The federal judge once responsible for granting the New York City Police Department far-reaching authority to surveil Muslim communities after 9/11 has now rejected a settlement stemming from two lawsuits against the city over that very surveillance, saying it did not include enough protections against police snooping.
In the January 2015 settlement, New York City agreed to install a "civilian representative" to help oversee the NYPD's intelligence efforts. But in a ruling written on October 28, which was made public on Monday, Judge Charles Haight claimed that the settlement was insufficient, since the proposed representative wouldn't have the power to "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."
According to NBC News, Judge Haight's ruling took issue with the NYPD's compliance with what's known as the Handschu guidelines, which regulate how law enforcement can collect intelligence in instances where political or religious activities fall under First Amendment protections. Those guidelines were modified to give law enforcement more surveillance latitude in the wake of September 11. It was actually Haight who signed off on the changes, explaining that the old rules "addressed different perils in a different time."
In rejecting the settlement, Haight has ensured that the city must now either renegotiate the terms of their agreement, or go to court to fight the dual lawsuits from which it stemmed, the New York Times reported.
Nick Paolucci, a spokesperson for the NYC Law Department expressed his frustration at judge Haight's ruling, telling the Times:
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. That said, we will explore ways to address the concerns raised by the judge.
Given the long-documented history of constitutional violations by the Intelligence Division of the NYPD, dating back decades and most recently targeting Muslims almost exclusively, the court was wise to demand greater oversight of the Intelligence Division’s surveillance and investigative activities. As the court recounted, plaintiffs and class counsel had pushed for more oversight over the Intelligence Division, and, in response to this ruling, we hope the NYPD will finally agree to the increased transparency and accountability mechanisms the court recognized the Muslim community deserves to ensure respect for their rights to free speech, association, and equal protection.
The ACLU, which represented the plaintiffs in one of the cases which lead to last January's settlement, explained that Haight recommended a series of concrete steps to strengthen the protections therein:
- Clarify the authority of an individual outside the NYPD (a civilian representative) to ensure the NYPD’s compliance with the “Handschu Guidelines” — which govern NYPD surveillance of political and religious activity — even beyond the terms of the reforms proposed by the settlement
- Require that the civilian representative established by the settlement report periodically to the court on the NYPD’s compliance
- Require the mayor to seek court approval before abolishing the position of civilian representative.
"At a time of rampant anti-Muslim hysteria and prejudice nationwide, this agreement with the country’s largest police force sends a forceful message that bias-based policing is unlawful, harmful, and unnecessary," ACLU National Security director Hina Shamsi said when the January settlement was announced. "We hope the NYPD’s reforms help make clear that effective policing can and must be achieved without unconstitutional religious profiling of Muslims or any other communities."
Judge Haight, it seems, is inclined to agree.