New York: The Police and the Protesters

1.

“The police can see the defeat in our eyes. They know they’ve beaten us,” an Occupy Wall Street organizer told me a few days after the 2012 May Day demonstration that marked the movement’s fizzled attempt to stage a spring resurgence. “They used to look at us as adversaries. There was a certain respect. Now we’re objects of contempt, an excuse for them to get paid overtime. A safe, live-action game.”

This account of Occupy’s self-image was telling. In the space of seven months a galvanizing national protest movement had dwindled to the status of a policing problem before disappearing almost entirely from public view. Part of the blame can be attributed to Occupy itself; its inviolable purity of principle (“We don’t talk to people with power, because to do so would be to acknowledge the legitimacy of their power”) eventually became its own form of corruption.

More established left-leaning organizations that sought to support Occupy Wall Street were regarded by many in the movement with suspicion, if not outright paranoia. In April, Adbusters, the anticonsumerist magazine that put out the original call to occupy a space near Wall Street in the summer of 2011, sent out an e-mail blast identifying Moveon.org, The Nation magazine, and Ben & Jerry’s ice cream as the most dangerous threats to OWS’s survival. This “cabal of old world thinkers” of “the old left,” as Adbusters put it, with its “insidious campaign of donor money,” was on a mission to defang OWS and turn it into a handmaiden for President Obama’s reelection campaign.¹

Norman Siegel, a former executive director of the NYCLU, negotiated with police for Occupy on the rare occasions that organizers allowed him to do so. Siegel told me of his “frustration” with Occupy’s intransigence and naiveté, “though I love their message.” He has a great deal of experience navigating New York’s complicated legal and institutional shoals, and has been adept at making “mutually beneficial” accommodations with the police on behalf of protesters who take to the streets without an official permit. “An understanding can be struck,” Siegel said, so that the meaning of the protest isn’t drowned out by clashes with police, a battle that can’t be won. It’s a delicate process but not an impossible one. “Cops want to know what to expect, and when you offer them the courtesy of a heads up, they give you more latitude, more space.” In December 2006, for example, Siegel helped arrange an unofficial march for 18,000 people protesting the police shooting of an unarmed black man, Sean Bell. “The police ended up giving us all of Fifth Avenue,” which, in turn, amplified media attention, increasing the demonstration’s impact.

When cooperation is withdrawn, so is “discretionary good will”—police won’t bend the rules. Occupy’s general refusal to seek permits or negotiate with police has consigned their events to “sidewalk marches,” strictly legal but subject to innumerable infringements that can lead to arrests, like failing to stop at a red light or stepping off the curb and “obstructing traffic” even when there is none. Siegel believes that Occupy protesters limit their rights when they choose to march on sidewalks. “That’s a stroll, not a march,” he said. It makes them seem unserious and small. “If you don’t get a permit, you can go to court and challenge it,” he added. “It becomes a First Amendment issue. You get publicity. Sympathy.” Presumably Occupy organizers believe in the First Amendment, and to appeal to its principles would not amount to an act of ideological hypocrisy. But their idea that to play by the rules means to surrender to the rules—and to the rulers—prevented them from making their case. “There are ways to use the system to challenge the system,” said Siegel. “Unfortunately, Occupy wasn’t willing or sophisticated enough to maneuver in this manner.”²

To be sure, OWS’s no-negotiation policy wasn’t the only, or even the main, cause of the harsh police crackdown. But on the street level it did serve to exacerbate an atmosphere of escalating confrontation. Some activists regarded every officer as the representative of an enemy state, cursing in their faces across the metal barricades, hoping to provoke a violent response, it sometimes seemed, that could be digitally recorded and then broadcast on Occupy’s global Internet feed. During the movement’s early days last fall, scenes of police brutality dramatically fueled Occupy’s popular rise. But after protesters were evicted from Zuccotti Park on November 15, clashes with police followed a law of diminishing returns, isolating activists, diverting attention from the social and economic injustices the movement had set out to challenge, and scaring away less militant supporters.

