Earlier today, the AP reported on a massive domestic intelligence gathering operation run by the NYPD. I spoke with the Brennan Center's Faiza Patel, author of the center's report on domestic surveillance, about the implications of local law enforcement engaging in intelligence gathering for counterterrorism purposes and the differences between the FBI and NYPD's legal authorities and accountability mechanisms. The following transcript has been edited slightly for clarity.
What did the NYPD do that technically the FBI doesn’t think it’s allowed to do?
I’m trying to puzzle that out myself. The NYPD was initially subject to this Handshu guidelines rule, which had restrictions on their monitoring of First Amendment activity. Those guidelines were removed when they went back and got a modification of the consent decree. As one of the conditions of that modification, what was required was that they would adopt the FBI guidelines. So what they then did is they adopted the Ashcroft guidelines, which is the version before the one that the FBI now has in place. So in theory the NYPD investigations are more restricted than those of the FBI.
The most significant difference is that the Mukasey guidelines have something called an assessment, which involves unpredicated investigations in essence. Under Ashcroft, you should only start an investigation where you had some kind of a lead. That’s the guidelines under which the NYPD should be operating. But the NYPD also has an exception for investigation of terrorism activities, so under that rule they can attend any event that’s open to the public, they can carry out general research, which is not dissimilar from what the feds are allowed to do. While in theory, they adopted these Ashcroft guidelines, which are a little bit stricter than what the FBI operates under, they made a big loophole for themselves. I don’t really see that there’s that much difference between the rules governing them at this point.
Why do you think the FBI’s response was so pointed—the spokesperson said, "If you're sending an informant into a mosque when there is no evidence of wrongdoing, that's a very high-risk thing to do.”
The guidelines allow the FBI to do that. And there have been instances when informants have indicated that the FBI has gone into mosques without a criminal predicate. When they talk about the New York subway case, they talk about the informant, and they say he was told to act like a civilian and hang out in the neighborhood and gather information. When you look at the Newburgh Four case, and the informant in that case, he testified that he was sent to mosques to find out what the Muslim community was saying and doing -- he wasn’t sent there to follow a lead. It’s just this general mandate. In my report I list two examples of FBI informants saying they were sent in to do general monitoring in mosques. So I don’t see a difference, necessarily between the NYPD tactics and the FBI tactics. Nor do I see such a strong distinction between their authorities.
The one difference is the FBI is actually subject to monitoring by Congress, whereas the NYPD has never been called before the City Council to explain its intelligence-gathering activities.
That was going to be my next question. What are the different avenues of accountability for the NYPD and the FBI? Is one less accountable than the other?
There’s no question but that the NYPD is less accountable than the FBI. The FBI is subject to congressional oversight, they report regularly to various committees in both the Senate and the House, senators and congressmen frequently write to them about what they’ve been doing and raise issues and concerns. A big chunk of their guidelines are actually available to the public.
The NYPD, on the other hand, has as far as I can see, has zero oversight from any external authority. The City Council has hearings on the NYPD’s budget, and they had them in May of this year, and those do provide an opportunity for the City Council to ask questions about intelligence-collection activities. I haven’t really seen that happening. The FBI is subject to the Department of Justice’s inspector general, and that’s how we’ve found out about problems in the past. There’s no outside inspector general who is looking at what the NYPD does in terms of intelligence collection.
What implications does this have for oversight of local law enforcement, particularly in areas that are likely to be targets of terrorist attacks?
It’s an issue whose time has come. Post-9/11, you’ve seen an explosion in the intelligence-gathering activities of local law enforcement. It’s been part of the federal effort that local cops are our eyes and ears on the ground with our counterterrorism efforts. That, combined with the threat profile of big cities has meant that many of these cops are now doing intelligence collection.
Unfortunately, the regulatory and oversight regimes have rarely kept up with that. Post-Church Committee, we had this regulatory system put in place by the FBI. There were mechanisms put in place to control what the FBI could and couldn’t do, and to see what it was doing. I may not be happy with how those standards have eroded over time, but there are standards and oversight mechanisms.
For local law enforcement, the standards are less clear, and the oversight is missing. Post-Church Committee, a lot of local cops shrank their intelligence-collection efforts. Post-9/11 that whole paradigm changed, the activity became more aggressive but the regulatory regime became weaker and weaker.
What about the CIA’s involvement in helping the NYPD build this program? Does it in any way violate the legal limits on the CIA’s ability to operate in the U.S.?
I don’t see this article suggesting the CIA is operating domestically. Well, the article says there are staffing overlaps between the CIA and the NYPD, and there is a question about whether someone can be employed by both at the same time, and who was actually paying that person, if this person was being paid by the CIA but they were operating as an NYPD officer. That might raise a question. But I don’t see the CIA aspect of it being that fleshed out yet -- maybe there’s more information to come.