In New York, is it time for a change in Muslim surveillance laws?

A federal judge rejected a settlement regarding the New York Police Department's surveillance program targeting Muslim-Americans after the 9/11 terrorist attacks.

Seth Wenig/AP
People hold signs while attending a rally on Aug. 28, 2013, to protest New York Police Department surveillance tactics near police headquarters in New York.

The same federal judge whose decision in 2003 enabled a police surveillance program in New York to target Muslim-Americans made an opposite ruling on Tuesday by demanding better safeguards against such unlawful targeted investigations.

Judge Charles Haight Jr. with the United States District Court in Manhattan rejected a settlement regarding two lawsuits against the New York Police Department (NYPD) for the surveillance program, stating that more protection is needed for Muslim-Americans who have been targeted by police after the 9/11 terrorist attacks.

"The proposed role and powers ... do not furnish sufficient protection from potential violations of the constitutional rights of those law-abiding Muslims and believers in Islam who live, move and have their being in this city," Judge Haight wrote in the opinion.

The turnaround may be a response to demands of the time. When Haight loosened the restrictions that eventually led to aggressive surveillance, it occurred amid widespread fear that enveloped the city after the 9/11 terrorist attacks. Back then, he had justified more flexible rules by saying that old rules "addressed different perils in a different time."

But could this rejection of the settlement be a creature of the times – or could it also be a recognition of the potential for violation of human rights with such surveillance programs?

"Certainly one of the things we see is in the wake of a crisis or attack there is a pendulum swinging away from protecting fundamental rights, and over time that adjusts back to a more normal situation," Faiza Patel, co-director of the liberty and national security program at the Brennan Center for Justice tells The Christian Science Monitor in a phone interview. "The judge recognizes that this relationship ebbs and flows with the times when there is greater friction."

The rejected settlement, first proposed in January, was seen as a win then for both the plaintiffs and the NYPD following Mayor Bill de Blasio's commitment to police reform and an appointment of a civilian lawyer to monitor the police's counterterrorism activity. In 2011, the NYPD was exposed by a series of Associated Press reports to have infiltrated and investigated Muslim-American communities without clear suspicion of wrongdoing after the 9/11 terrorist attacks.

Ms. Patel says that while it’s not the first time the court has tightened rules regarding surveillance programs, this case has been particularly significant with the judge’s specific recommendations to ensure compliance.

Haight’s opinion cites an August report by the Inspector General’s office that found NYPD continuing investigations into political activities after approval for the operations had expired half the time, with adherence to guidelines that establish how intelligence can be collected "problematic at times," NBC news reported.

He suggests that in addition to choosing a civilian lawyer to review the NYPD’s compliance with the Handschu Guidelines that prevent them from targeting specific groups without specific information of wrongdoing, the lawyer will have to file quarterly reports and communicate regularly with the courts whenever a concern arises. Haight also questioned the ability for the mayor to eliminate the civilian lawyer’s position after five years.

While the settlement was lauded by several organizations including the American Civil Liberties Union, the Brennan Center, and Muslim Advocates, the rejection was also embraced by many who see it as a step forward in stronger protections.

"We think the judge’s ruling is an opportunity to put stronger protections in place and we very much look forward to discussing the court’s decision with the NYPD," Ramzi Kassem, representative for the plaintiffs in one of the lawsuits, tells the Monitor in a phone interview.

"Frankly, for the sake of all New Yorkers, we hope that these additional changes and reforms are implemented as quickly as possible," says the City University of New York School of Law professor and director of the CLEAR Project.

The New York City Law Department said in a statement to the Monitor that despite their disagreement, they will "explore ways to address the concerns raised by the Judge." 

"To the extent that the Court’s decision is based in part on an Inspector General’s report containing findings with which both the City and Class Plaintiffs’ counsel variously disagree, we are disappointed that the settlement was not approved as the parties originally proposed," they said.

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