As a Japanese lawyer studying in the United States, I came across CCR’s case Hassan v. City of New York, a lawsuit challenging the blanket surveillance and religious profiling of Muslim communities in New Jersey. The case – and the principles it upholds – seems particularly important now, as I watch political candidates use anti-Muslim rhetoric and call for discriminatory measures against Muslims. I learned of the case while doing research for my own litigation in Japan challenging a more severe and nationwide version of the program, one that monitors virtually every Muslim person in the country. The case is now pending before the Japanese Supreme Court. I call it the Japanese Hassan.
The Muslim surveillance program in Japan first came to light in 2010 after a leak of internal police files. The documents showed that the Japanese government was monitoring almost every aspect of Muslims’ lives in Japan. Police agents were stationed undercover in mosques all over the country, and the surveillance program extended to almost every other center of Muslim life, from halal shops to what the police bizarrely deemed “Islam-related” organizations that included Doctors Without Borders, UNESCO, and other prominent NGOs.
The leaked documents also revealed that police departments had conducted this blanket surveillance of Muslim individuals solely on the basis of their religion and national origin. Others showed that the Japanese government was also working closely with the FBI. As you would expect, the spying resulted in zero leads to terrorism-related activities, much like the NYPD program that the Associated Press exposed in 2012.
A few months after the revelations, we sued the Japanese and Tokyo metropolitan governments on behalf of a diverse group of Muslims residing in Japan. Our case challenged the legality of suspicionless surveillance and religious profiling, and argued that these practices violate the rights enshrined in our constitution, including the right to privacy, equal protection under the law, and freedom of religion.
In January 2014, the Tokyo District Court issued a decision rubber-stamping the blanket surveillance of Muslims, arguing that it was "necessary and inevitable" in order to protect Japan against the threat of international terrorism. We appealed the decision, but the Tokyo High Court sided with the district court. Now we’re before the Japanese Supreme Court.
Our Supreme Court rarely finds the investigation methods of the Japanese police illegal or unconstitutional, so the odds are stacked against us in this last appeal. To get a better understanding of how we could reverse the High Court’s decision, my team and I researched similar legal challenges all over the world and found the Hassan case. Since the summer of 2015, I’ve been a visiting scholar at NYU, where I’ve studied the case, along with U.S. criminal procedure as it relates to the NYPD's surveillance of Muslims. Most Japanese police tactics, in fact, originate from the United States.
Fortunately, the October 2015 decision in the Hassan case came earlier than I expected and provided reasoning that can apply to our case. TheThird Circuit Court of Appeals was very critical of the district court’s decision dismissing the case and addressed the dangerous logic of blanket surveillance and religious profiling head on.
In both cases, the district courts had ruled that discriminatory investigations by police departments do not qualify as an injury, unless the practices become public and that motivation to prevent terrorism justifies intentional religious profiling. In other words, these courts announced that they would not condemn any police discrimination unless police are actually motivated by a discrimination or dislike of a religion.
Overall, the Tokyo District Court and District Court of New Jersey both found the necessity of preventing terrorism outweighed the importance of human rights.
The Third Circuit Court of Appeals refuted these notions, ruling that the fact of discrimination alone constituted an injury. The appeals court also affirmed that intentions are different than motivation. If the police intend to discriminate – by singling out Muslims for different treatment – it does not matter if the police claim good motivation; intentional discrimination is unlawful because it assumes religion justifies suspicion, and the police must find ways to combat terrorism that do not single out Muslims alone based solely on their religion.
There was another part of the Hassan case that I found amazing. Descendants of Japanese-Americans who had been placed in internment camps during World War II filed an amicus brief with the appeals court to remind the court that discrimination based on religion or race in the name of national security is dangerous and that courts should not accept police attempts to punish a whole group based on the actions of a few individuals.
At stake in both the Hassan case and our case in Japan are protections that are fundamental to democracy. Liberty, freedom of religion, equality under the law – these are basic and universal rights that we must uphold regardless of the circumstances. My team and I will be translating the Hassan ruling and the Japanese-American amicus brief for submission to the Japanese Supreme Court. The appeals court explained how important these principles are – across time and across geography:
“What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.”
I hope the Japanese Supreme Court will have the foresight to stop these discriminatory practices before more harm is done.
Igeta Daisuke is a partner attorney at Asahi Law Offices in Tokyo, Japan. He is part of a legal team representing Muslims living in Japan who have been victims of unlawful government surveillance and religious profiling.