Commentary Magazine


Who Will Defend the Defenders?

In April, the Pulitzer Prize for investigative reporting was awarded to the Associated Press for a series of articles it published about the New York Police Department’s “clandestine spying program that monitored daily life in Muslim communities.” The AP’s assertions were so extensive that they filled more than 50 separate pieces, the first published in August of last year. Its reporters alleged that since the attacks of September 11, the New York City Police Department’s Intelligence Division had placed entire Muslim communities under scrutiny with “no evidence of wrongdoing.” The department, they wrote, had infiltrated mosques and Muslim student groups with no legal basis to do so. It had operated far outside its geographical jurisdiction and had cast too wide a net when monitoring and analyzing American Muslims.

The NYPD had joined the CIA in an “unprecedented partnership,” blurring the line between foreign and domestic intelligence-gathering, and had operated in secrecy with “scant oversight.” It had run afoul of legal constraints, especially a series of limitations on its intelligence-gathering to which the NYPD itself had agreed following a court case in 1985. It had violated civil-liberties rules in a way that would not be permitted of federal institutions. And after all this misbehavior, the results were mixed in any case.

The articles were quickly and widely disseminated and elicited expressions of deep outrage among Muslim Americans and civil-liberties activists. They created fissures between the police and the communities it sought to protect, undermined confidence in the NYPD, and attracted national attention—which, according to the AP’s Pulitzer citation, “result[ed] in congressional calls for a federal investigation and a debate over the proper role of domestic intelligence-gathering.” As well they should have. A free citizenry relies on a free press to uncover civil-liberties abuses.

But any serious discussion about the alleged methods and practices of the NYPD Intelligence Division should have begun with one question: Was the AP’s investigation accurate?

The answer is no.

The articles misrepresent the scope, purpose, and rationale behind many of the NYPD Intelligence Division’s programs. They confuse events and policies in ways that are misleading and cast the tale they are telling in the worst possible light. I know all this to be true, because I worked directly for the deputy commissioner of the Intelligence Division for the last seven years, first as a special assistant and then, for the last four years, until May 2012, as his director of intelligence analysis, overseeing all the city’s terrorism investigations.

Nonetheless, the articles were accepted as gospel—perhaps because the accuracy of the work was beside the point. They were celebrated precisely for what they alleged, not what they proved. Their purpose was not to foster serious debate about NYPD anti-terrorism activities, and there has been no such serious debate in their wake.

The legal and policy questions surrounding how to safeguard civil liberties while defending society from acts of terrorism are certainly complex. There is, inevitably, a difficult balance we must strike between security and liberty, and it demands rigorous and ongoing debate about American anti-terrorist methods. Rather than raising these issues in a thoughtful way to inspire reasoned discussion, however, the series of articles made broad allegations and cherry-picked and misconstrued examples to support particularly damaging charges.

This article is intended to restore the context, accuracy, and critical detail left out by the AP and thereby convey the truth of what is an honorable and successful story of sustained, life-saving police work in a climate of unprecedented threat. It is impossible to respond to every AP allegation and distortion even in this generous space. I will therefore focus on the three subjects that have dominated headlines about alleged NYPD misconduct since the articles were published: first, a supposed human-mapping program run by the department; second, counterterrorism efforts outside New York City; and third, actions involving universities. In honing in on these hot-button issues, I will also refute a number of attendant accusations about the ethics and efficacy of NYPD methods.

But first, some background on the evolution of the Intelligence Division and its strategy.

On February 26, 1993, a massive car bomb was detonated below the North Tower of the World Trade Center. The 1,336-pound device was intended to knock the North Tower into the South Tower, bringing both down and killing thousands. The plot failed but still killed six people and injured 1,042 more.

Although the suspects were dismissed as incompetent, their associates were already plotting another attack. The extremist cleric Omar Abdel Rahman, also known as the Blind Sheikh, was at the heart of this follow-up plan to attack the United Nations, the Lincoln and Holland tunnels, the George Washington Bridge, and the FBI’s New York office. That so-called Landmarks Plot was thwarted by an informant who had infiltrated the group.

Almost all the participants in both plots were ultimately arrested, tried, and brought to justice, and that temporarily closed the case for most Americans. But on the morning of September 11, 2001, Islamist terrorism crashed back into New York City when 19 al-Qaeda members hijacked four commercial passenger airliners and rammed two of them into the World Trade Center, killing 2,749 people and completing the mission begun in 1993.

