Legal fight continues against NYPD spying on Muslims: an interview with civil rights lawyer Jethro Eisenstein

Photo: Spencer Platt/Getty Images  

Jethro Eisenstein has battled the New York Police Department’s (NYPD) civil rights violations for 42 years. Now, the civil rights lawyer is taking the fight to the NYPD’s expansive program of spying on the Muslim community.

Eisenstein is embroiled in the latest version of what’s known as the Handschu lawsuit, a decades-old court case that first centered on police surveillance of left-wing dissidents and is now focused on the NYPD’s widespread surveillance of Muslims. The NYPD spying, first exposed by the Associated Press and police beat reporter Leonard Levitt, has mapped, eavesdropped and catalogued largely innocuous activities of Muslims not accused of any crime. Police officers have “crawled” mosques, written lists of Muslim businesses and infiltrated student groups–activities that have created a chill over religious and political practice in the Muslim community, as a landmark report released in March documented.

I caught up with Eisenstein, a board member with Jewish Voice for Peace, in his law office earlier this week to get the nitty-gritty on the current version of the suit he’s been involved in for decades. We talked about the NYPD surveillance program, the police department’s history of spying on dissidents, the Boston bombings and proposals on the table to rein in the excesses of the NYPD. What follows is a lightly edited transcript.

Alex Kane: My first question is, could you explain the current ongoing lawsuit in the city against NYPD surveillance targeting Muslims? What is the suit going after and what outcome are you going for?

Jethro Eisenstein: The suit is part of a 42-year-old lawsuit called Handschu v. Special Services Division, which started with some colleagues back in 1971 when the focus of New York City Police Department surveillance was anti-war activists who were protesting the Vietnam War. And the New York City Police Department, even at that time, had a long history of engaging in surveillance of people who were viewed as “other.” This particular unit of the police department started at the turn of 20th century as the Italian Squad, and its target was Italian immigrants who were all viewed as anarchists and then it changed its name to the Black Hand Squad, and then for many years it was the Red Squad. And in the mid to late 60s and 70s, they began to focus both on activism in the African-American community and on anti-war activism targeting the war in Vietnam, and that’s when we started the lawsuit.

The outcome of the lawsuits’ first iteration was a set of rules that were agreed to in the mid-1980s, called the Handschu rules, that represented a balance between the legitimate law enforcement needs of the police department to investigate and the right of people to engage in protected activity without feeling like they were going to be subject to investigation. And the city and the police department lived under the original Handschu rules from 1985 until after the attack on the World Trade Center in 2001. In the aftermath of September 11, we, the lawyers for what’s called the plaintiff class in the Handschu case, contacted the city and said, “we appreciate that something very traumatic has happened in the city, and we’re available to discuss whether these rules need to be adjusted or improved upon to permit the balance to continue to be struck between liberty and enforcement needs.” And the response of the city was, “don’t call us, we’ll call you.” About a year later, they went into court asking that the rules simply be abolished, that they needed a freer hand to engage in the global war on terrorism and that these rules were unduly restricting police department surveillance of terrorists. That was about a 8 year battle, the upshot of which is that the judge put into place modified rules but confirmed that there were still rules in effect and that those rules were enforceable against the police department.

And my sort of role is, the lawyers for the plaintiff class became the perpetual guardian, for better or for worse, of these rules, and when the AP and Len Levitt broke the story about surveillance in the Muslim communities–widespread surveillance in the Muslim communities–we thought it was our obligation, primarily because it appeared that the kind of surveillance that was going on violated even the modified Handschu guidelines.

We thought it was our obligation to learn more about the surveillance program and based on that, decide whether it was appropriate to take action. So a year ago, last fall, that is the fall of 2011, we went into court, really asking primarily for information about the surveillance program. And the response of the city was to offer us some voluntary disclosure–they permitted us to look at a random selection of documents and they provided a high intelligence division official for a deposition. That all played out over the year, the academic year 2011-2012, and the deposition happened in June of 2012. We looked at the documents in May of 2012. Based on what we saw and on what we had learned from the disclosures made by the AP and by Len Levitt, and also, largely based on the police department’s own descriptions of the programs, their own writings about the theoretical underpinnings of the program, we decided it was time to go to court and ask the judge for an opportunity to show that the surveillance program violates the Handschu rules and should be enjoined, should be stopped, and we filed that motion in February of this year. So that’s the state of play.

AK: I was wondering if you could go back a little and briefly explain the modified Handschu guidelines, the post 9/11 Handschu guidelines and how you think the NYPD is violating them.

JE: The primary change between the original guidelines and the modified guidelines was this:

Under the original guidelines, the police department, when they wanted to engage in an investigation–[towards] people who were involved in political activities—[they] had to file what was called an investigation statement with a body called the Handschu authority, which was composed of two police officials and one civilian. And they had to articulate the reason, that is, the factual basis, for their investigation. What was it that made them think that criminal activity was afoot? And by filing this statement, they had 60 days to conduct the investigation, but then they had to go back to the Handschu authority and justify a renewal. So in other words, they had to articulate to a somewhat outside body what it was that they were investigating that was criminal, as opposed to political. And that was a very important discipline because it required them to actually write down, this is the criminal activity that we have reason to believe is going on, and this is what our basis is for that.

In the modified rules, there is still a requirement of what we refer to as a criminal predicate. In other words, some basis to believe that there’s criminal activity going on. But the process of approval has become entirely internal within the police department, so that there’s no longer the obligation to document and to justify to an outside body that there’s a need for an investigation. They do all that internally.

