In a move that could well have global ramifications involving the legal borders between national security and rule of law, a group of Muslim communities, businesses, mosques and individuals in the US last week filed a lawsuit against the New York City Police Department over allegations of unconstitutional surveillance.
The lawsuit, filed on June 6 by Glenn Katon and Farhana Khera, representing Muslim Advocates and Ravinder Bhalla of Bhalla & Cho, Llc, is categorised as a civil rights action to remedy the illegal targeting for surveillance of Muslims in the state of New Jersey based solely on their religion.
The suit says ''the plaintiffs seek an injunction prohibiting the NYPD from targeting them for unconstitutional surveillance, expungement of all records made pursuant to past unlawful spying, a declaratory judgement, and nominal damages''.
The lawsuit alleges that in early 2002, soon after the September 11 attacks, the NYPD began a secret spying programme to infiltrate and monitor Muslim life in and around New York City.
Focusing specifically on New Jersey Muslims, the NYPD is alleged to have ''conducted surveillance of at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools and two Muslim Student Associations, in addition to untold numbers of individuals who own, operate, and visit those establishments. The department has also created over 20 precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community.''
According to the lawsuit, ''The NYPD takes photographs and videos and collects licence plate numbers at mosques. It also utilises undercover officers and informants to infiltrate and surveil Muslim communities, including mosques, Muslim Student associations, and Muslim-owned businesses. Upon information and belief, the NYPD programme has not undertaken similar surveillance with respect to non-Muslim communities.''
Says the lawsuit, ''The NYPD programme is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that the Muslim community can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large.
''Through the programme, the NYPD impermissibly discriminates on the basis of religion and singles out plaintiffs' religion for disfavour and unequal treatment by police. By targeting Muslim organisations and individuals in New Jersey for investigation solely because they are Muslims or believed to be Muslim, the programme casts an unwarranted shadow of suspicion and stigma on plaintiffs and, indeed, all New Jersey Muslims.''
The lawsuit also outlines in detail how each plaintiff has suffered from the alleged stigmatisation.
For example, Syed Farhaj Hassan is a New Jersey resident and soldier who did 14 months of active duty in Iraq, including a period in military intelligence. The lawsuit says he has decreased his mosque attendance significantly since learning that the ones he attends have been under surveillance ''because he has a reasonable and well-founded fear that that his security clearance would be jeopardised'' and thus affect his career.
Two plaintiffs, both mosques, the Masjid al-Haqq and Masjid Ali K Muslim, have been a part of the Newark community for 30 and over 40 years, respectively. Both mosques are alleged to have seen a decline in attendance and contributions.
All Body Shop Inside & Outside owns and operates a retail store and cafe in downtown Newark. Its owners, Gary Abdul Karim Abdullah and Hamidah Abdullah, are Muslims.
A photograph and description of their store is included in the NYPD's Newark report, which has been widely publicised. Since people learned that the shop was under NYPD surveillance, the number of customers visiting the store has decreased and some customers have told the owners by telephone that they did not feel comfortable visiting the location because of the threat of NYPD surveillance.
Unity Beef Sausage Company owns a halal meat store in downtown Newark. The store typically experiences a rush of business after Friday prayer services, when many Muslims do food shopping and run errands. That rush slowed considerably immediately after the Newark report became public.
According to the lawsuit, the NYPD has designated 28 countries and ''American Black Muslim'' communities as ''ancestries of interest''.
The countries are: Afghanistan, Albania, Algeria, Bahrain, Bangladesh, Chechnya, Egypt, Guyana, India, Indonesia, Iran, Iraq, Jordan, Lebanon, Libya, Morocco, Pakistan, Palestine, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, Turkey, the United Arab Emirates, Uzbekistan, Yemen and Yugoslavia.
They constitute about 80% of the world's Muslim population. All but five of the countries on the list are more than three-fourths Muslim. Of these five, all but two countries are majority Muslim and one of the remaining two countries is India, which is home to 11% of the world's Muslims.
However, the NYPD does not surveil all people and establishments from these countries, but expressly chooses to exclude people and establishments if they are not Muslim.
Thus, for example, the NYPD does not surveil Egyptians if they are Coptic Christians, Syrians if they are Jewish, or Albanians if they are Catholic or Orthodox Christian.
The lawsuit says, the NYPD uses undercover officers called ''rakers'' to surveil places like bookstores, bars, cafes, and nightclubs. Informants called ''mosque crawlers'' monitor sermons and conversations in mosques.
The NYPD has sought to have an informant inside every mosque within a 400km radius of New York City and has, in fact, prepared an analytical report on every mosque within 160km, the lawsuit alleges.
It says NYPD officers monitor the websites of Muslim student organisations, troll chat rooms, and talk to students online. They sometimes pose as students. One officer went on a rafting trip with a Muslim Student association and recorded how often students prayed and that they discussed religious topics.
Says the lawsuit, ''The NYPD's blanket surveillance of Muslims casts guilt on all people of that faith by suggesting that Muslims pose a special threat to public safety. As targets of the NYPD's discriminatory programme, the plaintiffs and other New Jersey Muslims have, as a result, been gravely stigmatised and will continue to suffer, significant stigma.''
It notes that New York City officials think surveillance on the basis of religion is appropriate and will continue. It quotes Mayor Michael Bloomberg as having stated publicly, ''We're doing the right thing. We will continue to do the right thing.'' Police commissioner Raymond Kelly has said, ''We're going to continue to do what we have to do to protect the city.'' As the lawsuit makes clear however, under the the US constitution there is absolutely no justification for the NYPD to ''continue to target Muslims for investigation and pervasive surveillance simply because they are Muslims''.