This action might not be possible to undo. Are you sure you want to continue?
A checkpoint--one of several in the financial district, where armed police. private security officers and barricades now dominate the streetscape. Cover image: A heavily-anned police officer patrols in front of the New York Stock Exchange. Photos: Aaron McElroy
Over the past six-and-a-half years, there has been a sea change in how New Yorkers exercise their basic freedoms to speak, assemble, worship and simply move about their city. But because these changes have been introduced incrementally and justified individually, it is hard for New Yorkers to grasp how much life in the city has been altered since the collapse of the Twin Towers. This edition of City Limits Investigates assays these changes, offers a catalog of their many manifestations and asks a variety of New Yorkers how they understand their impact and context. While there are profound differences of opinion between many as to the correctness of the balance that has been struck between freedom and security, there is no dispute that New York City is a bellwether in a critical national dialogue about that equilibrium. This is not a new discussion; our history bumps hard into these questions over and over (the Alien and Sedition Acts, the Palmer Raids, Sen. Joseph McCarthy'S committee on "Un-American" activities, COINTELPRO) . But the consequences of how we resolve these questions todaylegally, practically and politically-might have the most far-ranging moral and material consequences of all these discussions throughout our nation's history. We live in an era where technology has radically changed the equation. We live in a time when one person or a small group of determined homicidal individuals can kill extraordinary numbers of innocent people. Whether it's the Twin Towers, Virginia Tech or Oklahoma City, the bar to mass murder has never been lower. We also live in a time when the tools available to the state-electronic eavesdropping, financial monitoring, biometrics, database review and "total information awareness"-place more intelligence power in the hands of a few than ever before. Add to that in New York City an unprecedented layer of local, active human intelligence operations and it all combines to provide our government, at every level, with a reach unimaginable to previous generations. The times demand documentation, reflection and strenuous argumentation. As citizens we cannot let our freedoms erode drip by unconscious drip. Vigilance is needed not only to protect ourselves against enemies but to defend ourselves from the narcotic haze of fear-a fear that silences our critical capacity to understand the trade-offs we are implicitly accepting. The impact of the precedents we set for the value of liberty, the legal exceptions we grant in the name of security and the difficult conversations we avoid about either may not be as visceral or bloody as the damage done to us by terrorists, but may change us just as deeply. -Andy Breslau, Publisher
JULY 4 , 2008
HOW FREE ACI1Y?
Liberty after September 11
How Free? On Camera Amid the Surge In the Subway In limbo On Trial Under Suspicion At the Library In Protest At Work On the Street
4 10 12 14 17 21 23 28 31 39 40 14 16 25 31 36
At the Airport UnderCover On the Wire On Tape About Handschu
CITY LIMITS STAFF
CITY LIMITS INVESTIGATES is published quarterly (Spring, Sununer, Fall and Winter) by City Futures, Inc., 120 Wall Street-Ooor 20, New York, NY 10005, a nonprofit organization devoted to rethinking, reframing and improving urban policies in New York City and, by extension, other cities throughout America. For features, news updates and analysis, events and jobs of interest to people working in New York City's nonprofit and policymaking world, sign up for the free City Limits Weekly on our web ~ aite at www.citylimits.org. City Futures is also home to Center for an Urban Future (www,nycfuture.org), a think tank dedicated to independent, fact-based research about critical issues affecting New York's future. General support for City Futures has been provided by Bernard F. and Alva B. Gimbel Foundation, Deutsche Bank, The F.B. Heron Foundation, Fund for the City of New York, The Scherman Foundation, Inc., and Unitarian Universalist Veatch Program at Shelter Rock. Additional funding for City Limits projects has been provided by the Ira W. DeCamp Foundation.
Periodical postage paid New York, NY 10001 City Limits (USPS 498-890) (ISSN 0199-0330) Subscriptions to City Limits Investigates are provided with a one·year $50 donation to City Futures for individuals, nonprofita and community groups. Supporters will also receive our e-mail publications and reports from the Center for an Urban Future. As City Futures Is a 501(c)(3), a portion of your donation is tax deductible. To join, and for more infonnation, a-mail email@example.com. Businesses, foundations, banks, government agencies and llbreries can subscribe at a rate of $50 for one year. To subscribe, e·mall firstname.lastname@example.org. We welcome letters, articles, ideas and submissions. Please send them to email@example.com. Postmaster: Please send address changes to:
Web and Weekly Editor
News Assistant CITY FUTURES STAFF
Administrative Assistant CITY FUTURES BOARD OF DIRECTORS: Margaret Anadu. Michael Connor. Russell Dubner, Ken Emerson. David Lebenstein. Gail O. Mellow. Gifford Miller. Usette Nieves. Andrew Reicher, Ira Rubenstein. John Siegal. Karen Trella. Peter Williams. Mark Winston Griffith WWW.C ITYLIMITS .ORG
120 Wall Street-a. 20 I New York, NY 10005 1': (212) 479-3344 I F : (212) 479·3338 E: firstname.lastname@example.org Design by C. Jerome, Design Confederation Copyright e 2008. All Rights Reserved. No portion or portions of this journal may be reprinted without the express permission of the publishers. City Limits is indexed in the Alternative Press Index and the Avery Index to ArchItectural Periodicals and Is available on mlcroOlrn from ProOuest, Ann Arbor, MI 48106.
ibraries and Internet service providers may be told by the federal government to produce customers' usage records and gagged from acknowledging the order. At mosques, a Muslim may wonder-with documented good reason-whether the worshipper next to him is an undercover agent. An activist may wonder the same thing about the marcher by her side. Immigrants may fear raids on their homes or workplaces. New Yorkers phoning other countries could have their calls wiretapped through orders issued by the U.S. attorney general but not approved by a judge. It used to be that a summer's day did not include any of these things. In the nearly seven years since terrorists hijacked four planes and killed more than 2,900 people, our society has changed in ways large and small, accepted and resented, acknowledged and overlooked, appreciated and forgotten. The horrific attacks of September 11, 2001, led the Bush administration to declare a ''war on terror." Michael Bloomberg was elected mayor that fall, and since then has presided over a major expansion of the New York Police Department's domestic and international intelligence-gathering capabilities. Today we go about our lives in ways we would not have predicted, say, 10 summers ago. Not that we were so innocent then. In the summer of 1998, a man opened fire in the U.S. Capitol and killed two police officers. A teenager in Oregon shot 27 fellow students, and five abortion clinics in Miami were attacked with acid. One of the Oklahoma City bombers was sentenced to life in prison. Pakistan detonated nuclear devices in internationally condemned tests. The mastermind of the 1993 bombing of the World Trade Center, Ramzi Yousef, was sentenced to life plus 240 years in prison. And U.S. embassies in Tanzania and Kenya
4 SUMMER 2008
were bombed, killing or injuring nearly 5,000 people in attacks linked to a largely unknown person named Osama bin Laden. The U.S. bombed locations in Afghanistan and Sudan to retaliate against a largely unknown group called AI Qaeda A decade ago, as now, violence was a fact of life in our country and the world. So were debates over human rights, the use of force and the force of law. But you could wear a backpack into a concert or ball game without thinking twice about it. You could merely nod at the security guard-if there even was one--as you strode through an office building's lobby. You could wait in a car by the arrivals gate at an airport to pick up the person you loved. You walked the streets of New York City without ever coming faceto-face with a man in combat gear gripping a machine gun. These were the barely consciously registered hallmarks of a free society. Nobody thought you might have a bomb. You were not a suspect. The warning America issued to itself, in what has become a cliche since September 11, is notto finish the job the terrorists started-not to add insult to the injury of that day by slamming shut our own doors of openness and liberty. And many New Yorkers feel the nation, or at least the city, is once again its robust familiar self, with a great amount of both safety and freedom. They sense no erosion of basic rights--especially because the most fundamental one, to live--is intact. There has not been another attack in America, after all. Other New Yorkers think the country's high standards for respecting freedoms have been lowered-that liberty, too, was a casualty of September 11 and the government's response. They feel the incremental measures taken at every level of society under the rationale of "security" accrue to alter
the landscape of what is expected and tolerated, while yielding little additional safety. For them, Benjamin Franklin's famous words admonish us from across 250 years: 'They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Around the five boroughs, New Yorkers are divided over the freedom they have, what they are willing to give up and what they already may have lost
imothy Connors thinks the rights of New Yorkers are well honored. A lawyer, private security consultant and Army reservist, Connors is the director of the Center for Policing Terrorism, which studies how local police departments can best aid in the fight against terrorism. An arm of the conservative Manhattan Institute, the center was born following September 11, after the NYPD asked the institute (which it had consulted before on other policing matters) for expert input on counterterrorism practices. Though not actively working with the NYPD now, the center this spring opened the National Counter-Terrorism Academy in Los Angeles in partnership with the L.A. Police Department. Connors sees no meaningful infringements on New Yorkers' freedoms over recent years. "I think for the most part, Americans have gone about their lives since September 11. Sometimes you have some inconvenience like being searched at Yankee Stadium or at the airport. And frankly, how inconvenient is that?" he asks. "It isn't." The way to make new laws and policies instituted in the name of security work, he maintains, is by ensuring adequate oversight. Even the controversial USA Patriot Act, signed into law by President Bush on October 26, 2001, to expand law enforce-
ment and intelligence-gathering powers, contains such safeguards, Connors says. "Most people just don't understand everything that's in place on that. There's a lot of oversight in place." Connors thinks local and federal counterterrorism efforts have struck the right balance in protecting freedoms- and that claims to the contrary have distorted public discourse. 'There's been some borderline cases, but I think our system has worked correctly," he says. "I just believe that the debate has gone to the extremes. There are some things we need to discuss and make sure they [don't run counter to 1our values. But there's been an attempt to make some of these measures look as bad as they can be made to look. In my view, we're wasting our time with those debates." Like other observers, Connors notes that the country's response to the terrorist attacks has avoided some mistakes of the past. The 1920 Palmer Raids against immigrants and trade unionists, Senator Joseph McCarthy's reckless pursuit of Communists in the 1950s and the FBI's Cointelpro covert investigations of domestic political groups from the '50s through the '70s are all mentioned as regrettable incidents that post-September 11 America is not repeating. Arch Puddington, research director for Freedom House, a nonprofit institution that surveys human rights and liberties worldwide, agrees on that point. "The Bush administration did not put 100,000 Muslims in concentration camps, the way Roosevelt did with Japanese-Americans," he says. 'The Bush administration did not suspend habeas corpus as was done in the Civil War. And the Bush administration did not wage war against free speech." As part of Freedom House's ongoing analysis of freedoms around the world, Puddington recently co-edited a book
CITY LIMITS INVESTIGATES
entitled "Today's American: How Free?" The report was inspired both by the intense and polarized domestic debate over the state of American freedoms in our post-September 11 world and by skepticism his organization encountered internationally. As Freedom House staffers traveled abroad in recent years, people in other countries questioned America's fitness to pass judgment. By and large, the study found that the United States is a free society, the institutions of democracy function as they should and-"most significant"-that those institutions sustain a "self-correcting democratic system." In examining the civil liberties implications of counterterrorism policies, however, the book finds much to question about the USA Patriot Act, wiretapping by the National Security Agency, the "extraordinary rendition" program in which foreign nationals may be flown to countries where they face torture, and more. Life has indeed changed in the Bush era, Puddington says. "One of the major criticisms we have of the Bush administration is this arrogation of excessive executive power. What you can't justify is the secretive nature of the policymaking process." Whether this fall's election yields a President McCain or a President Obama, Puddington is confident that any liberties transgressed out of fears about terrorism will be repaired in the near future. "We fully expect that the post-September 11 problems will be resolved in the next few years," he says. But the most entrenched threats to our democracy's health, according to the Freedom House book, come from racial injustice, inequality of opportunity and flaws in the political process: 'These other problems preceded September 11 and will outlive it," the book reads. The very struggle that America has waged with problems like racial injustice reflects an essential reality about this concept of "freedom" that the United States trumpets louder than any nation: Its meaning changes over time. And with human adaptability so great and memories often so short, the present state of freedom can come to seem like the natural one. How many members of Generations X and Y know offhand that until the 20th century, women in this country were not free to vote or use contraception? How many have read that Irish immigrants were excluded from full participation in society along with blacks and Jews? How many are aware that it was unthinkable to elect a Catholic as president? Conversely, will today's toddlers grow up to realize, or care, that there was a time when not one school had a metal detector ... surveillance cameras and biometric scanners did not track our comings and goings ... heavily armed police were not a routine sight around the everyday spaces of New York City ... and you could ride a bicycle down Park Row in front of One Police Plaza? Freedom will keep on evolving. The question is how. September 11 has been the justification for many of the measures that have altered everyday existence-literally putup
6 SUMMER 2008
roadblocks-in this city. But not all the changes and challenges to freedom have to do with defending against terrorism. hether individual, political, economic, artistic, sexual, religious or creative, freedom has drawn souls to New York City from around the world for centuries. Freedom House didn't specifically examine the state of freedom here, but Puddington, a resident since 1970, knows it up close. He says that religious, academic and press freedom are all sound in the city, and he notes that the rights of trade unionists are protected better here than practically anywhere in America. In his assessment, the five boroughs get lower marks for the political process-because of de facto one-party rule-and racial inequality, because of the city's starkly segregated neighborhoods, where minorities face the trials of poverty, crime and poor public schools. But two things that many New York liberals reflexively wring their hands over are as good as or better here than in other states, Puddington thinks. As in the rest of the country, the criminal justice system disproportionately arrests and incarcerates minority men, but city police actually do deter and solve crimes-which also disproportionately harm minorities. He contends that "New York City cops are probably less hostile, brutal and aggressive than police in a lot of other urban areas," and that the NYPD's treatment of minority residents has improved hugely over the years. And, he claims, both documented and undocumented immigrants, including Muslims and South Asians, are on the receiving end of less harassment and hostility in the five boroughs than in much of the country from local government, local law enforcement and fellow citizens. That may be so. But when it comes to federal agents operating in New York, immigrants' advocates see a different story-and a creeping mission. September 11 triggered a series of initiatives directed at Muslim or Arab immigrants-special-interest detentions, so-called "voluntary" interviews, a registration program for Muslim men and boys. Nowadays, however, the immigration debate concerns a far broader swath of noncitizens. Of late, it's Latino immigrants who are particularly feeling the heat. Agents of the Department of Homeland Security, which now encompasses immigration enforcement, are searching out undocumented residents at their suspected addresses, in actions that advocates say are needlessly intimidating, possibly illegal and unfairly punishing to bystanders as well. 'These things are of a piece," says Sameer M. Ashar, an associate professor at the CUNY School of Law, where he directs the Immigration and Refugee Rights Clinic. 'The home raids on Latinos are part of a pattern of more aggressive enforcement that started after September 11." "I think it's the case that their freedoms have been curtailed significantly," Ashar says of immigrants. 'They are going after immigrants as if they are criminals." His concerns go beyond that issue, however. Ashar considers the "If You See Something, Say Something" signs in the
CITY LIMITS INVESTIGATES
Battery Park, 7 p .m ., June 1, 2008. Photo: Aaron McElroy
subway another reason for fear. They turn neighbors into monitors, he says. "It kind of makes you think it's there for its own sake. It's a form of social control." Indeed, there's a difference between measures that make society safer and those that simply make people easier to control-but the generalized threat of terrorism makes the latter more accepted too. Links crop up between changes made in the name of counterterrorism and seemingly unrelated arenas: The NYPD persuaded a judge to reduce protesters' protections because terrorists could masquerade as a political movement, and Police Commissioner Raymond Kelly has credited some NYPD counterterrorism initiatives with reducing regular crime. The years since September 11 have seen the advent or expansion of a whole spectrum of control techniques, some obvious and others more subtle, whether it's the proliferation of surveillance cameras, the Transportation Security Administration using trained "behavior detectors" in airports to question nonconformist travelers, the NYPD limiting the number of people who can walk down a street together without a permit or the city requiring employees to clock in to work in the morning by scanning parts of their bodies. These are examples of what some see
as recent erosions of civil liberties-which are, in the words of Columbia University historian Eric Foner, "rights that individuals can assert against authority." bjections to controversial practices are often dismissed with this rationale: If you don't like that requirement, don't partake of this service or activity. You don't have to go to the stadium, ride the subway, fly, take a particular job or join a demonstration. These are voluntary activities (though they add up to just about everything). You could do something else. You could, for example, stay home. A person's home has always enjoyed a special place in the law-freedom at home is "the holy grail of privacy under our Constitution," says J.C. Salyer, a staff attorney at the Arab-American Family Support Center in Brooklyn. But new policies are challenging the sanctity of a person's four walls. Salyer is familiar with immigrants who have been arrested for immigration violations in raids not on workplaces-long-standing targets for immigration agents-but in their homes, a practice that has accelerated since September 11. Ashar from CUNY says that in the metro area, federal agents have entered homes in the predawn hours on the basis of an administrative warrant that applies to one person and
SUMMER 2008 7
CITY LIMITS INVESTIGATES
The price of increased vigilance, some say, is that New Yorkers have been told to watch one another. Photo.· Aaron McElroy
requires consent for entry. But the "consent" is unclear at best, and rather than only affecting the one person being sought, other immigrants can be swept up too, he says. This spring, Internet message boards about raids lit up with reports of them in Elmhurst, Queens and Mort Haven in the Bronx. Private landlords, too, have redefined the rights that immigrants can expect at home-or when looking for places to live. Some refuse to rent to Muslim women who wear veils, according to New York Immigration Coalition Housing Advocacy Coordinator Ericka Stallings. Others demand immigration papers or social security numbers from immigrant tenants before renewing a rent-stabilized lease, in violation of rent-stabilization laws that say a renewal cannot include requirements absent from the original lease. For longtime New Yorkers as well, the classic American right to be left alone is not necessarily being honored. The federal government has listened to calls without a warrant, sought Web-search histories from Internet service providers and tapped into the massive databases that list the numbers that Americans have called. Technology's unceasing rise means "there are more and more opportunities for government to intrude into your life, and fewer and fewer
8 SUMMER 2008
protections," says NYCLU advocacy director Udi Ofer. Use is spreading of electronic key cards, which have a unique "signature" for each tenant, thus recording when cardholders from particular units come and go. Sue Susman, president of the tenants' association at Central Park Gardens on the Upper West Side, objects to this-as well as the practice by her landlord of requiring visitors to sign in when they enter. Someone up to no good probably wouldn't write down his real name, Susman says. "It doesn't protect us, but it does give the landlord a list of our associates." Meanwhile, the New York City Housing Authority-with support from many residents-is expanding its use of surveillance cameras, meant to both deter and collect evidence of crime. And the NYPD has increased its enforcement of anti-trespassing laws in apartment buildings, especially NYCHA properties, via "vertical sweeps," sometimes arresting people with a reasonable claim to have been visiting a friend, not loitering. The proliferation of surveillance cameras represents a meaningful intrusion even at home: They record the movements of residents-and their companions-as they come and go. Cameras are so ubiquitous and powerful today that anyone who really wants to be left alone almost has to draw
CITI LIMITS INVESTIGATES
the curtains-bringing the image to mind of poor Winston Smith in George Orwell's "1984". Outside the home, the NYPD is stopping and frisking upwards of 400,000 people, the vast majority of them black or Hispanic, per year. Critics claim, but the department denies, that officers use a racial profile to make stops-an allegation that, for some advocates, links the disparate issues of post-September 11 freedom and everyday policing. "Law enforcement continues to rely on racial profiling and other forms of unconstitutional policing methods notwithstanding considerable evidence of their ineffectiveness," says Johanna Steinberg, a lawyer at the NAACP Legal Defense and Educational Fund. "Whether it occurs in the 'war on drugs' or the 'war on terror,' such misguided priorities only serve to undermine relationships with community members and, as a result, deter them from cooperating with police officers."
and the State Secret Protection Act of 2008, which requires increased judicial review of the government's invocation of the state secrets privilege. Nadler concedes that none of his legislation has any chance of succeeding as long as Bush must sign it to become law. But, he says, "Hopefully next year we'll have a president who doesn't think you have to be a totalitarian government to fight terrorism."
