03/03/14 – Ashley Gorski – The Scott Horton Show

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All right, y'all.
Welcome back to the show.
I'm Scott Horton.
This is my show, The Scott Horton Show.
Our first guest on the show today is Ashley Gorski from the ACLU's National Security Project.
Welcome to the show.
How are you doing, Ashley?
I'm doing well.
How are you, Scott?
I'm doing great.
I really appreciate you joining us today.
And I'm sorry, I'm run away behind here.
Are you a lawyer there or what exactly is your position at the ACLU, please?
Yes, I'm an attorney.
I'm the Nadine Stauffen Fellow in the National Security Project.
Okay, great.
Thanks so much for that clarification.
Good to know.
Okay, so the NYPD Bloomberg Project spying on Muslims even outside of their jurisdiction.
I'll let you talk about how far outside the law, but certainly outside the lines of where they're supposed to be operating.
I know that and cooperating with the CIA and all this has culminated in a lawsuit which has now been dismissed.
We have plenty of time.
I'm hoping that, first of all, you could sort of take us through the background of the story and describe the color of this and how far it went and what it is exactly, a question here.
And then we can talk all about the scandal of this decision by the federal judge in this case.
Sure.
So since 2002, the NYPD has engaged in this Muslim surveillance program.
And the NYPD has conducted invasive and ineffective surveillance of innocent Muslims in New York City and far beyond New York City.
The program violates the First Amendment right to freedom of religion and it violates the 14th Amendment right to equal protection of the laws.
But under this program, the NYPD has engaged in a wide variety of intrusive and ineffective tactics.
It's mapped Muslim communities.
It's placed cameras outside of mosques to record congregants coming and going.
It has dispatched NYPD officers and informants to infiltrate mosques and Muslim organizations.
It's done all of this without suspicion of wrongdoing.
And now, what is this about the girls' school that they infiltrated there?
Sure.
One of the plaintiffs in the New Jersey case involved a girls' school in New Jersey.
And that case is being brought by Muslim advocates and the Center for Constitutional Rights.
And the NYPD's tactics really know no bounds and are clearly not related to individualized suspicion of wrongdoing.
And can you comment on the legality or, first of all, I guess the extent and or the legality of the CIA working with them on this project?
No, I can't comment on the legality of the CIA working with them on this project.
But I can say that the architect of much of this project is a man named David Cohen, who's an ex-CIA and who's imported a mode of surveillance and infiltration that we would say is probably not appropriate for a local law enforcement agency and is heavily inflected by his tenure at the CIA.
All right.
Well, anticipating the counter-argument always, how many September 11th attack-style terrorist incidents did they prevent with this surveillance?
Well, the mapping activities of the demographics unit didn't generate a single lead.
And there's an NYPD officer who's on the record saying that.
In terms of the NYPD's other efforts, ProPublica has done a fantastic job of debunking some of NYPD's larger, more grandiose claims to have stopped terrorism in New York City.
You know, many of those plots actually involve situations in which the NYPD provided the means, it provided the design, it provided the plan, and then it jumps in and says, you know, we thwarted a terrorist plot that the NYPD essentially created.
So I'd highly recommend that your listeners check out the ProPublica report on the NYPD's actual record.
OK, great.
Yeah, that's a great footnote there.
There was at least one of these cases I remember where, I mean, that pretty much sounds like the NYPD copying the FBI, but there was at least one of these where the FBI said, this is such a bad entrapment that we refuse to, did I say that right, the FBI refused to help the NYPD, told the NYPD, this is too bad even for us to help entrap this one, and refused to go along.
Yes.
Yeah.
Amazing.
That name is escaping me at the moment, but you're correct that there have been cases that federal prosecutors have declined to prosecute and that local prosecutors have taken up, and the federal prosecutors declined to prosecute because of the reasons that you just cited.
Right.
OK, now, so talk about this lawsuit.
Who exactly was suing here in this one?
Sure, so in the case that was just dismissed by the federal judge in New Jersey, the plaintiff were business owners, students, and others who identified as Muslim and were targeted on that basis, and the court dismissed the lawsuit on a few different grounds, none of which in our view were justified.
Well, OK, can you go through the different grounds, because it sounds like the kind of thing where, you know, the USA has been around for a while, I thought these sorts of questions were settled about what they can do as far as targeting people based on their religious beliefs and or affiliations.
Sure, I'll go through those grounds now.
So first, the court concluded that the plaintiff hadn't suffered enough harm to bring the lawsuit, but the plaintiff had clearly suffered business losses, they'd suffered harm to future educational and employment opportunities, and they'd been denied equal treatment under the law.
And each of those harms alone is sufficient to allow the plaintiff to bring suit, and the court just ignored those allegations.
The second basis for the court's decision that we disagree with is that the court determined that the plaintiff's injuries were caused by the Associated Press disclosures and not the NYPD.
