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NYPD Surveillance: What We Don't Know, And Why It Matters

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At the City Council's budget hearing a year ago, I asked Commissioner Kelly for basic budget information on the NYPD's counterintelligence programs. How much are we spending? How many officers? Where are they working? Under what authority? He did not provide any specific answers.

Last fall, at another hearing, I asked him to explain NYPD documents (made public by the AP) that suggest the police are profiling Muslim mosques and student groups, without specific criminal leads. He assured me that the NYPD is following the "Handschu Guidelines," which cover when the police can do undercover surveillance of free expression. But he did not even try to explain the apparent contradictions between that general assurance, and the apparent evidence to the contrary.

I will be asking him questions at the Council's annual budget hearing again today. But we still do not have any real answers.

Getting Clear on the Issues

Commissioner Kelly and Mayor Bloomberg have responded brusquely to criticism, and suggested that anyone who asks questions is against any counter-terrorism program. That is patently untrue.

I want a robust intelligence program to keep us safe. The NYPD should monitor websites and publications, where people may advocate violence or connect with those who do. They should have officers and surveillance cameras watching for unusual behavior in public places. They should have radiological devices and other detection devices on our subways and bridges. And when there is a real, specific lead that suggests criminal behavior, they should follow up swiftly to investigate.

But there are very important things that the NYPD should not do. They should not send undercover officers into mosques and student groups, posing as members, to spy on free expression where they are not investigating a specific lead on a potential crime. They should not target specific communities, or keep dossiers on organizations, simply based on religion. These activities are neither legal nor wise. They jeopardize both our safety and our liberties.

Why it Matters

Targeting specific communities breaks down the bonds of trust needed for good intelligence. Even the top FBI official in New Jersey, Michael Ward, said last week that NYPD's spying on mosques is "starting to have a negative effect. When people pull back cooperation ... it creates blind spots. It hinders our ability to have our finger on the pulse of what's going on."

Beyond our safety, these activities put all of our civil liberties at risk. Free expression is not a casual luxury. As the founders knew, it is at the core of our democracy. The confidence that government operatives are not spying on us is a real part of what makes us different from a dictatorship. How can conservative defenders of liberty cheapen it so casually?

How Can We Know: An NYPD Inspector General

This returns us to the question: how can we know? Commissioner Kelly says the NYPD is not engaged in religious profiling, or inappropriate surveillance. The NYPD documents released by the AP suggest otherwise. We do not have access to the documents we would need to really know. Nor should we: the City Council, the press, and the public should not have access to classified information about ongoing criminal investigations. But the truth matters.

That's why I am working with my colleague Jumaane Williams, the Brennan Center for Justice, New York Civil Liberties Union, the Muslim American Civil Liberties Coalition, Communities United for Police Reform, and other groups on legislation to establish an NYPD Inspector General.

An IG appointed by the mayor would have access to the secure information, but be required to keep it confidential. They would provide general reports to the City Council and the public. The IG would be a strong independent voice, focusing on how police policies square with civil liberties and on the effectiveness of police operations.

Every federal agency (including the FBI and CIA) has one, as do many city agencies. In fact, the NYPD -- despite its size and operations -- stands alone among major American police departments for lacking any meaningful independent oversight (L.A., Chicago, and Philadelphia all have broad independent bodies with subpoena power, for example). IGs help agencies work better. When they are following the law and doing the job right, IGs help provide independent confirmation and legitimacy. When there are ways to do it better, IGs suggest them. The only agencies with something to fear from an IG are those that are not obeying the law.

I hope Commissioner Kelly will answer my questions this week about how much we are spending, how many officers we have working on intelligence, what states and countries they are working in, and how we know they are following the law. But I am not optimistic.

We need a NYPD Inspector General in place so we can have confidence that both our safety and our liberties are being protected.