5 Apr, 2012

Watching the Watchers: Arab-Americans Resent Being Under the NY Police Microscope

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Washington, DC, www.adc.org, March 30, 2012 — As part of the ongoing Arabesque Lecture Series, the American-Arab Anti-Discrimination Committee (ADC) hosted an event titled NYPD: The Community under a Microscope. This was the sixth lecture in the 2011-2012 series. (The event was streamed live online via ADC-TV. Click here to watch a full recording of the discussion.)

ADC was joined by three experts, including Lynne Bernabei a founding partner at the Law Firm of Bernabei & Wachtel; Sameera Hafiz, Policy Director at the Rights Working Group (RWG); and Ginger McCall, Director of EPIC’s Open Government Program and IPIOP Program. ADC Legal Director, Abed Ayoub, moderated the discussion.

The evening’s discussions focused on a topic of great importance that has received ever-increasing attention: the NY Police Department’s program of spying on Muslims, the legality of these actions, and the impact of this program on the Arab-American community. Each panelist offered insight on the events from the perspective of their own experiences and a lively question and answer session followed.

The evening began with a discussion on the possible legal challenges that could be brought in response to the actions carried out by the NYPD.

Bernabei gave an analysis of the specific types of possible claims, and the effectiveness of these claims. Using her expertise, she proffered the explanation that most claims regarding these actions by the NYPD would be brought under First and Fourth Amendment claims as well as the right to privacy.

With respect to First Amendment claims, she opined that, interestingly, jurisdiction and standing have not been an issue for courts with these actions in terms of claimants being able to show religion has been affected. Bernabei remarked that these cases must be brought, but that in reality, the first phase of cases is unlikely to be successful. Her take on the matter was that in order for these cases to be brought and in order to move forward, the issue would need to be rephrased into inquiring into “what is legitimate law enforcement activity?”

She explained that there is a lack of political will to restrain law enforcement, and that when conditions are as such, the agencies will do whatever they can get away with. Bernabei remarked that the situation would “be like starting over again from the 1960s” with respect to renewing these movements to bring about political will to keep accountability in the system.

More importantly, she explained that the situation needs to be looked at in terms of the fact that the police are in effect surveilling everyone, that the movement needs to reflect the fact that it could be anyone that could be surveilled under these types of practices. Bernabei spoke about the federal mandate involved and opined that at times, it is mandates like this that force local police into corruption by requiring their participation.

She closed her comments and questions by comparing this debate to the torture debate with respect to its effectiveness in terms of identifying “terrorists” or threats to national security, remarking that those people law enforcement seeks to find to prevent terrorism and threats to national security are found by traditional law enforcement means, programs like this, much like torture, rarely ever lead to the identification of people who are dangers to the United States.

Hafiz began her discussion by explaining RWG and its work in striving to restore the American commitment to protect civil liberties and human rights for all in the United States. She gave the audience insight into the composition of RWG as a coalition of civil liberties, human and civil rights, national security, and immigrant rights organizations that work together to restore due process and protect rights. Hafiz described the issues on the ground as a reflection of her work with the issues and the types of things being done to combat the unsavory surveillance program in which the NYPD has undertaken to participate.

She spoke about the End Racial Profiling Act, its importance and the historical background for the act, its support and current state in the US Houses of Congress. Hafiz made very important remarks on the fact that these programs, especially the NYPD surveillance program, have had many negative effects, primarily the breaking down trust between law enforcement and the communities they are supposed to serve.

She explained that these effects go far beyond the reach of issues dealing with counterterrorism and reach into areas of access to public service and even into the reporting of violence and domestic crimes. Further, she commented on the nature of the relationship of the NYPD to federal agencies such as the FBI and their possible roles in these types of programs.

With respect to the effectiveness of such techniques, Hafiz stressed that studies have shown evidence based policing as overwhelmingly the best way to solve cases, whereas profiling clearly is not. To support this point she offered the example of the NSEERS program, its ineffectiveness, and the stresses and strains it caused between the community and agencies.

McCall spoke on the work she does at EPIC and its relationship to the issue at hand as well as giving an enlightening overview of these types of data collection methods used by agencies across the board and the types of things that people in the community can do to make these methods more transparent. She remarked that there is a presumption within the agencies that more data is better with respect to national security issues, jokingly inquiring as to what relevance information collected, such as “this establishment is a place where international soccer games are watched,” has to issues of national security.

In addition to the collection of irrelevant information, McCall noted that the morphing of information – data being collected for one reason and used for another- is another immense problem with respect to these types of programs. The ease of information sharing is, in McCall’s opinion, a large part of the impetus for these major issues, as she explained that there is a large amount of “data drift” that takes place. She spoke about the copying of databases and secret databases, called fusion centers that are frequently used and largely unregulated. The lack of transparency and oversight over these types of data collection and sharing tactics are extremely problematic as well.

McCall spoke to the confirmed collaboration between federal agencies such as the CIA with the NYPD in these cases and the troubling nature of this interagency collaboration for such purposes. She stated that there is so much information being collected and shared that the danger of even small amount of misinformation being communicated is ever intensified.

When asked what steps EPIC has taken to combat this issue and similar issues, McCall remarked that they have filed numerous Freedom of Information Act requests as well as several state Open Records Requests. She remarked that the old adage “sunlight is the best disinfectant” is truly applicable to this situation and that it is especially true for the government. She stressed the importance of giving the people a chance to object to these types of practices and fighting against the current culture of fear and surveillance. Remarking on specific cases of GPS monitoring, such as US v. Jones, she stated that pervasive surveillance chills activity and reaffirmed the need for the courts to protect people from these types of intrusions. “A line needs to be drawn in the sand,” stated McCall, as the United States Constitution protects certain liberties as fundamental.

The panelists gave extremely insightful commentary on the issue from three differing perspectives and answered questions ranging from the possible utilization of drones to carry out such surveillance programs to what the NYPD could do to help rectify this situation.

The common thread of opinion was that the NYPD should stop their surveillance actions, be more transparent on what they are and having been doing with respect to their program, and be held accountable for the violations they committed in the course of carrying out this program. The audience participated in a rousing discussion of the issue and the evening offered a chance for those who were concerned about the issue to voice their concern and those not quite so familiar with the issue to enrich their knowledge.

ADC thanks each of the panelists for their participation and the wonderful insight they provided.