Judge’s Logic: Being Watched as a Potential Terrorist Is Only Damaging if You’re Informed

The Associated Press’
investigation exposing the New York Police Department’s fruitless
but intrusive surveillance of the Muslim communities in New Jersey
garnered Pulitzer Prizes for four of its journalists and inspired a
lawsuit against the city.

Unfortunately US District Court Judge William J. Martini

tossed out the lawsuit this week for lack of standing. He

ruled (pdf) that the plaintiffs, eight Muslims, couldn’t prove
any harm by having the New York’s finest constantly treating them
as suspects, and even if they could, the fault is on the Associated
Press for exposing the surveillance:

“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.”

This is a rather remarkable argument. If the plaintiffs’
reputations are harmed by being targeted for government
surveillance, the harms are not traceable to the surveillance
itself but to the exposure of the surveillance? That makes
no sense. If the surveillance was not potentially harmful, then its
exposure would not be relevant.

The judge also concludes that religion was not a contributing
factor in the fact that the NYPD was spying on all the Muslims they
could come across but rather the fact that the potential terrorists
were Muslims and would be found within the Muslim community:

“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 they found nothing. They didn’t have any actual targets.
These were fishing expeditions. They were snooping on grade
schools, for heaven’s sake.

Lest we forget, here’s a snippet of how this surveillance
actually played out, from the Associated Press
initial reporting in 2012:

A paid informant for the New York Police Department’s
intelligence unit was under orders to “bait” Muslims into saying
inflammatory things as he lived a double life, snapping pictures
inside mosques and collecting the names of innocent people
attending study groups on Islam, he told The Associated Press.

Shamiur Rahman, a 19-year-old American of Bangladeshi descent
who has now denounced his work as an informant, said police told
him to embrace a strategy called “create and capture.” He said it
involved creating a conversation about jihad or terrorism, then
capturing the response to send to the NYPD. For his work, he earned
as much as $1,000 a month and goodwill from the police after a
string of minor marijuana arrests.

“We need you to pretend to be one of them,” Rahman recalled the
police telling him. “It’s street theater.”

Rahman said he now believes his work as an informant against
Muslims in New York was “detrimental to the Constitution.” After he
disclosed to friends details about his work for the police — and
after he told the police that he had been contacted by the AP — he
stopped receiving text messages from his NYPD handler, “Steve,” and
his handler’s NYPD phone number was disconnected.

The Intercept (that’s Glenn Greenwald’s new jam) has
some responses to the ruling
here.