The federal court for the Eastern District of New York yesterday dismissed, in part, a class-action lawsuit brought by a number of immigrants who were detained without charges by the federal government in the aftermath of the September 11, 2001 attacks in New York. The plaintiffs in Turkmen v. Ashcroft alleged that they, and a number of other illegal immigrants of Middle Eastern origin, were held for a period ranging up to eleven months without any charges being filed. Eventually, the detainees were deported.
Although the lawsuit will move forward because the judge allowed the plaintiffs to challenge the conditions of their confinement, many advocates and scholars are worried about the court’s initial decision upholding the authority of the government to detain immigrants indefinitely without charge as long as their eventual removal is foreseeable. I don’t have time or the energy to opine on this right now, but it doesn’t sound wrong to me. Here is a key excerpt:
After the September 11 attacks, our government used all available law enforcement tools to ferret out the persons responsible for those atrocities and to prevent additional acts of terrorism. We should expect nothing less. One of those tools was the authority to arrest and detain illegal aliens. If the plaintiffs’ allegations are true — and I accept them as true on this motion to dismiss — then the government held them in a jail for months not because that amount of time was necessary to remove them to their countries of citizenship, but because it wanted to have them available here in the United States in the event criminal charges could be brought against them.
But the government was allowed to do that. An ulterior motive in this context does not render illegal conduct that was within the bounds of the government’s authority. An officer who wants to search a suspect’s car for a handgun can pull him over (a Fourth Amendment “seizure”) for changing lanes without using his blinker (a traffic violation), even if the officer has no interest in enforcing the laws requiring drivers to signal a lane change. See United States v. Scopo, 19 F.3d 777 (2d Cir. 1994). Similarly, the government may use its authority to detain illegal aliens pending deportation even if its real interest is building criminal cases against them.
Professor Ku, Although this ruling ‘doesn’t sound wrong to [you],’ and with all due respect, readers might be interested in an article by David Cole, co-counsel to the plaintiffs in Turkmen v. Ashcroft, and co-author (with James X. Dempsey) of the book, Terrorism and the Constitution (New York: The New Press, 2002): ‘Manzanar redux?’ on the Opinion page (B13) of today’s Los Angeles Times (June 16, 2006). Cole is further identified as ‘a law professor at Georgetown University and volunteer with the Center for Constitutional Rights.’ I’ve pasted below a couple of provocative paragraphs from his piece: ‘They were picked up on the slightest of suspicions. In one representative case, according to the Justice Department’s inspector general, the FBI arrested several men on a tip that “too many” Middle Eastern men worked at a convenience store down the street. Many of those arrested admitted that they had violated their visas and agreed to leave the country, but they were kept locked up for months so that the FBI could investigate them. They were not allowed to go until they were “cleared” of any connection to terrorism. In a complete reversal of the American system of justice, they were treated as… Read more »
If I may: a book that might be consulted with a noticeably different orientation than the Cole & Dempsey volume above is edited by Mark Tushnet: The Constitution in Wartime: Beyond Alarmism and Complacency (Durham, NC: Duke University Press, 2005).
Professor Eric Muller has posted items the last two days on Judge Gleeson’s ruling over at Concurring Opinions (see Blogroll at left).