Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America

by Matt Apuzzo

  It didn’t take him long to realize that he was not walking back into the CIA. The NYPD had an intelligence division, but in name only. Working primarily out of the waterfront offices of the old Brooklyn Army Terminal, across the Hudson River, facing New Jersey, the detectives focused on drugs and gangs. They were in no way prepared to detect and disrupt a terrorist plot before it could be carried out. Mostly, they were known as the glorified chauffeurs who drove visiting dignitaries around the city.

  Cohen knew that more was possible.

  Force of will alone, however, would not transform a moribund division into something capable of stopping a terrorist attack. If Cohen wanted to remake the NYPD into a real intelligence service, there were four men—four graying hippies—standing in his way.

  • • •

  Martin Stolar first began hearing stories about the NYPD Intelligence Division in 1970 while working as a young lawyer for the New York Law Commune. A recently formed law firm for leftists, hippies, radicals, and activists, the commune operated entirely by consensus. It didn’t take a case unless everyone agreed. They saw themselves as part of the New Left, lawyers who didn’t merely represent their clients but who fully embraced their politics and were part of their struggle. They represented Columbia University students who’d taken over campus buildings during a protest in 1968. They stood beside members of the Weather Underground, the Black Panthers, and other radical groups, and activists such as Abbie Hoffman. And they never, ever, represented landlords in disputes with tenants.

  It was a new way of thinking about the law. The firm pooled all its fees and then paid one another based on need, not ability or performance. Operating out of a converted loft in Greenwich Village, the lawyers paid the bills thanks to well-to-do parents who hired them to keep their sons out of Vietnam. But about half their time was dedicated to political, nonpaying clients.

  Every now and again, one of the lawyers would come across something—a news clipping, a document, or a strong hunch—that suggested the NYPD was infiltrating activist groups and building dossiers on protesters. When they did, they’d add it to a plain manila folder, as something to revisit.

  Stolar had no problem questioning government authority. In 1969 he applied for admission to the bar in Ohio, where he was an antipoverty volunteer. When asked if he’d ever been “a member of any organization which advocates the overthrow of the government of the United States by force,” Stolar refused to answer. Nor would he answer when asked to list every club or organization he’d ever joined. The questions were holdovers from the Red Scare days of the 1950s. Stolar, a liberal New York lawyer, would have none of it. He took his case to the United States Supreme Court, which, in 1971, declared such questions unconstitutional. “[W]e can see no legitimate state interest which is served by a question which sweeps so broadly into areas of belief and association protected against government invasion,” Justice Hugo Black wrote.

  Stolar had moved back to New York by then and never bothered to return to Ohio to take the bar exam. He’d proven his point.

  In 1971 he was among the many lawyers working on the Panther 21 case, the trial of Black Panther Party members accused of conspiring to bomb police stations, businesses, and public buildings. While preparing their defense, the Law Commune attorneys came across something unusual: The case against the Panthers was built largely on the testimony of some of the earliest members of the New York chapter of the Black Panthers. There was Gene Roberts, a former security guard for Malcolm X who was present on February 21, 1965, when the Nation of Islam leader was assassinated in Manhattan’s Audubon Ballroom. There was Ralph White, the head of the Panther unit in the Bronx who’d once represented the entire New York chapter at a black power conference in Philadelphia. And there was Carlos Ashwood, who’d sold Panther literature in Harlem.

  They were founding fathers of the New York Panthers. And all three, it turned out, were undercover detectives. The NYPD had essentially set up the New York chapter of the Black Panther Party and built files on everyone who signed up.

  That convinced Stolar that something had to be done with his manila folder. He called another young lawyer, Jethro Eisenstein, who taught at New York University. The two knew each other from their work with the liberal National Lawyers Guild, and Stolar regarded Eisenstein as a brilliant legal writer. If they were going to have a shot at challenging the NYPD, the lawsuit had to sing.

  Together they put out the word to their clients and friends that they were looking for stories about the NYPD. The anecdotes came pouring in, both from activists and from other lawyers who, it turned out, had been keeping folders of their own. The mass of materials described a police department run amok. There was evidence that police were collecting the names of people who attended events for liberal causes. Detectives posed as journalists and photographed war protesters. Police infiltrated organizations that they considered suspect and maintained rosters of those who attended meetings.

  • • •

  On May 13, 1971, the Panthers were acquitted of all charges. At the time, it was the longest criminal trial in New York history, spanning eight months. Closing arguments alone had stretched over three weeks. But the jury was out only three hours before voting for acquittal. And the first hour was for lunch.

  In the courthouse lobby, jurors milled about, congratulating the Panthers and their lawyers. Some exchanged hugs. Jurors said there wasn’t enough evidence that the conspiracy was anything more than radical talk. Defense lawyer Gerald Lefcourt called the verdict “a rejection of secret government all the way from J. Edgar Hoover down to the secret police of New York City.”

  The New York Times editorial page read:

  It is not necessary to have any sympathy whatever with Panther philosophy or Panther methods to find some reassurance in the fact that—at a time when the government so often confuses invective with insurrection—a New York jury was willing to insist on evidence of wrong-doing rather than wrong-thinking.