~e most dramatic challenges to traditional American
.1 freedoms are not playing out in New York City's streets, subways or homes, but in courtrooms and military prisons well beyond the boroughs. Through the combined provisions of the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 and the president's use of the "unlawful enemy combatant" designation, an American citizen could be removed from his home by the government for offenses that are never articulated, and held indefinitely without charge and with minimal access to counsel. The odds of this happening to anyone person are minuscule (and were reduced further by a Supreme Court ruling in June). Yet, says Rep. Jerrold Nadler, the implications of the practice have been profound-and they ripple through federal law, court cases, municipal policy and local policing; they echo in our streets, schools and workplaces. "It means the government can do anything. You can't hold them accountable," says the eight-term Democrat, who represents parts of Manhattan and Brooklyn and chairs the House Judiciary Committee's Constitution, Civil Rights and Civil Liberties subcommittee. Nadler sees the Bush administration's encroachments as repeating "a familiar pattern," he says, referring to America's periodic restriction of rights in response to security threats. "We usually end up embarrassed and apologize for it 30 years later." In response to Bush's "absolutely terrible" record on civil liberties, the congressman has introduced a handful of bills into the House intended to be remedies: the Restoring the Constitution Act of 2007, which repeals some provisions of the Military Commissions Act in order to narrow the definition of "unlawful enemy combatant" and raise evidentiary standards in military commissions, among other things; the Habeas Corpus Restoration Act of 2007, which would again allow federal courts to consider applications for writs of habeas corpus filed by people designated by the president as "unlawful enemy combatants"; the National Security Letters Reform Act of 2007, which tightens the conditions under which the FBI or another agency can issue a letter soliciting information about a citizen;
day, some New Yorkers are waging their own battles for liberty. The contests may not be glamorous and may have little to do with September 11. But in their contestants' eyes, they are about freedom. When a new building manager removed the long-lived bulletin board at 5 West 91st Street that neighbors used to communicate about everything from housing issues to block parties to job openings, tenant association president Nikki Springer wasn't going to stand for it "People are just afraid to speak out, because landlords are so powerful," Springer says. She felt her own rights and those of her fellow residents were being infringed on-and complained to both the landlord and her elected officials until the bulletin board went back up (the offending manager was replaced too). "People do not want to take a risk, because they're afraid of what the landlord will do to them," she says. But "it's a bulletin board today, and what's it going to be tomorrow?" Others are more theatrical-and deliberately so--in their efforts, like Billy Talen, who has been fighting for a decade now. Coming from a background in theater, he initiated his role as Reverend Billy, leader of the Church of Stop Shopping, in 1998 as a novel way to redirect New Yorkers' attention from consumerism to civic engagement. Playing that part, he makes noise on the streets of the city with a white megaphone to match his white televangelist's suit, employing the First Amendment as his permit He's been arrested many times both here and in cities abroad, but only once (at Union Square in June 2007) while actually reciting those first 45 words of the Bill of Rights. "My experience with public space as a sidewalk preacher was that it was contested space," Talen says. But he welcomes the confrontation, especially in his current battle to remake the pavilion at Union Square-a park that's been an important space for protest, both historically and in the present-into a shrine to free expression rather than a new-and-improved restaurant per Mayor Bloomberg's plan. "Confrontation within contested space is one of the most basic American impulses." Not that he objects to moments without conflict As Talen looks back over his decade of activism, the purest such time rings clear. It was the weeks after September 11, when throngs were drawn to Union Square as if by instinct, in a mass mourning that took the shape of tears, hugs, making art, even getting married. 'The police didn't dare interrupt us," Talen says. 'That is where the First Amendment was working." -KarenLoew
"Dor the time being, there's no doubt that on this summer
CITY LIMITS INvESTIGATES
It is estimated that up to 40.000 camerassome public, many private-are watching in Manhattan these days. Photo: Ali Winston
In less than a decade, New York City has come to rival London as the world's surveillance capital. A walk through Harlem could quickly confirm this-every step you take is captured on video. Passing by the General Grant Houses on 125th Street, you are picked up by police-operated cameras on the exterior of the red brick towers. Continuing eastward, a sign emblazoned with the slogan "NYPD Security Camera" catches your eye at the intersection with Frederick Douglass Boulevard. Fifteen feet above the street, two opaque globes attached to a blue-and-white box stenciled with the police department's insignia look down on you. Walk six blocks north on Adam Clayton Powell Jr. Boulevard to 131st Street, where an NYPD Sky Watch booth with tinted windows and surveillance cameras sits on risers across the street from the St. Nicholas Houses in rapidly gentrifying central Harlem. Return to 125th Street, and descend into the 2/3 subway station on Lenox Avenue. As you swipe your Metrocard and pass through the turnstile, you are picked up by a string of now-familiar globes, part of the MTA's Passenger
Identification System currently being installed throughout the subway -to combat terrorism, according to the MTA. Although security cameras have been used by private and public entities for decades, they have proliferated exponentially since September 11. A 1998 New York Civil Liberties Union survey identified 2,397 surveillance cameras at street level in Manhattan. In 2005, another NYCLU survey of Lower Manhattan, Greenwich Village, Chinatown and central Harlem found 4,468 cameras in those four districts alone. In the private sector, cameras are installed in residential buildings and a wide variety of businesses. Estimates of the total number of cameras citywide range up to 40,000. Government has been a main proponent of this expansion, with technophile Mayor Michael Bloomberg and Police Commissioner Raymond Kelly the most outspoken advocates of expanded video surveillance throughout New York City. "In this day and age, if you think that cameras aren't watching you all the time, you are very naive," Bloomberg said during an October 2007 visit to London. ''We live in a dangerous world, and people want to have security cameras." For his part, Kelly promotes video surveillance as an investigative tool and a safeguard against terrorism. ''We've got an eye toward prevention," Kelly says. "I like cameras because they act as a deterrent." The largest public surveillance initiatives implemented so far in the city are run by New York City's housing authority, police department, department of transportation and department of education, as well as the MTA. Nationally, the Department of Homeland Security is promoting the use of surveillance technology by doling out millions of grant dollars to municipalities. Since 2003, DHS has handed out $23 billion to local governments for equipment and counterterrorism training; the department will not say how much goes toward cameras. Major defense contractors such as Northrop Grumman and Lockheed Martin have
tapped into this cash flow, shifting their focus from Cold War weapons systems to electronic monitoring. Technology companies like IBM and Genetec are also developing a raft of "smart camera" software, such as facial and behavioral recognition programs-which identify people and suspicious activity using databases and algorithms that can be overlaid onto existing digitalcamera systems. The expansion of surveillance cameras troubles some. ''We're seeing a whole new wave of video surveillance," says Jay Stanley of the American Civil Liberties Union's Liberty and Technology program. 'The current wave is the efforts to tie together public and private surveillance, which creates the potential for a pervasive surveillance system to track people from block to block." Other concerns center around the use of surveillance to stifle political dissent by targeting and tracking demonstrators, and law enforcement's tendency to subject minorities and low-income citizens to higher scrutiny. ity housing projects have long served as an incubator for surveillance programs. In 1976, NYCHA initiated an experimental $90,000 closedcircuit television program in three buildings of the Bronxdale houses in the Soundview section of the South Bronx as a deterrent to rising levels of crime. The cameras were to be monitored on private televisions by residents, who were encouraged to report any suspicious activity to housing police. An independent 1978 study questioned the efficacy and cost of the pilot program, which lost its funding and was discontinued shortly thereafter. Twenty years later, the NYPD reintroduced video surveillance to public housing. Thirty-six Video Interactive Patrol Enhanced Response (VIPER) cameras were installed throughout the hallways, lobbies, elevators, entrances and exteriors of Harlem's General Grant Houses in the summer of 1997. Police officers assigned to the VIPER unit monitored live footage around the clock in a
CITY LIMITS INVESTIGATES
designated room in each building. Following a 20 percent drop in crime over five months, the program was expanded to NYCHA buildings across the city. By 2002, the city had installed 3,160 VIPER digital cameras in 235 buildings at a cost of $33.8 million to NYCHA. System maintenance, an additional $305,500 a year-or approximately $1,300 per building- is paid by the NYPD. A separate, smaller-scale closed-circuit television system for public housing funded directly by City Council appropriations was established in 2004. As of 2006, more than a thousand of these cameras had been installed at 28 housing developments, and NYCHA is working to install more than a thousand more at 33 other sites. This secondary system is not monitored live, but is used for crime deterrent and investigative purposes.
"IN THIS DAY AND AGE, IF YOU THINK THAT CAMERAS AREN'T WATCHING YOU ALL THE TIME, YOU ARE VERY NAIVE," BLOOMBERG SAYS.
"People are constantly asking for more cameras," NYCHA spokesman Howard Marder says. 'We do everything we can to ensure people have a safe place to live." NYCHA touts VIPER cameras as an effective crime-fighting tool: Since VIPER's implementation, 11 years ago, the housing authority has credited more than 2,800 arrests to VIPER There is support for VIPER from many NYCHA tenants. Kywanni J ohnson, 18, a resident of the General Grant Houses, says the cameras can be a comforting presence. "It makes me feel safe when the cameras are right
there," he says. However, Johnson does not think cameras have helped reduce crime in the Grant Homes and worries that police could misuse VIPER by monitoring residents' private lives. Johnson reflects a larger dichotomy: As suspicious as people are about the idea of surveillance, they are hungry for tangible safety measures. While the NYPD has regulations concerning the use of the videotape it captures, there are concerns about whether those rules are obeyed. In 2003, for example, VIPER footage of a young man's suicide in the Morris Houses in the Bronx was leaked to a pornographic website. When it comes to deterring crime, no system is foolproof. This March, two women were raped in Brownsville's Van Dyke Houses by the same man. Both instances took place off-camera and thus went undetected by officers monitoring live video. Two officers were later disciplined after lying about patrolling the complex. The Brownsville rapes dovetail with one theory held by some academics and law enforcement officers that video surveillance displaces crime rather than deters it. A University of California at Berkeley analysis of San Francisco's police cameras found that video surveillance reduced the number of homicides within 250 feet of the devices, but that the number of killings spiked outside that range.
ccording to a former high-ranking NYPD officer, VIPER served as a model for subsequent NYPD video systems. In 2006, the department rolled out a $9 million network of 505 street cameras covering 253 locations. The cameras are monitored by police officers in a control center. In 2006 the NYPD introduced five mobile Sky Watch towers equipped with video cameras, gunshot-detection sensors and spotlights. The towers, also utilized by the Department of Homeland Security on the U.S.-Mexico border, rotate in and out of neighborhoods and high-profile locations like stadiums.
Camera-equipped NYPD helicopters regularly patrol New York City's airspace and waterways. During the 2004 Republican National Convention, police monitored demonstrators from above with a borrowed Fuji blimp equipped with high-powered cameras and audio sensors. The department came under criticism for at least one highly publicized incident, when a man and women sharing an intimate moment on a rooftop were filmed at length by an NYPD helicopter monitoring nearby protests. NYPD officials say video taken from street cameras is kept for 30 to 45 days and then erased. Of all the NYPD's surveillance programs, the Lower Manhattan Security Initiative (LMSn, or Ring of Steel, has attracted the most attention. A threeyear counterterrorism project modeled on London's extensive ccrv network, the initiative is now supposed to cost $106 million (up from $90 million last July) to install, with an additional $8 million in yearly maintenance. It will involve 3,000 cameras equipped with advanced behavior-recognition software, as well as more than 100 license-plate-recognition cameras, extra officers and new vehicle barriers placed throughout 1.7 square miles of southernmost Manhattan. Kelly and Bloomberg justify the program as a means of defending the city's all-important financial industry. 'This area is very critical to the economic lifeblood ofthis nation," Kelly said last July. 'We want to make it less vulnerable." The camera software will be IBM's Smart Surveillance System. Also used by authorities in Beijing and Chicago, this system uses computerized analysis to index digital footage and issue alerts when suspicious patterns are detected. Buildings in the covered area will have to submit blueprints to the NYPD-so the police can consult the plans during an emergency response-and will be required to transmit live feeds from their cameras and sensors to the initiative's headquarters. The NYPD is considering whether to install biohazard detectors and facial-recognition
SUMMER 2008 1 1
CITY LIMITS INVESTIGATES
software as part of the system. To date, 2S0 cameras are in place, along with at least one license plate reader. But there's reason to be skeptical of the Ring of Steel's ability to deter terrorism. Indeed, the London system upon which it is modeled did not prevent the suicide attacks of July 200S, in which S2 people died. Even when it comes to street crime, the deterrent effect of London's 10,000-camera, $391 million, 24/7 CCIV system is in doubt, since the video footage is rarely successful at identifying criminals: The London borough of Hackney has had the most success at using video to solve crimes, and it only finds perpetrators in 22 percent of the crimes of which it has footage. Meanwhile, NYCLU staff attorney Matt Faiella criticizes the lack of public input or guidelines about how video and data collected by New York's Ring of Steel sensors will be handled. There are further questions about the use of footage by private businesses, which will control 2,000 of the initiative's 3,000 cameras. 'We need more forethought when we're installing cameras and allowing access to any images captured by cameras," Faiella says. "It is changing what people think of as private life." The NYCLU is appealing the NYPD's recent denial of a Freedom of Information Law request concerning the details of LMSI. ew York's public transit systems are also under constant surveillance, a reflection of official anxiety about the vulnerability of train and bus systems to attacks like those in Madrid and London. In August 200S, Lockheed Martin won a $212 million MTA contract to deploy smart cameras equipped with motion and perimeter sensors and behavioral-recognition technology throughout New York's subway stations. More than 3,000 of these passenger identification, or PID, cameras will be installed at about 140 stations, at a cost of $S2 million in MTA capital funds, DHS grants and elected officials' member items. The MTA's surveillance efforts are not limited to subway stations. Approxi12
mately 400 buses are equipped with surveillance cameras, an effort begun in 2006 at a cost of $S.2 million a year. In April, NYC Transit announced a pilot program to test surveillance cameras in the interior of subway cars-ostensibly to deter vandalism-with a view to expanding coverage across the system. New York City streets are also monitored by a network of government cameras, aimed at increasing safety and improving traffic flow. The city's department of transportation maintains 400 traffic cameras throughout the city that are monitored at a control center in Long Island City. Another 100 red-light cameras located at intersections have, since 1993, captured the license plates of vehicles that disregard traffic signals. Footage from DOT cameras, which cost $8.4 million per year to maintain, is retained indefinitely in digital format. Meanwhile, some New York City public school students have been under the electronic eye every school day since 2004. By the end of 2008, more than 300 middle and high schools in 130 buildings will be equipped with about 6,000 cameras belonging to the Department of Education's $120 million Internet Protocol Digital Video Surveillance system, intended to reduce violence in public schools. The cameras are watched by school safety agents, who are NYPD employees. The cameras have not had a clear impact on security; school crime statistics have fluctuated since the cameras arrived. Meanwhile, some parents, students and civil libertarians complain that cameras contribute to a prison-like atmosphere inside schools. Technical difficulties have cropped up in retaining footage and have complicated student disciplinary hearings. Parents and lawyers claim the DOE has been slow in turning over video evidence in criminal cases. Recently, the DOE appears to have pulled back. Since the beginning of 2008, the School Construction Authority has not put any new camera installation contracts out to bid. Sources say the NYPD has asked the DOE for a memorandum of understanding that
would allow uniformed NYPD officers access to live footage from the school cameras, but the DOE has refused.
