Court Offers Rare Opportunity for Public Comment on NYPD Spying
Originally published on the Huffington Post
by Kris Hermes
There’s little dispute today that we live in a National Security State. Unlawful police surveillance and infiltration of religious and political groups has become so common that it barely evokes outrage. Perhaps the most notorious perpetrators of unwarranted spying on Americans is the New York Police Department (NYPD), which continues to establish questionable counter-terrorism and counterintelligence units to spy on New Yorkers despite being repeatedly sued over it.
However, there’s a rare opportunity this month and next to voice opposition to NYPD spying practices. U.S. District Court Judge Charles S. Haight, Jr. recently issued a Notice of Fairness Hearing for which the federal court is seeking comment from the public.
The Fairness Hearing, which will be held on April 19 at 10 a.m. at the Moynihan Federal Courthouse (500 Pearl Street in Manhattan), stems from a proposed settlement agreement in two class-action lawsuits, one of which has been ongoing for more than 40 years.
The more recent lawsuit, Raza v. City of New York, was filed in 2013 by several legal and political groups on behalf of religious and community leaders, mosques and a charitable organization, alleging they were swept up in NYPD dragnet surveillance of Muslims.
Also in 2013, lawyers filed briefs in Handschu v. Special Services Division, an historical lawsuit that established a decades-long consent decree restricting NYPD surveillance and infiltration of political groups and activists. A settlement agreement was reached in January for both the Raza and Handschu cases.
The settlement agreement would amend the longstanding “Handschu Guidelines,” which have been eviscerated since 9/11. Since Raza and Handschu are class action lawsuits, the court is inviting comment from the class of political groups and activists—hundreds of thousands, if not millions, of New Yorkers.
In order to comment, you must register with the court by April 5th. In anticipation of a desire by class members to submit comments, a coalition of political groups are hosting free public educational workshops to review the history of Raza and Handschu and the consent decree, as well as learn details of the proposed settlement agreement, and how to file comments.
New Yorkers interested in learning more about these lawsuits, NYPD spying, and this rare opportunity to comment should come to 339 Lafayette Street in Manhattan on either Wednesday, March 30 at 6:30pm or Thursday, March 31 at 6:30pm for free public education workshops on these issues.
Proposed settlement agreement
The proposed settlement agreement negotiated by the Handschu attorneys, most of whom are members of the New York Civil Liberties Union (NYCLU) and the National Lawyers Guild (NLG), has pluses and minuses.
On the plus side, the terms will amend the Handschu Guidelines to add a civilian representative unaffiliated with the police department to oversee investigations. However, the civilian representative, who is an attorney appointed by the Mayor, will assume tremendous responsibility yet have questionable accountability to the people and groups most affected.
Most of the provisions are benign and not likely to result in any practical changes to NYPD practices, such as “an explicit commitment against investigations in which race, religion or ethnicity is a substantial or motivating factor” and that “the choice of investigative techniques should take account of the potential effect of the investigation on the political or religious activity of individuals, groups or organizations,” according to the Fairness Hearing Notice.
The settlement terms also institute “presumptive time limits on investigations” where before there were none. Although each investigation will be reviewed every six months, there appears no real restriction on indefinite extension.
The terms fail to curb spying by undercover officers and informants, providing infiltrators with near complete discretion based on a determination that “the information sought could not be reasonably obtained in a timely and effective way by a less intrusive means.”
But, possibly even more of an affront to the aggrieved plaintiff-class is the refusal by the NYPD to admit any wrongdoing that led to the Raza lawsuit or violated the Handschu Guidelines. The settlement terms read:
Defendants [including NYPD] deny any and all liability and deny that they had or have a policy, or engaged in or currently engage in a pattern or practice of conduct, that deprived any persons, including the Plaintiff Class and the plaintiffs in Raza, of rights protected by the Constitution and laws of the United States.
How did we get to this point?
