Archive for Law

Justin Elliot: Did the NYPD’s Spying on Muslims Violate the Law?

Posted in Anti-Loons, Loon Politics with tags , , , , , , , , , on March 1, 2012 by loonwatch

Important questions and answers:

Did the NYPD’s Spying on Muslims Violate the Law?

by Justin Elliot (Pro Publica)

Last August, the Associated Press launched aseries detailing how the New York Police Department has extensively investigated Muslims in New York and other states, preparing reports on mosques and Muslim-owned businesses, apparently without any suspicion of crimes have been committed.

The propriety and legality of the NYPD’s activities is being disputed. Mayor Michael Bloomberg, who claimed last year that the NYPD does not focus on religion and only follows threats or leads, is now arguing that, as he said last week, “Everything the NYPD has done is legal, it is appropriate, it is constitutional.” Others disagree. In fact, Bloomberg himself signed a law in 2004 that prohibits profiling by law enforcement personnel based on religion.

This week, U.S. Attorney General Eric Holder told a congressional committee that the Justice Department is reviewing whether to investigate potential civil rights violations by the NYPD.

To get a better understanding of the rules governing the NYPD — and whether the department has followed them in its surveillance of Muslims — we spoke to Faiza Patel,co-director of the Liberty and National Security Program at the Brennan Center at NYU School of Law.

The NYPD did not respond to our request for comment about allegations it has violated the law.

ProPublica: So, Mayor Bloomberg and Police Commissioner Ray Kelly have said everything that the NYPD did was legal and constitutional. Others have disagreed. Newark Mayor Cory Booker, for example, said wholesale surveillance of a community without suspicion of a crime “clearly crosses a line.” What restrictions is the NYPD operating under?

Patel: They are operating under at least three sets of rules. The first and most basic set of rules is the consent decree from the Handschu case — the so-called Handschu guidelines. This was a 1970s-era political surveillance case that was settled through a consent decree. The NYPD had been conducting surveillance of a number of political groups in the 1960s and ’70s. The initial consent decree regulated the NYPD’s collection of intelligence about political activity. It first said the NYPD can only collect intelligence about political activities if it follows certain rules. For example, the NYPD had to get clearance from something called the Handschu authority, which was a three-member board that consisted of two high-level police officials and one civilian appointed by the mayor.

Then, post-9/11, the NYPD went to court and asked a judge to review the consent decree because they wanted greater freedom in their counterterrorism operations. What they wound up doing was adopting guidelines based on the FBI’s guidelines from 2003, issued by Attorney General John Ashcroft. These were different in several important ways. The first was that there was no pre-clearance at all … no requirement that the NYPD get approval from the Handschu authority before they undertook any intel gathering about political activity. The second was that the guidelines explicitly say the NYPD can attend any public event or gathering on the same basis as another member of the public. So, if I can go to a church, the NYPD can go to a church. But it goes on to say that the NYPD can’t retain the information it gathers from such public events unless it is connected to suspected criminal or terrorist activity.

ProPublica: So, if you look at, say, the NYPD’s guide to Newark’s Muslim community obtained and published by AP — which maps out mosques and Muslim-owned businesses without mentioning any suspected crimes — aren’t the police retaining exactly this kind of information?

Patel: There are a couple of documents that suggest they may have violated Handschu — for example, the [2006 NYPD report] on the Danish cartoon controversy, which is a collection of statements in mosques and other places that have been taken by undercover officers or confidential informants.

ProPublica: What other rules does the NYPD operate under?

Patel: The second set is that the NYPD has a profiling order in place, and New York City also has a racial profiling law. They are slightly different. The NYPD order [issued in 2002] does not include religion among the categories that they define as profiling. But the New York City law does. It prohibits police officers from relying on race, ethnicity, religion or national origin as a determinative factor in initiating law enforcement action. Normally, you have quite a difficult time in racial profiling cases showing they’ve used one of these factors as the determinative factor. In this case, if you look at the documents, it seems quite clear that the NYPD had its eyes quite firmly on the Muslim community, so it’s possible it is also in violation of this law.

