Jennifer Szymaszek/Associated Press

On Wednesday, the United States Court of Appeals for the Second Circuit ruled that the New York City Police Department can withhold 1,900 pages of data detailing police surveillance in advance of the 2004 Republican Convention in New York.

So now and forever, the reason that 1,800 people were arrested, many pre-emptively, during the convention and placed in a pen on the Hudson River – nicknamed Guantanamo on the Hudson by some – will remain very much a mystery. Those documents also might have shed some light on the efforts of undercover police officers sent all over the country to gather intelligence on people who might come to the city to protest.

The city has paid out millions to those who were arrested and a Federal District Court judge, along with a federal magistrate, had ruled that the city was required to release the data that led to the arrests, but the Second Circuit decided that transparency could “undermine the safety of law enforcement personnel and would likely undermine the ability of a law enforcement agency to conduct further investigations.”



The 43-page ruling has the collateral effect of preventing the press from inspecting the rationale that New York used to fence off protests and to raid various church, theater and civic groups before the convention. In part, the city was able to keep the information secret by conflating peaceful political protest with the Gollum of terrorism.

“The real tragedy in today’s ruling is that it may further embolden the police to play the terrorism card in trying to suppress lawful protest,” said Christopher T. Dunn, the associate legal director of the New York Civil Liberties Union.

Police Commissioner Raymond W. Kelly said it wasn’t just police tactics being protected, but you and me.

“This was an important decision for New York and for the protection of society at large.”

Nice thought that, but I’ve covered many national conventions and since the attacks of Sept. 11, various cities have become increasingly aggressive and proactive in tamping down protests. The issue seems to be less about public safety and far more about civic hygiene. No police department or host city wants their moment in the national spotlight with thousands of roaming camera crews to be spoiled by thousands of protesters exercising their right to loud and sometimes messy protest. There are always provocateurs in any mass protest, but their crimes are measured in broken windows, not a threat to the people who attend a convention or live in a host city.

Since the terrorist attacks, convention protests have been sealed off and in many instances, access to the protesters themselves was limited. During the Democratic convention in Denver in 2008, I was inside a security perimeter and tried to leave it to join a videographer to cover the protests. Both local law enforcement and the Secret Service refused to allow me to leave the fenced-in area, citing a concern for my personal safety.

Whether it is Denver in 2008 or New York in 2004, law enforcement in various cities have used the permissions granted by a terrorist attack to engage in the kind of tactical aggression that is in a tool belt that is more commonly used by less democratic societies. And in some instances in New York, the police themselves covertly served as faux protesters and provocateurs.

Jim Dwyer, columnist for The New York Times, wrote a great deal about the surveillance efforts, discovering that some of the subjects of the investigations were a long way from being potential terrorists.

In hundreds of reports stamped “N.Y.P.D. Secret,” the Intelligence Division chronicled the views and plans of people who had no apparent intention of breaking the law, the records show. These included members of street theater companies, church groups and antiwar organizations, as well as environmentalists and people opposed to the death penalty, globalization and other government policies. Three New York City elected officials were cited in the reports. In at least some cases, intelligence on what appeared to be lawful activity was shared with police departments in other cities.

Ninety percent of the cases resulting from mass arrests were dropped – many people not involved in the protests were swept up along with people who had chosen to participate – so you have to wonder whether one of the motives for the arrests was a kind of preventative detention, locking up people who otherwise might have created a fuss.

You have to wonder what a reporter like Mr. Dwyer might have found in the 1,900 pages of documents that will remain sealed, but that’s now a moot question.