Will Mayor Adams Audit NYPD Intelligence Division, Like he Said he Wanted to?

Years before Eric Adams became mayor, he urged the city to audit NYPD's clandestine unit. But secret agreements prevented it. He now finally has the power to demand the audit.

Jan 24, 2022

“The potentially illegal and arguably unconstitutional practices the NYPD engages in during it's domestic surveillance has reportedly damaged the NYPD's cooperation with the FBI, and arguably undermines the program's effectiveness and opens it up to significant civil and human rights litigation in federal and state courts.”

This might sound like the futile ramblings of an NYPD reform activist. But actually, these words were signed by Mayor Eric Adams – a former NYPD captain – who was sworn into the city’s top executive office this month.

Another letter from Adams discusses “the serious allegations and evidence of wrongdoing charged against the Division, which is the basis of three federal lawsuits concerning the Intelligence Division's unconstitutional targeting of civil rights groups, leftist organizations, and religious groups,” as he pleaded with the city comptroller to reveal a secret agreement that was made to shield the NYPD Intelligence Division from the comptroller’s oversight functions.

Though the letters were written nearly nine years ago – when Adams was just a state senator from Brooklyn urging a “full fiscal, management and operations audit” of one of the NYPD’s most constitutionally dubious units – the words are as true today as they were then.

But now the author of those letters is the new mayor, and he finally has the power to impose the Intelligence Division audit which he was helpless to demand when he believed the words he authored years ago.

The NYPD Intelligence Division has never been audited since its powers were greatly expanded after the 9/11 attacks. It conducts domestic and foreign intelligence collection, political surveillance, and threat analysis. It embeds plainclothes officers at political protests, and deploys – probably illegally – in multiple states in the Union and in over two dozen foreign nations. It receives hundreds of millions of dollars in government funding and even unknown amounts of private funding – unaccountable – from the NYPD’s own New York City Police Foundation.

And though it hasn’t been audited, it never will be audited under the current patchwork of city policies and secret agreements that nobody in public knows the terms of.

“It is our understanding that on or around 2002 or thereafter an agreement was made between the New York City comptroller and the NYPD concerning potential audits of the finances and activities of the Intelligence Division,” one of the Adams letters reads.

In response to his request for the audit, “we were informed by your office of this agreement,” the letter reads. But the comptroller’s office, then headed by Comptroller John Liu, refused to disclose what that agreement was. “We are troubled by the impression conveyed to us by your office that an agreement between the city comptroller and the Police Department might exist which your office believes can be denied to the legislature.”

Despite the supposed existence of the agreement, when Liu ran for re-election to the comptroller’s seat, one of his campaign promises was to finally audit the Intelligence Division. His competitor, Scott Stringer, made the same promise. When Stringer won the office, he served two terms without ever performing the audit. A new comptroller now holds the office, Brad Lander, who was sworn in the same day Mayor Adams was.

Over the course of years, Stringer’s administration refused to comment on the supposed agreement repeatedly, over the phone, by email, and even in person. When asked about the audit personally, Stringer became uncomfortable and remarked that he was just re-elected. Multiple Freedom of Information Law requests to his office over years were denied, and never produced the agreement.

“We are in the process of planning how best to use our audit power to make change in city agencies, and certainly will be taking a close look at the NYPD,” said a representative of Comptroller Lander this month in response to an email inquiry about the potential audit and the secret agreement concerning it.

Mayor Adams’s office did not respond to an email inquiry by the time of publish.

A New Era in Political Surveillance, Maybe?

Though Stringer failed to keep his campaign promise during the eight years he served as comptroller, he does have the laudable distinction of being the only city executive to attempt any meaningful NYPD reform in the wake of the nation-wide civil unrest the summer of 2020.

“I am writing today to notify your offices of my intent to terminate the procurement and contracting processes that have long been utilized by the NYPD to purchase what it deems to be ‘classified, confidential special expense’ goods and services,” Stringer wrote in a letter to then-NYPD Commissioner Dermot Shea in July of 2020. “I believe it is time to end the memorandum of understanding that was signed under previous mayoral and comptroller administrations and, since 2007, has allowed the NYPD to bypass certain procurement processes and oversight measures when it comes to purchasing surveillance and other equipment.”

While the supposed 2002 secret agreement shielding NYPD espionage from audit likely survives, the 2007 special expense, or “SPEX,” agreement is revealed and terminated as of August 27, 2020.

