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NYPD Debates Civil Liberties Attorney Over Police Spying of Protesters

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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. [rush transcript included]

  • 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.


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

AMY GOODMAN: As we continue this discussion about surveillance, the New York Times expose, New York police infiltrated groups planning protests at the GOP convention of 2004. We are 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 has been a co-council in 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 will talk about that in a minute. But let’s begin with Paul Browne. Can you give your response to the New York Times expose on this level of surveillance before the 2004 Republican Convention?

COMMISSIONER PAUL BROWNE: Well, there was 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 beside 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 listings of other groups, mentions of other groups, some of the things that haven’t been mentioned was the US 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?

COMMISSIONER PAUL BROWNE: That’s exactly the same thing, that’s exactly the same thing. People who — there’s lists — what — 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 US Open tennis match 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 — the stamp that says NYPD Secret?


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

COMMISSIONER PAUL BROWNE: Well, I haven’t seen the documents that say that. I don’t know what he was referring to, but there may have been some. There was some — I mean certainly sensitive information, but ultimately public because it 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 Picarello. He —- his political views were that the US was imperialistic and oppressive and that in the past, in the late ’70’s, 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 are not engaged in or had intent to 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, infiltrated them undercover officers and send reports about them.

And that is 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 has 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 activity.

COMMISSIONER PAUL BROWNE: 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 US 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 way — 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 US Open and noting the fact that they 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.

COMMISSIONER 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 the 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 legitimate concern to the police department and we investigated that.

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.

COMMISSIONER PAUL BROWNE: Well we — usually we’re in phone contact with them.

AMY GOODMAN: With other police departments?

COMMISSIONER PAUL BROWNE: Right, but we were not-

AMY GOODMAN: And so you would share information you would have—

COMMISSIONER PAUL BROWNE: We were not, as you said, I think what you said initially was, that we took all this information and 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.

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

AMY GOODMAN: So, he was saying that —

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

JETHRO EISENSTEIN: The—I think that the —- the New York Times would not have written a front page story about a body of documents that shows 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, wire 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 -—

COMMISSIONER PAUL BROWNE: Well, I can tell you — -

JETHRO EISENSTEIN: May I finish, please?

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

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 is called an "event planning inquiry" and it allowed the police department to call and


JETHRO EISENSTEIN: Can I finish please?

COMMISSIONER PAUL BROWNE: Well all I am saying is, logistic purposes, a lot of what is being reported–— [cross talk]

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

COMMISSIONER 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 protest. 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 protests 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 cell phone text messages.

AMY GOODMAN: First the MSNBC Hardball interview, the pictures are 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: Okay, 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?

COMMISSIONER 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, computers, cell phone, electronic equipment and bicycle was taken and was held for a year. All, everything — all the 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 my 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 — Sorry, Jethro Eisenstein, 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 a police activity.

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

AMY GOODMAN: Give us a synopsis.

JETHRO EISENSTEIN: Okay. In the late 1960’s and early 1970’s, concern about widespread police surveillance of political activities, I and the Civil Liberties Union and other lawyers brought a lawsuit which is called Handschu vs. 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 in to 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.

But 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 — 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.

That became clear in early 2003 when the police started debriefing, they used that word, everyone who had been arrested for disorderly conduct. They got a whole raft, 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 into the judge who had loosened the rules and he then agreed to tighten them up somewhat. And what we have 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. What’s happened now is that they are enforcing them.

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

COMMISSIONER 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 I think is rarely mentioned when they talk about the police department, the RNC. That is, that we work very, very hard to accommodate what the Times also described as the largest political protest in the history of American political conventions.

We work 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 the demonstrations against the RNC. We worked very hard to prevent those who had plans to create violence, vandalism or simply stop delegates from attending the convention. I think we did both successfully and within the law.

AMY GOODMAN: And the numbers of arrests we are talking about, I think it was around 1,800 arrests, in the lead up to and during that week.

COMMISSIONER PAUL BROWNE: That’s probably correct. 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 these 1,800 people who were arrested, most were held far longer than most people would have been held for similar charges? With the belief that they were being held until President Bush spoke here in New York to stop the protest?

COMMISSIONER PAUL BROWNE: 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 100 — 1,000, that’s right when normally you might have 100 or so in the city, arrested during that time. You also had individuals who refused to show no identification which would slow the process to try and keep the system sorta 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 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 responsible, 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 of the cases has now been settled by the city, by the way. But with no warning, everyone 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 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 block 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 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 as well as to Joshua Kinberg, the cyclist.

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