Having been attacked twice successfully in the span of eight years, the city could no longer completely defer the responsibility of counterterrorism to the federal government, determined Police Commissioner Raymond Kelly. While the NYPD was prepared to work with the federal agencies, the department determined it would have to make systemic and autonomous changes in how to protect the city from further attacks.

To meet that challenge, in January 2002, the NYPD became the first police department in the country to develop its own Counterterrorism Bureau. The new mayor, Michael Bloomberg, and Commissioner Kelly appointed Marine Corps Lieutenant General Frank Libutti to run it. To head a restructured Intelligence Division, the department recruited David Cohen, a 35-year veteran of the CIA who had led both the operational and analytical branches of the agency.

This was no mere cosmetic relabeling or shuffling of the bureaucratic deck. The department increased its representation on the FBI-led Joint Terrorism Task Force from 17 detectives to 120. It reassigned fluent speakers of Arabic, Pashto, Farsi, and Urdu to counterterrorism duties. And it posted senior officers in 11 cities around the world to build relationships with local police agencies and visit the scenes of terrorist attacks abroad.

The NYPD also incorporated a crucial civilian component to fight terrorism. A corps of expert analysts in foreign affairs, intelligence, and counterterrorism were recruited from top graduate schools as well as from the intelligence community inside the Beltway. These well-trained and well-educated civilians were tasked with studying evolving methods of attack and terrorist hot spots around the world.

Additionally, the department cast a wide net for collaboration, working with law-enforcement agencies throughout the northeast and mid-Atlantic and partnering with 11,000 members of the region’s private-security industry through a program called NYPD Shield.

Preventing another 9/11 meant studying the attacks of 1993 and 2001 and the thwarted Landmarks Plot. The 1993 attack and the plot were local affairs, planned by groups of regionally based conspirators, six of whom originated from the Palestinian territories, Egypt, and Kuwait. The men lived in New York City and New Jersey, and the sites of their radicalization included the Al Kifah Refugee Center and Al Farouq Mosque, both on Atlantic Avenue in Brooklyn, and the Al Salam Mosque in Jersey City. These mosques were in thrall to the Blind Sheikh.

The 9/11 attack was carried out by men from Saudi Arabia, the United Arab Emirates, Egypt, and Lebanon. They had been trained overseas before blending into the population of the United States. At least six of them chose to live in Paterson, New Jersey, specifically because there was “an Arabic-speaking community there,” as the 9/11 Commission Report says. Vitally, in the Landmarks Plot (the only one against New York that was derailed during this eight-year period) a confidential informant who was able to penetrate the conspiracy was the critical factor in detecting and disrupting the plan before it became an attack.

These trends meant that the department had to figure out how to (a) find individuals from abroad who had buried themselves in local communities and (b) utilize human intelligence (confidential informants) to penetrate conspiracies before they came to fruition.

If the task wasn’t challenging enough, the NYPD also had to contend with a piece of legal architecture known as the Handschu Guidelines, a binding agreement overseen by a federal judge following the settlement of a lawsuit in 1985. No other police department in the country is bound by these rules, which at the time stipulated in part that police were not allowed to investigate political activity before having specific knowledge of criminal activity. After 9/11, the department was understandably concerned that prohibitions in the guidelines might interfere with its ability to prevent terrorist attacks. As a result, in 2002, the NYPD proposed to a federal court that the terms of the guidelines be modified; the court agreed.

The modified guidelines begin by stating a general principle: “In its effort to anticipate or prevent unlawful activity, including terrorist acts, the NYPD must, at times, initiate investigations in advance of unlawful conduct.” Clearly, conducting an investigation following a successful attack, as was done in 1993 or 2001, was no longer acceptable. Plots had to be disrupted before they went operational.

The new Handschu rules also state: “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.” It is therefore entirely legal for the Police Department to search online, visit public places, or map neighborhoods.

I.

The Demographics Unit

 The AP Claim: The NYPD has engaged in a “human-mapping” program without citing any evidence of wrongdoing. This program has placed entire Muslim communities under scrutiny.

For some, the very act of gathering intelligence is an illegitimate use of police power. But to find and stop terrorists, the Police Department uses many of the same methods that are used to arrest drug dealers, human traffickers, and gang leaders. Detectives develop detailed information about the nature of the crime and the people involved. While tips from the public are useful, the police cannot rely on them exclusively to detect terrorism conspiracies.

