Security or Suppression?
Early this year the NYPD gained greater power to investigate political activity, citing terrorism concerns. The department convinced a federal judge that its security needs in these times of unprecedented danger outweigh most of the rights protections in a key 1985 ban on police probes of lawful activism. But as civil liberties advocates feared, the most notable police actions since have had seemingly little to do with terrorism prevention and everything to do with regulatingcritics say, repressingprotest.
Tension between activists and police has swelled with each demonstration. Yet so far neither side has outright called the series of skirmishes what it is shaping up to be: a struggle over the very right to protest in the streets of New York. The battle unfolds as potentially the biggest showdown of all, the 2004 Republican National Convention, looms.
One major clash erupted over the NYPD's "Criminal Intelligence Section Demonstration Debriefing Form," a one-page template that officers used to question hundreds of arrested protesters about their politics, beginning with the massive February 15 anti-war rally. Activists were quizzed on, among other topics, their group membership, views on the Middle East, and whereabouts on September 11, 2001, according to advocates. Answers were entered into a computer database. First Amendment lawyers learned of the practice in early April and called it invasive and chilling, generating much publicity.
Yet perhaps because police promised to abandon the form and databasealthough not political questioning in generaldetails of the form and the motives behind it were never fully examined. A closer look shows that police were sloppy at best with sensitive information about people not suspected of any serious crime. At worst, these data were marked for entry into a major network used for high-level law enforcement.
The form bears the stamp of the NYPD Intelligence Division and also a graphic that has been described only as "a federal seal." That seal belongs to the New York/New Jersey High Intensity Drug Trafficking Area (NY/NJ HIDTA), a division of a federal agency. A drug agency seems at first glance out of place on the political questionnaire. But NY/NJ HIDTA happens to run a vast criminal information database accessible to some 600 different law enforcement agencies.
NY/NJ HIDTA's Regional Intelligence Center (RIC) database, according to the agency's Web site, provides "one-stop shopping" for law enforcement agents, with "access to virtually all of the law enforcement and commercial computer records. Inquiries can be run on, among other things, persons, vehicles, businesses, addresses, and telephone numbers."
The NYPD political questionnaire provides space for writing in a "RIC Control #" and the name of the officer requesting or entering data.
Still, both agencies rushed to deny that protesters' information had been stored in this massive database. A spokesperson for NY/NJ HIDTA director Chauncey Parker, who is also Governor George Pataki's appointed director of criminal justice, said, "He did not authorize the document, nor did he have knowledge of it." Following the Voice's inquiry, the representative said, "he spoke to NYPD officials about the form to express concerns."
Top police spokesperson Deputy Commissioner Michael O'Looney also insisted, "The information was not entered into the RIC database." He called the form the unsupervised "mistake" of a low-level intelligence officer and said, "You're reading too much into this. I would think we'd be getting some credit here for taking fast action in ending [the form's] use once it was brought to the commissioner's attention." He said all paper and computer records related to the form had been destroyed, at the request of the New York Civil Liberties Union.
At an April 10 press conference Police Commissioner Raymond Kelly called the use of the form "a good-faith effort on the part of some people in the department to help. . . . These types of things can happen in a big organization."
He said such political probes would in the future require the approval of the NYPD's head of intelligence, Deputy Commissioner David Cohen. (When the Voice inquired last week, O'Looney downgraded the rank needed for approval to deputy inspector.)
NYCLU lawyer Christopher Dunn was skeptical about the rogue cop explanation. "The Intelligence Division is a very tightly run organization. It is just inconceivable that a high-level official didn't know about this," he said. But even if the NYPD is to be taken at its word, he pointed out, "that raises all sorts of questions about the control they have over their personnel." Indeed, the form conjured for some the past era of political policing when some cop spies, known as the Red Squad, wrongly investigated Black Panthers, Vietnam war protesters, and other leftists. Some abuses were system-wide, but others occurred in isolated instances.
In a letter to the city last week, Dunn complained that protesters were arrested without being told their Miranda rights and "interrogated about their political activities" without the presence of a lawyer even at times when one was requested. Some activists have complained of being questioned in isolated jail cells and being deprived of food and water. They said they were led to believe they would be treated better if they cooperated.
