As the symbolic capital of the globalized economy, New York will loom as a target of those with grievances against the new order for a long time to come. New York can do little to ease those grievances, though it can do a great deal to protect itself. But there must be a balance: Enough security to stop further attacks, but no unnecessary measures that weaken the city.
The problem is that every increment in security will come at a cost. Worse, the costs will be more than financial. They will be social and political--and will threaten to undermine the city's very being and sense of itself as free-wheeling, entrepreneurial, and invincible. New York's strategic problem will be safeguarding itself as effectively but as unobtrusively as possible.
For better or worse, it will not be alone in this crisis. Its new partner, the federal government, showed a fairly light hand in past criminal events, treating the city and its police department with the respect normally due a sovereign. While touring the ruins of the World Trade Center President Bush seemed to defer to Mayor Giuliani as guest to host.
But the days of federal deference to New York may be over. A safe America requires a safe New York--no president can permit New York to remain an island. Will this be good or bad for New Yorkers? The answer will depend in part on how strong the next police commissioner is, how capably he leads his department, and how effectively he negotiates with federal agencies like the Federal Bureau of Investigation and the Department of Justice.
No one thinks that the FBI, based in Washington with a staff drawn from around the country, can direct security in New York better than the New York police. But the bombing of the Trade Center shows that ensuring New York's safety cannot be an exclusively local function. The FBI and the New York Police Department will have to work these matters through--and it probably won't be pretty.
Thus the NYPD commissionership may become the most important job in New York. Luckily for him, the next commissioner will start with a revitalized department. Today the New York Police Department stands strong, resilient and respected. Most pre-September 11 arguments about police issues--even serious ones like racial profiling--now seem petty and distant, as if that was a different department in a different city. In these days of crisis, the police have performed heroically and professionally. They have been on duty round the clock, a reassuring, protective presence.
As fire Captain Kennenth Erb told Larry King, "They had a recall for all police officers and fire officers as soon as the news struck. And we all, one way or the other, got in, through hitchhiking, get in your car or whatever." Crime was down 34 percent last week over the same week last year--a tribute to the cops and perhaps to some decency even among criminals.
At least 23 police officers are missing, most from the elite Emergency Service Unit. All were (presumed) killed while trying to rescue others.
One practical consequence will be the end of the police department's recruitment crisis. The department's recruitment poster that had offered a "career of heroism and public service" now rings true.
Here's the background. While the department had been trying to maintain a head count of 41,440 officers, its numbers had fallen to about 39,800 in August. Part of the problem was retirement. About 3,000 cops were expected to retire this year, or about a third more than last year. That number may now shrink.
But the other part of the problem had been the department's unsuccessful recruitment efforts. It did not fill its last graduating class at the Police Academy in September 2000, and had been unlikely to fill this year's class despite strenuous recruiting efforts and incentives, like eliminating the $35 fee for the civil service exam.
In a New York Times op-ed former Police Commissioner William Bratton summarized the problem in a national context: "From Los Angeles to New York City, from Cincinnati to Miami, many of the nation's police forces face intense scrutiny and criticism for corruption, racial profiling, racial insensitivity, brutality, unresponsiveness to community concerns and professional incompetence." Declining public respect for cops, justified or unjustified, was taking its toll.
Bratton went on to say that the causes of the recruitment crisis, "both at the entry level and at the top of the profession," were fairly clear. Starting pay is relatively low. (New York City's is $31,305.) Policing is less a family tradition than it was a generation ago. Young people have little appreciation of the complexity and variety of police work.
Much of this will change for the better. City officials had been prepared to raise police pay substantially, and public opinion will agree. The complexity and variety of police work has been on display for all to see--and the police department is likely to have its pick of excellent young recruits for the first time in years.
The police department--and to some extent New Yorkers--will have to think through the right balance of security and efficiency in everyday life.
The public had already become accustomed to the measures deterring the common thug--metal detectors, photo IDs, bag searches, checks of electronic equipment. The devices are often primitive and the training of the personnel poor, but routine security checks prevent at least some crime and perhaps some terrorism. At their most effective, such as in the eight New York criminal courthouses, they prevent a lot of crime. In a Labor Day piece, the New York Times said the 631 criminal court officers had confiscated a "staggering collection of 20 boxes of weapons" this year alone. Violent incidents in the courthouses are few--and not for want of trying by criminals.