As a result of blowback against the repressive counterintelligence (COINTELPRO) tactics used by the FBI, a small wave of reform took place in the U.S. in the mid-to-late 1970s. Reform included congressional legislation that made intelligence committees permanent in both houses and executive orders issued by presidents Ford and Carter restricting certain intelligence operations. In the mid 1980s, the federal courts granted injunctions in a couple of important cases—Alliance to End Repression v. City of Chicago and Handschu v. Special Services Division—that attempted to limit surveillance activity by local police.
In 1971, NLG attorney Barbara Handschu and others filed a lawsuit stemming from COINTELPRO-era police tactics. The Handschu plaintiffs—including Abbie Hoffman and members of the War Resisters League, the Gay Liberation Front, the Black Panther Party, and others—accused the NYPD of “[deterring] them from First Amendment activity by using informers, infiltration, interrogation, surveillance, summary punishment, and by creating a fearful atmosphere at public gatherings.”
As part of the settlement, a consent decree was established in 1985 implementing court-ordered guidelines that “prohibited [police] from investigating political activity” unless there was evidence of current or planned crimes and “prohibited creation of files on groups or individuals based solely on their political, religious, sexual or economic preference.” The Handschu consent decree also established an “Authority” within the NYPD to oversee the police Intelligence Division activities.
However, hard-fought legal victories are often impermanent. After 9/11, Handschu met its fate. In 2002, the police requested modification of the Handschu Guidelines on the basis that it would inhibit efforts to fight terrorism. Despite the lack of specific instances in which criminal investigations had been curtailed, the NYPD requested a virtual repeal of the guidelines. District Court Judge Haight ultimately agreed and, in early 2003, relaxed the guidelines and significantly weakened the 1985 decree.
Whereas the original guidelines authorized investigations only with evidence of “specific information” that a crime was about to be committed, the new guidelines merely require “reasonable indication” of a future crime. The Court also eliminated the requirement that police get approval for intelligence gathering from the Handschu Authority, a three-member panel consisting of two high-level police officials and one civilian appointed by the mayor.
No group has been more affected by the evisceration of the Handschu consent decree than the Muslim community. In August 2011, the Associated Press published a Pulitzer Prize-winning series exposing the vast domestic spying network developed by the NYPD since 2001. The massive multistate operation was aimed at the surveillance, mapping, and infiltration of Muslim groups, from recording information like where they pray and eat to manufacturing criminal activity in an effort to entrap them. As indefensible as the spying operation was, New York Police Commissioner Ray Kelly claimed it violated no laws and was “within the framework of the modified [Handschu] consent decree.”
Just as the relaxed Handschu Guidelines signaled a green light for spying on the Muslim community, the NYPD has also used the new intelligence landscape to spy on political groups. Internal police reports made public in 2006 showed that, as early as 2002, teams of undercover NYPD officers “attended meetings of political groups, posing as sympathizers or fellow activists” in order to gather information, which they shared with other law enforcement agencies. NYPD also used “proactive arrests” and psychological tactics at political demonstrations. Claiming success, the police reports recommended that such tactics be used at future political demonstrations.
The modified decree also allowed for the widespread surveillance and infiltration of political groups in the lead-up to the 2004 Republican convention. Indeed, the New York Times reported in 2007 that the NYPD had “spied broadly” before the convention, traveling to “cities across the country, Canada and Europe to conduct covert observations of people who planned to protest at the convention, according to police records and interviews.”
Notably, a month before the March 2007 New York Times story, the federal courts pointed to Handschu and found that police must have “some indication of unlawful activity on the part of the individual or organization to be investigated.” Nevertheless, the Times concluded after reviewing hundreds of reports stamped “NYPD Secret,” that the police Intelligence Division “chronicled the views and plans of people who had no apparent intention of breaking the law,” including “members of street theater companies, church groups and antiwar organizations, as well as environmentalists and people opposed to the death penalty, globalization and other government policies.” Footage taken by the videographer collective “I-Witness Video” during the RNC 2004 also showed that the NYPD was using undercover police to infiltrate the protests.