  Five days after the verdict, Stolar and Eisenstein filed a twenty-one-page federal lawsuit against the NYPD. It accused the department of widespread constitutional violations.

  The plaintiffs represented a grab bag of the New Left. There were Black Panthers, members of the War Resisters League, and gay-rights advocates. There were well-known figures such as Abbie Hoffman and obscure groups like the Computer People for Peace. One young man, Stephen Rohde, sued because when he applied for admission to the New York bar, he’d been asked whether he’d ever opposed the Vietnam War. He had once signed a petition in a basement at Columbia University, and his views had ended up in a police file.

  The lawsuit became known as the Handschu case, after lawyer and activist Barbara Handschu, who was listed first among the plaintiffs. Stolar and Eisenstein argued that the NYPD was using its surveillance tactics to squelch free speech. Police Commissioner Patrick Murphy did not deny using those tactics. Rather, he said, they were necessary to protect the city. Murphy devoted eighteen pages to explaining to the court why the NYPD needed an effective intelligence division. He said the effort began in the early 1900s as a response to the Black Hand Society, an extortion racket run by new Sicilian immigrants. As the threat evolved over the decades, so did the unit. The 1960s, Murphy said, was a dangerous time to be in New York. Along with antiwar protests, student unrest, and racial conflicts, he cited a list of terrorist bombings and what he called “urban guerrilla warfare.”

  In response to that threat, Murphy explained, the NYPD stepped up its investigations of political groups that “because of their conduct or rhetoric may pose a threat to life, property, or governmental administration.” It was true, Murphy conceded, that a portion of that rhetoric might be political speech, protected by the Constitution. But that was the reality of a world in which some people used violence to achieve political goals. The police needed informants and undercover officers to figure out whether political groups were planning criminal acts.

  “Without an effectively operating intelligence
unit, the department would be unable to deal effectively with the many problems that arise each day in the largest, most complex, and most unique city in the world,” Murphy wrote.

  The intelligence unit of that era was an early example of what would become known as mission creep: the slow expansion of a government program far beyond its initial goals. Originally the NYPD investigated Italians, and then anarchists. Germans and Japanese were next, during World War II. Then came the Cold War, which turned the NYPD’s focus to Communists. From there it was easy to cast suspicion on union leaders, whose prolabor views suggested they might be Communist sympathizers. By the 1960s, police looked at antiwar protesters as subversives who needed to be watched. Peaceful groups such as Women Strike for Peace were infiltrated, not because of any actual intelligence but as a precautionary measure.16

  As the Handschu case dragged on for years, the NYPD acknowledged more and more about its tactics. There was an NYPD “extremist desk” and an NYPD “black desk” to investigate African Americans. Police monitored labor disputes. They conducted surveillance on political organizations formed by future presidential candidate Lyndon LaRouche.17 Police maintained a huge library of intelligence documents. There were hundreds of thousands of case files and more than a million index cards containing people’s names.18 And since the intelligence unit did not make arrests, police said it was impossible to know how many of those investigations actually led to charges and how many simply collected information on people.

  As it turned out, these NYPD tactics were part of a nationwide domestic surveillance boom during the 1960s and 1970s. The FBI was running its own nationwide spying operation, known as Cointelpro, short for counterintelligence program, which fed the CIA thousands of reports on American citizens. The FBI spied on liberal groups, civil rights leaders, journalists, and critics of US policies. Together the FBI and CIA built what was called the “watch list,” a roster that began with counterintelligence threats to the United States and grew to include antiwar groups, authors, publishers, scientific organizations, and scholars interested in the Soviet Union.

  The CIA, too, was spying widely on the antiwar movement. Presidents Johnson and Nixon used the CIA to find out whether the New Left was part of a campaign by foreign governments to destabilize the US government. The agency developed Project Chaos, a program that collected intelligence on domestic protest groups. Hundreds of thousands of Americans were put into agency records. Another operation, known as Project Merrimac, infiltrated antiwar and black activist groups, ostensibly to give the government an early warning of demonstrations. A third operation, Project Resistance, compiled intelligence about student radicals on campuses nationwide.

  As the CIA described it in a cable to overseas offices in 1968:

  Headquarters is engaged in a sensitive high priority program concerning foreign contacts with US individuals and organizations of the “Radical Left.” Included in this category are radical students, antiwar activists, draft resisters, and deserters, black nationalists, anarchists, and assorted “New Leftists.”19

  Every major report that came out of Project Chaos concluded that foreign agents were playing no significant role in the protest movement. But these were met with skepticism by the White House, which demanded that the CIA look harder. Often the information collected was innocuous. But senior CIA officers felt that, over time, even seemingly insignificant information might shed light on the intentions of these domestic groups. So the information was retained as a way to generate leads. Soon the names of roughly 300,000 Americans were indexed in CIA computers. About 7,500 had files on them.20

  The Handschu lawyers didn’t know it at the time, but their lawsuit against the NYPD was part of a changing tide in America. The Pentagon Papers (officially titled Report of the Office of the Secretary of Defense Vietnam Task Force), a secret history of the Vietnam War leaked to the New York Times in 1971, showed that the government had lied to the public. Then came Watergate, the scandal that revealed the dirty tricks of President Richard Nixon and forced him from office.