The future, however, lies with high-tech solutions that are independent of human judgment, such as the X-ray machines that reveal weapons. The cutting-edge versions do so at a distance.
Accustomed as they may be to routine security lines, New Yorkers are far less comfortable with what the security trade calls Israeli tactics--traffic-stopping checkpoints, intrusive questioning, random identification checks, intimate searches, and racial profiling. These are ostensibly meant to deter crime, but they are also meant to remind the public often and aggressively of the presence of terrorists and to get the public to accept the authority of the police and military. The inconvenience that accompanies these tactics is deliberate.
Daniel Williams recently gave an excellent summary in the Washington Post of how this routinely works in Jerusalem and the surrounding countryside: "Control-through-engineering has become a major activity under Israeli Prime Minister Ariel Sharon. Soldiers periodically cut off large towns from one another. Commerce comes to a virtual standstill. Even when traffic is permitted, the wait to get in and out of major urban centers can be time-consuming. Not only do the Israeli soldiers generally provide only one exit from town, they also keep military inspectors to a minimum, so vehicles pass only one by one."
Former Police Commissioner Safir actually introduced a few of these ideas to New York, and Commissioner Kerik has continued them. Traffic-stopping checkpoints ostensibly for drunk-driving or seat-belt use were first used in Upper Manhattan and minority neighborhoods. After an outcry about racial profiling, Safir expanded the checkpoints to Manhattan neighborhoods below 96th Street.
The pedestrian-controlling concrete barriers introduced by Mayor Giuliani and Commissioner Safir in 1998 also represent an Israeli tactic, a re-engineering to encourage people to go only where they are directed and to accustom the public to accepting restrictions on their movements.
Were these Israeli tactics introduced by the city because they appealed to Mayor Giuliani's sense of order, or because the city had been alerted by Washington about serious terrorist threats? No one is saying, although former commissioner Bratton said on television that there had been two serious unreported terrorist threats during his term.
The most important question among all these tactics is, however, what works?
Much as it will seek to protect itself, New York will only be safe insofar as others protect it as well. The plane that flew into the World Trade Center took off from Logan Airport in Boston, an airport that the Federal Aviation Administration has repeatedly cited for safety violations.
Everyone wants whatever went wrong at Logan Airport in Boston fixed. But what was it that failed? And will the FAA's new proposals and restrictions on passengers work?
Arthur Wolk, an aviation safety expert, argues that the new FAA rules, such as the ban on steak knives in first class or the abolition of curbside checking, are ineffective and would have in no way prevented the hijackings. He proposes instead that sky marshals fly on most flights, that pilots be armed--most are former military officers--and that flight attendants be trained in martial arts.
Mary Schiavo, former inspector general for the U.S. Department of Transportation, argues that aviation security is a law enforcement function, and belongs with a law enforcement agency, not the FAA. Law enforcement officials would be far less ready to listen to concerns about the weight of new cockpit doors (additional weight would affect the cost of every flight), or the extra costs of sky marshals or deputized pilots.
New York has an acute interest in these issues, and in all matters having to do with its air space. All but three private helicopters have been grounded, and those three have been given mandated flight plans. The FAA's previous ridiculous policy of refusing to regulate helicopters and small planes over New York has been reversed.
New York can do little about Third World grievances but it can and should protect its Arab-American residents with a full police presence. Attacks on Lebanese stores on Atlantic Avenue are not only despicable, some of the attackers have been in this country for a far shorter time than the owners of, say, Sahadi's, who are on their third generation. As James Zogby, president of the Arab American Institute, said: "We are in the midst of a national nightmare of unimaginable proportions." Arab-Americans were among those killed in the Trade Center.
Arab-Americans should feel as fully welcome as the many groups that have come before them. This crisis will only be eased by the help of Arabic-speaking Americans using their language and contacts in the Arab world to track down terrorists and set the world back on course. This is not a time to drive loyal Arab-Americans away. New Yorkers should patronize Arab businesses as they always have, including the restaurants that now stand empty, showing support for decent, hard-working immigrants who came here for a better life. It's the New York way.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
Protesters arrested for minor offenses will no longer be held overnight in jail, the Police Department informed Judge William Pauley III of the U.S. District Court in Manhattan in mid-July. This is excellent news. Let's back up.
