Author Topic: Unconstitutional surveillance  (Read 1562 times)

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Offline Jerbar

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Unconstitutional surveillance
« on: August 14, 2012, 23:28:32 PM »
Unconstitutional surveillance
New York City has failed to show that its far-reaching program, burrowing deep into the lives and institutions of area Muslim communities, serves a 'compelling' interest or is necessary to accomplish that interest.
By Alan LevineAll Articles

The National Law JournalAugust 13, 2012

At the same time that its stop-and-frisk policy is attracting well-­deserved scrutiny, another equally discriminatory policy of the New York Police Department, with an equally dubious law enforcement rationale, deserves public attention. As documented in a Pulitzer-winning Associated Press series, the NYPD has, for nearly 10 years, engaged in a far-reaching surveillance program that has burrowed deep into the lives and institutions of New York-area Muslim communities, routinely placing informants in mosques, Muslim student organizations and Muslim-owned bookstores, cafes and businesses.

Police informants called "rakers" are instructed to spy anywhere members of the Muslim community "frequent to search for ethnic companionship," and informants called "mosque crawlers" attend services in Muslim houses of worship, while surveillance cameras monitor who goes in and out. The contempt implicit in terms such as "rakers" and "mosque crawlers" is emblematic of the NYPD's disregard for the human cost of its policies. And so it is unsurprising that the NYPD has even examined the records of a Muslim elementary school and sent an informant along on a student rafting trip!

To justify such intrusions into Muslim community life, Police Commissioner Raymond Kelly hearkens back to the attacks of September 11, 2001: "New York is where they've come before, and where we believe they want to come again, to hit us again and kill us." So it comes down to this: Since a handful of Muslims engaged in the 9/11 terrorist attacks a decade ago, all Muslims are potential terrorists and the government is entitled to view the entire Muslim community with suspicion.

It is reminiscent of the logic behind the country's shameful World War II experience in racial profiling, the roundup of citizens of Japanese descent. After the attack on Pearl Harbor, the entire West Coast Japanese-American community fell under suspicion, and was ultimately detained. When a challenge to the detentions reached the U.S. Supreme Court, the court, in Korematsu v. U.S. (1944), conceded that most of those detained "no doubt were loyal to this country." Nevertheless, because it assumed that those detained included a "number of disloyal members" — an assumption that turned out to be wholly without basis — the court upheld the detentions.

However, the dissent of Justice Frank Murphy has carried the day. For him, it was irrelevant that there were some disloyal Japanese-Americans. Though the country was in a full-scale war with Japan, Murphy observed that generalizations about an entire ethnic community based on the suspected behavior of a few of its members brings us to "the ugly abyss of racism." He went on to warn that legitimizing the Japanese internment is "to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow."

Fifty years later, Murphy's warning took root in modern anti-discrimination law, reflected in the U.S. Court of Appeals for the Sixth Circuit's articulation, in U.S. v. Avery (1997), of the fundamental principle "that citizens are entitled to equal protection of the laws at all times. If law enforcement adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen's race, without more, then a violation of the Equal Protection Clause has occurred." That principle embodies the Supreme Court's command, in Palmore v. Sidoti (1985), that any government program relying on a suspect classification, such as race, ethnicity or religion, must be subject to "the most exacting scrutiny." Such judicial scrutiny requires the government to demonstrate that its program serves a "compelling" interest and is "necessary…to the accomplishment" of that interest. McLaughlin v Florida (1964). To pass constitutional muster, the NYPD's targeting of Muslims must satisfy those tests.

While "compelling" and "necessary" are imprecise terms, they mean, minimally, that law enforcement may not target a religious group unless the goal is critically important and nothing else will work. The government must surmount both hurdles. As to the first, Mayor Michael Bloomberg and the NYPD say that surveillance of the Muslim community has prevented serious criminal activity. "We have stopped 14 attacks since 9/11 fortunately without anybody dying," the mayor said, referring to a list of "terrorist plots" that the NYPD claims to have foiled.

However, a recent investigation by ProPublica reporter Justin Elliott analyzing each of the alleged plots demonstrates that the claim of crime prevention is willfully overstated. Of the three most serious plots, including the Times Square bomber, the NYPD appears to have played no significant role in thwarting them. Of the 11 others, law enforcement officials, including federal prosecutors, have expressed doubts about the "credibility or seriousness" of four "plots"; in four others, "an idea for a plot was abandoned"; of the remaining three, "government informants played a significant or dominant role."

Elliott's conclusions are consistent with an AP analysis that found that the NYPD list "includes plans that may never have existed as well as plots the NYPD had little or no hand in disrupting." Even assuming legitimate disagreement about one or two of these plots, the NYPD's list clearly fails to provide the compelling justification required by the Constitution for the use of a suspect classification as a basis for a surveillance operation.

Nor can the NYPD satisfy the second constitutional requirement of showing that its Muslim surveillance program was "necessary" to fight terror. How, for example, does investigating an elementary school, or placing informants on a college rafting trip or in a random house of worship, lead to the prevention of a criminal plot? If the answer is that by doing so police might gather information about extremist criminal activity, then it is no less true that informants in Christian schools, churches and social clubs might glean information about fundamentalists planning anti-abortion violence. But such blanket surveillance would be universally condemned as a bigoted indictment of an entire religious community — and a grossly inefficient use of police resources. The Muslim surveillance program deserves the same condemnation.

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