Amid the Surge
One of the hallmarks of post-September 11 New York City is the increased physical presence of police on the city's streets. Body-armor-wearing and machine-gun-toting officers, their tactical truck idling, maintain a constant watch outside the New York Stock Exchange. An officer with a high-powered rifle is usually in front of City Hall. A police car, lights spinning, sits at the Manhattan end of the Brooklyn Bridge. Underground, police officers man surveillance booths on the subway platforms at either end of East River tunnels. An island of police officers and vehicles is often on watch in Times Square. "Jesus Christ," says Anthony Bouza, a former New York police commander who's written on police intelligence, about a recent visit from his current home in Minneapolis, where he was police chief for nine years. "I've never seen so many fuckin' cops." This is a good thing, says Richard Aborn, an attorney and president of the Citizens Crime Commission, an independent organization that promotes crime reduction. "I think it contributes to the sense and a reality of public safety. The proof of that is that there has not been a large protest in the city against that police presence," he says. "I think New Yorkers understand that New York is a terrorist target and we have to live with that reality and take all other measures to do everything we can to prevent an attack from ever happening again." To that end, Police Commissioner Kelly has overseen a raft of programs with names like Atlas, Hercules, TO MS, Sampson, Nexus and Shield to defend a city that is always on orange, or (high) alert. Atlas, for one, refers to the overall set of increased security measures. Hercules teams are the heavily armed Emergency Service Unit officers (and
CITY LIMITS INVESTIGATES
One major aspect of post-September 11 life in New York is the increased police presence in many areas. Photo: Aaron McElroy
sometimes dogs) who are seen at major landmarks under Operation Sampson. Transit Order Maintenance Sweeps, or TOMS, involve "officers stopping, boarding and inspecting subway trains" as well as conducting subway bag searches. Operations Nexus and Shield are mechanisms for the NYPD to share information with private industry. A threat in 2004, for example, led the NYPD to warn commercial property owners about "visitors to your facility who claim to be lost or appear disoriented" and "maintenance work that isn't announced or scheduled in advance." Last summer, Shield provided a briefing to business owners on the alleged plot by a "self-radicalized" Queens man to blow up fuel facilities at JFK Airport. (Shield is not open to just any business, though; City Limits was not allowed to join). The NYPD increased its hours of counterter-
rorism training for civilians fourfold between the first four months of fiscal 2007 and the same period of fiscal 2008. The International liaison Program, funded in part by the private Police Foundation at a cost of $500,000 a year, involves the deployment of NYPD intelligence officers in 10 international cities: Tel Aviv, London, Amman, Singapore, Santo Domingo, Toronto, Montreal, Paris, Lyon and Madrid. The Police Foundation says it has also donated $1.2 million to an NYPD Counter-Terrorist Operations Center. Overall, the NYPD intelligence operation-headed by 35-year CIA veteran David Cohenhas a staff of 360 officers. The department says it devotes 1,000 officers to counterterrorism efforts. Some aspects of the NYPD's program are invisible: the informants and undercovers who are working among particu-
lar communities in the city. One part is very, very visible-and quite audible too. This is the so-called CRV (Critical Response Vehicle) Surge, which the NYPD describes as "uniformed officers from each of the city's 76 precincts in marked vehicles meeting at strategic locations in a massive show of force for deployment around the city at bridges, transportation facilities, and other highly critical and sensitive locations." If you've ever wondered what's going on when a whole line of police cars musters on a city street, turns on lights and sirens and drives somewhere else, it's a CRV surge. It's widely acknowledged that New York does more than any American city, and perhaps any city in the world, to deter terrorism. And deterring terrorism has other benefits too, say police officials. In a 2004 interview, Kelly told WNBC's Gabe Pressman, "I think
CITY LIMITS INVESTIGATES
An attack on Scotland's Glasgow airport last year led security at airports like LaGuardia, above, to scrutinize cars in the drop-off lane. Photo: JM
At the Airport
If you were on the government's "no-fly" list a few years ago, there's a 50 percent chance that you're off it now. The Transportation Security Administration still refuses to reveal how many people are on the no-fly list. but a spokesperson does say that after a "nameby-name review" completed in February 2007, half the names were found to be "individuals that are no longer deemed to pose a threat to aviation" and ·were removed or downgraded to selectee status.• "Selectee status· refers to people who can board planes, but only after getting a thorough check; both it and the no-fly list are derived from the govemment's overall terrorism watch list. The TSA won't reveal how many people are on the selectee list-or tell you if you're one of them--because that would tip off terrorists to how comprehensive the watch list is. If you were on the no-fly list. you'd know about it. because you'd never be issued a boarding pass. But it's impossible to know if you're on the selectee list because you can be selected for special screening at the airport even if you aren't watch-listed. If you think you're on either list by mistake. the Department of Homeland Security has a program called TRIP (Traveler Redress Inquiry Program), through which passengers can dear up any confusion between their name and a terrorist's. There is. however, no direct way to challenge the underlying terrorist watch list the
FBI doesn't accept public appeals. You can only complain to agencies, like the TSA. about their use of the watch-list data. Right now, airlines check passengers' names against these lists. The federal government is taking over that operation with a system called Secure Flight. which will soon arrive at New York's two airports. Two other new programs are already at JFK and laGuardia. Under Registered Traveler, passengers who are willing to provide biometric data to private companies can qualify for a special identification card that allows them to bypass some airport security. And SPOT, or Screening of Passengers by Observation Techniques. "is designed to detect individuals exhibiting behaviors that indicate they may be a threat to aviation and/or transportation security.• TSA officers trained in SPOT look for ·involuntary physical and physiological reactions that people exhibit in response to a fear of being discovered· and tag those passengers for extra security checks. Even travelers who aren't on a watch list or eyed by SPOT-trained officers face more scrutiny than they did before September 11 at airports. where armed military personnel in camouflage still sometimes patrol the terminals. The TSA maintains a long list of items you aren't supposed to pack in your checked baggage. People carrying spear guns, cattle prods or meat deavers (these items are actually singled out in TSA literature as no-nos) probably deserve whatever scrutiny they get. But the liquid rules---imposed in 2006 after an alleged plane-bombing plot was foiled in Britain--expose fairly personal conditions to public scrutiny, especially if you want to carry more than the allowed three ounces. Should you, for example. want to bring extra K-Y Jelly (specifically identified in TSA literature) for • medical purposes· you must "declare you have the items to one of our Security Officers at the security checkpoint.· according to the TSA. Luckily, "Gel-filled bras may be worn through security screening and aboard aircraft. " the agency says. There's even enhanced security for people who've already landed: Customs and Border Protection says it • discourages· arriving international passengers from using their cell phones or laptops while waiting for their baggage. And security will continue to evolve. The Port Authority of New York and New Jersey, which runs the airports and has an agencywide public safety staff of 1,700, is devoting $3.1 billion under its current lO-year capital plan for security enhancements. -1M
there are some benefits to some of our counterterrorism programs in fighting crime, reducing crime. We have the ability to mobilize officers more quickly now than ever before ....They have a crime deterrent effect as well." The intense police presence comes with a cost, however-and not just the 265 percent increase in what the NYPD spent on gasoline between fiscal 2003 and 2008, or the $334 million spent on counterterrorism this year, according to lBO. There's the impact of tactics like CRY surges on the public psyche. Some people might be comforted by the sight and sound of dozens of police cars racing past them in the middle of the day. But for others, including the tourists who frequent the city's most heavily policed areas, the body armor and flashing lights are reminders that there is something to be afraid of. "Perhaps Mr. Kelly's plan is that if he creates enough of these earshattering, traffic-clogging events, the terrorists will move to someplace like Portland, Ore., for quality of life," wrote Brooklyn resident Michael C. Doyle in a February letter to The New York Times. What's more, personnel decisions are zero-sum, especially in a police department having trouble recruiting. As one person commented on a web bulletin board for NYPD "MOS," or members of the service, "Does the 1,000 [counterterrorism officers] include the 200 MOS assigned to CRY every day who fight terrorism by driving around Midtown like maniacs and screwing up traffic while precincts have two cars on patrol?" Some critics of the NYPD note that for all its security efforts, the department was unable to catch the hooded bicyclist who was caught on camera planting a bomb in Times Square earlier this year. -Jarrett Murphy
In the Subway
The more than 4.9 million daily riders of the New York City subway system regularly hear two scripted announce-ments from conductors as their trains roll through the tunnels. One warns
CITY LIMITS INVESTIGATES
passengers to protect their valuables and to protect themselves by reporting suspicious behavior to a police officer or MTA employee. Another says that backpacks and other large packages "are subject to random search by the New York City Police Department" That's not quite true, and that bothers Joseph Gehring. Gehring is a 37-year-old attorney who lives in Manhattan and is the son of a retired police officer. He has been bothered by the NYPD's subway bag searches since they began in July 2005 in response to a failed attempt to bomb London's subways that came mere weeks after a deadly attack on trains and buses there. He was one of five people who sued to stop the program. Public opinion backed Police Commissioner Kelly and the searches. A Quinnipiac University poll conducted a few weeks after the searches began found that most New Yorkers wanted their basic civil liberties protected, but 72 percent backed the subway bag searches. But Gehring and his fellow plaintiffs argued that the NYPD was violating the Fourth Amendment when officers searched belongings without some "individualized suspicion" that their owner had done or was planning to do something wrong. The police-who were joined in their defense by an association of families of September 11 victims, the U.s. Justice Department and the conservative Washington Legal Foundationcountered that courts imposed more lenient Fourth Amendment requirements when the government faced a "special need," like protecting people from terrorism. Searches at the entrance to a courthouse or before boarding a plane were already a way of life, the NYPD argued; subways were no different But for that argument to hold, the search policy has to be an effective way of meeting the NYPD's special need. The NYPD's bag search program randomly targets different stations and different numbers of stations on different days, selecting people to search at random based on a numerical protocol
Joseph Gehring was one of five people who unsuccessfully sued to stop the NYPO's subway bag searches. Photo: Aaron McElroy
set by the commanding officer on the scene. So some stations and some passengers don't get searched. And if you do get stopped, you can avoid a search by simply leaving the station-making the program "voluntary." Interestingly, Gehring and the other plaintiffs argued that the NYPD's pro-
gram was too limited to justify the intrusion on individual riders. The reason: It couldn't be any good at stopping terrorists, since someone trying to bomb the subways stood a good chance of never being stopped and, if he was stopped, could just walk away and try a different entrance to the system.
CITY LIMITS INVESTIGATES
The Bloomberg administration has made much of city government more transparent. Statistics, contract infonnation, lobbyist records and other data are now far easier to obtain that under earlier mayors. But the mayor and Police Commissioner Raymond Kelly have kept their share of secrets too. The NYPD was tardy in turning over legallymandated reports on stop-and-frisk practices to the City Council, and Kelly has refused to say how many infonnants he has operating in the city's Muslim communities. For a year, the NYPD has ignored a City Limits Freedom of Infonnation Law request for documents related to the videotaping of political protests. The NYPD hesitated in giving videotape evidence to the Civilian Complaint Review Board for its investigation of police conduct at a major antiwar demonstration in 2003 (but provided the CCRB with tape of protest arrests at the 2004 Republican convention). The Bloomberg administration has also held close to its vest infonnation about the very event that triggered all its counterterrorism security measures-September 11. When The New York Times sought oral histories that the fire department had recorded from survivors of the attack and recordings of calls to 911, the Bloomberg administration blocked the re-
quest. A state court forced the city to hand over most of that material. The city even rebuffed requests for some of the same material from the 9/11 Commission and the National Institute of Standards and Technology, or NISI. which completed the only comprehensive study of the emergency response, evacuation and collapses on September 11. The mayor cited privacy concerns in blocking the releases, and there was ample justification for those worries. The 911 calls in particular are grueling to hear; people literally died on the phone. The disputed material, however, also laid bare the confusion among firefighters about what exactly their mission was as they climbed the stairs of the burning towers, many to their deaths. Eventually, the city turned over material to both the commission and NIST. Around the country, freedom of infonnation suffered after September 11. According to Robert Freeman, executive director of the New York State Committee on Open Government some of the losses here have been restored .• Certainly, there were some knee-jerk reactions,· he said. "They have diminished over time.· Material taken down from state websites for alleged security concerns has been posted again, he says. Most importantly, New York state didn't tinker with its Freedom of Infonnation Law to create new terrorismrelated exemptions from disclosure, as some states did. -JM
Gehring and company asked the NYPD for data on the scope of the searches, and said that the information could be restricted to lawyers and kept from the general public if there were security concerns. The NYPD claimed the information was too dangerous to reveal at all. A federal judge agreed, saying that the "unpredictability" of the program was crucial to its success and that unpredictability depended on secrecy. Later, the same judge upheld the search program. The city also won in appeals court. For Citizens Crime Commission head Richard Aborn, that decision looms large in assessing the civil liberties impact of the city's security measures. "I do think they've struck the right balance," he says of Kelly and Bloomberg. "And I think what's really important is that those who wish to challenge the
NYPD have full access to the courts, and the courts have not been reluctant to review these sorts of challenges." The courts, however, usually grant great latitude to elected officials and law enforcement when it comes to public safety-and that was the case in the review of the subway searches. In making its arguments, the NYPD relied on the testimony of well-regarded experts, from its own top intelligence and counterterrorism officials to national figures like Richard Clarke. They argued that a random program would make it harder for terrorists to predict when and how they could access the subway system to bomb it and thus could disrupt or deter carefully crafted terrorist plots. But there are counterarguments. Bruce Schneier, a California-based counterterrorism analyst, says it's foolish for
agencies to try to guess what terrorists are going to do next based on what they've already done. "It's not even a fair game," he says. In this contest, the city picks a terrorist tactic to defend against and makes that defense known to the public, while the terrorist is free pick a different mode or target of attack. 'We take away guns and knives, and they use box cutters. They're going to do something else." There's no question that trains have been a favorite target of terrorists. In 1995, a Japanese group attacked the Tokyo subways with sarin gas, killing 12. In 2004, there were deadly bombings of the Moscow and Madrid rail systems and an attempt on the French rail network. Then London got hit Trains make a tempting target for killers: Some New York City subway trains can carry more than 1,400 people. But there's no way of knowing if the subway bag searches are working; it's supposed to be a deterrent, and a deterrent's value is only evident when it fails. "You could say nothing's happened since we started these bag searches," says Marq Claxton, a representative of 100 Blacks in Law Enforcement Who Care and a retired police detective. 'Well, I could say nothing's happened since I ate a bag of potato chips." Outside of the New York City area (where the subway, New Jersey Transit, Metro-North and the Long Island Rail Road all have bag searches), police in Boston searched train passengers' bags during the 2004 Democratic National Convention and resumed the practice in 2006. Amtrak announced earlier this year that it was starting bag searches. Those are the only American mass-transit systems known to search bags. Overseas, authorities in London are considering new bag searches at high-risk train stations, and some Israeli bus and train stations feature screening. It's not like Bloomberg and Kelly were alone in wanting to ramp up potentially intrusive security on the subway system. In the late summer of 2005, then-City Council Speaker Gifford Miller-argu-
CITY LIMITS INVESTIGATES
In the years after September 11, then-Attorney General John Ash croft led Bush administration efforts in which tens of thousands of Muslims were interviewed, photographed and fingerprinted. Photo: White House
ably the most liberal candidate in the mayoral race (and now a City Futures board member)-called for the MTA to install surveillance cameras in every station and said that Bloomberg's subway bag searches had, if anything, been ordered too late. Other Democratic candidates also called for more cameras. Bloomberg himself elevated the sense of threat in October 2005, when word came in from Iraq of a plot to attack the subway system. Hours before a mayoral debate at the Apollo Theater that Bloomberg had made a controversial decision to skip, the mayor went on television to describe the threat-a very rare step for the usually discreet and reserved mayor. A few days later, the threat was exposed as bogus. The following year, Eric Adams, then a police captain and head of 100 Blacks in Law Enforcement Who Care, was brought up on departmental charges by the NYPD for telling a TV interviewer that the police mobilization in response to the subway threat was more show than substance. Police officials disciplined him for speaking to the media without permission.
Gehring now rarely carries a bag with him on the subway because of his opposition to the searches. He said he decided to sue when, during the first days of the search program, he was stopped by the police and told, "I need to look in your bag." That didn't seem voluntary, since under the program the city laid out in federal court, a person can refuse the search and be told to leave the subway station. And that's what bothers Gehring about those subway announcements: They don't make the searches seem voluntary either. Nor do they make it clear that the searches are only authorized at entrances. The announcements suggest that a police officer can stop you anytime you're in the subway system and look in your bag, Gehring says. "Over time, people will just come to accept that that is the policy."
