Federal Judge Rules For The Government: Turkmen v. Ashcroft

[Annie]

I'm sure this is going to go to SCOTUS eventually, but it may well help in the illegal immigration mess. There are links:

http://www.nytimes.com/2006/06/15/n...d21e78d2b66ae9&ei=5088&partner=rssnyt&emc=rss

June 15, 2006
Judge Rules That U.S. Has Broad Powers to Detain Noncitizens Indefinitely
By NINA BERNSTEIN

A federal judge in Brooklyn ruled yesterday that the government has wide latitude under immigration law to detain noncitizens on the basis of religion, race or national origin, and to hold them indefinitely without explanation.

The ruling came in a class-action lawsuit by Muslim immigrants detained after 9/11, and it dismissed several key claims the detainees had made against the government. But the judge, John Gleeson of United States District Court for the Eastern District of New York, allowed the lawsuit to continue on other claims, mostly that the conditions of confinement were abusive and unconstitutional. Judge Gleeson's decision requires top federal officials, including former Attorney General John Ashcroft and Robert S. Mueller III, the F.B.I. director, to answer to those accusations under oath.

This is the first time a federal judge has addressed the issue of discrimination in the treatment of hundreds of Muslim immigrants who were swept up in the weeks after the 2001 terror attacks and held for months before they were cleared of links to terrorism and deported. The roundups drew intense criticism, not only from immigrant rights advocates, but also from the inspector general of the Justice Department, who issued reports saying that the government had made little or no effort to distinguish between genuine suspects and Muslim immigrants with minor visa violations.

Lawyers in the suit, who vowed to appeal yesterday's decision, said parts of the ruling could potentially be used far more broadly, to detain any noncitizen in the United States for any reason.

"This decision is a green light to racial profiling and prolonged detention of noncitizens at the whim of the president," said Rachel Meeropol, a lawyer for the Center for Constitutional Rights, which represented the detainees. "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."

A spokesman for the government, Charles S. Miller, would not respond to those assertions, saying only that the Justice Department was "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." He said the government was reviewing the rest of the opinion to decide whether to appeal the rulings Judge Gleeson made to allow the plaintiffs' other claims to proceed.

In his 99-page ruling, Judge Gleeson rejected the government's argument that the events of Sept. 11 justified extraordinary measures to confine noncitizens who fell under suspicion, or that the attacks heightened top officials' need for government immunity to combat future threats to national security without fear of being sued.

But his interpretation of immigration law gave the government broad discretion to enforce the law selectively against noncitizens of a particular religion, race or national origin, and to detain them indefinitely, for any unspecified reason, after an immigration judge had ordered them removed from the country.

"The executive is free to single out 'nationals of a particular country' and focus enforcement efforts on them," the judge wrote. "This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious."

Yet, he continued, the Supreme Court has repeatedly held that Congress and the executive branch, in exercising their broad power over naturalization and immigration, can make rules that would be unacceptable if applied to American citizens.

In the judge's view, the government has the right to detain people indefinitely as long as their eventual removal is "reasonably foreseeable." If that interpretation stands, it could apply to millions of noncitizens, including tourists removable for visa violations, said Gerald L. Neuman, a law professor at Columbia who is an expert in human rights law and was not involved in the case.

"It doesn't seem to limit the motives the government has to have in being slow in removing them; it could even be just basic neglect," he said.

But Professor Neuman cautioned that "it's only a district judge's decision."

"The decision encourages the government to behave this way without fear of financial liability," he said, but it does not carry the weight of a ruling by an appellate court. "This interpretation is attackable even among other judges in Brooklyn, let alone Lower Manhattan."

But David Cole, a law professor at Georgetown University and a co-counsel in the lawsuit, said the ruling was the only one of its kind and made New York "an equal protection-free zone" because the government can detain immigrants wherever it chooses.

"What this decision says is the next time there is a terror attack, the government is free to round up every Muslim immigrant in the U.S., based solely on their ethnic and religious identity, and hold them on immigration pretexts for as long as it desires," he said. "We saw after 9/11 what the government did in an era of uncertainty about how far it can go. Judge Gleeson has essentially given them a green light to go much further."

The class-action lawsuit, Turkmen v. Ashcroft, is the first and largest of several brought by immigrants held after 9/11. The named plaintiffs in the case include former detainees who came back to the United States this year for depositions and were required to be in the custody of federal marshals at all times. Among them were Hany Ibrahim, a deli worker, and his brother, Yasser, a Web designer, Egyptian Muslims who said then that putting themselves back in the hands of the government they were suing was an act of faith in America.

