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New York: The Police and the Protesters

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Christopher Anderson/Magnum Photos
Police arresting an Occupy Wall Street protester, New York City, November 17, 2011

The violent rousting of occupiers from Zuccotti Park on November 15 marked the start of a crackdown on credentialed journalists as well. During and after the eviction, police, in the words of Michael Powell, “arrested, punched, kicked and used metal barriers to ram reporters and photographers covering the Occupy Wall Street protests.” At a demonstration on December 17 at Duarte Park, I saw a white-shirted commander ordering his subordinates to rough up reporters. Ryan Devereaux, a reporter covering the demonstration for the TV program Democracy Now!, had an officer thrust a fist into his throat, using him as “a de facto battering ram to push back protesters.”6 The idea, apparently, was to remove reporters from the scene of action. At a New Year’s Eve celebration in Zuccotti Park an officer shoved me and threatened me with arrest after noticing that I was recording the scene in my notebook. Photographers and reporters were strong-armed away as police swarmed in on protesters. Some were arrested.

A person familiar with the inner workings of the police department told me that when political demonstrations become violent, it’s bad for commanding officers’ careers. It stands to reason, then, that when beating protesters they would try to banish reporters. Reports of journalists being mistreated and arrested, buried in a newspaper’s back pages, are preferable to photos, videos, and detailed descriptions of police brutality that embarrass the department and damage its public image. The penalty for preventing journalists from doing their job is usually little more than a judge’s reproach.

What has been most disturbing, however, is strong evidence that Occupy organizers have been infiltrated, spied upon, and aggressively harassed by the counterterrorism unit of the department’s Intelligence Division. Protesters, in effect, have been treated as part of a terrorist continuum that includes violent jihadists and sympathizers with al-Qaeda, though police well know that Occupy activists are not terrorists in any sense of the word.

2.

From 1909 until the 1980s, the NYPD’s Intelligence Division—“Intel”—functioned as a kind of extra-official Red Squad. By 1970, it had compiled dossiers on more than 1.2 million New Yorkers, a “master intelligence index” that it shared with private investigators, academic officials, prospective employers, and civic licensing agencies such as the New York Bar Association, where an applicant for admission might be “questioned extensively about his membership in an anti-war organization.” In 1973, the police department announced the deletion of 980,000 people from the index, many of them no longer alive.7

In 1971, sixteen political organizations brought a class-action suit against the city, arguing that Intel’s unprovoked surveillance, searches, seizures, and interrogations, as well as its use of infiltrators and informants, had a “chilling effect” on the plaintiffs’ ability to exercise their rights to freedom of speech and assembly. It took fourteen years to arrive at a ruling, a set of guidelines, really, called the Handschu Decree, named after the lawyer for several of the plaintiffs. These restricted police from investigating members of political groups without first having “specific information” of their being involved (or preparing to be involved) in criminal activity.

Martin Stolar, one of the attorneys who argued the case, explained the Handschu guidelines to me like this: “If it’s purely political activity, you can’t investigate. If it’s purely criminal activity, go ahead, it’s your job. Where there’s a mix of political and criminal activity, get a warrant with specific information and present it to the Handschu Authority.”

The authority consisted of two NYPD officials and a civilian appointed by the mayor. It fell to them to approve a warrant, and this was the main safeguard against abuse—a bureaucrat had to sign off, there would be a paper trail, and officials could be deposed and held accountable for illegal actions. With investigations no longer protected by secrecy, the Intelligence Division became relatively dormant; after 1985, it existed largely to chauffeur around visiting diplomats and dignitaries.8

After the attacks on the World Trade Center, the legal safeguards that protected certain civil rights were deemed by many to be one of the main causes of America’s vulnerability. Circumstances had changed and so, it was argued, should the rules. In January 2002, Police Commissioner Raymond Kelly hired David Cohen, the CIA’s former head of covert operations—the agency’s so-called “top spy”—to rebuild Intel. One of Cohen’s first moves was to challenge the Handschu Decree in court, arguing that it impeded the NYPD’s counterterrorism efforts. “To wait for an indication of crime before investigating is to wait for too long,” Cohen told the court.9 In February 2003, Charles S. Haight Jr., the district judge who presided over Handschu, agreed. The Handschu authority was abolished and the standard to initiate investigations went from the requirement for specific evidence of criminal activity to “information which indicated the possibility of criminal activity” (italics mine)—a much vaguer guideline that effectively removed prior restrictions.

Although the judge expressly intended the modifications to ease the way for the investigation of suspected terrorists, they were immediately employed to target lawful political protesters as well. With the new guidelines every New Yorker was fair game. Four days after the ruling, 350 protesters were arrested during a large-scale demonstration against the then-imminent invasion of Iraq. Many of those arrested were interrogated about where they went to school, their views on Israel, and what they had been doing on September 11, 2001 (almost all were charged with disorderly conduct, which normally involves no more than a summons to appear in court). Their answers, as the New York ACLU found, were recorded in a “Demonstration Debriefing Form” and later entered into a data bank.10

Similar practices were used on hundreds of demonstrators arrested during the Republican National Convention in 2004. A case currently before US District Judge Richard Sullivan claims that the police illegally trapped and mass-arrested protesters, then held them for long detentions “in miserable conditions on a West Side pier.”11 Separately, the courts have reprimanded police for videotaping protesters at the 2004 convention. But no judge has provided a ruling that would prevent such electronic surveillance from taking place in the future.

