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Text messages from a former police informant who targeted Muslims have opened a new window into the the New York Police Department’s (NYPD) spying–and suggest an expansive program where informants surveil innocuous activities and try to bait people into saying violent things. The informant wrote things to his police handler that reveal he brought up “jihad” to see what other Muslims would say in response. He also entered Muslim spaces to snap photos and record the phone numbers of people not accused of committing a crime.
The messages indicate that the police may not have told a federal judge the full story about the police’s expansive spy program targeting Muslims in the Northeast. They also raise new questions about whether the NYPD is following court-imposed guidelines on how they can conduct surveillance on political activity and how they investigate terrorism.
The new details about the NYPD’s spying effort came in a report authored by the Associated Press’ Matt Apuzzo and Adam Goldman.
NYPD Detective Stephen Hoban, who handled the informant in question, defended the surveillance program in a May 16 legal filing as part of the police response to a civil rights lawsuit challenging the spy program. He told the judge that Shamiur Rahman, a former young Bangladeshi-American informant who eventually denounced the police, was lying when Rahman said he was directed to bait Muslims into saying inflammatory things related to violent jihad and terrorism. Rahman was paid $1,000 a month for his informant activities, before becoming uncomfortable with them and quitting.
“Rahman was never told to ‘spy on the Muslim community,’” Hoban said in the legal filing. “Rahman was never tasked to, nor did he as far as I know, engage in what he refers to as a ‘create and capture’ methodology.”
The legal suit the filings are a part of allege that the police program targeting Muslims violates the Handschu guidelines. First implemented in 1985 in response to the police spying on left-wing protesters, the guidelines govern how law enforcement in New York City can conduct investigations into political activity and terrorism. The current guidelines, though loosened after 9/11, prohibit the police from spying on people without criminal suspicion and retaining information not related to an investigation.
Hoban’s comments were a direct response to Rahman’s late 2012 declaration in the lawsuit, where he said that he was “told to use a strategy the police called ‘create and capture’”–a phrase meaning he “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.” Rahman also said that “according to my NYPD boss Steve, the NYPD considers being a religious Muslim a terrorism indicator.” Rahman added that he was tasked with visiting mosques, recording cell phone numbers for those who signed up for Islamic instruction classes and spying on a lecture organized by the Muslim Student Association at John Jay College in Manhattan. He also told the judge that he “attended the Muslim Day parade in Manhattan and took pictures of people marching” and sent the photos to the NYPD.
The May 16 comments from Hoban are an attempt to defuse the impact of those claims. But the text messages from Rahman provided to the AP reporters tell a different story than what Hoban told the judge. According to the AP, Hoban wrote to Rahman things like: “Did you take pictures?”and “I need pictures from the rally. And I need to know who is there”–messages that suggest Rahman was indeed spying on the Muslim community.
In one message, Rahman wrote to Hoban: “Hey bro. I think im going to bring up jihad with these guys tonight, see what they say and know and then go home because everyones really just praying and stuff.” While Hoban did not respond to that message, Rahman says “his NYPD handler only encouraged him to use the tactic, never dissuaded him,” the AP reports.
Hoban also said in his legal filing that Rahman was “never instructed to ‘infiltrate’ the MSA at John Jay, and the MSA at John Jay was never a named subject of any investigation.” Instead, Hoban said in his legal filing that Rahman was tasked with following a specific group of people who the police were investigating after getting the inquiry approved under the Handschu guidelines. Hoban added that Rahman monitored the Muslim Student Association and other Muslim groups only because the specific group of individuals being investigated for terrorism went there.
Hoban also claimed that Rahman “spontaneously went to the [Muslim American Society] Youth Center…I was told they went there after-the-fact.” But messages sent from Rahman’s phone that were shared with the AP read: “Afterwards I might go to the mas center.” Hoban responded: “Ok. let me know who is there.”
Jethro Eisenstein, the civil rights lawyer part of the team working to halt the NYPD’s expansive surveillance program that includes infiltrating mosques, eavesdropping on coversations and cataloging Muslim-owned businesses, says that Rahman’s text messages are crucial and that “there’s a real contradiction between what Hoban says and what’s in his exchanges with the confidential informant, and that has to be explored.” The NYPD wants to distance themselves from the tactics Rahman describes, Eisenstein said.
“Hoban isn’t saying, ‘oh my god, what are you doing? Don’t do that!’ This is the back and forth between [Rahman and Hoban]. It’s clear to me at least that that was part of their vocabulary and part of what they were talking about and doing,” Eisenstein said in an interview.
Besides shedding new light on informant activities and how they operate as part of the NYPD surveillance program, the legal filings raise questions about whether the police are following the Handschu guidelines. If it’s true that Rahman was instructed to use the “create and capture” methodology–as his text messages indicate–it may have violated those guidelines. “There’s a specific prohibition on encouraging people to engage in inflammatory rhetoric and then using that as a basis for an investigation, or as a basis to create a file about somebody,” said Eisenstein.
The NYPD also denies that they kept files on Muslims not associated with terrorism investigations, which would also be a violation of the guidelines. The NYPD is allowed to enter public places under the Handschu guidelines and take photos–they just can’t retain them if they’re unrelated to an investigation. The guideline were loosened after the September 11 attacks. For instance, the process of approval for an investigation, which has to be based on suspicion of criminal activity, is now all done internally within the police department–a change from the pre-9/11 guidelines.
If you take Hoban’s word as the truth, his informant may not have engaged in activities that violate the Handschu guidelines. But the overall thrust of the Pulitzer Prize-winning Associated Press series has lead lawyers to say that the police are violating the guidelines. The AP reported that after the 9/11 attacks, the NYPD engaged in a widespread program of spying on Muslims in mosques, businesses and schools. Many of these spying expeditions were taken with no basis for criminal suspicion, the AP reports indicate, and the police collected and kept files on mosques and Muslim-owned businesses.
The lawsuit filed by Eisenstein and his colleagues against the program reads in part:
There is substantial persuasive evidence that the defendants are conducting investigations into organizations and individuals associated with the Muslim faith and the Muslim community in New York, and have been doing so for years, using intrusive methods, without a reasonable indication of unlawful activity, or a criminal predicate of any sort.
As part of the same program, agents of the NYPD have persistently visited public places associated with the Muslim faith and the Muslim community, without detecting evidence of potential unlawful or terrorist activity, and have nonetheless retained detailed records concerning such visits. Moreover, while flouting the requirements of the Handschu Guidelines, the NYPD has publicly claimed to be complying with the requirements of those Guidelines.
The NYPD’s latest legal filings responding to the lawsuit strongly dispute that narrative. “The NYPD Intelligence Division does not now conduct, nor has it ever conducted, investigations based solely on the fact of one’s status as a Muslim or because they associate with Muslims,” said David Cohen, a former CIA agent and now the deputy commissioner of intelligence for the NYPD, in a May 17 legal filing.
Cohen stressed that New York is continually under the threat of a terrorist attack. He added that the measures civil rights lawyers want to implement–like appointing an outside monitor to ensure adherence to the Handschu guidelines and enjoining the surveillance program–would endanger the city.