The NYPD's policy of widespread spying on Muslims went on trial yesterday in a federal courtroom in Manhattan, with the City arguing that a series of NYPD documents that would shed more light on the legality of the surveillance were much too secret to be aired in court.
In their brief [PDF], lawyers for New York City invoked the specter of terrorist plots from around the world, making dire predictions of the tragic cost if the plaintiff's lawyers have their way. As the avuncular and octogenarian Judge Charles Haight archly observed, the City "stops a little short of saying the republic will fall" if the court asks the NYPD to change its behavior or imposes any oversight on the department.
The attorneys fighting to enforce the Handschu guidelines argue that the NYPD is investigating Muslims and Muslim institutions without a shred of evidence of possible criminal activity.
They point to a former NYPD informant who told the AP he was paid to bait innocent Muslims. They also note a leaked secret NYPD document [PDF] that shows the Department had placed undercover officers and informants in scores of mosques throughout the city, and another secret wish list [PDF] showing that the NYPD was seeking to place a confidential informant on the board of the Arab American Association of New York.
To the Handschu lawyers, the NYPD's claim (and Mayor Bloomberg's assurances) that the department "only follows leads" is blatantly false.
In response, the City claims that the association was never the target of an investigation, and the NYPD never actually put an informant on its board, and further insists the NYPD's surveillance of Muslim Americans conforms scrupulously to the Handschu guidelines.
The City assured the court that no investigation is undertaken without first creating a "Investigative Statement" that is vetted and approved by conscientious overseers.
To see if the NYPD is actually investigating someone based on their criminal behavior and not their religion or political beliefs, the court would need to view those documents. That’s what the Handschu lawyers are asking for.
But city attorney Peter Farrell spent most of yesterday arguing that the Investigative Statements are too secret to allow the court to see them, and that Judge Haight should take the NYPD's word for it.
The issue of police surveillance has been taken up by the same team of lawyers who first brought a class action suit against the NYPD over its practice of and keeping files on peaceful political activists back in the 1960s and '70s. That lawsuit ultimately resulted in the NYPD's agreeing to abide by a set of restrictions known as the Handschu guidelines.
The Handschu lawyers pose outside of court with some of their clients. Left to right: Imam Al-Hajj Talib 'Abdur-Rashid, Arthur Eisenberg, Faiza Ali, Jethro Eisenstein, Paul Chevigny, Franklin Siegel, Barbara Handschu, Martin Stolar, and Magdolyn Kawas (Nick Pinto / Gothamist)
Over the past four decades, the same judge and the same lawyers who brought the initial class action have been in charge of making sure the police are living up to their responsibilities not to keep dossiers on innocent civilians. After 9/11, the police asked for and received changes that considerably relaxed the restrictions, but the department is still governed by the modified Handschu guidelines.
"For most of the decade between 2003 and 2013, the Handschu case was always present, but relatively quiet," Judge Haight said yesterday. "I've come to think of the case as a sort of volcano, quiet most of the time, but every now and then blows up."
In February, the Handschu volcano erupted again. Drawing on the Pulitzer Prize winning reporting of two Associated Press reporters that revealed the NYPD's widespread surveillance of Muslim Americans, the lawyers representing the Handschu class filed a motion with Judge Haight, asking him to order the police to stop their allegedly illegal spying.
The formally designated investigations are only a part of the NYPD's illegal behavior, the Handschu lawyers contend. Equally problematic is the behavior of the Department's former Demographics Unit, now known as the Zone Assessment Unit, which sent undercover officers and police informants into Muslim neighborhoods, shops, and community centers to map "ancestries of interest" and listen to people's conversations.
"The Demographics Unit was going around, listening to conversations and recording them...at the rate of about one per week for the last three years," Jethro Eisenstein, one of the Handschu lawyers, told the court yesterday. By the NYPD's own admission, the Demographics Unit's work didn't yield a single lead.
Assistant Chief Thomas Galati, the acting head of the NYPD Intelligence Division (Gothamist)
Under the relaxed post-9/11 Handschu restrictions, NYPD officers are allowed to go anywhere the general public can go and attend public meetings, but there's still a restriction: they're not allowed to make a record of people's political speech. They can only note conversations that concern possible criminal activity.
Yet the unit's files contain records of innocuous conversations between Muslim Americans. In one example, two men complained about news that a public employee had been reinstated after burning a Koran.
Asked why the police retain records of conversations like this, Assistant Chief Thomas Gallati told the Handschu lawyers, "I'm using that information for me to determine that this would be a kind of place that a terrorist would be comfortable in."
Farrell, the City's lawyer, argued the NYPD doesn't record innocuous conversations often enough to make it a widespread, systemic practice. Out of a sample set of reports that he had showed to the Handschu lawyers, Farrell said only 31 out of 340 contained recorded conversations.
Judge Haight was unimpressed by the statistic, noting that it did nothing to show the NYPD wasn't recording every conversation it encountered. "If every conversation overheard was recorded and retained, that's a practice," he said.
Farrell tried a different tack: even if the NYPD is recording people's peaceful political conversations, that's still acceptable under the Handschu restrictions, because even peaceful political conversations by Muslim Americans relate to potential criminal activity. Since the NYPD is scouring Muslim communities to assess whether there's any potential for violence, any type of conversation "whether it promotes violent behavior or does not promote violent behavior, relates to potential criminal activity," he said. "You need both sides to make an assessment, which the Intel Division is trying to do."
"This is exactly what we thought they thought," Paul Chevigny, an NYU law professor, told the judge. Farrell was essentially proving the Handshcu lawyers' argument, Chevigny said—anything a Muslim says, whether violent or not, is treated as intelligence related to potential crime.
Judge Haight will now consider whether the Handschu lawyers should be allowed to review any Investigation Statements to determine whether they actually justify the NYPD's surveillance activities.
In the meantime, the NYPD has other problems. Another lawsuit brought by the New York Civil Liberties Union over the same Muslim surveillance program begins October 7 in federal court in Brooklyn.
Nick Pinto is a freelance writer living in New York. His previous coverage for Gothamist includes the trial of Vietnam veterans arrested at the Vietnam Memorial and the NYU expansion plan.
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