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Court sanctions expanded political surveillance by New York City police
By Bill Vann
13 February 2003
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A federal judge Wednesday handed the New York City Police Department (NYPD) expanded powers to carry out spying on political organizations. US
District Court Judge Charles Haight sided with the NYPD and the city in their bid to overturn an 18-year-old court order that placed limited
restrictions on such surveillance.
The order, known as the Handschu agreement, stemmed from a lawsuit brought in 1971 over the infiltration of the Black Panther Party by agents
provocateurs from the NYPDís Red Squad. This infiltration was part of a nationwide drive to frame up, imprison and assassinate members of the Black
Panthers carried out under the federal governmentís COINTELPRO program. It was accompanied by widespread use of the Red Squad to infiltrate and spy on
other political organizations and collect dossiers on large numbers of people perceived as political dissidents.
In his decision, Haight wrote, ìThe Constitutionís protections are unchanging, but the nature of public peril can change with dramatic speed, as
recent events show.î The restrictions placed upon the NYPD as a result of the spying and intimidation of the 1960s, he continued, ìaddressed different
perils in a different time.î
Police Commissioner Ray Kelly echoed the judgeís decision, declaring, ìWe 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
The fundamental restriction imposed under Handschu was a requirement that the police present evidence of criminal activity before sending agents into
a political organization or initiating surveillance against individuals involved in political activity. With Haightís ruling, that requirement has
been scrapped. Also overturned was the requirement that the police provide a written explanation of their reasons for investigating people involved in
political activity and maintain a clear record of their surveillance.
The judge left in place a three-member panel that is supposed to consider complaints from individuals who charge that police spying has violated their
constitutional rights. This body, however, has long functioned as an adjunct of the NYPD itself. He also called for the NYPD to adopt a version of the
FBIís guidelines on surveillance.
The push for abrogating the Handschu restrictions came in large part from David Cohen, the NYPDís deputy commissioner for intelligence and a former
senior CIA official who was recruited to the NYPD last year after 35 years at the CIA. Cohen provoked outrage among Muslim-Americans by arguing that
the dropping of limits on police spying was justified at least in part by the ìradicalizationî of American Mosques and other Islamic institutions,
which he said ìshield the work of terrorists from law enforcement scrutiny by taking advantage of restrictions of the investigation of First Amendment
Given the size of the NYPDómore than 37,000 cops, three times the number of the FBIís non-civilian agentsóthe courtís decision has far-reaching
Kellyís claims that the issues of police intimidation and suppression of political activity were from a ìbygone eraî were belied this week by the
NYPDís barring of a march by opponents of a war on Iraq. The refusal of the department and the city to grant the demonstrators a march permit was a
clear demonstration of the way in which the alleged threat of terrorism is being invoked to attack basic democratic rights. A federal appeals panel
Wednesday upheld a US District Courtís decision defending the NYPD ban.
Meanwhile, the New York State Senate on Tuesday rammed through a sweeping ìanti-terrorismî bill backed by Republican Governor George Pataki. The
legislation was approved without the normally required hearings and discussion after Pataki issued a ìmessage of necessity,î overriding the
requirement for a three-day wait before a new bill is brought to a vote.
The measure includes provisions that would allow the admission of evidence obtained through illegal searches and seizures as well as third-degree
interrogations, as long as the state and city police declare that they were acting ìin good faith.î It also creates several new felony crimes,
including ìconspiracy to commit terrorismî and ìcriminal facilitation of terrorism.î
Under the legislation, prosecutors would be able to convict an alleged terrorist based solely on the testimony of those claiming to have been his
accomplices. Such convictions are currently barred under New York state law.
Pataki, who is positioning himself for a future run for national office, including a possible nomination to serve as Bushís vice presidential running
mate in 2004, was joined by Republican lawmakers in denouncing any opposition to the legislation as ìanti-Americanî and conciliation with terrorism.
The measure cleared the Republican-controlled Senate by a vote of 52 to 8.