Blue Wall of Lawlessness

The NYPD has a long-standing reputation for its "excessive" surveillance. Now more than ever.

During the 1970s, an American hero, the late Democratic senator Frank Church of Idaho, exposed the secret illegal operations of the FBI, the CIA, and the National Security Agency.

As head of a Senate committee to study government intelligence activities, Church, with special indignation, condemned the FBI's COINTELPRO surveillance and infiltration of lawful dissenting organizations, thereby becoming my hero because, at the time, I was reporting on the FBI—as it was reporting to J. Edgar Hoover on me.

With so few civics classes in schools around the country during the last quarter-century, I doubt if many Americans know who Frank Church was, let alone are aware of his 1975 pledge to the American people after his hearings on epidemic government lawlessness: "The American people need to be assured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers a threat to the established order."

Democratic Senator Frank Church: Constitutional enemy of FBI, CIA and NSA.
Democratic Senator Frank Church: Constitutional enemy of FBI, CIA and NSA.

If only there were a Frank Church in the Senate now. Pat Leahy, Democratic senator of Vermont, comes close, but the Congressional Democratic leadership—Harry Reid and Nancy Pelosi—is devoid of constitutional passion.

And a Frank Church is sorely needed now in New York City's government. The New York Civil Liberties Union is acutely aware of how Church's pledge to protect the Constitution from its official despoilers has been scorned not only by the CIA, the NSA, and the FBI, but also by the New York City Police Department under the constitutionally challenged Mayor Michael Bloomberg.

I know that schools chancellor Joel Klein is well versed in the Constitution—and after reading Mayor Bloomberg's "Keeping NYers Safe: What the NYPD Critics Forget" in the New York Post last month, I would suggest that Chancellor Klein offer the mayor a remedial course in American constitutional history.

Reacting to Jim Dwyer's revelation in The New York Times of the NYPD's J. Edgar Hoover–like surveillance and infiltration methods, the mayor assured us: "We were not keeping track of political activities. We have no interest in doing that. We had one goal . . . keeping New Yorkers safe . . . and always within the bounds of the law."

Our protector makes no mention that in the police intelligence files obtained by the Times, "the bulk of the reports covered the plans and views of people with no obvious intention of breaking the law." Included were considerable numbers of anti-war groups, church organizations (both New and Old Testament), environmentalists, and opponents of the death penalty. Does the mayor regard them too as "persons of interest?"

In fairness to the mayor, most of his predecessors through the decades could not be mistaken for admirers of James Madison, Thomas Jefferson, or George Mason (who would not sign the 1787 Constitution unless and until a Bill of Rights was added).

The New York Civil Liberties Union's invaluable litigator and constitutional scholar, Arthur Eisenberg—a member of the NYCLU's legal team currently suing city officialdom for failure to keep "within the bounds of the law"—gave me a copy of a March 2004 report by the New York Advisory Committee to the U.S. Commission on Civil Rights. The most telling sentence is: "New York City has a history recognized by the courts of carrying out excessive practices against religious and political organizations." If a trophy were awarded for these excesses, the mayoral co-winners would be Michael Bloomberg and presidential aspirant Rudy Giuliani.

The advisory report to the Commission on Civil Rights goes on to remind New Yorkers that those excessive practices "were restricted in 1985 under the Handschu consent decree," in which the NYCLU was prominently involved.

Handschu has been modified several times since 1985, when it established guidelines for how and when police could surveil constitutionally protected activity. Federal District Court Judge Charles S. Haight, who has been presiding over these uncivil wars between the NYPD and constitutionalists, sighs: "This is the class action eternal."

Among the Handschu issues before him now is unsealing voluminous police files of New Yorkers exercising their First Amendment right to petition the government and their Fourth Amendment right to keep out of government databases for acting as the Founders intended them to.

What the citizenry of New York should keep in mind is that, notwithstanding the various modifications of Handschu restrictions on police surveillance, the basic standard and intention of the 1985 agreement remains. The NYPD's Intelligence Division is prohibited from "commencing an investigation" into the political, ideological, or religious activities of an individual or group unless "specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime."

That's why, when Judge Haight rebuked the NYPD in February for its random videotaping of a demonstration by the Coalition for the Homeless and an International Action Center march from Harlem to Central Park, he told the NYPD Intelligence Division that "there was no reason to suspect or anticipate that unlawful or terrorist activity might occur." Was Mayor Bloomberg listening to the judge?

The final 1975 report of Frank Church's Senate committee on intelligence activities emphasized: "Domestic intelligence activity has threatened and undermined the constitutional rights of Americans to free speech, association, and privacy. It has done so primarily because the Constitutional system for checking abuse of power has not been applied."

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