Three weeks after the September 11 terrorist attacks, Asif-ur-Rehman Safi, a 48-year-old Pakistani-born French citizen visiting the U.S. on a three-month tourist visa, was picked up for questioning by INS and FBI agents in New York City. He was then taken to the Metropolitan Detention Center, a federal institution in Brooklyn. According to a complaint filed by Safi’s attorneys, agents slammed Safi’s face into walls as they delivered him to the detention center. Inside, Safi’s lawyers claim, he was subjected to further mistreatment — physical and verbal abuse that continued in one form or another throughout what turned out to be a five-month stay at the MDC.
Like more than 700 mostly Arab and South Asian men arrested nationwide and secretly detained under the federal anti-terror investigation known as ‘PENTTBOMB’, Safi disappeared into a sort of legal black hole – presumed guilty of terrorism until proven innocent to the satisfaction of law enforcement authorities. (Eighty-four men, most deemed of “special” or “high” interest to the FBI , were detained at the MDC.) Then, in the spring of 2002, Safi was deported to France, convicted only of having violated the terms of his tourist visa.
In April 2002, Nancy Chang and other attorneys from the Center for Constitutional Rights, a New York City-based non-profit legal group, filed a complaint in federal court on behalf of Safi and six other men arrested in the PENTTBOMB sweeps. The suit, Turkmen v. Ashcroft, alleges that the men, who are from Pakistan and Turkey, were subjected to severe conditions during their detainment, including beatings, verbal abuse, solitary confinement and denial of the right to religious practice, and that the arrests, coupled with the mistreatment of detainees at the MDC, amount to a violation of their 1st, 4th, 5th, and 6th amendment rights.
A year ago, Chang and her colleagues received news of an apparent smoking gun — a federal investigation that corroborated their clients’ stories. The caustic report — titled “A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” — was issued by the Department of Justice Office of the Inspector General (OIG). Later in December, the Inspector General’s office OIG issued a supplemental report detailing the abuses that occurred at the MDC. Both documents made reference to videotapes collected by the the Inspector Generals office made by the MDC detention center that in many cases illustrated the alleged instances of prisoner abuse. In the supplementary report, the Inspector General describes one video tape where, “four officers escorted one detainee into a recreation cell and ordered him to strip while they berated him for talking too much with other detainees and for encouraging them to go on a hunger strike.”
Although no formal motion has been made, attorneys for former inmates are now working for the public release of these video tapes for use in court, hoping that the images in the videos will aid their case along with former inmate testimony and the Inspector General’s report the use of the video will provide all the evidence they need to prove the allegations made in their formal complaint against the governmentmuch like the images in the Abu Ghraib case that brought public outrage and pushed the Bush Administration to address their detainee policy in Iraq. The main defendants of the complaint: Attorney General John Ashcroft, FBI Director Robert Mueller, and INS Director James Ziglar, along with, Dennis Hasty and Michael Zenk the former and current Wardens of the MDC respectively, have filed a motion to dismiss the case. The plaintiffs are currently awaiting a decision from Federal Judge John Gleeson of the Eastern District of New York.
Nancy Chang, Senior Litigation Attorney at the Center for Constitutional Rights, recently spoke to Motherjones.com from her office in New York City.
Motherjones.com: Can you tell us the background to your class-action lawsuit?
Nancy Chang: Within hours of the September 11 attacks, the FBI set out with INS agents on a dragnet searching for Muslim men from South Asian and Arab countries who were in violation of the immigration laws. Attorney General John Ashcroft announced in October of 2001 that the Department of Justice would use all its powers to arrest those who were in violation of the immigration laws even if the violation amounted to no more than overstaying one’s visa by one day.
This policy in essence turned the Constitution on its head. People were presumed guilty of terrorism until they were shown, to the satisfaction of the FBI, not to be involved in terrorism. The seven plaintiffs in the Turkmen suit are all individuals who were held by the INS on the pretext of immigration violations while the Department of Justice set out to investigate them on terrorist ties. These detentions in essence amounted to a form of preventive detentions. It is critical to keep in mind that with the possible exception of one or two individuals, all were found not to have any terrorist ties and were released.
MJ.com: Your lawsuit depicts some truly horrific scenes that were happening at the Metropolitan Detention Center.
NC: Individuals held at the MDC were greeted by guards who slammed them into walls and hurled racist and anti-Muslim epithets at them. They were told that they would die in the facility just as thousands of individuals had died in the World Trade Center. They were called Muslim terrorist and they were blamed for the tragic deaths that took place on September 11th.
The Department of Justice’s Office of Inspector General has produced two reports and these reports document the widespread physical and verbal abuse of the MDC detainees. In a report issued in December 2003 the Office of Inspector General described how individuals were rounded up not on the basis of individualized suspicion that they were involved in terrorism, but on the basis of flimsy tips that were the product of racial and religious discrimination.
MJ.com:How have the two Inspector General reports helped your case?
