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Did the NYPD’s Spying on Muslims Violate the Law?

We interview an expert and explore whether the New York police crossed the line.

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Students watch statements by New York City Mayor Michael Bloomberg during a round-table discussion at the Islamic Center at New York University on Feb. 24, 2012. (Frank Franklin II/AP Photo)

Last August, the Associated Press launched a series detailing how the New York Police Department has extensively investigated Muslims in New York and other states, preparing reports on mosques and Muslim-owned businesses, apparently without any suspicion of crimes have been committed.

The propriety and legality of the NYPD's activities is being disputed. Mayor Michael Bloomberg, who claimed last year that the NYPD does not focus on religion and only follows threats or leads, is now arguing that, as he said last week, "Everything the NYPD has done is legal, it is appropriate, it is constitutional." Others disagree. In fact, Bloomberg himself signed a law in 2004 that prohibits profiling by law enforcement personnel based on religion.

This week, U.S. Attorney General Eric Holder told a congressional committee that the Justice Department is reviewing whether to investigate potential civil rights violations by the NYPD.

To get a better understanding of the rules governing the NYPD — and whether the department has followed them in its surveillance of Muslims — we spoke to Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center at NYU School of Law.

 

The NYPD did not respond to our request for comment about allegations it has violated the law.

ProPublica: So, Mayor Bloomberg and Police Commissioner Ray Kelly have said everything that the NYPD did was legal and constitutional. Others have disagreed. Newark Mayor Cory Booker, for example, said wholesale surveillance of a community without suspicion of a crime "clearly crosses a line." What restrictions is the NYPD operating under?

Patel: They are operating under at least three sets of rules. The first and most basic set of rules is the consent decree from the Handschu case — the so-called Handschu guidelines. This was a 1970s-era political surveillance case that was settled through a consent decree. The NYPD had been conducting surveillance of a number of political groups in the 1960s and '70s. The initial consent decree regulated the NYPD's collection of intelligence about political activity. It first said the NYPD can only collect intelligence about political activities if it follows certain rules. For example, the NYPD had to get clearance from something called the Handschu authority, which was a three-member board that consisted of two high-level police officials and one civilian appointed by the mayor.

Then, post-9/11, the NYPD went to court and asked a judge to review the consent decree because they wanted greater freedom in their counterterrorism operations. What they wound up doing was adopting guidelines based on the FBI's guidelines from 2003, issued by Attorney General John Ashcroft. These were different in several important ways. The first was that there was no pre-clearance at all ... no requirement that the NYPD get approval from the Handschu authority before they undertook any intel gathering about political activity. The second was that the guidelines explicitly say the NYPD can attend any public event or gathering on the same basis as another member of the public. So, if I can go to a church, the NYPD can go to a church. But it goes on to say that the NYPD can't retain the information it gathers from such public events unless it is connected to suspected criminal or terrorist activity.

ProPublica: So, if you look at, say, the NYPD's guide to Newark's Muslim community obtained and published by AP — which maps out mosques and Muslim-owned businesses without mentioning any suspected crimes — aren't the police retaining exactly this kind of information?

Patel: There are a couple of documents that suggest they may have violated Handschu — for example, the [2006 NYPD report] on the Danish cartoon controversy, which is a collection of statements in mosques and other places that have been taken by undercover officers or confidential informants.

ProPublica: What other rules does the NYPD operate under?

Patel: The second set is that the NYPD has a profiling order in place, and New York City also has a racial profiling law. They are slightly different. The NYPD order [issued in 2002] does not include religion among the categories that they define as profiling. But the New York City law does. It prohibits police officers from relying on race, ethnicity, religion or national origin as a determinative factor in initiating law enforcement action. Normally, you have quite a difficult time in racial profiling cases showing they've used one of these factors as the determinative factor. In this case, if you look at the documents, it seems quite clear that the NYPD had its eyes quite firmly on the Muslim community, so it's possible it is also in violation of this law.

The third set of rules is, of course, the U.S. and New York state constitutions. Within the [U.S.] Constitution, you're looking at at least two broad categories of provisions — potential First Amendment claims for free speech, freedom of association and free exercise of religion. The other piece of it would be potential equal protection claims.

ProPublica: Another AP story this week reported that federal grant money and equipment were used in the NYPD surveillance and investigation of the Muslim community. Does that muddy the legal questions about whether the police were following federal rules?

Patel: The federal program that was giving them money is the HIDTA program — High Intensity Drug Trafficking Area. It's geared toward providing funds to combat drug trafficking. HIDTA itself does allow for counterterrorism spending to be an incidental purpose. It requires the HIDTA executive board to basically make sure that funds were being used for the purposes that they were supposed to be used for. So, I think there's a real issue about accountability and oversight of the use of HIDTA funds here.

