In August of 2016, the New York City Department of Investigation’s Office of Inspector General (OIG), released its findings on the New York Police Department’s (NYPD) surveillance of political activity. As the result of a lawsuit brought in 1970s against the NYPD for spying on political activists, the NYPD is bound by a set of limitations on its power to investigate political activity. These limitations are commonly referred to as the Handschu Guidelines, after the lawsuit which resulted in a consent decree. These guidelines are also codified into the NYPD’s Patrol Guide and are binding on every member of the NYPD. The OIG’s investigation looked into how well the NYPD complied with the Patrol Guide.
According, to DOI Commissioner Mark G. Peters, “This investigation demonstrates a failure by NYPD to follow rules governing the timing and authorizations of surveillance of political activity[…]” Specifically, the NYPD failed to follow the rules governing extending investigations and authorizing human sources. In over 50% of cases reviewed, the NYPD continued investigations after their authorization had expired, without properly renewing them. Those preliminary investigations that were renewed, failed to include articulable reasons as to why they were extended.
The NYPD’s use of human sources (i.e. confidential informants and undercover agents), also came under scrutiny. Much like the investigations themselves, human sources can only be used for a limited time frame, subject to reauthorization, and the NYPD must adequately describe the role of the human source. The OIG found that over half the time the NYPD continues to use human sources after their initial authorization has expired. It has found that the NYPD “routinely” failed to adequately explain the role of the human source.
According to the report, however, the NYPD followed the procedures for initiating an investigation into political activity. Given what we know about the NYPD’s suspicionless surveillance of Muslim communities, this claim would appear to either be dubious or the standards for initiating an investigation are far too lax and in desperate need to be heightened. The NYPD is allowed to open an investigation into political activity whenever there is evidence of a possibility of unlawful activity. Such investigations are meant not to respond to crimes that have occurred, but to prevent criminal activity that has yet to occur.
Former police commissioner Ray Kelly wasted no time in both latching onto this finding to absolve the NYPD of wrongdoing while simultaneously attacking the report. Somehow Kelly found a way to both be “incensed” at the report for being a “political hit job” while also claiming, “What the headline should have said is that the mayor’s own commission finds that the police department acted properly in choosing whom it would investigate and why it did the investigation since 2004”
The report itself found 95% of those surveiled were “individuals associated with Islam.” Given that the NYPD recently settled two federal lawsuits that charged the department had improperly engaged in surveillance of Muslims, it is hard to have faith in the OIG’s finding that the NYPD did not initiate any of its investigations based on impermissible motives. Nonetheless, the report is important for holding the NYPD accountable, as it is the only outside body to have full access to NYPD materials that have not yet been made available to non-police sources. Given that the OIG was able to review a random sample of 20% of cases discontinued between 2010-2015, including some cases opened as far back as 2004, this is likely to be the most comprehensive study of the NYPD’s political spying for some time.
Political spying is not a problem limited to the NYPD. Not only are other local and municipal law enforcement agencies engaged in this type of activity, but recent revelations have shown that the Federal Bureau of Investigation (FBI) has repeatedly abused its own counterterrorism authority to investigate political activity. While the Department of Justice Office of the Inspector General issued a report on this topic in 2010, since then there have only been new revelations about continued FBI abuses. The Bill of Rights Defense Committee/Defending Dissent Foundation has responded to these abuses by calling for a Congressional investigation into the FBI’s actions. While we believe this level of scrutiny is what is ultimately needed, we would welcome another Department of Justice OIG investigation into the FBI’s actions, similar to the type recently under taken by the New York City Department of Investigation OIG into the NYPD’s actions.