As you know, the Associated Press, in a Pulitzer Prize-winning exposé, has written extensively about the NYPD's discriminatory Muslim surveillance program, and so the court said that those AP disclosures caused plaintiff's harm, but that justifies logic and common sense.
And third, the court said that it wasn't plausible that the NYPD discriminated because the purpose of the Muslim surveillance program is to prevent terrorism.
But of course, these aren't mutually exclusive.
A law enforcement agency can unconstitutionally discriminate while claiming to pursue a legitimate goal.
All right, now, first of all, I guess the question on all three of those is about prior court rulings and precedent.
When you say that the judge decided to just ignore obvious harms, standing, providing harms here, aren't there already decisions, like you're saying, it's established already that if they have at least some claim, then I don't know what level they have to prove it to go forward, but if they have some kind of claim to business harm, right, that's more than hurt feelings or distress or something, if they're claiming that, no, look at my ledger, I'm making less money because of this wrong thing that happened to me, then they can't just ignore that, can they, or can they?
Is that a reversible error right there?
In my view, it is.
The counsel and Hassan have indicated that they're going to appeal, so we'll see what the Third Circuit has to say about it, but it's very clear from the face of the complaint that the plaintiffs have alleged business harm, and that alone should be enough to provide them with standing to bring the lawsuit.
Yeah, I mean, never even mind basic, is this the kind of thing where you don't even get to the First Amendment part of it, because there's so many other wrong things going on, instead of going straight to the argument, or I guess you have to get, you have to win your standing first, but then isn't the argument that they can't target you for your religious affiliation, because that's in direct violation of the first or second clause of the First Amendment, right off the bat, right?
Absolutely.
It's a violation of the First Amendment, and it's also a violation of the 14th Amendment guarantee of equal protection of the laws, but the court didn't have the opportunity to address those arguments, because it didn't even evaluate the evidence.
It just dismissed the complaint out of hand before it had an opportunity to consider those arguments in a deep and meaningful way.
Right.
And then, I'm sorry for laughing out loud while you were talking about the, I was trying to muffle it a little bit, about the blame the Associated Press for breaking the story.
Now, what's the court precedent on that?
That if the government is doing something illegal, I don't know if there's a J. Edgar Hoover example, or something like that, but has any court, is he citing any other standing decision that says that the journalists who do the work to discover the illegality, or at least some level of wrongdoing, that they are, in fact, the ones who are causing the harm, rather than simply exposing a harm that exists in and of itself?
That's just hilarious to me.
I don't know.
I mean, in a sad way.
No.
It's really a bizarre ruling on causation, and the case that the court cited to support its conclusion there, in my view, was not directly applicable and pretty easily distinguishable.
The court didn't have a clear basis in law for making that argument.
Can you elaborate about that a little bit more?
I'm just interested.
Sure.
I just, the court didn't provide extensive citation or information about its causation ruling.
If you look at the opinion, it's a very short opinion, and the cases that the court cites to just don't deal precisely with this kind of factual context.
I see.
All right.
And then, on the part where they say it's not discrimination because these are, somehow, it's a terrorism investigation, is that just completely non sequitur the way it sounds to me?
You know, it really is.
The court in no way considered how the NYPD attempted to prevent terrorism, and here plaintiff's allegations were all about the fact that the NYPD's methods were discriminatory, and the court just didn't engage with that element of plaintiff's allegations at all.
It just focused on the fact that the NYPD purported to have the purpose of preventing terrorism.
So tell me, do you think at all the bars where the lawyers drink across the country, everybody is just shocked about this?
They just can't believe this madness, am I right?
And they're all going to stop it.
Yeah, I can't support to speak for all the lawyers in the bars across the country.
In my view, it's madness, but it also isn't the first time that we've seen courts be overly deferential in the national security context to the claims of the government.
Right.
Well, no, certainly not.
Very nicely understated there, I always say.
Go off pretty loud.
All right.
Well, let me ask you this in just a very little time we have left, 45 seconds or a minute.
Just how important is this in the, you know, like you say, hey, there's a thousand violations like this, but we're sort of outraged, fatigued, but I wonder, you know, one to ten, just how terribly terrifying of a violation of the First Amendment is this?
I hesitate to ascribe a number to it just because in working with our clients, it's clear that this violation is so profound and so textured and so real that it doesn't even it doesn't do it service.
It seems inappropriate to even smack it with a ten.
It's a really deep injury to our clients and to the Muslim community in New York City and beyond.
People are fearful of informants at mosques and for good reason.
People are fearful of newcomers at mosque mosques and for good reason.
Religious leaders are afraid that their statements are going to be taken out of context by police officers, informants or other congregants.
All right.
Thank you so much, Ashley.
I really appreciate it.
Thank you so much.
Have a good day.
You, too.
That's Ashley Gorski from the ACLU wrongly legitimizing NYPD discrimination.
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