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April 23, 2012
The Associated Press’s exposé of the NYPD’s widespread and legally questionable spying on Muslims, deservedly and importantly, received a Pulitzer Prize — despite the caterwauling of the Daily News and the New York Post, which derided the series as a “year-long, non-stop hit job.”
The AP described how the police, with the help of a former top CIA official, created a surveillance program that monitored Muslim neighborhoods, businesses, schools, and mosques, despite little or no evidence that they were linked to terrorism or any other crime.
The articles appear to belie the department’s justification for the spying, which has become the mantra of Police Commissioner Ray Kelly and Mayor Michael Bloomberg: “We only follow leads.”
The articles also caught police spokesman Paul Browne in yet another lie: “There is no such thing as the Demographics Unit.” Documents provided to the AP and NYPD Confidential, specifically identified the Intelligence Division’s Demographics Unit as having mapped and profiled various Muslim communities.
The AP’s articles also underscored the lack of trust and cooperation between the NYPD’s spying efforts and the FBI’s counter-terrorism work.
And they confirmed what this column has reported for the past decade: dangers result from a lack of civilian oversight over the NYPD’s spying program, turning its Intelligence Division into a mini-CIA.
The AP’s articles also raised the still unanswered question of whether the NYPD’s spying program has broken the law and violated the department’s longstanding Handschu guidelines, which had limited the department’s surveillance of lawful activity.
Citing security concerns stemming from the 9/11 attack, Senior United States District Judge Charles S. Haight Jr. in February 2003 eliminated virtually all Handschu restrictions, such as needing a “criminal predicate” — the suspicion of unlawful activity — in order to legally monitor or infiltrate a group.
Haight agreed with NYPD’s Intelligence head, former CIA official David Cohen, who testified that a criminal predicate was irrelevant because terrorists had acted lawfully before launching their attack.
Cohen also argued that important plot-foiling leads may come from infiltrating mosques. In his ruling, Haight noted that “the convicted architect of the 1993 World Trade Center bombing [the blind sheik Omar Abdel Rahman, currently serving a life sentence in federal prison] was the imam of a mosque.”
But by August 2003, Haight said that he had lost confidence in the NYPD and restored the Handschu restrictions he had lifted just six months before.
Haight had lost faith in the NYPD because, on Feb. 15th, the police improperly interrogated hundreds of arrested anti-war protestors about their friends and political beliefs, entering their responses on a “demonstration debriefing” form.
Kelly and Cohen denied knowing about the debriefing forms, and covered up by forcing the retirement of the Intelligence Division’s top uniformed chief. Haight saw through it and called their claims “a two-level display of operational ignorance on the part of the NYPD’s highest officials.”
He even evoked the famous scene in the movie “Casablanca” where Claude Rains says he is “shocked” that gambling goes on at Rick’s Café, just as a croupier hands him his winnings.
But what did Haight’s ruling mean? Kelly and Chris Dunn of the Civil Liberties Union have offered different interpretations.
The day after Haight’s ruling, Kelly said it would “not change any modification [of the Handschu guidelines] made by the judge … For me the important thing is that modification … continues to stand.”
Said Dunn at the time: “I don’t know what the commissioner means since the judge clearly ordered that new restrictions will be added to the court order governing the department’s surveillance.”
Haight hasn’t been seen or heard publicly on the issue since.
Fast-forward eight years to August 2011 when the AP ran its first story about the NYPD’s spying on Muslims.
It reported that the NYPD’s spying was far more comprehensive than previously known, and stated that the department had targeted ethnic communities “in ways that would run afoul of civil liberties rules if practiced by the federal government.”
In September, this column obtained Intelligence Division documents, dating from 2006, revealing that the NYPD had targeted virtually every level of Muslim life in New York City. It had used undercover detectives or confidential informants to infiltrate and compile information on 250 mosques, 12 Islamic schools, 31 Muslim student associations, 263 places it calls “ethnic hotspots,” such as businesses and restaurants as well as 138 “persons of interest.”
To this reporter, the detail in these documents resembled the files compiled on citizens of East Germany by the notorious Stasi, its feared secret police.
NYPD Confidential published the first document on September 5, 2011, then sent it to the AP, which published it a couple of days later.
The AP then reported that the NYPD had master-minded a so-called Moroccan Initiative. This spying catalogued the daily lives of Moroccans in the city, monitoring them at places like restaurants, grocery stores and barbershops. Sometimes, police officers interviewed them using pretexts like ongoing criminal investigations or the search for a lost child.
