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How Far is Too Far? Constitutional Implications of the NYPD’s Monitoring Program

In August 2011, the Associated Press (AP) first reported that the New York Police Department (NYPD) actively monitored the activities of Muslim student groups at New York City colleges. The NYPD reportedly monito


red the groups’ websites and even sent an undercover agent on a whitewater rafting trip upstate with a student group from City College of New York. The NYPD acted with the consent of both the CIA and the FBI, and there are new reports that the White House may have funded the programs. February 2, 2012, the AP reported that the monitoring program was not just limited to schools within the city limits, but extended to schools in Syracuse and Buffalo, as well as out-of-state to Yale University, the University of Pennsylvania, and Rutgers University. According to a 2007 report prepared by two senior NYPD intelligence analysts, the department took these actions in order to prevent the radicalization of young Muslim students. While the prevention of terrorism is certainly necessary and important, these actions bring up serious Constitutional issues, and raise once again the important question of how many restrictions the government can impose on citizens in an attempt to prevent terrorism.

The NYPD only has jurisdiction over Manhattan, the Bronx, Brooklyn, Queens, and Staten Island. Syracuse and Buffalo are not within its jurisdiction, and clearly, neither are Connecticut, Pennsylvania, and New Jersey. By investigating groups outside of its jurisdiction – particularly outside the state – the NYPD infringed on other states’ sovereign ability to pursue their own counter-terrorism methods. The sovereignty of each state to implement its own laws is one of the fundamental principles of our federalist system of government, and so by monitoring the activities of college students outside of its jurisdiction, the NYPD violated the U.S. Constitution, in addition toNew York law.

Within its jurisdiction, however, the NYPD’s actions still raise many questions. At first glance, they seem to be legal. After all, monitoring students at schools within New York Citycan help the NYPD prevent terrorism. Police spokesman Paul Browne reminded the AP that at least twelve people arrested for terrorism charges over the past five years were part of Muslim student organizations. The 2007 police report also mentioned the power that the Internet had over young Muslims in homegrown terrorist plots in both the United States and Europe, and highlighted the

importance of preventing such actions from happening again. Furthermore, these actions do not seem to violate the Fourth Amendment, which protects the public from “unreasonable searches and seizures.” The Supreme Court has held that warrantless searches are reasonable if they do not invade a generally accepted right to privacy. Because the NYPD maintains that it only monitored websites and other publicly available information, it did not invade such an accepted right to privacy. Thus, it appears at first glance that the NYPD’s actions are within the government’s power to prevent terrorism.

However, the monitoring implicates both First and Fourteenth Amendment concerns. Under the First Amendment, the members of these Muslim student associations, like all US citizens, have the right to freely practice their religion. The Supreme Court has consistently held that it will only uphold restrictions on a U.S. citizen’s First Amendment rights in dire situations, such as actual threats to the country or public safety. In this situation, there is no evidence that these student groups were making any kind of threats. In fact, comments on a blog post after a small plane crashed on 72nd street in New York in 2006 expressly offered “thanks to God that the crash was only an accident and not an act of terrorism.” When police traveled with a group upstate on a rafting trip, the only observation they made was that the students prayed five times a day, as do all Muslims. Thus, the NYPD was not monitoring the groups for threats, but only because the members practiced Islam. Once the student groups found out about the monitoring, many of them expressed outrage, fear, and disgust. One member said he feels the need to constantly be on alert. Such a feeling is not conducive to the free exercise of religion or the free exercise of the right to assemble with like-minded individuals. Thus, the police monitoring puts a damper on two of the most fundamental rights of American citizens.

In addition, these actions likely violate the equal protection clause of the Fourteenth Amendment, which prevents states from denying citizens the equal protection of federal law. There is no evidence that the NYPD monitored the actions of non-Muslim student groups. Thus, the police, and therefore the state ofNew York, treated the First Amendment rights of these particular students differently than other students simply because they happened to be Muslim. The Fourteenth Amendment purports to create the same rights and the same burdens for all citizens. By denying a group of citizens the same protection of the laws,New York violated their Constitutional right to equal protection.

Despite the Constitutional problems, these actions clearly tread into murky waters. The government has a duty and a right to prevent terrorism and keep the country safe. The Patriot Act granted the federal government permission to take any necessary steps to effect the country’s safety. While the NYPD is not part of the federal government, it was acting on a mandate from the FBI, and so falls under the Patriot Act’s jurisdiction. In Title I, Section 102 of the Patriot Act, however, Congress expressly stated that the law could not infringe on the civil rights of Muslim and Arab Americans. The NYPD’s actions, even if technically legal, clearly run counter to that sentiment by limiting students’ First and Fourteenth Amendment rights. Thus, the NYPD’s actions undermine the very act that was supposed to protect the country from terrorism. These actions acutely highlight the tension between Constitutional rights and terrorism prevention, and raise important questions about how much infringement American citizens are willing to tolerate.

Photo from: http://hiphopwired.com/2011/10/28/16-nypd-officers-indicted-in-corruption-case/

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