Column: ‘Kelly vs. Mukasey’ Letter Exchange: NYPD Surveillance Run Amok? (New York Law Journal)

by Christopher Dunn — Troubling questions about unlawful police surveillance surfaced late last month in an extraordinary exchange of letters between New York City Police Department Commissioner Raymond Kelly and U.S. Attorney General (and former Southern District judge) Michael Mukasey.

That exchange, which addressed NYPD applications for court orders authorizing domestic surveillance under the Foreign Intelligence Surveillance Act (FISA), lends considerable support to concerns that the NYPD under Commissioner Kelly has been willing to engage in surveillance with little regard for legal limits.

(The NYCLU has been heavily involved in litigation and advocacy issues regarding surveillance by the NYPD and was co-counsel in Handschu and counsel in litigation arising from the 2004 Republican National Convention.)

An FISA Primer

Police surveillance of domestic political activity became a major controversy in the late 1960s and early 1970s. In the context of that controversy, the U.S. Supreme Court ruled in 1972 in United States v. U.S. District Court that national-security concerns do not create a Fourth Amendment exception under which the Executive Branch may conduct electronic surveillance of Americans in the United States without first obtaining a judicial warrant.

Six years later, after extensive examination of the issue, Congress enacted the Foreign Intelligence Surveillance Act, which authorized certain domestic surveillance in circumstances beyond traditional investigations into suspected crimes. The statute has many provisions and has been amended on several occasions, but boiled down to its essence, it allows the government to conduct electronic surveillance of “a foreign power or an agent of a foreign power” in order to obtain “foreign intelligence information.” An “agent of a foreign power” includes American citizens who engage in certain acts implicating national security, though they cannot be treated as such “solely upon the basis of activities protected by the First Amendment to the Constitution of the United States”; “foreign intelligence information” encompasses a broad range of information relating to national security.

Thus, FISA authorizes the government, among other things, to engage in electronic surveillance of American citizens in the United States even though probable cause does not exist to believe they are involved in criminal activity.

To conduct FISA surveillance, the government must seek and obtain authorization from a court created by FISA, the special Foreign Intelligence Surveillance Court (FISC). Though FISC applications may pertain to electronic surveillance to be undertaken by local law-enforcement agencies (like the NYPD), all applications must be submitted by a federal official and approved by the attorney general. And in authorizing surveillance the FISC must find that “probable cause” exists on two points:

• that “the target of the electronic surveillance is a foreign power or an agent of a foreign power” and
• that “each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.”

Thus, the NYPD, as a local law-enforcement agency, can conduct electronic surveillance under FISA of American citizens who are not suspected of criminal activity. To obtain FISC authorization, however, the agency must go through the Justice Department and obtain the attorney general’s approval, a process that has all NYPD applications being routed through the Federal Bureau of Investigation (FBI). It is this arrangement, under which the Justice Department and FBI control NYPD access to authorization for FISA surveillance, that gave rise to the recent exchange between Commissioner Kelly and Attorney General Mukasey.

NYPD Surveillance

A full appreciation of the significance of that exchange first requires an understanding of modern NYPD surveillance practices and their attendant controversies. The department was caught in a surveillance scandal in the late 1960s, which resulted in a 1971 lawsuit filed in the U.S. District Court for the Southern District of New York alleging that NYPD officers engaged in a wide range of unlawful treatment of political activists, including electronic surveillance. After Judge Edward Weinfeld denied a motion to dismiss in Handschu v. Special Services Division, the NYPD entered into a 1985 consent decree that regulated NYPD surveillance of First Amendment activity. Though periodic disputes arose under the decree, it was not a source of significant attention until the terrorist attacks of 9/11.

Mr. Kelly, who had served as the police commissioner under Mayor David Dinkins but whom Rudolph Giuliani did not reappoint when he became mayor in 1993, was appointed to his second term as commissioner early in 2002. In the aftermath of 9/11, he has transformed the NYPD, which is the largest local law-enforcement agency in the country, from a conventional crime-fighting organization into a counter-terrorism agency that relies substantially on intelligence gathering. Reflecting this fundamental shift, the department’s Intelligence Division has grown enormously, has stationed officers in cities outside the United States, and is headed by longtime CIA official David Cohen.

As part of its effort to bolster its surveillance capacity, the NYPD sought to eliminate the Handschu restrictions in September 2002, expressly invoking 9/11 as a justification for doing so. Shortly after Judge Charles Haight in February 2003 granted the NYPD much of the relief it sought, however, the department was ensnared in a new controversy when two months later it surfaced that Intelligence Division officers had been interrogating persons arrested at recent antiwar demonstrations about their political affiliations and activities and were entering that information into a database. Judge Haight then rescinded some of the Handschu modifications he had ordered, which in turn spawned more motion practice that remains ongoing to this day.

Meanwhile, in the summer of 2003 the Intelligence Division launched a nationwide surveillance operation of groups planning to engage in protests at the 2004 Republican National Convention. That operation surfaced only last year, shortly after New York City disclosed that it intended to rely on intelligence information and on testimony from Mr. Cohen to justify the NYPD’s harsh treatment of convention protesters who had sued in the Southern District. As a result, the operation has become a centerpiece in the convention litigation, with the NYPD vigorously resisting orders that it produce undercover reports produced during the operation.

