NEW YORK -- Undercover NYPD officers should be allowed to record peaceful conversations between Muslim Americans talking politics because of the "current events" of other Muslims' involvement in terrorism, a city lawyer argued in court Tuesday.
The city advanced the argument during a hearing on whether a decades-old lawsuit over police surveillance should be revived to curb NYPD investigations of Muslims.
"It perfectly demonstrates their attitude, their state of mind about people exercising their rights," said Imam Al-Hajj Talib Abdur-Rashid of the Majlis Ash-Shura of Metropolitan New York, a network of Muslim congregations. "It's kind of damned if you do, damned if you don't."
Peter Farrell, a senior counsel in the New York City Law Department, told a federal judge city police were within bounds in 2005, when they recorded Muslims arguing for peaceful protests against a Danish newspaper's publication of cartoons depicting Prophet Muhammad, which had sparked violent protests abroad.
"Whether it promotes violent behavior or doesn't promote violent behavior relates to the potential for unlawful activity," Farrell said. When concerned about the "ricochet" from terrorist events abroad, the NYPD has the right to record even peaceful statements, he said, because it "obviously need[s] to know both sides of the equation to make an assessment."
As The Associated Press reported last year, members of the NYPD's Demographics Unit recorded those conversations advocating non-violent protest, even though the conversations were protected by the First Amendment.
The city is being sued in a separate case brought by the New York Civil Liberties Union over whether its surveillance chills Muslims' constitutional rights. The arguments before U.S. District Judge Charles Haight on Tuesday, however, concerned a more limited question: whether the police are violating a set of rules known as the Handschu agreement that restrict their ability to conduct surveillance on peaceful political activities.
Those 1985 guidelines were loosened after the Sept. 11 attacks to allow the police greater latitude to investigate terrorism. Even the modified Handschu agreement, however, restricts the city's ability to record political activities unless it suspects a crime or a connection to terrorism.
The NYPD recorded conversations about the Danish cartoons and others, Farrell said, because of the "current events" of violent demonstrations or plots like the Times Square bombing attempt in 2010. He said such recordings were not a "systemic practice," because officers of the Demographics Unit, now known as the Zone Assessment Unit, have recorded only 207 conversations during 4,247 visits to Muslim sites over the past three years.
While the city sees the practice as limited, civil liberties advocates see it as widespread, making every Muslim wonder if they are being spied upon.
Jethro Eisenstein, a civil rights lawyer who has been arguing against the city in the case since it was first filed in 1971, responded in court that Farrell had espoused "what to me is the remarkable notion that if Muslims are talking peaceably, that also relates to potential terrorism."
"If you breathe in and out and you're a Muslim, it is information the police needs to retain," Eisenstein said, summarizing the city's argument.
The arguments in front of Haight on Tuesday concerned whether the city will be forced to produce more documents on its surveillance of Muslims. The city opposes further discovery in the case, and Haight did not immediately decide.
The Handschu case is so old that Abbie Hoffman, who died in 1989, was an original plaintiff. It was brought on behalf of a motley group of Black Panthers and anti-war demonstrators who were being tracked by the NYPD's intelligence wing. Since then, the Handschu guidelines have been revived by Judge Haight in an attempt to rebuke the NYPD for its surveillance of Iraq War protesters in 2005.
The original attorneys who brought the case in 1971 want to use the guidelines to limit the police surveillance of Muslims today.
Haight, 83, at one point briefly stopped court because of problems with his hearing aid. But the judge seemed keenly attuned to the importance of his long-running case, and well aware of the ongoing revelations in the press about NYPD practices.
"I've come to think of the case a volcano -- asleep most of the time, emitting the occasional mist of steam, but every now and then blowing up," Haight said in court.