Yesterday, Yasser Ibrahim, who had lived in New York for three or four years on an expired tourist visa and was delivered in shackles to the Metropolitan Detention Center in Brooklyn soon after Sept. 11, said through his lawyers that he was shocked and very disappointed by the judge's decision.

"I can't believe the court would allow this to happen," he said." I am frightened for other Muslims in the United States, who could face the same discrimination and abuse that I suffered."

 

[5stringJeff]

Good. Non-citizens do not enjoy the rights afforded under the Constitution.

 

[jasendorf]

Damned activist judges!

All kidding aside, of course the law is that we can hold illegal nationals. What bothers me is this: "In the judge's view, the government has the right to detain people indefinitely as long as their eventual removal is "reasonably foreseeable.""

What's "reasonably foreseeable" supposed to mean? We can foresee that the sun is going to collapse into itself someday... is that a reasonable amount of time? If another country held Americans indefinitely for years on end with no charges, you can be assured that Americans would be pissed off, might even vote against any President who allowed it (See the Presidential election of 1980 to see what happens to a President who doesn't fight hard enough to get back Americans held for only 444 days for reference).

Biggest problem with holding illegal nationals indefinitely is that it encourages other countries to do the same to our citizens and leaves us with little legs to stand on to argue against it.

 

[5stringJeff]

Biggest problem with holding illegal nationals indefinitely is that it encourages other countries to do the same to our citizens and leaves us with little legs to stand on to argue against it.

The illegals that we are holding "indefinitely" should be held until we can get them back to their home countries. Any country who complains about us imprisoning their citizens, who won't take those citizens back, has no argument.

 

[acludem]

This decision is very problomatic. Many non-citizens are here legally. Many eventually become citizens. This judge simply ignored this fact. This decision will likely be reversed on appeal, but with this SCOTUS, you never know what they'll do.

acludem

 

[Hobbit]

This decision is very problomatic. Many non-citizens are here legally. Many eventually become citizens. This judge simply ignored this fact. This decision will likely be reversed on appeal, but with this SCOTUS, you never know what they'll do.

acludem

A mere technicality that can easily be reworked with a slightly reworded opinion. I have a feeling that our ability to hold people indefinitely prior to deportation or incarceration in Gitmo as prisoners of war will remain intact.

 

[LOki]

Good. Non-citizens do not enjoy the rights afforded under the Constitution.

I was under the impression that rights were granted by our creator, and not the constitution.

 

[Hobbit]

I was under the impression that rights were granted by our creator, and not the constitution.

Those would be life, liberty, and pursuit of happiness. We haven't taken their lives, and their liberty and pursuit of happiness are being denied by their home countries. There is no inalienable right to U.S. residency or citizenship, so we can't let them loose on the streets to steal the American dream. However, if their home country doesn't want them or has a complicated procedure in place for taking them back, we can't send them there either. We really need to keep track of them, and if they're being detained, chances are that they have committed some crime. That being the case, we lock them up until we can find somewhere else to send them.

 

[LOki]

Those would be life, liberty, and pursuit of happiness. We haven't taken their lives, and their liberty and pursuit of happiness are being denied by their home countries. There is no inalienable right to U.S. residency or citizenship, so we can't let them loose on the streets to steal the American dream. However, if their home country doesn't want them or has a complicated procedure in place for taking them back, we can't send them there either.

I agree that here is no inalienable right to U.S. residency or citizenship for foriegners--but of course, that strawman is not at issue.

We really need to keep track of them, and if they're being detained, chances are that they have committed some crime. That being the case, we lock them up until we can find somewhere else to send them.

What about the right to due process? What about the right to protection from unreasonable seizure? What about the right to to be informed of the nature and cause of the accusation? What of the right ot legal counsel? What about the right to a speedy and public trial by jury? What of the right to protection from cruel and unusual punishment? If these are rights not conferred by, but rather protected by the constitution--aren't all people who fall under U.S. jurisdiction, for whatever reason, entitled to the protection of those rights from the government formed expressly for that purpose?

 

[Annie]

I agree that here is no inalienable right to U.S. residency or citizenship for foriegners--but of course, that strawman is not at issue.

What about the right to due process? What about the right to protection from unreasonable seizure? What about the right to to be informed of the nature and cause of the accusation? What of the right ot legal counsel? What about the right to a speedy and public trial by jury? What of the right to protection from cruel and unusual punishment? If these are rights not conferred by, but rather protected by the constitution--aren't all people who fall under U.S. jurisdiction, for whatever reason, entitled to the protection of those rights from the government formed expressly for that purpose?