After the killing of Amadou Diallo--the young, unarmed, African street vendor--by four police officers on February 4, 1999, thousands of New Yorkers poured into the streets of Lower Manhattan to protest what some saw as police brutality and others as police incompetence. Hundreds were arrested for minor offenses--disorderly conduct, obstructing government, disobeying an order to disperse.
The Police Department followed its time-honored procedures in arresting and releasing demonstrators. Those who showed identification and who had no other criminal complication--such as drugs, weapons, or outstanding warrants--were given desk appearance tickets (DATs). DATs are routinely issued to minor offenders to ensure their appearance in court on a specified date, while allowing them to go home in the meantime.
DATs make eminent sense. An arrest is not a punishment, just as the police are not judge and jury. The sole point of an arrest is to secure the appearance of the person before a judge. Those arrested on minor charges are usually jailed only if the police fear flight or violence.
During the Diallo demonstrations, then-Police Commissioner Howard Safir decided that protesters should be jailed rather than released. The police began to hold demonstrators for a few hours in the precinct, and then transfer them to a central booking facility. Here they were held--usually overnight--until arraigned before a judge. Judges routinely dismissed almost all charges.
Until May 1, this policy of jailing some demonstrators had been informally enforced. On May 1, for reasons that "remain unclear," according to the New York Times, the Chief of Department (the NYPD's highest-ranking uniformed officer) formalized the policy. He issued a directive forbidding desk appearance tickets for offenses committed at demonstrations of 20 people or more. All demonstrators, he ordered, were to be, in police terminology, "processed on-line," meaning detained for arraignment. You and I would call it jailed.
Daniel Connolly, the lawyer in charge of this for the city's Corporation Counsel, defended the new police policy. He argued that the policy was intended to discourage crime and to process offenders (i.e., protesters) efficiently. In a June interview Connolly said, "The police department has many exceptions in which desk appearance tickets are not given--in cases of assault, for example, or cases involving alcohol, or when people are from out of town. No DATs. This is just another exception."
Connolly also mentioned what he called "the recidivist threat," the problem that demonstrators committed to civil disobedience will reappear at the rally if they are released with a desk appearance ticket. Meanwhile, minor offenses committed by anyone but demonstrators--littering, for example, or walking a dog off leash--would still generally be handled with desk appearance tickets. Only demonstrators were to be jailed.
This, of course, raised serious constitutional issues, as the New York Civil Liberties Union argued in a law suit in federal court. NYCLU lawyer Christopher Dunn argued that "singling out demonstrators to be `put through the system' specifically retaliates against citizens exercising their First and Fourth Amendment rights." The point of the arrests was to remove people from the scene of constitutionally protected political activity.
From the nation's founding forward, American courts have had to grapple with balancing the people's right to peace and order with rights of free speech and assembly. Disturbances of the peace that involve noisy parties or public vandalism present no constitutional problems. But disturbances that result from what people say or from public demonstrations quickly invoke the constitutional guarantees of freedom of speech and freedom of assembly.
During the 1960s the Supreme Court became increasingly reluctant to permit local police to forbid or halt civil rights demonstrations. As Justice Potter Stewart wrote in 1963, the state may not "make criminal the peaceful expression of unpopular views." The court has cast a cold eye ever since on local regulations that threaten freedom of speech and the right to assembly.
While the government may, under its police power, legitimately regulate the "Time, Place, and Manner" of demonstrations, it may not use the guise of regulation to interfere unduly with the people's right to assemble. In practice, this is a difficult area, requiring good judgment and sensitivity from local officials.
New York often lacks both. The problem is that the people wishing to exercise their right to assemble and demonstrate mainly wish to protest against Mayor Rudolph Giuliani and his Police Department--the very officials asserting the right to jail the protesters. Do protesters often embarrass the mayor and the police? Yes, but that is their constitutional right.
In July the Police Department and the Corporation Counsel decided to back off jailing protesters overnight. Some sense of balance and order has been restored.
Desk appearance tickets served the people and the police of the City of New York well for years--and now they will again. Jailing protesters on minor--sometimes trumped-up--charges before they see a judge has been consigned to a brief, unfortunate moment in the dustbin of New York City history.
Commissioner Kerik and the Police Department can return to what they do best: fighting real crime, not legitimate protest.
