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Civil Liberties And Police Surveillance

by Jaime Adame, Jan 06, 2004
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Critics of New York Police Department policies instituted in the wake of the September 11th terrorist attacks ended the year with a sense of anticipation-and disappointment.

A new, non-binding City Council resolution seeking to reaffirm the importance of civil liberties for New Yorkers became the victim of bad timing, as a vote on the resolution scheduled for December 15 was postponed until January following the capture of Saddam Hussein by military forces. (See December Law topic page)

Leaders from the New York Civil Liberties Union anticipate that the resolution will be passed when the council resumes in January. The resolution includes strong language against New York Police Department surveillance policies and also calls for the department to release statistics involving the number of searches done under the U.S. Patriot Act (under the law, such searches are done without the knowledge of the person being investigated).

The resolution, if passed, would be among scores of others passed nationwide in response to the Patriot Act. But in New York, there have already been several complaints about police practices that have left many civil libertarians disappointed with New York police.

Handschu Gone, But Not Forgotten

A 1971 class-action lawsuit forced the department to adopt guidelines in 1985 that require proof of an actual or imminent crime before investigating political activities. Those guidelines, known as the Handschu guidelines, were criticized by police as a roadblock to gathering information about potential terrorist organizations post-September 11. For example, a complex money trail potentially leading to and from potential terrorist organizations, or speech inciting people to "rise up" against the United States could not lead to further police investigation, as long as such actions remained within the letter of the law.

The city fought successfully to repeal the Handschu decree, reportedly at the urging of Deputy Commissioner of Intelligence David Cohen, who worked for the Central Intelligence Agency for 35 years. Federal Judge Charles S. Haight ruled last January in favor of the police, relying on affidavits from Cohen that testified the Handschu decree was not workable in the "context of terrorism."

However, the same judge reprimanded the police for their interrogation of protestors arrested at a February anti-war rally. Though police claimed that they asked questions from a "debriefing" form (which itself drew a raised eyebrow from Haight), 12 protestors signed affidavits saying that they were asked such questions as "Do you hate George W. Bush," and "Don't you think it was necessary for us to get involved in World War II?"

Police Commissioner Raymond Kelly and Cohen both said they did not know about the "debriefing" form, raising questions voiced by attorneys about whose orders some of the 37,500 police officers seemed to be following.

For his part, Judge Haight said that he thought his original ruling struck a proper "balance between the legitimate demands of public security and individual freedoms." But after reviewing the complaints from protestors, Haight said, "I no longer hold that confidence."

What's Next?

For all the bad publicity and harsh words from Haight, the only change following the February incidents was that the police's surveillance policies were themselves placed under court supervision, a hand slap viewed by police as inconsequential.

And while the resolution before the City Council seems to show that civil liberties can be made into a citywide political issue, the idea that the so-called New York Bill of Rights will affect change in police policy-or even lead to the release of information such as how often education or library records have been pulled by law enforcement, as called for by the resolution-seems a dubious proposition.

Looming this year is the Republican national convention, a good bet to draw some sort of rally against Republican policies. Should any protestors be arrested, the courts and civil liberties groups like the New York Civil Liberties Union will be watching to ensure that no inappropriate questions are asked by police.

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