Top Officials Told to Testify in Muslims' Suit - New York Times

Top Officials Told to Testify in Muslims' Suit - New York Times



--------------------------------------------------------------------------------

September 29, 2005
Top Officials Told to Testify in Muslims' Suit
By NINA BERNSTEIN
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."