Case 1:04-cv-01809-JG-SMG Document 395-1 Filed 02/27/2006 Page 1 of 2

KOOB & MAGOOLAGHAN
Attorneys at Law

SOUTH STREET SEAPORT 19 FULTON STREET TELEPHONE: (212) 406-3095

SUITE 408

NEW YORK, NEW YORK 10038 FACSIMILE: (212) 349-4658

ELIZABETH L. KOOB JOAN M AGOOLAGHAN ALEXANDER A. REINERT KEITH M . DONOGHUE

W ESTCHESTER COUNTY OFFICE: 221 DEVOE AVENUE YONKERS, NEW YORK 10705 TEL: (914) 964-8888

By ECF and first class mail

February 27, 2006
The Honorable John Gleeson United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
RE: Elmaghraby, et al. v. Ashcroft, et al., 04 Civ. 1809 (JG) (SMG)
Dear Judge Gleeson:
Our office, along with the Urban Justice Center and Weil, Gotshal & Manges LLP, represents the plaintiffs in the above-referenced matter. We write to advise the Court that plaintiff Ehab Elmaghraby and defendant United States have agreed to settle Mr. Elmaghraby’s claims in this action. A copy of the final signed settlement agreement is enclosed with this letter.
Accordingly, Mr. Elmaghraby hereby requests, pursuant to Fed. R. Civ. P. 41(a)(2), that the Court enter an order dismissing his action against all defendants, with all parties to bear their own costs. A proposed order of dismissal is enclosed. Pursuant to Your Honor’s Individual Rule III.B, we respectfully request that this letter be deemed a request for a premotion conference and that, unless objection is raised by a defendant within seven days of service of this letter, the motion be deemed fully submitted. Should the Court require briefing regarding plaintiffs’ motion, we respectfully request that the briefing schedule be abbreviated so as to minimize any delay in finalizing the settlement.

Case 1:04-cv-01809-JG-SMG Document 395-1 Filed 02/27/2006 Page 2 of 2
The Hon. John Gleeson Page 2 February 27, 2006 We thank the Court for its time and attention to this matter. Respectfully submitted,
s:/Alexander A. Reinert Alexander A. Reinert Enc. cc: Counsel of Record (by ECF)
Salvatore LoPresti, pro se (by e-mail) Daniel Ortiz, pro se (by overnight mail)

 
 Case 1:04-cv-01809-JG-SMG Document 395 Filed 02/27/2006 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ORIGINAL

EHAB ELMAGHRABY and JAVAID IQBAL, )

)

Plaintiffs,

)

vs.

)

)

)

UNITED STATES OF AMERICA,

)

JOHN ASHCROFT, ROBERT MUELLER,

)

MICHAEL ROLINCE, KENNETH MAXWELL, )

~I\THLEEN HAWK SAWYER, DAVID

)

RA.RDIN, MICHAEL COOKSEY, DENNIS

)

HASTY, MICHAEL ZENK, LINDA THOMAS, )

JAMES SHERMAN, SALVATORE

)

LOPRESTI, STEVEN BARRERE, WILLIAM )
BECK, LINDSEY BLEDSOE, JOSEPH cucm, )

THOMAS CUSH, HOWARD GUSSAK,

)

MARCIAL MUNDO, DANIEL ORTIZ,

)

ELIZABETH TORRES, REYNALDO

)

ALAMO, SYDNEY CHASE, JAMES CLARDY, )

RAYMOND COTTON, MICHAEL

)

DEFRANCISCO, RICHARD DIAZ, JAI

)

JAIKISSOON, DEXTER MOORE, JON

)

OSTEEN, ANGEL PEREZ, SCOTT ROSEBERY, )

CLEMMET SHACKS, NORA LORENZO AND )

"JOHN DOE" CORRECTIONS OFFICERS 1-19, )

)

Defendants.

)

------------------------------)

04 CV 1809 (JG)(SMG)

STIPULATION FOR COMPROMISE SETTLEMENT AND RELEASE OF FEDERAL TORT CLAIMS ACT CLAIMS PURSUANT TO 28 U.S.c. § 2677

It is hereby stipulated by and between plaintiff Ehab Elmaghraby and the United States of

America, by and through their respective attorneys, as follows:

1. The parties do hereby agree to settle and compromise each and every claim of any

kind, whether known or unknown, arising directly or indirectly from the acts or omissions that

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Case 1:04-cv-01809-JG-SMG Document 395 Filed 02/27/2006 Page 2 of 7
gave rise to plaintiff Ehab Elmaghraby's action against the named defendants under the terms and conditions set forth in this Stipulation For Compromise Settlement And Release Of Federal Tort Claims Act Claims Pursuant To 28 U.S.c. § 2677 (hereinafter "Stipulation For Compromise").
2. The United States of America agrees to pay the sum of Three Hundred Thousand Dollars ($300,OOO.OO)(hereinafter "settlement amount"), which sum shall be in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof, resulting, and to result, from the subject matter of this settlement, including any claims for wrongful death, for which plaintilI Ehab Elmaghraby or his guardians, heirs, executors, administrators, or assigns, and each of them, now have or may hereafter acquire against the United States of America, its agents, servants, and employees.
3. Plaintiff Ehab Elmaghraby and his guardians, heirs, executors, administrators or assigns hereby agrees to accept the settlement amount set forth in this Stipulation For Compromise in full settlement and satisfaction of any and all claims, demands, rights, and causes of action of whatsoever kind and nature, including claims for wrongful death, arising from, and by reason of any and all known and lmknown, foreseen and unforeseen bodily and personal injuries, damage to property and the consequences thereof which they may have or hereafter acquire against the United States of America, its agents, servants, and employees on account of the same subject matter that gave rise to the above-captioned action against all defendants, including any future claim or lawsuit of any kind or type whatsoever, whether known or
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Case 1:04-cv-01809-JG-SMG Document 395 Filed 02/27/2006 Page 3 of 7
unknown, and whether for compensatory or exemplary damages. PlaintiffEhab Elmaghraby and his guardians, heirs, executors, administrators or assigns further agree to reimburse, indemnify and hold harmless the United States of America, its agents, servants, and employees from and against any and all such causes of action, claims, liens, rights, or subrogated or contribution interests incident to or resulting from further litigation or the prosecution of claims, on accOlmt of the same subject matter that gave rise to the above-captioned action against all defendants, by plaintiff Ehab Elmaghraby or his guardians, heirs, executors, administrators or assigns against any third party or against the United States, including claims for wrongful death.
4. This settlement is not, is in no way intended to be, and should not be construed as, an admission ofliability or fault on the part of the United States, its agents, servants, or employees, and the United States, its agents, servants, or employees, specifically deny that they are liable to plaintiff Ehab Elmaghraby. This settlement is entered into for the purpose of compromising disputed claims under the Federal Tort Claims Act and avoiding the expenses and risks of further litigation.
5. It is also agreed, by and among the parties to this Stipulation For Compromise, that the respective parties will each bear their own costs, fees, and expenses and that any attorney's fees owed by the plaintiff will be paid out of the settlement amount and not in addition thereto.
6. It is also understood by and among the parties that pursuant to Title 28, United States Code, Section 2678, attorney's fees for services rendered in connection with plaintiff Ehab Elmaghraby's action shall not exceed 25 per centum of the settlement amount.
7. The persons signing this Stipulation For Compromise warrant and represent that they possess full authority to bind the persons on whose behalf they are signing to the terms of the
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settlement. In the event the plaintiff is a minor or a legally incompetent adult, the plaintiff must obtain Court approval of the settlement at his expense. Plaintiff agrees to obtain such approval in a timely manner: time being of the essence. Plaintiff further agrees that the United States may void this settlement at its option in the event such approval is not obtained in a timely manner. In the event plaintiff fails to obtain such Court approval, the entire Stipulation For Compromise and the compromise settlement are null and void.
8. Payment of the settlement amOlmt will be made by check drawn on the Treasury of the United States for Three Hundred Thousand Dollars ($300,000.00) and made payable to Ehab Elmaghraby, plaintiff, and Koob & Magoolaghan, plaintiffs attorney. The check will be held by the United States Department of Justice until such time as the plaintiffs attorney presents the United States with an Order of Dismissal ofplaintiffEhab Elmaghraby's action against the named defendants, including the United States, with prejudice, with each party bearing its own fees, costs, and expenses. Plaintiffs attorney agrees to distribute the settlement amount, less any deductions for fees, costs, and expenses, to the plaintiff.
9. The parties agree that this Stipulation For Compromise, including all the terms and conditions of this compromise settlement and any additional agreements relating thereto, may be made public in their entirety and the plaintiff expressly consents to such release and disclosure pursuant to 5 U.S.C. § 552a(b).
10. It is contemplated that this Stipulation For Compromise may be executed in several counterparts, with a separate signature page for each party. All such counterparts and signature pages, together, shall be deemed to be one document.
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Case 1:04-cv-01809-JG-SMG Document 395 Filed 02/27/2006 Page 5 of 7

~ 2~. Executed this r d a y of

,

S~te]£ )l1e::Ha~ ndlecr?"."'" R4-
Attorney for Defendant,
United States of America

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Case 1:04-cv-01809-JG-SMG Document 395 Filed 02/27/2006 Page 6 of 7
57 a~ Executed this ~ day of_~-4-''-'?o=__' 2006 .
KOOB & Magoolaghan

an

lag an

Attorney for aintiff Ehab Elmaghraby

19 Fulton et, Suite 408

New York, NY 10038

(212) 406-3095

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Case 1:04-cv-01809-JG-SMG Document 395 Filed 02/27/2006 Page 7 of 7

J L r £' Executed this

day of

(l, , 2 <Y 0,0 .

Ehab Elmaghraby Plaintiff

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 Case 1:04-cv-01809-JG-SMG Document 1-1 Filed 05/03/2004 Page 1 of 45

URBAN JUSTICE CENTER Haeyoung Yoon (JIY-8962) 666 Broadway, 1O'h floor New York, New York 10012 (646) 459-3003

KOOU & MAGOOLAGIIAN Alexander A. Reinert (AR-1740) 19 fulton Slreet, Suite 408
New York, New York 10038
(212) 406-3095
UNITED STATES DISTRICT COURT EASTERN DIS1RICT OF }JEW YORK --..--------...-----...-----------------------...------------------------.....---.. X
EHAB ELMAGHRABY and JAVAID IQBAL,
Plaintiffs,
-against-
JOHN ASHCROFT, Attorney Geneml ofthe United States; KATHT.EEN HAV/K SAWYF.R, fanner Director of the Federal Bureau of Prisons; DEN"t\IS HASTY, former Warden of the Metropolitan Detention Center; MICHAEL 7FNK, Warden of the Metropolitun Detention Center; LINDA THOMAS, former Associate Warden of Programs of the Metropolitan Detention Center; L!EliTENANT DUCK; LIEUTENANT CUSII; LIEUTENANT GCSS; LIEUTENANT ORTIL; LIEUTENANT PEREZ; LIEUTENANT DIRAR;UNJT MANAGER SHACK; CORRECTIONS OFFICER DEFRANCISCO; CORRECTIONS OFFICER MOli"}.'BO; CORRECTIONS OFI'ICER RODINSON; COUNSELOR COTTON; CORRECTIONS OFFICER HOSAIN; CORRECTIONS OFFICER TORRES; DR. LORENZO; and "JOHN DOE" CORRECTIONS OFFICERS NOS. l-32, ··John Doc" being fictional lirsl and last names;
Defendants. ·-·-··-·..·-··-··-··-·--·...·-·-··-··-··----- ·-·--·- ·-··-·-··-·--·-··-·-·--·-··-·- X

jl, [-!\@ @
.GLEESON, J. fA:lJ~ACK, J.
Civil Action No. _ __ COMPLAINT ANO JURYDEMAKO
-~~
·~'<•
•':'"'"·
fN Ui'HI<'S Oi'flt'"
* ••·.. ,, '-' C ll!s-rnrcr COURT, to.N.V. ~nm • "' ') i.VU) BROOKLYN OFFIC

.. Case 1:04-cv-01809-JG-SMG Document 1-1 Filed 05/03/2004 Page 2 of 45
Plaintiffs EHAB ELMAGHRABY and JAY AID IQBAl~, by their attorneys, the Urban Justice Center and Koob & Magoolaghan. allege upon kno\vlcdgc as to themselves ao.d upon
information and belief as to all olher matters as follows:
NATlJRE OF ACTION
I. This is at1 action brought hy Plaintiff-; F.HAB F.l.MAGI-lRABY and JAYAID IQBAL to remedy the bwtal mistreatment and discrimination each Plaintiff suffered while in the care, custody, and control ofDefendants. Plaintiffs ELMAG!IRABY and IQBAL arc Muslim men from Egypt and Pakistan, respectively. In the months after September 11,2001, Plaintiffs were detained at the Metropolitan Detention Center ('"MDC') in Brooklyn, New York. Plaintiffs were arbitrarily classified as being "of high interest" to the government's terrorism investigation afier September 1 Uh, and accordingly were housed in the MDC's Administrative Maximum ("ADMAX") Special Housing Unit (''SIIU").
2. While in the ADMAX SHU, Plaintiffs were subjected to a pattern and practice of croel, inhuman, and degrading treatment in violation orthe First, Fourth, Fifth, Sixth, and Eighth Amendments to the United Stales Constitution, federal statutory law, customary intemational law, and local law, Among other things, they were deliberately and cruelly subjected to numerous instllnces of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extendeJ detention in solitary con1inemenl, tbe denial of adequate exercise, and deliberate interference with their rights to counsel and to exercise of their sincere religious beliefs. They were placed in tiny cells for more than 23 houn; per Jay, and strip-searched, manacled and >hackled when removed from their cells. Plaintiffs were housed in the ADMAX SIIU in the absence of adequate standards or
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procedures for determining that such a classification \vas appropriate, or that the classification should continue, in violation of the Fifth Amendment lo Lhe United States Constitution.
3. Plaintiffs were singled out for such mistreatment because of their race, national origin, and religion. Defendants, by creating, participating in, and endoroing Plaintiffs' systematic mistreatment, violated the principles enunciated in Aivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics, 403 U.S. 388 (1971), the Alien T01t Cluims Act ("ArCA"), 28 U.S.C. § 1350. the Religious Freedom Restoration Act ("RFRA "), 42 USC § 2000bb, the civil rights cunspiracy statute, 42 U.S.C. § 1985(3), and Ne•v York City's Human Right~ Law ("NYCIIRL"), N.Y.C. Code §§8-107, 8-502.
4. As a result of Defendants' misconduct, P!aiotiff"s sufTered severe and permanent physical injuries, and severe emotional distress and humiliation. Plaintiffs now bring this lawsuit to redress these wrongs and to seck just and fair compensation_
JURISDICTION AND VEI\t.;E 5. This action is brought pursuant to Bivens, under the First, Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution, 28 U.S.C. §1350, 42 U.S.C. §§ 1985(3) and 2000bb, and N.Y.C. Code§ 8-502. 6. "Ibis Court has jurisdiction under 28 U.S.C. §§ 1331, 1350, and 1367. 7. Venue is proper in the United States District Colli\ for the Eastern Oistrict of New York pursuant to 28 U.S.C. § 139l(b), as the events giving tise to this action occurred within this district.
PARTIES 8_ PtaintiffF.HAJ3 ELMAGI-IRABY is a native and cili/en of Egypt, where he currently resides. lie was detained in the MDC from on or about October I, 2001 to on or about August

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28, 2002. 9. Plaintiff JAVAID IQBAL i~ a native and citizen of Pakistan, where he currently
resides. He was detained in the MDC from on or about November 5, 2001 to on or about January 15, 2003.
J0, Defendant JOHN ASHCROFT is the Attorney General of the United States. As Attorney General, Defendant ASHCROFT has ultimate responsibility for the implementation and enforcement of the immigration and federal criminal laws. He is a principal architect of the policies and practices challenged here. I Ie authorized, condoned, and/or ratified the unrcaso!lllble and excessively harsh conditions under which Plaintiffs were detained.
II. DctCndant KATHLEEN HAWK SAWYFR was at all relevant times the Director of the Federal Bureau of Prisons. As such, Defendant SAWYER was responsible for the custody, care and control of the individuals detained in the MDC, including Plaintiffs, and was instmmcntal in the adoption, promulgation, and implementation oflhe policies and practices chanenged here. She authori~ed, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
l 2. Defendant DENNIS HASTY was at some relevant times the Warden of the MDC. While Wal'den, Defendant HASTY was responsible for the terms and conditions under which PlaintitTs were con tined al the MDC, and for supervising, hiring, and training ofllcers who bndali:.oed and mistreated Plaintiffs. While Warden, Defendant HASTY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
13. Defendant MICHAEL ZENK is currently the Warden of the MDC. As Warden, Defendant ZENK was responsible at some relevant limes for the terms and conditions under which Plaintiffs were conflned at the MDC, and for supel'iising, hiring, and training officers who
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. Document 1-1 Filed 05/03/2004

Page 5 of 45

brutah7ed and mistreated Plaintim. As Warden, Defendant ZENK subjected Plaintilfs to unreasonable and excessively harsh conditions of confinement.
14. Defendant LINDA THOMAS is the fomter Associate Ww:den of Programs of the MOC and was at all relevant times the Associate Warden ofPrograms of the MDC. While Associate Warden, Defendant THOMAS \VU> responsible for the terms and conditions under whicb Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who bndalized and mistreated Plaintiffs. As Associate Wanlen, Defendant TIIO:MAS subjected PlaintiffS to unreasonable and excessively harsh conditions.
15. Defendant Lieutenant llUCK is and was at all relevant times a federal corrections officer employed at the MDC. Defendant OUCK subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
16. Defendant Lieutenant CUSII is and was at all relevant times a federal correction~ officer employed at the MDC. Defendant CUSH subjected Plaintiffs to unreasonable and exces~i vely harsh conditions of confinement.
17. Defendant Licntcnant GUSS is and was at all relevant times a federal corrections officer employed at the MDC. Defendant GUSS subjected Plaintiff<; to unreasonable and excessively harsh conditioru; of confinement.
18. Defendant Lieutenant ORTIZ is and wa<; at all relevant times a federal corrections officer employed at the MDC. Defendant ORTIZ 5ubjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
19. Detbndanl Lieutenant PEREZ is and was at all rclcYant times a federal corrections officer employed at the MDC. Defendant PEREZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.

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20. Defendunt Lieutenant l3!RAR is and was at all relevant limes a federal corrections officer employed at the MDC. Defendant BIRAR ~ubjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
21. Defendunt SHACK is und was at all relevant times a federal corrections officer employed at the MDC. Defendant SHACK was the Unit Manager for the AD!v!AX SIIU. Defendant SHACK subjected Plaintiffs to umcasonablc and excessively harsh conditions of confinement.
22. Defendant DEFRANCISCO is and was at all relevant times a federal corr~ctions officer employed at the MDC. Delbndanl DEFRANCISCO subjected Plaintiffs to unreasonable and excessive!}· harsh conditions of confinement.
23. Defendant MOUNBO is and was at all relevant times a federal corrections ol1icer employed at the MDC. Defendant MOUI\'BO subjected Plaintifl\ to Lmreasonable and excessively harsh conditions of confinement.
24. Defendant ROBINSON is and was at all relevant times a federal corrections oflicer employed at the MDC. Defendant ROBINSON subjected Plaintiffs to unrca.qonable and excessively harsh conditions of confinement.
25. Defendant COTTON is and was at all relevant times a corrections counselor employed at the MDC. Defendunt COT I'ON subjected Plaintiffs to unreasonable and excessively harsh conditions ofconfinement.
26. Defendant HOSATN is and was at all relevant limes a federal couection; officer employed at the MDC. Defendam HOSAIN subjected Plaintiff; to unreasonable and excessively harsh conditions of confinement.
27. Defendant TORRES is and was at all relevant times a federal corrections officer
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employed at the MDC. Defendant TORRES subjected Plainti!Ts to unreasonable and excessively harsh conditions ofconfinement.
28. Defendant LORENZO is and was at all relevant times a physician employed at the MDC and was at all relevant times responsible for the delivery ofmedkal cure to Plaintiffs.
29. Defendants "JOHN DOE" CORRECTIONSS OFFICERS NOS. 1-32, "John Doe"
being fictional first and last names, are and \Vere at all relevant times federal corrections officers
employed at the MDC. Defendants DOE Nos. l-32 subjected Plaintiffs to unreasonable and excessively harsh conditioru; of confinement.
30. All Defendants named herein acted under color of federal law. STATEMENT OF FACTS General Background
31. In tho months alter September 11, 2001, the Federal L\ureau of Investigation ("FFll") arrested and <Jetained thousands of Arab Muslim men, designated herein as ''post-September 11th detainees," as part of its investigation ot' the events of September 11 .
32. Many of these men, including Plaintiffs, were classified as being "of high intcrcsC to the government'.~ post-Septem her-1 l th investigation by the FIJJ without specific criteria or a unifom1 classification system.
33. In many cases, including Plaintiffs', the classification was made because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees' involvement in supporting terrorist activity.
34. Many post-September lith detainees classified as being "of high interest" were confined at the MDC in Brooklyn, New York, in the ADMAX SHU, \Vhich is the Federal Bureau of Prisons' ("AOP") most restrictive type of confinement. The ADMAX SHU was quickly
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created on MDC's ninth tloor to house post-September 11th detllinees, Prior to September II, 2001, the MDC had a SHU, but not an ADMAX SHU.
35. The MDC had as many as 60 detainees housed in the ADM AX SHU at one time. 36. The ADMAX SHU enforced a four-man hold restraint policy, lhe use of hand-held cameras to record detainee movements, cameras in each cell to monitor detainees, and physical securit} enhancements. 37. The MDC is a ''place or provider of public accommodation" as thattenn is defined in NYC. Code§ 8-102(9). 38. Post-September 11th detainees in the ADMAX SIIU were subjected to highly reslrictive conditions of confinement. They were not permitted to move about the unit, usc the telephone freely, nor were they permitted any electronic equipment in their cells, such as small radios. Post-September l Jth delainees moved outside their cells only when they were restrained with handcuffs and leg irons and escorted by four starr members. 39. Post-September !I th detainees in the ADMAX SHU were subjected to a communications blackout that barred them lfom receiving telephone calls, visitors, mail, and from placing telephone calls. During this period, which lt~.~ted many weeks, the post-September 11th detainees, including Plaintiffs, were unable to make any contact with their attorneys or families. 40. Compounding this situation, MDC employee> often turned away lawyers and family members who came to visit individual post-September\ Jth detainees by falsely stating that the individual detainee was no longer detained in the MDC. 41. Markedly different from the conditions in the MDC 's general population, detainees in the ADMAX SHU were permitted to leave their cells for only one hour a day, at most, and
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their legal and social visits were non-contact, with a clear partition between the parties.
42. Because of the highly restrictive nature of the ADMAX SHU, BOP regulations require un employee known as the Seg.:egation Review Official to conduct a >veekly review of the status of each inmate housed in tho SHU afier he has spent seven days in administrative detention or disciplinary se~;regation. The Segregation Review Ollicial is also required to conduct a formal hearing every 30 days assessing the inmate's status.
43. These review processes \Vere never provided to the post-September lith detainees, including Plaintiffs. Instead, the detainees were held in the ADMAX SHU until the FBI approved their t'dcasc to the general population unit. Sometimes, Jetainees were held in the ADMAX SHIJ even alter they were approved for release to the g:eneral population unit by lhe FUL
44. Until the FBI approved the release of a particular detainee, /v!DC policy was to automatically annotate the detainee statm; with the phrase "continue high security." "!he postSeptember II th detainees were not afforded an} hearings, tmd they remained under restrictive detention in the ADMAX SHU.
45. Moreover, the fl3I failed to approve post-September 11 debinees' release W general population based simply on the detainees' race, religion, and national origin, and not based on any evidence that continued detention in ADMAX SHU was relevant to the FBI's investigation of the events of September 11, 2001.
Cruel and Inhumane Comlition5 ofConfinement in Ihe ADMAX SHU 46. Mr. ELMAGHRARY was arrested on or about September 30,2001 by local and federal law enforcement agents. 47. On or about October I, 2001, Mr. ELMAGHRABY was brought to the MDC and
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housed in the ADMAX SHU. 48. Mr. ELMAGHRABY was housed in the ADMAX SHU the entire time he was
detained at the MDC from on or about October l, 2001 to on or ahom August 28, 2002, 49. Mr. IQBAL was arrested on or aboutNovember2, 2001 by JNS and FDI agents. 50. On or about November 5, 2001 Mr. IQBAL was taken to the MDC and housed in the
general population unit on the fifth floor. Mr. IQBAL was housed in the ADMAX SHU from on or about January 8, 2002 until approximately lhe end of July 2002, at which time he was released back to the general population unit.
51. While detnined in the ADMAX SHU, Plaintiffs \Vere kept in solitary confinement, not pennitted to leave their ce!ls for more than one hom each day with few exceptions, verbally and phy~ically abused, routinely subjected to humiliating and unnecessary strip and body-cavity searches, denied acces,~ to basic medical care, <lenied access to legal counsel, denied adcqume exercise and nutrition, and subjected to cmel and inhumane conditions of confinement.
52. The conditions ofPlainliiJS' confinement incited fear and anguish, exacerbated their physical pain and emotional dislres>, and subjected them embarrassment and humiliation.
53. PlaintitTs were housed in small cells with the lights on almost 24 hours per day. MDC staff deliberately turned on the air conditioner throughout tbe winter months, and turned on the heat during the summer months.
54. Plaintiffs were not provided with adequate bedding and perllonal h}giene items. Until in or about January 2002, Mr. LLMAGHRABY was not given a blanket, pillow, mattress. or any toilet paper. Similarly, Mr. IQBAL was never provided with pillows or more than one blanket.
55. Whenever PlaintiftS were removed from their cells, they were hand cuffed and shackled around their legs and waist.
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56. Plaintiffs were subjected to continuous verbal abu~e from the MDC staff, demonstrating their animus towards Plaintifiil. Such ;tatements included Mr. JQBAL being calleJ "a terroiist" by Defendant ZENK, "a terrorist and a killer" by Defendall\ GUSS. a "Muslim bastard" by Defendant COTTON, and a "Muslim killer" by Defendant PEREZ. ML EL!v!AGHRABY was called a tcrrorisf" by Defendant SHACK; when Mr. LLMAGHRABY requested a pair of shoes, DefenJant THOMAS responded with a statement, "No shoes for a terrorist"; Defendant COTTON expressed the same animus when he said, "a terrorist should not ask for anything" to Mr. EtMAGHRADY.
57. Plaintiffs were rarely permitted to exercise, and the conditions under which they \Vcrc permitted to exercise were punitive in effect and intent. For instance, when permitted to exercise in the winter, Plaintiffs were taken to the recreation areas in the ADMAX SHU, \\·hich were on the top floor of the MDC in the open-air, in early winter mornings withoLil proper jackets and shoes.
58. On ccnain days when it rainell, MDC officers took Mr. IQBAL to the recreation areas for exeroise, and left him in the open-air for hours until he was completely drenched. When Mr. IQBAL was brought back to his cell, the ollicen; deliberately turned on the air conditioner. causing him severe physical discomfort.
59. As the weather became milder, MDC oflicers permitted Mr. ELMAGHRABY to go to the recreation areas for his exercise. However, the officers permitted him to remain outside for only 15 minutes, in contrast to the cold \\·inter months where the officers le/l Mr. ELMAGHRABY in the open-air for hours. In the summer months, when it was extremely hot and humid, MDC officers again left Mr. ET.MAGIIRAllY outside for hours.
60. Moreover, Plaintiffs were not provided with adeqLLil\e food. As a result of the
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harassment they experienced in the ADM AX SHU, and nutritionally inadequate food, Plaintiffs lost a <;ignillcant amount of weight. While in custody, Mr. IQBAL lost over 40 pounds, and Mr. ELMAGHRABY lost over 20 pounds. Furlhermore, as a result of not having adequate food for a prolonged period of time, Mr. IQDAL currently suffers from persistent digestive problems, causing him to require medical treatment.
61, Such conditions of confinement were punitive in intent and effect. 62. Such conditions of confinement were not related to any legitimate penological interest. 63. Such condilions of confinement were imposed without any individlllllized determination as to whether they were appropriate for Plaintiffs. 64. Indeed, the MDC's Segregation Review Official never conducted a weekly review of Plaintiffs' status regarding whether or not il was appropriate to continue to detain them in the ADMAX SHU. In addition, during the entire time Pluintiffs were homed in the ADMAX SI!U. they never received a formal hearing t.o determine whether such confinement was appropriate. 65. Defendants ASHCROFT, SA'VYER, HASTY, ZENK, THOMAS, and SHACK each knew of, condoned, and willfully and maliciously agreed to subject Plaintiff<; to these conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin and for no legitimate penological interest. 66. Defendants ASl-ICROJ-i r, SAWYER, HASTY, ZENK, and HIOMAS willfnlly and maliciously designed a policy whereby individuals such as Plaintiffs were m-bitrarily designated to be confined in the ADMAX SHU wilhout providing any individual determination as t.o whether such designation was appropriate or should conlinue. 67. Keeping Plaintiffs in isolation for nearly 24 hours per day, without access to fresh air
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and light, adequate bedding, adequate heat, and without <U.lequate recreation or exercise, bore no relationship to legitimate security concerns, constituted unjustified pw1ishment, deprived Plaintiffs of their right to libe1ty, and amounted l£J the willful, malicious, and unnecessary
int1iction of pain and suffering.
68. As a res lilt of Defendants' imposition ofunla,.,ful conditions of confinement, Plainli ITs sufTered permanent ph)Sical injury and emotional distress.
Use ofExcessive Force on Ehah Elmaghmby 69. Mr. ELMAGHRABY's bmlal mistreatment by MDC staff began on the first day he arrived at the facility on or about October I, 2001, when Deliondants ORTIZ and DOE ::-fos. 1-5 willfully and maliciously threw Mr. EL\1AGHRADY against a wall of the MDC, subjected him to repeated strip searches, including leaving him naked for approximately 40 minutes, and threatened him with death. Defendants ORTIZ and DOE Nos. 1-5 continually accused Mr. ELMAGI-IRABY of being a terrorist and being associated with Osama bin Laden, AI Qaeda, and the Tali ban. Moreover, when Mr. ELMAGHRABY was transported to court on the same day, Defendants ORTIZ und DOE Nos. 1-5 willfully and maliciously dragged him on the ground white he was chained and shackled, causing him to bleed from his legs. 70. Upon Mr. ELMAGHRABY's return to the MDC, the officers then brought Mr. ELMAGIIRADYup to ADMAX SHU in an elevator, In the elevator, several officers, including Defendants ORTIZ and DOE Nos. J-5, willfully and maliciously physically and verbally assaulted him, causing him l£J bleed from his nose. 71. Although the officers carried a video camera with them \Vhite abusing Mr. ELMAGIIH.ADY, they deliberately turned it off during the entire time the officers physically and verbally abused Mr. ELMAGHRABY.
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72. The treatment by Defendants ORTIZ and DOE Nos. l-5 caused Mr.
ELMAGHRABY to sulfer excruciating pain and emotional distress.
73. Mr. ELMAGHRJ\BY was assaulted a second time, on or about December 1, 2001, when he was willfully and maliciously pushed from behind by Defendant DOE No. 6 upon Mr. ELMAGHRAllY's return from recreation.
74. As a result of being shoved, Mr. ELMAGHRABY hit his face on a hard surface and broke his teeth, causing him excruciating pain and emotional distress.
75. The beatings of Mr. ELMAGI-IRABY were motivated by Defendants' animus against Mr. ELMAGHRABY on account oJ"his race, religion, and/or !llltional origin.
76. There was no legal justification for the assaults and verbal abuse suffered by Mr. ELMAGHRABY.
77. The beatings of Mr. ELMAGHRABY by MDC Maffwere all pursuant to the cnstoms
and practices of the MDC. Such unlawful em toms and practices were known or should have
been known to Defendants HASTY, ZENK, and THOMAS, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to
institute, create, or enforce reasonable policies or procedures to cmtail such unlav.ful activity.
78. Defendants HASTY, ZFNK, TIIOMAS, and SHACK knew of or should have known of the propensity of their subordi!llltes to inflict unnece~sary and assatlllive beatings upon Mr. ELMAGHRABY, and Defendants HASTY, ZENK. THOMAS, and SHACK, with deliberate indifl"erence to and/or reckless disregard for the risk offailing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
79. As a result of said willful, malicious, and unlavv"ful conduct by Defendants, Mr.
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ELMAGHRABY suffered severe and permanent physical injury and extreme emotional distress. Use of Excessive Force on l!tvaid lqbal
80. Consistent with Mr. ELMAGHRABY's experience ofphy~ical abuse, Mr. IQDAL was subjected to hmtal mistreatment from the very day be was IJ:ansferred from general population to the ADMAX SHU on or about Januury 8, 2002, after he was brought back to the MDC from comt.
81. On the day he was transferred to the ADMAX SHU, he \Vas told by an officer on the fifih floor that he had a legal visit.
82. Mr. IQBAL was then taken to a mom where Defendants DOE Nos. 7-22 were
waiting for him. Several of these otncers picked him up and threw him against the wall, kicked him iu the ~tomach, punched him in the face, and dragged him across the room. In addition, the oflicers screamed at him, saying that he was a "tcrrorLqt" and a ''Muslim."
83. Mr. IQBAL was then taken W the ADMAX SHU. While he was being moved, he was shackled and chained around his arms, legs. and waist.
84. from this incident, Mr. IQBAL suffered serious physical injuries, including bleeding from his mouth and nose, as well as severe emotional distress.
85. Mr. lQ13AL was again assaulted on or about March 24, 2002, when Defendants CUSH, GUSS, DEFRANCISCO, and several other MDC of1icers ordered Mr. IQBAL to submit to a strip and body-cavity search.
86. The officer:; conducted three serial suip and body-cavity searches of Mr. IQBAL in the same room. Although the officers had a handheld video camera, they turned it oil" while they conducted the searches.
87. Mr. IQDAL peacefully protested when the officers willfully and maliciously ordered
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him to submit to a fom1h search. 88. In response, Defendant DEfRANCISCO punched lvlr. IQDAL in the face and
Defendant CUSH punched Mr. IQBAL in the back and his legs and kicked him in the back. As a result, Mr. IQBAL bled from his mouth. There was no legal justification for Defendants' brutal assault of Mr. IQBAL.
89. The officers next took Mr.IQJ3AL to the ADMAX SHU. En route to the ADMAX SHU, the officers continued to kick, physically harass, and verbally harass him b} making racist and violent comments about Muslims.
90. When they arrived at the ADMAX SHU, Defendants DEFRANCISCO, CUSI-1, GUSS and DOE No. 22 willfully and maliciously pulled Mr. IQBAL's ann through the slot in his cell door, causing him excruciating pain.
91. Defendant DEFRANCISCO willfully and maliciously urinated in the cell in Mr. 1QBAL's toilet, and then turned the water off in the cell so that he could not flush the toilet Mr. IQBAL was not able to flush the toilet until the next morning.
92. The beatings of Mr. IQBAL were motivated by Defendants' animus against Mr. IQDAL on account of his race, religion, and/or national origin.
93. The beatings of Mr. IQDAL by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendilllts HASTY, ZENK, and TIJ:OMAS, \Vho with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
94. Defendants HASTY, ZENK, THOMAS, illld SHACK knew of or should have known of the propensity of their subordinates to inl1ict um1ecessary and assaultive beatings upon Mr.
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IQBAL, and Defendants HASTY, ZENK, THOMAS, and SHACK, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subscgucntly failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
95. As a result of said willful, malicious, and unlawful conduct bv Defen&nts, Mr.
IQDAL cunenl!y suffers permanent physical and emotional injuries, including but not limited to
limited hearing, pe1manent injury to his right leg, gastrointestinal problems, and depression. Strip (lnd Body Cavity Searches ofMr. Efmoghmby
96. Mr. ELMAGI-IRADY ·was subjected W numerous unreasonable, unnecessary and extreme strip and body-cavity searches while confined in the AD!•,.fAX SHU.
97, During the first three or lOur months of his detention, Mr. ELMAGHRADY was strip searched every morning. The officers ordered him to take ofT his cloth~s and inspected him through the slot in the door before they entered the cell. Defendants BOCK, ORTIZ, D!RAR, HOSAIN, MOUNBO, and DOE Kos. 23-26 willfully and maliciously subjected Mr. ELMAGHRABY to these strip searches, although lhey were not related to any legitimate security or penological interest.
98. Alon[\ with being strip searched every morning l"or the first several months ofhis detention, every time Mr. F.LMAGHRABY went to court, he >vas strip and body-cavity searched three times.
99. The first search occurred in Mr. ELMAGHRADY's cell in the ADMAX SHU, the second search in a different room in the ADMAX SHU, and the final search on the ground floor of MDC. These searches occurred on or about the following dates: October 1, October 2, November 4, November 8, and December 6, 2001, and January 8, February 12, February 13, June 2, July 2, and July 22,2002. Dming these searches, Mr. FLMAGHRABY was ordered to
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pass his clothes to a corrections officer and bend over while a corrections officer used a tlashlight to search his body cavities.
100. None of these searches vindicated any legitimate security or penological interest. Indeed, the second and third searches were particularly egtegious, because they were conducted even though Mr. ELMAGl-lRABY was in the custody of MDC employees from the moment he \\·as lirst searched until after he \V~s searched for the third time.
101. While the strip and body cavity-searches were conducted, Mr. ELMAGIIRADY was threatened, mocked and verbally abused. In addition, he was regularly pushed and shoved.
102. Defendants BUCK, ORTIZ, ll!RAR, MOUNBO, HOSAIN, and DOE Nos. 23-26 willfully and maliciously participated in and conducted the strip searche5 of Mr. ELMAGI-IRAllY.
103. Defendants SAWYLR, HASTY, ZENK, THOMAS, and SHACK willfully and malicious!} approved ot; endor:.ed. and/or ordered that the searches take place as a matter of policy.
104. On many occasions, Defendants conducted the strip searches in an ~xtreme and outrageous manner. For instance. on one occasion, Defendant BIRAR willfully and maliciously displayed Mr. ELMAGHRADY while naked to a female employee or the MDC. On or about October I, 2001, while Defendants BUCK, ORTIZ, HOSAIN, and MOUNBO were present for a body"cavity search of Mr. ELMAGilRADY, Detbndant BIRAR willfldly and maliciously inserted a flashlight into Mr. ELMAGHRAAY"s anal cavity. Mr. ELMAGIIRABY noticed blood on the flashlight when it was removed from his anal cavity. Additionally, on or about January 8, 2002, Defendant ORTIZ, COTTON, HOSArN and DOL Nos. 23-26 conducted a strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed
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a pencil into Mr. ELMAGHRABY'.~ anal cavity. Strip and Doily Cavity Searclu!!J' ojJlfr. Javaid lqhaf
l 05. As with Mr. ELMAGHRADY, Mr. IQDAL was also subjected to numerous unreasonable, unnecessary and extreme strip and body"cavity searches while confined in the ADMAXSHU.
l06. Each morning, MDC corrections officers first searched Mr. IQBAL's celL During thi; ~earch, Mr. IQDAL was chained and shackled and was routinely kicked and punched by MDC officers.
107. After tl1e cell search. Mr. IQBAL was subjected to a strip and body-cavity search. 108. In addition to the daily strip and body-cavity searches, each lime MLIQBAL visited the medical clinic for treatment, he was subjected to three strip searches, once before the medical visit and twice after the visit. 109. On days when he appeared in court, Mr. IQBAL was stripped searched twice before he even left the building. As usual, Mr. IQBAL was SCtbjected to a strip and cavity-search on or about 5:30am. Mr. IQBAL was stripped se!l.l'ched including a cavity search right before the MDC officers escorted him from his cell to the first floor of the building. The second search occurred on or about 7:40am. II 0. Defendants PEREZ, ROBINSON, BUCK, and DOE Nos. 27-32 willfully and maliciously participated in and conducted these strip searches. Ill. Defendants SAWYER. HASTY, ZRNK, THOMAS, and SHACK willfull)· and maliciously approved of, endorsed, and/or ordered thallhese searches take place as a matter of policy. 112. On many occasions, Defendants conducted the strip searches in an extreme and
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outrageous manner. For instance, on or about March 24, 2002, Defendants CUSH, GUSS, DEfRANCISCO, and several other MDC officers ordered Mr. IQBAL to submit to a strip and body-cavity search.
113. The officers conducted three serial strip and body cavity searches of Mr. IQBAL in
the same room. Although the officers had a handheld video camera, they turned it off while ll1ey
conducted the sew:ches. 114. !vir. IQBAL peacefully protested when the officers willfully and maliciously
ordered him to submit to a fourth and completely unnecessary search. 115. In response Defendants assaulted Mr. IQBAL, as described in Pars. 85 - 90. 116. The strip sear~:h policy established and implemented by Defendants did not
vindicate any legitimate security or penological interest. 117. Defendants SAWYER, HASTY, ZENK, THOMAS, and SHACK each knew of,
condoned, and willfully and maliciously agreed to subject Plaintiffs to unreasonable, unnecessary and extreme strip and body-cavity searches.
118. The imposition of unreasonable, unnecessary and extreme strip and bod}·-cavity searches were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants SA WYFR, HASTY, ZENK, and THOMAS, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or prucedures to curtail such unlawful activit)'.
119. Defendants SAWYER, HASTY, LLNK, THOMAS, and SHACK knew of or should have known of the propensity of their subordinates to conduct unreasonable, unnecessary and extreme strip searches, and Defendants SAWYFR, HASTY, ZENK, THOMAS, and SHACK,
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with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create. or enforce reasonable policies or procedures to ~urtail such unlawful activity.
120. PlainliiTs were subjected to unreasonable, extreme and unnecessary strip and bodycavity searches because of their race, religion, and/or national origin and for notlegitimate penological purpo>e.
121. As a result of Defendants' actions, Plaintiffs suffered physical injury, extreme emoticmal distress, humiliation, and embarrassment.
Interference with Religious Practice 122. During the entire time that Plaintiffs were confined in tho ADMAX SHU, their sincere religious practices and beliefs were constantly hurdened and mel with interference. Such interference included banging on the cells when they were praying, routinely confiscating their Koran, and refusing to permit Plaintiffs to participate in Friday prayer services with fellow Muslims. 123. \Vhen Plaintiffs asked for Friday prayer services with fello>v Muslims, they were met with comments such as, "No prayers for terrorists" by Defendant THOMAS ami "Why do you need to pray when you are in jail? Go to ~Jeep," by Defem1ant SHACK. 124. Said interference was an undue burden on Plaintifl"s' sincere religious practice and belief. 125. Moreover, the targeting of Plaintiffs for physical and verbal harassment at1d the imposition of restricthe conditions of confinement constitnted an undue bllrden on PlaintiffS sincere religious practice and belief. 126. Although Mr. ELMAGHRADY complained to Defendants THOMAS, HASTY,
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ZENK, SHACK, COTTON, and BIRAR about the interference with his religious practice, said Defendants willfully and maliciously refused to take any action to remedy the situation.
127. Defendants SHACK, PEREL, DEFRANCISCO. TORRES, and COTTON were each aware of the interference with Mr. IQilAL 's religious practice, and nonetheless each Defendant agreed to, endorsed, and v.il!fully and maliciously participated in the routine confiscation of his Koran.
128. Defendants llASTY, ZENK, THOMAS, and SHACK each knew of, condoned, and willfully and maliciously failed to prevent this interference with Plaintiffs' religious practice.
129. The interference with Plaintiffs' religious practice by MDC staff were all pursuant to the customs and practices of the MDC. Such unlav.ful customs and practices were known or shoulJ have been known lo Defendants IIASTY, ZENK, and THOMAS, who with deliberate indifference to and/or reckless disregal'd for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
130. Defendants HASTY, ZENK, THOMAS. and SHACK knew of or should have known of the propensity of their subordinates to interfere with Plaintiffs' religious practice, and Defendants HASTY, ZENK, THOMAS, and SHACK, with deliberate indifference to and/or reckless disregard for the risk of Jailing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful tJ.Clivity.
131. Defendants did not similarly interfcl'c with the religious practice of non-Muslims. 132. As a result of Defendants' intentional interference with Plaintiffs' religious practice, each Plaintiff suffered exrreme emotional distress.
lllterference with Right to Counsel
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133. Defendant COTTON was the counselor for the ADMAX SHU and determine<l
whether and when detainees were permitted visitation or phone calls. 134. While in the ADMAX SHU, Plaintiffs' communication with their legal counsel was
substantially interfered with by Defendan~ COTTON and SHACK. 135. For instance, from on or about October 1, 2001, until in or about the last week of
November 2001, Defendant COTTON prohibited Mr. ELMAG!-JRAllY from speaking by telephone with his criminal defense attorney.
136. After in or about November 2001, on those occasions when Mr. ELMAGHRJ\BY was permitted to speak with his criminal attorney, Defendant COTTON stood nearby and disconnected the phone ·when Mr. ELMAGHRABY complained about any of the conditions of his conlinemenl in the ADMAX SHU.
137. Similarly, on those occasions when Mr. IQBAL wa_q permitted to speak with his criminal attorney, Defendant COT rON stood nearby and disconnected the phone if Mr. IQDAL complained about any of the conditions of his confinement in the AD!v!AX SHU.
138. When Mr. ELMAGI-IRADY's attorney tried to visit him at the MDC, she o!len waited for hours without seeing Mr. ELMAGHRABY.
139. On those occasions when Mr. ELMAGHRABY \Vas able to meet with his attorney at Lhe MDC, a video camera recorded the visit and when he returned to his cell, he would find that it had been ransacked. On these occasions. even though his legal visit was non"contact, Mr. ELMAGHRABY was forced to submit to a strip search.
140. Mr. IQBAL's attorney was turned away frQm the MDC several limes, being falsely informed that Mr. IQBAL had been transferred to another facility. Additionally, Defendant SHACK routinely delayed Mr. IQDAL's receipt of legal mail, sometimes by up to two months.
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\41. As a result, Plaintiffs' communication with counsel v•as substantially interfered with.
142. Defendants HASTY, ZENK, 1HOMAS, COTTON and SHACK each knew of and condoned the imposition of substantial restrictions on Plaintiffs' right to communicate with counsel.
143. The imposition of these restrictions was all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, and THOMAS, who with deliberate indifrerence to and/or reckless disregard for the risk of failing to take remeJial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to cun:ail such unlawful activity.
144. Defendants HASTY, ZENK, 1HOMAS, and SHACK knew of or should have known of the p1upensity of their subordinates to substantially interfere with Plaintiffs' right to counsel, and Defendants HASTY, ZENK, THOMAS, and SHACK, with deliberate indifference to and/or reckless disregard for the risk of failing to take l'cmcdial action, subsequently failed to institute, create, or enl'orce reasonable policies or procedures to cmtail such unlawful activity.
145. Plaintiffs' right to communicate with counsel was interfered with because ofthcir race, religion, and/or national origin.
146. As a result of Defendants' actions, Plaintiffs suffered extreme emotional distress.
Deliberate Indifference to Serious Medical Needs 147. Doth Plaintiffs also were denied access to conslilulionally adequate medical care. 148. On or about December !, 2001, Mr. ELMAGHRABY was pushed from behind by Defendant DOE No, 6, upon Mr. ELMAGHRADY's return from recreation.
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149. As a result of being shoved, Mr. ELMAGHRABY hit his face on a hard object and broke his teeth.
150. Defendant LORENZO provided Mr. ELMAGHRABY with antibiotics for his injmy, but they were confiscated by Defendant ORTIL \Vhcn Mr. liLMAGHRABY returned to the ADMAX SHIJ.
151. Mr. ELMAGHRABY complained to Defendant SHACK, who asked Mr. ET.MAGHRABY why he needed his teeth.
152. As a result of Defendants' mistreatment, Mr. ELMAGHRABY suffered extreme pain and emotional distress.
153. Moreover, while Mr.liLMAGHRABY was confined in the ADMAX SHU, Defendant LORENZO erroneously diagnosed him with asthma and prescribed him with asthma medication.
154. As a result of Defendant LORENZO's misdiagnosis, Mr. ELMAGHRABY's adlUll condition, hypothyroid, became worse and he had to undergo ~urgery Ill currect the problem.
155. As a result of this crud and inhuman treatment, Mr. ELMAGHRABY suffered and continues to suffer severe emotional distress, as \Vell as persistent physical injmies.
156. On or about March 25,2002, the day a1\er Mr. IQBAL had been beaten by Defendants CUSI-1 and DEFRANCISCO, as described in Pars. 85-90, Mr. IQBAL requested medical assi>tance frum Defendant LORENZO. Defendant SHACK, however, told Defendant LORENZO to leave the ADMAX SHL with.out providing any medical assistance, and Defendant COTTON also refused Mr. IQBAL's requests for medical assistance.
157. Mr. IQDAL did not receive any medical care for two weeks after he was brm.ally assaulted, despite the fact that h.e was experiencing excruciating pain and suffering.
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158. Defendants LORENZO, COTTON, ORTIZ, and SHACK willfully and maliciously failed und refused to provide adequate medical care to Plaintiffs. Said deficiencies in the provision of adequate medical care include but are not limited to the following: Defendant~ LORE~ZO, CUlTON, and SHACK's refusal to provide treatment to Mr. IQDAL until about l\W weeks aller he was assaulted on or about March 24, 2002; Defendant LORENZO's failure to properly diagnose Mr. ELMAGHRABY's hypothyroid condition; and DefenJdllts ORTIZ and SHACK's confiscation of the antibiotics prescribed by Defendant LORENZO as a result oflhe brutal assault of Mr. ELMAGIIRADY on or about December 1, 2001.
159. Defendants LORENZO, COTTON, ORTIZ, and SHACK, acting under color of federal law, by their actions and/or omissions, willfully and maliciously demonstrated deliberate indifTerenee to Plaintiff~' lil\1 and safety and/or serious medical needs.
160. Defendants LORENZO, COTTON, ORTIZ, and SIIACK, acting under color of federal law, by their actions and/or omissions, >villfully and maliciously denied Plaintifl's' lit'e, Iiberty, and/or property v.ilhoul due proce>s of law.
161. Defendants LORENZO, COTTON, ORTIZ, and SJIACK each knew or should have knO\\ITI ofthe deficiencies alleged herein which were within his/her jurisdiction.
162. Defendants LORENZO, COTTON, ORTil, and SHACK each knew or should have known that there was a foreseeable risk of serious harm as a result of the deficiencies alleged herein.
General Allegations 163. Defendants BUCK, CUSH, GUSS, ORTIZ, PEREZ, DIRAR, SHACK, DEFRANCISCO, \WUNDO, RODINSO:t>-', COTTON, HUSAIN, TORRES, LORENZO, ilild DOE Defendants NOS. 1-32 each knew of, participated in, and willfully and maliciomly
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subjected Plaintiffs to the mistreatment Jescribed herein. 164. Defendants ASHCROFT, SAWYER, HASTY, ZENK, THOMAS, BUCK, CUSH,
GUSS, ORTIZ, PEREZ, BIRAR, SHACK, DEFRANCISCO, :tvlOl.JNBO, ROBINSON, COTTON, HOSAIN, TORRES, and DOE Defendants Nos. 1-32 \\·ere aware of, approved of,
and willflllly and maliciously created these unlawful conditions of confinement.
165. The repeated beatings and mistreatment of Plaintiffs were pursuant w the policy
and practice of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, and THOMAS, who with deliberate indifference to and/or reckless disreganl for the risk of failing to take remedial action, sub~equently failed to institute, create, or enforce reasonable policies or procedures to cmtail such unlawful activity_
166. Defendants HASTY. ZENK, THOMAS, and SHACK knew of or should have known oflhe propensity oflheir subordinates to subject Plaintiffs to the beatings and other mistreatment described herein, and Defendants HASTY, ZE:t\K, THOMAS, and ElHACK, with deliberate indi!Terence to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
167. Defendants specifically targeted Plaintiffs for mi~treatment because of Plainti!Ts' race, religion, and/or national origin.
168. Defendants' conduct imposed an undue burden on Plaintiffs' sincere religious belief and practice.
169- As a result of Defendants' malicious, wi!lful, and unlawful conduct, Plaintiffs suiTered severe and pennunent physical injuries at1d .~cvere emotional distress.
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FIRST CAUSE OF ACTION (Conditions of Confinement- Firth Amendment Due Process) 170. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in
paragraphs numbered 1 through 169. 171. Dy willfully and maliciously subjecting Plaintiffs to outrageous, excessive, ewe!,
inhuman and degrading conditions of confinement, including the denilll of adequate nutrition, the denial of adequate exercise, the imposition of unnecessary and unlawful strip and body-cavity searches, extended detention in solil:.'lry ~onfinement, and subjection to unprovoked and unjustified physical and emotional abuse, Defendants BUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, SHACK, DEFRANCISCO, MOUNBO, ROBINSON, HOSAIN, COTTON, TORRES, and DOF Defendants NOS. \-32, acting under color of law and their authority as federal officers, have deprived Plaintiffs of liberty and/or property without due process of law in ~iolation of the Fiflh Amendment to the United Stlltes Constitution. Defendants HASTY, LENK, THOMAS, and SHACK, by failing to take reasonable measures to prevent and/or to remedy Plaintiffs' mistreatment, have deprived Plaintiffs of liberty and/or property without due process of law in violation ofthe Fifth Amendment to the United Stntes Constitution.
J72. As a result of Defendants' unlawful conduct. Plaintiffs have sulfered severe pain and suffering, including physical injmics, emotional distress, humiliation, and emburrassmcnt. and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHA.CK, BUCK, CUSH, GUSS, ORTIZ. PEREZ, 13IRAR, DEFRANCISCO, MOUNDO, RODINSON, IIOSAIN, COTTON, TORRES, and DOE Defendants NOS. 1-32 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount lJJ be determined at trial.
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SECOND CAUSE OF ACTION (Assignment to ADMAX SHU- Fifth Amendment Due Process) 173. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs munbered I throu~ 172. 174. D} willfully and maliciously adopting, promulgating and implementing the policy and practice under which Plaintiffs were confined to solitary confinement in the ADMAX SHU in an arbitrary and unreasonable milJ\ner, without any defined criteria, contemporaneous review, or process of any sort, and by which clussificalions Plainli/Is experienced unnecessary and unreasonable restrictions on their liberty that were atypical and significant departures from the l'eslrictions imposed upon detainees in general population, Defendants ASHCROFT, SAWYER, HASTY, ZENK, THOMAS, and SHACK, acting under color oflaw and their authority as federal officers, have intentionally or recklessly deprived Plaintiffs of liberty without due process of law in violation of the Fifth Amendment to the United States Constitution. 175. As a result of Defendants' unlawful conduct, Plaintiffs suffered emotional dis!Jess h1.uniliation, and em barras~ment, and accordingly each PlaintitT i~ entitled to compensatory damages against ASHCROFT, SAWYER, HASTY, ZEJ\K, THOMAS, and SHACK jointly and severally in an amount to be determined at liial and punitive damages against each Defendant in an amount to be determined at tria!.
TIIIRD CAUSE OF ACTION (E~ccssivc Force- Fifth Amendment Due l'J"ocess)
176. Pluintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 175.
177. l"he unprovoked, unjustified, willful, and malicious intentional beatings of Plaintiffs by Defendants RUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, SHACK, DEFRANCISCO,
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MOUNBO, ROBINSON, CUlTON and DOE :NOS. l-22 deprived Plaintiffs of their right to
libe1ty and property in violation of the fifth Amendment w the United State Constitution.
Defendants HASTY, ZENK, THOMAS, and SHACK, by failing to take rcasonahlc measures to prevent and/or to remedy their subordinates' abuse of Plaintiffs, deprived Plaintiffs of their right to liberty and property in violation of the Fifth Amendment to the United States Constitution.
178. As a proximate result of the excessive force \Vicldcd against them, Plaintiffs sustained permanent injuries and incurred medical bills and other expemes. These injuries have caused and will continue to cause Plaintiffs great pain and suffering, both mental and physical, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, TIIO!'dAS, SllACK, IJUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, DEFRANCISCO. MOUNBO, ROBINSON, COTTOK and DOE NOS, 1-22 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
l<'OURTH CAUSE OF ACTION (Excessive Force- Eighth Amendment Cruel and Unusual Punishment)
I 79. Plaintiffs repeat and reallege as if fully set forth herein the allegations eontuined in paragraphs numbered l through 178.
180. The unprovoked, unjustified, v>iillful, and malicious intentional beatings of PlaintitTs by Defendants BUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, SHACK, DEfRANCISCO, MOUNBO, ROBINSON, COTTOK and DOE NOS.l-22 constituted cruel and unusual punishment in violation of the Eighth Amen<hnent to the United States Constitution. Defendants HASTY, ZENK, THOMAS, and SHACK, by failing lo lake reasonable measures to prevent and/or to remedy their subordinates' abuse ofPJaintiffs. violated the Eighth Amendment's prohibition against cruel and unusual punishment.
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181. As a proximate result of the excessive force wielded against them, Plaintiffs sustained permanent injuries and incurred medical bi!ls and other expenses. These injuries have caused and will continue to cause Plainlin's great pain and suffering, both mental and physical, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOlv!AS. SHACK, BUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, DEFRANCISCO, MOUNBO, ROBINSON, COTTON and DOE NOS.l-22 jointly and severally in an amount to be determined at IJial and punitive damages against each Defendant in an amount to be determined all.riaL
FIFTH CAUSE OF ACTION (Interference with Right to Cou.nscl- Sixth Amendment) 182. Plainlilis repeat and reallege as if fully set fmth herein the allegations contained in paragraphs numbered 1 thro1.1gh 181. 183. Dy willfully and maliciously adopting, promulgating, failing to prevent, failing to remedy, and/or implementing the policy and practice under which Plaintiffs' access to counsel was substantially interfered with, Defendants HASTY, l:ENK, TIIOMAS, SHACK, and COTTON violated Plaintiffs' right to counsel guaranteed by the Sixth Amendment of the United States Constitution. 184. As a result of Defendants' unlawful conduct, Plaintiffs have suffered emotional distress, humiliation, and embarrassment, and accordingly each Plainti t"J"is entiUed to compensatory damages against HASTY, ZENK, TifOMAS, SHACK, and COTTON jointly and severally in an amount lobe determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
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SIXTH CAUSE OF ACTION (Denial of Medical Treatment- Fifth Amendment Due Process) 185. Plaintiffs repeat and reallege as iffully set f01th herein the allegations contained in paragraphs numbered I through 184. 186. By denying Plaintiffs their right to adequate medical exami!llltion and care, Defendants LORENZO, COTTOK, ORTI7, and SHACK deprived Plaintiffs of their liberty and property without due process aflaw in violation of the Fifth Amendment to the United States Constitution. 187. As a result ofDcfcndants' unlawf\ll conduct, PlainlifTs sustained permanent injuries and incurred medical hills and other expenses. These injuries have caused and wi!l continue to cause Plaintiffs great emotional distress and physical pain and suiTering, and accordingly each PlaintitTis entitled to compensatory damages against LORENZO, CUlTON, ORTIZ, and SHACK jointly and severally in an amount to he determined at trial and punitive damages against each Defendant in an amount to be determined at triaL
SEVENTH CAUSE OF ACTION (Denial of Medical Treatment- Eighth Amendment Cruel and Unusual Punishment)
!88. Plaintiffs repeat and reallege as if l'ully set forth herein the allegations contained in paragraphs numbered 1 through 187.
189. BJ denying Plaintiffs their right to adequate medical examination and care, Defendants LORENZO, COTTON, ORTIZ, and SHACK exhibited deliberate indifference to Plaintiffs' serious medical needs in violation of the Eighth Amendment to the United States Constitution.
190. As a result of Defendants' unlawful conduct, PlaintitTs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to
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cause Plaintiffs great emotional distress and physical pain and suffering, il!ld accordingly each Plaintiff is entitled to compensatory damages against LORENZO, CUlTON, ORTIZ, and SHACK jointly and severally in an amount to be determined at trial il!ld punitive damages against each Defendant in an amount to be determined at trial.
EIGHTH CAUSR OF ACTION (Conditions of Confinement- Eighth Amcn(hncnt Due Process) 191. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through I 90. 192. lly willfully and maliciollsly subjecting Plainli ffs to outrageous, excessive, cruel, inhuman and degrading conditions ofconfinement, including the denial of adequate nutrition, the denial ofadequate exercise, the imposition of unnecessary and unlawful strip and body-cavity searches, extended detention in solitary continement, and subjection to unprovoked and unjustified physical and emotional abuse, Defendants BUCK, CUSH, GUSS. ORTIZ, PEREZ, ll!RAR, SHACK, DEFRANCISCO, MOUNFIO, ROBJNSON, HOSAIN, COTTON, TORRES, and DOE Defendants NOS. l-32, acting under color of law and their authority as federal officers, subjected Plaintiffs to cruel and urmsual punishment in violation of the Righ!h Amendment to the United SLates Constitution. Defendants HASTY, ZENK, THOMAS, attd SHACK, by failing to take rcaso!lllblc measures to prevent and/or to remedy Plaintiffs' mistreatment, subjected Plaintiffs to cruel and unusuul punislunent in violation of the Eighth Amendment to the United States Constitution. 193. As a result of Defendants' unlawful conduct, Plaintiffs have suJTered severe pain and suffering, including physical injuries, emotiolllll distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHACK, BUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, DEFRANCISCO,
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MOUNBO, ROBINSON, HOSAJN, COTTON, TORRES, and DOE Defendants NOS. 1-32 jointly and severally in m1 amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
Nl:-lTII CAUSE Ofi ACTION (Unreasonable Stdp and Bolly Cavity-Searches- Fourth Amendment)
l 94. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered I through 193.
195. Dy willfully and maliciously adopting, promulgating, failing to prevent, failing to remedy, and/or implementing the policy and practice under which Plaintiffs were repeatedly subjected to unreasonable and unjustified strip and body-cavity searches, Defendants SAWYER, HASTY, ZE;:-.JK, THOMAS, SHACK, RUCK, ORTIZ, BIRAR, M01.J1'.;lJO, IIOSAIN, PEREL, ROBINSON, GUSS, DEFRANCISCO, and DOES ~o. 23-32 Subjected Plaintiffs to unreasonable searches and seizures in violation of the Fourth Amendment to the United States Constitution.
196. As a result of Defendants' SAWYER, HASTY, ZENK, THOMAS, SHACK, BUCK, ORTIZ, BIRAR, MOUNBO, HOSAIN, PEREZ, ROBINSON, GUSS, DEfRANCISCO, and DOES No. 23-32's unlawful conduct, Plaintiffs sufl"ered physical injuries, emotional distress, humiliation, and embarrassment, and accordingly arc entitled to. Plaintiffs are therefore entitled to ~ompensatory dol mages against SAWYER, HASTY, ZENK, THOMAS, SHACK, DUCK, ORTIZ, DIRAR, MOUNDO, IIOSAlN, PEREZ, ROBlNSON, GUSS, DEFRANCISCO, and DOES No. 23-32 jointly and severally in an amount to be dete1mined at trial and punitive damages against each Defendant in an amount to be determined at trial.
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TENTH CAUSE 01•' ACTION (Interference With Religious Practice- First Amendment)
197. Plaintiffs repeat und reallege as if fully set forth herein the allegations contained in paragraphs numbered I through 196.
198. Defendants HASTY, ZENK, THOMAS, SHACK, COTTON, mrl..A.R, PEREZ.
DEFRANCISCO, and TORRES, by adopting, promulgating, failing to prevent) failing to
i
remedy. and/or implementing a policy and practice or interfering with Plaintiff·' religious practices, violated Plaintiffs· right~ under the First Amendment to the !Jnited Sates Constitution.
199. As a result, Plaintiffs suffered extreme emotional distress and ace rdingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SIIAC , COTTON, [IJRAR, PEREZ, DEFRANCISCO, and TORRES jointly and severally in an a1 ount to be determined at trial and punitive damages against each Defendant in an amount o be determined at trial.
ELEVENTH CAUSE OF ACTION (Discrimination Against Muslims- First Amendment) 200. Plaintiffs repeat and reallege as if fully set forth herein the allcgat ons contained in paragraphs numbered 1 through 199. 201. Defendants ASHCROF r, SAWYER, HASTY, ZENK, THOMA , SHACK, COTTON, BJRAR, PEREZ, DEfRANCISCO, and TORRES, by adopting, pro nulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice ofim sing harsher conditions of confinement on Plaintiffs because of Plaintiffs' sincere religious cliefs violated Plainti llS' rights under the First Amendment to the United States Constitution. 202. As a res lilt, PlainliOS SLtffered extreme physical injmies and emo anal distress, including permanent injuries, and accordingly are entitled to compensatory dat ages against
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ASHCROFT, SAWYF.R, HASTY, ZENK, THOMAS, SHACK, COTTON, BIRAR, PEREZ, DEFRANCISCO, and TORRES jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
TWELFTH CAUSE OF ACTION (Race Discrimination- Fifth Amendment Equal Protection) 203. Plaintiffs repeat i!Ild reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 202. 204. Defendants ASHCROFT, SAWYER, HASTY, ZENK, THOMAS, SHACK, DUCK, CUSII, GUSS, ORTIZ, PEREZ, DIRAR, DEFRANCISCO, MOUNDO, RODINSOK, HOSAlN, CUlTON, TORRES, LORENZO, and DOE Defendants NOS. 1-32, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs' race violated Plaintiffs' rights under the Fifth Amendment to the United States Constitution. 205. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly arc entitled to compensatory damages against ASHCROFT, SAWYER, HASTY. ZENK, THOMAS, SHACK, BUCK, CUSH, GIJSS, ORTIZ, PEREZ, BIRAR, DEFRANCISCO, MOUNBO, ROBINSON, HOSAIN, COTTON, TORRES, LOH..ENZO, and DOE Defendants NOS. l-32,joimly and severally in an amount to be
determined at trial and punitive damages against each Defendant in an amount to be detennined
at trial.
THIRTEENTH CAUSE OF ACTION (Conditions of Confinement- RFRA) 206. Plaintiffs repeal and reallege as if fully set forth herein the allegations contained in
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paragraphs numbered 1 through 205. 207. Defendants ASHCROFT, SAWYER, HASTY, ZENK, TIIOMAS, SHACK,
BUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, DEFRANCISCO, MOUNBO, ROBINSON, HOSAIN, COTTON, TORRES, LORENZO, and VOL Defendants NOS. 1-32, by adopting, promulgating, failing to prevent, !'ailing to remedy, and/or implementing a policy and practice of impo~ing har.:hcr conditions of confinement on Plaintiffs because of Plaintiffs· sincere religious beliefs, substantially burdened Plaintiffs' religious exercise and belief, without any legitimate justification, in violation of 42 IJ.S.C. §§ 2000bb-L
208. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including pennanent injuries, and according!} are entitled to compensator} damages against ASHCROFT, SAWYER, HASTY, 7ENK, THOMAS, SHACK, BUCK, CUSH, GUSS, ORTIZ, PEREZ, DIRAR, DEFRANCISCO, MOUNDO, RODINSO't\', IIOSAIN. COTTON, TORRES, LORENZO, and DOE Defendants NOS. 1-32 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in !111 amount to be detem1ined at trial.
FOURTEENTH CAUSE OF ACTION (Interference With Religions Practice- RFRA) 209. Plaintiffs repeal and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 208. 210. Del'endallts HASTY, ZENK, 11-IOMAS, SHACK, COTTON, lliRAR, PEREZ, DEPRANCISCO, TORRES, and COTTON, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of con fJseating Plaintif1S' religious materials, regularly interrupting Plaintiffs' daily prayers, and denying Plaintiffs access to Friday prayers, substantially burdeneJ Plaintiffs' religious exercise and belief, without any legitimate
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justification, in violation of 42 U.S.C. §§ 2000bb-J. 211. As a result, PlaintiffS suftCrcd extreme emotional distress, including pennanent
injmies, and accordingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SHACK, COTTON, BJRAR, PEREL, DEFRANCISCO, TORRES, and COTTON joint!)· and severally in an amount to be detem1ined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FIFTEENTH CAUSE OF ACTION
(Excessive Force- RFRA) 212. Plaintiffs r-epeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered l through 211. 213. Defendants DUCK, CUSH, GUSS, ORT!7., PEREZ, BlRAR, SHACK, DEFRANCISCO, MOUNBO, ROBINSON, COTTON und DOE NOS.l-22, by brutally beating and verbally abusing Plaintiffs because of Plaintiffs' sincert religious beliefs, imposed a substantial burden on Plaintiffs' religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-l. Defendants, HASTY, ZENK, UIOMAS, and SHACK, by failing to take reasonable measures to prevent and/or to remedy their subordinates' abuse of Plaintiffs, acted in violation of 42 IJ.S.C. §§ 2000bb- 1. 214. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compen,qatory damages against HASTY, ZENK, THOMAS, SHACK, BUCK, CIJSH, GIISS, ORTIZ, PEREZ, BlRAR, DEFRANCISCO, MOUNBO, ROBINSON, COTTON and DOl:. :\'OS.l-22 jointly and severally in an amouoJ to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
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SIXTEENTH CAUSE OF ACTION (Rcligiou.s Discrimination- 42 U.S.C. § 1985(3)) 215. PlaintiflS repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered I through 214. 216. Defendants, by engaging in the following conduct. agreeJ to deprive Plaintiffs of the equal protection of the laws and of equal privileges and immunities of the laws of the United States because ofPlainlinS' sincere religious belief, resulting in injury to Plaintiffs' person and property, in violation of 42 U.S.C. § 1985(3): Defendunts ASHCROFT, SAWYER, HASTY, ZENK, THOMAS, and SHACK's agreement to subject Plaintiffs to unnecessarily harsh conditions of confinement in ADMAX SHU without due process of law; Defendants ORTIZ and DOE. Nos. 1-5's agreement to brut.1lly mistreat Mr. F.LMAGHRABY on or about October l, 2001; Defendants DOE Nos. 7-22's agreement to brutally assault Mr. IQBAL on or about January 8, 2002; Defendants CUSH, GIJSS, DEFRANCISCO's agreement to subject Mr. IQBAL to unnecessary strip and body-cavity searches on or about Murch 24, 2002, and brutally beat him in response W his peaceful protest oflhe searches; Defendants DUCK, ORTIZ, DIRAR, HOSAll\·, and MOUNBO's agreement on or about October I, 2001 to conduct an extreme and cruel body-cavity search of Mr. ELMAGHRADY during \Vhich Defendant Dlll>\R >villfully and mflliciotl.~ly inserted a flashlight into Mr. ELMAGHRABY's anal cavity; Dctbndants ORTIZ, COTTON, HOSAIN and DOE Nos. 23-26's agreement on or about January 8, 2002 to conduct an extreme and cruel strip search of Mr. EI.MAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY's anal cavity; Defendants SAWYER, HASTY, ZENK, THOMAS, and SHACK's agreement to subject Plaintiffs W unnecessmy anJ extreme strip and body-cavity searches as a matter of policy; Defendants
SHACK, PEREZ, DEFRANCISCO, TORRES, and em· fON's agreement to routinely
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confi~cale Mr. IQBAL's Koran; and Det'endanls THOMAS, HASTY, ZENK, SHACK, COTTON, and BIRAR's agreement to substantially burden Mr. LLMAGHRJ\BY's religious practice while he was housed in ADMAX SHIJ.
217. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, inclllding permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, SAWYliR, HASTY, ZE.'IK, THOMAS, SHACK, BUCK, CUSH, GUSS, ORTIZ, PEREZ, I3IRAR, SHACK, DEFRANCISCO, MOUNllO, IIOSAIN, COTTON, TORRES, and DOE Defendants Nos. 1"5 and 7-26 jointly and severally in an amount to be determined at trial and punitive damage> against each Defen&nt in an amount to be determined at trial.
SEVENTEENTH CAUSE OF ACTION (Race and National 01'igin Discrimination- 42 U.S.C. § 1985(3)) 218. Plaintiffs r-epeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 tluough 217.
219. Defendants, by engaging in the following conJuct, agreed w deprive Plaintiffs of
llte equal protection of the laws and of equal privileges and immunities of the laws ofthe IJniled Stales because ofPlaintiffs' race and/or national origin, resulting in injury to Plaintiffs' person anJ property, in violation of 42 U.S.C. § 1985(3): Defendants ASHCROFT, SA WYRR, HASTY, ZENK, THOMAS, and SHACK's agreement to subject Plaintiffs to unnecessarily harsh conditions of confinement in AD!,fAX SHU without due process of law; Defendants ORTI7 and DOE Nos. I-S's agreement to brutally mistreat Mr. ELMAGI-IRABY on or about October I, 2001; Defendants DOE Nos. 7-22's agreement to brutally assault Mr. IQBAL on or about January 8, 2002; Defendants CUSH, GUSS, DEFRANCISCO's agreement to subject Mr. IQBAl. to unnecessm:y strip and body-cavity searches on or about March 24, 2002, and brm.ally beat him in response to his peaceful protest of the searches; Defendants l3UCK, ORTIZ, lllRAR,
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HOSAJN, and MOUNBO's agreement on or about October I, 2001 l£J conduct an extreme and cmel body-cavity search of Mr. ELMAGHRABY during which Defendant BIRAR willfully and maliciously inserted a flashlight into Mr. ELMAGIIRADY's anal cavity; Defendants ORTIZ,
COTTON, HOSAIN and DOE Nos. 23-26's agreement on or about January 8, 2002 to conduct an extreme and cruel strip search ofMr. ELMAGHRABY in "hich Defendant COTTON
V>illfully and maliciously pushed a pencil into Mr. ELMAGHRABY's anal cavity; and Defendants SAWYER, HASTY, ZENK, TIIOMAS, and SHACK's agreement to subject
PlainliflS to unnecessary and extreme strip and body-cavity searches as a matler of policy.
220. As a result, Plaintiffs sufl'ered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROfT, SAWYER, HASTY, ZENK, THOMAS, SHACK, BUCK, CUSH, GUSS, ORTIZ, BIRAR, SHACK, DEFRANCISCO, MOUNBO, HOSAIN, COTTON, and DOF Defendants Nos. 1-5 and 7-26 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
EIGHTEENTH CAUSE OF ACTION (Religions Discrimination- NYCHRL) 221. PlaintifTs repeat and reallege "" if fully set forth herein the ullegations contained in paragraphs numbered I through 220. 222. Defendants ASHCROFT, SAWYER, HASTY, ZENK, TIIOMAS, llUCK, COSH, GUSS, ORTIZ, PERLZ, lllRAR, SHACK, DEFRANCISCO, MOUNRO, ROBINSON, HOSAIN, COTTON, TORRES, LORENZO, and DOE Defendants NOS. 1-32, by implementing, adopting, enforcing, failing 1.o prevent, failing to remedy, and/or promulgating a polic;.· and practice whereby Plaintiffs \Vere harassed, physically and verbally abused, su bjecled to harnh conditions of confinement, subjected to routine strip and body-cavity searches, burdened
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in the practice of their sincere religious beliefs, denied adequate exercise, nutrition, medical care, denied access to counsel, and confined in the ADMAX SHU because of their sincere religious beliefs, violated N.Y.C. Code §§8-107(4), 8-502.
223. As a result, Plaintiffs Sllffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly arc entitled W compensatory damages against ASHCROFT, SAWYER, HASTY, ZENK, THOMAS, BUCK, CUSH, OUSS, ORTIZ, PEREZ, DIRAR, SHACK, DEFRANCISCO, MOUNBO, ROBINSON, HOSAIN, COTTON, TORRES, LORENZO. and DOE Defendants NOS. 1-32 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
NINETF:RNTH CAUSE OF ACTION (Race and National Origin Discrimination- NYCHRL) 224. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 223. 225. Defendants ASHCROFT, SAWYER, IIASTY, ZENK, THOMAS, BUCK, CUSH, GUSS, ORTIZ, PEREZ, BIRAR, SHACK, DEFRANCISCO, MOUNI30, R0131NSON, HOSAIN, COTTON, TORRES, LORENZO, and DOE Defendants NOS. 1-32, by implementing, adopting, enforcing, failing to prevent, failing to remedy, and/or promulgating a policy m1d practice whereby Plaintiffs were harassed, physically and verbally abused, subjected to harsh conditions of confinement, subjected to routine strip and body cavity searches, burdened in the practice of their sincere religious beliefs, denied adequate exercise, nutrition, medical care, denied access to counsel, and confined in the ADMAX SHU because of their race and national origin, violated N.Y.C. Code §§8-107(4), 8-502. 226. As a result, Plainti.fTs suffered extreme physical injuries and emotional distress,
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including pennancnt injuries, and accordingly are entitled to compensatory damages against
ASHCROFT, SA\VYER, HASTY, ZENK, THOMAS, BUCK, CUSH, GUSS, ORTIZ, PEREZ,
BIRAR, SHACK, DEFRANCISCO, MOUNDO, ROBINSON, IIOSAIN, COTTON, TORRES, LORENZO, aml DOE Defendants NOS. 1-32 jointly and >everally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined
at triaL TWENTIETII CAUSE OF ACTION
(Cruel, Inhuman, or Degrading Treatment- Customary Intemational Law:) 227. Pluintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numhered 1 through 226. 228. The aw. described herein had the intent and the eiTect of grossly humiliating Plaintiffs, forcing them to act against their will and conscience, inciting fear and anguish, and breaking their physical and moral resistance. 229. The acts described herein constituted cruel, inhuman or degrading treatment in violation of the law of the nations under the Alien To11 Claims Act, 28 U.S,C. §1350, in that the acts violated customary international law prohibiting cruel, inhuman or degrading treatment as reflected, expressed, and defined in multilateral treaties and other international treatments, international and domestic judicial decisions. 230. Defendants ASHCROfT, SAWYER, HASTY, ZENK, TIIO:MAS, DUCK, CUSH, GUSS, ORTIZ, PEREZ, B!RAR, SHACK, DEFRANCISCO, MOUNBO, ROBINSOK, HOSAJN, COTTON, TORRES, J.OREN/.0, and DOE Defendants NOS. l-32 are liable for said conduct in that Defendunts, acting under the color of law and their authority as federal officers, directed, ordered, confirmed, ratified and/or conspired to cause cruel, inhuman or degrading treatment ofPlainllirs.
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23\. Plaintiffs were forced to suffer severe physical and psychological abuse and emotional distress and are entitled to monetary damages.
JURY DEMAND Plaintiffs demand a trial by jury.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request that a judgment be granted as follows:
a. Awarding compensatory and punitive damages to Plainlii"IS for Defendants' violations of constitutional law, federal statutory law, customary intcmational law, and local law, which caused Plaintiffs lo suffer physical and emotional harm, in an amount tbat is fair, just, reasonable and in conformity with the evidence;
b. Awarding Plainti1Ts attorney's fees and cost<; pursuant to 42 U.S.C. § \988 and N.Y.C. Code§ 8-502; and, Such olher relief as this Court deems just and proper.

Dated: New York, New York May 3, 2004

THE URBAN JUSTICE CENTER and

Ar) KOO ~ MAGOOLAG _ \

By:

1 .~n~

Aex derA. mert(AR-1740)

Koob & Magoolaghan

South Street Seaport

19 Fulton Street, suite 408

Kew York, New York 10038

Tel: 212-406-3095

-and-

IIaeyoung Yoon (HY-8962) Urban Justice Center

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Case 1:04-cv-01809-JG-SMG Document 1-1 Filed 05/03/2004 Page 45 of 45 666 Broadway, 10'1' Floor New York, New York 10012 Tel: 646-459-3003 Attomeys for Plaintiffs
45

 
 Case 1:02-cv-02307-JG-SMG Document 109 Filed 09/13/2004 Page 1 of 170

CENTER FOR CONSTITUTIONAL RIGHTS Nancy Chang (NC 5331) Barbara J. Olshansky (BO 3635) Rachel Meeropol (RM 3878) Shayana Kadidal Jennifer Green (JG 3169) 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6420

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

IBRAHIM TURKMEN; ASIF-UR-REHMAN :

SAFFI; SYED AMJAD ALI JAFFRI;

:

YASSER EBRAHIM; HANY IBRAHIM;

:

SHAKIR BALOCH; AKHIL SACHDEVA;

:

and ASHRAF IBRAHIM,

:

on behalf of themselves and all others

: 02 CV 2307 (JG)

similarly situated,

:

:

Plaintiffs,

: THIRD AMENDED CLASS

: ACTION COMPLAINT AND

- against -

: DEMAND FOR JURY TRIAL

:

JOHN ASHCROFT, Attorney General of the

:

United States; ROBERT MUELLER, Director of :

the Federal Bureau of Investigation; JAMES W. :

ZIGLAR, Commissioner of the Immigration and :

Naturalization Service; DENNIS HASTY,

:

former Warden of the Metropolitan Detention

:

Center (MDC); MICHAEL ZENK, MDC Warden; :

MDC Associate Warden for Custody SHERMAN; :

MDC Captain SALVATORE LOPRESTI; MDC :

Lieutenants STEVEN BARRERE, WILLIAM :

BECK, LINDSEY BLEDSOE, JOSEPH CUCITI, :

HOWARD GUSSAK, MARCIAL MUNDO,

:

DANIEL ORTIZ, STUART PRAY, and

:

ELIZABETH TORRES, and MDC Correctional ;

Officers PHILLIP BARNES, SIDNEY CHASE, :

MICHAEL DEFRANCISCO, RICHARD DIAZ, :

KEVIN LOPEZ, MARIO MACHADO, MICHAEL :

MCCABE, RAYMOND MICKENS, JOHN

:

OSTEEN, BRIAN RODRIGUEZ, SCOTT

:

ROSEBERY, and CHRISTOPHER WITSCHEL, :

MDC Counselors RAYMOND COTTON,

:

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CUFFEE, and CLEMMET SHACKS; JOHN

:

DOES 1-20, Metropolitan Detention Center,

:

Corrections Officers, and the UNITED

:

STATES,

:

:

Defendants.

:

---------------------------------------------------------------x

Plaintiffs Ibrahim Turkmen, Asif-ur-Rehman Saffi, Syed Amjad Ali Jaffri, Yasser

Ebrahim, Hany Ibrahim, Shakir Baloch, Akhil Sachdeva, and Ashraf Ibrahim (collectively

“Plaintiffs” or “Named Plaintiffs”) by and through their attorneys, the Center for Constitutional

Rights, allege the following:

NATURE OF ACTION

1. Plaintiffs bring this class action on behalf of themselves and the class of male non-

citizens from the Middle East, South Asia, and elsewhere who are Arab or Muslim or have been

perceived by Defendants to be Arab or Muslim, who have been arrested and detained on minor

immigration violations at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York

and/or the Passaic County Jail in New Jersey, following the September 11, 2001 terrorist attacks

on the United States (“post-9/11 detainees”), treated as “of interest” to the government’s

terrorism investigation and subjected to a blanket “hold until cleared” policy pursuant to which

the Immigration and Naturalization Service (“INS”) denied them bond without regard to

evidence of dangerousness or flight risk, and detained them until the Federal Bureau of Investigation (“FBI”) cleared them of terrorist ties. (OIG Report1 at 69-70). All Plaintiffs and

virtually all class members were in fact cleared of any connection to terrorism. (Id. at 27).

1 References throughout to the “OIG Report” are to a report released by the Office of the Inspector General of the U.S. Department of Justice on June 2, 2003, entitled “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” A copy of this report was appended to the Second Amended Complaint as Exhibit 1 and is incorporated by reference. It is also available at http://www.usdoj.gov/oig/special/0306/full.pdf.

