Exonerated Detainees Can Take On Ashcroft

     MANHATTAN (CN) – The climate of “hysteria” following the Sept. 11, 2001, attacks may have led Attorney General John Ashcroft to treat undocumented Muslims and Arabs as potential terrorists based on the thinnest of pretexts, the Second Circuit found Wednesday.
     The 109-page ruling co-authored by Judges Rosemary Pooler and Richard Wesley hearkens to the loftiest ideals of the U.S. Constitution.
     “If there is one guiding principle to our nation it is the rule of law. It protects the unpopular view, it restrains fear-based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color,” they wrote. “The Constitution defines the limits of the defendants’ authority; detaining individuals as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim exceeds those limits.”
     The plaintiffs in the action “were unquestionably never involved in terrorist activity” that killed nearly 3,000 people in the World Trade Center, the Pentagon and Pennsylvania, but faced scrutiny after a hotline set up by then-FBI chief Robert Mueller fielded approximately 96,000 leads, according to the ruling.
     Lead plaintiff Ibrahim Turkmen brought the class in 2002, claiming that Mueller’s directive to follow every lead, however tenuous, created government “dragnet” that led hundreds of men into abusive custody at Metropolitan Detention Center (MDC) in Brooklyn and Passaic County Jail in New Jersey.
     Turkmen specifically became a target because his landlord reported “that she rented an apartment in her home to several Middle Eastern men, and she ‘would feel awful if her tenants were involved in terrorism and she didn’t call,'” his complaint alleges.
     Ashcroft, Mueller and former immigration chief James Ziglar allegedly received daily reports of the arrests and detentions, which generally ranged from three to eight months.
     Turkmen’s lawsuit gained traction with the release of two scathing reports by the FBI’s inspector general detailing how MDC officials slammed detainees against a wall, kept them in lockdown 23 hours a day, and placed them in solitary confinement.
     The men blame discrimination for their rough treatment in custody.
     Prison staff allegedly referred to the men as “camel[s],” “fucking Muslims,” and “Arabic asshole[s].”
     While officials called tight lockup a necessary precaution in light of post-9/11 “national security concerns,” Pooler and Wesley found this explanation gave “little solace to those who felt the brunt” of the policies that led the men to confinement at MDC.
     “The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy,” they wrote.
     The majority opinion pushes the case to discovery for more information that may support or undermine the abuse allegations.
     At this point, however, “we simply cannot conclude … that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built,” the judges wrote.
     A partial dissent by Judge Reena Raggi questions the finding that discrimination led to the policies denounced in the lawsuit.
     “Because the attacks were carried out by Arab Muslim aliens who proclaimed themselves members of al-Qaida, it is ‘no surprise’ that authorities focused their investigative and preventative attention on persons encountered in the course of the FBI’s 9/11 investigation, who were not lawfully in this country, and who fell within the same ethnic and religious group as the hijackers or as those targeted for recruitment by al-Qaida,” she wrote.
     Raggi defended the heavy restrictions at MDC based on high-profile national-security cases, including Lynne Stewart and Mamdouh Mahmud Salim.
     Stewart, a civil rights lawyer, faced heavy prison time for disseminating a communiqué from her former client, Egyptian terrorist Omar Abdel Rahman. Salim stabbed a guard in the eye with a plastic comb while awaiting trial in connection with the bombings to two U.S. Embassies in Africa.
     “With the benefit – or handicap – of hindsight, persons might now debate how well the challenged restrictive confinement policy at the MDC served national security interests,” Raggi wrote. “But it is no more a judicial function to decide how best to ensure national security than it is to decide how best to operate a detention facility.”
     A spokeswoman for the Department of Justice said the agency is reviewing the decision. The FBI has not returned a request for comment.
     Ashcroft, Mueller, Ziglar, and MDC wardens Dennis Hasty and James Sherman must face due-process, equal-protection and conspiracy claims. Hasty and Sherman must face a separate strip-search allegation.
     The men held in Passaic County Jail cannot proceed with their claims.
     The Center for Constitutional Rights attorney Rachel Meeropol, who argued the appeal at the circuit, applauded the ruling.
     “The court took this opportunity to remind the nation that the rule of law and the rights of human beings, whether citizens or not, must not be sacrificed in the face of national security hysteria,” Meeropol said in a statement. “Punishing low-level perpetrators is necessary, but hardly sufficient to prevent future abuse. Orders came from officials at the highest levels of government. Now we have the chance to ensure that they are held accountable and not treated as if they are above the law.”

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