One notable feature of the NYPD’s surveillance operation, as Mr. Cohen explained in a deposition, was that the department did not even notify the FBI of its nationwide program, an omission that reflects Mr. Cohen’s disdain for the agency and the NYPD’s commitment to developing its own proprietary domestic counterterrorism intelligence program.

An Acrimonious Exchange

Against this backdrop comes the correspondence between Commissioner Kelly and Attorney General Mukasey. Commissioner Kelly kicked off the exchange with an Oct. 27, 2008 letter that on its very first page accuses the Justice Department – with language seemingly written for public release – of hindering investigations of “high priority subjects of international terrorism investigations in the greater New York area.” Moreover, he charges, “the federal government is doing less than it is lawfully entitled to do to protect New York City, and the City is less safe as a result.”

To back up this allegation, Commissioner Kelly accuses the Justice Department and FBI of a range of inappropriate actions. Most significantly from a legal perspective, he contends they were using “inappropriately high standards of probable cause” when evaluating NYPD applications for FISA surveillance of American citizens, a contention that relied on two points.

• First, Commissioner Kelly’s letter invokes the Supreme Court’s decision in Gates v. Illinois, in which the Court loosened Fourth Amendment protections by adopting a “totality of the circumstances” test in assessing probable cause for search warrants and by ruling that a court could find probable cause to issue a warrant if, under all the circumstances, there is a “fair probability” the search would find contraband or evidence of a crime. According to the commissioner, “The practice of not exercising the greater latitude allowable under the law leaves untold quantities of potentially valuable counterterrorism intelligence uncollected by federal authorities.”
• Next, Commissioner Kelly asserts that the Justice Department is improperly refusing to present applications to the FISC, not because of a lack of probable cause, “but instead from a concern for the reputation and credibility of Administration attorneys and affiants before the Court.” In “close cases,” Commissioner Kelly argues, the Justice Department should submit the application, force the court to rule, and then pursue appeals for rejected applications, therefore developing case law that will “define and clarify the relevant legal standard in FISA cases as occurred in Gates with respect to ordinary search warrants.” In closing, Commissioner Kelly asserts that the Justice Department should process FISA applications “without self-imposed restraint.”

Four days later Attorney General Mukasey sent a blistering response. In the very first paragraph of his Oct. 31 letter to Commissioner Kelly, the attorney general charges, “In effect, what you ask is that we disregard FISA’s legal requirements, which are rooted in the Constitution. Not only would your approach violate the law, it would also in short order make New York City and the rest of the country less safe.”

On the specific topic of probable cause, the attorney general rejected the notion that he was using something more rigorous than the “fair probability” standard of Gates. Rather, he charged that the NYPD sought to conduct surveillance when probable cause did not exist and suggested the police department was submitting inaccurate information in support of those requests: “Only after FBI and DOJ review of NYPD requests did we determine that there was not probable cause to justify surveillance for certain . . . facilities . . . . If we had accepted NYPD’s representations at face value, as your senior officials suggest, the FBI would have sought to direct surveillance at facilities that did not meet the statutory standard.”

The attorney general’s response to the suggestion that the Justice Department should be more aggressive in submitting applications to the FISC for review was equally aggressive: “If we were to adopt the NYPD approach and routinely submit cases lacking probable cause, the Court would rightly doubt our credibility and our judgment. It does not take a former judge to conclude that if the Court became suspicious of the good faith of our submissions, it would cease to give the government the benefit of the doubt in close cases, to the detriment of New York and the entire country.” As for the idea of pushing applications to develop case law at the appellate level, the attorney general dismissed it as “to be kind, impractical” and asserted that FISA’s probable cause standard “has been well-tested through the appellate process.”

Ominous Signs

Given the Bush administration’s expansive view of executive authority when it comes to national-security threats in general and to warrantless surveillance in particular, this exchange has an Alice-in-Wonderland quality. Beyond that, however, the exchange is troubling because of what it suggests about the NYPD’s approach to the Constitution and about the agency’s surveillance activities.

Commissioner Kelly’s letter indicates the NYPD believes that it and other executive agencies have little or no responsibility for screening surveillance requests to assure their constitutionality and that they should not restrain themselves unless and until an appellate court declares the surveillance unlawful. Such an approach ignores the fact that executive officials have an independent sworn duty to uphold the Constitution and leaves the appellate courts as the sole barrier to unlawful acts. And even the integrity of the judicial process is in question in light of the attorney general’s apparent suggestion that the NYPD had submitted inaccurate information in support of FISA applications.

Equally alarming is what Attorney General Mukasey’s letter suggests about the possible scope of current and future NYPD surveillance. His charge that the department had sought to conduct electronic surveillance where no legal justification existed indicates the department has an extraordinarily broad view of permissible surveillance. Such an approach, combined with the NYPD’s view of its minimal role in assessing the lawfulness of its surveillance activities, its aversion to working with the FBI, and its history of surveillance excesses, leaves one to wonder about the extent to which the department is engaging in domestic electronic surveillance entirely outside of the FISA process and without the knowledge of federal authorities.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union, which was involved in the matter discussed in this article.