When drone strikes collide with stop-and-frisk

Dispositions and watching for "weird behavior" increasingly guide both policing and national security policy

Published May 11, 2013 4:00PM (EDT)

When NYPD officer Kha Dang took to the stand this week in the landmark federal trial challenging stop-and-frisk practices, he couldn't have known how revealing his testimony would be. Indeed, based on his comments, it's striking that that the police department would allow Dang -- a so-called stop-and-frisk "all star" for the large numbers of stops he carried out -- on the stand at all.

As Ryan Devereaux reported for the Guardian, in the third quarter of 2009 alone "Dang made a total of six arrests out of his 127 stops. He wrote one summons. He found contraband once. He never recovered any weapons and he only stopped people of color, primarily African Americans, 115 times to be exact. He never stopped a white person." Dang's record here is stunning enough alone. More telling still is the justifications he recounted to the court for making many of his stops, referring to repeated observation of individuals' general behavioral patterns, including "furtive movements" -- a vague policing phrase regularly stretched beyond the limits of all reasonableness. "We have a general idea of their behavior," Dang testified.

The weak justification given for the regular harassment of young black men in New York is noteworthy. But waiting and watching for "weird behavior"and certain behavioral patterns is not just a flawed NYPD policy -- it's increasingly the sort of preemptive and prefiguring policing that underpins national security policy too, from how the FBI chooses sting targets to the use of drone strikes to target unidentified individuals displaying "signature" behaviors. From police stops in Brooklyn to drone strikes in Pakistan, the "disposition matrix" applies.

Devereaux's report on Dang's testimony reveals the sort of racial and behavioral profiling applied to police stops:

Dang told the court... he would monitor the same individuals going about their lives on a daily basis. If he noticed anything out of the ordinary, what he called "weird behavior," he might make a stop. When asked what might count as "weird behavior", Dang said: "Furtive movement would be one of them." The phrase has come up repeatedly in the course of the trial. Along with high crime area, furtive movement is the justification officers most frequently check off on departmental stop forms known as UF250s. Critics say it a dangerously vague term that allows officers overly broad discretion in conducting stops.

... "Has anyone asked you why you only stopped people of color?" [plaintiff attorney Bruce] Corey asked. Nobody had, Dang replied. Corey asked Dang if his supervisors had raised concerns about the fact that he did not recover any weapons during the period in question, again he said no.

The model of officers making stops here maps neatly onto the mechanisms that go behind CIA drone strikes known as "signature strikes." Watching and waiting using drone technology, the CIA do not launch signature strikes against identified al-Qaida suspects (just as nearly all NYPD stops are not carried out on identified crime suspects) but rather, as Pro Publica reported, "drone operators fire on people whose identities they do not know based on evidence of suspicious behavior or other 'signatures.'"

Sarah Knuckey, NYU lawyer and special adviser to the U.N. special rapporteur on extra-judicial killings, stressed at the Congressional Progressive Caucus' hearing on lethal drone strikes last Wednesday that the reliance on "vague and expansive" legal concepts and rubric makes some nonsense of claims that strikes are precision driven and "targeted." In her testimony to Congress, noted here, Knuckey said:

What is concerning about current US practice and policy is that only very general legal justifications are offered for highly contentious killing practices, and in some cases, the legal concepts employed appear to be stretched beyond long-accepted understandings.

Particularly concerning are broad or ill-defined interpretations of terms which regulate targeting, including an “elongated” concept of imminence, “associated forces” and “directly participating in hostilities.”

What counts as an appropriate "signature" to suggest an unidentified individual is worthy of a lethal strike is as dangerously vague as the NYPD's reliance on "furtive movements." As ProPublica's Cora Curier pointed out, citing various sources, such signature behavior identified in Pakistan ranges from "convoys of vehicles that bear the characteristics of Qaeda or Taliban leaders on the run" to, as Former Ambassador to Pakistan Cameron Munter once put it "the definition is a male between the ages of 20 and 40."

As human rights advocates continue to stress, the opacity around Obama's lethal drone strike program makes judging its success impossible. We do know, however, based on reports from the Pakistani government corroborated by groups like the U.K.'s Bureau of investigative journalism, that over 400 civilians have been killed by drone strikes in Pakistan.  We know that in the past week the highest court in Pakistan ruled the U.S. strikes illegal; we know that, as Yemeni human rights activist Baraa Shiban told Congress members, when lethal drone strikes don't his al-Qaida operatives but ordinary Yemenis, it is "kerosene for insurgency." Relying on "signatures" and dispositions is a wargame stoking anti-U.S. sentiment, stretching the limits of constitutional legal justifications and abrogating international law.

Meanwhile, the NYPD's reliance on dispositions and profiling has produced nothing short of a scandal: the department has now carried out over 5 million stop-and-frisks under Mayor Bloomberg, over 86 percent of which on black or Latino individuals. Analysis of police data by the NYCLU revealed that 88 percent of the stops did not result in an arrest or summons (and of course an even smaller proportion ever lead to a conviction). This sort of policing doesn't catch crime suspects, it prefigures (and treats) as criminals young men of color in certain neighborhoods.

John Knefel pointed out for Rolling Stone following the Boston Marathon bombings that there is a profound problem with this sort of "preemptive policing" when it comes to domestic counterterrorism and efforts to stem the radicalization of Muslims too:

[L]aw enforcement organizations have used the flawed logic of "radicalization" to justify investigating innocent Muslims in almost every part of their daily lives. Under "preventive policing," critics say cops and FBI agents aren't focusing on actual crime, but on protected first amendment activities – like the NYPD's surveillance of student and political groups, or reports "that the FBI has infiltrated mosques simply to learn about what was being said by the imam leading prayers and by those attending"  – without a clear reason to suspect criminality.

Knefel is right that the logic is "flawed" when the aim is to stop tragedies like the Boston bombing. The logic of applying disposition matrices is flawed too for crime-stopping on New York streets (again 88 percent of stops don't lead to an arrest, let alone a conviction). And, when applied in shadow drone wars, this sort of logic leads to civilian deaths and stokes anti-American sentiment around the world. So it's certainly flawed. But here's what is shored up: from New York to Pakistan, young brown and black men are treated as "criminal" and "terrorist" -- threatening, constructed "others" against which to build a sprawling but rotten security and policing apparatus.

By Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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