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June 15, 2006
Government Has Broad Powers To Detain Non-Citizens Indefinitely: Federal Court

In a ruling that affirms executive branch power in wartime, a federal judge ruled yesterday that the government has broad powers under immigration law to detain non-citizens indefinitely, and to do so on a wide variety of criteria. This ruling deals a strong blow to a class-action effort by Muslims rounded up after the 9/11 attacks, who claimed that the US violated their rights to due process:

A federal judge in Brooklyn ruled yesterday that the government has wide latitude under immigration law to detain noncitizens on the basis of religion, race or national origin, and to hold them indefinitely without explanation.

The ruling came in a class-action lawsuit by Muslim immigrants detained after 9/11, and it dismissed several key claims the detainees had made against the government. But the judge, John Gleeson of United States District Court for the Eastern District of New York, allowed the lawsuit to continue on other claims, mostly that the conditions of confinement were abusive and unconstitutional. Judge Gleeson's decision requires top federal officials, including former Attorney General John Ashcroft and Robert S. Mueller III, the F.B.I. director, to answer to those accusations under oath.

This is the first time a federal judge has addressed the issue of discrimination in the treatment of hundreds of Muslim immigrants who were swept up in the weeks after the 2001 terror attacks and held for months before they were cleared of links to terrorism and deported. The roundups drew intense criticism, not only from immigrant rights advocates, but also from the inspector general of the Justice Department, who issued reports saying that the government had made little or no effort to distinguish between genuine suspects and Muslim immigrants with minor visa violations.

Lawyers in the suit, who vowed to appeal yesterday's decision, said parts of the ruling could potentially be used far more broadly, to detain any noncitizen in the United States for any reason.

"This decision is a green light to racial profiling and prolonged detention of noncitizens at the whim of the president," said Rachel Meeropol, a lawyer for the Center for Constitutional Rights, which represented the detainees. "The decision is profoundly disturbing because it legitimizes the fact that the Bush administration rounded up and imprisoned our clients because of their religion and race."

This ruling will no doubt raise controversy about the nature of rights and their relationship to citizenship under American law. (Oddly, the New York Times ran this story in its Metro/Region section rather than in National News, where it would gain more attention.) It revives a debate that erupted in the wake of government action after 9/11, when the administration arrested hundreds of Muslim immigrants to determine whether any of them presented a threat for more terror attacks.

The ruling hinges on whether the government can selectively enforce laws against non-citizens, and states that they can be held indefinitely only if the government has received a deportation order, or if such an order is "reasonably foreseeable" under the individual circumstances. Gleeson acknowledged that such actions run counter to the notion of American due process, but that their non-citizen status makes their stay in the US subject to regulation by Congress and enforcement by the executive branch. Gleeson further stated that both can create and enforce laws that would be viewed as "suspicious" if applied to American citizens.

Under normal circumstances, we would rightly view any kind of roundup and indefinite detention as "suspicious", and even now it gives the federal government tremendous power and little recourse to the immigrant. However, radical Muslims have attacked our nation, and nineteen of them did so while immigrating normally to the US. The nation has a right to defend itself, and due to the nature of the enemy we face, that does mean focusing our efforts on those who espouse radical Islam among immigrant populations. Also, immigrants who have not become American citizens should not have an entitlement to remain in the US; they are here as guests, and we have a right to ask them to leave.

The only part that bothers me at all is Gleeson's ruling on indefinite detention. It seems to me that unless the government has a reasonable suspicion of involvement in terrorist, either directly or by supporting terrorist groups, then the detainee should be deported immediately, or at least within a reasonable period of time. Having the US vet immigrants based on their country of origin or even their religion under these circumstances is reasonable, given the Islamist nature of the terrorists arrayed against us and the danger of radicalizing mosques to recruit American citizens into their ranks has proven a problem in other Western countries as well as our own (Johnny Lindh springs to mind).

Bear in mind that this ruling has no precedential value ... yet. Expect the plaintiffs in this suit to appeal the ruling, probably all the way to the Supreme Court if necessary. The claim of violation of due process formed the heart of their lawsuit, and all they have left is a claim of damages from the conditions of their confinement. They need this central claim in order to win anything significant from their efforts.

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Posted by Ed Morrissey at June 15, 2006 7:15 AM

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» Illegal-immigrant Muslims Can Be Rounded Up and Held Indefinitely from UrbanGrounds
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