In late October 2001, U.S. Attorney General John Ashcroft alluded to Robert Kennedy's vow to arrest mobsters for
"spitting on the sidewalk" if that's what it took to nail them. "It has been and will be the policy of this Department of Justice to use the same aggressive arrest and detention tactics in the war on terror," Ashcroft declared .. "Let the terrorists among us be warned: If you overstay your visa-even by one day-we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage." The FBI was already using all the powers at its disposal-and undocumented immigrants were feeling their brunt By the afternoon of September 11, the bureau had launched its PENTIBOM (for "Pentagon/Twin Towers 'Bombing' investigation'') and begun investigating hundreds of thousands of tips from the public. When those leads led to undocumented immigrants, the FBI brought them in and labeled them "of interest to the September 11 investigation." Over the next several months, at least 762 people were detained. Nearly half were from Pakistan or Egypt, and 491 were from New York, with another 70 arrested in New Jersey, according to a 2003 report by the Justice Department's inspector general. There's nothing surprising about the FBI aggressively running down leads in the biggest mass murder in American history. The problem, the inspector general found, was that "the FBI interpreted and applied the term 'of interest to the September 11 investigation' quite broadly." Some people were detained despite "little or no concrete information" linking them to the attacks. A supervisor in the FBI's New York field office said that if "agents searching for a particular person on a PENTIBOM lead arrived at a location and found a dozen individuals out of immigration status, each of them were considered to be arrested in connection with the PENTIBOM investigation ... because the FBI wanted to be certain that no terrorist was inadvertently set free. " Many Americans would like nothing better than for the FBI to detain
CITY LIMITS INVESTIGATES
immigrants who, whether or not they had anything to do with September 11, entered the country illegally or overstayed their visa. What characterized the PENTIBOM detentions, though, was that all the detainees were treated as if they did have something to do with September 11-a broad-brush approach that had serious ramifications.
tainee was also secured with a four-foot heavy chain running from the handcuffs to the leg irons. Sometimes the treatment went beyond the rules. Some detainees complained that they were denied toothbrushes, towels and toilet paperfor weeks. Guards were reported to have said things like, "You're going to die here," "You're never
ONE MAN ARRESTED IN NOVEMBER 2001 WAS DEEMED IN MAY 2002 TO BE OF "NO INVESTIGATIVE INTEREST." BUT WORD DIDN'T REACH JAIL OFFICIALS UNTIL MID-JUNE. NOT ONE OF THE DETAINEES WAS PROSECUTED FOR TERRORISM.
For one thing, the Justice Department insisted that none of the detainees be released or deported until the FBI cleared them of any connection to terrorism. At the same time, the Immigration and Naturalization Service decided to deny bond to any of the detainees netted by PENTIBOM, even when the FBI could provide no specific evidence why a particular person posed a threat So rather than the government having to prove that they were terrorists, immigrants had to wait in detention for the FBI to say they weren't In the New York area, higher-interest detainees were held in the Metropolitan Detention Center in Brooklyn, which is run by the federal Bureau of Prisons. BOP officials decided to hold all 84 of these detainees in maximum security, without the normal review of whether each individual posed a security risk. That meant the detainees were limited to one social telephone call a month and one legal call a week-both made with a prison official standing watch outside the cell. Whenever detainees left their cells, they were escorted by four officers. At a minimum, detainees wore handcuffs and leg irons outside the cell. When visiting with lawyers or family membersand those visits were non contact-a de18
going to get out of here" and "You will be here for 20 to 25 years like the Cuban people." Detainees and one guard described bodily mistreatment, including detainees being slammed against walls. 'We believe the evidence indicates a pattern of physical and verbal abuse against some September 11 detainees held at the MDC by some correctional officers," the inspector general found. Some detainees lived under those conditions for months. One man arrested in November 2001 was deemed in May 2002 to be of "no investigative interest" But word didn't reach MDC officials until mid-June. Not one of the detainees was prosecuted for terrorism. Most were deported. Some have sued; the Justice Department settled one man's claims for $300,000.
s the government was detaining hundreds of immigrants, it was preparing to talk to thousands more. During the fall of 2001, the FBI used government databases to generate a list of 7,600 people whose profiles shared similarities (age, gender, nationality, et cetera) with the hijackers. Then the FBI called these people in for so-called "voluntary" interviews. By March 2003, some 3,200 interviews had taken place,
according to the Government Accountability Office; 114 happened in the New York metro area. It's unclear if more interviews occurred later. The FBI's interview script involved questions like "Does the person have any knowledge or involvement in advocating, planning, supporting or committing terrorist activities? Yes or no. If yes, please explain." While the program was dubbed "voluntary," the GAO found that some subjects didn't feel they had much of a choice: 'The [immigrants] feared there could be repercussions to them for declining to participate. For example, interviewees were reportedly afraid that future requests for visa extensions or permanent residency would be denied if they did not agree to be interviewed." Fewer than 20 people were arrested as a result of the interviews, most for immigration violations. Three were busted on criminal charges. "None of them appeared to have any connection to terrorism," the GAO found. By mid-2002, the government was ramping up a third regime for questioning foreign nationals: special registration. Explaining that "certain nonimmigrant aliens require closer monitoring when national security or law enforcement interests are raised," the government began fingerprinting, photographing and questioning under oath people from certain countries as they entered the United States. Late in 2002, the INS began requiring people already living in the United States-some for decadesto report to INS offices for interviews. The policy applied to non-permanent residents who were males age 16 or older from 25 countries. Twenty-four of the countries were predominantly Muslim (North Koreans also had to sign up). As the program got under way in 2003, long lines stretched around the front of 26 Federal Plaza, where the New York INS office was located. "I think people were keen to go in. They thought it was their national duty," says Muzaffar Chishti, director of the Migration Policy Institute's office at NYU. Not all were rewarded for their trouble. The program didn't apply to people who'd entered the
CITY LIMITS INVESTIGATES
New York Muslims say post-September 11 enforcement actions led many to flee their neighborhoods. Photo: Aaron M cElroy
country illegally. But it did catch those who'd overstayed their visa: Of the 83,000 who registered nationwide, about 13,000 were deported (3,000 from New York, according to the advocacy group Families for Freedom). Again, none were charged with terrorism-a fact the Justice Department shrugged off. 'That an alien was deported rather than prosecuted does not mean that the alien had no knowledge of or connection to terrorism," said thenDO] spokeswoman Barbara Comstock in 2003. Maybe, she argued, the prosecutor had just decided that the easiest way to protect America was to simply get rid of a dangerous person. A recent study by Syracuse University's Transactional Records Access Clearinghouse, however, found that of the more than 800,000 people brought before immigration courts from fiscal 2004 through
2006, those who faced charges related to terrorism or national security numbered 126--0r 0.0155 percent pecial Registration has since been replaced by US-VISIT, which applies to all foreign nationals and only operates at ports of entry. Immigration advocates welcomed that change, although it didn't solve all problems. 'There's been a lot of people who have left the country and have not been allowed back in," says Adem Carroll, a Muslim convert and chairman of the Bronx-based Muslim Consultative Network. 'There's a student I know in his third year at Lehigh. He's trying to obtain a lawyer because he wants to finish his schooling. There've been a lot of businesspeople who have left for a business trip and then are not allowed back in."
As the controversy over special registration faded, so did public scrutiny of immigration policy. 'There's a lot happening now, but it's dangerously under the radar," says organizer Monarni Maulik, the founder of DRUM (Desis Rising Up and Moving), a South Asian advocacy group. One phenomenon she sees involves a construction boss calling immigration authorities when his workers began to organize for back wages, a tactic that Maulik says scares not only that work crew but, as word of it spreads through the grapevine, silences other undocumented laborers as well. But what's characterized immigration enforcement most since special registration, advocates say, is the surge in home raids. Immigration authorities used to avoid going to people's homes, confining their enforcement actions to the street and businesses. That changed when the
CITY LIMITS INVESTIGATES
Department of Homeland Security took over INS in 2003 and gained control of the National Fugitive Operations Program, which hunts down undocumented immigrants who were ordered to be deported but never left. DHS now has 52 fugitive apprehension teams (FATs), and each is expected to nab 1,000 fugitives a year. Some of their targets are "criminal aliens" who committed a crime while here; during May, FATs in the New York/New Jersey metro area hauled in 283 immigrants with criminal records. Others aren't criminals. They're fugitives because they were never deported, perhaps because they ignored their deportation order, or perhaps because they didn't know about it; some deportation hearings are conducted in absentia. Still others whom the FATs arrest aren't fugitives at all-they're undocumented immigrants with violations, but they don't have an outstanding deportation warrant. They just happen to be there when the agents come looking for someone who does. The term of art for these people is "collateral arrests." During their first three years of operation, FATs nationwide brought in 37,000 people who were fugitives and 12,000 people who weren't. In one February raid in upstate New York, 52 people were detained, but only 21 were actually fugitives. In October of last year, during a joint NYPD-federal raid of businesses selling fake IDs in Jackson Heights, Immigration and Customs Enforcement (ICE, the successor to INS) arrested more than 100 immigrants, according to DRUM. A witness claimed that "men in FBI and ICE jackets showed us photos of the people they were looking for and asked us if we knew them. When people answered that they didn't, they were asked to show identification. Those that didn't have any were taken in." The Department of Homeland Security did not respond to requests to discuss those reports. DHS statistics, however, depict an explosion in deportation cases. In 1986, about 24,000 people were deported from the United States. In 2006, more than 270,000 were removed. The sheer
volume begs questions about whether due process is being maintained, say immigration advocates. 'Try to imagine the kind of enforcement apparatus necessary for the government to carry out such a massive deportation," says New York Immigration Coalition executive director Chung-Wha Hong. For immigrants, she says, "It's not a symbolic thing to say we live in a police state." FATs are a top worry of immigration lawyers, who are hoping to negotiate with ICE to develop a protocol for home raids that will set some guidelines and provide grounds for legal challenges to improper detentions.
ing the target of more complaints than any other field office. Recent numbers show improvement. But even visitors have a hard time getting in these days. The numbers of visas issued dropped 25 percent between 1997 and 2006. ew York's mayor, meanwhile, argues that U.S. immigration policies are shooting us in the foot. ''Xenophobia here and lack of appreciation and respect for other countries is preventing us from getting the help we need," Bloomberg said at a May conference on counterterrorism at NYU. It wasn't the first time the mayor has distanced him-
"MANY JUST PACKED UP AND LEFT," RAZVI SAYS. "THE DEMOGRAPHICS HAVE CHANGED NOT BECAUSE PEOPLE ARE DOING BETTER AND MOVING ON. THE DEMOGRAPHICS HAVE CHANGED BECAUSE PEOPLE LEFT IN FEAR."
For now, those picked up in home raids or other ICE actions in New York City are often detained in the Elizabeth Detention Center, a 3()(}'bed facility in Union County, New Jersey, run by the private Corrections Corp. of America. For ICE's detention centers both public and private, business is booming: Nationwide, the number offederally-funded detention beds nearly doubled to more than 32,000 between 2005 and 2007. But even as the feds grow more ambitious about detaining "illegals," legal immigrants have encountered long delays and more denials in obtaining the documents they need to stay on the right side of the law. From 1993 to 2003, the denial rate for green cards soared from 4 percent to 20 percent nationally; in New York, it was 47 percent in 2003. New York's immigration office also stands out for a low availability of appointments for people to speak with immigration officers, a yearlong wait for marriage investigations, and beself from anti-immigrant sentiment. Antiimmigration groups detest what they see as Bloomberg's moves to shore up New York's status as a "sanctuary city." They particularly dislike his two executive orders on immigration status. Many immigration advocates didn't love the first one, either. In May 2003, Bloomberg issued Executive Order 34 to comply with a federal court decision that found the city went too far when it barred city workers from sharing immigration information with federal officers. E.O. 34 shifted from a prohibition on sharing to a rule that municipal employees aren't supposed to ask about immigration status when dealing with the public. But E.O. 34 didn't apply to the police, prompting complaints. So in September 2003, Bloomberg issued Executive Order 41, which said that police officers "shall not inquire about a person's immigration status unless investigating illegal activity other than mere status as an undocumented alien." The order also
CITY LIMITS INVESTIGATES
During raids in New York and five other states in May, ICE Fugitive Apprehension Teams arrested
1,BOO undocumented immigrants. Photo. ICE
instructed officers not to ask crime victims or witnesses about their status. There have been anecdotes about cops not following the order. Maulik thinks it's more than an occasional problem. "E.O. 41 is violated every day," she claims. In 2006, DRUM and the Urban Justice Center surveyed 600 South Asian youth and found that nearly half had been asked their immigration status by school officials or police officers. Immigrant advocates, however, generally say the Bloomberg administration has steered clear of abetting ICE's aggressive enforcement efforts-efforts that have had a profound impact on some of the neighborhoods where New York's 600,000 Muslims live. Advocates say the untold story of post-September 11 immigration enforcement is the exodus it spurred of Muslim Arab and South Asian people. In Midwood, where Mohammad Razvi runs the Council of Peoples Organizations, he says that 30 of the 150 businesses in the area closed because the owners or their customers fled. "Many just packed up and left," Razvi says. 'The demographics have changed not because people are doing better and moving on, The demographics have changed because people left in fear."
hat change is difficult for an outsider to discern. In fact, many
details of post-September 11 immigration enforcement are murky, largely because of the unprecedented secrecy in which federal agencies have operated since the immediate aftermath of the World Trade Center attacks. On September 12, 2001, then-Bureau of Prisons Regional Director David Rardin, who oversaw the Metropolitan Detention Center in Brooklyn, imposed a communications blackout on the September 11 detainees. As a result, the inspector general found, "MDC staff did not allow detainees to receive telephone calls, visitors, or mail, or to place telephone calls or send mail until the Bureau of Prisons received information concerning the security risks presented by the detainees." This blackout lasted several weeks in some cases and "severely limited the detainees' ability to obtain, and communicate with, legal counsel," the inspector general found. One detainee profiled by the inspector general waited 19 days after his arrest to be allowed to call a lawyer. Once detainees made it to a hearing, they faced the possibility of secret evidence being used to justify their detention or deportation. In fact, the hearing itself might have been labeled a state secret: In late September 2001, the nation's chief immigration judge-who is not an independent jurist but a DOJ employee-announced a policy under which the attorney general could impose blanket secrecy on any case that the DOJ labeled "special interest." Those cases were closed to family members, the press and the public and were not even listed on court dockets. The rationale was that the government needed to keep its evidence and even the names of the detainees secret from terrorists, who could alter their plots if they knew which conspirators had been locked up. The North Jersey Media Group, a newspaper publisher, and the New Jersey Law Journal sued to overturn the policy, claiming it was unconstitutional. So did the Detroit Free Press. Both suits won at trial. When the Detroit case survived a government appeal in 2002,
the opinion by Circuit Judge Damon]. Keith became a rallying cry for "war on terror" skeptics. "Democracies die behind closed doors," he wrote. "When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation." The New Jersey case had a different ending. A three-judge panel of the Third Circuit split over the issue in a 2002 ruling. One judge agreed that some immigration hearings, or maybe even all of them, needed to be closed for national security reasons but thought that the attorney general should have to make a case-by-case argument for secrecy. His two colleagues overruled him, siding with the DOJ to conceal all hearings. 'We are keenly aware of the dangers presented by deference to the executive branch when Constitutional liberties are at stake, especially in times of national crisis, when those liberties are likely in greatest jeopardy," they wrote. "On balance, however, we are unable to conclude that openness plays a positive role in special interest deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension." The Supreme Court declined to take the case. The government closed 782 deportation cases before ending the practice in 2003, according to the DOJ.
Edgar Morales didn't belong to AI Qaeda, Ansar al-Islam or any of the 40 other organizations on the U.S. State Department's list of foreign terrorist organizations. He belonged to the St. James Boys, a violent street gamg that prosecutors said considered itself "kings of the Bronx." It was a killing that landed Morales before a Bronx jury last year. But it was the reaction to September 11 that earned Morales extra prison time when he was convicted and sentenced.
CITY LIMITS INVESTIGATES
Morales, 26, was the first person charged with murder "as a terrorist act" under one of several additions to state law passed in the aftermath of the attacks on the twin towers. (Other additions to the state's penal code include "soliciting or providing support for terrorism," "making terrorist threats" and "hindering prosecution of terrorism." Prosecutions for those lesser offenses, while still rare, are on the rise statewide-from eight in 2003 to 43 in 2007). The jury found that Morales was involved in a shooting outside a baptism party in August 2002 in which one man was paralyzed and a 10-year-old girl was killed. He was found guilty of manslaughter, attempted murder,
Associates of violent street gangs rarely garner public sympathy when they get long prison terms. But in Morales' case, it's the process that's been questioned. His lawyer and others have asked whether charging a street thug with a crime intended to apply to the likes of Mohamed Atta distorts the criminal justice system. When told that the defendant is not just a killer but a terrorist, "I think it's very tough for the average juror not to somehow skew things in favor of the prosecution," says Dino Lombardi, the lawyer representing Morales, who is appealing his conviction. "It basically has the danger of being overbroad in its reach because you can basically string together any
A s hooting at this church in the Bronx's Parkchester neighborhood was linked to a "terrorist" street gang, according to District Attorney Robert Johnson. Photo: JM
"TELL ME, HOW IS ADEFENSE ATTORNEY SUPPOSED TO DEFEND SOMEONE AGAINST EVIDENCE YOU CAN'T SEE AND YOU CAN'T SHOW YOUR CLIENT?" ASKS SEAN MAHER.
conspiracy and possession of a weapon. Because those were found to be "crimes of terrorism," his sentences were enhanced. Rather than a 25-year maximum each for manslaughter and attempted murder, Morales is serving consecutive 20-to-life sentences. 'The obvious need for this statute is to protect society against acts of political terror," the Bronx district attorney, Robert Johnson, has said. "However, the terror perpetrated by organized gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute." Johnson's office pointed to a string of incidents blamed on Morales' gang-shooting into a crowd during incidents in 2001 and 2004, assaulting and severely injuring a man in late 2001, and shooting a boy in the face in 2002-and argued they "constituted overt acts by the gang, which proved the existence of a conspiracy to terrorize an entire community."
