By Ryan Devereaux
Responding to a lawsuit alleging unlawful and unconstitutional police surveillance of Muslim communities, lawyers under New York Mayor Bill de Blasio have doubled down on the arguments of his predecessor, advancing the notion that the New York City Police Department did not engage in dictionary-defined surveillance of the plaintiffs in the suit and contending that any harm that may have been caused to them was the fault of reporters, not law enforcement.
In newly filed court documents, the de Blasio administration has offered, for the first time, its position in one of several key lawsuits accusing the NYPD of running a harmful east coast surveillance program aimed at members of the Islamic faith outside of New York City. The argument put forward by the new administration, which rode into office on promises of NYPD reform, is an extension of defenses offered by lawyers for former Mayor Michael Bloomberg and former NYPD Commissioner Ray Kelly.
The lawsuit that triggered this turn of events – Hassan v City of New York – was brought by the Center for Constitutional Rights (CCR) and Muslim Advocates, a non-profit, in June of 2012 on behalf of nearly a dozen Muslim plaintiffs from New Jersey who claim to have suffered from the NYPD’s haphazard intelligence operations. Together the plaintiffs claim to have been swept up in an illegal, unconstitutional, interstate NYPD surveillance program, solely because of their religion. Their case was dismissed in February and appealed the following month, forcing the de Blasio administration to now take a clear legal position on the issue of Muslim surveillance conducted outside New York. For the plaintiffs’ lawyers, that response was disheartening.
“It’s really disappointing,” Omar Farah, a CCR lawyer working on the suit told The Intercept. “It really is a full-throated defense by the de Blasio administration of the same practices that his predecessor put in place.”
In a statement to both The New York Times and The New York Daily News, a spokesman for the city’s law department said the recent filing, “does not address broader policy issues concerning surveillance of Muslim communities, but rather technical legal issues.”
The 11 plaintiffs in the Hassan suit include a coalition of New Jersey mosques, current and former college students, the principal of a grade school for Muslim girls and a decorated Muslim veteran of the Iraq War. In its initial 2012 response to the plaintiffs, lawyers for the Bloomberg administration argued that the NYPD’s surveillance of Muslim communities, houses of worship and restaurants was not unconstitutional; that rather than religious profiling the surveillance was “more likely the result of a non-discriminatory intent by the NYPD to deter and detect terrorism in the post 9/l I world”; and that the damage alleged by the plaintiffs may have been based on “fears and speculation.”
“No one has ever said that surveillance is unconstitutional,” said Farah. “But surveilling individuals, groups, entire communities on the basis of a protected characteristic–which is their race or religious background–is unconstitutional.”
The NYPD’s expansive surveillance of Muslim communities was first revealed in 2011 in a Pulitzer Prize-winning series of stories published by the Associated Press. In a damming collection of reports based on internal NYPD documents and extensive interviews, the AP documented how in the wake of September 11 a division of the NYPD known as the Demographics Unit, later renamed the Zone Assessment Unit, attempted to reinvent itself as an intelligence agency, rather than a division of a municipal police department.
Funded in part by White House counter-narcotics dollars and shaped by a former senior CIA officer paid by both the agency and the department, the NYPD unit conducted intelligence gathering operations throughout the eastern seaboard, dispatched Mosque “rakers” into religious centers, assigned informants to develop personal relationships with young Muslims – including by taking part in seemingly harmless activities like white water rafting – and focused intelligence gathering on 28 “ancestries of interest” (all but two of which are majority Muslim and together comprise 80 percent of the planet’s Muslim population). At one point, another top former CIA officer turned cop, who was crucial in guiding NYPD operations, described his hopes of having an NYPD informant in every mosque within a 250-mile radius of New York City.
Informed by Israeli intelligence strategies deployed in the West Bank, the idea behind the surveillance was to map out “hot spots” of potential terrorist activity. The NYPD’s surveillance operations at times ran afoul of federal law enforcement terrorism investigations and, in the case of surveillance outside NYPD jurisdiction, were sometimes conducted without the knowledge of local elected officials. A senior NYPD officer involved in the program later testified that the department’s efforts did not produce a single lead, though their work did result in an extensive list of top-notch Middle Eastern restaurants and cricket fields.
In what legal critics have characterized as a flagrant violation of the NYPD’s own rules, not to mention the law, information gathered by officers and informants —who were often recruited with money or through coercion — was stored by the police department in the absence of proof, or sometimes even suspicion, of criminal activity.
The surveillance programs uncovered by the AP led to lawsuits, including the Hassan case in New Jersey and a federal suit filed in New York by the ACLU, the New York Civil Liberties Union and the Creating Law Enforcement Accountability & Responsibility (CLEAR) project at CUNY Law School. The stories also breathed new life into decades-old litigation surrounding legal foundations for NYPD surveillance writ large. In the case of the New York suits, the litigation is “currently stayed pending settlement discussions.” In the New Jersey case, however, the legal fight continues.
In April, the NYPD announced that it had abandoned the Demographics Unit operations at the heart of the AP reports. De Blasio called the decision, “a critical step forward in easing tensions between the police and the communities they serve, so that our cops and our citizens can help one another go after the real bad guys.”
