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A federal judge in New York on Wednesday approved the Police Department’s proposed guidelines for the surveillance of political groups, likely ending a five-month conflict between city police and civil liberties attorneys. The guidelines were drafted at the request of U.S. District Judge Charles S. Haight Jr. of the Southern District of New York, who last month agreed that an 18-year-old consent decree that limited the New York City Police Department’s ability to investigate political groups was outdated in light of terrorism threats. The judge said he would approve substantial modifications to the decree as long as the department adopted internal guidelines similar to those followed by the FBI. Wednesday, writing in Handschu v. Special Services Division, 71 Civ. 2203, the judge said his request had been followed “with meticulous care.” He said he would officially modify the decree when the department had circulated the rules to its officers and included them in a handbook. Under the new rules, the department will no longer need to obtain specific information of criminal activity before investigating a political group. In addition, officers will not have to ask permission of a three-member panel, known as the Handschu Authority, before beginning investigations. The judge’s findings Wednesday marked a quiet, amicable resolution to a contentious legal battle, during which civil liberties attorneys argued that the department’s proposed changes would leave New Yorkers at risk of being spied upon while they engaged in First Amendment activity. The original decree, named for lead plaintiff and Buffalo, N.Y., attorney Barbara Handschu, settled claims by political groups who allegedly had been investigated by the NYPD for their political views. In exchange for federal restrictions on such investigations, the plaintiffs’ civil claims were waived. Since September 2002, the Police Department, led by Deputy Commissioner of Intelligence David Cohen, a 35-year veteran of the Central Intelligence Agency, has argued that the decree prevents police officers from infiltrating groups that might have ties to terrorism, putting the city’s safety at risk. Haight’s ruling last month essentially stripped away restrictions on the Police Department not already defined by the U.S. Constitution, though it did leave the Handschu Authority in place to review allegations of warrantless investigations. Such investigations still remain under Haight’s jurisdiction, and the department cannot modify its internal guidelines without first applying to the court. The guidelines encompass 14 single-spaced pages and clearly emphasize preventing crime, rather than solving it after it occurs. The rules define three “levels” of investigation: checking of leads, preliminary inquiries and full-fledged investigations. The latter two must be approved by commanding or executive officers in the NYPD. The rules also authorize the department to retain information it collects and to share it with other law enforcement agencies, another practice that was restricted under Handschu. WRITTEN APPROVAL Most important to the civil liberties attorneys who helped create the original decree, the rules require that officials approve investigations in writing, and that the department retain all documents relevant to an investigation for at least five years. “I think that this is actually a pretty good set of rules,” said Jethro Eisenstein of New York’s Profeta & Eisenstein, one of the civil liberties attorneys. Eisenstein and his fellow attorneys did contest several aspects of the proposed rules, and the Police Department agreed to a few minor changes. But any outstanding disagreements were decided by Haight in favor of the police, such as the inclusion of a disclaimer that states the guidelines are internal and create no additional rights for prospective plaintiffs alleging an improper investigation. “It is an appropriate measure for a law enforcement agency to include,” Haight wrote. “Moreover … a violation by the NYPD of the Guidelines procedures could be regarded as relevant to liability in an action by a private party.” Assistant Corporation Counsel Gail Donoghue, who handled the motion to modify the decree for the police, said she was pleased with the ruling. “To the extent that people on both sides of the argument feel satisfied, that’s great,” she said.

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