Police Surveillance of Political Activity -- The History and Current State of the Handschu Decree. Testimony Of Arthur N. Eisenberg presented To The New York Advisory Committee To The U.S. Commission On Civil Rights
Striking the appropriate balance between civil liberties and security interests is a vitally important issue these days. I, therefore, want to thank the New York Advisory Committee for holding these hearings and for providing the opportunity to explore this critical balance. My particular focus this afternoon will be on the Handschu litigation -- the lawsuit that attempted to redress an historic pattern of police surveillance, infiltration, disruption and suppression of political expression and association in New York City. Specifically, I will first address, in brief compass, the patterns of abuse, both nationally and more particularly in New York City, that gave rise to the need for the Handschu litigation. I will then describe the broad contours of the Consent Decree1 that emerged from the litigation, a Decree that was ultimately approved by the Court in 1985. I will then address the request by the New York City Police Department to modify the Decree in the wake of the events of September 11; the decision of the federal Court on February 11, 2003, in response to the City’s request; and the most recent revelations regarding Police Department practices that have prompted a request for reconsideration of aspects of the February 13 decision. Each of these matters will be discussed, in turn.
It has often been observed that times of deep national anxiety and insecurity provoke measures and behavior that operate to repress political dissent and that function, by some combination of fear, force of law, and social compulsion to impose a regime of political orthodoxy.2 Historical evidence supports the claim that one of the vehicles for such repression has been the use of police officials to monitor, infiltrate and disrupt political organizations and to maintain dossiers on political activists and others who are somehow regarded as “un-American” and “subversive.” Frank Donner in his book, Protectors of Privilege, Red Squads and Police Repression in Urban America (1990) dates such police practices back to the Haymarket bombing of 1886. Donner offers the following description of the effect of the Haymarket event on popular attitudes and on the perceptions of policing authorities:
“The Haymarket bomb was responsible for the first major red scare in American history, and led to the immediate popular condemnation of Socialism, Communism and Anarchism by the national press and opinion leaders. In addition, the bomb resulted in the establishment of the first sustained American police intelligence operation aimed at leftist groups. Two years after the Haymarket riot the Chicago police declared that they had learned an invaluable lesson in 1886, that ‘the revolutionary movement must be carefully observed and crushed if it showed signs of growth.’”
The Haymarket event was both provocative and symptomatic of the political ferment of the 1880s and 1890s. And this event was followed by others, in relatively rapid succession and in ways that perpetuated aggressive policing and surveillance of political activists. According to Donner, the list of such events included the shock of the Russian Revolution, domestic anxieties created by World War I and its immediate aftermath, the political ferment spawned by the Great Depression, the international polarization of the cold war and, finally, the civil rights, woman’s rights and anti-war protests of the sixties and seventies.
In the pursuit of “subversives” and “agitators”, non-citizens – as the most vulnerable members of our political community – were often the targets of particular scrutiny. Thus, former New York City Police Commissioner Patrick Murphy traced the origins of New York City police surveillance activities to an “Italian Squad” which sought, as early as 1904, to monitor the activities of a group of Italian immigrants.
But, the principal focus of the New York City police during the first two decades of the Twentieth Century was directed more generally at left-wing political activists and labor leaders. Donner reports that “[i]n 1906, an Anarchist Squad was formally constituted focusing on harassing and arresting anarchists on pretexts … and blocking the distribution of the anarchist journal Mother Earth.” Donner further notes that “this period was also marked by continuing intervention on the side of employers in labor disputes – not only through harassment of strikers and picketers, but in the arrest and station-house beatings of strike leaders”
In 1914, the NYPD created a new unit called “the Bomb Squad” which “[b]y the end of 1914, boasted an undercover detail, some of whom were assigned to infiltrate anarchist circles ….” This new unit was also called upon, during the succeeding years, to work with a State legislative committee which was then under the leadership and direction of State Senator Clayton R. Lusk and which was conducting an investigation into what were described as the “enemies of government.” At the close of World War I, the Bomb Squad continued, however, to conduct surveillance of political groups and Donner contends that “pressure from superpatriots triggered a series of police raids, illegal searches and seizures, groundless arrests, disruption of meetings protesting police repression, and confiscation of radical literature that made 1919 the most repressive year in the Bomb Squad’s history.”