ProPublica: So, if the NYPD did potentially violate the Handschu guidelines and city law you mentioned, what are the penalties?

Patel: Well, the Handschu lawyers already went to court last year and told the judge that the documents that had been released by the AP suggested that there had been violations of the Handschu decree. They asked for discovery so they could check the files of the NYPD to see whether they had violated the prohibition on keeping dossiers. I believe that that discovery will likely be starting soon. So, there's clearly a remedy through the Handschu mechanism. Because it's a consent decree, it's an ongoing thing. The judge has supervisory jurisdiction. There are also issues under the racial profiling law and under the First Amendment.

We've also turned to the question of oversight. The FBI, for all its faults, does have a fair amount of oversight — an inspector general internally and congressional oversight. We think a similar thing would be a great idea for the NYPD.

Me, I don’t like that bit about the NYPD playing “in other states”.  Can I send my cops to perform a little judicious intelligence gathering in NYC to ascertain whether or not NYC corruption hitched a ride with their cops and likewise went outside of its jurisdiction?

Muslin extremist are America’s enemy and there are Mosque’s in this country that support them, yet I hear very little of the good Muslin’s actively condemming this, we can;t sit passively and wait for the next attack, so they all suffer the consequence . too bad but that’s the way it is. Keep the heat on Bloomberg.

Makes me glad I don’t attend church; somebody could use the argument of “n c petitte” to harass and invade the privacy of all Christians.

Yeah it went too far. I hope that the doj can also look into the illegal stop and frisks theyve been doing. I was roughed up by undercover cops joy riding in a white van on my own block in a good neighborhood. These nasty people have been given free reign by their commander who i suspect likes seeing residents treated like animals.

Why shouldn’t they keep dossiers in an ongoing threat? We’re talking about prevention.

@xmaseveeve:  So you wouldn’t mind if somebody labeled you and your family a threat?  That is actually pretty easy to do…and then you would have your very own dossier!

And a spot on the “no-fly” list, of course.

I’d feel a lot better about all of this “officially authorized bias” if, say, Bloomberg were leading the charge to wean America from our addiction to oil.

If it hadn’t been for the Republican success at enforcing America’s oil addiction post-1973 oil embargo, then the Middle Eastern nations wouldn’t have had the money to buy the weapons they use to threaten Israel and the world…or the money to “donate” to Islamic fundamentalist terrorism.

Of course without that oil addiction, wouldn’t be any American presence in the Middle East to fire those fundamentalists up…wouldn’t have been any Kuwait war…wouldn’t have been any Iraq war…wouldn’t have been any 9/11…

Everybody who has decided that it is OK to hate all Muslims for 9/11 should spare a little spite for the Republicans now and again.

This is a culture that N.Y.er’s allowed to fester when Rudy was Mayor where he was allowed to break the law in order to enforce it.

” A bad beginning makes a bad ending.”  ...Eueipides…

Whatcha trying to say, Jake Thornton?  All Muslims are the enemy because some Muslims turned into mad dogs? 

So that means that it is OK for African Americans to pursue vendetta against Caucasians for what they did, right?  And it is OK for Native Americans to pursue vendetta against everybody who ain’t Native American for what they did?  And it is OK for women to pursue vendetta against men for what Ted Bundy, Robert Hansen, and Robert Lee Yates did?  And it is OK for Jews to pursue vendetta against Christians for the Inquisition and various other pogroms authorized by the Vatican?

And it is OK for Muslims to pursue vendetta against Christians for the Crusades…oh, wait…that one, I bet you don’t agree with.

My point is when somebody commits a crime - even a most heinous one, like 9/11 - it is just a crime…perhaps a horrible crime…one so very heinous that the perps name themselves no more than mad dogs like a Ted Bundy or a Mohamed Atta.  Those who aid and abet them are likewise nothing but criminals.

To grant such the benefit of a religious label is to sanctify their usurpation of the power of God.  God didn’t put innocents on this earth specifically to be murdered - yet some would claim the right to seize that power?  Some would claim the right to levy the ultimate penalty upon those who did no wrong?

The 9/11 hijackers, al Qaida, serial killers…just criminals.  Criminals to be hunted down like mad dogs and incarcerated or terminated as the situation warrants.  But just as one mad dog does not make the breed or the species a threat, one bad human who attempts to usurp the authority of [enter religion here] does not make that entire religion bad.

To label all Muslims a threat is to both wrongly smear a religion and empower those mad dogs.  Me, I don’t see empowering mad dogs (especially with war just because war suits my political and financial objectives) as wisdom; I see it as stupidity.  Criminals require police efforts and the application of precision force to eliminate the problem - sufficient force, and no more.

On a micro level, imagine if doctors took the same approach as so many do when they label all Muslims bad because one or some Muslims are bad:  “You have a wart.  I am afraid that I must destroy your body.”

lollll…sheesh…you remove the wart, and get on with life like you were put on this Earth to do.

