New York to Appoint Monitor to Review Police’s Counterterrorism Activity

New York will appoint an independent monitor to scrutinize the Police Department’s counterterrorism activities, lawyers said in court documents Thursday as they moved to settle a pair of lawsuits over surveillance targeting Muslims in the decade after the Sept. 11 attacks.

The agreement would restore some of the outside oversight that was eliminated after the attacks, when city leaders said they needed more flexibility in conducting investigations. In the years that followed, the Police Department secretly built files on Muslim neighborhoods, recorded sermons, collected license plates of worshipers, and documented the views of everyday people on topics such as drone strikes, politics and foreign policy.

The settlement does not explicitly prohibit any methods that are currently allowed, and the city does not admit any wrongdoing. Police officials said that many of the provisions of the agreement — such as barring investigations based solely on religion, race and ethnicity — simply codified changes that had already been in place. But civil rights lawyers say some tactics that investigators used over the past decade violated the Constitution and probably would not have been allowed if anyone outside the Police Department had been reviewing the investigative files.

“These safeguards will be a strong check against the discriminatory surveillance of Muslim communities that we challenged in our lawsuit,” said Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, who represents plaintiffs in one of the lawsuits. “We hope the settlement shows that effective policing isn’t at odds with constitutional policing.”

The city agreed to place a civilian lawyer, appointed by the mayor, inside the Police Department to review intelligence files and report potential wrongdoing to the police commissioner, the mayor or a federal judge.

The settlement, which must be approved by a federal judge, represents the most significant recalibration of the rules governing police intelligence-gathering in the city since Sept. 11, 2001. In the works for months, the agreement comes in the aftermath of a string of terrorist attacks that have sowed new fears in the United States and abroad, from the mass shootings and bombings in Paris to an attack on a Planned Parenthood center in Colorado to a rampage in San Bernardino, Calif.

With the settlement, Muslim surveillance becomes a chapter in the long history of controversial police tactics in New York. The intelligence unit began in the 1900s as the Italian Squad, with a focus on suspected anarchists. Over the decades, it shifted focus to Communists, Vietnam War protesters, student groups and civil rights organizations.

A 1971 class-action lawsuit forced the end of the city’s so-called Red Squads and established the intelligence-gathering rules, known as the Handschu Guidelines, after one of the plaintiffs. The lawsuit has remained active for decades, serving as a check against police overreaching.

“This has always been about whoever is the other of the moment, the suspicion-raising other in society. It’s been the Jew, the Italian, the Communist and African-Americans at various stages,” said Jethro Eisenstein, one of the lawyers who have worked on the Handschu case from the beginning.

As it did with the Red Squads, the city admitted no wrongdoing in its recent surveillance programs. But for Mayor Bill de Blasio, a Democrat, who pledged to rein in police excesses, the settlement is a chance to formally break with practices he found deeply troubling.

Mr. de Blasio and his police commissioner, William J. Bratton, have sought to prove that they can keep the city safe from terrorists without such controversial tactics, just as they have battled gun violence while largely abandoning a stop-and-frisk policy that was ruled unconstitutional.

“We have nothing to hide,” said Lawrence Byrne, the Police Department’s deputy commissioner of legal matters. “And if this adds transparency and a level of public trust that we’re continuing to keep the city safe, but in a lawful way, we welcome and embrace that.”

The reconsideration of police rules echoes the recent debate in Washington over whether the government gave itself too much secret surveillance power in the name of keeping the nation safe from terrorists.

Before Sept. 11, the city had a three-member panel, which included a civilian, to review intelligence-gathering and approve or reject investigations by the Police Department. That oversight was eliminated after the attacks, leaving the city’s intelligence operations all but unchecked by anyone outside the Police Department.

“The day this agreement is signed, I don’t show up to work with any less ability to protect New York City than I had the day before,” said John J. Miller, the city’s top counterterrorism official. He described the new oversight as a safety valve. “If at any time this goes astray in the eyes of an independent observer, they have a way to bring that up.”