After a few months in office, police commissioner Bernard Kerik announced in January that one of his top priorities would be improving police-community relations. High-ranking officers would attend community meetings in person, precincts would be more welcoming to the public, officers on the street would be encouraged to be polite and attentive.
A report by the Citizens Crime Commission, which calls itself an independent criminal justice research organization, concludes that the police department is not yet courteous enough for many New Yorkers--even though the vast majority feel safe in their neighborhoods. Indeed, 91 percent of the 834 New Yorkers surveyed from October 2000 through February 2001 said they feel safe in their neighborhoods during the day, 77 percent feel safe at night, and 84 percent regard their neighborhoods as safer than a year ago.
But the problem of race continues to raise its ugly head: 67 percent of surveyed New Yorkers said that the police were tougher on blacks than on whites, and 59 percent said that brutality was a serious problem in the department.
Meanwhile, civilian complaints against the police jumped 12 percent in the first six months of 2001, according to the Civilian Complaint Review Board. It logged 2,418 complaints through June 30, or 264 more than in the six months last year. Charges of abuse of authority were up 12 percent, and charges of excessive force up 9 percent.
The Citizens Crime Commission has a suggestion. They believe that CompStat, the police department's renowned computerized crime-tracking system, could be "helpful in breaking down divisions between police and citizens." They urge the department to begin an "expanded information-sharing effort" with neighborhoods to provide crime data while enlisting the help of residents in planning crime-fighting strategies that would be both effective and "not offensive to the community." Worth a try perhaps.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
Late last month the war between Mayor Rudy Giuliani and his estranged wife Donna Hanover became a battle for the children. With the couple unable to agree on custody or when to introduce Andrew, 15, and Caroline, 11, to Giuliani's friend Judy Nathan, Acting Manhattan Supreme Court Justice Judith Gische decided the two children needed their own representative. She appointed a law guardian.
Law guardians, who have existed in Family Court since 1962 and in Supreme Court since 1990, can offset the mudslinging and focus attention on the child. However, some critics say there is a vagueness surrounding law guardians in custody disputes, and believe the system of law guardianship needs reform. "The guardian is just one more powerful adult with whose judgment the child may or may not agree," said Andrew Schepard, a professor at Hofstra University School of Law.
"We are constantly debating the issue of substitution of judgment," said Bruce Carpenter, an 11-year veteran of Legal Aid's Juvenile Rights Division who specializes in delinquency cases. He said there is a general trend toward representing the wishes of the child client, but there are cases in the "gray zone" where it might be better to substitute the adult attorney's judgment. "How, as adults, do we define our role?"
In one oft-cited case (Koppenhoeffer v. Koppenhoeffer from 1990), the law guardian was defined as someone who "may act as champion of the child's best interest, as advocate for the child's preference, as investigator seeking truth in controverted issues, or may serve to recommend alternatives for the court's consideration."
New York is unique in the nation in its law guardian system, which combines two essential -- and often conflicting -- functions: guardian and attorney. A traditional guardian, who need not be an attorney, is appointed to provide the court information about a client who is viewed as legally incompetent. Children under six are typically considered to be legally incompetent. A guardian is bound to protect a child's best interests, even if it is at odds with what the child says. In contrast, an attorney for a child acts as an advocate, just as he would with an adult. An advocate must respect the client's judgment and wishes, even if he does not agree.
Legal scholars and practitioners are disturbed by the many "gray areas" of law guardianship, which they warn casts a haze over the entire field. "Identical children receive different kinds of service depending on the individual appointee's conception of the role," said Schepard, who also edits the "Family Court Review." The very ambiguity of the term law guardian, said Schepard, reflects "ambivalence about the role children should play in determining custody disputes between their parents."
The question is whether children are objects or subjects of dispute. In the Giuliani divorce case, the judge selected as law guardian for Caroline and Andrew Giuliani an attorney named Jo Ann Douglas, who had just finished serving as law guardian for the child of Revlon chief Ron Perelman and Democratic fundraiser Patricia Duff in their high-profile divorce. Douglas is known to respect the individuality and judgment of her clients. "We come to positions just like grown-ups do with their lawyers," she said. Her job is not to assume the role of the court and decide between the parents, but to look after the children when their parents are so blinded by their own problems that they cannot see their children's point of view.