Gonzales left convinced, the official said, that the federal government could not replicate those programs. The NYPD had more manpower and operated under different rules than the federal government, the Justice Department concluded. And the mayor had accepted the political risk that came with the programs.
It was a policy briefing only, the former official said, meaning the federal government did not review the NYPD programs to determine whether they were lawful.
The NYPD's terrorist cases include ones the federal government has declined to prosecute. Last year, a grand jury declined to indict Ahmed Ferhani and Mohamed Mamdouh on the most serious charge initially brought against them, a high-level terror conspiracy count that carried the potential for life in prison without parole. They were indicted on lesser state terrorism and hate crime charges, including one punishable by up to 32 years behind bars.
Last month, NYPD detectives arrested Jose Pimentel on terrorism-related charges. A state grand jury has yet to indict him on those charges. Federal and city law enforcement officials who reviewed the case told the AP there were concerns that Pimentel lacked the mental capacity to act on his own. The NYPD informant's drug use in the case also created serious issues, the officials said.
FBI Director Robert Mueller has tried to mute criticisms of the NYPD. On a visit to the Newark, N.J., FBI office a few years ago, current and former officials recall, agents asked Mueller how the NYPD was allowed to operate undercover in the state, with no FBI coordination. Mueller replied that it was a reality the bureau would have to live with, the officials said.
There will always be some debate over the effectiveness of intelligence-gathering programs, particularly ones that butt up against civil liberties. Nearly a decade after the last terrorist suspect was waterboarded in a secret CIA prison in 2003, for instance, politicians and experts still debate whether the tactic gleaned valuable information and whether it could have been obtained without such harsh methods.
During the Bush administration, officials repeatedly pointed to the years without a successful terrorist attack to justify the most contentious programs from the war on terrorism. Vice President Dick Cheney used the years without an attack to defend the secret National Security Agency wiretapping program. Gonzales credited the USA Patriot Act and military actions abroad. And President George W. Bush said the years without an attack validated his polices.
"While there's room for honest and healthy debate about the decisions I've made — and there's plenty of debate," Bush said in the final days of his presidency, "there can be no debate about the results in keeping America safe."
When questioned about its own programs, the NYPD has made the same arguments.
During the 2005 deposition over the subway searches, lawyers pressed Cohen to explain how the NYPD could be so sure its programs really worked.
"They haven't attacked us," he said.