I.
What’s the harm in surveillance? The question was posed indirectly over two years ago when the Associated Press launched the first in a Pulitzer Prize-winning series of investigative exposés drawing on leaked files from the New York City Police Department’s then-Intelligence Division (recently renamed Intelligence Bureau). The documents outlined a vast domestic spying operation targeting American Muslims for surveillance, mapping, and infiltration. No one seems exempt. Cabdrivers, food-cart vendors, and college students are all fair game, and not a single detail of their lives is deemed too trivial to record. [Editor’s Note: The NYPD disbanded the Demographics Unit that surveilled New York’s Muslim community in April, 2014.]
While the NYPD program mostly does not rely on advanced technologies akin to the ones we now know the National Security Agency deploys, an examination of the program and its impacts is nonetheless relevant to the larger question of surveillance and its harms. New York City Mayor Michael Bloomberg and Police Commissioner Ray Kelly defended their Muslim surveillance program as harmless and legal. But directly affected communities throughout the city’s five boroughs begged to differ. They were experiencing firsthand the devastating effects of surveillance and wondered how a program that focused police surveillance on a single faith community could pass constitutional muster.
Activists and organizers in those communities convened a large meeting in August of 2011 and tasked CLEAR, a clinical project that I supervise at CUNY School of Law, with exploring responses, both in and out of court, to those two claims by the Commissioner and the Mayor. CLEAR stands for Creating Law Enforcement Accountability & Responsibility.
In partnership with our allies at the Muslim American Civil Liberties Coalition and the Asian American Legal Defense and Education Fund, CLEAR published a report debunking the claim that surveillance was harmless. That report, titled Mapping Muslims, detailed the myriad harms of police surveillance on New York City’s Muslim communities. Its lead author, CLEAR Staff Attorney Diala Shamas, deserves recognition for that Herculean effort.
To the communities that the NYPD targets, our report shows, the leaked surveillance files were not revelations, but they were painful confirmations of what everyone already knew or suspected for years: that, instead of simply protecting and serving Muslim New Yorkers, the NYPD was spying on them.
The harms include parents telling their children not to dress too Muslim.
They include the Muslim Students Association at Hunter College putting up a sign in its club room asking members to “please refrain from political conversations.”
They include a Muslim-owned restaurant banning the Al-Jazeera channel for fear of drawing police attention.
And the harms also include a deeply damaged relationship between the NYPD and the communities it is tasked with serving. Many Muslim New Yorkers now think twice before filing a complaint with the police about a stolen phone or even before asking for directions from a cop.
But city officials had also claimed that the NYPD’s Muslim surveillance program was legal.
To counter that claim, CLEAR, in collaboration with the American Civil Liberties Union and the New York Civil Liberties Union, went to court on behalf of a group of Muslim New Yorkers, imams, mosques, and a charitable organization.
Our lawsuit, Raza v. City of New York, highlights how the NYPD’s surveillance of our clients violated their constitutional equal protection and First Amendment rights. The harms described in our complaint include mosques losing congregants due to the climate of fear that surveillance occasions; imams censoring commentary on current events, being wary around newcomers, and spending scarce funds to record everything that is said in the mosque so it cannot be taken out of context by police informants; and non-profits not being able to fulfill their charitable mission.
It is noteworthy that many of the aforementioned harms had materialized before the Associated Press released its first story in August of 2011.
While the NYPD Intelligence Division’s surveillance effort was covert by design, few intelligence operations are executed perfectly, and the odds of discovery only increase with the scope and duration of the operation.
The NYPD has been spying on entire communities for over a decade so, inevitably, some members of those communities noticed the unusual police activity in its various forms. This included the installation of cameras and detectives showing up at mosques suddenly, falsely claiming that vague, anonymous complaints had brought them there.
In this significant way, we know that those harms stem directly from surveillance, and not from subsequent media attention.
The harms that surveillance brings are not limited to the moment—they ripple out in time and space. College students are silenced so their communities lose a generation of outspoken activists and leaders. Political expression is stymied so entire communities are marginalized or excluded from civic participation and from contribution to societal debates on pressing domestic and foreign policy issues.
