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Last fall, Attorney General John Ashcroft promised President George W. Bush he would never let anything like the Sept. 11 terrorist attacks happen again. Law enforcement swept into action. The Department of Justice launched a sudden and extraordinary shift — from crime solver to crime stopper. Bank accounts were frozen and homes were raided. The effort made an impact. By Nov. 5, more than 1,000 men had been detained, most arrested on immigration charges or locked up as material witnesses. Almost as quickly, Ashcroft was hit with a torrent of litigation. Since December, at least 16 lawsuits have been filed challenging the legitimacy of the Justice Department’s actions. Now the judiciary is starting to push back. So far, four opinions issued publicly in these cases have supported plaintiffs’ contentions that in the war on terrorism, the Justice Department has impinged too much on constitutionally guaranteed rights and freedoms. Historically, the courts have ruled on the side of caution — and the government — during wartime, a pattern that renders the recent decisions all the more striking. The litigation over Ashcroft’s war on terrorism is still in its formative stages, and given the continuing threat of terrorist attacks on U.S. soil, it’s unlikely the courts will, on balance, hobble Justice’s ability to work on preventing terrorism. “Courts are not getting caught up in providing immediate gratification,” says Sheryl Robinson, managing director of the D.C. office of Kroll Inc., a security consulting firm. “They’re thinking about the future and being very careful. At the same time, I’m not faulting the Department of Justice for fighting the good fight.” Supporters and critics alike say the push and pull will, in the end, be positive. “What we saw was the Department of Justice reaching out for things they always wanted but felt they might not be able to get in the past. The response to their actions by people concerned with constitutional rights is natural,” says Robert Heibel, a former Federal Bureau of Investigation agent who now directs the research/intelligence analyst program at Mercyhurst College in Erie, Pa. “I think it is probably good, the way it is happening. Al Qaeda is not going to go away, and these issues should probably be resolved.” FLASH POINT ISSUES The cases that have elicited public rulings by judges deal with three legal flash points in the war on terrorism: secrecy, material witness detentions, and the special confinement conditions imposed on accused terrorists. These themes run through some of the pending cases and could pave the way for future challenges. The judges themselves include one state court judge and three federal trial judges, two of whom are Republican appointees. The wall of secrecy erected around the detentions and many legal proceedings has been a grave concern to civil libertarians. Not surprisingly, the American Civil Liberties Union has taken an active role in the legal challenges. In January, the ACLU of New Jersey sued two New Jersey jails in state court for refusing to identify inmates held in the jails on behalf of the Immigration and Naturalization Service. Judge Arthur D’Italia was unmoved by government arguments for secrecy. He ordered that the jails release the information, writing in a March 26 opinion, “[n]othing is easier for the government to assert than the disclosure of the arrest of X would jeopardize investigation Y.” The government has appealed. Calls to the Justice Department seeking comment for this article were unanswered. In April, the DOJ notified jail officials they were forbidden to identify INS detainees in their facilities. Meanwhile, on March 6, the ACLU and several media outlets, including the parent company and an affiliate of Legal Times‘ and law.com, filed a similar challenge in the U.S. District Court for the District of New Jersey in Newark. That case is pending. [ Editor's note: On Wednesday, after this story was finalized, the federal court in New Jersey granted a preliminary injunction in this case, barring the government from enforcing its policy of secret deportation hearings. See related article at right.] And in D.C. federal court, the Center for National Security Studies, the Center for Constitutional Rights, and others were joined by the ACLU in a Freedom of Information Act (FOIA) suit demanding information on all detainees held nationwide. Justice Department critics, including Rep. John Conyers, D-Mich., scored another win in the case of Lebanese citizen Rabih Haddad, whom INS officials arrested on Dec. 14 for overstaying his visa. Haddad, Conyers, and a passel of Michigan newspapers sued the INS and the Justice Department to open Haddad’s immigration proceedings. The ACLU represented Conyers, who did not respond to a request for comment. On April 3, George H.W. Bush appointee Judge Nancy Edmunds of the U.S. District Court for the Eastern District of Michigan ruled that closing Haddad’s hearings was unconstitutional. “We filed the suit because everything in his case was in secret, yet there was no allegation of wrongdoing other than overstaying his visa,” says Haddad’s attorney, Ashraf Nubani, a partner in Springfield, Va.’s Becker & Hadeed who is general counsel to the Global Relief Foundation. The U.S. 6th U.S. Circuit Court of Appeals declined to stay the ruling pending an appeal, writing that the government had only the “slimmest chance” of prevailing. Perhaps the biggest blow to the DOJ thus far is the ruling last month in the U.S. District Court for the Southern District of New York that it misused the material witness statute to detain San Diego student Osama Awadallah. Authorities picked up Awadallah on Sept. 21 as a material witness for a grand jury. On Oct. 10, he testified that he knew one hijacker and denied knowing a second. Prosecutors later charged him with perjury for denying his acquaintance with the second hijacker, whose name investigators found in one of Awadallah’s notebooks. District Judge Shira Scheindlin ruled April 30 that the government had misused the material witness statute: It allows the detention of material witnesses for trial, but not for grand jury investigations, she stated. She also dismissed the perjury charges on the grounds that Awadallah’s grand jury statements could not be used because he had been illegally detained. In her 59-page opinion, the Bill Clinton appointee and former federal prosecutor wrote that “since 1789, no Congress has granted the government the authority to imprison an innocent person in order to guarantee that he will testify before a grand jury conducting a criminal investigation. A proper respect for the laws that Congress does enact — as well as the inalienable right to liberty — prohibits this court from