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Plaintiffs and class members have been subjected to one or more of the following unconstitutional policies and practices: (a) once placed in detention, they were not timely served with a Notice to Appear or any other notice of the charges on which they were being held and were thereby impaired in their ability to understand the reason for their detention, obtain legal counsel, and request release on bond (id. at 27-31); (b) some were classified as being “of high interest” to the government’s terrorism investigation, or as “Witness Security” and/or “Management Interest Group 155” detainees in the absence of adequate standards or procedures for making such a determination or evidence that they were involved in terrorism and, on the basis of these classifications, housed in one of the most highly restrictive prison settings possible, the MDC’s Administrative Maximum Special Housing Unit (“ADMAX SHU”) (id. at 18, 11516); (c) they were subjected to a communications blackout and other actions that interfered with their access to counsel and their ability to seek redress in the courts (id. At 112-14); (d) they were denied release from detention on bond pursuant to a blanket no-bond policy and other fundamentally unfair procedures; and/or (e) after receiving final removal orders or grants of voluntary departure, they were held in immigration custody far beyond the period necessary to secure their removal or voluntary departure from the United States, again without regard to whether they posed a danger or flight risk, and never afforded on a timely basis a hearing before a neutral judicial officer for a determination as to whether probable cause existed to justify detaining them beyond the time necessary to secure their removal or voluntary departure from the United States (id. at 105).
2. As a matter of policy and practice, Defendants have kept Plaintiffs and class members in custody for extended time periods without evidence that they posed a danger of flight risk pursuant to a “hold until cleared policy,” not for any legitimate immigration law enforcement
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purpose, but to incarcerate them – without probable cause – while law enforcement authorities sought to determine whether they had any ties to terrorism. Individuals were deemed “of interest” to the terrorism investigation even where Defendants had no affirmative evidence of a connection to terrorism, so long as the FBI could not immediately rule out any connection. (Id. at 18). After the September 11 attacks, Defendants also adopted a policy of denying bond to any non-citizen deemed “of interest” to the terrorism investigation, even when Defendants had no evidence that the person was dangerous, a flight risk, or connected to terrorism. (Id. at 76, 78). Instead of being presumed innocent until proven guilty, these post-9/11 detainees have been presumed guilty of terrorism until proven innocent to the satisfaction of law enforcement authorities. By adopting, promulgating, and implementing these policies and practices, Defendants John Ashcroft, Robert Mueller, James Ziglar, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the Fourth and Fifth Amendments to the United States Constitution, customary international law, and treaty law.
3. While in detention, the Plaintiffs and class members have been subjected to unreasonable and excessively harsh conditions. Like Plaintiffs Turkmen and Sachdeva, some class members have been held in overcrowded and unsanitary county jail facilities and housed with potentially dangerous criminal pretrial detainees, even though they themselves have never been charged with a crime. Like Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, and A. Ibrahim, other class members have been kept in federal facilities, such as the ADMAX SHU of the MDC where they were placed in tiny cells for over 23 hours a day and strip-searched, manacled, and shackled when taken out of their cells. Like Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, and A. Ibrahim, some class members have suffered physical and verbal abuse by their guards. Many, including Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, and A. Ibrahim, have been badly
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beaten. Like the Plaintiffs, many class members have been denied access to counsel and to the judicial system. Like the Plaintiffs, many class members have been denied the ability to practice their faith during their detention. By subjecting Plaintiffs and class members to excessive force, unreasonable and excessively harsh and inhumane conditions, and penalizing them for the practice of their faith, the Defendants in this action have intentionally and/or recklessly violated rights guaranteed to Plaintiffs and class members under the First, Fourth, and Fifth Amendments to the United States Constitution, and under customary international law and treaty law.
4. Even though Defendants have kept Plaintiffs and other class members in detention for the sole purpose of criminal investigation, Defendants have not provided them with the rights to which those suspected of crimes are entitled under the Constitution. Defendants have failed to provide them with a hearing before a neutral judicial officer to determine whether Defendants had probable cause to believe that the Plaintiffs and other class members were engaged in criminal activity. In addition, Defendants have failed to provide Plaintiffs and other class members with a criminal indictment or information citing criminal charges on which the detention was based, much less with counsel or a speedy trial. Instead of being afforded these fundamental protections, Plaintiffs and other class members were detained indefinitely pending the outcome of FBI and INS Aclearances.@ In adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, Ziglar, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the Fourth and Sixth Amendments to the Constitution.
5. Defendants adopted policies and practices that impeded and interfered with Plaintiffs’ ability to obtain legal representation and thereby gain access to court. They did so by, among other things, not serving Notices to Appear on a timely basis, thereby delaying bond
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redetermination hearings (id. at 27-31); imposing an initial communications blackout (id. at 11214) and severely limiting phone calls to lawyers even after the blackout ended (id. at 130-31); and assigning certain Plaintiffs to the ADMAX SHU. (Id. at 18, 115-116). In adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the First and Fifth Amendments to the Constitution.
6. At the time of Plaintiffs’ arrests, Defendants confiscated personal identification, money, and valuable personal items from all Plaintiffs and many class members. In addition, Defendants searched the homes of Plaintiffs and other class members while they were in detention and confiscated items in their homes. When Plaintiffs Turkmen, Baloch, and other class members demanded the return of these items upon release for removal or voluntary departure from the United States, Defendants deliberately deprived Plaintiffs and other class members of these items. By adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, and Ziglar, and others have intentionally violated rights guaranteed to Plaintiffs and class members under the Fifth Amendment to the Constitution.
7. During their confinement, Defendants subjected Plaintiffs such as Saffi, Ebrahim, H. Ibrahim, Baloch, A. Ibrahim, and other class members to coercive and involuntary custodial interrogation designed to overcome their will and coerce involuntary and incriminating statements from them. By adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, Ziglar, John Does 1-20, and others have intentionally violated rights guaranteed to Plaintiffs and class members under the Fifth Amendment to the Constitution.
8. In arresting Plaintiffs and class members, denying them bond without an adequate evidentiary basis, detaining them under unreasonable and excessively harsh conditions, and
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holding them far beyond the time necessary to effectuate their removal, Defendants Ashcroft, Mueller, Ziglar, and others have also engaged in racial, religious, ethnic, and/or national origin profiling. Plaintiffs= and class members= race, religion, ethnicity, and/or national origin have played a determinative role in Defendants= decision to detain them initially, to subject them to a blanket no-bond policy, to subject them to punishing and dangerous conditions of confinement, and then to keep them detained beyond the point at which removal or voluntary departure could have been effectuated, in violation of the rights guaranteed to them by the Fifth Amendment to the Constitution.
9. Plaintiffs and other class members seek a judgment declaring that Defendants= actions, practices, customs, and policies, and those of all persons acting on their behalf and/or their agents and/or employees, alleged herein, are illegal and violate the constitutional rights of Plaintiffs and class members as to each applicable count. Plaintiffs and other class members also seek a declaration that each individual Plaintiff’s detention was unjustified, unconstitutional, unlawful and without probable cause to believe that he had any involvement in the September 11 terrorist attacks or other terrorist activity. Plaintiffs further seek an injunction compelling Defendants to return all personal identification, money and valuable personal items that were confiscated from them. In addition, Plaintiffs seek compensatory and punitive damages for themselves and all class members, and an award of costs and reasonable attorneys= fees.
10. Plaintiffs also seek relief under the Federal Tort Claims Act, 28 U.S.C. §2671, et seq., (“FTCA”) for the torts of false imprisonment, negligence, assault, battery, and the intentional infliction of emotional distress. Plaintiffs seek compensatory damages from the United States for the harm suffered as a result of Defendants’ tortious conduct. All Defendants were acting within the scope of their employment by the United States when they committed the conduct in
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question. The conduct in question occurred at the times and places where Defendants were performing the duties of their employment, that are traditionally a part of their employment duties in their service to the United States. All Defendants employed at MDC at the time of the conduct at issue in this suit were working as law enforcement officers under 28 U.S.C. § 2680(h).
JURISDICTION AND VENUE 11. This action is brought pursuant to the First, Fourth, Fifth, and Sixth Amendments to the Constitution, customary international law, and treaty law as incorporated into federal common law and statutory law. 12. This Court has jurisdiction under 28 U.S.C. ' 1331 (federal question jurisdiction), 28 U.S.C. '' 2201 and 2202 (the Declaratory Judgment Act), and 28 U.S.C. ' 1350 (the Alien Tort Claims Act). 13. The Federal Tort Claims Act confers original jurisdiction on the federal district courts to hear tort claims against the United States. 28 U.S.C. ' 1346 14. Venue is proper in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. ' 1391(b) in that a substantial part of the events giving rise to Plaintiffs= claims occurred in this District.
JURY DEMAND 15. Plaintiffs demand trial by jury in this action on each and every one of their claims except that, in keeping with 28 U.S.C. ' 1346, Plaintiffs do not demand trial by jury for their claims arising under the FTCA.
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PARTIES The MDC Plaintiffs
16. Plaintiff ASIF-UR-REHMAN SAFFI is a native of Pakistan and a citizen of France. He currently lives on Reunion Island with his wife and three children. He is a Muslim. An employee of Pakistani International Airlines for the past 19 years, Saffi came to the United States on July 6, 2001 on a three-month tourist visa. He has no criminal record in this country or in any other country. Saffi has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
17. Plaintiff SYED AMJAD ALI JAFFRI is a native of Pakistan and a landed immigrant of Canada. Jaffri, a Muslim, has a wife and four children who reside in Lahore, Pakistan. Since May 1997, Jaffri has periodically visited family and friends in the United States, entering this country from Canada or Pakistan on tourist visas. He has no criminal record in this country or in any other country. Jaffri has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
18. Plaintiffs YASSER EBRAHIM and HANY IBRAHIM (“H. Ibrahim”), brothers whose surnames are spelled differently, and who are not related to plaintiff Ashraf Ali Ibrahim, are natives of Egypt and Muslims. Since 1992, Yasser has visited the United States on four occasions, each time on a tourist visa. In 1996, while in this country on a tourist visa, he married a United States citizen, with whom he lived in Queens, New York, until they separated in 1998. Shortly thereafter, Yasser returned to Egypt. In September 2001, Yasser and Hany were in the United States on tourist visas. Neither Yasser nor Hany has a criminal record in this country or in any other country. Neither has ever been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, both Yasser and Hany abhor terrorism.
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19. Plaintiff SHAKIR BALOCH is a native of Pakistan. Baloch, a Muslim, comes from a prominent political family. He himself is a member of the Progressive Peoples Party, which is dedicated to the promotion of progressive secularism in Pakistan. Baloch holds a medical degree from Bolan Medical College in Quetta, Pakistan. He briefly worked as a family physician in government service in that country. Baloch became a landed immigrant in Canada in 1989 and a Canadian citizen in 1994. He has a wife and a 15 year old daughter, both of whom reside in Toronto. Unable to find work in Canada, Baloch has entered and stayed in the United States for several extended periods over the past decade, most recently in April 2001. Baloch has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
20. Plaintiff ASHRAF IBRAHIM (“A. Ibrahim”) is a native of Egypt. He entered the United States on a six month visa in January 1992. A. Ibrahim lived continuously in the United States for ten years without petitioning for an adjustment of status. In August, 2001, A. Ibrahim started up a bottled-water distribution business in Philadelphia. Mr. Ibrahim has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism. The Passaic Plaintiffs
21. Plaintiff IBRAHIM TURKMEN is a native and citizen of Turkey, where he lives with his wife and four daughters. A Muslim Imam by profession, Turkmen came to the United States on October 4, 2000, on a six-month tourist visa. He has no criminal record either in this country or in any other country. Turkmen has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
22. Plaintiff AKHIL SACHDEVA is a native of India and a Hindu. He holds a bachelor of arts degree in commerce from the University of Delhi. In December 1998, Sachdeva was
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granted landed immigrant status in Canada, and in December 2003, he became a citizen of Canada. Between 1995 and April 2002, when he was deported to Canada following the events complained of herein, Sachdeva had lived in the United States for extended periods of time. In 1998, while working as a travel agent in Canada, Sachdeva married a green card holder who owned a gas station in Long Island, New York. For the next several years, Sachdeva lived with his wife in Long Island and worked at her gas station. During this period, Sachdeva applied to the INS for resident status in the United States. In early 2001, however, Sachdeva and his wife decided to divorce, and he briefly returned to Canada. In late September or early October 2001, Sachdeva re-entered the United States to finalize his divorce and pack his belongings for his move back to Canada. Mr. Sachdeva has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism. Defendants
23. Defendant JOHN ASHCROFT is the Attorney General of the United States. As Attorney General, Defendant Ashcroft has ultimate responsibility for the implementation and enforcement of the immigration laws. He is a principal architect of the policies and practices challenged here. On information and belief, he also authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained. Defendant Ashcroft is being sued in his individual capacity.
24. Defendant ROBERT MUELLER is the Director of the Federal Bureau of Investigation. Defendant Mueller was instrumental in the adoption, promulgation and implementation of the policies and practices challenged here. On information and belief, he also authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and
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other class members have been detained. Defendant Mueller is being sued in his individual capacity.
25. Defendant JAMES W. ZIGLAR is the former Commissioner of the INS. As INS Commissioner, Defendant Ziglar had immediate responsibility for the implementation and enforcement of the immigration laws. He was the INS=s chief executive officer. Defendant Ziglar was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. On information and belief, he also authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained. Defendant Ziglar is being sued in his individual capacity. The MDC Defendants
26. Defendant DENNIS HASTY, until the spring of 2002, was the Warden of the MDC. While warden, Defendant Hasty had immediate responsibility for the conditions under which Plaintiffs and other class members have been confined at the MDC. While Warden, Defendant Hasty subjected Plaintiffs and other class members confined at the MDC to unreasonable and excessively harsh conditions in violation of the Constitution and international law norms. Defendant Hasty is being sued in his individual capacity.
27. Defendant MICHAEL ZENK is currently the warden of the MDC. As Warden, Defendant Zenk has immediate responsibility for the conditions under which Plaintiffs and other class members have been confined at the MDC. On information and belief, as Warden, Defendant Zenk has subjected Plaintiffs and class members confined at the MDC to unreasonable and excessively harsh conditions in violation of the Constitution and international law norms. Defendant Zenk is being sued in his individual capacity.
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28. Defendant SHERMAN, at all times relevant to this complaint, was the MDC Associate Warden for Custody. Sherman is being sued in his individual capacity
29. Defendant SALVATORE LOPRESTI, at all times relevant to this complaint, was a Captain at the MDC. LoPresti is being sued in his individual capacity
30. Defendant STEVEN BARRERE, at all times relevant to this complaint, was a Lieutenant at the MDC. Barrere is being sued in his individual capacity.
31. Defendant WILIAM BECK, at all times relevant to this complaint, was a Lieutenant at the MDC. Beck is being sued in his individual capacity.
32. Defendant LINDSEY BLEDSOE, at all times relevant to this complaint, was a Lieutenant at the MDC. Bledsoe is being sued in his individual capacity.
33. Defendant JOSEPH CUCITI, at all times relevant to this complaint, was a Lieutenant at the MDC. Cuciti is being sued in his individual capacity
34. Defendant HOWARD GUSSAK, at all times relevant to this complaint, was a Lieutenant at the MDC. Gussak is being sued in his individual capacity.
35. Defendant MARCIAL MUNDO, at all times relevant to this complaint, was a Lieutenant at the MDC. Mundo is being sued in his individual capacity.
36. Defendant DANIEL ORTIZ, at all times relevant to this complaint, was a Lieutenant of the MDC. Ortiz is being sued in his individual capacity
37. Defendant STUART PRAY, at all times relevant to this complaint, was a Lieutenant at the MDC. Pray is being sued in his individual capacity.
38. Defendant ELIZABETH TORRES, at all times relevant to this complaint, was a Lieutenant at the MDC. Torres is being sued in her individual capacity.
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39. Defendant PHILLIP BARNES, at all times relevant to this complaint, was a Correctional Officer at the MDC. Barnes is being sued in his individual capacity.
40. Defendant SIDNEY CHASE, at all times relevant to this complaint, was a Correctional Officer at the MDC. Chase is being sued in his individual capacity.
41. Defendant MICHAEL DEFRANCISCO, at all times relevant to this complaint, was a Correctional Officer at the MDC. DeFrancisco is being sued in his individual capacity.
42. Defendant RICHARD DIAZ, at all times relevant to this complaint, was a Correctional Officer at the MDC. Diaz is being sued in his individual capacity.
43. Defendant KEVIN LOPEZ, at all times relevant to this complaint, was a Correctional Officer at the MDC. Lopez is being sued in his individual capacity.
44. Defendant MARIO MACHADO, at all times relevant to this complaint, was a Correctional Officer at the MDC. Machado is being sued in his individual capacity.
45. Defendant MICHAEL MCCABE, at all times relevant to this complaint, was a Correctional Officer at the MDC. McCabe is being sued in his individual capacity.
46. Defendant RAYMOND MICKENS, at all times relevant to this complaint, was a Correctional Officer at the MDC. Mickens is being sued in his individual capacity.
47. Defendant JOHN OSTEEN, at all times relevant to this complaint, was a Correctional Officer at the MDC. Osteen is being sued in his individual capacity.
48. Defendant BRIAN RODRIGUEZ, at all times relevant to this complaint, was a Correctional Officer at the MDC. Rodriguez is being sued in his individual capacity.
49. Defendant SCOTT ROSEBERY, at all times relevant to this complaint, was a Correctional Officer at the MDC. Rosebery is being sued in his individual capacity.
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50. Defendant CHRISTOPHER WITSCHEL, at all times relevant to this complaint, was a Correctional Officer at the MDC. Witschel is being sued in his individual capacity.
51. Defendant RAYMOND COTTON, at all times relevant to this complaint, was a Counselor at the MDC. Cotton is being sued in his individual capacity.
52. Defendant CUFFEE, at all times relevant to this complaint, was a Counselor at the MDC. Cuffee is being sued in his individual capacity.
53. Defendant CLEMMET SHACKS, at all times relevant to this complaint, was a Counselor at the MDC. Shacks is being sued in his individual capacity.
CLASS ACTION ALLEGATIONS 54. Plaintiffs seek to represent a certified Plaintiff class consisting of all male non-citizens from the Middle East, South Asia and elsewhere who are Arab or Muslim or have been perceived by Defendants as Arab or Muslim and who have been:
(a) arrested by the INS or FBI after the September 11, 2001 terrorist attacks and charged with immigration violations; (b) treated as being “of interest” to the government’s terrorism investigation and subjected to a blanket “hold until cleared” policy pursuant to which they were held without bond, without regard to evidence of dangerousness or flight risk, until cleared of terrorist ties by the FBI; and (c) detained at the MDC or the Passaic County Jail. In addition, Plaintiffs and the other members of the class were subjected to one or more of the following policies and practices: (a) once placed in detention, they were not timely served with a Notice to Appear or any other notice of the charges on which they were being held and were thereby impaired in their ability to understand the reason for their detention, obtain legal counsel, and request release on bond; (b) some were classified as being “of high interest” to the government’s terrorism investigation or as “Witness Security” and/or “Management Interest Group 155” detainees in the absence of adequate standards or procedures for
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making such a determination or evidence that they were involved in terrorism and, on the basis of these classifications, housed in the highly restrictive ADMAX SHU of the MDC in Brooklyn, New York;
(c) they were subjected to a communications blackout and other actions that interfered with their access to counsel and their ability to seek redress in the courts;
(d) they were denied release from detention on bond pursuant to a blanket nobond policy and other fundamentally unfair procedures; and/or
(e) after receiving final removal orders or grants of voluntary departure, they were held in immigration custody far beyond the period necessary to secure their removal or voluntary departure from the United States, without regard to any evidence that they were dangerous or a flight risk, and never afforded, or else not timely afforded, a hearing before a neutral judicial officer for a determination as to whether probable cause existed to justify detaining them beyond the time necessary to secure their removal or voluntary departure from the United States.
55. The members of the class are too numerous to be joined in one action, and their joinder is
impracticable in part because Defendants have kept their identities secret. While the exact number is presently unknown to Plaintiffs= counsel, the Department of Justice Office of Inspector General was able to identify approximately 475 September 11 detainees who were held at MDC
and Passaic and were subjected to the policies challenged in this action. (OIG Report at 5).
Moreover, the subclass of Plaintiffs detained after they could have been deported likely exceeds
87 individuals. See Though Not Linked to Terrorism, Many Detainees Cannot Go Home, N.Y.
Times, Feb. 18, 2002, at A1 (reporting that the United States Department of Justice blocked the
departure of 87 mostly Arab or Muslim non-citizens who received voluntary departure or removal orders, Awhile investigators comb[ed] through information pouring in from overseas to ensure that they have no ties to terrorism@).
56. Common questions of law and fact exist as to all class members and predominate over
questions that affect only the individual members. These common questions include, but are not
limited to:
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(a) whether Defendants adopted, promulgated, and implemented a policy and practice of depriving Plaintiffs and class members of their Fourth Amendment right to be free from unreasonable seizures by detaining them months longer than necessary to secure their removal or voluntary departure from the United States;

(b)

whether Defendants adopted, promulgated, and implemented a policy

and practice depriving Plaintiffs and class members of their liberty without due

process of law in violation of the Fifth Amendment and customary international

law by detaining them months longer than necessary to secure their removal or

voluntary departure from the United States;

(c) whether Defendants adopted and implemented a policy of denying bond to all “of interest” detainees, without regard to evidence of danger or flight risk;

(d) whether Defendants adopted, promulgated, and implemented policies and practices depriving Plaintiffs and class members of their liberty without due process of law in violation of the Fifth Amendment and in violation of their rights under customary international law, by subjecting them to outrageous, excessive, cruel, inhumane, and degrading conditions of confinement;

(e) whether Defendants adopted, promulgated and implemented a policy and practice depriving Plaintiffs and class members of their rights under the Fourth and Sixth Amendments, including the right to a probable cause determination made by a neutral judicial officer, the right to be provided on a timely basis with a criminal indictment or information citing the criminal charges on which the detention is based, and the right to a speedy trial;

(f) whether Defendants adopted, promulgated, and implemented a policy and practice under which Plaintiffs and class members were subjected to coercive and to involuntary custodial interrogation designed to overcome their will and to coerce involuntary and incriminating statements from them, depriving Plaintiffs and class members of their right to due process of law under the Fifth Amendment;

(g) whether Defendants adopted, promulgated, and implemented a policy depriving Plaintiffs and class members of equal protection of the law in violation of the Fifth Amendment by detaining them months longer than necessary to secure their removal or voluntary departure from the United States because of their race, religion, ethnicity, and/or national origin;

(h) whether Defendants adopted, promulgated, and implemented a policy confiscating the personal property of Plaintiffs and class members in violation of the Fifth Amendment;

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(i) whether Defendants adopted, promulgated, and implemented a policy under which Plaintiffs and class members were interrogated by FBI and other federal agents and deprived of the opportunity to obtain counsel in violation of the Sixth Amendment to the Constitution; and (j) whether Defendants adopted, promulgated, and implemented a policy which violated Plaintiffs= and class members= rights under the First Amendment to practice their religion. 57. Plaintiffs= claims are typical of those of the class for reasons that include the following. First, each Plaintiff is a male non-citizen of Middle Eastern or South Asian descent who is Arab or Muslim or has been perceived by Defendants to be Arab or Muslim. Second, each Plaintiff was arrested and detained subsequent to the September 11 terrorist attacks and charged with minor (but deportable) immigration violations. Third, each Plaintiff has been treated as “of interest” to the government’s terrorism investigation, and subjected to a blanket “hold until cleared” policy pursuant to which he was held in INS detention without regard to evidence of danger or flight risk, until cleared of terrorist ties by the FBI. Fourth, each Plaintiff subsequently received a removal or voluntary departure order and was held for months longer than necessary to secure his removal or voluntary departure from the United States while he was cleared of terrorist ties, again without regard to evidence of danger or flight risk. Fifth, each Plaintiff was held under unreasonable and excessively harsh conditions of confinement and those housed in MDC were subjected to a communications blackout. Sixth, each Plaintiff was never afforded, or else not afforded on a timely basis, a hearing before a neutral judicial officer to determine whether there was probable cause to detain them beyond the time when all legitimate immigration law enforcement purposes had been served. Seventh, the race, religion, ethnicity and/or national origin of each plaintiff played a determinative role in Defendants= decision to detain them.
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58. The legal theories on which Plaintiffs rely are the same or similar to those on which all class members would rely, and the harms suffered by them are typical of the harms suffered by the other class members.
59. Plaintiffs will fairly and adequately protect the interests of the class. The interests of the class representatives are consistent with those of the class members. In addition, Plaintiffs= counsel are experienced in class actions and civil rights litigation.
60. Plaintiffs= counsel know of no conflicts of interest among class members or between the attorneys and class members that would affect this litigation.
61. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court which individual litigation of these claims would impose.
62. The Plaintiff class should be certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure (ARule 23(b)(3)@) for determination of liability because Defendants have acted on grounds generally applicable to the class, thereby making class-wide declaratory relief appropriate.
63. Common questions of law and fact also clearly predominate within the meaning of Rule 23(b)(3). Class action treatment provides a fair and efficient method for the adjudication of this controversy, affecting a large number of persons, joinder of whom is impracticable. The class action provides an effective method whereby the enforcement of Plaintiffs= and class members= rights can be fairly managed without unnecessary expense and duplication.
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General Allegations

STATEMENT OF FACTS

64. In the wake of the September 11 terrorist attacks, the INS arrested and detained well over

1,200 male, non-citizens from the Middle East, South Asia, and elsewhere, who appeared to be

Arab or Muslim, mostly on minor immigration violations -- such as overstaying visas, working

illegally on tourist visas, or failing to meet matriculation and/or course work requirements for

student visas. While the INS has sometimes in the past sought to remove non-citizens for these

violations, it generally has not detained them during their removal proceedings.

65. On information and belief, the INS has taken a different approach with post-9/11

detainees, not because they violated the immigration laws -- that alone does not justify detention

under the immigration laws -- but rather because federal law enforcement authorities deemed

them potential (but not actual or even probable) terrorists, often based on vague suspicions

rooted in racial, religious, ethnic, and/or national origin stereotypes rather than in hard facts.

66. On information and belief, many post-9/11 detainees have been held for weeks, even

months in INS facilities or county jails, without any charges being filed against them and without

any hearing on the reasons for their detention. Eventually, the INS has filed charges against

most post-9/11 detainees, alleging that they committed minor immigration violations and not

criminal offenses.

67. On information and belief, after immigration hearings, many post-9/11 detainees have

received final removal orders or accepted voluntary departure orders. Even though the INS

could have promptly secured the removal or voluntary departure of these individuals, it has kept

them in custody in some cases over six months after the issuance of their final immigration

orders -- far longer than necessary to secure their removal or voluntary departure from the United

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States, and well beyond the time that the INS is statutorily authorized to detain them. 8 U.S.C. ' 1231(a)(1) (90-day removal period); 8 U.S.C. ' 1229c(b)(2) (60-day period for voluntary departure granted at the conclusion of removal proceedings).
68. On information and belief, most, if not all, post-9/11 detainees have been kept in custody after the issuance of final removal or voluntary departure orders until they have received two Aclearances@ -- one from the FBI and the other from INS -- absolving them of any linkage to terrorists or terrorist activities. In effect, federal law enforcement authorities have deemed post9/11 detainees Aguilty of terrorism until cleared,@ instead of Ainnocent until proven guilty.@ The FBI and INS clearances have frequently taken four months or longer.
69. On information and belief, from the outset, the arrest, processing, and detention of post9/11 detainees have been shrouded in extreme secrecy. Most were held incommunicado for the first few weeks of their detention. Family members thus initially had great difficulty finding out whether their loved ones had been arrested and detained, and if so, where they were being held. To add to the secrecy, the INS has designated post-9/11 detainees as Aspecial interest cases,@ which had the effect of closing their immigration hearings, not only to the general public but also to family members, and sealing the records in their cases.
70. On information and belief, while in INS custody, most post-9/11 detainees have been repeatedly interrogated by both FBI and INS agents. Very few have been represented by counsel during these interrogations. Many have not even been told of their right to counsel. Others have been coerced to waive that right, even though they could not read the printed English language on the waiver forms which they were instructed to sign and even though they did not fully understand the nature of the right being waived. When post-9/11 detainees have asked to adjourn interrogations so they can consult with an attorney, FBI and INS agents have generally
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refused to do so. 71. On information and belief, post-9/11 detainees have had great difficulty obtaining legal
representation, even after they were no longer held incommunicado. Some post-9/11 detainees have been held for months following their arrest, with their status and whereabouts unknown to their lawyers and their families. Others have been moved to different facilities without their lawyers= knowledge. For several months after the September 11 terrorist attacks, post-9/11 detainees held at the MDC were allowed to make only one call per month to their attorneys and only one call per month to their families. At both the MDC and the Passaic County Jail, post9/11 detainees are allowed to make only collect calls, which few law offices accept from strangers. While INS detainees typically receive a list of organizations that might provide free legal services, the lists given to post-9/11 detainees have been woefully inadequate, containing much inaccurate and outdated information.
72. On information and belief, while civil liberties, civil rights, and immigrant advocacy organizations have been ready, willing, and able to provide free legal services to post-9/11 detainees, Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk and their employees, agents, and contractors have substantially limited such organizations= access to post-9/11 detainees. They have imposed a virtual Ablackout@ on information on post-9/11 detainees, refusing to disclose their names, the facilities in which they are being held, or information about their cases. They have also denied requests by civil liberties, civil rights, and immigrant advocacy organizations to visit INS facilities or county jails to screen post-9/11 detainees in need of legal assistance.
73. On information and belief, even though non-citizen INS detainees must be advised of their right to seek assistance from their consulates under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77 (AVienna Convention@), many
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post-9/11 detainees have not been advised of this right. Others have been coerced to waive that right, even though they cannot read the printed English language on the waiver forms which they are asked to sign and do not understand the nature of the right being waived. When post-9/11 detainees have sought to contact their consulates, their requests have been denied.
74. On information and belief, shortly after the September 11 terrorist attacks, Defendants Ashcroft, Mueller, and Ziglar adopted, promulgated and implemented policies within the INS and the FBI to detain Arab or Muslim men of Middle Eastern and South Asian origin as suspects in a criminal investigation, notwithstanding the fact that in many instances they lacked probable cause to do so, in violation of the Fourth Amendment. To accomplish this goal, Defendants used the pretext of violations of the INA to detain Plaintiffs and the class for criminal purposes. The circumstances of most of these detentions deviated from standard INS practice in the following respects:
(a) nearly all of the detainees are Arab or Muslim men of Middle Eastern or South Asian origin; (b) nearly all have been arrested and detained for minor immigration violations and on scant evidence of dangerousness or flight risk; (c) nearly all have often been held for more than 48 hours without notice of the charges against them; (d) nearly all have been denied bond; and (e) nearly all have been held in detention without cause for as long as six months after their final deportation or voluntary departure orders could have been carried out. 75. Even though Plaintiffs and other class members have been detained indefinitely for the purposes of a criminal investigation, Defendants have deliberately denied them the mandatory constitutional, statutory, and common law protections afforded criminal defendants, including
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access to the courts, by, among other things:
(a) failing to comply with the requirement that a detained suspect in a criminal investigation be brought promptly before an independent magistrate for a probable cause determination;
(b) precluding them from obtaining legal representation by holding them incommunicado and refusing access to legal services and civil rights organizations that would have provided legal assistance;
(c) subjecting them to coercive interrogation, while in detention, despite repeated requests for adjournment to contact counsel;
(d) subjecting them to outrageous, excessive, cruel, inhuman, and degrading conditions of confinement, and excessive force; and
(e) coercing them to waive their right to consular access.
76. Defendants have adopted, promulgated, and implemented their detention policies, in
whole or in part, based on invidious animus against Arabs and Muslims, in violation of the First
and Fifth Amendments to the Constitution. Such invidious animus is evidenced by, among other
things:
(a) the above-mentioned unconstitutional policies have not been applied to all non-citizens in the United States alleged to have violated the immigration laws. Since the September 11 terrorist attacks, virtually all of these non-citizens arrested and detained on minor immigration violations have been Arab or Muslim or perceived to have been Arab or Muslim;
(b) they have been detained in situations where similarly situated non-Arabs and non-Muslims have not been detained;
(c) they have been detained beyond the time necessary to secure their removal or voluntary departure from the United States, while similarly situated non-Arab and non-Muslim detainees have been removed or allowed to depart within a matter of days or weeks after final removal or voluntary departure orders have been issued;
(d) they have been verbally abused and subjected to statements slandering the Muslim faith and their adherence to it by the Defendants, including Defendant Ashcroft, who has expressed anti-Muslim sentiments, including, reportedly, a statement proclaiming the inferiority, moral and otherwise, of the Muslim people,
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to wit: AIslam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you;" and (e) they have been targeted for disparate treatment by Defendant Ashcroft who announced the policy that Plaintiffs and class members would be arrested and detained for any reason regardless of the de minimis nature of their infractions, and thereby eliminated for Plaintiffs and class members any access to the fair and reasonable discretion of law enforcement officials. This fair and reasonable discretion remains available to non-Arab and non-Muslim individuals who are non-citizens. Defendant Ashcroft=s policy announcement stated: ALet the terrorists among us be warned. If you overstay your visa even by one day, we will arrest you. If you violate a local law we will...work to make sure that you are put in jail and...kept in custody as long as possible.@
Inspector General’s June 2003 Report on the September 11 Detainees 77. On June 2, 2003, the Office of the Inspector General of the United States Department of
Justice released a 198-page report entitled “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” (“OIG Report”). The OIG Report provides a wealth of details concerning the Government’s treatment of the post-9/11 detainees. A copy of this report is attached to the Second Amended Complaint as Exhibit 1 and is incorporated by reference.
78. According to the OIG Report, the INS consistently delayed in issuing and serving the post-9/11 detainees with charging documents (known as Notices to Appear or NTAs) far beyond the 48-hour period specified in its regulations at 8 C.F.R. ' 287.3 for issuing an NTA and its post-9/11 goal of serving an NTA within 72 hours. (OIG Report at 29-30). In doing so, the INS impaired the ability of detainees to know the charges on which they were being held, obtain legal counsel, and seek release on bond. (Id. at 35.) On information and belief, Plaintiffs Ebrahim and H. Ibrahim were not served with NTAs until seventeen days after their respective arrests; Plaintiff Sachdeva was not served until seven days after his arrest; Plaintiff Jaffri was not served until four days after his arrest; service of an NTA on Plaintiff A. Ibrahim was unreasonably
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delayed; and, on information and belief, other class members were similarly impacted by these delays.
79. According to the OIG Report, as a matter of custom and policy, Defendants and other federal officials instituted a blanket “no bond” policy for all individuals arrested in connection with September 11 investigations that was applied without regard to whether the person posed a flight risk or a danger. (Id. at 76, 78.) INS District Directors were ordered to make an initial determination of no bond for all post-9/11 detainees. (Id. at 76-77.) Moreover, Defendants and other federal officials ordered INS Trial Attorneys to seek continuances and delays of bond redetermination hearings and to oppose bond even when there was no evidence to support the denial of bond. (Id. at 78-80.) All of the Plaintiffs and class members were subjected to Defendants’ blanket no bond policy.
80. According to the OIG Report, many post-9/11 detainees were classified as “of high interest” to the Government’s terrorism investigation without specific criteria or a uniform classification system. (Id. at 18.) The FBI requested that the INS place these “of high interest” detainees at Metropolitan Detention Center (“MDC”). (Id.) Once assigned to MDC, the Bureau of Prisons (“BOP”) classified the detainees as “Witness Security” and/or “Management Interest Group 155” detainees without individual assessment or uniform criteria of any sort. (Id. at 11516.) Upon information and belief and according to the OIG Report, BOP regulations require an employee known as the Segregation Review Official to conduct a weekly review of the status of each inmate housed in the Special Housing Unit (“SHU”) after he has spent seven days in administrative detention or disciplinary segregation. (Id. at 118.) The Segregation Review Official is also required to conduct a formal hearing every 30 days assessing the inmate’s status. (Id.) These review processes were not conducted for the post-9/11 detainees. (Id.) Officials at
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MDC were told by BOP headquarters that until the FBI had cleared a particular detainee, that detainee’s report was to be automatically annotated with the phrase “continue high security,” no hearing was to take place, and the detainee was to remain under restrictive detention in the Administrative Maximum (“ADMAX”) SHU. (Id.) Upon information and belief, Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, A. Ibrahim, and other class members were improperly designed as high security status and denied a fair review process as the result of these procedures.
81. These arbitrary and capricious classifications resulted in severe deprivations of liberty. The “of high interest” detainees were placed in the ADMAX SHU, a particularly restrictive type of SHU uncommon to most BOP facilities because the normal SHUs “are usually sufficient for correcting inmate misbehavior and addressing security concerns.” (Id. at 118-19.) The ADMAX SHU at MDC was established after September 11, 2001 to make available more restrictive confinement. (Id. at 119.) Unlike regular SHUs, ADMAX SHUs enforce four-man hold restraint policies, use hand-held cameras to record detainee movements, and have cameras in each cell to monitor detainees. (Id.) Unlike detainees in the general population at MDC, detainees in the ADMAX SHU were not allowed to move around the unit, use the telephone freely, or to have electronic equipment (such as small radios). (Id.) ADMAX SHU detainees could only move outside their cells while restrained and accompanied by four staff members, and only then for specific purposes. (Id.) ADMAX SHU detainees were strictly limited in their telephone use in terms of both frequency and duration of calls. (Id.) Unlike the general MDC population, all attorney and family visits were non-contact, with a clear partition between the parties. (Id. at 123.) Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, A. Ibrahim, and other
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class members were subjected to these restrictive conditions in the ADMAX SHU for between three and eight months.
82. According to the OIG Report, detainees at the ADMAX SHU in MDC were subjected to a communications blackout that barred them from receiving telephone calls, visitors, mail, or placing telephone calls. (Id. at 113.) During this period, detainees were unable to make any contact with attorneys or their families. (Id. at 114.) Compounding this situation, the detainees’ classification as “Witness Security” and/or “Management Interest Group 155” led MDC to turn away lawyers and family members who came to the facility seeking individual detainees by falsely stating that the individuals were not detained inside. (Id. at 115.) Upon information and belief, Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, A. Ibrahim, and other class members were subjected to the communications blackout for a period of time ranging from two weeks to two months or even longer.
83. According to the OIG Report, the detainees arbitrarily labeled “of high interest” were placed in the ADMAX SHU and subjected to the communication blackout pursuant to a joint policy of the FBI, INS, and Bureau of Prisons (“BOP”). (Id. at 18.) INS Commissioner Ziglar, FBI Director Mueller, and Attorney General Ashcroft ordered and/or condoned the prolonged placement of these detainees in extremely restrictive confinement. (Id. at 17, 37-39, 66, 77.)
84. According to the OIG Report, the INS held detainees long after removal could have been effectuated, simply because the FBI had not completed its “clearance” process. As a matter of policy and practice, and in keeping with its “hold until cleared” policy, INS did not conduct postorder custody reviews for post-9/11 detainees held more than 90 days after their final removal orders. (Id. at 91, 107-108.) These reviews are required by the INS regulations at 8 C.F.R. § 241.4, and provide that detainees must be given 30 days notice of the review and that the INS
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complete the review 90 days after the issuance of a final removal order. On information and belief, Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Sachveda, A. Ibrahim, and other class members were not given notice of such a review and no such review was conducted. The Challenged MDC Policies and Customs and the Inspector General’s December 2003 Supplemental Report on the September 11 Detainees
85. In December 2003, the OIG released a 47-page report entitled “Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York” (“Supp. OIG Report”) (attached without appendices as Exhibit 1, and available at http://www.usdoj.gov/oig/special/0312/final.pdf). The Supplemental Report sheds further light on the Government’s mistreatment of Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Sachveda, Baloch, A. Ibrahim (“MDC Plaintiffs”), and other class members who were detained at MDC.
86. None of the MDC Plaintiffs or class members had terrorist ties or posed any danger to others. Yet, because the FBI and BOP classified them as “high interest” or “WTC” detainees, the MDC Defendants viewed the MDC Plaintiffs and class members as terrorists responsible for the bombings of the World Trade Center and displayed tremendous anger towards them. (See id. at 4, 26.) In the highly charged atmosphere at MDC in the weeks and months following the September 11 attacks, the MDC Plaintiffs and class members were routinely subjected to threats and violence, despite the fact that they were fully compliant and the use of force was completely unnecessary and against BOP policy. (See id. at 8, 10, 11, 13, 15.) Not only were the MDC Correctional Officers (“CO’s”) out of control, their Lieutenants condoned and even encouraged the physical and verbal abuse and in some cases joined in it.
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COMMUNICATIONS BLACKOUT AT MDC Policy to Hold Detainees Incommunicado
87. From the outset, the arrest, processing, and detention of the post-9/11 detainees were shrouded in extreme secrecy. Most were held incommunicado for the first few weeks of their detention. Family members, friends, and even attorneys initially had great difficult finding out whether their loved ones had been arrested and detained, and if so, where they were being held. The classification of Post-9/11 Detainees as “special interest cases” had the effect of closing their immigration hearings, not only to the general public, but also to family members, and the sealing of their case records. (OIG Report at 115-18.) During this period, the MDC Plaintiffs and class members were subjected to a communications blackout and were unable to make any contact whatsoever with attorneys or their families. (See id. at 113-14.) Compounding this situation, their classification as “Witness Security” and/or “Management Interest Group 155” led MDC staff to turn away their lawyers and family members who came to the facility seeking individual detainees by falsely stating that the individuals were not detained in the facility. (See id. at 115.) Policy To Deny Detainees Access to Counsel
88. While in custody, the MDC Plaintiffs and class members were not told of their right to counsel during interrogations by INS and FBI agents or were coerced into waiving that right. Moreover, the MDC Plaintiffs and class members were repeatedly and deliberately denied access to counsel. (Id. at 42.) When Plaintiffs Ebrahim, H. Ibrahim, Baloch, and other class members asked to adjourn interrogations so they could consult with an attorney, FBI and INS agents refused to do so. Plaintiffs Ebrahim and H. Ibrahim and other class members signed affidavits indicating that they had been informed of their right to counsel and that they were willing to make their statements without anyone else present only after they had asked to call an attorney
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again and again and their requests were denied, leading them to conclude that they would not be permitted access to counsel in any case.
89. Upon information and belief, the MDC Plaintiffs and class members had great difficulty obtaining legal representation, and some were held for months following their arrest while their lawyers and their families made unsuccessful requests to learn their status and whereabouts.
90. Upon information and belief, even when the MDC Plaintiffs and class members were finally permitted to make telephone calls in or about the end of October, 2001, they were allowed to make only one call per week to their attorneys and only one social call per month; in practice, they were frequently denied even these limited calls. According to the OIG Report, “detainees complained that legal calls that resulted in a busy signal or calls answered by voicemail counted as their one legal call for that week,” leading the OIG to conclude that counting calls that “only reached a voicemail, resulted in a busy signal, or went to the wrong number was unduly restrictive and inappropriate.” (OIG Report at 161.)
91. On information and belief, the officers in charge of inmate phone calls were Raymond Cotton, Cuffee, and Clemmet Shacks. These officers, but especially Cotton, consistently and deliberately obstructed the MDC Plaintiffs and class members in their efforts to make phone calls. The officers would bring a phone around to each cell, often before offices opened for business, and each inmate who requested a phone call was required to place a call request form outside of their cell. Upon information and belief, Cotton, Cuffee, and Shacks would regularly pretend to dial a number or deliberately dial the wrong number and then claim that the line was dead or busy. They would then refuse to dial again, saying the call failed to go through and that the detainee had exhausted his quota for calls for the week or month. As a result, the MDC Plaintiffs and class members’ access to attorneys was impaired.
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92. Once the MDC Plaintiffs and class members were permitted social calls at MDC in or about the end of October 2001, these, too, were severely restricted. Furthermore, the MDC Plaintiffs and class members were denied access to paper, pens, envelopes, and stamps and were unable to communicate to their worried families via mail.
93. Some MDC Plaintiffs found their access to counsel blocked even during immigration hearings. Plaintiff A. Ibrahim repeatedly requested permission to make phone calls but was not permitted to contact his family or a lawyer until October 17, 2001, despite having had two hearings scheduled before an immigration judge between his detention and that date. After a hearing on October 3, 2001, at which Immigration Judge Vomacka told MDC personnel that A. Ibrahim should be permitted to contact a lawyer, A. Ibrahim repeated his requests for a legal phone call. His requests were again denied. Moreover, Officer Chase and Raymond Cotton ridiculed A. Ibrahim when he made these requests. For example, Raymond Cotton would say in a sarcastic tone “Oh yeah, right away,” but then fail to act on A. Ibrahim’s request.
94. The MDC Plaintiffs and class members were not provided with sufficient information to obtain legal counsel. Immigration detainees typically receive a list of organizations that might provide free legal services, but the lists given to post-9/11 detainees were woefully inadequate, containing much inaccurate and outdated information. (See OIG Report at 137-38, 161.)
95. The OIG concluded that “the manner in which the MDC inquired whether the detainees wanted to place a legal call was unclear and inappropriate. In many instances, the unit counsel inquired whether September 11 detainees in the ADMAX SHU wanted their weekly legal call by asking, ‘are you okay?’ For some period, several detainees told the OIG that they did not realize that an affirmative response to this rather casual question meant they opted to forgo their legal call for that week.” (Id.)
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96. While civil liberties, civil rights, and immigrant advocacy organizations sought to provide free legal services to post-9/11 detainees, the MDC substantially limited such organizations’ access to post-9/11 detainees. (OIG Report at 137.) The MDC refused to disclose detainees’ names, the facilities in which they were held, or information about their cases. They also denied requests by civil liberties, civil rights, and immigrant advocacy organizations to visit INS facilities or county jails to screen post-9/11 detainees in need of legal assistance. (Id. at 136.) On information and belief, MDC Defendants applied these policies to the MDC Plaintiffs and class members, further obstructing their access to counsel and contact with family members. Video and Audio Taping Attorney/Client Conversations Policy
97. MDC instituted a policy of intentionally videotaping and audiotaping detainees’ visits with their attorneys in violation of the law. (Supp. OIG Report at 31.) Such recording of inmates’ meetings with attorneys is prohibited by 28 C.F.R. § 543.13(e), which provides that “Staff may not subject visits between an attorney and an inmate to auditory supervision.” (Supp. OIG Report at 31.) While Attorney General Ashcroft instituted a directive allowing monitoring of attorney-inmate meetings under limited circumstances when approved by the Attorney General (28 C.F.R. § 501.3(d)), “[a]ccording to BOP’s Office of General Counsel, this authority was not used at the MDC”. (Supp. OIG Report at 32.) Similarly, a December 18, 2001 memorandum to wardens in the Northeast Region (including the MDC), provided guidance for video taping attorney visits, but clearly indicated “Visits from attorneys may be visually recorded, but not voice recorded.” (Id.) “No BOP or MDC memorandum specifically authorized taping attorney visits for the September 11 detainees for identified reasons to depart from standard BOP policy or the federal regulation.” (Id.)
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98. According to the Supplemental OIG Report, “[r]ecording the detainees’ attorney visits . . . was not necessary for the MDC’s security purposes.” (Id.) The OIG concluded that “audio taping attorney visits violated the law and interfered with the detainees’ effective assistance of counsel.” (Id. at 33.)
99. On information and belief, when Plaintiffs Ebrahim, H. Ibrahim, Baloch, and Jaffri and other class members finally succeeded in meeting with attorneys, their meetings were videotaped by MDC Defendants, with the sound recording turned on. Their attorneys’ objections to the taping of meetings were ignored by the MDC Defendants. As a result, they were extremely reluctant to speak candidly with their attorneys out of fear that their conversations were being recorded. Denial of Consular Rights Policy
100. According to the OIG Report, the classification of the post-9/11 detainees as “WITSEC” (Witness Security) by the BOP “made it difficult for consulates to contact detainees who were citizens of their countries. (OIG Report at 142.)
101. Though non-citizen immigration detainees must be advised of their right to seek assistance from their consulates under Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, TIAS 6820, 21 U.S.T. 77 (“Vienna Convention”), many Plaintiffs and class members were not advised of this right. Others were coerced into waiving that right by signing forms they did not understand. When the MDC Plaintiffs and class members sought to contact their consulates, their requests were repeatedly denied by the MDC Defendants.
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ABUSE AND INHUMANE CONDITIONS OF CONFINEMENT AT MDC
Physical Abuse
102. The MDC Plaintiffs and class members were routinely physically abused by MDC
staff, including by all of the MDC Correctional Officer Defendants. Such abuse was more
frequent before the MDC began videotaping detainee escorts in early October 2001 (see Supp.
OIG Report at 4), but continued even after that time, as substantiated by the OIG investigation
103. The OIG reported that “30 detainees reported allegations against approximately 20
MDC staff members.” (Id. at 6) The OIG found six categories of physical abuse alleged by
detainees (id.), all of which were substantiated through interviews with MDC staff, detainees’
attorneys, and by observing MDC videotapes:
(a) Slamming detainees against walls: Many detainees alleged that MDC staff members slammed them in to walls during escorts, including when they first arrived and on the way to attorney and doctor visits and recreation. (Supp. OIG Report at 8.) Upon arrival to the MDC, staff slammed post-9/11 detainees against the wall and pushed their faces into a t-shirt hanging on the wall which displayed the slogan “These Colors Don’t Run” and the American Flag. (Id. at 11-12, 14, 31, 37-38.) The slamming caused extreme pain, bruises, and lacerations, at times drawing blood. (Id. at 8, 12-13, 15.) The OIG substantiated these allegations in interviews with a former MDC lieutenant (Id. at 10), and videotapes also show officers slamming detainees on walls, as well as a tennis-ball sized bruise on one detainee from wall-slamming (Id. at 11.) The wall-slamming was also witnessed by a visiting attorney. (Id.)
(b) Bending or twisting detainees’ arms, hands, wrists, and fingers: According to the Supplemental OIG report, ten detainees “alleged that while their hands were cuffed behind their backs, [staff] pulled their thumbs back, twisted their fingers and wrists, and bent their wrists forward towards their arms (referred to by MDC staff members as ‘goosenecking.’)” (Id. at 16-17.) The OIG substantiated these allegations through interviews with MDC staff and by observing MDC videotapes: “[I]n our review of videotapes we observed several instances when MDC staff members bent compliant detainees’ arms, hands, wrists, and fingers for no apparent reason.” (Id. at 17-18.)
(c) Lifting detainees, pulling arms, and pulling handcuffs: Detainees alleged officers lifted them off the ground by their arms, and pulled on their arms and handcuffs to cause pain. (Id. at 18-20.)
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(d) Stepping on detainees’ leg restraint chains: According to the Supplemental OIG Report, detainees “alleged that MDC staff members purposely stepped on their leg restraint chains while they were stationary and also while they were walking, injuring their ankles and causing them to fall.” (Id. at 20.)
(e) Using restraints improperly: Detainees alleged that MDC staff used their physical restraints as a form of punishment by leaving them in a cell in restraints too long. (Id. at 23.) The OIG found there was no evidence the detainees had engaged in misconduct, and that this treatment was in violation of BOP policy. (Id.)
(f) Handling detainees in an otherwise rough or inappropriate manner: Detainees report a range of other rough or inappropriate physical mistreatment, which the OIG also observed on videotape and substantiated in interviews with MDC staff: “[V]ideotape and witness’ statements indicate that some staff members often handled detainees roughly or inappropriately.” (Id. at 26-28.)

104.

According to the Supplemental OIG Report, all of the above forms of physical

abuse were completely against BOP policy, which provides that it is improper for staff members

to use more force than necessary on detainees or cause detainees unnecessary physical pain or

extreme discomfort. (Id. at 8, 9, 15, 16, 19, 20, 23, 28; BOP P.S. 5566.05.) In each instance of

abuse investigated by the OIG, it concluded that the officers’ conduct violated policy. (Id.)

105.

Furthermore, the OIG concluded that all post-9/11 MDC detainees were always

fully compliant, making any use of force completely unnecessary and against BOP policy. (Id. at

8, 10, 11, 13, 15.) In fact, the OIG noted that the only incidences of detainee misconduct were

peeling paint off walls, injuring themselves, hiding from cameras, or refusing to come to the cell

door to be handcuffed. (Id. at 15, n.15.)

106.

All MDC Plaintiffs and class members were frequently physically abused in the

manner described above by, on information and belief, all of the MDC Correctional Officer

Defendants and by MDC Supervisor Defendants, including Lt. Cuciti, Lt. Beck, and Lt. Ortiz.

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On information and belief, all MDC Supervisor Defendants encouraged or were deliberately

indifferent to these abuses, and failed to correct or prevent them.

Verbal Abuse

107.

According to the Supplemental OIG Report, detainees alleged that MDC staff

members verbally abused them by referring to them as “terrorists” and other offensive names;

threatened them with violence; cursed at them; insulted their religion; and made humiliating

sexual comments during strip searches. (Supp. OIG Report at 6, 28-30.) These allegations were

substantiated by interviews, videotapes, and statements by a visiting attorney. (Id. at 29-30.)

108.

According to the Supplemental OIG Report, all of the above forms of verbal

abuse were contrary to BOP policy which provides that “An employee may not use . . .

intimidation towards inmates,” and “[a]n employee may not use profane, obscene, or otherwise

abusive language when communicating with inmates. [Employees] shall conduct themselves in

a manner which will not be demeaning to inmates.” (Id. at 8, 29; BOP P.S. 3420.09.)

109.

All MDC Plaintiffs and class members were frequently verbally abused in the

manner described above by, on information and belief, all of the MDC Correctional Officer

Defendants and by all MDC Supervisor Defendants. On information and belief, all MDC

Supervisor Defendants encouraged or were deliberately indifferent to these abuses, and failed to

correct or prevent them.

Physical Restraints

110. During transport between the MDC Receiving and Discharge Area (“R&D Area”)

and the ADMAX SHU on the ninth floor of the MDC, post-9/11 detainees at the MDC were

“fully restrained in metal handcuffs attached to a waist chain that was connected to ankle cuffs.”

(Supp. OIG Report at 3.) Similarly, “[d]uring routine escorts on the ADMAX SHU, the

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detainees also were handcuffed behind their backs and placed in leg restraints. When they were escorted to visits, interviews, or out of the MDC, the detainees were handcuffed in front, restrained in a waist chain, and placed in leg restraints.” (Supp. OIG Report at 4.) On information and belief, the MDC Defendants subjected all MDC Plaintiffs and class members to such restraints routinely and as a matter of policy. In addition, MDC Defendants kept all MDC Plaintiffs and class members confined to their cells for nearly 24 hours a day almost every day while they were housing in the ADMAX SHU. Arbitrary and Abusive Strip Searches
111. Post-9/11 detainees were strip searched upon arrival to the MDC at the R&D Area and again after they had been escorted, shackled and under continuous guard, to the ninth floor ADMAX SHU. (Supp. OIG Report at 3.) “Some of the same officers who were present for a detainee’s strip search in R&D were present for the detainee’s strip search on the ADMAX SHU.” (Id. at 34.) Detainees were also often strip searched after attorney and family visits and after using the recreation area. (Id.) The OIG found that it “[did] not appear that the MDC issued written policies regarding when detainees were to be strip searched.” (Id.) In interviews, officers cited MDC policy for the basis of the frequent strip searches, but “they could not point . . . to any written policy.” (Id.) Furthermore, “even if such searches were consistent with policy, they were applied inconsistently to the detainees and appeared to be unnecessary.” (Id.)
112. Upon information and belief, strip searches were employed by MDC staff as a way to punish and humiliate the MDC Plaintiffs and class members, using such tactics as having female officers present, videotaping the strip searches against BOP policy, strip searching detainees unnecessarily, and making jokes and humiliating comments during strip searches. According to the Supplemental OIG Report, detainees told OIG investigators that strip searches “were used by
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MDC staff as punishment.” (Id.) In observing videotapes of post-9/11 detainees’ strip searches, “female voices can be heard in the background. In addition, one videotape shows a female staff member walking in the vicinity of a detainee undergoing a strip search.” (Id.)
113. Furthermore, “many of the strip searches conducted on the ADMAX SHU were filmed in their entirety and frequently showed the detainees naked.” (Id. at 33.) The OIG Report notes that “BOP P.S. 5521.05 provides that the strip search ‘shall be made in a manner designed to assure as much privacy to the inmate as practicable.’ . . . However, the very act of filming the entire search seems to run counter to this policy.” (Id. at 33 n.27.) The OIG concluded that “it was inappropriate for staff members in the ADMAX SHU to routinely film strip searches showing the detainees naked . . .” (Id. at 35.)
114. The OIG Report also found that “[i]n a few videotapes . . . officers [were] laughing while observing the strip searches.” (Id.) Additionally,

in one videotape 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. We could see no correctional purpose or justification for strip searching this detainee, who had just been taken from his cell, pat searched, and then escorted into the recreation cell by the four officers. (Supp. OIG Report at 35.)
The OIG concluded that “staff members inappropriately used strip searches to intimidate and
punish detainees,” and “questioned the need for the number of strip searches.” (Id.)

115.

The MDC Plaintiffs and class members were strip searched every time they were

removed from or returned to their cells, including before and after meeting with a lawyer,

receiving medical care, using the recreation area, attending a court hearing, or being transferred

to another cell. These strip searches occurred even when they had no conceivable opportunity to

obtain contraband, such as before and after non-contact attorney visits which they had been

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escorted to and from while shackled and under continuous four-man guard, and before and after being transferred directly from one cell to another. As such, the strip searches had no rational relation to any legitimate penological objective. On information and belief, these strip searches were carried out by MDC Correctional Officer Defendants under the direction of MDC Supervisor Defendants.
116. The strip searches caused all of the MDC Plaintiffs and class members embarrassment and humiliation. MDC Correctional Officer Defendants, including CO DeFrancisco, routinely made inappropriate sexual comments and laughed at the MDC Plaintiffs’ anatomy. Defendant Lt. Elizabeth Torres would force Plaintiff Ebrahim to remove his clothes in front of her before she provided him with new clothes and a new towel. On one occasion, Defendant Torres refused to give Plaintiff Ebrahim a new towel because he had not returned his old towel, and forced him to stand naked in front of his cell while she searched his cell for the towel. On information and belief, the MDC Correctional Officer Defendants carried out these deliberately humiliating practices under the supervision and often under the direct observation of MDC Supervisor Defendants, yet the MDC Supervisor Defendants did not prevent or correct the practices. Sleep Deprivation
117. The MDC Defendants deprived the MDC Plaintiffs and class members of sleep by keeping lights on in the cells at all times of the day or night until late February 2002. (See OIG Report at 153-55; Supp. OIG Report at 3.) According to the OIG, “[m]any detainees alleged that officers loudly banged on their cell doors in an attempt to wake them up, interrupt their prayers, or generally harass them.” (Id at 35.) The MDC Defendants, including, on information and belief, Barrere, McCabe, Machado, Osteen, Lopez, Chase, Diaz, and others, banged on cell doors
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at night to disturb the MDC Plaintiffs and class members’ sleep. MDC and BOP policy required that staff count detainees at midnight, 3 a.m., and 5 a.m., “permit[ting] officers to wake detainees up at that time if they could not see their skin” (BOP P.S. 5500.09). (Id.) However, “detainees alleged that several officers went beyond what was required for the count by kicking the door hard with their boots, knocking on the door at night much more frequently than required, and making negative comments when knocking on the door.” (Id.) Detainees reported that officers “walked by about every 15 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, “Motherfuckers,” “Assholes,” and “Welcome to America;” “officers made loud noises at night to keep the detainees awake and that these officers appeared to have fun conducting the counts by knocking on the cell doors;” “officers would not let the detainees sleep during the day or night.” (Id.) One detainee’s attorney reported that “his client stated that every time he fell asleep the officers came and kicked the doors to wake him up . . . not [as] part of the officers prescribed counts, but . . . the officers would watch the in-cell cameras and come kick on the doors as soon as they thought the detainee was asleep.” (Id.)
118. MDC staff were not required to videotape nighttime activities in cells, but the OIG found that “a combination of cells being continuously illuminated and the BOP requirement that officers had to see the detainees during each count in the evenings caused detainees to be awakened regularly and suffer from sleep deprivation. (Supp. OIG Report at 36.)
119. All the MDC Plaintiffs and class members experienced sleep deprivation as a direct result of the actions and policies of the MDC Defendants. De Facto Denial of Recreation / Inadequate Clothing and Exposure to the Elements
120. The ADMAX SHU recreation cells were exposed to the elements and could be freezing cold. Periodically, the MDC Plaintiffs and class members were offered transport to
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these recreation cells, often at the early hour of 5 or 6 a.m., but they were denied any extra

clothing besides their cotton prison garb. Detainees who accepted these offers were often

physically abused along the way by their MDC CO escorts, and were sometimes left for hours in

the cold recreation cell, over their protests, as a form of punishment. (See OIG Report at 152.)

Thus, while “recreation” was nominally offered several times a week, the MDC Plaintiffs and

class members were constructively denied exercise during the Fall and Winter months.

121. Throughout the Fall and Winter, the cells of the MDC Plaintiffs and class members

were extremely cold. On information and belief, MDC Defendants refused to give the MDC

Plaintiffs sweaters or other warm clothing, or bedding adequate to keep them warm.

Lack of Hygiene Items and Provision of Inadequate and Unhealthy Food

122.

Upon information and belief, MDC Defendants intentionally deprived the MDC

Plaintiffs and class members of adequate, healthy, and religiously appropriate food.

123.

The MDC Plaintiffs and class members were deliberately denied access to basic

hygiene items like toilet paper, soap, towels, toothpaste, eating utensils, personal reading glasses,

and a cup to drink water. (See OIG Report at 155-56.) For the first several months of their

detention, the MDC Plaintiffs and class members were not allowed to keep a toilet paper, towel,

soap, toothbrush, cup, or other personal hygiene items in their cells, making it difficult to

maintain proper health and hygiene. For example, there were only a few days during his

detention when Plaintiff Ebrahim was allowed to keep a cup in his cell, and this allowance was

made only at the direction of Physician Assistant Lorenzo so that he could drink water during the

day, as the sole “treatment” for a kidney stone condition.

124.

Meals in the ADMAX SHU were barely edible and meager, leaving the MDC

Plaintiffs hungry.

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Inadequate Medical Attention

125.

Upon information and belief, MDC Defendants deprived the MDC Plaintiffs and

class members of adequate medical care. According to the Supplemental OIG Report, a doctor

conducting a medical investigation of a bruise caused by an officer slamming a detainee into a

wall did not ask the detainee how he got the bruise. (Id. at 13.) The OIG also found other

failures to examine injuries or discern how detainees were injured while at MDC. (Id.) This was

just one instance of a “don’t look for signs of abuse, don’t tell on the COs” creed that was

pervasive on the MDC medical staff. The MDC Plaintiffs and the class members often did not

ask for doctors when they were abused for fear of retaliation by those officers. (See id. at 13.)

126.

For example, after MDC Defendants physically abused Plaintiffs Ebrahim and H.

Ibrahim on their arrival at MDC, they were not treated for their injuries, even though both

received “physical exams” on October 2, 2001, the next day. Physician Assistant Lorenzo, who

gave the brothers their medical exams, did not look at, ask about, comment on, or treat their

injuries. Plaintiffs Ebrahim and H. Ibrahim were also denied necessary medical care for

subsequent ailments. On information and belief, although Plaintiff H. Ibrahim tested positive for

tuberculosis and was suffering from a severe, painful and persistent cough, the medical staff at

MDC refused to treat him for this condition. Plaintiff Ebrahim complained about his kidney

stones to PA Lorenzo and she said she was not authorized to do anything to treat his kidney

stones. Plaintiff Ebrahim’s pain from the kidney stones was extremely severe, so much so that it

kept him awake at night and made him involuntarily cry out; the Tylenol offered him no relief

from this pain. PA Lorenzo told him to drink 12 cups of water a day, but he was only given one

cup with meals three times a day. Even when PA Lorenzo arranged for him to keep his cup in

his cell, guards took it away after two or three days, when he was transferred to a new cell.

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Plaintiff Ebrahim was also forced to wait weeks to get an x-ray and was deported before the

results had returned. After returning to Egypt, Plaintiffs Ebrahim and H. Ibrahim both received

confirmation from medical doctors that they were suffering, respectively, from tuberculosis and

kidney stones, and obtained treatment for these conditions.

127.

Similarly, Baloch complained of an earache in his left ear. He had two surgeries

on his left ear prior to being detained and had had repeated problems with ear infections. PA

Lorenzo refused to treat his earache, and the ear remained infected until after Plaintiff Baloch’s

release from detention. He was prescribed antibiotics in Canada after his deportation. In

addition, Plaintiff Baloch wrote a letter to the then-current Warden requesting a transfer to a new

room because his roommate had tuberculosis. On information and belief, the Warden took no

action in response to this letter, and Plaintiff Baloch was not transferred and remained with his

roommate for approximately four weeks. Medical tests have since shown that he was exposed to

tuberculosis.

Deliberate Interference with Religious Rights

128.

MDC Defendants adopted, promulgated, and implemented policies and

customs that substantially burdened and interfered with the MDC Plaintiffs’ and class members’

ability to practice and observe their Muslim faith. These policies and customs included:

(a) Refusing to given them a copy of the Koran, thereby deliberately denying the means to maintain their religious practices: Soon after their arrival at MDC, the MDC Plaintiffs requested copies of the Koran. They did not receive them until weeks or even months later. Plaintiff Saffi’s repeated requests for the Koran were denied until mid-December 2001. Saffi was, however, unable to read his Koran for several days more, because his eyeglasses had been confiscated from him on arrival at the MDC on October 1, 2001. Finally, on December 18, 2001 he was brought to an eye doctor and given new glasses.

(b) Refusing to provide food which would allow them to conform to a Halal diet: While detained in the ADMAX SHU, the MDC Plaintiffs and class members were all denied the Halal food required by their Muslim faith, despite many

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requests for Halal meals. The MDC Plaintiffs and class members often chose not to eat the main part of their meals because they could not identify the type of meat it contained. This exacerbated the hunger caused by their already meager meals, and as a result, they were hungry almost every day of confinement at MDC. While in the ADMAX SHU, Plaintiff Baloch lost between 15 and 20 pounds. Sometimes the MDC Plaintiffs’ hunger was so extreme that they ate the meat products, which caused them great emotional distress.

(c) Refusing to provide them the time of day in order to conform to their daily prayer requirements and refusing to disclose the dates to them, making it difficult for them to know when Ramadan began: After their cell windows were painted over in late January or early February, the MDC Plaintiffs and class members became totally dependent on the MDC Defendants to tell them what time of day it was so that they could know when to say their daily prayers. The MDC Defendants frequently withheld the time of day from them or deliberately told them the incorrect time. As a result, they had to time their prayers by guesswork. On one occasion, Plaintiff Ebrahim and another inmate were disciplined for being late for a prison count because they were in the midst of finishing their prayers. The other MDC Plaintiffs had similar experiences.

(d) Constantly interrupting their prayers: McCabe, Osteen, and other MDC COs constantly interrupted the MDC Plaintiffs and class members’ prayers by regularly banging on cell doors, screaming derogatory anti-Muslim comments, and telling them to “shut the fuck up” while they were trying to pray. (See OIG Report at 147-48.)

Campaign of Intentional Infliction of Emotional Distress

129.

Upon information and belief, MDC Defendants used the above-mentioned

harsh detention conditions as an intentional means of punishing, harassing, and “breaking” the

MDC Plaintiffs and class members.

Failure to Provide Handbooks

130.

The usual channels for filing complaints of mistreatment were cut off at

MDC. The MDC Plaintiffs and class members were not provided with MDC handbooks on how

to file complaints about their treatment on a timely basis, if at all. (OIG Report at 162.) By

putting them in an extremely isolated ADMAX SHU, imposing a communications blackout, and

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shutting down their ability to file complaints, the MDC Defendants blocked the MDC Plaintiffs

and class members’ access to normal channels for lodging complaints of abuse and mistreatment.

Confiscated Items

131.

At the time of Plaintiffs’ arrests, Defendants confiscated personal

identification, money, and valuable personal items from Plaintiffs and many class members. In

addition, Defendants searched the homes of Plaintiffs and other class members while they were

in detention and confiscated items from their homes. When Plaintiffs demanded the return of

these items at the time of their release, Defendants deliberately deprived Plaintiffs and other

class members of these items.

132.

Plaintiffs Ebrahim and H. Ibrahim have made attempts to have personal

belongings and money confiscated from them during and following their arrests returned to

them, including $27 of H. Ibrahim’s and $250 of Ebrahim’s. To date, none of these items have

been returned to them. Upon information and belief, FBI and INS agents conducted a search of

Plaintiff Baloch’s apartment without his consent. The agents seized his laptop computer and

other items from his apartment. Additionally, his personal identification, money, two watches,

and a briefcase, were confiscated upon his booking. These items have never been returned to

Baloch. On information and belief, these or other government agents confiscated all of the

possessions in Plaintiff A. Ibrahim’s home and over $300 cash. Upon information and belief, the

FBI took everything that A. Ibrahim had accumulated over ten years of living and working in

New York City, including $300-400 in cash, clothes, watches, cameras, books, documents, and

credit cards. On information and belief, all of Plaintiff Saffi’s personal belongings, including his

personal identification, eyeglasses, and $1492 in cash, were confiscated. On information and

belief, all of Plaintiff Jaffri’s personal belongings, including his identification, were confiscated.

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133.

By adopting, promulgating, and implementing this policy and custom,

Defendants have intentionally violated rights guaranteed to Plaintiffs and class members under

the Fifth Amendment to the Constitution.

Personal Partipation of the Defendants

134.

The MDC Policy and Implementation Defendants, MDC Supervisor

Defendants, MDC Correctional Officer Defendants, MDC Counselor Defendants, and the John

Doe Defendants are referred to collectively in this complaint as the “MDC Defendants.”

MDC Policy and Implementation Defendants

135.

Former MDC Warden Dennis HASTY, MDC Warden Michael ZENK, MDC

Associate Warden for Custody SHERMAN, Captain Salvatore LOPRESTI, MDC Lieutenants

Steven BARRERE and Joseph CUCITI, and JOHN DOE Policy and Implementation Defendants

are referred to as “MDC Policy and Implementation Defendants.”

136.

The MDC Policy and Implementation Defendants created the unconstitutional

and unlawful policies and customs relating to the manner in which the post-9/11 detainees were

detained at the MDC that are at issue in this suit. Moreover, they allowed the continuation of

these policies and customs, exhibited gross negligence and/or deliberate indifference in the

supervision of subordinates who committed unconstitutional acts, and/or participated directly in

the implementation of such policies or customs. These policies and customs included: subjecting

the MDC Plaintiffs and class members to unreasonable and excessively harsh conditions; placing

and keeping them in the MDC’s ADMAX SHU “without conducting the routine individualized

assessment” (see OIG Report at 112, 126-127) and maintaining them there for “days or weeks

after they were supposed to be transferred to the MDC’s less restrictive general population”

following clearance by the FBI (see OIG Report at 127); implementing the communications

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blackout policies and other policies by which Plaintiffs and class members detained at the MDC were denied access to counsel (see OIG Report at 112, 113, 126-127) and access to their consulates (see OIG Report 140-142); overseeing the implementation of the BOP policy of audiotaping their conversations with their lawyers (see Supp. OIG Report at 32); and developing procedures for the full restraint and strip searching of Plaintiffs and class members.

MDC Supervisor Defendants

137.

Captain LOPRESTI and Lieutenants Steven BARRERE, William BECK,

Lindsey BLEDSOE, Joseph CUCITI, Howard GUSSAK, Marcial MUNDO, Daniel ORTIZ,

Stuart PRAY, Elizabeth TORRES, and JOHN DOE Supervisor Defendants are referred to

collectively as “MDC Supervisor Defendants.”

138.

The MDC Supervisor Defendants were grossly negligent in supervising

subordinate correctional officers who committed wrongful acts, or were deliberately indifferent

to the constitutional rights of MDC Plaintiffs and the plaintiff class by failing to act on

information that such wrongful and unconstitutional acts were occurring. Upon information and

belief MDC Supervisor Defendants were aware of the inappropriate and unconstitutional

activities of their subordinates and nevertheless failed to act to stop such activities or to properly

discipline their subordinates.

139.

The MDC Supervisor Defendants participated in the creation and continuation

of inhumane conditions of confinement for Plaintiffs and other class members at the MDC,

including but not limited to physical and verbal abuse, inhumane conditions of confinement,

arbitrary and dehumanizing use of strip searches, disruption of sleep, deliberate interference with

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religious rights, unreasonable restrictions on communications, inadequate provision of medical

attention, de facto denial of recreation, and denial of hygiene items and adequate food.

140.

On information and belief, Defendants CUCITI, ORTIZ, BECK, and JOHN

DOE Supervisor Defendants were also involved directly in deprivations of plaintiffs’

constitutional rights, including the use of excessive force against Plaintiffs and other class

members. Upon information and belief, such use of force included pushing and slamming

compliant MDC Plaintiffs and class members into walls, bending the arms and hands of

compliant MDC Plaintiffs and class members in a manner that constituted excessive restraining

force, and improperly using restraints to punish Plaintiffs and other class members.

141.

Upon information and belief, all MDC Supervisor Defendants directly incited

other officers to treat the MDC Plaintiffs and class members in an unconstitutional fashion.

MDC Correctional Officer Defendants

142.

Correctional Officers Phillip BARNES, Sidney CHASE, Michael

DEFRANCISCO, Richard DIAZ, Kevin LOPEZ, Mario MACHADO, Michael MCCABE,

Raymond MICKENS, John OSTEEN, Brian RODRIGUEZ, Scott ROSEBERY, Christopher

WITSCHEL, and JOHN DOE Correctional Officers are referred to collectively as the “MDC CO

Defendants.”

143.

The MDC CO Defendants directly infringed on the constitutional rights of

Plaintiffs and other class members detained at the MDC, participated in the creation of the

inhumane conditions of confinement challenged here, including physical and verbal abuse,

inhumane conditions of confinement, arbitrary and dehumanizing use of strip searches,

disruption of sleep, deliberate interference with religious rights, unreasonable restrictions on

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communications, inadequate provision of medical attention, de facto denial of recreation, and

denial of hygiene items and adequate food.

144.

On information and belief, all of the MDC CO Defendants engaged in

physical and/or verbal abuse against the MDC Plaintiffs and class members, including but not

limited to:

(a) Beating and kicking them;

(b) Pushing, slamming, and throwing them against walls (see OIG Supp. Report 811.);

(c) Stepping on and tightening their leg restraints and handcuffs in an unduly harmful manner (see OIG Supp. Report 18-19, 20-22.);

(d) Twisting, pulling, “goosenecking,” and otherwise harmfully bending their fingers, arms, and hands while they were restrained and compliant, in order to cause injury, and which in fact caused injury (see OIG Supp. Report 16-18);

(e) Verbally threatening and otherwise verbally abusing Plaintiffs and other class members (see OIG Supp. Report 28-30).

145.

On information and belief, MDC CO Defendants deliberately and unlawfully

interfered with the free exercise of Plaintiffs’ and other class members’ religious practices by, inter alia, banging on cell doors or calling arbitrary counts during prayer times or group prayers.

146.

On information and belief, MDC CO Defendants deliberately and unlawfully

interfered with attorney-client meetings and visitations for Plaintiffs and other class members by, inter alia, telling lawyers and clients they had to speak in English in order for their conversations

to be recorded, and preventing Plaintiffs and other class members from speaking to their lawyers

by phone. (See OIG Supp. Report 31-32.)

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MDC Counselor Defendants

147.

Defendants Raymond COTTON, CUFFEE, Clemmet SHACKS, and JOHN

DOE Counselor Defendants are referred to collectively as “MDC Counselor Defendants.”

148.

On information and belief, MDC Counselor Defendants engaged in conduct to

deliberately and unlawfully restrict Plaintiffs’ and other class members’ access to legal counsel, their consulates, and the outside world generally, by, inter alia, severely limiting the use of MDC

phones by Plaintiffs and other class members. Said Defendants verbally taunted and threatened

Plaintiffs and other class members, denied them the opportunity to make phone calls, simply

pretended to make phone calls, or falsely claimed that no one was answering the phone number

dialed.

Allegations Concerning the Plaintiffs

MDC PLAINTIFFS

149.

Plaintiffs Asif Saffi, Syed Jaffri, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch,

and Ashraf Ibrahim are collectively referred to herein as the “MDC Plaintiffs.” None of the

plaintiffs have ever been involved with terrorism and, pursuant to the challenged blanket “hold

until cleared policy,” each was cleared of terrorism by the FBI and INS prior to his removal from

the United States.

Plaintiff Asif-ur-Rehman Saffi

150.

Asif-ur-Rehman Saffi entered the United States through Los Angeles on July 6,

2001, on a three-month tourist visa, which was to expire on October 4, 2001. After briefly

staying with family and friends in Los Angeles, he flew to New York City to see other friends.

While in New York City, Saffi, who holds a Master’s Degree in Political Science and is a

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Microsoft Certified Professional, earned a small sum fixing computers and doing data entry for a

small business.

151.

On September 29, 2001, shortly before his tourist visa was to expire, Saffi flew to

Toronto to spend a few days. Canadian immigration officials, however, refused to allow him

into the country. Consequently, Saffi flew back to New York City the next day, September 30,

2001. He was arrested at LaGuardia Airport by an FBI agent and three INS agents as soon as he

stepped off the plane at LaGuardia Airport.

152.

On that same day, September 30, 2001, after being interrogated by an INS agent,

Saffi was taken to the INS facility on Varick Street in Manhattan, where he was again questioned

by two FBI agents for approximately one to two hours. Saffi, who is fluent in English, answered

their questions truthfully. He denied any involvement with terrorists or terrorist activity. The

two FBI agents, however, disputed Saffi's veracity, accusing him of involvement in the

September 11 terrorist attacks. Accusing Saffi with having a strong association with terrorists,

the agents made threatening remarks to him such as “you will be rotting in jail if you don’t give

us names” and “Muslims are terrorists and we know you are one of them.” Taking two

telephone books that Saffi had on his person, they told him that they would check every contact

in his books and if they found any of them to be suspicious, he would be in serious trouble. At

the request of an INS agent, Saffi signed a written statement that he had been working in the

United States without authorization. Saffi asked to see the French Consulate. That request was

never granted, even after Saffi put that request in writing.

153.

The next day, October 1, 2001, Saffi was transported by van to the MDC in

handcuffs with chains around his waist and shackles on his legs. Saffi arrived in a caravan of

two vans carrying a total of eight detainees. At the MDC, Saffi was first taken from the sally

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port area to the R&D Area. On information and belief, Lt. Pray and a team of about four to five

people dragged each of the eight detainees like ragdolls one by one out of the van, including

Saffi, into the building, slamming his face into several walls on the way. Despite the pain, Saffi

offered no resistance, fearing that would only make matters worse. On information and belief,

after being fingerprinted, Saffi was strip-searched in the R&D area by Defendant Pray’s team

and given an orange jumpsuit. All of his personal belongings, including his personal

identification, eyeglasses, and cash in the amount of $1492.00, were confiscated.

154.

While still in handcuffs, chains, and shackles, Saffi was then taken by, on

information and belief, Defendant Beck, a lieutenant, and four other junior officers, COs Chase,

Diaz, DeFrancisco, and Machado to the Special Housing Unit on the Ninth Floor of the MDC.

On the way there, this team banged his head on the walls, kicked him, slammed him against the

walls, and verbally abused him. The lieutenant in charge did nothing to stop the abuse, nor did

he instruct his team to stop. Once there, this team again strip-searched Saffi and subjected him

to physical and verbal abuse. Among other things, they bent back his thumbs so far that he could

not use them for ten days, stepped on his bare feet with their shoes, and pushed him into a wall

so hard that he fainted. After Saffi fell to the floor, they kicked him in the face and in the ribs.

On information and belief, Defendant Beck, the lieutenant in charge, called Saffi a “terrorist,”

boasting that Saffi could expect continued harsh treatment because of his involvement in the

September 11 terrorist attacks and vowed to make his stay as horrible as possible. The lieutenant

threatened to punish him if he even so much as smiled and that he would “take it as an offense

and as an attack on my people.” The lieutenant also said that Saffi killed 7,000 people (then

believed to be the number of people killed in the 9/11 attacks) and threatened to beat him if he

did not behave. Saffi offered no resistance.

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155.

Like most or all of the other MDC Plaintiffs, Saffi was placed in the ADMAX

SHU arbitrarily and without justification, subjected to a communications blackout, denied access

to counsel and to his consulate, arbitrarily and abusively strip searched, and subjected to

inhumane conditions of confinement including sleep deprivation, constructive denial of

recreational activities and hygienic items, and deprivation of adequate food and medical

attention. Like most or all of the other MDC Plaintiffs, Saffi was, at all times relevant to the acts

complained of, and remains, a devout Muslim, and the MDC Defendants deliberately and

substantially interfered with his religious practice. Like most or all of the other MDC Plaintiffs,

Saffi was not provided with timely notice of MDC’s complaint procedures and had his personal

items confiscated by MDC Defendants.

156.

Saffi was placed in a 10-foot-by-six-foot cell shared by another post-9/11

detainee. He was confined to his cell all day long, nearly every day, for the next five months.

Saffi’s cell was cold and uncomfortable on most days, though considerably warmer than the

“recreation” cell.

157.

Saffi was denied all reading material initially. The inmates were given a copy of

the Bible and were denied the Koran until mid-December 2001, when the MDC Defendants

finally gave him a copy of the Koran. Saffi was, however, unable to read for several days more,

because his eyeglasses were confiscated from him on October 1, 2001. Finally, on December 18,

2001 he was brought to an eye doctor and given new glasses.

158.

While Saffi was confined at the MDC, the MDC Defendants deliberately

interfered with his ability to observe the mandatory practices of his religion. They denied him

the Halal food required by his faith. On one occasion, Saffi asked, on information and belief, Lt.

Torres for Halal food and she responded that this was a jail not a hotel and to ask Allah for food.

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The lieutenant was verbally abusive other times by referring to inmates as "sons of bitches,

motherfuckers, and troublemakers.” For the first month or so, MDC Defendants constantly

interrupted him during his daily prayers. They further withheld from him the time of day making

it impossible for Saffi, caged in a windowless cell, to know when to say his mandatory prayers.

159.

While confined at the MDC, Saffi received constant verbal abuse. The MDC

Defendants swore at him, belittled and insulted his religion, and degraded him. They called him

a “religious fanatic” and a “terrorist.”

160.

On October 8, 2001, the District Director of INS for the New York District

issued a removal order to Saffi ordering his removal from the United States.

161.

On October 14, 2001, two weeks after his arrest, Saffi was interrogated by two

FBI agents and two INS agents, who asked him wide-ranging questions about his family back in

France, his work for Pakistan International Airlines, his faith, and his political views. Saffi again

denied any involvement with terrorists, terrorist organizations or terrorist activity. The FBI

agents concluded thereafter that he had no knowledge of terrorist activity. As early as October

14, 2001 a report by one of the FBI agents who had interviewed Saffi resulted in the following

recommendation, “It is recommended that Saffi be allowed to return to France…Saffi’s

interview and the subsequent investigation have revealed nothing that indicate that Saffi had any

knowledge of the attack on the World Trade Center, or any other terrorist activities”

162.

Three days later, on October 17, 2001, the issued removal order appears to have

been served to Saffi. When Saffi asked whether he needed a lawyer, an INS official told him

that counsel was unnecessary since the INS would soon put him on a plane back to France. Saffi

nonetheless remained in custody for another four and one-half months.

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163.

On information and belief, on November 2, 2001, Kenneth Maxwell, FBI

Assistant Special Agent in Charge, wrote to Daniel Molerio, INS Assistant District Director for

Investigations in New York, to inform him that the FBI did not have an investigative interest in

Saffi relating to the events of September 11, and instructed the INS to continue normal and

appropriate processing of Saffi. Despite the fact that the FBI clearly had no more interest in

investigating Saffi for ties to terrorism after having issued this second “clearance” and the INS

could have effectuated his removal immediately, the INS without cause failed to timely release

or remove him.

164.

Instead, Saffi was detained for four and one-half months longer than necessary to

effectuate his removal from the United States solely on the remote possibility that law

enforcement authorities might someday connect him to terrorist activity. He was never,

however, brought before a neutral judicial officer to determine whether there was probable cause

to believe that Saffi engaged in terrorist activity. Nor was an indictment or information against

Saffi ever filed with a court citing criminal charges on which his continued detention was based.

165.

On December 18, 2001, an INS agent and a NYPD detective visited Saffi at the

MDC. They questioned him about his family back in France, his work for Pakistan International

Airlines, his faith, and his political views. Saffi again denied any involvement with terrorists,

terrorist organizations or terrorist activity. After the interrogation was over, Saffi’s two

interrogators assured him that he would soon be released. Saffi, however, remained detained at

the MDC for nearly three more months.

166.

On March 5, 2002, INS agents took Saffi from the MDC to JFK airport and put

him on an airplane to France, without, however, returning his critical employment identification

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cards. The INS has yet to return his employment identification card that entitles him to

discounted airfare.

167.

As a result of his prolonged detention in the United States, Saffi’s employer,

Pakistan International Airlines, has begun proceedings to terminate his employment, evidently

deeming him a security risk. A presumption of guilt thus continues to follow Saffi even after his

deportation from the United States, despite the fact that he has never been involved in terrorist

activity and the complete absence of any evidence that he has been involved in such activity.

Saffi, who loves to travel, from now on has to explain when he enters some countries whether he

has been banned from entry to other countries. He then must disclose his ban on reentry into the

United States, which is both embarrassing and causes difficulties with immigration officials.

168.

Saffi continues to suffer the emotional and psychological effects of his four and

one-half months detention in the United States. He has great difficulty, for example, sleeping at

night because he continues to dwell on what happened to him at MDC.

Plaintiff Syed Amjad Ali Jaffri

169.

In September 2001, Plaintiff Syed Amjad Ali Jaffri was living and working in the

Bronx, New York, though without a valid visa. He was renting a room in a three-room

apartment leased to Melvin Curzado and his family. One night, Jaffri and Curzado had a heated

verbal dispute over the living arrangements. Curzado threatened to report Jaffri to the INS.

170.

Several days later, on September 27, 2001, approximately 10 INS and FBI agents,

accompanied by a United States Department of Labor official and several police officers, came

to Curzado=s apartment to see Jaffri. They searched Jaffri=s room, without a search warrant and

without his consent, finding in a closet several stun guns that belonged not to Jaffri but rather to

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Curzado=s children. Jaffri was arrested and charged with criminal possession of a weapon, a

charge which was dismissed two days later because the stun guns did not belong to Jaffri.

171.

On September 28, 2001, Jaffri was taken to an INS facility in Manhattan. There,

FBI and INS agents interrogated him about possible involvement in the September 11 terrorist

attacks and other terrorist activity, without advising him of his right to counsel, or, for that

matter, any of his Miranda rights. One FBI agent asked Jaffri to sign a form retroactively

consenting to the search of his room. Jaffri, however, refused to do so, prompting the agent to

angrily say: ANow you will learn the hard way.@ Jaffri also asked that the Pakistani Consulate be

notified and requested a hearing before an immigration judge.

172.

Two days after his arrest, on September 29, 2001, Jaffri was taken to the MDC,

where he was strip searched, fingerprinted and given an orange jumpsuit. All of his personal

belongings, including his personal identification, were confiscated. He was placed in a tiny

solitary (windowless) cell in the SHU. Jaffri was confined to that cell nearly all day, nearly

every day, for the next six months, until April 1, 2002.

173.

