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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."
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. citizensone, Jose Padilla, arrested in Chicago after extensive government monitoringbeyond 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."