March 29, 2006
City Defends Surveillance of Protesters
By JULIA PRESTON
Undercover New York police officers, acting on new antiterror surveillance powers they were granted by a federal court after the Sept. 11 attack, have been routinely making videotapes of political demonstrations in the city over the past two years and keeping the tapes on file, lawyers for the city said in a court hearing yesterday.
The lawyers argued that the officers were authorized to videotape political protests under court-ordered surveillance guidelines that were expanded in 2003 to allow the police to take pre-emptive action to stop terrorist attacks.
Gail Donoghue, senior counsel for the city, said the police had not been using the tapes to compile dossiers on individual protesters.
The city’s lawyers confirmed that police video recordings of demonstrations were routine. They gave their most complete legal justification of the practice to date as they sought to defeat a challenge by civil rights lawyers who said it was intimidating to peaceful protesters.
The hearing was held before Judge Charles S. Haight Jr. of Federal District Court in Manhattan, who has presided for the last 30 years in a class action case, originally brought in 1971, over undercover surveillance of political groups by the New York police. It is called the Handschu case, after the last name of the first plainpng in the original lawsuit.
The civil rights lawyers said that the police had overstepped the leeway they were granted in the expanded surveillance guidelines, which Judge Haight authorized in 2003 after the police argued that the city was facing new dangers following Sept. 11.
Jethro M. Eisenstein, one of the lawyers, told the judge that the effect of the generalized videotaping of protests was to treat every demonstration as a potential terrorist act. Calling the city’s policy “Orwellian,” he accused the police of adopting “a bullying view of the terrorism threat to block critical thinking.”
The civil rights lawyers have asked the judge to stop the city from videotaping protests by canceling a police regulation legitimizing the practice that was adopted on Sept. 10, 2004. The rule authorizes the police to attend political events “in the same conditions” as any member of the public.
The civil rights lawyers argued that the police should be required to show some reason why they suspect terrorist activity before dispatching undercover officers to record public political events. One of the lawyers, Paul G. Chevigny, said that protesters were easily able to identify the officers, even when they were not in uniform, and found the police presence “positively creepy.”
Peter G. Farrell, another city lawyer, said that political demonstrations could become targets of a terrorist attack, or they could be infiltrated by terrorists seeking to glean information from anti-government protesters or to study the surveillance practices of the police.
Ms. Donoghue said the police wanted the videotapes only to examine them for clues to terrorist activity, and were not using them to identify protesters. She said the city would like to destroy many of the tapes, but has been blocked from doing so because they have been demanded as evidence in lawsuits against the city.
She said the police were not willing to stop the videotaping, because the tactic was necessary for them to be “pro-active against terrorism.”
Videotapes that were made public in December by Eileen Clancy, a forensic video analyst who is critical of the police tactics, showed that officers had taped protesters criticizing the Iraq war and bicycle riders in mass rallies, among other demonstrations.
As the hearing opened, Judge Haight ruminated with a dash of humor about the Handschu case’s 35th anniversary this year. “For me this case has become a career and will remain so,” he said. Examining the five civil rights lawyers, three of whom have been handling the case since it was first filed, he said it seemed to have been “like the fountain of youth” for them — though they were all grayer than they had been three decades ago.
Judge Haight did not issue any ruling about the videotaping.