In 2003, with that in mind, the Intelligence Division created the Demographics Unit. Its mission was to identify “venues of radicalization” or “hot spots” in order to detect and disrupt terrorist plots in their beginning stages. The unit was also charged with identifying the locations in certain communities where foreign operatives might hope to lie low, just as the 9/11 hijackers did in Paterson, New Jersey. Given the rich diversity of the ethnic and cultural landscape of New York City, officers in the unit were specifically chosen for their unique language capabilities and cultural knowledge. Individuals were matched to geographic areas where they would be best able to distinguish the benign from the threatening. Proud to be Americans and members of the NYPD, the majority of these officers were Muslims.

A September 22, 2011, AP article paints a frightening portrait of the Demographics Unit and the work it did: “The New York Police Department put American citizens under surveillance and scrutinized where they ate, prayed, and worked, not because of charges of wrongdoing but because of their ethnicity, according to interviews and documents obtained by the Associated Press,” runs the article’s opening paragraph. “The documents describe in extraordinary detail a secret program intended to catalog life inside Muslim neighborhoods as people immigrated, got jobs, became citizens, and started businesses. The documents undercut the NYPD’s claim that its officers only follow leads when investigating terrorism.”

But this police-state nightmare bears no resemblance to the nuanced work of the Demographics Unit. The unit employed what is called a risk-basis model. In the three Islamist plots against New York between 1993 and 2001, the vast majority of the conspirators were from a limited group of countries: Egypt, Kuwait, Lebanon, the Palestinian territories, Saudi Arabia, the United Arab Emirates, and Yemen. The risk-basis model would therefore indicate that these countries could be deemed “higher risk” or “of concern” in relationship to terrorism.

A similar risk-based model is exactly what the Transportation Safety Agency (TSA) recently adopted in the wake of a different terrorist plot—that of the 2009 Christmas Day Bomber, who failed to bring down a plane above Detroit only because he couldn’t ignite the explosive device concealed in his underwear. The TSA made a list of “countries of concern,” and now passengers from those 14 states face additional scrutiny, such as pat-downs and having their carry-on luggage examined under the new rules. (There is a great deal of overlap between the countries on the TSA list, developed by the Department of Homeland Security and the State Department, and those states the NYPD has considered “countries of concern.”)

Plainclothes officers of the Demographics Unit were deployed for this mission. They went into neighborhoods that had heavy concentrations of populations from the “countries of interest” and walked around, purchased a cup of tea or coffee, had lunch and observed the individuals in the public establishments they entered. This is an important point: Only public locations were visited. Doing so was perfectly within the purview of the NYPD, for, as the Handschu Guidelines say: “The NYPD is authorized to visit any place and attend any event that is open to the public.”

Here’s what they did not do: Plainclothes officers did not conduct blanket ongoing surveillance of communities. Not only is that an impossible task, but it also would have been inefficient and had a low likelihood of identifying terrorist plots in their early stages. At its largest, during a brief period after the July 7, 2005, attacks in London, the unit had 16 officers—hardly enough to monitor a neighborhood, much less whole communities. Officers would take a first pass to familiarize themselves with luncheonettes, dollar stores, and other legitimate businesses and record what they saw. They would be very unlikely to return unless there was reason to believe that a location might be a “venue of radicalization.”

How did the AP treat this? Its writers claimed that “the department has dispatched teams of undercover officers, known as ‘rakers,’ into minority neighborhoods as part of a human-mapping program, according to officials directly involved in the program.” As mentioned above, individuals involved were not undercover officers. Undercover officers are provided with fake identities and misrepresent who they are. Plainclothes officers of the Demographics Unit carried no false identification and did not purport to be anyone in particular. This was a blatant error on the part of the AP. In addition, the AP claimed, “Police have also used informants, known as ‘mosque crawlers,’ to monitor sermons, even when there’s no evidence of wrongdoing.” As a matter of Police Department policy, undercover officers and confidential informants do not enter a mosque unless they are following up on a lead vetted under the terms of the Handschu Guidelines. The AP’s description of “mosque crawlers” roving from mosque to mosque without express legal permission to enter that location is pure fiction.

