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.
Under Pressure
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.
George Stewart, Stratfor,
octobre 14, 2011
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