One of a number of places of worship NYPD placed under surveillance (Photo from documents obtained by AP)

A number of organizations and individuals have decided to support an appeal in a lawsuit against spying against American Muslims by the New York Police Department.

In February, federal district court judge William Martini dismissed a lawsuit brought by eight American Muslims. Martini refused to accept that surveillance by the NYPD had caused any suffering. He also embraced the government’s own argument that the Associated Press had been responsible for any harm or suffering that had occurred because it had been the media organization, not the NYPD, which had published stories based on confidential documents and made the surveillance public.

An appeal was filed by Muslim Advocates and the Center for Constitutional Rights on July 3 [PDF]. The appeal accused the district court in Newark, New Jersey, of failing to acknowledge and analyze the injuries the NYPD allegedly caused by the department’s spying.

Each of the plaintiffs in the case are, as the city acknowledges, targets because of their “religious identity,” the appeal argued. There is a stigma that stems from being subject to discrimination by law enforcement. NYPD surveillance has convinced a number of the plaintiffs that it is best to stop attending the mosques where they worship. Two mosques that have alleged decrease in monetary contributions is an injury. And, finally, the appeal argued that there is a likelihood of future harm because the NYPD will retain surveillance records they have collected on the plaintiffs.

Karen Korematsu, Jay Hirabayashi and Holly Yasui, who are descendants of Japanese-Americans who were detained in internment camps during World War II, submitted a brief [PDF] where they declared, “The treatment of the Muslim community by the [NYPD] has parallels to the treatment of Japanese-Americans by the federal government during World War II.”

The Commission on Wartime Relocation and Internment of Civilians established by Congress in 1980 found the factors that led to internment of Japanese-Americans stemmed from “race prejudice, war hysteria, and a failure of political leadership.” Military officers even believed that “racial prejudice could create military necessity.” The Supreme Court also permitted the violations of constitutional rights that took place by upholding a curfew order aimed at any person of Japanese descent.

Now, the descendants pointed out, the NYPD targets, infiltrates and spies on only Muslim organizations. The NYPD produces reports “naming specific individuals without proof of any illegal activity.” This the descendants argued is contrary to the history of internment of Japanese-Americans for which all branches of government have apologized and repudiated.

“Just as wartime exigency did not justify such behavior, contemporary “security” exigencies cannot insulate such tactics from strict judicial scrutiny,” they added.

Brooklyn Borough President, a New York resident who served 22 years in the NYPD, and 100 Blacks in Law Enforcement Who Care filed a brief [PDF] which argued, “Religion-based discriminatory policing presents the same problems” as policing “based on race or ethnicity, and it is equally abhorrent. Yet the district court dismissed plaintiffs’ challenge to the [NYPD's] bias-based policing practices—which entailed extensive surveillance of American Muslim communities in New York and surrounding areas over a period of more than ten years.”

They rejected the judge’s argument that the spying was legitimate because it could locate “budding terrorist conspiracies” and declared, “In the years since the September 11th attacks, countless local police departments have developed effective strategies for preventing terrorism and other crime without adopting—and often while expressly disavowing—the bias-based tactics employed by the NYPD.”

The Asian American Legal Defense Fund and 17 other civil rights groups argued that the NYPD’s program was “conceived, implemented and defended under the premise that American Muslims’ religious beliefs, practices and community are particularly prone to violent anti-American extremism.”  Yet, this is not based in fact. According to the FBI, from 1980 to 2005, only 6% of 318 “terrorist incidents” in the US were a result of “Muslim extremists.”

A 2014 study by the Triangle Center on Terrorism and Homeland Security found that “out of 300 American deaths from political violence and mass shootings since 9/11 only 37 were caused by American Muslims.”

Finally, the Reporters Committee for Freedom of the Press took on a separate issue, which the district court created in its ruling by putting responsibility on a media organization for “causing” any harm or suffering.

“The District Court’s ruling wrongly takes aim at the messenger,” according to the filed brief [PDF]. In equating the journalism in this case with the cause of the asserted injury, the court also ignores the important impact investigative reporting has historically had on government accountability. From the muckrakers of the early 1900s to the Watergate reporters of the 1970s to the broad range of watchdog journalism practiced today, investigative reporters have played a crucial role in informing the public about the conduct of government and in sparking reform where necessary.

“The Associated Press’ reporting on New York City’s surveillance of Muslim communities fits squarely into this tradition. The journalists in this case revealed the alleged injuries. They did not cause them.”

The Reporters Committee eloquently warned that this decision could make it hugely difficult for anyone to “sue to vindicate claimed violation[s]” of their rights.

“There is no limiting principle to the District Court’s holding. Its standard would presumably reach beyond journalists to include anyone who exposed surveillance activities. For example, a bystander who points out a hidden camera in a subway or an airport or near a government building would apparently be the cause of any civil rights harms associated with these activities.”

“Using the publicity generated by investigative journalism to curtail the standing of civil rights plaintiffs deals a deadly double-blow to government accountability.”