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A federal appeals court has handed New York City one of those high-minded, imperial scoldings that make judges and their law clerks feel good about themselves but leave ordinary people less safe. Earlier this month, the Philadelphia-based Third Circuit Court of Appeals reinstated a lawsuit, dismissed by a district court judge last year, seeking damages and an injunction against the New York Police Department for its surveillance of Muslim communities in New Jersey after the 9/11 terrorist attacks. The surveillance program, shut down by Mayor Bill de Blasio’s administration in 2014, deployed undercover police officers and informants to monitor mosques and other Muslim meeting places in the New York metropolitan area in order to gather intelligence regarding potential terrorist activities. Following a series of Associated Press articles revealing the program, the leftist Center for Constitutional Rights brought suit in 2012 on behalf of several New Jersey mosques, Muslim-owned businesses, individual Muslims, and the Muslim Student Association at Rutgers University. The plaintiffs charged that targeting Muslims for surveillance of potential Islamic terrorist activity violated their rights to freedom of religion and equal protection. (The de Blasio administration has moved to settle two similar federal-court claims regarding the surveillance in New York.)

Judge (and former congressman) William J. Martini of the federal district court in New Jersey dismissed the suit in a February 2014 decision. The case turned largely on the technical legal doctrine of “standing to sue,” which requires that a plaintiff must have suffered an actual injury traceable to the defendant’s conduct. Martini held that the Muslim plaintiffs hadn’t suffered such injuries. He based his decision on a 1972 Supreme Court ruling that Army surveillance of domestic political activity didn’t create such an injury, even if it “chilled” the subjects from exercising their rights. Moreover, he found that if there was an injury, it was traceable not to the NYPD surveillance but to the AP disclosure of it. Martini also held that even if the plaintiffs had standing, they had no plausible claim of religious discrimination, because the “more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies.” Martini’s decision was a reasonable and commonsense application of the law. And, quoting the 1972 Supreme Court case, it cut to the heart of what this litigation is about—noting that what plaintiffs are really seeking is “a broadscale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross examination, to probe into the [NYPD]’s intelligence-gathering activities.”

The appeals court reversed Martini in a melodramatic decision evoking memories of Jim Crow-era racial segregation, wartime internment of Japanese-Americans, and other historical wrongs. On the legal issues, the court held that while surveillance alone is not an injury allowing a plaintiff standing to sue, surveillance allegedly based on religion is. Further, such surveillance should be subject to a “heightened-scrutiny” test requiring New York to produce substantial evidence to overcome a “presumption of unconstitutionality.” The decision all but compels a lower court ruling barring such intelligence gathering—thus tying the hands of Mayor de Blasio and his successors in responding to future terrorist threats.

The court’s rhetoric was even more troubling. “We have been down similar roads before,” the judges wrote. “Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind.” For good measure, the panel threw in several more citations to the 1944 Korematsu decision upholding Japanese internment. The panel’s easy analogizing of passive surveillance to active placement in internment camps raises the question of whether, in its view, sending informants into Japanese-American communities during the war, in lieu of rounding everyone up, would have been unconstitutional as well. The court’s didactic opinion unintentionally raises the question of proportionality in response to genuine danger.

Former attorney general Eric Holder—hardly a right-winger—noted in 2010 that the federal government had secured 126 indictments for homegrown Islamic terrorist plots during the previous two years, and that “the threat is real” and had “changed from simply worrying about foreigners coming here, to worrying about people in the United States, American citizens—raised here, born here, and who for whatever reason, have decided that they are going to become radicalized and take up arms against the nation in which they were born.” Subsequent hearings held by Long Island congressman and Homeland Security chair Peter King found increasing radicalization among a small but significant number of Muslims in this country.

In these circumstances, New York City’s Bloomberg-era effort to keep an ear to the ground in the Muslim community seems prudent, and Mayor de Blasio’s abandonment of this effort irresponsible. The Third Circuit’s haughty decision compounds this irresponsibility.


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