By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
Under the order of a federal court, the police department on Friday proposed a set of internal guidelines for spying on New Yorkers who are not suspected of breaking the law. It was NYPD intelligence commissioner David Cohen's promise to create rules for self-monitoring that sealed the deal for U.S. district court judge Charles Haight, when he recently agreed to loose police from a 1985 court order that regulates the surveillance of constitutionally protected activity.
The old spying rules emerged from a 1971 class action suit in which activists accused police of routinely violating their privacy and misusing covertly collected information. Dubbed the Handschu agreement after one of the plaintiffs, the eventual settlement between the NYPD and activists applied to surveillance of constitutionally protected activities like political meetings, religious gatherings, and protests. It barred police from starting dossiers, planting undercover agents, photographing protesters, and reviewing membership lists without any indication of a crime. And for accountability, approved political investigations were confined to a single police unit.
The Handschu restrictions "hamper our efforts every day," Cohen, a former CIA official and one of the Bloomberg administration's marquee anti-terrorism hires, told the court last year. Most burdensome of all: the requirement that any agency receiving intelligence on political targets from the NYPD also abide by the Handschu agreement.
The proposed internal NYPD guidelines, modeled on the FBI's 2002 investigative guidelines, have yet to be approved by Judge Haight. But the city's attorney, Gail Donoghue, told the Voice that the court cannot enforce specific guidelines anyway; it can only require that guidelines exist. She said that, once the judge approves the guidelines, NYPD intelligence gatherers will "automatically" begin significant information-sharing with the feds.
And so the mammoth NYPD has succeeded in joining the nation's growing network of powerful government spies. It is a network emboldened by post-September 11 decisions of Congress and the president, and one that could gain even greater autonomy and secrecy if the Justice Department's recently leaked proposal, nicknamed Patriot Act II, became law. This early draft includes even more clandestine and expansive spying plans, including the targeting of personal e-mail and financial data. Whether this expanded surveillance is necessary to preserve national security, or whether it risks creating an unwieldy secret police, New Yorkers now have an opportunity to scrutinize the process from the front row.
Just going by the numbers, the lifting of Handschu standards from the NYPD vastly expands the nation's overall surveillance capabilities. The NYPD is the largest law enforcement body in the nation and possibly the world, numbering some 40,000 strong, with three times as many armed employees as the FBI. The majority of cops will no doubt continue to fight traditional crimes, like assault and burglary. But as FBI director Robert Mueller put it to the Senate Intelligence Committee two weeks ago, local police have become "important force multipliers" for federal snoops.
The number of Joint Terrorism Task Forces (JTTFs)which are commanded by the Justice Department and combine federal, state, and local agentsleaped from 35 across the nation before September 11, 2001, to 66 since. The Bush administration wishes to make raw intelligence from the FBI, CIA, and partner agencies available to the new Department of Homeland Security. The NYPD's Cohen told the court of his wish "to work in close partnership not only with federal government but with every state, thousands of municipalities, and other countries as well." He stated, "[The] entire resources of the NYPD must be available to conduct investigations into political activity and intelligence related issues."
Says Kate Martin, director of the Center for National Security Studies (CNSS) in Washington, D.C., "[Federal efforts] were limited before, because of local police limitations. Now, the foot soldiers are going to be local police."
And a lot of New Yorkers might sleep the better for it. After all, the more foot soldiers there areand the city's cops are formidable troopsthe greater the chances of nabbing would-be terrorists.
At the same time, more spies mean more chances for the abuse of privacy and other rights and for costly mistakes.
The USA Patriot Act, hastily passed by Congress in the immediate aftermath of the terrorist attacks, made it easier for the feds to engage in covert and intrusive surveillance of ordinary Americans. (City attorney Donoghue said that the NYPD is "not bound" by the Patriot Act, but it is unclear whether the NYPD is empowered by it. She said, "The spirit of the Patriot Act certainly calls for cooperation between federal and local agencies." Legal experts say distinctions between local and federal powers are difficult to make, because the relationships in anti-terrorism efforts are blurry.)
Vincent Cannistraro, CIA counter-terrorism chief under the first president Bush, tells the Voice that he foresees "a draconian era" in which Americans are "guilty until proven innocent." He worries about the increased coupling of arrest-driven agencieslike the FBI and NYPDwith organizations, like the CIA, intended solely to gather and analyze information. "When [intelligence] is supposed to lead to some kind of prosecution," he says, there is incentive and opportunity for agents to misuse information.
Adds former CIA Middle East field operative Robert Baer, once a lauded agent and now an outspoken agency critic, "I'd be really worried about [misuse of surveillance]. Intelligence is so politicized now. Once you start getting into intelligence, you can indict anybody for anything. You can take information out of context."