An Infamous CIA Secrecy Argument Is Now Being Used by the NYPD

October 20, 2014

By Jon Campbell via Village Voice

When the CIA joined Twitter earlier this year, this was their very first tweet:

It was a fitting opening salvo, to be sure, but not everybody thought it was all that clever. Some saw it as a cheeky and even self-deprecating commentary on CIA secrecy. Others saw the joke as a little flip, partly because that phrase has become infamous as the quintessential, mealy-mouthed, more-than-a-little-infuriating government non-comment.

Many a reporter has been stymied by the “Glomar response,” as it’s known, since 1975, when it was first established as a permissible answer to a federal Freedom of Information Act request. (The backstory, as recounted in this Radiolab segment, involves a sunken Russian nuclear submarine, a Cold War pissing contest, and a company called “Global Marine” — hence Glomar.)

The justification behind a Glomar response is that, in some cases, simply confirming the existence of certain records would be enough to undermine government interests. If a reporter asked the CIA for any records, say, about a secret CIA time machine project, even acknowledging that there are records fitting that description might be enough to jeopardize secrecy in meaningful ways. Such records would also be indisputably awesome.

The dread Glomar has always been a dodge available to the feds but not to local police, who have wide latitude to deny access to records but generally, under a state freedom-of-information law, have to give some sort of reason for withholding them — thus acknowledging their existence.

But a recent court ruling might bring the legal principle involved into New York State for the first time.

The case involves a Harlem-based imam, Talib Abdur-Rashid, who sued the city to find out whether he and his mosque had been under surveillance by the NYPD. There are strong suggestions that Abdur-Rashid, who has for years preached a politically charged brand of Islam, may have been a target of the department’s “demographics unit,” which embarked on broad-based surveillance of Muslim groups in the years after 9-11.

As the Associated Press first reported in a Pulitzer Prize-winning series in 2011, Muslim groups as well as Arab and South Asian immigrant communities were for years targeted in a potentially illegal dragnet, one that penetrated mosques and aggressively monitored organizations and individuals based, in some cases, on constitutionally protected speech. (The NYPD initially denied this all rather flatly, and only admitted later that the demographics unit did indeed exist at one time. It has since reportedly been disbanded.)

According to Enemies Within, a book on the demographics unit written by then-AP reporters Matt Apuzzo and Adam Goldman, Abdur-Rashid was one of 26 people placed on a “watch list” by the department in 2004. His “views on the wars in the Middle East” were what attracted the cops’ attention, as well as his anti-Semitic remarks and other comments that were “distasteful,” in the authors’ characterization, but not illegal.

In 2012, Abdur-Rashid demanded all records related to any investigation of him by the NYPD. Briefs flew back and forth. In February 2013, the department asked a judge to allow them to offer a “Glomar response,” rather than refusing to release the records under New York’s version of the Freedom of Information Act, which would normally require them to admit, at least, that such records exist.

Their argument (laid out in the brief below, which is food for thought for legal nerds) was that merely revealing whether or not Abdur-Rashid is — or ever was — being watched by the NYPD would disclose sensitive information about the department’s investigative techniques. The department’s lawyers admitted that it was an “issue of first impression,” and that they were asking the judge to reach beyond state court precedent, essentially deciding the issue based on federal legal doctrine, which would normally have no bearing on a case in state court.

In a September ruling, the court accepted the NYPD’s argument, a decision Abdur-Rashid’s attorney, Omar Mohammedi, said he plans to appeal.

For now, though, we can confirm that the Glomar has come to New York.

Abdur Rashid Brief

Photo: Jeffrey Putman