In what civil rights groups have called a “landmark” settlement to a legal challenge mounted back in 2013, the New York Police Department last week agreed to a set of reforms and safeguards that could herald the end of an era of intense, religiously targeted surveillance of Muslim communities.
Filed jointly by the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), and the CLEAR project at CUNY law school on behalf of three community leaders, two mosques, and one charitable organization, all of whom claimed to have been victims of racial profiling, the lawsuit charged that some of the NYPD’s post-9/11 surveillance policies discriminated against Muslim New Yorkers and represented a violation of constitutional rights to equal protection under the law, and religious freedoms.
Still subject to court approval, the settlement in Raza v. City of New York establishes safeguards designed to limit NYPD surveillance activities to within the realm of constitutional protections, including an anti-religious discrimination policy, and provisions to limit the use of undercover agents and police informants to “situations in which the NYPD determines that the information sought cannot be obtained … by less intrusive means.”
In a blog post announcing the settlement on January 7, ACLU National Security Project Director Hina Shamsi wrote, “At a time of rampant anti-Muslim hysteria and discrimination nationwide, this settlement sends a forceful message … that law enforcement can and must do its job without resorting to discriminatory practices.”
Starting in 2011, when a team of reporters with the Associated Press began releasing a series of exposés on NYPD intelligence operations, the public was made aware of police practices that Muslim communities had been familiar with for over a decade: namely, the infiltration of their communities by undercover agents and the systematic “mapping” of every aspect of their lives, from houses of worship and workplaces to social gathering spots such as restaurants and hookah bars.
Ostensibly forming part of counterterrorism operations following the attacks on September 11, 2001, the NYPD’s so-called Demographics Unit, later labeled the Zone Assessment Unit, compiled an extensive database on residents of certain “ancestries of interest.” According to a 2013 CLEAR report titled Mapping Muslims: NYPD Spying and its Impact on American Muslims, these included populations from virtually every Muslim-majority country in the world, including Pakistan and Bangladesh, as well as American Black Muslims.
While top brass within the police department consistently defended the program, which was created with input from the CIA, as lawful and necessary for stamping out terrorist activity, advocates and journalists worked to expose it as a vast, racially biased spying operation through which adherents of the Islamic faith or members of certain racial and ethnic groups were labeled as de facto threats to national security, without any tangible evidence of criminal wrongdoing.
In its effort to identify potential “hot-spots” of radical activity, the NYPD left no stone unturned. CLEAR’s report documents how the department dispatched its personnel into eateries, schools, and mosques; infiltrated student groups and advocacy organizations; sent “rakers” into halaal meat shops and “crawlers” to attend religious events; and even employed a tactic known as “create and capture,” “where an informant would try to start a conversation about terrorism or other controversial topic, record the response elicited, and share it with the NYPD.”
By the NYPD’s own admission, the program was a failure. Back in 2012, NYPD Assistant Chief Thomas Galati stated, “I could tell you that I have never made a lead from rhetoric that came from a Demographics [Unit] report and I’m here since 2006.” In 2014, the unit was officially disbanded, yet, according to the ACLU, controversial practices like the use of undercover agents and informants continued.
Today, advocates and activists are cautiously optimistic that such practices will no longer be a matter of routine. Among other reforms, the settlement prohibits the police department from opening investigations motivated solely or substantially by race, religion, and ethnicity. The NYPD has also agreed to remove from its website a notorious report titled Radicalization in the West, a widely discredited document that “provides justification for discriminatory surveillance,” according to the NYCLU.
“This settlement marks the first time since 9/11 that any law enforcement agency in the country has agreed to curtail its powers with respect to spying on Muslim Americans, which is very important,” Naz Ahmad, a staff attorney at the CLEAR project, told Rewire in a phone interview, adding that such provisions as the appointment of a civilian representative “with the power and obligation to ensure all safeguards are followed and to serve as a check on investigations directed at political and religious activities” marks a significant step forward for the department.
But there are still some roadblocks ahead. Ashley Gorski, a staff attorney with the ACLU’s National Security Project, told Rewire in an email that the settlement involves modifications to the Handschu Guidelines, a framework that emerged from a decades-old class action lawsuit involving the NYPD’s surveillance of activists and political groups.
Independently of the Raza case, attorneys in the Handschu suit brought a claim that the department’s targeting of Muslim residents had violated the 1986 guidelines. Subsequently, the Raza settlement was negotiated alongside the Handschu suit, meaning that court approval of the Raza settlement is contingent upon the federal judge in the Handschu case approving a set of proposed modifications to the guidelines, which will then be revised to incorporate the settlement’s proposed safeguards.
All of these steps will be preceded by a pending court hearing, during which the public can weigh in about the terms of the settlement, Gorski explained. For Muslim residents, this might offer the chance to express how a decade and a half of intrusive policing has affected their communities.
As Linda Sarsour, executive director of the Arab American Association of New York, pointed out in an interview back in 2013, the surveillance program amounted to nothing less than “psychological warfare” on Muslim Americans, ripping a hole in the social fabric and eroding trust, not only between Muslim residents and law enforcement but also within communities.
“Unwarranted surveillance creates an atmosphere of mistrust, paranoia, and fear,” Sarsour said in an interview with Rewire. “It also chills free speech, a fundamental right that should be afforded to all in New York City and the United States.”
She called the settlement a “win” for the American Muslim community in New York City, adding, “It demonstrates the power that communities have when they challenge government entities and policies that target them.”