New York's highest court will consider on Tuesday whether the New York Police Department can use a Cold War-era legal tactic to conceal information about whether it put Muslims under surveillance.
The Court of Appeals will hear arguments in the cases of two Muslims who say the NYPD overstepped its reach by responding to a 2012 public records request related to the surveillance by saying it could "neither confirm nor deny" the records even existed.
The lawsuits over that so-called Glomar response were prompted by a series of Pulitzer Prize-winning stories by The Associated Press that detailed how the NYPD searched for possible terrorists after 9/11, in part by infiltrating Muslim student groups and putting informants in mosques.
The cases of former Rutgers University student Samir Hashmi and Manhattan imam Talib Abdur-Rashid were initially heard separately, with two lower court judges issuing conflicting rulings. In Hashmi's case, a court denied a motion to dismiss the lawsuit. In Abdur-Rashid's case, the court ruled the Glomar doctrine was allowable in response to state Freedom of Information Law requests.
The cases have since been combined, with Manhattan attorney Omar Mohammedi representing the two men.
"It would be a detriment to all New Yorkers if the decision goes the NYPD's way," Mohammedi told The Associated Press. "We might as well not have FOIL."
New York City's Law Department did not immediately return messages seeking comment. Last year, spokesman Nick Paolucci told the AP after the Abdur-Rashid ruling that "the NYPD is not required to reveal the targets of counterterrorism surveillance."
The Glomar doctrine is named for the Hughes Glomar Explorer, a massive salvage ship built by the eccentric industrialist who died in 1976. Two years earlier, the CIA had used the ship to retrieve a portion of a Soviet submarine that had sunk in the Pacific Ocean in 1968, killing everyone aboard. The Glomar featured technology designed to lift the sub more than 3 miles (4 kilometers) to the surface, but most of the sub broke apart and fell back to the ocean floor.
When a journalist sought information on the Hughes-built ship in 1976, a federal court issued a ruling that allowed the CIA to "neither confirm nor deny" whether records existed on the mission. The Glomar doctrine has since been used by agencies if information falls within certain exemptions.
But Mohammedi said the NYPD is overstepping its reach in applying the tactic to cases involving the state's Freedom of Information Law.
"The Glomar doctrine was initiated based on national defense," he said. "This issue should be decided by legislators, not decided by the NYPD just because they want to do this."