Like most or all of the other MDC Plaintiffs, Jaffri was placed in the ADMAX

SHU arbitrarily and without justification, subjected to a communications blackout, denied access

to counsel and to his consulate, arbitrarily and abusively strip searched, and subjected to

inhumane conditions of confinement including sleep deprivation, constructive denial of

recreational activities and hygienic items, and deprivation of adequate food and medical

attention. Like most or all of the other MDC Plaintiffs, Jaffri was, at all times relevant to the acts

complained of, and remains, a devout Muslim, and the MDC Defendants deliberately and

substantially interfered with his religious practice. Like most or all of the other MDC Plaintiffs,

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Jaffri was not provided with timely notice of MDC’s complaint procedures and had his personal

items confiscated by MDC Defendants.

174.

Whenever Jaffri was removed from his cell, he was first strip searched and then

placed in handcuffs, chains, and shackles. Four or more MDC Defendants typically escorted him

to his destination, frequently inflicting unnecessary pain along the way, for example, by

deliberately kicking Jaffri=s manacles and shackles into his lower body. Despite the pain, Jaffri

offered no resistance, fearing that resistance would only make matters worse.

175.

While there were other post-9/11 detainees held in adjoining cells, Jaffri was

forbidden to talk with them, and vice-versa. The MDC Defendants threatened to cut off visits

from his attorney if he broke the rule.

176.

While Jaffri was confined in the MDC, he was subjected to repeated physical and

verbal abuse by the MDC Defendants. When he was first brought to the MDC=s Special Housing

Unit, for example, one MDC Defendant, in the presence of other MDC Defendants, told him:

“Whether you [participated in the September 11 terrorist attacks] or not, if the FBI arrested you,

that=s good enough for me. I=m going to do to you what you did.” Several MDC Defendants

then slammed Jaffri=s head into a wall, severely loosening his lower front teeth and causing him

extreme pain. Despite the pain, Jaffri offered no resistance, again fearing that resistance would

only make matters worse. Throughout his stay at the MDC, Jaffri felt pain and discomfort in the

vicinity of his lower front teeth. Although he made more than six requests to see a dentist, he

was seen only once in 2001, and when seen again in late March 2002 he had advanced bone loss,

advanced periodontal disease, and needed to have many teeth extracted.

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177.

Jaffri was served with a Notice to Appear on October 1, 2001, four days after his

arrest. That same day he requested a re-determination of his custody decision and signed a

request for a prompt merits hearing before an immigration judge.

178.

On December 20, 2001, during a closed immigration hearing held at MDC, an

immigration judge ordered Jaffri’s removal. On information and belief, no bond hearing was

held prior to this date solely because of the hold until cleared policy. Neither Jaffri nor the INS

contested that order. Jaffri, nonetheless, remained in custody for months until he received

Aclearances@ from the FBI and INS, even though the INS could have effectuated his removal

within a matter of days.

179.

Jaffri was detained for nearly three and one-half months longer than necessary to

effectuate his removal from the United States solely on the remote possibility that law

enforcement authorities might someday connect him to terrorist activity. He was never,

however, brought before a neutral judicial officer to determine whether there was probable cause

to believe that Jaffri engaged in terrorist activity. Nor was an indictment or information against

Jaffri ever filed with a court citing criminal charges on which his continued detention was based.

180.

On April 1, 2002, INS agents took Jaffri to LaGuardia Airport, putting him on a

plane to Canada, without any identification or money. On information and belief, the FBI has

cleared Jaffri of any association with terrorism and closed its investigation of him.

Plaintiffs Yasser Ebrahim and Hany Ibrahim

181.

Plaintiff Yasser Ebrahim re-entered the United States on a tourist visa in January

2001, joining his younger brother, plaintiff Hany Ibrahim, who had entered the United States on

a tourist visa in 1998. For the next nine months, they shared an apartment in Brooklyn, New

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York with several friends from Egypt and Morocco. During that time, Ebrahim began a website

design business, while H. Ibrahim continued his occasional work in a local delicatessen.

182.

On Sunday, September 30, 2001, at about 2 p.m., Ebrahim and H. Ibrahim, along

with their roommates, were in their apartment when they heard a knock on the door. When

Ebrahim opened the door, he saw 12 men standing there, one of whom announced that they were

FBI and INS agents and New York City police officers who wanted to talk with Ebrahim, H.

Ibrahim, and their roommates about the September 11 terrorist attacks. Ebrahim invited them in.

183.

Once inside the apartment, these FBI and INS agents and New York City police

officers interrogated Ebrahim, H. Ibrahim, and their roommates separately, asking them

questions about their immigration status and terrorist activity in the United States, without

advising them of their right to counsel, or, for that matter, of any of their Miranda rights.

Ebrahim, H. Ibrahim, and their roommates all denied any involvement in the September 11

terrorist attacks or any other terrorist activity. When the interrogation was over, the FBI and INS

agents told Ebrahim, H. Ibrahim, and one Egyptian roommate that “we have to take you with

us.” The agents arrested and handcuffed all three, denying Ebrahim’s and H. Ibrahim’s request to

call an attorney. Without consent, the agents conducted a search of the apartment, seizing all of

Ebrahim’s religious and other books in the process.

184.

Ebrahim and H. Ibrahim were then held for approximately 24 hours at the Varick

Street facility, before being taken to the MDC. During this time, they were denied access to

bathroom facilities and forced to sleep overnight on the floor. All of their personal belongings,

including their personal identification and money, were confiscated. Twenty-seven dollars were

taken from H. Ibrahim, and $250 was taken from Ebrahim.

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185.

Neither Ebrahim nor H. Ibrahim was served with a Notice to Appear (NTA) until

October 17, 2001, seventeen days after their arrests.

186.

On November 6, 2001, Ebrahim and H. Ibrahim were taken separately from their

cells, in handcuffs, waist chain, and leg shackles, to see Immigration Judge Alan Vomacka, who

was holding closed immigration hearings for post-9/11 detainees on another floor of the facility.

This was their first hearing of any kind since their arrest. On the way, CO Scott Rosebery

whispered to Ebrahim, “The camera is your best friend. If not for the camera, I would have

smashed your faces, you mother fuckers.” When Ebrahim complained about this verbal abuse at

his immigration hearing, Judge Vomacka abruptly cut Ebrahim off, stating “I don’t care. This is

not my job.” Ebrahim complained verbally to Lt. Steven Barrere, who said he would speak with

Rosebery’s supervising lieutenant. The supervising lieutenant told Ebrahim that he watched the

videotape of the incident but did not see anything amiss.

187.

Ebrahim’s and H. Ibrahim’s immigration cases were heard together. Marianne

Yang of the Legal Aid Society, whom they had met for the first time that day, appeared on their

behalf, while an INS trial attorney appeared on behalf of the government. A female FBI or INS

agent was also present, though she neither entered an appearance nor spoke on the record. Ms.

Yang asked that Ebrahim and H. Ibrahim be granted voluntary departure and bond. The

Immigration Judge, however, denied the request after the agent handed him a note off the record,

stating that he could not grant bond until he received “clearance.” The hearing was adjourned.

188.

Two weeks later, on November 20, 2001, Ebrahim and H. Ibrahim were again

brought before Immigration Judge Vomacka at MDC. This time they were represented by new

counsel, Matthew Guadagno. The judge denied Ebrahim’s and H. Ibrahim’s request for bond,

stating that they were “disappearance risks.” Desperate to expedite their release and return home

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to their ailing mother in Egypt, Ebrahim and H. Ibrahim reluctantly accepted final deportation

orders, effective immediately, upon being assured that they would be removed from the country

within four to five days. No appeal was taken from those orders.

189.

The INS could have secured Ebrahim’s and H. Ibrahim’s removal within a matter

of days, but the agency kept Ebrahim and H. Ibrahim in custody for another six months. On

information and belief, the INS made plans to deport H. Ibrahim two and a half months earlier

than his actual deportation – going so far as to book a February 1, 2002 flight to deport him and

issuing an order to escort him to JFK on that day for deportation. But this order was not carried

out.

190.

On information and belief, FBI memos dated December 7, 2001 state that pre-

and post-interview clearance checks on Ebrahim and H. Ibrahim were negative, and note with

respect to Ebrahim that links to terrorist groups appear negative.

191.

Ebrahim and H. Ibrahim were detained for more than six months longer than

necessary to effectuate their removal orders solely on the remote possibility that law enforcement

authorities might someday connect them to terrorist activity. However, they were never brought

before a neutral judicial officer to determine whether there was probable cause to believe that

they engaged in terrorist activity. Nor were Ebrahim or H. Ibrahim ever charged with a crime.

192.

Ebrahim and H. Ibrahim arrived at the MDC on October 1, 2001, and were

immediately assigned to the ADMAX SHU section of the facility. On information and belief,

this assignment was made solely because of the entirely unfounded assumption that Ebrahim and

H. Ibrahim were connected to the September 11 terrorist attacks. Once in the ADMAX SHU,

Ebrahim and H. Ibrahim were placed in separate cells and were not allowed to see or speak with

each other for 35 days. On November 5, 2001, however, they were moved into the same cell.

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While H. Ibrahim was eventually transferred out of the Special Housing Unit into MDC’s

general prison population on January 17, 2002, Ebrahim remained confined in the Special

Housing Unit for the entire duration of his confinement at MDC.

193.

Like most or all of the other MDC Plaintiffs, Ebrahim and H. Ibrahim were placed

in the ADMAX SHU arbitrarily and without justification, subjected to a communications

blackout, denied access to counsel and to their consulate, arbitrarily and abusively strip searched,

and subjected to inhumane conditions of confinement including sleep deprivation, constructive

denial of recreational activities and hygienic items, and deprivation of adequate food and medical

attention. Like most or all of the other MDC Plaintiffs, Ebrahim and H. Ibrahim were, at all

times relevant to the acts complained of, and remain, devout Muslims, and the MDC Defendants

deliberately and substantially interfered with their religious practice. Like most or all of the

other MDC Plaintiffs, Ebrahim and H. Ibrahim were not provided with timely notice of MDC’s

complaint procedures and had their personal items confiscated by MDC Defendants.

194.

From the moment they arrived at the MDC on October 1, 2001, Ebrahim and H.

Ibrahim were subjected to abuses and harsh and inhumane conditions of confinement, depriving

them of basic life necessities such as adequate food, warmth, exercise, sleep, hygiene materials

and medical care. Ebrahim and H. Ibrahim were transported to the MDC from Varick Street in a

van, handcuffed, chained, and shackled. On arrival at MDC, H. Ibrahim was pulled from the van

by several large MDC guards, who were accompanied and supervised by a lieutenant who was a

white, balding male with grey hair, blue eyes and a mustache. On information and belief, this

lieutenant was Stuart Pray. Although H. Ibrahim was cooperative and compliant, and posed no

threat to anyone, the guards slammed H. Ibrahim face-first into the sally port wall with the

American flag t-shirt taped to it, causing him great pain and serious bruising of his nose. H.

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Ibrahim started to cry, and was told to “shut up,” called a “motherfucker,” and told to look at the

flag on the t-shirt. Ebrahim was also pulled forcefully from the van, by a team of four guards,

accompanied by a lieutenant who was a white, balding male with grey hair and a mustache. On

information and belief, this lieutenant was Stuart Pray. Although Ebrahim was cooperative and

compliant, he was also slammed face-first into the wall, causing him pain so severe that he felt as

though his nose had been broken. On information and belief, Lt. Pray witnessed this abuse, yet

did nothing to prevent it and appeared to be overseeing it.

195.

Once inside the MDC’s R&D Area, Ebrahim and H. Ibrahim were fingerprinted,

strip searched, and given orange jumpsuits to wear. Ebrahim and H. Ibrahim were then taken

from R&D to the ninth floor ADMAX SHU by, on information and belief, Lt. Barrere and COs

Richard Diaz and Sidney Chase. On the way, H. Ibrahim and Ebrahim were forcefully pushed

into every wall and door that they passed, causing them more pain and further bruising. Officers

on the escort team pushed H. Ibrahim’s wrist chains painfully into his hands, twisted his wrists

and fingers painfully, and tightened his handcuffs so that his wrists bled. When H. Ibrahim was

ordered to walk, guards would step on his leg chains, causing him to fall. When he fell, guards

would pick him up and drag him by his cuffs or clothing, then stepping on his leg chains again

and repeating the process, leaving H. Ibrahim’s ankles bruised and bloodied. Ebrahim was

subjected to the same tripping and dragging process, leaving his wrists painful and red for days

afterwards. Throughout the trip, guards verbally abused the two brothers, calling them “fucking

Muslims” and “terrorists.” When H. Ibrahim tried to explain that he and his brother were only

there on immigration charges, one MDC CO told him to shut up, stating “If you open your

mouth, I will crush you under the elevator, just like at the World Trade Center.” The lieutenant

on the team told H. Ibrahim, “I don’t want to hear you breathe and don’t look at me.”

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Throughout this ordeal, H. Ibrahim and Ebrahim were fully cooperative and compliant, and

neither provoked nor posed a threat to anyone.

196.

Ebrahim and H. Ibrahim each suffered serious injuries as a result of the beatings

received upon their arrival at MDC. Their arms and noses remained black and swollen for

several days thereafter. H. Ibrahim was so badly frightened by the beatings that he did not eat

during the first three days of his detention at MDC. For several days, Ebrahim and H. Ibrahim

had visible injuries, were in considerable pain, and had great difficulty breathing. They were not

treated for their injuries, even though both received physical exams on October 2, 2001, the day

after their arrival at MDC. Physician Assistant Nora Lorenzo, who gave the brothers their

medical exams, did not care to look at, ask about, comment on, or treat their obvious injuries.

197.

Physical abuse was a regular part of Ebrahim and H. Ibrahim’s lives at MDC,

particularly during transports between their cells and other locations. Examples of this include

MDC Defendants twisting their arms and slamming them against walls and making their

handcuffs painfully tight. Additionally, MDC Defendants frequently stepped on and kicked their

ankle shackles while transporting them. On information and belief, COs Sidney Chase, Richard

Diaz, and other MDC Defendants frequently abused Ebrahim and H. Ibrahim in these ways,

though other MDC Defendants also perpetrated such abuses.

198.

Ebrahim and H. Ibrahim were also subjected to regular verbal abuse throughout

their detention at MDC, contributing to their feelings of being under threat of physical harm. On

one occasion, when H. Ibrahim asked for pen and paper to write a letter, Lt. Barrere responded:

“Are you going to write to Osama bin Laden?” CO Sidney Chase regularly harassed Ebrahim

and blamed him for the World Trade Center attacks. When Ebrahim raised the issue of human

rights to Clemmet Shacks, Shacks responded: “Forget about human rights. Three thousand

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people died in the World Trade Center. You have no rights.” They were also regularly subjected

to ethnic and anti-Muslim slurs.

199.

H. Ibrahim was released and deported on May 29, 2002. Ebrahim was released

and deported on June 6, 2002. On the dates that they were deported, each was given old clothes

(not their own), taken to the airport in handcuffs, chains, and shackles, and placed on a plane

without any money. Both Ebrahim and H. Ibrahim have made attempts to have personal

belongings and money confiscated from them during and following their arrests returned to

them. To date, none of these items have been returned to them.

200.

Ebrahim and H. Ibrahim were each deported to Egypt. Upon their respective

arrivals in Cairo, Ebrahim and H. Ibrahim were summoned to Egyptian State Security

Investigations, where each was detained and extensively interrogated for hours on his detention

in the United States. On information and belief, State Security Investigations retains dossiers on

both Ebrahim and H. Ibrahim. The presumption of guilt thus follows them even after their

deportation from the United States, despite the fact that they have never been involved in

terrorist activity and the complete absence of any evidence of their involvement in such activity.

201.

Ebrahim and H. Ibrahim continue to suffer extreme emotional and psychological

distress as a result of their eight months of detention in the United States. They each have

sleepless nights thinking about the recent past. H. Ibrahim in particular has had extreme

difficulty coming to terms with his detention ordeal and has suffered a “nervous breakdown”

after returning to Egypt, which necessitated professional counseling. It was not until March

2003 that Ebrahim and H. Ibrahim had recuperated sufficiently to be able to work and hold jobs.

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Plaintiff Shakir Baloch

202.

Plaintiff Shakir Baloch was taken into custody at his residence on September 19,

2001 by a group of INS, FBI, Department of Labor and NYPD officers. The officers were

conducting an investigation in connection with Amjad Baig for possession of a counterfeit social

security card. Baig lived in the same apartment as Baloch. There, Baloch was interrogated for

nearly four hours, primarily about the events on September 11, 2001. He was not advised of his

rights to counsel or his other Miranda rights. Baloch denied any involvement with terrorists,

terrorist organizations, or terrorist activity, but disclosed that he had used the alias Faisal Kurd to

obtain false identification for employment purposes because he had previously been removed

from the United States under his real name. Baloch was arrested at the close of the interrogation.

Baloch was taken in handcuffs to the INS’s Varick Street facility in Manhattan, where he was

held for two nights.

203.

On information and belief, FBI and INS agents conducted a search of Baloch’s

apartment without his consent. The agents seized his laptop computer and other items from his

apartment. Additionally, his personal identification, money, two watches, and a briefcase, were

confiscated upon his booking. These items have never been returned to Baloch.

204.

On September 21, 2001, Baloch was processed for removal. Baloch was given a

Notice of Rights and Request for Disposition form, which he refused to sign. He was not read

his Miranda rights prior to being questioned.

205.

On the night of September 21, 2001, Baloch was taken to MDC in Brooklyn, New

York. Baloch was met at the MDC and taken from the sally port to another room on the first

floor by five MDC guards, including, on information and belief, Lt. Steven Barrere, COs

Michael McCabe, Kevin Lopez, and Jon Osteen. After escorting Baloch to an empty room, the

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five guards worked as a team to pick him up from under the arms and throw him rapidly and

forcefully from corner to corner in his cell, while hitting and kicking him in the back as he fell to

the ground. As they did so, the some of the guards cursed at Baloch and called him “a fucking

Muslim terrorist.” They repeatedly said such things as: “For what you did to us, we will kill

you,” “You did this to us. We’re going to kill you,” and “You know why you are in here. The

government thinks that you are a terrorist.” On information and belief, Lt. Barrere and COs

McCabe, Lopez, and Osteen all participated in throwing Baloch into the corners of the room,

hitting and kicking him, and verbally insulting him.

206.

Despite the fact that Baloch was being held on a civil immigration violation and

that no evidence connected Baloch to any terrorist activities, Baloch was designated as a possible

terrorist and placed in the Special Housing Unit (SHU).

207.

Like most or all of the other MDC Plaintiffs, Baloch was placed in the ADMAX

SHU arbitrarily and without justification, subjected to a communications blackout, denied access

to counsel and to his consulate, arbitrarily and abusively strip searched, and subjected to

inhumane conditions of confinement including sleep deprivation, constructive denial of

recreational activities and hygienic items, and deprivation of adequate food and medical

attention. Like most or all of the other MDC Plaintiffs, Baloch was, at all times relevant to the

acts complained of, and remains, a devout Muslim, and the MDC Defendants deliberately

interfered with his religious practice. Like most or all of the other MDC Plaintiffs, Baloch was

not provided with timely notice of MDC’s complaint procedures and had his personal items

confiscated by MDC Defendants.

208.

On September 22, 2001, INS reinstated a prior deportation order against Baloch.

Because Baloch had a prior deportation order against him, he was not provided a hearing. Rather,

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the prior order was simply reinstated. However, despite the fact that the INS could have

effectuated Baloch’s removal from the United States within a matter of days, Baloch continued

to be held in the MDC, solely on the remote possibility that he might be connected to terrorist

activity, despite the complete absence of any evidence of terrorist connections. Baloch was never

brought before a neutral judicial officer to determine whether there was probable cause to believe

that he engaged in terrorist activity.

209.

On Septmeber 28, 2001, Baloch was interviewed by SA Noreen Gleason (FBI)

and SA Kevin Ryan (INS). Baloch was asked questions about his immigration and work history.

Baloch was read his Miranda rights. He was also questioned about his connections to terrorism.

Baloch was interviewed again by these same two agents on October 11, 2001. On October 14,

2001, Baloch was interviewed at the MDC by agents from the NYPD, FBI and INS. Baloch

signed a statement that was prepared for him stating that he purchased false identification and

passports. On October 29, 2001, Baloch was interviewed by two FBI agents and an NYPD

detective. He was questioned further about his false identification documents. He was read his

Miranda rights. During one of these interrogations, the agents threatened him by telling him

things such as “If you don’t cooperate with us, we will revoke your Canadian citizenship” and

“If you’re not cooperative, we’ll put you in jail for 10 years or deport you back to Pakistan

instead of Canada, where they’ll put you in jail longer than 10 years.”

210.

On about December 21, 2001, having been detained for more than three months

without any prospect for release, Baloch filed a habeas corpus petition through pro bono counsel

in the United States District Court for the Southern District of New York. Less than two weeks

later, on January 3, 2002, Baloch was indicted for illegal re-entry – a charge to which he pled

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guilty on April 2, 2002. Baloch was sentenced to time served. Shortly thereafter, he was

transferred from MDC to the Passaic County Jail.

211.

On information and belief, Defendants Ashcroft, Mueller, and Ziglar rarely seek

indictment of minor immigration violators for the offenses for which Baloch was indicted. On

information and belief, Defendants Ashcroft, Mueller, and Ziglar caused Baloch to be indicted

solely to prolong his detention for the purpose of their investigation into terrorist activity.

212.

On February 7, 2002, Baloch was cleared to be placed in the general population.

213.

On April 2, 2002, the INS took Baloch from Passaic County Jail to Newark

Airport, where they put him on a plane to Toronto, without any personal identification or money.

Since his deportation, Baloch has repeatedly requested return of the personal belongings

confiscated from him during and after his arrest, including his personal identification.

Defendants have, however, refused to comply with these requests.

214.

Baloch was subjected to on-going physical and verbal abuse while housed at the

MDC. On information and belief, COs Michael McCabe, Mario Machado, Michael DeFrancisco,

Kevin Lopez, Jon Osteen, Richard Diaz, and Brian Rodriguez would regularly drag Baloch

forward by his waist chain, causing his ankle shackles to dig in; shove Baloch in the back while

his chin was against the wall; slam Baloch into walls as they were transferring him; twist

Baloch’s hands, thumbs, and fingers; step on the chain connecting his ankle shackles, causing the

ankle shackles to tighten painfully; and lift his arms or elbows painfully while his wrists were

cuffed. On information and belief, Lts. William Beck, Steven Barrere, Howard Gussak and

Marcial Mundo witnessed this treatment and did nothing to stop it.

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215.

On information and belief, Lts. Steven Barrere, Marcial Mundo, and Howard

Gussak handled Baloch very roughly. They would regularly step on Baloch’s leg chains, drag

Baloch while he was shackled, and slam him into walls.

216.

On October 20, 2001, on information and belief, COs Richard Diaz and Mario

Machado deliberately brutalized Baloch. CO Diaz held Baloch’s left elbow, while CO Machado

lifted his handcuffs, holding Baloch in an extremely painful position. On information and belief,

Lt. Beck was present and did nothing to stop the rough handling of Baloch.

217.

Baloch was also subjected to constant verbal harassment by almost all the COs in

the ADMAX SHU. CO Wilson regularly spoke to Baloch about getting revenge for the terrorist

attacks. CO Kevin Lopez would regularly display his middle finger and curse Baloch. Lt. Barrere

told Baloch, “Your lawyers can’t help you out. You’ll stay in here another 20 years.” Similarly,

Lt. Beck told Baloch “People have been here 20 years without seeing a judge.” COs would

regularly refer to Baloch as a “fucking Muslim” and “terrorist.”

218.

At one point while on the first floor, one of the guards had difficulty unlocking his

handcuffs; the guard brought out a large pair of cutters and threatened to cut Baloch’s hands off

to unlock the cuffs.

219.

Baloch requested to speak an attorney shortly after arriving at MDC and

continuously thereafter. However, Baloch was not permitted to speak with an attorney until on

or about November 7, 2001, six weeks into his detention, at which time he placed a call to the

Legal Aid Society. (While in INS custody, Baloch was given extremely limited access to the

telephone. He was denied all telephone access from the date of his arrest until early November

2001.)

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220.

Baloch met with an attorney for the first time on November 19, 2001. This

interview was recorded on video with sound, as were all his subsequent meetings with his

attorneys. Baloch was aware of the video camera in the room, and was very reluctant to speak

candidly with his attorney because he feared the conversation was being recorded.

221.

On information and belief, when officials with the Canadian consulate inquired as

to Baloch’s whereabouts, officials at the MDC denied that Baloch was held there. Baloch did not

meet with a consular official until on or about December 13, 2001.

222.

Baloch continues to suffer the effects of his detention in the United States. He

recently tested positive for tuberculosis for the first time -- a disease that he doubtless contracted

during his incarceration. He is also being treated for severe depression. Because of nightmares

and anxiety, he cannot sleep at night. He is unable to take medication for his tuberculosis since

the medication would exacerbate his depression. His physician has recommended that he not

work for the next six months. Without his Canadian social insurance and health cards, which

were confiscated at the time of his arrest and never returned, he has had difficulty securing the

medical treatment he desperately needs to recover. He and his wife have recently separated, due

to the strains on their marriage brought about by his prolonged detention. Baloch, although

trained as a doctor, is unable to work in Canada since the Canadian Medical Board has found

him unfit to practice until at least October 2004 due to depression.

Plaintiff Ashraf Ali Ibrahim

223.

Ashraf Ibrahim, a citizen of Egypt, entered the United States on January 23, 1992

on a six month visa. A.Ibrahim lived in the United States continuously for ten years without

petitioning for an adjustment of status. On or about August 27, 2001, A.Ibrahim started up a

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bottled-water distribution business in Philadelphia. From September 7 to September 13, 2001,

A.Ibrahim was in Philadelphia with his partner making the new business’s first deliveries.

224.

Early in the morning on September 23, 2001, FBI and INS agents came to the

door of his home and asked him to sign a document consenting to a search of his home, which he

signed without reading. The agents told him that he would not need an attorney. A.Ibrahim was

then interrogated at his home for approximately two hours as to whether he had any involvement

in the attacks of September 11, 2001, and as to his whereabouts on that date. A.Ibrahim

answered the agents’ questions and explained that he had no involvement with the terrorist

attacks of September 11 or any other terrorist activity. A.Ibrahim requested the opportunity to

make a phone call but was refused. These or other government agents confiscated all of the

possessions in his home and over $300 cash.

225.

Later in the morning of September 23, 2001, A.Ibrahim was taken to the Varick

Street INS facility in Manhattan where he was interrogated again, this time for approximately

seven hours. A.Ibrahim was cooperative and made it clear that he had no involvement with

terrorism. A.Ibrahim was not advised of his right to counsel and despite his repeated requests to

make a phone call he was not permitted to do so. On information and belief, INS unreasonably

delayed in providing a Notice to Appear advising A.Ibrahim of the charges against him.

Following this interrogation A.Ibrahim was handcuffed, put in waist and ankle chains, and driven

in a van to MDC.

226.

A.Ibrahim arrived at the MDC in the evening of September 23, 2001. While

A.Ibrahim was still in the transport van in the MDC sally port, a CO from MDC got into the van

and told him, “open your fucking mouth.” The CO pointed a flashlight into A.Ibrahim’s mouth.

Referring to A.Ibrahim, someone then said, “unfasten his seatbelt before you drag him down.”

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A.Ibrahim was then pulled out of the van by two MDC CO Defendants and dragged by his

handcuffed arms to the entrance of the MDC’s R&D Area. These MDC CO Defendants shoved

A.Ibrahim hard against the wall of the building, stunning him and causing him great pain. On

information and belief, the lieutenant in charge of the team of COs that received A.Ibrahim when

he arrived at the MDC was Lt. Gussak. On information and belief, one or more member of the

team forcefully pressed A.Ibrahim’s body against the wall for several minutes. The lieutenant

not only observed his COs physically and verbally abuse A.Ibrahim without making any effort to

stop them, but he encouraged them to act on their aggression by belligerently accusing A.Ibrahim

of complicity in the World Trade Center bombing and by telling him, “If you make any move,

you will hit the floor and you will hit it hard.”

227.

When the CO team took A.Ibrahim for fingerprinting, they gripped him under his

arms and forced him to run at a pace that he could not manage because of his ankle restraints.

The COs standing behind A.Ibrahim kept stepping on his ankle chains, causing him to fall

forward while the COs at his sides held tightly to his armpits. This coordinated physical abuse by

Lt. Gussak’s team was humiliating and painful. Although pain and bruising on his ankles and

arms persisted for about three weeks, A.Ibrahim’s injuries were never treated.

228.

After A.Ibrahim was fingerprinted he was subjected to a strip search by, on

information and belief, Lt. Gussak. After disrobing, A.Ibrahim was ordered to move his fingers

through his pubic hair and lift his genitals. Next, despite lacking reasonable suspicion that

A.Ibrahim might have contraband in his anus following ten hours of continuous supervision

while handcuffed, the lieutenant then ordered A.Ibrahim to bend over and spread his buttocks for a visual inspection. On information and belief, A.Ibrahim was then transported to the 9th floor of

MDC. In the elevator A.Ibrahim was slammed into the wall causing him considerable pain and

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heightening his fear. When A.Ibrahim reached the 9th floor, he was received by a new team of

guards and subjected to another strip search, conducted in the same manner previously described,

despite the fact that it would have been impossible for him to gain access to any contraband

much less store them in his body cavities while he was under continuous supervision and cuffed at the hands and legs. A.Ibrahim was then locked alone in a cell on the 9th floor.

229.

Like most or all of the other MDC Plaintiffs, A.Ibrahim was placed in the

ADMAX SHU arbitrarily and without justification, subjected to a communications blackout,

denied access to counsel and to his consulate, arbitrarily and abusively strip searched, and

subjected to inhumane conditions of confinement including sleep deprivation, constructive denial

of recreational activities and hygienic items, and deprivation of adequate food and medical

attention. Like most or all of the other MDC Plaintiffs, A.Ibrahim was, at all times relevant to

the acts complained of, and remains, a devout Muslim, and the MDC Defendants deliberately

interfered with his religious practice. Like most or all of the other MDC Plaintiffs, A.Ibrahim

was not provided with timely notice of MDC’s complaint procedures and had his personal items

confiscated by MDC Defendants.

230.

A.Ibrahim was subject to a communications blackout for the first twenty-five days

of his detention at the MDC. A.Ibrahim requested permission to make phone calls many times.

He made these requests to all the guards, including CO Chase, Lt. Barrere, and another CO on

Barrere’s team. Nevertheless, he was not permitted to contact family members or a lawyer until

October 17, 2001, despite having had two hearings scheduled before an immigration judge in

that time period.

231.

Even after calls were allowed, on information and belief, Counselor Raymond

Cotton thwarted A.Ibrahim’s attempts to make legal and social calls by purposely dialing wrong

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numbers and by generally making legal calls available at 8:00am or 9:00am, before most

attorneys began work. On other occasions Counselor Cotton would report to A.Ibrahim that the

number he requested was busy and that he would therefore have to try again “next week” or

“next month.”

232.

For the first five months of A.Ibrahim’s detention, he was never allowed to leave

his cell without first being strip-searched. Following the ubiquitous strip searches, A.Ibrahim

was handcuffed, chained and shackled. On information and belief, Lt. Beck would routinely

over-tighten A.Ibrahim’s handcuffs and ankle restraints causing them to dig into his flesh and

inflict pain. During transport to other locations in MDC, A.Ibrahim was subjected to excessively

rough handling. He was pushed or slammed against the wall for “pat-down” searches. On

information and belief, whenever these pat-down searches were conducted by CO Chase, CO

Chase would grasp A.Ibrahim’s genitals and squeeze them until it caused A.Ibrahim acute pain.

This caused A.Ibrahim extreme pain and humiliation.

233.

On or about September 24, 2001, A.Ibrahim was taken from his cell to be

photographed. Before leaving his cell, and at all times that he was taken to any location for the

duration of his confinement, A.Ibrahim was handcuffed behind his back and chained at the

ankles. On information and belief CO Richard Diaz, CO Machado, another lieutenant and two

other guards made up the team that transported A.Ibrahim to be photographed. Despite his

complete cooperation, CO Richard Diaz and, CO Machado, along with a lieutenant and two

other MDC guards, slammed A.Ibrahim’s back into the wall, and held him there tightly while his

photograph was taken.

234.

On or about October 3, 2001, on information and belief, Lt. Barrere and four

officers informed A.Ibrahim that he would be going to court and then strip searched him in his

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cell, despite the fact that he had had no opportunity to obtain any contraband. A.Ibrahim was

then cuffed, chained and shackled. Outside the cell he was roughly slammed into the wall and

had to undergo a pat-down search.

235.

The lieutenant and his team then took A.Ibrahim to the elevator. Inside the

elevator A.Ibrahim was pushed up against the wall. On information and belief, CO Rosebery

told A.Ibrahim to “spread your fucking legs.” Then, on information and belief, CO Rosebery

stepped on the chain in between his ankles while two other officers held him up, causing him

great pain.

236.

A.Ibrahim informed the Immigration Judge Allan Vomacka that he had been

treated violently in the elevator. He also informed Judge Vomacka that he had not been

permitted to make a phone call. On information and belief, Judge Vomacka told one of the jail

staff that A.Ibrahim should be permitted to use the phone.

237.

On information and belief, A.Ibrahim was pushed into the corner of the elevator

on the way back from the immigration court, October 3, 2001. An officer, on information and

belief CO Rosebery, told A.Ibrahim to spread his legs wide and then stepped on his ankle chain,

causing him great pain. A.Ibrahim’s ankles were bruised as a result of the officer standing on his

ankle chain during the elevator rides to and from the immigration court room.

238.

Similar incidents of abuse, where, on information and belief, CO Rosebery or

another officer ordered A.Ibrahim to spread his chained legs and then stepped on the ankle chain,

were perpetrated against A.Ibrahim in the elevator on the way to and from his immigration

hearings of October 11, 2001, October 16, 2001, and October 25, 2001. A.Ibrahim’s ankles were

badly bruised as a result of these incidents.

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239.

On or about October 11, 2001, A.Ibrahim had a scheduled hearing in immigration

court. After he was strip-searched in his cell by Lt. Beck and his team, cuffed, chained and

shackled, an additional pat-down search was conducted during which, on information and belief,

CO Chase intentionally squeezed A.Ibrahim’s genitals, causing A.Ibrahim considerable pain and

humiliation.

240.

The October 11 hearing was scheduled to be a bond hearing for A.Ibrahim, but

the judge was absent. No substitute immigration judge was provided and therefore no

determination about whether A.Ibrahim should be able to post bond could be made.

241.

On or about mid-October, 2001, a CO, on information and belief CO Phillip

Barnes, began a practice of twisting A.Ibrahim’s fingers for no apparent reason while he was

being held face to the wall, and continued to twist A.Ibrahim’s fingers at every opportunity,

causing A.Ibrahim severe pain. Even when there was a video camera running, the officer would

block the camera’s view with A.Ibrahim’s body and then twist A.Ibrahim’s fingers.

242.

Despite A.Ibrahim’s desire not to make any trouble and willingness to comply

with orders by MDC personnel, he was physically abused and verbally harassed by both

Lieutenants and COs in the ADMAX-SHU, especially during the first five months or so of his

detention, causing A.Ibrahim to constantly fear for his safety. On information and belief, Lt.

Beck observed members of his team – over whom he had direct supervision – hurting, insulting

or harassing A.Ibrahim but never stopped them from doing so. The lieutenant himself

inappropriately insulted A.Ibrahim on occasion. On information and belief, Lt. Barrere observed

members of his team – over whom he had direct supervision – hurting, insulting or harassing

A.Ibrahim but never stopped them from doing so. The lieutenant himself made a point of

intimidating and scaring A.Ibrahim while he was confined at MDC. On information and belief,

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CO Michael McCabe was frequently violent and aggressive towards A.Ibrahim. On information

and belief, CO McCabe also shoved A.Ibrahim’s back or pushed A.Ibrahim into walls on some

of the days he was taken to the Immigration Court on the second floor. Despite A.Ibrahim’s

cooperativeness, McCabe shouted at him “Don’t move! Don’t talk!” When assigned to escort A.Ibrahim, CO McCabe would frequently push A.Ibrahim into walls on the 9th floor.

243.

On or about October 16, 2001, A.Ibrahim had a hearing in immigration court.

Because he had not yet been permitted to make a legal phone call, A.Ibrahim had no attorney

present at the hearing.

244.

On or about October 19, 2001, A.Ibrahim was permitted to make his first social

call. He called a friend and asked him for money and help in retaining an attorney.

245.

On or about October 22, 2001, A.Ibrahim was taken to the interrogation room,

where he was aggressively interrogated by a large male agent from INS and two FBI agents who

said their names were Bob and Tony. On information and belief, these agents told him that if he

could not provide any information about September 11 he would stay in jail forever. On

information and belief, the INS agent told A.Ibrahim that his “chance to get out of this jail is

very slim.” A.Ibrahim was interrogated in this manner for about two hours.

246.

On or about October 25, 2001, an attorney (Mr. Al-Shawi) retained for A.Ibrahim

by a friend came to the MDC to represent him at his immigration hearing, which was scheduled

for that day. On information and belief, the officers at the front desk that day told Mr. Al-Shawi

and A.Ibrahim’s friend that there was no one in the MDC named Ashraf Ibrahim. Mr. Al-Shawi

had to leave the MDC without the opportunity to represent A.Ibrahim. Because his attorney was

not present, the Immigration Judge Allan Vomacka rescheduled the hearing for November 6,

2001.

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247.

On or about October 30, 2001, after being strip searched, handcuffed, shackled

and chained, A.Ibrahim was escorted to a visiting room within the SHU range on the 9th floor of

the MDC where he was permitted to meet with Mr. Al-Shawi. They spoke to each other through

a thick glass wall. When A.Ibrahim arrived at the visiting room he noticed a video camera on a

tripod about five feet away, outside the room. A.Ibrahim believed that the video camera was on,

but he was not positive that it would record his conversation with Mr. Al-Shawi.

248.

On or about November 6, 2001, A.Ibrahim had a hearing before the Immigration

Judge with his attorney Mr. Al-Shawi present. At the hearing A.Ibrahim requested bond in order

to collect his belongings, which had been acquired over the ten years that A.Ibrahim had lived in

New York City. On information and belief, Judge Allan Vomacka refused this request and

issued a final order of removal. A.Ibrahim then told the judge that he would pay his own ticket

back to Egypt if it meant he could avoid further detention at the MDC. On information and

belief, in response, Judge Vomacka explained that A.Ibrahim would be deported shortly because

there was a limit to the time he could be detained after a final deportation order.

Notwithstanding this assurance, A.Ibrahim was detained another 143 days in the ADMAX SHU

at MDC.

249.

On or about March 28, 2002 A.Ibrahim was fingerprinted by INS agents and

escorted in handcuffs to JFK airport where he was deported to Egypt. Upon arrival in Egypt,

A.Ibrahim, along with other deported passengers was taken to the Egyptian State Security

Investigation Office, where he was interrogated and detained overnight. The next morning he

was taken to a Cairo jail along with others, where he was detained for another three days.

Finally, A.Ibrahim arrived in Alexandria, but his identification and other papers were

confiscated.

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250.

A.Ibrahim’s experiences severe depression and anxiety resulting from during his

detention which caused him to see a psychiatrist after returning to Egypt.

PASSAIC PLAINTIFFS

251.

Plaintiffs Ibrahim Turkmen and Akhil Sachdeva are collectively referred to herein

as the “Passaic Plaintiffs.”

Plaintiff Ibrahim Turkmen

252.

Ibrahim Turkmen entered the United States through New York City on a tourist

visa in early October, 2000 to visit an old friend from Turkey who lived in Long Island.

253.

In late October 2000, Turkmen, at his friend=s suggestion, found work at a service

station in Bellport, Long Island. He worked there several days a week until mid-January 2001,

when he took a job at another service station in the same town. Turkmen worked at the latter

service station several days a week until mid-April 2001, when he began working part-time for a

locally-based Turkish construction company.

254.

From his arrival in the United States until he was taken into INS custody,

Turkmen frequently called his wife and four daughters back in Turkey. While dearly missing

them, he decided to remain in the United States to provide for their support. Each week,

Turkmen sent most of his meager earnings home to his family.

255.

Turkmen spoke almost no English when he came to the United States. While

here, he learned barely enough English words to conduct his limited daily business. At the time

that he was taken into custody, Turkmen understood very little spoken English, and he could not

read English at all.

256.

At about 2:30 p.m. on October 13, 2001, slightly more than a month after the

September 11 terrorist attacks, two FBI agents visited Turkmen at the apartment where he was

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staying with several Turkish friends in West Babylon, New York. Without advising him of his

right to counsel, they asked Turkmen whether he had any involvement in the September 11

terrorist attacks and whether he had any association with terrorists. They also inquired as to his

immigration status, among other things.

257.

Turkmen had great difficulty understanding the FBI agents’ questions given his

limited knowledge of English and the lack of an interpreter. All the same, he did his best to

answer truthfully. He denied any involvement with terrorists, terrorist organizations, or terrorist

activity. The FBI agents, nonetheless, acccused Turkmen with being an associate of Osama bin

Laden, placed him under arrest, confiscated his personal items (passport, identification, credit

cards, etc.) and money, and searched his home without his consent. On information and belief,

Turkmen was fully interviewed on October 13, 2001 and no information was uncovered to

connect him to the terrorism investigation.

258.

Turkmen was taken to an INS facility in Nassau County, fingerprinted, and

further interrogated, this time by an INS official. Once again, he was not advised of his right to

counsel. Due to his limited knowledge of English and the lack of an interpreter, Turkmen again

had great difficulty understanding the questions. Still, he did his best to answer them truthfully.

Turkmen again denied any involvement with terrorists, terrorist organizations, or terrorist

activity, and requested a hearing before an immigration judge to determine whether he could

remain in the United States. He was held at the Nassau County INS facility for five or six hours.

259.

That evening, at approximately 11:30 p.m., Turkmen was brought to another INS

facility in Manhattan, where INS officials asked him still more questions in English. Despite

great difficulty understanding the questions, and without the aid of an interpreter, Turkmen again

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did his best to answer them truthfully. For the third time, he denied any involvement with

terrorists, terrorist organizations, or terrorist activity.

260.

Turkmen=s interrogators then instructed him to sign certain papers, possibly

waiving his right under Article 36 of the Vienna Convention to speak with his consulate -- papers

which he could not read because they were in English. Afraid that he would only make matters

worse for himself if he refused to comply, Turkmen reluctantly signed the papers.

261.

Early the next morning, October 14, 2001, Turkmen was taken to the Passaic

County Jail in Paterson, New Jersey, where he remained confined, except for a single trip to

Immigration Court in Newark, New Jersey, until February 25, 2002, a period of nearly four and

one-half months.

262.

Shortly after arriving at the Passaic County Jail, Turkmen received a Notice to

Appear from the INS, charging him with overstaying his visa and scheduling a hearing at

Immigration Court in Newark, New Jersey on October 31, 2001. On the same date, he received a

Notice of Custody Determination and requested a re-determination of the custody decision by an

immigration judge.

263.

On October 29, 2001, two FBI agents visited Turkmen at the Passaic County Jail.

They asked him still more questions about his immigration status, his reasons for entering the

United States, his work experience, his religious beliefs, and other personal matters. Another

Turkish post-9/11 detainee fluent in English translated the questions for Turkmen, who answered

them all truthfully. For the fourth time, he denied any involvement with terrorists, terrorist

organizations, or terrorist activities.

264.

Two days later, on October 31, 2001, Turkmen was taken to Immigration Court in

Newark, New Jersey, where he appeared pro se before an immigration judge. Once again, he

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was not advised of his right to counsel. While Turkmen this time was provided with an

interpreter, that interpreter (who was not of Turkish descent) was fluent in neither Turkish nor

English. After conceding that he had overstayed his tourist visa, Turkmen accepted a voluntary

departure order requiring him to leave the United States by November 30, 2001. He declined to

request bond solely because the Judge assured him that he would be allowed to return to Turkey

within a matter of days. The INS never appealed the voluntary departure order issued to

Turkmen.

265.

When he returned to the Passaic County Jail later that day, Turkmen called a

friend to ask him to purchase a plane ticket for Turkmen’s return to Turkey. Two days later, on

November 2, 2001, Turkmen=s friend brought the ticket to the INS=s offices in Newark, New

Jersey. Turkmen remained, nonetheless, in the Passaic County Jail for nearly four more months,

until February 25, 2002, even though the INS could have effectuated his voluntary departure

within a matter of days. On information and belief, the INS prevented his compliance with the

Immigration Judge’s voluntary departure order and thereby caused an automatic entry of an

order of removal with a future bar on reentry for 10 years.

266.

Turkmen was detained for nearly four more months longer than necessary to

effectuate his voluntary departure from the United States solely on the remote possibility that law

enforcement authorities might someday connect him to terrorist activity. He was never,

however, brought before a neutral judicial officer to determine whether there was probable cause

to believe that Turkmen engaged in terrorist activity. Nor was an indictment or information

against Turkmen ever filed with a court citing criminal charges on which his continued detention

was based.

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267.

While confined in the Passaic County Jail, Turkmen was not allowed to call his

wife and four daughters back home in Turkey. He learned through a friend, however, that his

wife had been hospitalized for a month with an undisclosed ailment so serious that she lost most

of her hair and teeth. Upon learning this, Turkmen was beside himself with worry. Unable even

to call his seriously ailing wife, he suffered extreme emotional distress.

268.

While confined in the Passaic County Jail, Turkmen, like other class members

was:

(a) placed in the general prison population, forced to eat meals at the same tables, sleep in the same dormitories, and otherwise commingle with individuals charged with and/or convicted of violent crimes;

(b) deliberately denied the ability to observe the mandatory practices of his religion (for example, by regularly interrupting his daily prayers and refusing to serve him the Halal food);

(c) housed under severely overcrowded conditions (with individuals charged with and/or convicted of crimes); and

(d) threatened by guards with menacing dogs.

269.

Upon his arrival at the Passaic County Jail, Turkmen was given a list of telephone

numbers to call for free legal services. Most of the numbers, however, were incorrect or no

longer valid. For weeks, one of Turkmen=s friends on the outside tried to call those numbers,

with no success. On information and belief, other post-9/11 detainees in the Passaic County Jail

given the same list of telephone numbers to call for free legal services encountered the very same

problem.

270.

While confined in the Passaic County Jail, Turkmen was unaware of his right

under Article 36 of the Vienna Convention to consult with the Turkish Consulate. Had he

known that he had such a right, he could have, and would have, sought immediate assistance

from the Consulate.

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271.

On January 17, 2002, more than three months after he was taken into custody and

more than two and one-half months after he received a voluntary departure order, Turkmen was

visited by an INS agent. The agent informed Turkmen that he had been “cleared” by the FBI but

still needed to be “cleared” by the INS. When Turkmen asked how long the latter “clearance”

might take, the agent replied that he did not know.

272.

One month later, on February 17, 2002, Turkmen was visited by another INS

agent, who told Turkmen that he had received INS “clearance” and would be allowed to depart

the United States within the next two weeks. Eight days later, on February 25, 2002, INS agents

took Turkmen in handcuffs from the Passaic County Jail to Newark Airport, where they put him

on a plane to Istanbul, Turkey -- without a single penny or lira in his pocket. Although Turkmen

requested the return of $52 confiscated from him at the time of his arrest -- money that he needed

to pay for, among other things, the eight-hour bus trip from Istanbul Airport to his home in the

City of Konya -- that request was denied.

273.

As soon as Turkmen debarked from the plane at Istanbul Airport, he was met by a

Turkish police officer, who escorted him to a nearby police station, where he was interrogated

for about an hour concerning his four-and-one-half month detention in the United States. Once

again, Turkmen denied any involvement with terrorists, terrorist organizations, or terrorist

activity. After the interrogation concluded, he was allowed to leave for Konya, though he still

had no money to buy the bus ticket. But for the kindness of a complete stranger who lent him

the necessary funds, Turkmen might still be stranded in Istanbul.

274.

Turkmen was again interrogated at length concerning his detention in the United

States, this time by Konya’s Security Intelligence Division, following the filing of this lawsuit on

April 17, 2002. At the close of the interrogation, the Division’s Superintendent told him to “be

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careful.” Approximately 10 days later, Turkmen’s father was contacted by the Head of

Gendarmerie in Konya’s Karapinar District, Turkmen’s birthplace, to ascertain Turkmen’s

current address, ostensibly to “give to the human rights organizations that are trying to reach

Turkmen.” Several days later, the Head of Gendarmerie in Konya’s Cumra District asked

Turkmen’s former employer for Turkmen’s personnel file. After reviewing the file, that

gendarme took with him all the documents relating to Turkmen’s 16 years of public service.

275.

The presumption of guilt thus follows Turkmen even after his deportation from

the United States, despite the fact that he has never been involved in terrorist activity and the

complete absence of any evidence of his involvement in such activity. Because of this

presumption, Turkmen is deemed a “security risk” and thus unable to return to his prior

government position. After seeking employment for months, Turkmen had to settle for a low-

paying job as a service driver for a factory.

276.

Turkmen continues to suffer the emotional and psychological effects of his four

and one-half months detention in the United States. He regularly experiences nightmares about

his detention, making it difficult for him to sleep.

Plaintiff Akhil Sachdeva

277.

In late September or early October 2001, plaintiff Akhil Sachdeva returned to the

United States from Canada to finalize his divorce from his wife and collect his personal

belongings for his move back to Canada. Sometime in late November 2001, an FBI agent visited

the gas station owned by Sachdeva’s ex-wife in Port Washington, New York, looking for a

Muslim employee. Not finding that individual, the agent left a message for Sachdeva’s ex-wife

to contact the agent. She, in turn, asked Sachdeva to do so.

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278.

In early December 2001, Sachdeva called the FBI agent, who asked Sachdeva to

come to the agent’s offices for an interview. Sachdeva agreed to do so. On December 9, 2001,

Sachdeva met with two FBI agents at 26 Federal Plaza in Manhattan. They proceeded to

question him at length about the September 11 terrorist attacks and his religious beliefs, among

other things, though without advising him of his right to counsel or his right to remain silent. At

the close of the interrogation, the agents examined Sachdeva’s personal identification before

allowing him to leave.

279.

Sachdeva continued to close out his affairs in the United States in anticipation of

his move back to Canada. In the early morning of December 20, 2001, while at his uncle’s

apartment, Sachdeva was arrested by INS agents. He was taken to the INS offices at 26 Federal

Plaza, where he was interrogated for five hours about his ties to the September 11 terrorist

attacks. At the close of the interrogation, INS agents confiscated all of Sachdeva’s personal

identification. He was then taken to Passaic County Jail. On information and belief, on

December 20, 2001 the FBI concluded that it had no further interest in Sachdeva related to the

PENTTBOM investigation.

280.

On December 27, 2001, while confined in Passaic County Jail, Sachdeva received

a Notice to Appear, charging him with illegal re-entry. (He had overstayed a prior voluntary

departure order.) Sachdeva had a hearing on December 31, 2001, in Immigration Court in

Newark, New Jersey. He was not given any extra clothing for the trip, despite the extreme cold.

The Immigration Judge told Sachdeva that he would be deported to Canada or India “within 30

days.” The INS did not appeal that final deportation order. Even though the INS could have

effectuated Sachdeva’s removal from the United States within a matter of days, Sachdeva was

detained for another three and one-half months, until April 17, 2002.

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281.

Sachdeva was detained for nearly three and one-half months longer than

necessary to effectuate his removal from the United States solely on the remote possibility that

law enforcement authorities might someday connect him to terrorist activity. He was never,

however, brought before a neutral judicial officer to determine whether there was probable cause

to believe that Sachdeva engaged in terrorist activity. Nor was an indictment or information

against Sachdeva ever filed with a court citing criminal charges on which his continued detention

was based.

282.

While confined in Passaic County Jail, Sachdeva was subjected to many of the

same unreasonable and excessively harsh conditions as Turkmen. He was housed under

extremely crowded conditions and forced to eat and sleep with individuals charged with and/or

convicted of violent crimes. In mid-February, 2002, a well-built accused felon (being held on

shooting and drug charges) punched Sachdeva several times in the face when Sachdeva did not

hand over a newspaper as quickly as the assailant wanted. The assault loosened his teeth and

caused permanent dental damage. Only approximately a quarter of the detainees Sachdeva was

held with were immigration detainees; the rest were pretrial detainees, many with criminal

histories. He was also threatened by menacing dogs.

283.

While confined in Passaic County Jail, Sachdeva, on four occasions, made written

requests to consult with the Canadian Consulate. All four requests were denied. Sachdeva made

frequent efforts during this time to contact the Canadian Consulate by phone. However, guards

had to place the calls because the Consulate did not accept collect calls, and the guards would

claim that the lines were busy or that there was no answer. He finally managed to get through to

the consulate in mid-March, 2002.

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284.

On April 17, 2002, INS agents took Sachdeva, in old clothes, from Passaic

County Jail to Newark Airport, putting him on a plane to Canada, though without his personal

identification or any money. Prior to his deportation, Sachdeva requested the return of these

items. His requests were, however, denied.

285.

Sachdeva continues to suffer the effects of his detention in the United States long

after his deportation. Upon his return to Canada, Canadian immigration officials suspended his

landed immigrant status, taking away Sachdeva’s work papers. The presumption of guilt thus

continued to attach to Sachdeva after his deportation from the United States, despite the fact that

he has never been engaged in terrorist activity and the complete absence of any evidence that he

has been engaged in such activity.

286.

Although Sachdeva’s Canadian identification card was returned to him,

Defendants have refused to return most of his personal belongings, including two motor vehicles

and furniture confiscated from Sachdeva at the time of his arrest. Sachdeva has repeatedly

requested return of these items.

FIRST CLAIM FOR RELIEF (Fourth Amendment: Seizure)

287.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

288.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

289.

In detaining Plaintiffs and class members months longer than necessary to secure

their removal or voluntary departure from the United States without charging them with any

crime and without affording them a hearing before a neutral judicial officer to determine whether

there was probable cause to justify their continued detention, Defendants, acting under color of

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law and their authority as federal officers, have intentionally or recklessly seized Plaintiffs and

class members in violation of the Fourth Amendment to the United States Constitution.

290.

Plaintiffs and class members have no effective means of enforcing their Fourth

Amendment rights other than by seeking declaratory and other relief from the Court.

291.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

SECOND CLAIM FOR RELIEF (Fifth Amendment: Due Process)

292.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

293.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

294.

In detaining Plaintiffs and class members longer than necessary to secure their

removal or voluntary departure from the United States without any legitimate immigration law

enforcement purpose, and without evidence that they posed a danger or flight risk, Defendants,

acting under color of law and their authority as federal officers, intentionally or recklessly

subjected Plaintiffs and class members to arbitrary and capricious detention, taking their liberty

without due process of law in violation of the Fifth Amendment to the United States

Constitution.

295.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment due process rights other than by seeking declaratory and other relief from the Court.

296.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

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THIRD CLAIM FOR RELIEF (Fifth Amendment: Due Process)

297.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

298.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

299.

By adopting, promulgating, and implementing the policy and practice under

which Plaintiffs and class members were unreasonably detained and subjected to outrageous,

excessive, cruel, inhumane, and degrading conditions of confinement, Defendants, acting under

color of law and their authority as federal officers, have intentionally or recklessly deprived

Plaintiffs and class members of their liberty interests without due process of law in violation of

the Fifth Amendment to the United States Constitution.

300.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment due process rights other than by seeking declaratory and other relief from the Court.

301.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

FOURTH CLAIM FOR RELIEF (Fifth Amendment: Self-Incrimination Clause)

302.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

303.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

304.

By adopting, promulgating, and implementing the policy and practice under

which Plaintiffs and class members were subjected to coercive and involuntary custodial

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interrogation designed to overcome their will and to coerce involuntary and incriminating

statements from them, Defendants, acting under color of law and their authority as federal

officers, have intentionally or recklessly violated the rights of Plaintiffs and the class to due

process of law under the Fifth Amendment to the United States Constitution.

305.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment due process rights other than by seeking declaratory and other relief from the Court.

306.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

FIFTH CLAIM FOR RELIEF (Fifth Amendment: Equal Protection)

307.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

308.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

309.

In detaining Plaintiffs and class members longer than necessary to secure their

removal from the United States and subjecting them to harsh treatment not accorded similarly-

situated non-citizens, Defendants, acting under color of law and their authority as federal

officers, have singled out Plaintiffs and class members based on their race, religion, and/or ethnic

or national origin, and intentionally violated their rights under the Fifth Amendment to the

United States Constitution to equal protection of the law.

310.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment equal protection rights other than by seeking declaratory and other relief from the

Court.

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311.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

SIXTH CLAIM FOR RELIEF (Sixth Amendment: Right to a Speedy Trial)

312.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

313.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

314.

Defendants adopted, promulgated, and implemented policies under which

plaintiffs and class members were arrested and held for extensive periods of time in what is

tantamount to criminal detention without the filing of any indictment, information, or other

formal criminal charge, and were not brought to trial within a reasonable period of time,

resulting in oppressive and lengthy pretrial incarcerations. In doing so, Defendants have

intentionally or recklessly deprived Plaintiffs and class members of their right under the Sixth

Amendment to a speedy trial.

315.

Plaintiffs and class members have no effective means of enforcing their right to

a speedy trial that is guaranteed to them by the Sixth Amendment other than by seeking

declaratory and other relief from the Court.

316.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

SEVENTH CLAIM FOR RELIEF (First Amendment: Free Exercise of Religion)

317.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

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318.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

319.

Defendants have adopted, promulgated, and implemented policies and practices

intended to deny Plaintiffs and class members the ability to practice and observe their religion.

These policies and practices have included, among other things, the visitation of verbal and

physical abuse upon Plaintiffs and class members, and the deliberate denial of all means by

which they could maintain their religious practices, including their observance of Halal food and

daily prayer requirements. By such mistreatment, Defendants, acting under color of law and

their authority as federal officers, have intentionally or recklessly violated Plaintiffs= and class

members= right to free exercise of religion guaranteed to them under the First Amendment to the

United States Constitution.

320.

Plaintiffs and class members have no effective means of enforcing their First

Amendment rights other than by seeking declaratory and other relief from the Court.

321.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

EIGHTH CLAIM FOR RELIEF (Fifth Amendment: Confiscation of Personal Property)

322.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

323.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

324.

Defendants have adopted, promulgated, and implemented a policy and practice of

deliberately depriving Plaintiffs and class members of their personal property without providing

them with a remedy to recover that property. Defendants have refused to return to Plaintiffs and

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class members, at the time of their removal or voluntary departure from the United States, the

personal identification, money, and other valuable personal items that Defendants confiscated

from Plaintiffs and class members upon arrest. In doing so, Defendants, acting under color of

law and their authority as federal officers, have intentionally violated Plaintiffs= and class

members= right to due process of law under the Fifth Amendment to the United States

Constitution.

325.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment rights other than by seeking declaratory and other relief from the Court.

326.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

NINTH CLAIM FOR RELIEF (Customary International Law: Arbitrary Detention)

327.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

328.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

329.

The acts described herein constitute arbitrary detention of Plaintiffs and class

members in violation of the law of nations under the Alien Tort Claims Act, 28 U.S.C. ' 1350, in

that the acts violated customary international law prohibiting arbitrary detention as reflected,

expressed, and defined in multilateral treaties and other international instruments, international

and domestic judicial decisions, and other authorities.

330.

Defendants are liable for said conduct in that they, acting under color of law and

their authority as federal officers, have directed, ordered, confirmed, ratified, and/or conspired in

bringing about the arbitrary detention of Plaintiffs and class members.

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331.

As a result of Defendants’ unlawful conduct, Plaintiffs and class members were

deprived of their freedom, separated from their families and forced to suffer severe physical and

mental abuse, and are entitled to monetary damages.

TENTH CLAIM FOR RELIEF (Customary International Law: Cruel, Inhuman, or Degrading Treatment)

332.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

333.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

334.

The acts described herein had the intent and the effect of grossly humiliating and

debasing the Plaintiffs and class members, forcing them to act against their will and conscience,

inciting fear and anguish, and breaking their physical and/or moral resistance.

335.

The acts described herein constitute cruel, inhuman or degrading treatment in

violation of the law of nations under the Alien Tort Claims Act, 28 U.S.C. ' 1350, in that the acts

violated customary international law prohibiting cruel, inhuman, or degrading treatment as

reflected, expressed, and defined in multilateral treaties and other international instruments,

international and domestic judicial decisions, and other authorities.

336.

Defendants are liable for said conduct in that Defendants, acting under color of

law and their authority as federal officers, directed, ordered, confirmed, ratified, and/or conspired

to cause the cruel, inhuman or degrading treatment of Plaintiffs and class members.

337.

All Plaintiffs and class members were forced to suffer severe physical and

psychological abuse and agony and are entitled to monetary damages.

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ELEVENTH CLAIM FOR RELIEF (Vienna Convention on Consular Relations: Consular Notification)

338.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

339.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

340.

Plaintiffs and class members were not notified by arresting authorities of their

right to communicate with consular officials as required by the Vienna Convention on Consular

Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77, Art. 36.

341.

When Plaintiffs Saffi and Sachdeva requested to speak with officials from their

respective consulates, Defendants further violated their Vienna Convention rights by failing to

respond to their requests without delay and notify the consular posts of their detention. Vienna

Convention, Art. 36(1).

342.

Violations of the right to consular access are direct treaty violations, as specified

above, and are also violations of customary international law.

343.

As result of Defendants= unlawful conduct, Plaintiffs and class members are

entitled to monetary damages.

TWELFTH CLAIM FOR RELIEF (Excessive Force - SAFFI)

344.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

345.

Plaintiff Saffi brings this claim on his own behalf against the MDC Correctional

Officer Defendants and MDC Supervisor Defendants.

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346.

The intentional beatings of Plaintiff Saffi by said Defendants when Plaintiff was

unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others, and

when Defendants had no lawful authority to use deadly or non-deadly force against him, was

without justification or provocation, was excessive, and was done with actual malice toward

Plaintiff and with willful and wanton indifference to and deliberate disregard for the

constitutional rights of Plaintiff.

347.

The intentional beatings of Plaintiff Saffi by said Defendants violated Plaintiff’s

rights as guaranteed by the Fourth and Fifth Amendments to the United States Constitution, for

which such officers are individually liable.

348.

As a proximate result of the beatings by said Defendants, Plaintiff Saffi has

sustained permanent injuries and incurred medical bills and other expenses. These injuries have

caused and will continue to cause him great pain and suffering, both mental and physical.

349.

As a result of the unlawful conduct of said Defendants, Plaintiff Saffi is entitled to

monetary damages.

THIRTEENTH CLAIM FOR RELIEF (Excessive Force - JAFFRI)

350.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

351.

Plaintiff Jaffri brings this claim on his own behalf against the MDC Correctional

Officer Defendants and MDC Supervisor Defendants. .

352.

The intentional beatings of Plaintiff Jaffri by said Defendants when Plaintiff was

unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others, and

when Defendants had no lawful authority to use deadly or non-deadly force against him, was

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without justification or provocation, was excessive, and was done with actual malice toward

Plaintiff and with willful and wanton indifference to and deliberate disregard for the

constitutional rights of Plaintiff.

353.

The intentional beatings of Plaintiff Jaffri by said Defendants violated Plaintiff’s

rights as guaranteed by the Fourth and Fifth Amendments to the United States Constitution, for

which such officers are individually liable.

354.

As a proximate result of the beatings by said Defendants, Plaintiff Jaffri has

sustained permanent injuries and incurred medical bills and other expenses. These injuries have

caused and will continue to cause him great pain and suffering, both mental and physical.

355.

As a result of the unlawful conduct of said Defendants, Plaintiff Jaffri is entitled

to monetary damages.

FOURTEENTH CLAIM FOR RELIEF (Excessive Force -EBRAHIM)

356.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

357.

Plaintiff Ebrahim brings this claim on his own behalf against the MDC

Correctional Officer Defendants and MDC Supervisor Defendants.

358.

The intentional beatings of Plaintiff Ebrahim by said Defendants when Plaintiff

was unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others,

and when Defendants had no lawful authority to use deadly or non-deadly force against him, was

without justification or provocation, was excessive, and was done with actual malice toward

Plaintiff and with willful and wanton indifference to and deliberate disregard for the

constitutional rights of Plaintiff.

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359.

The intentional beatings of Plaintiff Ebrahim by said Defendants violated

Plaintiff’s rights as guaranteed by the Fourth and Fifth Amendments to the United States

Constitution, for which such officers are individually liable.

360.

As a proximate result of the beatings by said Defendants, Plaintiff Ebrahim has

sustained permanent injuries and incurred medical bills and other expenses. These injuries have

caused and will continue to cause him great pain and suffering, both mental and physical.

361.

As a result of the unlawful conduct of said Defendants, Plaintiff Ebrihim is

entitled to monetary damages.

FIFTEENTH CLAIM FOR RELIEF (Excessive Force – HANY IBRAHIM)

362.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

363.

Plaintiff Hany Ibrahim brings this claim on his own behalf against the MDC

Correctional Officer Defendants and MDC Supervisor Defendants.

364.

The intentional beatings of Plaintiff H. Ibrahim by said Defendants when Plaintiff

was unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others,

and when Defendants had no lawful authority to use deadly or non-deadly force against him, was

without justification or provocation, was excessive, and was done with actual malice toward

Plaintiff and with willful and wanton indifference to and deliberate disregard for the

constitutional rights of Plaintiff.

365.

The intentional beatings of Plaintiff H. Ibrahim by said Defendants violated

Plaintiff’s rights as guaranteed by the Fourth and Fifth Amendments to the United States

Constitution, for which such officers are individually liable.

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366.

As a proximate result of the beatings by said Defendants, Plaintiff H. Ibrahim has

sustained permanent injuries and incurred medical bills and other expenses. These injuries have

caused and will continue to cause him great pain and suffering, both mental and physical.

367.

As a result of the unlawful conduct of said Defendants, Plaintiff H. Ibrahim is

entitled to monetary damages.

SIXTEENTH CLAIM FOR RELIEF (Excessive Force – BALOCH)

368.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

369.

Plaintiff Baloch brings this claim on his own behalf against the MDC Correctional

Officer Defendants and MDC Supervisor Defendants.

370.

The intentional beatings of Plaintiff Baloch by said Defendants when Plaintiff

was unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others,

and when Defendants had no lawful authority to use deadly or non-deadly force against him, was

without justification or provocation, was excessive, and was done with actual malice toward

Plaintiff and with willful and wanton indifference to and deliberate disregard for the

constitutional rights of Plaintiff.

371.

The intentional beatings of Plaintiff Baloch by said Defendants violated Plaintiff’s

rights as guaranteed by the Fourth and Fifth Amendments to the United States Constitution, for

which such officers are individually liable.

372.

As a proximate result of the beatings by said Defendants, Plaintiff Baloch has

sustained permanent injuries and incurred medical bills and other expenses. These injuries have

caused and will continue to cause him great pain and suffering, both mental and physical.

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373.

As a result of the unlawful conduct of said Defendants, Plaintiff Baloch is entitled

to monetary damages.

SEVENTEENTH CLAIM FOR RELIEF (Delays in Serving Charging Documents - Fifth Amendment: Due Process)

374.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

375.

Plaintiffs Ebrahim, H. Ibrahim, Sachdeva, Jaffri, and A. Ibrahim bring this claim

on their own behalf and on behalf of the class against all Defendants.

376.

In delaying the issuance and service of charging documents (known as Notices to

Appear) on the post-9/11 detainees, Defendants have impaired the ability of the detainees to

know the charges on which they are being held, obtain legal counsel, and seek release on bond.

Further, Defendants, acting under color of law and their authority as federal officers, have

intentionally or recklessly deprived Plaintiffs and class members of their due process rights

under the Fifth Amendment to the United States Constitution.

377.

Plaintiffs Ebrahim, H. Ibrahim, Sachdeva, Jaffri, and A. Ibrahim and class

members have no effective means of enforcing their Fifth Amendment rights other than by

seeking declaratory and other relief from the Court.

378.

As a result of Defendants= unlawful conduct, Plaintiffs Ebrahim, H. Ibrahim,

Sachdeva, Jaffri, and A. Ibrahim and class members have suffered emotional distress,

humiliation, embarrassment, and monetary damages.

EIGHTEENTH CLAIM FOR RELIEF (Blanket No Bond Policy – Fifth Amendment: Due Process)

379.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

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380.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

381.

Defendants applied a blanket no bond policy to all post-9/11 detainees without

regard to whether the detainee posed a flight risk or a danger and thereby deprived Plaintiffs and

other class members of their right under the Fifth Amendment’s Due Process Clause not to be

detained arbitrarily in the absence of any finding or evidence that they posed a danger or flight

risk.

382.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment rights other than by seeking declaratory and other relief from the Court.

383.

As a result of Defendants= unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

NINTEENTH CLAIM FOR RELIEF (Blanket No Bond Policy – Fifth Amendment: Equal Protection)

384.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

385.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

386.

Defendants applied a blanket no bond policy to all post-9/11 detainees without

regard to whether the detainee posed a flight risk or a danger. Defendants arrested and denied

bond to “of high interest” detainees on little or no evidence of terrorist connections but instead

due to their ethnic or religious identity in violation of their right to equal protection of the laws

under the Fifth Amendment’s Due Process Clause. Thus, Defendants intentionally or recklessly

violated rights guaranteed to Plaintiffs and class members by the Fifth Amendment to the United

States Constitution.

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387.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment rights other than by seeking declaratory and other relief from the Court.

388.

As a result of Defendants= unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTIETH CLAIM FOR RELIEF (Assignment to SHU – Fifth Amendment: Due Process)

389.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

390.

Plaintiffs Jaffri, Ebrahim, H. Ibrahim, Baloch, Saffi, and A. Ibrahim bring this

claim on their own behalf and on behalf of the class against all Defendants.

391.

By adopting, promulgating, and implementing the policy and practice under

which Plaintiffs Jaffri, Ebrahim, H. Ibrahim, Baloch, Saffi, and A. Ibrahim and class members

were classified as “of high interest,” “Witness Security,” and/or “Management Interest Group

155” detainees in an arbitrary and unreasonable manner, without any defined criteria,

individualized assessment of dangerousness or risk of flight, contemporaneous review, or

process of any sort, and by which classifications Plaintiffs experienced unnecessary and

unreasonable restrictions on their liberty, Defendants, acting under color of law and their

authority as federal officers, have intentionally or recklessly violated the rights of Plaintiffs and

the class to procedural due process of law under the Fifth Amendment to the United States

Constitution.

392.

Plaintiffs Jaffri, Ebrahim, H. Ibrahim, Baloch, Saffi, and A. Ibrahim and class

members have no effective means of enforcing their Fifth Amendment rights other than by

seeking declaratory and other relief from the Court.

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393.

As a result of Defendants= unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTY-FIRST CLAIM FOR RELIEF (Communications Blackout and Interference with Counsel
– First Amendment)

394.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

395.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

396.

By adopting, promulgating, and implementing the policy and practice under

which Plaintiffs and class members were subjected to a “communications blackout” and other

measures while in detention that interfered with their access to lawyers and the courts,

Defendants intentionally or recklessly violated Plaintiffs’ rights to obtain access to legal counsel

and to petition the courts for redress of their grievances, in violation of their rights under the First

Amendment of the United States Constitution.

397.

Plaintiffs and class members have no effective means of enforcing their First

Amendment rights other than by seeking declaratory and other relief from the Court.

398.

As a result of Defendants= unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTY-SECOND CLAIM FOR RELIEF (Communications Blackout and Interference with Counsel
– Fifth Amendment: Due Process)

399.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

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400.

Plaintiffs bring this claim on their own behalf and on behalf of the class against

all Defendants.

401.

By adopting, promulgating, and implementing the policy and practice under

which Plaintiffs and class members were subjected to a “communications blackout” and other

measures while in INS detention that interfered with their access to lawyers and the courts,

Defendants intentionally or recklessly violated Plaintiffs’ rights to obtain access to legal counsel

and to petition the courts for redress of their grievances, in violation of their rights under the Due

Process Clause of the Fifth Amendment to the United States Constitution.

402.

Plaintiffs and class members have no effective means of enforcing their Fifth

Amendment rights other than by seeking declaratory and other relief from the Court.

403.

As a result of Defendants= unlawful conduct, Plaintiffs and class members have

suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTY-THIRD CLAIM FOR RELIEF (Excessive, Unreasonable, and Deliberately Humiliating and Punitive Strip Searches –
Fourth and Fifth Amendments)

404.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

405.

The MDC Plaintiffs bring this claim on their own behalf and on behalf of the

MDC class against all Policy and Implementation Defendants, MDC Correctional Officer

Defendants and MDC Supervisor Defendants.

406.

By subjecting MDC Plaintiffs and class members to excessive and unreasonable

strip searches with no rational relation to a legitimate penological purpose when Defendants had

no reasonable suspicion or rational reason to justify a strip search, and conducting the searches in

a deliberately humiliating manner that was not reasonably related to any legitimate penological

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purpose, MDC Correctional Officer Defendants and MDC Supervisor Defendants intentionally

or recklessly violated MDC Plaintiffs’ and class members’ rights to privacy and to be free from

unreasonable searches, in violation of their rights under the Fourth Amendment to the United

States Constitution

407.

MDC Supervisor Defendants were grossly negligent and/or deliberately

indifferent in their supervision of MDC Correctional Officer Defendants and MDC Supervisor

Defendants who subjected MDC Plaintiffs and class members to these excessive and

unreasonable strip searches and thereby violated MDC Plaintiffs’ and the plaintiff class’s rights

under the Fourth Amendment to the United States Constitution.

408.

By adopting, promulgating, and implementing the policy and practice under

which MDC Plaintiffs and class members were subjected to these excessive and unreasonable

strip searches the MDC Policy and Implementation Defendants intentionally or recklessly

violated MDC Plaintiffs’ and class members’ rights to privacy and to be free from unreasonable

searches, in violation of their rights under the Fourth Amendment to the United States

Constitution.

409.

By subjecting MDC Plaintiffs and class members to strip searches so devoid of

rational relation to any legitimate penological purpose that the searches’ only possible purpose

was punitive, abusive MDC Correctional Officer Defendants and MDC Supervisor Defendants

intentionally or recklessly violated MDC Plaintiffs’ and class members’ rights to be free from

punishment under the Due Process Clause of the Fifth Amendment to the United States

Constitution

410.

MDC Supervisor Defendants were grossly negligent and/or deliberately

indifferent in their supervision of abusive MDC Correctional Officer Defendants and MDC

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Supervisor Defendants who subjected MDC Plaintiffs and class members to these punitive strip

searches and thereby violated MDC Plaintiffs’ and the plaintiff class’s right to be free from

punishment under the Due Process Clause of the Fifth Amendment to the United States

Constitution.

411.

By adopting, promulgating, and implementing the policy and practice under

which MDC Plaintiffs and class members were subjected to these punitive strip searches Policy

and Implementation Defendants intentionally or recklessly violated MDC Plaintiffs’ and class

members’ right to be free from punishment under the Due Process Clause of the Fifth

Amendment to the United States Constitution

412.

MDC Plaintiffs and class members have no effective means of enforcing their

Fourth and Fifth Amendment rights other than by seeking declaratory and other relief from the

Court.

413.

As a result of Defendants’ unlawful conduct, MDC Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTY-FOURTH CLAIM FOR RELIEF (FTCA: False Imprisonment of the Named MDC Plaintiffs)

414.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

415.

In detaining the Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, and A.

Ibrahim months longer than necessary to secure their removal or voluntary departure from the

United States without probable cause to suspect them of any crime, the MDC Defendants, acting

within the scope of their employment as federal law enforcement officers, have intentionally,

without consent or privilege, completely confined said Plaintiffs so as to constitute false

imprisonment under the laws of the states where the relevant acts took place.

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416.

Pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2675(a), the claims set

forth herein were timely presented by said Plaintiffs to the Department of Homeland Security,

the Federal Bureau of Investigation, and the Federal Bureau of Prisons in September 2003 and

should be deemed denied by virtue of agency inaction.

417.

As a result of the MDC Defendants’ unlawful conduct, said Plaintiffs have

suffered loss of liberty, emotional distress, humiliation, and embarrassment, and are entitled to

monetary damages.

TWENTY-FIFTH CLAIM FOR RELIEF (FTCA: Negligence – Delay of Clearance of the Named Plaintiffs)

418.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

419.

In allowing the clearance investigations to linger for months rather than the

mandated days due to failure to timely act and follow up on leads, misplaced files, poor

communication, disorganization, and other forms of negligence, Defendants, acting under color

of law and their authority as federal officers, have breached their duty of swift dispatch toward

Plaintiffs Turkmen, Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, Sachdeva, and A. Ibrahim who,

though they had committed no crime, depended for their liberty on the efficiency and diligence

of the government officers investigating their cases. Defendants’ acts and omissions constitute

negligence under the laws of the states where the relevant acts took place.

420.

Pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2675(a), the claims set

forth herein were timely presented by said Plaintiffs to the Department of Homeland Security,

the Federal Bureau of Investigation, and the Federal Bureau of Prisons in September 2003 and

should be deemed denied by virtue of agency inaction.

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421.

As a result of the Defendants’ unlawful conduct, said Plaintiffs have suffered

loss of liberty, emotional distress, humiliation, and embarrassment, and are entitled to monetary

damages.

TWENTY-SIXTH CLAIM FOR RELIEF (FTCA: Negligence – Denial of Medical Services to Named MDC Plaintiffs)

422.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

423.

In refusing to provide Plaintiffs Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, Saffi,

and A. Ibrahim with medical services necessary for their health and well-being, the MDC

Defendants, acting under color of law and their authority as federal officers, have breached their

duty under 18 U.S.C. § 4042(a)(2) to take ordinary diligence or reasonable care to keep said

Plaintiffs safe and free from harm, so as to constitute negligence under the laws of the states

where the relevant acts took place.

424.

Pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2675(a), the claims set

forth herein were timely presented by said Plaintiffs to the Department of Homeland Security,

the Federal Bureau of Investigation, and the Federal Bureau of Prisons in September 2003 and

should be deemed denied by virtue of agency inaction.

425.

As a result of the MDC Defendants’ unlawful conduct, said Plaintiffs have

suffered loss of liberty, emotional distress, humiliation, and embarrassment, and are entitled to

monetary damages.

TWENTY-SEVENTH CLAIM FOR RELIEF (FTCA: Assault and Battery – Physical Abuse of the Named MDC Plaintiffs)

426.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

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427.

In striking, shoving, or holding Plaintiffs Jaffri, Ebrahim, H. Ibrahim, Baloch,

Saffi, and A. Ibrahim without consent, at a time when they were not resistant, disruptive, or

recalcitrant, and without a history of such conduct by them, MDC Defendants intentionally

caused harmful and offensive contact with said Plaintiffs and did so without justification or

service to a legitimate penological goal, so as to constitute battery under the laws of the states

where the relevant acts took place.

428.

In committing the abovementioned batteries upon said Plaintiffs in such a manner

that they were aware of the impending batteries, MDC Defendants put said Plaintiffs into a state

of fear and apprehension of imminent harmful or offensive contact, and did so without

justification or service to a legitimate penological goal, so as to constitute assault under the laws

of the places where Plaintiffs were detained and confined.

429.

Pursuant to 28 U.S.C. § 2675(a), the claims set forth herein were timely presented

by said Plaintiffs to the Department of Homeland Security, the Federal Bureau of Investigation,

and the Federal Bureau of Prisons in September 2003 and should be deemed denied by virtue of

agency inaction.

430.

As a result of the MDC Defendants’ unlawful conduct, said Plaintiffs have

suffered loss of liberty, emotional distress, humiliation, and embarrassment, and are entitled to

monetary damages.

TWENTY-EIGHTH CLAIM FOR RELIEF (FTCA: Battery – Sleep Deprivation - Named MDC Plaintiffs)

431.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

432.

In subjecting the Plaintiffs Jaffri, Ebrahim, H. Ibrahim, Baloch, Saffi, and A.

Ibrahim to bright lights and loud noises for the purpose of interrupting their sleep, MDC

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Defendants intentionally caused light and noise to harmfully contact them, causing sleep

deprivation without justification or service to a legitimate penological goal, so as to constitute

battery under the laws of the states where the relevant acts took place.

433.

Pursuant to 28 U.S.C. § 2675(a), the claims set forth herein were timely presented

by said Plaintiffs to the Department of Homeland Security, the Federal Bureau of Investigation,

and the Federal Bureau of Prisons in September 2003 and should be deemed denied by virtue of

agency inaction.

434.

As a result of the MDC Defendants’ unlawful conduct, said Plaintiffs have

suffered emotional distress, humiliation, and embarrassment, and are entitled to monetary

damages.

TWENTY-NINTH CLAIM FOR RELIEF (FTCA: Intentional Infliction of Emotional Distress on the Named Plaintiffs)

435.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

436.

From the time of their arrest to the time of their release from detention, the MDC

Defendants intentionally engaged in a sustained and relentless campaign to inflict emotional

distress on Plaintiffs Turkmen, Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, Sachdeva, and A.

Ibrahim that included, but was not limited to, outrageous and unfounded accusations of being

terrorists and mass murderers, gratuitous and humiliating insults to the named Plaintiffs’

ethnicity, religion, and physical anatomy, threats of prolonged and permanent detention, torture,

and death, inhumane conditions of confinement, and interference with religious practice.

437.

Defendants, without legitimate penological purpose, caused the Plaintiffs to

suffer severe, substantial, and lasting emotional distress so as to constitute the tort of intentional

infliction of emotional distress under the laws of the states where the relevant acts took place.

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438.

Defendants’ conduct was all the more outrageous in that it abused correctional

officers’ position of power over the Plaintiffs and their interests and took advantage of what

Defendants knew to be the Plaintiffs’ vulnerable emotional state caused by the violence and

disorientation of detention.

439.

Pursuant to 28 U.S.C. § 2675(a), the claims set forth herein were timely presented

by said Plaintiffs to the Department of Homeland Security, the Federal Bureau of Investigation,

and the Federal Bureau of Prisons in September 2003 and should be deemed denied by virtue of

agency inaction.

440.

As a result of the Defendants’ unlawful conduct, said Plaintiffs have suffered

emotional distress, humiliation, and embarrassment, and are entitled to monetary damages.

THIRTIETH CLAIM FOR RELIEF (FTCA: Conversion - Named Plaintiffs)

441.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

442.

In refusing to return the possessions of Plaintiffs Turkmen, Saffi, Jaffri, Ebrahim,

H. Ibrahim, Baloch, Sachdeva, and A. Ibrahim after they were released from jail, Defendants

intentionally deprived them completely and forever of all rights and use of those possessions so

as to constitute the tort of conversion under the laws of the states where the relevant acts took

place.

443.

Pursuant to 28 U.S.C. § 2675(a), the claims set forth herein were timely presented

by said Plaintiffs to the Department of Homeland Security, the Federal Bureau of Investigation,

and the Federal Bureau of Prisons in September 2003 and should be deemed denied by virtue of

agency inaction.

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444.

As a result of the Defendants’ unlawful conduct, said Plaintiffs have suffered

property loss, emotional distress, humiliation, and embarrassment, and are entitled to monetary

damages.

THIRTY-FIRST CLAIM FOR RELIEF (Excessive Force –ASHRAF IBRAHIM)

445.

Plaintiffs incorporate by reference each and every allegation contained in the

preceding paragraphs as if set forth fully herein.

446.

Plaintiff A. Ibrahim brings this claim on his own behalf against the MDC

Correctional Officer Defendants and MDC Supervisor Defendants.

447.

The intentional beatings of Plaintiff A. Ibrahim by said Defendants when Plaintiff

was unarmed and did not pose a threat of death or grievous bodily injury to Defendants or others,

and when Defendants had no lawful authority to use deadly or non-deadly force against him, was

without justification or provocation, was excessive, and was done with actual malice toward

Plaintiff and with willful and wanton indifference to and deliberate disregard for the

constitutional rights of Plaintiff.

448.

The intentional beatings of Plaintiff A. Ibrahim by said Defendants violated

Plaintiff’s rights as guaranteed by the Fourth and Fifth Amendments to the United States

Constitution, for which such officers are individually liable.

449.

As a proximate result of the beatings by said Defendants, Plaintiff A. Ibrahim has

sustained permanent injuries and incurred medical bills and other expenses. These injuries have

caused and will continue to cause him great pain and suffering, both mental and physical.

450.

As a result of the unlawful conduct of said Defendants, Plaintiff A. Ibrahim is

entitled to monetary damages.

