Islamophobic surveillance is here to stay

On Jan. 7, New York City announced a landmark settlement in two lawsuits pending against the police department: Handschu v. Special Services Division and Raza v. City of New York. Both lawsuits alleged the NYPD had engaged in discriminatory and unconstitutional surveillance of Muslims in the years following 9/11. The settlement puts in place some additional safeguards to protect over-surveiled communities from unwarranted or discriminatory policing at the hands of New York’s men in blue. Most of these changes will be made via revisions to the Handschu Guidelines, the set of rules put in place in 1986 to restrict NYPD infiltration of political and religious groups,

This should come as good news for anyone concerned about the effects of 9/11 and the war on terror has had on our civil liberties. But unless we acknowledge the limitations of the settlement, we risk portraying the NYPD as a reformed institution, while the full impact of its invasive and potentially unlawful surveillance activities are brushed under the rug.

In the fall, I reported a series of stories for Gothamist about an undercover NYPD detective, “Mel” or “Melike,” who joined the Islamic Society at Brooklyn College in the spring of 2011 after taking the shahada, or profession of faith. The group of young Muslim women Mel infiltrated and befriended taught her how to pray and welcomed her into their homes. They invited her to join them on social outings and brought her to Islamic education classes and talks. In time, Mel was privy to some of the most intimate and important moments of their lives, once even attending a wedding as a bridesmaid. The undercover detective maintained contact with some of the former students until as recently as January of this year. The investigation at Brooklyn College did not result in any arrests.

Nothing in the settlement would necessarily prevent what happened at Brooklyn College from taking place again. Yes, New Yorkers will benefit from more specific language about what can prompt an investigation, firmer time limits on investigations, additional constitutional protections and greater consideration given to the potential harm of the use of undercover agents. Yet in some respects the Handschu Guidelines will remain murky and incomplete, a fact which the NYPD has previously exploited to expand their surveillance activities. For example, the Guidelines do not explicitly prohibit undercover agents from having contact with former targets or community members after an investigation has closed. That’s how the NYPD justified “Mel” maintaining relationships with some Brooklyn College students for so many years. The new time limits outlined in the settlement will only apply to open investigations.

Similarly, even without an ongoing investigation, the NYPD can still attend events “on the same terms as members of the public generally.” It remains unclear what specifics the NYPD holds to establish that an event is “public” or if a common parlance understanding of “public” might sometimes be reinterpreted to suit investigative needs.

Then there is the question of oversight. The settlement mandates the formal creation of a Handschu Committee — which will include a civilian lawyer appointed by the Mayor alongside NYPD officials — to review and ask questions about proposed or ongoing investigations. 

A previous iteration of the Handschu Committee, which was scrapped after the attacks of 9/11, required a majority of the three-member panel for an investigation to move forward. The member opinions of the soon-to-be institutionalized Handschu Committee, however, do not appear to be binding on the Deputy Commissioner of Intelligence, who ultimately decides whether or open, extend or close an investigation. (The Civilian Representative can report Handschu violations to the Police Commissioner, or to the judge assigned to the Handschu case.)

In short, even with the strengthening of the Handschu Guidelines and the creation of some oversight, New Yorkers will still fundamentally entrust the NYPD to regulate its own use of these invasive investigative techniques. That’s concerning, given the NYPD’s apparent efforts in recent weeks to minimize and obscure the full extent of the spying that happened at Brooklyn College.

In my third story about “Mel,” I wrote about what the police department claimed had happened on Brooklyn College campus. After receiving a request for information, the NYPD told the Handschu and Raza attorneys that Mel had been undercover at Brooklyn College for “less than a year,” from the spring of 2011 through the winter of 2012, and then redeployed for a second, completely separate investigation in 2013.

However, at least three students remember encountering Mel at planning meetings on Brooklyn College in the spring and fall of 2014 with a coalition of students of color group on campus. These accounts seem to suggest that Mel actually ramped up operations after 2012 to include infiltration of political groups that had little or nothing to do with Islam, and had no apparent link to criminal conduct.

The NYPD has so far refused to answer questions from me about this timing discrepancy. Did the NYPD provide false or misleading information to the Handschu and Raza attorneys? Was Mel’s presence on campus in 2014 a Handschu violation?  Did the NYPD categorize these meetings as “public,” when most evidence suggests otherwise?  The secrecy that shrouds undercover operations means we may never know.

These lingering and very significant uncertainties about potential NYPD misconduct cast a pall shadow over an otherwise celebratory moment. In a perniciously Islamophobic climate, my sources helped bring to light the invasive and traumatic policing practices they endured in the hopes that things might change. What they’ve received instead was an unapologetic confirmation.

The settlement is good news – an important first step when it comes to curtailing the surveillance and infiltration of Muslim communities — but it is not a panacea. Additional reforms to the Guidelines are needed.  Moreover, there is real danger in giving the impression of a reformed NYPD when the institution remains unrepentant and recalcitrant.

Those who applaud and celebrate the settlement might also remember its shortcomings, lest the development become a Pyrrhic victory in which the cost of what is forgotten and unrealized is greater than what is gained.