Former Attorney General John Ashcroft (Photo by Gage Skidmore)
A federal judge dismissed complaints in a lawsuit alleging former Justice Department officials violated the rights of Arab or Muslim immigrants in the immediate months after the September 11th terrorist attacks. The lawsuit, brought by the Center for Constitutional Rights, sought to hold the officials accountable for subjecting the immigrants to harsh confinement on the basis of their race, national origin and religion. Still, the judge allowed claims of violations against prison staff to proceed.
Judge John Gleeson of the US District Court of the Eastern District of New York ruled the allegation that former Attorney General John Ashcroft, FBI Director Robert Mueller and Metropolitan Detention Center (MDC) or the Passaic County Jail and former Commissioner of the Immigration and Naturalization Service James W. Ziglar created the harsh confinement policy that led to the rights violations. However, the judge found no evidence of any intent to punish. The judge also failed to find any evidence that the officials intended that MDC or Passaic staff impose harsh conditions or that they were aware the prison staff was keeping the men in such conditions.
With respect to violations of equal protection under the law, the judge determined there were “ample allegations that these defendants” had classified persons on the “basis of race, religion and national origin for purposes of arrest and detention” but that did not “constitute equal protection violations standing alone.” Ashcroft may have directed all “male immigration violators between the ages of 18 and 40 from a Middle Eastern country did not, in light of the executive branch’s plenary power over immigration, amount to an equal protection violation.” And even though Ashcroft, Mueller and Ziglar knew law enforcement did not have any information tying the men to terrorism and a few individuals detained who were not Arab or Muslim were “cleared quickly or moved in the general population without clearance,” the men still did not have a valid claim to pursue accountability.
But the judge allowed claims against Dennis Hasty, former Warden of the Metropolitan Detention Center (MDC), Michael Zenk, former Warden MDC, James sherman, former MDC Associate Warden for Custody; Salvatore Lopresti, former MDC Captain and Joseph Cuciti, former MDC Lieutenant to proceed. Claims based on alleged harsh conditions of confinement and unlawful strip searches and that the officers had engaged in a conspiracy to violate the rights of detainees were deemed to be valid.
Subjected to Torture & Abuse Despite No Evidence of Terrorism Ties
As described in the ruling, federal officials in the immediate aftermath of the 9/11 attacks created and implemented policies and practices to identify, detain and confine Arab and Muslim noncitizens, particularly those found to have violated immigration laws. These individuals were “rounded up and detained on their immigration violations so government officials could question them in connection with the ongoing investigation of the 9/11 attacks.” They were deemed to be terrorist suspects, even though they had only committed immigration violations. They were subject to a “hold-until-cleared policy,” and kept in confinement for “lengthy periods of times—often for months after they were ordered removed from the country—until the FBI affirmatively cleared them of suspicion of wrongdoing.” This resulted in individuals being subjected to “extremely restrictive conditions of confinement.”
The harsh confinement conditions were intended to create the maximum amount of pressure so detainees would cooperate with the investigation in the aftermath of the attacks. Specifically, Arabs and Muslims were targeted and, as the judge wrote, it was “discriminatory on its face.” They were detained “not because of any suspected links to terrorism, but because of their race, national origin, and/or religion.”
The Muslim men, who are plaintiffs, were held in an Administrative Maximum Special Housing Unit ( “ADMAX SHU”). In a tiny cell, they were held:
…[F]or over 23 hours a day, provided with meager and barely edible food, and prohibited from moving around the unit, using the telephone freely, using the commissary, accessing MDC handbooks (which explained how to file complaints about mistreatment), and keeping any property, including personal hygiene items like toilet paper and soap, in their cells. Whenever they left their cells, they were handcuffed and shackled. Although they were offered the nominal opportunity to visit the recreation area outside of their cells several times a week, the recreation area was exposed to the elements and the MDC Detainees were not offered clothing beyond their standard cotton prison garb and a light jacket. Furthermore, detainees who accepted such offers were often physically abused along the way, and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment. As a result, they were constructively denied exercise during the fall and winter….