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs and class members respectfully request that the Court enter a class-wide judgment: 1. Certifying this suit as a class action; 2. Declaring that Defendants= actions, practices, customs, and policies, and those of all persons acting on their behalf and/or their agents and/or employees, alleged herein, were illegal and violate the constitutional rights of Plaintiffs and class members as to each applicable count; 3. Declaring that each individual Plaintiff’s detention was unjustified, unconstitutional, unlawful, and without probable cause to believe that he had any involvement in the September 11 terrorist attacks or other terrorist activity; 4. Enjoining Defendants to return immediately to Plaintiffs and class members all personal identification, money and valuable personal items confiscated from them; 5. Awarding compensatory and punitive damages to Plaintiffs and class members for the constitutional and customary international law violations they suffered in an amount that is fair, just, reasonable, and in conformity with the evidence; 6. Appointing a neutral Special Master to assist in fashioning remedies and to monitor the implementation of those remedies; 7. Ordering such further relief as necessary to ensure that Defendants operate the MDC and Passaic facilities in compliance with the United States Constitution and customary international law; 8. Awarding compensatory and other damages to Plaintiffs Turkmen, Saffi, Jaffri, Ebrahim, H. Ibrahim, Baloch, Sachdeva, A. Ibrahim based on their claims under the FTCA; and 9. Ordering such further relief as the Court considers just and proper.
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Case 1:02-cv-02307-JG-SMG Document 109 Filed 09/13/2004 Page 119 of 170
435 West 116th Street, Box C-16 New York, New York 10027 Paul Hoffman SCHONBRUN, DE SIMONE, SEPLOW, HARRIS & HOFFMAN, LLP 723 Ocean Front Walk Venice, California 90201 Tel.: (310) 396-0731 Martin Stolar (MS 1576) 351 Broadway Ave. New York, New York 10013 Tel.: (212) 219-1919 Claudia Slovinsky LAW OFFICES OF CLAUDIA SLOVINSKY 396 Broadway, Suite 601 New York, New York 10013
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 Case 1:04-cv-01809-JG-SMG Document 35 Filed 09/30/2004 Page 1 of 54

URBAN JUSTICE CENTER Haeyoung Yoon (HY-8962) 666 Broadway, 10th Floor New York, New York 10012 (646) 459-3003
-and-
KOOB & MAGOOLAGHAN Alexander A. Reinert (AR-1740) 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------------------- X

:

EHAB ELMAGHRABY and JAVAID IQBAL,

:

:

Plaintiffs,

:

:

-against-

:

:

JOHN ASHCROFT, Attorney General of the United

:

States; ROBERT MUELLER, Director of the Federal

:

Bureau of Investigation; MICHAEL ROLINCE, Former :

Chief of the Federal Bureau of Investigation’s

:

International Terrorism Operations Section,

:

Counterterrorism Division; KENNETH MAXWELL,

:

Former Assistant Special Agent in Charge, New York :

Field Office, Federal Bureau of Investigation;

:

KATHLEEN HAWK SAWYER, former Director of the :

Federal Bureau of Prisons; DAVID RARDIN, Former :

Director of the Northeast Region of the Bureau of

:

Prisons; MICHAEL COOKSEY, Former Assistant

:

Director for Correctional Programs of the Bureau of

:

Prisons; DENNIS HASTY, former Warden of the

:

Metropolitan Detention Center; MICHAEL ZENK,

:

Warden of the Metropolitan Detention Center; LINDA :

THOMAS, former Associate Warden of Programs of the :

Metropolitan Detention Center; ASSOCIATE WARDEN :

SHERMAN, Associate Warden of Custody for the

:

Metropolitan Detention Center; CAPTAIN

:

SALVATORE LOPRESTI; LIEUTENANT STEVEN

BARRERE; LIEUTENANT WILLIAM BECK;

04 CV 1809 (JG)(JA)
FIRST AMENDED COMPLAINT AND JURY DEMAND

Case 1:04-cv-01809-JG-SMG Document 35 Filed 09/30/2004 Page 2 of 54
LIEUTENANT LINDSEY BLEDSOE; LIEUTENANT JOSEPH CUCITI; LIEUTENANT THOMAS CUSH; LIEUTENANT HOWARD GUSSAK; LIEUTENANT MARCIAL MUNDO; LIEUTENANT DANIEL ORTIZ; LIEUTENANT ELIZABETH TORRES; CORRECTIONS OFFICER REYNALDO ALAMO; CORRECTIONS OFFICER SYDNEY CHASE; CORRECTIONS OFFICER JAMES CLARDY; CORRECTIONS OFFICER RAYMOND COTTON; CORRECTIONS OFFICER MICHAEL DEFRANCISCO; CORRECTIONS OFFICER RICHARD DIAZ; CORRECTIONS OFFICER JAI JAIKISSON; CORRECTIONS OFFICER DEXTER MOORE; CORRECTIONS OFFICER JON OSTEEN; CORRECTIONS OFFICER ANGEL PEREZ; CORRECTIONS OFFICER SCOTT ROSEBERRY; UNIT MANAGER CLEMMETT SHACKS; NORA LORENZO, Physician’s Assistant; “JOHN DOE” CORRECTIONS OFFICERS NOS. 1-19, “John Doe” being fictional first and last names; and the UNITED STATES OF AMERICA.
Defendants. ----------------------------------------------------------------------------------- X
Plaintiffs EHAB ELMAGHRABY and JAVAID IQBAL, by their attorneys, the Urban
Justice Center and Koob & Magoolaghan, allege upon knowledge as to themselves and upon
information and belief as to all other matters as follows:
NATURE OF ACTION
1. This is an action brought by Plaintiffs EHAB ELMAGHRABY and JAVAID IQBAL
to remedy the brutal mistreatment and discrimination each Plaintiff suffered while in the care,
custody, and control of Defendants. Plaintiffs ELMAGHRABY and IQBAL are Muslim men
from Egypt and Pakistan, respectively. In the months after September 11, 2001, Plaintiffs were
detained at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York. Plaintiffs were
arbitrarily classified as being “of high interest” to the government’s terrorism investigation after
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September 11th, and accordingly were housed in the MDC’s Administrative Maximum (“ADMAX”) Special Housing Unit (“SHU”).
2. While in the ADMAX SHU, Plaintiffs were subjected to a pattern and practice of cruel, inhuman, and degrading treatment in violation of the First, Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution, federal statutory law, and customary international law. Among other things, they were deliberately and cruelly subjected to numerous instances of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extended detention in solitary confinement, the denial of adequate exercise, and deliberate interference with their rights to counsel and to exercise of their sincere religious beliefs. They were placed in tiny cells for more than 23 hours per day, and strip-searched, manacled and shackled when removed from their cells. Plaintiffs were housed in the ADMAX SHU in the absence of adequate standards or procedures for determining that such a classification was appropriate, or that the classification should continue, in violation of the Fifth Amendment to the United States Constitution.
3. Plaintiffs were singled out for such mistreatment because of their race, national origin, and religion. Defendants, by creating, participating in, and endorsing Plaintiffs’ systematic mistreatment, violated the principles enunciated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, the Religious Freedom Restoration Act (“RFRA”), 42 USC § 2000bb, the civil rights conspiracy statute, 42 U.S.C. § 1985(3), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.
4. As a result of Defendants’ misconduct, Plaintiffs suffered severe and permanent physical injuries, and severe emotional distress and humiliation. Plaintiffs now bring this lawsuit
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to redress these wrongs and to seek just and fair compensation. JURISDICTION AND VENUE
5. This action is brought pursuant to Bivens, under the First, Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution, 28 U.S.C. § 1346(b), 28 U.S.C. §1350, and 42 U.S.C. §§ 1985(3) and 2000bb.
6. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346(b), and 1350. 7. Venue is proper in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1391(b), as the events giving rise to this action occurred within this district.
PARTIES 8. Plaintiff EHAB ELMAGHRABY is a native and citizen of Egypt, where he currently resides. He was detained in the MDC from on or about October 1, 2001 to on or about August 28, 2002. 9. Plaintiff JAVAID IQBAL is a native and citizen of Pakistan, where he currently resides. He was detained in the MDC from on or about November 5, 2001 to on or about January 15, 2003. 10. Defendant JOHN ASHCROFT is the Attorney General of the United States. As Attorney General, Defendant ASHCROFT has ultimate responsibility for the implementation and enforcement of the immigration and federal criminal laws. He is a principal architect of the policies and practices challenged here. He authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained. 11. Defendant ROBERT MUELLER is the Director of the Federal Bureau of Investigation (“FBI”). As FBI Director, he was instrumental in the adoption, promulgation, and
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implementation of the policies and practices challenged here. 12. Defendant MICHAEL ROLINCE was at all relevant times the Chief of the FBI’s
International Terrorism Operations Section, Counterterrorism Division, and as such was instrumental in the implementation of the policies and practices challenged here.
13. Defendant KENNETH MAXWELL was at all relevant times the Assistant Special Agent in Charge, New York Field Office, FBI and as such was instrumental in the implantation of the polices and practices challenged here.
14. Defendant KATHLEEN HAWK SAWYER was at all relevant times the Director of the Federal Bureau of Prisons. As such, Defendant SAWYER was responsible for the custody, care and control of the individuals detained in the MDC, including Plaintiffs, and was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. She authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
15. Defendant DAVID RARDIN was at all relevant times the Director of the Northeast Region of the Bureau of Prisons. As such, Defendant RARDIN was responsible for the custody, care and control of the individuals detained in the MDC, including Plaintiffs, and was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. He authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
16. Defendant MICHAEL COOKSEY was at all relevant times the Assistant Director for Correctional Programs of the Bureau of Prisons. As such, Defendant COOKSEY was responsible for ensuring a safe and secure institutional environment for the individuals detained in the MDC, including Plaintiffs, and was instrumental in the adoption, promulgation, and
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implementation of the policies and practices challenged here. He authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
17. Defendant DENNIS HASTY was at some relevant times the Warden of the MDC. While Warden, Defendant HASTY was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. While Warden, Defendant HASTY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
18. Defendant MICHAEL ZENK is currently the Warden of the MDC. As Warden, Defendant ZENK was responsible at some relevant times for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. As Warden, Defendant ZENK subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
19. Defendant LINDA THOMAS is the former Associate Warden of Programs of the MDC and was at all relevant times the Associate Warden of Programs of the MDC. While Associate Warden, Defendant THOMAS was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. As Associate Warden, Defendant THOMAS subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
20. Defendant SHERMAN is the Associate Warden of Custody of the MDC and was at all relevant times the Associate Warden of Custody of the MDC. While Associate Warden, Defendant SHERMAN was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. As Associate Warden, Defendant SHERMAN subjected Plaintiffs to
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unreasonable and excessively harsh conditions of confinement. 21. Defendant Captain SALVATORE LOPRESTI is and was at all relevant times
employed at the MDC. While Captain, Defendant LOPRESTI was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising and training officers who brutalized and mistreated Plaintiffs. As Captain, Defendant LOPRESTI subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
22. Defendant Lieutenant STEVEN BARRERE is and was at all relevant times a federal corrections officer employed at the MDC. Defendant BARRERE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
23. Defendant Lieutenant WILLIAM BECK is and was at all relevant times a federal corrections officer employed at the MDC. Defendant BECK subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
24. Defendant Lieutenant LINDSEY BLEDSOE is and was at all relevant times a federal corrections officer employed at the MDC. Defendant BLEDSOE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
25. Defendant Lieutenant JOSEPH CUCITI was at all relevant times a federal corrections officer employed at the MDC. Defendant CUCITI subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
26. Defendant Lieutenant THOMAS CUSH is and was at all relevant times a federal corrections officer employed at the MDC. Defendant CUSH subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
27. Defendant Lieutenant HOWARD GUSSAK was at all relevant times a federal corrections officer employed at the MDC. Defendant GUSSAK subjected Plaintiffs to
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unreasonable and excessively harsh conditions of confinement. 28. Defendant Lieutenant MARCIAL MUNDO is and was at all relevant times a federal
corrections officer employed at the MDC. Defendant MUNDO subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
29. Defendant Lieutenant DANIEL ORTIZ is and was at all relevant times a federal corrections officer employed at the MDC. Defendant ORTIZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
30. Defendant Lieutenant ELIZABETH TORRES is and was at all relevant times a federal corrections officer employed at the MDC. Defendant TORRES subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
31. Defendant REYNALDO ALAMO is and was at all relevant times a corrections officer employed at the MDC. Defendant ALAMO subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
32. Defendant SYDNEY CHASE is and was at all relevant times a corrections officer employed at the MDC. Defendant CHASE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
33. Defendant JAMES CLARDY is and was at all relevant times a corrections officer employed at the MDC. Defendant CLARDY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
34. Defendant RAYMOND COTTON is and was at all relevant times a corrections officer employed at the MDC. Defendant COTTON subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
35. Defendant MICHAEL DEFRANCISCO was at all relevant times a federal
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corrections officer employed at the MDC. Defendant DEFRANCISCO subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
36. Defendant RICHARD DIAZ is and was at all relevant times a federal corrections officer employed at the MDC. Defendant DIAZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
37. DEFENDANT JAI JAIKISSON is and was at all relevant times a federal corrections officer employed at the MDC. Defendant JAIKISSON subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
38. Defendant DEXTER MOORE is and was at all relevant times a federal corrections officer employed at the MDC. Defendant MOORE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
39. Defendant JON OSTEEN was at all relevant times a federal corrections officer employed at the MDC. Defendant OSTEEN subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
40. Defendant ANGEL PEREZ is and was at all relevant times a federal corrections officer employed at the MDC. Defendant PEREZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
41. Defendant SCOTT ROSEBERRY is and was at all relevant times a federal corrections officer employed at the MDC. Defendant ROSEBERRY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
42. Defendant CLEMMETT SHACKS is and was at all relevant times a federal corrections officer employed at the MDC. Defendant SHACKS was the Unit Manager for the ADMAX SHU. Defendant SHACKS subjected Plaintiffs to unreasonable and excessively harsh
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conditions of confinement. 43. Defendant NORA LORENZO is and was at all relevant times a physician’s assistant
employed at the MDC and was at all relevant times responsible for the delivery of medical care to Plaintiffs.
44. Defendants “JOHN DOE” CORRECTIONS OFFICERS NOS. 1-19, “John Doe” being fictional first and last names, are and were at all relevant times federal corrections officers employed at the MDC. Defendants DOE Nos. 1-19 subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
45. Defendant UNITED STATES OF AMERICA, by virtue of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., is liable for the tortuous conduct of the individual Defendants named herein, including assault, battery, negligence, and intentional infliction of emotional distress.
46. All Defendants named herein acted under color of federal law and within the scope of their office or employment.
STATEMENT OF FACTS General Background
47. In the months after September 11, 2001, the Federal Bureau of Investigation (“FBI”), under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men, designated herein as “post-September 11th detainees,” as part of its investigation of the events of September 11.
48. Many of these men, including Plaintiffs, were classified as being “of high interest” to the government’s post-September-11th investigation by the FBI without specific criteria or a uniform classification system.
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49. In many cases, including Plaintiffs’, the classification was made because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity.
50. Defendants ROLINCE and/or MAXWELL were responsible for making the initial determination as to whether detainees arrested within the New York area in the weeks and months after September 11 were classified as “of high interest” to the government’s investigation.
51. Defendants ROLINCE and/or MAXWELL classified Mr. Elmaghraby and Mr. Iqbal as “of high interest” to the post-September-11th investigation because of their race, religion, and national origin, and not because of any evidence that Plaintiffs were involved in terrorist activity.
52. Indeed, within the New York area, all Arab Muslim men arrested on criminal or immigration charges while the FBI was following an investigative lead into the September 11th attacks – however unrelated the arrestee was to the investigation – were immediately classified as “of interest” to the post-September-11th investigation.
53. Those post-September 11th detainees classified by the FBI as being “of high interest” were confined at the MDC in Brooklyn, New York, in the ADMAX SHU, which is the Federal Bureau of Prisons’ (“BOP”) most restrictive type of confinement.
54. The ADMAX SHU was quickly created on MDC’s ninth floor to house postSeptember 11th detainees.
55. Prior to September 11, 2001, the MDC had a SHU, but not an ADMAX SHU. 56. The MDC had as many as 60 detainees housed in the ADMAX SHU at one time. 57. The officers who worked on the ADMAX SHU were selected by Defendants HASTY, SHERMAN, and LOPRESTI.
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58. The procedures for handling detainees on the ADMAX SHU were developed by Defendants SHERMAN, LOPRESTI, and CUCITI, at the request of Defendant HASTY.
59. The ADMAX SHU enforced a four-man hold restraint policy, the use of hand-held cameras to record detainee movements, cameras in each cell to monitor detainees, and physical security enhancements.
60. Post-September 11th detainees in the ADMAX SHU were subjected to highly restrictive conditions of confinement. They were not permitted to move about the unit, use the telephone freely, nor were they permitted any electronic equipment in their cells, such as small radios. Post-September 11th detainees moved outside their cells only when they were restrained with handcuffs and leg irons and escorted by four staff members.
61. For many weeks, post-September 11th detainees in the ADMAX SHU were subjected to a communications blackout that barred them from receiving telephone calls, visitors, mail, and from placing telephone calls. During this period, the post-September 11th detainees, including Plaintiff ELMAGHRABY, were unable to make any contact with their attorneys or families.
62. Compounding this situation, MDC employees often turned away lawyers and family members who came to visit individual post-September 11th detainees by falsely stating that the individual detainee was no longer detained in the MDC.
63. Markedly different from the conditions in the MDC ‘s general population, detainees in the ADMAX SHU were permitted to leave their cells for only one hour a day, at most, and their legal and social visits were non-contact, with a clear partition between the parties.
64. Because of the highly restrictive nature of the ADMAX SHU, BOP regulations require an employee known as the Segregation Review Official to conduct a weekly review of the status of each inmate housed in the SHU after he has spent seven days in administrative
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detention or disciplinary segregation. The Segregation Review Official is also required to conduct a formal hearing every 30 days assessing the inmate’s status. The Segregation Review Official’s finding must be approved by the Reviewing Authority.
65. Although Defendants BLEDSOE, BECK, and ORTIZ were assigned to be Segregation Review Officials while Plaintiffs were held within the ADMAX SHU, Defendants BLEDSOE, BECK, and ORTIZ never conducted the individual reviews required by regulation to ensure that placement of Plaintiffs in ADMAX SHU was necessary to vindicate the safety and security interests of the MDC.
66. During the time that Defendants BLEDSOE, BECK, and ORTIZ worked as Segregation Review Officials, Defendant LOPRESTI was the Reviewing Authority. Defendant LOPRESTI approved BLEDSOE, BECK, and ORTIZ’s recommendation to continue holding Plaintiffs in the ADMAX SHU although LOPRESTI was aware that the required review procedures had not been followed.
67. The appropriate review processes were never provided to the post-September 11th detainees, including Plaintiffs. Instead, the detainees were held in the ADMAX SHU until the FBI approved their release to the general population unit.
68. Until the FBI approved the release of a particular detainee, MDC policy was to automatically annotate the detainee status with the phrase “continue high security.” The postSeptember 11th detainees were not afforded any hearings, and they remained under restrictive detention in the ADMAX SHU as a matter of policy until defendant COOKSEY issued a memorandum approving their release to general population.
69. The policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were “cleared” by the FBI was approved by Defendants ASHCROFT
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and MUELLER in discussions in the weeks after September 11, 2001. 70. Consistent with this policy, on or about October 1, 2001, defendant COOKSEY
directed that all detainees “of high interest” be confined in the most restrictive conditions possible until cleared by the FBI.
71. Defendant SAWYER was aware of and approved of the policies enunciated by Defendant COOKSEY with regard to the confinement of detainees “of high interest” in BOP facilities.
72. Defendants ROLINCE and MAXWELL, after mid-September 2001, were jointly responsible for determining whether a detainee had been “cleared” of any connection to terrorist activity.
73. Officials at FBI Headquarters in Washington, D.C., were aware that the BOP relied on the FBI classification to determine whether to detain prisoners in the ADMAX SHU at the MDC.
74. Nonetheless, Defendants ASHCROFT, MUELLER, and ROLINCE never imposed deadlines for the “clearance” process, and many detainees were held in the ADMAX SHU even after they were approved for release to the general population unit by the FBI.
75. As a result numerous detainees, including Plaintiffs, were held in ADMAX SHU for extended periods of time, although there was no evidence linking them to terrorist activity.
76. Moreover, defendants ROLINCE and MAXWELL failed to approve post-September 11 detainees’ release to general population based simply on the detainees’ race, religion, and national origin, and not based on any evidence that continued detention in ADMAX SHU was important or relevant to the FBI’s investigation of the events of September 11, 2001.
Cruel and Inhumane Conditions of Confinement in the ADMAX SHU
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77. Mr. ELMAGHRABY was arrested on or about September 30, 2001 by local and federal law enforcement agents.
78. On or about October 1, 2001, Mr. ELMAGHRABY was brought to the MDC and housed in the ADMAX SHU.
79. Mr. ELMAGHRABY was housed in the ADMAX SHU the entire time he was detained at the MDC from on or about October 1, 2001 to on or about August 28, 2002.
80. Mr. IQBAL was arrested on or about November 2, 2001 by INS and FBI agents. 81. On or about November 5, 2001 Mr. IQBAL was taken to the MDC and housed in the general population unit on the fifth floor. Mr. IQBAL was housed in the ADMAX SHU from on or about January 8, 2002 until approximately the end of July 2002, at which time he was released back to the general population unit. 82. While detained in the ADMAX SHU, Plaintiffs were kept in solitary confinement, not permitted to leave their cells for more than one hour each day with few exceptions, verbally and physically abused, routinely subjected to humiliating and unnecessary strip and body-cavity searches, denied access to basic medical care, denied access to legal counsel, denied adequate exercise and nutrition, and subjected to cruel and inhumane conditions of confinement. 83. The conditions of Plaintiffs’ confinement incited fear and anguish, exacerbated their physical pain and emotional distress, and subjected them to embarrassment and humiliation. 84. Plaintiffs were housed in small cells with the lights on almost 24 hours per day until in or about March 2002. MDC staff deliberately turned on the air conditioner throughout the winter months, and turned on the heat during the summer months. 85. Plaintiffs were not provided with adequate bedding and personal hygiene items. Until in or about January 2002, Mr. ELMAGHRABY was not given a blanket, pillow, mattress, or any
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toilet paper. Similarly, Mr. IQBAL was never provided with pillows or more than one blanket. 86. Whenever Plaintiffs were removed from their cells, they were hand cuffed and
shackled around their legs and waist. 87. Plaintiffs were subjected to continuous verbal abuse from the MDC staff,
demonstrating their animus towards Plaintiffs. Such statements included Mr. IQBAL being called “a terrorist” by Defendant ZENK, “a terrorist and a killer” by Defendant GUSSAK, a “Muslim bastard” by Defendant COTTON, and a “Muslim killer” by Defendant PEREZ. Mr. ELMAGHRABY was called a terrorist” by Defendant SHACKS; when Mr. ELMAGHRABY requested a pair of shoes, Defendant THOMAS responded with a statement, “No shoes for a terrorist”; Defendant COTTON expressed the same animus when he said, “a terrorist should not ask for anything” to Mr. ELMAGHRABY.
88. Plaintiffs were rarely permitted to exercise, and the conditions under which they were permitted to exercise were punitive in effect and intent. For instance, when permitted to exercise in the winter, Plaintiffs were taken to the recreation areas in the ADMAX SHU, which were on the top floor of the MDC in the open-air, in early winter mornings without proper jackets and shoes.
89. On certain days when it rained, MDC officers took Mr. IQBAL to the recreation areas for exercise, and left him in the open-air for hours until he was completely drenched. When Mr. IQBAL was brought back to his cell, the officers deliberately turned on the air conditioner, causing him severe physical discomfort.
90. As the weather became milder, MDC officers permitted Mr. ELMAGHRABY to go to the recreation areas for his exercise. However, the officers permitted him to remain outside for only 15 minutes, in contrast to the cold winter months where the officers left Mr.
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ELMAGHRABY in the open-air for hours. In the summer months, when it was extremely hot and humid, MDC officers again left Mr. ELMAGHRABY outside for hours.
91. Moreover, Plaintiffs were not provided with adequate food. As a result of the harassment they experienced in the ADMAX SHU, and nutritionally inadequate food, Plaintiffs lost a significant amount of weight. While in custody, Mr. IQBAL lost over 40 pounds, and Mr. ELMAGHRABY lost over 20 pounds. Furthermore, as a result of not having adequate food for a prolonged period of time, Mr. IQBAL currently suffers from persistent digestive problems, causing him to require medical treatment.
92. Such conditions of confinement were punitive in intent and effect. 93. Such conditions of confinement were not related to any legitimate penological interest. 94. Such conditions of confinement were imposed without any individualized determination as to whether they were appropriate for Plaintiffs. 95. Indeed, the MDC’s Segregation Review Officials, Defendants BLEDSOE, BECK, and ORTIZ, never conducted a weekly review of Plaintiffs’ status regarding whether or not it was appropriate to continue to detain them in the ADMAX SHU. In addition, during the entire time Plaintiffs were housed in the ADMAX SHU, they never received a formal hearing to determine whether such confinement was appropriate. The MDC’s Reviewing Authority, Defendant LOPRESTI, nonetheless continued to approve Plaintiffs’ confinement in ADMAX SHU. 96. Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to these conditions of confinement as a
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matter of policy, solely on account of their religion, race, and/or national origin and for no legitimate penological interest.
97. Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI willfully and maliciously designed a policy whereby individuals such as Plaintiffs were arbitrarily designated to be confined in the ADMAX SHU without providing any individual determination as to whether such designation was appropriate or should continue.
98. Keeping Plaintiffs in isolation for nearly 24 hours per day, without access to fresh air and light, adequate bedding, adequate heat, and without adequate recreation or exercise, bore no relationship to legitimate security concerns, constituted unjustified punishment, deprived Plaintiffs of their right to liberty, and amounted to the willful, malicious, and unnecessary infliction of pain and suffering.
99. As a result of Defendants’ imposition of unlawful conditions of confinement, Plaintiffs suffered permanent physical injury and emotional distress.
Use of Excessive Force on Ehab Elmaghraby 100. Mr. ELMAGHRABY’s brutal mistreatment by MDC staff began on the first day he arrived at the facility on or about October 1, 2001, in the early morning hours, when Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, and MOORE willfully and maliciously threw Mr. ELMAGHRABY against a wall of the MDC, subjected him to repeated strip searches, including leaving him naked for approximately 40 minutes, and threatened him with death. Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, and MOORE continually accused Mr. ELMAGHRABY of being a terrorist and being associated with Osama bin Laden, Al Qaeda, and the Taliban. Moreover, when Mr. ELMAGHRABY was transported to court on the same
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day, Defendants BECK, CHASE, DEFRANCISCO, and DIAZ subjected Mr. ELMAGHRABY to repeated strip searches and willfully and maliciously dragged him on the ground while he was chained and shackled, causing him to bleed from his legs, and.
101. Upon Mr. ELMAGHRABY’s return to the MDC, officers brought Mr. ELMAGHRABY up to ADMAX SHU in an elevator. In the elevator, several officers, including Defendants BARRERE, BECK, ORTIZ, MUNDO, and OSTEEN willfully and maliciously physically and verbally assaulted him, causing him to bleed from his nose.
102. Although the officers carried a video camera with them while abusing Mr. ELMAGHRABY, they deliberately turned it off during the entire time the officers physically and verbally abused Mr. ELMAGHRABY.
103. The treatment by Defendants BARRERE, BECK, BLEDSOE, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, and OSTEEN on October 1, 2001, caused Mr. ELMAGHRABY to suffer excruciating pain and emotional distress.
104. Mr. ELMAGHRABY was assaulted a second time, on or about December 1, 2001, when he was willfully and maliciously pushed from behind by DOE No. 1 upon Mr. ELMAGHRABY’s return from recreation.
105. As a result of being shoved, Mr. ELMAGHRABY hit his face on a hard surface and broke his teeth, causing him excruciating pain and emotional distress.
106. The beatings of Mr. ELMAGHRABY were motivated by Defendants’ animus against Mr. ELMAGHRABY on account of his race, religion, and/or national origin.
107. There was no legal justification for the assaults and verbal abuse suffered by Mr. ELMAGHRABY.
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108. The beatings of Mr. ELMAGHRABY by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
109. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to inflict unnecessary and assaultive beatings upon Mr. ELMAGHRABY, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
110. As a result of said willful, malicious, and unlawful conduct by Defendants, Mr. ELMAGHRABY suffered severe and permanent physical injury and extreme emotional distress.
Use of Excessive Force on Javaid Iqbal 111. Consistent with Mr. ELMAGHRABY’s experience of physical abuse, Mr. IQBAL was subjected to brutal mistreatment from the very day he was transferred from general population to the ADMAX SHU on or about January 8, 2002, after he was brought back to the MDC from court. 112. On the day he was transferred to the ADMAX SHU, he was told by an officer on the fifth floor that he had a legal visit. 113. Mr. IQBAL was then taken to a room where Defendants DOE Nos. 2-16 were waiting for him. Several of these officers picked him up and threw him against the wall, kicked
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him in the stomach, punched him in the face, and dragged him across the room. In addition, the officers screamed at him, saying that he was a “terrorist” and a “Muslim.”
114. Mr. IQBAL was then taken to the ADMAX SHU. While he was being moved, he was shackled and chained around his arms, legs, and waist.
115. From this incident, Mr. IQBAL suffered serious physical injuries, including bleeding from his mouth and nose, as well as severe emotional distress.
116. Mr. IQBAL was again assaulted on or about March 20, 2002, when Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18 ordered Mr. IQBAL to submit to a strip and body-cavity search.
117. The officers conducted three serial strip and body-cavity searches of Mr. IQBAL in the same room. Although the officers had a handheld video camera, they turned it off while they conducted the searches.
118. Mr. IQBAL peacefully protested when the officers willfully and maliciously ordered him to submit to a fourth search.
119. In response, Defendant DEFRANCISCO punched Mr. IQBAL in the face and Defendant CUSH punched Mr. IQBAL in the back and his legs and kicked him in the back. As a result, Mr. IQBAL bled from his mouth. There was no legal justification for Defendants’ brutal assault of Mr. IQBAL.
120. The officers next took Mr. IQBAL to the ADMAX SHU. En route to the ADMAX SHU, the officers continued to kick, physically harass, and verbally harass him by making racist and violent comments about Muslims.
121. When they arrived at the ADMAX SHU, Defendants DEFRANCISCO, CUSH, OSTEEN and DOE Nos. 17-18 willfully and maliciously pulled Mr. IQBAL’s arm through the
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slot in his cell door, causing him excruciating pain. 122. Defendant DEFRANCISCO willfully and maliciously urinated in the cell in Mr.
IQBAL’s toilet, and then turned the water off in the cell so that he could not flush the toilet. Mr. IQBAL was not able to flush the toilet until the next morning.
123. The beatings of Mr. IQBAL were motivated by Defendants’ animus against Mr. IQBAL on account of his race, religion, and/or national origin.
124. The beatings of Mr. IQBAL by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
125. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to inflict unnecessary and assaultive beatings upon Mr. IQBAL, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
126. As a result of said willful, malicious, and unlawful conduct by Defendants, Mr. IQBAL currently suffers permanent physical and emotional injuries, including but not limited to limited hearing, permanent injury to his right leg, gastrointestinal problems, and depression.
Strip and Body Cavity Searches of Mr. Elmaghraby 127. Mr. ELMAGHRABY was subjected to numerous unreasonable, unnecessary and
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extreme strip and body-cavity searches while confined in the ADMAX SHU. 128. During the first three or four months of his detention, Mr. ELMAGHRABY was
strip searched every morning. The officers ordered him to take off his clothes and inspected him through the slot in the door before they entered the cell. Defendants BECK, GUSSAK, ORTIZ, BARRERE, DIAZ, MUNDO, OSTEEN, and ROSEBERRY willfully and maliciously subjected Mr. ELMAGHRABY to these strip searches, although they were not related to any legitimate security or penological interest.
129. Along with being strip searched every morning for the first several months of his detention, every time Mr. ELMAGHRABY went to court, and each time he returned to court, he was strip and body-cavity searched three times.
130. Upon leaving for court, the first search occurred in Mr. ELMAGHRABY’s cell in the ADMAX SHU, the second search in a different room in the ADMAX SHU, and the final search on the ground floor of MDC. When Mr. ELMAGHRABY returned from court, the searches occurred in reverse order. These searches occurred on or about the following dates: October 1, October 2, November 5, November 8, and December 11, 2001, and January 8, February 12, February 13, and July 22, 2002. During these searches, Mr. ELMAGHRABY was ordered to pass his clothes to a corrections officer and bend over while a corrections officer used a flashlight to search his body cavities.
131. None of these searches vindicated any legitimate security or penological interest. Indeed, the second and third searches were particularly egregious, because they were conducted even though Mr. ELMAGHRABY was in the custody of MDC employees from the moment he was first searched until after he was searched for the third time.
132. While the strip and body cavity-searches were conducted, Mr. ELMAGHRABY
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was threatened, mocked and verbally abused. In addition, he was regularly pushed and shoved. 133. Defendants BECK, GUSSAK, ORTIZ, BARRERE, MUNDO, DIAZ, OSTEEN,
and ROSEBERRY willfully and maliciously participated in and conducted the strip searches of Mr. ELMAGHRABY.
134. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS willfully and maliciously approved of, endorsed, and/or ordered that the searches take place as a matter of policy.
135. On many occasions, Defendants conducted the strip searches in an extreme and outrageous manner. For instance, on one occasion, Defendant BARRERE willfully and maliciously displayed Mr. ELMAGHRABY while naked to a female employee of the MDC. On or about October 1, 2001, while Defendants BECK, ORTIZ, MUNDO, and OSTEEN were present for a body-cavity search of Mr. ELMAGHRABY, Defendant BARRERE willfully and maliciously inserted a flashlight into Mr. ELMAGHRABY’s anal cavity. Mr. ELMAGHRABY noticed blood on the flashlight when it was removed from his anal cavity. On or about November 8, 2001, while Defendant DEFRANCISCO conducted a strip-search of Mr. ELMAGHRABY with other MDC officers, Defendant DEFRANCISCO inserted a pencil into Mr. ELMAGHRABY’s anal cavity. Additionally, on or about January 8, 2002, Defendants MUNDO, COTTON, DEFRANCISCO, and OSTEEN conducted a strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY’s anal cavity.
Strip and Body Cavity Searches of Mr. Javaid Iqbal 136. As with Mr. ELMAGHRABY, Mr. IQBAL was also subjected to numerous unreasonable, unnecessary and extreme strip and body-cavity searches while confined in the
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ADMAX SHU. 137. Each morning, MDC corrections officers first searched Mr. IQBAL’s cell. During
this search, Mr. IQBAL was chained and shackled and was routinely kicked and punched by MDC officers.
138. After the cell search, Mr. IQBAL was subjected to a strip and body-cavity search. 139. In addition to the daily strip and body-cavity searches, each time Mr. IQBAL visited the medical clinic for treatment, he was subjected to three strip searches, once before the medical visit and twice after the visit. 140. On days when he appeared in court, Mr. IQBAL was strip searched twice before he even left the building. As usual, Mr. IQBAL was subjected to a strip and cavity-search on or about 5:30 am. Mr. IQBAL was strip searched including a cavity search right before the MDC officers escorted him from his cell to the first floor of the building. The second search occurred on or about 7:40 am. When Mr. IQBAL returned from court, he also was subjected to two strip searches. These searches occurred on or about the following dates: February 19, 2002, March 6, 2002, March 20, 2002, and April 22, 2002. 141. Defendants BECK, BARRERE, ORTIZ, OSTEEN, PEREZ, ROSEBERRY, and DOE No. 19 willfully and maliciously participated in and conducted these strip searches. 142. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS willfully and maliciously approved of, endorsed, and/or ordered that these searches take place as a matter of policy. 143. On many occasions, Defendants conducted the strip searches in an extreme and outrageous manner. For instance, on or about March 20, 2002, Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18 ordered Mr. IQBAL to submit to a strip and
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body-cavity search. 144. The officers conducted three serial strip and body cavity searches of Mr. IQBAL in
the same room. Although the officers had a handheld video camera, they turned it off while they conducted the searches.
145. Mr. IQBAL peacefully protested when the officers willfully and maliciously ordered him to submit to a fourth and completely unnecessary search.
146. In response Defendants assaulted Mr. IQBAL, as described in Pars. 116-122. 147. The strip search policy established and implemented by Defendants did not vindicate any legitimate security or penological interest. 148. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to unreasonable, unnecessary and extreme strip and body-cavity searches. 149. The imposition of unreasonable, unnecessary and extreme strip and body-cavity searches were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity. 150. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to conduct unreasonable, unnecessary and extreme strip searches, and Defendants
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SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
151. Plaintiffs were subjected to unreasonable, extreme and unnecessary strip and bodycavity searches because of their race, religion, and/or national origin and for not legitimate penological purpose.
152. As a result of Defendants’ actions, Plaintiffs suffered physical injury, extreme emotional distress, humiliation, and embarrassment.
Interference with Religious Practice 153. During the entire time that Plaintiffs were confined in the ADMAX SHU, their sincere religious practices and beliefs were constantly burdened and met with interference. Such interference included banging on the cells when they were praying, routinely confiscating their Koran, and refusing to permit Plaintiffs to participate in Friday prayer services with fellow Muslims. 154. When Plaintiffs asked for Friday prayer services with fellow Muslims, they were met with comments such as, “No prayers for terrorists” by Defendant THOMAS and “Why do you need to pray when you are in jail? Go to sleep,” by Defendant SHACKS. 155. Said interference was an undue burden on Plaintiffs’ sincere religious practice and belief. 156. Moreover, the targeting of Plaintiffs for physical and verbal harassment and the imposition of restrictive conditions of confinement constituted an undue burden on Plaintiffs’ sincere religious practice and belief.
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157. Although Mr. ELMAGHRABY complained to Defendants THOMAS, HASTY, ZENK, SHACKS, COTTON, and BARRERE about the interference with his religious practice, said Defendants willfully and maliciously refused to take any action to remedy the situation.
158. Defendants SHACKS, PEREZ, DEFRANCISCO, TORRES, and COTTON were each aware of the interference with Mr. IQBAL’s religious practice, and nonetheless each Defendant agreed to, endorsed, and willfully and maliciously participated in the routine confiscation of his Koran.
159. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously failed to prevent this interference with Plaintiffs’ religious practice.
160. The interference with Plaintiffs’ religious practice by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
161. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to interfere with Plaintiffs’ religious practice, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
162. Defendants did not similarly interfere with the religious practice of non-Muslims.
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163. As a result of Defendants’ intentional interference with Plaintiffs’ religious practice, each Plaintiff suffered extreme emotional distress.
Interference with Right to Counsel 164. Defendant COTTON was the counselor for the ADMAX SHU and determined whether and when detainees were permitted visitation or phone calls. 165. While in the ADMAX SHU, Plaintiffs’ communication with their legal counsel was substantially interfered with by Defendants COTTON and SHACKS. 166. For instance, from on or about October 1, 2001, until in or about the last week of November 2001, Defendant COTTON prohibited Mr. ELMAGHRABY from speaking by telephone with his criminal defense attorney. 167. After in or about November 2001, on those occasions when Mr. ELMAGHRABY was permitted to speak with his criminal attorney, Defendant COTTON stood nearby and disconnected the phone when Mr. ELMAGHRABY complained about any of the conditions of his confinement in the ADMAX SHU. 168. Similarly, on those occasions when Mr. IQBAL was permitted to speak with his criminal attorney, Defendant COTTON stood nearby and disconnected the phone if Mr. IQBAL complained about any of the conditions of his confinement in the ADMAX SHU. 169. When Mr. ELMAGHRABY’s attorney tried to visit him at the MDC, she often waited for hours without seeing Mr. ELMAGHRABY. 170. On those occasions when Mr. ELMAGHRABY was able to meet with his attorney at the MDC, a video camera recorded the visit and when he returned to his cell, he would find that it had been ransacked. On these occasions, even though his legal visit was non-contact, Mr. ELMAGHRABY was forced to submit to a strip search.
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171. Mr. IQBAL’s attorney was turned away from the MDC several times, being falsely informed that Mr. IQBAL had been transferred to another facility. Additionally, Defendant SHACKS routinely delayed Mr. IQBAL’s receipt of legal mail, sometimes by up to two months.
172. As a result, Plaintiffs’ communication with counsel was substantially interfered with.
173. Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, COTTON and SHACKS each knew of and condoned the imposition of substantial restrictions on Plaintiffs’ right to communicate with counsel.
174. The imposition of these restrictions was all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
175. Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to substantially interfere with Plaintiffs’ right to counsel, and Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
176. Plaintiffs’ right to communicate with counsel was interfered with because of their race, religion, and/or national origin.
177. As a result of Defendants’ actions, Plaintiffs suffered extreme emotional distress.
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Deliberate Indifference to Serious Medical Needs 178. Both Plaintiffs also were denied access to constitutionally adequate medical care. 179. On or about December 1, 2001, Mr. ELMAGHRABY was pushed from behind by Defendant DOE No. 1, upon Mr. ELMAGHRABY’s return from recreation. 180. As a result of being shoved, Mr. ELMAGHRABY hit his face on a hard object and broke his teeth. 181. Defendant LORENZO provided Mr. ELMAGHRABY with antibiotics for his injury, but they were confiscated by Defendant ORTIZ when Mr. ELMAGHRABY returned to the ADMAX SHU. 182. Mr. ELMAGHRABY complained to Defendant SHACKS, who asked Mr. ELMAGHRABY why he needed his teeth. 183. As a result of Defendants’ mistreatment, Mr. ELMAGHRABY suffered extreme pain and emotional distress. 184. Moreover, while Mr. ELMAGHRABY was confined in the ADMAX SHU, Defendant LORENZO erroneously diagnosed him with asthma and prescribed him with asthma medication. 185. As a result of Defendant LORENZO’s misdiagnosis, Mr. ELMAGHRABY’s actual condition, hypothyroid, became worse and he had to undergo surgery to correct the problem. 186. As a result of this cruel and inhuman treatment, Mr. ELMAGHRABY suffered and continues to suffer severe emotional distress, as well as persistent physical injuries. 187. On or about March 21, 2002, the day after Mr. IQBAL had been beaten by Defendants CUSH and DEFRANCISCO, as described in Pars. 116-122, Mr. IQBAL requested
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medical assistance from Defendant LORENZO. Defendant SHACKS, however, told Defendant LORENZO to leave the ADMAX SHU without providing any medical assistance, and Defendant COTTON also refused Mr. IQBAL’s requests for medical assistance.
188. Mr. IQBAL did not receive any medical care for two weeks after he was brutally assaulted, despite the fact that he was experiencing excruciating pain and suffering.
189. Defendants LORENZO, COTTON, ORTIZ, and SHACKS willfully and maliciously failed and refused to provide adequate medical care to Plaintiffs. Said deficiencies in the provision of adequate medical care include but are not limited to the following: Defendants LORENZO, COTTON, and SHACKS’s refusal to provide treatment to Mr. IQBAL until about two weeks after he was assaulted on or about March 20, 2002; Defendant LORENZO’s failure to properly diagnose Mr. ELMAGHRABY’s hypothyroid condition; and Defendants ORTIZ and SHACKS’s confiscation of the antibiotics prescribed by Defendant LORENZO as a result of the brutal assault of Mr. ELMAGHRABY on or about December 1, 2001.
190. Defendants LORENZO, COTTON, ORTIZ, and SHACKS, acting under color of federal law, by their actions and/or omissions, willfully and maliciously demonstrated deliberate indifference to Plaintiffs’ life and safety and/or serious medical needs.
191. Defendants LORENZO, COTTON, ORTIZ, and SHACKS, acting under color of federal law, by their actions and/or omissions, willfully and maliciously denied Plaintiffs’ life, liberty, and/or property without due process of law.
192. Defendants LORENZO, COTTON, ORTIZ, and SHACKS each knew or should have known of the deficiencies alleged herein which were within his/her jurisdiction.
193. Defendants LORENZO, COTTON, ORTIZ, and SHACKS each knew or should
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have known that there was a foreseeable risk of serious harm as a result of the deficiencies alleged herein.
General Allegations 194. Defendants BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19 each knew of, participated in, and willfully and maliciously subjected Plaintiffs to the mistreatment described herein. 195. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19 were aware of, approved of, and willfully and maliciously created these unlawful conditions of confinement. 196. The repeated beatings and mistreatment of Plaintiffs were pursuant to the policy and practice of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity. 197. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to subject Plaintiffs to the beatings and other mistreatment described herein, and Defendants HASTY, ZENK, THOMAS,
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198. Defendants specifically targeted Plaintiffs for mistreatment because of Plaintiffs’ race, religion, and/or national origin.
199. Defendants’ conduct imposed an undue burden on Plaintiffs’ sincere religious belief and practice.
200. As a result of Defendants’ malicious, willful, and unlawful conduct, Plaintiffs suffered severe and permanent physical injuries and severe emotional distress.
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FIRST CAUSE OF ACTION (Conditions of Confinement – Fifth Amendment Due Process) 201. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 200. 202. By willfully and maliciously subjecting Plaintiffs to outrageous, excessive, cruel, inhuman and degrading conditions of confinement, including the denial of adequate nutrition, the denial of adequate exercise, the imposition of unnecessary and unlawful strip and body-cavity searches, extended detention in solitary confinement, and subjection to unprovoked and unjustified physical and emotional abuse, Defendants BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19, acting under color of law and their authority as federal officers, have deprived Plaintiffs of liberty and/or property without due process of law in violation of the Fifth Amendment to the United States Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy Plaintiffs’ mistreatment, have deprived Plaintiffs of liberty and/or property without due process of law in violation of the Fifth Amendment to the United States Constitution. 203. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered severe pain and suffering, including physical injuries, emotional distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS,
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LORENZO, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SECOND CAUSE OF ACTION (Assignment to ADMAX SHU – Fifth Amendment Due Process) 204. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 203. 205. By willfully and maliciously adopting, promulgating and implementing the policy and practice under which Plaintiffs were confined to solitary confinement in the ADMAX SHU in an arbitrary and unreasonable manner, without any defined criteria, contemporaneous review, or process of any sort, and by which classifications Plaintiffs experienced unnecessary and unreasonable restrictions on their liberty that were atypical and significant departures from the restrictions imposed upon detainees in general population, Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BECK, BLEDSOE, ORTIZ, and SHACKS, acting under color of law and their authority as federal officers, have intentionally or recklessly deprived Plaintiffs of liberty without due process of law in violation of the Fifth Amendment to the United States Constitution. 206. As a result of Defendants’ unlawful conduct, Plaintiffs suffered emotional distress humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BECK, BLEDSOE, ORTIZ, and SHACKS, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
THIRD CAUSE OF ACTION
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(Excessive Force – Fifth Amendment Due Process)
207. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 206.
208. The unprovoked, unjustified, willful, and malicious intentional beatings of Plaintiffs by Defendants BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18 deprived Plaintiffs of their right to liberty and property in violation of the Fifth Amendment to the United State Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiffs, deprived Plaintiffs of their right to liberty and property in violation of the Fifth Amendment to the United States Constitution.
209. As a proximate result of the excessive force wielded against them, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great pain and suffering, both mental and physical, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FOURTH CAUSE OF ACTION (Excessive Force – Eighth Amendment Cruel and Unusual Punishment)
210. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in
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paragraphs numbered 1 through 209. 211. The unprovoked, unjustified, willful, and malicious intentional beatings of Plaintiffs
by Defendants BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18 constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiffs, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
212. As a proximate result of the excessive force wielded against them, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great pain and suffering, both mental and physical, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FIFTH CAUSE OF ACTION (Interference with Right to Counsel – Sixth Amendment) 213. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 212. 214. By willfully and maliciously adopting, promulgating, failing to prevent, failing to remedy, and/or implementing the policy and practice under which Plaintiffs’ access to counsel
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was substantially interfered with, Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, and COTTON violated Plaintiffs’ right to counsel guaranteed by the Sixth Amendment of the United States Constitution.
215. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered emotional distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, and COTTON jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SIXTH CAUSE OF ACTION (Denial of Medical Treatment – Fifth Amendment Due Process) 216. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 215. 217. By denying Plaintiffs their right to adequate medical examination and care, Defendants LORENZO, COTTON, ORTIZ, and SHACKS deprived Plaintiffs of their liberty and property without due process of law in violation of the Fifth Amendment to the United States Constitution. 218. As a result of Defendants’ unlawful conduct, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great emotional distress and physical pain and suffering, and accordingly each Plaintiff is entitled to compensatory damages against LORENZO, COTTON, ORTIZ, and SHACKS jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SEVENTH CAUSE OF ACTION
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(Denial of Medical Treatment – Eighth Amendment Cruel and Unusual Punishment) 219. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in
paragraphs numbered 1 through 218. 220. By denying Plaintiffs their right to adequate medical examination and care,
Defendants LORENZO, COTTON, ORTIZ, and SHACKS exhibited deliberate indifference to Plaintiffs’ serious medical needs in violation of the Eighth Amendment to the United States Constitution.
221. As a result of Defendants’ unlawful conduct, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great emotional distress and physical pain and suffering, and accordingly each Plaintiff is entitled to compensatory damages against LORENZO, COTTON, ORTIZ, and SHACKS jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
EIGHTH CAUSE OF ACTION (Conditions of Confinement – Eighth Amendment Due Process) 222. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 221. 223. By willfully and maliciously subjecting Plaintiffs to outrageous, excessive, cruel, inhuman and degrading conditions of confinement, including the denial of adequate nutrition, the denial of adequate exercise, the imposition of unnecessary and unlawful strip and body-cavity searches, extended detention in solitary confinement, and subjection to unprovoked and unjustified physical and emotional abuse, Defendants BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS,
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and DOE Nos. 1-19, acting under color of law and their authority as federal officers, subjected Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy Plaintiffs’ mistreatment, subjected Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
224. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered severe pain and suffering, including physical injuries, emotional distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
NINTH CAUSE OF ACTION (Unreasonable Strip and Body Cavity-Searches – Fourth Amendment) 225. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 224. 226. By willfully and maliciously adopting, promulgating, failing to prevent, failing to remedy, and/or implementing the policy and practice under which Plaintiffs were repeatedly subjected to unreasonable and unjustified strip and body-cavity searches, Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, ORTIZ, BARRERE, COTTON, DEFRANCISCO, DIAZ, MUNDO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 17-19 subjected Plaintiffs to unreasonable searches and
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seizures in violation of the Fourth Amendment to the United States Constitution. 227. As a result of Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN,
LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, ORTIZ, BARRERE, COTTON, DEFRANCISCO, DIAZ, MUNDO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 17-19’s unlawful conduct, Plaintiffs suffered physical injuries, emotional distress, humiliation, and embarrassment. Plaintiffs are therefore entitled to compensatory damages against SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, ORTIZ, BARRERE, COTTON, DEFRANCISCO, DIAZ, MUNDO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 17-19 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
TENTH CAUSE OF ACTION (Interference With Religious Practice – First Amendment)
228. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 227.
229. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of interfering with Plaintiffs’ religious practices, violated Plaintiffs’ rights under the First Amendment to the United States Constitution.
230. As a result, Plaintiffs suffered extreme emotional distress and accordingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, jointly and
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severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
ELEVENTH CAUSE OF ACTION (Discrimination Against Muslims – First Amendment) 231. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 230. 232. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs’ sincere religious beliefs violated Plaintiffs’ rights under the First Amendment to the United States Constitution. 233. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
TWELFTH CAUSE OF ACTION (Race Discrimination – Fifth Amendment Equal Protection) 234. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 233. 235. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE,
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BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs’ race violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution.
236. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
THIRTEENTH CAUSE OF ACTION (Conditions of Confinement – RFRA) 237. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 236. 238. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19, by adopting, promulgating,
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failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs’ sincere religious beliefs, substantially burdened Plaintiffs’ religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-1.
239. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FOURTEENTH CAUSE OF ACTION (Interference With Religious Practice – RFRA) 240. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 239. 241. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of confiscating Plaintiffs’ religious materials, regularly interrupting Plaintiffs’ daily prayers, and denying Plaintiffs access to Friday prayers, substantially burdened Plaintiffs’ religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-1. 242. As a result, Plaintiffs suffered extreme emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against HASTY, ZENK,
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THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, SHACKS, and COTTON jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FIFTEENTH CAUSE OF ACTION (Excessive Force – RFRA)
243. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 242.
244. Defendants BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18, by brutally beating and verbally abusing Plaintiffs because of Plaintiffs’ sincere religious beliefs, imposed a substantial burden on Plaintiffs’ religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-1. Defendants, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiffs, acted in violation of 42 U.S.C. §§ 2000bb-1.
245. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, SHACKS, and DOE Nos.1-18, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SIXTEENTH CAUSE OF ACTION (Religious Discrimination – 42 U.S.C. § 1985(3))
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246. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 245.
247. Defendants, by engaging in the following conduct, agreed to deprive Plaintiffs of the equal protection of the laws and of equal privileges and immunities of the laws of the United States because of Plaintiffs’ sincere religious belief, resulting in injury to Plaintiffs’ person and property, in violation of 42 U.S.C. § 1985(3): Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessarily harsh conditions of confinement in ADMAX SHU without due process of law; Defendants BARRERE, BECK, BLEDSOE, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, and OSTEEN’s agreement to brutally mistreat Mr. ELMAGHRABY on or about October 1, 2001; Defendants DOE Nos. 2-16’s agreement to brutally assault Mr. IQBAL on or about January 8, 2002; Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18’s agreement to subject Mr. IQBAL to unnecessary strip and body-cavity searches on or about March 20, 2002, and brutally beat him in response to his peaceful protest of the searches; Defendants BECK, ORTIZ, BARRERE, MUNDO, and OSTEEN’s agreement on or about October 1, 2001 to conduct an extreme and cruel body-cavity search of Mr. ELMAGHRABY during which Defendant BARRERE willfully and maliciously inserted a flashlight into Mr. ELMAGHRABY’s anal cavity; Defendants MUNDO, COTTON, DEFRANCISCO, and OSTEEN’s agreement on or about January 8, 2002 to conduct an extreme and cruel strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY’s anal cavity; Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject
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Plaintiffs to unnecessary and extreme strip and body-cavity searches as a matter of policy; Defendants SHACKS, PEREZ, DEFRANCISCO, TORRES, and COTTON’s agreement to routinely confiscate Mr. IQBAL’s Koran; and Defendants THOMAS, HASTY, ZENK, SHACKS, COTTON, and BARRERE’s agreement to substantially burden Mr. ELMAGHRABY’s religious practice while he was housed in ADMAX SHU.
248. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, SHACKS, and DOE Nos. 2-18 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SEVENTEENTH CAUSE OF ACTION (Race and National Origin Discrimination – 42 U.S.C. § 1985(3)) 249. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 248. 250. Defendants, by engaging in the following conduct, agreed to deprive Plaintiffs of the equal protection of the laws and of equal privileges and immunities of the laws of the United States because of Plaintiffs’ race and/or national origin, resulting in injury to Plaintiffs’ person and property, in violation of 42 U.S.C. § 1985(3): Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessarily harsh conditions of confinement in ADMAX SHU without due process of law; Defendants BARRERE, BECK, BLEDSOE, ORTIZ,
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MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, and OSTEEN’s agreement to brutally mistreat Mr. ELMAGHRABY on or about October 1, 2001; Defendants DOE Nos. 2-16’s agreement to brutally assault Mr. IQBAL on or about January 8, 2002; Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18’s agreement to subject Mr. IQBAL to unnecessary strip and body-cavity searches on or about March 20, 2002, and brutally beat him in response to his peaceful protest of the searches; Defendants BECK, ORTIZ, BARRERE, MUNDO, and OSTEEN’s agreement on or about October 1, 2001 to conduct an extreme and cruel body-cavity search of Mr. ELMAGHRABY during which Defendant BARRERE willfully and maliciously inserted a flashlight into Mr. ELMAGHRABY’s anal cavity; Defendants MUNDO, COTTON, DEFRANCISCO, and OSTEEN’s agreement on or about January 8, 2002 to conduct an extreme and cruel strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY’s anal cavity; Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessary and extreme strip and body-cavity searches as a matter of policy; Defendants SHACKS, PEREZ, DEFRANCISCO, TORRES, and COTTON’s agreement to routinely confiscate Mr. IQBAL’s Koran; and Defendants THOMAS, HASTY, ZENK, SHACKS, COTTON, and BARRERE’s agreement to substantially burden Mr. ELMAGHRABY’s religious practice while he was housed in ADMAX SHU.
251. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, MUNDO, ORTIZ,
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TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, SHACKS, and DOE Nos. 2-18 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
EIGHTEENTH CAUSE OF ACTION (Assault and Battery- FTCA)
252. Plaintiff IQBAL repeats and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 251.
253. Defendants BARRERE, BECK, CUSH, GUSSAK, ORTIZ, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 1-18, by kicking, punching, and beating Plaintiff IQBAL without consent, intentionally caused offensive and harmful contact with Plaintiff IQBAL, so as to constitute battery under the laws of New York State, where the relevant acts took place. The batteries committed upon Plaintiff IQBAL were not related to any penological interest. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by negligently failing to take reasonable measures to prevent and/or remedy their subordinates’ abuse of Plaintiff IQBAL, violated the laws of New York State.
254. In committing the unprovoked and unjustified batteries upon Plaintiff IQBAL in a willful and malicious manner, Defendants BARRERE, BECK, CUSH, GUSSAK, ORTIZ, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 1-18 placed Plaintiff IQBAL in imminent apprehension of offensive and harmful contact, so as to constitute assault under the laws of New York State.
255. Defendants ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 1-18 were acting within the scope of their employment by the United States when Plaintiff
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IQBAL was subjected to the batteries and were working as law enforcement officers as defined by 28 U.S.C. §2680(h).
256. Pursuant to 28 U.S.C. §2675(a), the claims set forth herein were timely presented to the Bureau of Prisons on November 3, 2003 and the said claims were denied on April 27, 2004.
257. As a proximate result of the assault and batteries committed against him, Plaintiff IQBAL sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff IQBAL great pain and suffering, both mental and physical, and accordingly he is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
NINTEENTH CAUSE OF ACTION (Negligent Denial of Medical Treatment- FTCA) 258. Plaintiff IQBAL repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 257. 259. By refusing to provide Plaintiff IQBAL with adequate medical examination and care, Defendants LORENZO, COTTON, SHACKS, acting under color of federal law and their authority as federal officers, have breached their duty under 18 U.S.C. § 4042(a)(2) to take ordinary diligence or reasonable care to keep Plaintiff IQBAL safe and free from harm, so as to constitute negligence under the laws of New York State, where the relevant actions took place. 260. Pursuant to 28 U.S.C. § 2875 (a), the claims set forth herein were timely presented to the Bureau of Prisons on November 3, 2003 and the said claims were denied on April 27, 2004. 261. As a result of Defendants’ unlawful conduct, Plaintiff IQBAL sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff IQBAL great emotional distress and physical pain and suffering, and
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accordingly Plaintiff is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
TWENTIETH CAUSE OF ACTION (Intentional Infliction of Emotional Distress- FTCA) 262. Plaintiff IQBAL repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 261. 263. Defendants BARRERE, BECK, CUSH, GUSSAK, ORTIZ, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 1-18, acting under color of law and their authority as federal officers, maliciously subjected Plaintiff IQBAL to outrageous conduct of repeated instances of assault and batteries, extreme strip and body cavity-searches, the denial of medical treatment and adequate nutrition, extended detention in solitary confinement, deliberate interference with their rights to counsel and to exercise of their religious beliefs and practices with the intent to causing and reckless disregard of a substantial probability of causing several emotional distress and physical pain and suffering. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, by negligently failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiff IQBAL violated the laws of New York State. 264. Pursuant to 28 U.S.C. § 2875 (a), the claims set forth herein were timely presented to the Bureau of Prisons on November 3, 2003 and the said claims were denied on April 27, 2004. 265. As a result, Plaintiff IQBAL suffered extreme and lasting emotional distress, humiliation, embarrassment, and permanent physical injuries, and accordingly is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
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TWENTY-FIRST CAUSE OF ACTION (Cruel, Inhuman, or Degrading Treatment – Customary International Law:) 266. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 265. 267. The acts described herein had the intent and the effect of grossly humiliating Plaintiffs, forcing them to act against their will and conscience, inciting fear and anguish, and breaking their physical and moral resistance. 268. The acts described herein constituted cruel, inhuman or degrading treatment in violation of the law of the nations under the Alien Tort Claims Act, 28 U.S.C. §1350, in that the acts violated customary international law prohibiting cruel, inhuman or degrading treatment as reflected, expressed, and defined in multilateral treaties and other international treatments, international and domestic judicial decisions. 269. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19 are liable for said conduct in that Defendants, acting under the color of law and their authority as federal officers, directed, ordered, confirmed, ratified and/or conspired to cause cruel, inhuman or degrading treatment of Plaintiffs. 270. Plaintiffs were forced to suffer severe physical and psychological abuse and emotional distress and are entitled to monetary damages.
JURY DEMAND
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 Case 1:04-cv-01809-JG-SMG Document 273 Filed 10/20/2005 Page 1 of 57

URBAN JUSTICE CENTER Haeyoung Yoon (HY-8962) 666 Broadway, 10th Floor New York, New York 10012 (646) 459-3003
-and-
KOOB & MAGOOLAGHAN Alexander A. Reinert (AR-1740) 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

----------------------------------------------------------------------------------- X

:

EHAB ELMAGHRABY and JAVAID IQBAL,

:

:

Plaintiffs,

:

:

-against-

:

:

JOHN ASHCROFT, Attorney General of the United

:

States; ROBERT MUELLER, Director of the Federal

:

Bureau of Investigation; MICHAEL ROLINCE, Former :

Chief of the Federal Bureau of Investigation’s

:

International Terrorism Operations Section,

:

Counterterrorism Division; KENNETH MAXWELL,

:

Former Assistant Special Agent in Charge, New York :

Field Office, Federal Bureau of Investigation;

:

KATHLEEN HAWK SAWYER, former Director of the :

Federal Bureau of Prisons; DAVID RARDIN, Former :

Director of the Northeast Region of the Bureau of

:

Prisons; MICHAEL COOKSEY, Former Assistant

:

Director for Correctional Programs of the Bureau of

:

Prisons; DENNIS HASTY, former Warden of the

:

Metropolitan Detention Center; MICHAEL ZENK,

:

Warden of the Metropolitan Detention Center; LINDA :

THOMAS, former Associate Warden of Programs of the :

Metropolitan Detention Center; ASSOCIATE WARDEN :

SHERMAN, Associate Warden of Custody for the

:

Metropolitan Detention Center; CAPTAIN

:

SALVATORE LOPRESTI; LIEUTENANT STEVEN :

BARRERE; LIEUTENANT WILLIAM BECK;

:

04 CV 1809 (JG)(SMG)
SECOND AMENDED COMPLAINT AND JURY DEMAND

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LIEUTENANT LINDSEY BLEDSOE; LIEUTENANT :

JOSEPH CUCITI; LIEUTENANT THOMAS CUSH; :

LIEUTENANT HOWARD GUSSAK; LIEUTENANT :

MARCIAL MUNDO; LIEUTENANT DANIEL ORTIZ; :

LIEUTENANT ELIZABETH TORRES;

:

CORRECTIONS OFFICER REYNALDO ALAMO;

:

CORRECTIONS OFFICER SYDNEY CHASE;

:

CORRECTIONS OFFICER JAMES CLARDY;

:

CORRECTIONS OFFICER RAYMOND COTTON;

:

CORRECTIONS OFFICER MICHAEL

:

DEFRANCISCO; CORRECTIONS OFFICER

:

RICHARD DIAZ; CORRECTIONS OFFICER JAI

:

JAIKISSON; CORRECTIONS OFFICER DEXTER

:

MOORE; CORRECTIONS OFFICER JON OSTEEN; :

CORRECTIONS OFFICER ANGEL PEREZ;

:

CORRECTIONS OFFICER SCOTT ROSEBERRY;

:

UNIT MANAGER CLEMMETT SHACKS; NORA

:

LORENZO, Physician’s Assistant; “JOHN DOE”

:

CORRECTIONS OFFICERS NOS. 1-19, “John Doe” :

being fictional first and last names; and the UNITED

:

STATES OF AMERICA.

:

:

Defendants.

:

----------------------------------------------------------------------------------- X

Pursuant to Fed. R. Civ. P. 15(a), and with the consent of counsel for defendants, Plaintiffs EHAB ELMAGHRABY and JAVAID IQBAL, by their attorneys, the Urban Justice Center and Koob & Magoolaghan, hereby amend their complaint to allege upon knowledge as to themselves and upon information and belief as to all other matters as follows:
NATURE OF ACTION
1. This is an action brought by Plaintiffs EHAB ELMAGHRABY and JAVAID IQBAL to remedy the brutal mistreatment and discrimination each Plaintiff suffered while in the care, custody, and control of Defendants. Plaintiffs ELMAGHRABY and IQBAL are Muslim men from Egypt and Pakistan, respectively. In the months after September 11, 2001, Plaintiffs were detained at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York. Plaintiffs were

