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REPORT, NANCY CHANG & ALAN KABAT, CENTER FOR CIVIL RIGHTS, “SUMMARY OF

RECENT COURT RULINGS ON TERRORISM-RELATED MATTERS HAVING CIVIL LIBERTIES IMPLICATIONS,” MARCH 8, 2004

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centerforconstitutionalrights

SUMMARY OF RECENT COURT RULINGS ON TERRORISM-RELATED MATTERS

HAVING CIVIL LIBERTIES IMPLICATIONS

Nancy Chang, Center for Constitutional Rights (New York City)

and
Alan Kabat, Bernabei & Katz, PLLC (Washington, D.C.)

March 8, 2004

Introduction

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The Detention of Non-Citizens of Special Interest to the Government's
Terrorism Investigation Based on Immigration Charges

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A The Blanket Closure of Immigration Hearings to the Press and Public 3
B. Freedom of Information Act Requests for Information on Non-Citizens

Detained by the INS Following the September 11, 2001 Terrorist Attacks 4
C. Civil Rights Lawsuits Brought by INS Detainees Seeking Damages and
Other Relief

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Nancy Chang and the Center for Constitutional Rights are counsel of record in a number of cascs described in this paper, including North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002). ceri. denied, 123 S. Ct. 2215 (2003). Humanitarian Law Project, et al. v. Ashcrofi. et al., 352 F.3d 382 (9th Cir. 2003) (Humanitarian Law Project I), Humanitarian Law Project, et al. v. Ashcroft, et al., 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 23, 2004) (Humanitarian Law Project IT'), Haddad v. Ashcrofi, 221 F. Supp. 2d 799 (E. D. Mich. 2002). and Turkmen, et al., v. Ashcrofi, ei al.. No. 02 CV 2307 (JG) (EDNY.). In addition, Nancy and the Center have submitted amicus briefs in support of several individuals whose cascs are described in this paper, including Jose Padilla, Lynne Stewart, and John Walker Lindh.

Alan Kabat and Bernabei & Katz, PLLC, are counsel of record in Burnett, et al. v. Al Baraka Investment and Development Corporation, et al. 274 F. Supp. 2d 86 (D.D.C. 2003), and 32 County Sovereignty Committee v. Depurtment of Siate. 292 F.3d 797 (D.C. Cir. 2002).

Preliminary versions of this paper were presented at the July 26. 2003 and January 23, 2004 meetings of the National Coalition to Protect Political Freedom (NCPPF) in Washington, D.C. The authors express their appreciation to the NCPPF and its President, Kit Gage, for hosting these presentations

Copyright Vancy Chang (Center for Constitutional Rights) and Alan Kabat (Bernabei & Katz, PLLC), 2003-2004

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The Detention of American Citizens Designated as Enemy Combatants
The Detention of Foreign Nationals at the Guantanamo Bay Naval Base
and Other Overseas Locations

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IV

Sixth Amendment Rights of Criminal Defendants Charged with Terrorist Crimes 14

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The Crime of Providing Material Support to Proscribed Organizations
A The Designation of Groups as “Foreign Terrorist Organizations”
B Criminal Prosecutions for Material Support.
C Civil Damage Lawsuits Brought by Victims of Terrorism

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VIII

Freezing the Assets of Charities Alleged to Have Supported Terrorism

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In the eleven years since the 1993 bombing of the World Trade Center in New York City, criminal prosecutions, civil lawsuits, habeas petitions, and other legal proceedings involving persons and groups alleged to have engaged in or supported terrorism have proliferated. The number of such proceedings has escalated sharply with the September 11, 2001 terrorist attacks on the United States and the subsequent enactment of the USA Patriot Act and introduction of executive anti-terrorism measures, and this trend has continued una bated to the present. Unfortunately, information documenting these legal developments is scattered about in case reporters, newspapers, and journals, and it has been difficult for the general public - and even lawyers – to obtain an overview of this rapidly evolving body of law. In order to assist interested members of the public, press, and the bar, we provide this compilation and analysis of recent court rulings on terrorism-related matters.

