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The Cohen Declaration: Secrecy, Secrecy

March 3, 2008

It is called the “Cohen Declaration” of August 27, 2007.

It’s the most bizarre legal attempt yet by our friend, the NYPD Deputy Commissioner for Intelligence David Cohen, to cover up the NYPD’s spying on protest groups before the 2004 Republican National Convention.

This time, Cohen, a former top CIA operative who joined the NYPD in 2002, is trying to resubmit a secret affidavit arguing, yet again, why the police department should not have to turn over redacted copies of its undercover spying reports, which a federal magistrate has already ruled must be turned over.

But here’s the twist. Not only does Cohen want to keep secret those undercover reports, known as DD5s, but he wants to keep secret his reasons for keeping those reports secret.

The New York Civil Liberties Union filed suit against the police department after the mass arrests of nearly 2,000 protestors at the RNC, virtually all of whose cases were dismissed. The NYPD has contended the arrests were justified by intelligence they gathered prior to the RNC, which indicated the likelihood of disruptive and illegal activity.

It is those reports, created by the NYPD undercovers who attended meetings of protest groups before the convention, that Federal Magistrate James C. Francis IV ordered the NYPD to produce — with the names of sources and police techniques redacted.

The NYPD appealed. To support their appeal, they sought to use Cohen’s Declaration, dated last August 27, explaining why even redacted DD5s should not be released. Cohen felt his explanations were so sensitive that whole sections of that document, which were filed in federal court, were redacted. Magistrate Francis was given the full monty, but the attorneys for NYCLU and the public saw only the redacted version.

Last December, Cohen wrote another declaration, explaining why he had to file his August declaration secretly. I couldn’t begin to explain his reasoning, And to my mind, neither could he.

“I prepared the Aug. 27 Declaration,” he wrote, “to demonstrate how the specific strands of information ordered disclosed by the court [i] could reveal the identities or sources of information, including undercovers and confidential informants; [ii] disclose methods of operation; and [iii] be used as a means to undermine NYPD law enforcement operations.

“In order to make that showing, it was necessary to reveal privileged information in the Aug. 27 Declaration, including directly quoting documents, grouping documents by certain criteria, providing instruction on how the specific strands of information ordered disclosed can be linked to reveal the identity of undercovers, confidential informants, and other privileged information, including the subjects of active investigations and investigations that may be reopened in the future.”

Is this nuts or what?

On Jan. 22, Francis rejected Cohen’s secrecy argument. He wrote: “It is the rare case where the very arguments presented to the court in order to influence its decision may justifiably be shielded by opposing counsel and from the public. This is not that case.”

Still, Cohen soldiers on. The NYPD has appealed Francis’s decision to District Court Judge Richard J. Sullivan. A decision is expected within two weeks.

Sister Cities? With little fanfare last week, the NYPD’s Public Information Office announced the following: “NYPD and Madrid Police Sign Counter-Terrorism Policing Agreement.”

The announcement stated that Police Commissioner Ray Kelly had met with Madrid’s General Coordinator of Security, Jesus Mora de la Cruz, and other Madrid police officials at One Police Plaza to formalize a program that assigns members of both departments to Madrid and New York City to share information on terrorism.

The signing, said Kelly, “formalizes an outstanding relationship between the NYPD and our counterparts in Madrid to thwart threats of terrorism against both municipalities.”

Kelly’s announcement may underscore its outstanding relationship with Madrid, but the announcement also underscores the NYPD’s non-outstanding relationship, shall we say, with the FBI right here in New York City.

The bureau’s Joint Terrorism Task Force — composed of NYPD detectives and FBI agents — has been downgraded as Kelly has placed NYPD detectives in 10 overseas posts, supervised by Deputy Commissioner of Intelligence Cohen. They include: Amman, Jordan; Lyon, France; London; Madrid; Montreal; Paris; Singapore; Tel Aviv; Toronto; and Santo Domingo, the Dominican Republic. [Some, this reporter included, may not be aware of the terrorism threat from the DR. Maybe some day Kelly or Cohen will explain.]

After initially opposing the establishment of the NYPD’s Overseas Spy Service, the FBI reversed course. In 2006, the head of its New York office Mark Mershon said, apparently on instructions from FBI Director Robert Mueller, “Those detectives are doing something we are not. Their primary mission is to get right to the scene and to light up a cell phone and call back to the NYPD in the event that simultaneous attacks are planned for New York City. I would love to say the FBI can do that. But we are not staffed to do that. That is not our mission.”

After the Madrid train bombing, an NYPD detective based in London flew to Madrid and met with the Madrid police, bypassing the FBI’s legal attaché, assigned to the American Embassy. Kelly made a big show then of how quickly the NYPD had responded and how much information they passed on to New York.

The FBI got hold of the NYPD report on the Madrid meeting and determined it was mostly newspaper clippings.

Readers Care About Headgear. Readers complained that this column misidentified the helmet worn by former Chief of Department Robert Johnston during the capture of Larry Davis. While Your Humble Servant preferred the good old fashioned term “pith helmet,” one reader described Johnston’s apparel as a PASGT — Personal Armour System Ground Troops [Kevlar] helmet.”

Who knew that, back in 1987, the NYPD had such a piece of headgear?

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Copyright © 2008 Leonard Levitt