Following two lawsuits against the NYPD for its pervasive, rights-violating surveillance of the city's Muslims, the department's Inspector General took a look at a sampling of cases from 2010-2015 to see if the Handschu Agreement -- crafted in 1985 and heavily modified in 2002 -- was being followed. The short answer is "No." So is the long answer [PDF].
The guideline was part of a consent decree created in response to pervasive NYPD surveillance of activities protected by the First Amendment, even when no unlawful activity was suspected. The guideline worked for awhile, but the 9/11 attacks changed that. The NYPD brought in two former CIA employees who decided to turn a domestic law enforcement agency into Langley on the Hudson. Former CIA officer David Cohen used terrorism fears to compel a judge to significantly modify the Handschu Agreement.
From that point on, the NYPD steadily abused the revamped agreement. Its "Demographics Unit" designated entire mosques as terrorist entities, placed the city's Muslims under surveillance, and -- best of all -- generated zero leads.
The Inspector General's report points out that the NYPD couldn't even comply with the relaxed, post-9/11 Handschu Agreement. Instead, the Demographics Unit copy-pasted justifications for pervasive surveillance and passed them up the ladder to the rubber stamps handling the approval process.
OIG-NYPD’s investigation found that NYPD, while able to articulate a valid basis for commencing investigations, was often non-compliant with a number of the rules governing the conduct of these investigations. For example, when applying for permission to use an undercover officer or confidential informant, the application must state the particular role of the undercover in that specific investigation, so that the need for this intrusive technique can be evaluated. NYPD almost never included such a fact-specific discussion in its applications, but instead repeatedly used generic, boilerplate text to seek such permission. Tellingly, this boilerplate text was so routine that the same typographical error had been cut and pasted into virtually every application OIG-NYPD reviewed, going back over a decade.
The NYPD's response [PDF] to the report disputes the accusation of using boilerplate permission slips. But that's all it does. It fails to explain how each individual request somehow contained the same typographical error. Repeatedly. For fourteen years.
The NYPD disagrees with the Report’s characterization that the extensions of Preliminary Inquiries contain “boilerplate language.” To the contrary, extension requests include a full and detailed recitation of the key facts justifying investigation, including any new facts/updates learned since the investigation was opened. Often, the added facts learned since the opening of an investigation strengthen the original predicate.
Once an investigation was under way, NYPD supervisors tended to take a very hands-off approach.
Further, among all cases reviewed, NYPD continued its investigations even after legal authorization expired more than half of the time. Often more than a month of unauthorized investigation occurred before NYPD belatedly sought to renew the authorization.
As the IG points out, this is completely unacceptable. The Agreement is there for a reason: to prevent unlawful surveillance. But the NYPD is left alone to ensure its own compliance with the guideline. There's no judicial oversight of these activities -- not like there is with searches, seizures, and stops. Left to police itself, the NYPD proved unworthy of the trust placed in it.
These failures cannot be dismissed or minimized as paperwork or administrative errors. The very reason these rules were established was to mandate rigorous internal controls to ensure that investigations of political activity – which allow NYPD to intrude into the public and private aspects of people’s lives – were limited in time and scope and to ensure that constitutional rights were not threatened.
As a result, until OIG-NYPD conducted this review, there had never been any routine, independent third-party review to ensure compliance with these rules. NYPD's compliance failures demonstrate the need for ongoing oversight, which OIG-NYPD will now provide.
The NYPD's response admits as much, even as it challenges many of the Inspector General's recommendations. Since February 2002, the NYPD's Demographics Unit has been grading its own papers. A law enforcement hot take, written by a CIA officer and pushed past a local judge, has guided the NYPD for almost 15 years. What it's left behind is a long string of First and Fourth Amendment violations. What it hasn't left behind is a string of successful investigations. Or a coherent paper trail.
This is the NYPD in its own words, arguing with IG about the office's findings.
First, the NYPD didn't implement electronic tracking of its Demographics Unit cases until after it was already on the losing end of two civil rights lawsuits.
The Intelligence Bureau began discussing the development of an electronic case tracking system for Handschu investigations in February 2016 to assist in complying with the proposed modifications to the Handschu Guidelines as part of the settlement in the Handschu and Raza litigations.
It will only now begin thinking about keeping all related investigative documents together in one place.
While the prior history of a case and/or its proposed subject(s) is set forth in the Investigative Statement, the Intelligence Bureau will consider if there is a more effective way to trace the full history of an investigation, including other levels of investigation (i.e., checking of leads, Preliminary Inquiries, etc.) which may have occurred related to its underlying facts.
It will also only now start thinking about documenting the written approval process for deploying new informants or extending the use of existing ones.
The Intelligence Bureau will consider the development of best practices for documenting the written approval of the use of human sources in Handschu investigations by the Deputy Commissioner of Intelligence, including name, signature, and date.
Even though the NYPD has been running investigations under the modified Handschu Agreement since 2002, it won't be until later this year that it will finally deliver a comprehensive compilation of baseline policies governing terrorism-focused investigations.
As is evidenced by the Inspector General's findings -- and the NYPD's own admissions -- the department has never been interested in accountability. It's far more interested in pretending it's the DEA, FBI, CIA, and NSA all rolled into one local law enforcement office. And it operates with a level of opacity surpassing the federal agencies it aspires to be. The report finds a pattern of noncompliance and the NYPD defends itself by either pointing out that if there's no requirement to do something, it sure as hell isn't going to do it, or nodding thoughtfully and promising to get right on things it should have addressed more than a decade ago.