2

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arbitrarily classified as being “of high interest” to the government’s terrorism investigation after September 11th, and accordingly were housed in the MDC’s Administrative Maximum (“ADMAX”) Special Housing Unit (“SHU”).
2. While in the ADMAX SHU, Plaintiffs were subjected to a pattern and practice of cruel, inhuman, and degrading treatment in violation of the First, Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution, federal statutory law, and customary international law. Among other things, they were deliberately and cruelly subjected to numerous instances of excessive force and verbal abuse, unlawful strip and body cavity-searches, the denial of medical treatment, the denial of adequate nutrition, extended detention in solitary confinement, the denial of adequate exercise, and deliberate interference with their rights to counsel and to exercise of their sincere religious beliefs. They were placed in tiny cells for more than 23 hours per day, and strip-searched, manacled and shackled when removed from their cells. Plaintiffs were housed in the ADMAX SHU in the absence of adequate standards or procedures for determining that such a classification was appropriate, or that the classification should continue, in violation of the Fifth Amendment to the United States Constitution.
3. Plaintiffs were singled out for such mistreatment because of their race, national origin, and religion. Defendants, by creating, participating in, and endorsing Plaintiffs’ systematic mistreatment, violated the principles enunciated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, the Religious Freedom Restoration Act (“RFRA”), 42 USC § 2000bb, the civil rights conspiracy statute, 42 U.S.C. § 1985(3), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq.
4. As a result of Defendants’ misconduct, Plaintiffs suffered severe and permanent
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physical injuries, and severe emotional distress and humiliation. Plaintiffs now bring this lawsuit to redress these wrongs and to seek just and fair compensation.
JURISDICTION AND VENUE 5. This action is brought pursuant to Bivens, under the First, Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution, 28 U.S.C. § 1346(b), 28 U.S.C. §1350, and 42 U.S.C. §§ 1985(3) and 2000bb. 6. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1346(b), and 1350. 7. Venue is proper in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 1391(b), as the events giving rise to this action occurred within this district.
PARTIES 8. Plaintiff EHAB ELMAGHRABY is a native and citizen of Egypt, where he currently resides. He was detained in the MDC from on or about October 1, 2001 to on or about August 28, 2002. 9. Plaintiff JAVAID IQBAL is a native and citizen of Pakistan, where he currently resides. He was detained in the MDC from on or about November 5, 2001 to on or about January 15, 2003. 10. Defendant JOHN ASHCROFT is the Attorney General of the United States. As Attorney General, Defendant ASHCROFT has ultimate responsibility for the implementation and enforcement of the immigration and federal criminal laws. He is a principal architect of the policies and practices challenged here. He authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained. 11. Defendant ROBERT MUELLER is the Director of the Federal Bureau of
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Investigation (“FBI”). As FBI Director, he was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here.
12. Defendant MICHAEL ROLINCE was at all relevant times the Chief of the FBI’s International Terrorism Operations Section, Counterterrorism Division, and as such was instrumental in the implementation of the policies and practices challenged here.
13. Defendant KENNETH MAXWELL was at all relevant times the Assistant Special Agent in Charge, New York Field Office, FBI and as such was instrumental in the implantation of the polices and practices challenged here.
14. Defendant KATHLEEN HAWK SAWYER was at all relevant times the Director of the Federal Bureau of Prisons. As such, Defendant SAWYER was responsible for the custody, care and control of the individuals detained in the MDC, including Plaintiffs, and was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. She authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
15. Defendant DAVID RARDIN was at all relevant times the Director of the Northeast Region of the Bureau of Prisons. As such, Defendant RARDIN was responsible for the custody, care and control of the individuals detained in the MDC, including Plaintiffs, and was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. He authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
16. Defendant MICHAEL COOKSEY was at all relevant times the Assistant Director for Correctional Programs of the Bureau of Prisons. As such, Defendant COOKSEY was responsible for ensuring a safe and secure institutional environment for the individuals detained
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in the MDC, including Plaintiffs, and was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. He authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs were detained.
17. Defendant DENNIS HASTY was at some relevant times the Warden of the MDC. While Warden, Defendant HASTY was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. While Warden, Defendant HASTY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
18. Defendant MICHAEL ZENK is currently the Warden of the MDC. As Warden, Defendant ZENK was responsible at some relevant times for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. As Warden, Defendant ZENK subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
19. Defendant LINDA THOMAS is the former Associate Warden of Programs of the MDC and was at all relevant times the Associate Warden of Programs of the MDC. While Associate Warden, Defendant THOMAS was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and mistreated Plaintiffs. As Associate Warden, Defendant THOMAS subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
20. Defendant SHERMAN is the Associate Warden of Custody of the MDC and was at all relevant times the Associate Warden of Custody of the MDC. While Associate Warden, Defendant SHERMAN was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising, hiring, and training officers who brutalized and
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mistreated Plaintiffs. As Associate Warden, Defendant SHERMAN subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
21. Defendant Captain SALVATORE LOPRESTI is and was at all relevant times employed at the MDC. While Captain, Defendant LOPRESTI was responsible for the terms and conditions under which Plaintiffs were confined at the MDC, and for supervising and training officers who brutalized and mistreated Plaintiffs. As Captain, Defendant LOPRESTI subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
22. Defendant Lieutenant STEVEN BARRERE is and was at all relevant times a federal corrections officer employed at the MDC. Defendant BARRERE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
23. Defendant Lieutenant WILLIAM BECK is and was at all relevant times a federal corrections officer employed at the MDC. Defendant BECK subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
24. Defendant Lieutenant LINDSEY BLEDSOE is and was at all relevant times a federal corrections officer employed at the MDC. Defendant BLEDSOE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
25. Defendant Lieutenant JOSEPH CUCITI was at all relevant times a federal corrections officer employed at the MDC. Defendant CUCITI subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
26. Defendant Lieutenant THOMAS CUSH is and was at all relevant times a federal corrections officer employed at the MDC. Defendant CUSH subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
27. Defendant Lieutenant HOWARD GUSSAK was at all relevant times a federal
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corrections officer employed at the MDC. Defendant GUSSAK subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
28. Defendant Lieutenant MARCIAL MUNDO is and was at all relevant times a federal corrections officer employed at the MDC. Defendant MUNDO subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
29. Defendant Lieutenant DANIEL ORTIZ is and was at all relevant times a federal corrections officer employed at the MDC. Defendant ORTIZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
30. Defendant Lieutenant ELIZABETH TORRES is and was at all relevant times a federal corrections officer employed at the MDC. Defendant TORRES subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
31. Defendant REYNALDO ALAMO is and was at all relevant times a corrections officer employed at the MDC. Defendant ALAMO subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
32. Defendant SYDNEY CHASE is and was at all relevant times a corrections officer employed at the MDC. Defendant CHASE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
33. Defendant JAMES CLARDY is and was at all relevant times a corrections officer employed at the MDC. Defendant CLARDY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
34. Defendant RAYMOND COTTON is and was at all relevant times a corrections officer employed at the MDC. Defendant COTTON subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
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35. Defendant MICHAEL DEFRANCISCO was at all relevant times a federal corrections officer employed at the MDC. Defendant DEFRANCISCO subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
36. Defendant RICHARD DIAZ is and was at all relevant times a federal corrections officer employed at the MDC. Defendant DIAZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
37. DEFENDANT JAI JAIKISSON is and was at all relevant times a federal corrections officer employed at the MDC. Defendant JAIKISSON subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
38. Defendant DEXTER MOORE is and was at all relevant times a federal corrections officer employed at the MDC. Defendant MOORE subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
39. Defendant JON OSTEEN was at all relevant times a federal corrections officer employed at the MDC. Defendant OSTEEN subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
40. Defendant ANGEL PEREZ is and was at all relevant times a federal corrections officer employed at the MDC. Defendant PEREZ subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
41. Defendant SCOTT ROSEBERRY is and was at all relevant times a federal corrections officer employed at the MDC. Defendant ROSEBERRY subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
42. Defendant CLEMMETT SHACKS is and was at all relevant times a federal corrections officer employed at the MDC. Defendant SHACKS was the Unit Manager for the
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ADMAX SHU. Defendant SHACKS subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
43. Defendant NORA LORENZO is and was at all relevant times a physician’s assistant employed at the MDC and was at all relevant times responsible for the delivery of medical care to Plaintiffs.
44. Defendants “JOHN DOE” CORRECTIONS OFFICERS NOS. 1-19, “John Doe” being fictional first and last names, are and were at all relevant times federal corrections officers employed at the MDC. Defendants DOE Nos. 1-19 subjected Plaintiffs to unreasonable and excessively harsh conditions of confinement.
45. Defendant UNITED STATES OF AMERICA, by virtue of the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., is liable for the tortuous conduct of the individual Defendants named herein, including assault, battery, negligence, and intentional infliction of emotional distress.
46. All Defendants named herein acted under color of federal law and within the scope of their office or employment.
STATEMENT OF FACTS General Background
47. In the months after September 11, 2001, the Federal Bureau of Investigation (“FBI”), under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men, designated herein as “post-September 11th detainees,” as part of its investigation of the events of September 11.
48. Many of these men, including Plaintiffs, were classified as being “of high interest” to the government’s post-September-11th investigation by the FBI without specific criteria or a
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uniform classification system. 49. In many cases, including Plaintiffs’, the classification was made because of the race,
religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity.
50. Defendants ROLINCE and/or MAXWELL were responsible for making the initial determination as to whether detainees arrested within the New York area in the weeks and months after September 11 were classified as “of high interest” to the government’s investigation.
51. Defendants ROLINCE and/or MAXWELL classified Mr. Elmaghraby and Mr. Iqbal as “of high interest” to the post-September-11th investigation because of their race, religion, and national origin, and not because of any evidence that Plaintiffs were involved in terrorist activity.
52. Indeed, within the New York area, all Arab Muslim men arrested on criminal or immigration charges while the FBI was following an investigative lead into the September 11th attacks – however unrelated the arrestee was to the investigation – were immediately classified as “of interest” to the post-September-11th investigation.
53. Those post-September 11th detainees classified by the FBI as being “of high interest” were confined at the MDC in Brooklyn, New York, in the ADMAX SHU, which is the Federal Bureau of Prisons’ (“BOP”) most restrictive type of confinement.
54. The ADMAX SHU was quickly created on MDC’s ninth floor to house postSeptember 11th detainees.
55. Prior to September 11, 2001, the MDC had a SHU, but not an ADMAX SHU. 56. The MDC had as many as 60 detainees housed in the ADMAX SHU at one time. 57. The officers who worked on the ADMAX SHU were selected by Defendants
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HASTY, SHERMAN, and LOPRESTI. 58. The procedures for handling detainees on the ADMAX SHU were developed by
Defendants SHERMAN, LOPRESTI, and CUCITI, at the request of Defendant HASTY. 59. The ADMAX SHU enforced a four-man hold restraint policy, the use of hand-held
cameras to record detainee movements, cameras in each cell to monitor detainees, and physical security enhancements.
60. Post-September 11th detainees in the ADMAX SHU were subjected to highly restrictive conditions of confinement. They were not permitted to move about the unit, use the telephone freely, nor were they permitted any electronic equipment in their cells, such as small radios. Post-September 11th detainees moved outside their cells only when they were restrained with handcuffs and leg irons and escorted by four staff members.
61. For many weeks, post-September 11th detainees in the ADMAX SHU were subjected to a communications blackout that barred them from receiving telephone calls, visitors, mail, and from placing telephone calls. During this period, the post-September 11th detainees, including Plaintiff ELMAGHRABY, were unable to make any contact with their attorneys or families.
62. Compounding this situation, MDC employees often turned away lawyers and family members who came to visit individual post-September 11th detainees by falsely stating that the individual detainee was no longer detained in the MDC.
63. Markedly different from the conditions in the MDC ‘s general population, detainees in the ADMAX SHU were permitted to leave their cells for only one hour a day, at most, and their legal and social visits were non-contact, with a clear partition between the parties.
64. Because of the highly restrictive nature of the ADMAX SHU, BOP regulations require an employee known as the Segregation Review Official to conduct a weekly review of
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the status of each inmate housed in the SHU after he has spent seven days in administrative detention or disciplinary segregation. The Segregation Review Official is also required to conduct a formal hearing every 30 days assessing the inmate’s status. The Segregation Review Official’s finding must be approved by the Reviewing Authority.
65. Although Defendants BLEDSOE, BECK, and ORTIZ were assigned to be Segregation Review Officials while Plaintiffs were held within the ADMAX SHU, Defendants BLEDSOE, BECK, and ORTIZ never conducted the individual reviews required by regulation to ensure that placement of Plaintiffs in ADMAX SHU was necessary to vindicate the safety and security interests of the MDC.
66. During the time that Defendants BLEDSOE, BECK, and ORTIZ worked as Segregation Review Officials, Defendant LOPRESTI was the Reviewing Authority. Defendant LOPRESTI approved BLEDSOE, BECK, and ORTIZ’s recommendation to continue holding Plaintiffs in the ADMAX SHU although LOPRESTI was aware that the required review procedures had not been followed.
67. The appropriate review processes were never provided to the post-September 11th detainees, including Plaintiffs. Instead, the detainees were held in the ADMAX SHU until the FBI approved their release to the general population unit.
68. Until the FBI approved the release of a particular detainee, MDC policy was to automatically annotate the detainee status with the phrase “continue high security.” The postSeptember 11th detainees were not afforded any hearings, and they remained under restrictive detention in the ADMAX SHU as a matter of policy until defendant COOKSEY issued a memorandum approving their release to general population.
69. The policy of holding post-September-11th detainees in highly restrictive conditions
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of confinement until they were “cleared” by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.
70. Consistent with this policy, on or about October 1, 2001, defendant COOKSEY directed that all detainees “of high interest” be confined in the most restrictive conditions possible until cleared by the FBI.
71. Defendant SAWYER was aware of and approved of the policies enunciated by Defendant COOKSEY with regard to the confinement of detainees “of high interest” in BOP facilities.
72. Defendants ROLINCE and MAXWELL, after mid-September 2001, were jointly responsible for determining whether a detainee had been “cleared” of any connection to terrorist activity.
73. Officials at FBI Headquarters in Washington, D.C., were aware that the BOP relied on the FBI classification to determine whether to detain prisoners in the ADMAX SHU at the MDC.
74. Nonetheless, Defendants ASHCROFT, MUELLER, and ROLINCE never imposed deadlines for the “clearance” process, and many detainees were held in the ADMAX SHU even after they were approved for release to the general population unit by the FBI.
75. As a result numerous detainees, including Plaintiffs, were held in ADMAX SHU for extended periods of time, although there was no evidence linking them to terrorist activity.
76. Moreover, defendants ROLINCE and MAXWELL failed to approve post-September 11 detainees’ release to general population based simply on the detainees’ race, religion, and national origin, and not based on any evidence that continued detention in ADMAX SHU was important or relevant to the FBI’s investigation of the events of September 11, 2001.
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Cruel and Inhumane Conditions of Confinement in the ADMAX SHU 77. Mr. ELMAGHRABY was arrested on or about September 30, 2001 by local and federal law enforcement agents. 78. On or about October 1, 2001, Mr. ELMAGHRABY was brought to the MDC and housed in the ADMAX SHU. 79. Mr. ELMAGHRABY was housed in the ADMAX SHU the entire time he was detained at the MDC from on or about October 1, 2001 to on or about August 28, 2002. 80. Mr. IQBAL was arrested on or about November 2, 2001 by INS and FBI agents. 81. On or about November 5, 2001 Mr. IQBAL was taken to the MDC and housed in the general population unit on the fifth floor. Mr. IQBAL was housed in the ADMAX SHU from on or about January 8, 2002 until approximately the end of July 2002, at which time he was released back to the general population unit. 82. While detained in the ADMAX SHU, Plaintiffs were kept in solitary confinement, not permitted to leave their cells for more than one hour each day with few exceptions, verbally and physically abused, routinely subjected to humiliating and unnecessary strip and body-cavity searches, denied access to basic medical care, denied access to legal counsel, denied adequate exercise and nutrition, and subjected to cruel and inhumane conditions of confinement. 83. The conditions of Plaintiffs’ confinement incited fear and anguish, exacerbated their physical pain and emotional distress, and subjected them to embarrassment and humiliation. 84. Plaintiffs were housed in small cells with the lights on almost 24 hours per day until in or about March 2002. MDC staff deliberately turned on the air conditioner throughout the winter months, and turned on the heat during the summer months.
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85. Plaintiffs were not provided with adequate bedding and personal hygiene items. Until in or about January 2002, Mr. ELMAGHRABY was not given a blanket, pillow, mattress, or any toilet paper. Similarly, Mr. IQBAL was never provided with pillows or more than one blanket.
86. Whenever Plaintiffs were removed from their cells, they were hand cuffed and shackled around their legs and waist.
87. Plaintiffs were subjected to continuous verbal abuse from the MDC staff, demonstrating their animus towards Plaintiffs. Such statements included Mr. IQBAL being called “a terrorist” by Defendant ZENK, “a terrorist and a killer” by Defendant GUSSAK, a “Muslim bastard” by Defendant COTTON, and a “Muslim killer” by Defendant PEREZ. Mr. ELMAGHRABY was called a terrorist” by Defendant SHACKS; when Mr. ELMAGHRABY requested a pair of shoes, Defendant THOMAS responded with a statement, “No shoes for a terrorist”; Defendant COTTON expressed the same animus when he said, “a terrorist should not ask for anything” to Mr. ELMAGHRABY.
88. Plaintiffs were rarely permitted to exercise, and the conditions under which they were permitted to exercise were punitive in effect and intent. For instance, when permitted to exercise in the winter, Plaintiffs were taken to the recreation areas in the ADMAX SHU, which were on the top floor of the MDC in the open-air, in early winter mornings without proper jackets and shoes.
89. On certain days when it rained, MDC officers took Mr. IQBAL to the recreation areas for exercise, and left him in the open-air for hours until he was completely drenched. When Mr. IQBAL was brought back to his cell, the officers deliberately turned on the air conditioner, causing him severe physical discomfort.
90. As the weather became milder, MDC officers permitted Mr. ELMAGHRABY to go
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to the recreation areas for his exercise. However, the officers permitted him to remain outside for only 15 minutes, in contrast to the cold winter months where the officers left Mr. ELMAGHRABY in the open-air for hours. In the summer months, when it was extremely hot and humid, MDC officers again left Mr. ELMAGHRABY outside for hours.
91. Moreover, Plaintiffs were not provided with adequate food. As a result of the harassment they experienced in the ADMAX SHU, and nutritionally inadequate food, Plaintiffs lost a significant amount of weight. While in custody, Mr. IQBAL lost over 40 pounds, and Mr. ELMAGHRABY lost over 20 pounds. Furthermore, as a result of not having adequate food for a prolonged period of time, Mr. IQBAL currently suffers from persistent digestive problems, causing him to require medical treatment.
92. Such conditions of confinement were punitive in intent and effect. 93. Such conditions of confinement were not related to any legitimate penological interest. 94. Such conditions of confinement were imposed without any individualized determination as to whether they were appropriate for Plaintiffs. 95. Indeed, the MDC’s Segregation Review Officials, Defendants BLEDSOE, BECK, and ORTIZ, never conducted a weekly review of Plaintiffs’ status regarding whether or not it was appropriate to continue to detain them in the ADMAX SHU. In addition, during the entire time Plaintiffs were housed in the ADMAX SHU, they never received a formal hearing to determine whether such confinement was appropriate. The MDC’s Reviewing Authority, Defendant LOPRESTI, nonetheless continued to approve Plaintiffs’ confinement in ADMAX SHU. 96. Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY,
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ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to these conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin and for no legitimate penological interest.
97. Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI willfully and maliciously designed a policy whereby individuals such as Plaintiffs were arbitrarily designated to be confined in the ADMAX SHU without providing any individual determination as to whether such designation was appropriate or should continue.
98. Keeping Plaintiffs in isolation for nearly 24 hours per day, without access to fresh air and light, adequate bedding, adequate heat, and without adequate recreation or exercise, bore no relationship to legitimate security concerns, constituted unjustified punishment, deprived Plaintiffs of their right to liberty, and amounted to the willful, malicious, and unnecessary infliction of pain and suffering.
99. As a result of Defendants’ imposition of unlawful conditions of confinement, Plaintiffs suffered permanent physical injury and emotional distress.
Use of Excessive Force on Ehab Elmaghraby 100. Mr. ELMAGHRABY’s brutal mistreatment by MDC staff began on the first day he arrived at the facility on or about October 1, 2001, in the early morning hours, when Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, and MOORE willfully and maliciously threw Mr. ELMAGHRABY against a wall of the MDC, subjected him to repeated strip searches, including leaving him naked for approximately 40 minutes, and threatened him with death. Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, and MOORE continually accused
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Mr. ELMAGHRABY of being a terrorist and being associated with Osama bin Laden, Al Qaeda, and the Taliban. Moreover, when Mr. ELMAGHRABY was transported to court on the same day, Defendants BECK, CHASE, DEFRANCISCO, and DIAZ subjected Mr. ELMAGHRABY to repeated strip searches and willfully and maliciously dragged him on the ground while he was chained and shackled, causing him to bleed from his legs.
101. Upon Mr. ELMAGHRABY’s return to the MDC, officers brought Mr. ELMAGHRABY up to ADMAX SHU in an elevator. In the elevator, several officers, including Defendants BARRERE, BECK, ORTIZ, MUNDO, and OSTEEN willfully and maliciously physically and verbally assaulted him, causing him to bleed from his nose.
102. Although the officers carried a video camera with them while abusing Mr. ELMAGHRABY, they deliberately turned it off during the entire time the officers physically and verbally abused Mr. ELMAGHRABY.
103. The treatment by Defendants BARRERE, BECK, BLEDSOE, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, and OSTEEN on October 1, 2001, caused Mr. ELMAGHRABY to suffer excruciating pain and emotional distress.
104. Mr. ELMAGHRABY was assaulted a second time, on or about December 1, 2001, when he was willfully and maliciously pushed from behind by DOE No. 1 upon Mr. ELMAGHRABY’s return from recreation.
105. As a result of being shoved, Mr. ELMAGHRABY hit his face on a hard surface and broke his teeth, causing him excruciating pain and emotional distress.
106. The beatings of Mr. ELMAGHRABY were motivated by Defendants’ animus against Mr. ELMAGHRABY on account of his race, religion, and/or national origin.
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107. There was no legal justification for the assaults and verbal abuse suffered by Mr. ELMAGHRABY.
108. The beatings of Mr. ELMAGHRABY by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
109. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to inflict unnecessary and assaultive beatings upon Mr. ELMAGHRABY, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
110. As a result of said willful, malicious, and unlawful conduct by Defendants, Mr. ELMAGHRABY suffered severe and permanent physical injury and extreme emotional distress.
Use of Excessive Force on Javaid Iqbal 111. Consistent with Mr. ELMAGHRABY’s experience of physical abuse, Mr. IQBAL was subjected to brutal mistreatment from the very day he was transferred from general population to the ADMAX SHU on or about January 8, 2002, after he was brought back to the MDC from court. 112. On the day he was transferred to the ADMAX SHU, he was told by an officer on the fifth floor that he had a legal visit.
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113. Mr. IQBAL was then taken to a room where Defendants DOE Nos. 2-16 were waiting for him. Several of these officers picked him up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room. In addition, the officers screamed at him, saying that he was a “terrorist” and a “Muslim.”
114. Mr. IQBAL was then taken to the ADMAX SHU. While he was being moved, he was shackled and chained around his arms, legs, and waist.
115. From this incident, Mr. IQBAL suffered serious physical injuries, including bleeding from his mouth and nose, as well as severe emotional distress.
116. Mr. IQBAL was again assaulted on or about March 20, 2002, when Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18 ordered Mr. IQBAL to submit to a strip and body-cavity search.
117. The officers conducted three serial strip and body-cavity searches of Mr. IQBAL in the same room. Although the officers had a handheld video camera, they turned it off while they conducted the searches.
118. Mr. IQBAL peacefully protested when the officers willfully and maliciously ordered him to submit to a fourth search.
119. In response, Defendant DEFRANCISCO punched Mr. IQBAL in the face and Defendant CUSH punched Mr. IQBAL in the back and his legs and kicked him in the back. As a result, Mr. IQBAL bled from his mouth. There was no legal justification for Defendants’ brutal assault of Mr. IQBAL.
120. The officers next took Mr. IQBAL to the ADMAX SHU. En route to the ADMAX SHU, the officers continued to kick, physically harass, and verbally harass him by making racist and violent comments about Muslims.
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121. When they arrived at the ADMAX SHU, Defendants DEFRANCISCO, CUSH, OSTEEN and DOE Nos. 17-18 willfully and maliciously pulled Mr. IQBAL’s arm through the slot in his cell door, causing him excruciating pain.
122. Defendant DEFRANCISCO willfully and maliciously urinated in the cell in Mr. IQBAL’s toilet, and then turned the water off in the cell so that he could not flush the toilet. Mr. IQBAL was not able to flush the toilet until the next morning.
123. The beatings of Mr. IQBAL were motivated by Defendants’ animus against Mr. IQBAL on account of his race, religion, and/or national origin.
124. The beatings of Mr. IQBAL by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
125. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to inflict unnecessary and assaultive beatings upon Mr. IQBAL, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
126. As a result of said willful, malicious, and unlawful conduct by Defendants, Mr. IQBAL currently suffers permanent physical and emotional injuries, including but not limited to limited hearing, permanent injury to his right leg, gastrointestinal problems, and depression.
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Strip and Body Cavity Searches of Mr. Elmaghraby 127. Mr. ELMAGHRABY was subjected to numerous unreasonable, unnecessary and extreme strip and body-cavity searches while confined in the ADMAX SHU. 128. During the first three or four months of his detention, Mr. ELMAGHRABY was strip searched every morning. The officers ordered him to take off his clothes and inspected him through the slot in the door before they entered the cell. Defendants BECK, GUSSAK, ORTIZ, BARRERE, DIAZ, MUNDO, OSTEEN, and ROSEBERRY willfully and maliciously subjected Mr. ELMAGHRABY to these strip searches, although they were not related to any legitimate security or penological interest. 129. Along with being strip searched every morning for the first several months of his detention, every time Mr. ELMAGHRABY went to court, and each time he returned to court, he was strip and body-cavity searched three times. 130. Upon leaving for court, the first search occurred in Mr. ELMAGHRABY’s cell in the ADMAX SHU, the second search in a different room in the ADMAX SHU, and the final search on the ground floor of MDC. When Mr. ELMAGHRABY returned from court, the searches occurred in reverse order. These searches occurred on or about the following dates: October 1, October 2, November 5, November 8, and December 11, 2001, and January 8, February 12, February 13, and July 22, 2002. During these searches, Mr. ELMAGHRABY was ordered to pass his clothes to a corrections officer and bend over while a corrections officer used a flashlight to search his body cavities. 131. None of these searches vindicated any legitimate security or penological interest. Indeed, the second and third searches were particularly egregious, because they were conducted even though Mr. ELMAGHRABY was in the custody of MDC employees from the moment he
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was first searched until after he was searched for the third time. 132. While the strip and body cavity-searches were conducted, Mr. ELMAGHRABY
was threatened, mocked and verbally abused. In addition, he was regularly pushed and shoved. 133. Defendants BECK, GUSSAK, ORTIZ, BARRERE, MUNDO, DIAZ, OSTEEN,
and ROSEBERRY willfully and maliciously participated in and conducted the strip searches of Mr. ELMAGHRABY.
134. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS willfully and maliciously approved of, endorsed, and/or ordered that the searches take place as a matter of policy.
135. On many occasions, Defendants conducted the strip searches in an extreme and outrageous manner. For instance, on one occasion, Defendant BARRERE willfully and maliciously displayed Mr. ELMAGHRABY while naked to a female employee of the MDC. On or about October 1, 2001, while Defendants BECK, ORTIZ, MUNDO, and OSTEEN were present for a body-cavity search of Mr. ELMAGHRABY, Defendant BARRERE willfully and maliciously inserted a flashlight into Mr. ELMAGHRABY’s anal cavity. Mr. ELMAGHRABY noticed blood on the flashlight when it was removed from his anal cavity. On or about November 8, 2001, while Defendant DEFRANCISCO conducted a strip-search of Mr. ELMAGHRABY with other MDC officers, Defendant DEFRANCISCO inserted a pencil into Mr. ELMAGHRABY’s anal cavity. Additionally, on or about January 8, 2002, Defendants MUNDO, COTTON, DEFRANCISCO, and OSTEEN conducted a strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY’s anal cavity.
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Strip and Body Cavity Searches of Mr. Javaid Iqbal 136. As with Mr. ELMAGHRABY, Mr. IQBAL was also subjected to numerous unreasonable, unnecessary and extreme strip and body-cavity searches while confined in the ADMAX SHU. 137. Each morning, MDC corrections officers first searched Mr. IQBAL’s cell. During this search, Mr. IQBAL was chained and shackled and was routinely kicked and punched by MDC officers. 138. After the cell search, Mr. IQBAL was subjected to a strip and body-cavity search. 139. In addition to the daily strip and body-cavity searches, each time Mr. IQBAL visited the medical clinic for treatment, he was subjected to three strip searches, once before the medical visit and twice after the visit. 140. On days when he appeared in court, Mr. IQBAL was strip searched twice before he even left the building. As usual, Mr. IQBAL was subjected to a strip and cavity-search on or about 5:30 am. Mr. IQBAL was strip searched including a cavity search right before the MDC officers escorted him from his cell to the first floor of the building. The second search occurred on or about 7:40 am. When Mr. IQBAL returned from court, he also was subjected to two strip searches. These searches occurred on or about the following dates: February 19, 2002, March 6, 2002, March 20, 2002, and April 22, 2002. 141. Defendants BECK, BARRERE, ORTIZ, OSTEEN, PEREZ, ROSEBERRY, and DOE No. 19 willfully and maliciously participated in and conducted these strip searches. 142. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS willfully and maliciously approved of, endorsed, and/or ordered that these searches take place as a matter of policy.
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143. On many occasions, Defendants conducted the strip searches in an extreme and outrageous manner. For instance, on or about March 20, 2002, Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18 ordered Mr. IQBAL to submit to a strip and body-cavity search.
144. The officers conducted three serial strip and body cavity searches of Mr. IQBAL in the same room. Although the officers had a handheld video camera, they turned it off while they conducted the searches.
145. Mr. IQBAL peacefully protested when the officers willfully and maliciously ordered him to submit to a fourth and completely unnecessary search.
146. In response Defendants assaulted Mr. IQBAL, as described in Pars. 116-122. 147. The strip search policy established and implemented by Defendants did not vindicate any legitimate security or penological interest. 148. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to unreasonable, unnecessary and extreme strip and body-cavity searches. 149. The imposition of unreasonable, unnecessary and extreme strip and body-cavity searches were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
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150. Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to conduct unreasonable, unnecessary and extreme strip searches, and Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
151. Plaintiffs were subjected to unreasonable, extreme and unnecessary strip and bodycavity searches because of their race, religion, and/or national origin and for not legitimate penological purpose.
152. As a result of Defendants’ actions, Plaintiffs suffered physical injury, extreme emotional distress, humiliation, and embarrassment.
Interference with Religious Practice 153. During the entire time that Plaintiffs were confined in the ADMAX SHU, their sincere religious practices and beliefs were constantly burdened and met with interference. Such interference included banging on the cells when they were praying, routinely confiscating their Koran, and refusing to permit Plaintiffs to participate in Friday prayer services with fellow Muslims. 154. When Plaintiffs asked for Friday prayer services with fellow Muslims, they were met with comments such as, “No prayers for terrorists” by Defendant THOMAS and “Why do you need to pray when you are in jail? Go to sleep,” by Defendant SHACKS. 155. Said interference was an undue burden on Plaintiffs’ sincere religious practice and belief.
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156. Moreover, the targeting of Plaintiffs for physical and verbal harassment and the imposition of restrictive conditions of confinement constituted an undue burden on Plaintiffs’ sincere religious practice and belief.
157. Although Mr. ELMAGHRABY complained to Defendants THOMAS, HASTY, ZENK, SHACKS, COTTON, and BARRERE about the interference with his religious practice, said Defendants willfully and maliciously refused to take any action to remedy the situation.
158. Defendants SHACKS, PEREZ, DEFRANCISCO, TORRES, and COTTON were each aware of the interference with Mr. IQBAL’s religious practice, and nonetheless each Defendant agreed to, endorsed, and willfully and maliciously participated in the routine confiscation of his Koran.
159. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously failed to prevent this interference with Plaintiffs’ religious practice.
160. The interference with Plaintiffs’ religious practice by MDC staff were all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
161. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to interfere with Plaintiffs’ religious practice, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take
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remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
162. Defendants did not similarly interfere with the religious practice of non-Muslims. 163. As a result of Defendants’ intentional interference with Plaintiffs’ religious practice, each Plaintiff suffered extreme emotional distress.
Interference with Right to Counsel 164. Defendant COTTON was the counselor for the ADMAX SHU and determined whether and when detainees were permitted visitation or phone calls. 165. While in the ADMAX SHU, Plaintiffs’ communication with their legal counsel was substantially interfered with by Defendants COTTON and SHACKS. 166. For instance, from on or about October 1, 2001, until in or about the last week of November 2001, Defendant COTTON prohibited Mr. ELMAGHRABY from speaking by telephone with his criminal defense attorney. 167. After in or about November 2001, on those occasions when Mr. ELMAGHRABY was permitted to speak with his criminal attorney, Defendant COTTON stood nearby and disconnected the phone when Mr. ELMAGHRABY complained about any of the conditions of his confinement in the ADMAX SHU. 168. Similarly, on those occasions when Mr. IQBAL was permitted to speak with his criminal attorney, Defendant COTTON stood nearby and disconnected the phone if Mr. IQBAL complained about any of the conditions of his confinement in the ADMAX SHU. 169. When Mr. ELMAGHRABY’s attorney tried to visit him at the MDC, she often waited for hours without seeing Mr. ELMAGHRABY. 170. On those occasions when Mr. ELMAGHRABY was able to meet with his attorney
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at the MDC, a video camera recorded the visit and when he returned to his cell, he would find that it had been ransacked. On these occasions, even though his legal visit was non-contact, Mr. ELMAGHRABY was forced to submit to a strip search.
171. Mr. IQBAL’s attorney was turned away from the MDC several times, being falsely informed that Mr. IQBAL had been transferred to another facility. Additionally, Defendant SHACKS routinely delayed Mr. IQBAL’s receipt of legal mail, sometimes by up to two months.
172. As a result, Plaintiffs’ communication with counsel was substantially interfered with.
173. Defendants SAWYER, HASTY, THOMAS, SHERMAN, LOPRESTI, COTTON and SHACKS each knew of and condoned the imposition of substantial restrictions on Plaintiffs’ right to communicate with counsel.
174. The imposition of these restrictions was all pursuant to the customs and practices of the MDC. Such unlawful customs and practices were known or should have been known to Defendants SAWYER, HASTY, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
175. Defendants SAWYER, HASTY, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to substantially interfere with Plaintiffs’ right to counsel, and Defendants SAWYER, HASTY, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
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176. Plaintiffs’ right to communicate with counsel was interfered with because of their race, religion, and/or national origin.
177. As a result of Defendants’ actions, Plaintiffs suffered extreme emotional distress.
Deliberate Indifference to Serious Medical Needs 178. Both Plaintiffs also were denied access to constitutionally adequate medical care. 179. On or about December 1, 2001, Mr. ELMAGHRABY was pushed from behind by Defendant DOE No. 1, upon Mr. ELMAGHRABY’s return from recreation. 180. As a result of being shoved, Mr. ELMAGHRABY hit his face on a hard object and broke his teeth. 181. Defendant LORENZO provided Mr. ELMAGHRABY with antibiotics for his injury, but they were confiscated by Defendant ORTIZ when Mr. ELMAGHRABY returned to the ADMAX SHU. 182. Mr. ELMAGHRABY complained to Defendant SHACKS, who asked Mr. ELMAGHRABY why he needed his teeth. 183. As a result of Defendants’ mistreatment, Mr. ELMAGHRABY suffered extreme pain and emotional distress. 184. Moreover, while Mr. ELMAGHRABY was confined in the ADMAX SHU, Defendant LORENZO erroneously diagnosed him with asthma and prescribed him with asthma medication. 185. As a result of Defendant LORENZO’s misdiagnosis, Mr. ELMAGHRABY’s actual condition, hypothyroid, became worse and he had to undergo surgery to correct the problem. 186. As a result of this cruel and inhuman treatment, Mr. ELMAGHRABY suffered and
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continues to suffer severe emotional distress, as well as persistent physical injuries. 187. On or about March 21, 2002, the day after Mr. IQBAL had been beaten by
Defendants CUSH and DEFRANCISCO, as described in Pars. 116-122, Mr. IQBAL requested medical assistance from Defendant LORENZO. Defendant SHACKS, however, told Defendant LORENZO to leave the ADMAX SHU without providing any medical assistance, and Defendant COTTON also refused Mr. IQBAL’s requests for medical assistance.
188. Mr. IQBAL did not receive any medical care for two weeks after he was brutally assaulted, despite the fact that he was experiencing excruciating pain and suffering.
189. Defendants LORENZO, COTTON, ORTIZ, and SHACKS willfully and maliciously failed and refused to provide adequate medical care to Plaintiffs. Said deficiencies in the provision of adequate medical care include but are not limited to the following: Defendants LORENZO, COTTON, and SHACKS’s refusal to provide treatment to Mr. IQBAL until about two weeks after he was assaulted on or about March 20, 2002; Defendant LORENZO’s failure to properly diagnose Mr. ELMAGHRABY’s hypothyroid condition; and Defendants ORTIZ and SHACKS’s confiscation of the antibiotics prescribed by Defendant LORENZO as a result of the brutal assault of Mr. ELMAGHRABY on or about December 1, 2001.
190. Defendants LORENZO, COTTON, ORTIZ, and SHACKS, acting under color of federal law, by their actions and/or omissions, willfully and maliciously demonstrated deliberate indifference to Plaintiffs’ life and safety and/or serious medical needs.
191. Defendants LORENZO, COTTON, ORTIZ, and SHACKS, acting under color of federal law, by their actions and/or omissions, willfully and maliciously denied Plaintiffs’ life, liberty, and/or property without due process of law.
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192. Defendants LORENZO, COTTON, ORTIZ, and SHACKS each knew or should have known of the deficiencies alleged herein which were within his/her jurisdiction.
193. Defendants LORENZO, COTTON, ORTIZ, and SHACKS each knew or should have known that there was a foreseeable risk of serious harm as a result of the deficiencies alleged herein.
General Allegations 194. Defendants BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19 each knew of, participated in, and willfully and maliciously subjected Plaintiffs to the mistreatment described herein. 195. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19 were aware of, approved of, and willfully and maliciously created these unlawful conditions of confinement. 196. The repeated beatings and mistreatment of Plaintiffs were pursuant to the policy and practice of the MDC. Such unlawful customs and practices were known or should have been known to Defendants HASTY, ZENK, THOMAS, SHERMAN, and LOPRESTI, who with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
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197. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS knew of or should have known of the propensity of their subordinates to subject Plaintiffs to the beatings and other mistreatment described herein, and Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, with deliberate indifference to and/or reckless disregard for the risk of failing to take remedial action, subsequently failed to institute, create, or enforce reasonable policies or procedures to curtail such unlawful activity.
198. Defendants specifically targeted Plaintiffs for mistreatment because of Plaintiffs’ race, religion, and/or national origin.
199. Defendants’ conduct imposed an undue burden on Plaintiffs’ sincere religious belief and practice.
200. As a result of Defendants’ malicious, willful, and unlawful conduct, Plaintiffs suffered severe and permanent physical injuries and severe emotional distress.
FIRST CAUSE OF ACTION (Conditions of Confinement – Fifth Amendment Due Process) 201. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 200. 202. By willfully and maliciously subjecting Plaintiffs to outrageous, excessive, cruel, inhuman and degrading conditions of confinement, including the denial of adequate nutrition, the denial of adequate exercise, the imposition of unnecessary and unlawful strip and body-cavity searches, extended detention in solitary confinement, and subjection to unprovoked and unjustified physical and emotional abuse, Defendants BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS,
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and DOE Nos. 1-19, acting under color of law and their authority as federal officers, have deprived Plaintiffs of liberty and/or property without due process of law in violation of the Fifth Amendment to the United States Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy Plaintiffs’ mistreatment, have deprived Plaintiffs of liberty and/or property without due process of law in violation of the Fifth Amendment to the United States Constitution.
203. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered severe pain and suffering, including physical injuries, emotional distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SECOND CAUSE OF ACTION (Assignment to ADMAX SHU – Fifth Amendment Due Process) 204. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 203. 205. By willfully and maliciously adopting, promulgating and implementing the policy and practice under which Plaintiffs were confined to solitary confinement in the ADMAX SHU in an arbitrary and unreasonable manner, without any defined criteria, contemporaneous review, or process of any sort, and by which classifications Plaintiffs experienced unnecessary and unreasonable restrictions on their liberty that were atypical and significant departures from the
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restrictions imposed upon detainees in general population, Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BECK, BLEDSOE, ORTIZ, and SHACKS, acting under color of law and their authority as federal officers, have intentionally or recklessly deprived Plaintiffs of liberty without due process of law in violation of the Fifth Amendment to the United States Constitution.
206. As a result of Defendants’ unlawful conduct, Plaintiffs suffered emotional distress humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BECK, BLEDSOE, ORTIZ, and SHACKS, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
THIRD CAUSE OF ACTION (Excessive Force – Fifth Amendment Due Process)
207. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 206.
208. The unprovoked, unjustified, willful, and malicious intentional beatings of Plaintiffs by Defendants BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18 deprived Plaintiffs of their right to liberty and property in violation of the Fifth Amendment to the United State Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiffs, deprived Plaintiffs of their right to
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liberty and property in violation of the Fifth Amendment to the United States Constitution. 209. As a proximate result of the excessive force wielded against them, Plaintiffs
sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great pain and suffering, both mental and physical, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FOURTH CAUSE OF ACTION (Excessive Force – Eighth Amendment Cruel and Unusual Punishment)
210. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 209.
211. The unprovoked, unjustified, willful, and malicious intentional beatings of Plaintiffs by Defendants BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18 constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiffs, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
212. As a proximate result of the excessive force wielded against them, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have
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caused and will continue to cause Plaintiffs great pain and suffering, both mental and physical, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FIFTH CAUSE OF ACTION (Interference with Right to Counsel – Sixth Amendment) 213. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 212. 214. By willfully and maliciously adopting, promulgating, failing to prevent, failing to remedy, and/or implementing the policy and practice under which Plaintiffs’ access to counsel was substantially interfered with, Defendants HASTY, THOMAS, SHERMAN, LOPRESTI, SHACKS, and COTTON violated Plaintiffs’ right to counsel guaranteed by the Sixth Amendment of the United States Constitution. 215. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered emotional distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, THOMAS, SHERMAN, LOPRESTI, SHACKS, and COTTON jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SIXTH CAUSE OF ACTION (Denial of Medical Treatment – Fifth Amendment Due Process) 216. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in
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paragraphs numbered 1 through 215. 217. By denying Plaintiffs their right to adequate medical examination and care,
Defendants LORENZO, COTTON, ORTIZ, and SHACKS deprived Plaintiffs of their liberty and property without due process of law in violation of the Fifth Amendment to the United States Constitution.
218. As a result of Defendants’ unlawful conduct, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great emotional distress and physical pain and suffering, and accordingly each Plaintiff is entitled to compensatory damages against LORENZO, COTTON, ORTIZ, and SHACKS jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SEVENTH CAUSE OF ACTION (Denial of Medical Treatment – Eighth Amendment Cruel and Unusual Punishment)
219. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 218.
220. By denying Plaintiffs their right to adequate medical examination and care, Defendants LORENZO, COTTON, ORTIZ, and SHACKS exhibited deliberate indifference to Plaintiffs’ serious medical needs in violation of the Eighth Amendment to the United States Constitution.
221. As a result of Defendants’ unlawful conduct, Plaintiffs sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiffs great emotional distress and physical pain and suffering, and accordingly each Plaintiff is entitled to compensatory damages against LORENZO, COTTON, ORTIZ, and
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SHACKS jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
EIGHTH CAUSE OF ACTION (Conditions of Confinement – Eighth Amendment Due Process) 222. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 221. 223. By willfully and maliciously subjecting Plaintiffs to outrageous, excessive, cruel, inhuman and degrading conditions of confinement, including the denial of adequate nutrition, the denial of adequate exercise, the imposition of unnecessary and unlawful strip and body-cavity searches, extended detention in solitary confinement, and subjection to unprovoked and unjustified physical and emotional abuse, Defendants BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, and DOE Nos. 1-19, acting under color of law and their authority as federal officers, subjected Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy Plaintiffs’ mistreatment, subjected Plaintiffs to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. 224. As a result of Defendants’ unlawful conduct, Plaintiffs have suffered severe pain and suffering, including physical injuries, emotional distress, humiliation, and embarrassment, and accordingly each Plaintiff is entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON,
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DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
NINTH CAUSE OF ACTION (Unreasonable Strip and Body Cavity-Searches – Fourth Amendment) 225. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 224. 226. By willfully and maliciously adopting, promulgating, failing to prevent, failing to remedy, and/or implementing the policy and practice under which Plaintiffs were repeatedly subjected to unreasonable and unjustified strip and body-cavity searches, Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, ORTIZ, BARRERE, COTTON, DEFRANCISCO, DIAZ, MUNDO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 17-19 subjected Plaintiffs to unreasonable searches and seizures in violation of the Fourth Amendment to the United States Constitution. 227. As a result of Defendants SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, ORTIZ, BARRERE, COTTON, DEFRANCISCO, DIAZ, MUNDO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 17-19’s unlawful conduct, Plaintiffs suffered physical injuries, emotional distress, humiliation, and embarrassment. Plaintiffs are therefore entitled to compensatory damages against SAWYER, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, ORTIZ, BARRERE, COTTON, DEFRANCISCO, DIAZ, MUNDO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 17-19 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined
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at trial.

TENTH CAUSE OF ACTION (Interference With Religious Practice – First Amendment)

228. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 227.
229. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of interfering with Plaintiffs’ religious practices, violated Plaintiffs’ rights under the First Amendment to the United States Constitution.
230. As a result, Plaintiffs suffered extreme emotional distress and accordingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
ELEVENTH CAUSE OF ACTION (Discrimination Against Muslims – First Amendment) 231. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 230. 232. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs’ sincere religious beliefs

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violated Plaintiffs’ rights under the First Amendment to the United States Constitution. 233. As a result, Plaintiffs suffered extreme physical injuries and emotional distress,
including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
TWELFTH CAUSE OF ACTION (Race Discrimination – Fifth Amendment Equal Protection) 234. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 233. 235. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, and DOE Nos. 1-19, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs’ race violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution. 236. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE,
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CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
THIRTEENTH CAUSE OF ACTION (Conditions of Confinement – RFRA) 237. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 236. 238. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, and DOE Nos. 1-19, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of imposing harsher conditions of confinement on Plaintiffs because of Plaintiffs’ sincere religious beliefs, substantially burdened Plaintiffs’ religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-1. 239. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY,
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SHACKS, and DOE Nos. 1-19, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FOURTEENTH CAUSE OF ACTION (Interference With Religious Practice – RFRA) 240. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 239. 241. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, and SHACKS, by adopting, promulgating, failing to prevent, failing to remedy, and/or implementing a policy and practice of confiscating Plaintiffs’ religious materials, regularly interrupting Plaintiffs’ daily prayers, and denying Plaintiffs access to Friday prayers, substantially burdened Plaintiffs’ religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-1. 242. As a result, Plaintiffs suffered extreme emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, TORRES, COTTON, DEFRANCISCO, PEREZ, SHACKS, and COTTON jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
FIFTEENTH CAUSE OF ACTION (Excessive Force – RFRA)
243. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 242.
244. Defendants BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, and DOE Nos.1-18, by brutally beating and verbally abusing Plaintiffs because of
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Plaintiffs’ sincere religious beliefs, imposed a substantial burden on Plaintiffs’ religious exercise and belief, without any legitimate justification, in violation of 42 U.S.C. §§ 2000bb-1. Defendants, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiffs, acted in violation of 42 U.S.C. §§ 2000bb-1.
245. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, OSTEEN, SHACKS, and DOE Nos.1-18, jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SIXTEENTH CAUSE OF ACTION (Religious Discrimination – 42 U.S.C. § 1985(3)) 246. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 245. 247. Defendants, by engaging in the following conduct, agreed to deprive Plaintiffs of the equal protection of the laws and of equal privileges and immunities of the laws of the United States because of Plaintiffs’ sincere religious belief, resulting in injury to Plaintiffs’ person and property, in violation of 42 U.S.C. § 1985(3): Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessarily harsh conditions of confinement in ADMAX SHU without due process of law; Defendants BARRERE, BECK, BLEDSOE, ORTIZ,
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MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, and OSTEEN’s agreement to brutally mistreat Mr. ELMAGHRABY on or about October 1, 2001; Defendants DOE Nos. 2-16’s agreement to brutally assault Mr. IQBAL on or about January 8, 2002; Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18’s agreement to subject Mr. IQBAL to unnecessary strip and body-cavity searches on or about March 20, 2002, and brutally beat him in response to his peaceful protest of the searches; Defendants BECK, ORTIZ, BARRERE, MUNDO, and OSTEEN’s agreement on or about October 1, 2001 to conduct an extreme and cruel body-cavity search of Mr. ELMAGHRABY during which Defendant BARRERE willfully and maliciously inserted a flashlight into Mr. ELMAGHRABY’s anal cavity; Defendants MUNDO, COTTON, DEFRANCISCO, and OSTEEN’s agreement on or about January 8, 2002 to conduct an extreme and cruel strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY’s anal cavity; Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessary and extreme strip and body-cavity searches as a matter of policy; Defendants SHACKS, PEREZ, DEFRANCISCO, TORRES, and COTTON’s agreement to routinely confiscate Mr. IQBAL’s Koran; and Defendants THOMAS, HASTY, ZENK, SHACKS, COTTON, and BARRERE’s agreement to substantially burden Mr. ELMAGHRABY’s religious practice while he was housed in ADMAX SHU.
248. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, MUNDO, ORTIZ,
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TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, SHACKS, and DOE Nos. 2-18 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
SEVENTEENTH CAUSE OF ACTION (Race and National Origin Discrimination – 42 U.S.C. § 1985(3)) 249. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 248. 250. Defendants, by engaging in the following conduct, agreed to deprive Plaintiffs of the equal protection of the laws and of equal privileges and immunities of the laws of the United States because of Plaintiffs’ race and/or national origin, resulting in injury to Plaintiffs’ person and property, in violation of 42 U.S.C. § 1985(3): Defendants ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessarily harsh conditions of confinement in ADMAX SHU without due process of law; Defendants BARRERE, BECK, BLEDSOE, ORTIZ, MUNDO, ALAMO, CHASE, CLARDY, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, and OSTEEN’s agreement to brutally mistreat Mr. ELMAGHRABY on or about October 1, 2001; Defendants DOE Nos. 2-16’s agreement to brutally assault Mr. IQBAL on or about January 8, 2002; Defendants CUSH, DEFRANCISCO, OSTEEN, and DOE Nos. 17-18’s agreement to subject Mr. IQBAL to unnecessary strip and body-cavity searches on or about March 20, 2002, and brutally beat him in response to his peaceful protest of the searches; Defendants BECK, ORTIZ, BARRERE, MUNDO, and OSTEEN’s agreement on or about October 1, 2001 to conduct an extreme and cruel body-cavity search of Mr. ELMAGHRABY during which Defendant BARRERE willfully and maliciously inserted a flashlight into Mr.
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ELMAGHRABY’s anal cavity; Defendants MUNDO, COTTON, DEFRANCISCO, and OSTEEN’s agreement on or about January 8, 2002 to conduct an extreme and cruel strip search of Mr. ELMAGHRABY in which Defendant COTTON willfully and maliciously pushed a pencil into Mr. ELMAGHRABY’s anal cavity; Defendants SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS’s agreement to subject Plaintiffs to unnecessary and extreme strip and body-cavity searches as a matter of policy; Defendants SHACKS, PEREZ, DEFRANCISCO, TORRES, and COTTON’s agreement to routinely confiscate Mr. IQBAL’s Koran; and Defendants THOMAS, HASTY, ZENK, SHACKS, COTTON, and BARRERE’s agreement to substantially burden Mr. ELMAGHRABY’s religious practice while he was housed in ADMAX SHU.
251. As a result, Plaintiffs suffered extreme physical injuries and emotional distress, including permanent injuries, and accordingly are entitled to compensatory damages against ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, PEREZ, SHACKS, and DOE Nos. 2-18 jointly and severally in an amount to be determined at trial and punitive damages against each Defendant in an amount to be determined at trial.
EIGHTEENTH CAUSE OF ACTION (Assault and Battery- FTCA)
252. Plaintiff IQBAL repeats and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 251.
253. Defendants BARRERE, BECK, CUSH, GUSSAK, ORTIZ, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 2-18, by kicking, punching, and beating
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Plaintiff IQBAL without consent, intentionally caused offensive and harmful contact with Plaintiff IQBAL, so as to constitute battery under the laws of New York State, where the relevant acts took place. The batteries committed upon Plaintiff IQBAL were not related to any penological interest. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by negligently failing to take reasonable measures to prevent and/or remedy their subordinates’ abuse of Plaintiff IQBAL, violated the laws of New York State.
254. In committing the unprovoked and unjustified batteries upon Plaintiff IQBAL in a willful and malicious manner, Defendants BARRERE, BECK, CUSH, GUSSAK, ORTIZ, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 1-18 placed Plaintiff IQBAL in imminent apprehension of offensive and harmful contact, so as to constitute assault under the laws of New York State.
255. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BARRERE, BECK, CUSH, GUSSAK, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 2-18 were acting within the scope of their employment by the United States when Plaintiff IQBAL was subjected to the batteries and were working as law enforcement officers as defined by 28 U.S.C. §2680(h).
256. Pursuant to 28 U.S.C. §2675(a), the claims set forth herein were timely presented to the Bureau of Prisons on November 3, 2003 and the said claims were denied on April 27, 2004.
257. As a proximate result of the assault and batteries committed against him, Plaintiff IQBAL sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff IQBAL great pain and suffering, both mental and physical, and accordingly he is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
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NINTEENTH CAUSE OF ACTION (Negligent Denial of Medical Treatment- FTCA) 258. Plaintiff IQBAL repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 257. 259. By refusing to provide Plaintiff IQBAL with adequate medical examination and care, Defendants LORENZO, COTTON, SHACKS, acting under color of federal law and their authority as federal officers, have breached their duty under 18 U.S.C. § 4042(a)(2) to take ordinary diligence or reasonable care to keep Plaintiff IQBAL safe and free from harm, so as to constitute negligence under the laws of New York State, where the relevant actions took place. 260. Pursuant to 28 U.S.C. § 2875(a), the claims set forth herein were timely presented to the Bureau of Prisons on November 3, 2003 and the said claims were denied on April 27, 2004. 261. As a result of Defendants’ unlawful conduct, Plaintiff IQBAL sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff IQBAL great emotional distress and physical pain and suffering, and accordingly Plaintiff is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
TWENTIETH CAUSE OF ACTION (Intentional Infliction of Emotional Distress- FTCA) 262. Plaintiff IQBAL repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 261. 263. Defendants BARRERE, BECK, CUSH, GUSSAK, ORTIZ, DEFRANCISCO, OSTEEN, PEREZ, ROSEBERRY, and DOE Nos. 2-18, acting under color of law and their authority as federal officers, maliciously subjected Plaintiff IQBAL to outrageous conduct of
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repeated instances of assault and batteries, extreme strip and body cavity-searches, the denial of medical treatment and adequate nutrition, extended detention in solitary confinement, deliberate interference with their rights to counsel and to exercise of their religious beliefs and practices with the intent to causing and reckless disregard of a substantial probability of causing several emotional distress and physical pain and suffering. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, by negligently failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiff IQBAL violated the laws of New York State.
264. Pursuant to 28 U.S.C. § 2875(a), the claims set forth herein were timely presented to the Bureau of Prisons on November 3, 2003 and the said claims were denied on April 27, 2004.
265. As a result, Plaintiff IQBAL suffered extreme and lasting emotional distress, humiliation, embarrassment, and permanent physical injuries, and accordingly is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
TWENTY-FIRST CAUSE OF ACTION (Cruel, Inhuman, or Degrading Treatment – Customary International Law) 266. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 265. 267. The acts described herein had the intent and the effect of grossly humiliating Plaintiffs, forcing them to act against their will and conscience, inciting fear and anguish, and breaking their physical and moral resistance. 268. The acts described herein constituted cruel, inhuman or degrading treatment in
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violation of the law of the nations under the Alien Tort Claims Act, 28 U.S.C. §1350, in that the acts violated customary international law prohibiting cruel, inhuman or degrading treatment as reflected, expressed, and defined in multilateral treaties and other international treatments, international and domestic judicial decisions.
269. Defendants ASHCROFT, MUELLER, ROLINCE, MAXWELL, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, BARRERE, BECK, BLEDSOE, CUCITI, CUSH, GUSSAK, MUNDO, ORTIZ, TORRES, ALAMO, CHASE, CLARDY, COTTON, DEFRANCISCO, DIAZ, JAIKISSON, MOORE, OSTEEN, PEREZ, ROSEBERRY, SHACKS, LORENZO, and DOE Nos. 1-19 are liable for said conduct in that Defendants, acting under the color of law and their authority as federal officers, directed, ordered, confirmed, ratified and/or conspired to cause cruel, inhuman or degrading treatment of Plaintiffs.
270. Plaintiffs were forced to suffer severe physical and psychological abuse and emotional distress and are entitled to monetary damages.
TWENTY-SECOND CAUSE OF ACTION (Assault and Battery-FTCA)
271. Plaintiff ELMAGHRABY repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 270.
272. Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, MOORE, BECK, CHASE, DEFRACISCO, DIAZ, ORTIZ, BARRERE, MUNDO, OSTEEN, GUSSAK, ROSEBERRY, COTTON, and DOE No. 1, by kicking, punching, and beating Plaintiff ELMAGHRABY without consent, intentionally caused offensive and harmful contact with
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Plaintiff ELMAGHRABY, so as to constitute battery under the laws of New York State, where the relevant acts took place. The batteries committed upon Plaintiff ELMAGHRABY were not related to any penological interest. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS, by negligently failing to take reasonable measures to prevent and/or remedy their subordinates’ abuse of Plaintiff ELMAGHRABY, violated the laws of New York State.
273. In committing the unprovoked and unjustified batteries upon Plaintiff ELMAGHRABY in a willful and malicious manner, Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, MOORE, BECK, CHASE, DEFRACISCO, DIAZ, ORTIZ, BARRERE, MUNDO, OSTEEN, GUSSAK, ROSEBERRY, COTTON, and DOE No. 1 placed Plaintiff ELMAGHRABY in imminent apprehension of offensive and harmful contact, so as to constitute assault under the laws of New York State.
274. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, BLEDSOE, ALAMO, CLARDY, JAIKISSOON, MOORE, BECK, CHASE, DEFRACISCO, DIAZ, ORTIZ, BARRERE, MUNDO, OSTEEN, GUSSAK, ROSEBERRY, COTTON, and DOE No. 1, were acting within the scope of their employment by the United States when Plaintiff ELMAGHRABY was subjected to the batteries and were working as law enforcement officers as defined by 28 U.S.C. §2680(h).
275. Pursuant to 28 U.S.C. §2675(a), the claims set forth herein were timely presented to the Bureau of Prisons on September 29, 2003 and the said claims were denied on April 26, 2005.
276. As a proximate result of the assault and batteries committed against him, Plaintiff ELMAGHRABY sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff ELMAGHRABY great pain and
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suffering, both mental and physical, and accordingly he is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
TWENTY-THIRD CAUSE OF ACTION (Negligent Denial of Medical Treatment-FTCA)
277. Plaintiff ELMAGHRABY repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 276.
278. By refusing to provide Plaintiff ELMAGHRABY with adequate medical examination and care, defendants LORENZO, ORTIZ, SHACKS, acting under color of federal law and their authority as federal officers, have breached their duty under 18 U.S.C. § 4042(a)(2) to take ordinary diligence or reasonable care to keep Plaintiff ELMAGHRABY safe and free from harm, so as to constitute negligence under the laws of New York State, where the relevant actions took place.
279. Pursuant to 28 U.S.C. § 2875(a), the claims set forth herein were timely presented to the Bureau of Prisons on September 29, 2003 and the said claims were denied on April 26, 2005.
280. As a result of Defendants’ unlawful conduct, Plaintiff ELMAGHRABY sustained permanent injuries and incurred medical bills and other expenses. These injuries have caused and will continue to cause Plaintiff ELMAGHRABY great emotional distress and physical pain and suffering, and accordingly Plaintiff is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
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TWENTY-FOURTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress-FTCA)
281. Plaintiff ELMAGHRABY repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 280.
282. Defendants BLEDSOE, ALAMO, CLARDY, JAIKISSOON, MOORE, BECK, CHASE, DEFRACISCO, DIAZ, ORTIZ, BARRERE, MUNDO, OSTEEN, GUSSAK, ROSEBERRY, COTTON, and DOE No. 1 acting under color of law and their authority as federal officers, maliciously subjected Plaintiff ELMAGHRABY to outrageous conduct of repeated instances of assault and batteries, extreme strip and body cavity-searches, the denial of medical treatment and adequate nutrition, extended detention in solitary confinement, deliberate interference with their rights to counsel and to exercise of their religious beliefs and practices with the intent to causing and reckless disregard of a substantial probability of causing several emotional distress and physical pain and suffering. Defendants HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, SHACKS, by negligently failing to take reasonable measures to prevent and/or to remedy their subordinates’ abuse of Plaintiff ELMAGHRABY violated the laws of New York State.
283. Pursuant to 28 U.S.C. § 2875(a), the claims set forth herein were timely presented to the Bureau of Prisons on September 29, 2003 and the said claims were denied on April 26, 2005.
284. As a result, Plaintiff ELMAGHRABY suffered extreme and lasting emotional distress, humiliation, embarrassment, and permanent physical injuries, and accordingly is entitled to compensatory damages against the UNITED STATES OF AMERICA in an amount to be determined at trial.
56

Case 1:04-cv-01809-JG-SMG Document 273 Filed 10/20/2005 Page 57 of 57
JURY DEMAND Plaintiffs demand a trial by jury. Plaintiffs do not demand trial by jury for their claims arising under the FTCA.
PRAYER FOR RELIEF WHEREFORE Plaintiffs respectfully request that a judgment be granted as follows:
a. Awarding compensatory and punitive damages to Plaintiffs for Defendants’ violations of constitutional law, federal statutory law, customary international law, and local law, which caused Plaintiffs to suffer physical and emotional harm, in an amount that is fair, just, reasonable and in conformity with the evidence;
b. Awarding Plaintiffs attorney’s fees and costs pursuant to 42 U.S.C. § 1988; and, c. Such other relief as this Court deems just and proper. Dated: New York, New York October 20, 2005
THE URBAN JUSTICE CENTER and KOOB & MAGOOLAGHAN By: s:/Alexander A. Reinert
Alexander A. Reinert (AR-1740) Koob & Magoolaghan South Street Seaport 19 Fulton Street, suite 408 New York, New York 10038 Tel: 212-406-3095
- and Haeyoung Yoon (HY-8962) Urban Justice Center 666 Broadway, 10th Floor New York, New York 10012 Tel: 646-459-3003 Attorneys for Plaintiffs
57

 
 Mar, C10a, se20106:04-3c:5v0-P0M1809-JG-SMG Document 405 Filed 03/15/2006 No,P0a8g85e 1 op,f 22

o~

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
EHAB ELMAGHRABY and JAVAID IQBAL, )

FILED

U.s. OIN~~CClETRK'S OFFIce

, ~

UAR

f

~CO, "".. Ci}!JttV.
(')06 ,.

)

Plaintiffs,

)

BROOKLYN OFFICE

VS.

)

) 04 CV 1809 (JG)(SMG)

)

UNITED STATES OF AMERICA,

)

JOHN ASHCROFT, ROBERT MUELLER, )

MICHAEL ROLINCE, KENNETH MAXWELL, )

KATHLEEN HAWK SAWYER, DAVID

)

RARDIN, MICHAEL COOKSEY, DENNIS

)

HASTY, MICHAEL ZENK, UNDA THOMAS, )

JAMES SHERMAN, SALVATORE

)

LOPRESTI, STEVEN BARRERE, WILUAM )

BECK, UNDSEY BLEDSOE, JOSEPH CUCITI, )

THOMAS CUSH, HOWARD GUSSAK,

)

MARCIAL MUNDO, DANIEL ORTIZ,

)

ELIZABETH TORRES, REYNALDO

)

ALAMO, SYDNEY CHASE, JAMES CLARDY, )

RAYMOND COTTON, MICHAEL

)

DEFRANCISCO, RICHARD DIAZ, JAI

)

JAIKISSOON, DEXTER MOORE, JON

)

OSTEEN, ANGEL PEREZ, SCOTT ROSEBERY, )

CLEMMET SHACKS, NORA LORENZO, AND )

"JOHN DOE" CORRECTIONS OFFICERS 1·19, )

)

Defendants.

)

)

WHEREAS, plaintiff Ehab Elmaghraby has moved to dismiss his action against all named defendants with prejudice, with each party bearing its own costs, expenses, and fees; and
WHEREAS, plaintiff Javaid Iqbal has consented to a dismissal of plaintiff Ehab Elmaghraby's action against all named defendants;

Page 1 of 2

MAR-10-2006 15:59

96;;

P.02

Mar. 1C0.as2e0016:043-:5c0vP-M01809-JG-SMG Document 405 Filed 03/15/2006No. P08a8g5e 2Pof 32
IT IS THEREFORE ORDERED. ADJUDGED, AND DECREED that plaintiff Ehab Elmaghraby's action against all named defendants is dismissed with prejudice, with each party to bear its own costs, expenses, and fees.
Dated this I0~ay of /U1Ic/A... .2006.
s/John Gleeson

MAR-10-2006 15:59

Page 2 of 2 96%

P.03

 
 Case 1:02-cv-02307-JG-SMG Document 149 Filed 12/03/2004 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
- -----------------------------X
IBRAHIM TURKMEN, et al.,
Plaintiffs, - against -

O R D E R 02-CV-2307 (JG)

JOHN ASHCROFT, et al., Defendants.
- -----------------------------X JOHN GLEESON, United States District Judge:
I address here, in the first phase of the defendants’ motion to dismiss, the motions by defendants Dennis Hasty and Michael Zenk (“the wardens”) to dismiss the following causes of action in the Third Amended Complaint: three (alleging outrageous, cruel, inhumane and degrading conditions of confinement) and twelve through sixteen and thirty-one (alleging excessive force).
The wardens claim that they are entitled to qualified immunity. The motions are denied.
Zenk and Hasty can prevail at this early stage only if, accepting the plaintiffs’ allegations as true, it appears beyond doubt that there is no set of facts on which they would be entitled to relief. Citibank, N.A. v. K-H Corp., 968 F.2d 1489, 1494 (2d Cir. 1992). The causes of action at issue allege, inter alia, that the plaintiffs were subjected to intentional beatings by their jailers at the Metropolitan Detention Center (“MDC”), and were further subjected to other forms of outrageous and cruel conditions of confinement by them. The wardens, among others,

Case 1:02-cv-02307-JG-SMG Document 149 Filed 12/03/2004 Page 2 of 4
allegedly “created the unconstitutional and unlawful policies and customs relating to the manner” in which the plaintiff-detainees were treated, and “allowed the continuation of these policies and customs” through direct implementation, deliberate indifference and grossly negligent supervision in the jail. Third Amended Complaint ¶ 136.
If these allegations are proved, plaintiffs will be entitled to relief. The wardens do not contend otherwise. Rather, the gist of their motions is their repeated claim that the “fatal flaw” in the complaint is its failure to allege the personal involvement of the wardens in the unconstitutional acts alleged. See, e.g., Memorandum of Law In Support of the United States’ and the Named Defendants’ Motion to Dismiss, dated August 26, 2002, at 26 (describing the failure to allege the personal involvement of the wardens and others as a “fatal flaw”); Letter dated November 8, 2004, from Michael L. Martinez and Allen N. Taffet to the Court, at 1 (“Here, plaintiffs do not allege any personal involvement by either Defendant Hasty or Zenk.”).
I find the argument unpersuasive for two reasons. First, I disagree with the implicit argument that the plaintiffs must establish that the wardens themselves committed beatings, slammed detainees against walls or inflicted similar physical abuse in order to hold them liable. Whereas the wardens may not be held liable merely because a corrections officer under his command committed a constitutional tort, that does not mean that personal involvement must be proved. Cf. Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002) (“We have held that a supervisor may be found liable [under 42 U.S.C. § 1983] for his deliberate indifference to the rights of others[,] by his failure to act on information indicating unconstitutional acts were occurring[,] or for his gross negligence in failing to supervise his subordinates who commit such wrongful acts, provided that the plaintiff can show an affirmative
2

Case 1:02-cv-02307-JG-SMG Document 149 Filed 12/03/2004 Page 3 of 4
causal link between the supervisor’s inaction and her injury.”). Second, the wardens’ argument misapprehends plaintiffs’ pleading obligations.
They are not required at this stage to “allege facts sufficient to establish” the wardens’ liability. Letter dated November 1, 2004 from Messrs. Martinez and Taffet to the Court, at 2 (emphasis added). They are required by Fed. R. Civ. P. 8(a)(2) to give the defendants fair notice of their claims and the grounds on which they rest. “This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). Here, the plaintiffs have alleged with specificity what they were subjected to at the MDC. They have further alleged that the wardens are responsible for those actions. Without discovery, they can hardly be expected to allege the specific facts that establish such responsibility, and the law does not require them to do so.
As the Second Circuit recently observed, these principles make it especially difficult for a defendant to prevail on the qualified immunity defense on a motion to dismiss. McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). The outcome of the wardens’ claim of qualified immunity is intensely factual. If, as alleged in the complaint, beatings and other physical abuse occurred pursuant to policies the wardens created or knowingly allowed to continue, or because of their deliberate indifference to an abusive environment, qualified immunity will be unavailable. Indeed, McKenna specifically addressed allegations that wardens at a prison “had responsibility for enforcing or allowing the continuation of the challenged policies that resulted in” the constitutional tort at issue, holding that such allegations constituted “sufficient personal involvement to justify rejection of their immunity defense on a motion to
3

Case 1:02-cv-02307-JG-SMG Document 149 Filed 12/03/2004 Page 4 of 4

dismiss.” Id. at 437. The allegations against the wardens here are thus sufficient as well. In short, “[h]owever the matter may stand at the summary judgment stage, or
perhaps at trial,” id., the wardens’ motion to dismiss the causes of action at issue on qualified immunity grounds must be, and is hereby, denied.
So Ordered.

Dated: Brooklyn, New York December 3, 2004

JOHN GLEESON, U.S.D.J.

4

 
 Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 1 of 99

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------X
IBRAHIM TURKMEN, ASIF-UR-REHMAN SAFFI, SYED AMJAD ALI JAFFRI, YASSER EBRAHIM, HANY IBRAHIM, SHAKIR BALOCH, AKIL SACHDEVA, and ASHRAF IBRAHIM on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
JOHN ASHCROFT, Attorney General of the United States, ROBERT MUELLER, Director of the Federal Bureau of Investigation, JAMES W. ZIGLAR, Commissioner of the Immigration and Naturalization Service, DENNIS HASTY, former Warden of the Metropolitan Detention Center (MDC), MICHAEL ZENK, MDC Warden, MDC Associate Warden for Custody SHERMAN; MDC Captain SALVATORE LOPRESTI; MDC Lieutenants STEVEN BARRERE, WILLIAM BECK, LINDSAY BLEDSOE, JOSEPH CUCITI, HOWARD GUSSAK, MARCIAL MUNDO, DANIEL ORTIZ, STUART PRAY, and ELIZABETH TORRES, and MDC Correctional Officers PHILLIP BARNES, SIDNEY CHASE, MICHAEL DEFRANCISCO, RICHARD DIAZ, KEVIN LOPEZ, MARIO MACHADO, MICHAEL MCCABE, RAYMOND MICKENS, JOHN OSTEEN, BRIAN RODRIGUEZ, SCOTT ROSEBERY, and CHRISTOPHER WITSCHEL, MDC Counselors RAYMOND COTTON, CUFFEE, and CLEMMET SHACKS; JOHN DOES 1-20, Metropolitan Detention Center Corrections Officers, and the UNITED STATES,
Defendants.
--------------------------------------------------------X

FOR ONLINE PUBLICATION ONLY
MEMORANDUM AND ORDER 02 CV 2307 (JG)

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 2 of 99
A P P E A R A N C E S:
BARBARA J. OLSHANSKY NANCY CHANG RACHEL MEEROPOL SHAYANA KADIDAL MATTHEW STRUGAR JENNIFER GREEN
Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Attorneys for Plaintiffs
PETER D. KEISLER Assistant Attorney General
JONATHAN F. COHN Deputy Assistant Attorney General
DIMPLE GUPTA Counsel to Assistant Attorney General
PHYLLIS J. PYLES Director, Torts Branch
DAVID J. KLINE Principal Deputy Director Office of Immigration Litigation
DAVID V. BERNAL Assistant Director Office of Immigration Litigation
MADELINE HENLEY Trial Attorney Torts Branch
ERNESTO H. MOLINA, JR. Senior Litigation Counsel Office of Immigration Litigation United States Department of Justice Civil Division P.O. Box 878, Ben Franklin Station Washington, D.C. 20044 Attorneys for the United States
2

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 3 of 99
PAUL J. MCNULTY United States Attorney for the Eastern District of Virginia
LARRY LEE GREGG BRIAN D. MILLER RICHARD W. SPONSELLER DENNIS C. BARGHAAN
Assistant United States Attorneys 2100 Jamieson Avenue Alexandria, Virginia 22315
JOHN F. WOOD Office of the Attorney General Main Justice Building 950 Pennsylvania Ave., Room 5116 Counselor to the Attorney General Attorneys for Defendant John Ashcroft
R. CRAIG LAWRENCE Assistant United States Attorney United States Attorney’s Office for the District of Columbia Civil Division 10th Floor 555 4th Street, N.W. Washington, D.C. 20001 Attorneys for Defendant Robert Mueller
WILLIAM ALDEN McDANIEL, JR. McDaniel, Bennett & Griffin 116 West Mulberry Street Baltimore, MD 21201-3606 Attorney for Defendant James Ziglar
MICHAEL L. MARTINEZ SHARI ROSS LAHLOU
Crowell & Moring 1001 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2595 Attorney for Defendant Dennis Hasty
ALLAN N. TAFFET Duval & Stachenfeld 300 East 42nd Street New York, NY 10017 Attorney for Defendant Michael Zenk
3

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 4 of 99
JOHN GLEESON, United States District Judge: This case raises important issues concerning the arrest, detention, and treatment of
aliens of Middle Eastern origin in the immediate aftermath of the terrorist attacks of September 11, 2001. The plaintiffs were all illegal aliens at the time. In broad strokes, their claims in this case fall into two categories. First, they contend that the government used their status as illegal aliens as a cover, as an excuse to hold them in jail while it pursued its real interest -- determining whether they were terrorists, or could help catch terrorists. Second, the plaintiffs claim the conditions of their confinement flagrantly violated our Constitution.
In general, the latter claims survive this motion to dismiss, largely for the reasons set forth in Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y.).
The claims in the first category, however, are dismissed. After the September 11 attacks, our government used all available law enforcement tools to ferret out the persons responsible for those atrocities and to prevent additional acts of terrorism. We should expect nothing less. One of those tools was the authority to arrest and detain illegal aliens. If the plaintiffs’ allegations are true -- and I accept them as true on this motion to dismiss -- then the government held them in a jail for months not because that amount of time was necessary to remove them to their countries of citizenship, but because it wanted to have them available here in the United States in the event criminal charges could be brought against them.
But the government was allowed to do that. An ulterior motive in this context does not render illegal conduct that was within the bounds of the government’s authority. An officer who wants to search a suspect’s car for a handgun can pull him over (a Fourth Amendment “seizure”) for changing lanes without using his blinker (a traffic violation), even if the officer has no interest in enforcing the laws requiring drivers to signal a lane change. See
4

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 5 of 99
United States v. Scopo, 19 F.3d 777 (2d Cir. 1994). Similarly, the government may use its authority to detain illegal aliens pending deportation even if its real interest is building criminal cases against them.
For the reasons set forth below, the defendants’ motion to dismiss is granted in part and denied in part.
BACKGROUND A. Overview of the Case
The plaintiffs, eight male, non-U.S. citizens, were arrested on immigration violations following the September 11, 2001 attacks. They were held in immigration custody for periods ranging from three to almost seven months after receiving final orders of removal or grants of voluntary departure. All but one are Muslims of Middle Eastern origin (the exception, Akil Sachdeva, is a native of India and is Hindu). They bring this putative class action on behalf of themselves and the class of male non-citizens who are Arab or Muslim, or were perceived by the defendants to be Arab or Muslim, who were (1) similarly arrested by the Immigration and Naturalization Service (“INS”) or the Federal Bureau of Investigation (“FBI”) after September 11, 2001 and charged with immigration violations (“post-September 11 detainees”); (2) detained at the Metropolitan Detention Center (“MDC”) or Passaic County Jail; (3) treated as “of interest” to the government’s terrorism investigation into the September 11 events; and (4) subjected to a blanket no-bond policy pursuant to which they were held without bond until cleared by the FBI of any terrorist connections.
The plaintiffs assert that post-September 11 detainees at the MDC were not served with timely notice of the charges against them; were classified “of high interest” to the government’s terrorist investigation (or as “Witness Security” or “Management Interest Group
5

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 6 of 99
155” detainees) without adequate procedures for making such a determination, and as a result were placed in highly restrictive custody; were subjected to a communications blackout and other actions that interfered with their access to counsel and to the courts; and were detained for far longer than necessary after receiving final orders of removal or grants of voluntary departure without being afforded a timely hearing to determine whether continued detention was warranted.
The plaintiffs assert that post-September 11 detainees at the MDC and Passaic County Jail were subjected to excessively harsh conditions of confinement, including being subjected to physical and verbal abuse, confined in tiny cells for over 23 hours a day, subjected to arbitrary and abusive strip searches, handcuffed and shackled whenever taken out of their cells, deprived of sleep, provided with inadequate medical care, and constructively denied exercise and necessary hygiene items. The plaintiffs allege that MDC defendants deliberately interfered with detainees’ religious practices, and failed to return detainees’ personal items (including personal identification and money) confiscated upon their arrest or when their homes were searched.
The plaintiffs assert that post-September 11 detainees in the Passaic County Jail (the “Passaic Jail” or “Passaic Facility”) were held in overcrowded conditions and housed with potentially dangerous criminal pretrial detainees.
The plaintiffs assert that their race, religion, ethnicity, and national origin played a determinative role in the decisions to detain them, to hold them without bond in punitive conditions of confinement, and to keep them detained beyond the point at which removal or voluntary departure could have been effectuated.
6

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 7 of 99
The Third Amended Complaint (the “complaint” or “TAC”), filed on September 13, 2004, alleges 31 claims: 14 claims against all defendants for violations of post-September 11 detainees’ constitutional rights under the First, Fourth, Fifth and Sixth Amendments;1 three claims against all defendants for violations of international law, brought pursuant to the Alien Tort Statute, 28 U.S.C. § 1350; seven claims against MDC defendants for the use of excessive force and for conducting unreasonable strip searches in violation of plaintiffs’ Fourth and Fifth Amendment rights; and seven claims brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674. Plaintiffs seek both monetary and equitable relief.2
The following individuals are named as defendants: (1) John Ashcroft, the former Attorney General of the United States; Robert Mueller, the Director of the FBI; and James W. Ziglar, the former Commissioner of the INS (collectively, “the Washington-based defendants”); (2) Dennis Hasty and Michael Zenk (former wardens of the MDC) (collectively, “the Wardens”); and (3) MDC officials, or former MDC officials, of a rank below warden.3
By consolidated motion, the United States and defendants Ashcroft, Mueller, Ziglar, Hasty, and Zenk have moved to dismiss pursuant to Federal Rule of Civil Procedure 12. The United States seeks partial dismissal, and the individual defendants seek to dismiss all

1

Plaintiffs have withdrawn claims alleging violations of the self-incrimination clause of the Fifth

Amendment and violations of the right to a speedy trial under the Sixth Amendment. See Pl. Br. at 5 n.4.

2

Plaintiffs have withdrawn their requests for declaratory relief. The equitable relief sought is an injunction

requiring defendants to return confiscated personal property.

3

The named MDC defendants are: MDC Associate Warden for Custody James Sherman; MDC Captain

Salvatore Lopresti; MDC Lieutenants Steven Barrere, William Beck, Lindsey Bledsoe, Joseph Cuciti, Howard

Gussak, Marcial Mundo, Daniel Ortiz, Stuart Pray, and Elizabeth Torres; MDC Correctional Officers Phillip Barnes,

Sidney Chase, Michael DeFrancisco, Richard Diaz, Kevin Lopez, Marion Machado, Michael McCabe, Raymond

Mickens, John Osteen, Brian Rodriguez, Scott Rosebery, and Christopher Witschel; and MDC Counselors Raymond

Cotton, James Cuffee, and Clemmet Shacks.

7

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 8 of 99

claims against them. James Sherman, the MDC Associate Warden for Custody, has separately moved to dismiss all claims brought against him, as has Unit Manager Clemmet Shacks.4

B. Procedural History

The original complaint in this case was filed on April 17, 2002. The First

Amended Complaint was filed on July 27, 2002. The government moved to dismiss on behalf of

all named defendants on August 26, 2002, and oral argument on the motion took place on

December 19, 2002. On June 2, 2003, the Office of the Inspector General of the United States

Department of Justice released a 198-page report entitled “A Review of the Treatment of Aliens

Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks”

(the “OIG Report”). In light of the OIG Report, the plaintiffs sought leave by letter dated June 5,

2003 to amend their complaint. Around that time, the government withdrew from representing

the named defendants in their individual capacities, and substitute counsel filed notices of

appearance.

On June 18, 2003, the plaintiffs filed the Second Amended Complaint, attaching

the April 2003 OIG Report. Supplemental briefs in support of and opposing the motions to

dismiss were filed. Then, in December 2003, the Office of the Inspector General filed another

report -- its 47-page “Supplemental Report on September 11 Detainees’ Allegations of Abuse at

the Metropolitan Detention Center in Brooklyn, New York” (the “Supplemental OIG Report”).

On September 7, 2004, plaintiffs requested leave to file a Third Amended Complaint in order to,

among other things, (1) add an additional named plaintiff (Ashraf Ibrahim); (2) identify

defendants previously listed as John Doe or John Roe and detail their alleged conduct; (3) add

additional defendants; (4) amend various claims based on information contained in the

4

Because the motions of Sherman and Shacks do not present materially different arguments from those of

Wardens Hasty and Zenk, they will not be discussed separately herein. All claims against Sherman and Shacks are

treated in same manner as the claims against Hasty and Zenk.

8

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 9 of 99
Supplemental OIG report; and (5) assert several new claims, including a Bivens claims based upon unreasonable strip searches and claims under the Federal Tort Claims Act. I granted leave, and the Third Amended Complaint was filed on September 14, 2004, after which followed yet another round of briefing on the motions to dismiss.
At a hearing on October 21, 2004, I ordered that discovery could begin on claims involving the conditions of confinement and the use of excessive force. The Wardens moved to dismiss these claims as against them, arguing that they were entitled to qualified immunity. The motion was denied by order dated December 3, 2004, and a motion for reconsideration and vacatur of the December 3, 2004 order was denied on January 14, 2005. Familiarity with the December 3, 2004 order is assumed. C. The Named Plaintiffs
The Third Amended Complaint, by itself and by incorporating the two OIG reports annexed thereto, alleges the following facts. Many of the allegations are in dispute, but of course, on a motion to dismiss pursuant to either Fed. R. Civ. P. 12(b)(1) or (6), the court must assume that all factual allegations in the complaint are true. See Shipping Fin. Serv. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (Rule 12(b)(1)); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995) (Rule 12(b)(6)).
1. The MDC Plaintiffs a. Shakir Baloch
Baloch is a Muslim and a native of Pakistan. He holds a medical degree from Bolan Medical College in Quetta, Pakistan. He immigrated to Canada in 1989 and became a Canadian citizen in 1994. Both his wife and his daughter reside in Canada. Several times over
9

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 10 of 99
the past decade, Baloch has entered the United States in order to find work. He most recently entered the country in April 2001.
On September 19, 2001, FBI, INS, Department of Labor, and NYPD officers who were conducting an investigation of Baloch’s apartment-mate went to Baloch’s apartment. There they interrogated Baloch for approximately four hours about the terrorist attacks on September 11, 2001. At no point was he advised of his right to counsel or given Miranda warnings. Baloch denied any involvement with terrorism, but disclosed that he had previously been removed from the United States and had used the alias Faisal Kurd in order to obtain false identification documents. FBI and INS agents searched his home and seized several items, including his laptop computer. Baloch was arrested and taken in handcuffs to an INS facility on Varick Street in Manhattan, where all of his personal belongings, including identification and money, were confiscated. Baloch was held for two nights at the Varick Street facility.
On September 21, 2001, Baloch was “processed for removal.” He was given a “Notice of Rights” and “Request for Disposition” form, which he refused to sign. TAC ¶ 204.
That night, he was taken to the MDC. Five MDC guards, including Lt. Barrere and correctional officers (“COs”) McCabe, Lopez, and Osteen, escorted Baloch to an empty cell. Baloch alleges that the five guards, working as a team, picked him up from under his arms and threw him from corner to corner in the cell, hitting and kicking him in the back as he fell to the ground. Some of the officers cursed at Baloch, calling him a “fucking Muslim terrorist,” and saying things like: “You did this to us. We’re going to kill you,” and “You know why you are in here. The government thinks that you are a terrorist.” TAC ¶ 205. Baloch was designated “as a possible terrorist” and placed in the ADMAX SHU.
10

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 11 of 99
On September 22, 2001, the INS reinstated a prior deportation order. Because of this prior order, Baloch was not provided with a hearing.
On September 28, 2001, Baloch was interviewed by FBI agent Noreen Gleason and INS agent Kevin Ryan about his immigration status, work history, and connections to terrorism. On October 11, 2001, he was again interviewed by these same agents. On October 14, 2001, Baloch was interviewed by agents from the FBI, INS, and NYPD. During this interview, Baloch signed a prepared statement that he purchased false identification documents and passports. On October 29, 2001, Baloch was interviewed by two FBI agents and an NYPD detective, who further questioned him about his use of false documents. During one of these interrogations, Baloch was told things like, “If you’re not cooperative, we’ll put you in jail for 10 years or deport you back to Pakistan instead of Canada, where they’ll put you in jail longer than 10 years.” TAC ¶ 209.
Shortly after arriving at the MDC, Baloch requested to speak with an attorney. He continued to make such requests, but it was not until November 7, 2001, about six weeks after his arrival at the MDC, that he was allowed to place a call to the Legal Aid Society. Baloch first met with an attorney on November 19, 2001. This meeting, like all of Baloch’s subsequent meetings with his attorneys, was recorded, including both video and audio. Baloch was aware of the camera, and was very reluctant to speak candidly because he was being recorded.
When officials from the Canadian consulate inquired about Baloch’s whereabouts, MDC officials denied that Baloch was being detained there. He first met with a consular official on December 13, 2001.
On December 21, 2001, after approximately three months of detention, Baloch filed a habeas corpus petition in the United Stated District Court for the Southern District of New
11

Case 1:02-cv-02307-JG-SMG Document 507 Filed 06/14/2006 Page 12 of 99

York. On January 3, 2002, he was indicted for illegal re-entry into the United States. On

February 7, 2002, Baloch was transferred from the ADMAX SHU to MDC’s general population

unit. On April 2, 2002, he pleaded guilty and was sentenced to time served. Shortly thereafter,

he was transferred to the Passaic Jail.

Baloch was subjected to physical and verbal abuse while in the ADMAX SHU.

He alleges that MDC defendants would regularly drag him by his waist chain, causing his ankle

shackles to dig in; shove him in the back while his chin was against the wall and slam him into

walls while he was being transferred to and from his cell; and twist his hands, thumbs, and

fingers, step on the chain connecting his ankle shackles, causing the shackles to tighten painfully,

and lift his arms or elbows while his wrists were cuffed. Baloch further alleges that some MDC

lieutenants participated in physically abusing him, while others witnessed the treatment but did

nothing to stop it.

Baloch was subjected to constant verbal harassment by officers in the ADMAX

SHU, who would regularly refer to him as a “fucking Muslim” and a “terrorist.” In particular,

Baloch alleges that CO Wilson regularly spoke to him about getting revenge for terrorist attacks;

CO Lopez regularly gave Baloch the finger and cursed him; and Lieutenant Barrere told him that

“Your lawyers can’t help you out. You’ll stay here for another 20 years without seeing a judge.”

At one point, when a guard had difficulty unlocking Baloch’s handcuffs, he brought over a large

pair of shears and threatened to cut Baloch’s hands off to unlock the cuffs. On April 16, 2002,5 more than six months after Baloch’s prior deportation order

was reinstated, the INS took Baloch to Newark Airport and put him on a plane bound for

Toronto without any personal identification or money. None of the items confiscated from

5

The Third Amended Complaint states that Baloch was deported on April 2, 2002, but it appears that the

correct date is April 16, 2002 (the date given in the Second Amended Complaint).

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Baloch was returned to him. Since his deportation, Baloch has requested the return of these items, but that request has been denied.
Baloch experiences both physical and psychological effects of his detention in the United States. He is being treated for severe depression, and he has tested positive for tuberculosis. Among the items confiscated from him were social insurance and health cards. Without them, he has had trouble obtaining medical treatment in Canada. The effects of his detention have put a strain on his marriage, causing his recent separation from his wife. Because of Baloch’s depression, the Canadian Medical Board found him unfit to practice medicine for a time.
b. Yasser Ebrahim and Hany Ibrahim Yasser and Hany,6 who are brothers, are Muslim and natives of Egypt. Hany entered the United States on a tourist visa in 1998; Yasser re-entered the United States on a tourist visa in January 2001. Yasser had previously lived in the United States, arriving on a tourist visa on four different occasions. On one such visit in 1996, he married a U.S. citizen, with whom he lived in Queens, New York until they separated in 1998. Shortly thereafter, he returned to Egypt and did not visit the United States again until January 2001. In 2001, the brothers lived with Egyptian and Moroccan friends in Brooklyn. Yasser began a website design business, and Hany worked occasionally at a delicatessen. On September 30, 2001, twelve men, identifying themselves as FBI and INS agents and NYPD officers, visited the apartment where Yasser and Hany were staying and interrogated the two brothers and their friends about the September 11 attacks. Yasser, Hany,

6

Though they are brothers, Yasser and Hany spell their surnames differently in English.

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and their friends were each questioned separately about their possible terrorist activity and their immigration status. They each denied involvement in terrorist activity.
Following the interrogations, the FBI and INS agents told Yasser, Hany, and one Egyptian roommate that “we have to take you with us.” TAC ¶ 183. The three were arrested and handcuffed. Yasser’s and Hany’s requests to call an attorney were denied, and the agents searched their apartment, seizing all of Yasser’s books, including some religious texts.
Yasser and Hany were taken to the INS facility on Varick Street, where they were held for approximately 24 hours. All their personal belongings, including personal identification and money ($27 belonging to Hany, and $250 belonging to Yasser), were confiscated. Throughout the 24-hour period, they were not permitted to use the bathroom. At night, they were forced to sleep on the floor.
On the following day, October 1, 2001, Yasser and Hany were transported by van in handcuffs, chains, and shackles to the MDC. On arrival, they were pulled from the van by several MDC guards. The guards slammed Hany face-first into a wall that had an American-flag t-shirt taped to it. Hany began to cry and was told to “shut up.” He was called a “motherfucker” and told to look at the flag. Yasser was also slammed face-first into the wall, which caused him pain so severe that he thought his nose was broken.
Once inside the MDC’s Receiving and Discharge area (“R&D area”), the brothers were fingerprinted, strip searched, and given orange jumpsuits to wear. Escorted by Lieutenant Barrere and COs Diaz and Chase to the ADMAX SHU, the brothers were forcefully pushed into walls and doors along the way. While escorting Hany, the officers twisted his wrists and tightened the handcuffs until his wrists bled. The officers repeatedly stepped on his leg chains while ordering him to walk, causing him to fall, and leaving his ankles bruised and bloodied.
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Yasser underwent similar abuse. During this trip to the ADMAX SHU, the brothers were called “fucking Muslims” and “terrorists.” Hany attempted to explain that he and his brother were being detained only on immigration violations, but one MDC CO said, “If you open your mouth, I will crush you under the elevator, just like at the World Trade Center.” TAC ¶ 195.
The abuse of Yasser and Hany upon arrival at the MDC caused serious injury to their arms and noses, both of which remained black and swollen for several days. The injuries to their noses made breathing difficult and painful. Yasser and Hany received a physical examination on October 2, 2001, the day after their arrival. Nina Lorenzo, the physician assistant who performed the exams, did not ask about or treat their obvious injuries. The brothers were placed in separate cells and were not allowed to see or speak to one another for 35 days.
On October 17, Hany and Yasser were served with Notices to Appear. On November 5, 2001, they were moved into the same cell. On the next day, November 6, 2001, they were brought in handcuffs, chains, and shackles, to Immigration Judge Alan Vomacka. On the way to the hearing, CO Scott Rosebery whispered to Yasser, “The camera is your best friend. If not for the camera, I would have smashed your faces, you mother fuckers.” TAC ¶ 186. Yasser attempted to tell the immigration judge what Rosebery had said to him but the judge interrupted him, stating, “I don’t care. This is not my job.” Id.
Yasser and Hany were heard together in a closed immigration hearing. Marianne Yang, a Legal Aid attorney, represented both men and requested that they be granted voluntary departure and bond. “The Immigration Judge, however, denied the request, after [an FBI or INS agent who was present but did not enter an appearance] handed him a note off the record, stating that he could not grant bond until he received ‘clearance.’” TAC ¶ 187. The hearing was
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adjourned until November 20, 2001, when the judge denied the request for bond on the ground that Yasser and Hany were “disappearance risks.” Id. Yasser and Hany accepted final deportation orders, having been informed that they would be removed within four to five days. No appeals were taken from these orders.
FBI memos dated December 7, 2001 state that clearance checks on Yasser and Hany were “negative,” and “note with respect to [Yasser] that links to terrorist groups appear negative.” TAC ¶ 190.
On January 17, 2002, Hany was transferred to MDC’s general population unit. The INS booked a flight to deport Hany on February 1, 2002 and issued an order to escort him to JFK, but this order was not carried out. Yasser remained in the ADMAX SHU for the duration of his detention.
Yasser and Hany were regularly subjected to physical abuse while in the ADMAX SHU, particularly when being transported between their cells and other locations. They allege, for example, that MDC defendants slammed them against walls, twisted their arms, made their handcuffs painfully tight, and stepped on and kicked their ankle shackles.
The brothers were also regularly subjected to verbal abuse. On one occasion, when Hany asked for pen and paper, defendant Barrere responded, “Are you going to write to Osama bin Laden?” TAC ¶ 73. When Yasser raised the issue of human rights to defendant Shacks, he allegedly responded: “Forget about human rights. Three thousand people died in the World Trade Center. You have no rights.” TAC ¶ 198.
Hany was released and deported on May 29, 2002, six months and nine days after the immigration judge had ordered him removed. Yasser was released and deported on June 6, 2002, six months and 17 days after he had been ordered removed. When the men were deported,
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they were put on a plane to Cairo without any money or any of the personal belongings confiscated from them when they were arrested.
Upon their respective arrivals in Cairo, Yasser and Hany were “summoned to Egyptian State Security Investigations, where each was detained and extensively interrogated for hours on his detention in the United States.” TAC ¶ 200.
Yasser’s and Hany’s detention in the United States continues to plague the two men both psychologically and physically. Hany in particular has struggled, suffering a “nervous breakdown” after returning to Egypt. It was not until March 2003 that either brother had recuperated sufficiently to be able to work.
c. Ashraf Ali Ibrahim Ashraf Ibrahim, a citizen of Egypt, entered the United States on a six-month visa on January 23, 1992 and remained in the United States for the next ten years. In late August 2001, Ashraf started a bottled-water distribution business in Philadelphia. On September 23, 2001, FBI and INS agents came to Ashraf’s home and asked him to sign a document consenting to a search of the home, which Ashraf signed. The agents interrogated Ashraf for about two hours regarding his whereabouts on September 11, 2001 and whether he was involved in the attacks. Ashraf stated that he had no involvement with terrorism. Ashraf requested to make a phone call but the request was denied. The agents confiscated “all of the possessions” in his home, including money. TAC ¶ 224. Later that morning, Ashraf was taken to the Varick Street facility where he was again interrogated for approximately seven hours. Ashraf made repeated requests to make a phone call but was not permitted to do so. Following this interrogation, Ashraf was handcuffed, put in waist and ankle chains, and driven by van to the MDC.
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Upon arrival at the MDC, an officer got into the van, told Ashraf to “open [his] fucking mouth,” and pointed a flashlight into his mouth. Two MDC defendants then dragged Ashraf by his arms to the R&D area. The officers shoved Ashraf against the wall, stunning him and causing him great pain. The officers forcefully pressed Ashraf against the wall for several minutes. Lieutenant Gussak, who was in charge of the officers, observed the abuse but did nothing to stop it. Gussak told Ashraf that “if you make any move, you will hit the floor and you will hit it hard.” TAC ¶ 226.
While being taken for fingerprinting, the officers held Ashraf’s arms while forcing him to run at an unmanageable pace for a person in ankle restraints. In addition, officers standing behind him would step on his ankle chains, causing him to fall forwards. The pain and bruising from this treatment persisted for about three weeks; the injuries were never treated.
After Ashraf was fingerprinted, Lt. Gussak conducted a strip search, including ordering Ashraf to move his fingers through his pubic hair and lift his genitals, and then bend over and spread his buttocks for a visual examination. Ashraf was then taken by elevator to the ADMAX SHU on the ninth floor. In the elevator, officers slammed Ashraf into the wall. When he reached the ADMAX SHU, he was received by a new team of guards and again strip searched, even though he had been under continuous supervision and in hand and leg restraints since the first strip search took place.
For the first 25 days Ashraf was in the ADMAX SHU, he was subjected to a communications blackout, despite his repeated requests for permission to make phone calls and his scheduled hearings before an immigration judge. He continued to be prohibited from making legal calls even though at a hearing before Immigration Judge Vomacka, on October 3, 2001, the judge told MDC officers that Ashraf should be permitted to contact a lawyer. Ashraf was
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allowed to make calls after October 17, 2001, but he alleges that defendant Cotton would limit his ability to call his attorney by, among other means, purposely dialing wrong numbers, telling Ashraf the number he requested was busy and that he would have to try again “next week” or “next month,” and generally making legal calls available only between 8:00 and 9:00 a.m., before most attorneys began work.
For the first five months of Ashraf’s detention, he was never allowed to leave his cell without being strip searched, handcuffed, chained, and shackled. Ashraf alleges that defendant Beck routinely over-tightened his restraints. During transportation to and from his cell, Ashraf was pushed or slammed against the wall for “pat-down” searches. Whenever defendant Chase conducted pat-down searches, he would grab Ashraf’s genitals and squeeze them until it caused Ashraf acute pain.
Especially during the first five months, Ashraf was physically and verbally harassed by MDC defendants. Defendant McCabe was frequently violent towards Ashraf, pushing him into walls while escorting him to or from his cell. Defendants Beck and Barrere observed officers under their supervision “hurting, insulting, or harassing” Ashraf, but did nothing to stop the abuse. TAC ¶ 242. Further, Beck inappropriately insulted Ashraf on occasion, and Barrere “made a point of intimidating and scaring Ashraf.” Id.
Ashraf alleges several specific incidents of physical abuse. On September 24, 2004, Officers Diaz and Machado slammed Ashraf’s back into the wall and held him there while his photograph was taken. On October 3, 2001, on the way to immigration court, Ashraf was slammed into the wall and subjected to a pat-down search. In the elevator, Officer Rosebery told him to “spread your fucking legs,” and then stepped on his ankle chain while two other officers held him up, causing him great pain. Ashraf informed Immigration Judge Vomacka that he had
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been treated violently in the elevator. On the way back from court, Rosebery again told him to spread his legs and again stepped on his ankle chain. Similar abuse took place while Ashraf was being taken to and from immigration hearings on October 11, 16, and 25, resulting in badly bruised ankles. On October 11, 2001, after Ashraf was strip searched and shackled in preparation for an immigration hearing, defendant Chase conducted a pat down search, intentionally squeezing Ashraf’s genitals. Finally, beginning in mid-October 2001, defendant Barnes began a practice of twisting Ashraf’s fingers while Ashraf was being held face to the wall. Barnes continued to twist Ashraf’s fingers at every opportunity.
On October 11, 2001, Ashraf was brought for a bond hearing in immigration court. No immigration judge was present, and therefore no bond determination was made. On October 16, 2001, Ashraf had a hearing in immigration court.7
On October 22, 2001, Ashraf was interrogated by INS and FBI agents for about two hours. These agents told Ashraf that “if he could not provide any information about September 11 he would stay in jail forever.” TAC ¶ 245. An INS agent also allegedly told Ashraf that “his chance to get out of this jail is very slim.” Id.
On October 25, 2001, Al-Shawi, an attorney retained for Ashraf by a friend, came to represent him at an immigration hearing scheduled for that day. The officers at the front desk of the MDC told Al-Shawi that there was no one by the name of “Ashraf Ibrahim” at the MDC.
On November 6, 2001, a hearing was held with Al-Shawi present. Immigration Judge Vomacka denied Ashraf’s request for bond in order to collect his belongings (which had been acquired over ten years of living in New York), and issued a final order of removal. The

7

The complaint does not specify what occurred at this hearing. Ashraf had no attorney at the time. He had

yet to be permitted to make a “legal” phone call. TAC ¶ 243.

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judge told Ashraf that he would be deported shortly because there was a limit to the time he could be detained after the issuance of a final deportation order.
On March 28, 2002, four months and 22 days after he was ordered removed, Ashraf was escorted in handcuffs to Kennedy Airport and deported to Egypt. Upon arrival, he was taken to the Egyptian State Security Investigation Office, where he was interrogated and detained overnight. The next morning, he was taken to a Cairo jail and detained there for another three days before he was released.
As a result of his detention, Ashraf experiences severe depression and anxiety. He saw a psychiatrist after returning to Egypt.
d. Syed Amjad Ali Jaffri Jaffri, a Muslim and native of Pakistan, immigrated to Canada. His wife and four children live in Lahore, Pakistan. Since May 1997, Jaffri has periodically visited family and friends in the United States, entering this country from either Canada or Pakistan on tourist visas. In September 2001, Jaffri was living and working illegally in the Bronx. On September 27, 2001, approximately ten INS and FBI agents, accompanied by a United States Department of Labor official and several police officers, went to the apartment where Jaffri was staying. They searched Jaffri’s room and found several stun guns belonging to other occupants of the apartment. Jaffri was arrested and charged with criminal possession of a weapon. The charges were dismissed two days later because Jaffri did not own the stun guns. On September 28, 2001, Jaffri was taken from the apartment to an INS facility in Manhattan, where FBI and INS agents interrogated him about his possible involvement in terrorist activity. At no point during this interrogation was Jaffri given Miranda warnings. An FBI agent asked Jaffri to sign a form consenting to the search of his room, which had already
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taken place, and Jaffri refused. The agent allegedly responded, “Now you will learn the hard way.” TAC ¶ 171. Jaffri requested that the Pakistani Consulate be notified, and requested a hearing before an immigration judge.
On September 29, 2001, Jaffri was taken to the MDC, where he was strip searched, fingerprinted, and given an orange jumpsuit. All his personal possessions were confiscated and he was placed in a cold, solitary, windowless cell in the ADMAX SHU. Jaffri remained confined in that cell nearly every day for the next six months. Although there were other post-September 11 detainees held in adjoining cells, Jaffri was forbidden to talk to them and vice-versa. The MDC defendants threatened to cut off visits from Jaffri’s attorney if he broke the rule prohibiting communication with detainees in adjoining cells.
For the first two months of his detention, Jaffri was denied a bar of soap. He received only two squares of toilet paper per day and his meals were served without eating utensils. For months he was denied all reading material.
Jaffri was subjected to repeated physical and verbal abuse. Specifically, plaintiffs allege that when Jaffri was first brought to the ADMAX SHU, he was told by an MDC defendant, that “whether you [participated in the September 11 attacks] or not, if the FBI arrested you, that’s good enough for me. I’m going to do to you what you did.” TAC ¶ 176. Several MDC defendants then slammed Jaffri’s head into a wall, severely loosening his lower front teeth and causing him extreme pain. Id. As a result of this blow, Jaffri experienced pain in his mouth throughout his detention. He requested to see a dentist six times, but was seen only once in 2001 and once again in late March 2002. The March 2002 visit revealed advanced bone loss, advanced periodontal disease, and the need to have “many teeth” extracted. Id.
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Whenever Jaffri was taken out of his cell, he was strip searched and placed in handcuffs, chains, and shackles. He was usually escorted by at least four MDC officers, who abused him en route by, for example, kicking his handcuffs and shackles into his lower body. TAC ¶ 174.
On October 1, 2001, Jaffri was served with a Notice to Appear. Jaffri requested a re-determination of the decision to place him in custody, and signed a request for a merits hearing before an immigration judge.
On December 20, 2001, during a closed immigration hearing held at the MDC, an immigration judge ordered Jaffri’s removal from the United States. No bond hearing was held prior to this hearing. Neither Jaffri nor the INS contested the removal order.
On April 1, 2002, three months and 12 days after the removal order, INS agents escorted Jaffri to LaGuardia Airport and put him on a plane to Canada. Neither his money nor his identification documents were returned to him.
e. Asif-Ur-Rehman Saffi Saffi is a Muslim native of Pakistan and a citizen of France. He currently resides on Reunion Island, in the Indian Ocean east of Madagascar. He had been working for Pakistan International Airlines for 19 years when he came to the United States on July 6, 2001 on a threemonth tourist visa. He first entered the country in Los Angeles to visit with friends there, then he flew to New York City, also to visit friends. Saffi, who holds a Master’s Degree in Political Science, is a “Microsoft Certified Professional,” and earned money while in New York doing computer repair and data entry for a small business.
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On September 29, 2001, before his visa expired, Saffi flew to Toronto, but immigration officials there refused to allow him to enter the country, so he returned to New York the following day.8 Upon his arrival at LaGuardia Airport on September 30, 2001, he was arrested by FBI and INS agents. Saffi, who is fluent in English, was interrogated by an INS agent and taken to the INS facility on Varick Street.
At the Varick Street facility, Saffi was interrogated by two FBI agents for about two hours. The FBI agents accused him of taking part in the September 11 terrorist attacks. They allegedly told him, “You will be rotting in jail if you don’t give us names,” and “Muslims are terrorists and we know you are one of them.” TAC ¶ 34. They took two address books from Saffi and threatened that he would be in serious trouble if any person he associated with was “suspicious.” Id. At the request of an INS official, Saffi signed a written statement that he had been working in the United States without authorization. Saffi requested to contact the French consulate, but that request was never granted, even after he put the request in writing.
On the following day, October 1, 2001, Saffi was moved to the MDC with eight other detainees in two vans. He was transported there with chains around his waist and shackles around his legs. Lieutenant Pray and four or five MDC officers dragged Saffi into the R&D area, slamming his face against several walls along the way. He was strip searched and given an orange jumpsuit to wear. His personal items, including money, were confiscated.
Plaintiffs allege that several MDC defendants led Saffi, still in handcuffs, chains and shackles, to the ADMAX SHU. On the way there, the officers banged his head and slammed him against the walls, kicked him, and verbally abused him. When they arrived at the ADMAX SHU, Saffi was again strip searched and subjected to further physical abuse. MDC officers bent

8

The complaint does not state why Saffi was denied entry into Canada.

