The first legal challenge to the New York police department’s blanket surveillance of Muslims in the wake of the 9/11 terrorist attacks has been dismissed by a federal judge in New Jersey in a ruling that lawyers acting for the plaintiffs have described as preposterous and dangerous.



Judge William Martini, sitting in the US district court for the district of New Jersey, threw out a lawsuit brought by eight Muslim individuals and local businesses who alleged their constitutional rights were violated when the NYPD’s mass surveillance was based on religious affiliation alone. The legal action was the first of its type flowing from the secret NYPD project to map and monitor Muslim communities across the east coast that was exposed by a Pulitzer prize-winning series of articles in 2011 by the Associated Press.

In his judgment, released on Thursday, Martini dismisses the complaint made by the plaintiffs that they had been targeted for police monitoring solely because of their religion. He writes: “The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001. The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself.”

Baher Azmy, legal director of the Center for Constitutional Rights that represented the plaintiffs along with attorneys from the civil rights group Muslim Advocates, said that the ruling was dangerous. He equated it with the now widely discredited US supreme court ruling in 1944, Korematsu v United States, that declared constitutional the blanket internment of Japanese Americans during the second world war.

“The dangerous part is that Martini’s ruling sets no limits on racial profiling of Muslims. You don’t have to deeply unpack this to see that it is wrong,” Azmy said.

Legal documents lodged as part of the dismissed Hassan v City of New York lawsuit recount that as as part of its massive surveillance programme, the NYPD homed in on Newark and Muslim communities in New Brunswick and other parts of central New Jersey. The mission attempted to secure informants within every mosque within a 250-mile radius of New York city with “mosque crawlers” deployed to monitor conversations and sermons.

Undercover officers, known as “rakers”, were sent into cafes, bars and bookstores in neighbourhoods with a large Muslim population. The NYPD closely monitored the activities of the Muslim Student Association at Rutgers University and other New Jersey colleges, as well as a predominantly black Newark school for Muslim girls, Al Muslimaat academy.

The owners of the school, as well as the Muslim student association, were among the plaintiffs in the Hassan case.

The Martini decision absolves the NYPD of having caused distress or damage to Muslims caught by its mass surveillance on the unusual grounds that were it not for the Associated Press disclosure of the secret programme, those targeted by the monitoring would have been unaware that it was happening.

“The Associated Press covertly obtained the materials and published them without authorization. Thus the injury, if any existed, is not fairly traceable to the City,” Martini writes.

Later in the judgment, he adds: “Nowhere in the complaint do plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not ‘fairly traceable’ to any act of surveillance.”

Azmy called this argument “preposterous”. “It’s like arguing that you suffer no harm if your spouse is cheating on you as long as you know nothing about it, and that the blame lies with the messenger for telling you about it.”

The plaintiffs in Hassan v US will now appeal the dismissal of the lawsuit. A similar case relating to the NYPD’s mass surveillance of Muslims in New York is ongoing in the Brooklyn courts.