During the movement’s heyday in Zuccotti Park in the autumn of 2011, I heard many blue-collar officers express sympathy for its message. In a financial district bar one night in early November, a group of six or seven off-duty cops told me they disapproved of the aggressiveness of some of their superiors and colleagues. There were always a few “sadistic types,” they said, who used the opportunity of a free-for-all demonstration to have “what to them is a good time.” In general, the group agreed that “these kids are making sense,” as one female officer put it. They all considered political demonstrations to be “a great gig. There are no guns pointed at us and we get time and a half.” Obviously, the personal political beliefs of New York’s 36,000 police officers vary widely, a fact that Occupy protesters, for the most part, seemed either to ignore or not understand.

The First Amendment right that activists fatally seemed to misinterpret is that of freedom of assembly. Their confusion is understandable. Freedom of assembly is a concept, not a fixed law, a shifting proposition that is constantly being challenged, if not entirely redefined. The confusion that perennially surrounds it derives from the fact that it is not an absolute right; it depends on circumstances and must take into account the interests of competing groups. Reasonable time, place, and manner of assembly are among several governing factors. You can’t, for example, trespass in the name of free assembly or obstruct the free movement of others or appropriate a public space in a way that excludes those who have an equal right to use it.

Enforcement of the right becomes especially obscure in the heat of a protest. Occupiers chant, “Whose streets? Our streets!” But from a civil liberties point of view, this isn’t true. The chant should be, “Whose Streets? Everyone’s streets!” Occupiers’ failure to grasp this may have cost them Zuccotti Park at a time when they were in a position to negotiate their continued presence there in a different, but no less effective, manner.

In June 2000, Norman Siegel and Chris Dunn, a fellow attorney at the NYCLU, argued a case against the city before US District Judge Kimba Wood on behalf of protesters for a tenants’ advocate group who sought to sleep on the sidewalk in front of Gracie Mansion to dramatize the plight of certain tenants as a result of rent control laws that were being overturned. Wood ruled that sleeping or lying on the sidewalk for such a purpose was a legitimate “symbolic” expression of political protest, as long as protesters took up no more than 50 percent of the sidewalk and did not block people from entering or leaving adjacent buildings. She took pains to point out that nothing prevented larger numbers of protesters from joining the vigil during nonsleeping hours.³

The 50 percent rule presented a new working guideline for freedom of assembly. If occupiers had made strategic use of Wood’s decision, agreeing to limit their occupation to half of Zuccotti Park and leaving the rest for office workers and residents of the area, they may have been able to remain there indefinitely. Overflow occupiers could have slept at nearby churches and other indoor spaces, spending days at the park.⁴

The strategy would have neutralized Mayor Bloomberg’s main public objection to the occupation, by following Wood’s standing court decision about the constitutionality of using public space for protest. Conceivably, occupiers could have set up additional camps, in reasonable numbers of eighteen to thirty-five people per location, in front of Bank of America’s New York headquarters, for instance, or that of Citigroup, Goldman Sachs, JPMorgan, or the New York Stock Exchange, establishing a kind of legally protected ubiquity across New York. In April about forty Occupiers began sleeping on Nassau Street near the Stock Exchange, successfully invoking, for a brief time, the 50 percent rule. When word spread and larger numbers of protesters joined them, occupying more than 50 percent of the sidewalk, the police cleared everyone away.

Still, the overwhelming policing of OWS was out of proportion to any threat to civic order that the protest posed. Many New Yorkers took anxious note of this. It seemed emblematic of psychological and cultural changes that had been taking place within the police department since September 11, 2001. It confirmed what Michael Powell of The New York Times called “the decade-long trajectory in New York toward expanded police power [in which] officers routinely…toss demonstrators and reporters around with impunity.”⁵

Typically, thirty or more officers in full riot gear and with vehicle support would show up at peaceful “actions” involving fifty or fewer protesters. A legal observer I spoke with recalled a Joan Baez concert in support of OWS at Federal Plaza in early November. “They had a permit for five hundred people. Three hundred showed up—children, families. I counted at least one hundred police officers there.”

