February 28, 2006

"I lived 13 years in New York, I see a lot of big cases on TV. I think the judges is fair."

Says Ehab Elmaghraby, an Egyptian man who the U.S. detained and then deported after 9/11. He's settling his lawsuit --for $300,000 -- only because he is ill he said. His preference? "I wish I come to New York, to stay in the court face to face with these people."

I suppose most people who settle cases say things like this, but I was touched by this man's expression of respect for American courts.
The government had argued that the lawsuits should be dismissed without testimony because the extraordinary circumstances of the terror attacks justified extraordinary measures to confine noncitizens who fell under suspicion, and because top officials need governmental immunity to combat future threats to national security without fear of being sued.

The federal judge, John Gleeson of the United States District Court for the Eastern District of New York, disagreed, writing in his decision last September, "Our nation's unique and complex law enforcement and security challenges in the wake of the Sept. 11, 2001, attacks do not warrant the elimination of remedies for the constitutional violations alleged here."

12 comments:

ALH ipinions said...

The goverment's argumemnt is patently fatuous. It's one thing to argue this vis a vis detainees at Guantanamo Bay. But where legal residents of the US are concerned, it's a disgrace. Judge Gleeson is absolutely right.

Goesh said...

I suppose ALHipinions is right, yet part of me thinks that as mainstream America roots and grubs in the aisles of Wal-Mart and has that as their sole purpose of existence and meaning in life, some trampling of their rights is warranted and maybe even needed, but, in the long run, such thinking is probably not for the best - more's the pity when a stout ring in the nose and a strong rod to the back best serves so many.

Icepick said...

Goesh, you forgot to tell all us plebians to just eat cake. I'll sit down and be quiet now and listen respectfully to my betters.

Jacques Cuze said...

Jeralyn Merritt wants to know why the US, which doesn't torture people, would settle out a torture case.

President Bush says the U.S. does not engage in torture. Not in Iraq, and not at home. Then why did the U.S. agree to pay $300.000 to two detainees to settle their torture lawsuit?


As for the torture,

"Mr. Elmaghraby, who spent nearly a year in detention, and the Pakistani man, Javaid Iqbal, held for nine months, charged that while shackled they were kicked and punched until they bled. Their lawsuit said they were cursed as terrorists and subjected to multiple unnecessary body-cavity searches, including one in which correction officers inserted a flashlight into Mr. Elmaghraby's rectum, making him bleed..."

The Government hasn't exactly denied the allegations:

"The government had argued that the lawsuits should be dismissed without testimony because the extraordinary circumstances of the terror attacks justified...."

The Inspector General backs up the detainees' claims.

"The inspector general's report said that .... Among the abuses described in the report -- many of them caught on prison videotape -- were beatings, sexual humiliations and illegal recording of lawyer-client conversations.(my emphasis)"

Another telling factor is that many of the guards were disciplined:

"She [Traci L. Billingsley, a spokeswoman for the Federal Bureau of Prisons] would not identify the 10 employees disciplined, but said that two had been fired and two demoted, and that the others had received suspensions ranging from 2 to 30 days...."

I think this is the first settlement we've seen, but it won't be the last.


Frankly I find it weird that we would settle out a torture case! It doesn't make sense! Someone was making a non-argument!

Ann Althouse said...

Quxxo: The NYT article I read did not in any way present this as a "torture case"!

Ann Althouse said...

Correction: The NYT article does at one point repeat the allegations of abuse in prison. The main presentation of the story relates to the way they were selected for detention and the length of the detention.

Goesh said...

Flashlights in the ol' rectum, eh? We got by cheap at 300K on this one, by God! If this fellow returns to Egypt he will be out of reach of American Jurisprudence and religious thugs may well extort what was left by the lawyers on this settlement.

Jacques Cuze said...

The NYT article I read did not in any way present this as a "torture case"!

Correction: The NYT article does at one point repeat the allegations of abuse in prison. The main presentation of the story relates to the way they were selected for detention and the length of the detention.


Yes, for the most part, they did not present this as a torture case. I think this might be a good place for you to have a blogversation about that with Jeralyn Merritt.... Is she over the top? Are you failing to read between the lines? Is the New York Times being too wimpy in their reporting?

PatCA said...

First of all, do we know he was here legally? He married an American, whom he say left him becasue of the arrest. Maybe she left him because she figured she was being used.

I believe 9/11 was an act of war, and it was inevitable that people were going to be arrested, innocent or not. Considering the size of our country, I would hardly characterize it as a sweep. (This is the cue for all the idealists to decry Gestapo Amerikka.)

