Civil rights lawyers are reaching more than 40 years into the past to curb the New York City Police Department's program of surveillance of Muslim communities. In a court filing on Monday, lawyers added to a long-running lawsuit initially brought to address the department's spying on Vietnam War protesters, updating the case for the post-9/11 era.
The Handschu lawsuit, as it's known, "has been about NYPD surveillance of whoever is the suspected flavor of the month since 1971," said Jethro Eisenstein, a lawyer on the case since its inception.
The case is named after Barbara Handschu, a civil rights lawyer who teamed up with the Black Panthers and radical activist Abbie Hoffman, among others, to take on the NYPD in 1971. The department's "red squad," they alleged then, had infiltrated and disrupted law-abiding anti-war protest groups.
In 1985, the NYPD agreed to a set of rules called the Handschu agreement, promising to spy only when it had information of criminal activity, and only after it had vetted its surveillance operations with an overseer called the Handschu authority. It also forswore the use of infiltrators.
But Eisenstein said that after Sept. 11, the NYPD "came in and they said, 'Oh we can't live with that, it's too restrictive.'"
David Cohen, the NYPD Deputy Commissioner of Intelligence who largely instigated the Muslim surveillance program, told the judge considering a modification of the Handschu agreement back in 2003 that mosques and Islamic institutes had been used "to shield the work of terrorists from law enforcement scrutiny by taking advantage of restrictions on the investigation of First Amendment activity."
The judge in the case agreed that "fundamental changes in the threats to public security,'' required him to greatly weaken the Handschu agreement's oversight. Even with those restrictions loosened, the filing alleges the department's muslim surveillance program violates the guidelines.
Eisensein said the Associated Press's Pulitzer Prize-winning series of reports about the NYPD's Intelligence Division prompted Monday's development. "From what we've been able to see, the removal of the gatekeeper just led them to go hog-wild," he said. "They're basically investigating the Muslim communities, treating orthodox Muslim adherents as inherently suspicious."
Paul Browne, the NYPD's Deputy Commissioner of Public Information, said in a statement that the department "adheres to the Constitution in all it does, and specifically the Handschu guidelines in the deployment of undercover officers to help thwart plots against New York City and to identify individuals engaged in support of terrorism."
Over 40 years, Eisenstein said he has seen the "pendulum" of civil liberties swing back and forth between security fears and privacy protections over "an amazing sweep" of time.
There is a sense among some civil libertarians, emboldened by the AP reports, that the pendulum is now swinging back. They are pursuing their effort to curb the surveillance program both in court, through the Handschu filing and in a separate lawsuit in New Jersey, and in the political arena, through a proposal pending in the city council for an NYPD inspector general.
"There's a sort of a natural tendency on the part of the people who are charged with protecting domestic security to overreach; it just happens all the time," said Eisenstein. "Historically it's always happened and it's necessary to have some brake on that."