The activities [NYPD Ray] Kelly set in motion after 9/11 pushed deeply into the private lives of New Yorkers, surveilling Muslims in their mosques, their sporting fields, their businesses, their social clubs, even their homes in a way not seen in America since the FBI and CIA monitored antiwar activists during the Nixon administration. It was a proactive approach, but, in constitutional terms, a novel one.
To reinvent the Intelligence Division, Kelly called on David Cohen, a former senior CIA officer who was a year into a post-retirement stint with the Wall Street insurance giant American International Group. Kelly offered a rare opportunity not just to return to intelligence work but also to build something from scratch—in effect, the city’s own CIA.
Cohen eagerly accepted. Cohen didn’t come alone. To build his new program, Cohen wanted someone by his side with access to the most sensitive intelligence, someone who could play a role in day-to-day operations. With a phone call to Langley, Cohen persuaded CIA director George Tenet to lend him Larry Sanchez. Like Cohen, Sanchez was an analyst who’d come up through the ranks. Unlike Cohen, Sanchez still had a blue CIA badge and the privileges that came with it.
Cohen and Sanchez’s appointments represented a major shift in mind-set at the NYPD. Police are trained to uphold the law. By comparison, CIA officers are trained to subvert laws and operate undetected in places where the Constitution doesn’t apply. They are forbidden from doing this in America.
Sanchez told colleagues that he had borrowed the idea from Israeli methods of controlling the military-occupied West Bank, the swath of land captured from Jordan in the 1967 Six-Day War. But the proposal ignored some important differences between the U.S. and Israel. Brooklyn and Queens, for instance, were not occupied territories or disputed land. There was no security wall being erected in New York City. And, where Muslims are concerned, no one would choose Israel as a model of civil liberties.
Nevertheless, Cohen liked the idea. (...)
Inside the NYPD, the document was regarded as a masterwork and the foundation for everything the department would build subsequently. It was part autobiography, part history, and part ideology. One senior NYPD official took to calling it Cohen’s Mein Kampf.
Most important for the secretly planned Demographics Unit, Haight ruled: “For the purpose of detecting or preventing terrorist activities, the NYPD is authorized to visit any place and attend any event that is open to the public on the same terms and conditions as members of the public generally.”
To accomplish their goals, however, Cohen and Sanchez needed to go far beyond what the FBI could do. (...)
Far from raising concerns about a police department taking it upon itself to reconsider constitutional rights, Congress enthusiastically embraced Cohen’s views.
About once a week, they filed reports on conversations they’d eavesdropped on. Nobody trained the rakers on what exactly qualified as suspicious, so they reported anything they heard. (...)
Surveillance turned out to be habit-forming. Cohen and Sanchez’s efforts also reached beyond the Muslim community. Undercover officers traveled the country, keeping tabs on liberal protest groups like Time’s Up and the Friends of Brad Will. Police infiltrated demonstrations and collected information about antiwar groups and those that marched against police brutality. (...)
Confirmation that the activities of the Demographics Unit went far beyond what federal agencies were permitted to do was provided by the FBI itself. Once, Sanchez tried to peddle the Demographics reports to the FBI. But when Bureau lawyers in New York learned about the reports, they refused. The Demographics detectives, the FBI concluded, were effectively acting as undercover officers, targeting businesses without cause and collecting information related to politics and religion. Accepting the NYPD’s reports would violate FBI rules.
Cohen told his officers the FBI had its rules and the NYPD had its own. He was no longer constrained by the politicians. The NYPD was governed by the City Council, which had effectively given Kelly carte blanche to run the department as he saw fit.
In the fall of 2005, a senior CIA officer named Margaret Henoch attended a briefing with Sanchez and other NYPD officials. The meeting was a wide-ranging discussion of the NYPD’s new capabilities, including its Demographics Unit.
Henoch had a reputation as a skeptic. During the run-up to the Iraq War, when CIA analysts concluded that Saddam Hussein possessed weapons of mass destruction, they put a lot of stock in statements by an Iraqi defector code-named Curveball. (...)
She didn’t see how the Demographics reports could be used to draw conclusions. “I think this is a really impressive collection of what’s where, but I don’t understand how it helps you,” Henoch told the NYPD brass. If it was useful, she figured, maybe the CIA could replicate it. But she didn’t understand how collecting troves of information on local businesses and religious affiliations helped find terrorists.
She asked if there was some success story that summed up the program’s usefulness in its first two years. When she didn’t get an answer, she assumed that the NYPD was being coy with a potential rival. Even in the post-9/11 era, intelligence agencies often jealously guarded their secrets.
“I figured they were just lying to me,” Henoch recalled. It did not occur to her that there might not be any stories to tell.
“At the very least, we can eliminate this guy from our list if he’s not a terrorist,” (...) “And we can find out who the terrorists are. And that’s your job.”
The truth, though, was that raking didn’t eliminate anybody from a list. It just expanded the NYPD’s files. (...)
Because the rakers never received specialized training, their reports contained numerous errors. Sephardic Jews and Lebanese Christians were mistaken for Syrian Muslims.
The reports began looking the same (...). No matter how detailed, they never matured into criminal cases. If terrorist cells operated in New York, (...), why weren’t the police making arrests? That’s how they’d dismantled drug gangs in the Bronx. Gang members, like terrorists, were secretive, insular, and dangerous. (...)
Whatever the shortcomings of the Foreign Intelligence Surveillance Act oversight system, at least there is, theoretically, a check on the agency’s activities. But in New York City, for Muslim citizens and activists of many stripes, there is no such outside system meant to safeguard their privacy. The NYPD conducts its oversight in-house. City Hall doesn’t review intelligence programs the way Congress does. Courts can step in to settle questions about constitutionality, but only if somebody finds out about programs that are designed to remain secret forever.
In 2010, the Demographics Unit was renamed the Zone Assessment Unit over fears about how the title would be perceived if it leaked out. But *rakers still troll Muslim neighborhoods, filing an average of four new reports every day, searching for hot spots. The Muslim community is marbled with fear, afraid to speak openly because an informant could be lurking near.
Kelly is unapologetic. Like the department’s use of the tactic known as stop-and-frisk, raking is a tactic Kelly maintains is legal. He said the program is operating just as it always has. “Nothing” has changed, Kelly boasted to The Wall Street Journal earlier this year.
(...) [but] now, the lawyers [are] arguing that Kelly and Cohen, in their effort to keep the city safe, have crossed constitutional lines. Regardless of the outcome, the NYPD’s programs are likely to join waterboarding, secret prisons, and NSA wiretapping as emblems of post-9/11 America, when security justified many practices that would not have been tolerated before.