Muslims and American Fear

New York City should stop defending the Muslim surveillance program and move expeditiously to settle a case challenging it.

October 25, 2015

Cross-posted on the New York Daily News

Fear almost inevitably leads to an excessive response.

Fear of crime was the crucible in which the New York City Police Department’s overzealous and discriminatory stop-and-frisk program was born. After years of controversy, that was finally brought under control: by the courts, the mayor, and even the police commissioner.

It’s time to check our fear of terrorism, too. A federal court is leading the way. In a 60-page opinion issued this month, a panel of the Third Circuit Court of Appeals ruled unanimously that a challenge to the NYPD’s controversial Muslim surveillance program could go forward. The court didn’t decide whether or not the program actually violated the constitutional rights of New Jersey Muslims. But it did conclude that the plaintiffs had provided enough details about discriminatory police surveillance that they should be allowed the chance to make their case.

Along the way, the court smacked down a few of the police department’s favorite talking points. According to the NYPD, Muslims were not harmed by the surveillance itself, but rather because the spying was exposed by the Associated Press. The court described this argument as: “What you don’t know can’t hurt you.”

But the injury alleged was discrimination, the court found. And that — if proven — was not the fault of the press, but the police.

The NYPD also maintained that it wasn’t targeting Muslims, but simply keeping an eye out for terrorists in their communities. This may seem like an appealing argument — until you think about what it means.

Suppose the cops decided they would go after the Mafia by going into every Italian-American home in the city looking for evidence that someone in the family was working with the mob. The police motive is combating organized crime. But the method of achieving this objective — by targeting a particular ethnic group — violates the Constitution’s equal protection guarantees.

Similarly, while the NYPD’s motive in monitoring American Muslims may be perfectly reasonable, their targeting of surveillance based on religion rather than suspicion of wrongdoing was unconstitutional.

Nor could the program be justified simply by the overall needs of national security, the court held. Given substantial allegations that the police had targeted people because of their religion alone, the NYPD had to show that its response was tailored to meet its counterterrorism objectives. It failed to meet this standard.

As the court reminded us, there are good reasons that the Constitution insists that the government is not allowed to discriminate. Our commitment to equal treatment has sometimes wavered in the face of fear. As the opinion noted, the U.S. government targeted “Jewish-Americans during the Red Scare, African Americans during the Civil Rights Movement, and Japanese-Americans during World War II,” all in the name of national security. These communities see the parallels with the treatment of American Muslims today.

Tellingly, the children of three Japanese-American men who were imprisoned in internment camps and led the legal challenges against their treatment also filed a brief in this case. They urged the court to remember how their fathers had been incarcerated on the basis of race alone under the guise of security, and drew to the court’s attention the parallels between those measures and treating Muslims as suspect because of their religion.

Mayor Bill de Blasio, who campaigned on the promise that the NYPD would only follow leads and not spy on entire communities, should lead the police department away from spying on the basis of religion. The city should stop defending the Muslim surveillance program and move expeditiously to settle this case.

Two other challenges to the same program have already been settled “in principle” (although the terms are not yet public). The Third Circuit’s decision provides an incentive to settle this one, too, and ensure that the police treat all New Yorkers with respect rather than suspicion.

It’s an opportunity to face fear rather than give in to it.