Political and religious repression today
Arguably, dissidents and other targeted groups have never been completely protected from police harassment, surveillance, and interference, or from arbitrary and mass arrest. But, political and religious repression has reached intense proportions today in the U.S.
Since at least 2002, the NYPD’s Intelligence Division profiled and spied on Muslims as well as political organizations in New York City and elsewhere. This highly discriminatory practice was carried out in part by the NYPD Demographics Unit, later renamed the Zone Assessment Unit, which was forced to close in April 2014 due to public pressure after the exposure of its existence and the Raza lawsuit.
Less than a year after shuttering the Demographics Unit, NYPD Commissioner William Bratton announced the formation in January 2015 of a new counter-terrorism and counterintelligence group called the Strategic Response Group (SRG). The SRG, whose roughly 350 officers are trained in heavy-weapons tactics, clumsily merged the city’s anti-terrorism enforcement with its crowd control efforts around political protest.
The SRG quickly drew fire from political and legal groups for its heavy-handed practices and chilling effect on protests in the city. In late 2015, less than a year after it was formed, the SRG not only swelled in size to nearly twice the number of officers, it also gained attention for helping to suppress Black Lives Matter demonstrations and on multiple occasions used a military-grade Long Range Acoustic Device (LRAD or noise cannon) and aggressive arrest tactics.
“The SRG combines many of the problems of the NYPD’s Disorder Control Unit‘s approach to crowd control and policing with many of the problems of its Intelligence Division’s and Counterterrorism Bureau’s approaches to pre-emptively and hyper-aggressively policing political protests in the streets,” NLG and civil rights attorney Gideon Oliver told Gothamist. “Rather than rejecting approaches to policing protests that have proven to result in civil rights violations, the NYPD has continued to entrench and institutionalize those approaches, including recently in the form of the SRG.”
Yet, there seems to be no reference to the SRG or its counterintelligence efforts in the Handschu/Raza settlement agreement.
Another counterintelligence tactic of the NYPD was exposed just last month by the NYCLU in response to a Freedom of Information Law (FOIL) request. In February, the NYPD confirmed that it owns and regularly operates Stingray devices used to eavesdrop on cell phone conversations by mimicking a cell tower.
The NYPD admitted it used Stingrays more than one thousand times between 2008-2015 “without a written policy” and using a “practice of obtaining only lower-level court orders rather than warrants,” according to the NYCLU. “If carrying a cell phone means being exposed to military grade surveillance equipment, then the privacy of nearly all New Yorkers is at risk,” said NYCLU Executive Director Donna Lieberman.
Keeping the NYPD out of mosques, community spaces, and political meetings
For these reasons and more, it’s important to voice opposition to the relaxed policies that barely dictate what the NYPD can and cannot do in regards to surveillance of religious and political groups. Although the level of societal fear post-9/11 is palpable and complicated to address, it should not prevent us from keeping police departments like the NYPD in check and accountable to the people it purports to serve and protect.
If New Yorkers cannot attend any of the educational meetings but still wish to file comments with the court, be sure to review the filing requirements and this FAQ by the CLEAR project of CUNY Law School. You must register to comment by sending an email with your name and address to email@example.com or by sending a letter with your name and address to Handschu Settlement, Clerk’s Office, U.S. District Court, 500 Pearl Street, NY, NY 10007. All emails and letters must be sent or postmarked on or before April 5, 2016.
You may include the substance of your comment or objection in the email or the letter, but you are not required to do so. Objections or comments will not be considered by the court unless you have given notice by email or by U.S. Mail that you want to comment or object.
Be sure to submit your comments before the deadline! The safety, privacy and free expression of New Yorkers could depend on it.
Part of this article was excerpted from Crashing the Party: Legacies and Lessons from the RNC 2000 (PM Press) by Kris Hermes, a longtime activist and legal worker
Kris Hermes is a longtime activist, legal worker, and author of Crashing the Party: Legacies and Lessons from the RNC 2000. He currently works as the Mass Defense Coordinator for the National Lawyers Guild.