Surveillance: NYPD Retreats, FBI Takes Over

With the ghost of J. Edgar Hoover returning, Ray Kelly yields some ground to the NYCLU

During the 2004 Republican National Convention in New York, Ray Kelly's NYPD suspended the First Amendment by videotaping many of the protests against the Bush-Cheney regime. In November 2005, Kelly, wanting to retain authority for the NYPD's all-seeing eye, issued Interim Order 47, which allowed broad surveillance of us for just about any reason.

The New York Civil Liberties Union has persistently challenged in court not only this omnivorous surveillance but also Kelly's determination to keep the results indefinitely.

Quietly, without informing the NYCLU or the court, Kelly rescinded Interim Order 47 on April 13, 2007. Attorney Jethro Eisenstein, working with the NYCLU on this and other NYPD revisions of the Bill of Rights, calls Kelly's partial acknowledgment of the First Amendment's existence "a significant victory," saying, "New Yorkers should have the right to engage in political protest without fear that their image will appear in a police videotape or their photo will end up in a dossier at the NYPD headquarters." Arthur Eisenberg, the NYCLU's legal director, adds: "The police department's commitment to the casual creation of police dossiers on individuals and groups must end."

Now, thanks to the NYCLU, Commissioner Kelly has issued Interim Order 22, which limits video or photographic surveillance to training, crowd control (whatever that turns out to mean), or a time when "it reasonably appears that unlawful conduct is about to occur, is occurring, or has occurred during the demonstration."

Neither Commissioner Kelly nor his champion, Mayor Bloomberg, has expressed any contrition over the NYPD's routine use of Interim Order 47. Reminding me of how George W. Bush used to respond to charges of his regime's disdain for the Bill of Rights, Celeste Koeleveld, a senior lawyer in the Corporation Counsel's office, assures us New Yorkers in a November 11 Times story that "the police department does not engage in unlawful political surveillance."

Police Commissioner Stop-and-Frisk Kelly was, for a short time, on President Obama's short list to direct the Department of Homeland Security, but isn't going to make it. Its present head, Michael Chertoff—both now and in his former role as head of the Justice Department's criminal division—has regarded individual civil liberties as needlessly obstructive to his mission. Ray Kelly would have been no better.

The press coverage of Kelly's retreat here from Interim Order 47 has omitted an essential warning that New Yorkers should not be reassured that they can now safely exercise their constitutional rights to assemble in protest against the government.

On December 1, during the Bush-Cheney Swat Team's last raids on the Bill of Rights, Attorney General Michael Mukasey and FBI Director Robert Mueller will bring New York and the rest of the nation right back to the dark regime of J. Edgar Hoover. Under newly expanded FBI "Guidelines for Domestic Operations," its 12,000 agents will have the power to open warrantless investigations ("threat assessments," in FBI lingo) on individuals and organizations—without any specific evidence of their wrongdoing.

News of this impending return of J. Edgar Hoover's threat to expect "an FBI agent behind every mailbox" has been circulating since at least June, but I'm not aware of any mention during the Obama-McCain campaign of this executive imperial rule that did not require Congressional approval.

"Though the FBI and the Department of Justice claim they are doing what they must to meet the law-enforcement needs of the future, they are doomed to repeat the abuses of the past," says Caroline Fredrickson, the admirably plain-spoken director of the ACLU's D.C. legislative office. "Since, under these guidelines, a generalized 'threat' is enough to begin an investigation, the FBI will be given carte blanche to begin surveillance without factual evidence. The standard of suspicion is so low, and the predicate for investigation so flimsy, that it's inevitable we will all become suspects," Fredrickson adds.

Moreover, since these guidelines do not prohibit using a "suspect's" race or religion in a "threat assessment," they will—in Fredrickson's words—"make everyone of a certain color or creed a suspect. That stands our traditional presumption of innocence on its head."

President Obama, by executive order, can begin to try to make that presumption of innocence stand erect. If he doesn't act, and soon, the FBI databases, interconnecting with those of the other intelligence agencies, will be rapidly expanding. FBI agents, the Wall Street Journal noted on September 13, "would be able to conduct 'pretext interviews' [with any of us] without identifying themselves as FBI agents" as well as "assign informants to seek information [by infiltrating lawful groups] without high-level approval."

And dig this, written by Eric Lichtblau, The New York Times's penetrating guardian of the Bill of Rights: "It would allow an agent . . . to pursue an anonymous tip about terrorism by conducting an undercover interview or watching someone in a public place." And if you're Muslim, FBI agents will be more likely to ask your acquaintances or travel agents about your plans or past activities. And your choice of reading or Internet preferences won't be out of bounds, either.

These Mukasey-Mueller guidelines are part of a concerted attempt by the Bush administration to insure the continuance of its "national security" imperatives even after it leaves. And it will be the Obama administration's job to dig out secret executive orders in the intricately fine print seeded in intelligence and other legislation that Bush has signed to implant tracking devices in Americans who are "persons of interest."

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