By Michael Powell Washington Post Staff Writer Friday, November 29, 2002; Page A18
NEW YORK -- Arguing that this city faces a far more perilous world than once imagined, New York's police commissioner wants to toss aside a decades-old federal court decree governing the limits on police spying and surveillance of its own citizenry.
City officials argue that officers need more elbow room to photograph, tape and infiltrate political and social organizations to uproot terror networks. But civil libertarians warn of a return to the unsavory days of old, when New York's police department acquired a reputation for police "black bag" break-ins and spying on political dissidents.
It's a battle with echoes in other cities. In Chicago, officials have already weakened a court decree limiting police spying. In San Francisco, officials have reversed their own 1997 decision and have now joined an FBI terrorism task force, even though FBI surveillance of mosques and peaceful protests could violate the California constitution.
Taken together, these steps suggest a cultural and legal shift driven by fear of terrorism in cities where a civil libertarian impulse once was widely shared. Nowhere is that more noticeable than here.
"The New York Police Department had no conception of the challenge it would face in protecting the city and its people from international terrorism" when it signed the consent decree, city attorneys argue in a federal legal brief. "Clearly, the public interest in law enforcement's ability to protect it from terrorist violence is the most vital priority."
A federal trial court is expected to begin reviewing the New York case in December.
Civil libertarians argue that the fear of police abuses in a war on terror is neither speculative nor paranoid. In New York, Chicago and San Francisco, police spying and surveillance has a long and ignoble history.
"We are seeing a national phenomenon where, in the name of protecting national security against a new and subtle danger, there is a massive effort to eliminate protections for political protest," said Donna Lieberman, executive director of the American Civil Liberties Union. "These safeguards were put in place in the aftermath of a documented history of systematic spying, infiltration and dirty tricks by police agencies and the FBI."
The New York case involves a consent decree signed in 1985, settling a federal class-action lawsuit originally brought by criminal defense lawyers in 1971. The decree prohibits police from photographing and carrying out surveillance of political demonstrations. To infiltrate lawful political and social organizations, police must establish a suspicion of criminal activity and gain the permission of a special three-person authority.
This three-person authority consists of two high-ranking police officials and a civilian appointed by the mayor. Civil libertarians argue this is hardly an onerous burden for law enforcement.
"We're trying to figure out what the police are so upset about," said Paul Chevigny, a law professor at New York University Law School who helped bring the class-action lawsuit 30 years ago. "It doesn't require much of an intrusion. It's hard to imagine what they have in mind."
That argument, say critics of the consent order, can as easily be stood on its head. If the decree is so innocuous, they ask, why keep it on the books? What undercover officer would risk reprimand and attempt to infiltrate a mosque without the approval of his bosses?
Civil libertarians here note that Police Commissioner Raymond W. Kelly has declined to cite a single specific case in which the consent decree hindered a police investigation. In many cases, the U.S. Patriot Act allows the FBI leeway to carry out the same surveillance without federal court oversight.
Critics note that the decree could intrude on basic police work. After the attacks on the World Trade Center and Pentagon last year, routine airport videos helped police quickly identify the terrorists. And seemingly neutral leads provided links to planned terrorist actions.
"The concerns about revoking this decree seems almost irrelevant in light of the terror activity we can imagine might be going on," said Jerome Skolnick, a New York University law professor specializing in criminal law and police procedure. "We're in a different world, where the enemy isn't some civil liberties lawyer. That argument and worry doesn't compute any more."
Nevertheless, there are many who remember abuses: In the 1950s, the New York Police Department's Red Squad compiled voluminous files on political meetings of left-leaning organizations, and passed to Congress and the FBI lists naming people the Red Squad believed were communist sympathizers. This squad's lineal descendant was the NYPD's Bureau of Strategic Services (BOSS), which during the 1960s tracked, photographed and pored through the personal and business affairs of prominent liberals and others.
Then came the Black Panther Party trials in New York of the early 1970s, in which the black radicals stood accused of conspiring to blow up five department stores, a precinct house, the New Haven Railroad and the New York Botanical Garden in the Bronx. It turned out that Manhattan District Attorney Frank Hogan had ordered undercover police officers to infiltrate the Black Panthers, to the point that jurors could no longer distinguish between the felonious impulses of the Panthers and the undercover cops. (In one case, a police undercover agent handed the Panthers a map and a rented car, and urged them to carry out an armed robbery.)
The jury acquitted the Panthers in three hours. Weeks later, defense attorneys filed the class-action lawsuit that eventually resulted in the 1985 consent decree.
"There was an awful lot of police entrapment," recalled Chevigny. "Of course, there was also a danger from the Panthers, I won't deny that. Those were different times."
New York's police department now cites the example of Chicago, where a federal court recently agreed to weaken a similar legal decree that constrained the police. That city's history of civil liberties abuses was, in many respects, worse than that of New York. Over the course of two decades, the FBI in Chicago carried out more than 500 "black-bag"{ndash}which is to say illegal -- jobs in Chicago. And police routinely investigated political opponents of the mayor.
"Police went to our fundraisers and recorded license plate numbers," said Harvey Grossman, director of the ACLU's Illinois office. "They kept voluminous files on the NAACP and the League of Women Voters. This is a history we ought not to forget."
In Grossman's view, the decrees serve as a brake on police behavior and help to educate new generations of police officers. "The decrees are seen as therapeutic," he said. "The hope was that you'd eradicate a culture."
Not all cities want to loosen restraints on police surveillance, even after Sept. 11, 2001. In Portland, Ore., the police department drew national attention last year when it refused to participate in FBI interviews of Middle Eastern men living in the United States on student, tourist or work visas. The city attorney said the interviews were too broad and violated state law.
In Denver, police officials recently pledged to destroy secret police-surveillance files kept on 10,000 law-abiding people.
"Of course, our history is different," said Mark Silverstein, legal director of Colorado's ACLU. "We watched the World Trade Center on television; we didn't directly experience it."
The New York Police Department's point man on matters of terror is David Cohen, a former deputy director of operations for the Central Intelligence Agency. Cohen declines interviews and refuses to divulge even his age for what he says are security reasons. In the face of the latest terrorism threats, the police department said that Cohen and his officers must be granted wide leeway.
"The people of this city are entitled to the benefit of his professional judgment," the city argues in a legal brief, "in how the ongoing threat to our nation, our lives, and our property is best addressed."
Norman Siegal, former NYCLU director, recoils at such arguments. To simply leave such judgments in the hands of a top cop, he said, runs against the grain of this congenitally argumentative metropolis.
"New York is a town of big mouths," he said. "If we chill dissent and stop being the city of big mouths, the nation loses something vital, even if it doesn't realize that now."