By this time, Occupy’s message had been publically embraced, at least rhetorically, by President Obama and Vice President Biden; Virkam Pandit, the CEO of Citigroup; Bill Gross, founder of the PIMCO investment fund, who memorably remarked that protesters were just “fighting back after 30 years of being shot at”; and a conservative member of the Dallas Federal Reserve—to name just a few of the public figures who acknowledged Occupy as a salutatory cry against America’s growing economic imbalance.

Protesters who took part in further actions were hemmed in like invaders, barricaded, blocked, arrested, and harassed. The urban landscape was completely shut down to them, a ruinous state of affairs for a movement that relied on theatrical public displays and symbolic street actions. On the night of March 21, I saw hundreds of policemen in riot gear, with dozens of vehicles supporting them, waiting on the periphery of Union Square Park for the stroke of midnight, when Parks Department rules would allow them to swoop in and “muster,” as a ranger put it, a modest number of potential occupiers who hoped to establish an encampment there.

The siege-like atmosphere extended to casual passersby. A few days later, in the middle of the afternoon, the writer Janet Malcolm, walking past Union Square on her way home after shopping, paused near a circle of about fifty police in blue uniforms who were listening to instructions from a white-shirted officer about how to handle Occupy protesters. One of the policemen told her it was “a private conversation” and ordered her to “move on.” Malcolm pointed out that she was merely standing on a public sidewalk. “The sidewalk is for walking,” said the cop. “Take a walk or we’ll remove you.” Malcolm told me, “If I had stayed put I’ve no doubt he would have arrested me.”

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.

In 2008, officers from Intel’s Strategic Intelligence Unit unilaterally planted themselves in Buffalo to infiltrate the small Somali community there, though there was no inkling that any of its members were involved in wrongdoing (and none, to my knowledge, has emerged). Peter Ahearn, who headed the FBI office in Buffalo from 2001 to 2006, said, “If I had still been up there that would have bothered me a lot. With the reputation the NYPD does have, and I know this factually, they will do different things in cities around the country and not even let law enforcement know they are there.”¹⁷

When it came to light, in February, that Intel had extended its spying to New Jersey—renting safe houses replete with computers, jihadist propaganda, and surveillance equipment—Governor Chris Christie wondered sarcastically if

this NYPD action was born out of arrogance, or out of paranoia, or out of both…. Well, because he’s Ray Kelly what are you going to do. He’s all knowing, all seeing.

Christie added:

They think their jurisdiction is the world. Their jurisdiction is New York City. My concern is this kind of obsession the NYPD seems to have that they’re the masters of the universe.¹⁸

Christie backed off after a poll taken in April found that 70 percent of New Jersey voters believe that in crossing the Hudson the NYPD was doing “what is necessary to combat terrorism.”¹⁹ In May, an investigation by New Jersey’s attorney general concluded that the cross-border surveillance did not break New Jersey law.²⁰

4.

In the span of only a few years, beginning in 2002, David Cohen managed the remarkable feat of assembling the Intelligence Division from scratch. To help him do so, he persuaded George Tenet, head of the CIA at the time, to take the highly unusual step of assigning him an active senior agent. According to the police department, the agent, Lawrence Sanchez, “instructed officers in the art of collecting information without attracting attention”²¹—a violation of the law that prohibits the CIA from engaging in domestic spying. The Associated Press reported that Sanchez kept offices both at the NYPD and at the CIA’s station in New York, operating “on both sides of the wall that is supposed to keep the CIA out of the domestic intelligence business.”²²

Commissioner Kelly has said that the agent’s presence in the department adhered to a 1981 presidential order that allows the CIA to place officers in local government agencies “for technical knowledge or assistance of expert personnel,”²³ if the assignment is approved by the CIA’s top lawyer. In the case of agents working for the NYPD, however, no approval was obtained. The CIA’s internal investigation of the partnership concluded that the executive order was not violated because “the CIA never instructed Sanchez to set up the NYPD spying programs.”²⁴ Sanchez left the department in 2010.

