In March, citing the heightened threat of terrorism, U.S. District Judge Charles Haight softened a set of rules known as the Handschu guidelines. The rules are named for Barbara Handschu, one of 16 activists who sued the New York Police Department in 1971 on the grounds that its "red squad" had pushed surveillance to the point of harassment. A 1985 court order established the guidelines, which barred cops from investigating a political or religious group without evidence linking it to a past or imminent crime.
Long faulted by civil libertarians as too weak a restraint, the guidelines nonetheless irritated the police, who argued late last year that they should be thrown out altogether. David Cohen, the NYPD's intelligence commissioner, told Haight, "It is difficult to imagine a state of affairs more outdated by the events of September 11th." Haight agreed and gutted the rules, allowing the NYPD to create its own regulations instead. The new rules couldn't be changed without the judge's approval, but they weren't embedded in his court order.
"That was the real flaw," comments Jethro Eisenstein, one of the attorneys who argued against the change. "If the police didn't choose to discipline their own for violating the rules, no one could go into court accusing them of violating the rules."
In August, Haight reversed himself, revising the court order to incorporate the new guidelines.
What changed his mind? The judge found out how police had interrogated some of the 274 protesters arrested for blocking traffic at an antiwar demonstration in February. The cops' questions had ranged far beyond anything related to criminal behavior, inquiring into matters of political belief. Among the queries: "Do you hate George W. Bush? Do you think anything would be different if Al Gore were elected? What is your opinion of the war in Iraq? Don't you think it was necessary for us to get involved in World War II?"
The interviewers then entered the answers on an official "demonstration debriefing" form. Police initially denied that the higher-ups knew about the questioning, then acknowledged that they were "aware of the fact that arrestees would be asked questions similar to those." A perturbed Haight declared that the department was "in some need of discipline."
The rules still aren't as strong as they were last year. But "if the police are shown again to be gathering information in the grand old tradition, they run the risk of sanctions," says Eisenstein. "And that's important to have."