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The NYPD settlement: understanding the consequences

The New York Police Department has settled long-standing lawsuits pertaining to the surveillance of Muslims, as reported this afternoon by The Washington Post and The Wall Street Journal. Notably, under the settlement agreement, the NYPD will be required to make significant changes to its Guidelines for Investigations involving Political Activity (aka the Handschu guidelines), as listed within Exhibit 1 of this PDF containing the settlement documents. In addition, the NYPD will be removing its 2007 report “Radicalization in the West: The Homegrown Threat” from it website as part of the agreement. (It is still available on the NYPD site as of posting, but if this link doesn’t work, it means it has been removed from the site. We’ve saved it here on our site for if/when that happens).

It is disappointing that the Radicalization in the West report will be removed from the NYPD’s website as a result of this settlement. While the report has always had limitations due to its case-study methodology (as the authors would likely acknowledge), and it has become somewhat dated due to external developments in the past eight years (e.g. growth of social media, rise of new terrorist groups, increase in lone actor terrorism), many of its general findings on the radicalization process have stood the test of time, and still provide insight into terrorists’ activities today, including the Paris attackers and other recent plotters.

And even if I disagreed with the report’s analysis, I would still argue that removing it from the website is the wrong thing to do. The report’s critics should contest and challenges its findings, as they have often done, but should not cheer its suppression through a formal legal process.

More worrying are the proposed changes to the Handschu guidelines. The changes to the requirements for a “Checking of Leads” or “Preliminary Inquiry” as outlined in this document could inhibit the ability of the NYPD to uncover the initial tip or lead that would be the starting point for a broader FBI-led investigation. While the NYPD will retain strong investigative authorities when there is a known threat, the Department’s ability to detect the ‘unknowns’ could be reduced as a result of these policy changes. It is also possible that a culture of risk aversion develops gradually as a result of these and other proposed changes to the guidelines, such as the appointment of a ‘Civilian Representative’ in an ombudsman-like role.

These changes come a month after the ISIS-inspired terrorist attack in San Bernardino, and at a time when the number of terrorism cases within the U.S. has significantly increased, as noted in detail in the recent report on ISIS in America released by my colleagues in the Program on Extremism. While this settlement may be beneficial in the short-term from a civil liberties standpoint, it likely makes it harder for the officers and other employees of the NYPD to play their role in preventing acts of terrorism in New York City, as they have tirelessly worked to do in the years since September 11, 2001.