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Appeals Court Rules in Case Challenging Racial Profiling of Muslim, Arab, South Asian Men in Post-9/11 Sweeps

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Leaves Open Possibility for Holding High Level Officials Accountable

CONTACT: press@ccrjustice.org

December 18, 2009, New York, NY – Today, the Second Circuit Court of Appeals ruled in the Center for Constitutional Rights (CCR) case challenging the racial profiling, arbitrary detention and abuse of Muslim, Arab, and South Asian men swept up after 9/11. The men, who were not citizens, were held for investigation based only on their race and religion. Without any evidence to connect them to terrorism, they were treated as terrorists. They were held in supermaximum security confinement and abused until they were cleared of any connection to terrorism, and deported. Attorneys called for high-ranking officials to be held accountable for the round-ups and subsequent abuse that occurred while plaintiffs were detained, and argued that the men were deprived of their constitutional rights.

The appeals court affirmed the 2006 district court ruling that it is lawful to use the pretext of immigration detention as an excuse to hold non-citizens for the purpose of criminal investigation or other purposes unrelated to immigration as long as their deportation remains "reasonably foreseeable." Under this ruling, as long as the Government has the ability to deport a non-citizen, they can delay that deportation for as long as they wish, and for any reason.  At the same time, the court sent back to the district court, the plaintiffs’ claims that they were held in abusive conditions of confinement.  The district court will have the opportunity to decide whether CCR should be allowed to add new plaintiffs, and to consider the allegations in light of the Supreme Court’s decision in Iqbal, the companion case to Turkmen.

Said CCR lead attorney Rachel Meeropol, “This ruling leaves millions of non-citizens vulnerable. After 9/11 Attorney General John Ashcroft decided to use any means he could to hold Muslims and Arabs, based only on their race and religion, so he could investigate whether they had any ties to terrorism.  This is racial and religious profiling.  It is not only bad law enforcement policy, it is also unconstitutional.”

Said CCR Legal Director Bill Quigley, “We are still seeking justice. This ruling allows us the possibility of moving forward against high-level officials, and we will. This is an important case: immigration law cannot be used as a short-cut around the Fourth Amendment.”

Michael Winger, co-counsel at Covington & Burling, LLP, explained: “The court said it is ‘not clear’ that immigration authorities cannot discriminate on the basis of race or religion. We think that it is clear; but if it isn’t, it needs to be, and we look forward to continuing to fight that battle.”

Background

CCR’s class action, Turkmen v. Ashcroft, was filed in September 2002 to challenge the arbitrary detention and mistreatment of immigration detainees by prison guards and high level Bush administration officials in the wake of 9/11.  With no evidence of any connection to terrorism, hundreds of Muslim, Arab, and South Asian men were rounded up on the basis of racial and religious profiling and subjected to abuse at the Metropolitan Detention Center (MDC) in Brooklyn, NY.

CCR attorneys say that the government deliberately avoided the requirements of the Fourth Amendment and tried to avoid judicial oversight by placing the men in immigration rather than criminal detention when the sole purpose of the round-ups was to investigate so-called terrorist threats and should have proceeded under criminal law.

In June 2006, a district court dismissed CCR's challenges to the prolonged detention of the Turkmen plaintiffs but allowed the conditions of confinement and racial discrimination claims to proceed. Appearing before the Second Circuit Court of Appeals in February 2008, CCR defended the victory in the lower court that kept the high-level officials in the case and appealed the dismissal of the profiling and illegal detention claims, arguing that plaintiffs’ constitutional rights under the Fourth Amendment, due process clause and equal protection clause were violated.

The suit names as defendants then-Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar, and officials at the Metropolitan Detention Center in Brooklyn, where the plaintiffs were held. The plaintiffs include Muslim men from Pakistan and Egypt who were detained at the MDC, along with others held at Passaic County Jail in New Jersey. Despite the fact that the government never charged any of the plaintiffs with a terrorism-related offense, the INS kept them in detention for between four to nine months, long past the resolution of their immigration cases.

The suit further charges that some of these detainees were improperly assigned to the Administrative Maximum Special Housing Unit (ADMAX SHU); kept in solitary confinement with the lights on 24 hours a day; placed under a communications blackout so that they could not seek the assistance of their attorneys, families, and friends; subjected to physical and verbal abuse; forced to endure inhumane conditions of confinement; and obstructed in their efforts to practice their religion. Some of the abuse includes severe beatings, sleep deprivation, and forced nudity. The allegations of inhumane and degrading treatment have been substantiated by two reports of the Justice Department’s Office of the Inspector General, and several defendants in the case have recently been convicted on federal charges of beatings and cover-ups of other prisoners around the same time period.

Among other documented abuses, many of the men had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.”  The men were pushed against the t-shirt upon their entrance to MDC and told “welcome to America.”  The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.  

On November 3, 2009, CCR announced that five of the plaintiffs won a $1.26 million settlement from the United States government.

Yasser Ebrahim, one of the men held at the Metropolitan Detention Center (MDC) in Brooklyn, NY after the post-9/11 sweeps and now living in Egypt, said at the time, “We were deprived of our rights and abused simply because of our religion and the color of our skin. I know that I and others are still affected by what happened and that communities in the U.S. continue to feel the fallout.”

To continue the fight to hold these officials accountable, CCR attorneys have asked the district court judge in the case to allow them to file a new complaint on behalf of five new MDC plaintiffs.  The new version of the case would also be a class action, and would include a substantial number of detailed allegations tying Ashcroft, Mueller and Ziglar to the illegal round-ups and abuse based on information CCR has gathered through years of litigating Turkmen.

For more information and documents, visit our Turkmen v. Ashcroft Case Page: http://ccrjustice.org/ourcases/current-cases/turkmen-v.-ashcroft.

The Center for Constitutional Rights represents other victims of the Bush administration’s unlawful practices, from Canadian rendition victim Maher Arar, to Iraqis tortured and abused at Abu Ghraib prison, to both current and former Guantanamo detainees.  For more information on CCR’s work on illegal detention, torture and abuse at Guantánamo Bay, visit our website at www.ccrjustice.org.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.