Ann Arbor Bill of Rights
Defense Committee

Police Spying: The Local Connection--AAPD Chief Dan Oates

Before coming to Ann Arbor in August 2001, Daniel Oates, an attorney, was the commander of the New York Police Department’s (NYPD) Intelligence Division.  In that position, Deputy Chief Oates, while not a named defendant, was an important figure in three First Amendment lawsuits litigated by the New York Civil Liberties Union on behalf of Housing Works--an HIV-AIDS service provider and advocacy group that was critical of New York Mayor Rudolph Giuliani’s AIDS policies.  Three separate opinions of federal District Judge Harold Baer, Jr. reveal that Oates and other officials repeatedly violated the First Amendment rights of Housing Works and its supporters under the rubric of security concerns.[1]

In his second opinion, citing testimony by Oates' deputy, Pedro J. Pineiro, Judge Baer found that, the NYPD had imposed "a complete ban on all [political protest] activity on the City Hall steps and plaza."[2]  However, Baer noted that the ban was selectively enforced and "permitted two massive events to occur on the City Hall steps and plaza, the Yankee rally with at least 5,000 individuals and the Senator John Glenn celebration where 3,000 tickets were distributed."[3]  Housing Works, on other hand, was denied access for its World AIDS Day commemoration.  Judge Baer also quoted, in its entirety, a memo from Oates to Police Commissioner Safir establishing an unconstitutional policy regulating access to City Hall.[4]

The New York Times reported that during the final Housing Works trial, Oates testified, ''I have to take the position that anyone in that crowd might have some evil intent.''[5]  In 2000, in his final Housing Works opinion, Baer characterized the suits as part of "a relentless onslaught of First Amendment litigation" waged as a result of constitutional violations by the Giuliani administration.[6]  Baer declared Oates’ policy and later less restrictive policies unconstitutional and made his two earlier injunctions against the NYPD permanent--the city did not appeal.[7]

The day after Baer's decision, the Times editorialized against "Mayor Rudolph Giuliani's cramped view of free speech rights" and noted, "This vindication of New Yorkers' free speech rights was the latest in a long line of First Amendment cases that have gone badly for the city."[8] Of course, Giuliani's civil liberties infringements were not his work alone, scores of willing accomplices like Dan Oates formulated and implemented the unconstitutional policies.

Less than a month before 9/11, Oates took over as Chief of the Ann Arbor Police Department.  In an October 2001, Ann Arbor News interview, Oates mentioned an FBI "watch list which has hundreds of Arabic names."[9]  The watch list was part of a federal dragnet that swept up more than 1,200 US citizens and non-citizens--mostly south Asians and Arabs.  The only person caught in the sweep who was ever charged with involvement in the 9/11 attacks--Zacarias Moussaoui--was known to the FBI before the attacks. Thus, while the FBI’s broad-brush approach had questionable anti-terrorist value, it spread fear and distrust in immigrant communities and, arguably, gave tacit encouragement for scores of post-9/11 hate crimes.  Yet, the Oates interview reveals no concern about ethnic profiling or lack of probable cause.  Instead, Oates complained, "We need descriptions, ages, dates of birth, drivers’ license numbers, pictures ... to capture these people."[10]

Repeatedly, and often in cooperation with local police, the FBI has egregiously and systematically violated the constitutional rights of law-abiding Americans.  According to former Deputy Chief Harold E. Olson, in the 1960s and 1970s, the AAPD, in cooperation with the FBI, "checked on possible subversives as a regular duty." The AAPD also shared "political spying intelligence" with the infamous Chicago Police "Red Squad."[11] Yet, in the interview, headlined "Oates: local police underused in intelligence", the Chief exhorted FBI leaders "to learn to trust and realize the full potential of local law enforcement" and spoke of AAPD’s "wonderful working relationship" with Ann Arbor-based FBI agents.[12]

