This article first appeared at The McAlvany Intelligence Advisor on Monday, March 3, 2014:
When New Jersey District Judge William Martini threw out the complaint by some Muslims that New York City’s police department’s 10 years of surveillance had caused them economic pain and personal suffering, he used the “standing” argument: They didn’t have standing to bring the complaint in the first place. For standing to exist, the Muslims – including a decorated Iraq war veteran, some Rutgers University students, some mosques and a grade school for Muslim girls – had to prove three points: 1) that they had suffered real provable damage or injury – an “injury in fact”; 2) that there was a direct provable link between that injury and its cause: the surveillance by NYPD ever since 9/11; and 3) that the injury could be “redressed” by the court.
Despite being presented with an enormous compendium of evidence – thanks to the gallant efforts of writers at the Associated Press (AP) which had published nearly two dozen articles about the surveillance program starting in the summer of 2011 – which proved that the plaintiffs in the case had in fact been damaged, the judge gave it the back of his hand. Reputations had been ruined, career prospects had been damaged, housing values had declined, customers of Muslims’ businesses stopped shopping there, and more. But that wasn’t enough injury to satisfy him, so point #1 was tossed.
He then looked at any potential link between the surveillance by the NYPD looking for terrorists among the Muslim population in New Jersey (isn’t New York City in New York?) and any alleged injury, and found that if any damage had been done the blame belonged on the AP, which had exposed the secret surveillance program, and not the surveillance itself.
The judge’s explanation was bizarre:
None of the Plaintiff’s [alleged] injuries arose until after the Associated Press released redacted, confidential NYPD documents and articles expressing its own interpretation of those documents.
Nowhere in the Complaint do Plaintiffs allege they suffered harm prior to the unauthorized release of the documents by the Associated Press.
This confirms that Plaintiff’s alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents….
This is known by some as the “Snowden defense” – that Snowden is somehow a traitor for exposing the truth about surveillance – which tries to redirect rancor about illegal surveillance towards the messenger exposing it. It has had some success in Snowden’s case. In the present case, not so much.
Baher Azmy, the legal director for the Center for Constitutional Rights (CCR) that brought the Muslim’s complaint, called the judge’s ruling “preposterous”:
It’s like arguing that you suffer no harm if your spouse is cheating on you as long as you know nothing about it, and that the blame lies with the messenger for telling you about it.
Azmy tried to link the judge’s decision to the Korematsu Supreme Court decision which incarcerated Japanese-Americans at the start of World War II. That decision has been widely criticized for many reasons, including the later discovery that evidence was kept from the court proving that there was no evidence whatsoever that any of those placed in internment camps were acting as spies or sending signals to enemy submarines. Said Azmy:
The ruling is a modern-day version of the discredited Korematsu decision allowing wholesale internment of Japanese Americans based solely on their ancestry.
It is a dangerous and troubling decision.
The link to Korematsu is tenuous but the point is made: Illegal surveillance violates precious rights, and caused significant economic damage to individuals living in the Muslim community. Unfortunately the issue of those precious rights being violated somehow escaped the attention of the lawyers presenting the suit and so were never mentioned in the complaint.
That failing is being rectified in another lawsuit that has been presented by the ACLU and its New York chapter, going after the NYPD surveillance program for violating Muslims’ rights under the equal protection clause of the Fourteenth Amendment and their right to free speech under the First. That suit contains no less than 160 specific provable violations of those rights in its 33 pages, including revelations that paid informers for the NYPD attended Muslim services to record sermons and report on private conversations between worshippers. It also revealed CIA involvement with the NYPD in its surveillance program. More amazingly, not a single shred of evidence has come out of a decade of surveillance that any of those targeted individuals had committed, or were even suspected of committing, a terrorist act. The entire program was a fishing expedition that never caught a single fish.
But the judge gave the NYPD a pass anyway, writing that their motives were honorable:
The Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies….
While this surveillance program may have had adverse effects upon the Muslim community after the Associated Press published its articles, the motive for the program was not solely to discriminate against Muslims, but rather to find Muslim terrorists among ordinary, law-abiding Muslims….
Defendant’s motion to dismiss is granted.
It is hoped that the ACLU will have better success in its quest to rein in the NYPD in its rampant illegal surveillance of innocents, not only in the interests of Muslims but in the interest of every American citizen who cherishes those precious rights guaranteed in the Bill of Rights. As Azmy put it, last week’s ruling
gives legal sanction to the targeted discrimination of Muslims anywhere and everywhere in this country, without limitation, for no other reason than their religion.
Azmy could have included every individual in the country being watched by every police department in the country, if this ruling is allowed to stand. It’s not just a Muslim problem. It’s every citizen’s problem: police power run amok without regard to constitutional limitations, just because they can.
Cato Institute: Federal Judge Removes U.S. Muslims from Constitution
Associated Press: Judge: Spying on NJ Muslims by NYPD was legal
Associated Press: the list of articles in the series published by the AP
Associated Press: Summary of its series of articles