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The Matter in Handschu

Mar 4, 2013, Vol. 18, No. 24 • By MATTHEW CONTINETTI
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Pakistani national Shahawar Matin Siraj and a friend, Irish-Egyptian-American James Elshafay, went to the Herald Square subway station on 34th Street in New York City on August 21, 2004, shortly before the quadrennial Republican National Convention was scheduled to begin nearby. Siraj and Elshafay were no ordinary commuters. They wanted to determine, as precisely as possible, the exact location on the subway platform where a bomb would inflict the maximum amount of damage. They even made diagrams of the station outlining their murderous designs. Yet the plot, thank Allah, never made it past the planning stage. The NYPD arrested Siraj and Elshafay six days after their clandestine visit to Herald Square.

Brooklyn US Attorney's Office

Turned out Siraj had been discussing his plans, in great detail, with undercover police informant Osama Eldawoody. The NYPD had access to hours of these discussions, in which Siraj expounded on jihad, the evils of Abu Ghraib, and the heroism of Osama bin Laden. Also among the topics: Siraj’s fevered desire to kill Americans—a desire that was repressed thanks to Eldawoody and the NYPD, which had stumbled upon the terrorist plot only because its intelligence unit was aware of the Islamic Books and Tapes store in Brooklyn where Siraj worked.

Elshafay, who pleaded guilty, was sentenced to five years in federal prison in 2007. Siraj is serving a 30-year sentence. Their conspiracy is just one of the 16 known terrorist plots against New York City that have been foiled in the decade since nearly 3,000 men, women, and children were murdered in Manhattan on the morning of September 11, 2001. Hard to argue, it would seem, with the NYPD’s 12 years of keeping its city safe.

But people do argue, intensely, and with a lack of proportion and context that is simply mindboggling. Consider: For years now, the February 9 New York Times editorial page breathlessly informed readers, New York police officers, “deploying an army of spies,” have been “spying on law-abiding Muslims” and “targeting Muslim groups because of their religious affiliation, not because they present any risk.” Such is the allegation of a motion lawyers connected with the New York Civil Liberties Union filed in federal court in early February. “New York City police,” the motion details, “routinely selected Muslim groups for surveillance and infiltration.” Which is “more than ample reason,” concludes the Times, “to be concerned about possible overreach and unconstitutional activity.”

Well, no. A hundred times, no. Unless, that is, the very existence of a police force is reason enough “to be concerned about possible overreach and unconstitutional activity.”

At issue are the so-called Handschu Guidelines, an unwieldy set of judicial protocols that limit NYPD surveillance of “political activity.” These guidelines, named after Black Panther attorney Barbara Handschu, are the result of a class action filed against the police in 1971 and settled in 1985. “No other police department in the country is bound by these rules,” notes former director of NYPD intelligence analysis Mitchell Silber. And no other police department in the country has had to deal with such a persistent and adaptive terrorist threat, while assuring critics in activist groups and the media that no, sorry, martial law has not been imposed on the five boroughs. A federal judge recognized as much in 2003 when he modified the Handschu Guidelines to allow the NYPD freedom to uncover and disrupt incipient plots.

Still, write the plaintiffs’ attorneys in their motion calling for injunctive relief and the appointment of an “auditor or monitor” to oversee police work, “The NYPD has not complied with the Guidelines in conducting these investigations.” After all, “A criminal predicate is necessary under the Guidelines for inquiries or investigations of the sort that the NYPD has been conducting in the Muslim community.” What the NYPD has, instead, is a “concentration on things Muslim” that “arises out of the prejudice” of city police. “The NYPD supposes that because an organization is connected to Islam, therefore it is suspect.” The fools on the force actually subscribe “to a theory about how certain organizations and theological beliefs contribute to the ‘radicalization’ of Muslims”—perish the thought. Hence the “very evils that are being visited on the Muslim community,” such as cops walking the beat, keeping tabs on the neighborhood, and, if need be, infiltrating a terrorist cell. So watch what you say. “This is the essence of a police state.”

Rabid hyperbole notwithstanding, this argument strikes us as rather weak. And the argument probably would strike the lawyers making it as rather weak, too, had they taken the time to read their own brief. As quoted therein, a “criminal predicate” is not actually necessary under the Handschu Guidelines: “In its effort to anticipate or prevent unlawful activity, including terrorist acts,” the guidelines state, “the NYPD must, at times, initiate investigations in advance of unlawful activity. It is important that such investigations not be based solely on activities protected by the First Amendment.” Note the use of the adverb solely, which would seem to provide the NYPD significant leeway in initiating such investigations.

And note what the guidelines, quoted in the brief, have to say on the matter of retaining the information that investigators collect: “Section VIII (A)(2) of the Guidelines authorizes such visits ‘for the purpose of detecting or preventing terrorist activities’ but states that ‘no information obtained from such visits shall be retained unless it relates to potential unlawful or terrorist activity.’ ” Again, there would seem to be a lot of wiggle room in the use of the adjective potential. New York City, don’t forget, has been under sustained terrorist threat since the first World Trade Center bombing in 1993. The potential for terrorist activity is great. Does the NYCLU really expect the authorities to start from square one after a successful attack? And what good is the effort to distinguish between the exceedingly few locations around which radicals congregate and the vast majority of benign locations if the NYPD has no records of which locations are which?

Investigative techniques deemed reasonable and lawful by New York mayor Michael Bloomberg, police commissioner Ray Kelly, CIA nominee John Brennan, and an outside review board convened by New Jersey governor Chris Christie have helped protect New Yorkers for over a decade. And they will continue to do so, provided the courts keep the grievance groups at bay. The New York Police Department does not endanger American civil liberties. Terrorists like Shahawar Matin Siraj do.

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