More on NYPD and Local Counterterrorism Intelligence

By Matthew Waxman
Friday, May 25, 2012, 10:22 AM

As I’ve argued previously here (at length) and here (briefly), if you are interested in government counterterrorism intelligence activities and privacy, don’t just pay attention at the federal level – there’s a lot of interesting stuff going on at the state and local level. Consider three recent data points or writings from the past few weeks that show the diversity of substantive rules and oversight arrangements that apply in this area.

First, anybody following the NYPD counterterrorism surveillance issue should check out an account and defense of the NYPD’s intelligence activities written by Mitch Silber, the outgoing director of intelligence analysis at NYPD, in the forthcoming issue of Commentary magazine. It discusses in some detail the NYPD’s post-9/11 intelligence practices, as well as their compliance with the Handschu Guidelines – a 1985 federal court consent decree, which was modified by the district court in 2002 – and how this compliance is overseen internally within the Department (I’ll try to post Silber’s article when it’s available online).  [Update: the Silber artice in Commentary is available here]  Additionally, regarding cross-jurisdictional issues, the New Jersey state attorney general has reportedly concluded that NYPD activities conducted in that state did not violate New Jersey law.

Second, see this story of the LAPD’s modification to its Suspicious Activity Reports program. That controversial program has been subject to much debate and discussion with local community groups, including civic organizations representing Muslims and Sikhs. The new rules further narrow the kinds of information that is collected and recorded and they require purging of certain categories of information.

Third, earlier this month, San Francisco passed an ordinance requiring public hearings on agreements between the SF Police Department and the FBI as part of the latter’s Joint Terrorism Task Force, and annual reporting on those collaborative activities. It also requires that SFPD personnel attached to the FBI task force comply with strict state and local privacy law, in addition to federal law and guidelines.

A point of all this: for all the very important focus on national-level domestic intelligence law and policy, on account of federal legal, political, and resource predominance, note that there remains a lot of heterogeneity and local variation because most policing in the United States is conducted and controlled at the local level.