But problems persist for vulnerable Muslims in New York City and elsewhere. In May, just one month after the disbanding of the Demographics Unit was announced, The New York Times published an extensive report on another secretive NYPD unit: the Citywide Debriefing Team. According to the report, since the September 11 attacks in 2001, the unit’s detectives have “combed the city’s jails for immigrants — predominantly Muslims — who might be persuaded to become police informants,” conducting 220 interviews in the first quarter of 2014 alone. While NYPD officials defended the unit as an effective asset, men who were approached by the detectives as potential informant recruits, often jailed on petty charges, described their interactions with officers as coercive and frightening.
Rather than addressing the grievances of the Muslim community as they gathered momentum in the courts, Bloomberg’s lawyers chose to attack the news organization that revealed their surveillance, arguing that there would have been no backlash had some investigative reporters not created the conditions for one.
“All of plaintiffs alleged injuries arose only after the Associated Press released confidential NYPD documents and it is that disclosure that has resulted in plaintiffs’ alleged stigmatization,” city attorneys wrote in an early 2012 motion in the Hassan suit. In February, U.S. District Judge William Martini sided with the city attorneys and dismissed the Hassan case without hearing oral arguments, ruling that the NYPD’s surveillance in New Jersey was lawful and that the AP was to blame for upsetting the Muslim community.
“The Associated Press covertly obtained the materials and published them without authorization,” Martini wrote. “None of the plaintiffs’ injuries arose until after the Associated Press released un-redacted confidential NYPD documents and articles expressing its own interpretation of those documents.” The judge added, “Nowhere do plaintiffs allege that they suffered harm before the unauthorized release of the documents by the Associated Press.”
Attorneys for the Hassan plaintiffs appealed Martini’s decision in March. De Blasio’s legal team filed 79-page brief just before midnight Monday night responding to the ongoing suit. Lawyers for the mayor who promised to reign in Bloomberg’s law enforcement excesses stood behind one of the billionaire politician’s most controversial policing legacies. Like Bloomberg before, city lawyers under de Blasio cast doubt on the claim that the NYPD, in compiling vast amounts of information on the day-to-day life of Muslims, ever engaged in direct surveillance of the specific plaintiffs in the Hassan case and, as such, could not be held responsible for any harms they have alleged. They argued:
While plaintiffs make allegations of a ‘Program’ of ‘surveillance’ directed at the Muslim community generally, the allegations of ‘surveillance’ against them individually are conclusory and do not amount to ‘surveillance,’ defined by Merriam-Webster as a ‘close watch kept over someone or something.
Because the plaintiffs were not identified in NYPD materials by name, city attorneys downplayed the impact that photos and descriptions of their businesses, schools, mosques and student associations in documents belonging to a secretive anti-terror police unit might have had. Again, the city’s lawyers wrote, the AP is to blame.
None of the six individual plaintiffs (Hassan, Mohammed, Doe, Tahir, Abdur-Rahim, and Abdullah) allege that they were personally surveilled or that any personal information including their names was collected or put into a report… All of the harms alleged by plaintiffs occurred, if they occurred, only after the Associated Press made public certain confidential NYPD documents and did so in unredacted form… Nowhere in the amended complaint do plaintiffs allege that the NYPD ever publicly released any information collected from the alleged surveillance program or that plaintiffs ever suffered any harm prior to the unauthorized public release of the documents by the AP.
That de Blasio’s office has embraced the previously successful legal arguments of the Bloomberg administration on the subject of Muslim surveillance is not entirely surprising. As a candidate, de Blasio would offer forceful and specific arguments critiquing the NYPD’s racially discriminatory stop and frisk practices, adopting the issue as core component of his campaign. In the case of Muslim surveillance, however, he was more cautious. While he said he was “deeply troubled” by the department’s surveillance of mosques, de Blasio also defended the NYPD’s counterterrorism operations on exactly the same grounds frequently favored by Bloomberg and Kelly, insisting that the practices were based on “specific leads” and subject to “substantial legal review.”
The legal attack on the AP’s reporting that began under Bloomberg and has continued under de Blasio, “entirely misapprehends the role of the press in a free, constitutional democracy,” says Farah, the CCR attorney. “The city’s argument, taken to its conclusion, seems to suggest that there’s nothing wrong with this kind of practice, so long as nobody ever finds out about it,” he said. “The fact that the AP broke this story open is really cause for commending them, not condemning them.”
Faiza Patel, Co-Director of the Liberty & National Security Program at NYU’s Brennan Center for Justice, said that, “although de Blasio expressed grave concerns about the NYPD’s Muslim surveillance program when campaigning for mayor, since coming to office his administration seems to be hedging its bets.” Patel noted that the city is “is vigorously opposing the New Jersey case, but in the two New York lawsuits challenging the program the parties have agreed to stay proceedings to discuss settlement options.”
“While there are differences between the plaintiffs bringing the various lawsuits, one remarkable aspect of the city’s position is the claim that the New Jersey plaintiffs were harmed by the AP’s disclosure of the Muslim surveillance program rather than the program itself,” Patel said. “The implications of accepting this theory are enormous — it could block any attempt to hold security agencies responsible for illegal surveillance programs revealed by the press.”