More In Defense of Police Commissioner Ray Kelly and The NYPD In Gathering Intelligence on Islamic Terrorists

John O. Brennan, left, assistant to the president for Homeland Security and Counter-terrorism, met with NYPD Police Commissioner Raymond Kelly, center, and Deputy Commissioner of Intelligence David Cohen at police headquarters in Sep. 2009.

On March 4^th, The New York Times editorialized on the subject of the surveillance by the NYPD of the Muslim community, seeking to acquire intelligence and the efforts of Police Commissioner Ray Kelly and Mayor Michael Bloomberg to keep New York City safe from another catastrophic attack as was 9/11.  Kelly defended the actions of his department before a Fordham Law School audience on March 3^rd, with the Daily News of March 4^th describing the event:  “Even as more than 100 protesters demonstrated outside his speech, Kelly did not back down, declaring that the surveillance program was not just legal, but a vital part of the successful takedowns of more than a dozen terror plots since Sept. 11, 2001.”

The Times editorial of March 4^th objected to the gathering of the intelligence, stating, “In particular, the A.P. reports revealed widespread police spying and the creation of police records containing information on Muslim people, mosques and campus groups, as well as luncheonettes, dollar stores and other legitimate businesses owned and frequented by Muslims, with no apparent reason to think anything wrong was going on.  In mid-February, The A.P. disclosed that police officers systematically monitored the Web sites and blogs of Muslim student groups at N.Y.U., Columbia, Yale, Rutgers and a dozen other colleges.  Documents show that an undercover agent accompanied 18 Muslim students from City College on a whitewater rafting trip in 2008.  Dossier entries noted vital national security information — like the number of times they prayed.  Last week, the A.P. reported that plainclothes officers from the department’s euphemistically named Demographic Unit fanned out across Newark in 2007, snapping pictures of mosques and Muslim-owned businesses, listening to conversations, and gathering information about the makeup of mosque worshipers for an eerie 60-page internal police report stamped ‘NYPD Secret.’  Similar reports were prepared on other Muslim neighborhoods.”

The Times refers to the gathering of that material as “constitutionally suspect surveillance of Muslims in New York, New Jersey, Long Island and beyond.  Unearthed police records noticeably lack any apparent link to suspected criminal activity or any obvious payoff for public safety.”

Commissioner Kelly, unlike the Times in any of its editorials, referred in his appearance at Fordham Law School to the federal court decision of Judge Charles S. Haight, known as the Handschu agreement which set forth what the NYPD could do in gathering intelligence.  Kelly stated at the Fordham Law School event, “Since 1985, the Police Department has been subject to a set of rules known as the Handschu Guidelines, which were developed to protect people engaged in political protest.  After 9/11, we were concerned that elements of the guidelines could interfere with our ability to investigate terrorism.  In 2002, we proposed to a federal court that the law be modified, and the court agreed.  Before I go into details let me say that we imposed on ourselves the strictest interpretation of political activity.  One could easily argue that when we investigate terrorism, we are dealing with criminal, not political, activity.  We go above and beyond by treating every terrorism investigation as subject to Handschu.  Let me also say that no other police department in the country is bound by these rules, which restrict police powers granted under the constitution.  The guidelines begin with the statement of a general principle, which I’ll quote. ‘In its effort to anticipate or prevent unlawful activity, including terrorist acts, the NYPD must, at times, initiate investigations in advance of unlawful conduct.’  For some, the very act of gathering intelligence seems illegitimate when applied to the crime of terrorism.  In fact, the Police Department uses many of the same methods to find and stop terrorists that we use to arrest drug dealers, human traffickers, and gang leaders.  We develop detailed information about the nature of the crime and the people involved.  We form partnerships with other government agencies, find sources, and make use of undercover officers.  This is what Handschu says about the broadest form of intelligence gathering: ‘The NYPD is authorized to visit any place and attend any event that is open to the public’ and ‘to conduct online search activity and to access online sites and forums on the same terms… as members of the public.’  The department is further authorized to, ‘prepare general reports and assessments… for purposes of strategic or operational planning.’  Anyone who intimates that it is unlawful for the Police Department to search online, visit public places, or map neighborhoods has either not read, misunderstood, or intentionally obfuscated the meaning of the Handschu Guidelines…The Police Department will not apologize for our lawful efforts to protect New York, and we will not change our methods to satisfy those who would impugn them without understanding them.”

Exactly what the Handschu agreement allowed is what the Times and the various critics of the NYPD object to.  Indeed, the Handschu agreement is subject to modification by Judge Haight, and he has expanded what the NYPD is allowed to do.  Those who believe the tactics of the NYPD violate the laws or constitutions of the U.S. and the state of New York should apply to Judge Haight to narrow the parameters of the Handschu agreement and show why the NYPD should be curbed in its gathering of intelligence.  I certainly hope their application would be denied.

On March 9^th, The Times published another editorial criticizing those who defended the tactics of the NYPD, stating “Mr. Bloomberg said the city’s safety was not ‘a political football to play with.’  Mr. Kelly accused critics of using ‘the media to spread misinformation.’  And former Mayor Ed Koch said an editorial on this page raising questions about the program ‘endangers the lives of eight million residents of New York City.’” We are defending the Handschu agreement.  If the Times, NYCLU and others objecting to the agreement believe their criticisms to be valid, they should bring a proceeding before Judge Haight to modify the Handschu agreement.

When terrorism in the late 1960s and 1970s was overwhelmingly dominated by the Irish Republican Army and the NYPD was undoubtedly surveilling the places where intelligence might be available – the Irish bars on the West Side of Manhattan and in Queens, I don’t recall objections to the activities of the NYPD at the time by The Times.  The people living in New York City are entitled to protection from terrorists whoever they are.  Today, they are overwhelmingly, indeed nearly exclusively, Islamic terrorists seeking to destroy Western civilization.  Simply put, they hate us and are willing to die to defeat us, bring us to our knees and kill us.  This is not hyperbole.  These terrorist attacks are happening throughout the Western world, as has occurred most dramatically in New York City, London and Madrid, where, in the latter two cities, innocent train commuters were blown up, injured and killed.