08 January 2003
The New York City police department is asking a federal judge for permission to spy on political groups without first proving there's reason to suspect a crime. Many police departments follow such guidelines because, in the past, federal and local law enforcement abused spying privileges. Now, in the name of combating terrorism, some police departments are looking to get out from under such constraints.
The current head of the New York City police department's intelligence division is a former CIA spymaster, a man so secretive he's refused even to give reporters his age, much less an interview. It's David Cohen's belief, according to affidavits now before a federal judge, that the NYPD can't adequately protect the city from terrorism under the constraints of a longstanding order. The order says police cannot videotape demonstrations, keep records about activists, or send an undercover officer to a political meeting unless they convince two department officials they have specific information that leads them to suspect criminal activity.
Police Commissioner Ray Kelly says in this age of terrorism, the decree is outdated. "We think it prevents us from doing things we want to do to make certain the city is as safe as it possibly can be," said the commissioner.
In court papers, Mr. Cohen argues that terrorists are "taking advantage of restrictions on the investigation of First Amendment activity." They shield themselves from scrutiny in mosques and Islamic institutes, where they raise money, recruit members and collect their own intelligence - all legal undertakings, but also all efforts that could be part of a terrorist plot. The city is arguing that it shouldn't have to give evidence of such a plot before it snoops.
The attorneys who originally negotiated the surveillance guidelines say free speech is at risk. One of them, Jethro Eisenstein, says the guidelines are flexible enough to permit necessary investigations, and he says the NYPD has failed to offer any example of an investigation it has wanted to do, but couldn't.
"They're coming in to ask that things be changed, they have to prove there's a reason for that," stressed Mr. Eisenstein. "And proof is not the same as saying, 'You just have to trust me, it's different now.'"
The restrictions on the NYPD and many laws and guidelines like it across the country arose out of several decades during which federal and local law enforcement abused its powers. In the 1950s, for example, so-called Red Squads snooped on left wing activists, then passed lists of those they identified as "communist sympathizers" to the FBI and Congress. In Chicago, police spied on anyone on the wrong side of City Hall.
"When the police investigate an organization for purely political purposes and not because they think a crime is suspected, they're doing a totally different job from ordinary policing, says New York University law professor Paul Chevigny, who is another of the attorneys arguing to preserve the NYPD's guidelines.
"They are becoming a state security agency that is keeping records on the people," added Mr. Chevigny.
But as the federal government solicits more and more help in detecting terrorists, Cliff Karchmer of the Police Executive Research Forum says police are rethinking their roles. "They want to gather intelligence, they want to sift it, they want to collate it, they want to analyze it," said Mr. Karchmer.
But they're confused about how to go about that, he says. Many got out of the intelligence collecting business altogether, because that was the message they were getting from various laws and guidelines and advocacy groups.
"You can't, you shouldn't, this is wrong, you can't, you can't, you can't," was the message they were getting, said Mr. Karchmer. As a result, he said, "they're not sure what it is that's legitimate. And I think that one movement you're seeing now among police departments is they're coming together, trying to get some definition perhaps from the Justice Department, perhaps from police associations, about 'could you give us a guideline, a model policy?'"
Two years ago in Chicago, a federal court allowed police relief from most restrictions of a decree similar to New York's. Seattle is among other cities weighing options for local law enforcement.
But not all police departments are trying to get more leeway. San Francisco Inspector Jeff Lindberg of the city's special investigations division says police there are comfortable having to show evidence of a crime before monitoring political and religious groups. "It probably causes us to be a little more reactionary rather than proactive," said Inspector Lindberg, "but we can still do the job with the means we have to work with."
But in New York, the department's Deputy Commissioner of Intelligence, David Cohen, wants to be as proactive as possible. As he writes in court papers, "to cling to the criminal activity standard is to be blind to how terrorism has worked." The federal judge deciding whether or not to grant the NYPD new freedoms will hear oral arguments at the end of this month.