NYPD’s plausible deniability justified in Muslim spying records request case – court ruled

An appellate court has ruled that the New York Police Department can use the powers of a Cold War-era federal law to “neither confirm nor deny” whether investigative surveillance records exist on two Muslim American men.

The decision reached by a panel of judges presiding over the New York Supreme Court’s Appellate Division came in response to a Freedom of Information Act request in the Hashmi vs. NYPD case. 

Plaintiffs in the Hashmi vs. NYPD case had sued for access to investigative files that they believed the NYPD had compiled on them as part of a dragnet surveillance of Muslim communities that infiltrated students groups, mosques, and businesses beginning in 2002.

The judges found that the NYPD could invoke the Glomar doctrine because of “heightened law enforcement and public safety concerns,” according the Associated Press.

The plaintiffs were Samir Hashmi and Talib Abdur-Rashid. Hashmi was a member of a Muslim student group at Rutgers University between 2006 and 2011, and Abdur-Rashid is the imam of Harlem’s Mosque of Islamic Brotherhood and a prominent member of New York’s Muslim community. The Associated Press published a series of articles exposing the program in 2011.

The plaintiffs’ attorney, Omar Mohammedi, told the Village Voice in March that he hadn’t expected the police department to hand over the documents, but just to acknowledge that they existed, thereby confirming that the surveillance program was run as they suspected.

“[That] would be enough for, your honor. They just need to say the documents exist, and because of security reasons – whatever they’re claiming – they can’t release it,” Mohammedi said to the court in March, according to the Village Voice.

“It’s clear what they want to do,” Mohammedi continued. “They want to change this open policy in FOIL.”

The judges said the state’s public records law did not specifically prohibit agencies from invoking the Glomar doctrine, but that they should submit detailed affidavits to prove that the information falls within certain exemptions.

The ruling was appreciated by the NYPD.

“We are all safer because of this ruling, which confirms that the NYPD is not required to reveal the targets of counterterrorism surveillance,” said Nick Paolucci, a spokesman for the city’s Law Department, according to AP.

The Glomar doctrine was first put into practice in a 1976 federal court ruling that granted the CIA the right to refrain from admitting whether records existed related to the Hughes Glomar Explorer Ship which was used to salvage a sunken Soviet nuclear submarine.

The “Glomar response” had bearing in another recent FOIA case from 2004, when the American Civil Liberties Union sued the Department of Defense to force it to release documents and photos depicting abuse at Abu Ghraib prison. Senior Judge Alvin Hellerstein of the US District Court for the Southern District of New York rejected the Department of Defense and CIA’s use of the Glomar response in that case.