Growing concern over the NYPD's counterterrorism methodsThere is always an uneasy equilibrium between security and civil rights, and while the balance tilted toward security in the immediate aftermath of 9/11, it now appears to be shifting back
By Scott Stewart
In response to the 9/11 attacks, the New York Police Department (NYPD) established its own Counter-Terrorism Bureau and revamped its Intelligence Division. Since that time, its methods have gone largely unchallenged and have been generally popular with New Yorkers, who expect the department to take measures to prevent future attacks.
Preventing terrorist attacks requires a very different operational model than arresting individuals responsible for such attacks, and the NYPD has served as a leader in developing new, proactive approaches to police counterterrorism.
However, it has been more than 10 years since the 9/11 attacks, and the NYPD is now facing growing concern over its counterterrorism activities. There is always an uneasy equilibrium between security and civil rights, and while the balance tilted toward security in the immediate aftermath of 9/11, it now appears to be shifting back.
This shift provides an opportunity to examine the NYPD's activities, the pressure being brought against the department and the type of official oversight that might be imposed.
Reports that the NYPD's Intelligence Division and Counter-Terrorism Bureau engage in aggressive, proactive operations are nothing new. STRATFOR has written about them since 2004, and several books have been published on the topic. Indeed, police agencies from all over the world travel to New York to study the NYPD's approach, which seems to have been quite effective.
Criticism of the department's activities is nothing new, either. Civil liberties groups have expressed concern over security methods instituted after 9/11, and Leonard Levitt, who writes a column on New York police activities for the website NYPD Confidential, has long been critical of the NYPD and its commissioner, Ray Kelly. Associated Press reporters Adam Goldman and Matt Apuzzo have written a series of investigative reports that began on Aug. 24 detailing "covert" NYPD activities, such as mapping the Muslim areas of New York. This was followed by the Aug. 31 publication of what appears to be a leaked NYPD PowerPoint presentation detailing the activities of the Intelligence Division's Demographics Unit.
In the wake of these reports, criticism of the NYPD's program has reached a new level. Members of the New York City Council expressed concern that their constituents were being unjustly monitored. Six New York state senators asked the state attorney general to investigate the possibility of "unlawful covert surveillance operations of the Muslim community." A group of civil rights lawyers also asked a U.S. district judge in Manhattan to force the NYPD to publicize any records of such a program and to issue a court order to prevent their destruction. In response to the AP investigation, two members of Congress, Reps. Yvette Clarke, D-N.Y., and Rush Holt, D-N.J., asked the Justice Department to investigate. The heat is on.
After an Oct. 7 hearing regarding NYPD intelligence and counterterrorism operations, New York City Council Public Safety Committee Chairman Peter Vallone said, "That portion of the police department's work should probably be looked at by a federal monitor."
Following Vallone's statement, media reports cited Congressional and Obama administration officials saying they have no authority to monitor the NYPD.
While Vallone claims the City Council does not have the expertise to oversee the department's operations, and the federal government says that it lacks the jurisdiction, it is almost certain that the NYPD will eventually face some sort of new oversight mechanisms and judicial review of its counterterrorism activities.
New York City and the Terrorist Threat
While 9/11 had a profound effect on the world and on U.S. foreign policy, it had an overwhelming effect on New York City itself. New Yorkers were willing to do whatever it took to make sure such an attack did not happen again, and when Kelly was appointed police commissioner in 2002, he proclaimed this as his primary duty (his critics attributed the focus to ego and hubris). This meant revamping counterterrorism and moving to an intelligence-based model of prevention rather than one based on prosecution.
The NYPD's Intelligence Division, which existed prior to 9/11, was known mainly for driving VIPs around New York, one of the most popular destinations for foreign dignitaries and one that becomes very busy during the U.N. General Assembly. Before 9/11, the NYPD also faced certain restrictions contained in a 1985 court order known as the Handschu guidelines, which required the department to submit "specific information" on criminal activity to a panel for approval to monitor any kind of political activity. The Intelligence Division had a very limited mandate. When David Cohen, a former CIA analyst, was brought in to run the division, he went to U.S. District Court in Manhattan to get the guidelines modified. Judge Charles Haight modified them twice in 2002 and 2003, and he could very well review them again. His previous modifications allowed the NYPD Intelligence Division to proactively monitor public activity and look for indications of terrorist or criminal activity without waiting for approval from a review panel.
