PHILADELPHIA (CN) - A jittered lawyer for New York City faced relentless questioning by the 3rd Circuit on Tuesday as he tried to show that a surveillance program targeting Muslims in New Jersey residents was neither discriminatory nor harmful.
If the three-judge panel reverses dismissal of the case, Syed Hassan and other Muslims will get another chance to show that animus toward Muslims motivated NYC's "secret spying program," which the Associated Press exposed in a 2011 series of articles about a division of the NYPD known as the "Demographics Unit."
City attorney Peter Farrell appeared as surprised as onlookers in the packed courtroom at the rapid-fire questioning he endured.
New York has held that the surveillance program, instituted after the terrorist attacks of Sept. 11, 2001, was not a formally codified program or police, but an informal practice.
"What's the difference between a program and a practice?" Judge Julio Fuentes asked.
"With a program, it must be drawn from the acts alleged," Farrell said.
"What was the program in existence in 2002?" asked Judge Thomas Ambro.
"By plaintiff's allegation, it was all the things they allege," Farrell said.
After about 10 minutes, Ambro said, "We're going round and round."
Echoing the reasons U.S. District Judge William Martini gave for dismissing the case last year, Farrell argued that any harm caused to the surveiled people was in fact inflicted by the AP's reporting.
Martini had noted that "none of the plaintiffs' injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents."
The AP report described a program "so secretive even the city's mayor says he was kept in the dark." It characterized the photographs that plainclothes police officers took of businesses and mosques as an expansion of the New York City Police Department's surveillance activities beyond the statutory limits.
Judge Jane Roth countered that the AP's report may be said to "strengthen the position that the policy was aimed at Muslims."
Though Farrell countered that the damages inflicted were not concrete, Judge Fuentes said the allegations indicate otherwise.
"If I knew you were looking at my business and photographing my business, and if customers of that business knew that, then I wouldn't want to go in there," Fuentes said. "Isn't that an injury?"
Farrell responded that "those injuries are based on subjective fears."
Judge Ambro demurred. "The mosque objectively has fewer attendees coming in; the business objectively has less money coming in," he said.
In a swifter exchange with the judges, Baher Azmy, the attorney for the Muslim plaintiffs, called the surveillance program "a blunderbuss, suspicionless program based on nothing other than individuals' religiosity."
"It's not based on any indicia of suspicion whatsoever," Asmy added.
The plaintiffs say that the targeting of Muslims based on their religious affiliation causes its own damages, even without diminished attendance of their establishments.
Farrell argued that the connection between the Muslims and terrorism had to be only "plausible" to rationalize surveillance.
Judge Roth seemed skeptical. "It's amazing what has become plausible in the 10 years since 9/11," she said.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.