“The only thing we have to fear is fear itself.” Franklin Roosevelt
FDR’s famous quote, made during a bank panic in 1933, turned out to be both prophetic and ironic. In the weeks following the Japanese attack on Pearl Harbor, the Oval Office must have resounded with the phrase, “the end justifies the means.” That would best describe the rationale for FDR’s internment of Japanese-Americans for the duration of WWII. The proclamation was a capitulation to the fear-mongering and racist sentiments of a country at war.
Fast forward to post 9/11 New York City and it seems likely a similar conversation took place in the highest offices of the New York Police Department. A recent Trib update discussed NYPD’s intelligence division and its federally funded mission to monitor and investigate Muslims in the community. NYPD reportedly received an unknown portion of $135 million from the feds to target homeland security issues, some of which the department used for targeted surveillance of mosques, Muslim businesses, Muslim students, their activities and their schools.
The Muslim community, according to New York Times reporter, Joseph Goldstein, has become extremely fearful of NYPD’s so-called loose approach. Goldstein interviewed Muslims who were hesitant to make any comment that not favorable of America, a reminder of the days following Pearl Harbor when Japanese neighborhoods flew more U.S. flags than any other.
NYPD Commission Raymond Kelly refused to apologize for his department’s single-minded approach. Instead, he remarked in a radio address that people have a short memory, that several terrorist plots have been thwarted since 9/11, and commented, “What we’re trying to do is save lives…the tactics and strategies we’ve used on the streets of this city have indeed saved lives.” Which could be rephrased in another context: The end justifies the means.
Rhetoric aside, there is a clear and present danger to our country from the jihadist sector of Islam. Commissioner Kelly rightly assumes his city is Target #1, and it would be unfair to disparage NYPD’s broad investigation of the Muslim community without discussion of the federal limits on gathering intelligence.
Since the dark days of the McCarthy era (which may be a more suitable comparison than Japanese internment, but never mind for now), Congress and the Justice department have added reams of new laws and guidelines on the methods for gathering, the amounts and the expiration date of intelligence information. These statutes apply to government officials and law enforcement agencies.
Let’s skip through the thick binder of information contained under the federal code, 28 CFR Part 23, and get to the heart of it. First and foremost, if an agency intends to gather intelligence on an individual or group, there must be a common theme: Criminal activity. For example, conducting surveillance on a confirmed criminal street gang or validated gang member could be permissible based on the documented criminal actions of its members. In contrast, undercover cops noting license plates and gathering names of individuals at a Kiwanis pancake breakfast would be in violation.
Commissioner Kelly is well aware of this, and NYC Mayor Michael Bloomberg has publicly stated, “Everything the NYPD has done is legal.” We would like to believe this, especially because no one wants even a small-scale repeat of the events of September 11, 2001.
The extensive investigation, however, has not sat well with the Muslim community, civil rights advocates or the media. Part of that mistrust might be based on Commissioner Kelly’s stance on the topic, which appears to brook no argument. His pitbull stance on the matter may be admirable in some quarters, but it is an insufficient explanation.
If indeed his intelligence detectives are following a criminal nexus outward, then he should say so. If that investigation goes beyond the boundaries of his five buroughs, then he should work with the other agencies upon whose jurisdiction his investigators are trampling. If the public and the media express concern over the Commissioner’s program, then he should spend more time explaining it and less time refusing to apologize for it.
Instead, with little communication to the public or its partner agencies, the NYPD appears to be going it alone. Armed with federal money (and backed by a federal government that has refused to exercise control over the money it has provides) and a single-minded purpose, Commissioner Kelly’s broad sweep is likely to hinder the future cooperation of New York’s Muslim community.
In that case the end will not justify the means.