An unsettling decision
Buying hook, line and sinker myths promoted by the police department’s inspector general, a federal judge has just taken the extraordinary step of rejecting a settlement between Muslim-American plaintiffs and the NYPD over “spying” that never was. In a vast overreach, Judge Charles Haight asks the department to accept the equivalent of a new, full-time, independent, court-ordered monitor, charged with needling his or her way into some of the most secret and sensitive work the department does and issuing regular reports on their compliance with guidelines for overseeing police investigations of political activities.
This even though — understanding that the case against the NYPD was weak — both police and plaintiffs had agreed, after exhaustive negotiations, to far less intrusive oversight.
In 1971, the NYPD came under a set of rules for intelligence-gathering, called the Handschu Guidelines, resulting from a class-action lawsuit over investigations that encroached upon Vietnam War political protests.
The rules enable the department to conduct six-month, renewable initial inquiries where there is a “possibility” of unlawful activity, and one-year, renewable inquiries when evidence “reasonably” indicates “that an unlawful act has been, is being, or will be committed.”
The NYPD’s intelligence division is required to document its plans, including the use of undercover officers, and to submit more paperwork as time limits run out. All of which it does. It has become urban legend that, in the wake of the 9/11 attacks, the department engaged in widespread surveillance of Muslim communities.
In fact, investigators — complying with rules adjusted by the very same Judge Haight — pursued legitimate leads, and conducted broad information-gathering to give counterterror cops a necessary sense of where various communities of national origin clustered.
Nevertheless, in response to complaints and after more than a year of negotiations with plaintiffs who believed their rights to have been violated, the NYPD agreed to appoint a civilian lawyer to monitor all counterterrorism activities — and flag any questionable activities with the court. Everyone was happy with the outcome. Now, boggling the mind, back comes Haight, insisting, “The proposed role and power of the civilian representative do not furnish sufficient protection from potential violations of the constitutional rights” of Muslim New Yorkers.
His pronouncement came not from the piles upon piles of evidence submitted over the course of negotiations — but from a haphazard and dishonest analysis contained in an August report issued by NYPD Inspector General Philip Eure.
Eure combed through the Handschu process and found overwhelming compliance with the court-imposed guidelines — while dinging the NYPD for missing deadlines for extending preliminary probes in 54% of cases.
He obsessed over those deadlines, even though the length of the average lapse before detectives got permission to keep investigating was 22 days, or less than the time between regular monthly meetings of the committee ensuring compliance with Handschu.
And Eure failed to identify a single case in which an investigation continued beyond a deadline without sufficient cause.
Yet it was this fundamentally unfair report that Haight relied upon in his ruling, seeing in it evidence of “a near-systemic failure” to comply with Handschu and a department “accustomed to disregarding” court orders.
And so, a judge with a long history of crafting and adjusting sensitive regulations for pursuing legitimate criminal leads without infringing on constitutional rights of expression and association now, for no good reason, seeks to upend a carefully brokered agreement.
Another day in the life of authorities micromanaging the nation’s largest and finest police department. There ought to be a law.