The enemy could be anywhere. So the authorities say they must look everywhere. Since the September 11 terrorist attacks a vast network of government agencies, from federal to local, has amassed extraordinary powers to inspect what ordinary Americans say, do, and believe in the course of their daily lives.
As the nation's largest law enforcement agency—nearly twice the size of the Federal Bureau of Investigation—the New York City Police Department could be the biggest Big Brother of all. Yet it faces quite a stumbling block. A long-standing federal order, imposed after a landmark lawsuit revealed rampant surveillance abuses of political activists, prevents the NYPD from spying on whomever it wants.
Now the NYPD is fighting to gut the order and get its old powers back.
Police currently cannot investigate people who are exercising their constitutional rights, no matter how unpopular the cause, unless there is some indication of a crime. Street protesters are the most obvious beneficiaries. But also covered are those who pray, attend community meetings, write editorials, or express their views in almost any other way.
The police department insists it needs broader authority to hunt terrorists, who may masquerade as regular law-abiding folks until the moment they strike. But if police win this bid, the followers of "extremist Muslim fundamentalism" they have mentioned won't be the only ones in their sights. Everyone becomes fair game.
The NYPD relinquished its spying autonomy as a result of a 1971 class-action suit filed by a diverse group of activists who accused police of using dossiers and undercover agents to chill and punish lawful dissent. Officials eventually admitted as much. In a historic settlement over a decade later, police promised to heed certain guidelines and be monitored by an oversight body when investigating constitutionally protected activity. Federal Judge Charles Haight signed the settlement—known as the Handschu agreement after one of the plaintiffs—into effect in 1985.
This September the Bloomberg administration submitted a request to Haight that he strike nearly every aspect of the Handschu agreement—especially the core requirement that police establish some trace of criminal activity before surveilling someone. The NYPD's intelligence commissioner, former CIA operations director David Cohen, argues in court papers, "It is difficult to imagine a state of affairs more outdated by the events of September 11th." The Handschu agreement, he warns, "dangerously limits the ability of the NYPD to protect the people . . . in this changed world."
But setting investigators loose on law-abiding people will hardly protect them, counters Paul Chevigny, a New York University law professor and part of the group of lawyers who filed the 1971 class-action suit and are back battling the city again. "If the police win," he warns, civil liberties will slide "back to the 1950s. Police will have the power to infiltrate and monitor groups just because they're curious. They'll be able to keep dossiers on people and disseminate the information to anyone they want, whether it hurts somebody or not."
The sides have traded paper arguments and will face off in court in the next month or so. One point on which they agree: the outcome could impact every New Yorker.
The police department declined repeated requests from the Voice to discuss its surveillance bid, expressing reluctance to comment on pending litigation. David Cohen, the department's head of intelligence, did not respond to a letter seeking an interview about his vision for a safer city.
But the NYPD's court papers trumpet a clear theme: Meeting the mammoth task of preventing more terrorism will require infiltrating innocent lives. "Terrorists engage in a prolonged period of often lawful activity in preparation for their criminal acts. They escape detection by blending into American society. They may own homes, live in communities with families, belong to religious or social organizations and attend educational institutions," Cohen maintains.
The department wishes—without having to establish any evidence of a crime—to record names from organizations' mailing lists and petitions, photograph and videotape protesters, and plant undercover agents inside groups and events, according to its court filings. Among the requirements police want wiped from the Handschu agreement: routine oversight; paper records of surveillance; internal reviews of investigations; and publicly available summaries of basic information, such as the number of new probes opened in a year.
Another key target for extinction is the rule that all political investigations be confined to one unit, the Public Security Section. Meant to simplify police accountability, the requirement now poses a critical manpower problem, the city claims. "The NYPD cannot leave it to federal agencies alone to investigate terrorist activity," argues Cohen in his papers.
Indeed, the NYPD's potential reach as a spy network is enormous. The department employs approximately 53,000 people, with some 37,500 armed officers—more than triple the 11,400 noncivilian agents who work nationwide for the FBI, which has approximately 27,800 employees in total and operates a New York bureau of about 1500. The Immigration and Naturalization Service staffs about 36,000. (The Central Intelligence Agency's size is confidential.)