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his thumbs back so far he could not use them for ten days, stepped on his bare feet, and pushed him into a wall so hard that he lost consciousness. When Saffi fainted, the officers kicked him in the face and ribs. Lieutenant Beck called Saffi a “‘terrorist,’ boasting that [he] could expect continued harsh treatment because of his involvement in the September 11th terrorist attacks.” TAC ¶ 154. Beck vowed to make Saffi’s detention as horrible as possible, and threatened to punish Saffi “if he even so much as smiled.” Id. Beck also said that Saffi had killed 7,000 people,9 and threatened to beat him if he did not behave.
Saffi was placed in a ten foot by six foot windowless cell with another postSeptember 11 detainee. The cell was cold and uncomfortable. Saffi was confined to this cell all day, nearly every day, for the next five months.
Initially, Saffi was denied all reading material. Though he was subsequently given a copy of the Bible, it was not until mid-December 2001 when he was given a copy of the Koran. Saffi was still unable to read for several more days because his eyeglasses had been confiscated upon his arrival. On December 18, 2001, Saffi was brought to an eye doctor and given new glasses.
While in detention, Saffi had difficulty practicing his religion. He was denied Halal food. Once, Saffi asked Lieutenant Torres for Halal food, and she responded that the MDC is a jail, not a hotel, and that Saffi should ask Allah for food.10 For the first month, MDC defendants constantly interrupted him during his morning prayers. They also refused to inform him of the time of day, making it impossible for him to know when to conduct his daily prayers.

9

The 7,000 figure represents the number of people thought to have been killed in the September 11, 2001

attacks at the time Saffi was brought to the MDC. TAC ¶ 154.

10

Plaintiffs allege that Liutenant Torres was verbally abusive to inmates, referring to them as “sons of

bitches, motherfuckers, and troublemakers.” TAC ¶ 158.

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The MDC defendants also “swore at [Saffi], belittled and insulted his religion, and degraded him. They called him a ‘religious fanatic’ and a ‘terrorist.’” TAC ¶ 159.
On October 8, 2001, the District Director of the INS for the New York District issued a removal order for Saffi. On October 14, 2001, two FBI and two INS agents interrogated Saffi on various topics, including his family in France, his work for Pakistan International Airlines, his religious faith and his political views. During this interrogation, Saffi again denied any involvement in terrorist activity. A report by one of the FBI agents who interviewed Saffi “recommended that Saffi be allowed to return to France,” stating that “Saffi’s interview and the subsequent investigation ... revealed nothing to indicate that Saffi had any knowledge of the attack on the World Trade Center, or any other terrorist activity.” TAC ¶ 161.
On October 17, 2001, the removal order “appears to have been served to Saffi.” TAC ¶ 162. Saffi asked an INS official whether he needed a lawyer and was told that he did not since the INS would soon put him on a plane back to France. Id.
On November 2, 2001, Kenneth Maxwell, FBI Special Agent in Charge, wrote to Daniel Molerio, INS Assistant Director for Investigations in New York, to inform him that the FBI did not have an investigative interest in Saffi relating to the events of September 11.
On December 18, 2001 an INS agent and a NYPD detective interrogated Saffi at the MDC, again questioning him about his family, religious and political views, and his work for Pakistan International Airlines. Saffi again denied any involvement with terrorists. At the end of this interrogation, the two officers assured Saffi that he would soon be released.
On March 5, 2002, four months and 18 days after the issuance of his removal order, INS agents took Saffi to LaGuardia Airport and put him on an airplane to France without the money or the employment and identification cards that had been confiscated from him.
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Pakistan National Airlines has initiated proceedings to terminate Saffi’s employment, allegedly because, as a result of his detention in the United States, he has been deemed a security risk. Saffi suffers both emotional and psychological effects from his detention in the United States. He has great difficulty, for example, sleeping at night because he continues to dwell upon what happened to him at the MDC.
2. The Passaic Plaintiffs a. Ibrahim Turkmen
Turkmen, a Muslim Imam, is a citizen of Turkey. He came to the United States on October 4, 2000, on a six-month tourist visa to visit a friend from Turkey, who lived on Long Island in New York. Shortly after his arrival, Turkmen found work at a service station in Bellport, New York. He worked there until January 2001, when he took a job at another service station in the same town. In April 2001, he left that job and began to work part-time for a local Turkish construction company.
Turkmen spoke virtually no English when he first arrived in the United States. During his stay, he learned only the words necessary for his limited daily interaction with English-speakers. At the time that he was taken into custody, Turkmen understood very little spoken English, and he could not read English at all.
On October 13, 2001, two FBI agents visited Turkmen at the apartment where he was staying with several Turkish friends in West Babylon, New York. They asked him whether he had any involvement in the September 11 terrorist attacks and whether he had any association with terrorists. They also inquired as to his immigration status. Turkmen had difficulty understanding the questions posed to him by the FBI, and no interpreter was provided. Turkmen denied any involvement with terrorists or terrorist activity.
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The FBI agents accused Turkmen of being an associate of Osama bin Laden, placed him under arrest, confiscated his personal items, including $52 in U.S. currency, his passport and identification and credit cards, and searched his home. The INS then took Turkmen to an INS facility in Nassau County. There, he was fingerprinted and interrogated by an INS official. At no point during this or any other subsequent interrogation by either the FBI or INS was he advised of his right to counsel or given Miranda warnings. Because no interpreter was provided, Turkmen struggled to understand the questions posed to him.
On the evening of the day he was arrested, Turkmen was taken to the Varick Street facility, where he was again questioned in English without the aid of an interpreter. Turkmen was instructed to sign an English-language document, which he did, though he did not understand what it said.11
The next morning, October 14, 2001, Turkmen was taken to the Passaic Jail. Shortly after arriving there, Turkmen received a Notice to Appear from the INS, charging him with overstaying his visa and scheduling a hearing at immigration court in Newark, New Jersey on October 31, 2001. Turkmen also received a Notice of Custody Determination, and he requested a re-determination of the custody decision.
On October 29, 2001, two FBI agents visited Turkmen in jail and questioned him on various topics, including his immigration status, his reasons for entering the United States, his work experience and his religious beliefs. Another Turkish detainee translated the questions for Turkmen. As he had done during the previous interrogations, Turkmen denied any involvement with terrorists or terrorist activity.

11

Plaintiffs speculate that the documents signed by Turkmen may have included a waiver of the right under

Article 36 of the Vienna Convention to speak with the Turkish consulate.

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On October 31, 2001, Turkmen appeared pro se before an immigration judge in Newark, New Jersey. An interpreter was provided during this proceeding but the interpreter apparently “was fluent in neither Turkish nor English.” TAC ¶ 264. Turkmen admitted that he had overstayed his tourist visa and accepted a voluntary departure order requiring him to leave the United States by November 30, 2001. The judge assured him that he would be allowed to return to Turkey within a matter of days and, as a result, Turkmen declined to request bond. Id. The INS did not appeal the voluntary departure order.
On November 2, 2001, responding to a request from Turkmen, a friend brought a plane ticket for Turkmen’s return to Turkey to the INS offices in Newark. However, Turkmen was not permitted to return to Turkey until February 25, 2002. Until then, he was detained in the Passaic Jail.12
While in jail, Turkmen was placed in the general prison population. He was housed under severely overcrowded conditions with individuals charged with or convicted of violent crimes. He was denied the ability to observe the mandatory practices of his religion: he could not obtain the prescribed Halal food and he could not conduct his daily prayers without interruption. Turkmen further alleges that he was “threatened by guards with menacing dogs.” TAC ¶ 268. He was never informed of his right under Article 36 of the Vienna Convention on Consular Relations to contact the Turkish consulate.
Turkmen remained in Passaic Jail for three months and twenty-five days after he received his voluntary departure order. On February 25, 2002, INS agents took Turkmen in handcuffs to the Newark Liberty International Airport and put him on a plane to Istanbul,

12

Plaintiffs contend that by “preventing” Turkmen from complying with a voluntary departure order, an

automatic order of removal with a 10-year ban on re-entry to the United States was entered. TAC ¶ 265.

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without the $52 confiscated from him at the time of his arrest. He arrived in Istanbul without any means to pay for the eight-hour bus ride to Konya, where his family resides.
When he arrived in Turkey, Turkmen was met at the airport by a Turkish police officer and escorted to a nearby police station. There, he was interrogated for approximately an hour about his detention in the United States. Turkmen denied any involvement in terrorist activity. He was then permitted to leave for Konya.
Once settled in Konya, sometime in late April 2002, following the filing of this lawsuit, Turkmen was interrogated by Konya’s Security Intelligence Division about his detention in the United States. At the end of the questioning, Turkmen was instructed by the Division’s Superintendent to “be careful.” TAC ¶ 274. After the interrogation, Turkmen’s father was contacted by the Head of the Gendarmerie in a district of Konya and asked for information regarding Turkmen’s current address. The official explained that he sought the information because human rights organizations were trying to reach Turkmen. Several days later, the same official obtained Turkmen’s personnel file from Turkmen’s former employer.
Turkmen suffers emotionally and psychologically due to his detention in the United States. He has nightmares regularly about his detention.
b. Akil Sachdeva Sachdeva is a native of India and is Hindu. He holds a bachelor of arts degree in commerce from the University of Delhi. Since 1995, he has entered the United States for extended periods of time. In December 1998, Sachdeva immigrated to Canada. In 1998, while working as a travel agent in Canada, Sachdeva married a United States legal permanent resident who owned a gas station on Long Island. For the next several years, Sachdeva lived with his wife in the United States and worked at her gas station. During this period, he applied to the INS
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for resident status in the United States. In early 2001, however, Sachdeva and his wife divorced. He then briefly returned to Canada until sometime in September or October of 2001, when he returned to finalize his divorce.
Sometime in late November 2001, an FBI agent visited the gas station owned by Sachdeva’s ex-wife in Port Washington, New York, looking for a Muslim employee. Failing to locate the employee, the agent left a note requesting that Sachdeva’s ex-wife contact him. She passed on the request to Sachdeva, who called the agent in early December 2001. The FBI agent asked Sachdeva to come to the agent’s offices for an interview, and Sachdeva complied on December 9, 2001. At the interview, two FBI agents questioned Sachdeva about the September 11 attacks and his religious beliefs. Following the interview, the agents examined Sachdeva’s personal identification and then permitted him to leave.
On December 20, 2001, INS agents arrested Sachdeva at his uncle’s apartment and took him to INS’s offices in Manhattan, where he was interrogated for five hours about the September 11 terrorist attacks. After the interrogation, INS agents confiscated all of Sachdeva’s personal identification and took him to Passaic Jail, where he was confined until he was deported on April 17, 2002.
On December 27, 2001, Sachdeva received a Notice to Appear, charging him with illegal re-entry (he had overstayed a prior voluntary departure order). On December 31, 2001, Sachdeva was taken before an immigration judge in Newark, who ordered Sachdeva deported to Canada or India within 30 days. The INS did not appeal this order.
Plaintiffs allege that the treatment of Sachdeva during his detention and the conditions of his confinement were similar to that of Turkmen, who was also detained at the Passaic Jail. Like Turkmen, Sachdeva was in daily contact with individuals charged with or
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convicted of violent crimes. Only around a quarter of the detainees with whom Sachdeva was confined were immigration detainees. The rest were pre-trial detainees, many with criminal histories. In mid-February 2002, a “well-built” felon punched Sachdeva in the face several times for not handing over a newspaper quickly enough. The assault loosened teeth and caused permanent dental damage.
On four occasions, Sachdeva requested, in writing, that the Canadian consulate be contacted. Each time his request was denied. Sachdeva also made frequent efforts to contact the consulate by telephone. Because the consulate did not accept collect calls, however, guards had to place the calls for Sachdeva, and they would claim that the line was busy or there was no answer. Sachdeva was unable to contact the consulate until mid-March 2002.
On April 17, 2002, three months and seventeen days after he had been ordered deported, Sachdeva was taken by INS agents to Newark Airport and put on a plane to Canada. Despite his requests, the items confiscated from him upon his arrest were not returned to him before he returned to Canada. However, sometime after he arrived, his Canadian identification card was returned to him.
When Sachdeva arrived in Canada, Canadian immigration officials suspended his landed immigrant status and took away his work papers. D. The Plaintiffs’ Claims
1. Delayed Service of Notices to Appear The plaintiffs allege that the INS consistently delayed issuing and serving its charging document, called a “Notice to Appear” (“NTA”), on post-September 11 detainees far beyond the 48-hour period specified by regulation. By doing so, the INS impaired the ability of detainees to know the charges on which they were being held, obtain legal counsel, and seek
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release on bond. Yasser Ebrahim and Hany Ibrahim were served with NTAs 17 days after their arrest. Other named plaintiffs also did not receive NTAs in a timely manner: Sachdeva (seven days); Jaffri (four days); and Ashraf Ibrahim (an unreasonable delay).
2. Blanket No Bond Policy The plaintiffs allege that the defendants, among other federal officials, instituted a blanket “no bond” policy for all post-September 11 detainees, regardless of whether an individual detainee posed a flight risk or danger. INS District Directors were ordered to make an initial determination of “no bond” for all post-September 11 detainees. When detainees requested bond re-determination hearings, INS Trial Attorneys were ordered to seek continuances and to oppose bond even where there was no evidence to support the denial of the bond. See OIG Report at 76, 78. 3. Classification as “of High Interest” and Assignment to the ADMAX SHU Post-September 11 detainees were classified as “of high interest” to the government’s terrorism investigation, but there was no specific criteria or uniform system for making such a classification. The FBI requested that the INS place “of high interest” detainees in the ADMAX SHU, a special housing unit at the MDC created specifically to house postSeptember 11 detainees in highly restrictive conditions (“Administrative Maximum” refers to the most restrictive type of detention permitted under BOP procedures).13 These restrictive conditions included: enforcing a four-man hold restraint policy; using video cameras to record detainee movement and placing cameras in each cell; prohibiting detainees from moving around

13

See 28 C.F.R. § 541.22 (“Administrative detention is the status of confinement of an inmate in a special

housing unit in a cell by self or with other inmates which serves to remove the inmate from the general

population.”). Prior to September 11, the MDC had a special housing unit, but it did not have one designated as

Administrative Maximum, which provides more restrictive confinement than normal SHUs. See April 2003 OIG

Report at 118-119.

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the unit; limiting telephone access; and providing for only non-contact visits with attorneys or family members, with a clear partition between the parties.
Once assigned to the ADMAX SHU, the detainees were further classified as “Witness Security” and/or “Management Interest Group 155” detainees, again without uniform criteria for making such determinations.14
Post-September 11 detainees housed in the ADMAX SHU were not provided with the periodic individual reviews required by BOP regulations.15 Instead, MDC officials were told by BOP headquarters that until the FBI had cleared a particular detainee, that detainee’s report was to be automatically annotated with the phrase “continued high security.”
4. Conditions of Confinement at the MDC a. Physical Abuse
Plaintiffs allege that post-September 11 detainees at the MDC were subjected to frequent physical abuse by many of the MDC defendants -- all of the correctional officer defendants and several of their supervisors -- and that other supervisory defendants encouraged or were indifferent to the abuse. Physical abuse was more frequent before the MDC began videotaping detainee escorts in early October 2001, but it continued after that date.

14

The BOP initially classified all post-September 11 detainees as “Witness Security” or “WITSEC” inmates

-- inmates who are cooperating with a government investigation. Because the cooperation of a typical Witness

Security inmate places him in danger, information about such inmates is carefully guarded. A Memorandum dated

October 1, 2001 directed that post-September 11 detainees be designated under a new classification called

“Management Interest Group 155,” in part to address the lack of information the BOP was providing attorneys and

family members. However, because the memorandum also directed that post-September 11 detainees continue to be

confined in the most restrictive conditions possible until cleared by the FBI, the BOP continued to use WITSEC as

the primary designation for the detainees and added Management Interest Group 155 only as a secondary

designation, and the information restrictions associated with the WITSEC designation continued to apply. See April

2003 OIG Report at 116-117.

15

See 28 C.F.R. § 541.22(c) (requiring formal reviews and hearings for each inmate in administrative

detention to determine whether their continued administrative detention is warranted).

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In the reports on its investigations, the OIG detailed allegations of abuse by MDC officers, which it divided into six categories: (1) slamming detainees against walls; (2) bending or twisting arms, hands, wrists, and fingers; (3) lifting restrained detainees off the ground by their arms, and pulling detainees’ arms and handcuffs; (4) stepping on detainees’ leg restraint chains; (5) using restraints improperly (for example, making restraints too tight, or leaving detainees in restraints while in their cells); and (6) handling detainees in an otherwise rough or inappropriate manner.16 OIG Report at 6. The OIG’s investigation substantiated many allegations of abuse at the MDC, some of which were recorded by videotape (including videotape showing MDC officers slamming a detainee “into two walls while being escorted from the recreation deck to a segregation cell,” and pressing detainees heads against the wall). Id. at 8-28.
b. Verbal Abuse Many of the MDC defendants subjected post-September 11 detainees at the MDC to frequent verbal abuse, including referring to them as “terrorists” and other offensive names, threatening them with violence, cursing at them, insulting their religion, and making humiliating sexual comments during strip searches. The OIG’s investigation substantiated many allegations of verbal abuse. Id. at 28-30. All of the MDC correctional officer and supervisory defendants engaged in verbal abuse, and the supervisory defendants encouraged or were deliberately indifferent when their subordinates verbally abused the detainees.

16

The OIG concluded that “some MDC staff members slammed and bounced detainees into the walls at the

MDC and inappropriately pressed detainees’ heads against the walls. We also found that some officers

inappropriately twisted and bent detainees’ arms, hands, wrists, and fingers, and caused them unnecessary physical

pain; inappropriately carried or lifted detainees; and raised or pulled detainees’ arms in painful ways. In addition,

we believe some officers improperly used handcuffs, occasionally stepped on compliant detainees’ leg restraint

chains, and were needlessly forceful and rough with the detainees -- all conduct that violates BOP Policy.”

Supplemental OIG Report at 28.

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c. Strip Searches Post-September 11 detainees at the MDC were strip searched every time they were removed from or returned to their cells, including before and after non-contact attorney visits (to and from which they were escorted in shackles and under continuous four-man guard), when receiving medical care, using the recreation area, attending a court hearing, or being transferred to another cell. Post-September 11 detainees were strip searched upon arrival to the MDC at the R&D area and again after they had been escorted, shackled and under continuous guard, to the ninth floor ADMAX SHU. Supp. OIG Rep. at 3. “Some of the same officers who were present for a detainee’s strip search in R&D were present for the detainee’s strip search on the ADMAX SHU.” Id. at 34. The OIG found that it “[did] not appear that the MDC issued written policies regarding when detainees were to be strip searched.” Id. The OIG further found that “even if such searches were consistent with policy, they were applied inconsistently to the detainees and appeared to be unnecessary.” Id. The plaintiffs allege that the strip searches were both unnecessary and conducted to punish and humiliate the detainees. The OIG Report substantiates allegations that female officers were present during the searches, that strip searches were videotaped in their entirety (which runs counter to BOP policy to assure as much privacy as practicable to a detainee, see BOP P.S. 5521.05), that MDC officers laughed while the searches were being conducted, and that “on occasion staff members inappropriately used strip searches to intimidate and punish detainees.” Supp. OIG Report at 33-35. For example, the OIG states that in one videotape 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. We could see no correctional purpose or justification for strip searching this detainee, who had just been taken from his cell, pat searched, and then escorted into the recreation cell by four officers.
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Id. at 34-35. The plaintiffs allege that MDC defendants routinely made inappropriate sexual comments and laughed at the plaintiffs’ anatomy.
d. Sleep Deprivation The plaintiffs allege that the MDC defendants sought to deprive post-September 11 detainees at the MDC of sleep by keeping lights on in the cells 24 hours a day (until February 2002), banging on their cell doors, and engaging in other conduct designed to keep them from sleeping. The OIG reported allegations by detainees that MDC officers “loudly banged on their cell doors in an attempt to wake them up, interrupt their prayers, or generally harass them.” Supp. OIG Report at 35. Detainees alleged that officers “went beyond what was required for the count17 by kicking the door hard with their boots, knocking on the door at night much more frequently than required, and making negative comments when knocking on the door.” Id. For example, one detainee claimed that officers kicked the doors non-stop in order to keep the detainees from sleeping. He stated for the first two or three weeks he was at the MDC, one of the officers walked by about every 15 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, “Motherfuckers,” “Assholes,” and “Welcome to America.” Id. at 36. One detainee’s attorney reported that officers would constantly wake his client by watching the in-cell camera, and then kicking the cell door as soon as they thought he had fallen asleep. Id.
e. Constructive Denial of Exercise The plaintiffs allege that post-September 11 detainees at the MDC were given the “opportunity” to go to the recreation area several times a week, but were deprived of adequate clothing and thus were constructively denied exercise during the fall and winter. The ADMAX

17

A “count” is conducted at midnight, 3:00 a.m. and 5:00 a.m., and officers are required to see detainees’

skin, see BOP P.S. 5500.09.

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SHU recreation area was exposed to the elements, and could be freezing cold. MDC plaintiffs were periodically offered transport to the area, but it was often at 5 or 6 in the morning, and the detainees were not offered any extra clothing besides their cotton prison garb. In addition, detainees who accepted such offers were often physically abused along the way, and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment.
f. Denial of Hygiene Items and Adequate Food For the first several months of their detention, MDC plaintiffs were not allowed to keep personal hygiene items in their cells, including toilet paper, towels, soap, toothbrushes, or cups to drink water, making it difficult to maintain proper health and hygiene. MDC plaintiffs were also provided with meals that were meager and barely edible.
g. Inadequate Medical Attention MDC plaintiffs allege they were not provided with adequate medical care. For example, Yasser Ebrahim and Hany Ibrahim were physically abused (including being slammed face-first into a wall) upon their arrival at the MDC. The following day, Nina Lorenzo, a physician assistant, conducted their physical examinations, but did not ask about, comment upon, or treat their obvious injuries. Although Hany Ibrahim tested positive for tuberculosis, and was suffering from a painful and persistent cough, MDC staff refused to treat him for his condition. Yasser Ebrahim complained of painful kidney stones to Lorenzo, who told him she was not authorized to do anything to treat the condition. The pain from the kidney stones was severe. Lorenzo told Ebrahim to drink 12 cups of water a day, but he was only given one cup with meals three times a day (and was not allowed to keep a cup in his cell). Lorenzo
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subsequently arranged for Ebrahim to be allowed to keep a cup in his cell in order to drink water more frequently, but guards took the cup away when he was transferred to a new cell.
Baloch had repeated problems with ear infections prior to his detention. When he complained of an earache, Lorenzo refused to treat it, and his ear remained infected until after his release from detention.
Baloch wrote a letter to the warden requesting a transfer because his cellmate had tuberculosis. No action was taken in response. Baloch remained in the cell with the tubercular cellmate for approximately four weeks, and tests have since shown that he was exposed to tuberculosis.
h. Deliberate Interference with Religious Rights Plaintiffs allege that as a matter of policy, MDC defendants interfered with their ability to observe their Muslim faith. This interference included: (1) refusing to provide plaintiffs with a copy of the Koran for weeks or even months; (2) refusing to provide food that would conform to a Halal diet; (3) refusing to tell plaintiffs the time of day so that they could conform to daily prayer requirements or deliberately providing them with the incorrect time; and (4) constantly interrupting their prayers by banging on cell doors, screaming derogatory antiMuslim comments, and telling plaintiffs to “shut the fuck up” while they were trying to pray. 5. Communications Blackout at the MDC
a. Holding Detainees Incommunicado Most post-September 11 detainees were held incommunicado during the first weeks of their detention. Family members, friends, and attorneys had great difficulty finding out whether someone had been arrested and detained, and if so, where they were being held. In addition, the classification of post-September 11 detainees as “Witness Security” or
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“Management Interest Group 155” inmates led MDC staff falsely to tell lawyers and family members that the individual detainee for whom they were looking was not at the MDC. The INS also designated post-September 11 detainees as “special interest cases,” which had the effect of closing their immigration hearings to both the general public and to family members.
b. Interference with Access to Counsel Post-September 11 detainees had great difficulty obtaining legal representation. Some were held for months following their arrest while their lawyers and families made unsuccessful attempts to learn their status and whereabouts. Although various advocacy organizations sought to provide free legal services to post-September 11 detainees, the MDC refused to disclose detainees’ names, the facilities in which they were held, or other information about the individual detainees’ cases. MDC officials denied requests to visit post-September 11 detainees in need of legal assistance. In addition, while INS detainees typically receive a list of organizations that might provide free legal services, the lists given to the post-September 11 detainees contained inaccurate and outdated information. After the initial “incommunicado” period, post-September 11 detainees were permitted to make one telephone call per week to their attorneys, and one social call per month. In practice, detainees were frequently denied these limited calls, because calls that resulted in busy signals or calls answered by voicemail “counted” as a legal call. In addition, MDC defendants (in particular Raymond Cotton) deliberately obstructed detainees’ efforts to telephone lawyers. The officers would bring a phone around to each cell, often before law offices were open, and each inmate who requested a phone call was required to place a call request from outside of their cell. The officers would regularly pretend to dial a number or deliberately dial a wrong number and then claim the line was dead or busy. They would then refuse to dial again,
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saying that the detainee had exhausted his quota for calls. MDC officers also were deliberately

vague in ascertaining whether detainees wanted to make calls. In many instances, the unit

counselor would ask “are you okay?” Several detainees told the OIG investigators that they did

not realize that an affirmative response to this casual question meant that they opted to forgo

their legal calls for the week.

The MDC also instituted a policy of videotaping detainees’ visits with their attorneys, including the recording of sound.18 As a result, post-September 11 detainees,

including Baloch, Yasser Ebrahim, Hany Ibrahim, and Jaffri, were reluctant to speak candidly to

their attorneys.

6. Denial of Consular Rights

Many post-September 11 detainees were not advised of their right to seek

assistance from their consulates (under Article 36 of the Vienna Convention, non-citizen

detainees must be advised of this right). Other detainees were coerced into waiving the right by

signing forms they did not understand. When post-September 11 detainees did request to contact

their consulates, those requests were repeatedly denied.

7. Failure to Provide Handbooks

Post-September 11 detainees confined in the ADMAX SHU were not timely

provided with the MDC handbooks that explain the procedures for filing complaints about

mistreatment (or they were not provided with them at all).

E. The Defendants’ Personal Involvement

Plaintiffs allege that former Attorney General Ashcroft was a “principal architect”

of the challenged policies and practices, and that FBI Director Mueller and former INS

18

Audio taping of inmates’ meetings with attorneys is prohibited by federal regulation. See 28 C.F.R. §

543.13(e). The OIG “concluded that audio taping attorney visits violated the law and interfered with the detainees’

effective access to legal counsel.” Supp. OIG Report at 33.

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Commissioner Ziglar were instrumental in the adoption, promulgation and implementation of the challenged practices. TAC ¶¶ 23-25. Plaintiffs allege that these three Washington-based Defendants “authorized, condoned, and/or ratified” the harsh conditions under which postSeptember 11 detainees were held at the MDC and the Passaic Jail. Id.
Plaintiffs allege that the MDC Wardens, along with Associate Warden Sherman and other supervisory MDC defendants, “created the unconstitutional and unlawful policies and customs relating to the manner in which the post-9/11 detainees were detained at the MDC that are at issue in this suit.” TAC ¶ 136. Moreover, plaintiffs allege that these defendants exhibited gross negligence and deliberate indifference in their supervision of subordinates who had direct contact with post-September 11 detainees. F. The Third Amended Complaint
For ease of reference, in the Third Amended Complaint the plaintiffs assert the following claims, on their own behalf and on behalf of the putative class (unless otherwise indicated). The paragraph number reflects the claim number indicated in the complaint.
1. Detaining plaintiffs for months longer than necessary to secure removal or voluntary departure from the United States without (a) charging them with a crime or (b) affording them a hearing before a neutral judicial officer to determine whether there was probable cause to justify their continued detention, constituted an unreasonable seizure under the Fourth Amendment. Plaintiffs assert this claim against all defendants.
2. Detaining plaintiffs longer than necessary to secure removal or voluntary departure from the United States without any legitimate immigration law enforcement purpose, and without evidence that they posed a danger or flight risk, violated plaintiffs’ due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
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3. The policy of “unreasonably detain[ing]” plaintiffs and subjecting them to inhumane conditions of confinement violated their due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
5.19 Detaining plaintiffs longer than necessary to secure removal from the United States and subjecting them to harsher treatment than that accorded to similarly-situated noncitizens because of plaintiffs’ race, religion, and national origin violated plaintiffs’ right to equal protection under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
7.20 The policies and practices of deliberately interfering with plaintiffs’ religious practices, including (1) subjecting them to verbal and physical abuse; and (2) denying them the means for maintaining a religious practice, including the means to observe Halal food or daily prayer requirements, violated plaintiffs’ free exercise rights under the First Amendment. Plaintiffs assert this claim against all defendants.
8. The policy of taking plaintiffs’ property and not returning it at the time of their removal or voluntary departure from the United States violated their right to due process under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
9-10. The arbitrary detention and cruel, inhuman, and degrading treatment of plaintiffs violated international law. Plaintiffs assert claims for this violation under the Alien Tort Statute, 28 U.S.C. § 1350, against all defendants.
11. The failure to notify plaintiffs of their right to communicate with consular officials violated plaintiffs’ rights under the Vienna Convention on Consular Relations, April 24,

19

Plaintiffs have withdrawn Claim 4, asserting violations of the self-incrimination clause of the Fifth

Amendment. See Pl. Br. at 5 n.4.

20

Plaintiffs have withdrawn Claim 6, asserting a violation of the right to a speedy trial under the Sixth

Amendment. See Pl. Br. at 5 n.4.

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1963, TIAS 6820, 21 U.S.T. 77, Art. 36. Further, the failure to notify consular posts without delay when plaintiffs requested to speak with officials from their respective consulates also violated the Vienna Convention. Plaintiffs assert this claim against all defendants.
12-16: The intentional beatings of Baloch, Ebrahim, Hany Ibrahim, Jaffri, and Saffi violated their rights under the Fourth and Fifth Amendments. These plaintiffs assert claims on their own behalf against various MDC defendants, including Hasty, Zenk, and Sherman.21
17. Delaying the issuance of Notices to Appear violated plaintiffs’ right to due process under the Fifth Amendment. Plaintiffs assert this claim against all defendants.22
18. Denying bond without regard to whether the detainee posed a flight risk or danger (the blanket “no-bond” policy) violated plaintiffs’ right to due process. Plaintiffs assert this claim against all defendants.
19. Subjecting plaintiffs to the blanket no-bond policy because of their ethnic or religious identity violated their equal protection rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
20. The policy of classifying plaintiffs as “of high interest,” “Witness Security,” or “Management Interest Group 155” detainees without any defined criteria or individualized assessment of dangerousness or risk of flight (which led to “unnecessary and unreasonable

21

Specifically, plaintiffs assert this claim against the “MDC Correctional Officer Defendants” and “MDC

Supervisor Defendants”. It was not clear from the complaint whether plaintiffs intended also to include the Wardens

in their excessive force claims (because the Wardens are included in the group plaintiffs designate “MDC Policy and

Implementation Defendants” but not in the group called “MDC Supervisor Defendants”). For the reasons stated on

the record at a hearing dated January 14, 2005, I find that the Wardens are included as defendants on these claims. I

note, however, that Zenk was not appointed Warden of the MDC until April 22, 2002. By that time, Baloch, Jaffri,

and Saffi had been removed from the United States. Accordingly, claims 12 (Saffi), 13 (Jaffri), and 16 (Baloch) are

dismissed as to Zenk.

22

This claim is brought by five plaintiffs (Ebrahim, A. Ibrahim, H. Ibrahim, Jaffri, and Sachdeva) on their

behalf and on behalf the putative class.

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restrictions on their liberty”), violated their procedural due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.23
21. The policy of subjecting plaintiffs to a “communications blackout,” as well as other measures that interfered with their access to lawyers and to the courts, violated their right to free speech under the First Amendment. Plaintiffs assert this claim against all defendants.
22. The policy of subjecting plaintiffs to a “communications blackout,” as well as other measures that interfered with their access to lawyers and to the courts, violated their due process rights under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
23. Subjecting plaintiffs to excessive and unreasonable strip searches unrelated to a legitimate penological purpose violated plaintiffs’ rights to privacy and due process under the Fifth Amendment, and violated the Fourth Amendment’s prohibition against unreasonable searches. Plaintiffs assert these claims against MDC defendants, including Hasty, Zenk, and Sherman.
24. Detaining the named MDC plaintiffs for months longer than necessary to secure their removal or voluntary departure constituted false imprisonment, for which plaintiffs seek monetary damages from the United States pursuant to the FTCA.24
25. Delaying the “clearance investigations” of the named plaintiffs constituted negligence, for which plaintiffs seek monetary damages pursuant to the FTCA.
26. Denying adequate medical services to the named MDC plaintiffs constituted negligence, for which plaintiffs seek monetary damages pursuant to the FTCA.

23

This claim is brought by six plaintiffs (Baloch, Ebrahim, A. Ibrahim, H. Ibrahim, Jaffri, and Sachdeva) on

their behalf and on behalf of the putative class.

24

This claim is brought by the six MDC plaintiffs (Baloch, Ebrahim, A. Ibrahim, H. Ibrahim, Jaffri, and

Saffi).

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27. The physical abuse of the named MDC plaintiffs and the manner in which that abuse was carried out constituted assault and battery, for which plaintiffs seek monetary damages pursuant to the FTCA.
28. Subjecting the named MDC plaintiffs to bright lights and loud noises for the purpose of interrupting their sleep constituted battery, for which plaintiffs seek monetary damages pursuant to the FTCA.
29. The treatment of the named plaintiffs, including (1) accusing them of being terrorists and mass murderers; (2) subjecting them to gratuitous and humiliating insults to their ethnicity, religion, and physical anatomy; (3) threatening them with prolonged and permanent detention, torture, and death; (4) subjecting them to inhumane conditions of confinement; and (5) interfering with their religious practices, constituted the intentional infliction of emotional distress, for which plaintiffs seek monetary damages pursuant to the FTCA.
30. Refusing to return plaintiffs’ property constituted conversion, for which plaintiffs seek monetary damages pursuant to the FTCA.
31. The intentional beating of Ashraf Ibrahim violated his rights under the Fourth and Fifth Amendments. Ibrahim asserts this claim against various MDC defendants, including Hasty and Sherman.25
DISCUSSION A. The Motion to Dismiss Standard
In considering a motion to dismiss under Rule 12(b)(1) or (6), a federal court is required to accept as true the factual assertions in the complaint and to draw all reasonable inferences in favor of the plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990) (Fed. R. Civ. P.

25

To the extent plaintiffs seek to assert this claim against Zenk, it is dismissed. Zenk did not become Warden

until after Ashraf Ibrahim was deported.

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12(b)(6)); Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (Rule 12(b)(1)). The motion may not be granted unless “it appears beyond doubt ... that the plaintiff can prove no set of facts which would entitle him to relief,” Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (internal quotation marks omitted), because the question on a motion to dismiss is not “whether the plaintiff will ultimately prevail but, [rather,] whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds). However, in order to survive a motion to dismiss, the complaint must allege facts which, if “assumed to be true, confer a judicially cognizable right of action.” York v. Ass’n of the Bar of New York, 286 F.3d 122, 125 (2d Cir. 2002). B. Constitutional Claims
1. Subject Matter Jurisdiction I begin by addressing the defendants’ several arguments that the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), deprives the court of jurisdiction over certain of the plaintiffs’ constitutional claims.
a. Section 1252(b)(9) The defendants argue that 8 U.S.C. § 1252(b)(9) precludes review of claims 17-19 and 21-22 because those claims are subject to judicial review only by a petition for review of a final order of removal in the appropriate court of appeals.26 Section 1252(b)(9) provides:

26

Specifically, 8 U.S.C. § 1252(a)(1) says that “judicial review of a final order of removal ... is governed only

by chapter 158 of Title 28,” known as the Hobbs Act, which vests exclusive jurisdiction for judicial review of

certain final orders of a federal agency in the courts of appeals. 28 U.S.C. § 2342. Upon such review, the court of

appeals may “enjoin, set aside, suspend (in whole or in part) or determine the validity of” the administrative order.

Id.

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With respect to review of an order of removal under subsection (a)(1) of this section, the following requirements apply:
... (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. Congress’s purpose in enacting this provision was “to consolidate judicial review into one proceeding,” INS v. St. Cyr, 533 U.S. 289, 313 (2001), not to eliminate it altogether. See Arar v. Ashcroft, 2006 WL 346439, *18-19 (E.D.N.Y.); see also Reno v. American-Arab AntiDiscrimination Comm. (“AADC”), 525 U.S. 471, 483 (1999) (describing § 1252(b)(9) as a “zipper clause”). Accordingly, the Supreme Court has held that § 1252(b)(9) “applies only ‘with respect to review of an order of removal under subsection (a)(1)’” and therefore, “by its own terms, does not bar ... jurisdiction over [actions] not subject to judicial review under § 1252(a)(1) ....” St. Cyr, 533 U.S. at 313. Not surprisingly, the plaintiffs argue that “the challenges presented here could not have been reviewed on a petition for review” because the plaintiffs contest only their detention, not their removal. Pl. Br. at 8. With respect to claims 18 and 19, challenging the plaintiffs’ having been denied bond, this is simply not true. The regulations governing the jurisdiction of the Board of Immigration Appeals specifically provide that the Board may review appeals from “[d]eterminations relating to bond, parole, or detention of an alien,” 8 C.F.R. § 1003.1(b)(7); see
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also 8 C.F.R. § 1236.1(d). Had the plaintiffs invoked the Board’s jurisdiction, they could have sought review of the Board’s decision when their orders of removal became final. Of the two plaintiffs who allege they applied for bond, both admit that the Immigration Judge denied their requests because he was not convinced that they would appear at future hearings. TAC ¶ 188. The denial of bond, serving to assure the plaintiffs’ presence for later removal proceedings, appears on its face to “aris[e] from ... action taken ... to remove” the plaintiffs. 8 U.S.C. § 1252(b)(9). Claims 18 and 19 are accordingly dismissed.27
Claims 21-22 allege that the “communications blackout” violated the plaintiffs’ rights (1) to due process under the Fifth Amendment and (2) to obtain access to legal counsel and to petition the courts for redress of their grievances under the First Amendment. An alien has a right to counsel “in proceedings before an Immigration Judge ... at no expense to the government.” 8 C.F.R. 1003.16(b); In re Madrigal-Calvo, 21 I. & N. Dec. 323 (1996) (“The right to counsel in immigration proceedings derives from the Due Process clause, the [INA], and the regulations promulgated under the [INA], and entitles an alien to obtain counsel at his own expense.”). And claims by an alien that the right to counsel has been denied may properly be presented to the BIA and then to the court of appeals on a petition for review. See Michel v. INS, 206 F.3d 253, 258 (2d Cir. 2000) (reviewing alien’s claim that he was denied the right to counsel in immigration proceedings). Therefore, to the extent the plaintiffs challenge the communications blackout as having prejudiced them in immigration proceedings, their claims could have been brought in a petition for review.

27

Plaintiff Turkmen is wrong in asserting that because he was granted voluntary departure he was not subject

to a final order of removal and therefore could not have filed a petition for review in the court of appeals after

exhausting his administrative remedies. The Second Circuit routinely entertains petitions for review filed by aliens

who have been granted voluntary departure. See, e.g., Paul v. Gonzalez, 444 F.3d 148 (2d Cir. 2006) (granting

petition for review brought by alien who was allowed voluntary departure).

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Whether the communications blackout was “action taken ... to remove an alien from the United States” presents a separate issue. In ordinary usage, an action taken “to” do something means an action taken “for the purpose of” doing the thing. See Webster’s Third New International Dictionary Unabridged (2002). It does not appear, however, even from the defendants’ briefs on this motion, that one of the purposes of the communications blackout was “to remove” the plaintiffs; rather, the purposes were to investigate the terrorist attacks of September 11, to prevent further attacks, and to preserve institutional security. See, e.g., Def. Br. at 70 (“the possibilities that one terrorist might tell another which of their members were compromised by the investigation, and which were not, or might convey the substantive and geographic focus of the investigation were dangers that the Government had an obligation to prevent”). I conclude that the defendants did not subject the plaintiffs to the communications blackout for the purpose of removing them, and therefore claims 21-22 are not barred by § 1252(b)(9).28
Claim 17, which challenges the Attorney General’s delay in serving the plaintiffs with Notices to Appear after having detained them, survives on similar terms. Before an alien detainee has been served with a Notice to Appear, there has been no “action taken” or “proceeding brought”; the alien has simply been detained but not charged with a violation of any kind. Moreover, before a formal charge is made, the act of detaining an alien, standing alone, has no objectively identifiable purpose -- perhaps the authorities are still pondering what charges,

28

It might be argued on this reasoning that the plaintiffs’ bond claims should not be dismissed, because the

real purpose (according to the complaint) for denying bond was to hold the plaintiffs until they were cleared of

terrorist connections. The decision whether to grant the plaintiffs bond, however, was justified by a judicial officer

for a facially legitimate reason: to secure their presence at later hearings and ultimately for removal. It would

circumvent the intention of a zipper clause like § 1252(b)(9) altogether to hold that it does not apply when an alien

doubts whether the Immigration Judge was being candid in stating that bond was denied to ensure the alien’s

presence for removal. In short, I do not think the Congress intended for courts, outside the context of a petition for

review, to look behind the Immigration Judge’s decision denying bond.

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if any, will be made -- and it therefore cannot be said that the purpose of the detention is “to
remove an alien.” It is only upon the filing of a charge that the purpose of the detention is
declared, both to the alien and to the adjudicator. The plaintiffs’ challenge to the period of time
the Attorney General constitutionally may refrain from charging an alien after detaining him thus
challenges a failure to act or bring proceedings, which I conclude is outside the sweep of §
1252(b)(9).
b. Section 1252(g)
The defendants next argue that § 1252(g) deprives the court of jurisdiction over
claims 1, 2, 5, and 17. Section 1252(g) provides:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
As the Supreme Court held in AADC, this provision “applies only to three discrete actions that
the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate
cases, or execute removal orders,’” and does not cover “all claims arising from deportation
proceedings.” 525 U.S. at 482. In Zadvydas v. Davis, addressing a set of constitutional
challenges to the lengthy detention of aliens who had been ordered removed, the Court held that
§ 1252(g) did not apply. 533 U.S. 678, 687-88 (2001) (“Congress has enacted several statutory
provisions that limit the circumstances in which judicial review of deportation decisions is available. But none applies here.”).29 That holding covers claims 1-2, which allege, quite

29

As Justice Kennedy noted in dissent, the Government conceded the issue of jurisdiction in Zadvydas. 533

U.S. at 724. The Court could not have simply assumed jurisdiction for the purpose of deciding the merits, see Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-102 (1998) (“For a court to pronounce upon the meaning or the

constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act

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similarly to the claims in Zadvydas, that the length of the plaintiffs’ post-removal detention violated due process, as well as claim 5, which alleges that the plaintiffs were singled out for longer detention on the basis of their race, religion, and national origin. Although the Court in Zadvydas based its jurisdiction on “the primary federal habeas corpus statute, 28 U.S.C. § 2241,” 533 U.S. at 687, there is no indication it concluded that § 1252(g) was inapplicable to such claims in an attempt to construe that provision narrowly to avoid a constitutional question under the Suspension Clause. U.S. Const., art. 1 § 9. Rather, the limitation seems to me based on the notion that detaining an alien in between the discrete actions specified in § 1252(g) -- namely, between adjudicating the alien’s case and actually removing him -- is beyond the scope of § 1252(g); such detention is instead one of the “many other decisions or actions that may be part of the deportation process” acknowledged by the Court AADC. 525 U.S. at 482.30
As for claim 17, according to the defendants, “the statute makes clear that decisions on when to commence immigration proceedings ... are matters of prosecutorial discretion” and are therefore unreviewable. Def. Br. 22 (emphasis added). That argument mischaracterizes claim 17. As explained above, the plaintiffs do not challenge the Attorney General’s authority to decide when to “commence proceedings” against them. They challenge his authority to detain them longer than 48 hours without commencing proceedings against them. The latter is a far cry from “prosecutorial discretion.” Section 1252(g) covers (among other things of course) the Attorney General’s decision whether to commence proceedings or not, as in

ultra vires.”), and therefore its conclusion that no provision of the IIRIRA deprived it of jurisdiction was essential to its decision and constitutes a precedent binding upon this court.

30

The Government has not argued that the plaintiffs’ length-of-detention claims (1-2, and 5) are

barred by the seemingly broader § 1252(b)(9). I assume this is due to the limitation read into that provision in St.

Cyr described above, that it “does not bar ... jurisdiction over [actions] not subject to judicial review under §

1252(a)(1) ....” 533 U.S. at 313, and I am satisfied that had jurisdiction over such claims relating to the length of

post-removal detention been available on a petition for review, the defendants would have pressed the argument

here.

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AADC. 525 U.S. at 484-85. It has nothing to do with how long the Attorney General may detain an alien while deciding whether to commence proceedings, and thus it does not apply to claim 17.
c. Section 1252(a)(2)(B)(ii) The Supreme Court’s brief jurisdictional explanation in Zadvydas also disposes of the defendants’ argument that § 1252(a)(2)(B)(ii) divests the court of jurisdiction over claims 12, and 18-20. That section provides:
Notwithstanding any other provision of law ... no court shall have jurisdiction to review --
... (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title. As in Zadvydas, the plaintiffs here “do not seek review of the Attorney General’s exercise of discretion; rather, they challenge the extent of the Attorney General’s authority .... And the extent of that authority is not a matter of discretion.” 533 U.S. at 688; see also Demore v. Kim, 538 U.S. 510, 516-17 (2003) (“Respondent does not challenge a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney General has made regarding his detention or release. Rather, respondent challenges the statutory framework that permits his detention without bail.”). In sum, the IIRIRA requires dismissal only of the plaintiffs’ claims that they were denied bond in violation of the Constitution. That no statute deprives the Court of jurisdiction,
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however, does not alone indicate that the plaintiffs’ remaining constitutional claims are redressable through an implied right of action. I turn now to that issue.
2. Bivens Liability In Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that a private cause of action under the Constitution was available to recover damages against federal officers for violations of Fourth Amendment rights. This cause of action was later extended to allow recovery for other constitutional violations. See, e.g., Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment); cf. Bush v. Lucas, 462 U.S. 367, 377-80 (1983) (refusing to allow a Bivens suit on the ground that Congress had created adequate alternative remedies, but generally recognizing the existence of such a cause of action for violations of the First Amendment). Courts generally treat a Bivens claim as analogous to the cause of action created by 42 U.S.C. § 1983, which permits recovery where federal rights are violated by state officials. See Wilson v. Layne, 526 U.S. 603, 609 (1999) (“Although this case involves suits under both § 1983 and Bivens, the qualified immunity analysis is identical under either cause of action.”); Butz v. Economou, 438 U.S. 478, 498-99 (1978) (treating a Bivens claim as directly analogous to a § 1983 claim). As in § 1983 actions, there is no respondeat superior liability in a Bivens action. See Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 691-95 (1978); Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981). Accordingly, in order to state a Bivens claim against a federal officer, the plaintiff must allege that the defendant had personal involvement in the alleged constitutional violation. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (“Proof of an individual defendant’s personal involvement in the alleged wrong is, of course, a prerequisite to his liability on a claim for damages under § 1983.”).
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The Supreme Court has carved out two exceptions to the availability of Bivens damages. A Bivens remedy is unavailable (1) “when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective,” Carlson, 446 U.S. at 18-19; and (2) where there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Id.; see, e.g., United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding that the unique disciplinary structure of the military constituted “special factors counselling hesitation” such that no Bivens remedy “is available for injuries that arise out of or are in the course of activity incident to service”) (internal quotation marks omitted); Bush, 462 U.S. at 388-89 (refusing to extend a Bivens claim to a federal employee in light of the comprehensive scheme Congress had established over the field of federal employment).
The defendants take up the second exception here, arguing that the “INA’s comprehensive regulatory scheme constitutes a ‘special factor’” counselling against “creation of a damages remedy” with respect to claims 1-2, 5, 7, 17, and 20-22. Def. Br. 25. Relying principally upon Bush v. Lucas, 462 U.S. 367 (1982), and Schweiker v. Chilicky, 487 U.S. 412 (1988), in which the Supreme Court refused to permit a Bivens remedy in the face of “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations,” Bush, 462 U.S. at 388, the defendants argue that the INA “serves as a comprehensive regulatory scheme concerning the degree to which the United States, as a sovereign nation, allows aliens within its borders,” Def. Br. at 26. Accordingly, the defendants argue, “Congress’s failure to provide aliens a private cause of action for monetary damages cannot be seen as inadvertent.” Id.
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I do not find these arguments persuasive. The constitutional rights the plaintiffs assert -- the rights to due process of law, to equal protection of the laws, and to be free from unreasonable searches and seizures -- apply not only to citizens but also to aliens present in our country. By leaving the plaintiffs’ conditions-of-confinement claims out of their “special factors” arguments, the defendants implicitly acknowledge that Congress should not lightly be presumed to contemplate that constitutional violations by executive branch officials should be left without a remedy. Although, as the defendants say, the INA provides a comprehensive regulatory scheme for managing the flow of immigrants in and out of the country, it is by no means a comprehensive remedial scheme for constitutional violations that occur incident to the administration of that regulatory scheme. As the Supreme Court explained in Schweiker, “[w]hen the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.” 487 U.S. at 423. Yet the defendants point to no evidence that the Congress gave thought to what remedies should be available when immigration officials, for example, unconstitutionally detain an alien after he has been ordered removed. Indeed, under the defendants’ theory, the plaintiffs would not be entitled to compensation even if they were detained for twenty years before a Notice to Appear was filed, then for twenty years more after they were ordered removed, all with no telephone calls or access to a lawyer. That, of course, does not sound right. And if it is not right, then the defendants’ argument that the particular claims asserted here should not be entertained must be grounded in their belief that the constitutional violations alleged are not serious enough, or that the official conduct involved was reasonable under the circumstances. That is a merits argument, not a threshold one.
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Nor am I persuaded that the events of September 11, 2001 provide any cause to relax enforcement of the rights guaranteed by our Constitution. See Elmaghraby v. Ashcroft, 2005 WL 2375202 at *14 (E.D.N.Y.). Rather, as I explained in Elmaghraby, the extraordinary factual context that gave rise to the plaintiffs’ detention is best considered in the analysis of whether the defendants are entitled to qualified immunity. Id.
3. Qualified Immunity The defendants seek dismissal of all of plaintiffs’ Bivens claims on qualified immunity grounds. Under that doctrine, government officials performing discretionary functions are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Wilson v. Layne, the Supreme Court declared that “[a] court evaluating a claim of qualified immunity ‘must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all.’” 526 U.S. at 609, quoting Conn v. Gabbert, 526 U.S. 286, 290 (1999). Only if a determination is made that the constitutional right plaintiff alleges to have been violated exists does a court turn to the question of whether the defense of qualified immunity applies. Wilson, 526 U.S. at 609; Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002); Wilkinson v. Russell, 182 F.3d 89, 103 (2d Cir. 1999). “In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996). In determining whether a right was clearly established, courts consider the following: (1) whether the law was defined with reasonable clarity; (2) whether Supreme Court
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or Second Circuit precedent recognizes the right; and (3) whether a reasonable defendant would have understood from the existing law that his conduct was unlawful. Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). With respect to the second prong of the qualified immunity analysis, an officer may still be entitled to qualified immunity even where his actions were unlawful, provided that the constitutionality of his conduct was debatable. See Danahy v. Buscaglia, 134 F.3d 1185, 1190 (2d Cir. 1998) (immunity applies whenever “officers of reasonable competence could disagree on the legality of defendant’s actions”) (internal quotation marks omitted); Lennon v. Miller, 66 F.3d 416, 423 (2d Cir. 1995) (“[I]t is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials ... should not be held personally liable”) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
4. The Plaintiffs’ Conditions of Confinement Claims (Claims 3 and 23) Plaintiffs allege that the conditions of their confinement violated their rights to due process under the Fifth Amendment and to be free from unreasonable searches and seizures under the Fourth Amendment.
a. The Due Process Standard Defendants and plaintiffs disagree regarding the proper legal standard applicable to claims by alien detainees that the conditions of their detention violated due process. Plaintiffs argue that these claims are governed by the standard set forth in Youngberg v. Romeo, 457 U.S. 307, 323 (1982). There, the Supreme Court held that official liability for conditions inflicted upon a retarded man involuntarily committed to a state institution was appropriate upon a showing of a “substantial departure from accepted professional judgment, practice, or standards.” Id. The defendants contend that claims of unconstitutional conditions of confinement made by
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INS detainees should be evaluated under the stricter standard applicable to pretrial detainees. Neither plaintiffs nor defendants cite a Second Circuit case addressing the applicable standard for evaluating such claims made by INS detainees, and I have found none.
I consider plaintiffs’ claims of unconstitutional confinement under the standard applicable to such claims asserted by pretrial detainees. In doing so, I rely on the Supreme Court’s language in Youngberg regarding the significance of the purpose of detention in determining how challenges to the conditions of that confinement should be evaluated. See Youngberg, 457 U.S. at 320 n.27. In Youngberg, a retarded man had been involuntarily committed by his mother because she could no longer adequately care for him. The “purpose of [his] commitment was to provide reasonable care and safety.” Id. The Court found that the standard of treatment to which he was entitled was determined, at least in part, by the purpose of his confinement. See id. at 321-22 (“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.”).
The purpose of confinement relied upon in Youngberg does not exist in the context of detention for immigration violations. The Attorney General is required to detain all aliens ordered removed until they actually depart, up to a period of 90 days (the “removal period”). 8 U.S.C. § 1231(a)(2); see also, Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (citing the government’s asserted regulatory goals of INS detention as “ensuring the appearance of aliens at future immigration proceedings” and “preventing danger to the community.”). The statute that permits an alien to be detained subsequent to the statutory removal period, as these plaintiffs were, indicates that the underlying purposes of detaining aliens ordered removed is to ensure the safety of the community and compliance with the removal order. See 8 U.S.C. §
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1231(a)(6) (“An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period”); 8 C.F.R. § 241.4 (listing alien’s history of flight and potential threat to the community among the factors to consider in determining whether further detention is warranted). Nothing in the factors to be considered in determining whether further detention is warranted suggests that the purpose of the detention is to provide care and safety to the detainee, which was the purpose of the detention in Youngberg.
This justification is similarly absent in the context of pretrial detention. Pursuant to 18 U.S.C. § 3142(e), a person charged with a criminal offense may be detained before trial if it is determined that detention is necessary to assure his appearance as required or the safety of the community. Based upon the analogous reasons underlying pre-trial and INS detention, I conclude that the same standard should govern challenges to both forms of detention. See Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000).
Pretrial detainees’ challenges to the conditions of their confinement are governed by the Due Process Clause of the Fifth Amendment, rather than the Eighth Amendment’s prohibition against cruel and usual punishment, which applies in the context of convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979). Due process requires that detainees who have not been convicted of a crime not be punished. Id. at 537. The central question in determining whether conditions of confinement “amount to punishment” is whether the conditions were “imposed for the purpose of punishment”:
Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it.
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Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment. Conversely, if a restriction or condition is not reasonably related to a legitimate goal -- if it is arbitrary or purposeless -- a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
Id. at 538-39 (internal citations and quotations marks omitted). It may also be possible to infer,
from statements and conduct of the defendants, that the conditions were imposed for the purpose
of punishment. See, e.g., Mahase v. City of New York, No. 96 CV 6105, 2000 WL 263742 at *6
(E.D.N.Y. Jan. 5, 2000) (hostility and accusation that plaintiff was “playing the big shot” by
requesting more sanitary facilities were allegations sufficient to permit inference of intent to
punish).
b. Whether Plaintiffs Have Stated a Claim
1. MDC Plaintiffs
The plaintiffs who were detained at the MDC allege that they were: (1)
repeatedly strip searched; (2) repeatedly placed in handcuffs, chains, and shackles; (3) deprived
of hygienic implements, such as soap and toilet paper; (4) deprived of nutritious food; (5)
subjected to extremely cold temperatures; (6) confined in cells that were illuminated 24 hours per day; and (7) subjected to both verbal and physical abuse.32
Defendants contend that the conditions of confinement alleged by plaintiffs were
not imposed for the purposes of punishment or for interfering with the plaintiffs’ religious

32

Each individual plaintiff does not allege that he was subjected to each of these conditions or

restrictions. However, as explained further below, on these facts, I conclude that any one of these allegations, taken

by itself, may have been imposed for the purpose of punishment and may be sufficient to state a claim for

punishment without due process of law. See Bell, 441 U.S. at 535-38.

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practices and therefore did not violate due process. They argue that plaintiffs’ conditions of confinement, specifically handcuffing, shackling, and strip searches, were reasonably related to the defendants’ interests in maintaining jail security. Def. Br. at 55. In addressing plaintiffs’ various challenges to the conditions of their cells, defendants argue that these allegations are too generalized to state a claim.
Whether a due process violation exists “must be considered in light of the particular circumstances of each case and the particular facility in question.” Lareau v. Manson, 651 F.2d 96, 103 (2d Cir. 1981) (prison violated due process rights of pretrial detainees by confining them in overcrowded conditions). “[T]he duration of confinement should be taken into account in judging the constitutionality of certain conditions.” Id. (finding that double-bunked cells and overloaded dayrooms violate the Fourteenth Amendment when they are imposed for more than a 15-day period). Accordingly, in reviewing plaintiffs’ claims, I am mindful of the fact that plaintiffs were not accused of any crime and were detained for significant periods of time, up to almost seven months.
Plaintiffs’ allegations permit the inference that the conditions imposed upon them constituted punishment. First, and most significantly, the allegations of verbal and physical abuse alone permit the inference of an intent to punish. Indeed, assuming plaintiffs’ allegations to be true, several MDC defendants expressly communicated their intent to punish plaintiffs. Second, these conditions, such as the strip searches and restraints, seem excessive and arbitrary in light of the fact that plaintiffs were not accused of committing any violent crimes. See Bell, 441 U.S. at 539 n.20 (“[L]oading a detainee with chains and shackles and throwing him in a dungeon may ensure his presence at trial and preserve the security of the institution. But it would be difficult to conceive of a situation where conditions so harsh, employed to achieve
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objectives that could be accomplished in so many alternative and less harsh methods, would not support a conclusion that the purpose for which they were imposed was to punish.”); Roundtree v. City of New York, 778 F. Supp. 614, 623 (E.D.N.Y. 1991) (“[I]it is not difficult to conclude that denial of access to a lavatory or to a telephone after arrest, as well as providing food poorly suited for human consumption, might well be arbitrary or purposeless and a restriction or condition not reasonably related to a legitimate governmental goal such that, accordingly, an intent to punish may be inferred.”) (internal quotation marks and citations omitted).
Based on the allegations in the complaint, I cannot conclude that plaintiffs could prove no set of facts that would entitle them to relief. To the contrary, given the allegations of verbal and physical abuse, and the restraints and conditions imposed upon these detainees, it is not difficult to conclude that various conditions of their confinement were imposed for the purpose of punishment and violated their due process rights. See Wright v. McMann, 387 F.2d 519, 526 (2d Cir. 1967) (Eighth Amendment violation occurred where a prisoner was denuded and exposed to bitter cold in solitary confinement cell for substantial period of time and was deprived of soap and toilet paper); Mahase, 2000 WL 263742 at *6 (allegations of unsanitary facilities in central booking, denial of toilet paper after having informed guards of menstrual bleeding, insufficient food, denial of contact with family or attorney, and punitive intent sufficient to defeat motion to dismiss); Keenan v. Hall, 83 F.3d 1083, 1090-91 (9th Cir. 1996) (plaintiff stated Eighth Amendment violation where his cell was constantly illuminated and he had no way of telling day from night); see also Shain v. Ellison, 273 F.3d 56, 63 (2d Cir. 2001) (policy subjecting persons charged with misdemeanors to a strip search without individualized reasonable suspicion unconstitutional); cf. Bowman v. City of Middleton, 91 F. Supp. 2d 644, 665 (S.D.N.Y. 2000) (no due process violation where there was no evidence of punitive intent, and
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order that arrestee be cuffed and shackled when outside his cell was based on specific determination that arrestee was a threat in light of note he had sent to county jail superintendent).
2. Passaic Plaintiffs The plaintiffs who were detained at Passaic Jail (Turkmen and Sachdeva) allege that they were (1) housed in the general prison population with individuals who were charged with or convicted of violent crimes (2) under severely overcrowded conditions and (3) threatened by guards with menacing dogs. The plaintiffs have pointed to no binding authority that assigning pretrial or immigration detainees to the general population of a jail violates the Due Process Clause (indeed, this claim is somewhat ironic in light of the MDC plaintiffs’ claims that it violated due process for them to be housed separately). That allegation does not state a due process violation. With respect to overcrowding, the Second Circuit held in Lareau that despite the Supreme Court’s admonition that “there is no ‘one man, one cell’ principle lurking in the Due Process Clause,” Bell, 441 U.S. at 542, housing pretrial detainees in overcrowded conditions can still amount to punishment and thus violate the Constitution. “The question is one of degree and must be considered in light of the particular circumstances of each case and the particular facility in question.” Lareau, 651 F.2d at 103. Similarly, whether the alleged threats involving “menacing dogs” were so outrageous as to shock the conscience depends on all the circumstances. For example, if a guard threatened to do serious harm to a detainee using a dog, or actually used a dog to place a detainee in fear of being mauled, that could well violate due process. On the other hand, if a guard merely performed his normal duties accompanied by a mean-looking dog in order to deter prisoners from challenging her authority, that would not violate due process. The plaintiffs’ allegations do not specify precisely how the “menacing
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dogs” were used.33 There is no requirement that they do so. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14 (2002). At this stage of the case, it suffices to say that defendants have not established that there is no set of facts supporting those allegations on which plaintiffs would be entitled to relief. In short, these fact-bound due process issues cannot properly be decided on a motion to dismiss.
c. Qualified Immunity With respect to defendants’ claim that they are entitled to qualified immunity, it is clearly established that conditions of confinement may not be imposed for the purpose of punishment. Bell, 441 U.S. at 538; Curry v. Kerik, 163 F. Supp. 2d 232, 236 (S.D.N.Y. 2001) (“A practice or policy constitutes punishment when there is a showing of expressed intent to punish on the part of detention facility officials, when there is no legitimate non-punitive government purpose to which the restriction or condition may rationally be connected, or when the restriction is excessive in light of that alternative purpose.”). If the plaintiffs’ allegations are proven, then clearly established law was violated, and no reasonable officer could conclude otherwise. Accordingly, because the defendants’ claims of qualified immunity are inextricably bound up in the disputed facts relating to the conditions of confinement, I cannot conclude at this stage that defendants are entitled as a matter of law to qualified immunity on these claims. See Shain, 273 F.3d at 66.
d. Personal Involvement The moving defendants argue that plaintiffs’ claims of unconstitutional conditions of confinement must be dismissed because plaintiffs fail to allege their personal involvement.

33

Paragraph 268 of the TAC alleges that Turkmen was “threatened by guards with menacing dogs”;

paragraph 282 alleges that Sachdeva “was also threatened by menacing dogs.”

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It is true that in order to establish a Bivens claim, plaintiffs must allege facts showing that the defendant was personally involved in the alleged constitutional violation. Ford v. Moore, 237 F.3d 156, 161 (2d Cir. 2001). “Direct participation, however, is not necessary.” Morris v. Eversley, 205 F. Supp. 2d 234, 241 (S.D.N.Y. 2002). Plaintiffs can state a claim for personal involvement by alleging that the defendants at issue: (1) participated directly in the alleged violation; (2) after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) created a policy or custom, or allowed the continuance of such a policy or custom, under which unconstitutional practices occurred; (4) were grossly negligent in supervising subordinates who committed the unlawful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Although ordinarily the bare assertion that high-level executive officials were responsible for an unconstitutional policy, without more, is insufficient to state a Bivens claim, see Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir. 1989), for the reasons I stated in Elmaghraby v. Ashcroft, I conclude that the MDC plaintiffs have alleged, principally through incorporation of the OIG Report, “sufficient facts to warrant discovery as to the defendants’ involvement, if any, in [the] polic[ies] that subjected plaintiffs to lengthy detention in highly restrictive conditions while being deprived of any process for challenging that detention.” 2005 WL 2375202 at *20 & n.20 (“The April 2003 OIG report ... suggests the involvement of Ashcroft, the FBI Defendants, and the BOP Defendants in creating or implementing a policy under which plaintiffs were confined in restrictive conditions until cleared by the FBI from involvement in terrorist activities.”). See Richardson v. Goord, 347 F.3d 431,
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435 (2d Cir. 2003) (supervisory liability under Bivens may be shown by “creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue,” or by the “failure to act on information indicating that unconstitutional acts were occurring.”). See also TAC ¶ 76 (quoting Ashcroft as saying “Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you”; and “Let the terrorists among us be warned. If you overstay your visa even by one day, we will arrest you. If you violated a local law we will ... work to make sure that you are put in jail and ... kept in custody as long as possible.”). The plaintiffs have argued that the Washington-based defendants created a policy “that the time served by those rounded-up would be ‘hard-time’ and that their Muslim faith would not be respected while in custody.” Plaintiffs’ Br. in Opp. to Mtn. to Dismiss Sec. Amend. Cmplt. 44. Alternatively, the plaintiffs have argued that “[t]he widespread and patterned nature of the pleaded violations are themselves evidence of constructive notice” to high-ranking officials. Id. at 46. It is too early to tell whether the plaintiffs will be able to prove such allegations, but it is also too early to fairly conclude that they should not be permitted the opportunity to do so.
In sharp contrast to the MDC plaintiffs, however, the Passaic plaintiffs make no allegation that they were singled out for harsh treatment as post-September 11 detainees; indeed, they specifically allege that they were lumped in with the general population. The other inmates at Passaic were thus subject to the same overcrowded conditions and, from all the complaint reveals, the same menacing dogs. The plaintiffs’ theory of personal involvement, then -- that the Washington-based defendants were the “principal architect[s],” Pl. Br. at 18, of the investigation into the September 11 attacks, including directing the harsh conditions under which detainees were to be held -- does not extend to the Passaic jail, where, according to the complaint, post-
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September 11 detainees were treated like the rest of the inmates. Whatever injury the plaintiffs suffered at Passaic from dogs or overcrowding,34 they have not alleged that such injury was in

any way because of a policy initiated in response to the September 11 attacks. Accordingly, the

Passaic plaintiffs having failed to sue any official who actually worked at the Passaic Jail, claim

3 is dismissed as to plaintiffs Turkmen and Sachdeva.

6. Interference With Religious Practices (Claim 7)

The plaintiffs allege the defendants deliberately interfered with their religious

practices in violation of the Free Exercise Clause. Specifically, plaintiffs allege they were (1)

denied copies of the Koran; (2) denied Halal food; (3) refused information regarding the date or

time of day so that they were unable to say the appropriate prayers; and (4) constantly interrupted

during daily prayers. The defendants appear to concede that these allegations state a claim for

violation of clearly established law under the Free Exercise Clause, see, e.g., Benjamin v.

Coughlin, 905 F.2d 571, 574-75 (2d Cir. 1990), but argue that the “context of those allegations

makes clear that the alleged perpetrators were prison guards and staff members,” not the moving

defendants. For the reasons just explained above, however, it cannot be said, without first

permitting some discovery into the matter, that the plaintiffs can prove no set of facts that will

entitle them to relief against the moving defendants on this claim. The plaintiffs have alleged

that high-level officials had knowledge or reasonably should have known that the religious rights

of Muslim detainees were being intentionally violated, and that those officials were complicit in

such treatment. If proved, then the plaintiffs are entitled to recover on claim 7. See Richardson,

347 F.3d at 435. The defendants motion to dismiss claim 7 is therefore denied.

7. Procedural Due Process in Assignment to the ADMAX SHU (Claim 20)

34

Claim 7, on the other hand, can fairly be construed to allege that the Passaic plaintiffs were singled

out for mistreatment -- intentional interference with their Muslim faith -- as a result of their status as post-September

11 detainees.

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Claim 20 alleges that the defendants violated the plaintiffs’ rights to procedural due process by assigning them to the ADMAX SHU “without ... process of any sort” and without affording them any means to challenge their continued detention there. TAC ¶ 391. The Second Circuit clearly established in Tellier v. Fields, 280 F.3d 69, 80-81 (2d Cir. 2000), that assignment to the SHU at the MDC affected a protectable liberty interest created by BOP regulations, see 28 C.F.R. § 514.22. Taking as true the plaintiffs’ allegation that they received no process at all before being assigned to the SHU (and kept there), they have stated a claim. Further, as I explained in Elmaghraby, the context of the September 11 investigation does not, as the defendants argue, “extinguish any rights otherwise conferred by [28 C.F.R.] § 541.22.” 2005 WL 2375202 at *18. The argument that “constitutional and statutory rights must be suspended during times of crisis ... is supported neither by statute nor the Constitution.” Id., citing Hamdi v. Rumsfeld, 542 U.S. 507, 532 (“It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”). I conclude that the plaintiffs have sufficiently alleged the defendants’ personal involvement in this claim, and therefore the motion to dismiss claim 20 is denied. See id. at *20 & n.20.
8. The Length of Detention Claims Plaintiffs allege that their detention for “months longer than necessary to secure their removal from the United States,” without either a probable cause hearing or “any legitimate immigration law purpose,” violated their Fourth Amendment right to be free from unreasonable seizures and their Fifth Amendment right not to be deprived of their liberty without due process of law. TAC ¶¶ 289, 294. These claims are essentially predicated upon plaintiffs’ allegation that
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they were ready to be removed immediately and that the Attorney General had a duty of reasonable dispatch to remove them as early as practicable.
As noted earlier, once an alien is ordered removed, the government is required to detain him until removal is effected, at least for the first 90 days. 8 U.S.C. § 1231(a)(2). If the government fails to secure removal during that time, then the alien may be further detained:
An alien ordered removed [1] who is inadmissible ... [or] [2] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period .... Zadvydas, 533 U.S. at 682 (citing 8 U.S.C. § 1231(a)(6) (alterations in original)). Pursuant to INS regulations, the INS District Director or Director of the Detention and Removal Field Office conducts a review of the alien’s record (“custody review”) prior to the expiration of the 90-day removal period to determine whether post-removal-period detention is warranted. 8 C.F.R. §§ 241.4 (c)(1), (h), (k)(1)(i). Factors considered in making this determination include the detainee’s criminal conduct, mental fitness, ties to the United States, prior immigration violations and history, and the likelihood that the alien is a significant flight risk or a potential danger to the community. 8 C.F.R. § 241.4(f). In the event that the alien is further detained, the regulations require additional periodic custody reviews. 8 C.F.R. §§ 241.4(k)(1)(ii), (2). Notice of the review is provided to the alien so that he may submit information in support of his release. 8 C.F.R. § 241.4(h)(2). The Fifth Amendment prohibits the government from “depriv[ing]” any person of “liberty ... without due process of law.” Plaintiffs argue that their detention violated “substantive due process,” which “prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” United States v.
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Salerno, 481 U.S. 739, 746 (1987) (internal quotation marks and citations omitted). This prohibition applies to citizens and non-citizens, “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693 (citing Plyler v. Doe, 457 U.S. 202, 210 (1982)).
In Zadvydas, two aliens who had been ordered removed claimed that the length of their post-removal-period detention violated their due process rights. The government had been unable to remove the aliens, both of whom had been convicted of crimes while in the United States, because no country was willing to accept them. In response to the plaintiffs’ claims, the government argued that 8 U.S.C. § 1231(a)(6) authorizes indefinite post-removal-period detention. After concluding that such a reading would render the statute unconstitutional in some applications under the Due Process Clause, the Supreme Court held that “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” Zadvydas, 533 U.S. at 699.
The Court in Zadvydas acknowledged the potentially difficult task lower courts face in determining whether a removal is reasonably foreseeable, particularly when they must give appropriate “decisionmaking leeway” to the executive branch based on its particular expertise in this area and the administrative difficulties associated with immigration law enforcement. Id. at 700. In order to limit the number of cases in which courts would have to make these “difficult judgments,” the Court recognized a presumptively reasonable period of detention. As the Second Circuit has since explained:
The Court stated that detention is presumptively reasonable for six months following a final removal order, and that, after the first six months, detention violates [the statute] if (1) an alien demonstrates that there is no significant likelihood of removal in the reasonably foreseeable future and (2) the government is unable to rebut this showing.
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Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (citing Zadvydas, 533 U.S. at 701). Accordingly, detention beyond the six-month period is not per se unreasonable. Further detention is permissible “until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701.
Applying Zadvydas, the Second Circuit held in Wang that the “reasonable foreseeability” test not only defines when immigration detention is a statutory violation but also “articulates the outer bounds of the Government’s ability to detain aliens (other than those serving criminal sentences) without jeopardizing their due process rights.” Wang, 320 F.3d at 146. Thus, detention of an alien when removal is no longer “reasonably foreseeable” violates both 8 C.F.R. § 241.4(i)(7) and the Due Process Clause. Wang, 320 F.3d at 146.
Plaintiffs argue that the analysis set forth in Zadvydas should be limited to the facts of that case, where removal is delayed because no country can be found to accept the aliens ordered removed. Nothing in Zadvydas suggests that it should be so narrowly construed. Indeed, there is language indicating that the Court intended Zadvydas to be applied in all cases involving aliens covered by the statute. For example, in setting forth the standard, the Court expressly relied on the fact that the statute had broad applicability, covering both convicted criminals and ordinary visa violators, such as plaintiffs in this case. Zadvydas, 533 U.S. at 697. The dissent acknowledged the decision’s application to all categories of aliens covered by the statute when it attacked the decision on the ground that it would produce skewed results, making it easier for the government to detain ordinary visa violators than convicted criminals. Id. at 716 (Kennedy, J., dissenting) (“aliens who violate mere tourist visa requirements can in the typical case be held pending deportation on grounds that a minor offender is more likely to be removed”). I am mindful that “Cassandra-like predictions in dissent are not a sure guide to the
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breadth of the majority’s ruling.” United States v. Travers, 514 F.2d 1171, 1174 (2d Cir. 1974). Justice Kennedy’s complaint in Zadvydas, however, was not that aliens like the plaintiffs here could be lawfully detained for at least six months, but that violent aliens might not be detained for even longer periods. In any event, the Second Circuit has rejected the plaintiffs’ reading of Zadvydas, applying its reasonable foreseeability test where there was no allegation that the government was likely to have difficulty securing another nation’s acceptance of the alien. See Wang, 320 F.3d at 146.
Under Zadvydas, aliens’ due process rights are “not jeopardized by [their] continued detention as long as [their] removal remains reasonably foreseeable.” Id. Four out of the seven plaintiffs in this case, Turkmen, Saffi, Jaffri, and Sachdeva, were removed within six months of their final removal or voluntary departure orders, and therefore their detention was presumptively reasonable under Zadvydas.35 While three plaintiffs in this case, Yasser, Hany and Baloch, were detained beyond the six-month period, the complaint does not allege that during the period of their detention there was no significant likelihood of removal in the reasonably foreseeable future.36 See Zadvydas, 533 U.S. at 701; see, e.g., Wang, 320 F.3d at 146 (holding that petitioner’s due process rights were not violated because his removal was reasonably foreseeable).
What the complaint does allege is that the plaintiffs were detained “longer than necessary” to effectuate their removal and that the government intentionally delayed their

35

Turkmen was detained for three months and 25 days from the date he accepted a voluntary

departure order. Saffi was detained for four months and 18 days after he was ordered removed. Jaffri was detained

three months and 12 days after he was ordered removed. Sachdeva was detained for three months and 17 days after

he was ordered removed.

36

Yasser was detained for six months and 16 days after he was ordered removed. Hany was

detained six months and nine days after he was ordered removed. Baloch was detained for six months and 27 days

after he was ordered removed.

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removal for reasons unrelated to any legitimate immigration purpose. However, such allegations do not state a due process claim, and plaintiffs have failed to cite any case law indicating otherwise. The recognition of such a claim would flood the courts with habeas petitions brought by aliens seeking to be removed as soon as they deemed it practicable (possibly only a matter of weeks after a removal order has issued, according to plaintiffs). Such claims would significantly encroach on the executive branch in a realm where it has particular expertise, since it would require courts to decide what is necessary to effectuate an alien’s removal and whether the government’s efforts to secure removal have been sufficient. Such extraordinary judicial oversight would be entirely at odds with the Court’s reasoning in Zadvydas, which demonstrated significant deference to the executive in recognizing the presumptively reasonable six-month period. See Zadvydas, 533 U.S. at 700-01.
Further, the plaintiffs’ claims assume that all that is required for the Attorney General to secure removal is a deportation order and an airplane. This assumption ignores legitimate foreign policy considerations and significant administrative burdens involved in enforcing immigration law in general, and, specifically, those concerns immediately following a terrorist attack perpetrated on the United States by noncitizens, some of whom had violated the terms of their visas at the time of the attack. See, e.g., 8 U.S.C. § 1231 (b)(2)(C)(4) (Attorney General may disregard the alien’s designation of the country to which he would like to be removed if he decides that removing the alien to that country is prejudicial to the United States); see also Susan Sachs, Threats and Responses: Security, N.Y. Times, Sept. 9, 2002, at A16 (“[s]ome of the 19 hijackers in last year’s terror attacks had violated the terms of or overstayed visas”).
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With respect to plaintiffs’ allegations that they were detained in the absence of individualized determinations in a procedurally fair process that they posed a risk of flight or a danger to the community, these allegations also do not establish a due process violation. In Wang, a habeas petitioner argued that his continued post-removal period detention without a bail hearing violated his substantive due process rights. Wang, 320 F.3d at 146. The Second Circuit squarely rejected this argument and, relying on Zadvydas, held that Wang’s due process rights were not in jeopardy as long as his removal remained reasonably foreseeable.37 Id. (“Wang asks us to hold that his continued detention without a bail hearing violates his substantive due process rights. But, pursuant to Zadvydas, Wang’s due process rights are not jeopardized by his continued detention as long as his removal remains reasonably foreseeable.”).
In any event, even if plaintiffs’ allegations stated a due process violation, the defendants would be entitled to qualified immunity. It can hardly be said, in light of the authorities discussed above, that the plaintiffs had a clearly established due process right to immediate or prompt removal at the time they were held in detention.
In addition to claiming that the length of their detention violated their due process rights, plaintiffs claim that the reason for their detention violated their Fourth Amendment right to be free from unreasonable seizures. I note at the outset that there is significant authority rejecting plaintiffs’ assertion that the Fourth Amendment applies to post-arrest detention. See, e.g., Riley v. Dorton, 115 F.3d 1159, 1162-64 (4th Cir. 1997) (en banc) (rejecting “continuing seizure” theory under the Fourth Amendment); Valencia v. Wiggins, 981 F.2d 1440, 1444 (5th Cir. 1993) (“As the Fourth Amendment protects against unreasonable ‘seizures,’ it seems

37

There is no allegation that the INS failed to provide plaintiffs with custody reviews pursuant to the

procedures set forth in 8 C.F.R. § 241.4. Nothing in Zadvydas or Wang suggests that aliens subject to removal

orders require any individualized determination beyond the administrative custody review proceedings, where the

alien bears the burden of proving that he is not dangerous or a risk of flight. See Zadvydas, 533 U.S. at 692 (citing 8

C.F.R. § 241.4(d)(1)).

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primarily directed at the initial act of restraining an individual’s liberty”) (emphasis in original). Plaintiffs themselves concede that the Supreme Court has “left open” the question whether the Fourth Amendment applies to post-arrest detention, and they cite no Second Circuit precedent resolving this issue in their favor. Therefore, at the very least, the Fourth Amendment’s application in this context is not clearly established, and, thus, defendants are entitled to qualified immunity.
Even assuming, however, that the Fourth Amendment applies to post-arrest detention, I conclude that plaintiffs fail to state a Fourth Amendment claim. Plaintiffs allege that they were held for criminal investigation without probable cause. This claim is entirely dependent upon plaintiffs’ contention that their detention was not otherwise authorized. Although plaintiffs concede that they were lawfully arrested for violating the terms of their admission to the United States, they argue that at some point (apparently a short time after they were ordered removed), the government could have effectuated their removal. And after that, plaintiffs argue, their continued detention no longer served any legitimate immigration law purpose. Since the “real” reason for their continued detention was to investigate suspicions that they were involved in terrorist activity, plaintiffs claim that the Fourth Amendment was violated because there was no probable cause.
As explained above, plaintiffs’ entire detention was authorized by the postremoval period detention statute. That the government may have been motivated by a desire to keep terrorism suspects in jail pending further investigation does not alter the legality of the detention. It is well-established that the government’s “[s]ubjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional.” Whren v. United States, 517 U.S. 806, 813 (1996) (internal quotation marks omitted). Accordingly, even accepting as true
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plaintiffs’ allegations regarding defendants’ motives, the detention of plaintiffs was authorized pursuant to the post-removal detention statute and thus did not violate the Fourth Amendment.
9. Equal Protection Claim (Claim 5) Plaintiffs assert that defendants violated their equal protection rights by selecting them based on their race, religion and/or national origin for (1) detention beyond the period necessary to secure their and removal and (2) harsh treatment. With respect to harsh treatment, the motion to dismiss is denied for the reasons stated in Elmaghraby v. Ashcroft, 2005 WL 2375202 at *29 (“[P]laintiffs allege that they were confined under significantly harsher conditions than other pretrial detainees because of their race and religion, and not because of any evidence that they were involved in terrorist activity. I cannot conclude as a matter of law that there is no set of facts consistent with plaintiffs’ allegations that could entitle them to relief.”). I am not persuaded that the government’s plenary authority in the immigration context provides any basis for affording the defendants extraordinary deference regarding the plaintiffs’ conditions of confinement, and I therefore see no reason to distinguish this aspect of the plaintiffs’ equal protection claim from the similar claim of the Elmaghraby plaintiffs. With respect to the length of the plaintiffs’ detention, however, as I have explained above, the government was authorized under the immigration laws to detain the plaintiffs for as long as it did. In light of that conclusion, the plaintiffs’ remaining equal protection claim is that they were selected from among other visa violators for especially (but not illegally) lengthy detention based upon impermissible motivations. That is closely akin to a selective enforcement claim, which, in the immigration context, is generally not cognizable. In Reno v. American-Arab Anti-Discrimination Committee, the Supreme Court explained as follows:
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What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, but often the disclosure of foreign-policy objectives and (as in this case) foreign-intelligence products and techniques. The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat -- or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals -- and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. 525 U.S. 471, 490-91 (1999). In establishing that “general rule” the Court did not “rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.” Id. at 491. Although “outrageous” is not a selfdefining term, a few things the Court did not consider to be outrageous are apparent: “deeming nationals of a particular country a special threat ... [and] antagoniz[ing] a particular foreign country by focusing [enforcement efforts] on that country’s nationals.” Id. There is thus nothing outrageous about the plaintiffs’ claim of national-origin discrimination in this context; the executive is free to single out “nationals of a particular country” and “focus[]” enforcement efforts on them. Id. This is, of course, an extraordinarily rough and overbroad sort of distinction of which, if applied to citizens, our courts would be highly suspicious. Yet the Supreme Court has repeatedly held that the political branches, “[i]n the exercise of [their] broad power over naturalization and immigration ... regularly make[] rules that would be unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976); compare, e.g,, Fiallo v. Bell, 430 U.S. 787 (1977) (upholding law denying illegitimate child fathered by American citizen the immigration privilege afforded to a legitimate child), with Moore v. City of East Cleveland, 431 U.S. 494 (1977) (striking down housing ordinance limiting occupancy of a dwelling to a single family and defining a single family to preclude grandmother from having grandson live with her). Indeed, “any policy toward aliens is vitally and intricately
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interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952). “Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.” Id. at 589.
Similarly, I do not believe the plaintiffs’ claims of selective enforcement on the basis of their race and religion provide any cause to depart from the general rule laid out in AADC. In the investigation into the September 11 attacks, the government learned that the attacks had been carried out at the direction of Osama bin Laden, leader of al Queda, a fundamentalist Islamist group; some of the hijackers were in violation of the terms of their visas at the time of the attacks. In the immediate aftermath of these events, when the government had only the barest of information about the hijackers to aid its efforts to prevent further terrorist attacks, it determined to subject to greater scrutiny aliens who shared characteristics with the hijackers, such as violating their visas and national origin and/or religion. Investigating these aliens’ backgrounds prolonged their detention, delaying the date when they would be removed.
As a tool fashioned by the executive branch to ferret out information to prevent additional terrorist attacks, this approach may have been crude, but it was not so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise. See AADC, 525 U.S. at 490-91; Matthews, 426 U.S. at 81-82 (“The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.”); see also Zadvydas, 533 U.S. at 696 (stating that “terrorism” might warrant “special arguments” for “heightened deference to the judgments of the political branches with respect to matters of
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national security”). I note, however, that the extraordinary circumstances of September 11 are by no means a prerequisite to the deference owed the political branches in this area. See Fiallo, 430 U.S. at 796 (rejecting attempt to cabin “prior immigration cases as involving foreign policy matters and congressional choices to exclude or expel groups of aliens that were ... perceived to pose a grave threat to the national security”). Such national emergencies are not cause to relax the rights guaranteed in our Constitution. Yet regarding immigration matters such as this, the Constitution assigns to the political branches all but the most minimal authority in making the delicate balancing judgments that attend all difficult constitutional questions; “nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [courts] to equate [their] political judgment with that of” the executive or the Congress. Harisiades, 342 U.S. at 590.
In any event, if an equal protection violation did occur, it certainly was not clearly established in light of the above precedent, and therefore the defendants are entitled to qualified immunity. To the extent claim 5 is based on the length of the plaintiffs’ detention, it is dismissed.
10. Confiscation of Personal Property Claim (Claim 8) Plaintiffs allege that defendants adopted, promulgated, and implemented a policy of depriving them of property without due process of law. TAC ¶¶ 322-26. Specifically, plaintiffs allege that personal items, including personal identification and cash, were confiscated when they were taken into custody and that many of these items have not been returned to them. Relying on Hudson v. Palmer, 468 U.S. 517 (1984), defendants argue that this claim is not actionable under Bivens because the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b),
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provides an adequate postdeprivation remedy.38 In Hudson, the Supreme Court held “that an
unauthorized intentional deprivation of property by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause of the Fourteenth
Amendment if a meaningful postdeprivation remedy for the loss is available.” 468 U.S. at 533.
As the Second Circuit has explained:
When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on established state procedures and (b) claims based on random, unauthorized acts by state employees. In the latter case, the Due Process Clause of the Fourteenth Amendment is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful postdeprivation remedy. When the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of postdeprivation procedures will not, ipso facto, satisfy due process.
Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d Cir.
1996) (citing Palmer, 468 U.S. at 531-33; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36
(1982); Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986)). Accordingly, an adequate postdeprivation remedy is only a
defense to a due process claim where the deprivation is “random and unauthorized.” Alexandre
v. Cortes, 140 F.3d 406, 411 (2d Cir. 1998) (quoting Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990)).39 The rationale for distinguishing between random (and unauthorized) deprivations and

38

The FTCA gives federal district courts “exclusive jurisdiction of civil actions on claims against

the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee of the government ....” Under the FTCA, the United States is

vicariously liable for the acts of its employees “in the same manner and to the same extent as a private” employer

under state law. 28 U.S.C. § 2674. The Second Circuit has construed those provisions to authorize recovery for

conversion of property and for negligent damage to property. Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d

Cir. 1999).

