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9-11 Detainees' Illegal Detention Claims Dismissed, Prisoner Abuse Claims Remain

In a 99-page, unpublished opinion dated June 14, 2006, New York federal district judge John Gleeson dismissed the illegal detention claims by eight ex-prisoners arrested in a post-9-11 sweep of illegal immigrants. He refused to dismiss their conditions-of-confinement claims.

The eight men had all been born in the Middle East or East Asia. Three were Canadian citizens (two of whom were born in Pakistan and one in India), one was a citizen of France (who had been born in Pakistan), and one was a citizen of Turkey and three were citizens of Egypt. All are practicing Muslims except the man of Indian origin, who is Hindu.

The men were arrested in the immediate aftermath of the 9-11 terrorist attacks. They filed a civil rights action against federal officials--including Washington-based policy-makers--following their arrest, detention and deportation, claiming constitutional and other violations during arrest and detention.

Their claims fall into two broad categories: (1) that they were arrested and subjected to needlessly prolonged detention for immigration violations as a pretext to allow investigation into their status as terrorists, terrorism supporters or someone who could provide information on terrorists; and (2) that their harsh conditions of confinement constituted gross violations of the U.S. Constitution. Additionally, the identify papers and property taken at arrest from the prisoners were not returned to most of them.

The defendants filed a motion to dismiss. The court dismissed the claims in the first category, but refused to dismiss those in the second.

In the first category of claims, the men claim to have been profiled based upon their religion, race and country of origin, earmarked as terrorism suspects based upon that profiling, then subjected to prolonged detention under the pretext of immigration violations, but actually to keep them available for questioning and possible criminal charges involving terrorism--even though there was no evidence that they were directly or indirectly involved in terrorism. To support their claims, the men point out that they were held in either the Metropolitan Detention Center (MDC) in Brooklyn, New York, or Passic County Jail in New Jersey in Special Housing Units (SHU)--newspeak for solitary confinement--and verbally and physically abused while being subjected to a blanket "no bond" policy and held much longer than was usual for immigration charges followed by deportation and arbitrarily designated as prisoners "of high interest" to the governments' terrorism investigations. The verbal abuse included accusations that they were "f--king terrorists," racial and ethnic slurs and religious insults.

The second category included allegations of severe beatings, denial of medical treatment, and isolation from family, friends and lawyers (who were often told the person they sought to visit or phone was not at the facility) by a blanket communications blackout policy, denial of access to courts and denial of timely notice of the charges against them. Strongly supporting the prisoners' claims of abuse were a Report and Supplemental Report of the Office of the Inspector General of the United States (OIG). The 198-page OIG report entitled "A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks" substantiated the abuse of the prisoners, some of which was caught on videotape. [PLN, June 2004, p.19].

The court basically gave the government carte blanche for the use of racial profiling and other forms of discriminatory treatment in investigating the terrorist attacks. It stated that, although this would be unconstitutional if practiced against American citizens, non-citizen illegal immigrants had no right to complain of selective enforcement of immigration laws. The court also stated that the lengthy confinement claims were invalid per se if the time involved was less than six months and longer terms were also permissible so long as deportation remained reasonably foreseeable. The court justified the government's action in stating that so little was know about the terrorists that it was reasonable to detain and investigate people who shared their known characteristics: Muslim men from certain countries some of whom had committed immigration violations. This ignored the detention of Hindus and men from India, Turkey and Pakistan (from which none of the terrorists had come). It also begs the question "where does it end?" Since some of the terrorists committed traffic and parking violations, do we go round up all of the Muslim men with traffic and parking violations?

According to Rachel Meeropol, an attorney for the Center for Constitutional Rights in New York, "This decision is a green light to racial profiling and prolonged detention of non-citizens at the whim of the President."

The court also dismissed the claims made by the plaintiffs under international law for lack of jurisdiction and conditions of confinement claims in New Jersey for failure to name any jail official as a defendant. The remaining claims include inadequate medical treatment, conditions of in MDC, interference with religious practices, taking of property, assignment to SHU, communications blackout, conversion and some of the equal protection claims.

The brightest spot in this somewhat dismal ruling is court's refusal to dismiss the Washington officials from the suit. This includes former U.S. Attorney General John Ashcroft, former FBI head Robert Mueller and former Commissioner of the INS James W. Ziglar who allegedly promulgated the policies that led to the abuse of the prisoners.

The government has already settled one prisoner-abuse suit involving 9-11 detainees in MDC. That suit, which was filed in the same federal district court and heard by the same judge, involved two prisoners and was settled for $300,000.

Sources: New York Times; New York Post; Report by Center for Constitutional Rights "Turkmen Team" dated June 16, 2006; Memorandum and Order in Turkmen v. Ashcroft, Civil Action No. 02 CV 2307, dated June 14, 2006.

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