The Force Multipliers

NYPD to Bring Nationwide Spying Effort Home

A recent report by the General Accounting Office, Congress's nonpartisan oversight agency, gave some indication of the government's zeal to prosecute in the name of fighting terrorism. The office reviewed 288 convictions labeled "terrorism-related" by federal prosecutors and found that nearly half of them in fact were not terrorism-related.

What worries liberals and conservatives alike is the Bush administration's reluctance to submit to checks and balances on its daunting domestic police powers. Attorney General John Ashcroft has resisted Congress's demands that his Justice Department account for how it has used the vast new powers it gained under the original Patriot Act. And according to the Senate Judiciary Committee's ranking Democrat, Patrick Leahy, the Justice Department was developing its 120-page draft of Patriot Act II even as it flatly denied considering another anti-terrorism bill.

"Secrecy doesn't veil just abuses, it hides ineffectiveness," says Martin of CNSS, which has sued the Justice Department for concealing the identities of immigrants detained after September 11. "There is an enormous impulse to gather any information at all about anyone. The FBI might have 'persons of interest' they want to check out. They check them out and find nothing, but they keep the file anyway. And the topic of that file is 'terrorism investigation.' Then, they put the information in a database. The ability of ordinary people to make sure the data is at all correct is currently not there at all."

The consequences of government screw-ups or abuses based on surveillance have already been grim and could get grimmer under the potential Patriot Act II. Already, upwards of 1000 immigrants have been secretly detained, and many others deported by the Justice Department. The military is holding two U.S. citizens—one, Jose Padilla, arrested in Chicago after extensive government monitoring—beyond the reach of lawyers and family, indefinitely. The reported Patriot Act II proposes secret arrests, detention, and even the removal of citizenship from Americans, if there is association with a group the government labels as "terrorist."

The threshold for beginning the covert surveillance that might lead to such consequences is already low under the first Patriot Act. The possible Patriot Act II would lower it further. According to an American Civil Liberties Union analysis, "[The proposal] would permit electronic surveillance of a local activist who was preparing a report on human rights for London-based Amnesty International, a 'foreign political organization,' even if the activist was not engaged in any violation of law."

Meanwhile, agents who engaged in wrongful surveillance in the interest of national security would enjoy immunity from lawsuits, as would nongovernment snoops like the cable guy, in an echo of the defeated Operation TIPS.

Given the national context, critics of police surveillance find cold comfort in the NYPD's pledge to the judge that it will monitor itself. "The evisceration of the [1985 rules] is chilling," says New York Civil Liberties Union director Donna Lieberman. She warns of a "return to the bad old days of police dossiers on law-abiding critics of government, infiltration and disruption of lawful political activity and organizations, and intimidation and punishment of dissent."

The judge is not expected to issue his final order shrinking the Handschu rules until he and both parties have discussed the proposed NYPD guidelines, possibly in the next couple of weeks. The lawyers for the activists are considering an appeal. But a section of the Justice Department's leaked Patriot Act II, if it were actually proposed and passed, would invalidate such federal court decrees anyway.

For lovers of constitutional rights, the circumstances might inspire panic. But cool heads recommend vigilance instead. Lieberman says the NYCLU plans to lobby the City Council to create legislation that restores the civil liberties protections contained in the original Handschu rules. And D.C.-watchers caution against fretting over only the most extreme elements of Patriot Act II, warning that the Bush administration is likely to drop those items and sail the rest right through Congress.

At minimum, former CIA official Cannistraro says, the American public needs to reflect a moment before sacrificing its long-standing rights. "Most people think that, if you're not a Muslim, you shouldn't be thinking a lot about this," he says, "but you should. It does affect you directly, because it lowers the standards for all of our rights. It will be you."

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