Without Any Legal Basis, The NYPD Has Been Classifying Its Own Documents For More Than A Decade

from the aw,-how-cute!-it-thinks-it's-above-the-law! dept

Under the guidance of Chief Ray Kelly and Mayor Mike Bloomberg, the NYPD has transformed into an autonomous militarized force. Technically, it answers to Bloomberg and Kelly, but they've both shown extreme amounts of resistance to reining in any of the PD's excesses.

Any attempts at bringing oversight and accountability to the force are met with anger and condescension, despite the fact that the NYPD's casual abuse of New Yorker's civil liberties are the subject of major lawsuits and city council legislation, as well as a sizable contributor to the city's annual outlay of $700-800 million in settlements.

We've previously discussed the department's secretiveness that has seen it described by investigative journalists as worse than the NSA and FBI when it comes to responding to FOI requests. (Not for nothing does the New York law governing these requests do business under the acronym "FOIL.") But the NYPD is doing something no other city law enforcement agency has done: classifying its own documents.

Since at least 2003, the New York Police Department has been labeling some of its internal documents "Secret," a designation that has baffled government secrecy experts, journalists and civil liberties lawyers.

By labeling documents "secret," the Intelligence Division appears to be operating its own in-house classification system, similar to those used at federal agencies like the CIA, where Intel's chief, David Cohen, previously worked for 35 years.

Some of the documents also include the caveat, in all-caps, that "No portion of this document can be copied or distributed without the exclusive permission of the policy commissioner or deputy commissioner of intelligence."

Why is this "baffling?" Because the NYPD's in-house classification system has nothing legal to back it up.

"You know what that [label] means? It means diddly," said Robert Freeman, executive director of New York's Committee on Open Government. "I think the police department is following the lead of the federal government. The difficulty is, in my opinion, it does not have a legal basis for doing that."

Christopher Dunn, associate legal director at the New York Civil Liberties Union, told HuffPost he has only seen the label on documents created after 2001. He agreed with Freeman that "as far as I know, this marking has no legal significance."

The NYPD remains a law unto itself. Bloomberg has referred to it as the "seventh biggest army in the world" (and his own "personal army") and has, over the course of his three terms, indulged every excess. It should be noted that former CIA officer David Cohen got the ball rolling on the civil liberties-violating "Demographics Group" (the one that labeled entire mosques as terrorist entities) late in 2002, which would explain the noticeable uptick in "SECRET" documents in 2003. Nothing drives overclassification more than a combination of dubious legality and working hand-in-hand with national intelligence agency liaisons.

And it would appear that the NYPD still has lots of secrets it's not willing to share with the public. HuffPo points to this story from 2011 in which Chief Kelly makes the claim that the NYPD could "take down an airplane" thanks to its anti-aircraft weaponry. That itself should be troubling enough and a strong indicator that Bloomberg and Kelly are better qualified to run a banana republic than an American city, but when asked to comment on the PD's anti-aircraft guns, Bloomberg responded with this smirk of a statement:

"New York City Police Department has lots of capabilities you don't know about and you won't know about them."

That's comforting. Nothing like having the commander-in-chief of the "seventh biggest army in the world" tell you his force might have even bigger tricks up its sleeve than anti-aircraft weapons.

On the bright side, Mayor for life Bloomberg will be leaving soon and the front runner for his position, Bill De Blasio, gave the police force a failing grade for its responsiveness to FOI requests and will be likely looking to force the PD to shoot for a low-C at minimum. If Chief Kelly sticks around, though, De Blasio will have an uphill battle to fight against the ingrained arrogance and contempt that pervades the NYPD's upper management.

Filed Under: classification, michael bloomberg, nypd, ray kelly, secret

Senate Intelligence Committee Has Been Able To Challenge Classification Of Documents For Forty Years; It's Just Never Done It

from the going-to-need-a-thorough-dusting-before-being-usable,-it-would-appear dept

More problems have surfaced related to the overseers that are supposed to be providing the oversight the NSA keeps pointing to while swiftly sweeping terabytes of data under its brand-new Utah rug. A few representatives have expressed their frustration about keeping the public in the dark, but have seen little opportunity to rectify the situation due to the relevant documents being classified.

Ali Watkins, writing for McClatchy, points out that these reps' hands haven't actually been tied this whole time.