But O'Looney insisted that such questioning is a "voluntary" process, which people are free to resist, with queries "asked of people under arrest, not protesters obeying the law." The department has never said that the questioning was improper, only that, as O'Looney said, "the information being asked was not relevant to the department's needs."
In answering criticism about the "debriefing form," police never mentioned any suspicions of terrorism, even though such fears have been the department's overriding justification for greater political investigation power. Similarly, although the NYPD argued security concerns in forbidding an anti-war march past the United Nations on February 15, it conceded having no specific information about terrorist threats when asked in court. And when people recently were arrested for convening on a midtown sidewalk to protest a prominent Defense Department contractor, police also failed to cite any terrorism-related worries.
The stricter policing of protesters seems to be happening for its own sake. Kelly explained the unauthorized political questioning as a well-meant attempt "to help us determine what resources are needed to police certain demonstrations in the future." O'Looney said, "The department will continue to ask arrestees questions regarding the name of their organization" to plan for "future events."
With the war in Iraq apparently fading, only one upcoming political issue holds the potential to galvanize hundreds of thousands to take to the streets: the arrival next summer of President George W. Bush to showcase his re-election bid in post-September 11 New York. Asked whether the 2004 GOP convention was among the "future events" for which the NYPD was gathering intelligence, O'Looney said, "We are only in the committee stage of looking at security measures."
But over a year in advance is not at all soon to begin the mammoth security preparations the convention will require, according to John Timoney, who was first deputy commissioner of the NYPD during the 1992 Democratic convention here and then chief of police during the 2000 GOP convention in Philadelphia. Now chief of police in Miami, he told the Voice last week, "I guarantee you they've already started planning, getting intelligence of a general nature." In 1992, he said, "I began planning for that literally a year ahead of time. And that was for a Democratic convention, with no sitting president."
In advance work for the 2000 GOP convention, Timoney sparked criticism from civil libertarians for conducting surveillance at non-public activist meetings and photographing protesters not just in his city but also at protests in Seattle and New York. His officers monitored protest plans on the Internet and arrested activist leaderssome said as a preemptive tactic to prevent them from directing protests. Philadelphia police had the help of thousands of agents from the FBI, Secret Service, and other police forces.
Even so, protesters managed to vandalize police cars, deface City Hall, and, in the thousands, throng major intersections downtown to block traffic. The Republican mayor and governor of New York are unlikely to permit such blemishes to mar the patriotic backdrop that the national GOP envisaged when picking this unlikely town for its pep rally. The convention will culminate with a Bush speech on September 2 at Madison Square Garden, just days before the third anniversary of the 2001 terrorist attacks.
Within one week of the January 6 announcement that the Republican convention was coming to New York, "we told the NYPD about wanting to talk about how protests are going to be policed," said Dunn of the NYCLU. The organization's former director, Norman Siegel, negotiated with police on behalf of protesters in 1992. He said last week that police moves so far this year signal a harsher approach in 2004. For instance, the arresting of protesters who crowd sidewalks without first issuing a warning to disperse is a pattern he called "unprecedented."
Asked whether convention preparation would include what many consider to be the most invasive tactic, undercover infiltration of activist groups, O'Looney said, "The answer is no." But this year the city won the right to do precisely that, when it got the 1985 surveillance bancalled the Handschu agreement after one of many activist plaintiffs who sued the city in 1971 for unconstitutional surveillanceloosened by citing terrorism concerns.
The NYCLU has demanded that police issue written guidelines for political questioning. Such internal rules already exist, as compelled by the judge who eased the 1985 surveillance ban, but activists' lawyers in that case want the regulations spelled out in an enforceable court order. They have also demanded that the city preserve any remaining records on the "debriefing form" for future litigation, and the city has agreed.
In the meantime, Timoney anticipated high tension over the big political standoff to come, given partisan clashes, post-September 11 anxiety about security, and the daunting physics of cramming 50,000 Republicans into midtown Manhattan. The most volatile factor, he laughed: "It's New York."
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