Yorkers-469,OOO in 2007. In the first quarter of 2008, police listed "furtive movements"-rather than a reason like "fits a relevant description"-as the justification for 44 percent of their stops.
group of crimes that are committed by the same group of individuals and call it a terrorist act." Asked whether he'd prosecute other gang members as terrorists, Johnson replies in a statement 'This was a very specific fact pattern. But if future facts fit the statute, we'll use it." As for the notion that mere mention of the word "terrorist" might bias the jury, the DA notes that, "Any criminal charge has that potential. But the jurors are given instruction by the judge on what they may consider." The justice system has changed since (if not necessarily because of) September 11 in myriad other ways. New York State now collects DNA from a broader swath of convicted criminals than it used to, including people found guilty of second-degree criminal trespass and misdemeanor larceny. Mayor Bloomberg is currently pushing to take DNA samples from all people who are arrested. Meanwhile, the NYPD is stopping and frisking a very large number of New
~e Constitution's Sixth Amendment
holds that an accused person is supposed to be "confronted with the witnesses against him" and have "the assistance of counsel for his defense." Since September 11, federal courts in New York and elsewhere have increasingly altered the attorney-client relationship with "special administrative measures," or SAMs, and through the use of secret evidence have in many cases circumscribed the right of the accused to see the evidence against them. SAMs restrict a defendant's communication-anything from letter writing to visits to talking with the media. They were introduced by the Clinton administration in 1996 under the justification that jailed terrorist leaders had to be prevented from issuing order to their followers. In 2005, defense lawyer Lynne Stewart was found guilty of terrorist activity for violating SAMs imposed on her client, Sheik Omar Abde1 Rahman, who is serving a
CITY LIMITS INVESTIGATES
life sentence in connection with several terrorist plots. In June 2000, Stewart issued a press release in which Rahman, at the very least, hedged his support for a cease-fire between his followers in Egypt and the Egyptian government. Stewart was sentenced to 28 months in prison but is appealing, arguing that the SAMs violated her First Amendment rights. SAMs are also an issue in the case of Syed Hashmi, a U.S. citizen of Pakistani origin who grew up in Queens and attended Brooklyn College before moving to London, where he was arrested in 2006 for providing material support to terrorism. Prosecutors say Hashmi allowed a friend who was carrying gear for Al Qaeda to stay in his London flat and use Hashmi's cell phone to contact other militants. The gear reportedly included night-vision goggles, ponchos and waterproof socks. Hashmi was extradited to the United States last May-the first time Britain had extradited a terrorism suspect here. As Hashmi arrived, Police Commissioner Kelly said, 'This arrest reinforces the fact that a terrorist may have roots in Queens and still betray us. Congratulations to the New York City detectives and FBI agents who understood this and kept Hashmi on our radar." Hashmi was a member of Al Muhajiroun, a group that has been active in London and New York City. The group refers to the September 11 hijackers as "the magnificent 19," and its founder has boasted of sending young men to terrorist-training camps. It was banned in Britain in 2005 but is not listed as a foreign terrorist organization by the United States because it has never been conclusively linked to a violent act. Saying that Hashmi's communications "could result in death or serious bodily injury to others," the prosecutor imposed measures to prevent him from getting messages out of his cell in the Metropolitan Correctional Center in Manhattan. Under those measures, prison officials decide if he has "contact" or "non contact" visits with his lawyers and can record his conversations with people in adjoining cells. Also, Hashmi- who faces 50 years in prison
if convicted on all charges-can't talk with or meet members of his lawyer's staff unless his lawyer is present and can't use a translator that the government hasn't cleared. Hashmi's lawyers have argued that these measures make for harsh pre-trial detention and a harder time defending their client-who is, after all, presumed innocent Because secret evidence might come into play, Hashmi's lawyer had to undergo a background check to obtain top secret clearance. But if earlier terrorism trials are any guide, Hashrni's legal team still might not be shown some evidence. According to the Center for Law and Security at NYU, at least 22 of the 63 federal terrorism cases since September 11 have used evidence that the defendant, and perhaps his lawyer, could not see. 'Tell me, how is a defense attorney supposed to defend someone against evidence you can't see and you can't show your client?" asks Sean Maher, one of Hashmi's attorneys. The use of secret evidence is separate from another controversial tactic: the government's use of the "state secrets" privilege to dismiss lawsuits against the United States on the argument that the suits might expose national security information-something the Bush administration has done in several high-profile cases. Until the Supreme Court's ruling last month, detainees at Guantanamo Bay weren't receiving trials at all but military tribunals that lack many of the protections defendants normally enjoy in court. Several New York lawyers and firms have taken on those detainees' cases. Last year, a Pentagon official suggested that corporations avoid hiring firms that represent Guantanamo prisoners. He later apologized and resigned.
Many of New York's Muslims believe they are being watched-that informants are in their midst, undercover officers are in their mosques, that they
aren't safe in their homes and that someone listens to their phone calls. Those fears would seem exaggerated, even hysterical, if it weren't for the fact that the NYPD-already known to operate a network of informants-has, over the past two years, announced that dangerous, radical ideology is pervading the city's Muslim community. Fears of "sleeper cells" or "homegrown terrorists" have been heightened ever since September 11, but concern about domestic terrorists swelled after the 2005 London-transport-system bombings, which were perpetrated by people raised in Britain. About a year after those bombings, the NYPD hired Richard Falkenrath, an expert on weapons proliferation who worked on President Bush's transition team, national security staff and 2004 campaign. Two months into his NYPD tenure, Falkenrath appeared before the U.S. Senate's Homeland Security committee. Citing the NYPD's "great deal of knowledge of local extremist, radical and militant individuals and groups," Falkenrath said that Al Qaeda's "powerful radical influence on the city's younger generation-especially among its sizable Muslim community-continues to pose a serious threat from within .... We consider the fuel that ignited this inside threat-extreme militant ideology and influence-as the most critical challenge in addressing this inside threat in New York City." He concluded: 'The possibility of a 'homegrown' terrorist attack against New York City or any other American city is real and is worsening with time as the radical process unfolds." Falkenrath's comments attracted little attention, even though they apparently marked the first time a city official had suggested that New York Muslims were becoming radicalized in a way that made them an "inside threat." There was more buzz the following August when the NYPD's Intelligence Division released a report called "Radicalization in the West: The Homegrown Threat." The 90-page study was, according to Time magazine, 'The most sophisticated government analysis of
CITY LIMITS INVESTIGATES
the indoctrination stage is that "rather than seeking and striving for the more mainstream goals of getting a good job, earning money, and raising a family, the indoctrinated radical's goals are non-personal and focused on achieving 'the greater good.'" It also posits that the spread of radicalization in Europe has been exacerbated by the continent's "generous welfare systems" and "immigration laws that don't encourage ... assimilation." New York, it seems, doesn't suffer from those policy shortcomings, but Silber and Bhatt nonetheless contend that "radicalization continues permeating New York City, especially its Muslim communities." ritics of the NYPD's approach take issue with much of the radicalization report-not just what it says, but what it leaves out. The study looks at a mere five cases of terrorism that all involve Muslims; Oklahoma City's Timothy McVeigh, Unabomber Theodore Kaczynski and Eric Rudolph (who bombed the 1996 Olympics, a health clinic and a nightclub in Atlanta) are recent homegrown terrorists who don't make the cut, and neither do other terrorists from domestic groups like the Animal Liberation Front or Earth Liberation Front. What's more, the report "doesn't follow the rules of inference, because it doesn't look to see if the features it sees as connected to violence are present in a broader spectrum of cases in such a way as to make the correlation they are suggesting suspect," says Aziz Huq, an attorney at the Brennan Center for Justice at NYU. For instance, a concern for the "greater good," which non terrorists from Dorothy Day to Jerry Lewis have exhibited, might not be a useful predictor of potential violence. The central conclusion of the report regarding New York-that radicalization is spreading here-gets little support among people who live and work in the city's Muslim communities. Sure, it's easy to find terrorist propaganda videos on Atlantic Avenue, but that doesn't
The Bay Ridge bookstore where a police informant met with the men later imprisoned for the 2004 Herald Square bomb plot. Photo: A aron M cElroy
the homegrown terrorism threat to be made public in the United States." The report, written by NYPD intelligence analysts Mitchell D. Silber and Arvin Bhatt, examined five terrorist plots-including the London attacks, the 2004 Madrid train bombings and the murder of Dutch filmmaker Theo van Gogh-and concluded that the plots fit a pattern in which radical Islam drove the participants to their deeds. Silber and Bhatt posited a four-stage radicalization process. "Pre-radicalization" is the period before exposure to jihadi-Salafi Islam, a radical interpretation of the Muslim faith. "Self-identification" is what happens when a "cognitive opening or crisis" leads a person to explore radical Islam. "Indoctrination" occurs when the person ''wholly adopts jihadiSalafist ideology" and decides that "action" is required, usually with the help of a "spiritual sanctioner." Finally, "jihadization" happens when the person decides to become a "holy warrior." The report says "there's no useful profile to assist law enforcement" but also claims that the four-step pattern "provides a tool for predictability." Not everyone who starts the radicalization process
finishes it, of course, but that "does not mean that if one doesn't become a terrorist, he or she is no longer a threat," it reads. "Individuals who have become radicalized ... may serve as mentors and agents of influence to those who might become the terrorists of tomorrow." That means anyone who starts the process is a threat. And that's where the report really breaks new ground. "Taken in isolation, individual behaviors can be seen as innocuous," but when seen as part of a process of radicalization, they look more menacing, the report reads. Hence "the need to identify those entering this process at the earliest possible stage." To help with that identification, the report identifies clues that a person has started down the path to radicalization. It names mosques, cafes, cabdriver hangouts, student associations, hookah bars and bookstores as potential "radicalization incubators" and lists "signatures" that someone has adopted Salafism, including "giving up cigarettes, drinking, gambling," along with "wearing traditional Islamic clothing, growing a beard" and "becoming involved in social activism and community issues." Later, the report contends that a hallmark of
CITY LIMITS INVESTIGATES
mean an increasing number of people are watching them. Teachers College Professor Louis Cristillo, who has studied the city's Muslim community, believes there is actually less radicalization post-September 11 because mosques and community centers all suspect that informers are in their midst Cristillo released a survey this spring of Muslim high school students. Only 25 percent attended a mosque weekly. More than 55 percent said most or all of their friends were non-Muslims. One radical group, the Islamic Thinkers Society (whose website refers to the Holocaust as the "Hollowca$$t") has been active in New York City but is widely shunned. Radical web sites are unlikely to reach a broad swath of Muslim youth, either. "On a daily basis, Muslim students are six times more likely to be looking for music than anything related to Islam," let alone radical Islam or violent ideology, Cristillo reports. At a recent NYU counterterrorism conference, Jessica Stern, a John F. Kennedy School of Government scholar of worldwide Muslim terrorism, praised the NYPD report But she noted that predictions of an imminent radicalization of American Muslims "might be an exaggeration." She added, "Because Muslim Americans are better off than average Americans, I would be very surprised." The key question is how the NYPD report will be used. It's already influencing debate within security circles nationwide; a May report by the U.S. Senate Homeland Security committee adopted the department's methodology. What's unclear is whether the NYPD will employ Silber and Bhatt's findings to guide its own operations in the Muslim community. "It provides the most articulate justification for infiltration," Huq says. 'The NYPD has said the report is not affecting operations at all. I think that's very unlikely. Even if only by osmosis, the report is going to affect the kind of tactics that will be used." Those tactics are likely to include more religious and racial profiling, he warns. Samuel Rascoff probably knows what the report is supposed to be used for,
The National Security Agency's warrantless wiretapping program is at issue in a case that a New York City federal appeals court is considering. Photo: NSA
On the Wire
Deciding whether a terrorism suspect deserves a new trial because the govemment might have used secret wiretap evidence gathered without a warrant might seem like a complicated matter. But in March 2006, Federal District Court Judge Thomas J. McAvoy in New York's Northem District dispensed with it in less than a page. At least that's what he did in public. McAvoy filed his full decision in secret-apparently the first time a federal judge has issued a ruling that not only the public but also the defendant and the defense lawyers could not see. The u.s. Court of Appeals for the Second Circuit, on Pearl Street in Manhattan, is now considering a motion to reveal what McAvoy wrote. That's just one connection that the case of former Albany resident Yassin Muhiddin Aref has to the city. Aref and a co-defendant, Mohammed Hossain, were each sentenced in March 2007 to 15 years in prison for their role in a scheme to launder money to fund the purchase of a shoulder-fired missile that a government informant claimed would be used to kill a Pakistani diplomat in New York City. Aref's role was to witness a loan that the informant made to Hossain as part of the money-laundering scheme. It was Aref, though, who was the feds' target all along, after his name turned up in documents seized during u.S. military raids on militants in Iraq. The meaning of the documents has been disputed; the government admitted it mistranslated the word "brother" as "commander" in one of the references to Aref. That's not all Aref's lawyers were prevented from seeing. In early 2006, shortly after The New York Times broke the news that the Na-
tiona I Security Agency had intercepted phone calls involving callers in the United States, the Times reported that NSA intercepts might have figured into criminal cases-and quoted a government source identifying Aref's trial as one of those cases. Aref's lawyers moved to compel the govemment to "affirm or deny the existence of electronic surveillance" in the case and asked the judge to dismiss the case, arguing that evidence collected without a warrant is inadmissible. When the Justice Department responded, it filed its papers in camera, ex parte, meaning only the judge (not the defendant or his lawyers. let alone the general public) could see them. Thus McAvoy-who has been on the federal bench since 1986, appointed by Ronald Reagan-ruled in secret on a secret motion by the govemment concerning a secret surveillance program. There's no timeline on when the appeals judges will rule on whether McAvoy's move was legal. It is possible that the appeals court will rule in secret too. The NSA's warrantless wiretapping might have violated the Foreign Intelligence Surveillance Act (FISA) of 1978, which required that the government seek clearance from a special court before conducting surveillance on domestic subjects. This does not appear to have been a burdensome requirement. From 1980 to 2006 the government requested approval from the court nearly 23,000 times, and the court only turned the government down outright on five occasions. The NSA wiretapping is one of several aggressive electronic-data-gathering programs to emerge after September 11. The government has acquired phone call records-not the content of the calls, just the numbers dialed-from telephone companies to look for patterns among the millions of calls, foreign and domestic, tracked in those databases. Internet service providers have handed over suscriber information to the government. And the government tapped into the information handled by the international SWIFT banking network in order to track terrorist cash. last year, Congress approved an update of the FISA law that expanded what the government can do without seeking immediate FISA court approval. That law lapsed because of a dispute over whether phone companies should be immune from lawsuits over their cooperation with the warrantless program, but wiretapping operations that began under the law continued. -JM
CITY LIMITS INVESTIGATES
but he did not respond to requests for an interview. The 30-something Rascoff is a former Supreme Court clerk and aide to L. Paul Bremer, who was the United States' administrator in Iraq. From 2006 to this spring, he served as the NYPD's director of intelligence analysis before taking a post at the NYU School of Law. Last year, Rascoff (who can speak or read Hebrew, Arabic, French, Spanish and Farsi) spoke at a counterterrorism conference in Canada. When he reached the podium, Rascoff stressed that the views he expressed were his own and not those of the NYPD. Then he mounted an argument for how spying on New Yorkers might protect, rather than imperil, civil liberties. Rascoff's basic idea is simple: The criminal justice system is poorly suited to addressing the terrorist threat because it has to wait for illegal activity to emerge, and that means waiting until it's too late. "Radicalization may culminate in violence, but a good deal of radical activity is, from a constitutional and, indeed, a criminal standpoint, benign," he said. In the end, the problem with criminal prosecution is "it cannot address protocriminal activity."
That's why Rascoff advocates a new "intelligence paradigm" for counterterrorism, "focused not on arrest, trial and conviction but situational awareness, prevention and, where necessary, interdiction and disruption," in which "success is measured not in how many bad guys are put behind bars but in how many bad events are prevented from coming to pass in the first instance." The secret to success is the looser rules that intelligence collectors face. "Even constitutionally protected activity, to the extent that it may pose a threat to society, may become a subject of intelligence gathering and analysis," he said. That allows intelligence agents to track a person who "may have just begun to reveal evidence of criminal intent" by watching not just individual suspects, but also families, schools, houses of worship, chat rooms and prisons. This traipsing into constitutionally protected activities is OK, Rascoff argues, because in the intelligence paradigm, no one faces jail time; in other words, no one loses any physical liberty. Of course, people might face invasions of their civil rights to privacy and expression. Those rights are "critically important," Rascoff
says. But they are also negotiable. "My argument here can be understood as a form of rights utilitarianism. Rights may be better protected by a forward-leaning posture that prevents the next attack and, with it, a profound backlash-and that backlash could take the form of popular reprisals or, as is more often the case, state action directed at aggressively getting to the bottom of the threat," Rascoff said. "Of course, to the rights absolutist, this form of argument can never be persuasive," Rascoff added. "But to those of us who understand that a balance between rights and security must be struck, the prospect of doing so with the most sophisticated information and analysis ought to be welcomed, both from the standpoint of maximizing liberty and maximizing security." t's an interesting argument, even if it does justify governmental intrusion with the threat of even greater governmental intrusion or a vigilante backlash down the road. What it doesn't address is what happens if an attack occurs despite Rascoff's "forward-leaning posture." Would there be an even greater backlash? This scenario is of particular interest to communities that have already encountered the intelligence paradigm. Mohammed Razvi of the Council of Peoples Organizations says that immediately after September 11, some people in his community slept in their cars because they feared getting picked up by federal agents if they ventured home. "We had law enforcement agents coming into the community to find people when their name matched some kind of database," Razvi recalls. "Federal agents, they're not just high school graduates. They used words like 'affiliation,' 'associate,' 'Are they your confidant?' When a person says, 'Yes,' all of sudden they're handcuffed." The exact extent of such actions is almost beside the point. "If one community member is in fear of law enforcement, that news travels like lightning," he adds. '''The fear of law enforcement deporting someone, it doesn't
Richard Falkenrath went from the Bush administration to the Bush re-election campaign to heading the NYPD's counterterrorism division. Photo: US. State Department
CITY LIMITS INVESTIGATES
matter what language you speak." That crackdown has coincided with events that, advocates in the community say, suggest a larger hostility toward Muslims: hate crimes, the controversy over an Arabic high school, the deportation of a 16-year-old Queens girl as a suicide-bomb risk, the detention of New York Muslims on their way to a religious conference in Toronto, the farcical debate over whether Barack Obama is a Muslim. Then there are the spies. "It's frightening, the level of informants that are in our community," says DRUM's Monami Maulik, who adds that she has worked on at least a dozen cases of community members getting in trouble because of something they told an informant. Some get a warning first, Maulik says, "people telling them flat-out in our community, 'I've got to tell you right now I'm being paid by DHS. I know you and you shouldn't talk to me.'" Maulik adds: "People are being coerced as well as being rewarded to snitch on their neighbors. These are ordinary people." Cristillo, the Teachers College professor, has also detected high levels of suspicion. Muslims tell him that "sometimes when they walk into a mosque in which they would be perceived as a stranger, they're sometimes looked at as if they're the object of suspicion," he says. "So this is sowing mistrust even within the Muslim community."
