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NYPD surveillance of Muslims popular, but is it legal?

By Joseph Ax

NEW YORK (Reuters) - New York City voters support the New York Police Department's anti-terrorism campaign even as provisions of it have come under criticism from civil rights groups who question the legality of how police target Muslims.

A Quinnipiac University poll released on Tuesday found respondents approved by 63 percent to 31 percent the way New York police are doing their job and said by 82 percent to 14 percent the NYPD has been effective in combating terrorism.

By a 58 percent to 29 percent margin, voters said police act appropriately in how they deal with Muslims. The poll of 964 New York City voters had a margin of error of plus or minus 3.2 percent.

A rival poll of 804 adults by Baruch College Survey Research found 81 percent New Yorkers say police were doing an excellent or good job in thwarting terrorism, but it showed split opinion on "police focusing on Muslims in order to prevent terrorist attacks." Forty-three percent approved the NYPD's Muslim focus and 44 percent opposed it, Baruch said.

Questions have been raised about the constitutionality of the anti-terrorism campaign, and U.S. Attorney General Eric Holder has said the Justice Department was reviewing letters expressing concern over the NYPD's surveillance program.

Legal experts say any court challenge based on claims of racial or religious profiling would face high hurdles. Instead, they say, any successful case would likely come down to a single paragraph in a longstanding court order that governs the department's surveillance of political activity. The paragraph, part of the "Handschu guidelines," sets conditions for NYPD officers who visit public places or events during anti-terrorism investigations. It prohibits them from keeping records of their observations unless the information is related to "potential unlawful activity" - a ban critics say the NYPD has ignored.

Scrutiny of the surveillance program increased after the Associated Press reported last August the CIA was helping police gather intelligence from mosques and minority neighborhoods. The NYPD kept tabs on Muslim neighborhoods by sending undercover officers into mosques, businesses and college campuses, keeping records of what they found, the AP said.

"There's a very strong suggestion that they are going into the Muslim community, chatting up folks and maintaining records on individuals, which we think runs afoul of the Handschu decree," said Arthur Eisenberg, legal director of the New York Civil Liberties Union. City and police officials have defended the practices as legal. "Anyone who intimates that it is unlawful for the police department to search online, visit public places, or map neighborhoods has either not read, misunderstood, or intentionally obfuscated the meaning of the Handschu guidelines," Police Commissioner Raymond Kelly said in a recent speech.

Police say aggressive surveillance has helped them identify 14 plots against the city since the September 11 attacks of 2001, including the cases of two "lone wolf" suspects who appeared in Manhattan court on Tuesday in separate cases.

American Muslim convert Jose Pimentel, 27, pleaded not guilty to charges he planned to assemble a pipe bomb and target police stations and military veterans. In the other case lawyers for Ahmed Ferhani, one of two men charged last year with buying a gun and a grenade and plotting to blow up synagogues, asked a judge to dismiss his terrorism and conspiracy counts, saying the evidence did not justify them.

DECADES-OLD LITIGATION The Handschu guidelines were established by a Manhattan federal judge in 1985 to resolve a 1971 case, Handschu v. Special Services, brought by a coalition of political groups in response to police surveillance during the 1960s.

In 2003, U.S. District Judge Charles Haight granted a city request to lessen the Handschu restrictions to facilitate anti-terrorism efforts.

But to keep police powers in check, the judge included a provision that limits the records police officers can keep of their observations in public places. Under that provision, lawyers for the plaintiffs asked Judge Haight to force the NYPD to turn over files related to the surveillance program. They are negotiating the terms of document handover with city attorneys. Police point to a section of Handschu that authorizes the NYPD to "prepare general reports and assessments ... for purposes of strategic or operational planning." City lawyer Peter Farrell, who represents the city in the Handschu case, said in an email the guidelines "make clear that the NYPD may visit public places and go online - just as the general public does." He did not specifically comment on whether the NYPD could maintain records of what they learn.

PROVING PROFILING? Civil libertarians may also pursue claims the NYPD violated a state law prohibiting racial profiling. There could be a challenge on constitutional grounds as well. But those could prove more difficult to substantiate. Police and city officials have said their actions were prompted by legitimate leads, not merely by religious identity. Legal experts say proving religion was a "determinative" factor rather than simply one of several could be challenging. Constitutional claims also face an uphill climb. "The reality is that much of what the ordinary person would consider racial profiling is not legally prohibited by the Constitution," said Stephen Schulhofer, a professor and criminal justice expert at New York University School of Law.

(Additional reporting by James Vicini and Edith Honan; Editing Daniel Trotta and Paul Thomasch)

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