The first list described by Locke as 'inalienable rights,' Jefferson changed property to 'happiness' and added that to the Declaration, both argued the rights as being from a Creator. Your second group of 'rights' are man-made, most from English law tradition. Those were rights granted certain citizens and expanded. There is no 'inherent right to those', they are a prerequisite of living in a certain country, at a certain point in time.

 

[LOki]

The first list described by Locke as 'inalienable rights,' Jefferson changed property to 'happiness' and added that to the Declaration, both argued the rights as being from a Creator. Your second group of 'rights' are man-made, most from English law tradition. Those were rights granted certain citizens and expanded. There is no 'inherent right to those', they are a prerequisite of living in a certain country, at a certain point in time.

Do these second set of rights have no moral basis? None? No morality that applies to foreigners? I think not. The second set of rights are certianly deriviative, but they are derived from moral principles that apply to being human, not merely citizens (as priviledges would be derived), and that is what makes them rights rather than priviledges.

 

[jillian]

The illegals that we are holding "indefinitely" should be held until we can get them back to their home countries. Any country who complains about us imprisoning their citizens, who won't take those citizens back, has no argument.

I have issues with holding anyone uncharged and untried, indefinitely. Non-citizen does not mean illegal. It can mean someone who's here on a green card. (I'm late to the thread, sorry if that was mentioned already).

It will be interesting to see if Judge Gleeson is affirmed on appeal.

By the by, interesting trivia, Judge Gleeson got his judgeship because he was the prosecutor who finally got John Gotti.

 

[Annie]

Do these second set of rights have no moral basis? None? No morality that applies to foreigners? I think not. The second set of rights are certianly deriviative, but they are derived from moral principles that apply to being human, not merely citizens (as priviledges would be derived), and that is what makes them rights rather than priviledges.

Sorry Loki, I disagree. They are solely derived by man to deal with intitutions of man's making. They are given by the state to the citizens, under certain conditions they can be taken away. Under most circumstances, aliens will be treated reasonably, but there is no requirement, legally or morally that they be treated the same as citizens.

We have the 'rights' of free speech, press, practice of religion, to carry arms...These rights DO NOT follow us when we travel.

 

[5stringJeff]

I have issues with holding anyone uncharged and untried, indefinitely. Non-citizen does not mean illegal. It can mean someone who's here on a green card. (I'm late to the thread, sorry if that was mentioned already).

I agree with what you're saying. I'm only talking about illegals - i.e. those without green cards. And when I say held indefinitely, I don't mean years, I mean weeks, or at the most months, until they can be deported.

 

[LOki]

Sorry Loki, I disagree. They are solely derived by man to deal with intitutions of man's making. They are given by the state to the citizens, under certain conditions they can be taken away. Under most circumstances, aliens will be treated reasonably, but there is no requirement, legally or morally that they be treated the same as citizens.

We have the 'rights' of free speech, press, practice of religion, to carry arms...These rights DO NOT follow us when we travel.

Either we are talking about rights, or we are talking about priviledges. You seem to be of the impression that those things I consider to be rights, recognized and protected by the government, are actually priviledges granted at the sufferance of the government. If so, you could not be more wrong--I am aware of no legal or moral grounds upon which you can make such an assertion.

Rights, being intrinsic to the condition of being human, actully DO follow us when we travel, despite the possibility that they might not be recognized or protected everywhere we go. The recognition of those rights here, is the moral foundation of this country. The Declaration of Independence, The Constitution, and The Bill of Rights recognize and declare this truth to be self evident.

 

[jillian]

I agree with what you're saying. I'm only talking about illegals - i.e. those without green cards. And when I say held indefinitely, I don't mean years, I mean weeks, or at the most months, until they can be deported.

Then you and I are in agreement. The problem is that Judge Gleeson's decision allows for "indefinite" detention... like in Gitmo.

 

[Hobbit]

Then you and I are in agreement. The problem is that Judge Gleeson's decision allows for "indefinite" detention... like in Gitmo.

So long as there's a forseeable end. If it doesn't look like they'll ever manage to end the incarceration, then it's charge or release.

 

[Emmett]

are rights due American citizens under the Constitution. The folks being held for suspicion of crimes against our counry or terrorism are not citizens. Holding them for investigative purposes is reasonable..............

