Civil liberties groups want Brennan to be questioned on CIA help with NYPD spying

John Brennan (Image: AP Photo/Carolyn Kaste)

The hearing to confirm John Brennan as the next head of the Central Intelligence Agency (CIA) focused primarily on the drone policy Brennan has shaped as a top adviser to President Obama. But an aspect of his testimony that got less attention in the media is his comments on the CIA’s collaboration with the New York Police Department’s program of blanket surveillance of Muslim communities in the Northeast.

Brennan is a 25-year veteran of the intelligence agency, and served until 2005. His time at the agency overlapped with the CIA’s collaboration with the NYPD’s surveillance of Muslim communities that started in the aftermath of the September 11, 2001 attacks. And in his prepared testimony to the Senate Intelligence Committee, Brennan says he knew about the program–something that was known before but is now sparking calls for the Senate to inquire further on this issue.

In response to a question about whether he was “aware” of the CIA-assisted program, Brennan said: “Yes, I was aware of the arrangement at the time.” He went on to say that the CIA’s work with domestic agencies is “critically important” and that “all such interactions and exchanges” are done in conformity with U.S. law.

That part of his testimony has now caught the attention of civil liberties advocates. A joint statement from the Center for Constitutional Rights and Muslim Advocates, two groups who are mired in a lawsuit against the NYPD’s program of surveillance, reads:

We are deeply concerned by John Brennan’s admission that he was aware of the arrangement between the CIA and NYPD, which has led to widespread unlawful spying on innocent American Muslims in New York, New Jersey, and other locations throughout the northeast. Mr. Brennan was the deputy executive director of the CIA at the time the NYPD-CIA collaboration was developed. His admission raises even more questions that should be immediately probed by the Senate Intelligence Committee, including what Mr. Brennan knew, when he knew it, and what steps, if any, he took to stop the discriminatory surveillance program. In April 2012, after a number of news stories revealed the program, Mr. Brennan issued conflicting statements that initially suggested he believed the NYPD acted consistent with the law, even as a congressional request to the U.S. Department of Justice to investigate the NYPD’s unconstitutional conduct was – and still is — pending. Government officials who knew about the discriminatory program, yet condoned it, should be held accountable.

I explained some of the details of the CIA-NYPD collaboration here:

[An] AP story reported that the surveillance program, which targeted innocent Muslim students, mosque goers and business owners, was “built with help from the CIA.” The man at the center of this collaboration was David Cohen, a 35-year CIA veteran who went to work for the NYPD after the September 11 attacks. Cohen tapped another CIA agent, Larry Sanchez, to work with the NYPD.

Before Sanchez left the NYPD, he put in some crucial work for the surveillance partnership. The Associated Press, which revealed the whole NYPD surveillance program and won a Pulitzer Prize for the series, reported in 2011 that:

When he arrived in New York in March 2002, Sanchez had offices at both the NYPD and the CIA’s station in New York, one former official said. Sanchez interviewed police officers for newly defined intelligence jobs. He guided and mentored officers, schooling them in the art of gathering information. He also directed their efforts, another said.

There had never been an arrangement like it, and some senior CIA officials soon began questioning whether Tenet was allowing Sanchez to operate on both sides of the wall that’s supposed to keep the CIA out of the domestic intelligence business.

“It should not be a surprise to anyone that, after 9/11, the Central Intelligence Agency stepped up its cooperation with law enforcement on counterterrorism issues or that some of that increased cooperation was in New York, the site of ground zero,” CIA spokeswoman Jennifer Youngblood said.

Just as at the CIA, Cohen and Sanchez knew that informants would have to become the backbone of their operation. But with threats coming in from around the globe, they couldn’t wait months for the perfect plan.

They came up with a makeshift solution. They dispatched more officers to Pakistani neighborhoods and, according to one former police official directly involved in the effort, instructed them to look for reasons to stop cars: speeding, broken tail lights, running stop signs, whatever. The traffic stop gave police an opportunity to search for outstanding warrants or look for suspicious behavior. An arrest could be the leverage the police needed to persuade someone to become an informant.

For Cohen, the transition from spying to policing didn’t come naturally, former colleagues said. When faced with a decision, especially early in his tenure, he’d fall back on his CIA background. Cutter said he and other uniformed officers had to tell Cohen, no, we can’t just slip into someone’s apartment without a warrant. No, we can’t just conduct a search. The rules for policing are different.

While Cohen was being shaped by the police department, his CIA background was remaking the department

The CIA is prohibited by law from collecting intelligence on Americans, but collaborated with the NYPD anyway in their surveillance program. A CIA Inspector General report criticized the arrangement because of a lack of oversight but concluded no laws were broken. A pending lawsuit is seeking to compel the CIA to publish the full Inspector General report.

Brennan had emphatically defended the NYPD’s program last year during a visit to New York City in remarks that frustrated many Muslims and civil liberties advocates. “My conversations with Commissioner Kelly indicate he’s done everything according to the law,” said Brennan. He added that he had “full confidence” in the police department. Two sets of lawsuits, though, dispute the claim that the NYPD has acted in accordance with the law during its widespread surveillance of Muslim neighborhoods, religious houses, businesses and student groups, all of which occurred without any suspicion of criminal activity.

In January of this year, national security blogger Marcy Wheeler raised questions about what Brennan knew about the CIA’s helping the NYPD with spying. Wheeler asked whether Brennan helped “create the loopholes” the CIA used to spy on Muslim-Americans. Wheeler notes that Brennan said he was “intimately familiar” with the CIA-NYPD program, and also writes:

Even some people within CIA considered this arrangement a violation of the prohibition on CIA involvement in domestic spying. It was, at best, a big loophole the government used to use CIA methods and trainers to spy on New Yorkers.

Siobhan Gorman describes Brennan’s role during the period when this loophole was set up as one “focused on administrative and workforce issues,” precisely the kind of person who would orchestrate putting a CIA officer in the NYPD and an NYPD officer in CIA training.

Mind you, back in 2011, the CIA’s Inspector General (not DOJ) did a month-long investigation and declared that CIA-on-the-Hudson didn’t violate the letter of the law because CIA officers weren’t the ones on the streets spying on Americans.

But that doesn’t change that the arrangement is just a big loophole to use NYPD’s multiethnic officers to conduct CIA-like infiltrations in NY’s Muslim, Arab, and South Asian communities.

And it seems very likely that John Brennan–the guy who wants to be CIA Director–created that loophole.

Are we about to rubber stamp a guy who has already violated the spirit of the prohibition on CIA domestic spying to take over the CIA? Would Brennan–who has been expanding spying on Americans under Obama, too–just blow away the prohibition on spying on Americans once and for all?

Conceivably, Senators could have questioned Brennan about the CIA-NYPD partnership to spy on Muslims in the secret hearing that was held Tuesday afternoon. But considering the Senate’s much-criticized performance last week it’s more likely they didn’t see fit to inquire about the CIA helping out a NYPD program that put a whole religious community under suspicion. Brennan will probably be confirmed without answering any of the questions civil liberties groups want known.