Robert Bianchi, appeared on Fox News to discuss the NYPD Surveillance of Muslims Program and his insight on if the ruling should be reversed.

By Robert A. Bianchi, Esq.:  Investigations and prosecutions are conducted many times in a way that the public, and even most attorneys, do not know.  The NYPD surveillance program is one such program.  This surveillance program shows the ever challenging task of effectively and forcefully protecting the community from crime, but to do so in a way that does not abandon our precious constitutional rights guaranteed by the United States Constitution.  The delicate, razor-like balance is like dancing on a pin.  As stated in the interview, it is clear that if the police are illegally targeting innocent Muslims, this is a travesty of our constitutional rights.  But, if persons intending to do us harm are at religious institutions because of actionable intelligence of possible illegal activity, then the police have an obligation to investigate, regardless of where the wrongdoers are doing business, even if that means investigations in a religious institution.

As I stated in the Fox News interview, targeting crime is fine.  Targeting religion is not.  Here, the facts known suggest that the police are targeting crime through intelligence leads, and not merely harassing innocent religious institutions and their members.

The problem with all of this is our history of over zealousness that has led to some pretty lousy abuses of our constitutional rights in the name of legitimate law enforcement objectives.  So, there is understandable distrust–a rightful sense that we need to be suspicious of surveillance programs like this.  This happened with many communities in the past that were targeted because of discrimination, but I will discuss the Italian American experience as I know that best.  When the mob was gaining control of the cities, all Italian Americans were all considered suspects.  Even up to recent times, surveillance of innocent Italian Americans has occurred.  Innocent persons were put on lists, they were put in “intelligence databases,” and were denied jobs, promotions, etc…due to just being on a list for no other reason.  So, how did you get on that list?  You could go to a funeral with a suspected mob figure in attendance and all license plates identifiers were captured, run, and you were on the list.  You could go to a store suspected to be owned by a mob person and you were on the list.  You could go to church and sit next to a person suspected of mob alliances and get on the list.  And, on and on it went.

That said, law enforcement has become far more sensitive to these practices and have made efforts to minimize the past abuses.  I served as the head County Prosecutor for over 5 years and dealt extensively with Homeland Security investigations and terrorism protocols on a county, state, and federal level.  I knew those law enforcement professionals from New Jersey and New York to be fair, professional, and excellent public servants.  But as stated, balancing the interests of protecting the community from danger while protecting our civil rights, is indeed a fine line. The fact is that sometimes law enforcement goes too far in their zeal to get the job done.  So, we need to be supportive of our police as they try to protect us from terrorism, but we need to make sure as a community that we are holding them accountable to ensure innocent people in any community are not made to suffer for the sins of a few.  This is challenging as these programs are understandably kept secret. Effective oversight, therefore, is key to meet the challenge.

Lastly, as a criminal defense attorney and former prosecutor, I would be remiss if I did not make a distinction here.  The NYPD surveillance program is not alleged to have violated any constitutionally protected rights here, only conduct that seems to be harassing in nature to members of the Muslim community.  Police can do what they want, so long as they are not employing means that violate the Constitution, such as, illegal wiretaps, search and seizures, and invasion of privacy rights.  So, showing up at public and open religious ceremonies is not a violation of the law.  But being able to do something legally, and the wisdom of actually doing it are two different matters.  The police need to keep in mind that community relations is extremely important and so are “optics.”  They should avoid all conduct that could be viewed as harassing in nature unless there is a real and palpable reason to do so based upon sound investigative intelligence.  If it is later determined that they were merely conducting these surveillances for no known reason other than the persons were Muslim, it will be another “black eye” on law enforcement.  I am hopeful, however, that this is not the case.  My involvement with the NYPD as Prosecutor and knowing how well run their agency is and the value they place on community relations gives me a level of trust they are doing what they feel is needed to balance these competing interests.