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Over the last few months, the Associated Press has released multiple reports that detail the infiltration of Muslim student groups, mosques, and community centers by the New York Police Department over the last few years. Police Commissioner Raymond Kelly has denied the surveillance and infiltration of Muslim communities in NY or elsewhere, but clearly he has been lying. As we see from the numerous AP reports have been released, the NYPD’s spying program ranged over multiple states and countries. The NYPD spied on Muslim communities in New Jersey, Pennsylvania, and Connecticut–in mosques, on mosques, community centers, student associations, grocery stores and in neighborhoods with large numbers of Muslim families and residents. We also know that the NYPD has infiltrated Muslim student groups at Yale, Penn, Rutgers, City College, among others. On Monday of this week, Yale’s president, Richard Levin, to his infinite credit, wrote a statement that condemned and disavowed any knowledge of the NYPD on Yale’s campus. I’m waiting for similar disavowals by the presidents of these other campuses (apparently there are several). Otherwise, their silence would leave me to wonder how eager they were to collaborate in helping the NYPD to spy on their students.

Democracy Now and Colorlines have both reported in detail about the outrage of such actions on the part of NYPD. As part of a pattern of explicitly Islamaphobic practices on the part of the NYPD, we also heard about the Third Jihad, a racist training film (funded by the Clarion Fund, the same organization that attracted Sheldon Adelson, a big supporter of Newt Gingrich’s campaign) that insisted that even “normal” Muslims had deep terrorist undersides. A clip of NYPD Commissioner Kelly was included in the film, although he disavowed participating in the film and insisted that the clip was taken from elsewhere. Later, it turns out, he lied again: in fact, he was interviewed for it 5 years ago. Until that lie was revealed, Kelly refused to disavow or apologize for his part in the film; yet now he finds it “objectionable. Another lie: Kelly also denied that film was part of NYPD orientation, despite the fact that it was shown to 1500 police officers.

The prevarications and Islamaphobic policies–and illegal and unconstitutional activities– on the part of the NYPD continue. AP has reported that in 2002, then CIA director George Tenet sent an ex-CIA officer, Lawrence Sanchez, to help coordinate the management of intelligence within the NYPD, violating its own practice of not crossing over into domestic spying. Sanchez, who left over one year ago, appears to have been replaced by an unnamed agent, still part of the CIA, who has helped to coordinate the various surveillance and infiltration activities. The CIA has vacillated between denying knowledge of the coordination between itself and the NYPD, and acknowledging it. Kelly and Mayor Michael Bloomberg defended the involvement of the NYPD in spying on local communities with Bloomberg insisting that the spying program was “legal.”  According to AP, “Kelly, the police commissioner, has vigorously defended the NYPD’s relationship with the CIA. Testifying before the City Council in October, Kelly said the collaboration was authorized under the 1981 presidential order, known as No. 12333.” This order, signed by President Reagan, authorized the coordination of various federal agencies, from the NSC, CIA, FBI, the Departments of State, Defense, Treasury, Energy, and numerous other federal agencies to engage in intelligence gathering and collaboration in the interests of national security.

Order 12333 is a fascinating document, not least because of the constraints around intelligence gathering that are articulated there: According to section 2. 4 of this order, the NYPD violates the constraints of the first paragraph, namely the prohibition from engaging in “electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General.”

Here’s the clause itself:

Collection Techniques. Agencies within the Intelligence Community shall use the least intrusive collection techniques feasible within the United States or directed against United States persons abroad. Agencies are not authorized to use such techniques as electronic surveillance, unconsented physical search, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the agency concerned and approved by the Attorney General. Such procedures shall protect constitutional and other legal rights and limit use of such information to lawful governmental purposes. These procedures shall not authorize:

(a) The CIA to engage in electronic surveillance within the United States except for the purpose of training, testing, or conducting countermeasures to hostile electronic surveillance;

(b) Unconsented physical searches in the United States by agencies other than the FBI, except for:

(1) Searches by counterintelligence elements of the military services directed against military personnel within the United States or abroad for intelligence purposes, when authorized by a military commander empowered to approve physical searches for law enforcement purposes, based upon a finding of probable cause to believe that such persons are acting as agents of foreign powers; and

(2) Searches by CIA of personal property of non-United States persons lawfully in its possession.

(c) Physical surveillance of a United States person in the United States by agencies other than the FBI, except for:

(1) Physical surveillance of present or former employees, present or former intelligence agency contractors or their present of former employees, or applicants for any such employment or contracting; and

(2) Physical surveillance of a military person employed by a nonintelligence element of a military service.

(d) Physical surveillance of a United States person abroad to collect foreign intelligence, except to obtain significant information that cannot reasonably be acquired by other means.

