A reference to "DD5" in a detective document sheds some light on NYPD activities. [See end of this diary for DD5 references in AP document, section: "NYPD DOcument DD5 References, via AP"]
A DD5 is a document detectives file related to ongoing investigations. We need more information whether the DD5s have or have not been properly used to document detective activity to support external taskings from ODNI.
Prospect of DOJ OLC Motions
Because of Presidential taskings through ODNI to NYPD, this diary discusses some of the legal issues in requesting information via Brady; and raises the prospect DOJ OLC activity (i.e., invoking "Executive Privilege," "State Secrets," and other Executive shields in local jurisdictions, as seen during FISA litigation against the telecoms).
DD5s Document Detective Activity Supporting White House Taskings to Local Law Enforcement through ODNI
Comment 1:
Where does it say that the DD5 ("fives") are "only" used for criminal investigations; and why is it improper for a five to be used for intelligence gathering if that detective activity supports the White House request for information through ODNI?
Response 1:
It does not say that "fives" are "only" used for criminal investigations. It may be proper to document on a "five" detective activity in support of an information request ("tasking") from the White House through ODNI to local law enforcement.
Questions:
Which specific "open" case has triggered this type of record keeping?
When did "the open investigation" first start?
Another curious twist is the language NYPD supposedly used with Newark Mayor Cory Booker: That the NYPD activity was related to a "terrorism" investigation.
Newark Mayor Cory Booker and his police director criticized the report and said the NYPD misled them, telling them only that it was going into the city as part of a terrorism investigation.
Source
Analysis
One question is whether this was really (a) an ongoing, specific "terror investigation" to support a specific criminal case; (b) a generalized intelligence operation to circumvent restrictions on domestic intelligence gathering by the federal government; or (c) activity stemming from generalized interest from the White House and Congress to task through ODNI local law enforcement to collect domestic intelligence useful to warfighters.
Intelligence v. Specific Terrorism Case v. General Criminal Investigation
Assertion 2:
Once a DD5 is used, and that "five" is linked with an "ongoing, open" investigation, then it appears what the NYPD is really doing is acting under the authority of an "open, ongoing" terrorism investigation.
Response 2:
We do not know what type of Presidential direction is involved with the tasking through ODNI to NYPD. Any Presidential interest area could remain "open" until it is closed, either at the discretion of either the President, Office of the Presidency, or other legal authority in OVP or ODNI.
NYPD Role in Assisting US Military Forces
Assertion 3:
This NYPD surveillance could be part of any investigation the White House has directed, in support of national command authority plans and operations at home or abroad.
Response 3:
It remains unclear whether the President and Congress have specifically directed military personnel to cooperate with the NYPD; or whether NYPD is acting as one of many local law enforcement units collecting intelligence for both civilian and military consumers of terror-related investigations for either court or armed combat.
Highly Classified Presidential Program
These issues raise several questions related to, inter alia, to what extent Congress and the President:
A. Executive Privilege: Are aware these "fives" are collected in support of this Presidential-interest area, but subject to White House counsel legal review prior to disclosure;
B. Protected Databases: Would use information collected this way to justify transferring that information to the armed forces, but the existence of those databases, information transfers cannot be disclosed because they are similar to ODNI technical connections to the White House;
C. Posse Comitatus: Rely on this information to justify using armed forces to support domestic counter-terrorism operations, but that planned transfer of NYPD-sourced information is not disclosed because there is no active use of combat forces using this information; and
D. Brady: Are or could use a claim of an "ongoing terror-related investigation" as a shield to thwart and/or derail Brady requests; and prompt DOJ OLC to invoke "state secrets" during criminal defense trials, even in cases where there are mistakes and false accusations against innocent American civilians?
Intelligence collected under this program expanded local law enforcement justification to cite non-NYPD-authority to target civilians, regardless the dubiousness of those allegations.
Once information collected by local law enforcement is shielded behind a state secret's claim or executive privilege, this might reduce the chances that bonafide 42 USC 1983 claims will adequately check improper assertions of executive power.
Intended Use of Information Collected: General Intelligence v. Specific Crimes
Comment 4:
A terror-related investigation is something different than simply gathering "intelligence" about New York-connected residents. It's more than intelligence gathering. It's gathering information with the intent (or option) to use that information during criminal proceedings.
Response 4:
No, we do not know that intelligence gathered through these programs is "substantially" (vice, "partially, or possibly") connected with a foreseeable chance of prosecution. We also do not know the information protection assigned to both (a) the databases used to store, receive, transmit, and share the information; and (b) the data.
Brady
Comment 5:
Once there is a link between an investigation and a planned or possible criminal proceeding, that investigation should, under Brady trigger evidence retention requirements: That defense counsel should be able to request NYPD disclose information during a criminal trial.
Response 5:
We do not know whether legal authorities exist in national security investigations or issues to shield information, even under Brady. We do not know what percentage of the information collected has to be connected with what chances of a prosecution. When information collected has a low chance of being connected with prosecution, there may be looser restrictions on how that database -- with that intelligence information -- is accessed, protected, or made available underBrady
Perceived Lawfulness of Activity
Comment 6:
We do not know whether NYPD personnel believed this activity was dubious. However, the disclosures to the AP suggest there was not uniform agreement.
