Justice, NYPD fight over terrorist surveillance
By Lara Jakes Jordan and Devlin Barrett
WASHINGTON — The Justice Department and the New York Police Department are feuding over secret terror investigations, with the city pushing for faster approval to spy on suspects - a move that the feds charge could break the law.
In a testy letter last month, NYPD Commissioner Ray Kelly accused the Justice Department of putting New Yorkers at risk by dragging its feet on approving paperwork for eavesdropping warrants.
"Consequently, the federal government is doing less than it is lawfully entitled to do to protect New York, and the city is less safe as a result," Kelly wrote on Oct. 27 to Attorney General Michael Mukasey.
Mukasey shot back four days later, raising concerns that Kelly's cops were asking for extraordinary surveillance powers outside legal boundaries.
"In effect, what you ask is that we disregard FISA's legal requirements, which are rooted in the Constitution," Mukasey wrote Kelly. "Not only would your approach violate the law, it would also in short order make New York City and the rest of the country less safe."
"We are acutely aware of the stakes." Mukasey wrote.
The letters were obtained Wednesday by The Associated Press.
The spat comes nearly two years after the Justice Department abandoned its warrantless wiretapping Terrorist Surveillance Program that was widely criticized as illegal and targeted in civil lawsuits.
At issue is the legal process police and prosecutors must go through in applying for wiretaps or other surveillance methods on foreign terrorist suspects.
The federal Foreign Intelligence Surveillance Act requires investigators to obtain a warrant from a secret court in Washington to eavesdrop on suspected terrorists inside the country.
Generally, the warrants are a tool used by the FBI, National Security Agency or other federal investigators. They must be reviewed by the Justice Department before they are submitted to the FISA Court for final approval.
But in recent years, the NYPD has ramped up its own counterterror mission, and is allowed to apply for the warrants as part of a joint terrorism task force with other local and federal agencies.
At the heart of the dispute is Kelly's frustration with questions from the Justice Department about whether the NYPD had enough probable cause to seek the spying powers.
Over five pages, Kelly laid out his concerns, objecting in particular to the Justice Department's decision not to seek FISA warrants in two particular cases.
"In sum, it is apparent to me, based on our experience in New York that in situations short of unambiguous emergency, the system too often moves too slowly and with too little urgency for such a high priority national security issue," wrote Kelly, who has been mentioned as a possible Homeland Security secretary in the incoming Obama administration.
Mukasey's missive ran eight pages and described how he personally had reviewed the cases Kelly had raised, and thought his lawyers made the right call.
The attorney general noted that he and Kelly already had spoken about the matter, in which, Mukasey said, Kelly did not want to discuss the particulars of the case.
"Obviously, the facts are critical to any FISA application and, because you were not versed in the facts, we were unable to have a meaningful conversation about that case," Mukasey wrote.
To adopt Kelly's proposed standard on probable cause for FISA warrants, the attorney general maintained, "would be counterproductive and would impair our ability to seek FISA coverage on worthy targets around the country. This I cannot, and will not, do."
Mukasey, who was sworn in as attorney general a year ago, is a Bronx native who for nearly two decades sat on the U.S. District Court bench in Manhattan, including six years as chief judge.
Rep. Pete King, R-N.Y., said Mukasey's department was "afraid of being shot down and they're applying a higher standard than they have to."
"New York has been attacked twice," King, top Republican on the House Homeland Security Committee, said Wednesday. "New York has to do what it has to do to survive, and it just appears that the FBI or the Justice Department are throwing too many roadblocks in the way of the NYPD."
He added: "I'd rather have the Justice Department listen to Ray Kelly more often rather than be afraid of getting shot down in court. It's more important to protect New York than have a perfect record in court."
The Justice Department has faced fierce criticism over the now-defunct warrantless wiretapping program and other intrusive investigative methods that civil libertarians say violate the Constitution.
The Terrorist Surveillance Program was secretly authorized by President George W. Bush shortly after the Sept. 11, 2001, terror attacks and was disclosed in late 2005, sparking questions about its legality. The Bush administration vigorously defended the program as essential to national security, but brought it under the FISA Court's purview in January 2006.
Last year the FISA Court approved 2,371 warrants targeting people in the United States believed to be linked to international terror organizations. It denied three warrant applications in full and partially denied one, according to Justice Department data. Additionally, the court sent 86 applications back to the government for changes before approving them.
It was unclear Wednesday how many of the warrant applications were from the NYPD. One official familiar with the situation said the Justice Department has not rejected any of the NYPD's applications. The official spoke on condition of anonymity because he was not authorized to speak publicly about the issue.