JURIST Guest Columnist Samar Warsi, a Senior Volunteer Attorney for the Muslim Civil Liberties Union, says that the recent revelations regarding NYPD surveillance of Muslims and Muslim-affiliated groups has serious implications for civil liberties in the US…

A string of articles by the Associated Press recently revealed the New York Police Department’s (NYPD) unwarranted surveillance of numerous law-abiding American Muslims. According to the reports, citizens who had no criminal record and no current link to any criminal activity were routinely observed and analyzed by law enforcement. The stated goal of the supervision was to identify and avert potential terror plots.

Law enforcement officers methodically set up surveillance programs throughout New York that monitored individuals at mosques, in Muslim neighborhoods, restaurants, parking lots, at work and even on school campuses. In fact, the NYPD followed the activity of Muslim Students Associations at over a dozen colleges throughout the state. Even in cases where there was no suspicious behavior to warrant documentation, police gathered information regarding an individual’s ethnicity, political views and the number of times an individual prayed. Documents also reveal that plainclothes officers infiltrated mosques, recorded sermons and scrutinized the content and discussions on Muslim-run websites.

New York Police Commissioner Ray Kelly and Mayor Michael Bloomberg have vehemently denied that Muslim groups were being targeted solely on the basis of religion, and insisted that the police department “only follows leads.” Documents later confirmed that the Demographics Unit of the NYPD targeted “ethnic communities”, particularly, individuals and groups with “ancestries of interest.” The police department maintains, however, that no racial profiling occurred and it targeted not just “Egyptians and Syrians, but Lebanese, Palestinians, Yemenis, Moroccans, Algerians and ‘Caucasians.'”

The NYPD’s approach seems to be operating under a preventive security paradigm and is reminiscent of the “Thought Police” in George Orwell’s novel 1984 whose principle objective consisted of monitoring thoughts that could be potentially threatening to the state. In his description of such tactics, Orwell writes:

There was of course no way of knowing whether you were being watched at any given moment … it was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live–did live, from habit that became instinct–in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.

Orwell’s words perfectly encapsulate the feeling of many Muslim individuals and groups who now simply presume that an FBI informant is present, monitoring and perhaps recording any given religious or political activity they are connected with.

The rampant police spying is also in clear violation of the guidelines laid out in Handschu v. Special Services Division, which limit the scope of the NYPD’s surveillance authority of lawful activity. These guidelines restrict the investigation of mere political activity unless the “NYPD has received ‘specific information’ that the person or group ‘is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime.'” Essentially, otherwise lawful, political activity may only be recorded if it is connected to illegal activity.

In this instance, the NYPD completely disregarded the safeguards set forth in the Handschu decree. Police officers indiscriminately collected data and compiled police records based on completely innocent activity even though the investigative findings conferred no benefit to the public or the state’s overall security. No effort was made to obtain specific and individualized information about particular citizens or groups to legitimize the investigation but, rather, the common denominator of religion made every Muslim a possible target. The sole reason for surveillance was religion in direct contravention of the First Amendment protections afforded by the US Constitution.

These police records were subsequently classified as “positive intelligence” meaning specific information regarding the individuals and groups would be entered and indefinitely kept on the FBI’s intelligence database. The classification of ordinary, lawful behavior as positive intelligence is problematic and without justification. Recording random information about individuals and groups when there is no link to any potentially criminal activity serves no legitimate purpose and only has the effect of marginalizing that individual or group. FBI agents who subsequently view this information will presume it is related to a legitimate investigation, thereby subjecting innocent individuals to unwarranted suspicion and scrutiny. The dissemination of this information could be highly detrimental to an individual’s reputation and overall standing in the community.

Furthermore, the continued surveillance could amount to a violation of the Equal Protection Clause of the Fourteenth Amendment. Under the Fourteen Amendment, the US government must treat all persons equally before the law. There is no evidence suggesting the NYPD monitored the activities of other religious groups under the pretext of national security. The documents simply show law enforcement targeted American Muslims, and individuals of Arab, Middle Eastern and South Asian descent.

