The Magazine

The Matter in Handschu

Mar 4, 2013, Vol. 18, No. 24 • By MATTHEW CONTINETTI
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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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