The third set of rules is, of course, the U.S. and New York state constitutions. Within the [U.S.] Constitution, you’re looking at at least two broad categories of provisions — potential First Amendment claims for free speech, freedom of association and free exercise of religion. The other piece of it would be potential equal protection claims.

ProPublica: Another AP story this week reported that federal grant money and equipment were used in the NYPD surveillance and investigation of the Muslim community. Does that muddy the legal questions about whether the police were following federal rules?

Patel: The federal program that was giving them money is the HIDTA program — High Intensity Drug Trafficking Area. It’s geared toward providing funds to combat drug trafficking. HIDTA itself does allow for counterterrorism spending to be an incidental purpose. It requires the HIDTA executive board to basically make sure that funds were being used for the purposes that they were supposed to be used for. So, I think there’s a real issue about accountability and oversight of the use of HIDTA funds here.

ProPublica: So, if the NYPD did potentially violate the Handschu guidelines and city law you mentioned, what are the penalties?

Patel: Well, the Handschu lawyers already went to court last year and told the judge that the documents that had been released by the AP suggested that there had been violations of the Handschu decree. They asked for discovery so they could check the files of the NYPD to see whether they had violated the prohibition on keeping dossiers. I believe that that discovery will likely be starting soon. So, there’s clearly a remedy through the Handschu mechanism. Because it’s a consent decree, it’s an ongoing thing. The judge has supervisory jurisdiction. There are also issues under the racial profiling law and under the First Amendment.

We’ve also turned to the question of oversight. The FBI, for all its faults, does have a fair amount of oversight — an inspector general internally and congressional oversight. We think a similar thing would be a great idea for the NYPD.

Young Turks: Michael Moore vs. Elisabeth Hasselbeck on Osama bin Laden

Posted in Anti-Loons, Loon TV, Video with tags , , , , , , , , , , , on September 19, 2011 by loonwatch

Cenk, posing as a Bollywood hero

Cenk Uygur and Ana Kasparian of the Young Turks analyze the debate between Michael Moore and Elisabeth Hasselbeck on The View regarding the killing of Osama bin Laden.

Elisabeth Hasselbeck makes almost absolutely no sense:

Right-Wing Media Attacked Muslim Advocates for Giving Muslims Common Legal Advice

Posted in Anti-Loons, Loon Media, Loon Politics with tags , , , , , , , , , , , on March 29, 2011 by loonwatch

Farhana Khera did a good job at the Dick Durbin hearings today.

Right-Wing Media Attacked Muslim Advocates for Giving Muslims Common Legal Advice

(Media Matters)

As a Senate subcommittee is poised to begin a hearing on Muslim civil rights, several right-wing media outlets are attacking Farhana Khera, a witness at the hearing and the executive director of the Muslim legal advocacy group Muslim Advocates, for urging American Muslims to have an attorney present when speaking to law enforcement. But this is standard advice given by many legal rights advocacy groups, including the American Bar Association and the Naval Legal Service Office.

Legal Groups Regularly Advise People To Have An Attorney Present When Speaking To Law Enforcement…

American Bar Association: It Is “Wise To Have A Lawyer Present” When Questioned By Law Enforcement. The ABA’s Division for Public Education provides the following advice:

Is it wise to have a lawyer present during interrogations?

Yes, even when you are not in custody. It is a good idea to call the local public defender or a lawyer in private practice before you talk to the police. A lawyer, or possibly a public defender, will be permitted to accompany you to the police station and be present to protect your interests during police questioning.

Many people believe that what they say to the police is not admissible unless written down, recorded on tape, or said to a prosecutor or judge. That is not true. To be on the safe side, you should assume that anything you say to anybody but your lawyer could be used against you at trial. [AmericanBar.org, accessed 3/29/11]

ABA: “It Is Generally Sound Advice To Consult With A Lawyer Before You Agree To Talk To The Police.” From the ABA’s Family Legal Guide:

Should I talk to the police if they want to question me about a criminal investigation?

