Detainees May Yet Spar With Ashcroft at Trial

MANHATTAN (CN) - Former Attorney General John Ashcroft might be pulled back into the lawsuit about a blanket FBI policy after the Sept. 11, 2001, attacks to treat all Arab and South-Asian immigration detainees as potential terror suspects, an appellate judge said Thursday.

"You held people in segregation when your own people knew there was no reason to do so," U.S. Circuit Judge Richard Wesley said, scolding a government lawyer. "It seems to me that it is plausible that Mr. Ashcroft may be right back in this litigation."

That remark ended the Department of Justice's turn at oral arguments in the appeal of Turkmen v. Ashcroft, a class action filed 12 years ago that blamed the highest levels of U.S. government for a policy to treat hundreds of Arab and South-Asian men held on immigration offenses as suspected terrorists based on slim pretexts from the FBI tip line.

After simultaneous terrorist attacks killed nearly 3,000 people in the World Trade Center, the Pentagon and Pennsylvania, the FBI set up a phone number for citizens to report leads. Its new policy was to investigate every tip.

Wesley said Thursday that some of these "tips revealed an ugly side of America, such as people are speaking Arabic in the room above me."

The Center for Constitutional Rights, which filed the class action, estimates that 475 men got roped into this post-9/11 "dragnet."

Four versions of the lawsuit have bounced between federal and appellate courts for the last dozen years.

In two scathing reports, the FBI's inspector general detailed how officials at New York's Metropolitan Detention Center (MDC) slammed detainees against the wall, kept them in lockdown 23 hours a day, and placed them in solitary confinement.

Early last year, U.S. District Judge John Gleeson approved claims against the prison wardens and personnel, but he dismissed the allegations against Ashcroft, then-FBI Director Robert Mueller and James Ziglar, one of the Immigration and Naturalization Service's last commissioners before it dissolved in 2003.

This morning, all parties gathered in the 2nd Circuit to reverse the findings against them. The three-judge panel vigorously questioned both sides, but it appeared clear that at least two believed the case should proceed.

Judge Reena Raggi, appointed by President George W. Bush, seemed to take the opposite view.

Repeatedly invoking the destruction wrought by 9/11, Raggi suggested at one point that officials may have believed that the immigration detainees shared the "gross characteristics" of terror plotters because they were "illegal aliens, young and of Muslim descent."

Judge Rosemary Pooler, a President Bill Clinton appointee, pointedly remarked later that those "characteristics were not a good predictor."

Toward the start of the hearing, attorneys for the prison officials immediately shifted the blame to the FBI, whose directives they said their clients were following.

The plaintiffs' attorney Rachel Meeropol countered that prison officials went farther than that by signing forms falsely stating that they assessed each case on their own.

Seeking clarification, Pooler asked: "They signed documents saying that they made individualized determinations of dangerousness and they never did it?"

"Yes, Your Honor," Meeropol replied.

Justice Department attorney Thomas Byron, wearing a bowtie, maintained that it was not plausible to allege that Ashcroft and Mueller knew people had been wrongly held.

Skeptical, Pooler noted: "You heard the MDC defendants argue that they were in the thrall of the FBI."

Byron replied: "Around the country, there were different ways of implementing that policy as to who would be designated 'of interest' and 'high interest.'"

Wesley grilled him on the findings of the inspector general's report that undercut this position. Zigler, the former INS commissioner, called the FBI's Mueller to warn him that detainees had no connection to terrorism in late 2001, the report found.

Pooler pressed the Justice Department lawyer about the daily meetings of the FBI's Strategic Information and Operations Center held at the time.

"What do they talk about at the daily briefings?" she asked. "That's what I want to know."

Chuckling, Byron replied, "That what I want to know, too."

Byron also pleaded ignorance earlier to a string of Wesley's questions over who told the FBI to dictate holding immigration detainees.

"Who made that decision?" Wesley asked. "Someone had to say, 'It's the FBI's call.'"

During her final rebuttal, Meeropol said this policy "set [the events] in motion."

"Once that is set in motion, it's going to stay in motion - because it's set from the highest levels of government - until the highest levels of government stop it," she said, shortly before arguments recessed without an immediate ruling.

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