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How the NYPD Slipped Blanket Surveillance of American Muslims Past the Courts—and the People | The Nation

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How the NYPD Slipped Blanket Surveillance of American Muslims Past the Courts—and the People

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What prevents government from singling out a religious or political group for heightened, invasive surveillance and coercive recruitment into the ranks of state informants? In the Big Apple, the answer seems to be, not much.

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Aziz Huq
Aziz Huq is an assistant professor at the University of Chicago Law School, and previously litigated national security...

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In August, the Associated Press’s Matt Apuzzo and Adam Goldman reported that the NYPD, with training and support from the CIA, has developed an extensive network of informants, long-term undercover officers and agents provocateurs targeting New York’s Muslim communities.

A so-called “Demographic Unit” and a “Terrorist Interdiction Unit” within the New York Police Department (NYPD) deployed “mosque crawlers” and “rakers” to trawl Muslim, Arab and South Asian communities to “rake the coals, looking for hot spots.” Allegedly, these units have singled out businesses and civil associations for monitoring based on citizens’ First Amendment–protected speech. And they exploit arrest and charging discretion powers to “leverage” people from those communities into becoming informants against their friends and neighbors.

You might think that the Constitution provides recourse against such measures. Indeed, the framers thought they were going out of their way to protect unpopular minorities—both through the structure of government (specifically, both the system of checks and balances and also the divide between the federal government and the states) and also through the Bill of Rights. But we are learning that neither is absolute. The NYPD program illustrates how both can dismally fail to protect minority groups in the absence of sufficient public attention and political will.

The NYPD has denied Apuzzo and Goldman’s story, although the latter claim independent corroboration from inside sources. Independent evidence from past criminal trials also points to the pervasive use of informants and “rakers” in New York’s Muslim communities.

Given the NYPD’s history, I do not find their denial credible. Even apart from the collaborating evidence, there is ample reason to believe the AP story.

In August 2007, the NYPD released a new counterterrorism strategy that had as its stated aim “to assist policy makers and law enforcement officials” in identifying dangerous terrorist “radicals.” Cherry-picking details from five “case studies,” the NYPD proclaimed that it had found “typical signatures” of terrorist radicalization—wearing “traditional Islamic clothing,” “growing a beard and “becoming involved in social activism and community issues.” Arab, Muslim and South Asian groups—with whom I worked at the time—were deeply alarmed by the implications of these claims, and queried the NYPD about whether they were the basis of actual policy. Then, as now, the NYPD claimed that it had solely lighted on a way to identify terrorists—and was not putting its so-called insights into practice through instructions to cops engaged in terrorism-related investigations or simply patrolling local beats. It would be astonishing if an institution that takes elaborate pains to portray itself as ultra-competent on terrorism matters would fail to follow its own policy recommendations. Far more plausibly, their denials are hollow.

To begin, the NYPD has a record of trying to provide security for New Yorkers by infringing on the rights of racial minorities. In 2010, the NYPD reported a record 601,055 stops-and-frisks, 85 percent of which targeted minority residents. But empirical studies of stop-and-frisk suggest the practice did little to push down crime rates faster than in other cities. The harassing of minorities pioneered in New York coheres with a conservative rhetoric of “tough on crime”; it reinforces the notion of a law-abiding “us” and a disruptive “them.” It buys not only a perception of security but also a moral self-righteousness based on the belief that crime is a problem caused by someone else.

Moreover, the NYPD has a history of targeting those with ideological differences—and recently obtained permission to loosen safeguards around surveillance. In 1971, left-of-center activists led by Barbra Handschu lodged a complaint against the NYPD alleging wiretapping, eavesdropping and infiltration of political gatherings. The resulting settlement decree—the Handschu degree—forced the NYPD to install new guidelines limiting the monitoring and retention of information about political activities in their Patrolman’s Handbook. But in 2002, spooked by the shadow of 9/11, a federal district court judge allowed its substantial modification. Rather than focusing on alleged terrorists, the NYPD quickly returned to old habits of targeting political activists around the 2004 Republican National Convention.

The Apuzzo-Goldman story has been roundly ignored in a media that equates liberty with “the freedom not to buy health insurance while others perish from lack of health coverage.” The absence of a response shows how acclimatized many have become to the idea that security is produced by disciplining minority groups. But the NYPD’s large-scale religious profiling and coercive exploitation of police powers speaks volumes about the state of our rights, and the division of power between the federal government and the states that is embedded in the Constitution. Both rights and federalism were seen by the Framers as important safeguards of liberty. Today their protective roles are less clear.

Take first the “federalism” dimension of the Constitution, which is what opponents of the Affordable Care Act (ACA) have seized upon to justify their polemics against the law. Today’s states’ rights supporters claim the ACA is unconstitutional by arguing that preserving by separate spheres of sovereign, the Constitution generates greater individual liberty because state governments are closer to the people than the federal government.

