¹ The Tokyo District Court decision, the response of UN human rights bodies, and related issues are the subject of an Asia-Pacific Journal Special Feature, “Police Surveillance of Muslims nd Human Rights in Japan,” Vol. 12, Issue 39, No. 1, Sept. 29, 2014. Available here: http://apjjf.org/2014/12/39/Asia-Pacific-Journal-Feature/4190/article.html. For a 2010 report on the leak, see David McNeill, “Muslims in shock over police ‘terror’ leak – Japan residents named in documents want explanation — and apology — from Tokyo police force,” The Japan Times, Nov. 9, 2010, at http://www.japantimes.co.jp/community/2010/11/09/issues/muslims-in-shock-over-police-terror-leak/#.VA-aZmSDuzA

² Today such documents would undoubtedly be designated as secret and leakers would subject to criminal penalties of up to ten years in prison. The person who leaked these documents has apparently never been identified.

³ In a recent book, Michael Penn cited estimates of the total foreign Muslim population in Japan to be between 60,000 to 100,000 persons. Michael Penn, Japan and the War on Terror (I.B. Tauris, 2014), p. 236.

⁴ In two chapters of a book that analyzes the leaked documents, Aoki describes the public security police as the most secretive agency of Japan's government. He writes that even though the leaked documents provide only a fragmentary picture of security police operations, to his knowledge this is the most detailed exposure of their activities ever published. Regarding mosque surveillance, the leaked documents reveal that 43 undercover officers were assigned to monitor seven mosques in Minato-ku, Tokyo, from 8:30 in the morning until 7:00 in the evening every day, commencing on June 23, 2008. Osamu Aoki, Kazuyuki Azusawa, and Kenichiro Kawasaki (eds.) Kokka to Joho (The State and Information), Gendai Shokan (2011), pp. 22—33 and 34—55. The book includes an Appendix of approximately 200 pages with the actual documents, with names and other details redacted to protect privacy. For extraordinary measures taken to monitor Muslims and other foreigners during this period generally, see Michael Penn, supra n. 3, pp. 236—47.

⁵ Decision of the 3^rd Petty Bench of the Supreme Court of Japan (Chief Judge Masaharu Otani), May 31, 2016. The Court did not comment on the substantive issues raised by the case.

⁶ A handy timeline for the New Jersey litigation is available here: https://www.ccrjustice.org/home/what-we-do/our-cases/hassan-v-city-new-york

⁷ Press Release, AP, “AP wins Pulitzer Prize for Investigative Reporting on NYPD surveillance” (April 16, 2012), http://www.ap.org/content/press-release/2012/ap-wins-pulitzer-prize-for-investigative-reporting-on-nypd-surveillance

⁸ See e.g., Adam Goldman and Matt Apuzzo, “NYPD built secret files on mosques outside NY,” Feb. 22, 2012 http://www.ap.org/Content/AP-In-The-News/2012/NYPD-built-secret-files-on-mosques-outside-NY

⁹ Press Release, Brennan Center for Justice, “Federal Appeals Court Says Suit Challenging NYPD Surveillance Can Continue” (October 13, 2015), https://www.brennancenter.org/press-release/federal-appeals-court-says-suit-challenging-nypd-surveillance-can-continue. See also, Danielle Wiener-Bronner, “NYPD Commissioner confirms Muslim spying program was a total bust,” Nov. 21, 2015, available at http://fusion.net/story/236320/bill-bratton-nypd-muslim-spying-comments/

¹⁰ Hassan v. City of New York, 804 F.3d 277, 289, 297 (3rd Cir. 2015). The text of the court's opinion is available here: http://www2.ca3.uscourts.gov/opinarch/141688p.pdf.

¹¹ U.S. courts apply a “strict scrutiny” standard in cases involving discrimination affecting suspect classes like race and nationality. They apply a somewhat less demanding “intermediate scrutiny” standard to cases involving gender discrimination. The Hassan court explained, “Strict and intermediate scrutiny (which we collectively refer to as ‘heightened scrutiny’ to distinguish them from the far less demanding rational-basis review) in effect set up a presumption of invalidity that the defendant must rebut.” Id. at 299.

¹² See, e.g., Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law – Substance and Procedure, Chapter 18, Equal Protection (2016 Update).

