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"I believe a greater liberty has to be given to law enforcement," he says now. "I believe absolutely there will be occasions that go too far. That's the necessary cost of protecting the public in these times where we're dealing with terrorism."
But "terrorism is nothing new," says Chevigny. The lawyers opposing the city point out that police have long known New York City is a prime target for horrific attacks. They acknowledge that September 11 was uniquely tragic but deny that it created a reason to grant police free access to lawful people's private information. They would consider amending the Handschu agreement only to reflect technological changes in interagency information-sharing.
Says Ellen Schrecker, a leading historian of American anti-Communism who teaches at Yeshiva University, "During the McCarthy era, almost everything was labeled as an 'unprecedented crisis.' The threat of communism was seen like terrorism todaythere were these people who were connected to an international network, and if ordered by their masters in Moscow, would immediately blow up the George Washington Bridge. Things are different now, obviously. Terrorists blew up buildings.
"But the question is, are the restrictions on intelligence-gathering so onerous that the NYPD needs to destroy the [Handschu] restrictions?"
(Photo: Julia Xanthos)
So far the city has done almost nothing to answer that question. It has submitted grave warnings to the court of the unparalleled threats posed by today's terrorists. "[T]he counterproductive restrictions imposed on the NYPD by the Handschu Guidelines in this changed world hamper our efforts every day," Cohen claims. But the city has yet to provide a single piece of proof that this claim is true.
At one point the NYPD asked to submit, for the judge's eyes only, secret evidence from Cohen giving "specific factual references . . . neither hypothetical nor theoretical" about how the Handschu agreement has posed a serious obstacle. Last week, it abruptly withdrew that request. When the other side moved to question Cohen directly in a deposition, the city's lawyers asked the judge to excuse him. Haight has yet to decide if he will.
Nor would the city immediately release records to the Voice that might provide some insight into the Handschu agreement's restrictiveness. The 1985 order mandates the compiling of annual reports, "available to public view," that list among various data the number of surveillance requests made by the NYPD and the number approved.
Several past members of the Handschu oversight committee, however, told the Voicethat surveillance requests at the time they served were almost never rejected. Indeed, the Handschu oversight body is hardly structured to be anti-police. The 1985 order mandates that the three-member committee will always include two top police officials and a civilian appointed by the mayor in consultation with the police commissioner. Decisions are made by majority. And police have 48 hours before and 30 days after filing a request to investigate without formal approval.
When Fordham law professor Bruce Green was on the committee from July 1994 to November 1995, requests that were not immediately approved "were not necessarily formally rejected," he recalls. "If discussion raised doubts about whether an investigative request ought to be approved, the police department could go back to the drawing board."
Another former appointee, Harold Tyler, who as Gerald Ford's deputy U.S. attorney general had helped craft restrictions to cure abuses in the FBI's counter-intelligence program, COINTELPRO, says, "The Handschu order was much more limited." The former federal judge explains that the order simply insured "that you couldn't go off on a frolic of your ownlaw enforcement, that is."
When the settlement was first announced, many staunch civil libertarians dismissed it for heavily favoring the police. Its only utility, they argued, was in creating a paper trail that could be produced by the Handschu committee if someone complained after the fact. It is unclear how the ultimate penalty for a violationto be found in contempt by the judgewould impact the NYPD, since no complaint has ever resulted in a contempt ruling. There have been informal reprimands, recommendations for further training, or no repercussion at all.
It is difficult to imagine that the Handschu committee would block any remotely legitimate terrorism investigation. But it could not permit the kind of surveillance police currently covet, which is banned outright by the guidelinesnamely the routine monitoring of people's constitutionally protected activities without the slightest evidence of a crime.
Police intelligence commissioner Cohen has vowed in court papers, "The decision to seek modification of the Handschu Guidelines was not an effort to grab power so that the NYPD could 'spy' on political activity." Yet without the Handschu agreement, there would be no formal mechanism to stop police snoops with a repressive agenda. Certainly times have changed, but history provides a troubling wealth of evidence about how an NYPD, unfettered and unwatched, has used its surveillance powers against dissenters.
The 1971 class-action suit that resulted in the Handschu agreement arose from the famous trial of the Panther 21. Two years after the Black Panthers were jailed in a supposed plot to blow up department stores and police stations, a jury took just 90 minutes to decide they were not guilty on all 156 counts. Undercover police agents, it turned out, had manipulated the defendants with ideas and encouragement and then greatly exaggerated their misdeeds to police superiors.