New York Police Versus U.S. In Fight Against Surveillance

Nov 25, 2008 1:26 PM

An effort by the New York Police Department to get broader latitude to eavesdrop on terrorism suspects has run into sharp resistance from the Justice Department in a bitter struggle that has left the police commissioner and the attorney general accusing each other of putting the public at risk.

According to The New York Times, the Police Department, with the largest municipal counterterrorism operation in the country, wants the Justice Department and the Federal Bureau of Investigation to loosen their approach to the federal law that governs electronic surveillance. But federal officials have refused to relax the standards, and have said requests submitted by the department could actually jeopardize surveillance efforts by casting doubt on their legality.

Under the law, the government must in most cases obtain a warrant from the special Foreign Intelligence Surveillance Court before it can begin electronic monitoring of people suspected of spying or terrorism. The requests are subjected to sharp scrutiny, first by lawyers at the F.B.I., then by lawyers at the Justice Department and finally by the court itself.

New York’s department, as a local police force, cannot apply directly, but must seek warrants through the F.B.I. and the Justice Department. The police want those agencies to expedite their requests, and say that the federal agencies unfairly blocked the city’s applications for surveillance warrants, first in June and then in September. The disagreement, in which the Bush Justice Department has taken a more cautious approach than police officials, is something of an unexpected twist for an administration that has more often seemed willing to stretch legal boundaries to fight terrorism.

The dispute has played out since midsummer in a highly unusual exchange of letters between Raymond W. Kelly, the police commissioner, and Michael B. Mukasey, the attorney general, in which each accuses the other of mishandling terrorism cases and embracing an approach that made the public more vulnerable. The letters have not been publicly released.

While the letters do not specifically identify the target of the eavesdropping requests, Mukasey said that the Police Department had sought authority in one of them to eavesdrop on “numerous communications facilities” without providing an adequate basis for their requests. Some officials who have been briefed on the cases said the requests, from the police Intelligence Division, were unusually broad, and included telephones in public places, like train or subway stations, rather than phones used by a specific individual.

Even in the best of times, the police and the F.B.I.’s New York office can be quarrelsome partners, and current and former officials say the dispute between the two — which share overlapping responsibilities for security in New York — has brought the relationship to a new low.

The inability of the Justice Department to resolve the conflict may mean that the matter ends up in the hands of Eric H. Holder Jr., who is expected to be nominated by President-elect Barack Obama to become the next attorney general. Based on Obama’s statements during the campaign, it appears unlikely that his administration would adopt a more permissive attitude toward eavesdropping than the Bush administration.

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