Still, there was the collection of information, and that is really what troubled people. So why cover social and recreational sites to begin with? The answer: Radicalization frequently occurs in nontraditional locations, not only religious centers. One of the key findings of the 2004 attack on a Madrid train station (inspired by al-Qaeda) and the 2005 attack on the London Underground (committed by al-Qaeda) was that the plotters had not radicalized in mosques. In Spain, different members of the terrorist cluster were radicalized in a barbershop, an apartment, and an unidentified store where some “watched videos containing images of exercises in training camps, as well as images that exalted the value of the jihad,” according to court testimony. In the U.K., the venues of the radicalization of the 7/7 bombers included the Iqra Learning Center bookstore and the “al-Qaeda gym” (the Hamara Healthy Living Centre), both in Beeston.

The AP articles claimed that the NYPD “kept files on individuals” gathered by the Demographics Unit. This is a significant distortion of reality. Yes, to be sure, observation reports were prepared. Naturally, such reports included the names of store owners and customers and the information gleaned from conversations. However, no files about particular individuals were created. The Word-document reports and area-familiarization summaries about visits to public locations were kept on the shelf so that they might be accessed in the event of a fast-moving plot. It would give the department a head start on geographically based knowledge, including data about venues of radicalization and potential “flophouses” or other locations where operatives from specific countries might seek to conceal themselves.

For example, the Demographics Unit was critical in identifying the Islamic Books and Tapes bookstore in Brooklyn as a venue for radicalization. Information the unit collected about the store provided a predicate for an investigation that thwarted a 2004 plot against the Herald Square subway station. The unit also played a role in forming the initiation of an investigation that led to the 2008 identification of Abdel Hameed Shehadeh, a New Yorker who was arrested and is currently facing federal charges for allegedly lying about his plans to travel to Afghanistan in order to kill U.S. servicemen. Both operations were conducted in accordance with the Handschu Guidelines.

Anyone who suggests that the efforts of this unit (which was renamed the Zone Assessment Unit in September 2010) did not comport with legal rules either has not read the Handschu Guidelines, has misunderstood them, or has willfully overlooked their meaning. The AP’s reporters and editors were in one of these categories. Anyone who denies the success of the demographics initiative is fortunate not to carry the burden of responsibility should there actually be a counterterrorism failure resulting in an attack. I, for one, would have borne that responsibility. The AP team would not have.

II.

Outside City Limits

 The AP Claim: The NYPD’s Intelligence Division operates far outside its geographical jurisdiction without the knowledge of local agencies.

If vast oceans and international borders cannot hinder terror plots against the United States, invisible lines separating states and counties certainly cannot. The 1993 attack on the World Trade Center was launched from Jersey City. The 2005 attack on the London Underground was launched from Leeds, 180 miles north of the capital. More recently, Faisal Shahzad’s 2010 plot to explode a bomb in an SUV in Times Square on a summer Saturday night on behalf of the Pakistani Taliban was launched from Bridgeport, Connecticut.

It is perfectly legal for the NYPD to travel beyond the boundaries of New York City to investigate cases or visit commercial establishments where terrorists might be radicalizing. Similarly, it is legal to obtain information outside of New York that the Intelligence Division may use “to prepare general reports and assessments concerning terrorism and other unlawful activities or the purposes of strategic or operational planning.”

In order to help its partner agencies better understand their own jurisdictions, the Demographics Unit was deployed on select occasions to jurisdictions in New Jersey and Long Island. This led the AP to determine that “the NYPD operates far outside its borders and targets ethnic communities in ways that would run afoul of civil-liberties rules if practiced by the federal government.” What’s more, according to the August 23 article, “it does so with unprecedented help from the CIA in a partnership that has blurred the bright line between foreign and domestic spying.”

The notion of the NYPD as a rolling team of rogue spies would be comically preposterous if it weren’t so damaging. First, the NYPD is not the federal government. Second, these operations were not unilateral. Local agencies were involved. Any reports or assessments were shared with the local police agencies. What local police chose to tell or not to tell the politicians in their areas was beyond the NYPD’s purview.

As the New Jersey Star-Ledger reported on March 6, 2012:

Although recent disclosures that in 2007 the New York Police Department spied on Muslims in New Jersey have unleashed a furor, interviews with a dozen former state and federal officials show the department’s presence was widely known among the state’s law enforcement officials. In fact, it seems that after the 9/11 terrorist attacks, almost everyone—including Gov. Chris Christie, who was U.S. Attorney for New Jersey at the time—knew to varying degrees the NYPD was scouring the state, where some of the hijackings were planned and one was launched.

