Enemies Within (7 page)

“Without an effectively operating intelligence unit, the department would be unable to deal effectively with the many problems that arise each day in the largest, most complex, and most unique city in the world,” Murphy wrote.

The intelligence unit of that era was an early example of what would become known as mission creep: the slow expansion of a government program far beyond its initial goals. Originally the NYPD investigated Italians, and then anarchists. Germans and Japanese were next, during World War II. Then came the Cold War, which turned the NYPD’s focus to Communists. From there it was easy to cast suspicion on union leaders, whose prolabor views suggested they might be Communist sympathizers. By the 1960s, police looked at antiwar protesters as subversives who needed to be watched. Peaceful groups such as Women Strike for Peace were infiltrated, not because of any actual intelligence but as a precautionary measure.
¹⁶

As the Handschu case dragged on for years, the NYPD acknowledged more and more about its tactics. There was an NYPD “extremist desk” and an NYPD “black desk” to investigate African Americans. Police monitored labor disputes. They conducted surveillance on political organizations formed by future presidential candidate Lyndon LaRouche.
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Police maintained a huge library of intelligence documents. There were hundreds of thousands of case files and more than a million index cards containing people’s names.
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And since the intelligence unit did not make arrests, police said it was impossible to know how many of those investigations actually led to charges and how many simply collected information on people.

As it turned out, these NYPD tactics were part of a nationwide domestic surveillance boom during the 1960s and 1970s. The FBI was running its own nationwide spying operation, known as Cointelpro, short for counterintelligence program, which fed the CIA thousands of reports on American citizens. The FBI spied on liberal groups, civil rights leaders, journalists, and critics of US policies. Together the FBI and CIA built what was called the “watch list,” a roster that began with counterintelligence threats to the United States and grew to include antiwar groups, authors, publishers, scientific organizations, and scholars interested in the Soviet Union.

The CIA, too, was spying widely on the antiwar movement. Presidents Johnson and Nixon used the CIA to find out whether the New Left was part of a campaign by foreign governments to destabilize the US government. The agency developed Project Chaos, a program that collected intelligence on domestic protest groups. Hundreds of thousands of Americans were put into agency records. Another operation, known as Project Merrimac, infiltrated antiwar and black activist groups, ostensibly to give the government an early warning of demonstrations. A third operation, Project Resistance, compiled intelligence about student radicals on campuses nationwide.

As the CIA described it in a cable to overseas offices in 1968:

Headquarters is engaged in a sensitive high priority program concerning foreign contacts with US individuals and organizations of the “Radical Left.” Included in this category are radical students, antiwar activists, draft resisters, and deserters, black nationalists, anarchists, and assorted “New Leftists.”
¹⁹

Every major report that came out of Project Chaos concluded that foreign agents were playing no significant role in the protest movement. But these were met with skepticism by the White House, which demanded that the CIA look harder. Often the information collected was innocuous. But senior CIA officers felt that, over time, even seemingly insignificant information might shed light on the intentions of these domestic groups. So the information was retained as a way to generate leads. Soon the names of roughly 300,000 Americans were indexed in CIA computers. About 7,500 had files on them.
²⁰

The Handschu lawyers didn’t know it at the time, but their lawsuit against the NYPD was part of a changing tide in America. The Pentagon Papers (officially titled
Report of the Office of the Secretary of Defense Vietnam Task Force
), a secret history of the Vietnam War leaked to the
New York Times
in 1971, showed that the government had lied to the
public. Then came Watergate, the scandal that revealed the dirty tricks of President Richard Nixon and forced him from office.

Americans were no longer willing to take it on faith that their government was acting honestly or in the nation’s best interest. The country was asking difficult questions about what role intelligence agencies should play in a free, open society.

In 1974
New York Times
reporter Seymour M. Hersh published a blockbuster story outlining how the CIA had violated its charter by spying on Americans. Under the headline “Huge C.I.A. Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in Nixon Years,” Hersh revealed one of the most invasive operations in the agency’s history. In response, two congressional committees began investigating the CIA. Before that, congressional oversight of the agency was nonexistent.

The ensuing investigation, led primarily by Idaho senator Frank Church and ten colleagues, cast into the public light many of the agency’s most embarrassing and controversial operations: a list known internally as the “Family Jewels.” The Church Committee revealed assassination plots, illegal mail openings, a covert propaganda campaign in Chile, and the unauthorized storage of toxins such as anthrax and smallpox. But the transcendent issue was the one Hersh brought to light: the spying on US citizens.

Congress responded by forming intelligence committees in both the Senate and the House in 1976 and 1977. It gave itself oversight of the way that presidents carried out intelligence activities at home and abroad. It was the very bureaucracy that would so frustrate Cohen decades later.

It would take nearly another decade before the lawsuit over the NYPD’s surveillance was resolved. In 1985 the city settled the Handschu case and agreed to court-established rules about what intelligence the NYPD could collect on political activity. Under the rules, the department could investigate constitutionally protected activities only when it had specific information that a crime was being committed or was
imminent. Undercover officers could be used only when they were essential to the case, not as a way to keep tabs on groups. Police could no longer build dossiers on people or keep their names in police files without specific evidence of criminal activity.

To ensure that the rules were being followed, the court created a three-person oversight committee. Two senior police officials and one civilian appointed by the mayor would review each police request for an investigation. Only with the majority approval of that board could an investigation proceed into political activity.

There were four primary lawyers on the case now. Stolar and Eisenstein were joined by Franklin Siegel, another early member of the New York Law Commune, and Paul Chevigny, an attorney with the New York Civil Liberties Union. Even after the rules went into effect, the Handschu lawsuit remained open. That way, if the lawyers ever caught wind that the NYPD wasn’t following the guidelines, they could haul the police department before a judge. And if the NYPD wanted to change the rules, it had to talk to these four men first.