The Islamic Center of Bay Ridge is one of a handful of mosques that the NYPD is known to have infiltrated at one time. Photo: Aaron McElroy
THE HERALD SQUARE SURVEILLANCE TAPES INCLUDE SHAHAWAR MATIN SIRAJ SAYING JAMES ELSHAFAY WAS "CRAZY ... HE WANTS TO DO CRAZY THINGS, ATTACKS, BLOWUPS, STUFF LIKE THAT."
of 2003, at the direction of his NYPD handler, Eldawoody visited the AI Noor mosque on Staten Island; he'd visit there 100 times in the next year. Then in late August 2003, he visited the Islamic Society of Bay Ridge, a mosque on Fifth Avenue. Next door to the Islamic Society was the bookstore where Eldawoody met Shahawar Matin Siraj, a 2(}.year-old Pakistani who worked there. Over the next year, Eldawoody traveled to the Islamic Society mosque and the bookstore dozens of times. Siraj introduced him to a friend, James Elshafay. The three men talked religion and politics; on a couple of occasions later in 2003, Eldawoody later testified, Siraj mentioned an interest in bombs and other sinister things, but apparently nothing serious enough that his NYPD handler wanted the encounters tape-recorded. As a result, the full content of those conversations are unknown. Eldawoody only began taping after May 3, 2004. On that day, according to the debriefing report filed by his NYPD handler, Eldawoody described the number of people attending services at the mosque. Routine stuff. But then he described a visit to the bookstore in which Siraj and Elshafay "expressed anger at the photos of the Iraqi prisoners [at Abu Ghraib] and in not so many words told [Eldawoody] that they are prepared to avenge the above. They did not elaborate in any way on the meaning of this." From that point on, Eldawoody's conversations with Siraj and Elshafay were
s the NYPD report points out, only one "homegrown plot" has emerged so far in the five boroughs: the 2004 arrest of two men who were plotting to bomb the Herald Square subway station. The radicalization report describes that plot in detail over several pages. Nowhere does it mention that the "spiritual sanctioner" in that case was on the payroll of the NYPD to the tune of $100,000. The sanctioner was Osama Eldawoody, an Egyptian who testified that he became an informant after he was twice visited by law enforcement agents checking out post-September 11 tips (which proved false). In the summer
CITI LIMITS INVESTIGATES
surreptitiously taped, and the tapes, as Siraj's own lawyer Martin Stolar says, "sound terrible"- full of allusions to violence and a desire on Siraj's part to "burn these motherfuckers." Other statements muddy the picture a bit. Siraj, for example, said one day that Elshafay was "crazy ... he wants to do crazy things, attacks, blowups, stuff like that." It's unclear why Eldawoody thought the police needed to know that Siraj was "very excited" about the Michael Moore movie "Fahrenheit 9/11." Eventually, the men conceived a plot to bomb the 34th Street-Herald Square subway station. The true authorship of that plan is disputed. Prosecutors say the tapes show that Siraj came up with it. Stolar argues that Eldawoody, nearly twice Siraj's age and more experienced in religious matters, drove the plot. On at least one occasion Siraj hesitated about being part of the plan, but when Eldawoody questioned him, Siraj retreated and said he merely didn't want to place the bombs or kill anyone but would serve as a lookout. On August 21, 2004, the three men cased the subway station. Six days later, Elshafay and Siraj were arrested. There were no actual explosives; at one point in the case, prosecutor Todd Harrison told the judge, "Frankly, there are no specific allegations of terrorism." Elshafay testified against Siraj and received a five-year sentence. After a fiveweek trial, a federal jury found Siraj guilty on all counts. He was sentenced to 30 years in prison. He is appealing, challenging the content of the instructions that the judge gave to the jury. Stolar was not surprised by the outcome. No stranger to unsympathetic defendants (there's a sketch in his office of Stolar holding a hand grenade during one of three trials he participated in for a suspected drug kingpin), he thinks Siraj faced an uphill battle. "It's an extremely difficult task to convince someone to acquit a Muslim of terrorism," Stolar says. "Half of the potential jurors were dismissed because of antiMuslim views. It was amazing. It was an astonishing amount of true hatred of
Muslims." The day after Siraj was convicted, immigration authorities rounded up members of his family, who had been seeking asylum. They are now fighting deportation to Pakistan. Asked through an interpreter why she thinks her family was detained, Matin's mother Shahina Parveen says, "Because they wanted to silence the truth. We were talking very loudly and letting people know about the injustice that happened." Siraj's defenders insist that if it weren't for the informant's prodding, Siraj never would have conceived of the plan to bomb the subway. But what if there had been a real bomb in that backpack. Would Siraj have used it or condoned its use? "Oh yeah. Yeah," Stolar says with a nod. "He was completely talked into it. He was convinced it was the right thing to do. The logic of it escapes me, how blowing up a subway station was supposed to bring home the troops from Iraq. But that was the idea."
ficials and a diploma from the Citizens' Police Academy. He is angry about immigration roundups and deportations. About the rest, he sounds resigned. "If a phone call comes from an international number, yes, they're being monitored. Is my phone? Absolutely. Do I feel that the mosque is being monitored? Absolutely," he says. 'That's just something that we have to live with."
At the Library
prevented plaintiffs from criticizing the government, despite the government's argument to the contrary. Specifically, prevented plaintiffs from criticizing So reads a typical, heavily redacted passage from the lawsuit known as John Doe v. Ashcroft (and since then known as Doe v. Gonzales and Doe v. Mukasey), filed in 2004 by the president of an Internet service provider who received a national security letter from the FBI asking for information. It's not known exactly what the letter was seeking because the request came with a gag order attached-the recipient was barred from acknowledging receiving the letter, let alone discussing what it asked for or who the subject was. It's not even clear where the ISP is based, and John Doe's lawyers won't risk imprisonment by saying where he's from. Since Doe's case came before the U.S. District Court for the Southern District of New York, however, it's highly likely that John Doe's business is based in Bronx, Dutchess, New York, Orange, Putnam, Rockland, Sullivan or Westchester County. Federal agents have been empowered to distribute national security letters (NSLs) for years. NSLs can't seek the content of communications. But they can demand records like telephone bills, e-mail and telephone subscriber information, financial records and credit reports. The USA Patriot Act of 2001 ex-
he Siraj conviction continues to reverberate among the city's Muslims. 'The case crystallized people," says the Brennan Center's Huq. 'The kind of prosecutions we're seeing in federal court leave the community with the assessment that their community has been targeted for intense scrutiny." But that community is no monolith, especially when it comes to relations with the NYPD-a subject of tension between activists, who say the police have targeted them, and community leaders, who see local authorities as an ally in the face of intense federal pressure. Some community leaders, Maulik says, "have really pushed collaboration. There's this whole message of 'Don't make enemies of our community.'" There is disagreement, too, over whether police officers always adhere to the mayor's executive order prohibiting them from asking about immigration status. Razvi, for one, is not critical of the NYPD. He says he works closely with the police, and the decorations in his office are evidence of this assertion: There are pictures of him with police of-
CITY LIMITS INVESTIGATES
panded the use of NSLs-one of several law enforcement tools that the Patriot Act upgraded. Some of those tools-like the right of federal law enforcement agents to obtain library records-have been controversial, although the true impact of the Patriot Act is difficult to discern, in no small part because of the secrecy surrounding its use. Section 215 of the Patriot Act, for example, amended the Foreign Intelligence Surveillance Act of 1978 to allow the FBI-after review by a secret court-to seek a broader range of "tangible items" like "books, records, pa-
"I HAVE STEERED CLEAR OF NUMEROUS TOPICS OF CONVERSATIONS," SAYS JOHN DOE. "I HAVE TO MAKE UP EXCUSES ABOUT WHERE I AM GOING WHEN I HAVE TO MEET MY LAWYER."
pers, documents, and other items" from a wider array of institutions than previously allowed. It's Section 215 that led Patriot Act critics to worry that the FBI would seek library records. The bureau has indeed sought information from libraries under Section 215, according to a 2007 report by the Justice Department inspector general. The exact number of requests that were sent to libraries was redacted, but the inspector general's reports indicate that, overall, Section 215 requests are fairly rare (there were 215 nationwide from 2003 to 2006) National security letters-which FBI field offices can issue on their own, without court oversight-are much
Many libraries have stopped keeping historical records of what patrons read, but names are often still associated with overdue items and fines. Photo: JM
more common. From 8,500 requests in 2000, the FBI's use jumped more than sixfold to 56,000 in 2004 and hovered around the 50,000 mark in 2005 and 2006. The expansion may have been even greater than that: The DOJ inspector general believes the FBI substantially underreports the number of letters it issues. And a single letter can gather a large volume of information: One investigation involved nine letters that collected information on 11,100 phone numbers. Americans are increasingly the FBIs target: The percentage of letters seeking records of U.S. citizens or residents as opposed to foreigners rose from 39 percent in 2003 to 57 percent in 2006. FBI agents told the inspector general that NSLs were their "bread and butter," used to collect evidence, lay the groundwork for a court order for more-intrusive surveillance or eliminate subjects from suspicion. But it doesn't always go according to Hoyle. The FBI itself identified 26 cases from 2003 and 2005 where either its agents misused their NSL power or the person who received the letter provided more information than
required. The inspector general found a far higher rate of misuse: In the 77 case files it examined, the inspector found 22 cases where the letters or their response went beyond the FBI's legal reach. Sometimes the FBI didn't even bother to use an NSL, which does require at least some supervisory safeguards. The bureau, for example, sent 739 requests to three phone companies asking for billing records on 3,000 phone numbers without issuing a single NSL. This use of so-called exigent letters troubled the inspector general. "Many were not issued in exigent circumstances," he found , and many of the letters may have falsely claimed that subpoenas were being sought. The inspector general didn't reveal which field offices issued NSLs but did report that New York, Chicago, Philadelphia and San Francisco issued the most (a combined 293). The Doe case gives some sense of what one NSL recipient felt. "I am the president and sole employee of , which is an Internet access and consulting business incor" porated and located in
CITY LIMITS INVESTIGATES
The City Council is considering a law that would decriminalize "parading without a permit, " a charge the police have leveled against bikers and marchers. Photo: Aaron McElroy
Doe wrote in one court filing. Doe described his or her business and clients. "Some of those clients are individuals and political associations that engage in controversial political speech," Doe wrote. Because of the gag order, Doe continued: "I am not sure whether I can even tell people that I am involved in a
lawsuit. . .1 have steered clear of numerous topics of conversations .. .I have to make up excuses about where I am going when I have to meet my lawyer." His lawyer, from the American Civil Liberties Union, also lamented the government's demand for secrecy, saying that the U.S. Attorney's office even
tried to redact from legal papers a brief quote from a 1972 Supreme Court decision involving civil liberties, as well as a description of a conversation between ACLU Executive Director Anthony Romero and a donor-an anecdote in which, it turns out, Romero described how he had to evade the donor's questions about the Doe lawsuit. In 2004, District Judge Vincent Marrero ruled that the Patriot Act's gag provision was unconstitutional. The government appealed. The Doe case was combined with another, involving an unnamed Connecticut librarian who'd also received an NSL. While the case was on appeal, Congress revised the Patriot Act to include new constraints on FBI records requests, so the appeals court sent the cases back to the lower courts. In the Connecticut case, the FBI withdrew the NSL and lifted the gag; it turns out the feds wanted to know who was using a particular IP address for a 45-minute period in February 2005. In the case of the mystery ISp, the feds withdrew the NSL but kept the gag. Last year, Judge Marrero again found the gag order to be unconstitutional. The case is now on appeal. Despite the revisions to the Patriot Act, librarians are still worried, says Deborah Caldwell-Stone, the deputy director of the Office for Intellectual Freedom at the American Library Association. ''We really don't believe that our concerns have truly been addressed by the changes in the law," Caldwell-Stone says. 'The fact that this would become a form of abuse has been seen." But their worries aren't new. In the 1980s, the FBI ran a secret initiative called the Library Awareness Program that sought library records without warrants. That led many libraries to change their policies; many stopped retaining all historical records of what people had checked out. However, there still could be records of who last took out an item and who has overdue books. So, contrary to some of the alarms sounded about the Patriot Act, the FBI's power to learn what you're reading is
CITY LIMITS INVESTIGATES
constrained by library record-keeping safeguards. A more likely target for the bureau is the public access computer terminals that many libraries host That focus has an economic dimension, since poor people are more likely to use those computers. As the ALA said in a brief for the Connecticut NSL case, ''The effect of tills policy will undermine free speech by discouraging individuals from speaking and receiving information and from doing so at public libraries. It will have a disproportionate effect on those who are unable to obtain Internet access." Whatever the feds are looking for, your local librarian still might face prison time for telling the world about an FBI request. Asked if the New York Public Library had received any national security letters or Section 215 requests, NYPL spokeswoman Gayle Snible could only say, "Both before and after September 11, 2001, the library has received subpoenas and other requests for information from time to time from law enforcement agencies as well as from private litigants."
When the NYPD began videotaping the protests Walter Uddy attended during the 2004 Republican National Convention, Liddy felt a chill. "This videotaping unquestionably had an intimidatory effect in that it deterred union members from participating in the protests who would have otherwise attended,· Liddy wrote in an affidavit filed in a lawsuit against the police department. He added that he believes "others ... were deterred from participating-and in fact did not participate" because of the videotaping. The end result. Liddy said, was that the protesters' message was diluted. Liddy isn't the only protester during or since the RNC to take offense at poIke officers' videotaping of legal protests. What's different about Liddy is that he's a police officer himself. A 26-year veteran of the NYPD and a Patrolmen's Benevolent Association trustee, Liddy is part of a lawsuit launched by the PBA and several other uniformed service unions against the NYPD for sending officers to videotape their protests during the RNC, when they demonstrated for better wages. It wasn't just that "videotapes were being compiled that documented off-duty officers' political activities and could be watched by senior members of the P0lice Department (and even lead to possible disciplinary actions against the protesters)," Liddy wrote. It was that "the fact that the Intemal Affairs Bureau of the Police Department-which is charged with investigating corruption and serious misconduct by police personnel-videotaped many of our protests.· The unions' suit is one of two federal court challenges to NYPD videotaping of protests, which became much more frequent after 2002 and has been seen at everything from Critical Mass bike rides to anti-war protests to rallies by advocates for the homeless. The other court challenge to police videotaping is occurring under the Handschu guidelines. a set of restrictions on police investigations of political activity (see "About Handschu, " p.36). On September 10, 2004-right after the RNC-the NYPD issued Interim Order 47, which created a system for police commanders to approve videotaping of protests. requiring merely that the taping have a "permissible operational objective." This standard was not particularly stringent: If a videotape were "deemed potentially beneficial or useful." it
-JM In Protest
Police Commissioner Kelly views the NYPD's handling of the 2004 Republican National Convention as "one of the department's finest hours." So he said in a terse note to the Civilian Complaint Review Board that took issue with a May 2006 letter the board wrote Kelly-and sent to The New York Times-suggesting that police commanders might have been hasty in arresting hundreds of people at two demonstrations. "As you well know, the convention served as a magnet for groups publicly committed to its disruption and to the disruption of life and commerce throughout the city," Kelly wrote. "Further, the convention brought with it the very real risk of a major terrorist attack .... Nevertheless, the convention, an essential element of American democracy, was able to proceed unhin-
met the test. The tapes would be held for at least one year and then, the order says rather vaguely, "may be destroyed," A back-and-forth battle has raged over those rules for more than three years. The lawyers who monitor the Handschu case on behalf of the plaintiffs of three decades ago asked Judge Charles Haight in 2005 for an injunction blocking the videotaping order. They argued that the videotaping policy could chill political expression and that the police department's policy of keeping videotapes for at least a year violated the Handschu rules. The NYPD countered that videotaping was constitutional. One key part of Interim Order 47 was a reminder that. per Handschu, any investigations of political activity be approved by the Intelligence Division. The Intelligence Division told Haight in 2006 that it had received no requests to film protests. Yet videotaping had occurred at dozens of them. Haight indicated that he found that fact odd. In February 2007, Haight found Interim Order 47 to be constitutional but said that some videotaping-of homeless advocates and peace activists-under the order had violated the Handschu guidelines. The city appealed, and in June 2007, Haight swung back the other way, saying that the NYPD could only be found in contempt for violating the Handschu guidelines if it violated the Constitution itself. In his latest ruling, in December 2007, Haight noted that" brush fires of controversy continue to burn" after his previous opinion and that the NYPD had pressed for even more latitude than Haight granted it in June. The judge shot the department down. And he ordered the NYPD to turn over documents generated by the police department under Interim Order 47; the department was complying this spring. There are separate questions about what the NYPD does with the videos it has. At least one of the criminal cases against RNC protesters was thrown out after it emerged that video evidence presented by the Manhattan district attorney had been edited to exclude images that helped the defendant. In another case, after a private citizen's video emerged that contradicted a police officer's testimony, the DA investigated the cop for lying about the circumstances of an arrest, but declined to press charges. Meanwhile, the judge in the PBA case is considering motions by both sides to end the case in their favor. -JM
CITI LIMITS INVESTIGATES
CITY LIMITS INVESTIGATES
dered, while hundreds of thousands of others were able to dissent freely and openly." During the week of the convention, the NYPD arrested more than 1,800 people for protesting-more than 1,100 of them on Tuesday, August 31, alone. As a whole, the arrests were the most seen at a U.S. protest in decades. Seattle police made around 500 arrests during the disturbances at the 1999 World Trade Organization summit there. At the 1968 Democratic National Convention in Chicago, around 700 people were arrested-but the police there might have been more interested in using their nightsticks than their handcuffs. Police at the 2004 RNC didn't crack skulls. But they hauled off a lot of people who apparently didn't belong in jail: Ultimately, only about 10 percent were found guilty of breaking the law. Whether or not the convention was the NYPD's finest hour, it was surely one of several hours during which the Bloomberg administration clashed with people seeking to exercise their freedoms of assembly and expression.
hen the World Economic Forum came to New York just a few weeks after Bloomberg and Kelly took power, the city expected to see a disruptive element that had already clashed with police in places like Seattle and Genoa. After all, the banks in town weren't taking any chances: They hired Beau Dietl & Associates, the private security firm, to protect their assets. Running BDA's show at the WEF was John Timoney, a former NYPD first deputy commissioner whose handling of the 2000 Republican National Convention in Philadelphia, where Timoney was then chief, involved "excessively harsh treatment" of protesters, according to Human Rights Watch. For their part, Kelly and the NYPD promised a zero tolerance approach to protesters who got out of hand. The anticipated clashes didn't happen. Protest groups claimed that the "direct action" people-the folks who seek confrontation with the police-had simply skipped the event. The NYPD credited its own policies. 'The amount of confrontation and the number of arrests were lower than expected," read one after-action report, heavily redacted for release as part of a lawsuit. 'The staging of large amounts of personnel and equipment that was observed by protesters was a deterrent." The same report recommended in the future that police commanders at demonstrations "utilize undercover officers to distribute misinformation within the crowds." In the late 1990s, New York began taking a tougher line on protests, veteran activists say. The NYPD stood out for the sheer number of helmets it assigned to demonstrations. What changed after September 11 was the way the NYPD cited the threat of terrorism as a rationale for how it handled protests-and political activity in general. Pointing to the threat of terrorists masquerading as a political movement, Kelly asked
An NYPD checkpoint on Broadway near the financial district.
