Following the attacks of 9/11, the New York City Police Department (NYPD) began a highly controversial intelligence program targeting Muslim communities in New York, New Jersey, and beyond. A Pulitzer Prize-winning series by the Associated Press documented the Department’s surveillance of Muslims based on their religion, demonstrating how the NYPD systematically mapped Muslim neighborhoods, used informants and undercover officers to infiltrate mosques, and monitored the activities of Muslim Student Associations at colleges and universities.
In 2012, civil rights groups filed a lawsuit in New Jersey against the City of New York on behalf of several New Jersey plaintiffs targeted by the NYPD, including a decorated Iraq war veteran, university students, a coalition of New Jersey mosques, and a grade school for Muslim girls. The suit, Hassan v. City of New York, challenges the constitutionality of the NYPD’s intelligence operations in New Jersey. It alleges that the NYPD’s operations were discriminatory and in violation of the First Amendment.
The NYPD filed a motion to dismiss, arguing that its surveillance program is based on its efforts to deter a potential future terrorist attack rather than on discriminatory motives. The district court agreed with the NYPD’s contentions and dismissed the case for several reasons. First, the judge said the plaintiffs couldn’t establish that any surveillance by the NYPD directly chilled their First Amendment freedoms. Second, the judge said any harm the plaintiffs could establish would be caused by the Associated Press’s reporting on the program, not by the surveillance itself. Finally, the judge dismissed the case because he reasoned that the most likely reason for the NYPD program was a neutral, investigative desire to find “budding terrorist conspiracies” in Muslim communities in New Jersey. The case is now on appeal before the Court of Appeals for the Third Circuit.
The Brennan Center filed an amicus brief in support of Mr. Hassan and the other plaintiffs, urging reversal of the lower court’s decision. The brief cautions the Third Circuit against deferring to the NYPD’s proffered justifications for its surveillance programs. Instead, the Brennan Center directs the court’s attention to two important points. First, the NYPD has a long history of spying on First Amendment-protected activity dating back more than a century. Second, the NYPD disregards the reams of empirical evidence that shows there’s no link between religion and terror that could possibly justify its surveillance program. These two facts mean that the NYPD’s explanations cannot be trusted. The much more plausible reason for the program is a discriminatory assumption by the NYPD that all Muslims are potential terrorists.
The Brennan Center’s amicus brief is available here [PDF]
Amicus Briefs Supporting the Appellants
- Brief of the American Civil Liberties Union of New Jersey et al. (on behalf of several civil rights organizations)
- Brief of Americans United for Separation of Church and State
- Brief of Asian American Legal Defense Fund et al. (on behalf of 17 Muslim civil rights organizations)
- Brief of Brooklyn Borough President (Eric Adams) and current and former law enforcement officials and organizations
- Brief of Interfaith Alliance Foundation (on behalf of several interfaith religious groups)
- Brief of Karen Korematsu and other descendants of Japanese Americans interned during WWII
- Brief of Reporter’s Committee for Freedom of the Press & North Jersey Media Group, Inc.