NYPD trying to keep secrets

The Crime Column by Rocco Parascandola
Newsday (New York)- March 3, 2008
CITY EDITION (rocco.parascandola@newsday.com)

What, exactly, is David Cohen hiding?

Is the NYPD's deputy commissioner of intelligence trying to shield Police Commissioner Ray Kelly from some embarrassing and damaging information about how police spied on activists before the 2004 Republican National Convention? Or is Cohen simply not capable, after 35 years working for the CIA, of acting like anything but a spy?

Cohen, in what appears to be a first for a law enforcement agency other than the CIA, FBI or NSA, wants a federal judge to let him file a secret affidavit, one that the other side - the New York Civil Liberties Union - would not be allowed to see. In other words, Cohen wants to state his case in an American courtroom, then let the other side respond to something it's not heard or seen.

Cohen says he's got a good reason for this: Doing otherwise would endanger the lives of undercovers and informants and reveal certain investigative methods that would make it difficult for police to infiltrate certain groups and prevent a terrorist attack.

But the NYCLU, which has filed a lawsuit on behalf of people who say they were wrongly arrested and detained during the convention, says it is not interested in the names of undercovers or informants, nor in the NYPD's techniques.

It just wants to know what information the NYPD learned by spying, surveillance that included some persons and groups with criminal pasts, as well as groups of no apparent danger such as Bands Against Bush, a group of artists who mix music with political speeches, and the New York City AIDS Housing Network, a social service organization.

"The point is, in our country court proceedings are public," says Christopher Dunn, the NYCLU's associate legal director. "The government doesn't get to make secret arguments to judges. "We simply do not have secret lawsuits in this country." Cohen, however, feels differently.

He did not respond to a request for comment, but he says in court papers that availing the affidavit to the public would "provide the reader with a road map for conducting counterintelligence and the revelation of sources and methods."

He told Federal Magistrate James Francis that sensitive information redacted by Francis in police documents submitted earlier in the case revealed too much critical information. Now, Cohen says that the only way for the NYPD to submit further documents about its surveillance tactics would be to let him file an affidavit that would be off limits to the NYCLU and the public.

In late January, however, Francis in a strongly-worded decision told Cohen to forget it, noting that "permitting the submission of secret argument is antithetical to our adversary system of justice."

"It is the rare case where the very arguments presented to the court in order to influence its decision may justifiably be shielded from opposing counsel and from the public," Francis wrote in his decision. "This is not that case."

The NYPD has since asked the trial judge in the case, Richard Sullivan, to reverse Francis' decision. Michael Cardozo, the city's corporation counsel, says in court papers that Francis' "failure to balance the harm of disclosing that information against plaintiffs' need is clearly erroneous and contrary to law. The city's determination is no surprise, given the sea change since the Sept. 11 terror attacks.

Under Kelly, less public information, such as the names of officers who fire their weapons and the names of nonfatal crime victims, is released. And it's increasingly common for other city agencies, when faced with a reporter's question that involves their agency and police, to ask if the NYPD is aware of the story. The stop and frisk controversy also rages on with the NYPD repeatedly dodging efforts by the City Council to learn more about how police stop people on the streets.

More recently, a judge in Manhattan Federal Court ruled that the NYPD must turn over documents regarding its videotaping practices. The decision is part of a decades-old class action lawsuit that resulted in the Handschu Guidelines.

The guidelines put in place a series of court orders that regulate how police can monitor political demonstrations. But the NYPD, citing concerns of a terrorist attack, wants these guidelines relaxed. Jed Eisenstein, a lawyer for the plaintiffs, says Cohen's efforts to give police more latitude in monitoring political activity, goes to the heart of his mind-set.

"He comes from a culture where the idea of civilian oversight or anything that balances the rights of citizens with what the government wants is to him like: "What?'" Eisenstein says. "He didn't know from that in his 30 years at the CIA.

"The goal, I think, is to prevent disclosure." rocco.parascandola@newsday.com