Photo: Aaron McElroy
CITY LIMIT S INVESTIGATES
two officers whom the CCRB had cited for misconduct. There were other demonstrations against the war in the spring of 2003. It later emerged that the NYPD Intelligence Division had developed a questionnaire for people arrested at these rallies-one that strayed into asking people about their political beliefs. This Demonstration Debriefing Form asked protesters for the name of their organization and "organization position," as well as their "prior demonstration history." When Judge Haight learned about the use of the form, he seized back some of the leeway under the Handschu guidelines that he'd given the NYPD just a few months earlier. ater in 2003, some of the protest groups that the city had foiled on the eve of the Iraq war began filing for permits to hold events during the Republican National Convention, to be held the following summer. United for Peace and Justice CUFP]), for one, applied for permits for both a march and a rally to take place the day before the convention was to be gaveled to order. After some negotiation, the group got its wish to march past the convention site at Madison Square Garden. But when it came to UFPJ's plan for a rally on Central Park's Great Lawn for 250,000 people, the city said no. Two other groups working together, the National Council of Arab Americans and Act Now to Stop War and End Racism (ANSWER), were also turned down for a smaller demonstration of 75,000 on the lawn during convention week. The reason? The Great Lawn had hosted massive gatherings (like the 1982 anti-nuclear march, which drew 700,000) in the past. But, the city said, since the $18 million restoration of the Great Lawn in the late 1990s, the parks department's policy was to prohibit large events there except for a limited number of traditional performances by the New York Philharmonic and the Metropolitan Opera. ''Your event would cause significant damage to the lawn," the parks department wrote ANSWER.
Mayor Bloomberg and Police Commissioner Kelly have defended the city's handling of protests, especially during the 2004 Republican National Convention. Ph oto: City Hall
a federal court in 2002 to relax the restrictions under the Handschu consent decree, which had itself grown out of a 1971 lawsuit claiming that the police department illegally spied on and infiltrated political groups. District Judge Charles Haight agreed in early 2003. Just weeks later, the city cited the threat of terrorism in blocking plans for an anti-war march past the United Nations on Saturday, February 15--just a few weeks before the United States invaded Iraq. The organizers had to settle for a stationary rally. According to the New York Civil Liberties Union, the police refused permission for the march after Kelly met with Bloomberg about the organizers' request. The organizers sued, the Justice Department jumped in on the city's side, and the judges sided with Bloomberg. When February 15 came and millions of people gathered in cities around the world to oppose the looming war, New York hosted a debacle. First Avenue from the U.N. north was set aside for
34 SUMMER 2008
the rally, but since the NYPD decided to use metal pens for the demonstrators, the blocks quickly filled up with something between 100,000 and 400,000 people. Cops at barricades gave conflicting information on where people could go to enter the rally. There were scuffles as some demonstrators tried to push their way in. For blocks around the rally scene, thousands of people who could not enter the pens lined sidewalks. Seventy people filed complaints with the Civilian Complaint Review Board, 13 of which accused police officers on horses of using excessive force. The CCRB only substantiated complaints against two officers, but nearly half the cases were closed because the board couldn't identify the officer involved-in part because the NYPD withheld some of the videotapes it had shot of the event. Later, Kelly began putting identification numbers on horses so civilians could pinpoint which mounted officers had crossed the line. The commissioner, however, declined to punish one of the
CITY LIMITS INVESTIGATES
"Such damage would probably require the closing of the entire lawn for a significant period of time." The activists were stunned. "We were just incredulous. We left those meetings scratching our heads," says UFPJ's national coordinator, Leslie Cagan. "Did they really say it was about the grass? Did they really spend millions on fixing the grass and not think about large events?" The city offered alternatives to ANSWER Flushing Meadows-Corona Park in Queens, Van Cortlandt Park in the Bronx, the East Meadow in Central Park. These seemed a little too far from the action, or they were too small, so ANSWER refused. UFP] asked for the North Meadow in the park, but the city said that wasn't a "suitable alternative."
But City Hall told the protest groups to "stop the theatrics." The problem, the city said, was that a political demonstration couldn't be ticketed, so there was no way to control the numbers. What's more, a rally couldn't be canceled in the event of rain, leading to severe damage to the lawn-like the $140,000 repair job that the Dave Matthews Band left behind in 2003. Federal and state judges accepted the city's arguments and scolded the protest groups for waiting too long to sue. Later on, it emerged that the city had given inaccurate information to the judges. Some Great Lawn shows had gone forward despite wet conditions. And the city's claim that most Great Lawn events were now ticketed was "contradicted by the evidence," the judge wrote. He
EVEN THE NEW YORK POST THOUGHT THE CITY HAD TILTED THE BALANCE BETWEEN FIRST AMENDMENT RIGHTS AND THE HEALTH OF THE GRASS ALITTLE TOO FAR IN THE TURF'S FAVOR.
The NYPD offered UFP] the West Side Highway instead; the group accepted then reneged when it learned that staging the event there would cost hundreds of thousands of dollars more, and UFP] was unsure whether the city would provide water and bathrooms. So just days before the convention, the protest groups sued separately, claiming the parks department had denied their permits because of their political messages-not what they'd do to the grass. Even the New York Post thought the city had tilted the balance between First Amendment rights and the health of the grass a little too far in the turf's favor. "Sure-it is a great lawn. But it happens to belong to the people of New York City," the newspaper wrote. "And if the lawn is harshly used, the solution seems clear enough: Plant a new lawn. Grass seed is cheap." added: 'There is evidence tending to show that rallies are categorically disfavored by [the city] .... There is evidence that permits were granted to preferred speakers based in part on the speaker's financial contribution." He cited a preRNC e-mail from Parks Commissioner Adrian Benepe that read, "We are gratified that [Bloomberg] supported the idea of not having rallies on the lawn in Central Park." As it turned out, a few dozen protesters did make their way from the August 29 UFP] march to the Great Lawn. Police stood aside and watched as the demonstrators attempted to sit in the shape of a peace sign. Not every encounter between law enforcement and RNC protesters went so smoothly.
ideotapes of the march on the second day of the convention (Tues-
day, August 31) by the War Resisters League-one of the nation's oldest pacifist groups-from ground zero begin with a tall, white-shirted police commander, Deputy Chief Thomas Galati, speaking into a bullhorn. "If you do not follow the laws and regulations of New York State you will be subject to arrest. Please follow all traffic rules and march safely. I'll see you at Penn Station," he said. 'Try to make your way over to the sidewalk so traffic can get through. Thank you." The crowd began moving, being waved across Church Street by police. Some, but not all, of the marchers were planning to stage a die-in in Midtown, in which they would submit to arrest in acts of civil disobedience. It was not a permitted march-the WRI;s philosophy is that the police do not have a veto on Americans' right to assemble peacefully-but as often happens, the organizers had struck a deal with the police to let the march go forward. The crowd bunched up as it moved along the sidewalk on Fulton Street; up ahead, the procession thinned out-it barely looked like a march, according to some. A few minutes later, another police commander, Deputy Chief Terence Monahan, approached the throng as it moved slowly along that first congested block of Fulton. He shouted that people weren't staying two abreast as organizers had agreed they would. "You are blocking the sidewalk. If you don't disperse, you'll be arrested," Monahan bellowed. Fifty seconds later, Monahan barked at the officers under his command. "Line it up! Line it up! Everyone from here on down is arrested." Since he was operating without a bullhorn, some protesters didn't hear Monahan. Even the cops looked confused. Some officers on Church Street kept waving protesters across the street, further bulging the crowd that had been blockaded by other officers standing at the front near Monahan. Protesters asked why they were being arrested. 'The entire sidewalk was blocked," an officer said. "Warnings were given."
CITY LIMITS INVESTIGATES
The New York Police Department's monitoring of political activity dates at least to the early 20th century, when it launched an Anarchist Squad to target activists who held unwelcome opinions. Later, the infiltration of activist groups became the work of the Bomb Squad, then the Radical Bureau and then the Bureau of Special Services, or BOSS. By the end of the 1960s, according to author Frank Donner, the BOSS list of activists' names contained more than a million names. In 1971, 16 activists sued the bureau and the police department over an alleged campaign by BOSS to infiltrate and disrupt legal protest groups. The first plaintiff was an activist lawyer named Barbara Handschu. She was joined by people like pacifist Ralph DiGia, Black Panther Alex McKeiver and Yippies founder Abbie Hoffman. In 1985, the NYPD settled the suit by accepting restrictions on police investigations of political groups. Only the Intelligence Division could pursue such investigations, and only when there was specific information that a crime was being committed or planned. While the Intelligence Division could launch a 30-day investigation on its own, any longer-running probe required the approval of a three-person panel that included a civilian mayoral appointee and two police officials. The NYPD moved in 2002 to loosen those rules, saying that they tied the department's hands in the fight against terrorism. In early 2003, federal judge Charles Haight of the Southern District of New York approved much of the NYPD's request, widening the scope of political activity that cops could investigate and eliminating most oversight. New guidelines were put in place. Since then, the city and the lawyers representing the Handschu plaintiffs have wrestled over the meaning of Haight's earlier decisions and whether police videotaping violates his orders. -1M
A surreal scene then unfolded. Monahan pressed a man who tried to leave back into the crowd. Press photographers were barred briefly from leaving the arrest zone. Bike cops stood with their cycles in front of them, forming a barrier to trap the 2()(H)r-so protesters. Legal observers shouted instructions from across the street A bare-breasted woman incongruously talked logistics over her cell phone: "I could be late for work right now." Several police officers with camcorders began slowly tracking around the block, filming those caught. In the confusion, pedestrians and other marchers wandered into the arrest zone. Galati had to tell the cops at the perimeter, "I don't want anyone caught in the middle of this who wasn't here in the first place." Then the bike cops gave way to officers rolling orange construction netting around the block to trap the people inside. Everyone within the net was arrested, 227 people. A similar scene played out on at least two other occasions that day. One group of protesters was nabbed in orange netting at the New York Public Library. And along East 16th Street near Union Square, police netted off both ends of the street and arrested everyone who was there, including passersby and protesters who, even though that march was also unpermitted, may have been legally walking on the sidewalk. Those nabbed in the nets were flexcuffed and put on buses; some waited on buses for hours, and on at least one bus a woman started vomiting. Eventually the buses delivered the detainees to Pier 57, a former bus depot, where they were put into pens. Some pens were too crowded to allow everyone to lie or sit down at once, so they took turns. Pier 57's environmental soundness as a holding cell for hundreds of people later came into question. So did the decision to hold them at all, as opposed to issuing summonses or desk appearance tickets, as was the usual practice during previous protests. Under a special RNC policy, the NYPD said everyone had to be detained, fingerprinted
and arraigned. Some weren't arraigned for 40 hours or more. By the time the convention was finished, a state judge held the city in contempt for defying his order to release protesters it still had locked up. Of the 1,806 people arrested at protests during the Republican National Convention, 22 pleaded guilty to misdemeanors like obstructing governmental operations. Twenty-one were convicted at trial of violations and 135 pleaded guilty to violations like disorderly conduct Thirtyfive went to trial and were acquitted; 34 people were supposed to go to trial but never showed up. Judges dismissed 463 cases at the outset, and prosecutors declined to press charges against four people. The rest-1,092 of them-received "adjournments in contemplation of dismissal" meaning the case effectively vanished as long as they didn't get arrested again in the next six months. A few of these arrests were a result of civil disobedience-people submitting to arrest as a form of protest. But many of the protesters who were hauled in did not intend to get arrested, at least not while merely walking up a street. Dozens of those arrested sued the city, arguing that the NYPD nabbed people-including people who weren't protesting-improperly and held them in dismal conditions on Pier 57 for too long. The length of detentions prevented some of the protesters from returning to the streets during the convention. The city has defended its approach to the RNC by citing the threat of terrorism or violent demonstrators. But the NYPD has been reluctant to produce evidence of why it expected violent protestersespecially why it expected them to be lurking in the ranks of pacifist groups like the War Resisters League. In May 2007, on the order of the judge overseeing most of the post-RNC lawsuits, the NYPD released summaries of information collected by its preRNC intelligence operation. These documents show that the police developed detailed intelligence on not only the tactics of violent groups-who favored actions like throwing nuts and bolts at
36 SUMMER 2008
CITY LIMITS INVESTIGATES
police officers-but also the beliefs and operations of mainstream, apparently peaceful organizations. It is clear from those documents that the police were doing more than reading web sites; undercover sources whose names are blacked out provide inside information about, for instance, how many people had signed up for a train that UFPJ was sponsoring to the RNC. For months, the arrestees' lawyers and the city have been fighting about whether the NYPD must now release its raw intelligence reports on protesters. For much of last year, the NYPD pressed to have its intelligence chief, David Cohen, submit testimony that only the judge could see to explain why the NYPD should not have to produce those documents. The judge has rejected that idea. The NYPD also refused to allow the NYCLU to hand over documents to the FBI for the bureau's investigation of possible civil rights violations at the RNC. Meanwhile, the city has argued that environmental reports on Pier 57 should be withheld because they might contain diagrams that terrorists could use to attack the pier, and it has resisted releasing internal reports on the RNC because they "contain unguarded assessments and criticism by senior NYPD personnel that will cause embarrassment and mislead the public if publicized." For its part, the city has sought the War Resisters League's meeting minutes and mailing lists. Some key NYPD personnel have yet to complete their depositions in those cases. One lawyer associated with the lawsuits says he does not expect a resolution until at least 2010. The city has so far paid out $1.5 million to settle RNC claims.
Police officers at a Critical Mass ride in May. Veteran demonstrators say New York City protests are distinguished by the sheer number of police who monitor the events. Photo: Aaron McElroy
hose lawsuits weren't the only outgrowth of the way the NYPD policed RNC protests. So was the later series of battles between police and Critical Mass-pro-biking gatherings that have occurred in some 300 cities around the world and take place once a month around Union Square. After occurring without incident for years,
an unusually large Critical Mass ride right before the RNC ended with 300 arrests. Over the next two years, hundreds more people were arrested or given summonses at the rides, which attracted a heavy police response: cops on scooters, officers wielding video cameras and undercovers among the bikers. The city even tried to get a court to stop the rides. When that effort failed, Kelly moved to change the legal framework under which he could arrest people assembling in the street by imposing new rules on parades in the city. His first proposal-to require permits for some processions of as few as two people, but generally for any procession of 20 or more bikes or 35 or more pedestrians-was quickly withdrawn. His second try, pegged to 30 cyclists or pedestrians, triggered a lot of opposition too. Finally, Kelly decided last year on a straight 50-person rule. Anything bigger than that required a permit, or else participants could be arrested for "parading without a permit," which carries a jail sentence of "not more than 10 days." Kelly did not need or seek City Council approval to alter the rules. But Speaker Christine Quinn supported the change.
