Cross-posted from JustSecurity.org.
Last week, the City of New York agreed to settle two federal lawsuits challenging the NYPD’s surveillance of American Muslims, promising to reform the rules that govern how the Department conducts investigations that involve political and religious activity. Details of the proposed agreement, which must be approved by a federal judge, include some meaningful changes that deserve high praise. At the same time, the agreement should be regarded as part of a broader effort to ensure that the police play by the rules, highlighting the need for continued oversight by the courts, the NYPD Inspector General, and the New York City Council.
First, some background: The NYPD has been bound for decades by a federal consent decree that governs its investigations involving political activity. The rules are known as the “Handschu Guidelines,” and they derive from one of the two lawsuits now at issue, Handschu v. Special Services Division. Theoriginal Guidelines, approved by the court in 1985, prohibited the NYPD from investigating political activity unless it had “specific information” that the targets were involved in criminal conduct. It established the “Handschu Authority,” a three-member body responsible for authorizing investigations that included one civilian. In 2003, citing terrorism concerns, the Citysuccessfully moved to abolish the Authority’s approval role and to loosen the rules for investigations.
In 2011, a Pulitzer Prize-winning Associated Press investigation revealed that the NYPD was conducting blanket surveillance of mosques, restaurants, stores, schools, and student associations, raising the likelihood that the department was not complying with the Handschu Guidelines, as well as constitutional standards. The Handschu attorneys, suspecting a violation of the decree, went back to court. Around the same time, a second lawsuit,Raza v. City of New York, challenged the NYPD’s Muslim surveillance program on First and Fourteenth Amendment grounds. In 2014, counsel in both cases agreed to joint settlement negotiations with the City, resulting in a series of negotiated changes to the 2003 Handschu Guidelines. Since the Guidelines will become part of a consent decree settling a class action, these changes will only come into force after a “fairness hearing” if a federal judge approves the deal.
So, what’s new in Handschu?
Creation of a “Handschu Committee” and Civilian Representative
The proposed settlement creates a “Handschu Committee” responsible for reviewing all ongoing investigations involving political and religious activity, on a monthly basis. Notably, the Committee includes a mayorally-appointed Civilian Representative who is entitled to attend the monthly meetings and to have access to the investigative statements justifying each proposed opening, extension, or closing of an investigation. Like the other members of the Committee, the Civilian Representative may ask questions and offer opinions. In addition, the representative is required to record objections to any investigation that she concludes violates the Handschu Guidelines and must bring such investigation to the attention of the Police Commissioner. The Commissioner, in turn, is required to “inquire into the investigation and report the findings of the inquiry to the Civilian Representative.” The representative has one additional and critical power: She is required to bring systematic and repeated violations to the attention of the federal judge assigned to the Handschu case and to provide notice of such a report to counsel in that case.
The presence of a strong civilian monitor — particularly when combined with the new standards that form part of the settlement (discussed below) — should serve as a check on NYPD’s intelligence operations. But there are a few significant differences from the original Handschu model that bear attention.
Unlike the Handschu Authority, the new Handschu Committee serves a monitoring rather than an authorizing function. Whereas the Handschu Authority was responsible for authorizing investigations, the Civilian Representative on the Handschu Committee is obliged to report violations, but cannot vote against them. This structure is decidedly different from previous iterations, but requiring the Civilian Representative to report violations to the Police Commissioner and the mandatory whistleblower provision gives the civilian monitor significant clout and should help prevent the kind of systemic abuses witnessed in the recent past.
Additionally, the number of NYPD brass on the Handschu Committee has been increased to 11 with a single civilian member. This is an obviously lopsided composition, but there may be certain advantages to the new structure. For one thing, it ensures that NYPD leadership is fully aware of ongoing intelligence activities, thus bolstering internal checks and balances (assuming everyone attends the monthly meetings, which they are not required to do). And, even though the civilian representative is only one of many on the Committee, as discussed above, she has a clearly defined special role in the process. The Mayor should appoint a strong, independent person to fulfill this role so that the Civilian Representative can serve as a robust safeguard against overreach.
Unfortunately, the settlement agreement gives the Mayor the ability to phase out the Civilian Representative after five years, albeit with notice toHandschu lawyers. Given that some types of investigations may last three or five years, there is a real concern that the Civilian Representative will not remain on the Committee long enough to uncover and report any systemic abuses. One potential fix would be to require court approval of the removal of the civilian monitor, as is often the case in policing-related settlements.
It is also unclear whether the Civilian Representative will be a volunteer position or compensated. Given the central role played by the monitor, the Mayor and the City Council should ensure that the individual selected is able to devote sufficient time and energy to this assignment.
