Cross-posted at Just Security.
Just a day before courts blocked President Donald Trump’s second “Muslim ban,” a judge in New York City formally approved a joint settlement in two lawsuits challenging the NYPD’s well-documented and unconstitutional surveillance of Muslim communities. The agreement lays out new reforms that will go a long way toward making this city a safer and more just place for everyone.
Muslim New Yorkers have long been fearful of the NYPD’s dragnet intelligence operations. From eavesdropping in cafes to placing informants in student groups, mosques, and political organizations, the NYPD spied on Muslims for over a decade because of their religion – generating zero leads, widespread distrust of police, and three federal lawsuits. Last week brought some long overdue good news when a court endorsed a settlement in two of those lawsuits, Raza v. City of New York and Handschu v. Special Services Division.
The Handschu case is an ongoing class action lawsuit started in 1971 by civil rights activists and Vietnam War protesters. It led to a series of rules governing police surveillance of political activities, known as the Handschu Guidelines. The Guidelines are still binding on the NYPD, but in the years after 9/11, the court revised them and gave the NYPD more latitude in conducting intelligence investigations. But based on Pulitzer-prize winning revelations in 2011 about the NYPD’s Muslim surveillance program, the Handschu attorneys went back to court, arguing that the NYPD was not complying with the Guidelines or constitutional standards.
Raza is a direct challenge to the NYPD’s Muslim surveillance program, filed in 2013 by the ACLU, NYCLU, and the CLEAR Project at CUNY Law School. It alleges that the NYPD’s Muslim surveillance program violated constitutional guarantees against discrimination and freedom of religion. Although the Handschu and Raza cases arise from two different eras, they raise many of the same issues, which led to joint discovery and settlement negotiations under the supervision of the same federal judge in Manhattan, Judge Charles Haight.
The agreement approved last week improves upon an earlier proposal that Judge Haight rejected for allowing the NYPD too much leeway.
Last January, the NYPD agreed to stiffen the Handschu Guidelines by explicitly prohibiting investigations motivated by race, religion, ethnicity, or national origin. It also agreed to constrain intrusive investigatory practices and limit the use of undercover officers and informants. And most significantly, it called for a civilian representative to monitor compliance with the new rules. (See our previous post and testimony for analysis of the initial terms.)
Lawyers from both sides submitted the plan for court approval, but Judge Haight was not satisfied with the changes. A public “fairness hearing” on the agreement revealed unresolved community concerns, and significantly, an impeccably-timed report from the NYPD Inspector General found that the NYPD had targeted Muslims in over 95 percent of the investigations that ran afoul of the Guidelines. Judge Haight cited the NYPD’s “systemic inclination” to break the rules and ordered everyone back to the negotiating table to further strengthen the surveillance rules.
The new agreement, approved last Tuesday, builds on many of the important safeguards in the first version. Specifically, it expands the monitoring role of the civilian representative and empowers him or her to report any systemic violations of the Guidelines directly to the court. It also prohibits the mayor from removing the civilian representative without court approval. With Judge Haight’s approval, the terms of this agreement is now law and the NYPD will be compelled to follow its mandate.
The Brennan Center applauds the revised agreement as both a significant improvement on the status quo and a step towards mending the distrust between Muslims New Yorkers and the NYPD. At the same time, the settlement leaves some issues unresolved, such as the low threshold for initiating investigative activity. Under the new rules, the NYPD can still start an inquiry based on the mere “possibility of unlawful activity,” even if the information is not “verified as true or accurate.” Similarly, the agreement does not address the issue of data retention or require the NYPD to purge its intelligence files about law abiding New Yorkers and their political or religious activities.
Moving forward, the need for vigilance and oversight going forward cannot be understated. The civilian representative will surely play a central role in this process, but the NYPD Inspector General will need to fill in the gaps. The IG is well positioned to address outstanding community concerns, as demonstrated by its influential 2016 report. The IG will also need to investigate any future claims of unlawful surveillance and raise a red flag if the new Handschu Guidelines appear insufficient. In a similar vein, the City Council has introduced new legislation (the “POST Act”) to require the NYPD to disclose basic information about sophisticated new surveillance technologies, an issue that the Handschu and Raza cases do not address. Here too, the IG will be essential to evaluating the NYPD’s use of these technologies to ensure that they do not violate New Yorkers’ civil rights and civil liberties.
In sum, there is much to praise about the Handschu/Raza settlement. It is a victory for the individual plaintiffs, for the people of New York City, and for the Constitution. Indeed, this case sets an important legal precedent by recognizing the constitutional infirmity of surveillance motivated by religious bias. Yet words alone will not be sufficient to safeguard the rights of New Yorkers, the civilian representative and the Inspector General must give them effect and propose further reforms if necessary.