How far can police go in surveilling ethnic groups that they believe are associated with terrorism?
New York City attorney Peter Farrell argued in court yesterday that the global nature of Islamic terrorism requires police to gather as much information as possible, at times as quickly as possible, in ethnic neighborhoods and mosques—even if there's no prior evidence of a crime plot.
“Prudence dictates, and common sense frankly, that the department find out if violence would ricochet here,” Farrell said during a federal court in which the New York Police Department's (NYPD) post 9-11 counter-terrorism strategy of spying on Muslims in public places such as mosques and at student association meetings was challenged.
The hearing was the latest tiff in a bitter, four-decades-long struggle between the city and civil rights advocates in the case that led to the so-called “Handschu guidelines “— established in 1985 to govern how the NYPD may conduct surveillance and other forms of intelligence-gathering. The case, which started in 1971 as a challenge to surveillance of anti-war activists the year before, has been revisited by civil rights lawyers several times since.
The struggle was reignited following the publication of secret documents by the Associated Press in March 2012, that an NYPD intelligence division — previously known as the Demographics Unit and now called the Zone Assessment Unit — infiltrated, eavesdropped and created dossiers on dozens of mosques, businesses and student groups. The revelations set off a firestorm of controversy.
The stories were referenced in yesterday's hearing by the civil rights team, which filed papers in February seeking to ban police from gathering intelligence information through recordings and eavesdropping on private conversations without prior evidence of a crime, or suspicion of criminal or terrorist intent.
Farrell argued that such techniques were admissible under the Handschu guidelines—as long as police conducted their investigations “on the same terms as the public.” The city has long argued that police can establish an anonymous presence at any public place or event.
Citing the violent protests around the world that followed a Danish newspaper's publication of a cartoon in 2005 that appeared to be disrespectful of the Muslim prophet Muhammad, Farrell argued that events far from New York often require police to gather intelligence and record conversations in ethnic enclaves to gauge the likelihood of similar violence in New York.
Police conducted 4,247 such visits in the past three years, and logged 207 recordings of conversations, Farrell acknowledged. He claimed that most of the information gathered amounted to publicly available “phone book information” about locations.
But Jethro Eisenstein — who along with attorney Paul Chevigny has argued the case since it was first filed in 1971 — countered to Judge Charles Haight that the AP stories suggested police dragnets were more intrusive than the NYPD claimed.
He said Farrell's argument underlined the NYPD's belief that it was empowered to spy on any individual simply based on his or her ethnic identity.
“It means if you breathe in and out and you're Muslim, than the NYPD can keep records on you,” Eisenstein said.
He and the other civil rights lawyers are requesting that police turn over all investigative statements — internal administrative filings that justify certain surveillance operations — related to investigations that targeted Muslims.
But the city has so far offered to reveal only a handful of the statements, arguing that they should have been requested earlier in the case.
Eisenstein said he expects a deeper look would reveal that the Zone Assessment Unit was just one aspect of a “systemic policy” within the NYPD that called for confidential informants to infiltrate Muslim groups.
Both sides cited former confidential informant Shamiur Rahman, who acknowledged in a February court filing that he was paid as much as $1,500 a month to take photos of people worshipping at mosques, to copy cell phone numbers from sign-up sheets for Islamic education classes and to take photos of students at lectures organized by the Muslim Student Association (MSA) at John Jay College.
“The members of the MSA were religious Muslims, and according to my NYPD boss Steve, the NYPD considers being a religious Muslim a terrorism indicator,” Rahman said in the February filing.
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Farrell said Rahman's activities led to at least one legitimate investigation of terrorism, while Eisenstein and other lawyers for the plaintiff countered that the evidence proved police were operating in violation of the Handschu guidelines.
The guidelines are named for Barbara Handschu, the plaintiff in the class-action lawsuit that was filed in 1971. The case originally dealt with a surveillance operation conducted by the NYPD in the late 1960s and included the late political activist Abbie Hoffman among its original plaintiffs.
The case was settled with a consent decree entered in 1985, which was the basis for the NYPD's surveillance guidelines. They establish ground rules that the NYPD must follow in order to justify any covert monitoring of political activity.
In 2002, the NYPD cited the September 11, 2001 terrorist attacks in a request to the court that several Handschu provisions be modified to allow for broader surveillance. Under the original guidelines, police needed “specific information” about a possible crime in order to conduct surveillance; the modifications approved in 2002 allow police to authorize undercover operations when facts “reasonably indicate” a future crime.
Haight, who has presided over the case since 1976, granted the request. Haight said during the hearing yesterday that he sees the case as a continuously evolving debate.
“I’ve come to think of the case as a volcano,” Haight told the court. “Asleep most of the time, emitting the occasional mist of steam, but every now and then blowing up.”
Haight said he will rule on the plaintiffs' request at a later date.
Graham Kates is Deputy Managing Editor of The Crime Report. He welcomes comments from readers. He can be found on Twitter, @GrahamKates.