Police Commissioner Ray Kelly said Monday he has no apologies for an intelligence program that has been monitoring Muslims — in same cases outside the city — and has no plans to let up despite criticisms from lawmakers in New Jersey who are concerned that the department kept tabs on communities in the state.
Kelly said Governor Christ Christie, Senator Robert Menendez and Newark Mayor Cory Booker — all of whom claimed they had no knowledge of the covert surveillance program — were wrong to question the NYPD.
But in none of the internal NYPD material generated from the Newark operation released by the Associated Press was there a description of any threat posed by the Newark locations on the NYPD radars.
Kelly said he and Mayor Michael Bloomberg are committed to doing what is necessary to protect the city, as long as it's lawful.
"The NYPD is trying to stop terrorism in the entire region," Mayor Michael Bloomberg said last week on his weekly WOR-AM radio show. "If we knew of a threat in Newark, we wouldn’t say, 'Oh that’s yours, you worry about it.'”
A question of oversight
Both the FBI and the CIA, which also conduct covert work, are ultimately accountable to Congressional Committees and Executive branch Inspector Generals. There is no equivalent legislative branch oversight for the NYPD's covert program.
Currently, the only external check on the NYPD covert operation are the protocols that were developed as part of the so-called Handschu agreement, which the city signed in 1985. The Handschu settlement, named for one of the plaintiffs, settled a federal lawsuit that went back to the department's covert surveillance and intelligence gathering that targeted leftists in the 1960s.
Those guidelines were loosened after the September 11 attacks. But now, the lawyers who brought the original case against the NYPD are back in court because they believe the department is operating outside even the modified Handschu guideline
Newark Mayor Corey Booker said he had no knowledge of the project -- which culminated in a 60-page dossier – and claimed it smacked of religious profiling. Governor Chris Christie, then the state’s US Attorney, said he had no recollections of the operation.
The Newark police department, sources confirmed, were aware that the NYPD was conducting an investigation on their turf in 2007 though it is unclear how much they knew about the operation.
Lawyers for the city and NYPD say the department's officers can operate outside the city as long as they don't exercise police powers such as conducting searches or making arrests. But there is "no prohibition on traveling to, residing in or investigating within the United States," according to Deputy Commissioner of Legal Affairs Andrew Schaffer.
Acting Within the Law
And all of the department’s intelligence activities were will within the law, according to the department’s deputy commissioner Paul Browne.
"Not only are we meeting existing Constitutional requirements that exist everywhere in the country, but on top of that additional requirements under an agreement (Handscu) here in New York," he said.
But Richard Aborn of the Citizens Crime Commission said the NYPD's decision to covertly watch Muslims in Newark without telling Booker undermined democracy and the basic principle of elected officials having oversight for the policing done with their jurisdiction.
'It might well be that Mayor Booker does not want this taking place in his jurisdiction and he has every right to make that decision even if Mayor Bloomberg and the NYPD would disagree with that," he said. "That is for Mayor Booker to decide."
Eugene O'Donnell, a professor at John Jay, former cop and prosecutor, said that unlike federal law enforcement, local departments have to be sensitive to local political boundaries.
“You don't automatically have jurisdiction just because you are a police person," O'Donnell said. "So anything they are doing they need to be quite sure they are on solid ground and that there is some enabling statute or provision that allows them to go out and do it."
O'Donnell said the question of boundaries does not arise for the Federal Joint Terrorism Task Force in New York, which includes more than 100 NYPD detectives that are deputized as U.S. Marshalls,
As it turns out the NYPD's covert surveilling of Muslims in Newark is something NJ law enforcement would have been prohibited from doing.
Attorney Peter Harvey, who served as New Jersey's Attorney General from 2003 and 2006, helped draft two executive orders signed by then-Governor Richard Codey in 2005 that permitted both New Jersey and NYPD police officers to ride the commuter lines across the state lines retaining their powers. It was a response to the 2005 London terrorist attacks, he said.
But the kind of surveillance the NYPD employed in Newark, he said, can undermine and undo police community relationships.
"How can we say we want to engage with you and then covertly surveil them? You burn them as a source," he said.
As attorney general, Harvey issued a directive (PDF) precluding New Jersey law enforcement and counter-terrorism officers from engaging in profiling based on someone's religious principles.
"It had to be conduct-driven," he said