As NYPD Engages in New Civil Liberties Violations, Past Violations Under New Scrutiny

While supervisors from the NYPD are pepper-spraying peaceful political protestors, the Department is also coming under scrutiny for its past (and presumably ongoing) civil liberties abuse, the profiling of Muslim and Arab residents of NY.

As the original AP story on the NYPD’s profiling program described, in the 1980s, the city was put under court orders limiting the kind of intelligence-gathering programs it could conduct.

Since 1985, the NYPD had operated under a federal court order limiting the tactics it could use to gather intelligence. During the 1960s and 1970s, the department had used informants and undercover officers to infiltrate anti-war protest groups and other activists without any reason to suspect criminal behavior.

To settle a lawsuit, the department agreed to follow guidelines that required “specific information” of criminal activity before police could monitor political activity.

In September 2002, [NYPD Intelligence Unit Head David] Cohen told a federal judge that those guidelines made it “virtually impossible” to detect terrorist plots. The FBI was changing its rules to respond to 9/11, and Cohen argued that the NYPD must do so, too.

“In the case of terrorism, to wait for an indication of crime before investigating is to wait far too long,” Cohen wrote.

U.S. District Judge Charles S. Haight Jr. agreed, saying the old guidelines “addressed different perils in a different time.” He scrapped the old rules and replaced them with more lenient ones.

As the AP has been exposing the NYPD profiling program, it has never been entirely clear how this agreement simply got put aside, not least because the intelligence department was also involved in the 2004 RNC abuses.

And the question is more pressing given that Anthony Bologna, the pepper sprayer, is part of the NYPD’s counterterrorism group. I

It’s bad enough, after all, that the NYPD is profiling the city’s Moroccan restaurants, but it seems to be abusing the kind of political persecution the court order–Handschu v. Special Services Division–was supposed to prevent.

Today, the NYCLU is asking more questions about what is going on.

The New York Civil Liberties Union and partnering civil rights attorneys today filed papers in federal court seeking information on the NYPD’s surveillance of Muslims in New York City to determine whether the spying operation violates an existing court order. The filing is part of the Handschu v. Special Services Divisionproceedings, a decades-old federal case that has produced a series of court orders regulating NYPD surveillance of political and religious activity.

The filing asks the court to initiate a discovery process pertaining to the NYPD’s surveillance of Muslims to determine whether those efforts have violated a 1985 consent decree in the Handschu case that restricts the Police Department’s ability to conduct surveillance targeting political and religious activity. The filing also asks the court to order the NYPD to preserve any records relating to its surveillance of Muslims while the discovery process takes place.

“The NYPD’s reported surveillance of local Muslim communities raises serious questions concerning whether the Police Department has violated court-ordered restrictions on its ability to spy on and keep dossiers on individuals,” said NYCLU Legal Director Arthur Eisenberg. “In order to know whether the NYPD is violating the court order, we need a more complete explanation of the NYPD’s surveillance practices.”

To be clear, this is a response to the ethnic profiling, not the crack-down on #OccupyWallStreet.

But if the NYCLU effort succeeds, it may succeed in exposing a lot more about how the NYPD became the CIA-on-the-Hudson. Anthony Bologna’s aggression is already being investigated by the NYPD itself and the DA. But with this NYCLU action, other activities of the NYPD may get scrutinized by the courts, too.

29 replies
  1. William Ockham says:

    I haven’t had time to follow this story as much as I would like, but I want to know if Mr. Bologna was at the scene as part of his duties in counterterrorism. Did the NYPD see the “Occupy Wall Street” demonstrators as potential terrorists? Maybe people would start thinking about whether it is a good idea to give the federal government the right to “off” American citizens without any due process if they saw themselves as potential targets. I think there are a lot of people who could see themselves as participants in either the “Occupy Wall Street” movement or the Tea Party. Does the NYPD and the CIA see those groups as potential terrorist threats?

  2. William Ockham says:

    @emptywheel: And I think we should assume the answer is yes. I’m sure he could have been there as part of an “all hands on deck” response, but I haven’t seen anything that makes me think that the NYPD was particularly stressed by the protest until after his actions.

