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2007-03-26

NYPD Debates Civil Liberties Attorney over Police Spying of Protesters

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Guests

Paul J. Browne, New York City Police Department’s deputy commissioner of public information.

Jethro Eisenstein, civil rights attorney. Since 1971, he has been a co-counsel on the Handschu case, which resulted in putting limits on how the police carries out political investigations.

Joshua Kinberg, arrested at the 2004 RNC protests for his project "Bikes Against Bush." He was monitored by police in the lead-up to the protests.

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The New York Times has revealed that undercover New York City police officers traveled around the country, Canada and Europe to spy on protesters planning to attend the 2004 Republican National Convention. We host a debate with NYPD spokesperson Paul Browne and civil rights attorney Jethro Eisenstein. We also speak with one of the hundreds of targets of the NYPD surveillance operation. Joshua Kinberg was arrested at the RNC protests and is the subject of four pages of surveillance records. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We continue this discussion about surveillance, the New York Times exposé, New York police infiltrated groups planning protests at the GOP convention of 2004. We’re joined by three guests. Paul Browne is on the line with us, the New York City Police Department’s deputy commissioner of public information. Here in our firehouse studio, civil rights attorney Jethro Eisenstein. Since 1971, he’s been a co-counsel on the Handschu case, which has resulted in putting limits on how the police carry out political investigations. And in San Francisco, we are joined by Joshua Kinberg, who was one of the targets of the investigations. We’ll talk about that in a minute.

But let’s begin with Paul Browne. Can you give your response to the New York Times exposé on this level of surveillance before the 2004 Republican convention?

PAUL BROWNE: Well, there’s a couple of things I just want to correct. One, we were not sharing information with other police—intelligence agencies around the country. I think that’s how you opened it up. And the list was not quite as extensive as the Times reported of states and countries, etc. However, that’s sort of besides the point. We were not engaged in the business of spying on lawful activity, which is sort of the implication of certainly what the New York Civil Liberties Union is saying. We were concerned about relatively small groups, some of them embedded in bigger ones, but around the country, coming to New York with plans to try to stop delegates from getting to the convention, to disable their buses, to "brick and bomb," was their terms, certain locations like Starbucks and McDonald’s. And we took the appropriate action to gain information about them.

These listing of other groups, mentions of other groups, some of the things that haven’t been mentioned was the U.S. Open, the Yankees home game. Anything that had to do with the convention that was going to have an impact on police resources was reported every day as we got closer to the convention. That wasn’t an intelligence operation; that was just a matter of apprising the department of everything. You know, if the City Council was calling for the change of the venue, which they did, for example, of changing—that if certain things weren’t done, the Republicans shouldn’t be allowed to have the convention in New York, that was noted. But this wasn’t a matter of spying. This was simply a matter of keeping the department informed. A lot of this was taken from websites and just newspaper articles, etc. It wasn’t a matter of having somebody spying on a legitimate activity.

AMY GOODMAN: What about organizations like, for example, Billionaires for Bush, the War Resisters League?

PAUL BROWNE: Well, exactly the—it’s exactly the same thing. That’s exactly the same thing. People who—there’s lists. What the—what the Times article is referring to is just daily lists of just activities. And like I said, some of them might be the opening of the U.S. Open tennis matches, in addition to the fact that there’s going to be a demonstration or an event associated with—they’re not all sinister groups. We’re not implying that, and we weren’t spying on them.

AMY GOODMAN: And the stamp that says "NYPD Secret"?

PAUL BROWNE: Sorry?

AMY GOODMAN: The stamp that says "NYPD Secret" on these documents?

PAUL BROWNE: Well, I haven’t seen the documents that say that. I don’t know what he was referring to, but there may be some. There was some, I mean, certainly, sensitive information, but ultimately public, because they came from criminal records.

One of the things Jim Dwyer mentioned was we looked at—we were concerned about certain individuals. And he mentioned one of them, Richard Picariello. His political views were that the U.S. was imperialistic and oppressive, and in the past, in the late ’70s, 1978, he was sentenced for his role in blowing up a plane at Logan Airport in connection with those, his political views. He also blew up two National Guard trucks at the Dorchester Armory in Massachusetts and bombed the Essex Superior Courthouse in Newburyport in Massachusetts. And then he fled to Canada. And when he returned, he bombed a power plant in Maine. That was somebody we were concerned about. And although he might be meeting in Massachusetts with others who were not engaged in or had intentions of engaging in violent activity, his past certainly concerned us, and his intention on coming to New York rightfully concerned the police department.

