New York, NY —A federal judge is weighing arguments about how much freedom the New York Police Department should have to monitor the activities of political groups. Current law requires the NYPD to prove there's reason to suspect a crime before keeping records about individuals or sending out an undercover. WNYC's Marianne McCune reports on the latest struggle to balance civil liberties with combating terrorism.
For 17 years now, the NYPD has not been allowed to investigate political groups unless there's reason to suspect some crime is imminent. That means when someone is lambasting the government or the status quo or this or that policy, police can't take pictures, record sounds, videotape, keep notes or go undercover unless they've convinced a three member panel that there's good reason to do so. Now police officials are calling that rule a daunting and outdated obstacle to investigating terrorists. Police Commissioner Ray Kelly.
Kelly: It doesn't make sense in this day and age to have restrictions that were put in place in 1985 for real or imagined violations that happened in the late 1960s.
In the 1970s, a congressional committee put out a report documenting a series of real cases where federal law enforcement agencies abused the constitutional rights of political activists. They sometimes used undercover agents to disrupt the activities of groups they saw as threatening, such as the Black Panthers.
H. Rap Brown: Violence is a part of America's culture. It is as American as Cherry Pie.
Although the NYPD was not cited in the congressional reports, there were similar complaints against it. In one instance, an undercover officer infiltrated a group of Black Panthers in New York. In a 1970 interview on Pacifica Radio, one of their attorneys said the undercover encouraged the Panthers to rob a bank and even supplied the getaway car.
Conrad Lynn: He drove the car. He plotted the route. All of this was testified by him on the stand. It seemed to us, from the very beginning, his job was to trap the Panthers.
Conrad Lynn's client was found not guilty of all counts except weapons possession. Soon after, a group of Panthers and other sixties radicals brought a class action suit against the city. That suit never went to trial - instead, both sides eventually agreed to a set of guidelines restricting police surveillance of political groups. The Handschu Guidelines, named for one of the plaintiff's lawyers, are what the city now wants to do away with. Officials are warning that terrorism has changed the world -- and New York University Law Professor Paul Chevigny agrees.
Chevigny: The question is has it changed in way which necessitates infiltrating organizations for purely political reasons when no crime is suspected.
Chevigny is one of the attorneys who originally negotiated the Handschu settlement.
Chevigny: It seems to me the answer is No.' It's always No!' It doesn't become Yes' because we're afraid of terrorists!
But in an affidavit now before the courts, the NYPD's Deputy Commissioner for Intelligence David Cohen argues mosques and Islamic institutes are using free speech protections to shield terrorists from law enforcement scrutiny. Terrorists prepare attacks by collecting information, raising funds, and recruiting followers - activities that are not criminal on their face. The former CIA spymaster argues that persuading the Handschu Authority there's reason to suspect a crime sets too high a bar. But Paul Chevigny says the Handschu restraints are weaker than the department claims.
Chevigny: I mean if it's suspicious, genuinely suspicious, then it's good investigation to follow up on it. That's the point.
The panel that has to approve an investigation is made up of two NYPD officials and one Mayoral appointee. Several former members of the Authority tell WNYC they never had a sense their work hampered criminal investigations. John Timoney served on the panel as the NYPD's First Deputy and says he can't remember turning down a request.
Timoney: They very seldom came forward with frivolous stuff, there was usually some substance to it. So you would grant them 30 days to go take a look-see, see if there was anything there.
Timoney says he believes a tip that terrorist activities might be taking place at some mosque could constitute adequate reason, under Handschu, to begin investigating. On the other hand, he says, in the mid-90s when he was NYPD, terrorism wasn't so high on the agenda.
Timoney: If Ray Kelly is looking for some breathing room, if you will, then my suspicion is there may be some legitimate reason for it.
One problem, Timoney says, is officers don't understand the guidelines. He says word around the department seemed to be, if it's political, don't even think about investigating.
Timoney: There's a tendency probably not to go forward on cases they probably should go forward on because they figure, Eh, it's going to be rejected.'
The guidelines also require a lot of paper work. One of the NYPD's arguments for undoing them is that it's the only department in the country still constrained by law on the issue. Chicago just got the courts to lift similar restrictions. But other departments do have internal rules protecting political groups. In Philadelphia, the Police Commissioner has to personally authorize such an investigation. The FBI also has internal guidelines which, although significantly loosened since September 11th are still more restrictive than the freedom the NYPD is requesting.
Chevigny: So then you ask, why is it they want to get rid of the Guidelines?
Chevigny: Well what the Guidelines do is they constitute a paper trail. In other words you have to apply to the Handschu Authority and there has to be a record of what happened and then you have to reapply later on. So I'm afraid that the only rational explanation for getting rid of the Handschu Guidelines is they do not want records to be kept of what they're doing.
Kelly: That's simply not true.
Police Commissioner Kelly says there will still be records of all investigations.
Kelly: Any investigation that we enter into now is done with the approval of a supervisor and the supervisory structure that is in place.
Beyond what the department's given in writing to the judge, police and city officials have not spoken openly about what kind of investigating they hope to do without the constraints of the guidelines. Commissioner Kelly says he doesn't want to get into specific examples.
Kelly: Every example we give may surface a particular constituency that will argue against it.
Deputy Commissioner David Cohen stipulates in his affidavit that 80% of all mosques in the U.S. are home to extremists - which points to one constituency that might object. And attorney and activist Roger Wareham believes surveillance could easily extend well beyond mosques to muffle political expression of all kinds.
Wareham: It has a chilling effect in terms of people even wanting to come out to demonstrations if they know their presence is going to end up in a police file some place. You have no control over what happens to that.
Wareham himself has been investigated by police. And in the eighties, he joined others in accusing the department of reviving a so-called black desk' to monitor radical black New Yorkers. A review found the department had adequate reason to suspect criminal activity among those it was monitoring and violated Handschu only by keeping records of radio interviews with black leaders across the city. While Wareham argues the review goes to show the Guidelines already allow too much freedom, the city says this country's Constitution offers enough protection from invasive surveillance, and Handschu goes too far. The class action attorneys who helped shape the guidelines along with the New York Civil Liberties Union have until November 5th to file their written response.
For WNYC, I'm Marianne McCune