Shortly after, he was replaced by an unnamed “senior clandestine operative,” also an active agent, whose official title was “special assistant to David Cohen.” The second agent, a former station chief in Pakistan and Jordan, was recalled after his presence (though not his identity) became known.²⁵

Whatever one makes of this, Intel’s partnership with the CIA is indicative of the seriousness—and sophistication—of its mission. The unit describes itself as an “elite agency,” employing analysts who have worked for the Department of Defense Intelligence Agency, the Council on Foreign Relations, the United Nations, the OECD, the CIA, and, in at least one case, the Foreign Ministry of Azerbaijan. A partial list of graduate programs its analysts have attended includes Harvard Law School, Cambridge University, Georgetown, and schools of international affairs at Columbia, Johns Hopkins, and Tufts.²⁶

It’s an expensive proposition, no doubt, though exactly how much of the NYPD’s $4.9 billion annual budget goes to Intel would be difficult to puzzle out. Since September 2001, the federal government has given the NYPD nearly $2 billion.²⁷ For 2012, the Department of Homeland Security granted the NYPD $151.6 million, with no strings attached other than the general directive that it be used for counterterrorism activities.²⁸ We can assume that the counterterrorism program’s actual budget is much higher—a conservative estimate for 2010 in The Wall Street Journal, apparently meant to play down the extent of Intel’s activities, put the amount at $330 million, not including the annual DHS grants.²⁹

To fund some of its operations Intel has solicited the help of private unnamed donors—money that would not be subject to budgetary approval or, more to the point perhaps, to scrutiny from members of the City Council.³⁰ On the surface these measures may seem laudable: a vulnerable city devotes significant resources to protecting its citizens from the possibility of another act of mass murder. But questions about Intel’s activity continue to arise.

Its main focus is on the so-called “home-grown” terrorist, the “lone wolf” who nurses private resentments and jihadi fantasies and who is unaffiliated with international terrorist organizations. Commissioner Kelly has said, “We have an overarching concern about the lone wolf, the unaffiliated terrorist,” and in 2005, David Cohen explained to New York magazine, “Lone-wolf incidents start way below the level the federal government would focus on. If we weren’t doing it, nobody would be.” Cohen added, “All it takes is an AK-47 and the desire to become a martyr.”³¹ In May 2008, Intel hired, with money from private donors, a former CIA man, Marc Sageman, to lecture and instruct officers about the home-grown threat.³²

To ferret out the lone wolves, Intel created a “demographics unit” whose mission is to identify and map “ethnic residential concentrations.”³³ “Ethnic” in this case means Arab and Pakistani Muslims. Concerned most likely with the implications of the word “demographic,” which could be interpreted as an admission that they were targeting a specific group, police denied the unit existed. When irrefutable evidence emerged to the contrary in the form of an internal Intel document, the NYPD changed its name to the “zone assessment unit.”

Whatever it is called, it’s clear that a vast number of New York City’s approximately 800,000 Muslims are potential subjects for investigation. Among the criteria for earning a file is having an Arab name or family history, for which Intel has compiled “ancestry lists” from public records.

For this “human mapping program” (another name for the effort), hundreds of informants are employed—Arab-American men, for the most part, recruited from the police academy or, more commonly, from outside the department. The Associated Press reported that when Cohen and Sanchez were in the initial phase of assembling the program, they came up with a makeshift solution for hiring informants quickly:

They dispatched more officers to Pakistani neighborhoods and…instructed them to look for reasons to stop cars: speeding, broken tail lights, running stop signs, whatever. The traffic stop gave police an opportunity to search for outstanding warrants or look for suspicious behavior. An arrest could be the leverage the police needed to persuade someone to become an informant.³⁴