A dubious NYPD intelligence operation might have been distinguished between activity connected with a criminal investigation, and a Presidential counter-terrorism operation. This distinctions have bearing on data retention requirements/compliance programs.
If NYPD is acting under the presumption that the investigation is possibly dubious but "substantially" in support of "counter-terror investigations," they may have creatively applied legal authorities to create different levels of data access, depending on the intended/primary/substantial use of that information. (There is, in the mind of some in DOJ, a distinction between data and databases.)
Although there may be a legal requirement under Brady to retain that information, NYPD personnel might expect a shield during discovery, continue to collect information in this dubious program, and assume that even questionable operations would not see the light of day.
Response 6:
Although an investigation may be questionable relative to the Constitution, if NYPD legal counsel have received DOJ OLC legal memornda directing cooperation with the White House and ODNI, then NYPD might cited this legal authority when challenged over its records retention/destruction policies/practices. DOJ OLC would likely have an interest should information provided by NYPD to ODNI or the White House is sought through judicial order or (attorney) subpoena.
Evidence Retention
Comment 7:
This is similar to the CIA tape destruction scenario: Where there was improper activity, but evidence of that improper activity was subsequently destroyed. It appears NYPD believes they will face fewer consequences if they destroy information collected under this program, than explaining in court the legal arguments for the activity.
Response 7:
There are reports that NYPD has destroyed some information; and that legal counsel have requested judicial assistance to thwart this activity.
How many times, despite DOJ AG refusal to grant NYPD requests for FISA waivers, did NYPD conduct electronic surveillance outside what the DOJ AG would authorize?
However, it's unclear whether that "right" to seek under
Brady all information useful to the defense might be trumped by an Executive Claim of "state secrets" or "privilege" because of it's connection with a national security related investigation.
Uncertainties
It's unclear why, without a specific threat of terrorist activity, a DD5 is used to document detective activity related to ongoing, non-criminal intelligence operations, not specific criminal investigations.
It's unclear whether the President or others outside NYPD have directed an "ongoing" terrorism investigation; and how these authorities might be invoked to shield NYPD, it's activities or data/databases.
It is unclear whether the information collected is substantially connected with general intelligence gathering, a specific crime, or an ongoing general intelligence operation in support of Federal or foreign government combat support.
It's unclear whether the DD5s properly document detective activity that is related to: (1) a general intelligence operation; (2) a broader specific criminal investigation related to terrorism; or (3) part of a process to document detective activity supporting ODNI taskings to NYPD and other local law enforcement.
It's unclear whether DOJ OLC legal authorities have been drafted to shield NYPD activity and other Brady information from criminal defendants.
Judgements
A general concern about terrorism prompted Congress and the Executive to allow ODNI to task local law enforcement without adequate oversight of that activity and the subsequent retention, transfer, and use of that information or those databases; and did not appropriately manage the risks of using unlawfully collected, private information in criminal proceedings.
There is a credibility problem in the Legislative Branch. Congress cannot independently review the CIA cooperating with the NYPD activities; nor independently oversee the Executive Branch re direct taskings through ODNI to local law enforcement.
Tragically, it appears one mechanism to challenge this improper conduct and failed government oversight -- civil litigation through 42 USC 1983 -- might be derailed because some of the federal-level information has been shielded behind a dubious claim of state secrets within a protected database.
Conclusions
Assume the evidence destruction/shield lessons from CIA tape destruction and FISA telecom litigation apply to NYPD in re ODNI taskings to local law enforcement.
The DD5s are used to document detective activity supporting general intelligence taskings from the President and other agencies funneled through ODNI and other external agencies outside ODNI. The DD5s were not intended to document detective activity unrelated to lawful NYPD activity; nor were they intended to support general intelligence gathering.
The DD5s are useful to monitor whether the NYPD activities were designed to appear to collect intelligence, but were crafted with the "lesser" objective of collecting protected, private information which the Constitution shields. The DD5s show an active interest in general information, regardless the perceived connection of an imminent threat or criminal activity.
Auditors are encouraged to examine the difference between NYPD policies governing detectiver reports; and other policies supporting different detective practices when documenting information related to non-criminal cases.
There are NYPD policies and procedures explaining to detectives why DD5s are appropriately used, despite the non-specific intelligence operation aimed not primarily at criminal prosecution but gathering information unrelated to specific crimes.
There exist DOJ OLC legal memos which explain the legal rationale for suppressing/shielding information re NYPD activity which might otherwise be useful in re Brady or other civil rights litigation.
Auditors are encouraged to review the DOJ OLC memos related to ODNI taskings to NYPD; then review whether those authorities improperly breached the contours of the Constitution, especially as they relate to non-criminal investigations; or intelligence operations whose "substantial" or "primary" purpose appear to be for criminal prosecution.
Notes
NYPD DOcument DD5 References, via AP
. . .we have been monitoring DD5s for references to said event. . .
. . .Four of the five DD5s reference remarks either of the "did-you-hear" variety, statements of regret or expressions of relief that it was an accident and not an act of terrorism which, it was feared, would draw negative attention upon the Muslim world and Muslim community. A fifth DD5 (46822) features an individual who appears notably stirred up by the news of the crash. . .
. . .That said, the investigator has stated that a follow up will be conducted on the individual referenced in DD-5 (46822).
. . .DD5 states that "Uthman told CI he was not aware that something might happen. . ."
From:
http://hosted.ap.org/...