A different initiative included the selective use of undercover officers and confidential informants outside city limits. As with the investigation of the 1993 plot against the World Trade Center, which refused to be limited to one side of the Hudson River, a number of terrorist investigations that began inside city limits bled over into adjacent jurisdictions. Any such investigative activity involving human sources had to be conducted in strict accordance with the Handschu Guidelines, just as if those investigations were limited to New York City.

NYPD efforts beyond city limits led to the arrests of the New Jersey–based Mohamed Alessa and Carlos Almonte at John F. Kennedy Airport in June 2010. They were headed to Somalia to join the terrorist organization al Shabaab. Their apprehension marked the conclusion of a three-and-a-half-year investigation by the FBI and Joint Terrorism Task Forces in New York and New Jersey. Also involved: the New Jersey Office of Homeland Security and Preparedness and the U.S. Attorney’s office in Newark. The case against Alessa and Almonte was developed through the careful work of an NYPD undercover officer who made contact with the men in 2009 and became a trusted confidant in northern New Jersey.

Similarly, the investigation that led to the arrest of Jose Pimentel began with an investigation in New York City and moved upstate to the Albany region. In November 2011, Pimentel was one hour away from completing the construction of a pipe bomb intended for detonation in New York City when he was nabbed by police. The department’s intelligence program was built to facilitate exactly the kind of regional collaboration that made his detention possible.

One AP headline blared, “NYPD’s spying programs yielded only mixed results.” Strictly speaking, “mixed results” is accurate in that for the programs to have yielded non-mixed results, they would have been 100 percent successful or 100 percent unsuccessful. But the implication of the headline is that results have been disappointing. The record of just one aspect of these initiatives tells a dramatically different story. Read on. 

III.

On Campus

The AP Claim: The NYPD has investigated and infiltrated Muslim student groups without any legal basis to do so.

At universities students are expected to explore new ideas, challenge themselves, and engage in robust debate involving multiple dissenting opinions. The NYPD has been especially sensitive in any operational work that risks infringing on this protected space. Allegations that police have been infiltrating Muslim student groups at colleges in the city and schools beyond city limits, including Yale and the University of Pennsylvania, are serious and need to be addressed.

But in covering this topic, the AP conflated two different elements of investigative work: open-sourced Internet searches and undercover officers. “Investigators have been infiltrating Muslim student groups at Brooklyn College and other schools in the city, monitoring their Internet activity and placing undercover agents in their ranks,” reads an October 11 story. “Legal experts say the operation may have broken a 19-year-old pact with the colleges and violated U.S. privacy laws, jeopardizing millions of dollars in federal research money and student aid.” This is a dramatic misinterpretation of the nature and scope of the department’s actions.

The first investigative initiative involving students began in 2006 and involved the NYPD Intelligence Division’s Cyber Unit. Officers reviewed Muslim Student Association (MSA) websites, all of which were publicly available, for a period of six months—and with good reason.

Consider the following stories from Great Britain: On March 30, 2004, British authorities disrupted an al-Qaeda plot to mount a bomb attack in the United Kingdom. The individuals involved had obtained 1,300 pounds of ammonium nitrate fertilizer for making bombs. They considered targeting a shopping mall, a nightclub, the U.K.’s 4,200-mile network of underground high-pressure gas pipelines, various British synagogues, Parliament, and a soccer stadium. Four of the seven conspirators were either current university students, dropouts, or graduates of London Metropolitan University, the University of Hertfordshire, and Brunel University. One was an active member of the latter’s Islamic society.

The 2005 London subway plot killed 52 commuters, injured 700, and severe disrupted the city’s transport infrastructure. One of the suicide bombers was a recent graduate of Leeds Metropolitan University, one a recent dropout from the same university, and one a university student at Thomas Danby College in Leeds at the time of the attack.

Next summer, on August 9, British authorities disrupted an al-Qaeda conspiracy to detonate liquid explosives on nine transatlantic airliners traveling from the United Kingdom to the United States and Canada. Four of the nine conspirators were either current university students, dropouts, or graduates from London Metropolitan University, City University, Brunel University, and Middlesex University. One had been president of London Metropolitan University’s Islamic Society.

Most important, the trend is not limited to the U.K. Right here in New York, Mohammed Junaid Babar and Syed Fahad Hashmi, who were arrested in connection with the previously referenced 2004 plot in the U.K. and pled guilty to al-Qaeda-related terrorist activities, had been radicalized through the university-based New York branch of al-Muhajiroun, an Islamist student group in Britain to which several of the subway bombers were linked. The group actively recruited at the Muslim Student Associations of Brooklyn College, Queens College, and other universities in New York City. More recently, the NYPD learned that Adis Medunjanin, indicted for his participation in the most serious plot on American soil since 9/11—the 2009 Najibullah Zazi plot to detonate explosives in the New York City subway system—was an active member of the Queens College Muslim Student Association.

