NYPD SURVEILLANCE: A CALL TO STOP UNLAWFULLY MONITORING MUSLIMS


Since the 9/11 attacks and the recent election of Donald Trump, there has been a severe rise of anti-Muslim sentiment across the United States. This sharp rise has allowed individuals condoning discriminatory behavior to unite across the nation, with six active anti-Muslim hate groups claiming chapters in New York City alone.[1] Local and regional governments have attempted to halt these discriminatory sentiments and remain intent on keeping peace. However, in New York City, there must be a greater push for initiatives to halt discrimination. Since the tragedy of 9/11, the New York Police Department (NYPD) has surveilled thousands of Muslims they refer to as admittedly “ordinary” Muslims: those who work legally, pray, and spend time with their families. Commissioner Raymond Kelly of the NYPD, when asked about on the legal validity of such arbitrary government surveillance said, “We [the NYPD] will go into a location, whether it’s a mosque or bookstore, if the lead warrants it.” Despite the claims made by the NYPD to justify its actions, the NYPD’s Demographics Unit’s indiscriminate monitoring is illegal and must be stopped.

As outlined by legal scholar Eric Lane, there are three distinct precursors to increased policing and restrictions on civil liberty. The first condition that primes for increased policing is racial prejudice. The 9/11 attacks brought with them an exponential rise in the number of “retaliation” attacks, with reported acts of violence growing from 28 in 2000 to 481 in 2001.[2] Additionally, anti-Muslim groups with agendas defined by the Southern Poverty Law Center as ‘hateful,’ including groups like ACT! for America and the American Freedom Defense Initiative, which are both headquartered in New York City. The second prerequisite to increased surveillance is war hysteria, which can be incited by political figures or the public sentiment of the time.[3] The third and final condition for increased policing is failure in political leadership. The wrongful accusations and unjust scapegoating from the Oval Office, in the current day and immediately after the 9/11 attacks, has left the American people to draw their individual conclusions on the motivations of the attackers—conclusions that at times have unjustly targeted the Muslim community.

The NYPD began its surveillance of Muslims in the greater New York Area by requesting permission to defer from the Handschu Agreement, which prevents indiscriminate surveillance without cause. A staple in the protection of citizens from discriminatory practice—the Handschu Agreement was created as a response to police surveillance of members of the Black Panthers in 1985. During the 1980’s, affiliates of the Black Panthers were tried in court using information obtained illegally, and the plaintiffs were acquitted after the jury heard of the illegal tactics employed by the NYPD in their obtainment of the information. After feeling the “chilling consequences” of increased surveillance and infiltration, the plaintiffs filed a class action lawsuit against the NYPD for its surveillance practices. In this lawsuit, Handschu vs. Special Services Division, the plaintiffs argued seven types of police activity was unconstitutional; three of these were the use of informers, electronic surveillance, and infiltration.[4]

After the NYPD was found guilty of violating the First Amendment, it agreed to a series of requirements known thenceforth as the Handschu Agreement. The police department agreed to protect citizens’ rights through provisions such as prohibiting the electronic recording of public events where no unlawful activity is actively taking place. In addition, only the Public Security Sector (PSS) of the Intelligence Division poses the authority to surveil political events. The PSS would be allowed no more than thirty days of unauthorized surveillance, after which it must request permission from a three person committee that includes one citizen. The PSS would additionally seek the committee’s permission to employ undercover agents. The Handschu Agreement provided a compromise between public safety and the protection of individual rights. Until 9/11, it seemed to strike a balance between policing and protection. Post-9/11, though, the rules of policing changed.

Immediately after 9/11, the NYPD challenged the existing Handschu guidelines as inhibiting investigations related to terrorism prevention. The Department argued in court that leaving the investigation of potential terrorism solely to the PSS would limit the entire Department’s ability to pursue pertinent leads. Additionally, the Department requested the FBI standards of investigation. Under the new FBI provisions, the NYPD would be allowed to conduct undercover investigations without approval from the committee, surveil areas where unlawful activity “has been, is, or may potentially” be taking place, and investigate indiscriminately with no external authority monitoring the investigations. The important prerequisite of suspicion of criminal activity in order to begin an investigation was also eliminated; thus, the NYPD could potentially investigate anybody out of mere personal bias. In his remarks at the conclusion of the trial, Judge Charles Haight recognized the potential constitutional violations that may result as a consequence of the enforcement of the modified Agreement but allowed the NYPD to surveil as they requested. His commentary provides the most explicit belief underlying the initiation of indiscriminate surveillance against Muslims: while the tactics and enforcement may violate the rights of citizens, it is necessary to combat “the public dangers of terrorism.” With the racial prejudice, war hysteria and failure of political leadership, the societal conditions and fear of another attack enabled the NYPD to violate the rights of Muslim citizens of the United States.

And this is a pattern that continues into our modern-day, as demonstrated when the Commissioner of the NYPD wrongly attempted to justify the targeted surveillance of Muslims. During this unlawful surveillance, corner stores across the New York City area were monitored and described by the ethnicity of their owners.[5] In the documents leaked by the Associated Press, there seems to be no other prerequisite for surveillance except being Muslim. Muslim Student Associations were infiltrated by undercover officers who described being encouraged to incite radical conversation to monitor how Muslim students reacted. When NYPD officers were asked to justify why it was legally sound to infiltrate the Muslim Student Associations of Columbia, UPenn, and Yale, they produced a “list of 12 individuals that had been radicalized and had additionally been a part of the Muslim Student Association at their colleges or universities.” These 12 individuals hadn’t been indoctrinated while members of their associations, but had been members while attending college. Given the members of Muslim Student Associations across the nation (Columbia’s MSA boasts over 1,000 members of its Facebook group alone), the ends simply do not seem to justify the means of surveilling Muslim communities across the Northeast. And given the current political climate and previous issues of surveillance, it is unfair that Muslim students in New York City must continually ask themselves: as I perform my daily activities, will I be monitored?

[1] “Anti-Muslim.” Southern Poverty Law Center, www.splcenter.org/fighting-hate/extremist-files/ideology/anti-muslim.

[2] Fleet, Josh. “History of Hate: Crimes Against Sikhs Since 9/11.” The Huffington Post. August 07, 2012. Accessed August 24, 2017. http://www.huffingtonpost.com/2012/08/07/history-of-hate-crimes-against-sikhs-since-911_n_1751841.html.

[3] Lane, Eric, On Madison, Muslims, and the New York City Police Department (November 30, 2012). Hofstra Law Review, Vol. 40, No. 3, 2012; Hofstra Univ. Legal Studies Research Paper No. 12-28. Available at SSRN: https://ssrn.com/abstract=2183343

[4] Handschu v. Special Services Division, 349 F. Supp. 766 – Dist. Court, SD New York 1972

[5] Goldman, Adam , and Matt Apuzzo. “With cameras, informants, NYPD eyed mosques.” Associated Press. December 20, 2016. Accessed August 27, 2017. https://www.ap.org/ap-in-the-news/2012/with-cameras-informants-nypd-eyed-mosques.