A friend of the court

Eric Muller is one of the nation's leading scholars on the Japanese internment. When he noticed what had gone down in Judge John Gleeson's federal district court in Turkmen v. Ashcroft, he saw some disturbing parallels.

In April 2002, CCR [the Center for Constitutional Rights] filed a civil rights lawsuit against Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar, and officials of the Metropolitan Detention Center (MDC) in Brooklyn, New York, on behalf of a class of male Muslim non-citizens from Arab and South Asian countries who were swept up by the INS and FBI in the dragnet that followed the September 11th attacks. The suit, Turkmen v. Ashcroft, charges that on the pretext of minor immigration violations, the INS held them in detention for the weeks and months that the FBI took to clear them of terrorism. Instead of being presumed innocent until proven guilty, hundreds of post-9/11 detainees were presumed guilty of terrorism until proven innocent to the satisfaction of law enforcement authorities.

[. . .]

The Turkmen complaint has been amended as more and more details about the "special interest" detentions have emerged. The Third Amended Complaint, filed on June 18, 2003, incorporates disturbing revelations in two reports of the U.S. Justice Department Office of the Inspector General (OIG) reports entitled, The first OIG report describes the government's secret round up of more than 700 Muslim and Arab non-citizens after September 11 on the pretext of immigration violations, its application of a blanket policy of denying them release on bond, even when the government lacked evidence that they posed a danger or a flight risk, and of blanket policy of continuing to hold them for criminal investigatory purposes even after they could have been deported. The second OIG Report documents in graphic detail the physical and verbal abuse that INS detainees held at the MDC suffered at the hands of MDC officials and the inhumane conditions in which they were confined.

In his ruling on June 14, 2006, Judge Gleeson upheld some of the claims but dismissed the claims related to racial profiling and extended detention.

Reacting to this ruling--which, according to an attorney for the Center for Civil Rights, "gives a green light to racial profiling and prolonged detention of non-citizens at the whim of the President"--Eric did what probably no one else could (or would) have done: he contacted the grandchildren of three Japanese immigrants who were detained in World War II--wrongfully, it was deemed in the court of history, though the courts upheld their detentions--and asked if they were interested in his help on an amicus brief in the appeal to the Supreme Court. Yes, they were interested.

Their interest in the Turkmen appeal is in avoiding the repetition of a tragic episode in American history that is also, for them, painful family history. That history is not the ordeal suffered by their famous fathers and other American citizens of Japanese ancestry, but rather that suffered by their grandparents Japanese aliens in the United States at the outbreak of war in December 1941.
Their claim is that the district court's broad endorsement of an executive power to single out aliens for prolonged detention on the basis of race, religion, and national origin is a revival of the long-discredited legal theory that supported the mass and prolonged detention of Japanese aliens during World War II.

The brief was filed on Tuesday. Nina Bernstein reports on it in the New York Times. The brief is a powerful argument, worth reading (.pdf).