Me, I’d just as soon humans stopped using the excuse that it is “OK” to hate all humans of some common characteristic because one or a few humans having that characteristic did something bad.  That creates two sets of evil-doers:  The original criminal, and those humans who subsequently use that crime as an excuse to hate innocents - and even as an excuse for the commission of crimes against innocents.

Makes me think humans are slow learners…“developmentally challenged”, as a species.  Good thing I’m nobody important, God-wise; I have limited patience. 

But worst of all?  Those who would take freedom and wealth from the many in America use that negative trait that afflicts all too many Americans to keep America distracted.  It works, too.

There’s an organization in Chicago that is working to PROMOTE Muslims and Arab Americans (as well as Asian Americans) in this country. It’s not an “extremist” organization, it’s simply focused on creating equality in the U.S. They have a whole online video project about the building of mosques around the nation. I try to volunteer my time to help them when I can, hence the post here. They are called Silk Road Rising. Their series (you can find it on Youtube) is Mosque Alert.

It is a far different thing to attack a religion then it is to attack what people believe that are of that religion. If you believe that it is all right to attack our way of life then it is OK for us to check you out. If you look at the statistics and you use that as a motive for investigating people then that is also all right. However if you are looking at a religion because you do not agree with that religion then you are not doing right unless you know that that religion teaches the overthrow of our government. We have a right to defend ourselves against all who would come against us domestic or foreign. You decide. Do you like where you are living, if not , go to a country that you like.

@DougV:  You get onto thin ice when you say “If you look at the statistics and you use that as a motive for investigating people then that is also all right.”

“Torture numbers, and they’ll confess to anything.” ~ Gregg Easterbrook

or, and perhaps more appropriately given the use of religion:

“Satan delights equally in statistics and in quoting scripture….” ~ H.G. Wells, The Undying Fire

Doug, aren’t you violating your own advice?  The “land of the free and home of the brave” doesn’t send stormtroopers out against pre-crimes while the citizens hide under the bed.  There are other countries for that sort of thing, if that’s what you want, and I’d just as soon not poison the one country to ever understand the difference.

And I actually disagree with your entire premise.  It’s fine and useful to be highly critical of what people believe, but it’s not useful to presume that they’re criminals because of it.  The former is open discussion and the start to understanding.  The latter is bigotry.

The NYPD has to remember that it is the protector of the citizens of NY which is duty enough. We have the FBI for interstate investigations. Bloomberg is trying to expand his powers beyond his borders, but he is out of line just as the PD is. They have not enforcement powers outside NY and that is where they belong.

@mary wester:  Re:  “Give me a KJ Bible any day over all the false religion!”

Are you you sure the KJ…version…of the Bible is right?  People have been…tinkering…with the Bible for a long, long time:  (partial lists can be seen at http://www.derose.net/steve/Bible/EnglishBibleTranslations.html and http://www.wikipedia.org/wiki/List_of_English_Bible_translations ).

You might find one of the other…versions/translations/transliterations/elucidations/restatements/spins…more to your liking; after all, much of the “tinkering” over the millennia was done to make it easier for those who did, ordered, or paid for the tinkering to justify what they wanted to do…to even arouse hatred…to justify, even, murder.  To make it easier, to be blunt, for mankind to unleash the beast(s) within and without them.

I think humans should stop (stop!!!) praying for God’s intervention in what are essentially episodes where humans - temporarily lacking any great common trial to drive them together - turn away from working towards and praying for their own salvation and instead towards taking from and preying upon each other.

It is conceivable that success at those prayers would carry a certain risk; the…angels…who are tasked with the smiting may not have the same level of tolerance for the weaponizing of religion as this planet’s modern religious “leaders”. 

I would venture that it is unlikely, in fact.

Our life here is just a journey. Where we end up after that is our choice.  I choose HEAVEN!  Seems like you have chosen hell. Will be praying for you to ask Jesus to come into your heart to live.  He WILL forgive you of your sins, then you will experience the pleasures of the Holy Spirit. May God bless you!  The KJV tells it like it is. Others have changed it to whatever they want to believe. I do have a personal relationship with Jesus. I love him and I will be going to heaven one day. Please try reading the KJV. and may God have mercy on your soul. This Nation was once united with God as our foundation. It’s people like you who are trying to tear it God.  Satan never wins!

One thing is for sure:  Soon enough we’ll find out which one of our perspectives is more likely to result in a trip on the “Up” elevator.

Me, I’m not foolish…not arrogant…enough to attempt to usurp God’s right to judge me; I will be grateful to be allowed into Heaven, and will not demand - nor assume - entrance as if it were my due…as if my judgment were more meaningful than God’s.

I say that with the knowledge that no one is immune to the false hubris of self-righteousness.

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