One Police Plaza

Kelly Takes On the Washington Big Boys

November 24, 2008

It’s one thing for Police Commissioner Ray Kelly to pick on the schlimazels who run the New York office of the FBI.

Now, he is messing with the big boys in Washington.

Now the whole world can witness the fact that he has few limits when it comes to grabbing attention and power.

For the past six years Kelly has accused the FBI of incompetence, saying they bungle intelligence and fail to share information about suspected terrorists with the NYPD. The source who, in the summer of 2003, wisecracked to the Post that the FBI “couldn’t pick out a Yemeni from a Palestinian” is believed to be none other than Kelly.

In a letter last month to Attorney General Michael Mukasey, Kelly escalated his attacks, charging that the federal government “is doing less than it is lawfully entitled to do to protect New York City, and the city is less safe as a result.”

Specifically, he accused senior Justice Department officials of foot-dragging when the NYPD requested wiretap warrants from the special Foreign Intelligence Surveillance Court [FISC] to electronically monitor terrorism suspects.

“In sum, it is apparent to me, based on our experience in New York, that in situations short of unambiguous emergency, the system too often moves too slowly and with too little urgency for such a high priority national security mission.”

The result: a sharp left hook from Mukasey, who, unlike everyone else in New York City, appears undaunted by Raymond W. Kelly.

“The critical assertions of fact in your October 27th letter are incorrect, and the alarming conclusions you draw are unfounded,” Mukasey wrote.

He added that, in one case, “you declined my invitation to discuss the facts concerning that FISA [Foreign Intelligence Surveillance Act] target, instead stating that you were not ‘in the weeds’ regarding the details of that case. Obviously the facts are critical to any FISA application and because you were not versed in the facts, we were unable to have a meaningful conversation about that case.”

More damning from Mukasey was this: “I was surprised to learn that NYPD officials asserted … that the Department of Justice’s role in the FISA process is simply ‘to approve applications if conditions are met’ and that those ‘conditions’ do not include FISA’s probable cause requirement. NYPD senior officials reiterated this view when they described the role of Department attorneys as ‘clerks,’ whose responsibility is limited to submitting all agency requests for FISA authority to the FISC, regardless of whether the probable cause standard has been satisfied. This view, which appears to be a driving force behind NYPD’s complaints about the FISA process in New York, is contrary to the law.”

Mukasey also blamed “the documented failure of the NYPD on occasion to share information in a timely manner. ...[T]he NYPD investigated a terrorism suspect for several months before advising the FBI New York field office of the investigation. This not only hampered our ability to obtain FISA coverage quickly but also prevented the FBI from conducting any investigation of the suspect until the NYPD shared the information it had developed. This is unacceptable and makes New York and the country less safe.”

So what’s going on here? On the one hand, the confrontation shows that Kelly continues to overreach in his quest for power, a pattern since returning as police commissioner six years ago.

Indeed, Kelly’s letter portrays him as more zealous in fighting terrorism than the oft-criticized Bush administration.

On the other hand, some very personal issues are involved here. Another pattern with Kelly is that the personal and the professional are intertwined.

As The New York Times suggested, the timing of Kelly’s letter may have been part of a lobbying effort, however misguided, to become Homeland Security Director. If true, that might raise questions about his desire to remain as police commissioner for Mayor Michael Bloomberg’s all but assured third term.

We also note that Mukasey is an ally of Kelly’s nemesis — one of his nemeses, that is — Rudy Giuliani, who fired Kelly in 1993. Despite all his successes and accomplishments, Kelly never forgets a slight.

What’s been the fallout from the Kelly/Mukasey letters? First, Mayor Mike — who is deaf, dumb and blind when it comes to the police department — has backed Kelly.

So has the Daily News. In an editorial on Sunday, it cited only Kelly’s side of the quarrel, then claimed that “inasmuch as the facts and circumstances are classified, it is impossible to referee between the two men on the merits.”

Memo to editorial page editor: What about Mukasey’s argument that Kelly’s approach violates the law, and would undermine the government’s ability to obtain wiretaps “thereby making New York and the rest of the country less safe?”

The night after the letters became public, Mukasey collapsed while giving a speech. [He has since recovered.] Was it the strain of the dust-up? Was it coincidence? Or was something else involved?

Based on past reporting by this column, Kelly’s aggressive letter appears influenced by NYPD Deputy Commissioner of Intelligence, David Cohen, a former top CIA operative. From torture to rendition, the CIA — rather than the FBI — has operated beyond the law.

Whether because of his undercover scuba-diving fiasco in New Jersey, his spying on legitimate political protest groups planning to attend the 2004 Republican national convention, or his sending detectives on worldwide spying missions, Cohen has become an object of suspicion in the FBI and other federal law enforcement agencies.

When Mukasey collapsed, some in Justice may have wondered whether Cohen might have been sticking pins in a voodoo doll.