On the other hand is the fact that is seems inhumane to hold someone for years without either charging them and subjecting them to sometimes years of confinement.

Given these two facts we certainly have a dilema in that a precedent must be set in the way of an desciption of what will/won't be done. We are providing them legal counsel and fair treatment. Of course we aredenying them their God given right to come and go. My opinion, 181 days, charge em or release em. If you release em w/o charging, pay them per diem ( 100.00 bucks a day or so) and mail them back where they came from. Ut oh, there in lies the problem. Some did not ask to come here and be detained. They were not recovered on American soil, they are not Americans and therefore should not be subject to American rule of law. They are noit citizens so if they have brought here as a result of being detained for suspicion of being involved in some way with terroristic acts against us, what "rights" do they have? Technically, none but can we afford not to be fair in this instance.

People brought here from another country to be held could not be classified as illegals. If they are not charged after an investigative period, wouoldn't they be entitled to a green card? Hmmmmmmmm!!!!!!!

I don't think Jefferson had figured on the War on Terror applications that currently apply. I'm certain when John Adams asked him to pen the document itself that he also was at a lose for the ability to predict over 200 years into the future. This being the case I would think it only fair that since we are a compassionate people ( I hope we are) then we should place great emphasis on establishing a rule base now to govern how to deal with each of these "guests". Put it in writing, stick to it and shut the Libs up all at the same time. No one loses!

 

[LOki]

Loki, what you are describing are rights due American citizens under the Constitution.

I think I'm pretty sure of what I'm describing, but I'm disagreeing with the implication that rights are "due" to American citizens because of their citizenship; rather, I am asserting that rights are a condition of being human, and our constitution demands that uor governemnt recognize and protect such rights, and that within it's jurisdiction the power to infringe upon those rights is limited.

The folks being held for suspicion of crimes against our counry or terrorism are not citizens.

I am suggesting that their citizenship is irrelevent.

Holding them for investigative purposes is reasonable..............

There is no means by which you can make that assessment considering that you have no idea exactly why they are under suspicion or if that suspicion is valid. Moreover, no-one else does either, and that is the rights issue at hand.

On the other hand is the fact that is seems inhumane to hold someone for years without either charging them and subjecting them to sometimes years of confinement.

Does not the "inhumanity" of this treatment indicate that the issue of rights is not contingent upon citizenship staus, but rather ones status as a human being?

Given these two facts we certainly have a dilema in that a precedent must be set in the way of an desciption of what will/won't be done. We are providing them legal counsel and fair treatment.

Are we? I would consider their treament to not be fair at all, and neither did you one paragraph ago. As for their "legal counsel," is this counsel independent of the executive branch, or is it a kangaroo court's defence? I don't know for sure, but I'd like to.

Of course we are denying them their God given right to come and go. My opinion, 181 days, charge em or release em. If you release em w/o charging, pay them per diem ( 100.00 bucks a day or so) and mail them back where they came from.

Sense.

Ut oh, there in lies the problem. Some did not ask to come here and be detained. They were not recovered on American soil, they are not Americans and therefore should not be subject to American rule of law. They are noit citizens so if they have brought here as a result of being detained for suspicion of being involved in some way with terroristic acts against us, what "rights" do they have? Technically, none but can we afford not to be fair in this instance.

The Americans that detained these foreigners ARE subject to the American rule of law. Furthermore, I'll assert that while here, and under U.S. jurisdiction, all foreigners are subject to American rule of law, and enjoy the rights, resultant of our humanity, our government is specifically charged to recognize and protect.

People brought here from another country to be held could not be classified as illegals. If they are not charged after an investigative period, wouoldn't they be entitled to a green card? Hmmmmmmmm!!!!!!!

LOLS!

I don't think Jefferson had figured on the War on Terror applications that currently apply. I'm certain when John Adams asked him to pen the document itself that he also was at a lose for the ability to predict over 200 years into the future.

I'm certian that Jefferson and Adams would reject the notion of "War on Terror" on the basis that they would be held indefinitely for their revolutionary acts if the current executive branch's legal appurtenances to this "War on Terror" were applied to them.

This being the case I would think it only fair that since we are a compassionate people ( I hope we are) then we should place great emphasis on establishing a rule base now to govern how to deal with each of these "guests". Put it in writing, stick to it and shut the Libs up all at the same time. No one loses!

Yeah. I might suggest charging them with a crime, having a proper trial, determine their guilt, then release or detain as appropriate. But of course, this is not a new idea--it's been around since the Bill of Rights.