And, of course, when high-ranking officials such as Commissioner Kelly and Mayor Bloomberg publicly embrace and defend discriminatory surveillance, they further entrench the stigmatization of already unpopular minority groups, setting the stage for hate crimes and other interventions by private, non-state actors.
II.
Proponents and apologists of the NYPD’s Muslim surveillance program may well dismissively characterize these harms as unintended—perhaps even regrettable—side-effects.
But, original intentions aside, just how unwanted are these results?
Fear of an omnipresent surveillance apparatus—be it the NYPD in local American Muslim communities or the NSA in the world at large—certainly does not yield an outcome that is inconsistent with the accumulation of power by those who already possess and wield it.
In other words, the suppression of dissent; the silencing of unpopular viewpoints held by members of marginalized communities; the dissolution of vital social ties in those same communities; the censorship or self-censorship of critical perspectives opposing major U.S. foreign policy endeavors in our current historical moment; the general slackening of resistance—all of these are welcome disruptions in our rulers’ eyes.
They are consequences that the State, writ large, is more than willing to accept or even embrace because they are largely consonant with the aspirations of the powerful.
In that light, it becomes easier to see how some have intentionalized surveillance policies in relation to their outcomes. The teleology of surveillance is indeed tempting when entire communities have internalized the assumption of government surveillance, resulting in an amplification of the State’s control and dominance over its citizens.
Yet, in my view, conflating outcome with intent veers too close to conspiratorial thinking. That state actors may be perfectly willing to take advantage of a situation does not necessarily mean they endeavored to bring it about.
This may hold particularly true with regard to NYPD and NSA surveillance, both of which were initially intended to be covert. The intention to send a message to certain communities or to the world at large is hard to reconcile with the original secrecy of those surveillance programs.
Of course, the leaks that led to the unmasking of both NYPD and NSA surveillance were far from unprecedented.
And, yes, the devastating consequences and the vast paralyzing effects on community life and expressive activity that all flow from leaked information about these programs were equally easy for policymakers to anticipate.
But that does not mean the policymakers set out to achieve those results. It probably means, however, that policymakers were indifferent—perhaps deliberately so—to those predictable outcomes.
III.
So what, then, is the point of surveillance? If not to send, Stasi-like, a chilling message reverberating through society’s entire web, then what?
The question only gained in poignancy when ProPublica debunked the NYPD’s claim that surveillance disrupted 14 terrorist attacks. Or when the Senate oversight committee called the NSA’s bluff—nay, the NSA’s lie—that its programs foiled dozens of plots. Or when a high-ranking NYPD official stated under oath that the Muslim surveillance program he oversaw for years produced not a single solitary lead.
What, then, is the point of it all?
Over years of grappling with the question’s theoretical as well as its practical implications through live-client cases, I have come to the thought that the point of surveillance is surveillance itself.
A parallel to my mind is torture and how, in essential ways, it is committed for its own sake and not for the stated purpose of generating actionable intelligence.
The same has been rightly said with respect to rape—how it, too, is committed for its own sake, as a unilateral assertion of power through violation.
I have come to understand surveillance as a culture, a self-perpetuating culture, one that finds existential justification in its own defining activity.
In very concrete ways, the NYPD’s Muslim surveillance program exists to spy on Muslim New Yorkers and record every aspect of their lives in our city. That is its purpose. The NSA’s surveillance programs exist to collect and store data on a galactic scale. That is its purpose.
The circularity of that realization is not only baffling—it is positively frightening. And it should not only frighten Muslim New Yorkers who indiscriminately find themselves in the NYPD Intelligence Bureau’s crosshairs.
It should also alarm humanity as a whole given the staggering breadth of the NSA’s surveillance program.
In a sense, we are all Muslims now…
Ramzi Kassem is Associate Professor of Law at the City University of New York where he also acts as Supervising Attorney for the school’s CLEAR project.