AMY GOODMAN: Jethro Eisenstein of the New York Civil Liberties Union, your response?

JETHRO EISENSTEIN: Well, first, full disclosure: I’m not of the New York Civil Liberties Union. I am one of the lawyers who brought the Handschu case that created the set of rules that governs police surveillance of political activities. The body of information that I can respond about is what Jim Dwyer has reported. And what Jim Dwyer has reported is that over and over again the police department went out to organizations that gave no indication of being interested in illegal activity, instead gave indication of being—of intending to participate in protest activity around the convention, and continued to surveil those organizations, infiltrate them undercover officers and send reports about them.

And that’s the—you know, Commissioner Browne can, I’m sure, legitimately point to one or more, maybe several situations where investigations were legitimately based on people about whom the police department had reason to think that they could be involved in illegal activity. But that doesn’t really respond to the fact that the reporting in The New York Times suggests that there was widespread surveillance and report writing and dossier generating about people who were involved in no so such illegal activities.

PAUL BROWNE: No, I did respond to that. I said a lot of what is described as infiltration or surveillance was in fact just lists of activities, like I said, that were going to have an impact in New York, whether that was the U.S. Open having its tennis matches in New York or an unusual circumstance where you had the Yankees and the Mets having a home game in the same week—it doesn’t usually happen. It was our luck that it was going to happen during the week of the RNC. So, there was all sorts of things noted. This wasn’t a matter of—we weren’t infiltrating the U.S. Open in noting the fact that there were going to be activities here associated with that. And there were a host of RNC-related activities that we cited, but we were not investigating for illegal activity.

JETHRO EISENSTEIN: I’m sure that what Commissioner Browne says is true, but it still is not responding to what I’m talking about.

PAUL BROWNE: Well, I am responding. I’m saying where there was a concern of illegal activity—for example, there were groups, out of state, that were conducting courses on how to disable buses, with the aim of disabling the delegate buses on their way to the convention. There were groups that were planning to go in and prevent delegates from leaving their hotels, physically preventing them. There were others that were talking about smashing the windows of Starbucks and McDonald’s. There were some using tactics, ball bearings and slingshots and others, to use against the horses, mounted police, were we to use mounted police. All of that is a legitimate concern to the police department, and we investigated them.

AMY GOODMAN: And so, how did you deal with other police departments in investigating that, since they were, as you said, outside of the city?

PAUL BROWNE: Well, we usually were in phone contact with them.

AMY GOODMAN: With other police departments?

PAUL BROWNE: Right, but we weren’t—we were not—

AMY GOODMAN: And so, you’d share information you would have—

PAUL BROWNE: I think what you said initially was that we took all this information, then gave it to other police departments. That’s not correct.

AMY GOODMAN: Looking at Jim Dwyer’s piece: "From Albuquerque to Montreal, San Francisco to Miami, undercover New York police officers attended meetings of political groups, posing as sympathizers or fellow activists, the records show." He was looking at police documents.

PAUL BROWNE: Yes, so what’s the question?

AMY GOODMAN: So, he was saying that—

PAUL BROWNE: Well, some of those—some of those locations are incorrect, but many of them are correct.

AMY GOODMAN: Jethro Eisenstein?

JETHRO EISENSTEIN: I think that The New York Times would not have written a front-page story about a body of documents that showed that the police were time after time targeting organizations that were involved in illegal activity or planning it. The point of story, the reason why it is newsworthy, is that the story reports, Dwyer in particular reports, that over and over again the police reports of undercover activity relate to organizations that are not involved in training to disable buses or throw—

PAUL BROWNE: Well, I can tell you—

JETHRO EISENSTEIN: May I finish, please? May—

PAUL BROWNE: —for a fact there were groups who were not involved in illegal activity as a group, but had members, individuals in them, who were planning illegal activity.

JETHRO EISENSTEIN: Well, and there were also groups, according to Dwyer’s reporting, in which no one was involved and no one was planning that. And what was reported by the undercover was that they were renting buses, consulting bus schedules, giving first aid training, trying to figure out how to deal with the logistics of getting large numbers of people for peaceful protest to New York City. And may I also say that under the rules that the police department insisted on jettisoning in 2002, there was a very open procedure if the police department was interested in logistics issues. It’s called an "event planning inquiry," and it allowed the police department to call—

PAUL BROWNE: But we had—

JETHRO EISENSTEIN: Can I finish, please? It allowed the police department to—

PAUL BROWNE: Well, all I’m saying is, for logistic purposes, a lot of what’s being reported—

JETHRO EISENSTEIN: It allowed the police department to determine information in an open and above-board way, not by using undercovers.