Former mayor Edward Koch, for one, is convinced that circumstances warrant a more powerful police. A fierce critic of political surveillance in his congressional days, his was the first mayoralty to fall under the 1985 Handschu agreement. "Anytime you have cops monitoring, it means that someone who would like to be here [at a protest] . . . is going to think twice. That's not what the United States is all about. I think it's an outrage that the federal government is collecting these political files . . . and that the city government is doing it. We gotta end it," he said in 1970. September 11 changed his mind.
"I believe a greater liberty has to be given to law enforcement," he says now. "I believe absolutely there will be occasions that go too far. That's the necessary cost of protecting the public in these times where we're dealing with terrorism."
But "terrorism is nothing new," says Chevigny. The lawyers opposing the city point out that police have long known New York City is a prime target for horrific attacks. They acknowledge that September 11 was uniquely tragic but deny that it created a reason to grant police free access to lawful people's private information. They would consider amending the Handschu agreement only to reflect technological changes in interagency information-sharing.
Says Ellen Schrecker, a leading historian of American anti-Communism who teaches at Yeshiva University, "During the McCarthy era, almost everything was labeled as an 'unprecedented crisis.' The threat of communism was seen like terrorism today—there were these people who were connected to an international network, and if ordered by their masters in Moscow, would immediately blow up the George Washington Bridge. Things are different now, obviously. Terrorists blew up buildings.
"But the question is, are the restrictions on intelligence-gathering so onerous that the NYPD needs to destroy the [Handschu] restrictions?"
So far the city has done almost nothing to answer that question. It has submitted grave warnings to the court of the unparalleled threats posed by today's terrorists. "[T]he counterproductive restrictions imposed on the NYPD by the Handschu Guidelines in this changed world hamper our efforts every day," Cohen claims. But the city has yet to provide a single piece of proof that this claim is true.
At one point the NYPD asked to submit, for the judge's eyes only, secret evidence from Cohen giving "specific factual references . . . neither hypothetical nor theoretical" about how the Handschu agreement has posed a serious obstacle. Last week, it abruptly withdrew that request. When the other side moved to question Cohen directly in a deposition, the city's lawyers asked the judge to excuse him. Haight has yet to decide if he will.
Nor would the city immediately release records to the Voice that might provide some insight into the Handschu agreement's restrictiveness. The 1985 order mandates the compiling of annual reports, "available to public view," that list among various data the number of surveillance requests made by the NYPD and the number approved.
Several past members of the Handschu oversight committee, however, told the Voice that surveillance requests at the time they served were almost never rejected. Indeed, the Handschu oversight body is hardly structured to be anti-police. The 1985 order mandates that the three-member committee will always include two top police officials and a civilian appointed by the mayor in consultation with the police commissioner. Decisions are made by majority. And police have 48 hours before and 30 days after filing a request to investigate without formal approval.
When Fordham law professor Bruce Green was on the committee from July 1994 to November 1995, requests that were not immediately approved "were not necessarily formally rejected," he recalls. "If discussion raised doubts about whether an investigative request ought to be approved, the police department could go back to the drawing board."
Another former appointee, Harold Tyler, who as Gerald Ford's deputy U.S. attorney general had helped craft restrictions to cure abuses in the FBI's counter-intelligence program, COINTELPRO, says, "The Handschu order was much more limited." The former federal judge explains that the order simply insured "that you couldn't go off on a frolic of your own—law enforcement, that is."
When the settlement was first announced, many staunch civil libertarians dismissed it for heavily favoring the police. Its only utility, they argued, was in creating a paper trail that could be produced by the Handschu committee if someone complained after the fact. It is unclear how the ultimate penalty for a violation—to be found in contempt by the judge—would impact the NYPD, since no complaint has ever resulted in a contempt ruling. There have been informal reprimands, recommendations for further training, or no repercussion at all.
