NEW YORK, March 12 (Reuters) - In the wake of
revelations that the New York City Police Department secretly
monitored Muslim communities, civil rights organizations are
questioning the legality of the anti-terrorism operation.
While U.S. Attorney General Eric Holder said Thursday that
the Justice Department is "reviewing" concerns about the
program, legal experts say a court challenge based on claims of
racial or religious profiling would face high hurdles.
Instead, they say, any case likely would come down to a
single paragraph in a longstanding court order that governs the
NYPD's surveillance of political activity.
The key paragraph, part of the so-called "Handschu
guidelines," sets conditions for NYPD officers who visit public
places or events during anti-terrorism investigations. It
prohibits them from keeping records of their observations unless
the information is related to "potential unlawful activity" -- a
ban that critics say the NYPD has ignored.
According to reports in the Associated Press, the NYPD kept
tabs on Muslim neighborhoods in New York City and surrounding
areas by sending undercover officers into mosques, meetings of
college campus groups and local businesses and keeping records
of what they found.
"There's a very strong suggestion that they are going into
the Muslim community, chatting up folks and maintaining records
on individuals, which we think runs afoul of the Handschu
decree," said Arthur Eisenberg, legal director of the New York
Civil Liberties Union and one of the lawyers for the original
plaintiffs that brought the Handschu case.
City and police officials have defended the practices as
"Anyone who intimates that it is unlawful for the police
department to search online, visit public places, or map
neighborhoods has either not read, misunderstood, or
intentionally obfuscated the meaning of the Handschu
guidelines," said Police Commissioner Raymond Kelly during a
recent speech at Fordham Law School.
The Handschu guidelines were established by a Manhattan
federal judge in 1985, amid a long-running court battle between
a group of political activists and the NYPD.
The original case, Handschu v. Special Services, was filed
in 1971 by a coalition of political groups in response to
widespread police surveillance during the turmoil of the 1960s.
Barbara Handschu, the lead plaintiff, is a lawyer who
represented the Young Lords of Harlem and the Black Panthers,
among other groups.
In 2003, U.S. District Judge Charles Haight issued modified
guidelines after the city asked him to lessen the restrictions
to facilitate anti-terrorism efforts in the wake of the Sept.
11, 2001, attacks.
The revised order specifically addressed how the NYPD could
conduct anti-terrorism investigations. It included the critical
provision that limits the records police officers can keep of
their observations in public places.
The order allows the plaintiffs to return to court if they
believe the guidelines have been violated.
Last fall, after the first news reports on the
surveillance operation appeared, lawyers for the plaintiffs
filed a motion in Manhattan federal court seeking discovery of
NYPD files related to the program. In court papers, they claimed
the surveillance appeared to violate the Handschu guidelines
because reports suggested the NYPD kept dossiers on law-abiding
Lawyers for the plaintiffs are negotiating the terms of
document production with city attorneys.
Police officials point to a section of Handschu that
authorizes the NYPD to "prepare general reports and
assessments...for purposes of strategic or operational
City lawyer Peter Farrell, who represents the city in the
Handschu case, said in an email that the guidelines "make clear
that the NYPD may visit public places and go online -- just as
the general public does." He did not specifically comment on
whether the NYPD could maintain records of their observations.
Farrell also said the Handschu guidelines apply only to
"political activity," and suggested that certain NYPD actions
described in news reports -- visiting local businesses, for
instance -- could be outside Handschu jurisdiction altogether.
This is not the first time that civil rights groups have
cried foul with respect to Handschu compliance. Critics raised
concerns about the NYPD's surveillance during the 2004
Republican National Convention and the Occupy Wall Street
protests, for instance.
While the Handschu guidelines provide the most likely basis
for challenging the police surveillance of Muslims in court,
other potential avenues include claims that the NYPD violated a
New York law prohibiting racial profiling, as well as the U.S.
Constitution. But those may prove difficult to substantiate.
A state statute prohibits police from using race, religion
or ethnicity as the "determinative factor in initiating law
enforcement action against an individual."
Police and city officials have said their actions were
prompted by legitimate leads, not merely by religious identity.
Faiza Patel, co-director of the Liberty and National
Security Program at NYU's Brennan Center for Justice, said it
may be challenging to demonstrate that the NYPD used religion as
a "determinative" factor, rather than simply as one of many.
Constitutional claims also would face an uphill climb.
If police have a legitimate law enforcement purpose, the
U.S. Constitution does not preclude monitoring a specific
religious community, said Stephen Schulhofer, a professor at New
York University School of Law and a criminal justice expert.
"The reality is that much of what the ordinary person would
consider racial profiling is not legally prohibited by the
Constitution," he said.
However, Schulhofer and other experts said that if police
actions produced a chilling effect on free speech or religious
practices -- much as the Handschu plaintiffs argued in the 1970s
-- that could be a violation of the First Amendment.
In addition, if the targeting creates a "stigma" for
Muslims, that could violate the equal protection clause of the
14th Amendment, experts said.
Omar Mohammedi, president of the Association of Muslim
American Lawyers, has called on New York Attorney General Eric
Schneiderman to investigate whether the NYPD violated Muslims'
constitutional rights, including the First Amendment.
"We can show that people are not attending prayers because
they are afraid," he said. Schneiderman has not said whether his
office will look into the operation.
Meanwhile, U.S. Attorney General Eric Holder said Thursday
that the Justice Department was reviewing concerns raised by
civil rights groups about the surveillance.
If the Justice Department's Civil Rights Division launches a
full investigation, it could bring a lawsuit against the NYPD or
reach an agreement to change city policy.
"There are various components within the Justice Department
that are actively looking at these matters," Holder said. "I
think at least what I've read publicly, again, just what I've
read in the newspapers, is disturbing."
(Reporting by Joseph Ax; additional reporting by Joan
Gralla, Edith Honan and James Vicini)
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