Ugly Fight Ahead Over NYC Muslim Surveillance
(CN) - With their first court battle hours away Thursday, Muslims opposing police surveillance of their communities decried the "inflammatory insinuation and innuendo" in a recent letter from New York City on their supposed terrorism ties.
The group, which includes imams, mosques and Muslim charities represented by the American Civil Liberties Union, had sued New York City, Mayor Michael Bloomberg, Police Commissioner Ray Kelly and Deputy Commissioner of Intelligence David Cohen in June.
They said the NYPD had infiltrated their communities without reasonable suspicion.
Though it denied every allegation of the 164-paragraph complaint, the city acknowledged that the NYPD kept tabs on each of the plaintiffs, installed a surveillance camera near one of the mosques, and sent a confidential informant into their meetings and services.
That informant, Shamiur Rahman, outed himself to his targets on Facebook before publicly renouncing his police employment. He told the Associated Press that the NYPD paid him to "bait" Muslims into making incriminating remarks.
City lawyers defended the NYPD's tactics as serving a "legitimate government interest of investigating and deterring potential unlawful activity, not any kind of unlawful religious profiling," in a six-page letter Tuesday.
The letter takes aim at one of the plaintiff mosques, Masjid At-Taqwa, for its "lengthy history of suspected criminal activity, some of it terroristic in nature."
City lawyers also claimed that the police have "information" that the security team for the mosque and "certain attendees" have illegally trafficked weapons there.
"Blind Sheikh" Omar Abdel Rahman, who is serving a life sentence for his role in a plot to bomb New York City landmarks in the mid-1990s, lectured at the mosque, and its current imam, nonparty Siraj Wahhaj, was named as an "unindicted co-conspirator" in the same conspiracy, the letter states.
Since an "unindicted co-conspirator" is not charged with a crime, he cannot contest the allegations against him. Prosecutors designate people and organizations with this label to gain admission of evidence that might otherwise be dismissed as hearsay.
Muslim groups like the Council on American-Islamic Relations have tried to fight such a designation in a case against the Holy Land Foundation, which a federal jury in Texas convicted of giving money to Hamas.
A recent investigation by the Association Press revealed that the NYPD initiated a "terroristic enterprise investigation," or TEI, against other mosques including plaintiff Masjid Al-Ansar.
The tag made any worshipper "fair game for surveillance," the article revealed.
Its authors Matt Apuzzo and Adam Goldman, who recently wrote the book "Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America," reported that the TEI designation is so potentially invasive that the FBI would not touch it.
Al-Ansar co-founder Abdel Hameed Shehadeh was found guilty of lying to federal agents about his plan to travel to Pakistan to fight U.S. forces on behalf of the Taliban or al-Qaida, the city's letter states. The NYPD says that convicted subway bomb plotters Najibullah Zazi, Zarein Ahmedzay and Adis Medunjanin, and others convicted of terrorism crimes, had attended lectures at Al-Ansar.
The letter makes no allegation against Al-Ansar imam Hassan Raza, another of the plaintiffs, except to list him among its more notorious visitors, lecturers or members.
Religious lecturer Mohammad Elshinawy, another Al-Ansar congregant who is a plaintiff to the lawsuit, is described by the ACLU as a lecturer on Islam who has altered the content of his talks for fear of by "misreported to or misinterpreted by the NYPD."
Meanwhile the NYPD accuses him of having "made statements and conducted activities in support of violent jihad," as well as having delivered lectures "encouraging attendees to follow in the footsteps of Muslims who died while promoting violent jihad against non-Muslims."
The letter provides no examples, however, of the alleged statements.
It cites "media reports" indicating that the FBI investigated him, but it omits mention of the anonymous federal agent whom the AP quoted as saying that the probe was dropped for lack of evidence.
Elshinawy's father was named as an "unindicted co-conspirator" in the 1993 World Trade Center attacks, the NYPD says.
The letter also tarnishes the final two plaintiffs: nonprofit charity group Muslims Giving Back and its vice president Asad "Ace" Dandia.
NYPD information shows that Dandia "advocated for violence against Shiite Muslims" and allegedly tried to organize a trip to Pakistan to train among extremists, according to the letter.
The city also says that a "close associate" of Dandia pleaded guilty to attempting to provide material support to al-Qaida in the Arabian Peninsula.
New York City lawyer Peter Farrell, the author of the letter, offered to supplement these claims in a sealed filing. He said U.S. Magistrate Judge Joan Azrack should "bifurcate" - or divide - discovery in the case into two phases. The first would probe whether the plaintiffs have standing to sue for a violation of their constitutional rights.
Under the city's plan the plaintiffs would then have to fight off the city's motion to dismiss the case before trying to gain access to internal NYPD documents.
The ACLU, by its attorney Hina Shamsi, replied to the proposal Wednesday afternoon.
Shamsi said that the city's letter "vilifies our clients through inflammatory insinuation and innuendo, suggesting that plaintiffs are worthy of criminal investigation on the basis of First Amendment-protected speech, activities, or attenuated - and unwitting - association alone."
"The strategy is a deliberate distraction at best; at worst, it verges on the very type of discriminatory and meritless profiling at the heart of this lawsuit," Shamsi added.
To establish standing in a civil suit, the plaintiffs must show that the surveillance trampled on their rights and caused them harm.
Shamsi said these elements are "not in question in this suit" because of the NYPD's admitted surveillance, and the effects it allegedly had on her clients. The imams and mosques among the plaintiffs have claimed that they have "curtailed religious guidance and personal counseling," and fear of surveillance has "diminished congregants' attendance," her letter states.
Undue NYPD attention also depleted donations to Muslims Giving Back, "interfering with their mission of promoting and providing charity to needy New Yorkers in fulfilling one of Islam's primary tenets," Shamsi added.
Elshinawy claims police attention has damaged his reputation and ability to lecture.
Separating these issues from the NYPD's surveillance practices is "impractical, unreasonable and illogical," Shamsi wrote.
"In short, defendants are not entitled to bifurcate discovery in a manner that would allow them to divorce their surveillance of plaintiffs from the programmatic religious discrimination at the core of this lawsuit," she added. "Indeed, plaintiffs would be gravely disadvantaged by a process that forbids the discovery of relevant evidence - especially as to the scope of the surveillance policy and defendants' discriminatory intent - until after the NYPD pursues one-sided discovery. By proposing a bifurcated discovery and summary judgment schedule, defendants are creating an end-run around the constitutional claims at the core of this case." (Emphasis in original)
The parties will argue these positions when they meet for the first time in court on Thursday afternoon.