If you are a witness to a crime, you should share your knowledge with the police. Without information from witnesses, police would be unable to solve crimes and prosecutors would be unable to convict guilty defendants in court. If, on the other hand, you played a role in the crime, or you think the police want to question you as a possible suspect, you have a right to refuse to talk to the police. You also have the right to consult with a lawyer regarding whether you should talk to the police. It is generally sound advice to consult with a lawyer before you agree to talk to the police. [American Bar Association Family Legal Guide2004, page 575-576, accessed via Amazon.com]

Naval Legal Service Office “Attorneys Strongly Encourage Service Members To Seek Legal Advice” Before Speaking With Law Enforcement. From the U.S. Navy Judge Advocate General’s Corps’ “Legal Services FAQ”:

Q. What rights do I have regarding making statements and speaking with an attorney?

A. As a military service member, you have specific rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) and under the military’s version of “Miranda Rights,” known as “Miranda / Tempia Rights.”

PLEASE NOTE: If you are suspected of committing misconduct, then any attempt to interview you should begin with the investigator / questioner telling you that you are suspected of a specific violation of the Uniform Code of Military Justice or civilian criminal laws. They must tell you what the nature of the violation is so that you may direct your answers specifically to those allegations.

When interrogated, you should be told the following:

  • You have the right to remain silent;
  • Any statement you make may be used against you in a trial by court-martial (or any court of law);
  • You have the right to consult with a lawyer before any questioning. This lawyer may be a civilian lawyer retained by you at your own expense, a military lawyer appointed to act as your lawyer (for the purposes of assisting you with the questioning) without cost to you, or both;
  • You have the right to have such retained civilian lawyer and/or appointed military lawyer present during this interview; and
  • If you decide to answer questions without a lawyer present, you have the right to stop the interview at any time. You also have the right to stop answering questions at any time in order to obtain a lawyer.

Q. Should I make a statement?

A. This question cannot be answered without first speaking to an attorney. You have certain legal rights (listed above) and one of them is to remain silent. You also have the right to speak to an attorney prior to making any statements. NLSO [Navy Legal Services Office] attorneys strongly encourage service members to seek legal advice prior to making any official or unofficial, written or oral statements to command representatives, law enforcement officials (military or civilian), investigators and any other person asking questions. Investigators and command members must advise you of your rights under Article 31(b) of the Uniform Code of Military Justice (UCMJ) prior to asking you any questions regarding criminal matters in which you are a suspect. Especially in situations where your rights are read or shown to you and you are told in advance of questioning that you are considered a suspect, NLSO attorneys strongly encourage you to exercise those rights and speak to an attorney prior to making any statement. [JAG.Navy.Mil, accessed 3/29/11]

ACLU: “If You Are Contacted By The FBI… Have A Lawyer Present.” From an American Civil Liberties Union fact sheet on “What To Do If You’re Stopped By Police, Immigration Agents or the FBI”:

IF YOU ARE CONTACTED BY THE FBI

If an FBI agent comes to your home or workplace, you do not have to answer any questions. Tell the agent you want to speak to a lawyer first.
If you are asked to meet with FBI agents for an interview, you have the right to say you do not want to be interviewed. If you agree to an interview, have a lawyer present. You do not have to answer any questions you feel uncomfortable answering, and can say that you will only answer questions on a specific topic. [ACLU.org, accessed 3/29/11]

ACLU: “It Is A Good Idea To Talk To A Lawyer Before Agreeing To Answer Questions.” From the ACLU pamphlet “Know Your Rights When Encountering Law Enforcement”:

Q: Do I have to answer questions asked by law enforcement officers?

A: No. You have the constitutional right to remain silent. In general, you do not have to talk to law enforcement officers (or anyone else), even if you do not feel free to walk away from the officer, you are arrested, or you are in jail. You cannot be punished for refusing to answer a question. It is a good idea to talk to a lawyer before agreeing to answer questions. In general, only a judge can order you to answer questions. [ACLU.org, accessed 3/29/11]

… But Right-Wing Media Nonetheless Smeared Khera For Giving That Advice To Muslims

Investigative Project On Terrorism Highlights Muslim Advocates’ Advice To Have An Attorney Present When Speaking With Law Enforcement. From a March 28 article by IPT News, the news service of Steve Emerson’s Investigative Project on Terrorism:

Another Muslim Advocates message is that Muslims should never talk to the FBI without an attorney present. The group’s web page includes an alert advising:

“The FBI is contacting Pakistani, South-Asian and other Muslim Americans to solicit information and advice about addressing violent extremism.

