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NYPD spying power widens

Investigative limits are lifted

February 12, 2003

Citing security concerns since the Sept. 11 terrorist attacks, a federal judge yesterday eliminated virtually all the restrictions of the Police Department's Handschu commission, a body that limited the department in conducting investigations into lawful political activity.

In his 39-page decision, Senior District Court Judge Charles Haight agreed with the Police Department that the Handschu guidelines, established in 1985, "limit the effective investigation of terrorism."

Haight based his decision largely on the testimony of Deputy Commissioner of Intelligence David Cohen, a former CIA official who joined the department last year.

"There is no disputing Deputy Commissioner Cohen's assertion that since the formulation of the Handschu Guidelines in 1985, '[T]he world has undergone remarkable changes, not only in terms of new threats we face but also in the ways we communicate and the technology we now use and are [sic] used by those who seek to harm us,'" Haight wrote.

It was the second straight day that a federal judge ruled on the side of public security over personal liberties. On Monday, U.S. District Judge Barbara Jones denied a bid to allow demonstrators to parade past the United Nations while protesting the impending war against Iraq, saying the city's need to protect the public in this "time of heightened security" overrides the right of demonstrators.

Haight's ruling expands the Police Department's investigatory powers, allowing all branches to investigate suspicious political activity. Under the Handschu guidelines, such investigations were limited to one unit, the Public Security Section.

Cohen had argued that "the entire resources of the NYPD must be available to conduct investigations into political activity and intelligence related issues."

In addition, Haight's ruling modifies departmental constraints that there must be a "criminal predicate" - the suspicion of unlawful activity - to justify political surveillance or infiltration. The department will now be bound by FBI guidelines, Haight ruled, which are less restrictive.

Cohen had argued that a criminal predicate was irrelevant as terrorists acted within the law until the terrorist act itself.

In his ruling, Haight wrote that "no basis is discernible for doubting Deputy Commissioner Cohen's testimony that 'the guidelines prevent the NYPD from investigating seemingly neutral leads which may provide links to planned actions.'"

Some such leads may even come from infiltrating places of worship. Cohen had pointed out that the seeds of terrorism were often suspected of being sown in Muslim mosques. In his ruling, Haight noted that "the convicted architect of the 1993 World Trade Center bombing was the imam of a mosque."

"It is a sad reality that such use was made of a place of worship dedicated to Islam, one of the world's great religions, but a reality nonetheless," he wrote. "The significant fact is that as the 1993 World Trade Center bombing and its surrounding circumstances demonstrate, terrorists can and do use political, religious and social organizations to plan and promote acts of terror."

Franklin Siegel, an attorney who argued for keeping the guidelines, said of Haight's decision, "Our children will wonder how Congress and public officials could so quickly dispose of fundamental protections."

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© 2003 Newsday, Inc. Reprinted with permission.