38

Although the Supreme Court cases articulating and applying this doctrine address violations of

Fourteenth Amendment due process, federal courts have also applied it in the context of a Fifth Amendment due

process claim. See, e.g., Rodriguez-Mora v. Baker, 792 F.2d 1524, 1526 (11th Cir. 1986); Del Raine v. Williford, 32

F.3d 1024, 1046 (7th Cir. 1994) (citing Orebaugh v. Caspari, 910 F.2d 526 (8th Cir. 1990)).

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those resulting from established policy is that, in the former instance, the government “cannot predict when the loss will occur .... [Therefore] it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Palmer, 468 U.S. at 532 (internal quotation marks and citations omitted).
Plaintiffs allege that they were deprived of their property pursuant to an established policy or practice, and thus their claims are not within the scope of Hudson v. Palmer. In support of that claim, they allege that defendants refused the requests of Saffi, Jaffri, Baloch, and Sachdeva that their identification documents be returned prior to their removal. As of the filing of the TAC, only Sachdeva’s had been returned, despite the others’ repeated requests. The plaintiffs argue that the defendants had a motive to create such a policy, in that “[d]eprivations of identity documents might facilitate the continuing investigation, and limit Plaintiffs’ mobility in their home countries.” Pl. Br. 77. These allegations of a pattern are sufficient to withstand the defendants’ motion. If, after the plaintiffs are given the opportunity to take discovery, they can adduce evidence to support their allegations, then the existence of a postdeprivation remedy will not constitute a defense to their claim.40
Despite the defendants’ assertion of qualified immunity from liability on this claim, they do not (and could not) argue that it was not clearly established that the alleged conduct constituted a constitutional violation. Rather, in essence, they argue that the purpose of the doctrine of qualified immunity would be undermined by allowing such unsupported claims to stand. But support for such allegations is not the issue on a motion to dismiss. And deficiency

40

Defendants argue that plaintiffs have not alleged the uniform confiscation of property that might

be indicative of a controlling policy or practice. I disagree. While it is true that the specific factual allegations of a

policy or practice involve only four of the seven named plaintiffs, they sufficiently allege an established government

procedure. Moreover, the defendants seek a blanket dismissal of this claim, not just a dismissal as to the plaintiffs

who do not specifically allege the deprivation. Accordingly, I do not address this claim with respect to each

individual plaintiff.

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on that score will be addressed after discovery, as will defendants’ claim that it was objectively reasonable for them to believe their acts did not violate plaintiffs’ rights. The facts are not sufficiently developed at this time for me to conclude as a matter of law that there is no set of facts on which plaintiffs will be entitled to relief.
11. Delay in Serving Charging Documents Claim (Claim 17) Ebrahim, Ibrahim, Sachdeva, and Jaffri claim that defendants delayed the issuance and service of Notices to Appear, impairing the plaintiffs’ ability to know the charges on which they were being held, to obtain legal counsel, and to seek release on bond, thereby violating their Fifth Amendment due process rights.41 A Notice to Appear informs an alien of the nature of the proceedings and the charges against him. 8 U.S.C. § 1229. At the time an alien is served with the document, he must also receive a current list of legal counsel who are available to represent aliens on a pro bono basis. Id. Plaintiffs allege that plaintiffs Ebrahim and Ibrahim were not served with Notices to Appear until sixteen days after their respective arrests; plaintiff Sachdeva was not served until seven days after his arrest; and plaintiff Jaffri was not served until five days after his arrest.42 Defendants argue that plaintiffs have failed to state a claim and, in any event, that defendants’ alleged conduct did not violate clearly established law, and therefore they are entitled to qualified immunity. I conclude that the plaintiffs have failed to state a claim. They have cited no statutory or other legal authority prescribing when, after an alien has been arrested without a warrant, he must be served with a Notice to Appear. The regulations provide that “a determination will be made within 48 hours of the arrest, except in the event of an emergency or

41

While this claim is not asserted by all named plaintiffs, it is brought on behalf of the class.

42

Although it may be that other members of the putative class were detained longer before being

served with a Notice to Appear, no class has been certified. Therefore, in order for plaintiffs’ complaint to survive

this motion to dismiss, the allegations of the named plaintiffs must state a claim for relief.

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other extraordinary circumstance in which case a determination will be made within an additional reasonable period of time ... whether a notice to appear ... will be issued.” 8 C.F.R. § 287.3(d) (emphasis added). I have little trouble concluding that the events of September 11, 2001 qualify as extraordinary circumstances and, in light of those events, the several days it took plaintiffs to be served with Notices to Appear was a reasonable period of time.
Although plaintiffs are correct in their assertion that the defendants’ compliance with 8 C.F.R. § 287.3(d) does not necessarily render their conduct consistent with the Constitution, they fail to cite any controlling authority in support of their claim that a delay of as little as five days in serving an INS charging document constitutes a substantive due process violation. Urging me to look to the criminal context, plaintiffs rely on County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), which addresses the length of permissible delay between a warrantless arrest and an appearance before a judicial officer for a probable cause determination. The Supreme Court held that, absent a showing by the government of “the existence of a bona fide emergency or other extraordinary circumstance,” id. at 57, a probable cause determination must be provided within 48 hours, and sooner if the determination was delayed unreasonably, such as for the purpose of gathering additional evidence to support the arrest. Id. at 56. Plaintiffs argue that County of Riverside supports their argument that they have stated a claim for both Fourth and Fifth Amendment violations, though their claim as pleaded is only for a violation of their due process rights. I disagree.
First, I am not persuaded that the same rule that applies in the context of a warrantless arrest should apply here, and plaintiffs cite no authority suggesting that it does. As stated earlier in addressing plaintiffs’ length of detention claims, the protections of the Due Process Clause extend to aliens. Zadvydas, 533 U.S. at 693 (citing Plyler v. Doe, 457 U.S. at
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210). There is no doubt that at some point after arrest, an alien’s due process rights would be

violated if he were detained without being served a Notice to Appear. But I do not believe that

this case requires me to draw that line, merely to find that it was not crossed on these facts.

Moreover, even assuming that County of Riverside controlled here, the exception it carved out for extraordinary circumstances would be applicable.43 See OIG Report at 31-34 (delays in

serving Notices to Appear caused directly or indirectly by the September 11 attacks). In any

event, the application of County of Riverside’s 48-hour rule to this context is certainly not clearly

established, and therefore defendants are entitled to qualified immunity.

In addition to claiming a substantive due process violation in connection with the

service of the notices to appear, plaintiffs bring a procedural due process claim. Determining

whether such a violation has occurred requires a balancing of the governmental and private

interests involved. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). In making this

determination, the Supreme Court has stated that three factors are to be considered:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335. Although on some sets of facts -- e.g., a length of detention prior to receiving notice

greater than 16 days, the absence of extraordinary circumstances putting a strain on

administrative resources -- the risk of an erroneous deprivation may be high, and a detained

alien’s interest in having notice of the charges against him may outweigh any government

interest, those facts are not alleged here. In any event, plaintiffs, failing to cite any controlling

43

Plaintiffs argue that the County of Riverside exception should not apply here because the

defendants delayed serving Notices to Appear in order to investigate plaintiffs for ties to terrorist organizations.

Assuming arguendo that the delays in service of the Notices to Appear were for this purpose, I would still find that

plaintiffs had failed to state a claim for relief.

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legal precedent, do not show that it was clearly established that under these or similar circumstances, an alien’s procedural due process rights are violated if they are not served with a Notice to Appear within 16 days of their arrest and detention. Qualified immunity is thus available to the defendants as a matter of law on this claim as well.
12. “Communications Blackout” Claims (Claims 21 and 22) Plaintiffs assert two claims relating to the alleged “communications blackout”: first, that it violated their right to freedom of speech, and second, that it violated their right of access to the courts and to legal counsel.
a. Freedom of Speech Claim 21 alleges that the communications blackout violated the plaintiffs’ first amendment right to freedom of speech. Although the applicable legal standard for such claims brought by pretrial and immigration detainees is not quite clear, the Second Circuit has used, as a fallback position in the context of pretrial detainees, the standard articulated in Turner v. Safley, 482 U.S. 78 (1987), which ordinarily applies to claims of convicted prisoners. See Benjamin v. Fraser, 264 F.3d 175, 187 n.10 (2d Cir. 2001) (declining to articulate precise standard for pretrial detainees because “the policies and practices at issue here would not survive scrutiny under Turner, if in fact that standard is applicable.”). Under Turner, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89. Here, of course, penological must be taken to mean “relating to prison management” rather than “relating to punishment”; as discussed above, the government was not permitted to adopt the communications blackout for the purpose of punishing the plaintiffs. See Bell v. Wolfish, 441 U.S. at 538-39. But with that caveat, the
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Turner standard proves useful nonetheless in balancing the government’s legitimate interests against the plaintiffs’ asserted rights:
First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it .... A second factor ... is whether there are alternative means of exercising the right that remain open to prison inmates .... A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally .... Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation. Turner, 482 U.S. at 89-91 (internal citations and quotation marks omitted). The defendants argue that “concern over communications between possible terrorists and potential escape and attack plans” after September 11, 2001 justified the communications blackout as reasonable. The plaintiffs counter, however, that they have alleged (and it must be taken as true at this stage) that the defendants never had any basis to believe the plaintiffs had any connection to terrorists. Whatever the basis for suspecting the plaintiffs of terrorism may have been, it cannot be said at this stage that the defendants’ justifications require dismissal. For example, the plaintiffs allege that they were taped (video and audio) while speaking with their attorneys, and that as a result they could not speak candidly; that family members and lawyers who came to visit them at the MDC were falsely told they were not there; and that guards purposely dialed incorrect phone numbers when they tried to call their lawyers and their families. These allegations, if proved, may well constitute a violation of clearly established rights. And for the reasons I have explained above, in light of the OIG report, it is too early to tell whether the plaintiffs will be able to prove the personal involvement of the moving defendants. The motion to dismiss claim 21 is denied.
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b. Access to the Courts
The plaintiffs in claim 22 allege that the communications blackout violated their
right of access to the courts. As the defendants point out, however, the plaintiffs have not
identified a particular affirmative claim for legal redress that the communications blackout is
presently keeping them from asserting or any claim “that cannot now be tried (or tried with all
material evidence).” Christopher v. Harbury, 536 U.S. 403, 413-14 (2002). The plaintiffs argue
they need not identify any such claim because they assert a “direct” violation of the right of
access to the courts, and that an underlying claim that was prejudiced must be asserted only
where a “derivative” violation of the right of access has been alleged.
Although this direct/derivative distinction has some basis in Second Circuit case
law, see Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (holding that no additional
prejudice need be alleged other than violation of the Sixth Amendment by a criminal defendant
bringing access claim), in my view it does not survive Christopher v. Harbury, in which the
Supreme Court explained:
Whether an access claim turns on a litigating opportunity yet to be gained or an opportunity already lost, the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong. However unsettled the basis of the constitutional right of access to courts, our cases rest on the recognition that the right is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court. We indicated as much in our most recent case on denial of access, Lewis v. Casey, [518 U.S. 343, 353 (1996)], where we noted that even in forward-looking prisoner class actions to remove roadblocks to future litigation, the named plaintiff must identify a “nonfrivolous,” “arguable” underlying claim, ... and we have been given no reason to treat backward-looking access claims any differently in this respect. It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation. It follows, too, that when the access claim (like this one) looks backward, the complaint must identify a remedy that may be awarded as recompense but not otherwise available in some suit that may yet be brought. There is, after all, no point in spending time and money to establish the facts constituting denial of
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access when a plaintiff would end up just as well off after litigating a simpler case without the denial-of-access element. 536 U.S. at 414-15 (internal citations and quotation marks omitted). This reasoning leaves little doubt that the plaintiffs are required to show some underlying claim or right that was prejudiced as a result of their having been denied access to the courts. The Second Circuit’s decision (though perhaps not its terminology) in Benjamin v. Fraser, is entirely consistent with this view; Benjamin points out another type of access case, brought by one who claims not that the violation has precluded the prosecution of a case, but the defense of one. Indeed, the court explained: [H]ere we are concerned with the Sixth Amendment right of a pretrial detainee, in a case brought against him by the state, to utilize counsel in his defense. It is not clear to us what “actual injury” would even mean as applied to a pretrial detainee’s right to counsel. Lewis describes “actual injury” as a showing that a “non-frivolous legal claim had been frustrated or was being impeded” due to the action of prison officials .... The reason pretrial detainees need access to the courts and counsel is not to present claims to the courts, but to defend against the charges brought against them. Benjamin, 264 F.3d at 186. Thus, the rule of Christopher v. Harbury does not mean the plaintiffs are out of luck. As I noted above, immigration detainees have a right to counsel rooted in the Due Process Clause and the INA. See Michel v. INS, 206 F.3d 253, 258 (2d Cir. 2000) (“Under the Due Process Clause and the Immigration and Nationality Act, an alien is entitled to representation of his own choice at his own expense.”) Reading the complaint liberally, it can be construed as alleging that the communications blackout prejudiced the plaintiffs in defending the immigration proceedings against them by limiting their access to counsel, a right they enjoyed independently under the Constitution and laws of the United States. The motion to dismiss claim 22 is denied.
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C. International Law Claims (Claims 9-11) Plaintiffs seek damages personally against defendants for violations of customary
international law. Specifically, they assert claims for violations of international law prohibitions against “arbitrary detention” and “cruel, inhuman or degrading treatment” pursuant to the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, and violations of the consular notification requirement under the Vienna Convention on Consular Relations, April 24, 1963, T.I.A.S. No. 6820, 21 U.S.T. 77, Art. 36.
Defendants argue that these claims fall within the scope of the Liability Reform Act, 28 U.S.C. § 2679. The Liability Reform Act provides that for civil actions based on the wrongful conduct of federal employees acting within the scope of their employment, the only remedy is an action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, against the government itself. 28 U.S.C. § 2679(b)(1). There are two exceptions to this exclusive remedy provision. It does not apply to actions against an employee of the government “which is brought for a violation of the Constitution of the United States, or ... for a violation of a statute of the United States under which such action against an individual is otherwise authorized.” Id. at § 2679(b)(2)(A), (B). If an action does not fall within these two exceptions, the government employee defendants enjoy absolute immunity because the lawsuit may proceed only against the United States pursuant to the requirements of the FTCA. See United States v. Smith, 499 U.S. 160, 163 (1991) (“The Liability Reform Act establishes ... absolute immunity for Government employees ....”). In order to institute an action under the FTCA, a claimant is required to exhaust his administrative remedies. 28 U.S.C. § 2675; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (1994).
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Plaintiffs’ claims do not fall within the scope of either exception to the exclusive remedy provision. These claims are plainly not brought for violations of the United States Constitution. Although it is less clear, I also conclude that these claims do not allege violations of statutory law. Plaintiffs argue that their international law claims fall within this exception because they are asserted pursuant to the ATCA. The ATCA provides that “th[e] district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States ....” 28 U.S.C. § 1350. This statute is analogous to 42 U.S.C. § 1983, which creates a cause of action against state actors for violations of federal rights committed under the color of state law. Section 1983 and the ATCA do “not create substantive rights, but simply provide[ ] the procedural mechanism[s] through which a plaintiff may bring ... suit for violation[s] of ... federal right[s]” and the law of nations or a treaty of the United States. Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756 (2d Cir. 1998) (discussing 42 U.S.C. § 1983), cert. denied, 526 U.S. 1145 (1999). Accordingly, “one cannot go into court and claim ‘a violation of § 1983’” or the ATCA. Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979) (discussing § 1983 actions). Therefore, the exception provided for statutory violations is inapplicable here. See Smith, 499 U.S. at 174 (holding that there could be no violation of the Gonzalez Act because it imposed no duties or obligations, and therefore, it did not fall within any express exception under the Liability Reform Act).
Because plaintiffs’ international law claims are subject to the exclusive remedy provision of the Liability Reform Act, the United States is substituted for the individual government defendants, and therefore the international claims must proceed under the FTCA if at all. The plaintiffs’ international law claims, however, are not “cognizable” under 28 U.S.C. §
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1346(b): “[T]o be actionable under the [FTCA], a claim must allege ... that the United States would be liable to the claimant ... in accordance with the law of the place where the act or omission occurred,” and “the ‘law of the place’ means the law of the State -- the source of substantive liability under the FTCA.” F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994) (internal quotation marks omitted). Because claims 9, 10, and 11 arise instead under international law, they must be dismissed for lack of jurisdiction, as the United States has not waived its sovereign immunity with respect to these claims. D. FTCA Claims
The defendants argue that several of the plaintiffs’ FTCA claims against the United States should be dismissed.
1. False Imprisonment (Claim 24) Claim 24 alleges that by “detaining the Plaintiffs ... months longer than necessary to secure their removal or voluntary departure from the United States without probable cause to suspect them of any crime, the MDC defendants ... intentionally, without consent or privilege, completely confined [the] Plaintiffs so as to constitute false imprisonment.” TAC ¶ 415. Under New York law, in order to make out a claim of false imprisonment, a plaintiff must show that the detention was “not otherwise privileged.” Broughton v. State, 37 N.Y.2d 451, 456 (1975). For the reasons explained above in dismissing the plaintiffs’ constitutional length-of-detention claims, the plaintiffs detention was privileged under the post-removal-period detention statute, 8 U.S.C. § 1231(a)(6). Each plaintiff was properly found removable from the United States, and the BOP officials who detained the plaintiffs were acting pursuant to facially valid INS commitment papers. Murray v. Goord, 1 N.Y. 3d 29, 32 (2003) (“[P]rison officials are
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conclusively bound by the contents of commitment papers accompanying a prisoner.”). Accordingly, claim 24 is dismissed.
2. Negligent Delay in Clearing Plaintiffs (Claim 25) Claim 25 alleges that “[i]n allowing the clearance investigations to linger for months ... due to failure to timely act and follow up on leads, misplaced files, poor communication, [and] disorganization ... Defendants ... breached their duty of swift dispatch toward Plaintiffs .... [so as to] constitute negligence under the laws of [New York and New Jersey].” TAC ¶ 419. As I have explained above, however, the government had no such duty of dispatch in removing the plaintiffs within the six-month presumptively reasonable period established by Zadvydas. Under 8 U.S.C. § 1231(a)(2) & (6), the Attorney General had the authority to detain the plaintiffs as ordinary visa violators pending their removal. See Zadvydas, 533 U.S. at 691 (explaining that § 1231(a)(6), by reference to § 1227(a)(1)(C), “does not apply narrowly to a small segment of particularly dangerous individuals ... [like] suspected terrorists, but broadly to aliens ordered removed for many and various reasons, including tourist visa violations.”). I cannot ignore this objectively sufficient basis for the plaintiffs’ detention and treat the plaintiffs as if they were actually being detained on the basis of the FBI’s authority to investigate crimes. See Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional.”). The full length of the plaintiffs’ detention was thus authorized regardless of whether they were suspected of or found to be involved in terrorist activity. Apart from their detention, however, the plaintiffs offer no hint as to the source of the duty of dispatch they assert; they do not, for example, argue that law enforcement officials owe ordinary criminal suspects a duty swiftly to either charge them or clear them of wrongdoing. Accordingly, because claim 25
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fails to allege a legal duty owed to the plaintiffs, it must be dismissed. See, e.g., Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 340 (1928) (“Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.”); 28 U.S.C. § 1346(b) (government liable under FTCA only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”).
3. Conversion of Property (Claim 30) Claim 30 alleges that “in refusing to return the possessions of Plaintiffs ... Defendants intentionally deprived them completely and forever of all rights and use of those possessions so as to constitute the tort of conversion ....” TAC ¶ 442. The United States argues that because Claim 30 “arises out of the detention of goods by law enforcement officers, [it is] barred by 28 U.S.C. § 2680(c).” Def. Br. 90. That subsection provides, with certain exceptions not at issue here, that the United States retains sovereign immunity against any “claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.” 28 U.S.C. § 2680(c). The question the parties dispute is whether “any other law enforcement officer” means, as the United States contends, any law enforcement officer in the course of any kind of duty, or rather, as the plaintiffs insist, it means merely other law enforcement officers engaged in activities similar in kind to those of an officer of customs or excise. The question is not new; in fact, nearly all the courts of appeals have ruled on it, but they are quite divided. Compare Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806 (9th Cir. 2003) (reading § 2680(c) “expansively to include federal law enforcement officers beyond those
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who assess taxes or collect duties”); with Ortloff v. United States, 335 F.3d 652, 657-58 (7th Cir. 2003).
The Second Circuit expressly reserved the question “whether the exemption would apply to searches by law enforcement officers with no relationship to the customs or excise functions” in Formula One Motors, Ltd. v. United States, 777 F.2d 822, 823-24 (2d Cir. 1985). Judge Oakes, however, wrote separately to express the view that “where no nexus exists between customs activity and the act complained of, [he] would hold that § 2680(c) does not bar recovery.” Id. at 825. As the D.C. Circuit noted in Buzuaye v. United States, 83 F.3d 482, 484 (1996), “The Second ... Circuit[] ha[s] [thus] suggested -- without deciding -- that [it] would reach the same conclusion” as did the D.C. Circuit: “that the words ‘any other law-enforcement officer’ should be read to mean law-enforcement officers acting in a tax or customs capacity.” I agree with this assessment, and conclude that the Sixth, Seventh, and D.C. Circuits, though outnumbered by the circuits holding to the contrary, have the better of the argument. See Kurinksy United States, 33 F.3d 594, 597 (6th Cir. 1994); Ortloff, 335 F.3d at 657-58 (7th Cir.); Buzuaye, 83 F.3d at 484 (D.C. Cir).
The debate between the circuits (and the parties here) pits several canons of statutory interpretation against each other. On the government’s side is the canon of construing a term that appears in separate places in a statute to mean the same thing. In that regard, the government points out that § 2680(h) says that “‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law,” and argues that the same broad definition should apply in construing § 2680(c). The government fails to point out, however, that the definition in § 2680(h) expressly applies only “[f]or the purpose of this subsection,” meaning §
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2680(h). In my view, the negative implication of that disclaimer -- that the definition should not
be transported to other subsections of the statute -- is compelling. Had the Congress meant “for
the purpose of this section,” instead of “subsection,” it likely would have said as much.
The government also resorts to the canon that “a waiver of the Government’s
sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.”
See Lane v. Pena, 518 U.S. 187, 192 (1996). In the context of construing § 2680, however, the
Supreme Court has specifically called this approach “unhelpful.” Kosak v. United States, 465
U.S. 848, 853 n.9 (1984). Instead, the Court advised in Kosak that “the proper objective of a
court attempting to construe one of the subsections of 28 U.S.C. § 2680 is to identify those
circumstances which are within the words and reason of the exception -- no less and no more.”
Id. (internal quotation marks omitted).
That advice leads quite naturally to the two related canons advanced by the
plaintiffs: ejusdem generis, that “a general term should be understood in light of the specific
terms that surround it,” Hughey v. United States, 495 U.S. 411, 419 (1990); and noscitur a sociis,
that “a general term is interpreted within the context of the accompanying words ‘to avoid the
giving of unintended breadth to the Acts of Congress.’” Kurinsky, 33 F.3d at 597 (quoting
Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)). The D.C. Circuit has explained the
former principle and its application to this setting as follows:
The principle of ejusdem generis -- or “of the same kind, class or nature” -suggests that a general term should be read in light of the more specific terms preceding it. Thus, if a statute lists fishing rods, nets, hooks, bobbers, sinkers and other equipment ... [then] “other equipment” might mean plastic worms and fishing line, but not snow shovels or baseball bats. In the clause “any officer of customs or excise or any other law-enforcement officer,” the words “any other law-enforcement officer” might mean other officers involved in customs and excise work, but not officers involved in unrelated duties. Otherwise, “any officer of customs or excise” would be surplusage, subsumed by the more general “any other law-enforcement officer.”
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Buzuaye, 83 F.3d at 484 (internal citations and quotation marks omitted). I find this reasoning persuasive, and accordingly conclude that because the
officers in question in this case were not “involved in customs and excise work,” the United States is not shielded from liability under the detention of goods exception. The motion to dismiss claim 30 is denied.
4. Deprivation of Medical Treatment (Claim 26) The government argues that plaintiffs Baloch, Saffi, and A. Ibrahim failed to give the BOP a fair opportunity to address their claims for deprivation of medical treatment, and therefore those claims must be dismissed for lack of exhaustion. See 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the United States for money damages ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing ....”); 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”). The Second Circuit has explained that “a Notice of Claim filed pursuant to the FTCA must provide enough information to permit the agency to conduct an investigation and to estimate the claim’s worth.” Romulus v. United States, 160 F.3d 131, 132 (2d Cir. 1998). Although a plaintiff is not required to advance specific legal theories in his administrative claims, he “cannot present one claim to the agency and then maintain a suit on a different set of facts.” Deloria v. Veterans Admin., 927 F.2d 1009, 1012 (7th Cir. 1991) (internal quotation marks omitted).
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As the United States points out, “from a review of the administrative claims presented, none of these three Plaintiffs so much as alluded to having requested [and being denied] medical treatment ....” Def. Br. 96. The plaintiffs do not dispute that they failed to mention medical treatment in their administrative complaints, but argue that “[t]his elevates form over substance,” explaining as follows:
Each claim specifically alleges physical injury to the Plaintiffs by Defendants. In investigating claims of physical injury, the government would necessarily review Plaintiffs’ medical records while in detention. Those medical records in turn are relevant to Plaintiffs’ claims concerning medical treatment. Accordingly, Plaintiffs’ administrative claims are adequate to exhaust their claims with respect to their medical treatment .... Pl. Br. 89-90. This reasoning falls apart merely by repeating it: claiming an injury is not at all the same thing as claiming a deprivation of adequate medical treatment; an injury does not imply a wrongful denial of medical treatment. See Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003) (affirming dismissal of claim of inadequate medical care for failure to exhaust where “[a]lthough [plaintiff] described the injuries he sustained and the physical effects -- including the recurrent seizures -- that he suffered, he stated no facts suggesting that the prison medical staff had treated him inappropriately.”). Accordingly, claim 26 is dismissed as to plaintiffs Baloch, Saffi, and A. Ibrahim for failure to exhaust administrative remedies.
CONCLUSION For the reasons set forth above, defendants’ motion to dismiss is denied in part and granted in part. Claims 4 (self-incrimination) and 6 (speedy trial) have been withdrawn. Claims 9-11 (international law) and 18-19 (bond) are dismissed for lack of jurisdiction.
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Claims 1-2 (length of detention), 17 (delay in serving charging document), 24 (false imprisonment), and 25 (negligent delay in clearance investigations) are dismissed for failure to state a claim. Claim 3 is dismissed as to the Passaic plaintiffs for failure to state a claim.
Claim 26 (inadequate medical treatment) is dismissed as to plaintiffs Baloch, Saffi, and A. Ibrahim for failure to exhaust administrative remedies.
The motion to dismiss is denied as to claims 3 and 23 (conditions of confinement, MDC plaintiffs only), 7 (interference with religious practices), 8 (taking of property), 20 (assignment to the ADMAX SHU, procedural due process), 21-22 (communications blackout), and 30 (conversion).
The motion to dismiss claim 5 (equal protection) is granted in part and denied in part.
So Ordered.

DATED:

June 14, 2006 Brooklyn, New York

John Gleeson, U.S.D.J.

99

 
 Case 1:02-cv-02307-JG-SMG Document 536 Filed 08/02/2006 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------X IBRAHIM TURKMEN, et al.,

Plaintiffs, v.

MEMORANDUM AND ORDER 02-CIV-2307(JG)

JOHN ASHCROFT, Attorney General of the United States, et al.,

Defendants. -------------------------------------------------------------X Gold, S., United States Magistrate Judge:

INTRODUCTION

Defendant Stuart Pray has moved to compel plaintiffs Hany Ibrahim and Yasser Ebrahim

(collectively referred to herein as plaintiffs) to produce certain documents and information in

discovery. The documents sought are those reflecting (1) information from the Social Security

Administration (“SSA”) indicating the basis upon which plaintiffs obtained social security

numbers; (2) information from financial institutions reflecting plaintiffs’ finances and the

financial transactions of plaintiff Ebrahim’s corporation, Net Media Production, Inc.; and (3)

filings made by Ebrahim with the New York Department of State with respect to his corporation.

Plaintiffs allege in their complaint that they were subjected to excessive force while

detained at the Metropolitan Detention Center (the “MDC”) in Brooklyn, New York. The

complaint further alleges that Pray, a lieutenant at the MDC, supervised the offending officers

and observed their use of excessive force but failed to intervene or otherwise prevent it. Third

Am. Compl., ¶ 194 (Docket Entry 109). Plaintiffs made further allegations about Pray’s

involvement in their abuse during discovery. See Pray Mem. of Law at 4-5.

In light of the allegations plaintiffs make against him, Pray plainly has an interest in

Case 1:02-cv-02307-JG-SMG Document 536 Filed 08/02/2006 Page 2 of 5
challenging plaintiffs’ credibility. Pray contends that the information he seeks by way of this motion is discoverable because it may provide impeachment material for trial.
DISCUSSION A. Social Security Records
Plaintiffs acknowledged during discovery that they entered the United States on tourist visas and subsequently obtained social security numbers (“SSNs”). Pray argues that plaintiffs must have misrepresented their status or otherwise defrauded the SSA because individuals with tourist visas are not eligible to receive social security numbers. Pray Mem. of Law at 13-14, 5354. Pray also points out that federal agents conducting a search of plaintiffs’ bedroom found several books describing how to obtain false identification documents. Pray Mem. of Law at 14.
Plaintiffs argue that the limitations on eligibility to obtain a social security number cited by Pray were not in place when they applied to SSA for their numbers. Plaintiffs further assert that they required social security numbers to open bank accounts. Pray responds that taxpayer identification numbers would have been sufficient to allow plaintiffs to open bank accounts.
For purposes of deciding this motion, it is not necessary to determine whether an individual with a tourist visa could have lawfully obtained a social security number at the time plaintiffs submitted their applications. Plaintiffs do not dispute Pray’s contention that literature about obtaining false identification documents was found in their home. Plaintiffs further acknowledge that, according to the system used by SSA for assigning numbers, the particular social security number obtained by plaintiff Ebrahim suggests that it was issued to a resident of a state other than the one where Ebrahim was living at the time. Pl.’s Letter dated June 12, 2006 at 3 n.2. In light of these facts, I conclude that Pray has made a sufficient showing to justify
2

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disclosure of the statements plaintiffs made to SSA in the course of obtaining their social security numbers, but not of the numbers themselves.
A recent decision of this court precluded discovery of social security numbers because of “the invasion of privacy which disclosure of . . . SSNs threatens.” Entral Group International, LLC v. YHCL Vision Corp., __ F. Supp. 2d __, 2006 WL 1589844 at * 1 (E.D.N.Y. June 7, 2006). However, the concerns which troubled the court in Entral are not presented here. First, as discussed above, Pray’s application for discovery in this case is supported by “something more than [the] perfunctory analysis” held insufficient in Entral. Id. Second, the disclosure Pray seeks here is of the representations plaintiffs made to SSA, and not of plaintiffs’ SSNs. Indeed, it appears that Pray has already learned plaintiff Ibrahim’s social security number, and has become aware of at least some of the digits of plaintiff Ebrahim’s number as well. See Declaration of Richard P. Caro in Support of Defendant Stuart Pray’s Motion for Disclosure, ¶¶ 4-5. Moreover, there is no reason to disclose the remaining digits of Ebrahim’s number. Pray is entitled only to those documents that reflect the representations made by plaintiffs to obtain their social security numbers; the actual numbers issued by SSA to plaintiffs are irrelevant. I have previously ordered plaintiffs to obtain their files from SSA. See Minute Entry dated May 26, 2006. Plaintiffs’ counsel may remove any information other than the representations to SSA made by plaintiffs, including the numbers SSA assigned to plaintiffs, from the files before producing them. B. Financial Information
Pray next seeks “financial information from financial institutions” where plaintiffs and Ebrahim’s corporation maintained accounts, and filings made by that corporation with the New York Department of State. In support of this prong of his motion, Pray argues as follows:
3

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Both Brothers [plaintiffs] admitted that they were not authorized to work while in the United States, that they nevertheless worked in the United States and never paid any taxes on their income or filed tax returns. The income they acknowledged also appears to be insufficient in light of their admitted expenditures and life style. That they worked off the books and avoided paying taxes, further undermines their honesty and credibility. Pray Mem. of Law at 27. As demonstrated by the deposition testimony and other evidence set forth in Pray’s Memorandum of Law, plaintiffs have already acknowledged working “off the books” and failing to file tax returns. Accordingly, Pray does not require additional discovery to establish these facts. Pray apparently seeks financial discovery to determine whether plaintiffs had sources of income they did not reveal during their depositions, or misrepresented their income or assets to obtain credit cards. These assumptions are highly speculative. Moreover, even if plaintiffs did conceal some sources of income or misrepresent facts in credit card applications, the relevance of these facts, particularly in light of plaintiffs’ admissions that they worked for cash and did not report their income, is limited. Finally, the financial discovery Pray seeks is highly intrusive; the account statements Pray seeks to obtain would reveal how plaintiffs chose to spend their money and hence much about their personal lives. The parties have provided the court with little information about the nature of the documents a corporation is required to file with the New York Department of State or whether those documents are publicly filed. This court’s decision does not, of course, prevent defendant Pray from obtaining documents maintained and made available to the public by agencies of the state or federal government.
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Case 1:02-cv-02307-JG-SMG Document 536 Filed 08/02/2006 Page 5 of 5 CONCLUSION
For these reasons stated above, defendant Pray’s motion to compel discovery is granted with respect to the representations plaintiffs made to SSA to obtain social security numbers and denied in all other respects.
SO ORDERED. ________/s/_______________ Steven M. Gold United States Magistrate Judge Brooklyn, New York August 2, 2006
C:\MyFiles\turkmen080206.wpd
5

 
 Case 1:02-cv-02307-JG-SMG Document 589 Filed 04/17/2007 Page 1 of 76

CENTER FOR CONSTITUTIONAL RIGHTS Barbara J. Olshansky (BO 3635) Nancy Chang (NC 5331) Rachel Meeropol (RM 3878) Shayana Kadidal Jennifer Green (JG 3169) 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6439 or 614-6420

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------x

IBRAHIM TURKMEN; ASIF-UR-REHMAN :

SAFI; SYED AMJAD ALI JAFFRI;

:

YASSER EBRAHIM; HANY IBRAHIM;

:

SHAKIR BALOCH; and AKIL SACHVEDA, :

on behalf of themselves and all others

:

similarly situated,

:

02 CV 2307 (JG)

:

Plaintiffs,

:

:

- against -

:SECOND AMENDED CLASS

:ACTION COMPLAINT AND

:DEMAND FOR

JOHN ASHCROFT, Attorney General of the

:JURY TRIAL

United States; ROBERT MUELLER, Director of :

the Federal Bureau of Investigation; JAMES W. :

ZIGLAR, Commissioner of the Immigration and :

Naturalization Service; DENNIS HASTY,

:

former Warden of the Metropolitan Detention

:

Center; MICHAEL ZENK, Warden of the

:

Metropolitan Detention Center; JOHN DOES 1-20, :

Metropolitan Detention Center, Corrections

:

Officers, and JOHN ROES 1-20, Federal Bureau :

of Investigation and/or Immigration and

:

Naturalization Service Agents,

:

:

Defendants.

:

---------------------------------------------------------------x

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Plaintiffs Ibrahim Turkmen, Asif-ur-Rehman Safi, Syed Amjad Ali Jaffri, Yasser Ebrahim, Hany Ibrahim, Shakir Baloch, and Akil Sachveda, by and through their attorneys, the Center for Constitutional Rights, allege the following:
NATURE OF ACTION 1. Plaintiffs bring this class action on behalf of themselves and the class of male non-citizens from the Middle East, South Asia, and elsewhere who are Arab or Muslim or have been perceived by Defendants to be Arab or Muslim, who have been arrested and detained on minor immigration violations following the September 11, 2001 terrorist attacks on the United States (“post-9/11 detainees”), treated as “of interest” to the government’s terrorism investigation and subjected to a blanket “hold until cleared policy” pursuant to which the Immigration and Naturalization Service (“INS”) denied them bond without regard to evidence of dangerousness or flight risk, and detained them until the Federal Bureau of Investigation (“FBI”) cleared them of terrorist ties (OIG Report1 at 69-70). All Plaintiffs and virtually all class members were in fact cleared of any connection to terrorism. (Id. at 27). Plaintiffs and class members have been subjected to one or more of the following unconstitutional policies and practices: (a) once placed in detention, they were not timely served with a Notice to Appear or any other notice of the charges on which they were being held and were thereby impaired in their ability to understand the reason for their detention, obtain legal counsel, and request release on bond (id. at 27-31); (b) some were classified as being “of high interest” to the
1 References throughout to the “OIG Report” are to a report released by the Office of the Inspector General of the U.S. Department of Justice on June 2, 2003, entitled “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks.” A copy of this report is appended as Exhibit 1.
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government’s terrorism investigation, “Witness Security” and / or “Management Interest Group 155” detainees in the absence of adequate standards or procedures for making such a determination or evidence that they were involved in terrorism and, on the basis of these classifications, housed in one of the most highly restrictive prison settings possible, the Administrative Maximum Special Housing Unit (“ADMAX SHU”) of the Metropolitan Detention Center (“MDC”) in Brooklyn, New York (id. at 18, 115-16); (c) they were subjected to a communications blackout and other actions that interfered with their access to counsel and their ability to seek redress in the courts (id. 112-14); and/or (d) after receiving final removal orders or grants of voluntary departure, they were held in immigration custody far beyond the period necessary to secure their removal or voluntary departure from the United States, again without regard to whether they posed a danger or flight risk. (Id. at 105).
2. As a matter of policy and practice, Defendants have kept Plaintiffs and class members in custody for extended time periods without evidence that they posed a danger of flight risk pursuant to a “hold until cleared policy,” not for any legitimate immigration law enforcement purpose, but to incarcerate them – without probable cause – while law enforcement authorities sought to determine whether they had any ties to terrorism. Individuals were deemed “of interest” to the terrorism investigation even where Defendants had no affirmative evidence of a connection to terrorism, so long as the FBI could not immediately rule out any connection. (Id. at 18). After the September 11 attacks, Defendants also adopted a policy of denying bond to any non-citizen deemed “of interest” to the terrorism investigation, even when Defendants had no evidence that the person was dangerous, a flight risk, or connected to terrorism. (Id. at 76, 78). Instead of
3

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being presumed innocent until proven guilty, these post-9/11 detainees have been presumed guilty of terrorism until proven innocent to the satisfaction of law enforcement authorities. By adopting, promulgating, and implementing these policies and practices, Defendants John Ashcroft, Robert Mueller, James Ziglar, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the Fourth and Fifth Amendments to the United States Constitution, customary international law, and treaty law.
3. While in detention, the Plaintiffs and class members have been subjected to unreasonable and excessively harsh conditions. Like Plaintiffs Turkmen and Sachveda, some class members have been held in overcrowded and unsanitary county jail facilities and housed with potentially dangerous criminal pretrial detainees, even though they themselves have never been charged with a crime. Like Plaintiffs Safi, Jaffri, Ebrahim, Ibrahim, and Baloch, other class members have been kept in federal facilities, such as the ADMAX SHU of the MDC where they have been placed in tiny cells for over 23 hours a day and strip-searched, manacled, and shackled when taken out of their cells. Like Plaintiffs Safi, Jaffri, Ebrahim, Ibrahim, Baloch, some class members have suffered physical and verbal abuse by their guards. Some, including Plaintiffs Safi, Jaffri, Ebrahim, and Ibrahim, have been badly beaten. Like the Plaintiffs, many class members have been denied access to counsel and to the judicial system. Like the Plaintiffs, many class members have been denied the ability to practice their faith during their detention. By subjecting Plaintiffs and class members to unreasonable and excessively harsh conditions and penalizing them for the practice of their faith, Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk, John Does 1-20, and John Roes 1-20 have intentionally
4

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and/or recklessly violated rights guaranteed to Plaintiffs and class members under the First, Fourth, and Fifth Amendments to the United States Constitution, and under customary international law and treaty law.
4. Even though Defendants have kept Plaintiffs and other class members in detention for the sole purpose of criminal investigation, Defendants have not provided them with the rights to which those suspected of crimes are entitled under the Constitution. Defendants have failed to provide them with a hearing before a neutral judicial officer to determine whether Defendants had probable cause to believe that the Plaintiffs and other class members were engaged in criminal activity. In addition, Defendants have failed to provide Plaintiffs and other class members with a criminal indictment or information citing criminal charges on which the detention was based, much less with counsel or a speedy trial. Instead of being afforded these fundamental protections, Plaintiffs and other class members were detained indefinitely pending the outcome of FBI and INS Aclearances.@ In adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, Ziglar, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the Fourth and Sixth Amendments to the Constitution.
5. Defendants adopted policies and practices that impeded and interfered with Plaintiffs’ ability to obtain legal representation and thereby gain access to court. They did so by, among other things, not serving Notices to Appear on a timely basis, thereby delaying bond redetermination hearings (id. at 27-31); imposing an initial communications blackout (id. at 112-14) and severely limiting phone calls to lawyers even after the blackout ended (id. at 130-31); and assigning certain Plaintiffs to the
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ADMAX SHU. (Id. at 18, 115-116). In adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk, and others have intentionally or recklessly violated rights guaranteed to Plaintiffs and class members by the First and Fifth Amendments to the Constitution.
6. At the time of Plaintiffs’ arrests, Defendants confiscated personal identification, money, and valuable personal items from all Plaintiffs and many class members. In addition, Defendants searched the homes of Plaintiffs and other class members while they were in detention and confiscated items in their homes. When Plaintiffs Turkmen, Baloch, and other class members demanded the return of these items at the time they were released from confinement for removal or voluntary departure from the United States, Defendants deliberately deprived Plaintiffs and other class members of these items. By adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, and Ziglar, and others have intentionally violated rights guaranteed to Plaintiffs and class members under the Fifth Amendment to the Constitution.
7. During their confinement, Defendants subjected Plaintiffs such as Safi, Ebrahim, Ibrahim, Baloch, and other class members to coercive and involuntary custodial interrogation designed to overcome their will and coerce involuntary and incriminating statements from them. By adopting, promulgating, and implementing this policy and practice, Defendants Ashcroft, Mueller, Ziglar, John Roes 1-20, and others have intentionally violated rights guaranteed to Plaintiffs and class members under the Fifth Amendment to the Constitution.
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8. In arresting Plaintiffs and class members, denying them bond without an adequate evidentiary basis, detaining them under unreasonable and excessively harsh conditions, and holding them far beyond the time necessary to effectuate their removal, Defendants Ashcroft, Mueller, Ziglar, and others have also engaged in racial, religious, ethnic, and/or national origin profiling. Plaintiffs= and class members= race, religion, ethnicity, and/or national origin have played a determinative role in Defendants= decision to detain them initially, to subject them to a blanket no-bond policy, to subject them to punishing and dangerous conditions of confinement, and then to keep them detained beyond the point at which removal or voluntary departure could have been effectuated, in violation of the rights guaranteed to them by the Fifth Amendment to the Constitution.
9. Plaintiffs and other class members seek a judgment declaring that Defendants= actions, practices, customs, and policies, and those of all persons acting on their behalf and/or their agents and/or employees, alleged herein, are illegal and violate the constitutional rights of Plaintiffs and class members as to each applicable count. Plaintiffs and other class members also seek a declaration that each individual Plaintiff’s detention was unjustified, unconstitutional, unlawful and without probable cause to believe that he had any involvement in the September 11th terrorist attacks or other terrorist activity. Plaintiffs further seek an injunction compelling Defendants to return all personal identification, money and valuable personal items that were confiscated from them. In addition, Plaintiffs seek compensatory and punitive damages for themselves and all class members, and an award of costs and reasonable attorneys= fees.
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JURISDICTION AND VENUE 10. This action is brought pursuant to the First, Fourth, Fifth, and Sixth Amendments to the Constitution, customary international law, and treaty law as incorporated into federal common law and statutory law. 11. This Court has jurisdiction under 28 U.S.C. ' 1331 (federal question jurisdiction) and 28 U.S.C. '' 2201 and 2202 (the Declaratory Judgment Act), and 28 U.S.C. ' 1350 (the Alien Tort Claims Act). 12. Venue is proper in the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. ' 1391(b) in that a substantial part of the events giving rise to Plaintiffs= claims occurred in this District.
JURY DEMAND 13. Plaintiffs demand trial by jury in this action on each and every one of their claims.
PARTIES 14. Plaintiff IBRAHIM TURKMEN is a native and citizen of Turkey, where he lives with his wife and four daughters. A Muslim Imam by profession, Mr. Turkmen came to the United States on October 4, 2000, on a six-month tourist visa. He has no criminal record either in this country or in any other country. Mr. Turkmen has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism. 15. Plaintiff ASIF-UR-REHMAN SAFI is a native of Pakistan and a citizen of France. He currently lives on Reunion Island with his wife and three children. He is a Muslim. An employee of Pakistani International Airlines for the past 19 years, Mr. Safi came to the United States on July 6, 2001 on a three-month tourist visa. He has no
8

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criminal record in this country or in any other country. Mr. Safi has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
16. Plaintiff SYED AMJAD ALI JAFFRI is a native of Pakistan and a landed immigrant of Canada. Mr. Jaffri, a Muslim, has a wife and four children who reside in Lahore, Pakistan. Since May 1997, Mr. Jaffri has periodically visited family and friends in the United States, entering this country from Canada or Pakistan on tourist visas. He has no criminal record in this country or in any other country. Mr. Jaffri has never been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, he abhors terrorism.
17. Plaintiffs YASSER EBRAHIM and HANY IBRAHIM, brothers whose surnames are spelled differently, are natives of Egypt and Muslims. Since 1992, Yasser has visited the United States on four occasions, each time on a tourist visa. In 1996, while in this country on a tourist visa, he married a United States citizen, with whom he lived in Queens, New York, until they separated in 1998. Shortly thereafter, Yasser returned to Egypt. In January 2001, however, Yasser came back to the United States on a tourist visa, with his younger brother Hany. Hany, who also had a tourist visa, was visiting this country for the first time. Neither Yasser nor Hany has a criminal record in this country or in any other country. Neither has ever been involved with terrorists, terrorist organizations, or terrorist activity. Indeed, both Yasser and Hany abhor terrorism.
18. Plaintiff SHAKIR BALOCH is a native of Pakistan. Mr. Baloch, a Muslim, comes from a prominent political family. He himself is a member of the Progressive Peoples Party, which is dedicated to the promotion of progressive secularism in Pakistan. Mr. Baloch holds a medical degree from Bolan Medical College in Quetta, Pakistan. He
9

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briefly worked as a family physician in government service in that country. Mr. Baloch became a landed immigrant in Canada in 1989 and a Canadian citizen in 1994. He has a wife and a 15 year old daughter, both of whom reside in Toronto. Unable to find work in Canada, Mr. Baloch has entered and stayed in the United States for several extended periods over the past decade, most recently in April 2001.
19. Plaintiff AKIL SACHVEDA is a native of India and a Hindu. He holds a bachelor of arts degree in commerce from the University of Delhi. In December 1998, Mr. Sachveda was granted landed immigrant status in Canada. Since 1995, Mr. Sachveda has entered the United States for extended periods of time before returning to Canada. In 1998, while working as a travel agent in Canada, Mr. Sachveda married a green card holder who owned a gas station in Long Island, New York. For the next several years, Mr. Sachveda lived with his wife in the United States and worked at her gas station. During this period, Mr. Sachveda applied to the INS for resident status in the United States. In early 2001, however, Mr. Sachveda and his wife decided to get a divorce. He briefly returned to Canada. In late September or early October 2001, Mr. Sachveda re-entered the United States to finalize his divorce and pack his belongings for his move back to Canada.
20. Defendant JOHN ASHCROFT is the Attorney General of the United States. As Attorney General, Defendant Ashcroft has ultimate responsibility for the implementation and enforcement of the immigration laws. He is a principal architect of the policies and practices challenged here. Upon information and belief, he also authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs
10

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and other class members have been detained. Defendant Ashcroft is being sued in his individual capacity.
21. Defendant ROBERT MUELLER is the Director of the Federal Bureau of Investigation. Defendant Mueller was instrumental in the adoption, promulgation and implementation of the policies and practices challenged here. Upon information and belief, he also authorized, condoned, and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained. Defendant Mueller is being sued in his individual capacity.
22. Defendant JAMES W. ZIGLAR is the former Commissioner of the INS. As INS Commissioner, Defendant Ziglar has immediate responsibility for the implementation and enforcement of the immigration laws. He is the INS=s chief executive officer. Defendant Ziglar was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged here. Upon information and belief, he also authorized, condoned and/or ratified the unreasonable and excessively harsh conditions under which Plaintiffs and other class members have been detained. Defendant Ziglar is being sued in his individual capacity.
23. Defendant DENNIS HASTY, until very recently, was the Warden of the MDC. While warden, Defendant Hasty had immediate responsibility for the conditions under which Plaintiffs and other class members have been confined at the MDC. While Warden, Defendant Hasty subjected Plaintiffs and other class members confined at the MDC to unreasonable and excessively harsh conditions in violation of the Constitution and international law norms. Defendant Hasty is being sued in his individual capacity.
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24. Defendant MICHAEL ZENK is currently the warden of the MDC. As Warden, Defendant Zenk has immediate responsibility for the conditions under which Plaintiffs and other class members have been confined at the MDC. On information and belief, as Warden, Defendant Zenk has subjected Plaintiffs and class members confined at the MDC to unreasonable and excessively harsh conditions in violation of the Constitution and international law norms. Defendant Zenk is being sued in his individual capacity.
25. Defendants JOHN DOES 1-20 are federal employees who are employed as corrections officers at the MDC. Singly and collectively, Defendants John Does 1-20 have subjected Plaintiffs and other class members confined at the MDC to unreasonable and excessively harsh conditions. Defendants John Does 1-20 are being sued in their individual capacities.
26. Defendants JOHN ROES 1-20 are federal law enforcement agents who are employed by the FBI or the INS. Singly and collectively, Defendants John Roes 1-20 have subjected Plaintiffs and other class members to coercive and involuntary custodial interrogation. Defendants John Roes 1-20 are being sued in their individual capacities.
CLASS ACTION ALLEGATIONS 27. Plaintiffs bring this action under Rule 23(b)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of a class of all other persons similarly situated. 28. Plaintiffs seek to represent a certified Plaintiff class consisting of all male, noncitizens from the Middle East, South Asia and elsewhere who are Arab or Muslim or have been perceived by Defendants as Arab or Muslim and who have been:
(a) arrested on immigration violations by the INS or FBI after the September 11th terrorist attacks;
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(b) treated as being “of interest” to the government’s terrorism investigation, and subjected to a blanket “hold until cleared” policy pursuant to which they were held without bond, without regard to evidence of dangerousness or flight risk, until cleared of terrorist ties by the FBI;
(c) detained at the MDC or the Passaic County Jail; and
(d) never afforded, or else not afforded on a timely basis, a hearing before a neutral judicial officer for a determination as to whether probable cause existed to justify detaining them beyond the time necessary to secure their removal or voluntary departure from the United States.
In addition, Plaintiffs and the other members of the class were subjected to one or more
of the following policies and practices:
(a) once placed in detention, they were not timely served with a Notice to Appear or any other notice of the charges on which they were being held and were thereby impaired in their ability to understand the reason for their detention, obtain legal counsel, and request release on bond;
(b) some were classified as being “of high interest” to the government’s terrorism investigation, or as “Witness Security” and / or “Management Interest Group 155” detainees in the absence of adequate standards or procedures for making such a determination or evidence that they were involved in terrorism and, on the basis of these classifications, housed in the highly restrictive ADMAX SHU of the MDC in Brooklyn, New York;
(c) they were subjected to a communications blackout and other actions that interfered with their access to counsel and their ability to seek redress in the courts; and/or
(d) after receiving final removal orders or grants of voluntary departure, they were held in immigration custody far beyond the period necessary to secure their removal or voluntary departure from the United States, and without regard to any evidence that they were dangerous or a flight risk.
29. The members of the class are too numerous to be joined in one action, and their
joinder is impracticable in part because Defendants have kept their identities secret.
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While the exact number is presently unknown to Plaintiffs= counsel, the Department of

Justice Office of Inspector General was able to identify approximately 475 September 11

detainees who were held at MDC and Passaic and were subjected to the policies

challenged in this action. (OIG Report at 5). Moreover, the subclass of Plaintiffs

detained after they could have been deported likely exceeds 87 individuals. See Though

Not Linked to Terrorism, Many Detainees Cannot Go Home, N.Y. Times, Feb. 18, 2002,

at A1 (reporting that the United States Department of Justice has blocked the departure of

87 mostly Arab or Muslim non-citizens who have received voluntary departure or

removal orders, Awhile investigators comb through information pouring in from overseas

to ensure that they have no ties to terrorism@).

30. Common questions of law and fact exist as to all class members and predominate

over questions that affect only the individual members. These common questions

include, but are not limited to:

(a) whether Defendants adopted, promulgated, and implemented a policy and practice of depriving Plaintiffs and class members of their Fourth Amendment right to be free from unreasonable seizures by detaining them months longer than necessary to secure their removal or voluntary departure from the United States;

(b)

whether Defendants adopted, promulgated, and implemented a

policy and practice depriving Plaintiffs and class members of their liberty

without due process of law in violation of the Fifth Amendment and

customary international law by detaining them months longer than

necessary to secure their removal or voluntary departure from the United

States;

(c) whether Defendants adopted and implemented a policy of denying bond to all “of interest” detainees, without regard to evidence of danger or flight risk;

(d) whether Defendants adopted, promulgated, and implemented policies and practices depriving Plaintiffs and class members of their liberty without due process of law in violation of the Fifth Amendment

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and in violation of their rights under customary international law, by subjecting them to outrageous, excessive, cruel, inhumane, and degrading conditions of confinement;
(e) whether Defendants adopted, promulgated and implemented a policy and practice depriving Plaintiffs and class members of their rights under the Fourth and Sixth Amendments, including the right to a probable cause determination made by a neutral judicial officer, the right to be provided on a timely basis with a criminal indictment or information citing the criminal charges on which the detention is based, and the right to a speedy trial;
(f) whether Defendants adopted, promulgated, and implemented a policy and practice under which Plaintiffs and class members were subjected to coercive and to involuntary custodial interrogation designed to overcome their will and to coerce involuntary and incriminating statements from them, depriving Plaintiffs and class members of their right to due process of law under the Fifth Amendment;
(g) whether Defendants adopted, promulgated, and implemented a policy depriving Plaintiffs and class members of equal protection of the law in violation of the Fifth Amendment by detaining them months longer than necessary to secure their removal or voluntary departure from the United States because of their race, religion, ethnicity, and/or national origin;
(h) whether Defendants adopted, promulgated, and implemented a policy confiscating the personal property of Plaintiffs and class members in violation of the Fifth Amendment;
(i) whether Defendants adopted, promulgated, and implemented a policy under which Plaintiffs and class members were interrogated by FBI and other federal agents and deprived of the opportunity to obtain counsel in violation of the Sixth Amendment to the Constitution; and
(j) whether Defendants adopted, promulgated, and implemented a policy which violated Plaintiffs= and class members= rights under the First Amendment to practice their religion.
31. Plaintiffs= claims are typical of those of the class for reasons that include the
following. First, each Plaintiff is a male non-citizen of Middle Eastern or South Asian
descent who is Arab or Muslim or has been perceived by Defendants to be Arab or
Muslim. Second, each Plaintiff was arrested and detained subsequent to the September
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11th terrorist attacks on minor (but deportable) immigration violations. Third, each Plaintiff has been treated as “of interest” to the government’s terrorism investigation, and subjected to a blanket “hold until cleared” policy pursuant to which he was held in INS detention without regard to evidence of danger or flight risk, until cleared of terrorist ties by the FBI. Fourth, each Plaintiff subsequently received a removal or voluntary departure order and was held for months longer than necessary to secure his removal or voluntary departure from the United States while he was cleared of terrorist ties, again without regard to evidence of danger or flight risk. Fifth, each Plaintiff was held under unreasonable and excessively harsh conditions of confinement and those housed in MDC were subjected to a communications blackout. Sixth, each Plaintiff was never afforded, or else not afforded on a timely basis, a hearing before a neutral judicial officer to determine whether there was probable cause to detain them beyond the time when all legitimate immigration law enforcement purposes had been served. Seventh, the race, religion, ethnicity and/or national origin of each plaintiff played a determinative role in Defendants= decision to detain them.
32. The legal theories on which Plaintiffs rely are the same or similar to those on which all class members would rely, and the harms suffered by them are typical of the harms suffered by the other class members.
33. Plaintiffs will fairly and adequately protect the interests of the class. The interests of the class representatives are consistent with those of the class members. In addition, Plaintiffs= counsel are experienced in class actions and civil rights litigation.
34. Plaintiffs= counsel know of no conflicts of interest among class members or between the attorneys and class members that would affect this litigation.
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35. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court which individual litigation of these claims would impose.
36. The Plaintiff class should be certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure (ARule 23(b)(3)@) for determination of liability because Defendants have acted on grounds generally applicable to the class, thereby making class-wide declaratory relief appropriate.
37. Common questions of law and fact also clearly predominate within the meaning of Rule 23(b)(3). Class action treatment provides a fair and efficient method for the adjudication of this controversy, affecting a large number of persons, joinder of whom is impracticable. The class action provides an effective method whereby the enforcement of Plaintiffs= and class members= rights can be fairly managed without unnecessary expense and duplication.
STATEMENT OF FACTS General Allegations
38. In the wake of the September 11th terrorist attacks, the INS arrested and detained well over 1,200 male, non-citizens from the Middle East, South Asia, and elsewhere, who appeared to be Arab or Muslim, most of them on minor immigration violations -- such as overstaying visas, working illegally on tourist visas, or failing to meet matriculation and/or course work requirements for student visas. While the INS has sometimes in the past sought to remove non-citizens for these violations, it generally has not detained them during their removal proceedings.
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39. Upon information and belief, the INS has taken a different approach with post9/11 detainees, not because they violated the immigration laws -- that alone does not justify detention under the immigration laws -- but rather because federal law enforcement authorities deemed them potential (but not actual or even probable) terrorists, often based on vague suspicions rooted in racial, religious, ethnic, and/or national origin stereotypes rather than in hard facts.
40. Upon information and belief, many post-9/11 detainees have been held for weeks, even months in INS facilities or county jails, without any charges being filed against them and without any hearing on the reasons for their detention. Eventually, the INS has filed charges against most post-9/11 detainees, alleging that they committed minor immigration violations and not criminal offenses.
41. Upon information and belief, after immigration hearings, many post-9/11 detainees have received final removal orders or accepted voluntary departure orders. Even though the INS could have promptly secured the removal or voluntary departure of these individuals, it has kept them in custody in some cases over six months after the issuance of their final immigration orders -- far longer than necessary to secure their removal or voluntary departure from the United States, and well beyond the time that the INS is statutorily authorized to detain them. 8 U.S.C. ' 1231(a)(1) (90-day removal period); 8 U.S.C. ' 1229c(b)(2) (60-day period for voluntary departure granted at the conclusion of removal proceedings).
42. Upon information and belief, most, if not all, post-9/11 detainees have been kept in custody after the issuance of final removal or voluntary departure orders until they have received two Aclearances@ -- one from the FBI and the other from INS -- absolving
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them of any linkage to terrorists or terrorist activities. In effect, federal law enforcement authorities have deemed post-9/11 detainees Aguilty of terrorism until cleared,@ instead of Ainnocent until proven guilty.@ The FBI and INS clearances have frequently taken four months or longer.
43. Upon information and belief, from the outset, the arrest, processing, and detention of post-9/11 detainees have been shrouded in extreme secrecy. Most were held incommunicado for the first few weeks of their detention. Family members thus initially had great difficulty finding out whether their loved ones had been arrested and detained, and if so, where they were being held. To add to the secrecy, the INS has designated post-9/11 detainees as Aspecial interest cases,@ which has the effect of closing their immigration hearings, not only to the general public but also to family members, and sealing the records in their cases.
44. Upon information and belief, while in INS custody, most post-9/11 detainees have been repeatedly interrogated by both FBI and INS agents. Very few have been represented by counsel during these interrogations. Many have not even been told of their right to counsel. Others have been coerced to waive that right, even though they could not read the printed English language on the waiver forms which they were instructed to sign and even though they did not fully understand the nature of the right being waived. When post-9/11 detainees have asked to adjourn interrogations so they can consult with an attorney, FBI and INS agents have generally refused to do so.
45. Upon information and belief, post-9/11 detainees have had great difficulty obtaining legal representation, even after they were no longer held incommunicado. Some post-9/11 detainees have been held for months following their arrest, with their
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status and whereabouts unknown to their lawyers and their families. Others have been moved to different facilities without their lawyers= knowledge. For several months after the September 11th terrorist attacks, post-9/11 detainees held at the MDC were allowed to make only one call per month to their attorneys and only one call per month to their families. At both the MDC and the Passaic County Jail, post-9/11 detainees are allowed to make only collect calls, which few law offices accept from strangers. While INS detainees typically receive a list of organizations that might provide free legal services, the lists given to post-9/11 detainees have been woefully inadequate, containing much inaccurate and outdated information.
46. Upon information and belief, while civil liberties, civil rights, and immigrant advocacy organizations have been ready, willing, and able to provide free legal services to post-9/11 detainees, Defendants Ashcroft, Mueller, Ziglar, Hasty, Zenk and their employees, agents, and contractors have substantially limited such organizations= access to post-9/11 detainees. They have imposed a virtual Ablackout@ on information on post9/11 detainees, refusing to disclose their names, the facilities in which they are being held, or information about their cases. They have also denied requests by civil liberties, civil rights, and immigrant advocacy organizations to visit INS facilities or county jails to screen post-9/11 detainees in need of legal assistance.
47. Upon information and belief, even though non-citizen INS detainees must be advised of their right to seek assistance from their consulates under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77 (AVienna Convention@), many post-9/11 detainees have not been advised of this right. Others have been coerced to waive that right, even though they cannot read the printed
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English language on the waiver forms which they are asked to sign and do not understand the nature of the right being waived. When post-9/11 detainees have sought to contact their consulates, their requests have been denied.
48. Upon information and belief, shortly after the September 11th terrorist attacks, Defendants Ashcroft, Mueller, and Ziglar adopted, promulgated and implemented policies within the INS and the FBI to detain Arab or Muslim men of Middle Eastern and South Asian origin as suspects in a criminal investigation, notwithstanding the fact that in many instances they lacked probable cause to do so, in violation of the Fourth Amendment. To accomplish this goal, Defendants used the pretext of violations of the INA to detain Plaintiffs and the class for criminal purposes. The circumstances of most of these detentions deviated from standard INS practice in the following respects:
(a) nearly all of the detainees are Arab or Muslim men of Middle Eastern or South Asian origin; (b) nearly all have been arrested and detained for minor immigration violations and on scant evidence of dangerousness or flight risk; (c) nearly all have often been held for more than 48 hours without notice of the charges against them; (d) nearly all have been denied bond; and (e) nearly all have been held in detention without cause for as long as six months after their final deportation or voluntary departure orders could have been carried out. 49. Even though Plaintiffs and other class members have been detained indefinitely for the purposes of a criminal investigation, Defendants have deliberately denied them the mandatory constitutional, statutory, and common law protections afforded criminal defendants, including access to the courts, by, among other things:
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(a) failing to comply with the requirement that a detained suspect in a criminal investigation be brought promptly before an independent magistrate for a probable cause determination;
(b) precluding them from obtaining legal representation by holding them incommunicado and refusing access to legal services and civil rights organizations that would have provided legal assistance;
(c) subjecting them to coercive interrogation, while in detention, despite repeated requests for adjournment to contact counsel;
(d) subjecting them to outrageous, excessive, cruel, inhuman, and degrading conditions of confinement, and excessive force; and
(e) coercing them to waive their right to consular access.
50. Defendants have adopted, promulgated, and implemented their detention policies,
in whole or in part, based on invidious animus against Arabs and Muslims, in violation of
the First and Fifth Amendments to the Constitution. Such invidious animus is evidenced
by, among other things:
(a) the above-mentioned unconstitutional policies have not been applied to all non-citizens in the United States alleged to have violated the immigration laws. Since the September 11th terrorist attacks, virtually all of these non-citizens arrested and detained on minor immigration violations have been Arab or Muslim or perceived to have been Arab or Muslim;
(b) they have been detained in situations where similarly situated nonArabs and non-Muslims have not been detained;
(c) they have been detained beyond the time necessary to secure their removal or voluntary departure from the United States, while similarly situated non-Arab and non-Muslim detainees have been removed or allowed to depart within a matter of days or weeks after final removal or voluntary departure orders have been issued;
(d) they have been verbally abused and subjected to statements slandering the Muslim faith and their adherence to it by the Doe Defendants and by Defendant Ashcroft, who has expressed anti-Muslim sentiments, including a statement reportedly proclaiming the inferiority, moral and otherwise, of the Muslim people, to wit: AIslam is a religion in
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which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you;" and (e) they have been targeted for disparate treatment by Defendant Ashcroft who announced the policy that Plaintiffs and class members would be arrested and detained for any reason regardless of the de minimis nature of their infractions, and thereby eliminated for Plaintiffs and class members any access to the fair and reasonable discretion of law enforcement officials. This fair and reasonable discretion remains available to non-Arab and non-Muslim individuals who are non-citizens. Defendant Ashcroft=s policy announcement stated: ALet the terrorists among us be warned. If you overstay your visa even by one day, we will arrest you. If you violate a local law we will...work to make sure that you are put in jail and...kept in custody as long as possible.@
Inspector General’s Report on the September 11 Detainees Held by INS 51. On June 2, 2003, the Office of the Inspector General of the United States
Department of Justice released a 198-page report entitled “The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks” (“OIG Report”). The OIG Report provides a wealth of details concerning the government’s treatment of the post-9/11 detainees. A copy of this report is appended hereto as Exhibit 1.
52. According to the OIG Report, the INS consistently delayed in issuing and serving the post-9/11 detainees with charging documents (known as Notices to Appear or NTAs) far beyond the 48-hour period specified in its regulations at 8 C.F.R. ' 287.3 for issuing an NTA and its post-9/11 goal of serving an NTA within 72 hours. (OIG Report at 2930). In doing so, the INS has impaired the ability of detainees to know the charges on which they are being held, obtain legal counsel, and seek release on bond. (Id. at 35). On information and belief, Plaintiffs Ebrahim and Ibrahim were not served with NTAs until
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sixteen days after their respective arrests; Plaintiff Sachveda was not served until seven days after his arrest; and Plaintiff Jaffri was not served until five days after his arrest.
53. According to the OIG Report, as a matter of custom and policy, Defendants instituted a blanket “no bond” policy for all individuals arrested in connection with September 11th investigations that was applied without regard to whether the person posed a flight risk or a danger. (Id. at 76, 78). INS District Directors were ordered to make an initial determination of no bond for all post-9/11 detainees. (Id. at 76-77). Moreover, Defendants ordered INS Trial Attorneys to seek continuances and delays of bond redetermination hearings and to oppose bond even when there was no evidence to support the denial of bond. (Id. at 78-80). All of the Plaintiffs were subjected to Defendants’ blanket no bond policy.
54. According to the OIG Report, many post-9/11 detainees were classified as “of high interest” to the Government’s terrorism investigation without specific criteria or a uniform classification system. (Id. at 18). The FBI requested that the INS place these “of high interest” detainees at MDC. (Id.). Once assigned to MDC, the Bureau of Prisons (“BOP”) classified the detainees as “Witness Security” and /or “Management Interest Group 155” detainees without any individual assessment or uniform criteria of any sort. (Id at 115-16). Upon information and belief, and according to the OIG Report, BOP regulations require an employee known as the Segregation Review Official to conduct a weekly review of the status of each inmate housed in the SHU after he (or she) has spent seven days in administrative detention or disciplinary segregation. (Id. at 118). The Segregation Review Official is also required to conduct a formal hearing every 30 days assessing the inmate’s status. (Id.). These review processes were not conducted for the
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post-9/11 detainees. (Id.). Officials at MDC were told by BOP headquarters that until the FBI had cleared a particular detainee, that detainee’s report was to be automatically annotated with the phrase “continue high security,” no hearing was to take place, and the detainee was to remain under restrictive detention in the ADMAX SHU. (Id.). Upon information and belief, Plaintiffs Jaffri, Ebrahim, Ibrahim and Baloch were denied any review processes; and Plaintiff Safi merely received a conclusory document noting that his high security status was to be continued.
55. These arbitrary and capricious classifications resulted in severe deprivations of liberty. The “of high interest” detainees were placed in the ADMAX SHU, a particularly restrictive type of SHU uncommon to most BOP facilities because the normal SHUs “are usually sufficient for correcting inmate misbehavior and addressing security concerns.” (Id. at 118-19). The ADMAX SHU at MDC was established after September 11, 2001 to make available more restrictive confinement. (Id. at 119). Unlike regular SHUs, ADMAX SHUs enforce four-man hold restraint policies, use hand-held cameras to record detainee movements, and have cameras in each cell to monitor detainees. (Id.). Unlike detainees in the general population at MDC, detainees in the ADMAX SHU were not allowed to move around the unit, use the telephone freely, nor are they permitted electronic equipment (such as small radios). (Id.). Instead, ADMAX SHU detainees could only move outside their cells while restrained and accompanied by four staff members, and only then for specific purposes. (Id.). ADMAX SHU detainees were strictly limited in their telephone use in terms of both frequency and duration of calls. (Id.). Unlike the general MDC population, all attorney and family visits were noncontact, with a clear partition between the parties. (Id. at 123). Plaintiffs Safi, Jaffri,
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Ebrahim, Ibrahim and Baloch were subjected to these restrictive conditions in the ADMAX SHU for between three and seven months.
56. According to the OIG Report, detainees at the ADMAX SHU in MDC were subjected to a communications blackout that barred them from receiving telephone calls, visitors, mail, or placing telephone calls. (Id. at 113). During this period, detainees were unable to make any contact with attorneys or their families. (Id. at 114). Compounding this situation, the detainees’ classification as “Witness Security” and / or “Management Interest Group 155” led MDC to turn away lawyers and family members who came to the facility seeking individual detainees by falsely stating that the individuals were not detained inside. (Id. at 115). Upon information and belief, Plaintiffs Safi, Jaffri, Ebrahim, Ibrahim, and Baloch were subjected to the communications blackout for a period of time ranging from two weeks to two months.
57. According to the OIG Report, the arbitrarily labeled “of high interest” detainees were placed in the ADMAX SHU and subjected to the communication blackout pursuant to a joint policy of the FBI, INS, and Bureau of Prisons. (Id. at 18). INS Commissioner Zigler, FBI Director Mueller, and Attorney General Ashcroft ordered and/or condoned the prolonged placement of these detainees in extremely restrictive confinement. (Id. at 17, 37 – 39, 66, 77).
58. According to the OIG Report, the INS held detainees long after removal could have been effectuated, simply because the FBI had not completed its “clearance” process. As a matter of policy and practice, and in keeping with its “hold until cleared” policy, INS did not conduct post-order custody reviews for post-9/11 detainees held more than 90 days after their final removal orders. (Id. at 91, 107-108). These reviews are required
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by the INS regulations at 8 C.F.R. ' 241.4, and provide that detainees must be given 30 days notice of the review and that the INS complete the review 90 days after the issuance of a final removal order. On information and belief, Plaintiffs Safi, Jaffri, Ebrahim, Ibrahim, and Sachveda and other class members were not given notice of such a review and no such review was conducted. Allegations Concerning the Plaintiffs
Plaintiff Ibrahim Turkmen 59. Ibrahim Turkmen entered the United States through New York City on a tourist visa in early October, 2000 to visit an old friend from Turkey who lived in Long Island. 60. In late October 2000, Mr. Turkmen, at his friend=s suggestion, found work at a service station in Bellport, Long Island. He worked there several days a week until midJanuary 2001, when he took a job at another service station in the same town. Mr. Turkmen worked at the latter service station several days a week until mid-April 2001, when he began working part-time for a locally-based Turkish construction company. 61. From his arrival in the United States until he was taken into INS custody, Mr. Turkmen frequently called his wife and four daughters back in Turkey. While dearly missing them, he decided to remain in the United States to provide for their support. Each week, Mr. Turkmen sent most of his meager earnings home to his family. 62. Mr. Turkmen spoke almost no English when he came to the United States. While here, he learned barely enough English words to conduct his limited daily business. At the time that he was taken into custody, Mr. Turkmen understood very little spoken English, and he could not read English at all.
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63. At about 2:30 p.m. on October 13, 2001, slightly more than a month after the September 11th terrorist attacks, two FBI agents visited Mr. Turkmen at the apartment where he was staying with several Turkish friends in West Babylon, New York. Without advising him of his right to counsel, they asked Mr. Turkmen whether he had any involvement in the September 11th terrorist attacks and whether he had any association with terrorists. They also inquired as to his immigration status, among other things.
64. Mr. Turkmen had great difficulty understanding the FBI agents’ questions given his limited knowledge of English and the lack of an interpreter. All the same, he did his best to answer truthfully. He denied any involvement with terrorists, terrorist organizations, or terrorist activity. The FBI agents, nonetheless, charged Mr. Turkmen with being an associate of Osama bin Laden, placed him under arrest, confiscated his personal items (passport, identification, credit cards, etc.) and money, and searched his home without his consent.
65. Mr. Turkmen was taken to an INS facility in Nassau County, fingerprinted, and further interrogated, this time by an INS official. Once again, he was not advised of his right to counsel. Due to his limited knowledge of English and the lack of an interpreter, Mr. Turkmen again had great difficulty understanding the questions. Still, he did his best to answer them truthfully. Mr. Turkmen again denied any involvement with terrorists, terrorist organizations, or terrorist activity. He was held at the Nassau County INS facility for five or six hours.
66. That evening, at approximately 11:30 p.m., Mr. Turkmen was brought to another INS facility in Manhattan, where INS officials asked him still more questions in English. Despite great difficulty understanding the questions, and without the aid of an interpreter,
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Mr. Turkmen again did his best to answer them truthfully. For the third time, he denied any involvement with terrorists, terrorist organizations, or terrorist activity.
67. Mr. Turkmen=s interrogators then instructed him to sign certain papers, possibly waiving his right under Article 36 of the Vienna Convention to speak with his consulate - papers which he could not read because they were in English. Afraid that he would only make matters worse for himself if he refused to comply, Mr. Turkmen reluctantly signed the papers.
68. Early the next morning, October 14, 2001, Mr. Turkmen was taken to the Passaic County Jail in Paterson, New Jersey, where he remained confined, except for a single trip to Immigration Court in Newark, New Jersey, until February 25, 2002, a period of nearly four and one-half months.
69. Shortly after arriving at the Passaic County Jail, Mr. Turkmen received a Notice to Appear from the INS, charging him with overstaying his visa and scheduling a hearing at Immigration Court in Newark, New Jersey on October 31, 2001.
70. On October 29, 2001, two FBI agents visited Mr. Turkmen at the Passaic County Jail. They asked him still more questions about his immigration status, his reasons for entering the United States, his work experience, his religious beliefs, and other personal matters. Another Turkish post-9/11 detainee fluent in English translated the questions for Mr. Turkmen, who answered them all truthfully. For the fourth time, he denied any involvement with terrorists, terrorist organizations, or terrorist activities. At no time during the interrogation did the agents ever advise Mr. Turkmen of his right to counsel, or, for that matter, any “Miranda rights.”
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71. Two days later, on October 31, 2001, Mr. Turkmen was taken to Immigration Court in Newark, New Jersey, where he appeared pro se before an Immigration Judge. Once again, he was not advised of his right to counsel. While Mr. Turkmen this time was provided with an interpreter, that interpreter (who was not of Turkish descent) was fluent in neither Turkish nor English. After conceding that he had overstayed his tourist visa, Mr. Turkmen accepted a voluntary departure order requiring him to leave the United States by November 30, 2001. He declined to request bond solely because the Judge assured him that he would be allowed to return to Turkey within a matter of days. The INS never appealed the voluntary departure order issued to Mr. Turkmen.
72. When he returned to the Passaic County Jail later that day, Mr. Turkmen called a friend to ask him to purchase a plane ticket for Mr. Turkmen’s return to Turkey. Two days later, on November 2, 2001, Mr. Turkmen=s friend brought the ticket to the INS=s offices in Newark, New Jersey. Mr. Turkmen remained, nonetheless, in the Passaic County Jail for nearly four more months, until February 25, 2002, even though the INS could have effectuated his voluntary departure within a matter of days.
73. Mr. Turkmen was detained for nearly four more months longer than necessary to effectuate his voluntary departure from the United States solely on the remote possibility that law enforcement authorities might someday connect him to terrorist activity. He was never, however, brought before a neutral judicial officer to determine whether there was probable cause to believe that Mr. Turkmen engaged in terrorist activity. Nor was an indictment or information against Mr. Turkmen ever filed with a court citing criminal charges on which his continued detention was based.
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74. While confined in the Passaic County Jail, Mr. Turkmen was not allowed to call his wife and four daughters back home in Turkey. He learned through a friend, however, that his wife had been hospitalized for a month with an undisclosed ailment so serious that she lost most of her hair and teeth. Upon learning this, Mr. Turkmen was beside himself with worry. Unable even to call his seriously ailing wife, he suffered extreme emotional distress.
75. While confined in the Passaic County Jail, Mr. Turkmen, like other class members was:
(a) placed in the general prison population, forced to eat meals at the same tables, sleep in the same dormitories, and otherwise commingle with individuals charged with and/or convicted of violent crimes; (b) deliberately denied the ability to observe the mandatory practices of his religion (for example, by regularly interrupting his daily prayers and refusing to serve him the Hallal food); (c) housed under severely overcrowded conditions (with individuals charged with and/or convicted of crimes); and (d) threatened by guards with menacing dogs. 76. Upon his arrival at the Passaic County Jail, Mr. Turkmen was given a list of telephone numbers to call for free legal services. Most of the numbers, however, were incorrect or no longer valid. For weeks, one of Mr. Turkmen=s friends on the outside tried to call those numbers, with no success. On information and belief, other post-9/11 detainees in the Passaic County Jail given the same list of telephone numbers to call for free legal services encountered the very same problem. 77. While confined in the Passaic County Jail, Mr. Turkmen was never informed of his right under Article 36 of the Vienna Convention to consult with the Turkish
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Consulate. Had he known that he had such a right, he could have, and would have, sought immediate assistance from the Consulate.
78. On January 17, 2002, more than three months after he was taken into custody and more than two and one-half months after he received a voluntary departure order, Mr. Turkmen was visited by an INS agent. The agent informed Mr. Turkmen that he had been Acleared@ by the FBI but still needed to be Acleared@ by the INS. When Mr. Turkmen asked how long the latter clearance might take, the agent replied that he did not know.
79. One month later, on February 17, 2002, Mr. Turkmen was visited by another INS agent, who told Mr. Turkmen that he had received INS Aclearance@ and would be allowed to depart the United States within the next two weeks. Eight days later, on February 25, 2002, INS agents took Mr. Turkmen in handcuffs from the Passaic County Jail to Newark Airport, where they put him on a plane to Istanbul, Turkey -- without a single penny or lira in his pocket. Although Mr. Turkmen requested the return of $52 confiscated from him at the time of his arrest -- money that he needed to pay for, among other things, the eight-hour bus trip from Istanbul Airport to his home in the City of Konya -- that request was denied.
80. As soon as Mr. Turkmen debarked from the plane at Istanbul Airport, he was met by a Turkish police officer, who escorted him to a nearby police station, where he was interrogated for about an hour concerning his four-and-one-half month detention in the United States. Once again, Mr. Turkmen denied any involvement with terrorists, terrorist organizations, or terrorist activity. After the interrogation concluded, he was allowed to leave for Konya, though he still had no money to buy the bus ticket. But for the kindness
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of a complete stranger who lent him the necessary funds, Mr. Turkmen might still be stranded in Istanbul.
81. Mr. Turkmen was again interrogated at length concerning his detention in the United States, this time by Konya’s Security Intelligence Division, following the filing of this lawsuit on April 17, 2002. At the close of the interrogation, the Division’s Superintendent told him to “be careful.” Approximately 10 days later, Mr. Turkmen’s father was contacted by the Head of Gendarmerie in Konya’s Karapinar District, Mr. Turkmen’s birthplace, to ascertain Mr. Turkmen’s current address, ostensibly to “give to the human rights organizations that are trying to reach Mr. Turkmen.” Several days later, the Head of Gendarmerie in Konya’s Cumra District asked Mr. Turkmen’s former employer for Mr. Turkmen’s personnel file. After reviewing the file, that gendarme took with him all the documents relating to Mr. Turkmen’s 16 years of public service.
82. The presumption of guilt thus follows Mr. Turkmen even after his deportation from the United States, despite the fact that he has never been involved in terrorist activity and the complete absence of any evidence of his involvement in such activity. Because of this presumption, Mr. Turkmen is deemed a “security risk” and thus unable to return to his prior government position. After seeking employment for months, Mr. Turkmen recently found a job -- as a service driver for a factory.
83. Mr. Turkmen continues to suffer the emotional and psychological effects of his four and one-half months detention in the United States. He regularly experiences nightmares about his detention, making it difficult for him to sleep.
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Plaintiff Asif-ur-Rehman Safi 84. Asif-ur-Rehman Safi entered the United States through Los Angeles on July 6, 2001, on a three-month tourist visa which was to expire in early October 2001. After briefly staying with family and friends in Los Angeles, he flew to New York City to see other friends. While in New York City, Mr. Safi, a Microsoft Certified Professional, earned a small sum fixing computers and inputting data for a small business. 85. On September 29, 2001, shortly before his tourist visa was to expire, Mr. Safi flew to Toronto to spend a few days. Canadian immigration officials, however, refused to allow him into the country. Consequently, Mr. Safi flew back to New York City the next day, September 30, 2001. He was arrested by two Port Authority police officers as soon as he stepped off the plane at LaGuardia Airport. 86. After being interrogated by Port Authority police officers, Mr. Safi was taken to an INS facility in Manhattan, where he was again questioned, this time by two FBI agents for approximately one to two hours. Mr. Safi, who is fluent in English, answered their questions truthfully. He denied any involvement with terrorists or terrorist activity. The two FBI agents, however, disputed Mr. Safi=s veracity, accusing him of involvement in the September 11th terrorist attacks. Charging Mr. Safi with having a strong association with terrorists, the agents made threatening remarks to him such as “you will be rotting in jail if you don’t give us names” and “Muslims are terrorists and we know you are one of them.” Taking two telephone books that Mr. Safi had on his person, they told him that they would check every contact in his books and if they found any of them to be suspicious, he would be in serious trouble. At an INS official=s request, Mr. Safi signed a written statement that he had been working in the United States without authorization.
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While being interrogated, Mr. Safi asked to see the French Consulate. That request was never granted, even after Mr. Safi put that request in writing.
87. The next day, October 1, 2001, Mr. Safi was transported by van to the MDC in handcuffs with chains around his waist and shackles on his legs. At the MDC, INS agents dragged Mr. Safi from the van into the building, slamming his face into several walls on the way. Despite the pain, Mr. Safi offered no resistance, fearing that would only make matters worse. After being fingerprinted, Mr. Safi was strip-searched and given an orange jumpsuit. All of his personal belongings, including his personal identification, eyeglasses, and money, were confiscated.
88. Still in handcuffs, chains, and shackles, Mr. Safi was taken by the Doe Defendants to the Special Housing Unit on the Ninth Floor of the MDC. Once there, the Doe Defendants again strip-searched Mr. Safi and subjected him to physical and verbal abuse. Among other things, they bent back his thumbs, stepped on his bare feet with their shoes, and pushed him into a wall so hard that he fainted. After Mr. Safi fell to the floor, they kicked him in the face. The Doe Defendant in charge, a lieutenant, called Mr. Safi a “terrorist,” boasting that Mr. Safi could expect continued harsh treatment because of his involvement in the September 11th terrorist attacks. The same Doe Defendant threatened to punish him if he even so much as smiled. Mr. Safi offered no resistance.
89. Mr. Safi was placed in a 10-foot-by-six-foot cell shared by another post-9/11 detainee. He was confined to his cell all day long, nearly every day, for the next five months. Though the Doe Defendants occasionally offered to transport Mr. Safi, in handcuffs, chains and shackles to a very cold Arecreation@ cell, very early in the morning (at about 5 a.m.) for one hour, Mr. Safi declined these unreasonable offers. Mr. Safi=s
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cell was cold and uncomfortable on most days (though considerably warmer than the “recreation” cell). At night, he found it difficult to sleep, because the lights stayed on 24 hours a day.
90. Mr. Safi was not even given a bar of soap or a towel with which to wash until his second week at the MDC. He was denied all reading material until mid-December 2001, when the Doe Defendants finally gave him a copy of the Qur’an. Mr. Safi was, however, unable to read that holy book for several days more, until the Doe Defendants returned the eyeglasses (confiscated from him on October 1, 2001).
91. While Mr. Safi was confined at the MDC, the Doe Defendants deliberately interfered with his ability to observe the mandatory practices of his religion. They denied him the Hallal food required by his faith. For the first month or so, they constantly interrupted him during his daily prayers. They further withheld from him the time of day making it impossible for Mr. Safi, caged in a windowless cell, to know when to say his mandatory prayers.
92. While confined at the MDC, Mr. Safi received constant verbal abuse. The Doe Defendants swore at him, belittled and insulted his religion, and degraded him. They called him a “religious fanatic” and a “terrorist.” On one occasion, after a post-9/11 detainee in an adjacent cell commented that the food was surprisingly decent for a change, one Doe Defendant (a lieutenant) told Mr. Safi and his neighbor: AYou are not supposed to have good food. I will report it.@
93. On October 14, 2001, two weeks after his arrest, Mr. Safi was interrogated by six FBI and INS agents, who asked him wide-ranging questions about his family back in France, his work for Pakistan International Airlines, his faith, and his political views B
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very few of which had anything to do with his immigration violation. Mr. Safi again denied any involvement with terrorists, terrorist organizations or terrorist activity.
94. Three days later, on October 17, 2001, at a closed hearing held in MDC, an Immigration Judge ordered Mr. Safi removed for working without authorization. When Mr. Safi asked whether he needed a lawyer, an INS official told him that counsel was unnecessary since the INS would soon put him on a plane back to France. Mr. Safi nonetheless remained in custody for another four and one-half months until he received Aclearances@ from the FBI and INS, even though the INS could have effectuated his removal within a matter of a day. Neither Mr. Safi nor the INS appealed the final removal order issued to Mr. Safi.
95. Mr. Safi was detained for four and one-half months longer than necessary to effectuate his removal from the United States solely on the remote possibility that law enforcement authorities might someday connect him to terrorist activity. He was never, however, brought before a neutral judicial officer to determine whether there was probable cause to believe that Mr. Safi engaged in terrorist activity. Nor was an indictment or information against Mr. Safi ever filed with a court citing criminal charges on which his continued detention was based.
96. While confined in MDC’s Special Housing Unit, Mr. Safi was not allowed to make any telephone calls for nearly two months, until November 26, 2001, when the Doe Defendants finally permitted him to make one telephone call. He immediately called the French Consulate, which sent someone to meet him at the MDC on November 29, 2001. At that meeting, Mr. Safi was told that the INS had given Consulate officials (false) assurances that he would soon be released. But for the fact that Mr. Safi=s wife included
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the Consulate=s telephone number in a letter to him, Mr. Safi would have been unable to contact the Consulate. The Doe Defendants had refused to give him the French Consulate=s address or telephone number.
97. On December 18, 2001, two individuals B an INS agent and a New York City police detective B visited Mr. Safi at the MDC. They questioned him about his family back in France, his work for Pakistan International Airlines, his faith, and his political views, though without advising him of his right to counsel. Mr. Safi again denied any involvement with terrorists, terrorist organizations or terrorist activity. After the interrogation was over, Mr. Safi=s two interrogators assured him that he would soon be released. Mr. Safi, however, remained detained at the MDC for nearly three more months.
98. On March 5, 2002, INS agents took Mr. Safi from the MDC to LaGuardia Airport and put on an airplane to France, without, however, returning his money or critical employment identification cards. The INS has yet to return the latter documents – documents that Mr. Safi must have to travel.
99. As a result of his prolonged detention in the United States, Mr. Safi’s employer, Pakistani National Airlines, has begun proceedings to terminate his employment, evidently deeming him a security risk. If terminated, Mr. Safi will lose the benefits accrued to him from 18 years of service. A presumption of guilt thus continues to follow Mr. Safi even after his deportation from the United States, despite the fact that he has never been involved in terrorist activity and the complete absence of any evidence that he has been involved in such activity.
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100.

