Following a fresh round of revelations about the New York Police Department’s surveillance of Muslim’s, Mayor Mike Bloomberg went on the air today to offer a full-throated defense of the NYPD’s activities.
“Everything the New York City Police Department has done is appropriate,” the mayor said in a radio interview this morning. “It is legal. It is constitutional.
Bloomberg and the NYPD have come under increasing fire this week after an ongoing Associated Press investigation revealed last Saturday that members of the NYPD’s Intelligence Division had conducted undercover surveillance on Muslim student organizations throughout the northeast. That news prompted a strong denunciation from the president of Yale University, where some of the surveillance took place, and an equally strong if somewhat muddled rebuttal from the Mayor.
The controversy deepened Wednesday when the AP revealed that the NYPD has also been conducting surveillance on mosques and Muslim-owned restaurants in Long Island and across state lines in Newark, in many cases recording names and license plates of those in attendance. That news led to condemnation from Newark Mayor Corey Booker and New Jersey Governor Chris Christie.
In his radio interview today, Bloomberg insisted the police haven’t done anything wrong.
“They are permitted to travel beyond the borders of NYC to investigate cases,” he said. “They can look at websites they can watch television to detect unlawful activities or where there might be unlawful activities to get leads. We don’t target individuals based on race or religion. We follows leads and we are consistent, I think, with the guidelines resulting from the Handschu federal court decision.”
The Handschu decree stems from a 1971 lawsuit by a variety of political activists who had been subjected to NYPD surveillance. In 1985, a federal judge resolved the case by instituting a set of binding guidelines: the police could only conduct surveillance on political groups if it suspected unlawful activity, and even then it had to get a warrant from a special commission.
After the September 11 attacks, police sought and won significant relaxation of the Handschu decree’s restrictions.
But Arthur Eisenberg, the legal director of the New York Civil Liberties Union, says an important protection remains on the books: “The Handschu decree does permit NYPD intelligence to go to public places the way any member of the public can,” Eisenberg told the Voice today, “but it prohibits the retention of information collected at public places and the maintenance of dossiers unless there is unlawful activity taking place.”
As the AP investigation has made clear, the NYPD has certainly retaining information. A secret 2006 Intelligence Division report to the Commissioner contained detailed accounts of what mosque attendees had to say about the controversial Danish cartoons depicting the prophet Mohammed. Though none of the subjects suggested any criminal activity, their remarks were logged and their names retained.
Peter Farrell, Senior Counsel for the NYC Law Department, argued today that the surveillance isn’t covered by the consent decree:
“The Handschu Guidelines only apply to investigations of political activity. They authorize the NYPD to follow leads when the facts show a possibility of unlawful conduct, and to conduct investigations when the facts show an indication that an unlawful act will be committed. The Guidelines also make clear that the NYPD may visit public places and go online — just as the general public does. In addition, there is no constitutional prohibition against a police department collecting publicly available information.”
The NYCLU’s Eisenberg thinks Handschu’s protection of political activity should be understood to extend as well to other activity, like attending a mosque.
“That distinction is thin to the vanishing point,” Eisenberg said today. “What we’re dealing with is expressive activity protected by the First Amendment.”
By that standard, Eisenberg said, the NYPD had clearly violated the Handschu decree: “The most obvious problem was created by them going to a mosque and taking down license numbers of individuals and those attending the mosque, without any basis to believe that there was unlawful activity taking place.” he said.
Only the class counsel in the original Handschu case has the legal standing to petition for enforcement of the Hanschu agreement, Eisenberg said. When news of the NYPD’s surveillance program first broke last fall, he and the four other lawyers who make up the class counsel asked the presiding judge for discovery to learn more about the program. Following this week’s disclosures, the lawyers are meeting this weekend to discuss how to expand that inquiry.
“This crosses the line,” Eisenberg said. “The new reports support our concern that there may well have been widespread violations of Handschu.”
This post has been updated to include a statement by the New York City Law Department.