Just as the legacy of the Church Committee was greater transparency at the CIA, the Handschu case put a check on the NYPD’s powers. But the Handschu guidelines, as the rules became known, also withered the division that Cohen would later inherit

On the morning of September 11, 2001, Intelligence Division detectives rushed to Lower Manhattan, but when they arrived, they realized their helplessness. They stood there on the street for hours, waiting for someone to tell them what to do. “Stand by” was all they heard. They stood by as World Trade Center 7 collapsed in a plume of dust and smoke and they waited as darkness began to fall on New York. Some were sent toward ground zero to escort surgeons onto the pile, where they conducted emergency amputations or other lifesaving procedures. Others gathered at the Police Academy, where Deputy Chief John Cutter, the head of the Intelligence Division, put them on twelve-hour shifts. He told them to contact their informants.

It was both the right command and a useless one. Nobody there had informants plugged into the world of international terrorism. But the detectives did what they were told. They called dope dealers and gang members and asked what they knew about the worst terrorist attack in US history.

They worked alongside the FBI out of makeshift command centers aboard the decommissioned aircraft carrier and museum USS
Intrepid
and in an FBI parking garage, where some detectives sat on the concrete floor. They responded to the many tips called in by a jittery public. They questioned Muslims whose neighbors suddenly deemed them suspicious and visited businesses owned by Arab immigrants.

This was exactly the kind of reactive, aimless fumbling that Cohen wanted to do away with when he came aboard. He envisioned a police force that was plugged into the latest intelligence from Washington and that generated its own intelligence from the city. If an al-Qaeda bomber were ever to set his sights on New York again, Cohen wanted his team to be able to identify the plot and disrupt the plan. The rules needed to change.

•  •  •

Stolar, the attorney who’d brought the Handschu lawsuit decades earlier, listened on September 20, 2001, as President George W. Bush went to Congress and declared war on terrorism. He knew things were about to change. The way he saw it, once the government declares war on something—whether it be poverty, drugs, crime, or terrorism—the public quickly falls in line and supports it.

But this former radical, who witnessed police fire tear gas and beat antiwar demonstrators during Chicago’s 1968 Democratic National Convention and who was part of some of New York’s most turbulent times, was surprisingly naive about what was to come. He talked to his wife, Elsie, a public defense lawyer, and told her it was only a matter of
time before the FBI hunted down the people who planned the World Trade Center attacks. They would be prosecuted in Manhattan’s federal court, he said, and they would need lawyers. Even the worst people in the world deserved a fair hearing and staunch defense. If the choice presented itself, Stolar and his wife agreed, he should take the case. As it turned out, there would never be any criminal trials. The suspected terrorists would be shipped to a military prison in Guantánamo Bay, where the government created a new legal system.

Stolar and his fellow Handschu lawyers also misjudged the NYPD’s response to the attacks. In early 2002, Eisenstein wrote to the city and said that, despite the tragedy, the Handschu guidelines represented an important safeguard of civil liberties. Eisenstein said that he and his colleagues were available if the city wanted to discuss the rules in light of the attacks. The city lawyers said they would consider it. Eisenstein didn’t hear anything for months. Then, on September 12, 2002, a twenty-three-page document arrived from someone named David Cohen.

Cohen’s name wasn’t familiar to Stolar, but as he skimmed the document, it didn’t take long to reach a conclusion: “This guy wants to get rid of us completely.”

The document, filed in federal court in Manhattan, had been months in the making, and Cohen had chosen his words carefully. He explained his background; his thirty-five-year career in the analytical and operational arms of the CIA. Invoking the recent attacks on the World Trade Center, he said the world had changed.

“These changes were not envisioned when the Handschu guidelines were agreed upon,” he wrote, “and their continuation dangerously limits the ability of the NYPD to protect the people it is sworn to serve.”

Like Commissioner Murphy’s affidavit about NYPD surveillance on radical groups in the 1960s, Cohen painted a picture of a nation—in particular a city—under siege from enemies within. Terrorists, he said, could be lurking anywhere. They could be your classmates, your friends, or the quiet family next door.

“They escape detection by blending into American society. They
may own homes, live in communities with families, belong to religious or social organizations, and attend educational institutions. They typically display enormous patience, often waiting years until the components of their plans are perfectly aligned,” Cohen said.

He recounted the 1993 World Trade Center bombing, the attacks on embassies in Africa, the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, and plots against landmarks in New York.

America’s freedoms of movement, privacy, and association gave terrorists an advantage, he said.

“This success is due in no small measure to the freedom with which terrorists enter this country, insinuate themselves as apparent participants in American society, and engage in secret operations,” he wrote, adding, “The freedom of our society has also made it possible for terrorist organizations to maintain US-based activities.”

The stakes, Cohen said, could not be higher.

“We now understand that extremist Muslim fundamentalism is a worldwide movement with international goals. It is driven by a single-minded vision: Any society that does not conform to the strict al-Qaeda interpretation of the Koran must be destroyed. Governments such as ours which do not impose strict Muslim rule must be overthrown through Jihad,” he said.

Faced with this threat, Cohen said, the police could no longer abide by the Handschu guidelines. Terrorists, like the violent radicals of the previous generation, often cloaked themselves behind legitimate organizations. The police had to be able to investigate these groups, even when there was no evidence that a crime was in the works.

“In the case of terrorism,” Cohen wrote, “to wait for an indication of crime before investigating is to wait far too long.”