In the period immediately following World War I, immigrants and non-citizens were the particular targets of aggressive policing. At the national level, under the direction of Attorney General A. Mitchell Palmer and J. Edgar Hoover, director of the Justice Department’s alien radical division, federal agencies devised a plan to use “sudden and simultaneous dragnet raids, secret testimony of undercover informants, seizure of organization correspondence and lists as well as membership cards … examination of aliens without interference of defense lawyers, and detention of radicals in isolation under high bail or none at all.” And as, historian William Preston has recounted:
“[O]n January 2 and 6, 1920, Department of Justice agents carried out [a] ‘dragnet inquiry’ in a series of nationwide raids on the Communist and Communist Labor Party organizations. The net was so wide and bureau detectives were so careless that some ten thousand persons were arrested including many individuals not members of either party. Abuse of due process characterized the early stages of the drive. This ill-treatment proceeded from the official decision to protect undercover informers. Indiscriminate arrests of the innocent with the guilty, unlawful searches and seizures by federal detectives, intimidating preliminary interrogations of aliens held incommunicado, high-handed levying of excessive bail, and denial of counsel were the government’s response to stiffening alien radical resistance to deportation.|
In New York City, the NYPD’s “Bomb Squad” followed a similar pattern. During the summer of 1919 it continued to work with both the Lusk Committee and federal authorities in undertaking a series of raids on political organizations. Thus, in November, 1919, for example, “[a] huge detachment of seven hundred [officers] (including police in uniform and plainclothes and red squad operatives) descended on seventy-three branches of the newly formed Communist Party and the premises of fifty radical publications, confiscating tons of documents and making almost a thousand arrests, though only twelve convictions, and a few deportations were finally obtained.” Donner reports that, “[t]he red scare persisted in New York into the early twenties – long after it subsided in the rest of the country. But according to Donner, “the years from 1922 to 1929 were quiet ones except for occasional police interference with protest meetings near proscribed sites (embassies, City Hall, Wall Street and the like) or dealing with banned issues (birth control) or to quell disorders caused by clashes between rival leftist groups.
However, the economic dislocation caused by the Great Depression provoked renewed political activism and in response to such activism, the New York City Bomb Squad was reconstituted as the New York Radical Bureau. During the early years of the 1930s the Radical Bureau created a large undercover network that “was responsible for the compilation of dossiers on Communist Party leaders, members and supporters both in New York City and elsewhere.” By the mid-thirties, aggressive police tactics subsided although, as Donner notes, “undercover surveillance of far-left targets continued.”
This period of reduced activities by the NYPD continued until the 1960’s. Anthony Bouza, in his analysis of New York City’s police surveillance practices, has observed:
“The fifties were a quiescent time, even though former undercover agents were testifying before government committees and exposing Communists well into the sixties. There was little activity in New York of a threatening nature and [the] Bureau of Special Services [as the Radical Bureau was then called] settled into a kind of rut of inactivity and disuse. The increasing interest and involvement of the Federal Bureau of Investigation in the espionage area and in the Communist field served to restrict the operations of the Bureau of Special Services.”
But, the renewed political energy and activity of the 1960’s served as a catalyst for the renewed activity of the police intelligence unit in New York City. Accordingly, “[d]uring the sixties, the unit launched a yearly average of one thousand intensive political investigations of dissident groups and individuals and about six hundred lesser probes.” The targets of such police investigations included the NAACP, the ACLU, CORE, the Fifth Avenue Peace Parade Committee, and the Lower East Side Mobilization for Peace Action. Such investigations, at times, involved the use of undercover agents to infiltrate the organizations. And these agents were required to prepare written reports on forms requiring specific information on “Future Plans, Unlawful Activities, Trouble Makers, Leaflets, Weapons, Speakers, Statements.” According to Donner, police officials “boasted that by the time a subject was twenty years old, [the Bureau of Special Services (BOSS)] could readily assemble a dossier of over sixty items relating to his or her personal history: criminal records, passport stamps, medical records, and related matters.” Moreover, the data collected by BOSS was voluminous. Again, according to Donner, “[b]y 1968 the BOSS master index had well over a million entries. In February 1973 a publicly announced purge of BOSS’s records resulted in the deletion of 980,000 names of individuals from the intelligence index (reduced from 1,220,000 to 240,000) and a reduction of organizational listings to 25,000 from 125,000. In addition, file folders on individuals were reduced to 2500 from 3500 and on organizations to 200 from 1500.”
