On Thursday, February 20, a federal judge based in Newark, NJ dismissed a lawsuit against the New York City Police Department’s (NYPD) large scale surveillance of Muslims in New Jersey. The case of Hassan v. City of New York was brought by several individuals and organizations, with legal representation by Muslim Advocates and the Center for Constitutional Rights.
The plaintiffs claim they were targeted solely on the basis of their religion. They include several organizations that have been affected by such surveillance, such as the Council of Imams in New Jersey that has had at least two of its mosques spied upon, leading to a loss in attendance and financial support since knowledge of program became public. Muslim Student Associations at two campuses of Rutgers University have been spied upon and two Muslim owned businesses have suffered decreased business. Several individuals are also part of the suit, saying they have altered their religious practices now that they are aware of being surveilled and they fear for their future employment prospects. Attorneys for the plaintiffs plan to appeal the ruling.
The suit was filed after the Associated Press (AP) revealed in 2011 the existence of a vast, covert surveillance program by the NYPD of Muslim Americans in New York, New Jersey, and beyond, even reaching as far as Philadelphia. The AP based its reporting on a large number of internal NYPD leaked documents. It also revealed that both the Bush and Obama administrations have provided grants to the NYPD that fund the surveillance program.
The impact of this surveillance program was documented in a report by the CLEAR Project (Creating Law Enforcement Accountability & Responsibility) of the CUNY School of Law, along with two other civil rights organizations. The report notes how awareness of the surveillance program has resulted in the modification of religious practices, the chilling of free expression on politically controversial issues, especially among Muslims on college campuses, and distrust of new members in Muslim communities. NYPD’s program specifically “mapped and spied on the residential, social, and business landscape of American Muslims,” specifically targeting people of twenty-eight ethnicities and “American Black” Muslims. The report also notes that the program has played no “tangible role” is preventing terrorist plots.
The judge in the Hassan case, William Martini, dismissed the suit stating that the plaintiffs were not targeted specifically for their religion. Martini wrote in his decision:
The Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies…The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.
While the motivation for blanket surveillance of Muslims may not have been religious discrimination, it is disturbing that Martini does not see the potential harm of focusing on a particular class of individuals without probable cause. The same logic was applied by the US Supreme Court, in 1944, in the now discredited Korematsu v. United States decision allowing the internment of Americans of Japanese descent during World War II. Hugo Black, writing for the majority, said:
Korematsu was not [interned] because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire…There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short.
This historical parallel demonstrates that it is not necessary for law enforcement or other governmental forces to be motivated by religious or ethnic hatred to have discriminatory effects. In both situations, a particular class of individuals has been targeted without evidence of criminal activity, resulting in grievous consequences for innocent people.
Another disturbing aspect of Martini’s opinion was his blaming the AP for any harm done to the plaintiffs. He wrote:
Nowhere…do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that Plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not ‘fairly traceable’ to any act of surveillance.
This reasoning is concerning because it implies that surveillance is not harmful unless the people being surveilled are aware of it. However, surveillance automatically harms individuals by the very act of privacy invasion. Society allows it if a person is fairly suspected of a crime, because it can claim that the individual should not have taken part in criminal activity in the first place. However, when innocent people are spied upon, there is no behavior they could change without having to forgo their constitutionally guaranteed rights.
There is very good reason for the NYPD, and law enforcement in general, to be extremely vigilant about preventing terrorist acts. However, there is no justification for large scale surveillance that is not based on evidence of criminal activity.