The cornerstone of a free and democratic society is equality before the law and the absence of fear of being targeted arbitrarily. According to the RAND Corporation, there is “no statistically reliable link shown between … psycho-sociological features, nationality, religion or birthplace and their propensity for terrorism.” The unfettered surveillance practices of the NYPD seem to be endemic of a structural and institutionalized bias against Muslims in the US criminal justice system. It seems that the guise of national security and the War on Terror has given law enforcement a free pass to expand or limit the scope of their investigations on a whim. James Dempsey and David Cole argue in their book Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security that the latitude and “flexibility” afforded to law enforcement in investigating potential terror threats since September 11, 2001, has disproportionately affected Muslims, particularly through:

Strategies aimed at preventing future terrorist acts included extending detention without charge, criminalizing membership of organizations deemed or judged to be terrorist organizations, criminalization of association and engagement with groups deemed to be terrorist organizations, freezing of assets and criminalization of a broad range of conduct, not necessarily linked to any violent act, but deemed nonetheless terrorist-related.

It is critical to ensure that there is an effective and organized defense of the American Muslim community against arbitrary acts by any government entity. As civil rights lawyer, Shahid Buttar, recently noted:

A combination of public apathy about the state of civil liberties, pervasive stereotypes of Muslims as terrorists, and government misinformation about the efficacy of counterterrorism policies has facilitated increased surveillance and investigative authorities commonly found in police states.

It is foreseeable that unregulated police surveillance would naturally yield the result of uncovering more criminal activity. However, the framers of the Constitution deliberately and intentionally chose to limit the government’s reach through constitutional guarantees such as freedom of religion and equal protection. This demonstrates a fundamental belief in personal liberty and the basic right to be free of unwarranted government scrutiny. It is a core tenet of the American justice system and a principle that serves to eliminate the dangers of arbitrariness in the law.

It is vital to be cautious when government officials use glittering generalities such as “national security” and “counterterrorism” to legitimize acts and policies in clear contravention of basic constitutional guarantees. The danger with the repeated use of vague terms is that an increasing number of civil liberties can be stripped under their auspices. The concept of counterterrorism, while undeniably a compelling state interest, has usurped the conversation and created an overbearing umbrella under which every related topic must be viewed. In essence, it presupposes a baseline for every conversation and creates a dichotomous rhetoric that dictates a very limited range of “you’re either with us or against us” debate. This divisive underlying assumption damages a society’s ability to engage in free and uninhibited discourse and ultimately stunts honest and productive dialogue.

Legitimate questions must be asked: What implications does the erosion of one group’s civil liberties have on society at large? How can states guard against terror threats without compromising individual rights? What role do government policies play in shaping the perception of Islam within society?

Threatening one group’s civil liberties makes every other group in the nation vulnerable. Every individual and group has a vested interest in protecting the basic civil rights and integrity of the other group. We cannot allow a system in which a group’s superficial traits are used to make assumptions about that group’s predisposition for terrorism. There must be a collective outrage and demand for redress when any single group is affected by intrusive and unwarranted practices by law enforcement.

The nation and each state should undoubtedly remain vigilant to any potential terror threats; however, investigations should be conducted within the boundaries set by law. Guarding against terror threats can be achieved without violating the rights of innocent Americans. The government has a duty to develop clear, consistent and accountable policies that focus on behavior rather than ethos and to apply laws evenly across the population.

Samar Warsi is a Senior Volunteer Attorney for the Muslim Civil Liberties Union and a civil litigation attorney with the NNK Legal Group. She holds a BA in Political Science from McMasters University and graduated with a JD from Oklahoma City University School of Law.

Suggested citation: Samar Warsi, Stigma and Suspicion: NYPD Surveillance of Muslims, JURIST – Hotline, May 9, 2012, http://jurist.org/hotline/2012/05/samar-warsi-muslim-surveillance.php.