In times of national crisis, the executive branch and Congress traditionally implement measures in the name of security that expand the power of the government and contract the civil liberties of citizens – and, to a far greater degree, non-citizens. While the courts have traditionally served as a check on abuses of power by the political branches, they also have a strong tradition of deferring to the political branches on matters of national security. The period following the September 11, 2001 attacks has proven no exception to these general rules. One trend that we identify in this paper is an increased willingness on the part of the government to resort to what may be pretextual grounds for detaining those whom it wishes to investigate for terrorist ties but for whom it lacks the probable cause required under the Fourth Amendment to

hold in criminal detention. Another trend we identify is an increase in prosecutions that appear to impose guilt on the basis of political and religious associations with individuals and groups suspected of terrorism.

As the cases discussed below illustrate, the federal courts have divided between those that have scrutinized, and found wanting, the government's rationale for actions that curtail our freedoms, and those that have accepted the rationales presented by the government at face value. At present, the U.S. Supreme Court has not issued any substantive decisions on the lawsuits discussed in this paper. On November 10, 2003, however, the Supreme Court agreed to review consolidated cases (Rasul and Al-Odah) that present the issue of whether the federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated by the United States military in Guantanamo Bay, Cuba. And on January 9, 2004, the Supreme Court agreed to review the case (Hamdi) of a U.S. citizen who was designated by the President as an enemy combatant in 2002 and who has been held in incommunicado detention in a military brig ever since; on February 20, 2004, the Supreme Court granted certiorari in another case brought by an enemy combatant (Padilla). However, in 2003 and early 2004, the Supreme Court denied petitions for certiorari review in three cases that challenged the secrecy surrounding INS detentions of non-citizens in the aftermath of the September 11 attacks (North Jersey: Media Group, Center for National Security Studies, and M.K.B.).

We intend to update this paper on a periodic basis in order to incorporate new legal developments falling within our area of focus - civil rights and civil liberties in an age of terrorism. Information on new developments in the cases discussed in this paper and on cases that ought to be incorporated into future editions would be greatly appreciated, as would suggestions and corrections regarding our presentation of the cases in this paper. Please bear in mind that space and time limitations preclude us from presenting an exhaustive description of each case. Your comments should be submitted to Nancy Chang at nchang@ccr-ny.org and to Alan Kabat at kabal@bernabeiandkatz.com.

I.

The Detention of Non-Citizens of Special Interest to the Government's Terrorism
Investigation Based on Immigration Charges.

A.

The Blanket Closure of Immigration Hearings to the Press and Public.

On September 21, 2001, Chief Immigration Judge Michael Creppy issued a directive barring the press and public on a blanket basis from attending immigration hearings of individuals detained by the Immigration and Naturalization Service (INS) and classified by the government as being of “special interest" to its investigation of the September 11, 2001 terrorist attacks. The U.S. Courts of Appeal for the Third and Sixth Circuits split on the question of

On March 1, 2003, the INS was transferred from the Department of Justice to the Department of Homeland Security, and the INS's enforcement functions were assumed by the Bureau of Immigration and Customs Enforcement (BICE).

whether the Creppy Directive comports with the First Amendment, and the U.S. Supreme Court declined review of this issue."

The Sixth Circuit ruled in August 2002 that the press has a First Amendment right of access to the immigration hearings covered by the Creppy Directive unless the judge assigned to hear the matter has made an individualized determination that secrecy is required in order to protect national security. Detroit Free Press v. Ashcroft, 303 F 3d 681 (6th Cir. 2002), reh'g en banc denied (Jan 22, 2003). As Judge Damon Keith, the author of the Sixth Circuit opinion, explained: “Democracies die behind closed doors .... When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation ” Id. at 683. In a similar vein, Judge Nancy Edmunds of the U.S. District Court in Detroit held in a related case, Hadukud v. Ashcroft, 221 F. Supp. 2d 799 (E.D. Mich. 2002). that the Creppy Directive interferes with an INS detainee's right under the Due Process Clause to a fair and open immigration hearing.

But in November 2002, the Third Circuit deferred to the judgment of the Department of Justice (DOJ) and held that the Creppy Directive was constitutional. Norih Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), ceri. denied, 123 S. Ct. 2215 (2003). In doing so, the Third Circuit reversed the ruling of Chief Judge John Bissell of the U.S. District Court for New Jersey, who, in May 2002, had enjoined the operation of the Creppy Directive on the grounds that it was not narrowly tailored to serve the national security interests asserted by the government and therefore could not withstand the strong presumption of access to government proceedings under the First Amendment North Jersey Media Group v. Ashcroft, 205 F. Supp. 2d 288 (D.NJ. 2002). The Third Circuit denied rehearing en hanc, and the media plaintiffs petition to the Supreme Court for certiorari review was denied in May 2003.

