Profiling is a tactic used by police and security agencies in which people are treated as suspicious because of their racial or religious identity and subjected to heightened scrutiny. By 2000, there was a bipartisan consensus in the United States that the pervasive use of such tactics was inherently discriminatory and therefore unjust. Then 9/11 happened, and profiling got a new lease on life. Racial and religious profiling of Arabs and Muslims intensified, and remains a staple of counterterrorism and homeland security. In one of the most egregious examples, the New York Police Department (NYPD) instituted a program to send undercover police officers to spy on Muslim Americans across the northeastern United States. In 2012, several Muslim Americans jointly filed a federal lawsuit, demanding an immediate end to the scrutiny of innocent Muslims based solely on religion. Last month, Judge William J. Martini dismissed that lawsuit, ruling that every single Muslim American is a legitimate target of surveillance.
The Associated Press (AP), in a Pulitzer Prize-winning investigation, revealed the NYPD operation in 2011, publishing details on teams of undercover police officers that spied on people who attend mosques, frequent Middle Eastern restaurants, or belong to Muslim Student Associations. The program has been an intelligence-gathering failure. According to the NYPD itself, a decade of spying found no leads at all much less anything that helped to prevent a terrorist attack.
Meanwhile, the program has transformed the lives of Muslim Americans. After learning that police write down the license plate numbers of cars parked near popular hangouts, many avoid their favorite cafés and restaurants lest their names show up on watch lists. Some Muslim Americans reported that they keep silent on politically controversial topics, even in private conversations, because they worry about electronic eavesdropping. A groundbreaking report from the Muslim American Civil Liberties Coalition found that the NYPD’s blanket surveillance not only silenced speech and curtailed political activism; it also suppressed religious freedom – in some instances causing “imams [to] hesitate when advising their congregants.”
Despite the damage caused by the aggressive NYPD surveillance, Judge Martini reasoned that the NYPD had no choice if it wanted to prevent what he called “Muslim terrorism.” Even more controversially, Judge Martini asserted that if any harm had come to pass, it happened not because of the NYPD’s actions, but rather because journalists had exposed the existence of the classified surveillance program. “Nowhere in the complaint do the plaintiffs allege that they suffered harm prior to the unauthorized release of documents by The Associated Press,” Martini observed. “This confirms that plaintiffs’ alleged injuries flow from The Associated Press’s unauthorized disclosure of the documents.” But Martini ignored the obvious flaw underpinning the NYPD’s case: the threat posed by Muslim American terrorism cannot possibly justify the NYPD’s extraordinary program.
Those who defend the NYPD maintain that discriminating against Muslim Americans is justified because terrorism committed by Muslim Americas is a uniquely dangerous threat. After the heinous Boston Marathon bombing in 2013, which was carried out by two Muslim Americans, it is perhaps too easy to accept this notion as fact.
But research shows that Muslims are no more likely to commit atrocious acts of mass murder than anyone else in America. A recent study based on FBI data counted forty-five terrorist plots from Muslim Americans and eighty terrorist plots – nearly twice as many – from non-Muslims (such as white supremacists and right-wing extremists) in the decade after September 11. Sociologist Charles Kurzman at the Triangle Center on Terrorism and Homeland Security has confirmed that terrorism carried out by Muslims Americans represents a “miniscule threat to public safety.” Kurzman’s most recent study counted twenty-four killed since 2005 in the United States in terrorist attacks carried out by Muslim Americans. He noted that the four killed in the Boston Marathon bombing were the first and only such victims since 2009. For comparison, consider that since 2005, at least sixty people have died in incidents linked to college fraternities in the United States. By this measure, fraternities are more than twice as dangerous to Americans as Muslim terrorist organizations. Another report found that “Americans are as likely to be killed by their own furniture as by terrorism.”
