Fortunately, the Justice Department jealously guards its authority to abuse the surveillance laws, and doesn't want to let NYPD in on the fun.
Mr. Mukasey wrote that [Police Commissioner Raymond] Kelly was in effect proposing that the Justice Department and the F.B.I. disregard the law, as spelled out in the Foreign Intelligence Surveillance Act of 1978.
"Nobody disregards FISA but us," Mukasey said. Well, not in those exact words, but you get the point.
NYPD is concerned that the Justice Department is following "a self-imposed standard of probable cause" that it need not follow. Some of us believe the probable cause requirement is constitutionally imposed, but in any event, NYPD ought not to be spying on people's communications on nothing more than a whim or a hunch.
Kelly complains that the Justice Department won't ask for a FISA warrant unless it has grounds for a FISA warrant. Is the Justice Department supposed to say to the FISA court, "we know NYPD doesn't really have any basis for this request, but they wanted us to pitch it to you anyway to see if maybe you won't notice"? While Kelly claims the Justice Department should submit "close cases" to see what happens, Kelly apparently doesn't know the difference between a "close case" and a "bad case."
Kelly's attitude is nonetheless prevalent in local law enforcement agencies. Officers write bad warrant applications that make no showing of probable cause, then shop them around to judges they know will rubber stamp them. After that they argue that they relied on the bad warrant in "good faith." Mukasey, as a former judge, apparently has a bit more respect for the process. Good for him.
Kelly's complaint that New Yorkers are at risk for victimization by terrorists because of the Justice Department's insistence that it follow the law rings hollow given NYPD's concept of terrorist surveillance. As the NYCLU reported, the NYPD engaged in pervasive surveillance of lawful demonstrators at the 2004 Republican National Convention. If political protesters are the sort of people the NYPD regards as terrorists, it needs no additional surveillance authority.
If, as the linked article suggests, this dispute became public to raise Kelly's visibility and enhance his brand as a warrior against terrorism with an eye to being appointed Secretary of Homeland Security, the strategy didn't work. Fortunately for us all. Homeland security starts with making us secure from the government's invasion of our privacy. Having a supercop running the agency who lacks an appropriate respect for the nation's constitutional values would not make us safe from terrorism, but would make us less safe from our government.