B.

Freedom of Information Act Requests for Information on Non-Citizens
Detained by the INS Following the September 11, 2001 Terrorist Attacks.

DOJ refused to comply with a Freedom of Information Act (FOIA) request filed in October 2001 by dozens of public interest organizations seeking the identities of the many hundreds of non-citizens who were arrested and detained by the INS in the wake of September 11. Judge Gladys Kessler of the U.S. District Court for the District of Columbia ordered DOJ to release the INS detainees' names under supervised conditions. Center for Nat'l Sec. Studies v. U.S. Dep'i of Justice, 215 F. Supp. 2d 94, 103 (D.D.C. 2002).

Instead of doing so, DOJ obtained a stay of the order from Judge Kessler and appealed her decision to the U.S. Court of Appeals for the D.C. Circuit. On June 17, 2003, the D.C. Circuit reversed Judge Kessler's order and held that DOJ did not have to release the detainees' names under any conditions, over a strong dissenting opinion by Judge Tatel. (enter for Nat'l Sec. Studies v. U.S. Dep'i of Justice, 331 F.3d 918 (D.C. Cir. 2003). The majority opinion (authored by Judge Sentelle, and joined by Judge Henderson) deferred to the government's assertion of national security concerns and concluded that FOIA's law enforcement exemption, 5 U.S.C. § 552(b)(7)(A), shielded the names of detainees from public disclosure. Id. at 926-32.

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The Third Circuit covers Delaware, New Jersev, Pennsylvania, and the U.S. Virgin Islands; the Sixth Circuit covers Kentucky, Michigan, Ohio, and Tenncsscc.

This exemption allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records of information ... could reasonably be expected to interfere with enforcement proceedings.” U.S.C. § 552(b)(7(A).

The panel also held that the names of the detainees' attorneys could be withheld under the law enforcement exemption since that information might allow Al Qaeda operatives or others to contact the attorneys and compile a list of the detainees. Id. at 932-33. The panel rejected the plaintiffs' First Amendment challenge, which was based on earlier decisions upholding the right of the public to obtain arrest records, on the grounds that the records being sought were not individual criminal judicial proceedings, but instead were comprehensive listings compiled from non-judicial records in a special investigation to prevent terrorism. Id. at 933-36. Judge Tatel's dissent recognized that while “uniquely compelling governmental interests are at stake,” the majority's approach was misguided:

While the government's reasons for withholding some of the information may well be legitimate, the court's uncritical deference to the government's vague, poorly explained arguments for withholding broad categories of information about the detainees, as well as its willingness to fill in the factual and logical gaps in the government's case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.

Id. at 937 (Tatel, J., dissenting).

The plaintiffs filed their petition for certiorari review with the Supreme Court on September 29, 2003. However, on January 12, 2004, the Supreme Court denied the request. Center for National Security Studies v. Department of Justice, 124 S. Ct. 1041 (2004); see also C. Lane, “Secrecy Allowed on 9/11 Detention,” Washington Post, Jan. 13, 2004, at A-1, A-8.

C.

Civil Rights Lawsuits Brought by INS Detainees Seeking Damages and Other
Relief.

In April 2002, the Center for Constitutional Rights filed Turkmen v. Ashcroft, a civil rights suit for money damages and declaratory and injunctive relief, on behalf of a class of male non-citizens from the Middle East and South Asia with no ties to terrorism who were arrested following the September 11 attacks on the pretext of minor immigration violations and were improperly detained for months on end. Ibrahim Turkmen, Asif-Ur-Rehman Safi, Syed Amjad Ali Jaffri, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, and Akil Sachveda v. John Ashcroft, Robert Mueller, James Ziglar, et al., No. 02 CV 2307 (JG) (E.D.N.Y.). On June 18, 2003, plaintiffs amended their complaint to incorporate newly revealed findings made by the DOJ's Office of the Inspector General (OIG) in a report released on June 2, 2003, “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” This report and a second OIG report issued on December 5, 2003, “Supplemental Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York," document that these detainees languished for months in INS detention without opportunity for release on bond until they were cleared of terrorist ties by the FBI, and that those detainees who were held in Brooklyn's

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