Lawyer’s verdict on NYPD surveillance of Muslims: unconstitutional

Muslims and allies rally in New York’s Foley Sq. against NYPD spying on Muslims (Photo: CAIR-NY/Flickr)

An official verdict remains out on the New York Police Department’s (NYPD) widespread surveillance of Muslims in the Northeast. But one lawyer, writing in The National Law Journal, proclaims the program unconstitutional.

A judge will likely rule on the constitutionality of the surveillance program as a result of lawsuit filed in New Jersey earlier this year. That suit was filed in June by a California-based organization, Muslim Advocates, and focuses on the NYPD’s spying efforts in New Jersey. The plaintiffs allege that Muslims’ First and Fourteenth Amendment rights under the U.S. Constitution were systematically violated by the NYPD.

But Alan Levine, a New York civil rights lawyer, isn’t waiting for a judge to rule on the New Jersey case–a prudent decision, given that judges in the post-9/11 era have proved themselves willing to allow the government to run roughshod over the rights of Muslim-Americans.

Writing in The National Law Journal, Levine lays out what the NYPD must prove before a program that targets one ethnic group can be considered legal. Based on court precedent, the surveillance program has to serve a “compelling” interest, and prove that the methods it uses are “necessary” to accomplish that interest. Levine demonstrates that the NYPD has proven neither.

Here’s the crux of Levine’s argument:

While “compelling” and “necessary” are imprecise terms, they mean, minimally, that law enforcement may not target a religious group unless the goal is critically important and nothing else will work. The government must surmount both hurdles. As to the first, Mayor Michael Bloomberg and the NYPD say that surveillance of the Muslim community has prevented serious criminal activity. “We have stopped 14 attacks since 9/11 fortunately without anybody dying,” the mayor said, referring to a list of “terrorist plots” that the NYPD claims to have foiled.

However, a recent investigation by ProPublica reporter Justin Elliott analyzing each of the alleged plots demonstrates that the claim of crime prevention is willfully overstated…

Elliott’s conclusions are consistent with an AP analysis that found that the NYPD list “includes plans that may never have existed as well as plots the NYPD had little or no hand in disrupting.” Even assuming legitimate disagreement about one or two of these plots, the NYPD’s list clearly fails to provide the compelling justification required by the Constitution for the use of a suspect classification as a basis for a surveillance operation.

Nor can the NYPD satisfy the second constitutional requirement of showing that its Muslim surveillance program was “necessary” to fight terror. How, for example, does investigating an elementary school, or placing informants on a college rafting trip or in a random house of worship, lead to the prevention of a criminal plot?

Here’s Levine’s conclusion:

More than 50 years after the Japanese internment, President Clinton issued an apology, conceding that “our nation’s actions were rooted in racial prejudice and wartime hysteria.” Prejudice and hysteria are at the root of the NYPD’s surveillance program as well. The Muslim community should not have to wait a day longer for city officials to abandon a practice that so flagrantly affronts principles of equal justice and religious freedom.