This is strikingly similar to the traditional methods of recruitment that the CIA uses in foreign countries, trawling for informants among those who have problems with the law themselves. A former NYPD official told the Associated Press that “the program was modeled in part on how Israeli authorities operate in the West Bank.”³⁵

Despite Kelly’s assertion that the Intelligence Division “only follows leads,” a leaked Intel document from 2006 explicitly instructs spies that “emphasis is on intelligence collection, not criminal investigation.”³⁶ New Yorkers with no intention of breaking the law would be flagged, investigated, and placed, in some cases, on secret watch lists. One so-called raker in Brooklyn described his job as being a “walking camera” for police.³⁷ Two retired FBI agents told the Associated Press that agents were ordered to reject reports from Intel’s “mosque crawlers,” as they are known, because, in the words of Valerie Caproni, the FBI’s general counsel, “You’re running up against core constitutional rights. You’re talking about freedom of religion.”³⁸ The Privacy Act says the federal government may not gather intelligence on strictly First Amendment activities. In its current state of impunity, the NYPD’s Intelligence Division faces no such restrictions.

One would think that, at the very least, this would put the city in violation of a New York law that makes it a crime for police to “profile”—i.e., to use a person’s race, ethnicity, or religion as a key factor in deciding whether to engage in law enforcement. In fact, while the law has all the appearances of being an enlightened piece of legislation aimed at protecting citizens against frivolous encroachments of their most basic civil rights, it is almost impossible to prove violations of it in court. As the law is written, an action is forbidden if profiling is the determining factor; police invariably argue that it is just one of several factors.³⁹

The principal legal recourse that remains is the long slog of challenging the spying program on constitutional grounds—the same grounds upon which the original Handschu Decree was decided. Alternatively, the federal court that handled Handschu could reinstate its original guidelines, though the court has given no clear signs that it is inclined to do so.⁴⁰

Omar Mohammedi, president of the Association of Muslim American Lawyers, says that he can show some Muslims have stopped going to prayer for fear of landing on a watch list, and he has asked New York’s attorney general, Eric Schneiderman, to open an investigation. On February 20 Mohammedi sent a twelve page letter to Schneiderman detailing what he believes to be the NYPD’s “blatant violations of American Muslims’ civil liberties,” through the “use of anti-Muslim training materials.” As examples, he cites the showing of the film The Third Jihad to 1,489 officers, “a one-sided depiction of all Muslims as warmongers seeking to dominate and cause destruction to the world,” and a 2007 NYPD report entitled Radicalization in the West: The Home Grown Threat, which according to Mohammedi “labels every Muslim American as a potential threat” and “specifically targeted Muslim New Yokers.” Mohammedi serves on New York City’s Commission of Human Rights and is a professor at Fordham Law School. Schneiderman has not responded to the letter or to follow up phone calls.

At the behest of another Muslim association, US Attorney General Eric Holder said in March that the Justice Department’s Civil Rights Division was “reviewing” aspects of the NYPD’s information-gathering program.⁴¹ Since then, there has been no word from the Justice Department on the subject and it seems unlikely that a federal investigation will take place anytime soon.

The reality is that Intel has been uniquely protected by New Yorkers’ widespread fears about another attack. In Lawrence Sanchez’s words, “We’ve been given the public tolerance and the luxury to be very aggressive.”⁴² In a Quinnipiac poll taken in March, shortly after the Associated Press series was published, 58 percent of New York City’s voters supported the NYPD’s “targeting of Muslims in its anti-terrorist campaign.” Kelly’s job approval rating stood at 64 percent, where it continues to hold steady today.⁴³

Dramatic press conferences announcing the arrests of alleged terrorists—with Mayor Bloomberg, Manhattan District Attorney Cyrus Vance, and Commissioner Kelly in attendance—have contributed to a general perception of the department’s spying unit successfully penetrating home-grown terrorist cells as they prepare to strike at any moment. Just how strongly these claims hold up will be the subject of an article in the next issue.

—This is the first of two articles.