Fearing illegality, Justice Department blocked NYPD wiretaps Nick Juliano

Published: Thursday November 20, 2008





Print This Email This The New York Police Department and the Justice department feuded over the legal boundaries of national security wiretaps with Attorney General Michael Mukasey taking the unorthodox step of blocking a surveillance order, arguing that the NYPD's eavesdropping would be illegal.



The dispute, revealed Thursday in the New York Times, has scrambled traditional perceptions of a Justice Department that has previously seemed willing to cast aside legal blockades for the sake of national security.



At issue are wiretaps the NYPD asked the FBI to authorize under the Foreign Intelligence Surveillance Act aimed at suspected terrorists in the city. The two law enforcement agencies are forced to work together to protect New York, although bureaucratic turf battles often strain the relationship. Each agency participates in the city's Joint Terrorism Task Force, which aims to prevent another domestic attack.



NYPD Commissioner Raymond Kelly wrote to Mukasey last month arguing that the FBI held its FISA warrant requests to too strict a standard in refusing to submit them to the FISA court for approval. He alleged the decision endangered national security.



"DOJ's internal procedures for handling domestic FISA applications are unduly constraining the ability of the New York JTTF to investigate high priority subjeccts of international terrorism investigations in the greater New York area," Kelly wrote in a letter dated Oct. 27. "Consequently, the federal government is doing less than it is lawfully entitled to do to protect New York City, and the City is less safe as a result."



Four days later, Mukasey fired back, accusing Kelly of seeking to violate FISA.



"If effect what you ask is that we disregard FISA's legal requirements, which are rooted in the Constitution," Mukasey wrote. "Not only would your approach violate the law, it would also in short order make New York City and the rest of the country less safe."



Kelly's and Mukasey's letters (pdfs) were obtained and posted online by the Wall Street Journal.



Full details of the denied wiretaps are unknown because the case remains classified. Mukasey's letter, though, mentions several "communications facilities" the NYPD apparently wanted to eavesdrop upon. Officials who had been briefed on the case told the Times that the requests were overly broad and included public telephones in places like train and subway stations instead of phones connected to individuals.



