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How to Get Away With Spying on Muslims

One of the first questions law students are taught to ask is: what does the case stand for?  The case of Hassan v. City of New York stands for the proposition that what you don’t know can’t hurt you.  Therefore, we learn, you cannot collect damages from a bad actor of whose bad acts you were unaware even though they affected you.  But if someone else discloses what a bad actor is doing that affects your rights, the person who let the cat out of the bag may be responsible to you for any injury that bad actor caused you. Since we now live in a time where we are learning on a daily basis of the unwarranted intrusion of the government in our private lives, it is useful to keep relevant court decisions in mind and to understand this legal precept.  The other thing the Hassan case teaches is that some judges reason in peculiar ways.

The Hassan case was brought by assorted Muslims and Muslim groups who learned, through a story published by the Associated Press, that ever since 9/11 they have been the subject of surveillance by the New York City police department because of their religious affiliation.  Following 9/11 the police department thought Muslims might be planning to do more bad things even though only a very few were involved in the events of 9/11.  People who were targeted by the department and became plaintiffs in the lawsuit included a decorated Iraqi war veteran, the owners of a grade school for Muslim girls and a coalition of Muslim mosques. Because they were Muslims and those involved in the 9/11 attack were Muslims the police department thought it made sense to keep an eye on them.

In the complaint that was filed by the plaintiffs, several examples were given of the harm that the plaintiffs had sustained once news of the tactics of the New York City police department’s surveillance operations became public.  Among the losses were diminution in property value of the property that was identified as a Muslim school for girls, loss of revenue by businesses that were identified as having been targeted and diminished employment opportunities for individuals who were identified as being monitored by the police.

New York City asked Judge William J. Martini to dismiss the complaint and on February 20, 2014 he did so.  The only part of his decision that is of interest to us is his conclusion that the harm, if any (and he declined to say whether or not the plaintiffs had suffered any harm) was not the actions of the police department in conducting what many would say was the clearly illegal surveillance of the Muslims, but rather the disclosure of the surveillance by the Associated Press.  It is a brilliant piece of sophistry.

Judge Martini observed, quite correctly, that so long as no one knew of the police department’s illegal activities no harm was suffered by the objects of its surveillance.  That is the sort of logic that would immediately appeal to the NSA but had little appeal, as we now know, to people like Dilma Rousseff, the president of Brazil and Angela Merkel, the Chancellor of Germany.  At the UN General Assembly,  President Rousseff accused the NSA of violating international law by collecting personal information on Brazilian citizens and the Brazilian diplomatic missions.

Chancellor Merkel was equally upset.  She  told President Obama that the tapping of her cell hone was “like the Stasi,” the East German secret police. Neither woman expressed any anger at Mr. Snowden although as Judge Martini would have told them had they asked, it was he and not the NSA at whom they should be angry. But for Mr. Snowden’s disclosures they’d have been unaware of the fact that they were being spied on and, therefore, would have had no reason to be upset.  In dismissing the Muslims’ claims Judge Martini said:  “None of the Plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential documents.  Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press.” When they didn’t know they were being illegally targeted,  the Muslims suffered no harm he concluded.

Applying his logic to the facts of the case, he apparently thinks the Muslims could sue the Associated Press and allege that its disclosure of the illegal acts of the government rather than the acts themselves were the evil for which the plaintiffs should be compensated. President Yousseff and Chancellor Merkel should be mollified by the judge’s reasoning and should join those in Congress who vilify Mr. Snowden and call him a traitor for having disclosed what many would consider felonious activity by a government agency.

Like the Muslims, however, a few of us will still be puzzled by the reasoning of those in Congress and the reasoning of Judge Martini.

Christopher Brauchli is a lawyer in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu

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