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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 New York federal judge ruled last week. Eastern District of New York 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 a ruling released June 14. “We should expect nothing less.” However, the judge declined to dismiss abuse claims by eight illegal aliens who had sued as part of a class action over their detentions at the Metropolitan Detention Center in Brooklyn, N.Y., and the Passaic County Jail in New Jersey. Their allegations of abuse — including sleep deprivation, physical beatings, strip-searches, and failure to allow the detainees to speak to attorneys — have been bolstered by extensive findings from the Justice Department’s Office of the Inspector General. 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 Ziglar, the former commissioner of the Immigration and Naturalization Service; and numerous wardens at the Metropolitan Detention Center. 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.” The New York-based 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 noncitizens at the whim of the president,” says 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.” The Justice Department praised the ruling. Charles Miller, a spokesman for the DOJ’s Civil Division, says, “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.” Michael Winger, a special counsel at Covington & Burling in Washington, D.C., which is representing the plaintiffs pro bono, says 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,” Winger says. Plaintiffs’ counsel contend that the men, though never charged with crimes, were in the early stage of a criminal process at the time they were detained. Ernesto Molina Jr., senior litigation counsel for the Office of Immigration Litigation at the Department of Justice, acted as the lead attorney for the government. Judge Gleeson is also presiding over another suit involving similar abuse claims. That suit involves two plaintiffs, one of whom recently settled with the government for $300,000.
Tom Perrotta is a reporter for the New York Law Journal , the ALM publication in which this article first appeared.

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