Confused logic approves NYPD surveillance of Muslims

On Feb. 20, a U.S. district judge dismissed a lawsuit challenging the New York Police Department’s widespread surveillance of Muslim Americans in New Jersey. But just six months earlier, a Manhattan federal court issued a historic ruling against the same department’s stop-and-frisk program, declaring the city’s targeting of black and Hispanic communities unconstitutional. How can the same police department be guilty of bias in one case but not the other?  

The word “counterterrorism” has long been known to make room for certain allowances in our legal landscape. However, Judge William J. Martini’s ruling in Hassan v. City of New York, brought by the Center for Constitutional Rights and Muslim Advocates on June 6, 2012, sets a particularly dangerous precedent for cases involving counterterrorism institutions that violate individual rights. It suggests that under the national security rubric, the government is absolved of the responsibility to protect the rights of all citizens equally.

The 11 plaintiffs — among them a decorated Iraq War veteran, former and current Rutgers University students and the proprietors of a Muslim school for girls — argued that once the NYPD’s surveillance practices became known, their businesses and careers took hits. Customers stopped going to stores where they would be spied on by police, colleagues’ distrust of the plaintiffs hampered their career progress, and members of the Muslim community limited their interactions with one another in public spaces. Martini not only ruled that the NYPD was not directly responsible for these damages but also found that it was not discriminatory in its practices, saying:

Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The most likely explanation for the surveillance was a desire to locate budding terrorist conspiracies … While this surveillance program may have had adverse effects upon the Muslim community after The Associated Press published its articles, the motive for the program was not solely to discriminate against Muslims but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.

According to this logic, the intent of the NYPD was not to discriminate but to find terrorists in the most likely place: in the Muslim community. But former Mayor Michael Bloomberg and former NYPD Commissioner Ray Kelly offered a similar justification for the stop-and-frisk program: Gun violence occurs disproportionately in particular minority communities, hence the NYPD conducts searches and seizures in those communities in order to lower crime. But U.S District Court Judge Shira Scheindlin, who ruled on stop and frisk in Floyd v. City of New York, found that whatever the intent, the effect of the program had been discriminatory targeting of minority groups. It amounted, she wrote, to a “policy of indirect racial profiling.”

Martini does not deny that the NYPD engages in discriminatory policies through its spying program, but he finds them to be neither unconstitutional nor grounds to reprimand the department. In fact, he finds surveillance of the Muslim community to be necessary to meet the NYPD’s objectives.

Underlying Martini’s ruling is a baseless assumption that the department’s surveillance is effective — that it is necessary because it yields results. Kelly argued a similar case for the stop-and-frisk program, claiming that crime was lower in New York because of the practice. That myth has long been dispelled. “Nearly 90 percent of the people stopped are released without the officer finding any basis for a summons or arrest,” Scheindlin wrote in her decision.

Martini offers no skepticism of the efficacy of the NYPD’s spying program on the Muslim community, despite research indicating otherwise. In 2012, ProPublica investigated the NYPD’s claim that its counterterrorism tactics were effective and found that the department grossly overstated its success in thwarting attacks. The same year, NYPD Assistant Chief Thomas Galati testified that conversations from the department’s spying program had not led to successful cases. Rather, it has been cooperation between the Muslim community and the FBI and police that has yielded results. Since 9/11, Muslim Americans have alerted law enforcement to potential terrorist threats in almost half the cases.

The Hassan ruling is based on assumptions perpetuated by the war on terrorism — that Muslim communities are havens for terrorists and that any counterterrorism policy, no matter how invasive, is necessary for security. And it sends a fractious message about the police department’s discriminatory policies. Whereas the Floyd ruling required the NYPD to institute lasting reforms, the dismissal of Hassan disregards the need for reform in how the police targets the Muslim community. These divergent rulings pose a frustrating conundrum: How can a department be expected to train officers not to engage in discriminatory practices against one minority while its counterterrorism training reinforces targeting another minority as acceptable?

However, one judge’s decision does not have to be the definitive voice in these matters; there are other avenues of reform available. Despite attempts to overturn Scheindlin’s decision, New York’s new Mayor Bill de Blasio and returning Police Commissioner William Bratton have shown they are willing to reform stop and frisk. But if they want long-lasting improvement in the NYPD’s ranks, the city’s leadership will have to show that they are committed to stopping all discriminatory practices.