The Counter-Terrorism Bureau was founded in 2002 with analytical and collection responsibilities similar to those of the Intelligence Division but involving the training, coordination and response of police units. Differences between the two units are mainly bureaucratic and they work closely together.
As the capabilities of the NYPD's Intelligence Division and Counter-Terrorism Bureau developed, both faced the challenges of any new or revamped intelligence organization. Their officers learned the trade by taking on new monitoring responsibilities, investigating plots and analyzing intelligence from plots in other parts of the United States and abroad. One of their biggest challenges was the lack of access to information from the federal government and other police departments around the United States. The NYPD also believed that the federal government could not protect New York. The most high-profile city in the world for finance, tourism and now terrorism, among other things, decided that it had to protect itself.
The NYPD set about trying to detect plots within New York as they developed, getting information on terrorist tactics and understanding and even deterring plots developing outside the city. In addition to the challenges it also had some key advantages, including a wealth of ethnic backgrounds and language skills to draw on, the budget and drive to develop liaison channels and the agility that comes with being relatively small, which allowed it to adapt to changing threat environments. The department was creating new organizational structures with specific missions and targeted at specific threats. Unlike federal agencies, it had no local competitors, and its large municipal budget was augmented by federal funding that has yet to face cyclical security budget challenges.
Looking for Plots
STRATFOR first wrote about the NYPD's new proactive approach to counterterrorism in 2004. The NYPD's focus moved from waiting for an attack to happen and then allowing police and prosecutors to "make the big case" to preventing and disrupting plots long before an attack could occur. This approach often means that operatives plotting attacks are charged with much lower charges than terrorism or homicide, such as document fraud or conspiracy to acquire explosives.
The process of looking for signs of a terrorist plot is not difficult to explain conceptually, but actually preventing an attack is extremely difficult, especially when the investigative agency is trying to balance security and civil liberties. It helps when plotters expose themselves prior to their attack and ordinary citizens are mindful of suspicious behavior. Grassroots defenders, as we call them, can look for signs of pre-operational surveillance, weapons purchasing and bombmaking, and even the expressed intent to conduct an attack. Such activities are seemingly innocuous and often legal — taking photos at a tourist site, purchasing nail-polish remover, exercising the right of free speech — but sometimes these activities are carried out with the purpose of doing harm. The NYPD must figure out how to separate the innocent act from the threatening act, and this requires actionable intelligence.
It is for this reason that the NYPD's Demographics Unit, which is now apparently called the Zone Assessment Unit, has been carrying out open observation in neighborhoods throughout New York. Understanding local dynamics, down to the block-by-block level, provides the context for any threat reporting and intelligence that the NYPD receives. Also shaping perceptions are the thousands of calls to 911 and 1-888-NYC-SAFE that come in every day, partly due to the city's "If you see something, say something" campaign. This input, along with observations by so-called rakers (undercover police officers) allows NYPD analysts to "connect the dots" and detect plots before an attack occurs. According to the AP reports, these rakers, who go to different neighborhoods, observe and interact with residents and look for signs of criminal or terrorist activity, have been primarily targeting Muslim neighborhoods.
These undercover officers make the same observations that any citizen can make in places where there is no reasonable expectation of privacy. Indeed, law enforcement officers from the local to the federal level across the country have been doing this for a long time, looking for indicators of criminal activity in business, religious and public settings without presuming guilt.
Long before the NYPD began looking for jihadists, local police have used the same methods to look for mafia activity in Italian neighborhoods, neo-Nazis at gun shows and music concerts, Crips in black neighborhoods and MS-13 members in Latino neighborhoods. Law enforcement infiltration into white hate groups has disrupted much of this movement in the United States. Location is a factor in any counterterrorism effort because certain targeted groups tend to congregate in certain places, but placing too much emphasis on classifications of people can lead to dangerous generalizations, which is why STRATFOR often writes about looking for the "how" rather than the "who."
Understanding New Threats and Tactics
As the NYPD saw it, the department needed tactical information as soon as possible so it could change the threat posture. The department's greatest fear was that a coordinated attack would occur on cities throughout the world and police in New York would not be ramped up in time to prevent or mitigate it. For example, an attack on transit networks in Europe at rush hour could be followed by an attack a few hours later in New York, when New Yorkers were on their way to work. This fear was almost realized with the 2004 train attacks in Madrid.
