September 11th and NYPD: The Legacy
In this 20th anniversary series, WNYC/Gothamist is exploring how the September 11th attacks fundamentally changed the NYPD, its approach to policing and the city’s relationship with the nation’s largest municipal police department. For links to all of the stories we’ve published and for more about how WNYC, Gothamist and New York Public Radio is recognizing this anniversary, scroll to the bottom of this story.
The NYPD’s tracking and monitoring of Muslims after September 11th triggered lawsuits that ultimately led to court settlements and new rules governing how the police could investigate ethnic communities and political groups.
But despite those limits on police investigations, attorneys and others who represent activists for groups affiliated with the Black Lives Matters movement say they see similarities in how NYPD approached the Muslim community after 9/11 and how civil rights groups are being investigated today.
And they say New York City’s history shows that political pressure can bring swift changes and undo years of hard-fought limits on how far police can go to infiltrate and investigate activists or ethnic communities.
The NYPD has long run intelligence operations focused on such groups: Italians and anarchists a century ago, Germans and Japanese during World War II. September 11th ushered in a new era of police surveillance, as law enforcement warned of domestic sleeper cells, extremist imams, and unprecedented threats, rhetoric that was used to justify the deployment of undercover agents to surveil mosques, Halal grocery stores, and Muslim student groups in New York and beyond.
When these methods were revealed by the Associated Press in 2011, Muslims sued, eventually winning a settlement that created new rules to ensure that the police don’t conduct prolonged intelligence operations on religious and political groups without specific suspicion of wrongdoing. A civilian representative was appointed to keep tabs on intelligence operations and report any violations to the court. As of March 2020, the civilian representative — Stephen Robinson, a former federal judge and prosecutor — has reported the NYPD is completely in compliance.
But lawyers who battled the NYPD over Muslim surveillance have a new worry: That the NYPD is employing similar aggressive techniques in its investigations into the movement against police brutality, which peaked last summer.
The lawyers say protesters arrested at the protests were interrogated with questions about organizing networks, raising concerns that the NYPD is mapping activists’ constitutionally protected movements just as it mapped Muslim neighborhoods after 9/11. They point to the use of undercover agents and surveillance technology at Black Lives Matter protests, which is reminiscent of undercover agents who gathered information on law-abiding mosque attendees. And they wonder how much social media activity of anti-police brutality protesters continues to be collected, just as Muslim student association websites were monitored.
“We’re just seeing the tools that were kind of refined and redefined and honed post-9/11 being brought to bear more fully on the Black organizers, Black Lives Matter organizers, in ways that were all too predictable,” said CUNY law professor Ramzi Kassem, who directs the CLEAR legal clinic that represented Muslims surveilled after 9/11.
But NYPD Deputy Commissioner John Miller said regardless of whether intelligence officers are investigating al-Qaeda, neo-Nazis — or Black Lives Matter activists who allegedly firebombed an NYPD van — they adhere to court-ordered guidelines.
“People want these guidelines to apply double or triple to the people they disagree with, and not at all to the people they agree with,” he said. “We don’t take that position. The guidelines are the guidelines.”
Still, a legacy of distrust persists, and it can be traced back a half-century to another movement for racial justice that law enforcement saw as a violent threat.
In 1971, the police used informants to bring an indictment against 21 Black Panthers for conspiring to blow up buildings in New York City, including police stations and stores. The so-called Panther 21 were exonerated in part due to testimony from an undercover cop who had embedded with the group and admitted to pushing for and organizing some of the group’s illegal activities.
Five days after their acquittal, three Black Panthers were joined by gay rights activists, anti-war protesters, and others in a class-action suit against the NYPD, accusing the department of violating their constitutional rights by using infiltrators to try to set them up to commit crimes.
It took 14 years for the NYPD to settle the lawsuit. In 1985, the resulting Handschu agreement — named after Barbara Handschu, one of the 15 original plaintiffs — curtailed the NYPD’s investigative techniques. The intelligence bureau would only start an investigation if officers had specific information about a possible crime, and they wouldn’t investigate a group purely based on politics or religion. The use of undercover officers was restricted, and the names of people not suspected of criminal activity — like those who attended meetings of Black groups, for example — couldn’t be collected by investigators.
This Handschu agreement was in effect until just after September 11, 2001. But the attacks prompted the NYPD to return to court and argue that the Handschu rules prevented it from stopping future terrorists. One top police official claimed in a court affidavit that 80% of mosques in the United States housed extremists, so police needed fewer restrictions to monitor what was going on inside.
“It doesn’t make sense in this day and age to have restrictions put in place in 1985 for real and imagined violations that happened in the late 1960s,” then-Commissioner Ray Kelly said.
A federal judge agreed that Handschu should be modified. Civil protections were rolled back so police could have more flexibility to investigate the new perceived threat — Muslims — without “specific information” that a crime had been committed or was on the verge of being committed. Undercover officers were dispatched to mosques and Muslim-owned barbershops, listening for what people might be saying about politics and violence in the Middle East. They mapped where Muslims lived, worked, and ate, and, in at least one instance, documented how many times Muslim college students prayed during a whitewater rafting trip. Throughout the region, mosque attendees had their license plate numbers recorded.
The Muslim community was outraged, and scared. An infiltrated Muslim charity folded over the embarrasment of working with a volunteer who turned out to be a police informant. And a restaurant owned by Muslims banned the airing of Al-Jazeera for fear it would get them in trouble with the police.
Targeted Muslims filed lawsuits against the NYPD, leading to a 2017 settlement that reinstated civil liberties protections. Police are now forbidden from going on investigative fishing expeditions focused on whole communities. Race, religion, and ethnicity can no longer be the motivating factors in triggering an investigation.