The AP continued its ground-breaking work with a report that the NYPD had spied on Muslim student groups on college campuses throughout the northeast, and, most notably in Newark, New Jersey, where they collected license plates of worshippers, monitored them on surveillance cameras and cataloged sermons through a network of informants.
Newark Mayor Cory Booker and New Jersey Governor Chris Christie professed outrage at the spying — as well as not having been informed that the NYPD was operating in their state.
The articles also prompted a rare public criticism of the NYPD by the FBI. Michael Ward, the head of the Bureau’s Newark office, criticized the spying as counter-productive, saying it created “additional risks,” and jeopardized relationships agents had sought to build in the Muslim community since 9/11.
Meanwhile, NYPD Confidential reported that in 2008 the NYPD launched its “Somali Project,” spying on the small Somali community in Buffalo. This effort began even though the department’s liaison in western New York, Erie County Undersheriff Richard Donovan, told the NYPD that he was unaware of any crime trends attributed to Somalis in the Buffalo area.
An Intelligence Division “briefing report” described how an Intel captain, lieutenant and sergeant “conducted vehicle surveillance” of five Somali locations that appeared to be mosques. “New license plate information [NJ registration] as obtained of a new vehicle observed at a subject location and photos taken,” the report said.
The Buffalo News subsequently reported that the NYPD never shared their information on the Somali Project with the Buffalo area’s Joint Terrorist Task Force, a cooperative effort that includes the FBI, state and local law enforcement officials.
Lastmonth, NYPD Confidential reported how in 2006 the NYPD searched for a terrorism link to the accidental small-plane crash of Yankee pitcher Cory Lidle by instructing its informants and undercovers in at least five mosques and Islamic Centers around the city and in New Jersey to gauge reaction to the crash.
At the At Taqwa Mosque in Brooklyn, a confidential police informant reported that a congregant seemed upset by news of the crash, and police moved to get a record of his phone calls. “Phone dump will be conducted of subject’s phone for that day and time period,” stated an Intelligence Division document.
Bloomberg and Kelly maintain that the police spying on Muslims is not illegal. [Kelly has said the word “spying” is a mischaracterization; he prefers “surveillance.”] Both he and Bloomberg say the city would have been endangered without such preventative measures.
Writing in the Manhattan Institute’s City Journal, the police department’s unofficial apologist, Judith Miller, said the AP had “failed to document such illegality or over-the-top conduct….Never mind that the series failed to find a single individual whose professional or religious life had been harmed by the police department’s efforts to protect the city and its residents from another catastrophic terrorist attack.”
Yet Miller acknowledged: “[T]he threat of terrorism is no excuse to run roughshod over civil liberties and questions should be asked about how the NYPD’s program has been implemented and overseen.”
Getting Kelly’s or Bloomberg’s response to that question justifies all the AP’s reporting.
So what has all the NYPD spying on Muslims accomplished?
An answer may come next month with the trial of Ahmed Ferhani, whom the police have described as a “lone-wolf” terrorist, unaffiliated with any radical Muslim group like Al Qaeda.
Ferhani and co-defendant Mohamed Mamdouh were arrested on May 11, 2011. At a packed City Hall news conference the next day, Bloomberg, Kelly and Manhattan District Attorney Cyrus Vance accused the pair of plotting to blow up Manhattan’s largest synagogue and kill as many Jews as possible.
Yet the FBI refused to join the case.
Law enforcement sources said that the Joint Terrorist Task Force — those FBI agents and NYPD detectives mandated specifically to investigate terrorism — distrusted the NYPD undercover detective on this case, a feeling that was intensified when the police refused to allow the JTTF to question the undercover.
Instead, Ferhani and Mamdouh were indicted on lesser state terror and hate crime charges under a state terrorism law, passed after 9/11, that had never been used before. A state grand jury declined to indict them on the most serious terrorism charge.
Ferhani’s attorney said he has a history of mental problems and had been targeted by the police, who knew all about his psychiatric troubles because of repeated 911 calls his mother had made to get help subduing him.
We’ve been here before with the NYPD and its questionable spying practices. The Handschu guidelines stemmed from the department’s infiltration of the Black Panther Party in the late 1960s, leading to the indictments of those who came to be known as the Panther 21 for conspiring to blow up midtown stores and the New York Botanical Gardens.
After a two-year trial, a jury acquitted all 21 defendants after just 45 minutes of deliberations.
The acquittal was a major embarrassment for the Manhattan District Attorney and the police department’s Intelligence Division.
But in our post 9/11 world, who can say how a New York City jury will decide?
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Copyright © 2012 Leonard Levitt