The surveillance by Intel stretches beyond the five boroughs of New York. In April 2008, Intel sent an undercover officer to New Orleans to monitor a gathering of liberal groups known as the People’s Summit. The summit included environmental groups, gay activists, and advocates of the rights of immigrants. Their main concern was to repeal NAFTA. Participants were flagged in a memo addressed to Intel’s chief, David Cohen. Among those whose names were put on file was a labor organizer for nannies.12

It is impossible to know the extent of Intel’s database or how it is being used. The Intelligence Division is so covert that, according to a police source, “even its organizational chart is too sensitive to publish.”13 Leaked documents are scarce—the one about the People’s Summit was obtained by reporters from the Associated Press and published as part of its excellent series of articles about NYPD’s spying program. (The series won the 2012 Pulitzer Prize for investigative reporting.) The very existence of the spying program had been unknown outside the department before the Associated Press articles appeared. Full discovery will probably require a class-action suit similar to the suit of 1971 that resulted in the original Handschu Decree, something that could take decades to occur, if it happens at all.

In any event, it isn’t a simple matter. New York needs a competent counterterrorist unit. The city is the nation’s primary terrorist target: police have reasonably identified about two hundred potential targets that include the United Nations, tunnels, bridges, airports, museums, sports stadiums, places of worship, a variety of corporate headquarters and towers, and the city’s vast subway system. The cost in civil liberties of large-scale spying has to be measured against the city’s need to protect itself. And as with all public policy, the central question is—or should be—whether, collectively, we lose more than we gain. What limits do we wish to establish for the reasonable suppression of suspected terrorists? And who should have the power to define what a suspected terrorist is?

As of now, the definition appears to reside entirely with Ray Kelly and David Cohen. Intel operates in what policymakers call an oversight void, accountable to no elected officials (not even behind closed committee room doors) with the exception of Mayor Bloomberg, who thus far has lent the spying program his steadfast support. “Everything the New York City Police Department has done is appropriate,” said the mayor after the Associated Press’s exposé was published. “It is legal. It is constitutional. We cannot let our guard down.”14

To remedy this (and other controversial practices, such as the stop-and-frisk policy, whose constitutionality has been challenged and certified as a class-action suit in federal court), two dozen New York City Council members proposed, in June, the creation of an inspector general’s office to “conduct independent reviews of the department’s policies, practices, programs and operations.”15 If approved, the proposal would not handcuff the department’s activities. The FBI has an inspector general and, furthermore, must report to eight separate Senate and House committees that oversee its funding and operations. This doesn’t eradicate civil rights abuses, but it puts something of a check on them. The FBI is prohibited, for instance, from assigning undercover agents to cases where there’s no evidence of a crime.

The current situation is that one of the country’s most active and extensive spying agencies, with, according to Kelly, “2,000 officers, including about a dozen overseas, assigned to counterterrorism,”16 operates without any objective outside mechanism of constraint.

3.

An interesting paradox arose after the attacks of September 11, 2001. New York, which had long seemed to represent America to the outside world and a foreign country to the rest of America, now was embraced by the hinterland as its emblem of patriotism, its front line. But along with many others I was struck by the ways that the city itself, with some of its civil service departments battered and its skittish disaster-expecting populace, turned uncharacteristically inward—a kind of closing of ranks that made longtime New Yorkers feel more separate from the rest of the country than ever. New York’s firemen and police died in the rescue, not agents from the FBI. The city’s citizens were the targets; the economic and psychological aftershocks were borne locally, for the most part. When it came to defending itself against future attacks, New York appeared to regard itself as a sovereign state, reluctant to share responsibility for its security with any outside partner or force.

Complaints about Intel’s disinclination to cooperate with the Joint Terrorist Task Force (JTTF), staffed by both NYPD detectives and FBI agents, have been numerous. Tensions with the FBI are often more territorial than philosophical—rival agencies stepping on each other’s toes—but there have also been misgivings among federal agents about the aggressiveness and legality of Intel’s tactics.

  1. 6

    Powell, “The Rules on News Coverage Are Clear, But The Police Keep Pushing.” 

  2. 7

    Testimony: Police Surveillance of Political Activity—The History and Current State of the Handschu Decree,” nyclu.org. 

  3. 8

    NYPD CIA Anti-Terror Operations Conducted in Secret for Years,” The Huffington Post, August 24, 2011. 

  4. 9

    NYPD CIA Anti-Terror Operations Conducted in Secret for Years.” 

  5. 10

    Intelligence Division: Yet Again, Bending the Rules,” NYPD Confidential, May 7, 2012; see also “Testimony: Police Surveillance of Political Activity—The History and Current State of the Handschu Decree.” 

  6. 11

    Colin Moynihan, “ City Seeks to Dismiss False-Arrest Suits Stemming from 2004 Republican Convention,” The New York Times, May 31, 2012. 

  7. 12

    New Orleans ‘Summit’ Among Liberal Gathering Infiltrated by New York Police,” The Times-Picayune, March 23, 2012. 

  8. 13

    “New Orleans ‘Summit’ Among Liberal Gathering Infiltrated by New York Police.” 

  9. 14

    Nick Pinto, “ Mayor Says NYPD’s Muslim Surveillance Complies with Handschu Decree,” The Village Voice, February 24, 2012. 

  10. 15

    David W. Chen, “ An Independent Monitor for the Police Is Proposed,” The New York Times, June 12, 2012. 

  11. 16

    Henry Goldman, “ New York City Retains $151.6 Million in Homeland Security Terror Funding,” Bloomberg, February 17, 2012. 

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