But, the NYPD did not simply maintain these extensive files in its offices. It shared the information in these files with licensing agencies including bar admissions committees, which used such information to evaluate the politics of those seeking government licensure. Thus, for example in 1970, an applicant for admission to the bar was “questioned extensively about his membership in an antiwar organization.” And when the applicant asked the bar committee to identify the source of such associational information, the committee “referred to a report from ‘Police Department, Special Services.’” Police intelligence files were also shared with various government employers at the city, state and federal level. Moreover, such information also found its way into the hands of private investigators and employers in the private sector and were used to damage reputations and deny employment in the private sector as well.
Finally, as political ferment grew in the late 1960’s, New York City’s intelligence unit expanded beyond infiltrating organizations and gathering information. As reported by Donner, informants and infiltrators were used as agents provocateurs to disrupt the activities of political organizations and to facilitate the arrests of organizational activists.
It was against this background that the Handschu case was filed as a class action in 1971. The suit was directed at the City of New York, its Police Commissioner and the Intelligence Division of the New York City Police Department (NYPD). The representative plaintiffs consisted of sixteen individuals affiliated with various ideological associations and organizations. In the suit, plaintiffs contended that “informers and infiltrators provoked, solicited and induced members of lawful political and social groups to engage in unlawful activities”; that files were maintained with respect to “persons, places, and activities entirely unrelated to legitimate law enforcement purposes, such as those attending meetings of lawful organizations”; and that information from these files was made available to academic officials, prospective employers, and licensing agencies and others. In addition, plaintiffs identified seven specific forms of police conduct: (1) the use of informers; (2) infiltration; (3) interrogation; (4) overt surveillance; (5) summary punishment; (6) intelligence gathering; and (7) electronic surveillance. The complaint alleged, inter alia, that these police practices had had a “chilling effect” upon the exercise of freedom of speech, assembly and association; that they also violated constitutional prohibitions against unreasonable searches and seizures; and that they abridged rights of privacy and due process. The suit requested declaratory and injunctive relief to curtail these practices.
Subsequent to the filing of the Handschu lawsuit, the Church Committee issued its report, Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, U.S. Senate Rep. 94-755 (1976). The Church Report identified abuses committed by federal agencies that were comparable to those described in the Handschu complaint. The Church Report reinforced appropriate concerns about police surveillance of political groups in ways that overstep legitimate law enforcement needs and that chill and punish advocacy and association. The revelations of the Church Report demonstrated that the history of such abuse was too systemic and widespread to be regarded merely as episodic and as the unintentional consequence of occasional overzealousness. Rather, the revelations of the Church Report demonstrated that substantive and procedural limitations had to be put in place in order to guard against future abuse.
Plaintiffs’ claims were resolved and the Handschu case was ultimately settled in a Consent Decree entered in 1985. By its terms, the Decree imposed both substantive and procedural requirements in its efforts to prevent the sorts of abuse discussed above and identified in the Handschu Complaint.
As a substantive matter, the Decree prohibited the NYPD from engaging “in any investigation of political activity except through the … Intelligence Division [of the Police Department] and it required that any “such investigations shall be conducted” only in accordance with the Guidelines incorporated into the Decree. The Guidelines further prohibited the Intelligence Division from “commencing an investigation” into the political, ideological or religious activities of an individual or group unless “specific information has been received by the Police Department that a person or group engaged in political activity is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime….”
The Decree also imposed various procedural limitations as a check against abuse and as a vehicle for maintaining a “paper trail” in the event that violations of the Guidelines were to arise. In this regard, the Guidelines established an entity which became known as the Handschu Authority. The Authority was to consist of two police officials and a person from outside the Police Department and appointed by the Mayor.
