Lawyers representing a group of New Jersey Muslims in a landmark case are hopeful of reversing a controversial decision in the district court, which would allow their clients to proceed with a challenge against the NYPD’s post-9/11 mass surveillance programme.
The Hassan v City of New York case, which sees 11 plaintiffs; an Iraq war veteran, university students, a coalition of mosques, and the head of a religious school for girls – all Muslims from New Jersey subjected to indiscriminate surveillance by the NYPD, was heard in the court of appeal on Tuesday after being dismissed by a district court last February.
Justice William Martini found last year that the “motive of the [surveillance] programme was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among among ordinary, law-abiding Muslims”.
Following Tuesday’s federal appeals hearing in Philadelphia, lawyers representing the plaintiffs told the Guardian they believed the panel of three judges, who are not expected to issue a formal opinion in the case for a number of months, appeared more sympathetic.
“The court got it. They understood that this is a widespread broad-based programme that selects people on a term that’s a protected characteristic – religion. That’s presumptively unconstitutional. They understood that,” said the Center for Constitutional Rights legal director, Baher Azmy.
Up to 200 people rallied outside the courtroom, which was filled to capacity during the hearing.
The extent of the surveillance programme, which was devised in the aftermath of 9/11, was exposed in a series of Pulitzer prize-winning reports by the Associated Press in 2011. The programme produced no convictions.
The NYPD dispatched plainclothes officers or “rakers” to Muslim neighbourhoods in New Jersey, monitoring bookstores, bars, nightclubs and cafes. Rakers would compile surveillance papers, which according to plaintiff documents filed with the court of appealwould “catalogue religiously oriented facts” such as:
Muslim prayer mats hanging on restaurant walls
flyers posted in shops advertising for Quranic tutoring
pictures of mosques hanging in grocery stores
restaurants that serve “religious Muslims” or that are located near mosques
customers visiting Dunkin’ Donuts after Friday prayer
employees or customers of establishments observed wearing “traditional clothing”
stores posting signs announcing that they will be closed in observance of Friday prayer.
The NYPD employed informants or “mosque crawlers” to monitor sermons and conversations inside mosques where there was no evidence of wrongdoing. The NYPD, the appeal documents say, “has tried to insert informants inside every mosque within a 250-mile radius of New York City; it has also prepared an analytical report on every mosque within 100 miles”.
The police force’s “demographics unit” – disbanded by the NYPD commissioner, Bill Bratton, in 2014 – targeted “ancestries of interest” a designated list of 28 countries associated with the Muslim faith along with “American black Muslims”.
All this – along with other tactics – resulted in the plaintiffs complaining they feared discussing their faith in public and were forced to cut down their attendance to mosque.
Following Tuesday’s hearing Farhaj Hassan, the lead plaintiff and a US army reservist told the Guardian the programme had meant he stopped attending one of the mosques under surveillance “out of fear of future for my career in the United States army” and cut back his attendance on another two.
Hassan added that the city of New York’s decision to continue opposing the case was “extremely saddening”.
“I expected more from him [New York City mayor Bill De Blasio],” Hassan said. “It’s painful that Mayor De Blasio thinks that American Muslims should be treated like second-class citizens by his police force.”
Last February Justice Martini was not persuaded by the plaintiffs’ legal team, who argued the programme was in violation of the first and 14th amendments, enshrining the rights to practise religion.
Martini found the plaintiffs had been unable to prove they had been targeted for their religion and thus had not been able to prove any injury incurred.
In a twist that further alarmed civil liberties group, Martini’s ruling continued that it was the AP who was responsible for the plaintiffs’ documented grievances: “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 harms are not ‘fairly traceable’ to any act of surveillance.”