The monitor, called a “civilian representative,” will be appointed for a five-year term, which is intended to insulate the position from city politics. After five years, the mayor has the authority to eliminate the position, but only with advance public notice.

The Police Department also agreed to use undercover officers only when other options are impractical and to consider the effect that its investigations have on religious groups and people who are not suspected of any wrongdoing. Civil rights lawyers viewed this as a check on the city’s use of undercover officers to serve as “listening posts” while living under fake names in Muslim neighborhoods, though the provision does not prohibit that.

The department also agreed to cap the length of investigations in most cases — a limitation modeled after the rules governing F.B.I. investigations. Previously, police investigators had kept terrorism investigations open and conducted surveillance for years, collecting information but never bringing charges.

The surveillance tactics came to light in 2011 when The Associated Press published a series of stories and internal documents that revealed the workings of the department’s Intelligence Division under the management of David Cohen, a former top C.I.A. official.

The documents showed that the city built files on ethnic neighborhoods, kept tabs on New Yorkers who changed their names, and dispatched a squad of plainclothes officers — known as the Demographics Unit — to eavesdrop on conversations in Muslim businesses. Many of those efforts were controversial inside the department. Mr. Bratton formally disbanded the Demographics Unit as one of his first acts when he returned in 2014, for a second stint as police commissioner.

“If we were following terrorists or doing things that led to cases, we all would have supported that,” said Hector Berdecia, a now-retired lieutenant who oversaw the Demographics Unit and became convinced it was a waste of time. “To go out and listen to conversations and report on what they’re hearing, they had a problem with that, and I had problem with that.”

As the department’s intelligence chief, Mr. Cohen wielded tremendous authority to approve investigations and tactics. Many officers bristled under his leadership, and Mr. Berdecia said the new rules would serve as a check on that authority.

“That’s a position that has a lot of power to do a lot of good work for the city,” he said. “But you can’t just throw out a net and see what comes in. That’s a waste of resources and a waste of time. And it built a lot of animosity inside the department and inside the community.”

Others credit Mr. Cohen with transforming a moribund squad into one with aspirations as a world-class intelligence agency. Built with help from the C.I.A., the unit recruited a huge roster of informants, stationed detectives around the world and built a corps of analysts that stayed up to speed on national intelligence.

Mr. Miller says none of that will change. In an interview, Mr. Miller did not criticize his predecessors or their efforts. Rather he described the settlement as the latest step in a learning process for a unit that, before Sept. 11, mostly focused on chauffeuring visiting dignitaries around the city.

“They had to learn the business of counterterrorism going forward,” Mr. Miller said. “When you look at their earliest efforts and read through those materials, you say, ‘Well, you can see that they’re learning their way here.’”

Harkening to the federal Cointelpro surveillance program that began in the 1950s, and to the Los Angeles Police Department’s political spying scandal in the 1980s, Mr. Miller said the lesson is that easing the rules and reducing transparency always leads to “trouble.” This settlement, he said, would build “a framework for the future, so this can be sustained as other people come through here with varying levels of experience or leanings.”

The city also agreed to remove from its website a 2007 report, “Radicalization in the West,” which tried to find patterns in the way people become terrorists. The report, written by two police intelligence analysts, offered a profile of would-be terrorists that civil rights groups said was so broad as to include nearly any Muslim: “the bored and/or frustrated, successful college students, the unemployed, the second and third generation, new immigrants, petty criminals, and prison parolees.”

The two lawsuits being settled are the longstanding Handschu case — the case has been settled and reopened repeatedly over the years — and another brought by the American Civil Liberties Union and lawyers at the City University of New York School of Law. The city will pay about $2 million to cover the legal fees for the lawyers involved. A third case, over the Police Department’s surveillance in New Jersey, is pending. While that case raises many of the same issues as the two lawsuits being settled, Mr. Byrne said New Jersey residents are not part of the Handschu class, which means that case does not end with Thursday’s settlement. “Right now, we’re intending to litigate the case,” he said.