by Mark Munson
Revelations that the New York Police Department has conducted a program of intelligence collection and analysis targeting Muslims and various Muslim groups since the terrorist attacks of September 2011 raise numerous questions. What are the evolving boundaries of intelligence collection and analysis in a world where information is easily gathered by open source means? What is the impact on civil liberties when the state does not need to employ intrusive surveillance to gather information about citizens? While this paper neither defends nor wholly condemns the NYPD’s intelligence program, it does attempt to understand it in the context of intelligence best practices and assess its effectiveness. Based on the information that the Associated Press has uncovered and published in a series of stories since last year, it does not seem that the NYPD has conducted an effective intelligence program, and any claims that it has enabled law enforcement agencies or the intelligence community to stop future terrorist attacks ought to be dismissed.
Under David Cohen, a former Deputy Director of Operations at the CIA who was hired in 2002 as the Deputy Commissioner of Intelligence, the NYPD has conducted intensive efforts to collect information regarding Muslims and Muslims groups, not just in New York City, but across the country and around the world as well. These efforts reportedly included surveillance by plainclothes officers in “Muslim neighborhoods” and tracking “Muslim college students, mosque sermons and social events.”
The NYPD’s intelligence program included analysis and the regular review of open source information regarding Muslims, Muslim communities, and Muslim organizations. It also reportedly entailed collection efforts targeted against Muslims, conducted by undercover officers known as “rakers,” who “monitored daily life in bookstores, bars, cafes and nightclubs,” and the use of informants known as "mosque crawlers." Among the results of these efforts was the police asking the taxi commission to provide information on all Pakistani taxi drivers in New York, and drafting “an analytical report on every mosque within 100 miles.”
Perhaps the actions that have drawn the most criticism was the attention that the NYPD paid to Muslim student groups, with its analysts regularly reviewing “college websites and blogs” and “compiling daily reports on the activities of Muslim students and activities.” They even “infiltrated” campus Muslim groups, with an officer participating in a student whitewater rafting trip.
New York mayor Michael Bloomberg has described the program as "legal," "appropriate" and "constitutional,” claiming that actions such as “photographing mosques, eavesdropping on conversations inside shops, and keeping files on Muslims who Americanized their names” were not targeted intelligence collection, but rather just “looking around” in order to “kind of get familiar with what's going on.” New York officials claimed that any collection efforts were conducted in response to specific leads or threats, stating that they “do not employ undercovers or confidential informants unless there is information indicating the possibility of unlawful activity.”
Officials have used generalities when describing their claims of the program’s effectiveness. They have stated that targeting Muslim student groups has proved effective claiming that “12 people arrested or convicted on terrorism charges in the United States and abroad who had once been members of Muslim student associations,” included one who had “tried to recruit followers at Stony Brook University on Long Island.” Deploying resources outside of the city is justified by the example of one undercover officer in New Jersey who “was key to building a case against Mohamed Mahmood Alessa and Carlos Eduardo Almonte,” two men arrested in the US who were intending to travel to Somalia and join the Al Qaida-affiliated group al-Shabab. Meanwhile, NYPD intelligence analysts reportedly “have spotted emerging trends and summarized topics such as Hezbollah's activities in New York and the threat of South Asian terrorist groups.” It is not clear, however, that resources dedicated towards developing intelligence about American Muslims across the country and world would not have been better spent on more traditional law enforcement tasks within the city itself.
Does this program constitute an efficient use of New York City taxpayer money? With the Intelligence Division annual budget estimated at $62M, the reasoning employed by the program’s defenders is that its success has been proven by the lack of a major attack since 2001, arguing that the NYPD has “has disrupted terrorist plots and put several would-be killers in prison.” That specious argument, in which the NYPD’s efforts are the primary cause for Al Qaida not having conducted a successful attack against the US homeland since 2001 (rather than US counter-terrorism operations across the globe and intelligence sharing with our various allies, which have decimated the Al Qaida network over the last decade) and cannot be taken seriously.
