Today I received a letter in response to my FOIL request (below) send to the NYPD. It is dated 9 March and states, in part, “…a further review is necessary to assess the potential applicability of exemptions set forth in FOIL, and whether the records can be located. I estimate that this review will be completed, and a determination issued, within twenty business days of the date of this letter.” It was signed by Richard Mantellino.
So, hopefully before 6 April I will have a final determination on my FOIL request. Make sure to check back for updates!
ORIGINAL POST (2 March):
As my readers should know, the NYPD has a surveillance program which targets Islamic groups throughout the northeastern part of the United States. And they claim that it is legal. I’m skeptical.
Surely the 4th Amendment assurance against unreasonable searches is implicated here. The Supreme Court has recently held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” While the data collection of groups of individuals based on religion is greatly different than the case in US v. Jones, there are enough issues here to raise ‘red flags’ of possible unconstitutionality. Moreover, such targeting based solely on religion seems to run counter to the spirit of the 5th and 14th Amendment assurances of the equal protection under the law for all citizens.
I would like to quote Justice Murphy’s dissent from the famed Korematsu decision regarding the internment of Japanese-Americans during World War II:
I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must, accordingly, be treated at all times as the heirs of the American experiment, and as entitled to all the rights and freedoms guaranteed by the Constitution.Korematsu v. U.S., 323 U.S. 214, 242 (1944). What we have with the actions of the NYPD certainly appear to be legalized discrimination against a religion.
However, this issue shouldn’t be thought of in a strict legal sense. To paraphrase Dennis Parker of the ACLU, 'What is at stake is the kind of country we choose to be. Any willingness to accept the abridgement of the rights of some in the name of national security erodes the very foundation of our nation. We must recognize that injustice anywhere and against anyone is injustice against us all.' The experience of humanity has shown that blanket group-based presumptions on the part of the government harm the innocent more than they deter the guilty.
In the end, I am not qualified to give a legal opinion on the issue; I can say that I find in contention with my notion of civil liberties and equal protection. Does the NYPD really have solid evidence to suspect each individual targeted—enough to warrant such surveillance? What is the full scope of such surveillance? There is a lot that the public doesn’t know.
But the public must know. The public—as the ultimate sovereign—should know the legal and constitutional basis for the wholesale panopticon-esque, Big Brother-esque surveillance on a minority group. This again makes American appear reactionary and bigoted around the word. As such, in order to find out more, I have filed a FOIL request—that is, I have invoked the Freedom of Information Law as a citizen of the State of New York to compel the NYPD to provide any records they have on this program.
Unfortunately, there are several law enforcement exceptions to this law that the NYPD will likely claim, but I wish to at least indicate to them that the public needs to know more about what is going on with this program. So, while I don’t think I will be receiving any more documents like the AP has received from a source, I might get something to share here.