It is difficult to imagine that the Handschu committee would block any remotely legitimate terrorism investigation. But it could not permit the kind of surveillance police currently covet, which is banned outright by the guidelines—namely the routine monitoring of people's constitutionally protected activities without the slightest evidence of a crime.
Police intelligence commissioner Cohen has vowed in court papers, "The decision to seek modification of the Handschu Guidelines was not an effort to grab power so that the NYPD could 'spy' on political activity." Yet without the Handschu agreement, there would be no formal mechanism to stop police snoops with a repressive agenda. Certainly times have changed, but history provides a troubling wealth of evidence about how an NYPD, unfettered and unwatched, has used its surveillance powers against dissenters.
The 1971 class-action suit that resulted in the Handschu agreement arose from the famous trial of the Panther 21. Two years after the Black Panthers were jailed in a supposed plot to blow up department stores and police stations, a jury took just 90 minutes to decide they were not guilty on all 156 counts. Undercover police agents, it turned out, had manipulated the defendants with ideas and encouragement and then greatly exaggerated their misdeeds to police superiors.
"I don't think any of us had a clue until we were brought on trial that we were infiltrated to the extent that we were," recalls Shaba Om, one of the 21 and an original plaintiff in the Handschu case. "They had agents deep undercover, whom I counted as my closest friends. I was facing 375 consecutive years in prison. But I got nothing. The terrorists and murderers they described didn't exist."
Radicals were not the only ones spied on, Om recalls. "They were surveilling church groups, civic groups, social organizations." Indeed, police reported during the Handschu case that their intelligence files dated back to 1904 and included some 1 million records on over 200,000 individuals and groups. The trove was so vast, an official informed the court in 1981, that it would take "approximately 41.5 man-years" to organize the files for public viewing, as the plaintiffs' lawyers were asking at the time.
In a 1971 affidavit in the Handschu case, then police commissioner Patrick Murphy admitted to "infiltrations and informers, and telephone wiretapping, electronic eavesdropping, surreptitious recording of conversations, covert photography of individuals attending demonstrations, and recording speeches at demonstrations," according to the judge's written summary. Murphy said targets did not have to be linked with a crime but could merely be political "malcontents."
The malcontents of the time included Vietnam War protesters, gay rights activists, health and housing advocates, education reform groups, and civil rights activists. Among them were Steven Fischler and his friends, NYU film students in the early 1970s. They belonged to such groups as the anarchist "Transcendental Students" and were regulars at protests. But their real problems with the NYPD Red Squad, as the political intelligence unit was nicknamed then, began when they started shooting a film called Red Squad about police surveillance.
"In some respects, we were outsmarting them," Fischler remembers. The students used wireless microphones and hidden cameras, for instance, to record plainclothes police interrogating them. As the Voice's Nat Hentoff reported in June 1971, officers visited one student's parents unannounced and questioned neighbors. Records Fischler later obtained show that agents questioned their professors. His message for students today: "Police now might be after some Middle Eastern organization you might not be a member of, but who knows in the future where they might go." Fischler and fellow student filmmaker Joel Sucher signed on as original plaintiffs in the Handschu case.
Aggressive tactics were far from uncommon. Red Squad detectives would question the teachers, neighbors, landlords, family members, and employers of their targets. The NYPD intelligence unit sometimes supplied political information to public and private employers, costing applicants jobs.
At the city Department of Welfare in the 1950s, police acted even more directly to punish dissent, says Joshua Freeman, a labor historian at Queens College. Considering the agency to be "a hotbed of unionism," the "militantly anti-Communist" commissioner, Raymond Hilliard, "sent in 24 rookie patrolmen posing as workers to be spies. They just set out to smash this thing." By the end of Hilliard's tenure, Freeman says, 191 workers had lost their jobs. "The context was McCarthyism, but the impact was really to delay unionization."
By the 1970s, between the operations of COINTELPRO and the NYPD's BOSS—or Bureau of Special Services, as the political intelligence unit was officially titled at one point—New York activist groups were spooked and crumbling.