Muslim Advocates strongly urges individuals not to speak with law enforcement officials without the presence or advice of an attorney.”

During the July 2010 Islamic Society of North America conference, Khan warned Islamic community leaders about talking with FBI agents, saying the FBI only wants to use them as “sources” to cause unspecified “harm.”

“And sometimes these community members don’t even think of themselves as a source,” Khera said.” You know that they just might think themselves – Well I have a good relationship with the head of the FBI office; you know he comes by my office from time to time and we have tea, or we go to lunch, and he just talks to me about the community. But what may seem like an innocuous set of conversations in the FBI’s mind they may be thinking of you as an informant, as a source. And the repercussions and the harm that that can cause can be pretty serious.”

One example she cites is the case of Imam Ahmed Afzali, who was deported last July after pleading guilty to lying to federal agents about his communication with terrorist suspect Najibullah Zazi.

FBI agents had sought Afzali’s help in finding Zazi, who was being sought as he traveled to New York in hopes of carrying out a bombing attack on the subway system. Afzali later called Zazi, alerting him to the fact law enforcement was after him, allowing Zazi to evade law enforcement surveillance.

In remarks at last summer’s ISNA convention, Khera asserted that Afzali’s plight was the result of his speaking to the FBI without counsel, rather than because of his tipping off a wanted terror suspect. [IPT News, 3/28/11]

Daily Caller Attacked Khera For “Opposition To Easy Cooperation With Police Forces.” From a March 28 Daily Caller article:

Khera’s claim to represent ordinary Muslims, however, is tainted by her cooperation with Islamist groups, and by support for Ahmed Afzali, an Afghan-born New York imam. A court ordered Afzali expelled last April after he confessed to warning a suspect terrorist, Najibullah Zazi, of an FBI investigation into his activities. Zazi, an Afghan immigrant, pled guilty in February 2010 to preparing a suicide-bomb attack on civilians in the New York subway.

Khera entangled herself in the terror case in June 2010, after the guilty verdicts, when she spoke at a Chicago convention of Muslims. At the event, she described the Afzali’s tip-off to the suspected suicide-bomber as “self-policing” by Muslim community, not as aid for a would-be murderer. “The imam thinking that he was doing his civic duty, went, spoke to Zazi and said – Hey, what are you doing?,” according to a transcript of Khera’s remarks provided by the IPT. “Police are you know asking questions about you, you better not be up to anything bad.” The imam, she said, thought he was “doing his duty, what he thought was his civic responsibility, and helping, as so many of our community members feel like, to help self-police the community.”

Afzali’s subsequent expulsion, added Khera, “is just one example of really frankly the risks and consequences of engaging with law enforcement without an attorney.” Khera’s opposition to easy cooperation with police forces is matched by other Islamist groups, which argue that federal, state and local governments should appoint them as the conduits through which resident Muslims should deal with the government and law-enforcement. In January, for example, CAIR’s California branch posted an image on its website urging Muslims to “Build A Wall of Resistance. Don’t Talk to the FBI.” CAIR was founded by Islamists with ties to the Egyptian Muslim Brotherhood. Hamas is the Gaza-based affiliate of the brotherhood.

Critics say Islamists’ campaign to limit cooperation with law-enforcement is a part of the groups’ effort to prevent the assimilation of immigrant and U.S.-born Muslims into secular American culture. This effort is also illustrated by pressure on Muslim girls to wear the hijab, which isolates them from non-Muslim men, the critics say. [Daily Caller, 3/28/11]

Gaffney: “Troubling” That Khera “Has Discouraged Muslims From Cooperating With Law Enforcement.” From Frank Gaffney’s March 28 Washington Times column:

Scarcely less troubling are [Sen. Richard] Durbin’s [D-IL] choice of witnesses. They include “civil rights activist” Farhana Khera, who Mr. Emerson recounts has discouraged Muslims from cooperating with law enforcement, and retired Cardinal Theodore McCarrick, who is a prominent participant in interfaith dialogues manipulated by the largest Muslim Brotherhood front in the United States, the Islamic Society of North America (ISNA). [Washington Times3/28/11]