A green light to target Muslims
exposes the twisted legal logic of a federal judge who let the NYPD off the hook after its spying operations against Muslims were exposed by reporters.
A FEDERAL judge dismissed a lawsuit in late February that had accused the New York Police Department (NYPD) of violating the constitutional rights of Muslims in New Jersey by spying on them based on their religious affiliation. Judge William Martini's granting of the city's motion to dismiss Hassan v. City of New York represents a blow to the Muslim community specifically and defenders of civil liberties generally.
The lawsuit, filed by the Center for Constitutional Rights and Muslim Advocates on behalf of several Muslim individuals, organizations and businesses, was in response to revelations that the NYPD had worked with the CIA since 9/11 to conduct extensive surveillance and infiltration of Muslim religious institutions and organizations, community groups, student groups, businesses and even a youth soccer league. Another similar case is still pending in Brooklyn.
Several reporters from the Associated Press (AP) exposed the existence of the secretive spying program, known until 2010 as the "Demographics Unit," and won a 2012 Pulitzer Prize for their reporting on the overreach of the city's law enforcement officials. As the AP reporters documented, the NYPD's spying program reached into nearly every aspect of Muslims' lives. Those targeted for spying were chosen on the basis of their identity.
Using census information and government databases, the NYPD mapped ethnic neighborhoods in New York, New Jersey and Connecticut. Rakers [a term for undercover officers] then visited local businesses, chatting up store owners to determine their ethnicity and gauge their sentiment, the documents show. They played cricket and eavesdropped in the city's ethnic cafes and clubs.
Without specific evidence of wrongdoing, "rakers" focused on people from a list of 28 countries, most of which were majority Muslim, as well as "American Black Muslims." In 2011, before the story broke, Mayor Michael Bloomberg said "the NYPD does not take religion into account in its policing," and "NYPD spokesman Paul Browne said the department only follows leads and does not simply trawl communities." Browne claimed that the Demographics Unit did not exist, and that the NYPD did not use the term "rakers."
The AP obtained NYPD documents that contradicted all of these claims. It also showed the involvement of Lawrence Sanchez, a veteran CIA officer who "[o]fficials said...was instrumental in creating programs such as the Demographics Unit and met regularly with unit supervisors to guide the effort, all while on the CIA's payroll...After a two-year CIA rotation in New York, Sanchez took a leave of absence, came off the agency's payroll and became the NYPD's second-ranking intelligence official."
MARTINI RULED that the NYPD's spying operation did not violate the constitutional rights of those targeted. He cited Ashcroft v. Iqbal, a case decided by the Supreme Court in 2009, to argue:
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 most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.
Surveillance on the basis of religion or race, according to Judge Martini and the Supreme Court, is constitutional even if it has a discriminatory effect, as long as it is not conducted "with discriminatory purpose." The surveillance is legal because "the motive for the program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims."
In the words of Deepa Kumar, a Rutgers University professor and author of Islamophobia and the Politics of Empire, this is "so deeply racist...It's a form of cultural racism that says that people who practice Islam are sort of 'programmed' to turn to terrorist activities, and this is really the mindset of the NYPD."
Judge Martini didn't deny that the Muslim community was hurt by finding out that their mosques, businesses and other community groups were infiltrated, however. In an Orwellian twist, his decision states:
None of the plaintiffs' injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents. Nowhere in the complaint 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.
In other words, the damage done by the NYPD spying is not the fault of the NYPD, which intended to keep the spying a secret from the innocent Muslims they targeted. Rather, responsibility for the harm lies with the Associated Press for exposing it.
"Here you have in one fell swoop...not only the justification for racial and religious profiling, but [also] an attack on the press...and the idea that the press should be watchdogs of the government," said Kumar.
In court testimony in June 2012, NYPD Assistant Chief Thomas Galati of the Intelligence Division said that as far as he was aware, the Demographics Unit hadn't resulted in any leads, let alone stopped a terrorist plot. However, Galati's testimony gave a chilling example of how targets of surveillance were chosen:
I'm seeing Urdu. I'm seeing them identify the individuals involved in that are Pakistani...I'm using that information for me to determine that this would be a kind of place that a terrorist would be comfortable in...Most Urdu speakers from that region would be of concern, so that's why it's important to me.
As the AP points out, "About 15 million Pakistanis and 60 million Indians speak Urdu. Along with English, it is one of the national languages of Pakistan."
In 2007, the NYPD released a report titled "Radicalization in the West: The Homegrown Threat" that places young Muslim men living in the U.S. and Europe on a continuum that begins with "pre-radicalization" and culminates with "ATTACK."
The criteria that qualify individuals for a status of pre-radicalization include "male Muslims," "under the age of 35" and "educated." The report also states that such individuals "do not begin as radical or even devout Muslims," that they may be "unremarkable," "having 'ordinary' lives and jobs" and have "little, if any, criminal history."
The obvious conclusion is that the NYPD views all young Muslim men as potential terrorists.
In this way, it is like a secretive version of the NYPD's stop-and-frisk program, not only chronologically--the programs were established around the same time--but also in theory and practice. Stop-and-frisk swept up hundreds of thousands of predominantly young Black and Brown men, the vast majority of whom were never charged with any crime. Race, ethnicity and religion are treated as evidence enough to be targeted.
