Yesterday, in a case called Hassan v. The City of New York, the Third Circuit Court of Appeals reinstated a lawsuit accusing New York City of violating the 1st and 14th Amendment rights of Muslim-Americans in New Jersey under a sprawling and ineffective NYPD surveillance dragnet.
In layman’s terms: the district court, without a trial or the presentation of evidence, ruled that the plaintiffs weren’t harmed unjustifiably, that they hadn’t alleged sufficient wrongdoing by the police, and that they had no right to sue. The Third Circuit ruling rejects those determinations and the case will now move forward at the district court.
An Associated Press investigation uncovered the NYPD program in 2011 and detailed the immense breadth of the NYPD’s surveillance efforts against the Muslim community in several states. Police officers and informants infiltrated dozens of mosques. Police installed surveillance cameras so that Muslim-owned businesses, places of worship, and residences in New Jersey could be surveilled remotely. The NYPD even sent undercover officers to infiltrate Muslim student organizations at out-of-state universities such as Yale and the University of Pennsylvania, including one field trip to go whitewater rafting. Those agents recorded the names of the students, how often they prayed, and what they talked about. The NYPD is alleged to have “generated reports on every mosque within 100 miles of New York City.”
Despite the cost and the seemingly boundless geographic and jurisdictional scope of the spying program, there is little evidence of success. In fact, the now-defunct “Demographics Unit,” a central component of the program, generated no convictions or, according to one agent deposition, even any tangible leads in more than a decade of operation.
In reinstating the suit, the court offered some rather stirring commentary on the need to adhere to the Constitution most dearly when it comes to serious issues such as national security, invoking Franklin Roosevelt’s internment of Japanese-Americans and the Supreme Court’s (now widely considered odius) endorsement of it in Korematsu:
No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights. “[H]istory teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.”
Today it is acknowledged, for instance, that the F.D.R. Administration and military authorities infringed the constitutional rights of Japanese-Americans during World War II by placing them under curfew and removing them from their West Coast homes and into internment camps. Yet when these citizens pleaded with the courts to uphold their constitutional rights, we passively accepted the Government’s representations that the use of such classifications was necessary to the national interest. […] In doing so, we failed to recognize that the discriminatory treatment of approximately 120,000 persons of Japanese ancestry was fueled not by military necessity but unfounded fears.
The court also strongly defended the principle that the fundamental unit in our system is the individual, rather than the collective:
We “can apply only law, and must abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.” Korematsu, 323 U.S. at 247 (Jackson, J., dissenting).
We believe that statement of Justice Jackson to be on the right side of history, and for a majority of us in quiet times it remains so … until the next time there is the fear of a few who cannot be sorted out easily from the many. Even when we narrow the many to a class or group, that narrowing—here to those affiliated with a major worldwide religion—is not near enough under our Constitution. “[T]o infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights.” Id. at 240 (Murphy, J., dissenting).
Lastly, the court admonished the legal system for often only recognizing government misconduct in retrospect rather than stopping it in action:
What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight – that “[l]oyalty is a matter of the heart and mind[,] not race, creed or color.”
It’s important to remember that this ruling only reinstates the lawsuit by finding that the plaintiffs have standing and have stated a cognizable claim. The case now returns to the district court for a determination of the merits.
Even so, the admonitions from the court toward the NYPD and the court’s overt appeal to regard people as individuals rather than as part of some demonized collective are heartening. The post-9/11 security and police states only rarely suffer courtroom losses regarding even the most expansive aspects of their policies.
The government has a legitimate interest in providing security, but not at the cost of collective punishment or overt discrimination against people based solely on their race or religion.
This is a case to watch as it moves forward.