Oates' agitation paid off and earned him the attention of syndicated columnist Robert Novak. The Washington Post published Novak's op-ed piece, "Same Old FBI," on October 25, 2001; Oates is mentioned and quoted several times in the article. On that same day, Vermont Democratic Senator Patrick Leahy had the article entered into the Congressional Record and joined 97 of his Senate colleagues in voting for the USA PATRIOT Act.[13] Obviously, Oates' role was not pivotal but he played his part well nonetheless. In a November 2001 New York Times opinion piece entitled, "The F.B.I. Can't Do It Alone," Oates kept up the cry, urging the FBI to "issue 10,000 security clearances to police officers ... These officers should be senior leaders ... and top investigators who would be able to spot suspicious behavior in the communities they know."[14]

In late October 2001, the International Association of Chiefs of Police (IACP) held its annual conference in Toronto. Considering the events of September 11th, it was decided to organize an International Criminal Intelligence Sharing Summit in Alexandria, VA, on March 7-8, 2002.  The summit topic was "Criminal Intelligence Sharing: Overcoming Barriers to Enhance Domestic Security."  Dan Oates was one of the 27 members of the “Intelligence Sharing Summit Advisory Group” who helped plan the summit and one of only six "Breakout Group Facilitators."[15]

The 100 summit attendees comprised a select group of "criminal intelligence experts from local, state, Tribal and Federal law enforcement agencies, international law enforcement bodies, national and regional intelligence gathering and analysis organizations and academia."  Participants included Attorney General John Ashcroft and representatives from the DOJ, INS, DEA, FBI, Office of Homeland Security, National Reconnaissance Office, Secret Service, and the US military.[16]

The summit proceedings were compiled by the IACP in a 2002 report entitled, Criminal Intelligence Sharing: A National Plan for Intelligence-Led Policing at the Local, State and Federal Levels--Recommendations from the IACP Intelligence Summit (hereafter "CIS Report").  The summit and CIS Report were both partially funded by the DOJ.  What follows are excerpts from the CIS Report recommendations:

In its discussion of the bill that would establish the Department, the White House stated, "The Department of Homeland Security would coordinate, simplify and, where appropriate, consolidate government relations on issues for America’s state and local agencies. It would coordinate federal homeland security programs and information with state and local officials."

This element of the President's plan is significant: non-federal agencies (local law enforcement, state police and regional law enforcement task forces) have both a great need for intelligence data and a great capacity to contribute to the process of intelligence generation. (p. 1)

While September 11 highlighted urgency in improving the capacity of law enforcement agencies ... to share terrorism-relevant intelligence data, participants in the Criminal Intelligence Sharing Summit stressed that the real need is to share all -- not just terrorism-related -- criminal intelligence ... Summit participants called upon federal leaders to affirm the need for all law enforcement (local, state, federal and tribal) to join in the creation of a National Intelligence Plan. Such a Plan will:

1. Create a coordinating council comprised of local, state, Tribal and Federal law enforcement executives (The Criminal Intelligence Coordinating Council) to oversee and implement the National Intelligence Plan.
2. Address the legal impediments to the effective transfer of criminal intelligence between authorized enforcement agencies. (p. 4; emphasis added)

The details of the Plan and the mandate of the Council must be sufficient to overcome the substantial and, in some cases, longstanding barriers that hinder intelligence sharing. Some of the most significant obstacles stressed by Summit participants include:

• The absence of a nationally coordinated process for intelligence generation and sharing ...
• The "hierarchy" within the law enforcement and intelligence communities ...
• Local, state, Tribal and Federal laws and policies that prevent sharing ... (p. 5)

The most central and enduring element of the National Intelligence Plan advocated by Summit participants is the call for a Criminal Intelligence Coordinating Council. This Council provides an ongoing solution to the identified need for a nationally coordinated, locally driven criminal intelligence generation and sharing process ... the Council supports and develops the capacity of all agencies, federal and non-federal alike, to generate and share criminal intelligence data. With a concentration on not only terrorism-related intelligence, but also all criminal intelligence ...

