New York Police Watched Nonprofits before 2004 GOP Convention

A March 25 story in the New York Times revealed that the New York City Police Department (NYPD) conducted a covert surveillance program in 14 states, Canada and Europe that collected information on groups planning lawful protests or events at the 2004 Republican National Convention. The information became public as a result of two lawsuits brought against the city by seven of the 1,806 people arrested during the convention. However, the city has asked a federal court to keep detailed records of this surveillance secret, fearing they will be "misinterpreted." The vast scope of the surveillance has become public knowledge at the same time that Congress is investigating Federal Bureau of Investigation (FBI) abuse of Patriot Act powers to collect information.

The Times investigation found that during the year leading up to the Republican convention, NYPD sent agents to cities such as Albuquerque, Montreal and Miami. They attended meetings and filed detailed reports. In some cases, they contacted the police departments in other cities about peaceful anti-war events, such as concerts billed as Bands Against Bush that included political speeches between sets. Anti-war groups were not the only targets. According to the Times, church groups, environmentalists, anti-death penalty groups and street theatre groups were also watched. In all, the Times said NYPD "chronicled the views and plans of people who had no apparent intention of breaking the law."

The New York Civil Liberties Union (NYCLU) filed the lawsuits in October 2004, challenging use of mass arrests, improper detention and fingerprinting as violations of the First, Fourth and Fourteenth Amendments to the U.S. Constitution. NYCLU was successful in convincing the city to destroy fingerprint records of people arrested for minor offenses. However, the group's effort to have the mass arrest procedures barred from future use is proceeding to trial.

The NYCLU obtained the NYPD documents through the pre-trial discovery process, and the court granted permission to make the information public in January 2007. Judge James C. Francis of the Federal District Court in Manhattan said, "The questions posed by these cases have great public significance. At issue is the proper relationship between the free speech rights of protesters and the means used by law enforcement officials to maintain public order." The documents were posted on the NYCLU website in late February. In addition, the Times reviewed still-secret records on the surveillance program and joined the NYCLU's request to the court to unseal them. The city opposes the motion, saying the news media will sensationalize the information.

A spokesman for the city said the surveillance program was necessary to prepare for the large crowds expected during the Republican convention. However, the courts have required some indication of unlawful activity to justify an investigation of an organization. New York has treated protest as adequate justification. The deputy police commissioner for intelligence, David Cohen, is a former CIA official who has made public statements linking investigations of political activity to terrorism investigations. One demonstrator who was arrested said he had been questioned by detectives with the terrorism task force. In all, the Times said, "In its preparations, the department applied the intelligence resources that had just been strengthened for fighting terrorism to an entirely different task: collecting information on people participating in political protests."

The broad scope of the NYPD surveillance and the use of anti-terrorism laws to crack down on protesters fit the pattern of overreaching investigation of lawful political activity. A March 9 report from the U.S. Department of Justice Inspector General (DOJ IG) found that the FBI has made heavy use of national security letters, which do not require judicial review, to justify surveillance and investigations. In Congress, both the House and Senate Judiciary Committees have held oversight hearings, where the DOJ IG said he found "widespread and serious abuse." As a result, some members of Congress, including Sen. Russell Feingold (D-WI), have said the Patriot Act needs to be reviewed to prevent future problems. Feingold was the only member of the Senate to vote against the Patriot Act in 2001.

NYPD is not alone in seeking to keep evidence of their political investigations secret. In civil lawsuits challenging domestic surveillance by the National Security Agency, DOJ has taken extraordinary steps to keep information secret, including requirements that judges use DOJ computers to write their opinions and limiting their access to case documents. One of these suits involves the Oregon charity Al-Haramain Islamic Foundation, which was shut down by the Treasury Department in 2004. The organization's attorneys learned from a document released in pre-trial discovery that the government had eavesdropped on conversations between the attorneys and Al-Haramain officials. DOJ has forced the attorneys to return the document, but the group has sued for damages as a result of the eavesdropping. The court denied DOJ's motion to bar the attorneys from referring to the document or the organization's knowledge of the wiretap.

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