The Guidelines further required that an investigation statement had to be filed with the Authority in connection with any investigation of a political organization based upon specific information that a crime has been committed or was threatened. This investigation statement was to be filed within 48 hours after the beginning of an investigation and the investigation was, under the Guidelines, permitted to continue for thirty days. After thirty days, the Guidelines required that a written request be submitted to the Authority and the Authority was permitted to grant additional sixty-day extensions of time to conduct such investigations.
The Guidelines also permitted the use of undercover personnel only with the approval of the Authority. And the Guidelines authorized the Authority to investigate any alleged violation of the Decree and if it found a violation it was required to report such violation to the Police Commissioner who was required to “initiate disciplinary measures as appropriate.”
In September, 2002, the NYPD moved to modify the 1985 Consent Decree in the Handschu case. Although denominated as a motion to modify the Decree, the City actually attempted to eviscerate the Decree. The City’s moving papers requested the deletion of all substantive and procedural standards and would have allowed the Handschu Authority to exist with only a narrow aspect of its former responsibilities. The City justified this request upon the claim that the original Decree would “limit the effective investigation of terrorism and prevent cooperation with federal and state law enforcement agencies in the development of intelligence.”
In opposition to the NYPD request, counsel for the plaintiff class properly acknowledged that the events of September 11 made more apparent than before the risks posed by terrorism. But, class counsel also correctly observed that, in seeking to eviscerate the 1985 Decree, the NYPD had not presented any concrete examples that the Handschu Decree had actually interfered with law enforcement investigations into terrorism. Class counsel also noted that acts of terrorism constitute criminal conduct that are proscribed by criminal laws; and that the Handschu Decree, in fact, permitted investigations when there was evidence that a crime had been committed or was about to be committed. As plaintiffs’ counsel argued, the 1985 Guidelines “do not prevent the investigation of organizations or persons when crime is suspected, nor do they prevent sharing information with law enforcement agencies.”
In a decision issued on February 11, 2003, Senior United States District Judge Charles S. Haight Jr. held that the NYPD should be permitted to modify the 1985 Decree, but not to the extent originally requested by the City. Instead of leaving the NYPD officers free to investigate, infiltrate and maintain dossiers on political or religious organizations in the uncabined exercise of their discretion, Judge Haight directed the City officials to adapt to the circumstances of the NYPD, the U.S. Attorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations, issued by Attorney General Ashcroft in May, 2002. Judge Haight further directed that the adapted Guidelines should be included in the NYPD Patrol Guide. And the Court approved a modification of the 1985 Decree upon compliance with these directives.
As Judge Haight observed, “[t]he FBI Guidelines provide for three graduated levels of investigative activity: (1) checking initial leads [is authorized in circumstances when] information is received of such a nature that some follow-up as to the possibility of criminal activity is warranted; (2) a preliminary inquiry [is] authorized when there is information or an allegation which indicates the possibility of criminal activity and whose responsible handling requires some further scrutiny beyond checking initial leads; and (3) a full investigation [is] authorized when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed.”
In essence, with respect to the substantive standards for conducting an investigation of political groups, the FBI Guidelines differ from the Guidelines of the 1985 Handschu Decree in the following respect: Under the 1985 Decree, such an investigation could be initiated only if there was “specific information” that a “crime had been or was about to be committed”; under the FBI Guidelines, a preliminary inquiry, at least, could be initiated when there is “information … which indicates the possibility of criminal activity.”
Seen in these terms, the adaptation of the FBI Guidelines, as approved by Judge Haight, has diminished the substantive threshold for investigating political groups. This depreciation of the standard runs the risk of re-opening the door to the sorts of abuses that gave rise to the need for the Handschu case. But, the real consequences of this change will be seen over time. Moreover, many of the specific procedural requirements imposed by the 1985 Decree have been removed. In their place, however, other procedural requirements have been substituted. Thus, the new Guidelines do provide that a preliminary inquiry must be authorized by the commanding officer of the criminal intelligence section with notification for final approval by the Deputy Commissioner of Intelligence. Section V (B) (3). And, in a procedure similar to that imposed by the 1985 Guidelines, the use of undercover officers must be approved by the Deputy Commissioner of the Intelligence Division prior to the commencement of the undercover operation. Section VI (3) (A). The difference between the two Guidelines is, of course, that under the earlier scheme approval had to be secured by a quasi-independent entity, the Handschu Authority; under the new scheme the approval mechanism remains within the Intelligence Division. Whether this proves to be a consequential change also remains to be seen.