Iris Morales joined the Young Lords Party, a Puerto Rican rights network, in 1969, after years of organizing tenants where she lived in East Harlem. The mix of global anti-colonization work and local community service—free breakfast and youth education, for instance—drew her in. But as undercover police contact with the group seemed to grow, "the organization started to disintegrate," she says. The paranoia and fingerpointing among friends exhausted her and eventually pushed her away.
The Handschu Agreement was not a perfect cure. There have been numerous complaints of violations since 1985. Still, activists have benefited, if only in enjoying an official standard by which to assert their rights.
In the order's sole contempt proceeding in court, ultimately decided in the NYPD's favor, police admitted to taping black activists who spoke on radio station WLIB in 1987. They claimed to be listening for event planning information about protests, but it turned out they had mostly recorded speakers' political views. Police had not asked permission from the Handschu committee. The NYPD's actions were found to be "inappropriate," but not in formal violation of the court decree. Still the complaint wrung an apology from the police commissioner and generated wide media exposure of what investigators had inappropriately done to some of the city's most prominent blacks.
A complaint about improper photography at rallies for Cuba in April 1990 similarly yielded no punishment of cops. Neither did a complaint 10 years later about visual surveillance of protesters after the February 2000 acquittal of the cops who shot Amadou Diallo to death. Each case, however, gave the activists and more broadly the Handschu guidelines a platform in the press—alleged violations typically make the news—and ended in recommendations for improved police procedure.
But the Handschu rules are most useful as a tool for protesters on the ground, says Leslie Brody, a National Lawyers Guild attorney who has supervised dozens of New York demonstrations. "The police know what it is, and when we talk to them in the street, they know we're watching them." At an anti-police-brutality march several years ago, she says, she got cops who were wrongly videotaping protesters to stop and actually hand her the cassette by citing the Handschu order.
Such skirmishes seem quaint compared to the kind of surveillance David Cohen proposes. The city has never seen a commissioner of intelligence like him, a 35-year veteran of the CIA whose career specialty was international counterintelligence and whose greatest personal disclosure to date has been his age (60, as of August 2002). His much-touted appointment by Police Commissioner Raymond Kelly was intended literally to save the city. If the NYPD succeeds in ending Handschu oversight of police surveillance, then Cohen will call the shots.
But his CIA experience is precisely what troubles Chevigny, one of the lawyers opposing the NYPD. "The CIA is dedicated to collecting intelligence purely for the sake of collecting intelligence," says Chevigny, pointing out that conforming with the U.S. Constitution is not a routine concern for the largely international agency.
Moreover, Chevigny and colleagues claim Cohen's court statements rely on sources known for promoting biased views about Muslims. They maintain that he lifted language in his affidavit directly from a published essay, "The Danger Within: Militant Islam in America," by New York Post columnist and think tank pundit Daniel Pipes, who espouses conservative—some say anti-Arab—politics regarding the Middle East. Pipes founded the McCarthy-esque Web site campuswatch.org, which encourages the monitoring of college professors and others who criticize U.S. policy in the Middle East and posts their names. Another source Cohen cites as reporting that "extremist ideology has taken over more than 80 percent" of U.S. mosques is actually untrustworthy and ideologically motivated himself, opposing lawyers argue.
Politics can be a tremendous factor in police intelligence decisions, judging from history old and new. In past decades police extensively surveilled a wide spectrum of lawful, but antiestablishment, dissent. And contemporary police surveillance, according to what has been made public, most often targets people of color, critics of police misconduct, and leftists.
Even well-intentioned agents can make mistakes. A number of activists and attorneys showed the Voice old surveillance files they had obtained from the NYPD that have basic facts wrong. A former Black Panther's file lists people as associates of his when they were not. Morales, the former Young Lord, has records that show investigators had misidentified her home address.