This program raises another set of questions for the intelligence community, that of whether the NYPD’s efforts represent intelligence best practices. Does it meet the needs of their operational consumers, the NYPD senior leadership? When discussing how intelligence works, it is useful to differentiate between the terms “analysis” and “collection.” The intelligence process in support of a particular mission or operation generally begins with the intelligence staff assisting the commander in identifying a set of Essential Elements of Information (EEIs) and Intelligence Requirements, followed by an effort to answer those EEIS through research or a review of readily available information. EEIs not readily available are then designated as intelligence gaps, with additional collection or analysis conducted via available and appropriate channels in order to address those gaps. Collectors provide information; analysts turn that data into intelligence products, which are then used by commanders to conduct operations.
David Cohen wanted NYPD’s intelligence to “take a big net, throw it out, catch as many fish as you can and see what we get," and to have a “source inside every mosque within a 250-mile (400-kilometer) radius of New York.” While having their collectors create such an expansive network of sources would be questionable if achieving that goal entailed a local law enforcement agency infiltrating undercover officers into those institutions, it is not illegal for NYPD analysts to use publicly available resources such as university web pages for Muslim groups. In fact, police exposure to readily available open source information on Muslims, religious groups, Islamist ideology, and the religion itself is generally a good thing, because that deep knowledge and exposure should provide analysts a nuanced understanding of the community and those most likely to radicalize.
However, analysis and the review of open source information is substantially different than using collectors who employ tradecraft to get information. There is a significant difference in the burden of proof needed to justify analysts looking at publicly available information and that needed to justify tradecraft such as using undercover assets to infiltrate organizations or tapping phones. While the NYPD has rejected claims that it “trolls ethnic neighborhoods” and “only follows leads,” it remains unclear whether it was appropriate to send undercover officers to infiltrate groups of American Muslims if those operations were not triggered by specific threats and were simply designed to catalog information on all Muslims.
Is the NYPD is capable of providing, expert, detailed analysis in support of counter-terror efforts? Its analysts have reportedly been hired “from some of the nation's most prestigious universities.” The undercover “Demographics Unit” has access to an ethnically diverse talent pool that the military and other agencies would envy, being described in an internal NYPD document as having “language capabilities” for Arabic, Bengali, Hindi, Punjabi, and Urdu. At least in theory, an intelligence team composed of talented analysts, and police from immigrant and minority communities, should be particularly perceptive to the unique nature of those communities, with a nuanced understanding of what is truly going on and the complex web of relationships between religious and community groups, thereby understanding exactly who the potential radicals are. The products that the Associated Press has made public as part of its investigation into the NYPD do not demonstrate such competence, however.
The reports released by the AP are most likely only a small fraction of the intelligence produced by the NYPD’s various units over the last decade, and are therefore do not provide enough evidence to declare the NYPD’s program a failure. However, one would have to be very generous to describe these products as good intelligence since they do not provide any “so what” aspect in their conclusions, explaining to the reader their relevance to operations. A generous assessment of the reports created by the Demographics Unit would be that they could possibly be used as starting points for future operations or analysis of a particular area.
One undated report details surveillance of a mosque in Paterson, New Jersey, which was described as reportedly having “been the subject of Federal Investigations,” with the objective of the surveillance “to observe the mosque during Friday prayers,” and paying “special attention to all NY State License” plates. It is difficult to judge this particular document in isolation, since rather than being an intelligence report it may actually be more like a concept of operations. However, the lack of specificity regarding the exact nature of the investigations directed at the mosque could mean either that the justification needed to conduct such an investigation was minimal (possibly the bosses did not need much evidence to approve the operation), that the NYPD is purposefully vague in such documents to allow wider release to an audience without a need to know, or finally, because there was not any real evidence to justify the operation.