  3. MadDog says:

    Perhaps someone with Pacer access can enlighten me (assuming that Judge Haight’s ruling is not itself classified). Just who represented the injured party in Judge Haight’s court when he relaxed the NYPD surveillance and intelligence gathering rules in 2002?

    Was there any injured party representation at all? Or was this merely the NYPD and the Judge alone getting together to trash the Constitution?

    I don’t want to think that is true, but stranger things have happened in our justice system post 9/11.

  4. MadDog says:

    OT – CBS News tonite reported this:

    AFT Fast and Furious: New documents show Attorney General Eric Holder was briefed in July 2010

    New documents obtained by CBS News show Attorney General Eric Holder was sent briefings on the controversial Fast and Furious guns operation as far back as July of 2010. That directly contradicts his statement to Congress.

    On May 3, 2011, Holder told a Judiciary Committee hearing, “I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks.”

  5. P J Evans says:

    There are people wondering about those in the front rows of the march across the Brooklyn Bridge. Seems they were the first to step off the sidewalks into the roadway, and they were the ones who started the chanting that drowned out the police announcements.
    What’s being asked is, who were they, and who were they actually working for?

  6. bmaz says:


    Uh, yeah. Don’t you remember me saying that NO big ATF program goes off without briefing at the highest levels of DOJ and a senior level minder? Arizona USA Dennis Burke may have been stupid for being involved in Gunrunner/Fast&Furious, but there is no question whatsoever the real orders and authorization came from DOJ Main. Just a question of whether they can keep that covered up and out of play.

  7. MadDog says:

    @bmaz: It will be interesting to see what these top DOJ officials end up having to say for themselves. What’s the odds that Issa will have them in his hot seat shortly?

  8. MadDog says:

    On topic, something from an AP piece this evening that was interesting:

    Lawyers seek NYPD spy docs as lawmakers duck issue

    …Two Democrats on congressional intelligence committees said they were troubled by the CIA’s involvement in these programs.

    “The CIA has no business or authority in domestic spying, or in advising the NYPD how to conduct local surveillance,” said Sen. Dianne Feinstein, D-Calif, the chairwoman of the Senate Intelligence Committee. “The CIA inspector general is looking at those allegations, as well as those of inappropriate placement of CIA officers in the police department.”

    Rep. Jan Schakowsky, D-Ill., a member of the House Intelligence Committee, said Congress should have more oversight over programs that it has helped finance and train.

    “If we are funding the activities of local law enforcement agencies like the NYPD, then we have to do oversight,” she said. “We have to be held accountable ourselves…”

    Diane Feinstein said what? I’m having a hard time accepting she said what she said.

  9. Don Bacon says:

    Anthony Bologna’s aggression is already being investigated by the NYPD itself? I betcha he’ll get a medal. (Just like, on a different scale, the Marines got off for the Haditha massacre.) It’s a guy thing; tough guys rule. Otherwise chaos, the thinking goes.

  10. bmaz says:

    @MadDog: My guess is the Administration will not make them easily available.

    DOJ is now back peddling on the Holder testimony, telling CBS that, “Holder misunderstood that question from the committee – he did know about Fast and Furious – just not the details.”

  11. MadDog says:

    @MadDog: Something about SCSI Chairwomen Diane Feinstein’s remarks makes me think that former CIA Directors Tenet, Goss, Hayden and Panetta didn’t inform Congress about the CIA’s little illegal joint CIA/NYPD domestic surveillance and intelligence gathering operation, doncha think?

    Though not complete, here’s a suggested list of folks that ought to be grilled:

    Tenet, Goss, Hayden, Panetta, Brennan, Frannie Townsend, Chertoff, Ridge, Napolitano, and that furry little rodent Rizzo.

  12. MadDog says:

    If you are still online bmaz, my last comment is stuck in moderation. Too many links probably. Is the limit 2 or 3 before automatic moderation?

    No particular hurry. The comment has the CBS News links to the newly released documents.

    • bmaz says:

      Fixed MD. And I might say that somewhere high in the AAGCrim office is exactly where I would expect supervision of a big ATF operation to be. Breuer may not be the most informed detail minder guy on it, may be someone just under him. But they knew, I can pretty much guarantee it.