“It was the first time since 9/11 that any intelligence agency or law enforcement agency had seen its powers to spy on Muslims and Muslim communities restricted in any way, shape or form,” said Kassem, who represented Muslim leaders, mosques, and a charity that were subjected to surveillance.
Most importantly, the new Handschu agreement required the appointment of a civilian representative to monitor NYPD investigations. The representative reviews the use of undercover officers and informants, and collects data on the duration of such investigations.
The first three public reports that the representative, Robinson, has so far issued show that fewer investigations of First Amendment-related activity have been initiated, and those that do proceed are ending faster.
This would indicate that the police overreach after September 11th is no longer a problem. But, Kassem notes, the reports are not rich with detail, and so far they only cover the period up to March 2020 — not the time around last summer’s racial justice protests. Given incidents in which the NYPD violently suppressed protests, Kassem wonders what kind of intelligence operations the police are running on activists.
“Has the problem been solved, basically? And the answer is no,” Kassem said. “There are plenty of indications that there remains a lot of work, both with respect to the continuing over-policing of Muslims by the NYPD’s intelligence bureau, as well as with respect to what they’re doing regarding Black activists, Muslim and non-Muslim.”
Kassem has spoken to those protesters who were interrogated by the FBI and NYPD, and said they were asked questions about the members of their organizations, where they meet, how they’re funded, and what messaging apps they use to communicate. “Disruption is a central aim when it comes to the policing of social movements,” Kassem said. “And so the damage is done when the police are asking those kinds of questions. It has a chilling effect. It has a disruptive effect.”
But the NYPD’s Miller said attorneys from the original 1985 Handschu agreement reviewed the questions that the NYPD officers used to interrogate about 100 activists arrested during the Black Lives Matter protests. “And they said these questions are wholly in line with the rules of the Handschu guidelines,” he said. “So I understand that there are those controversies out there. But at the end of the day, how did we answer it? We didn’t lock down and say, ‘We did it by the book and you have to take our word for it.’…We said, ‘Well, we think we did it right, but come on and read through all of it.’”
Miller doesn’t deny that Muslims had fears of police infiltration of their community in the years after 9/11. “There was a time when there was a level of paranoia when everybody felt spied on, and there were so many rumors going around that people didn’t know how to separate truth from fact,” he said.
But he noted that as part of the new agreement, there “was no admission of wrongdoing by the NYPD.” He said that the civilian representative sits in on classified meetings about investigations and can read all records. “We’ve kind of seen a turning of the corner from rumors and suspicions to more transparency, more independent vetting of our programs and how they work by places outside the NYPD,” he said. “And I think we’re in a much better place.”
Still, guidelines can change. For example, the next mayor could petition the court as early as next year to eliminate the civilian representative.
Attorneys representing plaintiffs in the original Handschu case wrote earlier this year that shouldn’t happen, because “restrictions on police surveillance need to be tightened, not discarded.”
“With Black Lives Matter protesters and other dissenters being targeted and attacked by law enforcement – and a nationwide reckoning around the need for police accountability – we must have meaningful limits on police power,” they said.
The fact that these limits were spurred on by a trial of Black Panthers 50 years ago — and now serve as a key protection for Black Lives Matter protesters today — is telling.
“Some might say, ‘Well, we’ve gone full circle and the focus has come back on Black folks’,” Kassem said. “But I don’t think there’s been a period where Black folks have not been in the cross-hairs… The dominant theme is really continuity. Because there really hasn’t been a long period of time when Black folks in this country have been exempt from surveillance.”
September 11th Special Coverage
New York Public Radio has extensive programming planned to commemorate the 20th anniversary of the attacks of September 11, 2001. It includes news analysis and coverage on WNYC radio and Gothamist, special live coverage of the memorial on September 11, news coverage in the days leading up to September 11, and music of reflection and commemoration on classical station WQXR. Details follow:
September 11 and NYPD: The Legacy
About this series: Dozens of journalists and engineers in the WNYC newsroom came together to produce this series for Gothamist and WNYC radio. The series, which ends on September 11, explores how the terror attacks 20 years ago fundamentally changed the NYPD. The 20th anniversary comes amid another critical moment in U.S. history: a reckoning over race and policing, here in New York City and across the country. Over the last two decades, the NYPD has undergone a dramatic transformation, growing in capacity, reach, and power. Those changes are evident today in virtually every aspect of policing in New York City — from the department’s enforcement around street protests, to its vast international network, to its presence on mass transit, to its all-round philosophy of public safety.
Day One: NYPD’s history from founding to 9/11
Day Two: How NYPD’s Powers Expanded After 9/11
Day Three: A Legacy of Police Surveillance (Part One and Part Two)
Day Four: See Something, Say Something
Day Five: America’s Mayor and NYPD
Day Six: Living with Trauma: COVID-19 and 9/11
Day Seven: The Sacrifice of Survivors
Live Memorial Coverage
On September 11, WNYC’s Brian Lehrer will host special live coverage of official memorial ceremonies starting at 8:35 a.m. At 11 a.m., WNYC will air “Blindspot: The Road to 9/11,” a two-hour radio documentary adapted from the nine-part podcast hosted by WNYC’s Jim O Grady.
Classical music station WQXR also has special programming planned throughout the day on September 11. The program includes a asegment on John Adams’ Pulitzer Prize-winning composition “On the Transmigration of Souls,” the Brooklyn Youth Chorus and the New York Philharmonic.For other radio news programming planned during the week click here.