Outspoken members of the Senate Intelligence Committee have said frequently that they wanted to warn the public about the National Security Agency’s sweeping collection of telephone records but the program’s highly classified nature prevented them from making public reference to the programs.

That, however, is not the full story. Buried in the pages of Senate Resolution 400, which established the Senate Select Committee on Intelligence in 1976, is a provision that allows them to try. Across those nearly 40 years, it’s never been used.

The committee’s failure to make use of the provision even once, critics say, underscores a problem with congressional oversight: Congress has proved unwilling to openly question the intelligence agencies’ claims that something must remain secret.

Four decades without a single challenge being raised. That's rather odd (or obsequious, if you prefer), considering the provision was added with the intent of providing an adversarial avenue to prevent intelligence agencies from controlling the dialog. This addition was added as the Church Committee was replaced by the Senate Intelligence Committee.

Senators foresaw the likelihood of a conflict between the intelligence agencies and the legislative branch. The legislation that established the committee called for it to “provide vigilant legislative oversight over the intelligence activities of the United States.”

As a part of this oversight, Section 8 of the resolution lays out a process by which a member of the Intelligence Committee may seek the declassification of information that he or she thinks is of public interest, even if the executive branch labels the material top secret.

“The select committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure,” the section reads.

If these senators saw the possibility of conflict 40 years ago and deemed it necessary to add in some balance, why has every representative since that point refused to challenge intelligence agencies?

One reason is the Intelligence Committee itself, which has tended to take the side of the agencies or the administration. Back in 2003, Sen. Bob Graham challenged the classification of a portion of a report pertaining to the 9/11 attacks. Despite the fact that such challenges are supposed to be put to a vote within the committee, Graham received a letter back stating his request had been denied without a vote.

This problem continues to this day as the Senate Intelligence Committee headed by Dianne Feinstein and Saxby Chambliss has been more interested in coming to the NSA's defense and pushing through extensions of Bush-era policies with little to no debate. When the news first broke about the NSA's court order to Verizon demanding records on millions of customers, Feinstein and Chambliss said they'd known about the program since 2007. The problem is, many other senators didn't know, or didn't know the extent of the collections.

With representatives like Feinstein and Chambliss running interference for intelligence agencies, it's unlikely any such challenges would have survived a committee vote -- if they received one at all. But a larger problem is the fact that Senators themselves seem to be unaware such a provision exists, including one of the most vocal opponents of the NSA's programs, Ron Wyden.

Asked about the authority, Wyden confessed that he didn’t know the provision existed. His Intelligence Committee colleague Sen. Tom Coburn, R-Okla., also said he wasn’t aware of it.

Once again, we have an entity that the NSA points to as the all-important "oversight" being cut out of the loop by those heading up a committee that should, at least part-time, engage in an adversarial role. The Intelligence Committee's leaders have gone completely in the opposite direction, acting as a PR flack for the agency and holding as many cards as possible close to their chests.

If Feinstein and Chambliss were aware of this provision, they certainly never attempted to use it, much less inform anyone critical of the government's surveillance programs. Those heading up the House Intelligence Committee have withheld information from both long-term Congressmen and newly-elected representatives. It's not much of a stretch to believe the Senate Committee has done the same.

That the NSA uses the term "oversight" to grant its overreach an air of legitimacy is no small matter. It's very hard to believe the agency heads are ignorant of the protective wall these committee heads (both in the House and the Senate) have erected around them. But it's even more disturbing to find out this sort of behavior has gone on for nearly four decades -- that representatives aware of the provision allowing them to challenge overclassification have instead chosen to place the interests of these agencies ahead of the interests of the public.

The idea of a secret agency being "subject" to oversight has always been a bit of a joke. As more ugly truth has risen to the surface, the joke has morphed into a profane buzzword the agency tosses around as post facto whitewash to give all of its transgressions a thin sheen of respectability.

The real problem is that the committee and the agency's desires seem to be permanently intertwined. If 40 years have gone by unchallenged through regime changes and periodic bursts of "throwing the bastards out," it's unlikely the next 40 years will bring any remarkable changes.

Filed Under: classification, dianne feinstein, over classification, ron wyden, saxby chambliss, senate intelligence committee