Prison staff at the MDC subjected detainees to sleep deprivation.
…Bright lights were kept on in the ADMAX SHU for 24 hours a day (until March 2002), and staff at the MDC made a practice of banging on the MDC Detainees’ cell doors and engaging in other conduct designed to keep them from sleeping. They also conducted inmate “counts” at midnight, 3:00 a.m., and 5:00 a.m. While such counts are inherently disruptive – officers are required to see the skin of each inmate being counted–the officers “went beyond what was required for the count by kicking the door hard with their boots, knocking on the door at night much more frequently than required, and making negative comments when knocking on the door.” For example, for the first two or three weeks that one detainee was in the ADMAX SHU, one of the officers walked by about every 15 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, “Motherfuckers,” “Assholes,” and “Welcome to America.” In addition, officers used the in-cell camera to watch one detainee, and when he would appear to fall asleep they would kick the cell door… [emphasis added]
The judge’s ruling further described how the detainees were subjected to “frequent physical and verbal abuse” that included “slamming the MDC Detainees into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways.” It was unnecessary, according to the judge. The detainees were “always fully compliant with orders and rarely engaged in misconduct.” And they were referred to as “terrorists” and “other offensive names,” cursed at, threatened with violence, insulted for being Muslim and humiliated by sexual comments made during strip searches.
Strip-Searched & Sexually Humiliated
The frequent strip searches the men were subjected to by MDC prison staff is particularly foul. At Passaic and MDC, the men were “strip-searched every time they were removed from or returned to their cells, including before and after visiting with their attorneys, receiving medical care, using the recreation area, attending a court hearing, and being transferred to another cell. “ Each time they arrived at the MDC “in the receiving and discharge area and again after they had been escorted – shackled and under continuous guard – to the ADMAX SHU,” they were strip-searched.
There was no opportunity for them to obtain contraband. They were “unnecessary to security.” The judge concluded they were conducted to “punish and humiliate the detainees.” He added, “Female officers were often present during the strip-searches; the strip-searches were regularly videotaped in their entirety (contrary to BOP policy) and MDC officers routinely laughed and made inappropriate sexual comments during the strip-searches.”
What happened when the men tried to “practice and observe their Muslim faith” is vile as well. The judge summarized:
…Officers at the MDC and the Passaic Jail also interfered with the Detainees’ ability to practice and observe their Muslim faith. Specifically, when the Detainees requested copies of the Koran, officers delayed for weeks or months before providing them; the MDC and the Passaic Jail failed to provide food that conformed to the Halal diet, despite the Detainees’ requests for such food; the MDC had no clock visible to the MDC Detainees, and officers regularly refused to tell them the time of day or the date so they could conform to daily Islam prayer requirements and observe Ramadan; and officers constantly interrupted the Detainees’ prayers by banging on their cell doors, yelling and making noise, screaming derogatory anti Muslim comments, videotaping them, handing out hygiene supplies, and/or telling them to “shut the fuck up” while they were trying to pray…
The men were essentially held incommunicado and made to suffer a communications blackout. When they were finally permitted “one call per week to an attorney,” the MDC officers obstructed their efforts to “telephone and retain lawyers.”
The despicable conduct is described in detail:
…They were denied sufficient information to obtain legal counsel; although they were given a list of organizations that provide free legal services, the contact information for these organizations was outdated and inaccurate. Legal calls that resulted in a wrong number or busy signal were counted against their quota of calls, as were calls answered by voicemail. Officers frequently asked the MDC Detainees, “Are you okay?,” and if the MDC Detainees responded affirmatively, the officers construed this as a waiver of their already-limited privilege to make legal calls. The officers also often brought the phone to the MDC Detainees early in the morning before law offices opened for the day. And they frequently pretended to dial a requested number or deliberately dialed a wrong number and then claimed the line was dead or busy. They then refused to dial again, saying that the Detainee had exhausted his quota.
