NYPD Anti-Terror Boss Says Domestic Threats Require New Legal Tools

 

Law enforcement needs additional tools to defend against a growing threat of domestic terrorist groups, the NYPD top counterterrorism and intelligence official told the WBAI Max & Murphy Show on Wednesday.

Eighteen years after terrorists slew thousands by hijacking four airliners and attacking the World Trade Center and Pentagon, Deputy Commissioner for Counterterrorism and Intelligence John Miller said the threat to New York has evolved from spectacular plots directed by large “terrorist bureaucracies” based overseas to “lone wolf” terrorists who—perhaps goaded on by propaganda from Al Queda or other players—decide to commit acts of terror.

That evolution in tactics has been well-documented for years. Newer, said Miller, is a shift in the ideology of the groups threatening U.S. cities.

“What you have also seen is an adaptation of these tactics and practices by completely unrelated groups including virulent right-wing groups that are doing violence in the name of White supremacy or involuntary celibates or neo-Nazism, where they are using the same types of propaganda, the same types of videos, the same types of instructions, the same types of encryption,” Miller said. “So we really have our hands full.”

New laws needed?

According to Miller, the diversifying ideology of terrorism has changed where NYPD intelligence officers are looking. “We have more people than we had before paying attention to that end of the threat – I’m talking neo-Nazi groups, White supremacy,” he said.  While those groups have little presence here, terrorists from elsewhere—like James Jackson, who came from Baltimore in 2017 to kill a randomly selected victim on Ninth Avenue in hopes of starting a “race war“—could stage attacks in the nation’s media capital just to elevate their profile.

Miller, who has moved back and forth between journalism and law enforcement over the last quarter century (he’s a veteran of WNEW, WNBC, ABC and CBS News as well as the LAPD, FBI and Office of the Director of National Intelligence) said the federal legal tool-kit is not well suited to that domestic threat.

“We don’t have the suite of laws that we have against Al Qaeda and ISIS. If it’s Al Qaeda or ISIS, it’s a designated foreign terrorist group. If you send them socks and boots, that’s a federal crime. You’ll go away for 15 years.” But plots with purely domestic roots are treated differently. Sayfullo Saipovm, who killed eight people in the 2017 truck assault on the West Side bike path, faces terrorism charges. James Fields, who killed Heather Heyer in the 2017 Charlottesville attack, faced only murder and hate crimes charges.  While federal domestic terrorism laws exist, Miller said, they typically require the use of a bomb or a weapon of mass destruction. “You have to take that domestic terrorism law and rethink it.” (New York State, Miller noted later, does have a more broadly applicable terrorism law on its books.)

The existence of domestic terrorism is far from new, to the U.S. or to New York. An anarchist killed President McKinley in 1901 in Buffalo, and while no one was ever convicted in the 1920 Wall Street bombing that slew 30 people, blame was placed on an anarchist group called the Galleanists. They are—for troubling reasons—not commonly categorized as such, but many acts of White supremacist violence throughout the 20th Century bore all the hallmarks of terrorism. Other movements, from Puerto Rican nationalists to the Weather Underground, have also blown stuff up in New York.

Questioning police tactics

Almost as old as domestic terrorist threats to New York City are concerns about what the police would do with the powers they say they need to defend us against danger. The court settlement that governs NYPD investigations of political activity, known as the Handschu Agreement, grew out of a case against the Black Panthers in the early 1970s.

More recently, questions about whether the NYPD had violated civil liberties dogged the Bloomberg administration, during which the NYPD infiltrated protest groups, inserted informants into mosques and catalogued restaurants frequented by Muslims.

Asked if there had been excesses during that era, Miller told WBAI the 2017 settlement of a lawsuit concerning those tactics validated the NYPD’s approach.

“In the case in New York City, we sat down with the advocates. We sat down with the lawyers. We sat down with the plaintiffs in the Handschu agreement … and that case was settled in a couple of important ways. One, without any admission of wrongdoing by the NYPD because we were able to demonstrate to the point that we didn’t have to make that admission that we hadn’t done anything wrong [and two] we demonstrated that we were exceeding what the Handschu agreement required and they said, ‘If we’re exceeding, why don’t we codify that and put it in?’ … and we paid no damages.”

The settlement Miller is referring to covered two lawsuits – one by the Handschu lawyers and another called Raza v. City of New York. The settlement does state that, in meetings with the plaintiffs, the NYPD laid bare an investigative process that “entailed extensive review and scrutiny of the facts on which investigations were based” and featured “a collaborative decision-making process involving numerous civilian analysts, lawyers and senior members of the NYPD.” And it’s true the city paid no damages, but according to the ACLU that is because none were sought. The city did agree to pay $2 million in lawyers’ fees to the plaintiffs, as well as to install a civilian representative to review the launching and conduct of investigations and to remove from its website a controversial report called Radicalization in the West. The initial Raza/Handschu settlement was held up when the federal judge overseeing one of the cases asked for more protections for the civilian representative.

In a second settlement arising out a third lawsuit, Hassan v. City of New York, the city did agree to pay very modest damages to plaintiffs and to pay legal fees for a total bill of $1 million.

A 2016 report by the city’s Department of Investigation offered a similarly mixed verdict. It found that the NYPD was “able to articulate a valid basis for commencing investigations” but failed to follow other rules. “For example, when applying for permission to use an undercover officer or confidential informant, the application must state the particular role of the undercover in that specific investigation, so that the need for this intrusive technique can be evaluated,” the report found. “These failures cannot be dismissed or minimized as paperwork or administrative errors.”

Keeping tabs on surveillance

Advances in surveillance technology raise new questions. For instance, the accelerating use of facial-recognition technology is encountering special scrutiny.

“We’re not scanning across social media and vacuuming up faces from high quality pictures. We’re not taking over 10,000 security cameras,” Miller said. “If you get robed in the street and the guy hits you over the head or shoots you and flees and we find a camera in the area, and that captures a good image of somebody’s face that is facial recognition quality (and not all of them are), we’ll run that against the mugshots of criminals we have in our own files, and it’ll propose one or more matches,” and detectives will pursue leads based on that. “Nobody has ever been arrested or charged with any crime in New York City based off of facial recognition.”

Miller and the NYPD have for years resisted a proposed city law, called the Public Oversight of Surveillance Technology (POST) Act, that would require the department to make public the safeguards, policies and training it has in place for each surveillance technology it uses. Miller told Max & Murphy that the law was drafted by advocates, not legislators, and sought to force the NYPD to “to report to us every single piece of technology that records any image or voice or photos or videos: what it is, how it works what its limitations are how it’s used.”

Miller continued:

“If you are me and you are putting undercover officers out with terrorists, with weapons; if you are the chief of narcotics and you’re putting people in dangerous rooms with armed criminals who would kill you if they thought you were a law enforcement agent and you want to describe what that equipment is, how it works, what it’s limitations are, what it looks like, who makes it, the manufacturer, everything—two Google searches away from being able to find an image of where we’re hiding listening devices or video recording devices—that’s irresponsible. It’s dangerous and it’s callous to people who put their lives on the line.”

Miller said the NYPD offered a compromise version of the bill and Council sponsor Daniel Garodnick and his allies refused to bend.

Garodnick, who was term-limited out of office in 2017, does not recall it that way.

“We we’re always willing to have a serious conversation with the NYPD about how to ensure the safety of undercover officers as well as the public,” he told City Limits in a brief phone interview Thursday. “They were not willing to have a serious conversation about that with us.” (The proposed law can be read here.)