The NYPD program, however, illustrates the opposite dynamic—how federalism can abet the narrowing of individual rights. After 9/11, there has been a migration of security powers down to the local and state level without a corresponding increase in the capacity or willingness of elected governments at those levels to oversee those powers. This often takes the form of “joint terrorism task forces,” existing in 106 cities, which the ACLU has credibly accused of domestic surveillance of political protests. But the NYPD program is unique in its entanglement with the CIA (which is barred by statute from taking on “internal security” functions). Overstretched city and state government have no capacity to conduct any meaningful oversight of new local security functions. Intelligence committees in Congress, by contrast, lack bandwidth to deal not only with the serious rights issues raised by overseas counterterrorism but also the subtle and insidious creep of domestic counterterrorism powers.

New York City is just an extreme example of the resulting accountability gap. City Hall benefits from the perception of a highly competent police department, but fails even to end egregious practices. The City shelled out $500 millions in damages judgments in civil rights actions brought by those harassed or treated improperly by police in the last five years from general coffers, asking few questions about why the toll is so high or about what could be done to lower it. At the same time, the NYPD is willing to take extreme, perhaps illegal, measures to prevent information-leaking from its ranks. Under these circumstances, it seems very unlikely that local politicians will either learn or have the political stomach to act on abuses of the NYPD’s national security powers.

National security federalism in New York thus generates a democratic vacuum. This gap creates a risk of constitutional violations that will never be exposed, let alone redressed. And it means the NYPD has no incentive to reform institutional structures to prevent abuses in the first place. That federal agencies with records of troubling domestic rights violations such as the CIA have stepped into this blind spot should be cause for even more worry.

What of the Constitution’s rights protections? Policing measures targeting racial or religious minorities are supposed to be subject to the strictest scrutiny—although it is sobering to recall that the Supreme Court in 1944 applied such exacting scrutiny to the Japanese-American internment, and upheld it as a proportional wartime security measure.

And rights protections are not self-enforcing. Jim Crow, for example, did not come undone because politicians and cops across the South happened upon the Fourteenth Amendment’s equality guarantee in their Sunday reading. We have come to rely on the federal courts to enforce rights. But as the 2002 derogation of the Handschu consent decree underscores, the federal bench (which, incidentally, is disproportionately composed of former prosecutors) has a mixed record in accurately gauging the constraints necessary to ensure the protection of minority constitutional interests, a record that has not improved with Bush II appointments.

More generally, the NYPD can still trade on a vague public sense that extensive profiling and coercion of religious and ethnic minorities is just the price of public safety in the post-9/11 era. In fact, there is good reason to believe that the kind of alleged dragnet cast onto New York’s Muslims is both unnecessary and counterproductive.

It is unnecessary not only because the threat of terrorism does not come solely from Muslims—as the tragic events of July 2011 on Utøya Island in Norway show—but also because the American Muslim population does not pose a uniform terrorism threat. In the decade after 9/11, the million-plus population of American Muslims has singularly failed to respond to Al Qaeda’s calls, despite being repeatedly subject to discriminatory policing treatment and public calumny. Recent survey data shows that American Muslims are in fact less approving of political violence and most optimistic about American democracy than their cocitizens. Although the NYPD will never concede as much, it is not the building of dense networks of informants that keeps the country safe—it is the resilience of communities and private individuals.

Moreover, as a recent Mother Jones analysis demonstrates, all but three of the most high-profile terrorism arrests in the US have been manufactured by FBI or police stings and agent provocateurs. A domestic threat manufactured by overzealous cops and cash-hungry informants is hardly one worth abusing rights to forestall.

And even if the NYPD was right that there was a large domestic threat that warranted blanket surveillance of Muslim communities, the measures it is alleged to have taken would be counterproductive. Consider matters from the perspective of a putative terrorist. Long before the Apuzzo-Goldman story, the NYPD emphasized to all who would listen that its fiscal and operational investments in counterterrorism set it apart from all other American cities. The lesson for the rational terrorist is clear: avoid New York like the plague and favor sites where policing investments are lower; the United States has no shortage of vulnerable airports, transit networks, and poorly protected industrial infrastructure. If the NYPD were right about the magnitude of the domestic terrorism threat, it would have exported that risk to the rest of the country. That this has not happened is simply further evidence that the domestic threat has been exaggerated.

The NYPD’s long history of racial profiling, ideological narrow-mindedness and unaccountability secrecy may have made inevitable a domestic intelligence operation that would have fit perfectly in 1950s East Germany. But that doesn’t mean public apathy should follow. As discomfort with the NYPD’s treatment of African-Americans grows, discomfort with its approach to Muslims, South Asians and Arabs should be next on the list.

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