Courts Scrutinize Post-9/11 Powers - by William Fisher

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Courts Scrutinize Post-9/11 Powers
by William Fisher

More than six months ago, a federal district judge ordered former U.S. Attorney General John Ashcroft and other senior officials to testify in a lawsuit brought by an Egyptian who claims he was beaten and starved after being arrested following the Sept. 11, 2001, attacks.

He charged that he was violated with a flashlight while being held in solitary confinement without access to lawyers, and then deported for minor non-terror offenses after nine months in detention.

In a case that went virtually unnoticed by the mainstream press – but that some legal authorities believe could become one of a number of "tipping points" on the issue of presidential power – a federal judge rejected the government's argument that it should be exempt from regulations during national emergencies.

But in January, before the appeal could be heard, the government caved. It agreed to pay the plaintiff, Ehab Elmaghraby, $300,000, while not admitting to any of the charges in the lawsuit.

While the settlement does not establish a legal precedent – the government admitted no wrongdoing – it could be significant in light of multiple court and congressional challenges to the president's authority to act without, or despite, legislative authorization.

Among the many issues in which the president is currently entangled are the ability of the executive branch of government to indefinitely detain suspected terrorists without access to the courts, and the warrantless electronic surveillance of phone calls and e-mails involving U.S. citizens.

The lawsuit against Ashcroft also named Robert S. Mueller III, director of the Federal Bureau of Investigation. Both, along with others, were accused of personally conspiring to violate the rights of Muslim immigrant detainees on the basis of their race, religion, and national origin. Other defendants included Bureau of Prison officials and guards at the Metropolitan Detention Center in Brooklyn, New York.

The government appealed the ruling by U.S. District Judge John Gleeson, who said Ashcroft's argument had no statutory or constitutional basis.

The judge wrote, "Our nation's unique and complex law enforcement and security challenges in the wake of the Sept. 11, 2001, attacks do not warrant the elimination of remedies for the constitutional violations alleged here."

A second plaintiff in the suit is a Pakistani, Javaid Iqbal, whose case continues. Both argued they were not allowed to appeal their placement in solitary confinement. In seeking to have the suit dismissed, Ashcroft argued that the government did not need to follow regulations allowing appeals due to the threat of terror attacks.

Elmaghraby and Iqbal charged they were among dozens of Muslim men swept up in the New York area after 9/11 and held for months in a federal detention center in Brooklyn. They were cleared of any links to terrorism.

A number of reports by the inspector general of the U.S. Department of Justice confirmed the mistreatment of Arab and Muslim detainees held at the Brooklyn detention center after 9/11. As a result, 10 of the center's guards and supervisors have been disciplined.

In court papers, the government's lawyers said that the 9/11 attacks created "special factors," including the need to deter future terrorism, which outweighed the plaintiffs' right to sue.

Another suit, a class action suit brought on behalf of hundreds of other post-9/11 detainees, is pending before the same judge.

Lawyers who represent both the Egyptian and the Pakistani plaintiffs described the outcome as significant.

"This is a substantial settlement and shows for the first time that the government can be held accountable for the abuses that have occurred in Abu Ghraib, Guantánamo Bay, and in prisons right here in the United States," said one of the lawyers.

Another legal authority, Brian J. Foley, a professor at Florida Coastal School of Law, called the settlement "a step in the right direction."

He told IPS, "After 9/11, when the government detained people longer than necessary to enforce laws unrelated to the terrorist attacks, such as immigration laws, it wronged those people. It cannot lock people away and treat them as criminals unless it has a reasonable basis to believe they are criminals. It certainly cannot lock someone up in order to find out if he's a criminal."

He added, "After 9/11, people were apparently kept locked up based on race and religion alone. Our government should compensate all those people it detained longer than necessary. It treated innocent people as if they were criminals when most were here because they wanted to live in this country."

Another lawyer who spoke to IPS on condition of anonymity said, "Defendants often settle but admit no liability. That is often for strategic reasons … the defendant doesn't want the admission used against it in another instance."

"The defendant might say it settled the lawsuit because it didn't want to fight, it was a nuisance, or because it might raise other issues and cause disclosure of other information that the defendant wants kept quiet. So this case can't be taken technically as an admission, but it certainly makes the government look less than innocent… and that is how most observers, rightly, will take it."

Still another view came from David Cole, a professor at the Georgetown University Law Center He told IPS that since this case deals with injury while in detention, the government might be able to claim it is "isolated and doesn't go to its general policies and practices."

Elmaghraby, 38, told the New York Times from Alexandria, Egypt, that he had reluctantly decided to settle because he is ill, in debt, and about to have surgery for a thyroid ailment aggravated by his treatment in the detention center In the U.S., he ran a weekend flea market in Queens, New York.

In all, 762 non-citizens were arrested in the weeks after 9/11, mostly on immigration violations. Elmaghraby and Iqbal were among 184 identified as being "of high interest." They were held in maximum-security conditions, in Brooklyn and elsewhere, until the Federal Bureau of Investigation cleared them of terrorist links. Virtually all were Muslims or from Arab countries.

According to the report of the Department of Justice inspector general, the department often failed to distinguish between terrorism suspects and people who were simply caught in the post-9/11 dragnet, and that clearances took months because they were considered "low priority." Beatings, sexual humiliations, and illegal recording of lawyer-client conversations were among the abuses described in the report.

Elmaghraby and Iqbal eventually pleaded guilty to minor federal criminal charges unrelated to terrorism: credit card fraud and having false papers and bogus checks. But they say they confessed only to escape abuse.

(Inter Press Service)