  Americans were no longer willing to take it on faith that their government was acting honestly or in the nation’s best interest. The country was asking difficult questions about what role intelligence agencies should play in a free, open society.

  In 1974 New York Times reporter Seymour M. Hersh published a blockbuster story outlining how the CIA had violated its charter by spying on Americans. Under the headline “Huge C.I.A. Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in Nixon Years,” Hersh revealed one of the most invasive operations in the agency’s history. In response, two congressional committees began investigating the CIA. Before that, congressional oversight of the agency was nonexistent.

  The ensuing investigation, led primarily by Idaho senator Frank Church and ten colleagues, cast into the public light many of the agency’s most embarrassing and controversial operations: a list known internally as the “Family Jewels.” The Church Committee revealed assassination plots, illegal mail openings, a covert propaganda campaign in Chile, and the unauthorized storage of toxins such as anthrax and smallpox. But the transcendent issue was the one Hersh brought to light: the spying on US citizens.

  Congress responded by forming intelligence committees in both the Senate and the House in 1976 and 1977. It gave itself oversight of the way that presidents carried out intelligence activities at home and abroad. It was the very bureaucracy that would so frustrate Cohen decades later.

  It would take nearly another decade before the lawsuit over the NYPD’s surveillance was resolved. In 1985 the city settled the Handschu case and agreed to court-established rules about what intelligence the NYPD could collect on political activity. Under the rules, the department could investigate constitutionally protected activities only when it had specific information that a crime was being committed or was imminent. Undercover officers could be used only when they were essential to the case, not as a way to keep tabs on groups. Police could no longer build dossiers on people or keep their names in police files without specific evidence of criminal activity.

  To ensure that the rules were being followed, the court created a three-person oversight committee. Two senior police officials and one civilian appointed by the mayor would review each police request for an investigation. Only with the majority approval of that board could an investigation proceed into political activity.

  There were four primary lawyers on the case now. Stolar and Eisenstein were joined by Franklin Siegel, another early member of the New York Law Commune, and Paul Chevigny, an attorney with the New York Civil Liberties Union. Even after the rules went into effect, the Handschu lawsuit remained open. That way, if the lawyers ever caught wind that the NYPD wasn’t following the guidelines, they could haul the police department before a judge. And if the NYPD wanted to change the rules, it had to talk to these four men first.

  Just as the legacy of the Church Committee was greater transparency at the CIA, the Handschu case put a check on the NYPD’s powers. But the Handschu guidelines, as the rules became known, also withered the division that Cohen would later inherit

  On the morning of September 11, 2001, Intelligence Division detectives rushed to Lower Manhattan, but when they arrived, they realized their helplessness. They stood there on the street for hours, waiting for someone to tell them what to do. “Stand by” was all they heard. They stood by as World Trade Center 7 collapsed in a plume of dust and smoke and they waited as darkness began to fall on New York. Some were sent toward ground zero to escort surgeons onto the pile, where they conducted emergency amputations or other lifesaving procedures. Others gathered at the Police Academy, where Deputy Chief John Cutter, the head of the Intelligence Division, put them on twelve-hour shifts. He told them to contact their informants.

  It was both the right command and a useless one. Nobody there had informants plugged into the world of international terrorism. But the detectives did what they were told. They called dope dealers and gang members
and asked what they knew about the worst terrorist attack in US history.

  They worked alongside the FBI out of makeshift command centers aboard the decommissioned aircraft carrier and museum USS Intrepid and in an FBI parking garage, where some detectives sat on the concrete floor. They responded to the many tips called in by a jittery public. They questioned Muslims whose neighbors suddenly deemed them suspicious and visited businesses owned by Arab immigrants.

  This was exactly the kind of reactive, aimless fumbling that Cohen wanted to do away with when he came aboard. He envisioned a police force that was plugged into the latest intelligence from Washington and that generated its own intelligence from the city. If an al-Qaeda bomber were ever to set his sights on New York again, Cohen wanted his team to be able to identify the plot and disrupt the plan. The rules needed to change.

  • • •

  Stolar, the attorney who’d brought the Handschu lawsuit decades earlier, listened on September 20, 2001, as President George W. Bush went to Congress and declared war on terrorism. He knew things were about to change. The way he saw it, once the government declares war on something—whether it be poverty, drugs, crime, or terrorism—the public quickly falls in line and supports it.

  But this former radical, who witnessed police fire tear gas and beat antiwar demonstrators during Chicago’s 1968 Democratic National Convention and who was part of some of New York’s most turbulent times, was surprisingly naive about what was to come. He talked to his wife, Elsie, a public defense lawyer, and told her it was only a matter of time before the FBI hunted down the people who planned the World Trade Center attacks. They would be prosecuted in Manhattan’s federal court, he said, and they would need lawyers. Even the worst people in the world deserved a fair hearing and staunch defense. If the choice presented itself, Stolar and his wife agreed, he should take the case. As it turned out, there would never be any criminal trials. The suspected terrorists would be shipped to a military prison in Guantánamo Bay, where the government created a new legal system.