Muslim Americans Win Landmark Victory Against the NYPD's Secret Post-9/11 Spying Program

Muslim Americans won a hard-fought victory on Thursday against the New York Police Department over what advocates say was a discriminatory surveillance program implemented in secret after the Sept. 11 terror attacks.

In 2011 and 2012, the Associated Press published a Pulitzer Prize-winning investigation into the NYPD’s efforts to spy on innocent Muslim-Americans in New York and New Jersey after the attacks. The program started in 2002 or earlier and was disbanded in 2014.

“The NYPD spied on at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim student associations in New Jersey alone,” Farhana Khera, executive director of the group Muslim Advocates, told reporters in a conference call on Thursday.

The program “never produced a single lead,” Khera also said.

After AP broke the story, a group of plaintiffs in New Jersey filed a federal lawsuit against the City of New York for violating their First Amendment rights.

On Thursday—years after the surveillance program was disbanded and six years after the case was first filed—New York City agreed to a settlement with the plaintiffs in the case, Hassan v. New York.

“The settlement reflects a landmark challenge to religious profiling by law enforcement,” Baher Azmy, legal director of the Center for Constitutional Rights and lead attorney on the case, told reporters on the call. “It holds the NYPD accountable for what it has done in the past, and promotes accountability to conform with basic constitutional principles in law enforcement into the future.”

In 2015, a U.S. appeals court in Philadelphia ruled that the plaintiffs had sufficient standing to bring the case forward, and threw cold water on NYPD’s argument that its program was necessary to protect national security.

From the ruling:

The City next argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion. This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.

At a press conference on Thursday, NYPD officials maintained the department did not break the law by secretly surveilling Muslim communities in New Jersey.

“There’s been no admission of liability, no finding of wrongdoing by any court in New York, New Jersey or anywhere else,” Lawrence Byrne, deputy commissioner with NYPD’s legal division, said in audio of the presser, which NYPD sent to Splinter. “The case was settled in the interest of resolving a six-year-old litigation.”

According to Azmy, NYPD has agreed, under the terms of the settlement, to:

• Not engage in religious-based surveillance
• Abide by police guidelines established in the Handschu Agreement, which regulates police activity in New York, and apply equally in New Jersey
• Not conduct any investigation where religion or ethnicity is a motivating factor
• Permit the plaintiffs’ counsel in Hassan v. New York “to review and make recommendations to policy guidelines that are in development at the NYPD”
• Let plaintiffs review and make recommendations to NYPD’s training protocols, with a focus on religious and other First Amendment activities
• Limit its ability to conduct police activities in New Jersey
• Expunge “certain records” pertaining to the plaintiffs in the case
• Pay damages—a total of $47,500 to businesses and mosques that suffered “concrete economic harm” from being targeted with surveillance—and a total of $25,000 to individual plaintiffs

The police department’s so-called “demographics” program was created with help from the CIA, which is not legally allowed to spy on Americans. Nonetheless, the CIA guided NYPD’s Intelligence Division in creating a vast, secret dragnet operation to spy on hundreds of mosques, Muslim-owned businesses and Muslim student groups in the New York and New Jersey area.

As part of the program, NYPD employed informants called “mosque crawlers” to infiltrate houses of worship and turn over attendees’ names to the police. One former informant told the Associated Press that NYPD paid him to “bait” Muslims into making potentially incriminating statements through a strategy called “create and capture.”

NYPD officers would park outside of mosques and take pictures and videos of people leaving and entering, according to the ACLU. They also recorded the license plate numbers of mosque attendees. The intelligence division mapped minority neighborhoods by “ancestries of interest” as well as “American Black Muslims.” Notably, the program excluded non-Muslim groups such as Coptic Christians or Iranian Jews as targets for surveillance.

Azmy said he hopes the settlement will send a message to the Trump administration.

“This settlement was concluded, we must recognize, in the age of Trump, where full-throated racism and xenophobia is part of White House personnel and policy,” he said. “We hope the decision sends a strong signal, therefore, that profiling of the sort that consumes this White House is unconstitutional, and there are communities who will mobilize and exert their growing power to challenge those activities, and prevail.”

The lead plaintiff in the case, Farhaj Hassan, has served in the U.S. Army Reserve for 16 years. He told reporters on Thursday that when he found out his mosque was the target of surveillance, “We had an obligation and no other choice but to stand up and take the NYPD to court.”

“People of color and other minorities have been cast aside when it comes to being treated by law enforcement,” Hassan said. “If you don’t know that to be true, it’s because you aren’t looking correctly, and you’re choosing to ignore the facts.”

Hassan added that he felt relieved the case was finally over.

“I did not know the wheels of justice were this slow, but it was worth it, and I’m proud of the outcome,” he said.