When the MDC Detainees managed to reach their attorneys by phone, the officers frequently stood within hearing distance of conversations that should have been treated as privileged. Legal visits were non-contact and the MDC Detainees were handcuffed and shackled during the entirety of the visits. The MDC video- and audio-recorded the MDC Detainees’ legal visits until April 2002 or later…
The treatment was similar to how CIA interrogators treated detainees in black site prisons. And, again, there was no evidence to tie any of these men to terrorist acts of violence. Only mere suspicion existed.
How the Men Were Rounded Up
The judge’s ruling included descriptions about how each of the men ultimately wound up in detention. A few examples—
Purna Raj Bajracharya, a citizen from Nepal who was in Queens, New York, illegally, was detained after “an employee of the Queens County District Attorney’s Office reported to the FBI on October 25, 2001 that an ‘Arab male’ was videotaping a building that contained the District Attorney’s office.” He was preparing to return to Nepal and wanted to take some video of New York to show to his family.
Two FBI agents visited Ibrahim Turkmen, a Muslim Imam from Turkey, on October 13, 2001, at his West Babylon, New York apartment, where he was staying with Turkish friends. “The visit,” according to the judge “was based on a tip from the friends’ landlady, who reported to an FBI hotline that she had rented her apartment to several Middle Eastern men and that she ‘would feel awful if her tenants were involved in terrorism and [she] didn’t call.’” Agents asked him if he was involved in the 9/11 attacks and if he had “any association with terrorists.” He had trouble understanding English. They accused him of “being an associate of Osama bin Laden and placed him under arrest.”
In late November 2001, FBI agent visited the ex-wife of Akhil Sachdeva at her gas station. The agent was looking for a “Muslim employee who had been overheard having a conversation in mixed Arabic and English relating to flight simulators and flying.” The FBI requested Sachdeva’s wife have him contact the FBI. In December, he called them and then came into the office. FBI agents questioned Sachdeva, an Indian citizen, about his involvement in the 9/11 attacks and his religious beliefs. The FBI examined his “personal identification” then let him leave. On December 20, 2001, INS arrested him at his uncle’s apartment.
The decision by the judge is remarkable in two respects: (1) again, federal officials have escaped accountability for torture and abuse and (2) the judge is at least allowing some of the claims of violations to move forward and there is the potential that the men could win their case.
MDC officers apparently claimed if any remedy was awarded to the men it would “adversely impact” national security. The judge considered this to be completely unfounded:
“Intuition suggests the opposite,” the judge wrote. “If an American jury finds that federal officers deprived detainees of the Koran and Halal food, refused to tell them the correct time of day, and banged on their cell doors while screaming profanities and anti-Muslim epithets, all for the specific purpose of interfering with their exercise of their Muslim faith, one would think our national security interests would only be enhanced if the world knew that those officers were held liable for the damages they caused.”
While the judge did not let the 9/11 terrorist attacks themselves excuse some of the rights violations, he did find this might have impacted how the law enforcement officers believed incorrectly or correctly that their actions were lawful. The judge found 9/11 justified violating the rights of the men to make phone calls and contact persons outside the detention facility. That is troubling because punitive actions by prison officers should not be permitted when there is absolutely no evidence to support the suspicion that detainees have terrorism ties or committed crimes that warrant keeping them imprisoned. (If they’ve violated immigration laws and should be deported, then deport them. Don’t keep them detained incommunicado for an indefinite period of time.)
Overall, the decision lets those who served in high-ranking positions off the hook (again). It does, however, leave open the possibility of some semblance of justice. The ruling does note the seven men are bringing this on behalf of others who were rounded up in a similar manner. What happened in the immediate aftermath to people who were completely innocent was appalling. Since courts have not been open to awarding damages for torture and abuse and have shown complete deference to national security interests since 9/11, that is something that should give the men a bit of hope.