15 Jun Federal Court Upholds Immigration Detention Power
15.06.06
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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.
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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 guilty until proved innocent.
In all, the government detained more than 1,000 foreign nationals in the first seven weeks after 9/11, and more than 5,000 in the first two years after the attack. Yet as of today, not one of these persons stands convicted of a terrorist crime. From a security standpoint, the roundups were an utter failure.
In Turkmen vs. Ashcroft, the detainees argued that the government denied them equal protection of the law when it rounded them up on the basis of their race and religion, and violated their due-process rights when it kept them after their immigration cases were resolved. The district court rejected both claims, concluding that the government is free to detain deportable foreigners for as long as it wants as long as their ultimate removal is “reasonably foreseeable.” And the judge concluded that using race or religion to select the foreign nationals subject to such detention was neither “irrational” nor “outrageous” because the 9/11 hijackers, after all, were Arab foreign nationals belonging to an Islamic fundamentalist group, Al Qaeda.
In other words, the next time we are attacked, the government is free to round up all foreign nationals with alleged visa violations who share the race or religion of the attacker and to keep them behind bars as long as it wishes. If the attack is perpetrated by an Arab Muslim, all Arab and Muslim immigrants are vulnerable. If the attacker is a Latino Christian, the government could round up all Latino Christians with alleged visa problems.
It’s true that the World War II internment included citizens as well as foreign nationals, and in many cases, it rounded up people who had done nothing wrong. But what was most offensive about it was the fact that people were selected based on their race. And just as racial profiling of drivers is not acceptable merely because black and Latino drivers stopped are allegedly speeding, so racial profiling of immigrants is not acceptable even if the immigrants are alleged to have violated their immigration status.’
I trust I speak for other readers in stating that I look forward–when you find the time and energy–to seeing your thoughts on this ruling.
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).