If you suspected that the cops spied on you, do you have the right to know about it?
If you think the cops infiltrated a protest you organized and sifted through your Twitter feed, do you have a right to know about that?
These are the questions now before New York courts in a test of a CIA-style approach that the New York Police Department has recently adopted for responding to certain public records requests. In response to at least 14 recent requests, the NYPD indicated that it didn't want to reveal whom it is investigating, nor how, why and where.
But a group of Muslim Americans and Black Lives Matter activists, feeling subject to unwelcome and unnecessary policing, want answers about whether cops secretly tried to infiltrate their communities. The feud is part of a larger tension between civil liberties and public safety that has defined the post-9/11 era.
Four years ago, a series of Associated Press stories alleged widespread police surveillance of Muslims in New York and New Jersey. One article detailed how the NYPD used informants to report on Muslim Student Associations on college campuses — including the chapter at Rutgers University in Newark, where a business student named Samir Hashmi was the group's treasurer.
Reporters obtained an NYPD memo that referred to a seminar that the Muslim Student Association was holding about an Islamic spiritual precept known as the "day of judgement." An imam was invited as the guest speaker.
Hashmi was taken aback when he learned that New York police officers were possibly investigating what was happening in his student group across the Hudson River.
But he wasn't shocked. "I know from our history that minority groups have always been surveilled in this country, so it was always in the back of our heads, but we never really had a confirmation until I graduated and the Associated Press released these articles," Hashmi said.
In 2013, Hashmi filed a records request to the NYPD asking for any information the cops may have gathered on him from those meetings. But while other Muslims who made similar requests were told no records existed about them, the NYPD’s response to Hashmi was different. The police said they couldn't confirm the records' very existence. And besides, the response read, "if possessed by the NYPD" the documents would not be provided because disclosure would "interfere with law enforcement investigations...identify a confidential source...reveal non-routine criminal investigation techniques...endanger the life or safety of any person...constitute an unwarranted invasion of privacy."
This is known as a GLOMAR reply. It's named for an American ship that secretly sought to recover a sunken Russian submarine back in the 1970s. In response to questions about the incident, a CIA lawyer who went by the name Walt Logan came up with a novel answer, as he explained to WNYC’s Radiolab a couple of years ago: "We can neither confirm nor deny the existence of the information requested. But hypothetically if such data were to exist, the subject matter would be classified and could not be disclosed."
Hashmi decided to challenge the GLOMAR reply in court to find out for sure if the NYPD surveilled him. "What I really want is just a confirmation that it happened because just the fact that it happened is outrageous enough," Hashmi said. "A lot of like our parents' generation come from oppressive governments and countries where there’s no freedom of speech, and they think that you should just be quiet and let things happen. But I grew up here, and I know my rights, and I know that I have to stand up for them."
Omar Mohammedi, Hashmi's lawyer, said that the NYPD's use of GLOMAR was unprecedented. "New York's freedom of information law clearly states that 'if I have documents on you, I have to say I have it, and if it’s something sensitive, I still say I have it, but I cannot give it to you,'" Mohammedi said.
For years, the GLOMAR reply only applied to the CIA and national security matters. But since 9/11, the NYPD has taken on much more of a global, counter-terrorism mission. In August, it announced that it had conducted an investigation that took officers overseas to ensnare an alleged terrorist who had not made any direct threats to New York City. The FBI was reportedly not involved in this terrorism case, and the defendant was charged by the Manhattan District Attorney.
Local law enforcers have other incentives to use GLOMAR: a desire to make sure bad guys under investigation don't know that they're, in fact, under investigation, and a reluctance to reveal surveillance methods that could tip off terrorists.
Hashmi is a software consultant who has never been charged with terrorism. His co-plaintiff is Talib Abdur-Rashid, an imam at the Mosque of the Islamic Brotherhood in Harlem who also believes he was surveilled. Several news organizations have filed briefs in support of their case.
A state appellate court ruled against Hashmi and Abdur-Rashid, so they are now asking the state's highest court to overrule that decision and force the NYPD to say whether it indeed obtained information through surveillance. The men then want a judge to privately review the documents to determine if their release would endanger public safety or otherwise violate freedom of information laws.
Lawyers for Thomas Galati, chief of intelligence in the NYPD’s Intelligence Bureau, have told the court that "compelling the NYPD to confirm or deny the existence of exempt records" would "reveal whether specific individuals and organizations were subjects of counterterrorism surveillance or investigation, providing those intent on committing acts of terrorism with 'unprecedented and invaluable information.'"
The NYPD wouldn’t agree to an interview for this story, but released a statement saying the city is safer due to the initial court ruling, which was unanimous and allows limited use of GLOMAR.
Joseph King, former national security chief for the Department of Homeland Security in New York, supports the NYPD’s use of the GLOMAR reply.
"The reality is if you go in and you actually see, ‘OK, yeah, this guy was surveilled, but we can’t tell him because the guy who did the surveillance is still out there,’" King said. "So you could burn the undercover."
But why not just say ‘yes, we have documents, but we can’t turn them over?’ The problem there is, a lawsuit could result and a judge could overrule the cops and release the documents. King said by invoking GLOMAR, no one can sue in order see the documents — because they may, or may not, exist.
"I can see the justification in using a pat answer to avoid frivolous lawsuits," King said.
Yet, the GLOMAR response has inspired another lawsuit against the NYPD. This one, from three Black Lives Matter activists from the group Millions March NYC. Organizers believe police tried to interfere with a protest they held in 2014. They said their cell phones mysteriously shut down and they experienced interference with the use of Signal, an encrypted messaging application. So they asked the NYPD for copies of the department's policies on the use of technological tools that could interfere with cell phones, along with documents laying out the guidelines for police monitoring of protestors' social media accounts. But the requests were denied, invoking GLOMAR language.
"We have no trust or faith in the NYPD,” said Nabil Hassein, one of three plaintiffs represented by the New York Civil Liberties Union. “Whatever the courts are able to force them to release, I think transparency and honesty is something that can only benefit us."
Robert Freeman, executive director of the New York State Committee on Open Government, said police should not be collecting data on citizens without a compelling reason to do so.
"These are people who are expressing themselves," Freeman said. "What happened to the First Amendment in this country? I’m not sure." He believes the NYPD is the first public agency in the state to invoke GLOMAR.
A couple of other instances of local governments invoking GLOMAR have recently popped up around the country — including in New Jersey. When a newspaper reporter asked for documents regarding the possible investigation of a Catholic priest, the Bergen County Prosecutor’s Office would neither confirm, nor deny that the records existed. Last year, an appellate court sided with the prosecutors in that case. So, other law enforcement agencies in New Jersey can now refuse information, just like the CIA — and the NYPD.