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The New York City Police Department has asked a federal judge to consider sealed testimony from its intelligence commissioner as evidence that rules governing police surveillance will hamper terrorism investigations, according to court papers filed Tuesday. The matter first arose in late September, when the department asked Southern District of New York Judge Charles S. Haight Jr. to modify a 1985 consent decree restricting surveillance of political activity unless police have suspicion of criminal activity. The 1985 “Handschu” decree, named for Buffalo attorney and family law expert Barbara Handschu, settled a class action lawsuit brought against the city by political groups, including the Black Panthers, in 1971. Under the decree, the police must ask the three-member Handschu Authority, made up of two law enforcement officials and a civilian, for permission to conduct such investigations. The police department, citing the need to monitor terrorist groups and prevent future attacks, asked Judge Haight in September to modify the agreement so police officers would not need permission or suspicion of criminal activity to investigate political groups. Though the department’s papers included testimony from David Cohen, deputy commissioner of intelligence, a letter from a city attorney asked that additional testimony from Cohen be reviewed by “the court alone.” The letter described the testimony as “based upon confidential or sensitive information which cannot be divulged to the public at large without compromising both the viability of an ongoing investigation and the lives and safety of confidential informants.” In papers filed Tuesday, attorneys who represent the original Handschu plaintiffs described the request as “drastic,” and said the department was essentially trying to modify the decree “without permitting it to be litigated through the adversary process that is the basic framework of our court system.” The plaintiffs’ attorneys urged Judge Haight to reject the testimony, or at least let them review and rebut it in confidence. They requested a hearing to determine why the testimony was essential to the department’s case. The plaintiffs’ attorneys also lashed out at the request to modify the agreement, saying the police department was asking the court to abandon it, even though its restrictions were minimal. “The idea behind the settlement was that it was supposed to act as a protection against overzealous police spying, which can be expected to arise in times of political fear such as the present,” the papers say. Assistant Corporation Counsel Gail Donoghue, who wrote the letter to Judge Haight and is handling the case for the city, said she could not comment on the letter or the nature of the ongoing investigation. Though she said she had not seen the plaintiffs’ papers, Donoghue said that characterizing the Handschu decree as not overly restrictive “does not comport with its plain language and meaning.” In a brief and declarations from two attorneys, the Handschu plaintiffs argued that the decree was meant to effect permanent changes to the police department’s practices. They described the request to modify those practices as “a double-cross of the people of the city.” Though the attorneys conceded that the city now faces terrorism threats that were only “dimly perceived” when the agreement was crafted, the lawyers accused Cohen of giving one-sided testimony and distorting “his account to make the circumstances seem portentous.” “Commissioner Cohen wants the power to keep files on everyone who engages in political activity, even when there is not the slightest indication of criminal activity,” Jethro M. Eisenstein of Profeta & Eisenstein, one of the attorneys representing the Handschu plaintiffs, wrote in a declaration. “Commissioner Cohen wants to start keeping files on all of us, or perhaps all of us who are Muslim, but he has not shown how such wholesale record collection and infringement of First Amendment rights will advance the safety of our city.” The papers said that Cohen’s testimony from September, which recounts several terrorist plots and financial operations, had implied that “Muslims should be investigated just because they are Muslims.” Eisenstein said in an interview that the “modified” Handschu agreement would give New York City police more leeway in conducting investigations into political groups than the Federal Bureau of Investigations. He said that under guidelines amended in May, the FBI can investigate political groups only when it has information indicating the possibility of actual criminal activity. “It was deliberately made very low,” Eisenstein said of the Handschu standard. “They simply have to be able to say, ‘we want to investigate this person because.’” In his declaration to the court, Eisenstein said that Cohen’s testimony “contains significant factual distortions and inaccuracies about the Islamic community in the United States today.” He added that the examples cited by Mr. Cohen — such as financial connections between Sheik Omar Abdul Rahman, the imam of the Al Farouq Mosque in New Jersey, and Osama bin Laden — entailed a clear “criminal predicate” that made Handschu a non-issue. Abdul Rahman is serving a life sentence for his involvement in a failed 1995 plot to destroy New York City landmarks. Osama bin Laden’s whereabouts remain unknown. The plaintiffs’ court papers also rejected any comparison between the Handschu agreement and a consent decree in Chicago that was modified by the 7th U.S. Circuit Court of Appeals in Alliance to End Repression v. Chicago, 237 F.3d 799 (2001). “We submit that the Chicago decree was more restrictive, complex and difficult to comply with than the decree in this case,” the attorneys argue. The plaintiffs are also being represented by Paul G. Chevigny, a professor at New York University School of Law School; Franklin Siegel of City University of New York Law School; and Martin R. Stolar, a private attorney.

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