By Jared Chausow
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So far unnoticed by the press and the public, a group of detainees has seized on the 198-page report by the Justice Department's inspector general as new fodder for a class action suit that had previously starved for information from government agencies. In late June, lawyers for the detainees filed in federal court an expanded version of their civil complaint against Bush administration officials.
The moment Inspector General Glenn Fine released his findings on June 2, lawyers at the Center for Constitutional Rights (CCR) in New York City began amplifying the year-old challenge on behalf of immigrants who had been arrested in the September 11 probe and held in area prisons. It is the only known action so far to allege sweeping rights violations in these detentions, claiming that they amounted to a systemic, top-down wrong.
Seven former detainees accuse Ashcroft, FBI director Robert Mueller, former Immigration and Naturalization Service commissioner James Ziglar, and prison wardens and guards of ethnic profiling, violating their due process rights, and physical and verbal abuse, among other grievances. CCR wants Brooklyn U.S. District Court judge John Gleeson to hear the lawsuit as a class action encompassing possibly dozens, even hundreds, of other detainees.
The report by the Justice Department's internal, but independent, watchdog relentlessly detailed how the FBI and immigration authorities swept up hundreds of Arabs and South Asians following the terrorist attacks and subjected them to severe prison conditions and questionable due process.
The outcry from civil libertarians, members of Congress, and the media was so great that Bush officials murmured they would consider reforms based on the report's findings. But concrete changes did not quickly emerge, and some worried that the weighty report would leave no greater a mark than a slap on the wrist.
But for Turkmen et al. v. Ashcroft et al., so called after one of the plaintiffs, Ibrahim Turkmen, the report was a critical injection of fuel. At a December 2002 hearing about whether the case should be dismissed, the Justice Department's lawyer accused CCR of lacking enough backup detail to justify its allegations. Detainees' lawyers blamed the feds' tightfistedness with detention data. Half a year later, the inspector general lifted the information dam.
"We had expected many of the revelations in the inspector general's report. But it's one thing to have anecdotal evidence, and another to have a government report that corroborates what we believed and fleshes things out," says CCR senior staff attorney Nancy Chang.
The document described how 762 Arab and Muslim noncitizens were summarily detained, sometimes for many months, regardless of the evidence in individual cases. Some were arrested in chance encounters or on flimsy leads, but all were sucked into the FBI's September 11-related investigation. Most were never charged with a crime, but rather found to lack proper immigration status. Not one was charged in relation to the terrorism probe.
The average wait for the FBI to clear a detainee for deportation was 80 days, with some waiting as long as eight months. In numerous cases, people not accused of any crime were locked down 23 hours a day, sometimes in solitary confinement, and shackled at the wrists, waist, and ankles when outside their cells. Some detainees reported afterward that they had been slammed into walls, kicked, and subjected to petty torments like constant bright light during sleeping hours and deprivation of toilet paper and soap.
Access to counsel was far from straightforward, as the foreigners were meant to understand "are you OK" as an inquiry about legal assistance, according to the June 2 investigation.
In a sign that the beefed-up complaint is making an impact, the accused government officials recently retained individual lawyers, where before they had been represented as a group. The switch is meant to avoid conflicts of interestfor instance, if immigration authorities were to say they had merely followed the orders of Ashcroft's office in Washington.
But any nervousness about the reinvigorated lawsuit does not show in the government officials' papers demanding that the judge dismiss the case. Indeed, while the inspector general stated in his report that any legal judgments were being withheld because of pending litigationincluding this class action battleAshcroft brandished the absence of condemnation as tantamount to an acquittal.
Based on the report, "Our actions are fully within the law and necessary to protect the American people. . . . We make no apologies," said Ashcroft spokesperson Barbara Comstock the day of its release. The Justice Department did not return a call about the lawsuit last week.
Government officials' arguments in this case have a familiar ring, echoing the Bush administration's strategy in a number of constitutional challenges that its post-September 11 policies have prompted. Their defense arsenal consists of executive privilege in matters of national security, uncertainty about the rights of undocumented immigrants, and the monumental difficulty of dealing with the 2001 terrorist attacks.
A federal judge has no business reviewing immigration enforcement, an executive branch function, officials say in their court documents. Moreover, says Ashcroft in his response papers, "[the plaintiffs'] status as illegal aliens bears on their claim of any constitutional right"meaning he believes noncitizens do not enjoy even the basic rights that Americans do. What CCR calls unconstitutional ethnic profiling of Arabs and South Asians, the Justice Department calls "entirely legitimate" immigration enforcement.
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 waysas 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.