Court considers Cold War secrecy over surveillance

ALBANY, N.Y. — 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 socalled 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.

Two lower court judges issued conflicting rulings in the cases of former Rutgers University student Samir Hashmi and Manhattan imam Talib Abdur-Rashid. 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 Glomar doctrine is named for the Hughes Glomar Explorer, a massive salvage ship built by the eccentric industrialist Howard Hughes, 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 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.”