So what did the NYPD do about campus radicalization and recruitment? For a six-month period, beginning in November 2006 and ending in May 2007, Intelligence Division detectives conducted public-information Internet searches to determine if radicalization and recruitment to terrorism were occurring on local university campuses and, if so, to what extent.

Detectives visited publicly available websites of universities and colleges in and around New York City, catalogued what they saw, and assembled the information into 23 biweekly reports. (Once again, NYPD members investigating counterterrorism activities are authorized by the Handschu Guidelines to search websites open to the public for the purpose of developing intelligence information to detect or prevent terrorism or other unlawful activities.) They were looking mostly at speakers, conferences, and events held at MSAs that might—even if inadvertently—support terrorism or provide a recruiting venue for extremist Islamist groups.

Fortunately, the vast majority of speakers, conferences, and events held at Muslim Student Associations in the tristate area were nonthreatening in nature, and in May 2007 the initiative was closed. The information from the biweekly reports was not entered into any database.

Nevertheless, not everything going on at universities was benign. Detectives learned that Jesse Curtis Morton, who has just recently pled guilty to “using his position as a leader of Revolution Muslim Internet sites to conspire to solicit murder, make threatening communications, and use the Internet to place others in fear,” according to the Eastern District of Virginia, spoke at Stony Brook University as a leader of the Islamic Thinkers Society. In April 2007, detectives learned that Morton’s co-founder of Revolution Muslim, Yousef al-Khattab, spoke at Brooklyn College’s Islamic Society.

Wholly separate from this initiative is the use of undercover officers in investigations that sometimes involved MSA-related activities. Of course, one could be forgiven for thinking that an investigation involving students from City University of New York on a whitewater-rafting trip was a direct consequence of these open-source Internet searches, given how the AP conflated the two. It was not.

Here is how the AP managed to conflate the discrete phenomena in a February 18 article: “Police talked with local authorities about professors 300 miles (480 kilometers) away in Buffalo and even sent an undercover agent on a whitewater-rafting trip, where he recorded students’ names and noted in police intelligence files how many times they prayed. Detectives trawled Muslim student websites every day and, although professors and students had not been accused of any wrongdoing, their names were recorded in reports prepared for Police Commissioner Raymond Kelly.”

The trip fell under a classic investigative framework after information obtained by the NYPD raised the possibility that an individual or group of individuals were engaged in or planning to engage in unlawful activity.

Much has been made of the benign nature of this particular event where no discussion of terrorism occurred. A post about the trip on New York magazine’s website claims, “What has civil-liberties advocates really worried is just how far the NYPD has stretched the parameters of its domestic espionage program—until now, at least, the official line was that the force only pursued leads about suspected criminal activity. Clearly, that’s no longer the case.”

Such histrionics are hardly warranted. In the subway-bomb-plot trial of Najibullah Zazi and Adis Medunjanin, it was disclosed that operational planning for the plot occurred on the basketball courts of Kissena Park and while hiking on Bear Mountain, north of New York City. Neither a bucolic setting nor a recreational endeavor guarantees peaceful intentions.

The AP also has claimed that these and other investigations have occurred with insufficient oversight. One article uncritically quoted New York Civil Liberties Union lawyer Christopher Dunn, who declared of the NYPD anti-terrorism program: “At the end of the day, it’s pure and simple a rogue domestic surveillance operation.” He continued: “One of the hallmarks of the intelligence division over the last 10 years is that, not only has it gotten extremely aggressive and sophisticated, but it’s operating completely on its own. There are no checks. There is no oversight.”

In particular, the AP has asserted that the modified Handschu Guidelines gave the NYPD operational carte blanche. “He scrapped the old rules and replaced them with more lenient ones,” reads an August 23, 2011, article describing U.S. District Judge Charles S. Haight Jr.’s decision to modify the guidelines in 2002. “It was a turning point for the NYPD.”