Another report from 2006 indicated that the Intelligence Division’s “Cyber Intelligence Unit” reviewed “websites, blogs, and forums” associated with the Muslim Student Association on a daily basis. This seems to indicate that the NYPD was not hacking into personal accounts or sites, but were rather just reviewing publicly available information. The “so what” associated with this work seems pretty paltry, however. The information provided about the scholars mentioned most likely came from a quick search through law enforcement databases and Google searches. The controversial aspect of this report is its discussion of Tariq Ramadan, who at the time of this document’s publication was in the midst of a years-long legal battle over a denied US visa application due to donations to a group accused of links to terrorism. Rather than briefly discussing the varied opinions about Ramadan and his work, noting that some critics view him as a supporter of radicalism, while others see him as an advocate for a modernized Islam compatible with western values, this report just lists him as a potential “bad guy” with a rejected visa request (it has since been lifted). While senior NYPD leaders don’t need to read a long dissertation on the views of a religious thinker, the brief description of him in this report in which it is inferred that he is someone to be concerned about because of family ties (his grandfather founded the Muslim Brotherhood, and his father was a leader in the organization as well) and his immigration history, is lazy analysis.
In another series of reports, the Demographics Unit compiled information about locations such as mosques, restaurants, social groups that Muslims might frequent in the greater New York area. The reports uncovered by AP are for Suffolk and Nassau counties on Long Island, as well as Newark, New Jersey. These reports describe a process in which census and law enforcement data is used to identify areas of interest, followed up by “fieldwork,” in which officers visited “locations of concern” in person. It is unclear whether these officers used tradecraft or misrepresented themselves in the context of this operations conducted outside of New York City.
One can reasonably argue that this program was a failure if these reports were the best results of an intensive collection effort that included the use of undercover officers to infiltrate Muslim groups, as well as devoting analytic resources towards the exploitation of publicly available information like college websites. This does not seem the best use of the NYPD’s diversity as means in which cultural awareness is employed as a tool to gain access to truly useful information. Information about dangerous radicals may have been just as easily gathered through a legitimate community relations program that entailed engagement with religious and community leaders. One could make a strong case that these efforts are more likely to blow back by either radicalizing peaceful Muslims who feel threatened by what they perceive as an abusive security state, or intimidate other Muslims from who would otherwise be willing to share information with the authorities now being afraid of cooperation.
The legality of this program is difficult to judge based on the information that the AP has published to date. However, it is useful to note the differences between what local law enforcement and the intelligence community is allowed to do. Intelligence agencies and the military are barred from collection intelligence against US persons (broadly defined citizens and/or people living in the US). While the CIA has provided support to the NYPD’s program, with a liaison officer at the NYPD, and police officers receiving CIA training, there is currently no information indicting that the CIA did anything illegal.
The NYPD’s authorities to conduct these kinds of operations have evolved since the Vietnam era, during which “the department had used informants and undercover officers to infiltrate anti-war protest groups and other activists without any reason to suspect criminal behavior.” After Vietnam, the NYPD required "specific information" indicating “criminal activity” before they were allowed to “monitor” groups. After 2001, however, those guidelines were loosened, with a federal judge agreeing with David Cohen’s contention that "in the case of terrorism, to wait for an indication of crime before investigating is to wait far too long."
There has been no interest or will to investigate or oversee New York’s program, probably because being seen as tough against terrorism is more of a political winner in New York than being concerned about the civil liberties of Muslims. The lack of any oversight is particularly noteworthy due to the Intelligence Division’s large annual budget. It seems that neither the City Council or NYPD brass have asked the unit to justify its existence, thereby making it seem that a $60M annual investment which pays for the police to look at student group websites and visit ethnic restaurants throughout the tri-state area is an effective use of taxpayer dollars. There has been no audit of the Intelligence Division by the city comptroller or the federal government despite evidence that federal grants have provided much of the program’s funding, and that many of the NYPD’s actions may have violated Justice Department guidelines against racial profiling. That may change, however, with New Jersey politicians from both parties, including Newark Mayor Corey Booker and New Jersey Governor Chris Christie, publicly expressing concern regarding NYPD operations conducted in New Jersey.
Law enforcement agencies should strive to achieve a deep understanding of the communities they protect. However, reaching that comprehensive level of knowledge in ways that verge on the illegal, and which diminish the trust that those citizens place in the police, is counterproductive. While the NYPD may be able to operate outside of New York City and use undercover officers without coordination with other authorities and on the flimsiest justification, such operations should be spurred by something more coherent than an unproven conviction that a continued absence of terrorist attacks is the same thing as mission success.