rewriting the law, no matter how exigent the circumstances.” In a press conference following the opinion release, Ashcroft termed the ruling “an anomaly.” The DOJ is appealing. In the FOIA suit pending in D.C., Justice Department filings have included limited information about many of the men detained after Sept. 11. It has not, however, released any information about those who are or were held as material witnesses. WATCHING OVER REID In Massachusetts, the case of Richard Reid is another in which a Republican appointee has thwarted DOJ efforts. It would be difficult to argue that alleged terrorist Richard Reid requires no special confinement terms. He is, after all, accused of trying to detonate explosives hidden in his shoes on a trans-Atlantic flight. Prosecutors sought to impose so-called Special Administrative Measures, or SAMs, on Reid. Permitted under a Bureau of Prisons regulation, SAMs are crafted on an ad hoc basis to define the incarceration of an especially dangerous inmate by, for example, requiring solitary confinement or forbidding visitors. Attorneys for these inmates must agree in writing to abide by the SAMs or be denied access to their clients. The Justice Department amended the regulation to allow monitoring of certain attorney-client conversations. Reid’s attorneys — Owen Walker, who is the federal public defender for Massachusetts, and assistant public defender Tamar Birckhead — balked. They refused to sign the document. During a March 26 hearing, Chief Judge William Young of the U.S. District Court for the District of Massachusetts declined to consider the constitutionality of SAMs in general, but ruled from the bench that SAMs did not apply to Reid. As a pretrial detainee, Young said, he is in the custody of the court, not the Bureau of Prisons. Reid “is not a prisoner of the executive,” said Young, a Ronald Reagan appointee. “If the executive seeks to subject him to the strictures of a prisoner, they know what to do. They must prove that he is guilty of one or more of the crimes with which he is charged.” Last week, the Justice Department, in an effort to get Young to reconsider, asserted in court papers that SAMs apply to pretrial detainees. In the meantime, Young imposed his own restrictions on Reid. Defense teams for American Taliban fighter John Walker Lindh and alleged 20th hijacker Zacarias Moussaoui agreed to special administrative measures imposed on their clients, though in both cases the attorneys successfully had the constraints eased to some extent. A LIFE OF PRIVILEGE Among the dozen or so other suits pending in courts around the country is a challenge to the new attorney-client monitoring provision. New York defense lawyer Frederick Cohn filed the suit in D.C. federal court this month on behalf of his client, convicted embassy bomber Rashid Daoud Al’-Owhali. One case in Manhattan federal court seeks to be a sort of dragnet of its own, addressing the shared grievances of many current and former detainees in one class action. The New York-based Center for Constitutional Rights alleges that Ashcroft, the INS, and others violated the Fourth, Fifth, and Sixth Amendment rights of post-Sept. 11 detainees. The class includes three named plaintiffs and all other noncitizens arrested and detained after Sept. 11 who were held in custody after receiving final deportation orders or grants of voluntary departure by the INS. Section 412 of the Patriot Act allows the DOJ to hold a noncitizen for up to six months if the attorney general certifies that there are “reasonable” grounds to believe that releasing the detainee would “threaten the national security of the United States or the safety of the community or any person.” Ashcroft enacted an emergency rule last fall, though, allowing indefinite detention where terrorist connections are suspected. Detention conditions cited in the complaint include 23-hour-a-day solitary confinement, routine cavity searches, and physical abuse. The experiences of the named plaintiffs were the norm, says Nancy Chang, senior litigation attorney for the constituional rights center. “The purpose of the detention appears to be to provide the government time to conduct a criminal investigation,” she says. Justice has not yet responded to the suit, which seeks unspecified damages. And at least 10 INS detainees have filed habeas corpus proceedings. Most have received final deportation or voluntary departure orders from the INS, but the agency won’t release them on grounds that they need final clearance from the DOJ. “Instead of presuming someone is innocent until proven guilty, we presume that they’re guilty. We lock them up. We then investigate. And once we determine that they’re innocent, we release or deport them,” says Georgetown University law professor and class action co-operating counsel David Cole. “It illustrates just how wildly the government is shooting in the dark.” Malek Zeidan, a Paterson, N.J., resident, lost his bid to open his immigration proceedings to the press. His suit against the DOJ was dismissed earlier this month. Three more suits stem from the asset freeze the administration placed on Muslim charities suspected of supporting terrorists. The Global Relief Foundation Inc. and Benevolence International Foundation Inc., both based in Illinois, filed against the DOJ, the Treasury, and the State Department in the Eastern District of Illinois. And the Texas-based Holy Land Foundation has filed in the District. Robert Levy, a senior fellow in constitutional studies at the Cato Institute, warns that in these civil forfeiture cases, as in some of the detentions, “all the government has to do is show probable cause and the burden shifts to the defendant. There’s no question that September 11 changed the equation. One would expect a shift, a trade-off between civil liberties on the one hand and national security on the other, but the pendulum has swung too far to the side of national security.” As more detainees are released from jail, more suits against DOJ are likely. “It’s only the beginning,” says Kit Gage, executive director of the D.C.-based First Amendment Foundation. “I think it’s the beginning of a reaction of horror by the courts to the incredible array of steps the government has taken — essentially in the wrong direction — since September 11.” The decisions issued thus far, few as they are, seem to indicate that the judiciary will push back when the DOJ oversteps. But that could change in the time it takes to detonate a bomb. “When al Qaeda hits us again, and they will hit us again, it will be interesting to see what changes,” says Heibel of Mercyhurst College. “If there is more terrorist activity in the U.S., judges will be more inclined to be lenient with the Justice Department.”

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