Court: NYPD can surveil in secret
The NYPD can legally dodge questions about its counterterror efforts by refusing to “confirm or deny” pending investigations, the state’s highest court ruled Thursday.
In a split decision, the New York Court of Appeals said the department “must be permitted” to keep secrets about who it has under surveillance “in order to avoid ‘tipping its hand’ ” about sensitive terror probes.
“The NYPD’s role in preventing the next attack is dependent on its ability to collect information without publicizing its methods or sources to anyone who can use the information to counter its efforts, an assertion consistent with the basic realities of intelligence work,” Chief Judge Janet DiFiore wrote for the majority.
The ruling specifically allows cops to “provide a Glomar-type response” — in which a government agency says it “can neither confirm nor deny” the existence of something — to Freedom of Information Law requests about terrorism probes.
The secrecy tactic first was employed by the CIA during the 1970s in connection with the Glomar Explorer, a ship built by Howard Hughes for the CIA to retrieve a sunken Soviet submarine.
CIA lawyers successfully convinced the courts that revealing information about the ship could imperil national security.
Thursday’s ruling stemmed from a suit filed by two Muslim New Yorkers — Talib AbdurRashid and Samir Hashmi — who in 2012 sought the NYPD’s files on them, following an Associated Press report that they were subjects of an anti-terror surveillance program.
The department rejected the re- quest, saying any information it had was exempt from disclosure on public-safety grounds.
“NYPD intelligence strategies are monitored by individuals and organizations with the goal of developing counterintelligence measures,” Chief of Intelligence Thomas Galati said in an affidavit.
Omar T. Mohammedi, attorney for Rashid and Hashmi, said he’s “disappointed with decision,” and believes the Legislature, not the courts, should take up the issue.
Chris Dunn, of the New York Civil Liberties Union, filed a supporting brief in the case. He fears that the ruling “opens the door to the NYPD and other police agencies vastly expanding the secrecy that already conceals too much of what they do.”
Dunn is pursuing a separate, pending case where the NYPD has invoked Glomar to block the release of documents related to the surveillance of protestors.
An NYPD spokeswoman said the department “has rarely used the legal Glomar doctrine.”