In general terms, the Council's mandate is to promote, ensure and establish effective intelligence sharing and to address and solve, in an ongoing fashion, the problems that inhibit this sharing. In order to accomplish these tasks, the Council must be central, permanent, powerful and inclusive ... In specific, the Criminal Intelligence Coordinating Council shall: ...

• Create a marketing strategy to increase stakeholder participation in the intelligence sharing process and conduct public education to promote acceptance of the system overall ...
• Work with states, localities and Tribes in eliminating barriers in laws and policies that limit intelligence sharing. (pp. 6-7)

... Summit participants ... stressed the necessity of connecting federal agencies to the proposed Coordinating Council. They observed that, already, federal agencies do not plug into current systems on a consistent basis, and many of the connections that do exist are sporadic and non-institutionalized ... Part of this problem stems from federal laws and policies that expressly prohibit intelligence sharing -- which justifies the legislative mandates of the National Intelligence Plan detailed above ... For example, federal parties ought (to be able) to pass criminal intelligence information that surfaces during counter-intelligence activities or counterterrorism investigations to state, local and tribal police as appropriate. (p. 11)

The breakout group Chief Oates reportedly facilitated was entitled "Capacities & Barriers". While the CIS Report makes few direct references to breakout sessions, it is, perhaps, noteworthy that "Local, state, Tribal and Federal laws and policies that prevent [intelligence] sharing" are twice identified as "barriers" (pp. 5,7). The laws and policies in question were implemented in response to a well-documented history--continuing to the present-day--of widespread, egregious, and systematic civil liberties violations by federal, state, and local law enforcement agencies. Even though another breakout group was entitled "Privacy/Civil Rights/Legal," except for a vague reference to "fairly recent accusations of civil rights violations by the law enforcement agencies of several major U.S. cities," you will find no mention of this history in the Plan (p. 14).

The Constitution contains the "Bill of Rights" and the Declaration of Independence speaks of "certain unalienable rights" including, "life, liberty, and the pursuit of happiness." By contrast, the authors of the CIS Report speak of the need "to assess existing regulations and statutes to ensure a balance between the needs of law enforcement and individuals' civil rights" (p. 14). The CIS Report does propose "the creation of a task force comprised of justice system professionals (including representatives from the American Bar Association, American Civil Liberties Union and other interested parties, especially other public defense and civil rights associations)" (p. 14). However, the rest of the report makes it quite clear which direction the CIS Report authors propose to adjust the balance and it isn't in favor of strengthening civil liberties protections.

In summary, Chief Dan Oates has repeatedly shown himself to be someone who is more committed to police spying and his own professional ambition than to civil liberties and the US Constitution. Those who are taken in by his charming personality and rhetoric would do well bear this in mind.

Update: The CIS Report's proposed "task force comprised of justice system professionals (including representatives from the American Bar Association, American Civil Liberties Union and other interested parties" was never created. The first version of the National Intelligence Plan, called for in the CIS Report and renamed the National Criminal Intelligence Sharing Plan (NCISP), was released by the US Department of Justice in October 2003. The Criminal Intelligence Coordinating Council was established in May 2004 with Dan Oates as a member.[17] A revised version of the NCISP was released in February 2005.

See also:
Letter "From the Desk of Chief Oates ..."
“The F.B.I. Can't Do It Alone” by Daniel J. Oates in the New York Times.
"Police Groups Drop Plan to Snoop on Political Gatherings" by Jim McGee from CQ Homeland Security.
"Domestic Spying & the Global Intelligence Working Group" by Michelle J. Kinnucan from The Public Eye.
AABORDC's Analysis of Ann Arbor's 2003 Civil Liberties Resolution.
"AmeriSnitch" by Bill Berkowitz in The Progressive.
"Sheriffs Rounding Up Neighborhood Leaders for Counterrerror Watch Patrols" by Alice Lipowicz from CQ Homeland Security.
"Intelligence Sharing: The Criminal Intelligence Coordinating Council" in Police Chief magazine.

