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Froomkin reports: "A federal judge in Newark has thrown out a lawsuit against the New York Police Department for spying on New Jersey Muslims, saying if anyone was at fault, it was the Associated Press for telling people about it."

Sheikh Reda Shata, in the men's prayer room at The Islamic Center of Monmouth County, N.J., where the NYPD's intelligence squad secretly assigned an undercover officer. (photo: Mel Evans/AP)
Sheikh Reda Shata, in the men's prayer room at The Islamic Center of Monmouth County, N.J., where the NYPD's intelligence squad secretly assigned an undercover officer. (photo: Mel Evans/AP)

Judge Tosses Muslim Spying Suit Against NYPD, Blames Reporters

By Dan Froomkin, First Look

22 February 14


federal judge in Newark has thrown out a lawsuit against the New York Police Department for spying on New Jersey Muslims, saying if anyone was at fault, it was the Associated Press for telling people about it.

In his ruling Thursday, U.S. District Court Judge William J. Martini simultaneously demonstrated the willingness of the judiciary to give law enforcement alarming latitude in the name of fighting terror, greenlighted the targeting of Muslims based solely on their religious beliefs, and blamed the media for upsetting people by telling them what their government was doing.

The NYPD's clandestine spying on daily life in Muslim communities in the region - with no probable cause, and nothing to show for it - was exposed in a Pulitzer-Prize winning series of stories by the AP. The stories described infiltration and surveillance of at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim student associations in New Jersey alone.

In a cursory, 10-page ruling issued before even hearing oral arguments, Martini essentially said that what the targets didn't know didn't hurt them:

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. 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.

The NYPD didn't publicize the program, the judge wrote. "The Associated Press covertly obtained confidential NYPD documents and published unredacted versions of these documents, as well as articles interpreting the documents."

The AP declined to comment.

Martini, a one-term Republican congressman from New Jersey, was appointed to the federal bench by George W. Bush in 2002. Previous critiques of his judicial conduct have been unusually blunt and public, including repeated rebukes at the appellate level and the local U.S. attorney's describing him in court filings as "misguided" and "irrational."

Nevertheless, Martini is still on the bench (it's very hard to unseat a federal judge). And his ruling was perhaps the most extreme example yet of what is becoming the nearly standard reaction by the modern American political and law-enforcement elite's reaction to exposure of secret conduct that merits public scrutiny: trying to shoot the messenger.

"In a suit like this, the complaint is that the government did the surveillance, not that it became public knowledge," Gregg Leslie, legal defense director for the Reporters Committee for Freedom of the Press, told The Intercept.

"The fact that the surveillance occurred is what causes a constitutional violation, so it's very disingenuous to say that any harm was done by any reporting on it. The harm was done when they violated the Constitution by spying on them."

Tom Rosensteil, executive director of the American Press Institute, told The Intercept that there are indeed cases where journalists should not publish everything they know. "These issues are not always so clear cut," he said.

But the key question, he said, is "Is the publication of the story in the public interest?" Does the benefit outweigh the harm?

"The notion that the press shouldn't be watching, and shouldn't be providing some healthy skepticism and check on government overreaching? We want the press to do that. Any inference that we don't want the press to be writing about these things would be a mistake," Rosensteil said.

Martini's ruling was also notable for its embrace of guilt by association:

Plaintiffs must plead sufficient factual matter to show that the City adopted and implemented the surveillance program not for a neutral, investigative reason but for the purpose of discriminating on account of religion. … [T]he Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. 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.

But as Samuel Bagenstos, a law professor at the University of Michigan and former official in the civil rights division of the Justice Department, told MSNBC's Adam Serwer, that's not the way it works. For instance, he said, "A police department cannot specifically target African-Americans for surveillance on the ground that the department is seeking to identify crime within the black community."

The case, Hassan v. City of New York, was filed by Muslim Advocates and the Center for Constitutional Rights, on behalf of a broad group of American Muslims, including a decorated Iraq war veteran and the former principal of a grade school for Muslim girls.

"In addition to willfully ignoring the harm that our innocent clients suffered from the NYPD's illegal spying program, by upholding the NYPD's blunderbuss Muslim surveillance practices, the court's decision gives legal sanction to the targeted discrimination of Muslims anywhere and everywhere in this country, without limitation, for no other reason than their religion," Center for Constitutional Rights legal director Baher Azmy said in a statement. "It is a troubling and dangerous decision."