In 1987, when he was executive director of the New York Civil Liberties Union, lawyer Norman Siegel obtained documents through a Handschu complaint that show not only that undercover cops infiltrated half a dozen meetings of civil rights activists, but also that they were not reliably observant. One memo identifies Siegel as a representative of the "Chinese Progressive Association." Says Siegel, "Up until that time I had joked about this stuff, saying, 'I don't care if the cops keep a scrapbook on me. I can give it to my grandchildren and they'll know granddaddy was a troublemaker.' But sometimes they don't get it right. They may not get the nuances, and in your dossier there's information on you that's inaccurate."
Inaccuracies today could have disastrous results. Police have argued they need greater latitude in surveillance so they can send undercover informants into mosques and Muslim groups to root out terrorists. Such information-gathering has high stakes in a time when the U.S. president has the power—and proven willingness—unilaterally to label U.S. citizens "enemy combatants," based on secret information, and order them imprisoned indefinitely. And the White House recently said that the president can also unilaterally authorize the CIA to assassinate U.S. citizens if they are deemed to be agents of Al Qaeda.
A more predictable consequence, should the NYPD succeed in erasing restrictions on spying, is the icy effect it will have on legal protest. "It's been hard enough to bring out community members who've been affected" by post-September 11 policies targeting Middle Eastern immigrants, says Monami Maulik of Desis Rising Up and Moving, a Queens-based group organizing for South Asian immigrant rights. If police can legitimately investigate protesters, "it's going to get much more difficult for them to go public," she says, claiming that two immigrant rights activists she knows have already been detained by the INS.
More mainstream activists would have reason to fear as well, says Michael Ratner, vice president of the Center for Constitutional Rights. As a student organizer at Columbia University in the 1960s, he recalls, "If I wanted to get a wider circle of people out to a protest, I wasn't going to get the law students if there was a Red Squad there. We had one guy who was kept from the bar for a year. And if you were applying for a municipal job, there wasn't going to be a wall between the Red Squad and the municipal offices."
The price of uncontrolled police surveillance is not just stifled activism but the losses in social progress that activism achieves, says Morales, the former Young Lord. "It wasn't just the Lords" who lost ground, she says, but "a whole movement that was beginning to be able to impact policy in a lot of areas—from civil rights to war to power for women."
ONE OF THE BLOCKBUSTER CASES OF Red Squad abuse involved Robert Collier, a Black Panther who weathered two sensational trials in the 1960s during which extensive police infiltration was revealed. But it wasn't until a still later trial that Collier's life became an enduring illustration of how freewheeling police surveillance can skewer the innocent.
Collier had moved to the Lower East Side and embraced health care advocacy, earning a spot on the board of Bellevue Hospital and the esteem of such figures as the president of the city's public hospital system. In 1973, however, he was arrested on weapons possession and conspiracy charges. It turned out an undercover cop, Detective Oswaldo Alvarez, had been tailing Collier for two years.
"He was associated with a friend of mine," Collier recently recalled. "He appeared to be a community person who was distressed. I tried to get him a job, get him to go back to school. He would come and have dinner with me. He had free rein in my house."
During the trial it emerged that Alvarez had spied not only on Collier but on countless neighbors and colleagues Collier had contact with. Alvarez never had any criminal evidence to begin surveillance on Collier. And even after he had filed upward of 500 reports, his NYPD superiors still had to manufacture information to obtain the search warrant that cemented Collier's arrest.
"[P]olice officials falsely informed the press that defendant was the head of a named terrorist group," noted New York Supreme Court Judge Peter McQuillan in his 1975 ruling. He dismissed all the charges against Collier and issued a scathing denouncement of the NYPD that would be cited into the future, by the judge who signed the Handschu order as well.
"Unwarranted police surveillance . . . intimidates, demoralizes, and frightens the community into silence," McQuillan wrote. "Arbitrary and protracted police surveillance of community groups is the hallmark of every closed society. . . . A good faith claim by a police agency to control crime in an efficient and effective manner does not justify every infiltration effort. . . . You need not be an overheated civil libertarian to fear limitless police surveillance and infiltration."
Reached this month in retirement in Florida, McQuillan said of the NYPD's current effort to shed oversight, "Obviously, there are terrorists about. But how can these proposed changes help the city? I'm skeptical. Here we go again."