One Police Plaza

The NYPD's Muslim Spying: More Hype Than Substance?

October 19, 2015

A federal appeals court has reinstated a lawsuit that claims the NYPD’s spying on New Jersey Muslims violated their civil rights. The decision might seem like another nail in the coffin of Ray Kelly’s terrorism-fighting legacy.

But is it?

While top department officials acknowledge privately that Kelly’s overzealous spying was more hype than substance, the NYPD is defending the surveillance — at least in this case.

“We will defend it vigorously,” NYPD deputy commissioner for legal matters, Lawrence Byrne, said of the suit. “There’s been no finding by the court that the NYPD did anything wrong or anything illegal.”

Although the spying led to no arrests, department officials stand behind it. “Because it got them nothing doesn’t mean it wasn’t worthwhile,” said a former top department official. “It is not always about outcomes.”

But the appeals court decided that the plaintiffs have sufficient claims of religious-freedom and equal-protection violations. And, in reinstating the suit, the court overturned a bizarre decision by U.S. District Court Judge William Martini, who had ruled the spying had not violated Muslims’ civil rights. Instead, he blamed the Associated Press’s reporting on the surveillance program.

“Nowhere do plaintiffs allege that they suffered harm before the unauthorized release of the documents by the Associated Press,” Martini wrote.

During 2011 and 2012, the AP, with an assist from NYPD Confidential, published some two dozen stories based on secret documents from the NYPD’s Intelligence Division that exposed the widespread spying against Muslims, including those in New Jersey. The AP was awarded the Pulitzer Prize for its reporting.

The appeals court has taken a dim, though overheated, view of the spying’s effects. “What occurs here in one guise is not new,” wrote Judge Thomas Ambro. “We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind.”

Such reasoning is way over the top. Photographing mosques and taking down license plate numbers of parishioners — which is what the NYPD apparently did — is hardly comparable to interning Japanese-Americans during World War II.

In his recently released book, Kelly writes that the NYPD’s ubiquitous surveillance — which included spying on hundreds of mosques, schools, businesses, student groups, non-governmental organizations and individuals — prevented 16 plots against the city. [See NYPD Confidential, Sept. 5, 2011.]

Many of these plots were announced at City Hall news conferences with top local and federal law enforcement officials at the mayor’s side. A closer reading of Kelly’s plot descriptions tells a different story, though. A number of the plotters appear to have been encouraged or egged on by NYPD undercover agents and informants. AN NYPD informant was paid $100,000 in the Herald Square bombing plot. Another, in the Bronx synagogues plot, was paid $250,000 by the FBI.

“They may have stopped six plots, but they started 10 others,” a senior NYPD official said last week.

Although Bratton has disbanded the much denigrated Demographics Unit, the NYPD has kept most of Kelly’s policies in place, such as posting detectives to overseas hot spots. The department has also expanded its intelligence and counter-terrorism units.

“They are not abandoning these policies. To do so, to walk away from the entire exercise would be reckless,” a former top NYPD official said.

The difference is that the NYPD is now cooperating more with federal law enforcement and has toned down its rhetoric. Is it coincidence that we haven’t heard much about terrorist plots since Kelly left office?

Recently, for example, the department learned of two plots involving nine or 10 people. One involved a threat to behead Pamela Geller, a right-wing Jewish critic, who has been assailed by the Jewish Anti-Defamation League as a bigot. A second was to explode a pressure cooker bomb at a July Fourth celebration.

The department did not call a City Hall news conference to announce it had foiled the plots. Instead, it issued a news release.

“They don’t have to publicly justify what they are doing the way Kelly did by saying he is saving the world,” the former top NYPD official said. “The whole thing about intelligence is keeping it clandestine.”