Secondly, I do not believe his "torture" story--every manual tells detainees to claim torture--nor do I believe his reason for settling. After working with trial lawyers for 20 years, I believe them when they say that people who are convinced they are right do not settle, whether in criminal or civil matters.

Lastly, a simple Google search of his law firm reveals that they are a "public interest" firm and lead workshops in "peace" work, racism...you know the rest. I would imagine that means we taxpayers are paying their bills to propagandize against us.

This fawning, uncritical article and BSer "victim" convince me that we are in deep trouble in this country, but not for the same reasons the NYT might.

Henry said...

I think this might be a good place for you to have a blogversation about that with Jeralyn Merritt.... Is she over the top? Are you failing to read between the lines? Is the New York Times being too wimpy in their reporting? Am I trying to piggyback off your readership? Why are you so succinct? Does anyone listen to me? This tape will self-destruct in five seconds.

Icepick said...

PatCA wrote: After working with trial lawyers for 20 years, I believe them when they say that people who are convinced they are right do not settle, whether in criminal or civil matters.

That cuts both ways here. After all, the government also settled.

From the NYT article: A 2003 report by the Justice Department's inspector general found widespread abuse of the noncitizen detainees at the Brooklyn center after 9/11, and in recent months, 10 of the center's guards and supervisors have been disciplined.

This would seem to confrim that the government knows it's not 'clean' on this topic, namely because they've already admitted to 'abuse'.

If one thinks the government is 'clean' on this issue, then one needs to posit a credible reason for the government to settle. The only one I can think of is that the executive branch doesn't want to set the precedent about having top officials being forced to testify in open court. But if that's the case, that class action lawsuit might might be really damned expensive to settle.

So, barring more information and/or better analysis, I've got to think the government is settling because they want a nasty issue to go away.

Richard Dolan said...

From the judge's reference to "constitutional violations," it appears that this was a Bivens claim. I assume that there was no claim directly against the Government under the Tort Claims Act because the various exceptions in that Act made it either imprudent or impossible to allege such a claim.

While I haven't litigated a Bivens claim in many years, my (vague) memory of the requirements of any such claim are that the plaintiff must establish that a reasonable officer should have known that his acts or omissions violated the plaintiff's constitutional rights, a showing that presupposes that the rights at issue were secured by a well established constitutional rule.

I can't tell whether the basic claim in this case was the plaintiff's detention for a period of time, the treatment he suffered while in detention, or a combination of both. The summary of the Government's argument suggests that the basic issue was the fact of his detention rather than his treatment during detention. If it's the fact of his detention, then the claim would turn on the warrant or other source of authority to detain him, and whether a reasonable governmental official in defendant's position could have believed that the plaintiff's detention in the circumstances was lawful. If the claim concerned his treatment during detention (a common enough claim by criminal defendants), then the case would turn on what happened during detention (quite likely to be disputed).

After 9/11, the Government's authority to detain individuals, not themselves charged with any crime, as "material witnesses" has been construed quite broadly by the Second Circuit (reversing a contrary ruling by Judge Scheindlin). Whether the case involved an arrest warrant, a material witness warrant, no warrant at all, of some other basis to detain the plaintiff, I can't tell from this short quib. Undoubtedly there was something of the sort. Given the unique circumstances presented by 9/11, and the venue in NYCity where there has been a tendency to cut law enforcement some slack in dealing with it particularly where legal rules were not hard and bright, it sounds like a sensible decision on both sides to settle rather than litigate since neither side could be sure of the ultimate outcome.

For those who think it significant that the Government did not contest plaintiff's factual allegations in seeking dismissal of the claim, the reality is that on any motion to dismiss, the court is required to accept as true the material factual allegations of the complaint. If that was the procedural context, than there is no significance whatever to the fact that the Government did not contest plaintiff's factual claims. The same would be true if the context had been a motion for summary judgment, where the thrust of the motion was that there was no settled constitutional rule. Any other facts would not be "material" to the legal argument, and in all events disputed factual matters (by definition) cannot support summary judgment.

Given the complexities, readers should be slow indeed to draw conclusions about what the Government conceded, or where the truth ultimately fell, based only on the judge's decision denying a motion to dismiss followed eventually by a settlement. Certainly nothing in the description of the case supports the claim that the Government's arguments were "fatuous," even if Judge Gleeson rejected them. In every case, of course, one side's arguments are rejected by the trial court only to be "accepted" later on appeal.