On paper and sitting next to each other, Talib Abdur-Rashid and Samir Hashmi don't seem to have much in common. Abdur-Rashid is a 64-year-old black man, an imam at a Harlem mosque who wears a kufi and speaks passionately about social justice. Hashmi, 27, is a soft-spoken Pakistani grad student from New Jersey, a business major who dresses like one.
But both men have strong suspicions they were spied on by the New York Police Department's infamous "Demographics Unit"—a surveillance program set up after the 9/11 terrorist attacks that labeled entire mosques as terrorist organizations. Hashmi figures his involvement in the Muslim Student Association at Rutgers University placed him squarely in NYPD crosshairs, and as a prominent figure in the New York Muslim community who hasn't exactly been invisible politically, Abdur-Rashid can't help but suspect he's a target, too.
Now both men are suing the NYPD for surveillance records on themselves in what transparency advocates say is an unprecedented case about government secrecy. Public records experts believe the suit is pivotal because the cops will neither confirm nor deny whether the records Hashmi and Abdur-Rashid seek even exist—a response that's common among national security agencies but has never before been established by state or local law enforcement.
This is also the first time state courts in New York have weighed in on this kind of broad claim to secrecy. (The NYPD in January settled two federal lawsuits over the spying itself, as opposed to records of it.) A panel of judges in the appellate division of the New York Supreme Court heard oral arguments in both Hashmi and Abdur-Rashid's cases earlier this month. If the judges rule in favor of the NYPD, they will create a brick wall where none existed before. But advocates see a chance to check the drip of secrecy doctrines from the federal government down to the local level.
Of course, for Hashmi and Abdur-Rashid, the case is really just about the dignity of two United States citizens.
"I wanted to see exactly what [the NYPD] had, what they were alleging and investigating," Abdur-Rashid tells me in an interview. "We live in America, man. And dissent against social injustice is not a crime or a justification for being investigated."
Abdur-Rashid was born in Greensboro, North Carolina, during the Jim Crow era, and spent his early childhood there. When he was eight, his family moved to the Bronx in New York City, where he says he worked to channel his outrage into positive outlets and held jobs at local jails and prisons. For many years, he was a liaison between his mosque—the Mosque of Islamic Brotherhood in Harlem, where he's been since 1989—and the nearby NYPD precinct in Harlem.
When Abdur-Rashid gets to that part of his story, bitterness creeps into his voice.
In 2011, an Associated Press investigation revealed that the Demographics Unit, with assistance from the Central Intelligence Agency (CIA), had been using undercover officers and paid informants to gather intelligence on Muslim communities. A 2008 brief by the department's Intelligence Unit obtained by the AP specifically mentions Abdur-Rashid's Mosque of Islamic Brotherhood.
"Filled with righteous indignation and moral outrage," Abdur-Rashid replies when asked how he felt upon learning about the brief. "My response to humiliation, unwarranted suspicion—it goes back to my childhood. When you're profiled, and you're not engaged in any suspicious behavior, man that makes my kufi … poof," he says, lifting the small hat off his head.
Also among the documents obtained by the AP was an NYPD Demographics Unit list of "ancestries of interest." All were foreign, with the glaring exception of "American Black Muslim."
"To me, it was obvious we were being profiled for being black twice," Abdur-Rashid tells VICE. "One for being black, and one for being Muslim."
Meanwhile, in New Jersey, Hashmi was teaching financial literacy at a private school and pursuing a graduate degree in business information at night when he saw reports that the NYPD had monitored Muslim student groups, including at Rutgers. He'd joined Rutgers' Muslim Students Association (MSA) as a freshman in 2006, eventually becoming the group treasurer before graduating in 2011 with a degree in business finance.
"We always felt like it might be happening, but to get a confirmation was very upsetting to all of us," Hashmi says, recalling when he learned about the AP probe.
The NYPD tried to reassure Muslim students after it was revealed undercover officers operated a safe house not far from the Rutgers campus, saying they "only investigated persons who we had reasonable suspicion to believe might be involved in unlawful activities."
But the explanations made little sense to Hashmi. "I never stood for that, and I don't keep friends who have any of those beliefs," he says. "There's absolutely zero reason for me to be surveilled. So if they're going to make that claim, then why was I surveilled, and why are they trying to hide it?"
In 2012, Hashmi and Abdur-Rashid, assisted by the New York law firm of Omar Mohammedi, filed public records requests with the NYPD to answer that very question. The department, long notorious for stonewalling records requests, stalled for about a year, but then something bizarre happened: The cops argued they did not have to tell Hashmi and Abdur-Rashid whether the records they sought even existed, and that merely acknowledging the records might "cause substantial harm to the integrity and efficiency of the NYPD's investigations of terrorist activities."
It was the first time, as far as public records experts I canvassed can tell, that a municipal agency used the "can neither confirm nor deny" response created by the CIA in the 1970s. That shady response, known as the "Glomar doctrine," arose from a 1975 Freedom of Information Act (FOIA) lawsuit by a Rolling Stone reporter seeking records about the Glomar Explorer, a salvage ship the CIA used in an ambitious and nearly unbelievable attempt to recover a sunken Soviet submarine.
So Abdur-Rashid and Hashmi separately sued the NYPD. In late 2014, one state trial court found in favor of Hashmi, ordering the NYPD to respond to his public records request and rejecting its claim that sensitive police work would be compromised.
However, in Abdur-Rashid's case, a trial court upheld the NYPD's response, citing its "well-reasoned legal arguments."
Nathan Wessler, a staff attorney at the ACLU, says there are narrow instances, such as records involving personal privacy issues or confidential informants, where a "Glomar" response would be appropriate. But broad attempts by local cops to keep records secret are troubling—to say the least. (The NYPD did not respond to requests for comment for this article.)
"The Glomar response is the most extreme anti-transparency response that an agency can provide," Wessler argues. "It used to be we would only expect that from the CIA or NSA [National Security Agency]. The fact that it has filtered out to local police is troubling, because Glomar leaves the public not even knowing what they don't know."
How Hashmi and Abdur-Rashid's cases play out could impact not just the news-gathering ability of investigative reporters, but the ability of regular citizens to keep their government in check. "For me, as a Pakistani, I felt singled out, but surveillance isn't just a Muslim issue," Hashmi says.
"It's an American issue now," he continues. "We see the NYPD has all types of surveillance and all types of powers, and they're going unchecked. They need to be questioned, and there needs to be a system in place to make sure they aren't abusing their powers."
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