PAUL BROWNE: Well, we do obtain information on logistics in an above-board way and not using undercovers. That’s my point.

AMY GOODMAN: Let me bring Joshua Kinberg into the conversation. He was arrested at the 2004 RNC protest for his project Bikes Against Bush, monitored by police in the lead-up to the protests. Joshua, explain your experience, as you talk to us from a studio in San Francisco.

JOSHUA KINBERG: Sure. First of all, I wasn’t actually arrested at any protest at all. I was actually arrested two days before the Republican National Convention, while giving an interview on the street with Ron Reagan from MSNBC on the Hardball program. So, I was actually arrested on television, on camera, while giving an interview and actually not protesting at all. And my project had to deal with—dealt with a piece of technology, a bicycle that could print chalk text messages on the street submitted by people online or through cellphone text messages.

AMY GOODMAN: First, the MSNBC Hardball interview, the picture was in The New York Times of you being arrested as Ron Reagan was interviewing you. But explain your bicycle and what happened to it and you.

JOSHUA KINBERG: OK. The bicycle project, Bikes Against Bush, was also part of my graduate thesis. It was also an art performance piece that I had also earned an artist’s grant to create, partially. And it was technology that I built. It was all very well documented online. It was all very public. It had been reported on extensively. What’s troubling to me is the fact that it was considered a threat and systematically prevented, and thus my very lawful and artistic activity of free speech and those who wished to participate in my project and exercise their free speech were systemically denied that opportunity.

AMY GOODMAN: Commissioner Browne, could you respond to what Joshua is saying?

PAUL BROWNE: Really, I can’t. I don’t know who the young man is or why he was arrested. I just read it, as you did, in the paper.

AMY GOODMAN: Explain, Joshua, then what happened to your bicycle.

JOSHUA KINBERG: All my equipment—computer, cellphone, electronic equipment and bicycle—was taken and was held for a year. Everything—every charges against me were dropped six months later, but the equipment was held longer, for unknown reasons. And I was unable to retrieve my equipment. Some of the equipment was never retrieved—the bicycle, for instance. Some of the equipment was partially damaged. I received a significant portion of the equipment a year after everything happened.

AMY GOODMAN: Joshua Eisenstein, if—sorry, Jethro, not to confuse you with Joshua—the issue of Handschu and how it fits into this story, and especially for listeners and viewers around the country who are taking this in right now, what Handschu means and what the most recent ruling means for police activity?

JETHRO EISENSTEIN: What shall I answer? How did it start or the most recent—

AMY GOODMAN: Give us a synopsis.

JETHRO EISENSTEIN: OK. In the late 1960s and early 1970s, concerned about widespread police surveillance of political activities, I and the Civil Liberties Union and other lawyers brought a lawsuit, which is called Handschu v. The Police Department, complaining about a whole raft of activities against political activists. To fast-forward, in 1980, the city agreed to a settlement with us, and the settlement took the form of a set of rules that struck a balance between the needs of law enforcement and the rights of people to engage in political activity without being subject to police surveillance.

Those rules were in place and effective from 1985 until 2002, when the police department came into court and claimed, on the basis of the threat of terrorism in the aftermath of September 11, 2001, that they could not live with the rules, that they were too restrictive. They obtained a significant loosening of the rules. And it’s important to note that they initially sought the elimination of the rules. And the judge, because of a constitutional doctrine that’s involved in consent judgments like that, gave a very strong indication that he was not going to agree to a complete abolition of the rules. So at the very last minute, they came in with a set of rules that were based on the FBI guidelines, and they said that if the judge would permit the lifting or the loosening of the rules, they would put in place these FBI guidelines. And the battle then—and the judge agreed to what they had done, and agreed to what they had done based on the threat of terrorism.

And we take the position that what happened thereafter is that what was put in place, a loosening that was put in place because of the threat of terrorism, was employed not against terrorism—or we don’t know whether it was—but was also employed widely against political dissent, political activity. And that became clear in early 2003 when the police started debriefing—they used that word—everyone who had been arrested for disorderly conduct about a whole raft of—with a whole raft of questions about their political beliefs, their political associations, their political views, what did they think about Israel and Palestine, had they voted for Bush, had they voted against Bush, what organizations did they belong to.