Now, there’s documentation, but we haven’t seen it; we believe that the AP people have seen it because they continue to get information from their sources, but they haven’t disclosed it yet. But the ways in which we think they’re violating the Handschu guidelines really rest on the fact that you still do need some information about criminal activity to launch an investigation. And what they’re doing instead is, and this was articulated by a guy named Mitch Silber in a paper, who was a civilian analyst—very high up in the police department.

AK: This is the paper in 2007, “Radicalization in the West: The Homegrown Threat.”

JE: Correct. And what’s articulated in that paper—and I don’t think I am dumbing it down, because we’ve thought a lot about this and we want to be careful about it—is, they’re engaging in a reasoning process that goes like this: Some terrorists have emerged from Orthodox Muslim settings, Salafist settings. We cannot, we the police department, cannot identify a profile of who will become radicalized, who will move from a set of beliefs to violent action. And so we need to blanket that Orthodox Muslim observant community with surveillance. And that’s a violation of the Handschu guidelines. And that’s in a nutshell what we think they’re doing and what we think the judge ought to stop them from doing.

AK: And so how do you think the current program of spying compares to the past instances of NYPD surveillance on the Italian community, the Black community. Is the logic the same? What’s the comparison?

JE: Well, the comparison is direct. There is a population who, by virtue of their religious observance, are inherently suspect, and their loyalty is questioned simply by virtue of their religious observance. And in our view, it’s similar to stop and frisk in the sense that there’s a whole population that’s inherently suspect, and it’s similar to what the police department has done historically, which is to view some group as the “other,” and the “other” is inherently suspect and needs to be watched. And that’s a very pernicious government policy.

AK: Has the city lodged an argument in the current, ongoing Handschu suit about why they think they need to do this? If so, what’s your response?

JE: Their opposition is due on May 10. They have asked if we would agree that their opposition be sealed. We have told them we will not agree, and it’s not in our power to agree because something that’s filed in court becomes a public record unless the judge declares that it has to be sealed. So we’re waiting with eager anticipation, reading what they’re going to have to say.

Having said that, their proxies have been out, particularly in the aftermath of the Boston bombing, trying to tie what happened in Boston into the need for the police department to engage in surveillance. Judith Miller wrote a piece in the Wall Street Journal, which was really a puff piece for the surveillance program, Silber has been heard from again. Bloomberg and Kelly at a news conference went out to announce the fact that the suspects in the bombing in Boston had said in the car, the car that they had just hijacked, to the driver that they had decided they were going to next go to New York. From all appearances, and all the information that I’ve heard, this was simply a spontaneous notion that had developed on their part. But the city administration has sort of trumpeted that as sort of more evidence of the need for the surveillance program.

AK: Could you talk a little more about that, about the calls, mostly from the right—Judith Miller, Peter King— for spying. As someone who’s knowledgable about the legal issues involved, what’s your reaction to the calls for stepped up surveillance of mosques and the Muslim community at large?

JE: There’s a constitutional argument to be made, and I hope it will be made, but it’s not my table. The constitutional argument really is that there’s a stigma attached to this surveillance. There’s a wonderful quotation from Justice Brandeis, which I carry around in my phone, and which I will now read to you because it’s so appropriate. Brandeis said in a case actually about police searches in 1928: “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”

When the government is in the business of treating a whole population as suspect, it is no wonder that Islamophobia becomes rampant, because the government is telling us that it’s not only legit, it’s appropriate and necessary to treat a whole population as suspicious and appropriate to teach that Muslims are people whose exercise of First Amendment rights like worshipping should be viewed with suspicion. So there’s a whole argument to be made about that, and I hope it will be made, but meanwhile our little part of this enterprise is, there is a set of rules, what they’re doing violates those rules, and we want to try and call them to account for violating the Handschu rules.

AK: And it sounds like the constitutional argument is being made in the lawsuit in New Jersey, where a group of Muslims have filed suit alleging constitutional violations resulting from the NYPD surveillance program there.

JE: Yeah, and there’s also a lawsuit brewing in New York. And frankly, people are afraid. The effect of the surveillance program, for example, on kids in college. The Muslim Student Associations are afraid to have political discussions. Parents are telling their kids don’t join, don’t be involved in politics on the campus. So there’s all kinds of ripple effects of the surveillance program.

AK: What’s your assessment of political proposals on the table—an Inspector General for the NYPD, banning profiling—that are being debated right now, to rein in NYPD spying?

JE: Well, I think that the Inspector General is a good idea for a variety of reasons. It is peculiar that, and it’s really wrong, that the police department is the only city agency that doesn’t have some oversight that’s not in the direct chain of command to the commissioner. And it’s a very, very tight paramilitary institution with a long, long, history and rich traditions, some of which are very bad and some of which are very good, and anything that’s going to have an effect on the governance of the police department is very good. I think that the Inspector General idea is good. I think that banning profiling is a feel-good legislative effort that’s not going to have any effect on the street. I think we probably need a new police commissioner with a very different sense of the balance of what’s appropriate.

AK: I don’t have any more specific questions, but before we end, was wondering if you think there’s anything that I didn’t ask you that you want to emphasize.

JE: You know, for me, working on the Handschu case is really an expression of my Jewishness, because I really feel, the command, “do not oppress the stranger,” is at the core of my ethical tradition. And so having an opportunity to do something about that is really, you know, it’s part of my line of work, I am a lawyer, but it’s also a spiritual undertaking for me.