Exposé Energizes Court Battle

The defendants cite recent court decisions strengthening the long-recognized primacy of the executive branch in matters of national security. In one, a federal appeals court permitted officials to seal immigration hearings from the public. Another appellate decision allowed authorities to keep secret the names and locations of immigrant detainees.

But the administration seems to be pinning its greatest hopes for dismissal on the notion of "qualified immunity." That concept absolves officials of responsibility for doing wrong if their targets' rights were never "clearly established" in a similar instance in the past. In other words, the judge could consider the September 11 investigation to have been so unprecedented that decision makers lacked a clear sense of dos and don'ts based on previous experience.

"The Court should also bear in mind the extraordinary circumstances that confronted our officials at that time. During the week that followed the 9/11 attack, for example, the Department received over 96,000 tips and potential leads," argues Ashcroft.

Counters CCR's Chang, "There are some things that are so beyond civilized norms that government officials should know that they can't undertake these actions," even if there is no direct precedent. "We need to ensure these abuses do not take place again."

Following the inspector general's report, the Justice Department said it had received 18 complaints of mistreatment from detainees but was investigating only four. Separate from CCR's actions, Congresswoman Nydia Velázquez last week wrote Ashcroft demanding that he appoint an independent prosecutor to investigate the accounts of abuse at Metropolitan Detention Center in Brooklyn, a federal prison in her district where over 80 of the detainees were held. She complained of "the failure of the [Justice Department] to accept full responsibility for violations" detailed in the inspector general's report.

The Manhattan-based Urban Justice Center has for some time considered suing on behalf of detainees who might not fit CCR's proposed class action. A lawyer there said the inspector general's report will help their arguments as well.

CCR will this week respond to the government's arguments for a dismissal. Judge Gleeson could green-light the case in any number of ways—as the broad class action CCR seeks, or split among individuals or certain grievances. Or he could dismiss the complaint entirely, sidestepping stories of abuse he called, during a December 2002 hearing, "truly egregious." He had agreed to wait for more information, including the June 2 report.