We went back in to the judge who had loosened the rules, and he then agreed to tighten them up somewhat. And what we’ve been fighting about ever since is exactly how tight they are. And the ruling that the judge made in February of this year was that the FBI rules that had been put in place are in fact binding rules that the police department must obey and that the people involved in the lawsuit can come into court and complain about violations of these rules, because the police department was taking the position that although the rules existed, they weren’t binding and no one could enforce them. So, what’s happened now is that they are enforceable.

AMY GOODMAN: Commissioner Browne, will the police department make these documents public?

PAUL BROWNE: Well, that’s an issue for the city lawyers, really, to comment on, and it’s being litigated now. Let me make one, I think, overarching point, which is sort of missed or is rarely mentioned when they talk about the police department and the RNC. And that is that we worked very, very hard to accommodate what the Times also described as the largest political protest in the history of American political conventions. We worked to accommodate 800,000 peaceful protesters. And we said repeatedly we anticipated it would be peaceful during the RNC, and we’re proud of our role in that. We also worked very hard to stop a small group. And in the end, the arrests in the RNC represented less than a half percent of those who participated in demonstrations against the RNC. We worked very hard to prevent those who had plans to create violence, vandalism or simply to stop delegates from attending the convention. And I think we did both successfully and within the law.

AMY GOODMAN: And the numbers of arrests we’re talking about, I think it was around 1,800 arrests—

PAUL BROWNE: Correct.

AMY GOODMAN: —in the lead-up to—during that week.

PAUL BROWNE: Yes, and you probably had, during the course of the week, a million protesters. You certainly had 800,000 on August 29th. And then those who were unhappy, they felt that United for Peace and Justice had kind of sold out, because they were peaceful and didn’t try and shut down the convention. They began their activities on the 31st, which involved some of the things I described—trying to prevent delegates from getting to the convention, stopping them in their lobbies or on their buses, etc.

And the only serious injury, by the way, during the whole convention was to a police officer pulled from a scooter and kicked unconscious by a protester. The police showed remarkable restraint throughout, and the city functioned, the convention went forward, and you had the largest demonstration in the history of political conventions go off very well.

AMY GOODMAN: The ruling that—or the findings that of these 1,800 people who were arrested, most were held far longer than most people would have been held for similar charges—

PAUL BROWNE: Well, yeah, because—yeah, we had a lot of those—

AMY GOODMAN: —with the belief that they were being held until President Bush spoke here in New York to stop the protest?

PAUL BROWNE: No, that’s an absolute—that’s the big lie that keeps getting repeated, that we held people for political reasons. What happened was, you had a lot of arrests in a concentrated period of time—over a thousand, that’s right, when normally you might have a hundred or so in the city arrested during that time. You also had individuals who would show no identification, which is—purposely slow the arrest process to try to keep the system kind of gummed up. And to a certain extent, that worked. But the notion that this was done for political reasons is the big lie that keeps getting repeated, but no matter how many times it gets repeated, it does not make it true.

AMY GOODMAN: Jethro Eisenstein, your response? And your response to the arrests and what is happening now?

JETHRO EISENSTEIN: Well, my response about the arrests can only be anecdotal, because I really have—I have only one case of a person who was arrested. And while not directly responsive, let me simply say that this person was involved in a Critical Mass ride the night—the Friday before the convention began. And with no warning, every one—the case has now been settled by the city. With no warning, everybody in that one-street area was simply penned in, everyone was arrested. These were all people who gave identification. They were all held for 24 hours, when they could have all been released from a police precinct or from the pier where they were held. Instead, they were taken through the system and held much longer.

And I always saw it—but this is only my personal opinion—as a sort of a dry run for large-scale arrests of people without individual attention, simply taking a bloc of people and locking them all up and then holding them for longer periods of time than were necessary. Certainly when I was down in court during that time, there was—the courts were ready, the lawyers were ready; every part of the system was there except the police department. The police department was not producing, as we say, bodies to get them arraigned and get them out.

AMY GOODMAN: Jethro Eisenstein, we’re going to have to leave it there. Thank you very much to Commissioner Paul Browne of the New York Police Department and to Jethro—as well as to Joshua Kinberg, the cyclist.

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