Photo from report, “Mapping Muslims, by MCLC, CLEAR and AALDEF groups

A lawsuit alleging the New York Police Department’s surveillance programs had involved discrimination because the department targeted Muslims at mosques, schools and restaurants in New Jersey was dismissed by a federal judge.

The federal judge, William J. Martini, in the United States District Court of Newark, accepted most if not all of the government’s arguments in the case and in his dismissal ruling refused to accept that surveillance that took place by the NYPD had caused any suffering to the eight Muslim plaintiffs in the case who had alleged harm.

Martini’s decision even went so far as to embrace a government argument that it was a media organization, the Associated Press (AP), which had caused the harm or suffering (if that occurred at all). The AP published stories based on confidential documents that revealed the surveillance, not the NYPD.

In 2012, AP published reports which revealed the NYPD had built databases on Muslim-owned businesses and places of worship. A surveillance operation had produced “demographic maps” of Long Island, New York, and Newark, New Jersey. The Newark Police Department worked with the NYPD.

The NYPD’s Demographics Unit profiled ethnic locations by labeling certain areas “locations of concern.”

The Center for Constitutional Rights represented multiple plaintiffs in the lawsuit. Syed Farhaj Hassan, a New Jersey resident and US soldier who served in Iraq, worships at the Masjid-e-Ali mosque, Mehfile Shahe Khorasan mosque and the Imam-e-Zamana Foundation of North America mosque.

Each of the mosques are in New Jersey and became targets of the NYPD’s surveillance program. And, as a result, Hassan alleged that he had “decreased his mosque attendance significantly since learning that the mosques he attends have been under surveillance by the NYPD” because of the “reasonable and well-founded fear that his security clearance would be jeopardized by being closely affiliated with mosques under surveillance by enforcement.”

The AP also revealed that Muslim student associations had been targeted by the NYPD. Officers spied on students at schools beyond the city limits at the Ivy League colleges of Yale and the University of Pennsylvania. They conducted operations at the Newark and New Brunswick campuses of Rutgers. In fact, officers had a “safe house in an apartment not far from campus” until a “building superintendent stumbled upon the safe house,” thought it was “some sort of a terrorist cell” and called a “police emergency dispatcher.”

“These MSAs were singled out for surveillance by the NYPD simply because their membership is made up of Muslim students. Student organizations affiliated with other religious denominations were not subject to similar surveillance,” the Muslim Students Association of the US & Canada alleged.

The judge cited Ashcroft v. Iqbal, a US Supreme Court case that found FBI Director Robert Mueller and US Attorney General John Ashcroft qualified for immunity against allegations they had approved racial or religious discrimination of individuals detained after the September 11th attacks.

…The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts [alleged] the arrests . . . were likely lawful and justified by [a] nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts…

This logic could be used to justify the massive detention of a population of citizens because someone with their ethnicity, race or religious background committed a terrible act of violence. It is evocative of the Korematsu decision, where the Supreme Court ruled the internment of Japanese Americans had a “definite and close relationship to the prevention of espionage and sabotage” during World War II after the attack on Pearl Harbor. It may have appeared discriminatory but was designed to prevent a Japanese invasion on the west coast.

Martini wrote, “The 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 more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies,” he added. “The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.”

“The motive for the program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims,” Martini concluded.

What “Muslim terrorists”? When did the NYPD’s suspicionless surveillance operation uncover a cell of “Muslim terrorists” deliberately hiding among peaceful law-abiding Muslims for cover?

It does not matter. The judge reinforced the confirmation bias of law enforcement, which is that ethnic, racial, religious or even activist groups are susceptible to violent infiltration and it is law enforcement’s job to conduct dragnet surveillance on all people to prevent “radicalization” or plots before they develop.

Such a conclusion is made even worse by the judge’s acceptance of the argument the government pushed—which is that it is really the AP, which the Muslim plaintiffs should have sued.

“None of the Plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents,” Martini stated.

He added, “Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that Plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not ‘fairly traceable’ to any act of surveillance.”

The NYPD had never wanted any of this evidence of surveillance to be public. (I guess, the public is supposed to believe they were keeping it secret so no Muslims spied upon experienced harmful effects?)

All of the impacts on religious expression, employment prospects, property values and revenue may have come after the AP published the stories, which led to their reporters winning a Pulitzer Prize. But, perhaps, if one takes the fear goggles off for a moment, there is a much more reasonable explanation.

The AP managed to uncover secret surveillance of Muslim communities, which the people in those communities had never realized was taking place. They may have suspected infiltrators and police officers were covertly operating in their community, but they could not prove it. With the AP’s reports, they had proof to allege that they had been improperly targeted. (This is necessary to obtain standing in a case where one wishes to allege they have been victims of discrimination. A person cannot enter court and simply say I think the NYPD is spying on me; they need evidence.)

Muslims in these communities now live in a climate of fear. New individuals in their community who did not immediately appear to fit in are judged as possible agent provocateurs. A number of Muslims are choosing to pray at home instead of go to mosques. Muslim students choose to “lay low” and not engage in protest that might draw attention and encourage more spying. Muslims in community spaces feel pressure to censor their conversations. They are afraid to criticize surveillance because that might mean they are subjected to more government surveillance.

The NYPD designated entire mosques as terrorism organizations to justify warrantless surveillance of places of worship. It sought to infiltrate the boards of mosques and even a “prominent Arab-American group in Brooklyn” in order to fill “intelligence gaps.”

There is no legitimate law enforcement purpose for what the NYPD has done. Little to no cases have been built against individuals with data collected from the mapping of Muslim comunities. It has not been responsible for preventing a single terrorist attack. Its sole contribution to society has been a weakening of civil liberties protections and the spread of fear among Muslims.