¹³ For details of the suit and the settlement reached in January 2016, see https://www.aclu.org/cases/raza-v-city-new-york-legal-challenge-nypd-muslim-surveillance-program. The text of the settlement order is available here: https://www.aclu.org/legal-document/raza-v-city-new-york-settlement-stipulation-and-order. The proposed changes to the “Handschu Guidelines” are available here: https://www.aclu.org/legal-document/raza-v-city-new-york-exhibit-settlement-stipulation-and-order-proposed-modified?redirect=raza-v-city-new-york-exhibit-settlement-stipulation-and-order-proposed-modified-handschu-guidelines.

¹⁴ See “Proposed modifications to the Handschu guidelines,” Jan. 7, 2016, at http://www.nyclu.org/files/releases/Handschu_Guidelines_FINAL_PROPOSED_MODIFICATIONS.pdf. Also see https://www.aclu.org/other/raza-v-city-new-york-settlement-faq

¹⁵ Japan's courts do not award attorneys' fees to successful plaintiffs in such cases.

¹⁶ It is not surprising that Japan's news media failed to uncover the Muslim surveillance. Numerous factors that operate to limit investigative journalism in Japan were recently outlined in a preliminary report by the United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression. http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19842&LangID=E.

¹⁷ Tokyo District Court Decision, Jan. 15, 2014. This was a decision on the merits. Standing was not an issue in the Japan case because the plaintiffs' names appeared in the leaked documents. In this article, English expressions are derived from the translation of the court's decision appended to the UN submission by the attorneys' team. The full submission is available on the website of the UN Committee on the Elimination of Racial Discrimination, here http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCERD%2fNGO%2fJPN%2f17783&Lang=en The website of the “Attorney Team for Victims of Illegal Investigation Against Muslims” is located at http://k-bengodan.jugem.jp

¹⁸ Of course, no decision by any court is literally “unavoidable.” Each decision should be based on the application of rules of law to the particular facts of the case. Regarding police surveillance of a targeted minority, attorneys cited three separate provisions of Japan's Constitution. The decision that those provisions do not prohibit this sort of police profiling may possibly be correct, but it is certainly not inevitable. According to David T. Johnson, the term “unavoidable” (yamu wo enai) “is ubiquitous in Japan's death penalty discourse.” For his discussion of the use of this expression in cases involving the death penalty, see David T. Johnson, “Capital Punishment without Capital Trials in Japan's Lay Judge System, The Asia-Pacific Journal Vol. 8, Issue 52 No 1, December 27, 2010. http://apjjf.org/-David-T.-Johnson/3461/article.html.

¹⁹ For a comparative discussion of equal protection standards focused on the Japan case, see Craig Martin, “The Japanese Constitution As Law and the Legitimacy of the Supreme Court's Constitutional Decisions: A Response to Matsui,” available at http://openscholarship.wustl.edu/law_lawreview/vol88/iss6/.

²⁰ Lawrence Repeta, “Reserved Seats on Japan's Supreme Court,” Washington University Law Review, Vol. 88, pp. 1739—41 (2011).

²¹ Colin Jones, “Legitimacy-Based Discrimination and the Development of the Judicial Power in Japan as Seen through Two Supreme Court Cases,” University of Pennsylvania East Asia Law Review, Vol. 9 (2014).

²² United Nations Human Rights Committee, “Concluding observations on the sixth periodic report of Japan,” Aug. 20, 2014, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fJPN%2fCO%2f6&Lang=en. The United Nations Human Rights Committee was created pursuant to the International Convention on Civil and Political Rights.

²³ United Nations Committee on the Elimination of Discrimination (CERD Committee), “Concluding observations on the combined seventh and ninth periodic reports of Japan,” Sept. 26, 2014, http://tbinternet.ohchr.org/layouts/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fJPN%2fCO%2f7-9&Lang=en. The CERD Committee was created pursuant to the United Nations Convention on the Elimination of Discrimination.

²⁴ Translation from the website of the “Attorney Team for Victims of Illegal Investigation Against Muslims” is located at http://k-bengodan.jugem.jp (after the 4/15/2015 High Court decision)

²⁵ Id.

²⁶ Translation by the Attorney Team, supra n. 17.

²⁷ Hassan v. City of New York, supra n. 10.

²⁸ For a discussion of Supreme Court decisions involving individual rights, see Lawrence Repeta, “Limiting fundamental rights protection in Japan – The role of the Supreme Court,” in Kingston (ed.) Critical Issues in Contemporary Japan (Routledge, 2014), pp. 36—51.