US can detain all foreign travelers

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Sunday, August 14, 2005 8:43 AM

US can detain all foreign travelers

 

 

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http://www.nytimes.com/2005/08/10/nyregion/10civil.html?ex=1281326400 & en=3bd4ec4\

72358dbe4 & ei=5090 & partner=rssuserland & emc=rss

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> August 10, 2005

> U.S. Defends Detentions at Airports

> By NINA BERNSTEIN

>

> Foreign citizens who change planes at airports in the United States can

> legally be seized, detained

> without charges, deprived of access to a lawyer or the courts, and even

> denied basic necessities

> like food, lawyers for the government said in Brooklyn federal court

> yesterday.

>

> The assertion came in oral arguments over a federal lawsuit by Maher Arar,

> a naturalized Canadian

> citizen who charges that United States officials plucked him from Kennedy

> International Airport when

> he was on the way home on Sept. 26, 2002, held him in solitary confinement

> in a Brooklyn detention

> center and then shipped him to his native Syria to be interrogated under

> torture because officials

> suspected that he was a member of Al Qaeda.

>

> Syrian and Canadian officials have cleared Mr. Arar, 35, of any terrorist

> connections, but United

> States officials maintain that " clear and unequivocal " but classified

> evidence shows that he is a

> Qaeda member. They are seeking dismissal of his lawsuit, in part through

> the rare assertion of a

> " state secrets " privilege.

>

> The case is the first civil suit to challenge the practice known as

> " extraordinary rendition, " in

> which terror suspects have been transferred for questioning to countries

> known for torture.

>

> After considering legal briefs, Judge David G. Trager of United States

> District Court prepared

> several written questions for lawyers on both sides to address further,

> including one that focused

> pointedly on Mr. Arar's accusations of illegal treatment in New York. He

> says he was deprived of

> sleep and food and was coercively interrogated for days at the airport and

> at the Metropolitan

> Detention Center in Brooklyn when he was not allowed to call a lawyer, his

> family or the Canadian

> consul.

>

> " Would not such treatment of a detainee - in any context, criminal, civil,

> immigration or otherwise

> - violate both the Constitution and clearly established case law? " Judge

> Trager asked.

>

> The reply by Mary Mason, a senior trial lawyer for the government, was

> that it would not. Legally,

> she said, anyone who presents a foreign passport at an American airport,

> even to make a connecting

> flight to another country, is seeking admission to the United States. If

> the government decides that

> the passenger is an " inadmissible alien, " he remains legally outside the

> United States - and outside

> the reach of the Constitution - even if he is being held in a Brooklyn

> jail.

>

> Even if they are wrongly or illegally designated inadmissible, the

> government's papers say, such

> aliens have at most a right against " gross physical abuse. "

>

> Under immigration law, Ms. Mason asserted, Mr. Arar was afforded " ample "

> due process when he was

> given five days to challenge an order finding him inadmissible.

>

> " The burden of proof is on the alien to demonstrate his admissibility, "

> Ms. Mason said, " and he did

> not do that. "

>

> " Do you do this to all people on a connecting flight? " Judge Trager asked,

> raising his eyebrows.

>

> " Yes, all have to show admissibility, " Ms. Mason replied. In some ways,

> she asserted, Mr. Arar had

> more rights than a United States citizen, because he could have challenged

> his deportation to Syria,

> which he had left as a teenager, under the Convention Against Torture. He

> also had 30 days to

> challenge his removal, she said.

>

> But David Cole, a law professor at Georgetown University who argued on

> behalf of Mr. Arar and the

> Center for Constitutional Rights, contended that the government had denied

> Mr. Arar a meaningful

> chance to be heard, first by refusing to let him call a lawyer, and later

> by lying to the lawyer

> about his whereabouts.

>

> Mr. Arar, who had been told he would be deported to Canada, was not handed

> a final order sending him

> to Syria until he was in handcuffs on the private jet that took him away,

> Mr. Cole said, while his

> lawyer was told he had been sent to a jail in New Jersey.

>

> " We can't take a citizen, pick him up at J.F.K. and send him to Syria to

> be tortured, " he said. " We

> can't hold against Mr. Arar the failure to file a motion for review when

> he's locked up in a

> gravelike cell in Syria. "

>

> Dennis Barghaan, who represents former Attorney General John Ashcroft, one

> of the federal officials

> being sued for damages in the case, argued that Congress and recent

> judicial decisions tell federal

> courts " keep your nose out " of foreign affairs and national security

> questions, like those in this case.

>

> At several points the judge seemed to echo such concerns. He said he had

> refused to read a letter

> from the plaintiffs detailing testimony before a Canadian board of inquiry

> into Mr. Arar's case

> because he did not know how to deal with questions that might require the

> government to confirm or

> deny classified information.

>

> " How am I going to handle that? " he asked, rubbing his forehead and

> furrowing his brow before

> adjourning the hearing.