Opening arguments were heard Tuesday morning in a new federal trial regarding the NYPD's Muslim surveillance program.
The civil rights lawyers who brought the lawsuit question whether the program is in violation of the Handschu guidelines, a set of rules that came out of a trial first filed in 1971 and decided in 1985 that dictate limitations on the NYPD's practices relating to political activity.
The issue at the heart of this case is whether NYPD has been tracking Muslim organizations and communities indiscriminately while also illegally keeping records of conversations that are political and do not involve any discussion of criminality or terrorism.
The suit was filed in February by civil rights lawyers who requested that the judge block surveillance without evidence of criminality and appoint a monitor to oversee the NYPD's surveillance activities.
On the trial's first day, it appeared city lawyers were balking at new requests from attorney Paul Chevigny and his colleagues following the release of new documents in the last month by two Associated Press reporters. Those documents appear to show that the NYPD had designated dozens of mosques, Islamic schools and Muslim student organizations "terrorist enterprises" in order to justify sweeping, invasive surveillance, often involving confidential informants or undercover officers, or both.
According to the Handschu agreement, police are welcome in any public place the same as any members of the public. But using confidential informants and undercover officers is not the same as attending a place as a member of the public, Judge Charles Haight pointed out in his opening remarks.
Chevigny recently filed a new motion requesting broad access to documents related to the Muslim surveillance program, but the city is offering documents related to a handful of specific incidents, such as the Danish cartoon depicting the prophet Mohammed, which incited anger around the world, and said Chevigny and his colleagues could pick two other subjects and receive access documents on those alone.
There was the suggestion that releasing more documents could be a security threat, especially for confidential informants and undercover investigators. City lawyer Peter Farrell emphasized repeatedly that the global climate following 9/11 was reason enough for the NYPD to have valid suspicions of plots against New York City by potential "Islamists radicalized to violence."
One of the issues in question is the recording of conversations that occurred inside the mosques and Muslim students organizations where the NYPD has conducted its surveillance.
Farrell noted that of 346 visits to various mosques and businesses, "only" 31 contain records of conversations. That amounts to 8.9 percent, which he insisted does not qualify as a pattern or "systemic practice."
And of more than 4,000 visits by officers over three years, from 2010 to 2013, 4.9 percent involved recorded conversations, which he also argued does not constitute a pattern.
But the issue at hand, Haight pointed out, is whether the conversations recorded involve actual terror plots or criminality. The judge wondered aloud whether it's possible that the other visits naturally did not involve conversations, that perhaps the people present "were taciturn and sat in stony silence."
That may not be plausible, he admitted, but his point remained: How could they be certain there were even conversations to be recorded in those instances?
The burden of proof is the question there, he noted, and while the burden of persuasion is on the plaintiffs, his question suggested a looming issue in this case: Will Haight's need for clarity require the city to produce the broader selection of documents the plaintiffs are requesting?
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