What a day to announce that the NYPD is retreating from its so-called Muslim surveillance — on the anniversary of the Boston Marathon bombing.
It turned out that the Boston terrorists still had six bombs with them and were headed for New York. They fled first to Cambridge, where they killed an MIT police officer and hijacked a car. They were halted by the local police in Watertown. But what might have happened had they reached our city? Would we know how to find them? And where would we look?
The killers, two brothers who’d been radicalized in the Muslim community in the Boston area, might have tried to blend in here with law-abiding members of our Muslim community.
But they would’ve had a harder time escaping notice because of the mapping and surveillance the NYPD had been doing. The minute it surfaced that the killers in Boston were Chechens, I’m told, the NYPD knew right where they might try to blend in here and in New Jersey.
That’s the missing element in Commissioner Bill Bratton’s decision to halt the surveillance.
Word that the surveillance would end, The New York Times reported, was conveyed at a meeting last week between Bratton and several advocates for the Muslim community. The Times quoted a community advocate as saying that the NYPD’s new intelligence chief, John Miller, told them that “the police did not need to work covertly to find out where Muslims gather.”
Others strongly dispute that. They say that the squad being shut down was able to do much more granular work because of its non-uniformed nature. Even the Times characterizes the unit’s shutdown as the first sign that Bratton “is backing away from some of the post-9/11 intelligence-gathering practices of his predecessor.”
It strikes me as an error in judgment in its own right and also because it comes in the face of two lawsuits against the city. In other words, the issue’s not just that the city is closing the unit, but also whether it will defend its right to have such a unit in the first place.
One suit is over whether the NYPD’s Muslim surveillance violates the Handschu guidelines. Those rules developed from a federal court case that began in the 1970s over investigations of the Black Panthers. They were somewhat modified after 9/11.
The other case, Raza v. New York, is being brought by a number of Muslims who complain that the city has “engaged in an unlawful policy and practice of religious profiling and suspicionless surveillance of Muslim New Yorkers.”
It would be a terrible thing were any government program to be animated by hostility to Muslims or their religion. That our national and local crackdown is not so animated has been marked since 9/11 by almost every leader in the country, from Presidents George W. Bush and Barack Obama on down.
But it would also be a terrible thing were the libel of religious bigotry to be attached to the NYPD, which is the danger of Raza v. New York. That “Muslim religious belief” could be “a basis for law-enforcement scrutiny” is, the plaintiffs argue, unconstitutional.
They say that their “religious goals, missions, and practices have been profoundly harmed.” They want, among other things, a declaration from the court that the NYPD has violated the Constitution. It strikes me as an error to let such allegations go unanswered in court.
Particularly given what happened when several members of the Muslim community in New Jersey tried to use similar arguments against the NYPD: They failed to get to first base.
A plainspoken federal judge, William J. Martini, threw the case out two months ago. He just wasn’t convinced that bias was behind the surveillance of Muslims.
After all, Martini wrote, the surveillance didn’t begin until after 9/11. Therefore it was undoubtedly connected to the attacks that occurred that day — when terrorists acting in the name of Islam hijacked planes and flew them into the World Trade Center.
In other words, Martini seemed to be reasoning, if it had been a question of bias, it would have started before 9/11. Plus, he cited precedents that require plaintiffs alleging “invidious discrimination based on religion” to “plead (and ultimately prove)” that the purpose was discriminatory.
That is: When terrorists are overwhelmingly Muslim, it’s not biased for the NYPD to familiarize itself with Muslim communities so it has a better chance of tracking down known terrorists who’ve come here.
Now, a federal district judge in New Jersey doesn’t set precedent for federal courts in New York. But even though it won in Jersey, the city won’t say if it’s going to continue to defend the cops in the suit here in New York.