  13. Don Bacon says:

    Let’s go Fast and Furious.

    Sep 30, 2011
    from Katie Pavlich, News Editor, Townhall
    Multiple sources, including sources from ATF, DOJ and Congressional offices have said there is a white paper circulating within the Department of Justice, outlining the essential elimination of ATF. According to sources, the paper outlines the firing of at least 450 ATF agents in an effort to conduct damage control as Operation Fast and Furious gets uglier and as election day 2012 gets closer.

  14. Don Bacon says:

    And on djosiris.blogspot
    Saturday, October 01, 2011

    In the ongoing coverup surrounding what has become known as “Fast & Furious” new documents have been released by the Obama administration to the Congressional investigation.

    The documents show ongoing communication between then-ATF Special Agent in Charge of the Phoenix office Bill Newell – who led Fast and Furious – and then-White House National Security Staffer Kevin O’Reilly. Email evidence also show the two also discussed the matter over the phone.

    Due to such direct and detailed communication between the local ATF manager in Phoenix and a White House national security member has raised serious questions among the Congressional members investigating the scandal involving the ATF supplying Mexican cartel members with arms in a scandal reminiscent of the Iran Contra scandal. Bill Newell has previously stated that he and and O’Reilly are long time friends.

  15. MadDog says:

    @bmaz: Ta for the release!

    I’m left to wonder how the DOJ can avoid sending their top folks up to the Hill. Gonna be hard to avoid both Issa and Grassley. Particularly Grassley given he’s the ranking minority member on the Senate Judiciary Committee which has juridiction over the DOJ.

    I think we’ll have to stay tuned for further fireworks.

  16. MadDog says:

    @Don Bacon: Yeah, I was reading their email chain over at the CBS News site earlier this evening. O’Reilly was writing about getting more info for a big John Brennan speaking engagement, so I’d wonder if Brennan isn’t feeling the heat as well.

  17. MadDog says:

    @MadDog: More OT – Yeah, yeah, yeah. I was going to hit the hay, but one more piece for late night and early morning residents of Rancho Emptywheel.

    From Carol Rosenberg at the Miami Herald:

    No 9/11 trial this year at Guantánamo war court

    Carol also included an update about the Military Commission viewing:

    “…Meantime, the Pentagon is preparing a viewing site at Fort Meade, Md., near Washington, D.C., for reporters to watch the proceedings by a 40-second-delayed closed circuit feed as an alternative to making the trip to Camp Justice at Guantánamo. The military is also preparing a viewing site in Norfolk, Va., for the families of the 17 American sailors who were killed in the Cole attack off Yemen in October 2000.”

  18. Don Bacon says:

    From the Friday document dump–
    Among the documents produced: an email in which ATF’s Newell sent the White House’s O’Reilly an “arrow chart reflecting the ultimate destination of firearms we intercepted and/or where the guns ended up.” The chart shows arrows leading from Arizona to destinations all over Mexico.

    Congressional investigators for Republicans Rep. Darrell Issa (R-CA) and Sen. Charles Grassley (R-Iowa) have asked to interview O’Reilly by September 30. But the Administration informed them that O’Reilly is on assignment for the State Department in Iraq and unavailable.

    Over two hundred Mexicans were killed with these “walked” guns, along with a United States Border Patrol agent.

  19. Nox Ninox says:

    I’d like to give a special shout out to the NYPD for its stellar efforts in the field of professional crowd control this past month. The wholly disproportionate and unnecessarily violent response has been positively crucial in promoting the Occupy Wall Street protests both at home and abroad.

    I mean, I don’t know who came up with a protest minimization strategy based on Tony Bologna running amok with a pepper spray can, but he or she deserves a big bonus of Jamie Dimon’s money and a promotion to the PR department.

    Oh, and that Brooklyn bridge stunt over the weekend? Pure marketing genius. You simply can not ask for any better publicity than mass police entrapment on an iconic bridge. Just ask the Cairo cops. I hear Ken Burns is even thinking about a new director’s cut DVD.

    So please keep up the good work, NYPD. In only a few weeks, your repeated overreactions have turned a local sit in of a few hundred college kids into a full fledged national protest movement.

    They couldn’t have done it without you.

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