Notes:
1. Housing Works, Inc. v. Safir, et al. 1998 U.S. Dist. LEXIS 10962, 1998 WL 409701 (S.D.N.Y. July 21, 1998); Housing Works, Inc. v. Safir, et al. 1998 U.S. Dist. LEXIS 18515, 1998 WL 823614 (S.D.N.Y. Nov. 25, 1998) hereafter Housing Works II; Housing Works v. Safir et al, 101 F. Supp. 2d 163; 2000 U.S. Dist. LEXIS 4453 (S.D.N.Y Apr. 6, 2000) hereafter Housing Works III.

2. Housing Works II at *14-15.

3. Housing Works II at *19.

4. "Memorandum from Daniel Oates to Police Commissioner dated November 10, 1998" in Housing Works II at *6.

5. Benjamin Weiser. "Death Threats Against Mayor Said to Rise." New York Times. Oct. 6, 1999. B1.

6. Housing Works III at 164, quoting Judge Calabresi from Tunick v. Safir, 209 F.3d 67, 2000 U.S. App. LEXIS 5048, *65 (2d Cir. 2000).

7. Housing Works III. In a related matter, on May 26, 2005, New York agreed to pay $4.8 million to end a lawsuit by Housing Works against Rudolph Giuliani and the city for illegally terminating its government contracts in 1997. After the settlement, Charles King, president of Housing Works, reportedly said, "The record is clear ... They wanted to punish us for sticking up for the rights of New Yorkers living with AIDS and HIV. This settlement marks another victory for free speech and another expensive payment by the city over Mayor Giuliani’s vicious and illegal attacks on those who disagreed with him.” Andy Humm. "Housing Works Beats Giuliani Again." Gay City News.  June 9-15, 2005. Online at: http://www.gaycitynews.com/gcn_423/housingworksbeats.html ; accessed 6/11/05. See also Jim Dwyer. "City to Pay AIDS Group In Settlement." New York Times. May 27, 2005. B1.

8. "Free Speech at City Hall." New York Times. Apr. 7, 2000. A22.

9. Jo Mathis. "Oates: Local police underused in intelligence." Ann Arbor News. Oct. 14, 2001. B-1, B-2.

10. Mathis. B-2.

11. William B. Treml. "Police chief, ex-deputy chief disagree who began the A-File." Ann Arbor News. Jun. 11, 1982. A-1. Chip Berlet. "Information Collection & Sharing." The Hunt for Red Menace. (Somerville, MA: Political Research Associates, 1993).  Online at: http://www.publiceye.org/huntred/Hunt_For_Red_Menace-03.html; accessed 6/23/05.

12. Mathis. B-2.

13. US Congress. Senate.  "USA PATRIOT Act of 2001," Congressional Record. Oct. 25, 2001.  S11018.

14. Daniel J. Oates. “The F.B.I. Can't Do It Alone.” New York Times. Nov. 5, 2001. A-17.

15. "Criminal Intelligence Sharing: A National Plan for Intelligence-Led Policing At the Local, State and Federal Levels—Recommendations from the IACP Intelligence Summit," (Alexandria, VA: International Association of Chiefs of Police, 2002) hereafter "CIS Report". Online at: http://www.theiacp.org/documents/pdfs/WhatsNew/intelsharingreport%2Epdf; accessed 6/5/03. See end material.

16. See end material in the CIS Report.

17. "Fact Sheet: National Criminal Intelligence Sharing Plan." US Dept. of Justice press release dated May 14, 2004. Online at: http://www.fbi.gov/dojpressrel/pressrel04/factsheet051404.htm; accessed 5/31/05.

FAIR USE NOTICE    
This web site may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of civil liberties, politics, human rights, democracy, and related issues. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the copyrighted material published here is provided for nonprofit educational purposes.