Date: November 2016
Originally Published: NY Daily News
In an era of heightened concern about terrorism and civil liberties, we need strong models for civilian oversight of police surveillance.
Of course we want the NYPD — and other law enforcement agencies — to engage in robust efforts to prevent terrorist attacks, monitor websites that recruit and investigate genuine leads. But we must also make sure that those investigations don’t overreach. As Benjamin Franklin famously said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither.”
That’s why Judge Charles Haight’s ruling this week calling for stronger safeguards over NYPD surveillance — stronger even than those reached previously in a settlement with plaintiffs who had sued the NYPD over its surveillance of Muslim communities — is encouraging.
Haight called, in particular, for stronger civilian oversight. The NYPD had already agreed to add a civilian representative to what’s know as the Handschu committee, which authorizes surveillance investigations. But as Haight wrote in his ruling, “the proposed role and powers of the civilian representative, do not furnish sufficient protection from potential violations of the constitutional rights of those law-abiding Muslims and believers in Islam who live, move and have their being in this city.”
In his opinion, Haight cited an independent investigation by the NYPD inspector general into the NYPD’s surveillance of political activity as a big part of the reason he called for stronger safeguards.
Although it has been attacked by the Daily News Editorial Board, the inspector general’s report was fair and balanced. Many civil rights advocates felt it did not go far enough, since it did not investigate the initial leads that were cited to open investigations, or call into question the extremely low standard requiring only information “indicating the possibility of unlawful activity.”
The NYPD in fact cited the IG’s report as a vindication of their practices, since it did not find examples of illegality.
But the IG’s report did raise issues of genuine concern. The report showed that 95% of NYPD investigations of political activity from 2010 to 2015 were of Muslim communities, mosques, cafes and student organizations. As the Associated Press reported back in 2011-2012, those investigations went as far as placing an undercover officer on a canoe trip with a Muslim Student Association, pressuring Muslim New Yorkers who had committed unrelated minor crimes and traffic infractions into becoming informants, and spying on mosques whose imams were cooperating with the NYPD.
But they never generated criminal charges or discovered a plot.
More than half the time, NYPD investigations continued past their authorized time limits, kept undercover officers in place after authorizations expired and used boilerplate language rather than specific information about cases. These alarming statistics clearly demonstrate the need for a stronger civilian representative on the Handschu committee.
We should all be troubled by surveillance that is overwhelmingly focused on Muslim communities. But this is not only about Muslims. In the era of Edward Snowden, and the federal government’s effort to mandate a “back door” to break cell phone encryption, getting the balance right matters to all of us.
Haight pushed the NYPD to clarify the civilian representative’s authority, to require him to report periodically to the court on the NYPD’s compliance with the law and to make sure this position is not removed without the agreement of the court. He rightly concluded that leaving all of the oversight in the hands of law enforcement, without meaningful civilian review of cases, simply leaves too much room for neglect of our liberties.
Ignore the voices that are painting this decision as a frontal assault on the NYPD and its ability to protect the city. Haight advanced a thoughtful and reasonable approach. If his ruling results in a stronger settlement, which it should, it will just make sure that the department follows the rules.
It would also establish a stronger model for civilian oversight, which we can use for decision-making about surveillance by law enforcement as new technologies and new concerns emerge.
Thoughtful, independent oversight of policing will help us secure both our liberty and our safety.
Lander and Williams were co-sponsors of the City Council legislation that created the Office of the NYPD Inspector General. Gibson chairs the Council’s Committee on Public Safety.