[Mb-civic] Ashcroft Ordered to Testify in Lawsuit over Detentions

[Linda Hassler]

Ashcroft Ordered to Testify in Lawsuit over Detentions
from Linda Hassler

http://www.truthout.org/docs_2005/092905Y.shtml

Top Officials Told to Testify in Muslims' Suit
      By Nina Bernstein
      The New York Times

      Thursday 29 September 2005

      A federal judge in Brooklyn ruled yesterday that former Attorney 
General John Ashcroft, the director of the Federal Bureau of 
Investigation and other top government officials will have to answer 
questions under oath in a lawsuit that accuses them of personally 
conspiring to violate the rights of Muslim immigrants held in a federal 
detention center in Brooklyn after 9/11.

      The officials had sought to have the lawsuit dismissed without 
testimony, arguing in part that they had governmental immunity from its 
claims, that the court lacked jurisdiction because they live outside 
New York State, and that the Sept. 11 attacks created "special factors" 
outweighing the plaintiffs' right to sue for damages for constitutional 
violations.

      But the judge, John Gleeson, of the United States District Court 
for the Eastern District of New York, rejected those arguments, 
allowing the case to proceed - and opening the door to depositions of 
Mr. Ashcroft and the F.B.I. director, Robert S. Mueller III, by lawyers 
for the two plaintiffs: Ehab Elmaghraby, an Egyptian immigrant who ran 
a restaurant in Times Square, and Javaid Iqbal, a Pakistani immigrant 
whose Long Island customers knew him as "the cable guy."

      The lawsuit charges that, solely because of their race, religion 
or national origin, the two men were physically abused and deprived of 
due process while being detained for more than eight months in the 
harsh maximum-security unit of the Metropolitan Detention Center in 
Brooklyn.

      The men, who eventually pleaded guilty to minor criminal charges 
unrelated to terrorism and were deported, charged that they were 
repeatedly slammed into walls and dragged across the floor while 
shackled and manacled.

      They said they were kicked and punched until they bled, cursed as 
"terrorists" and "Muslim bastards," and subjected to multiple 
unnecessary body-cavity searches, including one in which correction 
officers inserted a flashlight into Mr. Elmaghraby's rectum, making him 
bleed.

      "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," Judge Gleeson wrote in his decision.

      Charles Miller, a spokesman for the United States Attorney's 
office, said the ruling was under review. "The government has made no 
determination yet as to what the government's next step will be," he 
said.

      The decision was hailed as significant by the plaintiffs' lawyers, 
Alexander A. Reinert, of Koob & Magoolaghan, and Haeyoung Yoon, of the 
Urban Justice Center.

      It was also celebrated by lawyers at the Center for Constitutional 
Rights, which brought a companion lawsuit as a class action on behalf 
of other immigrant detainees in 2002. The government's motion to 
dismiss that suit, using many of the same arguments, is pending before 
the same judge.

      "The fact that Judge Gleeson ruled that this case can keep 
Ashcroft on the hook -that would never happen in a regular prison-abuse 
case," said Rachel Meeropol, a lawyer for the Center for Constitutional 
Rights. "The judge understood that this isn't just a case about 
individuals being abused in detention. These are people who were 
singled out according to a policy created on the highest levels of 
government."

      Judge Gleeson cited a scathing 2003 report by the Justice 
Department's inspector general that found widespread abuse of detainees 
at the Brooklyn center.

      The report said that Mr. Ashcroft's policy was to hold detainees 
on any legal pretext until the F.B.I. cleared them, even though such 
clearances took months and many had been picked up by chance, not 
because they were legitimate terrorism suspects.

      "The post-Sept. 11 context provides support for the plaintiffs' 
assertions that defendants were involved in creating and/or 
implementing the detention policy under which plaintiffs were confined 
without due process," the judge wrote.

      In effect, the judge gave the plaintiffs an opportunity to try to 
establish the personal involvement of Mr. Ashcroft and other 
high-ranking defendants through discovery, rather than simply accepting 
the defense's argument of immunity at this early stage of the 
litigation.

      The "qualified immunity" that shields government officials "will 
not allow the attorney general to carry out his national security 
functions wholly free from concern for his personal liability," Judge 
Gleeson wrote, quoting a Supreme Court decision that involved 
then-Attorney General John N. Mitchell's unauthorized wiretap of a 
radical group. "He may on occasion have to pause to consider whether a 
proposed course of action can be squared with the Constitution and laws 
of the United States." 
  
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