This post was co-authored by Andrew Sullivan, pro bono counsel for the Brennan Center's Liberty and National Security Program.
The announcement of the NYPD's recent arrest of Jose Pimentel, accused of building pipe bombs to embark on a bombing campaign around New York City, seemed high on drama, coming on a Sunday evening at short notice at City Hall. Noticeably absent from the press conference was the FBI, even though terrorism cases are usually handled at the federal level. And it wasn't because it was a bad time for them. The FBI had also been investigating Pimentel, but declined the NYPD's offer to pursue the case against him because of concerns that the informant was too involved in the plot. The informant smoked marijuana with Pimentel, and some of the incriminating statements on which the indictment is based were made while Pimentel was high. Unnamed federal law enforcement officials quoted in reports about the case expressed doubts about Pimentel's mental state and ability to carry out the planned attacks.
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The official line that the absence of the FBI from the Pimentel case is nothing out of the ordinary barely passes the snicker test. An ever increasing number of "anonymous" FBI agents have criticized the NYPD's tactics to reporters. One even went so far as to say that NYPD personnel on the Joint Terrorism Task Force agreed with the FBI's assessment of the Pimentel case, but the NYPD Intelligence Division went ahead and took it to the district attorney. Another federal agent was quoted as describing the Intelligence Division as "an empire unto itself."
Unfortunately this is not the only circumstance in which the Intelligence Division appears to be operating entirely without oversight. Since August, the Associated Press has revealed that the NYPD is conducting dragnet surveillance of the city's Muslim communities. The reports document a mapping program in which the NYPD collected data about Middle Eastern ethnic groups, and businesses owned or operated by members of those ethnic groups, including restaurants, cafes, barber shops, and bookstores. The AP's investigation also revealed that the police infiltrated mosques and Muslim student groups at New York City colleges. All of these activities were apparently routinely undertaken by the Intelligence Division, without any suspicion of criminal activity, in order to build up its information on Muslims in New York City.
The FBI, for its part, has suggested that the NYPD is using tactics that verge on the unconstitutional. The implication is, of course, that the FBI would never engage in such activities. The sad truth, however, is that the FBI has undertaken similar surveillance of Muslims, although it may not have penetrated quite as deeply into communities as the ethnically and religiously diverse New York City police force has been able to.
But one very important difference between the FBI's intelligence gathering and that of the NYPD is that the FBI's operations are at least subject to oversight by congressional committees and the Justice Department's Inspector General. The NYPD's Intelligence Division, on the other hand, has no meaningful oversight. Mayor Bloomberg's recent comment that "I have my own army in the NYPD" further drives home that point. The New York City Council has never held a hearing on the NYPD's intelligence operations, although some Council Members did pointedly question Police Commissioner Ray Kelly about these activities at a recent hearing on public safety. The NYPD has monitors for police misconduct and corruption, but no one is watching the Intelligence Division.
While we are all grateful to the NYPD for its work in protecting the city, that doesn't mean the Intelligence Division should operate without oversight and ride roughshod over the privacy and civil liberties of New Yorkers. The FBI's intelligence operations are far from perfect, but oversight at least creates some pressure to adhere to the rules. Until the NYPD's Intelligence Division is answerable to someone outside the police department, we can't expect it to change.
Faiza Patel is co-director of the Brennan Center's Liberty and National Security Program. Andrew Sullivan is pro bono counsel for the Liberty and National Security Program.