD's intelligence commissioner, former CIA operations director David Cohen, argues in court papers, "It is difficult to imagine a state of affairs more outdated by the events of September 11th." The Handschu agreement, he warns, "dangerously limits the ability of the NYPD to protect the people . . . in this changed world."
But setting investigators loose on law-abiding people will hardly protect them, counters Paul Chevigny, a New York University law professor and part of the group of lawyers who filed the 1971 class-action suit and are back battling the city again. "If the police win," he warns, civil liberties will slide "back to the 1950s. Police will have the power to infiltrate and monitor groups just because they're curious. They'll be able to keep dossiers on people and disseminate the information to anyone they want, whether it hurts somebody or not."
The sides have traded paper arguments and will face off in court in the next month or so. One point on which they agree: the outcome could impact every New Yorker.
The police department declined repeated requests from the Voice to discuss its surveillance bid, expressing reluctance to comment on pending litigation. David Cohen, the department's head of intelligence, did not respond to a letter seeking an interview about his vision for a safer city.
But the NYPD's court papers trumpet a clear theme: Meeting the mammoth task of preventing more terrorism will require infiltrating innocent lives. "Terrorists engage in a prolonged period of often lawful activity in preparation for their criminal acts. They escape detection by blending into American society. They may own homes, live in communities with families, belong to religious or social organizations and attend educational institutions," Cohen maintains.
The department wisheswithout having to establish any evidence of a crimeto record names from organizations' mailing lists and petitions, photograph and videotape protesters, and plant undercover agents inside groups and events, according to its court filings. Among the requirements police want wiped from the Handschu agreement: routine oversight; paper records of surveillance; internal reviews of investigations; and publicly available summaries of basic information, such as the number of new probes opened in a year.
Another key target for extinction is the rule that all political investigations be confined to one unit, the Public Security Section. Meant to simplify police accountability, the requirement now poses a critical manpower problem, the city claims. "The NYPD cannot leave it to federal agencies alone to investigate terrorist activity," argues Cohen in his papers.
Indeed, the NYPD's potential reach as a spy network is enormous. The department employs approximately 53,000 people, with some 37,500 armed officersmore than triple the 11,400 noncivilian agents who work nationwide for the FBI, which has approximately 27,800 employees in total and operates a New York bureau of about 1500. The Immigration and Naturalization Service staffs about 36,000. (The Central Intelligence Agency's size is confidential.)
Former mayor Edward Koch, for one, is convinced that circumstances warrant a more powerful police. A fierce critic of political surveillance in his congressional days, his was the first mayoralty to fall under the 1985 Handschu agreement. "Anytime you have cops monitoring, it means that someone who would like to be here [at a protest] . . . is going to think twice. That's not what the United States is all about. I think it's an outrage that the federal government is collecting these political files . . . and that the city government is doing it. We gotta end it," he said in 1970. September 11 changed his mind.