Muslim Critics of NYPD Spying Given Tough Time in First Hearing
BROOKLYN, N.Y. (CN) - A federal magistrate appeared skeptical Thursday that discrimination is the NYPD's sole motivation for its surveillance of certain Muslims.
Three men, two mosques and a charity, represented by the American Civil Liberties Union and other nonprofits, had sued New York City and its officers in June claiming that a "Muslim surveillance program" had "imposed an unjustified badge of suspicion and stigma on hundreds of thousands of innocent New Yorkers."
Spreading fear and suspicion upon their communities, the NYPD had mapped Muslim institutions, sent informants to monitor their services and meetings, and installed a camera outside of a mosque, according to the complaint. For the most part, the NYPD admitted conducting the surveillance but insisted it was justified and tailored to reasonable suspicion toward the ACLU's plaintiffs.
City lawyer Peter Farrell elaborated upon the allegations against the plaintiffs' supposed terrorism ties in a six-page letter Tuesday to U.S. Magistrate Judge Joan Azrack
Hina Shamsi of the ACLU shot back the next day that the city's claims relied upon "inflammatory insinuation and innuendo."
Hearing oral arguments for the first time hours after receiving this correspondence, Judge Azrack remarked that the city's claims were "fairly particularized."
Among other details, it provides the rap sheets of worshippers and lecturers that visited two of the plaintiff mosques: Masjid At-Taqwa and Masjid Al-Ansar.
"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 At-Taqwa, and its current imam, nonparty Siraj Wahhaj, was named as an "unindicted co-conspirator" in the same conspiracy, the city's letter says.
The NYPD says that subway bomb plotter Najibullah Zazi, who was convicted in the same courthouse, attended a lecture at Al-Ansar.
While Shimsa repeated her position that the claims were nothing more than "guilt by the most attenuated and unwitting association," the judge appeared to be unconvinced.
"Is it your position that none of the facts [in the city's letter] could constitute reasonable suspicion?" Azrack asked, later pressing the lawyer on whether the NYPD's interest in her clients was based "purely" in religious discrimination.
Holding her ground, Shimsa insisted that it was.
Sitting among the spectators in court during arguments was lead plaintiff Hamid Raza, an imam for Al-Ansar. The city's letter makes no allegations against him, except to name him in association with mosque visitors suspected of crimes.
The NYPD reported what seems to be a secondhand allegation that another plaintiff, Asad "Ace" Dandia, who helps operate the nonprofit charity Muslims Giving Back, tried to organize a trip to Pakistan to train with extremists.
Police allegedly trailed the final plaintiff, Mohammad Elshinawy, at his wedding. A lecturer, Elshinawy said he changed the content of his talks for fear of being misinterpreted.
City lawyers claim he has spoken sympathetically of religious violence. They want to test their claims of suspicionless surveillance by "bifurcating" - or dividing - 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.
If the city finds reasonable suspicion against the plaintiffs in Phase I, "that's it. The case is over," Farrell said. He added that the case would continue should the city not meet its burden.
Shamsi urged the judge not to let the city use discovery as a "sword" to attack the plaintiffs' standing to sue, and a "shield" to protect their internal documents. She noted that "there is a great deal of public information now" supporting the allegation that the NYPD surveillance sweeps over many innocent Muslims.
She repeatedly cited revelations of the "Terrorism Enterprise Investigation," or TEI, tag, that allows the NYPD's broad spying powers against anyone who enters that institution.
The Associated Press reported that Al-Ansar and other mosques were given that designation, opening up to investigations so potentially intrusive that even the FBI declined to use it.
Shimsa compared the tactic to subjecting to St. Patrick's Cathedral and its worshippers to mass surveillance if the police found criminal activity there.
Judge Azrack reserved decision on the matter.