 

The story gets murkier. According to Order 12333, the CIA cannot loan equipment, knowledge or personnel without the explicit permission of CIA counsel. Apparently, in this case, the permission of that counsel, Scott Muller, was never given.  Moreover, the leeway to surveil intrusively is permitted to the CIA and FBI, not to the NYPD.  And yet, the NYPD was–is still?–engaged in most, if not, every single one of these techniques: from physical surveillance (e.g., through the presence of undercover police officers in mosques and on the street to collect license plate numbers), to monitoring devices (by mounting cameras on street corners across the street from mosques, ). The NYPD defends its ability to surveil by insisting that mounting cameras on street corners is “public” surveillance.

It appears that it is possible for the CIA to assist the NYPD in intelligent-gathering for the purposes of “for the purpose of protecting the employees, information, property and facilities of any agency within the Intelligence Community.”  Yet, given that Sec. 2.4 paragraph pertains first and foremost to the CIA as the chief intelligence gathering agency (which presumably places it above the NYPD in terms of jurisdiction), this clause requires the US Attorney General to be notified. I wonder whether the US Attorney General Eric Holder was informed of the activities of the NYPD. Holder appears to be reluctant to clarify his relationship to NYPD’s spying program.  Is it correct to assume that Holder approved of these activities? If he wasn’t consulted by the CIA or the NYPD, why not?

We know that Mayor Corey Booker has suddenly tried to distance himself from the scandal by insisting that he didn’t know the activities that the NYPD was engaged in. Still, he acknowledges that he was approached by the NYPD to engage in activities that involved policing communities in his own jurisdiction. And he gave them permission to enter and engage in extra-municipal activities that involved his own constituents. Nice.

Were other mayors and governors of NY, NJ, CT and PA informed? NJ Gov. Chris Christie has denied being approached (or atleast he doesn’t “recall” being approached). Were the Attorneys General? I haven’t read or heard any or disavowals from any of the following current or former Governors or Attorney Generals of NY, NJ, PA, or CT:

NY Attorneys General: Eric Schneiderman (current), Andrew Cuomo (current governor), or Eliot Spitzer

NJ Attorney General: Jeffrey Chiesa (current), Paula Dow or Anne Milgram

PA Attorneys General: Linda Kelly (current), William Ryan, or Tom Corbett (current governor)

CT Attorneys General: George Jepson (current) or Richard Blumenthal (or current Gov. Daniel Malloy)

Does this mean that they approved the presence of the NYPD in their states to infiltrate Muslim student associations, community centers, stores, mosques? Moreover, Section 2.6 of Order 12333 authorizes various Intelligence agencies to cooperate with law enforcement for the purposes of tracking “clandestine…or terrorist” activities by “foreign” elements. [By the way, here is the definition of the Intelligence Community. You will notice they’re all federal, and not municipal law enforcement agencies like the NYPD.] This clause says nothing about authorizing municipal law enforcement to engage in extra-state spying or tracking of civilians. Moreover, clause 2.12 insists that “[n]o agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.”

NYPD then, was not only not authorized by this Order to participate in tracking activities, but it was also violating this order’s initial clause. Kelly’s defense appears to be either a prevarication or–at the very least–incorrect. Given his record of duplicitous behavior, I’m leaning toward the former. Section 2. 7 of the Order does say that funding sources or contracts for federal activities are not required to be revealed, which is certainly consistent with the AP’s revelation that taxpayer money was not used for this unique special project on the part of the NYPD. At least $1.6b came from the feds. I believe AP reported that other monies for the spying program came from an unnamed non-profit organization, whose name and funds will not be revealed–but I can’t find the source. The Daily Beast reports that the nonprofit Police Foundation abundantly funded Kelly’s program to send NYPD personnel overseas.As Judith Miller reports, “For several years, the foundation has helped finance most of the NYPD’s $1.5-million-a-year International Liaison Program, in which 11 NYPD detectives are embedded in police departments overseas to explore potential New York ramifications of terrorist activity abroad [it gets even better: American Airlines last year proudly announced that it would participate in the project of helping the NYPD surveil and monitor overseas activity by funding the airfare for detectives to places like “Tel Aviv, London, Amman, Singapore, Santo Domingo, Toronto, Montreal, Paris, Lyons and Madrid,” to carry out surveillance activities that the Police Fund happily underwrites].

Of course, spying is now part and parcel of American life: we saw this with the expansion of 2008 FISA, which approved warrantless wiretapping and surveillance, as well as with the recent passage of the NDAA, signed into law by POTUS on New Year’s Eve 2011. As we know, Wall Street has used millions of dollars–at least $150m– to create its own local spy network in downtown, with the help and cooperation of the NYPD as well. I wonder if NDAA will be applied retroactively to help exculpate the NYPD, AG Holder, Bloomberg and all the other charlatans involved in these egregious violations of human liberties and constitutional law.

It sounds like the NYPD Police Commissioner and a number of Mayors, Governors, and Attorney Generals need to be interrogated for their knowledge or involvement in these activities…and perhaps we need to get start calling for some firings, and at the very least, we need some regime changes in the US at the national, state, and municipal levels.