Within hours of the attacks, NYPD officers were in Madrid reporting back to New York, but the NYPD claims the report they received from the FBI came 18 months later. There was likely some intelligence sharing prior to this report, but the perceived lack of federal responsiveness explains why the NYPD has embarked on its independent, proactive mission.
NYPD officers reportedly are located in 11 cities around the world, and in addition to facilitating a more rapid exchange of intelligence and insight, these overseas operatives are also charged with developing liaison relationships with other police forces. And instead of being based in the U.S. Embassy like the FBI's legal attache, they work on the ground and in the offices of the local police. The NYPD believes this helps the department better protect New York City, and it is willing to risk the ire of and turf wars with other U.S. agencies such as the FBI, which has a broader mandate to operate abroad.
Managing Oversight and Other Challenges
The New York City Council does not have the same authority to conduct classified hearings that the U.S. Congress does when it oversees national intelligence activity. And the federal government has limited legal authority at the local level. What Public Safety Committee Chairman Vallone and federal government sources are implying is that they are not willing to take on oversight responsibilities in New York. In other words, while there are concerns about the NYPD's activities, they are happy with the way the department is working and want to let it continue, albeit with more accountability. As oversight exists now, Kelly briefs Vallone on various NYPD operations, and even with more scrutiny from the City Council, any operations are likely be approved.
The NYPD still has to keep civil rights concerns in mind, not only because of a legal or moral responsibility but also to function successfully. As soon as the NYPD is seen as a dangerous presence in a neighborhood rather than a protective asset, it will lose access to the intelligence that is so important in preventing terrorist attacks. The department has plenty of incentive to keep its officers in line.
Threats and Dimwits
One worry is that the NYPD is overly focused on jihadists, rather than other potential threats like white supremacists, anarchists, foreign government agents or less predictable "lone wolves."
The attack by Anders Breivik in Oslo, Norway, reminded police departments and security services worldwide that tunnel vision focused on jihadists is dangerous. If the NYPD is indeed focusing only on Muslim neighborhoods (which it probably is not), the biggest problem is that it will fail in its security mission, not that it will face prosecution for racial profiling. The department has ample incentive to think about what the next threat could be and look for new and less familiar signs of a pending attack. Simple racial profiling will not achieve that goal.
The modern history of terrorism in New York City goes back to a 1916 attack by German saboteurs on a New Jersey arms depot that damaged buildings in Manhattan. However unlikely, these are the kinds of threats that the NYPD will also need to think about as it tries to keep its citizens safe. The alleged Iranian plot to carry out an assassination in the Washington area underscores the possibility of state-organized sabotage or terrorism.
That there have been no successful terrorist attacks in New York City since 9/11 cannot simply be attributed to the NYPD. In the Faisal Shahzad case, the fact that his improvised explosive device did not work was just as important as the quick response of police officers in Times Square. Shahzad's failure was not a result of preventive intelligence and counterterrorism work. U.S. operations in Afghanistan and other countries that have largely disrupted the al Qaeda network have also severely limited its ability to attack New York again.
The NYPD's counterterrorism and intelligence efforts are still new and developing. As such, they are unconstrained compared to those of the larger legacy organizations at the federal level. At the same time, the department's activities are unprecedented at the local level. As its efforts mature, the pendulum of domestic security and civil liberties will remain in motion, and the NYPD will face new scrutiny in the coming year, including judicial oversight, which is an important standard in American law enforcement. The challenge for New York is finding the correct balance between guarding the lives and protecting the rights of its people.
About the author
Scott Stewart is STRATFOR's VP, Tactical Intelligence. He is a former Diplomatic Security Service Special Agent who was involved in hundreds of terrorism investigations, most notably the 1993 World Trade Center bombing and the follow-on New York City bomb plot investigation, during which he served as lead investigator for the U.S. State Department. He led a team of Americans who aided the government of Argentina in investigating the 1992 bombing of the Israeli Embassy in Buenos Aires, and was involved in investigations following a series of attacks and attempted attacks by the Iraqi intelligence service during the first Gulf War. Scott Stewart's article appears on Homeland1 courtesy of PoliceOne.com.