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Government Needs Leeway in Dangerous Times

By Ed Koch

The legal aspects of these infiltration tactics are governed by a federal court decision known as "the Handschu guidelines," and are under the supervision of Federal District Court Judge Charles S. Haight, Jr. The New York Civil Liberties Union alleges that the NYPD overstepped the guidelines when monitoring groups that picketed the Republican National Convention, which was held at Madison Square Garden during the presidential campaign of 2004.

The New York Times quotes Paul J. Browne, chief spokesman for the Police Department, who said, "All our activities were legal and were subject in advance to Handschu review." Judge Haight ruled, according to The Times, that before monitoring political activity, the police must have "some indication of unlawful activity on the part of the individual or organization to be investigated."

During the convention, 1,806 people were arrested. The NYCLU will be taking depositions of NYPD personnel to ascertain the nature of the police observation collecting intelligence. I believe substantial numbers of those arrested had the charges dismissed in criminal court. In my experience, often when cases involve political protest where the protesters have violated the law, but non-violently, courts, at the request of the district attorney or on their own, will dismiss the charges so as not to clog the courts and jails, particularly when the political event is over.

I believe these dismissals encourage those engaging in mass non-violent civil disobedience to think they can do so with impunity. Traditional non-violent civil disobedience calls for a willingness to suffer an appropriate penalty. But no longer. Those participating today expect to pay no penalty. I believe there should be a penalty -- if there has been no violence -- of a $100 fine for the first offense, doubled with each new offense committed by the same defendant in the ongoing event.

We now live in dangerous times, with terrorists planning to kill innocent civilians. In interpreting the Handschu guidelines and their use, I believe that our police department should be given the maximum lawful ability to infiltrate potentially dangerous groups.

The Times reported on the police covert activities "From these operations, run by the department's ' RNC Intelligence Squad' the police identified a handful of groups and individuals who expressed interest in creating havoc during the convention as well as some who used websites to urge or predict violence." The Times also reported, "In hundreds of reports stamped 'NYPD Secret' the Intelligence Division chronicled the views and plans of people who had no apparent intention of breaking the law, the records show."

The City has been extraordinarily fortunate in not suffering a third radical Islamic terror attack. The first attack came at the World Trade Center on February 26, 1993, when six people were killed and 1,042 were injured. The second attack came on September 11, 2001 when 2,801 were killed and 2,261 injured. Clearly the U.S. is at war with terrorists who are willing to give up their own lives as martyrs for their cause, killing Americans and other infidels. Infiltration is a necessary tool for law enforcement to prepare for and possibly prevent such attacks.

Other countries, such as Great Britain, have more repressive legislation than the U.S. to help prevent terrorist attacks. In this day and age, it is conceivable that terrorists will someday be armed with nuclear bombs. They already have dirty bombs (chlorine gas) available to them. It is therefore essential that counter-terror forces be adequately equipped, not only with needed physical arms and equipment, but also with legislation to allow covert and intrusive actions that would not and should not be permitted in peace time.

There are always those who say they would rather see a hundred criminals go free than a single innocent person suffer punishment. It is a trite statement that ignores the harsh reality of today's dangerous world. In our existing judicial system, innocent people are sometimes erroneously convicted of crimes they did not commit. It is the obligation of our government to seek constantly to reduce those errors and to correct them. I believe the government, federal and state, should devote more resources for that express purpose, and not simply walk away from the inherent dangers to the public, including the danger of partial or total destruction of our country and civilization. They should not be deterred by fear that mistakes will be made in pursuit of the obligation of government to protect the citizens of the nation.


Regrettably our government, through its incompetence, sometimes engages in actions that cause many of us, myself included, to cry out in pain, frustration and shame. President George W. Bush is surrounded by incompetents. One such incompetent currently is U.S. Attorney General Alberto Gonzales who suffers either from an incredibly faulty memory or has told monstrous lies to the Congress. He and others, e.g., Robert Mueller, FBI director, who administer the security laws and carry out other government responsibilities have given government a bad name.

There is great public and editorial interest in the Guantanamo prison and military trials for those alleged terrorists captured abroad and imprisoned there. At Guantanamo or off-shore sites, a different standard of proof may be used in establishing criminal convictions. The U.S. Supreme Court has ruled that it is constitutional to do this if the Congress authorizes the trial procedures for such purposes. The Congress has done so, creating the Military Commission Act of 2006. The Constitutionality of the Military Commission Act was recently upheld by the United States Court of Appeals for the District of Columbia Circuit.

On the other hand, there are those who urge Guantanamo be closed. What good would that do? We would have to open a new facility elsewhere to perform the same role. Under the constitution, procedures used at Guantanamo limiting rights of defendants, if the prison were in the U.S. proper, would not be permissible. Do we want to apply the maxim referred to earlier to terrorists as well, "let a hundred terrorists go free, rather than allow one innocent person accused of terrorism to be wrongfully imprisoned?" To do so would be suicidal on the part of the U.S.

Recently, Italy demonstrated its willingness to endanger itself and other nations in giving in to the terrorist demand that five Afghani terrorists held in Afghan jails be freed in exchange for the release of an Italian reporter taken hostage in Afghanistan. The New York Times reported on March 22nd, that one of the released terrorists "...said he would return immediately to war, and was 'grabbing two rifles to begin jihad again to hunt down invaders and fight nonbelievers."

If our government were acting responsibly, instead of in a partisan manner, and our president were doing his job in a professional manner, he would demand the resignations of the incompetent Gonzales, Mueller and others, or better still, dismiss them. The Congress could appoint permanent committees to make frequent inspections of Guantanamo, weekly or monthly. Similarly, it could enact legislation requiring the admission of congressional observers to every trial at Guantanamo.

We are at war with an enemy committed to our destruction. Surely it is time the President, Vice President and the leaders of Congress recognize that in these dangerous times, working together with respect to protecting the country from our enemies is paramount.

Ed Koch is the former Mayor of New York City.

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