The federal courtroom was mostly silent in the minutes before proceedings started, the mood somber as Muslim activists and their allies waited in the area for spectators. But when the judge walked in, sparks began to fly over the lawsuit seeking to end the New York Police Department’s surveillance program that has mapped Muslim communities, infiltrated student groups and eavesdropped on imams at mosques.
The opening shots in the American Civil Liberties Union’s federal lawsuit against the NYPD were fired yesterday in a downtown Brooklyn courtroom in front of Judge Joan Azrack. No decision was issued yesterday, which was the first hearing among many concerning the NYPD’s spy program.
But it provided a window into the contrasting positions of the city and the ACLU and their plaintiffs, who were all spied on by the NYPD. The ACLU suit, filed in June, is asking for a halt to the surveillance program, an outside monitor for the NYPD and the expungement of any collected records pertaining to the plaintiffs. The city’s response has been to mostly deny the allegations and ask for the dismissal of the lawsuit, though in a letter they have admitted they surveilled the plaintiffs in the course of investigations.
The case was opened in the shadow of the 12th anniversary of the September 11 attacks, which prompted the NYPD to implement their wide-reaching surveillance program which has touched on every aspect of Muslim life. The federal lawsuit is one of three open cases against the NYPD surveillance program.
“This is a lawsuit that challenges the New York Police Department’s discriminatory and suspicion-less surveillance of Muslims,” said Shamsi, representing the plaintiffs as her co-counsels from the CUNY CLEAR project looked on. The city’s lawyer, Peter Farrell, retorted that those claims are not backed up by facts. Shamsi was sharply questioned by Judge Azrack, who asked Shamsi whether the city had “reasonable suspicion” to spy on her plaintiffs.
At the heart of yesterday’s arguments was the city’s bifurcation motion–a move to focus the first part of the proceedings on discovery into only the plaintiffs and their allegations of unconstitutional spying. (“Discovery” is a legal term meaning pretrial procedures to gather evidence from the opposing party.)
The city law department wants to split up the lawsuit so they can present evidence against the plaintiffs to justify why they conducted surveillance against them without going into the larger surveillance program. The ACLU has requested that the judge reject the city’s motion because they say the plaintiffs’ claims and the overall city surveillance policy are inextricably linked. “Plaintiffs would be gravely disadvantaged by a process that forbids the discovery of relevant evidence–especially as to the scope of the surveillance policy and Defendants’ discriminatory intent-until after the NYPD pursues one-sided discovery,” a letter from the ACLU’s Shamsi sent on September 11 reads.
Hints of the NYPD’s strategy to justify their surveillance into the plaintiffs were laid out in a separate September 10 letter. The city said that their surveillance “followed leads suggesting that certain individuals in certain mosques may be engaging in criminal, and possibly terrorist, activity, and investigated those individuals where they happened to be, including, at times, in certain mosques.” For instance, the city says the spying on Masjid At Taqwa, a Brooklyn mosque, was pursued because the mosque’s security team allegedly trafficked in weapons and that members of the mosque have ties to terrorism. The city also states that mosque members participated in paintball exercises at which a security team member from the mosque said the participants were “jihad warriors.”
While the city says they didn’t conduct “wholesale surveillance” into mosques, Masjid At Taqwa was investigated as a “terrorism enterprise,” according to documents posted by the Associated Press’ Adam Goldman and Matt Apuzzo. That meant that anybody who entered the mosque to pray was possibly subject to surveillance.
Another city claim was that another mosque that is a plaintiff in the suit was visited by a man convicted of lying to law enforcement about plans to join the Taliban or Al Qaeda.
In the courtroom, Shamsi said the city’s claims were “innuendo” and said that if a criminal goes into St. Patrick’s Cathedral, it shouldn’t be labeled a “terrorist enterprise.” The plaintiffs are now waiting to hear back from a separate judge about their request for a preliminary injunction that would force the NYPD to “segregate” its records on the plaintiffs in the lawsuit and prohibit the city from disseminating them. The plaintiffs are also asking for a halt to NYPD investigations into them based on their religion.
Yesterday’s proceedings made clear that the city under Mayor Michael Bloomberg would vigorously defend the NYPD’s surveillance dragnet. But the importance of the lawsuit could change depending on the next mayor. Bill de Blasio, the progressive who won this week’s Democratic primary (though he may have to participate in a runoff), has criticized the NYPD surveillance program in recent weeks. His GOP opponent, Joe Lhota, has said that “it is very, very important that we continue everything that [NYPD chief] Ray [Kelly] has started,” including spying on Muslims.
Asked for comment on what de Blasio thinks about the lawsuit, his campaign spokesman, Dan Levitan, directed me to an earlier statement. “I am deeply troubled by reports today that the New York Police Department used Terrorism Enterprise Investigations to allow blanket surveillance of mosques as well as the Arab American Association of New York,” de Blasio said in the statement. “As Mayor I plan to initiate an immediate, independent and through review to ensure that the civil liberties of all New Yorkers are protected, without sacrificing one iota of our safety.
De Blasio has said that he would get rid of Kelly as head of the NYPD. But perhaps the first test of whether the NYPD surveillance program would continue under a de Blasio administration is whether he keeps on David Cohen, the former Central Intelligence Agency official who laid the groundwork for the NYPD spy program as an Intelligence Division official in the police department.
The Muslim Democratic Club of New York is already rallying around de Blasio after endorsing rival John Liu in the primary. In a statement issued today, club president Linda Sarsour said that “Bill de Blasio has proven to be a true champion of progressive values and civil rights from his support of the NYPD Inspector General to his recent call to review the police department’s Muslim surveillance program.”