More seriously, mass shootings have taken the lives of far more Americans than terrorism in recent years. Nearly two hundred people have been killed in this way since 2005, including six Sikh worshippers in Wisconsin. Still, the NYPD insists that they must discriminate against Muslims to protect New York City from the threat of terrorism. Stopping terrorism should of course be a high priority for the NYPD. But can this priority justify the harms caused by singling out Muslim Americans en mass? After all, the damage caused by this program does not harm only Muslim Americans. All Americans are harmed when fundamental civil rights are violated in the ostensible service of greater security.
The federal lawsuit filed in New Jersey was the first legal challenge to the NYPD’s program. After New Jersey’s Attorney General concluded that the NYPD did not violate any state laws there, a group of Muslim Americans filed suit, arguing that their constitutional rights were violated by the NYPD’s intentional discrimination. Plaintiffs in Hassan v. City of New York argued that the NYPD’s program had sent waves of fear through the community. Glenn Katon, legal director of the civil rights organization Muslim Advocates, said the NYPD program caused harm across a wide range of innocent people, including “moms who fear sending their children to school, students who simply want to pray, and Muslim-owned businesses that have lost customers.”
The NYPD’s discriminatory program causes these harms to Muslim Americans directly, and it also contributes to racism and violent hate crimes affecting people who “look Muslim,” especially Arab, Sikh, and South Asian Americans. When the police exert such extraordinary effort to monitor Muslims, it validates the bigotry that people who “look Muslim” are more likely to be dangerous. Sunando Sen, a Hindu New Yorker originally from India, was killed in 2012 by someone who thought he was Muslim. Shortly after that, a seventy year old man in Queens was brutally beaten by men who asked if he was “Hindu or Muslim.” These attacks are so commonplace that the FBI recently added new categories for “anti-Arab” and “anti-Sikh” hate crimes to its annual hate crimes report.
Civil rights advocates have long argued that “religious profiling” is not only unconstitutional, but it also contributes to hate crimes like these. Former New York City Mayor Michael Bloomberg nevertheless consistently defended the NYPD’s program, insisting that it was an essential counter-terrorism tool. Since becoming New York’s Mayor in January, Bill de Blasio has not directed any change to the NYPD’s Muslim spying program. Given the staunch support from New York City’s elected leaders, lawsuits seemed to be the only option open to advocates.
Critics of Judge Martini’s ruling to dismiss the case in New Jersey, including Baher Azmy, legal director at the Center for Constitutional Rights, find parallels between this ruling and the internment of Japanese Americans during World War II. In Korematsu v. United States (1944), Justice Hugo Black upheld the Japanese Internment, arguing that if the executive branch asserts that a danger comes from a particular minority community, then the court cannot stop them from discriminating against that minority community. Today, the Korematsu decision is seen as reprehensible and racist, but legal scholar Jerry Kang argues that the Supreme Court never fully left Korematsu behind. In 1983, a Supreme Court opinion maintained that they had been duped by the military into giving unjust rulings in support of Japanese Internment. Kang finds that the failure of the Supreme Court to effectively repudiate the Korematsu decision means that history can repeat itself, and a minority group can face discrimination any time the executive branch or its agents in the police asserts that this is vital to national security.
In the NYPD case, Judge Martini, who was appointed to the federal bench by President George W. Bush in 2002, argues that anti-Muslim discrimination should be legal because national security is at stake. This suggests that the lessons of the Japanese internment have been forgotten. Muslim American advocates have met with stiff resistance in their efforts to curtail discrimination, with opportunistic political leaders constantly invoking the threat of Muslims as a scare tactic to motivate voters. All the while, discriminatory counterterrorism programs have grown.
The case dismissed in New Jersey will not be the last word on the NYPD program, however. Another federal case is pending in Brooklyn, New York. Lawyer Hina Shamsi, working with the plaintiffs in that case, asserted that she is “not worried” after Martini dismissed the other case in New Jersey. It remains to be seen whether Muslim American civil rights advocacy can successfully stop even a blatantly discriminatory program.