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The NYPD Targeted Muslims in Over 95-Percent of Investigations That Broke Surveillance Rules

The NYPD’s Intelligence Bureau consistently broke court-imposed rules governing investigations involving political activity, and over 95-percent of these investigations targeted Muslims or individuals associated with Islam.

  • Michael Price
September 23, 2016

The NYPD’s Intel­li­gence Bureau consist­ently broke court-imposed rules govern­ing invest­ig­a­tions involving polit­ical activ­ity, accord­ing to a recent report by the NYPD Inspector General. But the most troub­ling conclu­sion appears in a foot­note on the first page: over 95-percent of these invest­ig­a­tions targeted Muslims or indi­vidu­als asso­ci­ated with Islam.

On its face, the report is about NYPD non-compli­ance with rules govern­ing how officers must conduct certain sens­it­ive invest­ig­a­tions. Sampling cases closed between 2010 and 2015, the police watch­dog found that the depart­ment contin­ued more than half of its invest­ig­a­tions beyond author­ized limits, routinely used inform­ants and under­cover officers after author­iz­a­tions expired, and justi­fied their use with boil­er­plate language in records that were incom­plete and riddled with errors. Left largely unsaid: Amer­ican Muslims bore the brunt of these viol­a­tions by a stag­ger­ing ratio.

In a dizzy­ing display of spin, the NYPD portrayed the report as a vindic­a­tion of its past prac­tices, appear­ing shocked – shocked! – to discover it’s been spying on Muslims all this time. But a look back at the origin of the report (and the office that produced it) shows that a motiv­at­ing concern was the blanket surveil­lance of Muslim communit­ies. A rule­book with alarm­ingly low stand­ards only enabled this discrim­in­at­ory pattern of surveil­lance, and it is long over­due for an over­haul.

The Inspector Gener­al’s find­ings are troub­ling, but they should­n’t be surpris­ing. Back in 2011, the Asso­ci­ated Press published a Pulitzer Prize-winning invest­ig­a­tion that described how the NYPD put entire communit­ies under surveil­lance, send­ing secret agents into mosques, cafes, stores, schools, and student asso­ci­ations in order to map communit­ies and eaves­drop on conver­sa­tions. The revel­a­tions led to three federal lawsuits, two of which the NYPD has agreed to settle. In fact, the NYPD’s blanket surveil­lance of Muslim communit­ies was a driv­ing force behind the City Coun­cil’s decision to create an Inspector General for the NYPD in 2013. The office came online in 2015 and quickly commit­ted to invest­ig­at­ing the surveil­lance of polit­ical and reli­gious groups.

But in its formal response to the report, the NYPD seemed to ignore this history, high­light­ing instead one find­ing that there were “suffi­ciently artic­u­lated facts to satisfy the threshold required” for open­ing all of the invest­ig­a­tions under review. This, despite the fact that the Inspector General also cautioned that the threshold is “relat­ively low,” requir­ing only an alleg­a­tion or inform­a­tion “indic­at­ing the possib­il­ity of unlaw­ful activ­ity.” Regret­tably, the report did not comment on the wisdom of such a low bar for invest­ig­a­tions in the same way that other reports have critiqued police policies (perhaps because the exist­ing rules are court-imposed, but it’s unclear why that would matter). Nonethe­less, the under­ly­ing concern is a famil­iar one: the more leni­ent the stand­ard, the greater chance of abuse. A low threshold invites officers to rely on hunches and subject­ive judg­ments, which are inev­it­ably informed by personal biases, even if uncon­sciously. Such a dynamic opens the door to the kind of racial and reli­gious profil­ing that promp­ted the Inspector General to invest­ig­ate in the first place.

In this light, it should be cause for concern that 95% of the invest­ig­a­tions reviewed by the Inspector General involved Muslims. The NYPD respon­ded that it “does not char­ac­ter­ize indi­vidu­als by reli­gion in its invest­ig­a­tions or docu­ments” and that the find­ing “seems to reach for some­thing with uncer­tain purpose.” If the NYPD is truly uncer­tain, then the Depart­ment would do well to remem­ber how a federal court found its “stop-and-frisk” policy uncon­sti­tu­tional based on evid­ence that officers targeted Black and Latino New York­ers 85% of the time.

Indeed, two of the three Muslim surveil­lance lawsuits still pending against the NYPD allege a pattern of uncon­sti­tu­tional discrim­in­a­tion, similar to the stop-and-frisk case. And while the Inspector General found no evid­ence of “improper motives,” the law does not require improper motives to find inten­tional discrim­in­a­tion. As the Third Circuit recently said, “even if NYPD officers were subject­ively motiv­ated by a legit­im­ate law-enforce­ment purpose (no matter how sincere), they’ve inten­tion­ally discrim­in­ated if they would­n’t have surveilled Plaintiffs had they not been Muslim.” Thus, the NYPD may be correct that the major­ity of terror­ist plots target­ing New York have involved al-Qaida, the Taliban, or the Islamic State, but that stat­istic does not excuse target­ing reli­gious communit­ies for surveil­lance any more than crime data can justify a discrim­in­at­ory stop-and-frisk policy.

Unfor­tu­nately, the Inspector General did not connect these dots for the NYPD or address any high-profile incid­ents of Muslim surveil­lance, includ­ing reports that the NYPD desig­nated entire mosques as terror­ist organ­iz­a­tions, attemp­ted to place an inform­ant on the board of a prom­in­ent Arab Amer­ican social services organ­iz­a­tion, and used an under­cover officer to infilt­rate a Muslim student group at Brook­lyn College long after an author­ized invest­ig­a­tion had ended. Neither did the Inspector General exam­ine other contro­ver­sial aspects of the NYPD’s intel­li­gence oper­a­tions, includ­ing the first level of invest­ig­a­tion (“Check­ing of Leads”), reportedly used to justify monit­or­ing Muslims who Amer­ic­an­ize their names. If the NYPD opened all of these invest­ig­a­tions ‘by the book,’ then there is some­thing wrong with the book.

Future reports may exam­ine these issues and, hope­fully, express an opin­ion on whether the rules them­selves need an upgrade in order to protect the rights of New York­ers. Stand­ards so low that everything meets them are no stand­ards at all. In the mean­time, the Inspector General should be commen­ded for produ­cing a first-of-its-kind report that exposes signi­fic­ant flaws in the NYPD’s intel­li­gence oper­a­tions and makes import­ant recom­mend­a­tions that the police should take seri­ously.

(Photo: Think­Stock)