"The fight is not over by any means. The surveillance program violates the Constitution, and we are confident that this decision will not hold up to review upon appeal," Glenn Katon, legal director of Muslim Advocates, said in a statement.

I really hope this decision doesn't stand," the lead plaintiff in the suit, Syed Farhaj Hassan, an Iraq war veteran, told the New Jersey Record. "I have dedicated my career to serving my country, and this just feels like a slap in the face - all because of the way I pray." your social media marketing partner


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+67 # Edwina 2014-02-22 11:09
Another blow to civil liberties, including freedom of the press.
+18 # lorenbliss 2014-02-22 19:26
With the greatest respect, Edwina, what is being done to us is infinitely worse than "blow(s)" to our civil liberties. To understand the magnitude and objective of the One Percent's assault on the rule of law, and why the Democrats are as instrumental as the Republicans in subverting the Constitution, the best source is probably "The Rise and Fall of the Third Reich," by William L. Shirer (Simon & Shuster: 1959).

Apropos the total corruption of the U.S. judiciary, the parallels described in the section entitled "Justice in the Third Reich," pgs. 268-274 (1981 edition), are especially damning. "The law was what (the Leader) said it was...with the power to do to death whomever he pleased."

Sound familiar?

Welcome to the Fourth Reich.
+40 # AMLLLLL 2014-02-22 11:28
There should be a provision in every Federal judge appointment that overturned decisions are an indication of need for review/ unseating.
+24 # BobboMax 2014-02-22 12:23
@AMLLLLLL- Interesting thought. The flip side of that argument is the judge who stands as a lone bastion against the abuses of the government, who may make decisions that are arguably very good, but reversed by a corrupt higher court. (SCOTUS comes to mind as an example of a "corrupt higher court.")
+52 # Majikman 2014-02-22 11:51
This is another part of Bush's legacy: bigoted, irrational judges with total contempt for the law they are sworn to uphold.
+21 # fishmother 2014-02-22 12:13
All of the above. And because there are judges who, in addition to overturned decisions, prove to be basically unable to make unbiased rulings and so prove themselves unfit to sit on the bench 'till death do them part!
+22 # jwb110 2014-02-22 13:31
The New Reign of Terror from the country we are citizens of.
+15 # curmudgeon 2014-02-22 14:58
Now we understand the plan put in place during Reagan Adminstration focusing on education and federal judgeships
+20 # vicnada 2014-02-22 15:32
A decision as unworthy as the President who appointed him.
+20 # ericlipps 2014-02-22 16:37
Oh, this is rich. The plaintiffs had no grounds to sue because they do not allege they were harmed before the media exposed the spying operation?

Should they even have to? The self-evident point of the suit was that the government was subjecting them to secret surveillance on the basis of their ethnic and religious identity. If the charge is true, that qualifies as harm automatically, whether or not anyone was, say, spirited away to Guantanamo. One wonders what this judge would have said if the targets had been white Christians and the supposed objective had been to ferret out criminal activity in the militia movement.
-38 # Kiwikid 2014-02-22 17:26
As a white Christian, why would I be worried about being spied upon unless I had something to hide. The reality is that Christians are the most persecuted religious group on the planet - particularly in Muslim majority countries.
+19 # keenon the truth 2014-02-22 20:30
Crawl back under your stone.
-11 # Kiwikid 2014-02-23 15:47
Wow! Such venom. Are you really like this face to face, or is this just keyboard courage? I did have a dose of 'blogger's remorse' after making the post (RSN has no apparent mechanism for re-call) - I guess we all have to live with the consequences of what we post - for good or ill.
+5 # John S. Browne 2014-02-23 02:30

NUTCASE FASCIST ALERT! This judge needs to be put out to pasture! He's insane! And he has absolutely no respect for The People who are supposed to run this country, and the supreme law(s) of the land, the U.S. Constitution and Bill of Rights! The madness of these judges is the rule of the day! They believe the people are "property" to be dealt with as they please, under Admiralty Law! In short, as I said, they're insane!

Of course, at least one Federal District Court judge has been known to say that he "won't let the Constitution in 'his' courtroom"; so, you see, the courtrooms supposedly aren't the People's courtrooms anymore, but are supposedly 'owned' by these extremist, fascist judges, all the way down to the state and county level. They think that we're all "chattel" (aka, slaves) who are "owned" by the state.

