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Federal authorities responding to the Sept. 11, 2001, terrorist attacks did not violate the law by arresting aliens of Middle Eastern descent for immigration violations and holding them for long periods as they investigated possible ties to terrorism, a federal judge ruled Wednesday. Eastern District Judge John Gleeson, ruling on a motion to dismiss in a 99-page decision, said the government’s approach might have been “crude” but was not illegal. “After the September 11 attacks, our government used all available law enforcement tools to ferret out the persons responsible for those atrocities and to prevent additional acts of terrorism,” he wrote in Turkmen v. Ashcroft, 02 CV 2307. “We should expect nothing less.” The decision will be published Tuesday. However, the judge declined to dismiss abuse claims by eight illegal aliens who had sued as part of a class action lawsuit over their detentions at the Metropolitan Detention Center (MDC) in Brooklyn and the Passaic County Jail in New Jersey. Their allegations of abuse � including sleep deprivation, physical beatings, strip searches and a failure to allow them to speak to attorneys � have been bolstered by extensive findings from the Office of the Inspector General (NYLJ, Dec. 24, 2003). The men, who were held between three and seven months before being cleared of terrorism ties, have since been deported or have agreed to leave the country. Seven of them are Muslims; one is Hindu. Among the defendants named in the suit are former Attorney General John Ashcroft; FBI Director Robert Mueller; James A. Ziglar, the former Commissioner of the Immigration and Naturalization Service; and numerous wardens at the MDC. Judge Gleeson said his decision had nothing to do with the “extraordinary circumstances” of Sept. 11. Instead, he said, his reasoning was rooted in immigration law. “Such national emergencies are not cause to relax the rights guaranteed in our Constitution,” Judge Gleeson wrote. “Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions.” In particular, the judge cited Reno v. American-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471 (1999) and Zadvydas v. Davis, 533 U.S. 678 (2001). In AADC, the U.S. Supreme Court ruling interpreted the Illegal Immigration Reform and Immigrant Responsibility Act. The Court held that the act deprived courts of jurisdiction over a suit in which resident aliens claimed they had been unconstitutionally targeted for deportation because of their affiliation with a politically unpopular group. In Zadvydas, the Court held that the Immigration and Nationality Act’s post-removal-period had a presumptive limit of six months. If an illegal alien then provided a reason to believe that removal was not likely in the foreseeable future, the government could further detain him or her only on a showing of evidence. Judge Gleeson also cited U.S. v. Scopo, 19 F.3d 777, a 1994 ruling from the U.S. Court of Appeals for the Second Circuit that affirmed a police officer’s right to pull over a car for a traffic violation if he wanted to search a suspect’s car for a handgun. “In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion,” the judge wrote. “As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise.” ‘Profoundly Disturbing’ The Center for Constitutional Rights, which represented the plaintiffs, attacked the judge’s decision and said it would appeal. “This ruling gives a green light to racial profiling and prolonged detention of non-citizens at the whim of the president,” said Rachel Meeropol, an attorney at the center who is litigating the case. “The decision is profoundly disturbing because it legitimizes the fact that the Bush administration rounded up and imprisoned our clients because of their religion and race.” Charles Miller, a spokesman for the Department of Justice’s Civil Division, said: “The department is very pleased that the court upheld the decision to detain plaintiffs, all of whom were illegal aliens, until national security investigations were completed and plaintiffs were removed from the country. As for the court’s decisions on the conditions of confinement in the detention facilities, the department is still reviewing the court’s opinion and considering whether or not to appeal it.” Michael Winger, a special counsel at Covington & Burling, which is representing the plaintiffs pro bono, said Judge Gleeson’s ruling broadens the scope of the law in this area. “Nobody has said before that if you put an alien into the criminal process, his rights are any different than a citizen’s,” Mr. Winger said. Plaintiffs’ counsel contend that the men, though never charged with crimes, were in the early stage of a criminal process once they were detained. Ernesto H. Molina Jr., senior litigation counsel for the Office of Immigration Litigation at the U.S. Department of Justice, acted as the lead attorney for the government. Judge Gleeson is also presiding over another suit involving similar abuse claims, Elmaghraby v. Ashcroft, 04 CV 1409. That suit involves two plaintiffs, one of whom recently settled with the government for $300,000. Tom Perrotta can be reached at [email protected]

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