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Americans maddened by the covert maneuverings and because-we-said-so bravado of John Ashcroft's Justice Department are reveling in the bracing dose of sanity that is the August 2 decision by U.S. District Court Judge Gladys Kessler. She gave the government 15 days to release the names of the more than 1000 people it admitted to arresting and secretly detaining in its ongoing September 11 investigation. The Justice Department predictably requested a stay last week in its first step up the administration-friendly appeals ladder. Yet the quest for names has already spotlighted far broader questions about ethnic profiling, civil rights, and unchecked state power.
The ruling, a 47-page response to an information request by more than 20 civil liberties groups and other organizations, not only affirms the public's right to know what the government "is up to," but also provides a satisfying read: Kessler bluntly attacks the government's reasoningor lack of itin the way some Americans surely wish they could. It is, as The Washington Post declared last week, "a welcome rebuke to the obnoxious secrecy with which the federal government has surrounded the probe."
Kessler allowed for some continuing secrecy, for instance, with witnesses the government can prove it must keep anonymous to avoid jeopardizing an investigation, or with detainees who opt out. Still, Assistant Attorney General Robert McCallum said the ruling "harms our efforts to bring to justice those responsible for the heinous attacks of September 11 and increases the risk of future terrorist threats to our nation."
But Kessler's decision roundly rejects such rhetoric if it is not backed by facts. Most significantly, she observes, "When asked by the Court . . . to explain the standard used to arrest the detainees, or otherwise to substantiate the purported connection to terrorism, the Government was unable to answer." In other words, she asks, just what is a September 11 detainee?
Kate Martin, a lawyer with the Center for National Security Studies and lead attorney against the government, says even the ordered list of names may not provide a clear answer. The various figures relating to the terrorism investigation, cited by the Justice Department in different categories at different times, "don't add up," Martin says. The government issued one total on November 5, suggesting that the investigation-related sweeps had stopped. "Then they gave us some information on arrests after November 11, indicating that the 9-11 investigation is continuing. They've been very unclear about who is in that category and who isn't," says Martin.
Indeed, says Sin Yen Ling, staff attorney for the New York-based Asian American Legal Defense and Education Fund, which is a co-complainant in the suit, the Kessler decision is an important statement of principle, "But on a practical level, I think [the government] will be disclosing just the first round of people it picked up." Since December, Ling says, she has personally represented as many as 40 immigrants, all but one of Middle Eastern or Muslim extraction. And the flow has not lessened.
"More cases are rolling in," she says. Her cases have largely involved New York and New Jersey residents, but "two days ago, I got a call from a detainee in Wyoming." The government "is picking up people much more egregiously, for stupid problems," like missing by days a deadline to report a change of address to the INS, she claims. "I include them all under the 9-11 umbrella, because they've been questioned about all the typical [9-11] stuff, like credit card use and e-mail lists, whether they are biology students with knowledge of biological weapons." Other local immigration lawyers have reported similar cases.
Ethnic newspapers bear out lawyers' observations. The July 29 Pakistan Post, for instance, documented at least half a dozen recent immigrant arrests in the Midwood section of Brooklyn. Says Bobby Khan of the Coney Island Avenue Project, a Brooklyn-based advocacy group, "Almost every day, I'm hearing of three or four arrests. People are being picked up from the street, from their work. Agents are going into grocery stores looking for Pakistani workers."
While earlier arrests seemed to carefully target INS violators, Khan says, "Now they're arresting legal immigrants, too." People with petitions pending to legalize their status have been arrested, he said. In one unusual case, he said, a Pakistani green-card holder was wrongly detained because he shared the name of someone who had been ordered deported in 1989. According to Khan, even when the mistaken identity was discovered, the man was not unconditionally freed but instead released on bond.
Khan says a list of names could help document the ethnicity-based discrimination that he says guides the government sweeps. Bias, he says, has thoroughly permeated the immigration courtswhich are commanded by the Justice Departmentwhen it comes to Middle Easterners and Muslims. He attended an INS hearing this week in Manhattan in which the lawyer for a Pakistani detainee attempted to explain his client's substantial U.S. ties, including his marriage to an American with whom he has children. "The judge, without hearing the argument, said, 'No, there's no bond at all.' " Such automatic decisions are common and indicate knee-jerk discrimination, says Khan, who claims his group has advocated as many as 80 immigrant cases in the past year.
Attorney Ling says of her several dozen Muslim and Middle Eastern cases, most involving minor visa violations, "Not a single person was cleared and allowed to stay in the country. Nowadays, what I count as success is getting them out on bond."
Kessler's order also requires the government to provide the names of lawyers representing the detainees. Another question that arose during the information proceedings was whether detainees were receiving adequate counsel or any at all. Ling and several other New York attorneys report that the legal community in general has been reluctant to take up the Muslim immigrants' cause. Besides politics, they say, money is an obstacle. Many of the detained are cab drivers or retail workers who are unable to pay, and INS cases do not involve monetary damages.
The groups that sued for the detainees' names clearly imagine the list as only a starting point. The Justice Department says revealing the roster would provide "a blueprint for terrorists"a contention reasoned well to rest by Kesslerbut the feds are also loath to supply a road map for rights watchers checking for racial profiling, excessive punishment, and legal representation. Indeed, since few believe the government will provide the list, and many doubt that the list, if provided, would accurately reflect the true numbers of the detained, it seems civil liberties organizations might consider a more arduous route.
Guided by the community-based groups that have been visiting jails and defending detainees around the country since last September, organizations might compile and review a list of their own. Even with the challenges of manpower and time, success might be more certain than banking on the Justice Department.