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More Kelly Versus Mukasey

January 12, 2009

Let’s add another dimension to the extraordinary exchange of letters between NYPD Commissioner Ray Kelly and the United States Attorney General Michael Mukasey over the NYPD’s domestic surveillance of terrorism suspects.

This added perspective comes care of the New York Civil Liberties Union, which cites recent history to raise concerns that the NYPD may be illegally spying on citizens.

Last fall, Kelly accused senior Justice Department officials of denying his requests for wiretap warrants from the special Foreign Surveillance Court to monitor terrorism suspects.

Mukasey wrote back that Kelly’s views were “contrary to the law.”

Writing in the New York Law Journal last month, the New York Civil Liberties Union Associate Director Chris Dunn provided some context for their disagreement.

Police surveillance of domestic political activity became controversial in the late 1960s and early 70s, Dunn writes, with the emergence of such radical and violent groups as the Weathermen and Black Panthers.

In 1972, the Supreme Court ruled that, despite national-security concerns, the government must obtain a judicial warrant before conducting electronic surveillance of American citizens.

Six years later, Congress enacted the Foreign Intelligence Surveillance Act (FISA), which authorized certain domestic surveillance beyond traditional investigations into suspected crimes. FISA authorized the government to spy on American citizens, even though, Dunn writes, “probable cause does not exist to believe they are involved in criminal activity.”

To conduct this surveillance, the government had to obtain authorization from the special, FISA-created “Foreign Intelligence Surveillance Court”(FISC). All applications from local law enforcement agencies like the NYPD were routed through the FBI and the Justice Department and needed the approval of the Attorney General.

It was this arrangement — under which the Justice Department and the FBI control NYPD authorization for FISA surveillance — that led to the recent Kelly- Mukasey exchange.

The NYPD had been caught in its own surveillance scandal in the late 1960s involving its unlawful treatment of political activists, Dunn writes. Some undercovers who had infiltrated political groups encouraged them to commit unlawful acts. The result was a consent decree known as the Handschu agreement, which restricted the NYPD’s political surveillance.

After the terrorist attacks of 9/11, Kelly sought to eliminate the Handschu restrictions. In February, 2003, federal judge Charles Haight granted the NYPD virtually unlimited surveillance powers.

That spring, following two anti-Iraq war demonstrations, it surfaced that the department’s revamped Intelligence Division under Deputy Commissioner David Cohen, a former high-ranking CIA official, had questioned arrested demonstrators in jail about their political affiliations, entering that information into a database. Haight then rescinded many of the Handschu modifications he had ordered.

Then, in the summer of 2003, the Intelligence Division launched a nationwide surveillance operation of groups planning to protest at the 2004 Republican National Convention at Madison Square Garden. That operation did not surface until 2007 when the city, defending itself against law suits, disclosed it intended to rely on intelligence information to justify the NYPD’s harsh treatment of convention protestors. The NYPD, writes Dunn, “has vigorously resist[ed] orders that it produce undercover reports produced during the operation.

“One notable feature of the NYPD’s surveillance operation, as Cohen explained in a deposition,” Dunn writes, “was that the department did not notify the FBI of its nationwide program, an omission that reflects Cohen’s disdain for the agency and the NYPD’s commitment to developing its own propriety domestic counter-terrorism intelligence program.”

With this as background, let’s return to the Kelly-Mukasey exchange of letters.

Kelly began on Oct. 27, 2008, by accusing the Justice Department of hindering investigations of “high priority subjects of international terrorism investigations in the New York area.”

He added that the federal government was doing “less than it is lawfully entitled to do to protect New York City.” Specifically, he charged that the Justice Department and the FBI were using “inappropriately high standards of probable cause” when evaluating NYPD applications for surveillance.

On Oct. 31, Mukasey answered. “In effect, what you ask is that we disregard FISA’s legal requirements, which are rooted in the Constitution.”

Dunn offers this ominous conclusion: “Equally alarming is what Attorney General Mukasey’s letter suggests about the possible scope of current and future NYPD surveillance. His charge that the department had sought to conduct electronic surveillance where no legal justification existed indicates the department has an extraordinary broad view of permissible surveillance.

“Such an approach, combined with the NYPD’s view of its minimal role in assessing the lawfulness of its surveillance activities, its aversion to working with the FBI and its history of surveillance excesses leaves one to wonder about the extent to which the department is engaging in domestic electronic surveillance entirely outside the FISA process and without the knowledge of federal authorities.”

The Hottest P.I. In Town.
Say good-bye to Eddie Egan and Sonny Grosso. Move over Beau (Yes, that’s how he spells it) Deitl. There’s a new boy in town.

In fact you may have seen him on television, standing on the steps of the federal courthouse, providing private security for fraudster-of-the-century Bernie Madoff.

Who is he? Retired first grade detective Nick Casale, former right arm to former Chief of Department Louis Anemone. Or as Casale calls himself: “the hottest P.I. in town.”

Not that the charming, roguish and modest Nick hasn’t had issues. He and Anemone left the MTA under bizarre circumstances, stemming from allegations that Casale had concocted a phony informant in a self-generated corruption probe, then lied about it to the Queens and Manhattan District Attorneys’ offices.

“I’m up there [at Madoff’s] most of the day,” says Casale of his current assignment. “I loved walking a foot post. I loved being a cop. Every day I couldn’t wait to get into work. It’s still true.”

to attorney Norman Siegel and reporters David Wallis, Ralph Smith and Rafael Martinez-Alequin. Due to their perseverance (and Siegel’s threat of a federal law suit), the city has capitulated and issued each of them press identification cards. The police department had arbitrarily denied their applications in 2007. Your Humble Servant — whose application was also denied in 2007 — may not be far behind.

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