By Tim Cushing | Techdirt | October 4, 2013
A recent investigative report on the NYPD’s surveillance of mosques has led to a possible revisiting of the Handschu Agreement by the federal judge presiding over a lawsuit filed against the city seeking to bar further surveillance of Muslims in New York City.
According to the 1985 ruling, the Handschu Agreement limited indiscriminate surveillance of purely political activity. If such surveillance was to take place, it first had to be approved by the three-member Handschu Authority and performed only by the specially-designated Public Security Section, a division of NYPD Intelligence. It also prohibited the videotaping or photographing of large public gatherings when there was no indication of criminal activity and forbade the sharing of information with outside agencies unless they agreed to be bound by the limitations of the Agreement.
This is what was assumed to be in place. When the plaintiffs filed in February, their attorney pointed out that the police activity that had been observed clearly violated those limitations.
The police measures directed at Muslims violate the Handschu decree “because they’re not rooted in the fact that there’s a criminal predicate,” said plaintiff attorney Paul Chevigny. “They’re rooted in the fact that the subjects are Muslims.”
It was exactly as it looked: Muslims being placed under surveillance simply because they attended certain mosques — mosques the NYPD had declared to be “terrorist organizations.”
The city has countered by claiming that it closely observes the Handschu guidelines when making decisions about how to fight terror. A city lawyer, Peter Farrell, told the judge on Tuesday that the department launches investigations based on evidence of legitimate threats, not on religion.
“It’s undeniable that New York City remains at the center of the threat by Islamists who have been radicalized to violence,” he said.
What the city lawyer’s conveniently left out was that the Handschu guidelines had been deliberately weakened by the NYPD, thanks to the efforts of a former CIA officer and his CIA liaison, who formed a so-called “Demographics Group” that was charged with monitoring activity by the city’s Muslims.
[T]he activities that [CIA liaison Larry] Sanchez and [former senior CIA officer David] Cohen were proposing would not have been permitted under the Handschu guidelines. So, on September 12, 2002, Cohen filed a 23-page document in federal court asking a judge to throw out the guidelines and give his officers more leeway.
Cohen insisted that the world had changed since Al Qaeda attacked America, and the NYPD needed to change with it. “These changes were not envisioned when the Handschu guidelines were agreed upon,” he wrote, “and their continuation dangerously limits the ability of the NYPD to protect the people it is sworn to serve.”
The severely watered-down Handschu guidelines were approved by Judge Charles Haight. The name remained unchanged and most New Yorkers were unaware that hardly any limitations remained tied to the Agreement.
After securing this expanded definition (which also thoroughly abused the word “related”), the Demographics Group proceeded to declare entire mosques as “terrorist organizations” and began constant surveillance of their members. And, contrary to what the city’s lawyer declared, it has yet to be proven by the NYPD or anyone else that New York is the “center of the threat by Islamists.” The NYPD has spent millions of dollars and thousands of manhours surveilling and investigating Muslims and has turned up exactly zero useful leads.
When the plaintiffs filed this case, they had no idea the Handschu guidelines had been so thoroughly eviscerated. Armed with this new knowledge, the plaintiffs have asked the city to turn over so-called “investigative statements” related to these surveillance operations. The city won’t even meet them halfway, offering only to turn over a “handful” for the plaintiffs’ lawyers to view without making them part of the public record.
Technically, the city is correct: the NYPD is following the guidelines, as they have been altered, not as they were originally written.
The presiding judge says he will rule at a later date. However, one key factor is problematic. The presiding judge is Charles Haight, the same judge who agreed to relax those rules for the NYPD back in 2002. When he says something like this, it’s hard to know how to take it.
“I’ve come to think of this case as a volcano that’s asleep most of the time … but every now and then blows up,” U.S. District Judge Charles Haight said at the start of a hearing in federal court in Manhattan.
This “volcano” is at least partially of his own making. Haight knows how few restrictions remain under those guidelines. The NYPD can “closely observe” the relaxed Handschu guidelines and still place entire mosques under surveillance. The protections remaining are so weak and the scope of what is deemed “terrorist-related” so broad that even the CIA itself is unable to use the information collected by the Demographics Unit because doing so means violating CIA policies regarding domestic surveillance.
But it appears (although details are incredibly light) that Haight may revisit his own decision relaxing those guidelines. His upcoming ruling will determine whether the near-useless offer the city’s lawyer made will be sufficient or if the city will need to cough up what’s been requested: investigative statements related to “any operation targeting Muslims.” Haight will also make the call as to whether the documents will remain “off the record.”
The NYPD has never been very responsive when asked to turn over information, but considering this order may come from a federal judge, rather than a member of the public, the response time might be a little quicker. As for the plaintiffs, it would seem they drew possibly the least sympathetic judge to hear this case. But who knows, maybe Haight’s had a change of heart over the years. Many rash legislative and legal decisions were made shortly after the 9/11 attacks and there have been more than a few who have expressed regret for their decisions or dismay at the continual expansion of already-broad policies. Haight might be one of the ones who regrets his decision. Fortunately, he’s still in a position to make some changes.