SPYING AND infiltration efforts by the NYPD have had a chilling effect on Muslim communities. According to "Mapping Muslims: NYPD Spying and its Impact on American Muslims," a report issued by a number of American Muslim civil liberties organizations:
Surveillance of Muslims' quotidian activities has created a pervasive climate of fear and suspicion, encroaching upon every aspect of individual and community life. Surveillance has chilled constitutionally protected rights--curtailing religious practice, censoring speech and stunting political organizing. Every one of our interviewees noted that they were negatively affected by surveillance in some way--whether it was by reducing their political or religious expression, altering the way they exercised those rights (through clarifications, precautions, or avoiding certain interlocutors), or in experiencing social and familial pressures to reduce their activism.
[I]t creates psychological warfare in our community. How am I supposed to know if the NYPD was successful in that endeavor [of attempting to infiltrate the Arab American Association board]?...The community right now is in a position where, how do we even know the guy next to us that's praying at the mosque or the guy at the restaurant that's trying to open a conversation with us about something that's happening in Egypt, for example, [is not a police officer]?...And now that we know that the NYPD wants to hear what our sentiment is, people probably don't want to share their sentiment.
Sarsour explained how the revelations work to silence speech before the fact:
[T]he most disturbing of all is our Muslim student associations, who are calling us to consult about how political should their events be...The fact that our students feel like they can't do that because there are going to be NYPD informants, because they can be taken out of context, and because they think something like what happened to Fahad Hashmi is going to happen to them, I think is a valid concern for them to have.
ACCORDING TO Muslim community activist Sammer Abulaela, the revelations about the NYPD's spying weren't really a surprise to Arab and Muslim communities used to a climate of state-sponsored Islamophobia. In an interview, Abulaela explained:
If the Associated Press stories offered any surprises to the community, it was in the details. We knew we were being watched, but we didn't know that officers were gaining entry into our homes by telling us, falsely, that they were engaged in an investigation regarding a missing child in the neighborhood.
We knew they were listening to the sermons at the mosque, but we didn't know they were counting the number of Qurans on our home bookshelves and noting the promotional wall calendars from the Halal butcher. Personally, I think I expected the language to be a bit more clinical and sanitized...Terms like "Ancestries of Interest," the title of a slide listing 28 ethnic, racial and national identities to be targeted, struck me as particularly brazen and bigoted.
The AP revelations did little but confirm what many in the community had already known. For years, shady characters were suddenly turning up--and then disappearing--inside and outside of Muslim businesses and houses of worship. Community members would speak of local businesses being stalked for weeks by men with tenuous connections to the neighborhood only to have those businesses raided a short time later.
The only thing that ever came of those invasions was a shuttering of the establishments--never as the result of a terror investigation, but due to a loss of business as customers were wary to patronize shops that were clearly compromised by infiltrators and informants wielding the power to arbitrarily smear anyone in their path with accusations against which there is no defense and from which there is no return.
As Abulaela pointed out, the NYPD spying program is in line with U.S. policies since 9/11. In the months following the attacks on the World Trade Center, some 1,200 immigrants, disproportionately South Asian, Arab and Muslim, were rounded up. There have been several cases of Arabs and Muslims living in the U.S. who have been railroaded for crimes concocted by the government, while hundreds seized abroad were held for years without trial in Guantanamo Bay.
According to the Migration Policy Institute, the FBI interviewed thousands of immigrants from countries with "a suspected al Qaeda presence."
Under...the National Security Entry-Exit Registration System special registration program, adult males from 25 predominately Muslim countries were required to register and be fingerprinted and photographed at ports of entry or present themselves at immigration offices inside the country for fingerprints and photographs. More than 80,000 individuals were interviewed under the program, and over 13,000 were placed in removal proceedings.
In addition to terrorizing Muslim communities, these government policies fed a climate of Islamophobia in the mainstream press, including providing political space for the far right to gain a hearing, leading to a rise in hate crimes against Muslims.
All of this created a climate of fear and a reality of persecution that caused real harm to Muslim communities, which was felt long before the AP released the details of the NYPD's Demographics Unit.
MARTINI'S RULING that the harm caused by the knowledge of the surveillance and infiltration of Muslim communities in the Northeast by the NYPD is a result not of the spying but of the reporting on the spying is indicative of the increasingly brazen surveillance state that the US has become.
The U.S. government at all levels has used the threat of terrorism to construct an apparatus of surveillance and repression that is used to target not only Arabs and Muslims, but millions of others in the U.S. and around the world.
When whistleblowers have exposed wrongdoing, the government has gone after the whistleblowers themselves rather than the crimes they exposed. The Obama administration has engaged in an unprecedented crackdown on whistleblowers. Chelsea Manning was subject to treatment that the UN special rapporteur on torture called cruel and inhumane, yet the war criminals she exposed remain free.
Last spring, it was revealed that the Department of Justice had spied on journalists, including from AP and Fox News. The ruling that AP, not the NYPD, is responsible for the damage caused by NYPD spying sets a dangerous precedent that can only further serve to discourage investigative journalism that seeks to shed light on secret government programs.
According to Sammer Abulaela, far from causing harm, such journalism has had the opposite effect:
The revelation of the program confirmed and gave focus to what the Muslim community already understood was happening. Community members who had long remained silent now felt emboldened to speak out against a program that reflected so much of America's publicly rejected racist history. No harm was done by the revelation of this program--all of it was done by the program itself. I'm a bit embarrassed to even have to articulate that point, but if that's where we are in 2014, so be it.