“This agreement allows the NYPD to hide from that public transparency accountability system that's in place for everyone else,” said Jerome Greco, an attorney for the Legal Aid Society, “and they've essentially been hiding hundreds of millions of dollars in purchases of surveillance technology.” The Legal Aid Society was the first to publish the SPEX agreements, and is currently in litigation with the NYPD for more documentation of their spy expenses.

Though the comptroller’s office has rescinded its endorsement for the NYPD to circumvent typical oversight for its intelligence contracts, it is not clear exactly what if any actual effect it will have on NYPD secrecy. In a designation letter which predates the SPEX agreement by two months, the city’s Law Department granted the NYPD’s deputy commissioner for legal matters the role of “special assistant corporation counsel,” with the power to act as the city’s top lawyer “with respect to approving as to form and certifying as to legal authority Police Department procurement contracts for confidential items and goods required for covert NYPD operations." Essentially, the NYPD is empowered to self-certify any spy contract it wants at its sole discretion – at least according to the legal theory of then-Mayor Michael Bloomberg.

“Now that the comptroller has withdrawn their agreement,” said Greco, “it's not clear whether or not if they're going to be holding on to unredacted copies, or if the NYPD is going to cut them out of the process … and how much it will mean that the future contracts will be more transparent, or if they will just try to sidestep the comptroller’s office altogether.”

The SPEX agreements reveal a culture of secrecy within the NYPD that Adams himself admitted in his letters has no basis in law. “Congress has granted the executive and certain federal agencies the ability to classify documents,” he wrote, “No such authority exists at the state level.” And yet the SPEX agreement is labeled “privileged and confidential.” A 2010 amendment to the agreement is stamped CONFIDENTIAL. It outlines byzantine requirements, among them that the comptroller’s office not even be permitted to retain copies of the secret NYPD contracts except in redacted form and outside of computer systems and city databases. It includes a waiver from the city’s Department of Small Business Services exempting SPEX purchases from the typical requirements designed to encourage contracting with local small businesses.

Does Political Surveillance Even Work?

Incidentally, the events that led to Stringer’s change of heart on NYPD covert operations may also be the events which prove just how useless the NYPD Intelligence Division’s political surveillance actually has been all these years. The riots in New York City in the summer of 2020 – the largest and most destructive events of their kind in the city since the 1977 blackout – represent not only a tactical failure, but a monumental intelligence failure, one for which the Intelligence Division may never be assessed.

Having fixated on political actors – spying on Black Lives Matter activists for years – the NYPD missed the actual threat: traditional crime – the very thing that municipal police departments are designed to fight. The NYPD itself concluded that the perpetrators of the riots – which spanned multiple nights, in two boroughs, the burglary of over 600 stores, unknown monetary damage in the tens of millions of dollars, and an unknown number of civilian injuries or fatalities – were not political activists but “non-ideological opportunists,” according to a report by the city’s Department of Investigation, DOI.

The DOI report reveals that of the NYPD’s various internal metrics on the 2020 unrest, that the Intelligence Division’s data is the least accurate, undercounting arrests by nearly a factor of three compared to other internal NYPD sources. That is despite the fact that the Intelligence Division supposedly monitored the entire events closely and maintained daily intelligence binders.

But without an actual audit – and without even the possibility to audit – the DOI report may be the closest government examination of the Intelligence Division the public ever gets. Yet the DOI did not have the requisite access, nor mandate – the scope of their investigation was NYPD brutality of protesters, not the riots themselves, nor the failures that led to the riots.

In response to Freedom of Information Law requests, DOI said they did not possess any of the Intelligence Division’s supposed “Handschu investigative statements” – legally required paperwork for any NYPD political investigation – and neither did they possess any interview transcripts of NYPD’s deputy commissioner of intelligence, John Miller – implying no interviews with him were conducted at all – despite Miller telling the press that the mass looting was “an intelligence failure.” They did interview three-star Chief of Intelligence Thomas Galati, but declined to provide the transcripts.

Documents:

Photo: From left to right, David Cohen: founding NYPD deputy commissioner for intelligence, and former CIA deputy director for operations; Thomas Galati: NYPD chief of intelligence; John Miller: NYPD deputy commissioner for intelligence and counterterrorism, and NYPD deputy commissioner for public information. Illustration by John Bolger. Fair use imagery from: NYPD, Associated Press, and Harvard Law Today.

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