NC: The Inspector General investigation opens a door for the public into the processes that have been kept secret. In the days after September 11th a number of rules controlling the detention of non-citizens by the INS were changed in a public way. The attorney general announced that his time to give notice to detainees that the charges on which they were being held would be expanded from 24 hours to 48 hours or an indefinite period in the case of an emergency. But from anecdotal reports we knew that individuals were not being permitted as they had been prior to September 11th to obtain release on bond. We observed that there was a communication blackout being imposed on detainees attorney’s who would call the MDC to find out if a particular individual was housed there. They would often be told they were not when in fact they were. The detainees found themselves unable to make calls outside the facility for weeks after entry and they found their outgoing calls severely limited which interfered with there ability to obtain legal counsel and seek redress in the courts.
We also noticed that individuals who were found deportable and who were ready to leave the United States were being held without any basis. It was not until the April report, which was issued in June, that we understood the reason for this. The Department of Justice had put into place a set of secret policies which required the INS to hold detainees until the FBI cleared them of terrorism. We also learned from the inspector general report that the process of clearing detainees took on average 80 days and in some cases six months or more.
MJ.com: In the supplemental report there are stills from video tapes taken at the Metropolitan Detention Center. What can you tell us about these?
NC: In early October, one of the detainees who was beaten and bruised by guards upon his entry in the facility told a judge about his injuries. After that the MDC guards were ordered to video tape detainees as they were moved from one location within the MDC to another. MDC officials told the Inspector General that these tapes had been reused and that the footage of the special interest detainees being transported within the facility no longer existed. The inspector general on a visit to the MDC found more than 300 video tapes and determined that they were tapes of the special interest detainees being transported.
MJ.com: And these tapes depict some of the treatment and the hostilities towards the detainees?
NC: That’s correct. The December OIG report contains six stills taken from these videos and that appeared to show MDC officers inflicting pain on the MDC detainees.
MJ.com: Have you been able to view the tapes yourself?
NC: We have seen some of these tapes under a protective order, a court order that bars me from discussing their substance.
MJ.com: Will you be able to use the tapes in court?
NC: We would hope so.
MJ.com: Was this an isolated case of poorly trained guards or were there other forces at work?
NC: The MDC charts incorrectly labeled the special interest detainees as World Trade Center suspects. This label contributed to high level emotion on part of the guards. The guards channeled that emotion towards the detainees through physical and verbal abuse.
In Abu Ghraib we had a situation where the guards believed that their prisoners had terrorist ties.
Another parallel between the MDC detentions and the Abu Ghraib detentions is that in both cases the rule of law was suspended. New rules were fashioned to justify these detentions and the detainees were deprived of there due process right to basic fairness.
MJ.com: How do laws that were passed after 9/11 such as the Patriot Act affect your case?
NC: The MDC detentions were justified by a set of executive rules created for this situation. The detentions were not based on the Patriot Act provision that John Ashcroft fought for which allows the Attorney General to certify suspect terrorist and hold them in mandatory detention. The MDC detentions were conducted under the more dangerous rules that were exclusive the product of the executive branch and that were not checked by Congress.
The MDC detentions illustrate the danger that allowing the executive branch the broad power to define rules for detention and execute them without oversight by Congress or the courts. We cannot be surprised when the broad exercise of power by the executive branch leads to abuses. Our system of checks and balances is intended to stop such abuses and it was not in operation in the days after September 11.
MJ.com: It turns out none of your clients had any connection to the 9/11 terrorist attacks or terrorism at all and were sent back to their home countries. What has happened to them since?
NC: Many of our clients continue to suffer from severe psychological trauma. They continue to be haunted by their memories of their detention at the Metropolitan Detention Center. Their guards set out to deflate their hopes of fair treatment and release by telling them that they would never leave the facility that they would die there just as the victims of the world trade center bombing died in that facility. Our clients are scarred for life as a result of the inhumane treatment they experienced.
MJ.com: Do you view your case as a test of these laws given the post 9/11 climate?
NC:The special interest detentions are without precedent in our nation’s history and our lawsuit is the first to challenge the “hold until cleared” policy that the government applied to the special interest detainees.
MJ.com: What about the argument that liberty needs to be curtailed in the name of security?
NC: Law enforcement works best when it investigates individuals based on evidence of wrongdoing rather than race, religion and other forms of collective guilt. Racial profiling is overbroad and it brings so many innocent people to the attention of law enforcement authorities that time and resources are wasted tracking down false leads. At the same time racial profiling is under inclusive. If law enforcement were to rely strictly on the profile of Arab or Middle Eastern Muslim men they would have missed individuals who do not meet that profile. Certainly Richard Reid, John Walker Lindh and Terry Nichols would have been passed over.
In addition law enforcement is bound by our Constitution to provide due process to those it detains; this includes timely notices of the charges of which they are being held. The access to counsel and a fair trial and a fair opportunity to present evidence. Only when due process is provided will the public trust the result.