We the People have to take this country and its government back, or we're all going to be "toast" at the hands of these anti-American, un-American, globalist extremists!

+5 # Kathymoi 2014-02-23 11:50
"...the court's decision gives legal sanction to the targeted discrimination of Muslims anywhere and everywhere in this country, without limitation, for no other reason than their religion,"
I believe that in fact, this is happening. The military, the government,the NSA, all of these together have the capacity to spy on individuals for no reason other than their religion or their country of origin or the cultural derviation of their name, or for association with others whose names, country of origin, or religion are Muslim-related. If your name is Mohammed or you have a friend named Mohammed, for instance, you are probably a target already, wherever you live in the US and whatever you do. This is already happening. ---I can hope that this case goes to a higher court and that the higher courts reverses this decision. This is not a minor issue.
-10 # Kiwikid 2014-02-23 22:21
The problem that you have is that after the 7 July 2005 bombings in London, the Muslim population of the UK was surveyed. A full 1/3 of its population believed the bombings to be justified. Radicalisation seems to be such a small and apparently readily sanctioned step in the Muslim community, that the government has reasonable cause to be concerned.
+3 # John S. Browne 2014-02-23 23:00

It's too bad that that one-third, and you apparently as well, don't know that the London 7-7 bombings were a government inside job, as much of the evidence has proven; but I'm sure that at least another third of London Muslims, and probably most Muslims, know it, or at least suspect it. One of the key pieces of evidence was that the carriage floor of the train was blown upwards by a bomb that obviously had to have been planted underneath the train (not by the kids who were the so-called "bombers", who were patsies thinking they were helping, and being paid by, their government in a "terrorism drill", and sent to their deaths to ramp-up planting the fear of terrorism in the populace so the government could do away with civil liberties, etc., as was done in the U.S. with 9-11). If one of the kid's backpack bombs had caused that carriage explosion, the floor would have been blown DOWN-, not up-, wards. There is other strong evidence that it was an inside job as well.

The kid on the double-decker bus wasn't where he was supposed to be, on the train, because he started to suspect that something was up; and, as the video of his sitting on the upper deck of the bus showed, he started to look inside the backpack and the bomb in his pack went off. If he was a terrorist bomber, and was meant to bomb the bus, rather than the train, he likely would have been on the lower deck of the bus where more people could be killed.

+3 # John S. Browne 2014-02-23 23:36

Look closely, too, at the other video of the kids entering the train station. It shows them being "happy-go-lucky " and "footloose and fancyfree", as if they didn't have a care in the world; which is completely unrealistic. The promoters of and those who accept the official story, aka the government-manu factured conspiracy theory, will claim that the kids were allegedly looking forward to going to meet the seventy virgins or whatever it is, in the afterlife; but that's bullshit. They would have been scared if they knew they were about to blow themselves up; and, at minimum, would have had somber, if not clearly fearful, looks on their faces in the video.

Those poor kids were dupes who were dumb enough to fall for the promises of the government agents, who were their controllers, that talked them in to "helping their country" and taking part in the "drill" as a "lark", or "bit of fun", for "some extra cash". The whole official fairy tale stinks to high heaven, just as the official conspiracy theory of the what, how and why of 9-11 does as well.

+4 # John S. Browne 2014-02-23 23:36

Thus, anyone and everyone who trusts these governments anymore, is a fool. I sure wish that all Muslim kids would take a very hard-learned lesson from it, that if your government comes up to you, and/or otherwise contacts you, in an attempt to recruit you into "a harmless bit of fun", and supposedly "help your country", to think that there's probably more going on than meets the eye, not to trust the government personnel, and to refuse to take part in the scheme in any way whatsoever.

+2 # Ja-Roz 2014-02-25 11:18
I recently spent 5+ years in Europe where the hatred and fear of ones neighbor countries is a universal presence. The antipathy of northwest Europeans for southwest Europeans and for Moslems before that goes back a long way. As for the Jews and pre-moslem peoples it goes biblical. Are these ancient hatreds resolvable? Probably not. Whenever they are allowed to flair up and justification for them is found acceptable there is very real danger. I find this event extremely frightening !!!!

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