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 kabat@bernabeiandkatz.com.

1

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)2 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 US Supreme Court declined review of this issue.3

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, Haddad 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. North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. 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.N.J. 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't 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. Center for Nat'l Sec. Studies v. U.S. Dep't 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.

The Third Circuit covers Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands, the Sixth Circuit covers Kentucky, Michigan, Ohio, and Tennessee.

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

Metropolitan Detention Center were subjected to a communications blackout and a widespread pattern and practice of physical and verbal abuse by prison guards. See also D. Eggen, “Tapes Show Abuse of 9/11 Detainees," Washington Post, Dec. 19, 2003, at A-1, A-18, A-19; P. von Zielbauer, “Detainees' Abuse Is Detailed,” M.Y. Times, Dec. 19, 2003, at A-23; T. Perrotta, "Report Claims Detainees Denied Rights in 9/11 Aftermath,” N. Y. Law Journal, Dec 24, 2003.

As amended, the Turkmen complaint alleges that post-September 11 INS detainees were arbitrarily classified as being "of interest" to the government's terrorism investigation notwithstanding the absence of evidence tying them to terrorism. The complaint further alleges that these detainees were subjected to a set of policies and practices that violated their rights under the First, Fourth, Fifth, and Sixth Amendments, including beatings by prison guards, interference with their ability to practice their religion, delayed notice of the charges on which they were being held, a blanket policy of denying them release on bond, a communications blackout that interfered with their ability to retain counsel and seek access to the courts, and a "hold until cleared policy" under which the INS refused to return them to their countries of origin until the FBI had cleared them of terrorist ties. The named defendants -- the United States, Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar, and the current and past Wardens of the Metropolitan Detention Center - moved to dismiss the complaint on jurisdictional and qualified immunity grounds. Judge John Gleeson of the U.S. District Court for the Eastern District of New York is expected to rule on this motion shortly.

In September 2002, Hady Hassan Omar filed an individual civil rights action for money damages. Mr. Omar, an Egyptian, was arrested on September 12, 2001, and detained by the INS for a total of 73 days, while apparently being investigated by the FBI for terrorist ties. Hady Hassan Omar v. Casterlme, et al., 288 F. Supp. 2d 775 (W.D. La. 2003). Omar alleged in his complaint that he was subjected to severe bodily and mental injury by prison guards who repeatedly and unnecessarily conducted invasive cavity searches, mistreated him, denied him access to counsel, and interfered with his religious practices.

On September 10, 2003, Judge Little of the U.S. District Court for the Western District of Louisiana issued an opinion on a motion for summary judgment filed by the defendants - who included a Special INS Agent and the Warden and employees of the Pollock Penitentiary in Louisiana, where Omar was detained - each of whom argued that the claims against him should be dismissed on the grounds that he had qualified immunity from suit. Omar, 288 F. Supp. 2d 775. Judge Little dismissed Omar's claims against Special INS Agent Vence Carmach based on a finding that Omar had failed to allege Carmach's personal involvement in any of the constitutional violations alleged in the complaint. Id. at 779. In addition, Judge Little dismissed Omar's claims based on a body cavity search and probe that was conducted on him when he first entered the Pollock Penitentiary Treating Omar's status to be equivalent to that of a pretrial detainee, the Judge concluded on a Fourth Amendment analysis that the safety and security concerns of the search outweighed the intrusiveness of the search. Similarly, he concluded on a due process analysis that the search was a reasonable measure in light of the prison's security concerns. Id. at 779-781. However, Judge Little did conclude that Omar's First Amendment claim for violation of his right to practice his religion could proceed to trial. Omar alleged that defendants had fed him pork and had refuse to tell him the time of day or date (so that he could

not follow his prayer schedule or observe Ramadan), even after he told them of his religious beliefs. Id. at 781-82.

At least one of the September 11 INS detainees remained in custody through the beginning of 2004, more than two years after he was cleared of any involvement with terrorist activities, due to what a magistrate judge found to be governmental misconduct and incompetence. U.S. Magistrate Judge Kenneth Schroeder of the U.S. District Court for the Western District of New York concluded that the continued detention of Benamar Benatta arose from a "sham" created by the FBI and immigration officers who attempted, through a "subterfuge" to hold Benatta in criminal detention without any legal justification. United States v. Benalla, No. 01-CR-247E, 2003 WL 22202371, at *4 (W.D.N.Y. Sept. 12, 2003). Not only did Judge Schroeder find that "the facts of this case clearly establish[ed] that there was collusion between the INS and the FBI in the treatment of the defendant,” id. at *7, but he found that the prosecutors were part of this cover-up; he went on to criticize "the prosecution's attempt to put a 'spin' on what was done in this case,” id. at *8, and the prosecutors' "incompetence and negligence," id. at *10. He recommended dismissal of the indictment because: "This type of government malfeasance or negligence should not be tolerated since it 'falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying' the criminal prosecution of the defendant." Id. at *12; see also M. Powell, “A Prisoner of Panic After 9/11; Algerian-Born Detainee Seen as Victim of Excess," Washington Post, Nov. 29, 2003 at A-1, A-4, A-5. Shortly after Judge Schroeder issued his recommendation, the government agreed to dismiss the criminal charges. However, Benatta remains subject to immigration charges and is requesting asylum as a refugee from Algeria. See M. Powell, “Release from Jail Sought for Cleared Terrorism Suspect," Washington Post, Dec. 31, 2003, at A-4.

The U.S. Court of Appeals for the Ninth Circuit held that Harpal Singh Cheema, a Sikh lawyer, and his wife, Rajwinder Kaur, both of whom are refugees from India, could not be deported under the Immigration and Nationality Act (INA), at 8 U.S.C. §§ 212(a)(3)(B)(iv) and 241(a)(4)(B), based on a bare government allegation that they had engaged in terrorist activity. Instead, the statute requires a determination of "whether there are reasonable grounds to believe that the alien is a danger to the security of the United States." Cheema v. INS, 350 F.3d 1035, 1041 (9th Cir. 2003). Thus, even if Cheema had engaged in terrorist activity with respect to the Sikh separatist movement in India, the INS had proffered no evidence, let alone the requisite "substantial evidence,” id. at 1042, showing that such activity had affected the national securityof this country. The majority opinion, by Judge Noonan, recognized that “one country's terrorist can often be another country's freedom fighter," id., and noted that Americans, and even the American government, had a long history of supporting rebels abroad, going back to 1848, and including support for such diverse figures as Nelson Mandela, Eamon De Valera, Ben Gurion, the Nicaraguan Contras, and the Solidarity Movement in Poland. Id. at 1043. Thus, the Ninth Circuit ordered that the deportation orders be rescinded, but remanded the petitions for asylum for a proper determination. Id. at 1044. The court recognized that Cheema and his wife were understandably concerned about the potential consequences of deportation to India, as opposed to continued detention: "to be offered indefinite imprisonment as an alternative to likely torture is to be offered a harsh choice." Id. at 1041. The dissenting opinion, by Judge Rawlinson, averred that even minor terrorist attacks abroad can have worldwide repercussions, citing the example of the assassination in Sarajevo that led to World War I. Id. at 1044-45. It remains to