New York City continues to face a real and persistent terrorist threat that demands a well-coordinated response from law enforcement agencies. But institutions that safeguard public safety cannot function effectively over the longrun without the confidence of the people they serve, and — following a series of revelations about aggressive NYPD monitoring of the city’s Muslim community — that is now in jeopardy.
Too much of the debate about the NYPD’s intelligence operation attempts to parse whether its efforts to “spy” on Muslim communities were based on specific intelligence leads, which would be legitimate, or were simply a broad-based program to monitor Muslims on the basis of religion, which would be illegitimate.
I look at this differently. I have no doubt that most of what the NYPD does is decent and intelligent police work. But at the same time, I believe that over the long run, that work depends on having a strong relationship with New Yorkers. And I sense a growing fear, in neighborhoods that need to be cooperating with cops, that the police have gone too far.
The key question is how to keep New York and the country safe. The terrorist threat to New York City is not going away, which means the NYPD’s counterterrorism programs must be sustainable. And to be sustainable, the people of New York must be confident th NYPD’s work advances national security in accordance with American freedoms.
The only way to reassure them is with healthy oversight. Unfortunately, there is no suitable mechanism currently in place to provide that oversight of the NYPD’s intelligence activities.
After 9/11, our federal national security agencies responded to the threat of Al Qaeda terrorism by establishing new agencies and rules to improve collaboration. New York City, identifying a uniquely high threat level, and with unmatched municipal resources, dramatically expanded its intelligence operations in the five boroughs, across state lines and even internationally.
At the federal level, both courts and Congress oversee our national security agencies, including the most secretive and sensitive, like the Central Intelligence Agency and National Security Agency.
That system does not always work well. It has failed to prevent some executive oversteps and sometimes is too burdensome: a ridiculous 18 House subcommittees and 16 in the Senate oversee the Department of Homeland Security.
Meanwhile, oversight of the NYPD is just plain inadequate. While there are several institutions to monitor the NYPD — including the Civilian Complaint Review Board, which just received expanded powers to prosecute officers accused of misconduct — the rules regarding its intelligence activities are scant.
By law, the department must comply with the “Handschu Guidelines,” named after a 1971 case that created a three-judge panel to approve warrants associated with intelligence operations. NYPD defenders argue that its intelligence operations have been both legal according to these guidelines and appropriate, given intelligence suggesting threats to the city.
That is probably true; serious counterterrorism professionals know that monitoring entire communities is a waste of time and resources, especially because violent jihadis are a very small fringe in the human tapestry of Islam.
But “probably true” matters very little because there is no independent way for the public to verify th NYPD’s intelligence work is being conducted responsibly. Or that the resources invested are actually making New York safer.
The NYPD essentially asks Americans to trust in their good judgment. That is not good enough in a democracy — particularly because Commissioner Raymond Kelly has shown poor judgment on related issues, especially by appearing in an inflammatory video suggesting that a broad swath of American Muslims are waging an underground war on the United States.
The old saying holds: Trust but verify.
There is no adequate precedent for the NYPD’s current intelligence work, so there are no good examples of oversight to copy. The rules established for the NYPD today will be a precedent for Los Angeles, Chicago and Hoboken tomorrow.
Three principles should be followed. The oversight commission should be ultimately accountable to voters; its members should have appropriate security clearances and expertise and it should be independent of the city leaders whose decisions it is supposed to monitor.
The NYPD’s defenders and critics should be able to agree that stronger oversight is a very healthy thing. This isn’t about penalizing the police department. It’s about preserving public confidence — so the NYPD can keep us safe today and far into the future.
Fishman is a counterterrorism research fellow at the New America Foundation. He previously served as the director of research at the Combating Terrorism Center at West Point and currently teaches at Columbia University’s School of International and Public Affairs.
