Eleven plaintiffs bring arguments to US court of appeals over whether program can be challenged in court, a year after judge dismissed case

The 11 plaintiffs in the Hasan v City of New York case are a diverse group: an Iraq war veteran, university students, a coalition of mosques, and the head of a religious school for girls. All are united by their Muslim faith, their residency in New Jersey and the fact they were targeted by the New York Police Department in a mass surveillance program that their attorneys argue was both indiscriminate and unconstitutional.



On Tuesday the US court of appeals will hear arguments over whether the 11 have the right to challenge the program in court. Last February the New Jersey district court dismissed the case in a controversial ruling. Justice William Martini found that the “motive of the [surveillance] program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among among ordinary, law-abiding Muslims”.

But the extent of the program, devised in the aftermath of 9/11 and exposed in a series of Pulitzer prize-winning reports by the Associated Press in 2011, was eye-watering in its totality. It produced no convictions.



The NYPD dispatched plain-clothed officers or “rakers” to Muslim neighbourhoods in New Jersey, monitoring bookstores, bars, nightclubs and cafes. Rakers would compile surveillance papers, which according to plaintiff documents filed with the court of appeal would “catalogue religiously oriented facts such as:

Muslim prayer mats hanging on restaurant walls.

Flyers posted in shops advertising for Quranic tutoring;(iii) pictures of mosques hanging in grocery stores;(iv) restaurants that serve “religious Muslims” or that are located near mosques;(v) customers visiting Dunkin’ Donuts after Friday prayer;(vi) employees or customers of establishments observed wearing “traditional clothing;”(vii) and stores posting signs announcing that they will be closed in observance of Friday prayer.

The NYPD employed informants or “mosque crawlers” to monitor sermons and conversations inside mosques where there was no evidence of wrongdoing. The NYPD, the appeal documents say, “has tried to insert informants inside every mosque within a 250-mile radius of New York City; it has also prepared an analytical report on every mosque within 100 miles”.



The police force’s “demographics unit” – disbanded by NYPD commissioner Bill Bratton in 2014 – targeted “ancestries of interest” a designated list of 28 countries associated with the Muslim faith along with “American black Muslims”.

All this – along with other tactics – resulted in the plaintiffs complaining they feared discussing their faith in public and were forced to cut down their attendance to mosque.

According to documents filed with the appeals court, Syed Farhaj Hassan, a soldier in the US army working in military intelligence, feared his security clearance would be jeopardised and his reputation damaged among colleagues if it became clear he was under surveillance.

Justice Martini was not persuaded by plaintiffs’ legal team last year, who argued the program was in violation of the first and fourteenth amendment, enshrining the rights to practise religion.

Martini found the plaintiffs had been unable to prove they had been targeted for their religion and thus had not been able to prove any injury incurred.

In a twist that further alarmed civil liberties group, Martini’s ruling continued that it was the AP who were responsible for the plaintiffs documented grievances: “None of the plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents … The harms are not ‘fairly traceable’ to any act of surveillance.”

The court’s decision drew criticism from Muslim community leaders in New Jersey at the time. The De Blasio administration’s decision to continue opposing the case despite pledging race discrimination reform within the NYPD is controversial to this day.

The three-judge panel at the appeals court in Philadelphia is not expected to reach a decision on Tuesday with the hearing lasting only around an hour. But members of New Jersey’s Muslim community are scheduled to arrive, expecting progress in the near future.