A lawsuit challenging the New York Police Department's surveillance of Muslims can proceed, the Third Circuit US Court of Appeals ruled Oct. 13, opening the way for a trial on the constitutionality of spying on New Jersey mosques, schools and businesses. Likening the surveillance program to the treatment of Japanese-Americans during World War II, the Third Circuit found that it was based "on the false and stigmatizing premise" that Muslim religious identity 'is a permissible proxy for criminality." Muslim Advocates and the Center for Constitutional Rights filed the suit in 2012 on behalf of 11 individuals or organizations, including business owners, students and a decorated Iraq war veteran, who said they had been harmed by the surveillance. Plaintiffs alleged that NYPD detectives monitored stores, schools, restaurants and at least 20 mosques in Paterson, Newark, Rutgers University, and other New Jersey locations. The surveillance program, ostensibly suspended last year, was first reported in a Pulitzer-winning Associated Press series. The Third Circuit reversed a February 2014 dismissal of the suit, remanding it to a US District Court in New Jersey.

"What occurs here in one guise is not new," Judge Thomas Ambro wrote for the appeals court. "We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that '[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.'" (Brackets in original, see Syed Hassan v. City of New York [PDF]) The quote is from Ex parte Endo, the 1944 Supreme Court case that ended the internment of Japanese-Americans. (Courthouse News, Oct. 14; Bergen Record, Oct. 13)