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A New York City Settlement on Surveillance of Muslims
After the attacks of September 11, 2001, the New York Police Department began an intense surveillance operation that focused on Muslims in New York City and beyond. Plainclothes officers, sometimes called “ rakers ,” and informants, or “mosque crawlers,” went anywhere that Muslims congregated. They eavesdropped on conversations in restaurants and cafes, catalogued memberships in mosques and student organizations, and, it was later said, even tried to bait people into making inflammatory statements.
The operation was run by the Police Department’s intelligence division, which was headed by David Cohen, who had previously held a high-ranking job in the Central Intelligence Agency. The surveillance effort was so secret that a police spokesman would not confirm the existence of the “demographics unit,” an intelligence-division subgroup doing the monitoring.
The sweep of the scrutiny might have remained hidden if not for reporters at the Associated Press, who described it in a series of stories that won a Pulitzer Prize, in 2012. Bill de Blasio, then a mayoral candidate, said in 2013 that he was “ deeply troubled ” by the surveillance of mosques. A few months after he was sworn in as Mayor, the Police Department disbanded the demographics unit. And now the City of New York has settled two federal lawsuits stemming from the monitoring, and agreed to reforms.
One lawsuit, filed in federal district court in Brooklyn by the American Civil Liberties Union and others, maintained that more than a decade of “suspicionless surveillance” of Muslims had violated the Constitution and “profoundly harmed” thousands of people whose names were placed in secret police files. The second, which was filed in Manhattan, said that the spying violated a set of rules, known as the Handschu Guidelines. that govern how the police in New York City may investigate political and religious activity.
The settlement, which is subject to approval by a judge, will require that police obtain factual information about possible unlawful activity before starting a preliminary investigation into political or religious activity, and will limit the Police Department’s use of undercover operatives and confidential informants. It will also formalize what the city said was an existing policy, by prohibiting investigations in which race, religion, or ethnicity are a substantial or motivating factor. The Police Department will remove from its Web site a report titled “Radicalization in the West,” which critics had said justified discriminatory surveillance, and will install a civilian representative within the department to serve as a check on investigations directed at political and religious activities.
“For the first time, this watershed settlement puts much needed constraints on law enforcement’s discriminatory and unjustified surveillance of Muslims,” Hina Shamsi, the director of the A.C.L.U.’s National Security Project, said. “At a time of rampant anti-Muslim hysteria and prejudice nationwide, this agreement with the country’s largest police force sends a forceful message that bias-based policing is unlawful, harmful, and unnecessary.”
The city did not acknowledge any previous wrongdoing. De Blasio said in a statement that his administration was committed to strengthening its relationship with “communities of faith,” while the Police Commissioner, William Bratton, called the settlement “the latest step in the continuing efforts to build and maintain trust within the city’s Muslim community and with all New Yorkers.”
The settlement may help bring some measure of resolution to a bitter debate over the proper balance between civil rights and tactics meant to prevent terrorism. During his administration, former Mayor Michael R. Bloomberg and other officials strongly defended the surveillance. saying that it had been lawful and essential. City lawyers wrote that police conduct was based on indications of unlawful activity, not on religion. Thomas Galati, who was appointed as commander of the intelligence division, in 2006, said that the demographics unit was created to give the police an understanding of where people of certain ethnicities and nationalities were concentrated.
In a deposition in 2012, Galati elaborated, saying, “In order to fight terrorism, we needed to know where people lived from countries of concern that could either recruit, hide or secrete themselves in these communities that were radicalized towards violence.” But he also acknowledged that information from the demographics unit had not resulted in an investigation during his tenure.
By any reckoning, the monitoring was extensive. The police identified and mapped more than two hundred and fifty mosques in and near New York State, according to the lawsuit filed by the A.C.L.U. the New York Civil Liberties Union and the CLEAR project at the City University of New York School of Law. Officers and informants monitored sermons, documented conversations, and compiled lists of people at religious services and meetings, the lawsuit said, all without prior evidence of wrongdoing. The police identified fifty-three “mosques of concern,” the lawsuit added, sometimes posting video cameras outside to watch congregants and collect license-plate numbers.
The police also paid attention to Muslim student groups, the lawsuit said, infiltrating several in New York City, with one detective attending a whitewater-rafting trip organized by members of the Muslim Student Association at the City College of New York, and reporting what they talked about and how many times they prayed. One man, who said that he had been paid up to $1,500 a month to work as a police informant, declared in a sworn statement that he had provided the police with phone numbers from a sign-up sheet listing people who attended Islamic instruction classes, and had been told to spy on a lecture at the John Jay College of Criminal Justice, even though the police did not believe the Muslim student group there was doing anything wrong. The man, Shamiur Rahman, also said that he was told to use a strategy called “create and capture”
“I was to pretend to be a devout Muslim and start an inflammatory conversation about jihad or terrorism and then capture the response to send to the NYPD,” he said in a legal filing, later adding: “I never saw anyone I spied on do anything illegal, not even littering.”
The years of surveillance and the recent settlement have added a chapter to ongoing litigation involving the Handschu Guidelines, which resulted from the settlement, in 1985, of a lawsuit that accused the police of violating the rights of political activists in the nineteen-sixties and nineteen-seventies. Several lawyers who have been involved with the Handschu case since it was filed, in 1971, also filed the second lawsuit that has just been settled. They maintain that the police breached the guidelines, conducting unauthorized surveillance and keeping records as part of a “massive program of intelligence” that regarded Islam as “the mark of suspicion of political crime.”
The Handschu case occupies an odd niche in American jurisprudence: it has been actively litigated for about forty-five years now, with its restrictions on police investigations being relaxed or strengthened when one side or another has made a case that the police have been unfairly limited or given too much latitude. One of the more significant changes to the guidelines came in 2003, when a federal judge eased limits on surveillance after lawyers for the city argued that the police needed wider authority to stop terrorism. Martin R. Stolar, one of the lawyers for the Handschu plaintiffs, said that the excesses of the demographics unit can be traced to those changes. Today’s settlement, he said, “goes a long way toward restoring the balance between civil liberties and proper investigation of criminal conduct.”
Even as the city negotiated the settlement of the cases brought in Manhattan and Brooklyn, it fought a similar case filed in federal district court in Newark, which said that officers from New York had broken the law by spying on New Jersey Muslims because of their religion. Lawyers for the city said the police actions had been legitimate, and argued that any harm that befell the plaintiffs should be attributed to the Associated Press stories that revealed the surveillance, rather than to the surveillance itself.
In 2014, a judge in Newark dismissed the case. The plaintiffs, represented by Muslim Advocates and the Center for Constitutional Rights, appealed, and, in October, a three-judge panel reinstated the case, citing historic instances in which ethnic or religious groups had fallen under official suspicion.
“We have been down similar roads before,” the panel’s decision said. “Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that ‘[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.’ ”