Just as lawyers for New York City are preparing for a hearing in federal court to close the books on lawsuits over the New York Police Department's secret and illegal surveillance of Muslims, a lesser-known lawsuit that concluded Monday reveals that the police department's records of its own ugly history of unconstitutional domestic surveillance, which it was required to preserve for posterity, have mysteriously gone missing.
Younger New Yorkers are probably familiar with the NYPD's Muslim surveillance program, its infiltration of Occupy Wall Street with undercover officers, and its unconstitutional mass-arrests of protesters and bystanders during the 2004 Republican National Convention. But the history of NYPD surveillance and harassment of citizens based on their political, religious, or ethnic identities stretches back considerably farther. In the early years of the last century, special NYPD squads targeted Italians, anarchists, and communists. With the onset of the Great Depression, the NYPD's "Radical Bureau" took up the surveillance of communist New Yorkers. By the 1960s, the Radical Bureau had been renamed Bureau of Special Services, and it was going after groups that included CORE, the ACLU, the NAACP, and the Black Panthers.
Some of the people targeted for political surveillance by the NYPD filed a class action suit in 1971, alleging that the police behavior violated constitutional rights to free speech and assembly, their right to due process, and their protection from unreasonable search and seizure. The suit dragged on for more than a decade, ultimately resulting in a consent decree named after the lead plaintiff, Barbara Handschu. The Handschu decree, which still governs NYPD behavior today, in modified form, is best known for committing the police not to investigate anyone's political, ideological, or religious behavior unless they have reason to believe that person is engaged in a crime. But another section of the consent decree also required the NYPD to follow the New York City Charter and Freedom of Information Law with regard to its archive of surveillance files.
Judge Charles S. Haight Jr., who presided over the Handschu decree, specified that this meant that:
The upshot of the settlement is that no intelligence or political files, pre-1955 or post-1955, can be destroyed without the express approval of the City's commissioner of records and information services, who is specifically charged by the Charter to base his determination 'on the potential administrative, fiscal legal, research, or historical value of the record'.... I will not assume that the police commissioner would disregard the law by disposing of police records without seeking the requisite approval.