Threshold for Investigative Activity
Under the existing Handschu Guidelines, low-level investigative functions like “Checking of Leads” or “Preliminary Inquiries” require the NYPD to have some information indicating the possibility of unlawful activity. The Modified Guidelines do not increase the most basic threshold; the rule for Checking of Leads is completely unchanged. But they do clarify the standard for Preliminary Inquiries, adding that the predicate information must be “articulable and factual.”
In our view, this is a good addition. Requiring police to articulate facts that support an investigation is helpful in guarding against surveillance motivated by bias or stereotypes. It’s not a silver bullet, of course. But together with the presence of a civilian on the Handschu Committee, the change should operate to prevent investigations based on little more than the proposition that some Muslims may be terrorists so places where they live and congregate are reasonable targets for surveillance. The latter view is reflected in the NYPD’s much criticized 2007 report Radicalization in the West, which is to be removed from the department’s website as part of the settlement.
One potential hiccup is that the proposed rules do not require the tip to be “verified as true or accurate” in order for investigation to proceed. We believe that this is meant to leave room for investigations to determine the validity of a tip, which will not necessarily be known at the start, rather than to suggest that the NYPD should conduct investigations based on patently incorrect information. Further clarification in this regard would be helpful.
The current Handschu Guidelines govern the duration of permissible investigative activity. Checking of Leads, for example, must be “prompt and extremely limited” whereas Preliminary Investigations can last for six months, followed by unlimited three-month renewals. Likewise, Full Investigations and Terrorism Enterprise Investigations are initially authorized for one year and are then eligible for unlimited one-year extensions. The settlement doesn’t change the timelines for any of these investigative activities, but adds a “presumptive duration” for each type of investigation (Preliminary Inquiries: 18 months; Full Investigations: three years; Terrorism Enterprise Investigations: five years). The Deputy Commissioner for Intelligence retains sole discretion to exceed these limits.
These presumptive limits are long enough that they won’t hamper police, but should provide a benchmark to assess whether a particular investigation has gone on too long.
Choice of Investigative Technique
The proposed settlement makes two important changes to the way the NYPD decides how to carry out investigations. Under the old rules, officers could use any lawful investigative technique permitted by the Guidelines, including the “use of confidential informants, undercover activities and operations, eavesdropping and video surveillance …, pen registers and trap and trace devices, consensual electronic monitoring, and searches and seizures.” The choice of technique was — and still is — a “matter of judgment” for the NYPD, taking into account several factors such as available resources and the seriousness of the unlawful act. But police are now required to consider “the potential effect on the political or religious activity of individuals, group or organizations and the potential effect on persons who, although not a target of the investigation are affected by or subject to the technique.” This addition changes the surveillance calculus and has the potential to help guard against the use of overbroad tactics. In particular, it may discourage techniques that would subject all members of a mosque, community organization, or student group to unnecessary surveillance if an individual is the only intended target.
The settlement would also change the rules for undercover operations, which have come under renewed scrutiny following recent reports that the NYPD used an undercover female detective who “converted” to Islam in order to spy on Muslim students for years at Brooklyn College, none of whom were ever accused of wrongdoing. Under the new rules, an authorization for use of an undercover or confidential informant is reduced to 90 days from 120. They also require the NYPD to first determine that “the information sought in the investigation could not be reasonably obtained in a timely and effective way by a less intrusive means.” This new requirement may well reduce the NYPD’s overreliance on undercovers and informants, tactics that have sown distrust and alienated the very communities that the NYPD looks to for cooperation.
Protection of Constitutional Rights
Finally, the settlement would add two policy statements to the Handschu rules, both of which explicitly protect religious freedom. The first recognizes “the right to be free from investigation in which race, religion, or ethnicity is a substantial or motivating factor.” The second states that investigations should not “intrude upon rights of expression or association in a manner that discriminates on the basis of race, religion or ethnicity, where such discrimination is a substantial or motivating factor for the investigation.” In short, these statements clarify that the NYPD must base its investigation on facts, not religion. They are also a substantial improvement over the federal investigative guidelines, which only prohibit investigations conducted solelyfor the purpose of monitoring First Amendment-protected activities.
While the NYPD claims that it follows these standards anyway, their inclusion in what will eventually become a court-sanctioned document turns them into something closer to legal obligations rather than mere internal policy that can be ignored at will. They also provide additional standards for the Handschu Committee — particularly the Civilian Representative — to measure police investigations. Finally, other oversight bodies, such as the NYPD Inspector General and the City Council, can rely on them too.
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Overall, the Modified Guidelines are unquestionably an improvement over the status quo. In particular, the addition of a Civilian Representative to the process for approving investigations and explicit protections for religious activity are meaningful, hard-won reforms with the potential to curb the kind of systemic surveillance abuses that defined the NYPD’s Muslim surveillance program. At the same time, the new rules are not a panacea but rather a platform for further oversight.