Investigating NY State's Toxic Brew

News that Governor David Paterson has authorized Attorney General Andrew Cuomo to conduct a full-blown investigation into "political interference" by the New York State police is welcome....

May 19, 2008

News that Governor David Paterson has authorized Attorney General Andrew Cuomo to conduct a full-blown investigation into "political interference" by the New York State police is welcomed. Nothing can be more damaging to our democratic political system nor to our law enforcement agencies than harnessing them to influence political outcomes. Think Robert Kennedy, Martin Luther King and the FBI. Think Richard Nixon, Watergate, and the FBI. Cuomo hits the constitutional nail on the head when he observes that "combining politics and police work is a toxic brew." This toxic brew, in fact, is the drink of authoritarian regimes intent on protecting their own power, rather than the democratic political system they swear to defend.

But police interference in politics is not new to New York State. Just over thirty years ago I served as Counsel to the New York State Assembly Task Force on State Police Non-Criminal Files. The task force was established after a newly appointed State Police Superintendent, William Connelie, reported in 1975 that the state police had collected and maintained information on a broad array of what they characterized as "non criminal" individuals and groups. In fact, according to the Task Force Report, these files numbered in the hundreds of thousand. And within in them were well over 600,000 entries. Most of the files dealing with groups or organizations consisted of reports on "meetings, demonstration or planned activities." But the focus often was on ideas. According to the Report, "the Police appeared concerned with any individual or group which was likely to speak publicly...and espouse ideas which challenged the status quo." Ideas seemed to be seen as a precursor to criminal conduct—a "thought crime" if you will—and their proponents as potential criminals. Many individual files also contained personal information such as records of credit checks, and of conversations with employers, neighbors, professors, local government officials and bank officers.

Of course, during the 1960's and early 70's, when most of these files
were built, there was considerable unrest in the society. And as we
know from the post 9-11 world, and from all of American history,
increased anxiety about security always produces more police vigilance.
The byproduct is always an expanded police collection of information on
groups or individuals. They see this as an efficient crime prevention
strategy, or as Superintendent Connelie said when the Task Force report
first came out, "law enforcement's primary responsibility is to prevent
and detect crime." And, of course, this is a goal that both the public
and their elected officials share.

The real question though is not need for information, but how much
information on how many people. This was the issue with which the
original Task Force grappled, concluding that the state police had gone
too far, collected too much information, and cast too broad a net. A
view the Superintendent shared as evidenced by his disbanding of the
unit primarily responsible for the collection of non-criminal
information and his ultimate purging of the files. This is also the
issue under debate today in Washington and throughout the country as
concerns about terrorism make us more anxious.

But what is not debatable are the constitutional responsibilities of
elected officials to set limits on the police they ultimately command.
Their job is to protect us by hiring and guiding the police, but they
also have a responsibility to protect our liberties—including those of
political protesters and Senator Joe Bruno. In New York, during the
period covered by the Report, not only did our elected officials fail
to set limits, but, they seemed to promote the offending behavior of
the police. "It appears that often it was the members of the
Legislature or the Governor's Office interested in the activities of
political groups who requested intelligence information for the State
Police. Thus, State government appears to have encouraged intelligence
gathering."

There are a number of differences between the newly undertaken
inquiry by the Attorney General and the Task Force inquiry. But one
thing remains the same, the responsibility of elected officials for
police misconduct. There would have been no broad interference with New
York's political life in the 60's and 70's if the elected officials had
done their job. Nor obviously would there have been the, so far, narrow
interference with New York's political life under current inquiry, if
government officials had not demanded it either directly or implicitly.
The lesson from this and the lesson we should all urge Attorney General
Cuomo to remember is that beyond police culpability there is political
culpability. And that culpability should not be ignored.