In a little-noticed showdown in Brooklyn Federal Court last Thursday, the Justice Department laid out a vigorous defense of its treatment of Muslim immigrants since September 11. The feds' central claim: noncitizens are not entitled to the basic rights of liberty and equal treatment that Americans count on.
The argument came in the only legal action so far to take on the post- September 11 detentions of Muslim immigrants as a group. The class action lawsuit, filed by the New York-based Center for Constitutional Rights, claims that potentially hundreds of jailings add up to one case of unconstitutional government policy.
The complaint seeks monetary damages for detainees who say they experienced abusive treatment and prolonged imprisonment for noncriminal violations. Last week the federal government urged U.S. district court judge John Gleeson to dismiss the suit.
But to do so would mean ignoring claims of mistreatment that Gleeson called "truly egregious." Along with charging that detainees have been subjected to physical abuse, coerced to waive their rights, and denied access to lawyers, the complaint alleges a host of petty torments, such as the withholding of soap and toilet paper for weeks on end and routine interruption of daily prayer. Some noncriminal detainees have been held in such conditions six months or longer after agreeing to be deported, CCR lawyers charge.
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The battle over the lawsuit's survival seemed especially critical as hundreds of Middle Eastern immigrants on the opposite coast were at that moment languishing in jail after showing up to comply with a mandatory INS registration program. In November U.S. Attorney General John Ashcroft had set a schedule for males age 16 and older, with immigrant visas from 21 mostly Muslim countries and North Korea, to be fingerprinted, photographed, and interviewed or else face criminal charges or deportation. When hundreds reported to INS offices in Southern California to meet a December 16 deadline, they were handcuffed, whisked into custody, and in some cases shipped to distant prisons for lack of local space.
The nationality-based registration program, originating in the USA Patriot Act, could be "a pretext for the mass detention of hundreds," the American Civil Liberties Union had warned earlier. By late last week, the arrests were evoking comparisons to the World War II-era internment of 120,000 ethnic Japanese on the West Coast.
The barbed-wire detention camps of the 1940s became a national embarrassmentdecades later prompting a presidential apology and reparations of $20,000 per survivorlargely because the majority of those imprisoned for years without criminal cause were U.S. citizens. But last week's INS jailings, and the post-September 11 detentions generally, have exclusively targeted noncitizens.
Yet while some detained last week faced existing criminal charges, most merely had paperwork problems, sometimes due to the INS's own backlog. The government admitted using arrestsrather than administrative options, like granting an extensionto buy time to check the backgrounds of the flood of registrants. By the weekend, the Justice Department said, all but two dozen of the California immigrants had been released after passing security clearance and, in some cases, posting bail of approximately $1000.
Immigration lawyers in California insist that detentions there numbered much higher than the official count, perhaps by twice as many. And program registrants reportedly were detained in other cities, such as Cleveland and Houston. Federal authorities have refused to provide figures for overall arrests in the nationwide initiative. They have also refused to update the total number of noncriminal Muslim detainees since nearly a year ago, when the Justice Department claimed that most of some 750 picked up in the weeks after the terrorist attacks had been deported.
The lack of information is a hurdle for CCR, which has sued federal officials, including Ashcroft and the staffs of certain prisons in the New York-New Jersey area, on behalf of seven named immigrants and untold numbers of others. The collective lawsuit is intended to make up for the meager legal resources of most individual detainees and also to cast scattered cases as one broad, systemic problem.
But the Justice Department last week argued that CCR has not alleged enough universal problems to make the case for suing on behalf of all the detainees. "[CCR lawyers] have to tie the individual plaintiff to the individual conduct against them," said government lawyer Douglas Letter. CCR lawyers pointed out that the very lack of outside contacteven with lawyers and familythat detainees have complained of prevents the wide-scale compiling of such information short of formal discovery in a lawsuit.
Even if CCR could amass a huge number of complaints common to many detainees, however, the government suggested it still would not have a case. For rules to have been violated, there must be rules in the first place. But the Justice Department claims that nearly no rules apply when it comes to governing noncitizens in the post-September 11 era.
The government's Letter argued that the INS can keep an immigrant in prison for as long as it wishes, that it is not prohibited from discriminating based on nationality, and that it does not have to formally charge immigrants with a crimeand therefore provide them with counsel and a trialeven if they have been questioned in the terrorism probe.
The extent of the power the government claims it can wield over immigrants would raise serious alarms about endangering democracy and constitutionality if applied to U.S. citizens.
Indeed, the struggle to delineate a set of rights for immigrants in post-September 11 America showed clearly in Judge Gleeson's search last week for solid ground on which to certify formallyor dismissthe detainees' lawsuit. He peppered both sides with questions about how long and under what circumstances they thought detainees could be imprisoned. Generally, he wrestled with pinpointing the extent to which officials can deprive noncitizens of the constitutional due process and equal protection rights that Americans enjoy as a guarantee.
His ruling on the government's motion to dismiss the CCR class action suit is expected in the next few weeks.
Meanwhile, with the next registration deadline for Muslim visa holders looming January 10, some immigrant groups and lawyers are calling for the government to terminate the mandatory registration program altogether. If it continues, it is unclear whether spooked immigrants will stay away and risk criminal charges and deportation, or show up and risk detention anyway.
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