But far from providing evidence of this charge, the whitewater-rafting case reveals it as folly. The Handschu Guidelines require written authorization from the deputy commissioner of intelligence when utilizing human intelligence. That requirement was met here as it has been in every other case. Moreover, an internal committee reviews each investigation to ensure compliance, and a legal unit based in the Intelligence Division evaluates every field intelligence report generated through an investigation. This committee meets regularly every month, and at one meeting at the end of my tenure, no fewer than 10 attorneys and five assistant or deputy commissioners were in attendance. It is important to note that investigations are discontinued unless they reasonably indicate that an unlawful act has been, is being, or will be committed.

As a matter of Police Department policy, undercover officers and confidential informants do not enter a mosque unless they are doing so as part of an investigation of a person or institution approved under the Handschu Guidelines. Likewise, when undercover officers or confidential informants have attended a private event organized by a student group, they have done so only on the basis of a lead or investigation reviewed and authorized in writing at the highest levels of the department.

Given my dual role as a former director of intelligence analysis at the NYPD and a visiting lecturer at Columbia University, I took a special interest in this issue and personally reviewed the documents in question to see the number of times that NYPD human sources were present on local campuses in the last five years. The numbers are very small and almost always involved intelligence-collection efforts limited to individuals who were under investigation, not the broader student body.

So, yes, in 2006, given the trends observed both here and overseas, the NYPD thought it prudent to learn more about what was occurring at Muslim Student Associations in the region via open sources, and the six-month initiative generated six months’ worth of public-information reports. The NYPD did not send undercover sources to infiltrate MSAs throughout the northeast. Both the open-source initiative and the few investigations where undercover officers examined the activities of university students as part of an ongoing investigation authorized by Handschu Guidelines have led to a greater understanding of the relationship between terrorism and university organizations and have, as a result, kept New York City safer.

In total, the NYPD has helped to prevent 14 terrorist attacks on New York City and its surrounding areas and permitted exactly zero deadly plots to materialize in the 11 years since 9/11. Its success, based on the math alone, is indisputable. But in a free country, success is not enough. Civil libertarians are correct in asserting that safety at the cost of political freedom would betray the highest American ideals. And the unlawful targeting of New York City’s minorities would constitute nothing less than a cultural and spiritual gutting of the greatest, most diverse city history has seen. But neither of those travesties have occurred, thanks to the genius of America’s Constitution and the NYPD’s exquisite adherence to it.

Sadly, the absence of wrongdoing goes only so far in a media-driven society shaped by the 24-hour news cycle and explosive headlines. The damage the AP inflicted upon the NYPD’s reputation cannot be mitigated wholly by this or any other honest airing of the facts. Indeed, one can argue that inflicting such damage—not debating police methodology—was the point of the AP’s series.

The war on the NYPD’s method of combating terrorism is a war on the war on terror by proxy—an effort to portray the least controversial aspect of homeland security as instead a matter of great civil-libertarian concern. Long before the AP series, the war on the war began with efforts to discredit the federal government’s endeavors to collect intelligence from combatants and terror suspects captured on the battlefields of Afghanistan and Iraq. It zoomed in on the rights of those detained overseas and at the American base in Guantánamo Bay. Now it has come home, to take on a once universally heralded and supported effort at domestic counterterrorism at the epicenter of the 9/11 attacks, New York City.

Having impugned military and intelligence efforts to fight terrorism, these foes are now taking aim at the most conventional kind of anti-terror approach—one that works within the domestic criminal-justice system, is overseen by courts, and is being managed by a police department that has rigorously kept to the terms of legal limits to which it agreed nearly 30 years ago.

By portraying the NYPD efforts as rogue operations, the AP and the Pulitzer committee are seeking to slacken attempts inside the United States to stop terrorist plots before they happen. Letting these false and misleading stories alter local counterterrorism work would be catastrophic. It has taken many hard years to craft the effective anti-terrorism policies that serve us so well today. Now, with al-Qaeda on the ropes, our renewed sense of security can morph easily into complacency—and terrorists will be sure to exploit any new opportunities to attack. The price of maintaining the safety of New Yorkers has been kept remarkably low, not only for residents but for the country as a whole. Preventing another devastating attack from occurring in the city after 2001 was much more than a local necessity. Such an attack would have been devastating to national morale.

And it still would be.

About the Author

Mitchell D. Silber was a member of the NYPD from February 2005 to May 2012 and served as a special assistant to the deputy commissioner (200507) and the director of intelligence analysis (200712). His book, The Al Qaeda Factor: Plots Against the West, was published earlier this year by the University of Pennsylvania Press.




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