A coalition called Assemble for Rights NYC began negotiating with sympathetic City CouncilmembersGail Brewer, Alan Gerson and Rosie Mendez-to change the rule. The three recently introduced a bill that would allow groups of up to 100 to gather without a permit, decriminalize parading without a permit and require the NYPD to provide a series of warnings before dispersing a crowd. The problem with Kelly's rule, Mendez says, is that "it was so sweeping that everyone got caught up in this regulation. It was so broad that it caught everyone." She says the police don't appear to be enforcing Kelly's new parade rules at this time. But they can start to enforce it anytime they like. State and federal courts are weighing whether the parade rules are unconstitutional. At Critical Mass rides nowadays, "the police are a lot less visible. Every year they become less visible. They seem to be assembling further away," says Bill DiPaolo, founder of Times Up!, an organization that supports the Critical Mass rides. 'They're still there. They're just a lot less obvious." But DiPaolo blames the reduced popularity of the rides-they draw about 100
CITY LIMITS INVESTIGATES
bikers now compared to nearly 1,000 at their peak-on the NYPD's enforcement at early rallies. It's fair to ask why protest groups wouldn't simply get a parade permit The answer differs depending on the organization involved. The whole point of Critical Mass is that it has no leadership or organization to seek a permit
people, if you're a noncitizen, you're not going to come. If you're black or Hispanic, do you still come?" he asks. "How many people with children can afford to spend three days at Gitmo on the Hudson? It tremendously limited protest and civil disobedience." Since the RNC, protest leaders say police have been more accommodat-
BLOOMBERG HAS DEFENDED HIS RECORD ON FREE EXPRESSION AND THE NYPD'S TACTICS AT THE RNC. HE'S EVEN EXPRESSED ARESPECT FOR PROTEST.
(which requires stating the "character of organization [social, political)" and answering the important question "Will rifles or shotguns be carried?"). Other groups are opposed to the idea that any part of government, particularly armed police, can limit or delay what the First Amendment allows. Getting a permit is cumbersome if the protest is a spontaneous reaction to some event. Then there's a practical side. Police can veto a march route much more easily beforehand than when an organization has hundreds or thousands of people on the streets, ready to go. Several groups say they've met with resistance from the NYPD in getting permits. rotesters and their supporters are split on the impact of the NYPD's approach to protest. UFPJ's Cagan says the fight over the Great Lawn brought more publicity to the RNC protest than it might have otherwise received, but also prevented anti-war protesters from hearing the speeches that provide a coherent message to a large gathering. Some see an impact beyond the RNC. "The mass arrests, the delays in processing those arrested, these all dissuade people from expressing themselves," says Michael Ratner, president of the Center for Constitutional Rights. "After they throw a net over
38 SUMMER 2008
ing to demonstrations. NYPD commanders played it cool in December 2006 when they de-escalated a potential confrontation and allowed a crowd protesting the police killing of Sean Bell to hold a quick march near City Hall without a permit. At an antiwar protest in March 2007, the police commander on site was so chummy, he led the marchers in their chants. Chief: "What do we want?" Marchers: "Peace!" Chief: "And when do we want it?" Marchers: "Now!" The city in January settled the Great Lawn suit, allowing a panel of grass experts to review the policy on events there. In a separate settlement, the city has promised to change policy on the use of pens and horses at protests. But the NYCLU's Christopher Dunn says he doesn't see a sea change in the city's approach to demonstrations. 'We see the city fighting tooth and nail on the RNC cases," he says. loomberg has defended his record on free expression and the NYPD's tactics at the RNC. He's even expressed a respect for demonstrators. "I think it's wonderful that they protest," he said of a recent anti-war demonstration. "I don't necessarily agree with them, but it would be a shame to have this freedom to express yourself and to try to influence
government and then to be too lazy to use it." Last year, in a boost to free expression, Bloomberg pulled back from rule changes that might have required permits and insurance coverage for virtually all photography and film on the city's streets. But overall, civil libertarians don't believe Bloomberg's performance has matched his rhetoric. "Bloomberg is not like Giuliani-a nasty person around First Amendment rights," Ratner says. "But you look at demonstration issues from the RNC to the WEF to the Iraq demonstration cases. These are terrible. I think we have crippled the First Amendment in this city. I am surprised by that." And the worries go beyond policing: Some activists are concerned that the parks department's plan to revamp the north end of Union Square will eliminate a traditional meeting place for the city's protesters. If the city has cast a suspicious eye at protest since September 11, so has the federal government. The Pentagon's TALON database tracked political events like a November 17, 2004 demonstration in New York City that was described as a "possible threat to Air Force recruiting station." Another, for February 3, 2005, was tagged "possible violent demonstration at NYU." Separately, the ACLU has obtained thousands of pages of FBI files on Greenpeace and the ACLU itself. Inside the 2004 convention itself, federal agents took the lead in protecting the Madison Square Garden crowd and, it seemed, the GOP message. Secret Service men spot-checked people in the crowd, looking for anti-Bush signs intended to be unfurled during prime-time TV coverage. In one incident during the convention, two federal agents accompanied by two men wearing Bush/Cheney T-Shirts confronted a young man standing alone on a street corner outside the convention security zone. He held a poster of the hooded Abu Ghraib figure that read "Got torture?" The agents asked for his identification. He refused to provide it. When a reporter took notice of the scene, an
CITY LIMITS INVESTIGATES
MTA COp ordered him to move along. The guy with the poster got moved too. His protest was over.
Since the 1980s, workplace monitoring has grown in popularity because of the decreasing cost and widespread availability of tracking technology. A 2005 survey by the American Management Association and The ePolicy Institute found that keystroke monitoring was used by 36 percent of companies queried. Fifty-five percent of companies perused employee e-mail messages and 76 percent tracked websites visited by employees. But the monitoring of employees goes beyond what they do at their desk. Global positioning systems (GPS) , radio frequency identification (RFID) chips and biometric identifiers such as palm, fingerprint and iris scanners are increasingly used for security and timekeeping at the workplace. Their popularity has surged in the post-September 11 era, driven by security concerns and society's deepening relationship with technology. Some workers feel this technology has soured the workplace atmosphere and given employers unprecedented access to their personal lives. "Workplace surveillance has become standard operating procedure today," Lewis Maltby, president of the National Workrights Institute, says. "You ought to be more concerned about your boss than the National Security Agency." In New York City, on-the-job monitoring is increasingly practiced by private and, especially, public employers. The largest New York City workplace-monitoring initiative is CityTime, an overhaul of the payroll system for 160,000 municipal employees from 80 agencies. Launched in 1998 by the Office of Payroll Administration (OPA) with an initial price tag of $68 million, CityTime was intended to streamline timekeeping via digitization: Workers fill out their timesheets electronically,
Biomet ric scanners, in use at an increasing number of workplaces, match computer records to the geometry of a user's hand. Photo: Alan Saly
clocking in and out with a biometric hand-geometry reader that prevents "buddy punching"-when a worker punches in for an absent colleague. The biometric readers use laser imaging to generate a three-dimensional profile of a hand, which is used to clock in. A private audit conducted for OPA in 2002 claims CityTime will generate $60 million in annual savings by reducing "hard" (paper and transportation of documents) and "soft" (staffing and time) costs. A decade later, the project's price tag has risen to half a billion dollars under the guidance of Science Applications International Corp., a major San Diegobased contractor that has handled billions in Pentagon business but whose track record includes cost overruns and allegations of substandard workmanship. More than 13,000 workers at 18 city agencies currently use the system. Many are vehemently opposed to CityTime, citing an inflexible time clock that rounds up by a quarter of an hour, unnecessary busywork for supervisors and-particularly-the use of hand-geometry scanners for employee identification.
CityTime "goes way beyond the pale in terms of any acceptable kind of surveillance," says Jon Forster, first vice president of Local 375, the branch of municipal union DC 37 that represents technical workers. ''What the administration doesn't get is that their implementation of surveillance technologies is incredibly demoralizing. People are enraged. They feel like they're not being trusted." While the Bloomberg administration is hunting for budget cuts amid shrinking tax revenues, OPA Executive Director Joel Bondy told a City Council hearing in May that his agency has not considered imposing a cap on the cost of SAlC's CityTime contract, which could run through 2021. There are questions about that contract that go beyond cost. While OPA insists that the CityTime contract was awarded competitively, it appears that SAlC got the CityTime account in 2002 when SAlC acquired Paradigm4, a spin-off from the original CityTime contractor, Systemhouse. Meanwhile, Bondy worked from 2002 to 2004 as a subcontractor for Spherion, a Florida
CITY LIMITS INVESTIGATES
firm that OPA is paying $60 million to monitor SAle's work on CityTime. Bondy denies any conflict. Some City Councilmembers are considering asking for a moratorium on work by or payments to SAlC. lsewhere in the city, public university employees are also subject to monitoring. The City University of New York's John Jay College of Criminal Justice adopted biometric timekeeping for white- and blue-collar employees in early 2007. Unlike CityTime, John Jay's ADI Bios Scan II finger-recognition system uses fingerprint data to identify individual employees. According to a February 2007 internal memo, John Jay's new system will guard against buddy punching and tampering with college records. Elsewhere in the CUNY system, staff members are rebelling against a new computer policy that would permit university officials to monitor online course discussions and email conversations between professors and students without getting the parties' consent. The Professional Staff Congress (PSC) , which represents more than 20,000 CUNY faculty and staff members, has filed a grievance against the public university system over the policy. CUNY officials say the new policy will protect internal security and guard against systemwide network failures, while the PSC says it impinges on confidential research and violates a contract provision that allows faculty 24 hours' notice before a class visit by management. Biometric scanners and e-mail monitoring are only two of a set of technologies whose use has expanded in recent years. As far back as 1999, nurses at the Wyckoff Heights Medical Center in Ridgewood jousted with management over the use of identification badges embedded with radio frequency identification chips (RFID) . Though hospital officials justified RFID as a simple way to locate staff members, the nurses' union viewed such technology as an invasion of privacy and an attempt by
management to track workers' every move. Though the New York State Nurses Association filed a grievance against the hospital over RFID use, claiming it was an unjustified form of surveillance and violated their contract, an arbitrator ruled that the technology did not violate the terms of the nurses' contract. NoN ew York City hospital is known to have contemplated such technology for patients. But RFID chips were included as a possible data collection device in
Workers Alliance led a two-day drivers' strike in opposition to the Taxi and Limousine Commission's plan to equip yellow cabs with credit-card readers and video displays fitted with GPS. Some drivers viewed the GPS as an unnecessary and invasive tracking scheme and took umbrage at the 5 percent surcharge for credit-card payments. New York is one of many states that have no laws regulating biometric screening. Local 375, the city technical workers' union, has proposed legislation
MANY PEOPLE WOULD HAVE NO ARGUMENT WITH ATECHNOLOGY AIMED AT CATCHING CHEATING CITY WORKERS. CITY EMPLOYEES, HOWEVER, COUNTER THAT THERE ARE LESS-INTRUSIVE WAYS TO KEEP THEM HONEST.
the original contract for CityTime. According to recent City Council testimony by union members, the NYPD has begun issuing employee identification cards with RFID chips, although they have not yet been activated. GPS, originally developed by the U.S. military, is an even more accurate method of tracking location than RFID and is also proliferating in New York City. City agencies have GPS technology installed in workers' city-issued cell phones, and in the past have used this capability to check up on workers. In 2007, a carpenter working for the Department of Education was fired when a GPS chip in his city-issued cell phone revealed he had been falsifying time cards. Many people would have no argument with a technology aimed at catching cheating city workers. City employees, however, counter that there are less-intrusive ways to keep them honest. Meanwhile, GPS is also being forced upon nonpublic employees-to reduce paperwork rather than catch shirking workers. In October, the Taxi that would bar private and public employers from requiring the use of biometrics, tracking or any other "invasive technology" as a condition of employment, with exceptions for public safety.
On the Street
The horse was named Ruthless. With jockey Gilbert Patrick on its back, it rounded the course in three minutes five seconds to win the very first Belmont Stakes in 1867-back when the race took place on a spot of ground in the North Bronx called the Jerome Park Racetrack. Twenty-three years later, the track closed because the city needed Jerome Park for a reservoir. Now there's a notion to bring racing-or at least jogging, and perhaps some walking-back to the site. The city is improving all the parks in the area, and some neighborhood activists want a track around the water's edge. But the Department of Environmental
CITY LIMITS INVESTIGATES
The area around One Police Plaza has been transformed by blocked streets, guard booths and barricades. Photo: Aaron McElroy
Protection is blocking their plan, citing post-September 11 security reasons. There is, of course, no constitutional right to run around a reservoir. Nor is there one for taking pictures of bridges, driving down a street, bringing a bag into a baseball stadium or wheeling your baby stroller along a sidewalk without having to bob and weave around fortifications designed to stop kamikaze truck bombers. But these are some of a long list of mundane things that, before September 11th, New Yorkers used to do, or might have done more freely. The fear of terrorists permeates places and conversations where it was once barely present, if at all, In 2007, the city's Department of Correction cited "imminent security threats" in winning rule changes that allow it to listen to prisoners' phone calls, read
inmates' mail and censor publications. Not just bags, but also knitting needles, are verboten at Yankee Stadium. The NYPD is pushing to require a permit for the use of air-quality-testing equipment, which became popular after the 2001 attacks, ostensibly because the machines could trigger false alarms. Opponents of the Atlantic Yards development in Brooklyn trumpeted terrorism fears as one argument against building a major sports arena there. Worries about a biology lab that might handle dangerous substances-and therefore prove a juicy target for AI Qaeda-were one talking point for foes of Columbia's planned West Harlem expansion. When the Department of Education wanted to ban cell phones in schools, parents rebelled, citing the need for families to be in touch if another September 11 befell the city. In
December, a City Limits photographer tried to take a picture of the outside of a public high school; a school safety officer stopped him. "No," he said. "Not since 9-11," ometimes these fears drive public policies that reshape the city's streetscape, or what we can do in it. Almost immediately after September 11, the city's Office of Emergency Management and the NYPD asked the state department of transportation to close the East 15th Street exit off the southbound FDR Drive, which runs near a Con Edison plant. Now the agencies are discussing a permanent closure of the exit. The police department vetoed the first design for the Freedom Tower; the revised version features blast-resistant metal sheeting around a lobby that was
CITY LIMITS INVESTIGATES
once supposed to be glass. Pre-September 11, the NYPD did not publicly weigh in on the design of buildings. "Up until six years ago, I didn't have any interest in glazing, fenestration and things of that nature," NYPD lieutenant Patrick Devlin told the Protective Glazing Council Annual Symposium last November, according to Glass maga-
If every building owner took Sheehan's advice, it would be bad news for the private security industry. But the past few years have been anything but bad for the people who sell protection. At a May convention at the Javits Center, firms offered everything from "covert surveillance" to blast curtains meant to stop the flying glass that kills
the world situation now, that to have public access to the reservoir would be problematic since the water coming out of that reservoir goes to people very quickly," Faulkner says. "People say that other reservoirs have [public] access upstate. DEP's response is those reservoirs don't enter the system as quickly, so if you had a problem, you
SOMETIMES, IT'S THE PUBLIC-NOT THE POlICETHAT PUSHES FOR MORE SECURITY.
zine. "After September 11, I wanted to learn about this. In February 2002, we didn't have a counterterrorism bureau. Today, I have 16 investigators dedicated to infrastructure, two of whom are structural engineers." There's no arguing with some of what the city has done, like revising the city's building and fire code to expand the number of buildings with sprinklers and improve building evacuation procedures and. Other steps haven't been universally accepted. Chinatown business owners and residents have jostled with the police department since September 11 about the blockading of Park Row, the closure of a municipal parking garage and a park near One Police Plaza, and extensive police parking in the neighborhood. Neighborhood activists have won some concessions through court action but claim that more than 30 businesses have been forced to shut down because of the street closures. "It's changed the neighborhood, the economy, quality of life," says Jeanie Chin of the Civic Center Residents Coalition. Sometimes, however, it's the publicnot the police-that pushes for more security. In a 2007 interview, Michael Sheehan told the trade website Buildings.com that while he was the NYPD's counterterrorism chief from 2003 to 2006, he told most building owners not to worry. 'They didn't need more security. I rejected proposals for surrounding most buildings with Jersey barriers. More often than not, I recall telling some owners to just chill out," he says.
most bomb victims. Customers could buy truck barriers that will work at 30 miles per hour, or upgrade to the 50-mph version. Also on offer were metal mesh for layering the insides of walls-lest someone sledgehammer through the exterior-and a scanner that identifies employees by mapping the veins in their hands. Give the security industry credit for one thing: It has a good read on what people fear. Publicity material for the security consultancy Aggleton & Associates asks particularly pertinent questions: "What does the threat level mean to my firm and my facility? How much security is appropriate to the real threat? What do I do as the threat level changes?" "Will we ever go back to normal? What is 'normal' today?" reg Faulkner, who oversees a committee of community leaders charged with monitoring the new Croton-water filtration plant that will link to the Jerome Park Reservoir, sits in the middle of the fight over the running track. Building the filtration plant in Van Cortlandt Park was controversial, so the Bronx is getting $243 million to improve parks; $2.8 million of it is set aside to create a path around the reservoir. The question is whether that path will be inside either of the DEP's two rings of security fences around the water, or on the outside looking in. "DEP is saying it's a security concern based on September 11 and, based on
could divert it." The DEP has not described a specific scenario for what could happen if the track were built too close. "DEP's policy on a track atJerome Park Reservoir came about after consultation with officials at all levels of government, including the Department of Homeland Security, the FBI, EPA, the NYS Department of Health and NYPD," says DEP spokesman Michael Saucier. "All were uniform in their concern over public access to such a critical aspect of the drinking water system." The EPA recently announced it was granting $12 million to New York City to protect its water system. Park activists note that since the reservoir contains up to 773 million gallons of water, a terrorist would have to dump a few freight cars' worth of poison into the water to actually harm anyone. But when it comes to fears of terrorism, the actual risk factor doesn't matter, says Faulkner, who says he's neutral in the dispute. "If you're talking about any kind of terrorist threat, it's not that something causes damage, it's the threat," he says. Even a rumor about the reservoir being poisoned could be destructive, he argues. "Can you imagine the panic that would set off in the community-even if, in fact, there would be very little threat?"
First seen on the U.S-Mexican border, the NYPD now deploys Sky Watch towers as part of its crime-fighting efforts. Photo: Ali Winston
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.