A Post-9/11 Judgment

The post-9/11 conundrum of “security versus liberty” was addressed late last week in an unequivocating manner by federal judge William Martini in a Newark courtroom, in a ruling that has counter-terrorism officials claiming vindication and civil liberties advocates vowing to appeal.

Judge Martini dismissed a suit by Muslims alleging discrimination against them in the course of a broad surveillance program operated by the New York Police Department.

“The police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself,” Martini wrote. “The motive for the program was not solely to discriminate against Muslims, but rather to find Muslim terrorists hiding among ordinary, law-abiding Muslims.”

To be sure, this was not a matter of a couple of undercover cops hanging out at local mosques to listen for inflammatory sermons or conspiratorial whisperings. The surveillance was methodical and far-reaching. The NYPD made maps of local Muslim communities, spied on Muslim student organizations, and monitored Muslim businesses.

The NYPD does not deny this. On the contrary, they argue that everything was done in compliance with the law, as Judge Martini determined.

Furthermore, it did not occur in a vacuum. The surveillance program was initiated in the wake of 9/11. America had suddenly become aware of acute danger to public safety. The NYPD and other law enforcement bodies across the country were called upon to act immediately to identify the perpetrators and masterminds and to prevent any repetition of that catastrophic event.

Given the fact that 9/11 was a conspiracy of Muslim fanatics belonging to a worldwide network, common sense dictated that the Muslim community be a focus of investigation. Not a religious crusade, not to persecute anyone, but to protect the citizenry — including the law-abiding Muslim citizenry — from the violence of religious fanatics.

Similar law-enforcement efforts have been made in the past in response to various threats. Thus, revolutionary left-wing groups, Black Panthers, Puerto Rican nationalists, anarchists, communists and others were “profiled.” Those who have turned to subversion and terror to advance their causes naturally come under surveillance.

The constitutional doctrine of equal protection under the law doesn’t require us to relinquish our common sense. There are logical ways to differentiate between intelligent police work and unfair racial or religious profiling.

We want our law enforcement agencies to prevent terrorist attacks, not merely to catch the perpetrators after the dead and wounded lie scattered on the ground or buried under tons of debris. But if they are to do that, we must give them the tools and the latitude to use them, albeit within reasonable parameters.

Critics of the NYPD complain that the Muslim community was systematically spied upon without evidence of a specific crime or intent to commit one. An NYPD official “admitted in testimony under oath that despite the breadth of the program, it never resulted in a single investigation.”

What, however, is the alternative? Should we demand of counter-terrorism officials that they limit their investigations to people and places where they know criminality exists? But that is the purpose of the effort, to shine a light on dark corners, in order to find out if something evil is afoot.

It is part of the price we pay for law enforcement and counter-terrorism. There is no way to guarantee that innocent, law-abiding persons will never be treated unfairly in the course of police work. Even if we were to limit their assignments to directing traffic and writing parking tickets there would inevitably be allegations of profiling.

Regarding the question of what harm was actually suffered by the Muslim community in the region, Judge Martini’s opinion pointed the finger of blame not on police investigators but in an entirely different direction: “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.”

The Associated Press declined to comment on the ruling.

The AP, in its zeal on behalf of the public’s right to know has itself, the judge said, harmed the rights of the Muslim public’s right to privacy and freedom of religion.

We should not discount the chilling effect that government surveillance can have on freedom of speech and religion. And for that reason, the NYPD needs to continually review the program to make sure that it is kept within reasonable bounds.

But neither can we allow ourselves to fall captive to the unreasonable demands of civil libertarians. We will be hearing more of those demands in the near future, as Martini’s ruling is appealed and a similar case comes to trial in Brooklyn.

As the “security versus liberty” conundrum rolls on, media organizations like the Associated Press should take note of their own obligation to act in a responsible manner.