But, the most important question posed by Judge Haight’s decision of February 11 is whether the new Guidelines will have teeth; whether they will command the force of law; or whether they will simply be precatory. Judge Haight’s decision remains ambiguous with respect to the manner in which the modified Decree is to be enforced. The 1985 Guidelines were incorporated into the Decree and were therefore enforceable as elements of the Decree. The new Guidelines, however, have been adopted as part of the NYPD Patrol Guide but have not formally been incorporated in the Decree. Moreover, the new Guidelines contain the following disclaimer:
“These guidelines are set forth solely for the purpose of internal NYPD guidance. They are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal, nor do they place any limitation on otherwise lawful investigative and litigative prerogatives of the NYPD or the City of New York.”
This disclaimer creates further uncertainty as to the circumstances under which the Handschu
Decree can now be enforced. Clarification of this matter is important, as recent events have shown.
No sooner had Judge Haight issued his decision of February 11, 2003 than NYPD officials dishonored that decision and engaged in conduct that violated both the 1985 Handschu Guidelines as well as the new FBI-like Guidelines. On February 15, 2003, a major political assembly took place on the East Side of Manhattan to protest the then-anticipated war against Iraq. It is estimated that the political rally attracted in excess of 100,000 people. Unfortunately, many of the people seeking to attend the rally on First Avenue were prevented from doing so, in large measure, because of rigid and inflexible policing measures employed by the NYPD that day. The crowd control problems that were created, in large measure, by the policing practices that day created and compounded frustrations on the part of many who felt thwarted in their efforts to participate in the anti-war events taking place on First Avenue. Such problems and frustrations lead to approximately 350 arrests that day.
Many of those who were arrested – mostly for disorderly conduct – were taken down to Police Headquarters. And while lawyers waited outside of police headquarters unable to enter the building to meet with their clients, many of those arrested were being interrogated about their political activities. As part of this interrogation, NYPD officers employed a “Demonstration Debriefing Form” which asked, among other things, about the organizational affiliation of those arrested, the schools that they attended and any “prior demonstration history.”
These interrogations and the use of the “Demonstration Debriefing Form” violated both the old Handschu Guidelines and the new ones. As noted most of those arrested on February 15 were charged with disorderly conduct yet one’s political affiliation is entirely irrelevant to the accusation of disorderly conduct. Consequently, the inquiries, by police officials, into these matters could not be justified as related to the prosecution of the crimes for which the individuals were arrested. And City officials have not claimed and cannot claim that such inquiries were justified by an investigation of some other crimes or even “the possibility” of other crimes.
Rather, these interrogations suggest a return to familiar patter of information gathering in which those who engage in political protest and dissent are to be made the subject of political dossiers. The Handschu case had been brought to end such practices. In order to fulfill the promise of Handschu it is necessary to incorporate the new Guidelines into the Decree in order to give those Guidelines the force of law. A motion seeking to accomplish precisely that is now pending before the District Court.
The events of September 11 have scarred our national psyche and have created a mood of deep national anxiety. But, as noted earlier, this is not the first time in our Nation’s history when fear of conspiracy and fear of terrorism has provoked governmental measures designed to ensure security at a serious cost to our fundamental freedoms. In response to a California measure adopted during the “Red Scare” that followed World War I, Justice Brandeis observed that “liberty [is] the secret of happiness and [that] courage [is] the secret of liberty”. Accordingly, he warned that safety and order “cannot be secured merely through fear of punishment….that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, (the framers of our Constitution) eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
The 1985 Handschu Decree was designed to protect those basic rights of free speech and assembly. And if Justice Brandeis was right, in order to preserve those important constitutional values we must have the courage to speak out in the face of fear and repression. I thank this committee for providing such an opportunity this day.