12 February 2003. Thanks to D.
New York Newsday, February 12, 2003
Terrorism Threat Causes Judge to Broaden Police Powers
By Leonard Levitt
February 11, 2003, 9:38 PM EST
In another diminution of citizens' rights since the Sept. 11 attacks, a federal
judge has eliminated virtually all the restrictions of the Police Department's
Handschu commission, a body that limited the department in conducting
investigations into lawful political activity.
The decision, by Senior District Court Judge Charles Haight, comes a day after another federal judge, Barbara Jones, barred demonstrators from parading past the United Nations while protesting the impending war against Iraq.
In his 39-page decision, Haight agreed with the Police Department that the Handshu guidelines, established in 1985, "limit the effective investigation of terrorism."
Haight based his decision largely on the testimony of Deputy Commissioner of Intelligence David Cohen, a former CIA official who joined the department last year.
There is no disputing Deputy Commissioner Cohen's assertion that since the formulation of the Handschu Guidelines in 1985, [T]he world has undergone remarkable changes, not only in terms of new threats we face but also in the ways we communicate and the technology we now use and are [sic] used by those who seek to harm us, " Haight wrote.
Specifically, Haight's ruling expands the department's investigatory powers, allowing all branches to investigate suspected political activity. Under the Handschu guidelines, such investigations were limited to one unit, the Public Security Section.
Cohen had argued that "the entire resources of the NYPD must be available to conduct investigations into political activity and intelligence related issues."
In addition, Haight's ruling modifies departmental constraints that there must be a "criminal predicate" the suspicion of unlawful activity to justify political surveillance or infiltration. The department will now be bound by FBI guidelines, Haight ruled, which are less restrictive.
Cohen had argued that a criminal predicate was irrelevant as terrorists acted within the law until the terrorist act itself.
In his ruling, Haight wrote that "no basis is discernible for doubting Deputy Commissioner Cohen's testimony that the guidelines prevent the NYPD from investigating seemingly neutral leads which may provide links to planned actions.' "
Some such leads may even come from infiltrating places of worship. Cohen had pointed out that the seeds of terrorism were often suspected of being sown in Muslim mosques. In his ruling, Haight noted that "the convicted architect of the 1993 World Trade Center bombing was the imam of a mosque.
"It is a sad reality that such use was made of a place of worship dedicated to Islam, one of the world's great religions, but a reality nonetheless," he wrote "The significant fact is that as the 1993 World Trade Center bombing and its surrounding circumstances demonstrate, terrorists can and do use political religious and social organizations to plan and promote acts of terror."
Franklin Siegel, an attorney who argued for keeping the guidelines, said of Haight's decision, "Our children will wonder how Congress and public officials could so quickly dispose of fundamental protections."
The New York Times, February 12, 2003
By BENJAMIN WEISER
A federal judge in Manhattan, citing what he called "fundamental changes in the threats to public security," agreed to modify a longstanding court order that had restricted the New York Police Department's ability to conduct surveillance of political groups.
The police had argued that the restrictions were making it hard to look into terrorism, because they required evidence of a crime to initiate an investigation. That requirement is being relaxed, to allow greater flexibility for the police. The original rules were imposed as part of a 1985 consent decree, the Handschu agreement, which was named for the first listed plaintiff in a 1971 lawsuit over harassment of political advocacy groups by the department's so-called Red Squad.
But the judge, Charles S. Haight Jr. of Federal District Court, left in place a three-member oversight board that can investigate specific complaints in which people contend that police investigations into their political activities violate their rights. "The Constitution's protections are unchanging," Judge Haight wrote, "but the nature of public peril can change with dramatic speed, as recent events show." The guidelines, he said, "addressed different perils in a different time."
The judge said he had reached his decision that the police were entitled to a change in the rules "mindful of the crucial importance of preserving both individual freedoms and public safety, and balancing the legitimate demands of those two goals."
City and police officials strongly praised the ruling, while lawyers for the group that won the original restrictions said they were disappointed and wanted to see how the city would implement the judge's ruling.
Police Commissioner Raymond W. Kelly, echoing the judge's comments, said: "We live in a different, more dangerous time than when the consent decree was approved in 1985. This ruling removes restrictions from a bygone era, and will allow us to more effectively carry out counterterrorism investigations."
Jethro M. Eisenstein, one of the lawyers for the plaintiffs in the long-running case, called the decision "a major, major loss."
"What's wrong with this decision," Mr. Eisenstein said, "is that it eliminates a process that became part of the culture of the Police Department. The city, in its effort to get out from under Handschu, portrayed the rules as much more onerous than they were."
The judge made clear that a central factor in his decision was the Police Department's willingness late in the case to adopt a version of F.B.I. surveillance guidelines issued last year by Attorney General John Ashcroft in the aftermath of the terror attacks.
Judge Haight noted that the F.B.I.'s guidelines ran 24 pages, typed and single-spaced, while the city's first proposal was just over two double-spaced pages, "the most prominent verb being `deleted.' "
He also cited an affidavit filed in the case last month by David Cohen, the department's deputy commissioner for intelligence and a former senior official of the C.I.A. "In my view," Mr. Cohen wrote, "the N.Y.P.D. would be able to investigate terrorism under the attorney general's guidelines."
Mr. Cohen had provided the judge with a detailed affidavit laying out the "changed circumstances" that warranted the changes. He asserted, for example, that American mosques were largely radicalized, and had been used, along with Islamic institutes, "to shield the work of terrorists from law enforcement scrutiny by taking advantage of restrictions on the investigation of First Amendment activity."
Judge Haight said he believed that the continuing existence of the oversight panel, consisting of two senior police officials and a civilian appointed by the mayor, would act as a deterrent to illegal police conduct.
But lawyers for the plaintiffs opposed modifying the original agreement, saying the changes would be fundamental. Mr. Eisenstein cited, for example, one original requirement that officers articulate in writing the basis for investigating a person involved in political activity.
"What was so valuable about Handschu was the investigative discipline," Mr. Eisenstein said. "The process of going through that day in and day out was always, in our view, an incredibly important part."
Gail Donoghue, special assistant to the city's corporation counsel, said officers were hampered by the requirements. "There were viable leads that we felt we should have investigated that we could not," she said. "People in the city should be very happy about this."