Mr. Safi continues to suffer the emotional and psychological effects of his

four and one-half months detention in the United States. He has great difficulty, for

example, sleeping at night, thinking about what happened to him at MDC.

Plaintiff Syed Amjad Ali Jaffri

101.

In September 2001, Plaintiff Syed Amjad Ali Jaffri was living and

working in the Bronx, New York, though without a valid visa. He was renting a room in

a three-room apartment leased to Melvin Curzado and his family. One night, Mr. Jaffri

and Mr. Curzado had a heated verbal dispute over the living arrangements. Mr. Curzado

threatened to report Mr. Jaffri to the INS.

102.

Several days later, on September 27, 2001, approximately 10 INS and FBI

agents, accompanied by a United States Department of Labor official and several police

officers, came to Mr. Curzado=s apartment to see Mr. Jaffri. They searched Mr. Jaffri=s

room, without a search warrant and without his consent, finding in a closet several stun

guns that belonged not to Mr. Jaffri but rather to Mr. Curzado=s children. Mr. Jaffri was

arrested and charged with criminal possession of a weapon, a charge which was

dismissed two days later because the stun guns did not belong to Mr. Jaffri.

103.

Mr. Jaffri was taken to an INS facility in Manhattan, where FBI and INS

agents interrogated him about possible involvement in the September 11th terrorist attacks

and other terrorist activity, without advising him of his right to counsel, or, for that

matter, any of his “Miranda rights.” One FBI agent asked Mr. Jaffri to sign a form

retroactively consenting to the search of his room. Mr. Jaffri, however, refused to do so,

prompting the agent to angrily say: ANow you will learn the hard way.@ When Mr. Jaffri

asked to speak with the Canadian Consulate, the agent instructed him to sign another

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form -- possibly a form waiver of his right to speak with his consulate, though Mr. Jaffri

was never given a copy to keep. Mr. Jaffri reluctantly signed the form, hoping that it

would expedite his release. He was never allowed to see the Canadian Consulate.

104.

Two days after his arrest, on September 29, 2001, Mr. Jaffri was taken to

the MDC, where he was strip searched, fingerprinted and given an orange jumpsuit. All

of his personal belongings, including his personal identification, were confiscated. He

was placed in a tiny solitary (windowless) cell in the Special Housing Unit. Mr. Jaffri

was confined to that cell nearly all day, nearly every day, for the next six months, until

April 1, 2002. Though the Doe Defendants occasionally offered to transport him in

handcuffs, chains and shackles to a very cold Arecreation@ cell very early in the morning

(at about 5 a.m.) for one hour, Mr. Jaffri declined the unreasonable offer.

105.

Whenever Mr. Jaffri was removed from his cell, he was first strip searched

and then placed in handcuffs, chains, and shackles. Four or more Doe Defendants

typically escorted him to his destination, frequently inflicting unnecessary pain along the

way, for example, by deliberately kicking Mr. Jaffri=s manacles and shackles into his

lower body. Despite the pain, Mr. Jaffri offered no resistance, fearing that resistance

would only make matters worse.

106.

On most days, Mr. Jaffri=s cell was cold and uncomfortable. He had great

difficulty sleeping at night, because the lights stayed on 24 hours a day. For the first two

months, Mr. Jaffri was denied a bar of soap. He received only two squares (pieces) of

toilet paper per day. His meals were served without eating utensils. For months, he was

not allowed to have any reading material, not even the Qur’an. While there were other

post-9/11 detainees held in adjoining cells, Mr. Jaffri was forbidden to talk with them,

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and vice-versa. The Doe Defendants threatened to cut off visits from his attorney if he

broke the rule.

107.

While Mr. Jaffri was confined in the MDC’s Special Housing Unit, the

Doe Defendants deliberately interfered with his ability to observe the mandatory

practices of his religion. They denied him the Hallal food required by his faith. For the

first month or so, they constantly interrupted him during his daily prayers. Finally, they

withheld from him the time of day making it impossible for Mr. Jaffri, caged in a

windowless cell, to know when to say his mandatory prayers.

108.

While Mr. Jaffri was confined in the MDC, he was subjected to repeated

physical and verbal abuse by the Doe Defendants. When he was first brought to the

MDC=s Special Housing Unit, for example, one Doe Defendant, in the presence of other Doe Defendants, told him: AWhether you [participated in the September 11th terrorist

attacks] or not, if the FBI arrested you, that=s good enough for me. I=m going to do to you

what you did.@ Several Doe Defendants then slammed Mr. Jaffri=s head into a wall,

severely loosening his lower front teeth and causing him extreme pain. Despite the pain,

Mr. Jaffri offered no resistance, again fearing that resistance would only make matters

worse. Throughout his stay at the MDC, Mr. Jaffri felt pain and discomfort in the

vicinity of his lower front teeth. He was never, however, allowed to see a dentist.

109.

On December 20, 2001, during a closed immigration hearing held at

MDC, an Immigration Judge ordered Mr. Jaffri removal. Neither Mr. Jaffri nor the INS

contested that order. Mr. Jaffri, nonetheless, remained in custody for nearly three months

and months more, until he received Aclearances@ from the FBI and INS, even though the

INS could have effectuated his removal within a matter of days.

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110.

Mr. Jaffri was detained for nearly three and one-half months longer than

necessary to effectuate his removal from the United States solely on the remote

possibility that law enforcement authorities might someday connect him to terrorist

activity. He was never, however, brought before a neutral judicial officer to determine

whether there was probable cause to believe that Mr. Jaffri engaged in terrorist activity.

Nor was an indictment or information against Mr. Jaffri ever filed with a court citing

criminal charges on which his continued detention was based.

111.

On April 1, 2002, INS agents took Mr. Jaffri to LaGuardia Airport, putting

him on a plane to Canada, without any identification or money.

Plaintiffs Yasser Ebrahim and Hany Ibrahim

112.

Plaintiffs Yasser Ebrahim and Hany Ibrahim entered the United States on

tourist visas in January 2001. For the next nine months, they shared an apartment in

Brooklyn, New York with several friends from Egypt and Morocco. During that time,

Yasser began a website design business, while Hany occasionally worked in a local

delicatessen.

113.

On Sunday, September 30, 2001, at about 2 p.m., Yasser and Hany, along

with their roommates, were in their apartment when they heard a knock on the door.

When Yasser opened the door, he saw 12 men standing there, one of whom announced

that they were FBI and INS agents and New York City police officers who wanted to talk with Yasser, Hany, and their roommates about the September 11th terrorist attacks.

Yasser invited them in.

114.

Once inside the apartment, the FBI and INS agents interrogated Yasser,

Hany, and their roommates separately, asking them questions about their immigration

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status and terrorist activity in the United States, without advising them of their right to

counsel, or, for that matter, of any of his “Miranda rights.” Yasser, Hany, and their roommates all denied any involvement in the September 11th terrorist attacks or any other

terrorist activity. When the interrogation was over, the FBI and INS agents told Yasser,

Hany, and one Egyptian roommate that “we have to take you with us.” They arrested

and handcuffed all three, denying Yasser’s and Hany’s request to call an attorney.

Without Yasser’s, Hany’s, or their roommates’ consent, the FBI and INS agents

conducted a search of the apartment, seizing all of Yasser’s religious and other books in

the process.

115.

Yasser and Hany, as well as their Egyptian roommate, were taken to the

INS’s Varick Street facility in Manhattan. There, FBI and INS agents again interrogated

Yasser and Hany about their immigration status and terrorist activity in the United States,

once again failing to advise them of their rights to counsel. Yasser and Hany again asked

to call an attorney but their request again was denied. The FBI and INS agents who

interrogated Yasser and Hany, however, asked them if they would consent to waive their

right under Article 36 of the Vienna Convention to consult with their consulate. Yasser

and Hany reluctantly agreed to do so, fearing that a refusal would only further antagonize

their hostile custodians.

116.

Yasser and Hany were held for approximately 24 hours at the INS’s

Varick Street facility in Manhattan. They were denied access to bathroom facilities and

forced to sleep at night on the floor. All of their personal belongings, including their

personal identification and money, were confiscated.

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117.

The next day, October 1, 2001, Yasser and Hany were taken in handcuffs,

chains, and shackles to MDC. Upon their arrival, they were fingerprinted, strip searched,

and given orange jumpsuits to wear. The Doe Defendants then escorted Yasser and Hany

upstairs to the Special Housing Unit on the ninth floor, repeatedly slamming their heads

into the wall and calling them “Fucking Muslims” and “terrorists” along the way. When

Hany tried to explain that he and his brother were only there on immigration charges, one

Doe Defendant told him to shut up, stating “If you open your mouth, I will crush you

under the elevator, just like at the World Trade Center.”

118.

Yasser and Hany each suffered serious injuries as a result of the beatings

received upon their arrival at MDC. Their arms and noses remained black and swollen

for several days thereafter. Even though Yasser and Hany were in considerable pain and

had great difficulty breathing, they were not treated for their injuries.

119.

Yasser and Hany were placed in separate cells and were not allowed to see

or speak with each other for 35 days. On November 5, 2001, however, they were moved

into the same cell. While Hany was eventually transferred out of the Special Housing

Unit into MDC’s general prison population (on January 17, 2002), Yasser remained

confined in the Special Housing Unit for the entire duration of his confinement at MDC.

(Although the paragraphs below primarily describe Yasser’s experience in the Special

Housing Unit, Hany experienced many of the same conditions during his confinement

there.)

120.

During his incarceration at MDC, Yasser was locked in his cell for nearly

24 hours a day almost every day. While corrections officers periodically offered to escort

Yasser to a “recreation” cell in the early morning hours, he rarely took them up on the

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offer because the “recreation” cell was freezing cold, especially during the fall and winter

months, and because the Doe Defendants, for example, would verbally and physically

abuse him on the trip to and from the recreation cell.

121.

Whenever Yasser was removed from his cell, he was first strip searched

and placed in handcuffs, chains, and shackles. The Doe Defendants frequently inflicted

unnecessary pain, while escorting Yasser outside of his cell, by deliberately kicking the

manacles and shackles into his lower body.

122.

The lights remained on in Yasser’s cell 24 hours a day, making it difficult,

if not impossible, for him to sleep at night. To ensure that Yasser remained sleep-

deprived, the Doe Defendant banged on his door every 15 minutes, at all hours of the day

and night. When Yasser complained that he could not sleep, a psychiatrist was sent to

speak with Yasser through the tiny slot in his cell door -- in the presence of several

corrections officers. After briefly listening to Yasser’s complaint, the psychiatrist told

him to stop drinking coffee and play lots of basketball during his early morning

“recreation” hour.

123.

On October 10, 2001, one FBI agent and one INS agent visited Yasser at

MDC to interrogate him again about his knowledge of terrorist activity. Neither agent

advised Yasser of his right to counsel. One did, however, ask Yasser whether he would

answer questions without an attorney. Yasser agreed to do so, because he had nothing to

hide and because he naively believed that his truthful answers to the agents’ questions would expedite his release. Yasser again denied any involvement in the September 11th

terrorist attacks or any other terrorist activity. During the interrogation, the agents

conceded to Yasser that he was not arrested solely because he had violated the

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immigration laws. They also told him that he would receive help with his immigration

problems if he had information to help their investigation into terrorist activity.

124.

The same two FBI and INS agents interrogated Hany the same day at

MDC, though without advising him of his right to counsel. Hany, too, again denied any involvement in the September 11th terrorist attacks or any other terrorist activity. Several

days later, the two agents returned to MDC to ask for Hany’s consent to seize the

computer in Yasser’s and Hany’s apartment. Hany gave his consent, naively believing

that would further establish his and his brother’s innocence and expedite their release.

125.

On October 14, 2001, they were each given a list of telephone numbers to

call for free legal services. They were also allowed to make a few collect calls. Try as

they might, however, Yasser and Hany were unable to contact any of the organizations on

the list over the next several weeks because the listed telephone numbers were largely

incorrect. In late October, 2001, Yasser and Hany each received a new list of telephone

numbers to replace what the Doe Defendants conceded to Yasser and Hani was a the

admittedly defective list. Shortly thereafter, Hany contacted a Legal Aid attorney,

Marianne Yang, who agreed to represent both Yasser and Hany at their immigration

hearings.

126.

On November 6, 2001, Yasser and Hany were taken downstairs separately

in handcuffs, chains, and shackles to see an Immigration Judge who was holding closed

immigration hearings for post-9/11 detainees at MDC. On the way, the Doe Defendant in

charge twice whispered to Yasser, “The camera is your best friend. If not for the camera,

I would have smashed your faces, you mother fuckers.” When Yasser complained about

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this verbal abuse at his immigration hearing, the Judge abruptly cut Yasser off, stating “I

don’t care. This is not my job.”

127.

Yasser’s and Hany’s immigration cases were heard together. Ms. Yang

appeared on their behalf, while an INS trial attorney appeared on behalf of the

government. A female FBI or INS agent was also present, though she neither entered an

appearance nor spoke on the record. Ms. Yang asked that Yasser and Hany be granted

voluntary departure and bond. The Immigration Judge, however, denied the request, after

the agent handed him a note off the record. The hearing was adjourned.

128.

Two weeks later, on November 20, 2001, Yasser and Hany were again

brought before an Immigration Judge at MDC. This time they were represented by new

pro bono counsel Matthew Guadagno. The Judge denied Yasser’s and Hany’s request for

bond, stating that they were “disappearance risks.” Desperate to expedite their release

and return home to their ailing mother in Egypt, Yasser and Hany reluctantly accepted

final deportation orders, effective immediately, upon being assured that they would be

removed from the country within four to five days. The INS did not appeal those orders.

Even though the INS could have secured Yasser’s and Hany’s removal within a matter of

days, the agency kept Yasser and Hany in custody for another six months.

129.

Yasser and Hany were detained for six months longer than necessary to

effectuate their removal from the United States solely on the remote possibility that law

enforcement authorities might someday connect them to terrorist activity. They were

never, however, brought before a neutral judicial officer to determine whether there was

probable cause to believe that they engaged in terrorist activity. Nor was an indictment

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or information against Yasser or Hani ever filed with a court citing criminal charges on

which their continued detention was based.

130.

While confined at MDC, Yasser and Hany were denied necessary medical

care, not only for the beatings they received upon their arrival at MDC but also for

subsequent ailments. Although Hany tested positive for tuberculosis, the medical staff at

MDC refused to treat him for this condition. The staff also refused to treat Yasser’s

kidney stones, other than to give him painkillers to partially alleviate his severe pain.

131.

While confined in MDC’s Special Housing Unit, Yasser and Hany

received barely edible food -- food having little or no nutritional value. To make matters

worse, the food served to them was slopped together on a single paper plate. On

information and belief, MDC prisoners other than post-9/11 detainees received their food

on slotted trays, with fruit, vegetables, meats, and other food items segregated in different

slots.

132.

While confined in MDC’s Special Housing Unit, Yasser and Hany were

deliberately denied the ability to practice their Muslim religion. Because their cell

windows had been painted over, Yasser and Hany were totally dependent on the Doe

Defendants for the time of day to know when to say their daily prayers. The Doe

Defendants, however, withheld that basic information from Yasser and Hany. The Doe

Defendants also refused to disclose the dates to Yasser, making it impossible for him to

know when Ramadan began. (Hany was transferred to MDC’s general population prior

to Ramadan.)

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133.

During their first month of confinement in MDC’s Special Housing Unit,

Yasser and Hany were denied soap, towels, and toothpaste, among other necessary daily

toiletry items, as well as a cup from which they could drink water.

134.

Hany was released and deported on May 29, 2002. Yasser was released

and deported on June 6, 2002. On the dates that they were deported, each was given old

clothes, taken to the airport in handcuffs, chains, and shackles, and placed on a plane to

Cairo without any money. Both Yasser and Hany have made attempts to have personal

belongings and money confiscated from them during and following their arrests returned

to them. To date, none of these items have been returned to them.

135.

Upon their arrivals in Cairo, Yasser and Hany each was summoned to

State Security Investigations, where each was extensively interrogated for several hours

on his detention in the United States. On information and belief, State Security

Investigations continues to maintain dossiers on both Yasser and Hany. The presumption

of guilt thus follows them even after their deportation from the United States, despite the

fact that they have never been involved in terrorist activity and the complete absence of

any evidence of their involvement in such activity. Because they are now deemed

“security risks,” Yasser’s and Hany’s job prospects in Egypt are exceedingly dim.

136.

Yasser and Hany continue to suffer extreme emotional and psychological

distress as a result of their eight months of detention in the United States. They each

have sleepless nights thinking about the recent past. Hani is seeking treatment for the

tuberculosis that he contracted while detained.

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Plaintiff Shakir Baloch

137.

Plaintiff Shakir Baloch was taken into custody by FBI agents while

attending a driving school class in Queens, New York on September 20, 2001, less than 10 days after the September 11th terrorist attacks. The agents drove Mr. Baloch back to

his apartment, where they were joined by six to eight other FBI and INS agents and New

York City police officers. There, Mr. Baloch was interrogated for nearly four hours,

primarily about the events on September 11, 2001. He was never advised of his rights to

counsel, or, for that matter, of his other “Miranda rights.” Mr. Baloch denied any

involvement with terrorists, terrorist organizations, or terrorist activity. He was arrested

at the close of the interrogation. Without Mr. Baloch’s consent, FBI and INS agents

conducted a search of Mr. Baloch’s apartment, seizing his laptop computer.

138.

Mr. Baloch was taken in handcuffs the same day to the INS’s Varick

Street facility in Manhattan, where he was held overnight. While there, all of his

personal belongings, including personal identification and money, were confiscated.

139.

The next day, September 21, 2001, Mr. Baloch was taken to MDC. While

Mr. Baloch was being processed, the Doe Defendants cursed him out, adding that “You

did this to us. We’re going to kill you.” After escorting Mr. Baloch to a six-and-one-

half-foot-by-seven-foot cell in MDC’s Special Housing Unit, they proceeded to pick him

up and throw him from corner to corner in his cell, accusing him of being a “terrorist” as

they did so.

140.

The next day, September 22, 2001, Mr. Baloch learned that the INS had

reinstated a prior deportation order against him. Even though the INS could have

effectuated Mr. Baloch’s removal from the United States within a matter of days, Mr.

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Baloch was detained for almost seven months, until April 16, 2002, solely on the remote

possibility that he might later be connected to terrorist activity, despite the complete

absence of any evidence of such connection.

141.

Mr. Baloch was detained for nearly seven months longer than necessary to

effectuate his removal from the United States solely on the remote possibility that law

enforcement authorities might someday connect him to terrorist activity. He was never,

however, brought before a neutral judicial officer to determine whether there was

probable cause to believe that he engaged in terrorist activity.

142.

Shortly after being taken into custody on September 20, 2001, Mr. Baloch

asked to see an attorney. That request was denied. Mr. Baloch also asked to speak with

the Canadian Consulate. That request too was denied. When the Canadian Consulate

subsequently inquired about Mr. Baloch on its own initiative, the INS refused to disclose

his whereabouts. It was not until early November, 2001 that Mr. Baloch was permitted to

speak with an attorney from the Legal Aid Society.

143.

While in INS custody, Mr. Baloch was given extremely limited access to

the telephone – one telephone call a month. He was denied all telephone access from the

date of his arrest until early November 2001. On one occasion, Mr. Baloch attempted to

call an attorney but was unable to complete the connection. A Doe Defendant, however,

refused to allow Mr. Baloch to attempt another call to the same attorney, telling him that

he had exhausted his monthly call quota.

144.

While confined at MDC, Mr. Baloch was interrogated an additional four

times by FBI agents. During these interrogations, the agents threatened him by telling

him things such as “If you don’t cooperate with us, we will revoke your Canadian

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citizenship” and “If you’re not cooperative, we’ll put you in jail for 10 years or deport

you back to Pakistan instead of Canada, where they’ll put you in jail longer than 10

years.”

145.

The conditions under which Mr. Baloch was held during his prolonged

detention were very similar, if not identical to, the conditions under which Plaintiffs Safi,

Jaffri, Ebrahim, and Ibrahim were held in MDC’s Special Housing Unit.

146.

On about December 21, 2001, having been detained for more than three

months without any prospect for release, Mr. Baloch filed a habeas corpus petition

through pro bono counsel in the United States District Court for the Southern District of

New York. Less than two weeks later, on January 3, 2002, Mr. Baloch was indicted for

illegal re-entry – a charge to which he pled guilty on April 2, 2002. Mr. Baloch was

sentenced to time served. Shortly thereafter, he was transferred from MDC to the Passaic

County Jail.

147.

On information and belief, Defendants Ashcroft, Mueller, and Ziglar

rarely seek indictment of minor immigration violators for the offenses for which Mr.

Baloch was indicted. On information and belief, Defendants Ashcroft, Mueller, and

Ziglar caused Mr. Baloch to be indicted solely to prolong his detention for the purpose of

their investigation into terrorist activity.

148.

On April 16, 2002, the INS took Mr. Baloch from Passaic County Jail to

Newark Airport, where they put him on a plane to Toronto, without any personal

identification or money. Since his deportation, Mr. Baloch has repeatedly requested

return of the personal belongings confiscated from him during and after his arrest,

including his personal identification. Defendants have, however, refused to comply with

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these requests, maintaining -- without any basis in fact – that Mr. Baloch’s personal

belongings are relevant to their terrorist investigation.

149.

Mr. Baloch continues to suffer the effects of his detention in the United

States. He recently tested positive for tuberculosis for the first time -- a disease that he

doubtless contracted during his incarceration. He is also being treated for severe

depression. Because of nightmares and anxiety, he cannot sleep at night. His physician

has recommended that he not work for the next six months. Without the social insurance

and health cards confiscated from him at the time of his arrest, he has had difficulty

securing the medical treatment he desperately needs to recover. He and his wife have

recently separated, due to the strains on their marriage brought about by his prolonged

detention.

Plaintiff Akil Sachveda

150.

In late September or early October 2001, plaintiff Akil Sachveda returned

to the United States from Canada to finalize his divorce from his wife and collect his

personal belongings for his move back to Canada. Sometime in late November 2001, an

FBI agent visited the gas station owned by Mr. Sachveda’s ex-wife in Port Washington,

New York, looking for a Muslim employee. Not finding that individual, the agent left a

message for Mr. Sachveda’s ex-wife to contact the agent. She, in turn, asked Mr.

Sachveda to do so.

151.

In early December 2001, Mr. Sachveda called the FBI agent, who asked

Mr. Sachveda to come to the agent’s offices for an interview. Mr. Sachveda agreed to do

so. On December 9, 2001, Mr. Sachveda met with two FBI agents at 26 Federal Plaza in Manhattan. They proceeded to question him at length about the September 11th terrorist

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attacks and his religious beliefs, among other things, though without advising him of his

right to counsel or his “Miranda rights.” At the close of the interrogation, the agents

examined Mr. Sachveda’s personal identification before allowing him to leave.

152.

Mr. Sachveda continued to close out his affairs in the United States in

anticipation of his move back to Canada. On or about December 20, 2001, while at

uncle’s apartment, Mr. Sachveda was arrested by INS agents. He was taken to the INS’s

offices at 26 Federal Plaza, where he was interrogated for five hours about his ties to the September 11th terrorist attacks, without being advised of his right to counsel or his

“Miranda rights.” Mr. Sachveda asked to speak with the Canadian Consulate but that

request was denied. At the close of the interrogation, INS agents confiscated all of Mr.

Sachveda’s personal identification. He was then taken to Passaic County Jail.

153.

On December 27, 2001, while confined in Passaic County Jail, Mr.

Sachveda received a Notice to Appear, charging him with illegal re-entry. (He had

overstayed a prior voluntary departure order.) At a hearing on December 31, 2001, in

Immigration Court in Newark, New Jersey, an Immigration Judge ordered Mr. Sachveda

deported to Canada or India “within 30 days.” The INS did not appeal that final

deportation order. Even though the INS could have effectuated Mr. Sachveda’s removal

from the United States within a matter of days, Mr. Sachveda was detained for another

three and one-half months, until April 17, 2002.

154.

Mr. Sachveda was detained for nearly three and one-half months longer

than necessary to effectuate his removal from the United States solely on the remote

possibility that law enforcement authorities might someday connect him to terrorist

activity. He was never, however, brought before a neutral judicial officer to determine

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whether there was probable cause to believe that Mr. Sachveda engaged in terrorist

activity. Nor was an indictment or information against Mr. Sachveda ever filed with a

court citing criminal charges on which his continued detention was based.

155.

While confined in Passaic County Jail, Mr. Sachveda was subjected to

many of the same unreasonable and excessively harsh conditions as Mr. Turkmen. He

was housed under extremely crowded conditions, forced to eat and sleep with individuals

charged with and/or convicted of violent crimes. He was also threatened by menacing

dogs.

156.

While confined in Passaic County Jail, Mr. Sachveda, on four occasions,

made written requests to consult with the Canadian Consulate. All four requests were

denied.

157.

On April 17, 2002, INS agents took Mr. Sachveda, in old clothes, from

Passaic County Jail to Newark Airport, putting him on a plane to Canada, though without

his personal identification or any money. Prior to his deportation, Mr. Sachveda

requested the return of these items. His requests were, however, denied.

158.

Mr. Sachveda continues to suffer the effects of his detention in the United

States long after his deportation. Upon his return to Canada, Canadian immigration

officials suspended his landed immigrant status, taking away Mr. Sachveda’s work

papers. A hearing on the matter is delayed until September or October 2002. The

presumption of guilt thus continues to attach to Mr. Sachveda after his deportation from

the United States, despite the fact that he has never been engaged in terrorist activity and

the complete absence of any evidence that he has been engaged in such activity.

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159.

Although Mr. Sachveda’s Canadian identification card was returned to

him, Defendants have refused to return most of his personal belongings, including two

motor vehicles and furniture confiscated from Mr. Sachveda at the time of his arrest. Mr.

Sachveda has repeatedly requested return of these items.

FIRST CLAIM FOR RELIEF (Fourth Amendment: Seizure)

160.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

161.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

162.

In detaining Plaintiffs and class members months longer than necessary to

secure their removal or voluntary departure from the United States without charging them

with any crime and without affording them a hearing before a neutral judicial officer to

determine whether there was probable cause to justify their continued detention,

Defendants, acting under color of law and their authority as federal officers, have

intentionally or recklessly seized Plaintiffs and class members in violation of the Fourth

Amendment to the Constitution.

163.

Plaintiffs and class members have no effective means of enforcing their

Fourth Amendment rights other than by seeking declaratory and other relief from the

Court.

164.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

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SECOND CLAIM FOR RELIEF (Fifth Amendment: Due Process)

165.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

166.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

167.

In detaining Plaintiffs and class members longer than necessary to secure

their removal or voluntary departure from the United States without any legitimate

immigration law enforcement purpose, and without evidence that they posed a danger or

flight risk, Defendants, acting under color of law and their authority as federal officers,

intentionally or recklessly subjected Plaintiffs and class members to arbitrary and

capricious detention, taking their liberty without due process of law in violation of the

Fifth Amendment to the Constitution.

168.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment due process rights other than by seeking declaratory and other relief

from the Court.

169.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

THIRD CLAIM FOR RELIEF (Fifth Amendment: Due Process)

170.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

171.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

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172.

By adopting, promulgating, and implementing the policy and practice

under which Plaintiffs and class members were unreasonably detained and subjected to

outrageous, excessive, cruel, inhuman, and degrading conditions of confinement,

Defendants, acting under color of law and their authority as federal officers, have

intentionally or recklessly deprived Plaintiffs and class members of their liberty interests

without due process of law in violation of the Fifth Amendment to the Constitution.

173.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment due process rights other than by seeking declaratory and other relief

from the Court.

174.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

FOURTH CLAIM FOR RELIEF (Fifth Amendment: Due Process)

175.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

176.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

177.

By adopting, promulgating, and implementing the policy and practice

under which Plaintiffs and class members were subjected to coercive and involuntary

custodial interrogation designed to overcome their will and coerce involuntary and

incriminating statements from them, Defendants, acting under color of law and their

authority as federal officers, have intentionally or recklessly violated the rights of

Plaintiffs and the class to due process of law under the Fifth Amendment to the

Constitution.

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178.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment due process rights other than by seeking declaratory and other relief

from the Court.

179.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

FIFTH CLAIM FOR RELIEF (Fifth Amendment: Equal Protection)

180.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

181.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

182.

In detaining Plaintiffs and class members longer than necessary to secure

their removal from the United States and subjecting them to harsh treatment not accorded

similarly-situated non-citizens, Defendants, acting under color of law and their authority

as federal officers, have singled out Plaintiffs and class members based on their race,

religion, and/or ethnic or national origin, and intentionally violated their rights under the

Fifth Amendment to the Constitution to equal protection of the law.

183.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment equal protection rights other than by seeking declaratory and other

relief from the Court.

184.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

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SIXTH CLAIM FOR RELIEF (Sixth Amendment: Right to a Speedy Trial )

185.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

186.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

187.

Defendants adopted, promulgated, and implemented policies under which

plaintiffs and class members were arrested and held for extensive periods of time in what

is tantamount to criminal detention without the filing of any indictment, information, or

other formal criminal charge, and were not brought to trial within a reasonable period of

time, resulting in oppressive and lengthy pretrial incarcerations. In doing so, Defendants

have intentionally or recklessly deprived Plaintiffs and class members of their right under

the Sixth Amendment to a speedy trial.

188.

Plaintiffs and class members have no effective means of enforcing their

right to a speedy trial that is guaranteed to them by the Sixth Amendment other than by

seeking declaratory and other relief from the Court.

189.

As a result of Defendants' unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

SEVENTH CLAIM FOR RELIEF (First Amendment: Free Exercise of Religion)

190.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

191.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

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192.

Defendants have adopted, promulgated, and implemented policies and

practices intended to deny Plaintiffs and class members the ability to practice and observe

their religion. These policies and practices have included, among other things, the

visitation of verbal and physical abuse upon Plaintiffs and class members, and the

deliberate denial of all means by which they could maintain their religious practices,

including their observance of Hallal food and daily prayer requirements. By such

mistreatment, Defendants, acting under color of law and their authority as federal officers, have intentionally or recklessly violated Plaintiffs= and class members= right to

free exercise of religion guaranteed to them under the First Amendment to the

Constitution.

193.

Plaintiffs and class members have no effective means of enforcing their

First Amendment rights other than by seeking declaratory and other relief from the Court.

194.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

EIGHTH CLAIM FOR RELIEF (Fifth Amendment: Confiscation of Personal Property)

195.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

196.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

197.

Defendants have adopted, promulgated, and implemented a policy and

practice of deliberately depriving Plaintiffs and class members of their personal property

without providing them with a remedy to recover that property. Defendants have refused

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to return to Plaintiffs and class members, at the time of their removal or voluntary

departure from the United States, the personal identification, money, and other valuable

personal items that Defendants confiscated from Plaintiffs and class members upon

arrest. In doing so, Defendants, acting under color of law and their authority as federal officers, have intentionally violated Plaintiffs= and class members= right to due process of

law under the Fifth Amendment to the United States Constitution.

198.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

199.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment rights other than by seeking declaratory and other relief from the

Court.

200.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

NINTH CLAIM FOR RELIEF (Customary International Law: Arbitrary Detention)

201.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

202.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

203.

The acts described herein constitute arbitrary detention of Plaintiffs and

class members in violation of the law of nations under the Alien Tort Claims Act, 28

U.S.C. ' 1350, in that the acts violated customary international law prohibiting arbitrary

detention as reflected, expressed, and defined in multilateral treaties and other

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international instruments, international and domestic judicial decisions, and other

authorities.

204.

Defendants are liable for said conduct in that they, acting under color of

law and their authority as federal officers, have directed, ordered, confirmed, ratified,

and/or conspired in bringing about the arbitrary detention of Plaintiffs and class

members.

205.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

were deprived of their freedom, separated from their families and forced to suffer severe

physical and mental abuse, and are entitled to monetary damages.

TENTH CLAIM FOR RELIEF (Customary International Law: Cruel, Inhuman, or Degrading Treatment)

206.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

207.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

208.

The acts described herein had the intent and the effect of grossly

humiliating and debasing the Plaintiffs and class members, forcing them to act against

their will and conscience, inciting fear and anguish, and breaking their physical or moral

resistance.

209.

The acts described herein constitute cruel, inhuman or degrading treatment

in violation of the law of nations under the Alien Tort Claims Act, 28 U.S.C. ' 1350, in

that the acts violated customary international law prohibiting cruel, inhuman or degrading

treatment as reflected, expressed, and defined in multilateral treaties and other

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international instruments, international and domestic judicial decisions, and other

authorities.

210.

Defendants are liable for said conduct in that Defendants, acting under

color of law and their authority as federal officers, directed, ordered, confirmed, ratified,

and/or conspired to cause the cruel, inhuman or degrading treatment of Plaintiffs and

class members.

211.

All Plaintiffs and class members were forced to suffer severe physical and

psychological abuse and agony and are entitled to monetary damages.

ELEVENTH CLAIM FOR RELIEF (Vienna Convention on Consular Relations: Consular Notification)

212.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

213.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

214.

Plaintiffs and class members were not notified by arresting authorities of

their right to communicate with consular officials as required by the Vienna Convention

on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77, Art. 36.

215.

When Plaintiffs Safi and Sachveda requested to speak with officials from

their respective consulates, Defendants further violated their Vienna Convention rights by

failing to respond to their requests without delay and notify the consular posts of their

detention. Vienna Convention, Art. 36(1).

216.

Violations of the right to consular access are direct treaty violations, as

specified above, and are also violations of customary international law.

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217.

As result of Defendants= unlawful conduct, Plaintiffs and class members

are entitled to monetary damages.

TWELFTH CLAIM FOR RELIEF (Excessive Force - SAFI)

218.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

219.

Plaintiff Safi brings this claim on his own behalf against Defendants John

Does 1-20.

220.

The intentional beatings of Plaintiff Safi by Defendants John Does 1-20

when Plaintiff was unarmed and did not pose a threat of death or grievous bodily injury

to Defendants or others, and when Defendants had no lawful authority to use deadly or

non-deadly force against him, was without justification or provocation, was excessive,

and was done with actual malice toward Plaintiff and with willful and wanton

indifference to and deliberate disregard for the constitutional rights of Plaintiff.

221.

The intentional beatings of Plaintiff Safi by Defendants John Does 1-20

violated Plaintiff=s rights as guaranteed by the Fourth and Fifth Amendments to the

Constitution, for which such officers are individually liable.

222.

As a proximate result of the beatings by Defendants John Does 1-20,

Plaintiff Safi has sustained permanent injuries and incurred medical bills and other

expenses. These injuries have caused and will continue to cause him great pain and

suffering, both mental and physical.

223.

As a result of the unlawful conduct of Defendant John Does 1-20, Plaintiff

Safi is entitled to monetary damages.

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THIRTEENTH CLAIM FOR RELIEF (Excessive Force - JAFFRI)

224.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

225.

Plaintiff Jaffri brings this claim on his own behalf against Defendants John

Does 1-20.

226.

The intentional beatings of Plaintiff Jaffri by Defendants John Does 1-20

when Plaintiff was unarmed and did not pose a threat of death or grievous bodily injury

to Defendants or others, and when Defendants had no lawful authority to use deadly or

non-deadly force against him, was without justification or provocation, was excessive,

and was done with actual malice toward Plaintiff and with willful and wanton

indifference to and deliberate disregard for the constitutional rights of Plaintiff.

227.

The intentional beatings of Plaintiff Jaffri by Defendants John Does 1-20

violated Plaintiff=s rights as guaranteed by the Fourth and Fifth Amendments to the

Constitution, for which such officers are individually liable.

228.

As a proximate result of the beatings by Defendants John Does 1-20,

Plaintiff Jaffri has sustained permanent injuries and incurred medical bills and other

expenses. These injuries have caused and will continue to cause him great pain and

suffering, both mental and physical.

229.

As a result of the unlawful conduct of Defendant John Does 1-20, Plaintiff

Jaffri is entitled to monetary damages.

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FOURTEENTH CLAIM FOR RELIEF (Excessive Force -EBRAHIM)

230.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

231.

Plaintiff Ebrahim brings this claim on his own behalf against Defendants

John Does 1-20.

232.

The intentional beatings of Plaintiff Ebrahim by Defendants John Does 1-

20 when Plaintiff was unarmed and did not pose a threat of death or grievous bodily

injury to Defendants or others, and when Defendants had no lawful authority to use

deadly or non-deadly force against him, was without justification or provocation, was

excessive, and was done with actual malice toward Plaintiff and with willful and wanton

indifference to and deliberate disregard for the constitutional rights of Plaintiff.

233.

The intentional beatings of Plaintiff Ebrahim by Defendants John Does 1-

20 violated Plaintiff=s rights as guaranteed by the Fourth and Fifth Amendments to the

Constitution, for which such officers are individually liable.

234.

As a proximate result of the beatings by Defendants John Does 1-20,

Plaintiff Ebrahim has sustained permanent injuries and incurred medical bills and other

expenses. These injuries have caused and will continue to cause him great pain and

suffering, both mental and physical.

235.

As a result of the unlawful conduct of Defendant John Does 1-20, Plaintiff

Ebrihim is entitled to monetary damages.

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FIFTEENTH CLAIM FOR RELIEF (Excessive Force - IBRAHIM)

236.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

237.

Plaintiff Ibrahim brings this claim on his own behalf against Defendants

John Does 1-20.

238.

The intentional beatings of Plaintiff Ibrahim by Defendants John Does 1-

20 when Plaintiff was unarmed and did not pose a threat of death or grievous bodily

injury to Defendants or others, and when Defendants had no lawful authority to use

deadly or non-deadly force against him, was without justification or provocation, was

excessive, and was done with actual malice toward Plaintiff and with willful and wanton

indifference to and deliberate disregard for the constitutional rights of Plaintiff.

239.

The intentional beatings of Plaintiff Ibrahim by Defendants John Does 1-

20 violated Plaintiff=s rights as guaranteed by the Fourth and Fifth Amendments to the

Constitution, for which such officers are individually liable.

240.

As a proximate result of the beatings by Defendants John Does 1-20,

Plaintiff Ibrahim has sustained permanent injuries and incurred medical bills and other

expenses. These injuries have caused and will continue to cause him great pain and

suffering, both mental and physical.

241.

As a result of the unlawful conduct of Defendant John Does 1-20, Plaintiff

Ibrahim is entitled to monetary damages.

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SIXTEENTH CLAIM FOR RELIEF (Excessive Force – BALOCH)

242.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

243.

Plaintiff Baloch brings this claim on his own behalf against Defendants

John Does 1-20.

244.

The intentional beatings of Plaintiff Baloch by Defendants John Does 1-20

when Plaintiff was unarmed and did not pose a threat of death or grievous bodily injury

to Defendants or others, and when Defendants had no lawful authority to use deadly or

non-deadly force against him, was without justification or provocation, was excessive,

and was done with actual malice toward Plaintiff and with willful and wanton

indifference to and deliberate disregard for the constitutional rights of Plaintiff.

245.

The intentional beatings of Plaintiff Baloch by Defendants John Does 1-20

violated Plaintiff=s rights as guaranteed by the Fourth and Fifth Amendments to the

Constitution, for which such officers are individually liable.

246.

As a proximate result of the beatings by Defendants John Does 1-20,

Plaintiff Baloch has sustained permanent injuries and incurred medical bills and other

expenses. These injuries have caused and will continue to cause him great pain and

suffering, both mental and physical.

247.

As a result of the unlawful conduct of Defendant John Does 1-20, Plaintiff

Baloch is entitled to monetary damages.

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SEVENTEENTH CLAIM FOR RELIEF (Delays in Serving Charging Documents - Fifth Amendment: Due Process)

248.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

249.

Plaintiffs Ebrahim, Ibrahim, Sachveda, and Jaffri bring this claim on their

own behalf and on behalf of the class against all Defendants.

250.

In delaying the issuance and service of charging documents (known as

Notices to Appear) on the post-9/11 detainees, Defendants have impaired the ability of

the detainees to know the charges on which they are being held, obtain legal counsel, and

seek release on bond. Further, Defendants, acting under color of law and their authority

as federal officers, have intentionally or recklessly deprived Plaintiffs and class members

of their due process rights under the Fifth Amendment to the Constitution.

251.

Plaintiffs Ebrahim, Ibrahim, Sachveda, and Jaffri and class members have

no effective means of enforcing their Fifth Amendment rights other than by seeking

declaratory and other relief from the Court.

252.

As a result of Defendants= unlawful conduct, Plaintiffs Ebrahim, Ibrahim,

Sachveda, and Jaffri and class members have suffered emotional distress, humiliation,

embarrassment, and monetary damages.

EIGHTEENTH CLAIM FOR RELIEF (Blanket No Bond Policy – Fifth Amendment: Due Process)

253.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

254.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

70

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255.

Defendants applied a blanket no bond policy to all post-9/11 detainees

without regard to whether the detainee posed a flight risk or a danger and thereby

deprived Plaintiffs and other class members of their right under the Fifth Amendment’s

Due Process Clause not to be detained arbitrarily in the absence of any finding or

evidence that they posed a danger or flight risk.

256.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment rights other than by seeking declaratory and other relief from the

Court.

257.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

NINTEENTH CLAIM FOR RELIEF (Blanket No Bond Policy – Fifth Amendment: Equal Protection)

258.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

259.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

260.

Defendants applied a blanket no bond policy to all post-9/11 detainees

without regard to whether the detainee posed a flight risk or a danger. Defendants

arrested and denied bond to “of high interest” detainees on little or no evidence of

terrorist connections but instead due to their ethnic or religious identity in violation of

their right to equal protection of the laws under the Fifth Amendment’s Due Process

Clause. Thus, Defendants intentionally or recklessly violated rights guaranteed to

Plaintiffs and class members by the Fifth Amendment to the United States Constitution.

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261.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment rights other than by seeking declaratory and other relief from the

Court.

262.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTIETH CLAIM FOR RELIEF (Assignment to SHU – Fifth Amendment: Due Process)

263.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

264.

Plaintiffs Jaffri, Ebrahim, Ibrahim, Baloch, and Safi bring this claim on

their own behalf and on behalf of the class against all Defendants.

265.

By adopting, promulgating, and implementing the policy and practice

under which Plaintiffs Jaffri, Ebrahim, Ibrahim, Baloch, and Safi and class members were

classified as “of high interest,” “Witness Security,” and/or “Management Interest Group

155” detainees in an arbitrary and unreasonable manner, without any defined criteria,

individualized assessment of dangerousness or risk of flight, contemporaneous review, or

process of any sort, and by which classifications Plaintiffs experienced unnecessary and

unreasonable restrictions on their liberty, Defendants, acting under color of law and their

authority as federal officers, have intentionally or recklessly violated the rights of

Plaintiffs and the class to procedural due process of law under the Fifth Amendment to

the United States Constitution.

266.

Plaintiffs Jaffri, Ebrahim, Ibrahim, Baloch, and Safi and class members

have no effective means of enforcing their Fifth Amendment rights other than by seeking

declaratory and other relief from the Court.

72

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267.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTY-FIRST CLAIM FOR RELIEF (Communications Blackout and Interference with Counsel
– First Amendment)

268.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

269.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

270.

By adopting, promulgating, and implementing the policy and practice

under which Plaintiffs and class members were subjected to a “communications

blackout” and other measures while in detention that interfered with their access to

lawyers and the courts, Defendants intentionally or recklessly violated Plaintiffs’ rights to

obtain access to legal counsel and to petition the courts for redress of their grievances, in

violation of their rights under the First Amendment of the United States Constitution.

271.

Plaintiffs and class members have no effective means of enforcing their

First Amendment rights other than by seeking declaratory and other relief from the Court.

272.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

TWENTY-SECOND CLAIM FOR RELIEF (Communications Blackout and Interference with Counsel
– Fifth Amendment: Due Process)

273.

Plaintiffs incorporate by reference each and every allegation contained in

the preceding paragraphs as if set forth fully herein.

73

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274.

Plaintiffs bring this claim on their own behalf and on behalf of the class

against all Defendants.

275.

By adopting, promulgating, and implementing the policy and practice

under which Plaintiffs and class members were subjected to a “communications

blackout” and other measures while in INS detention that interfered with their access to

lawyers and the courts, Defendants intentionally or recklessly violated Plaintiffs’ rights to

obtain access to legal counsel and to petition the courts for redress of their grievances, in

violation of their rights under the Due Process Clause of the Fifth Amendment to the

United States Constitution.

276.

Plaintiffs and class members have no effective means of enforcing their

Fifth Amendment rights other than by seeking declaratory and other relief from the

Court.

277.

As a result of Defendants= unlawful conduct, Plaintiffs and class members

have suffered emotional distress, humiliation, embarrassment, and monetary damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs and class members respectfully request that the Court

enter a class-wide judgment:

1. Certifying this suit as a class action;

2. Declaring that Defendants= actions, practices, customs, and policies, and those

of all persons acting on their behalf and/or their agents and/or employees, alleged herein,

are illegal and violate the constitutional rights of Plaintiffs and class members as to each

applicable count;

74

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3. Declaring that each individual Plaintiff’s detention was unjustified, unconstitutional, unlawful and without probable cause to believe that he had any involvement in the September 11th terrorist attacks or other terrorist activity;
4. Enjoining Defendants to return immediately to Plaintiffs and class members all personal identification, money and valuable personal items confiscated from them;
5. Awarding compensatory and punitive damages to Plaintiffs and class members for the constitutional and customary international law violations they suffered in an amount that is fair, just, reasonable, and in conformity with the evidence;
6. Appointing a neutral Special Master to assist in fashioning remedies and to monitor the implementation of those remedies;
7. Ordering such further relief as necessary to ensure that Defendants operate the MDC and Passaic facilities in compliance with the United States Constitution and customary international law; and
8. Ordering such further relief as the Court considers just and proper.

Dated: New York, New York June 18, 2003

Respectfully submitted,
Center for Constitutional Rights
By: _s/Nancy Chang_____ Nancy Chang (NC 5331)
Barbara J. Olshansky (BO 3635) Rachel Meeropol (RM 3878) Shayana Kadidal Jennifer Green (JG 3169) 666 Broadway, 7th Floor New York, New York 10012 Tel.: (212) 614-6439 or 614-6420

75

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Fax: (212) 614-6499
CCR Cooperating Counsel David Cole c/o Georgetown University Law Center 600 New Jersey Avenue, N.W. Washington, D.C. 20001 Tel.: (202) 662-9078
Paul Hoffman Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP 723 Ocean Front Walk Venice, California 90201 Tel.: (310) 396-0731
Martin Stolar (MS1576) 351 Broadway Ave. New York, New York 10013 Tel.: (212) 219-1919
Attorneys for Plaintiffs
Of Counsel: C. William Phillips Michael Winger Vijay Shanker Stephanie Yu COVINGTON & BURLING 1330 Avenue of the Americas New York, New York 10019
William Goodman Moore & Goodman 740 Broadway New York, New York 10003
Arturo J. Carrillo Cynthia Soohoo HUMAN RIGHTS CLINIC COLUMBIA LAW SCHOOL 435 West 116th Street, Box C-16 New York, New York 10027
76

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TABLE OF CONTENTS
CHAPTER 1: INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. Methodology of this Review . . . . . . . . . . . . . . . . . . . . . . . . . 5 III. Organization of this Report . . . . . . . . . . . . . . . . . . . . . . . . . 8
CHAPTER 2: ARREST AND PROCESSING OF ALIENS IN RESPONSE TO THE SEPTEMBER 11 ATTACKS . . . . . . . . . . . . . . . 10 I. Initial Law Enforcement Response . . . . . . . . . . . . . . . . . . .10 A. Initial FBI Response . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Department of Justice Response . . . . . . . . . . . . . . . . 12 C. New York FBI’s Response . . . . . . . . . . . . . . . . . . . . . 13 D. SIOC Working Group . . . . . . . . . . . . . . . . . . . . . . . . 15 II. Arrests of September 11 Detainees . . . . . . . . . . . . . . . . . . 15 III. Assignment to a Detention Facility . . . . . . . . . . . . . . . . . . 17 A. FBI Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17 B. INS Housing Determination . . . . . . . . . . . . . . . . . . . .18 C. BOP Confinement Decisions . . . . . . . . . . . . . . . . . . . 19 D. Department of Justice’s Role . . . . . . . . . . . . . . . . . . .20 IV. Demographics of September 11 Detainees . . . . . . . . . . . . .20 V. Processing of September 11 Detainees from Arrest to Clearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
CHAPTER 3: CHARGING OF SEPTEMBER 11 DETAINEES . . . . . . . . 27 I. INS Regulations and Policies Governing the Timing of Charging Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 A. The Charging Determination . . . . . . . . . . . . . . . . . . . 27 B. Serving the Notice to Appear (NTA) . . . . . . . . . . . . . . 28 II. Service of NTAs on September 11 Detainees . . . . . . . . . . . 29 III. Reasons for Delay in Serving NTAs . . . . . . . . . . . . . . . . . . 30 A. Pending Criminal Charges . . . . . . . . . . . . . . . . . . . . . 30 B. Delays Caused by Logistical Disruptions in New York City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31 C. Delays Caused by INS Headquarters Review of NTAs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 D. Delays Caused by Transfers of September 11 Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 IV. OIG Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
CHAPTER 4: THE CLEARANCE PROCESS . . . . . . . . . . . . . . . . . . . . 37 I. “Hold Until Cleared” Policy . . . . . . . . . . . . . . . . . . . . . . . . 37 A. Origins of Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 B. Implementation of Policy . . . . . . . . . . . . . . . . . . . . . . 40 II. INS Operational Orders . . . . . . . . . . . . . . . . . . . . . . . . . . .43

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III. The Clearance Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 A. Determining Which Aliens Would be Subject to the Clearance Process . . . . . . . . . . . . . . . . . . . . . .46 B. FBI Field Office Role in the Clearance Investigation . . 48 C. CIA Name Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
IV. Timing of Clearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 V. Delays in the Clearance Process . . . . . . . . . . . . . . . . . . . . 52
A. Inclusion of New York Arrests on the INS’s “Special Interest” List Requiring Clearances . . . . . . . 53 1. Background to the New York Custody List . . . . 53 2. Merger of Lists . . . . . . . . . . . . . . . . . . . . . . . . . 55
B. Delays in the Field Portion of the Clearance Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
C. CIA Name Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 D. Examples of Delays . . . . . . . . . . . . . . . . . . . . . . . . . . 62 E. Knowledge of the Delays in the Clearance Process. . . 65 VI. FBI Watch List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 VII. OIG Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
CHAPTER 5: THE DEPARTMENT’S “NO BOND” POLICY FOR SEPTEMBER 11 DETAINEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 I. Background on Immigration Law . . . . . . . . . . . . . . . . . . . 72 II. Department’s Strategy for Maintaining Detainees in Custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 III. INS Efforts to Maintain Detainees in Custody . . . . . . . . . . 76 A. Initial “No Bond” Determination . . . . . . . . . . . . . . . . 76 B. Pearson Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 C. Creation of a Bond Unit at INS Headquarters . . . . . . 77 D. Opposing Release at Bond Hearings . . . . . . . . . . . . . 78 1. Concerns About Lack of Evidence for Bond Hearings and Impact of Delays in the Clearance Process . . . . . . . . . . . . . . . . . . . . . . 78 2. Difficulties Presented by New York Cases Added to INS Special Interest List . . . . . . . . . . 80 3. INS Attempts to Revise Bond Policy . . . . . . . . . . 81 E. Proposed Inter-Agency Memoranda . . . . . . . . . . . . . . 84 F. Impact of Pearson Order . . . . . . . . . . . . . . . . . . . . . . 85 IV. OIG Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
CHAPTER 6: REMOVAL OF SEPTEMBER 11 DETAINEES . . . . . . . . 91 I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 II. Discussion of the Limits of the INS’s Detention Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 III. Detainees’ Lawsuits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 IV. Policy Change Allowing Detainees to Be Removed Without FBI Clearance . . . . . . . . . . . . . . . . . . . . . . . . . . 100

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V. OLC Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106 VI. Post-Order Custody Reviews of September 11 Detainees . 107 VII. OIG Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
CHAPTER 7: CONDITIONS OF CONFINEMENT AT THE METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK . . . . . . . . . . . . . . . . . . . . . . 111
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 II. Initial Communications Blackout After September 11 . . . 112 III. Impact of Detainee Classification . . . . . . . . . . . . . . . . . . 115
A. Detainees’ Classification . . . . . . . . . . . . . . . . . . . . . 115 B. MDC’s Special Housing Unit (SHU) . . . . . . . . . . . . . 118 C. ADMAX SHU Policies and Procedures . . . . . . . . . . . 124 D. Detainee Complaint Process . . . . . . . . . . . . . . . . . . 125 IV. Housing Assignment of September 11 Detainees . . . . . . . 126 A. Assignment of September 11 Detainees to the
ADMAX SHU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 B. Reassigning September 11 Detainees to the
General Population . . . . . . . . . . . . . . . . . . . . . . . . 127 1. Centralizing the Notification Process . . . . . . . 127 2. Inconsistencies in Detainee Reassignment Procedures . . . . . . . . . . . . . . . 129
V. Access to Legal Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 130 A. Legal Telephone Calls . . . . . . . . . . . . . . . . . . . . . . . 130 B. Attorney Visits . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135 C. Pro Bono Attorney List . . . . . . . . . . . . . . . . . . . . . . 137 D. Social Visits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 E. Contact with Foreign Consulates . . . . . . . . . . . . . . . 140
VI. Allegations of Physical and Verbal Abuse . . . . . . . . . . . . 142 A. OIG Site Visit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143 B. OIG Investigation of Abuse . . . . . . . . . . . . . . . . . . . 144 C. FBI and BOP Investigations of Abuse . . . . . . . . . . . .146 D. Allegations of Harassment . . . . . . . . . . . . . . . . . . . .147 E. Reporting Allegations of Abuse . . . . . . . . . . . . . . . . 148 F. MDC Videotapes . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
VII. Other Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 A. Medical Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 B. Recreation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .152 C. Lighting in the ADMAX SHU . . . . . . . . . . . . . . . . . . 153 D. Personal Hygiene Items . . . . . . . . . . . . . . . . . . . . . . 155 E. Hunger Strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
VIII. OIG Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
CHAPTER 8: CONDITIONS OF CONFINEMENT AT THE PASSAIC COUNTY JAIL IN PATERSON, NEW JERSEY . . . . . . .165
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

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II. Background on Passaic County Jail . . . . . . . . . . . . . . . . 166 III. Housing of Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
A. Processing of September 11 Detainees . . . . . . . . . . . 167 B. SDU Housing Reviews . . . . . . . . . . . . . . . . . . . . . . . 170 IV. Access to Legal Counsel . . . . . . . . . . . . . . . . . . . . . . . . . 172 A. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172 B. Legal Telephone Calls . . . . . . . . . . . . . . . . . . . . . . . 174 C. Pro Bono Attorney List . . . . . . . . . . . . . . . . . . . . . . 175 D. Legal Rights Presentations . . . . . . . . . . . . . . . . . . . 176 V. Allegations of Physical and Verbal Abuse . . . . . . . . . . . . 177 VI. Other Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 A. Medical Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 B. Hunger Strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 C. Recreation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .182 VII. INS Newark District Monitoring of September 11 Detainees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .182 VIII. OIG Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
CHAPTER 9: OIG RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . 186 I. Uniform Arrest and Detainee Classification Policies . . . . 186 II. Inter-Agency Cooperation on Detainee Issues . . . . . . . . . 188 III. FBI Clearance Process . . . . . . . . . . . . . . . . . . . . . . . . . . 188 IV. Notices to Appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 V. Raising Issues of Concern to Senior Department Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 VI. BOP Housing of Detainees . . . . . . . . . . . . . . . . . . . . . . . 191 VII. Oversight of Detainees Housed in Contract Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 VIII. Other Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193
CHAPTER 10: CONCLUSIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195

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TABLE OF FIGURES AND TABLES
Figure 1: Age Ranges for the September 11 Detainees . . . . . . . . . . . 21 Figure 2: Nationality of September 11 Detainees . . . . . . . . . . . . . . . 21 Figure 3: Arrest Location of September 11 Detainees . . . . . . . . . . . . 22 Figure 4: September 11 Detainee Arrests (By Week) . . . . . . . . . . . . . 22 Figure 5: September 11 Detainee Arrests (By Month) . . . . . . . . . . . . 23 Figure 6: Processing September 11 Detainees from Arrest
to Clearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Table 1: Number of Days Between Arrest Date and
NTA Served Date for September 11 Detainees. . . . . . . . . . .30 Table 2: Timing of NTA Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Table 3: Number of Days from Arrest to FBI HQ Clearance . . . . . . . 52 Figure 7: Number of Days from Arrest to FBI HQ Clearance . . . . . . . 52 Figure 8: Detainees Removed per Month . . . . . . . . . . . . . . . . . . . . 105 Figure 9: Number of Days from Arrest Date to Removed/
Released Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Figure 10: Information Regarding Post-Order Custody
Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107 Figure 11: Weekly Average Number of INS Detainees
Held at Passaic County Jail . . . . . . . . . . . . . . . . . . . . . . .168

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Appendix A Appendix B Appendix C
Appendix D Appendix E Appendix F
Appendix G Appendix H Appendix I Appendix J Appendix K

TABLE OF APPENDICES
Glossary of Names in the Report Glossary of Terms
Organizational Charts Department of Justice Federal Bureau of Investigation Immigration and Naturalization Service Bureau of Prisons
INS Notice To Appear Form
FBI Headquarters Detainee Clearance Memorandum INS Arrest Form (Record of Deportable/Inadmissible Alien)
INS Custody Determination Form INS Headquarters Release Memorandum
INS Headquarters Bond Memorandum BOP Reassignment to General Population
Letter from Deputy Attorney General Thompson

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I. BACKGROUND

CHAPTER ONE INTRODUCTION

On September 11, 2001, terrorists hijacked four airplanes and flew two of them into the World Trade Center Towers in New York City and one into the Pentagon in Arlington, Virginia. The fourth plane crashed into a field in southwestern Pennsylvania before it could strike a target in Washington, D.C. The attacks killed more than 3,100 people, including all 246 people aboard the 4 airplanes.

The Federal Bureau of Investigation (FBI) immediately initiated a massive investigation, called “PENTTBOM,” into this coordinated terrorist attack. The FBI investigation focused on identifying the terrorists who hijacked the airplanes and anyone who aided their efforts. In addition, the FBI worked with other federal, state, and local law enforcement agencies to prevent follow-up attacks in this country and against U.S. interests abroad.

Shortly after the attacks, the Attorney General directed the FBI and other federal law enforcement personnel to use “every available law enforcement tool” to arrest persons who “participate in, or lend support to, terrorist activities.”1 One of the principal responses by law enforcement authorities after the September 11 attacks was to use the federal immigration laws to detain aliens suspected of having possible ties to terrorism. Within 2 months of the attacks, law enforcement authorities had detained, at least for questioning, more than 1,200 citizens and aliens nationwide.2 Many of these individuals were questioned and subsequently released without being charged with a criminal or immigration offense. Many others, however, were arrested and detained for violating federal immigration law.

1 Memorandum from Attorney General John Ashcroft to United States Attorneys entitled “Anti-Terrorism Plan” (September 17, 2001).
2 In the weeks and months following the attacks, various totals of the number of people arrested in connection with the September 11 investigation were released by the Department of Justice or appeared in media accounts. A senior official in the Department’s Office of Public Affairs told the Office of the Inspector General that in the weeks after the terrorist attacks her office provided frequent updates to the media on the number of persons questioned, arrested, and detained by federal, state, and local law enforcement officials. According to this official, the Public Affairs Office stopped reporting the cumulative totals after the number reached approximately 1,200, because the statistics became confusing.

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Our review determined that the Immigration and Naturalization Service (INS) detained 762 aliens as a result of the PENTTBOM investigation. Of these 762 aliens, 24 were in INS custody on immigration violations prior to the September 11 attacks. The remaining 738 aliens were arrested between September 11, 2001, and August 6, 2002, as a direct result of the FBI’s PENTTBOM investigation. All 762 detainees were placed on what became known as an “INS Custody List” because of the FBI’s assessment that they may have had a connection to the September 11 attacks or terrorism in general, or because the FBI was unable, at least initially, to determine whether they were connected to terrorism.
The Government held these aliens in a variety of federal, local, and private detention facilities across the United States while the FBI investigated them for ties to the September 11 attacks or terrorism in general. These facilities included several Federal Bureau of Prisons (BOP) institutions such as the Metropolitan Detention Center in Brooklyn, New York; the Federal Detention Center in Oakdale, Louisiana; and the U.S. Penitentiary in Leavenworth, Kansas; INS facilities such as the Krome Service Processing Center in Miami, Florida; and state and local facilities under contract with the INS to house federal immigration detainees, such as the Passaic County Jail in Paterson, New Jersey, and the Hudson County Correctional Center in Kearny, New Jersey.
Soon after these detentions began, the media began to report allegations of mistreatment of the detainees. For example, detainees and their attorneys alleged that the detainees were not informed of the charges against them for extended periods of time; were not permitted contact with attorneys, their families, and embassy officials; remained in detention even though they had no involvement in terrorism; or were physically abused, verbally abused, and mistreated in other ways while detained.
Several individual detainees and non-profit organizations filed lawsuits against the Department of Justice (Department) protesting the lack of public information about the detainees and the length and conditions of the detainees’ confinement. For example, the Center for National Security Studies brought suit against the Department under the Freedom of Information Act seeking information about the detainees, including their names and where they were being held.3 Five detainees filed a class action lawsuit alleging they were physically abused, verbally abused, and held without a legitimate immigration or law enforcement purpose long after they received final removal or voluntary
3 Center for National Security Studies v. United States Department of Justice, 01-civ-2500 (D.D.C. filed December 6, 2002).
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departure orders.4 In addition, advocacy organizations such as Amnesty International and the Lawyers Committee for Human Rights issued reports asserting mistreatment of the detainees or mishandling of their cases.5
Pursuant to our responsibilities under the USA PATRIOT Act (Patriot Act) and the Inspector General Act, the Department of Justice Office of the Inspector General (OIG) initiated this review to examine the treatment of detainees arrested in connection with the Department’s September 11 terrorism investigation.6 Specifically, the OIG’s review focused on:
• Issues affecting the length of the detainees’ confinement, including the process undertaken by the FBI and others to clear individual detainees of a connection to the September 11 attacks or terrorism in general;
• Bond determinations for detainees;
• The removal process and the timing of removal; and
• Conditions of confinement experienced by detainees, including their access to legal counsel.
We focused our review on INS detainees housed at two facilities – the BOP’s Metropolitan Detention Center (MDC) in Brooklyn and the Passaic County Jail (Passaic) in Paterson, New Jersey. We chose these two facilities because they held the majority of September 11 detainees and were the focus of many complaints about detainee mistreatment.
Our review did not seek to examine all aspects of the Department’s terrorism investigation, including the specific investigative techniques involved in the September 11 investigation or the decisions made by federal, state, and
4 Turkmen v. Ashcroft, 02-civ-2307 (E.D.N.Y. filed April 17, 2002).
5 See, e.g., “Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees,” Human Rights Watch (August 2002); “A Year of Loss: Reexamining Civil Liberties Since September 11,” Lawyers Committee for Human Rights (September 5, 2002).
6 Pub. L. No. 107-56 (2001). The USA PATRIOT Act was signed by the President on October 26, 2001, approximately six weeks after the September 11 terrorist attacks. The Patriot Act provides new or enhanced law enforcement authorities, including the sharing of foreign intelligence information, increased penalties for money laundering and other financial crimes, and stricter controls on immigration. In addition, Section 1001 of the Patriot Act directs the OIG to receive and review claims of civil rights or civil liberties violations by Department employees.
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local law enforcement on why to detain specific individuals.7 Additional issues beyond the scope of this review include the reasons and justifications for the Department’s decision to limit public release of information concerning arrests related to the ongoing terrorism investigation, its decision to close immigration proceedings to the public, and its use of voluntary interviews for certain categories of aliens.8 Several lawsuits related to these issues are ongoing. In addition, our review did not examine the Department’s use of material witness warrants to detain certain individuals in connection with its terrorism investigation, another issue currently being litigated in the courts.9
Rather, our review focused on the treatment of aliens who were held on federal immigration charges in connection with the September 11 investigation. We examined the reasons why many of the detainees experienced prolonged confinement. In addition, we examined the detainees’ conditions of confinement, including their access to counsel, access to medical care, and allegations of physical or verbal abuse by correctional officers.
In this report, we discuss the actions of senior managers at the Department, the FBI, the INS, and the BOP, who established the broad policies and led the investigation in response to the September 11 attacks; the actions of the INS, which processed and detained many of the aliens arrested in the aftermath of September 11; and the actions of the BOP, which housed many of the detainees.
7 Some constitutional arguments have been raised regarding the Department’s treatment of September 11 detainees. The claims were made in a variety of contexts, some of which are inapplicable in the immigration context and some of which are beyond the scope of this report. Removal proceedings are matters of civil rather than criminal law. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Because they are not criminal proceedings, some constitutional protections that apply in the context of a criminal prosecution do not apply in a removal proceeding. For example, immigration detainees have no Sixth Amendment right to counsel. While they are permitted to be represented by an attorney, they must find and pay for the attorney themselves, unlike in criminal cases where the Government provides defendants with an attorney if they are unable to pay for counsel.
8 For example, on November 9, 2001, the Department and the FBI sought voluntary interviews with approximately 5,000 male visitors or foreign nationals between the ages of 18 and 33 who had entered the United States after January 2000 from countries “where there have been strong al Qaeda presences.” See Attorney General John Ashcroft, Press Conference (March 20, 2002).
9 A material witness warrant can be obtained from a judge upon a showing that the testimony of a person is material to a criminal proceeding and that it may become impracticable to secure the presence of the person by subpoena. See 18 U.S.C. § 3144. A person held on such a warrant is referred to as a “material witness.” See United States v. Awadallah, 202 F. Supp. 2d. 55 (S.D.N.Y. 2002).
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In conducting our review, we were mindful of the circumstances confronting the Department and the country as a result of the September 11 attacks, including the massive disruptions they caused. The Department was faced with monumental challenges, and Department employees worked tirelessly and with enormous dedication over an extended period to meet these challenges. It is also important to note that nearly all of the 762 aliens we examined violated immigration laws, either by overstaying their visas, by entering the country illegally, or some other immigration violation.
II. METHODOLOGY OF THIS REVIEW
The OIG conducted interviews, fieldwork, and analysis for this review from March 2002 until March 2003. As noted above, we focused on two detention facilities, the MDC in Brooklyn, New York, and the Passaic County Jail in Paterson, New Jersey. We chose the MDC because it housed 84 aliens arrested in the aftermath of the September 11 terrorist attacks. In addition, the MDC received widespread media coverage for allegations of abuse against detainees and for the restrictive conditions of confinement it imposed on the detainees. We selected Passaic because it housed 400 aliens arrested in connection with the September 11 terrorism investigation – the most in any single facility – and, like the MDC, was the subject of many media articles regarding the treatment of detainees.
In this review, “September 11 detainees” are defined as aliens held on immigration violations in connection with the investigation of the September 11 attacks. The FBI categorized these aliens as either “of interest,” “of high interest,” or “of undetermined interest” to its terrorism investigation. The INS treated all three categories as “September 11 detainees,” and sometimes referred to them as “special interest” or “of interest” detainees.10
As noted above, the Department detained 762 aliens on immigration charges in connection with its terrorism investigation between September 2001 and August 2002. From the total of 475 September 11 detainees held at the MDC and Passaic,11 we selected a sample of 119 detainees – 53 held at the MDC and 66 confined at Passaic – to examine their detention experiences in detail.
Our MDC sample of 53 detainees was composed of 19 aliens who were being held at the facility during our site visit in May 2002; a random sample of 30 detainees previously held at the MDC but released or transferred prior to
10 In this report we generally refer to all three FBI categories collectively as “of interest,” unless otherwise noted.
11 Nine September 11 detainees were held at both Passaic and the MDC.
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our May 2002 visit; and 4 detainees whose experiences at the MDC were the subject of media articles.
Our Passaic sample of 66 detainees was composed of 30 aliens reportedly held at the facility immediately prior to our site visit in May 2002; a random sample of 30 detainees held at Passaic but released or transferred prior to our May 2002 visit; and 6 detainees whose detentions at Passaic were the subject of media articles.12
We interviewed 32 detainees in these sample groups – 19 housed at the MDC, 13 at Passaic – with their attorneys present if they requested. We also separately interviewed seven immigration attorneys who represented September 11 detainees held at the MDC or Passaic.
In addition, we reviewed the INS Alien Files (known as “A-Files”) of 104 detainees from our sample of 119 September 11 detainees: 44 of the 53 detainees in our MDC sample and 60 of the 66 detainees in our Passaic sample.13 The INS was unable to provide us with the remaining 15 A-Files for these detainees. At the MDC and Passaic, we also reviewed the facilities’ records pertaining to the 119 detainees in our samples, including their administrative, disciplinary, and medical files. In addition, we reviewed available FBI Headquarters and FBI field office records for 54 September 11 detainees identified by the INS on January 23, 2002, as having been held longer than 90 days after receiving voluntary departure or removal orders.14
We also examined INS and BOP policies and procedures relating to immigration charging, conditions of confinement, and access to counsel. These included agency detention standards as well as specific policies applicable to the MDC and Passaic that were developed prior to and after the September 11 attacks. We focused on how the BOP and INS implemented these standards, and we examined the actions of managers at the Headquarters and local levels regarding their adherence to these policies. In particular, we examined the following documents during our analysis:
• A database maintained by the INS’s Custody Review Unit (CRU) that contains extensive INS records of the investigative and litigation histories of the September 11 detainees;
12 The INS provided us with a list of 30 September 11 detainees who were being held at Passaic in April 2002. However, when we conducted our site visit in May 2002, the INS had released or transferred 17 of the 30 detainees.
13 The A-File, maintained by the INS, contains an alien’s U.S. immigration history.
14 See Chapter 6 for a discussion of final orders of removal.
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• A second CRU-maintained database that depicts the detention history of each September 11 detainee;
• A document used by FBI Headquarters to track the status of the detainee clearance process;
• The list of September 11 detainees cleared of connections to terrorism by the FBI New York Field Office (this FBI office conducted clearance investigations on more than 500 of the 762 September 11 detainees);
• FBI Headquarters files for a sample of 54 September 11 detainees maintained by the unit that coordinated the detainee clearance process, as well as corresponding FBI field office files for 46 of those 54 detainees; and
• The BOP’s list of September 11 detainees held at the MDC.
In addition, we conducted more than 50 interviews of officials at the FBI, INS, BOP, and the Department of Justice regarding their involvement in developing and implementing the policies concerning the apprehension, detainment, investigation, and adjudication of September 11 detainee cases. Among the officials we interviewed were the Attorney General, the Deputy Attorney General (DAG), the Associate Deputy Attorney General responsible for immigration issues, and various officials in their offices; the Assistant Attorney General for the Criminal Division and attorneys from the Criminal Division involved in the September 11 investigation; the INS Commissioner; the INS Executive Associate Commissioner for Field Operations, the INS General Counsel, and a variety of other INS attorneys and staff; the FBI Director, the former Deputy Director, General Counsel, and other FBI officials; the BOP Director, the BOP’s Assistant Director for Correctional Programs, and other BOP attorneys and staff; and officials in the Department’s Executive Office for Immigration Review (EOIR).15 During our fieldwork at the MDC and Passaic, we interviewed the wardens, supervisors, correctional officers, medical staff, and other employees who had contact with or oversight of September 11 detainees. In addition, we interviewed managers and employees in the FBI’s New York Field Office and Newark Field Office, the INS’s New York and Newark District Offices, and the U.S. Attorney’s Office for the Southern District of New York.16
15 Throughout this report, most individuals are identified using the title they held at the time of the event or action under examination.
16 Organization charts for the Department, FBI, INS, and BOP are attached at Appendix C.
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During our review, we also met several times with representatives of Amnesty International and Human Rights Watch, who offered information and discussed their concerns about the treatment of aliens arrested after September 11. In addition, these organizations helped arrange interviews with some September 11 detainees or their attorneys. We also met with representatives from the American Civil Liberties Union, the Center for Constitutional Rights, the Islamic Circle of North America, and the Legal Aid Society.
III. ORGANIZATION OF THIS REPORT
This report is organized into ten chapters and begins with this introduction to the report. Chapter 2 describes the initial actions taken by the Department in Washington, D.C., and New York City that affected the arrest, detention, and investigation of the September 11 detainees. It discusses demographic statistics on the September 11 detainees, including their age, citizenship, location, and date of arrest. It also describes the procedure used by the FBI, INS, and BOP to review and process aliens detained on immigration charges in connection with the Department’s terrorism investigation.
Chapter 3 discusses the charging of September 11 detainees with immigration violations. We identify policies, procedures, and issues that affected the timely charging of the detainees.
Chapter 4 examines the development and implementation of the Department’s “hold until cleared” policy for September 11 detainees. It describes a series of operational orders issued by INS Headquarters to manage September 11 detainees. It also examines the processes implemented by the FBI to clear detainees of any connection to terrorism and the ramifications of this procedure on the detainees’ length of confinement. We discuss why the FBI New York Field Office and INS New York District Office initially developed a separate list of September 11 detainees unbeknownst to FBI and INS Headquarters officials and the problems this presented. In addition, we describe the impact caused by the Department’s decision to require Central Intelligence Agency (CIA) name checks for each of the detainees. The chapter ends with an examination of the FBI’s development of a “watch list” and its process for adding and removing names from that list.
Chapter 5 begins with basic information about federal immigration law, including the charging procedure for immigration violations, bond hearings, and removal proceedings.17 It then examines the Department’s opposition to
17 The 1996 amendments to the immigration laws combined “deportation” and “exclusion” proceedings into “removal” proceedings. In this report, we use the term “removal (cont’d)
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bond for September 11 detainees and the INS’s efforts to keep detainees in custody.
Chapter 6 discusses detainees with final removal and voluntary departure orders, the Department’s decision to prevent removal of September 11 detainees until they were cleared by the FBI, and the eventual rescission of the policy. The chapter concludes with a review of the INS’s compliance with a requirement that it conduct a review of the continued detention of aliens held for 90 days after they received removal orders.
Chapters 7 and 8 examine the conditions of confinement experienced by September 11 detainees at the MDC and Passaic facilities. Chapter 7 evaluates conditions at the MDC, including allegations of physical and verbal abuse, access to legal counsel, medical care, recreation, and other issues. Chapter 8 examines similar issues for September 11 detainees confined at Passaic.
In Chapter 9, we offer a series of recommendations to address the issues discussed in this report. Chapter 10 provides our conclusions. The 11 Appendices contain a glossary of names (Appendix A) and terms (Appendix B), organization charts, various memoranda, and sample INS forms.
proceedings” to refer to all proceedings that sought to deport, exclude, or remove aliens from the United States.
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CHAPTER TWO
ARREST AND PROCESSING OF ALIENS IN RESPONSE TO THE SEPTEMBER 11 ATTACKS
This chapter describes the Department’s initial response to the terrorist attacks. First, we examine the immediate actions taken by the FBI and INS in New York City to arrest and detain aliens in connection with the terrorism investigation. Next, we describe the Department’s philosophy as it related to aliens arrested in connection with the terrorism probe, and we discuss some of the processes developed at FBI and INS Headquarters to coordinate information about these detainee cases. We also provide demographic statistics about the September 11 detainees. In addition, we describe the system used by the FBI, INS, and BOP to review and process aliens detained on immigration charges in connection with the terrorism investigation.
I. INITIAL LAW ENFORCEMENT RESPONSE
A. Initial FBI Response
The FBI took the lead in investigating the September 11 attacks, an investigation that became known as the Pentagon/Twin Towers Bombings investigation, or PENTTBOM. The FBI’s investigation initially was affected by the chaotic situation in New York City as a result of the terrorist attacks, which displaced thousands of people from their homes and offices in lower Manhattan. As a result of the attacks, the FBI was forced to evacuate its New York City office in the Javits Federal Building at 26 Federal Plaza, seven blocks from what became known as “Ground Zero.” Similarly, the INS was forced to evacuate all detainees housed at its Service Processing Center at 201 Varick Street in Manhattan’s lower West Side.18
The FBI’s focus immediately after the attacks was whether any of the airplanes remaining in the air posed a threat. Once air traffic over the United States had ceased completely, the FBI turned its attention to locating those responsible for the terrorist attacks and preventing future attacks. During the evening of September 11, the FBI New York Field Office moved telephones, computers, facsimile machines, and other equipment into a temporary command post in a parking garage ▀▀ ▀▀▀▀ ▀▀▀▀▀▀. In addition to the ▀▀▀▀ ▀▀▀▀▀▀ site, the FBI created command posts ▀▀ ▀▀▀ ▀▀▀▀▀▀▀▀
18 INS Service Processing Centers process and detain illegal aliens who are awaiting disposition of their immigration cases or awaiting removal from the country. A detainee could be held at a Service Processing Center from one day to several years.
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▀▀▀▀▀▀▀ ▀▀▀ ▀▀▀▀▀▀▀▀ ▀▀ ▀▀▀ ▀▀▀▀▀▀ ▀▀▀▀▀ near midtown Manhattan and at FBI offices in Queens and Long Island, New York.
With the help of the airlines and the INS, the FBI quickly determined the names used by the hijackers and immediately began to pursue leads related to them. During this initial period, the overall terrorism investigation was coordinated from the FBI’s high-security Strategic Information and Operations Center (SIOC) located at FBI Headquarters in Washington, D.C. The FBI Headquarters in Washington, D.C. coordinated the New York aspects of the terrorism investigation through the FBI’s New York Joint Terrorism Task Force (JTTF), a group composed of a variety of law enforcement agencies including the INS, the New York Police Department, and the Drug Enforcement Administration.19 In addition, prosecutors from the U.S. Attorney’s Office for the Southern District of New York (SDNY) and the Eastern District of Virginia, in conjunction with the Department’s Criminal Division, worked closely with the New York JTTF to direct major aspects of the terrorism investigation from both Washington, D.C., and New York City.
The day after the attacks, officials at FBI Headquarters began developing a “watch list” that initially was designed to identify potential hijackers and other individuals who might be planning additional terrorist acts once air travel resumed. By September 14, the FBI had forwarded the watch list, which at this point contained more than 100 names, to the Federal Aviation Administration, commercial airlines, FBI field offices, the U.S. Border Patrol, the U.S. Customs Service, and 18,000 state and local police departments across the country. According to FBI Director Robert Mueller, the watch list ultimately contained the names of “individuals the FBI would like to talk to because we believe they have information that could be helpful to the [PENTTBOM] investigation.”20
The FBI allocated massive resources to the September 11 terrorism investigation. Within 3 days of the attacks, more than 4,000 FBI special agents and 3,000 support personnel were assigned to work on the PENTTBOM probe. Six days after the attacks, FBI Director Mueller reported that more than 500
19 Each of the FBI’s 56 domestic field offices now leads a JTTF in its respective geographic area of responsibility. The FBI’s New York Division formed the first JTTF in 1980. Participants in JTTFs include the INS; U.S. Secret Service; Naval Criminal Investigative Service; U.S. Marshals Service; U.S. Customs Service; Bureau of Alcohol, Tobacco, and Firearms; U.S. Department of State/Diplomatic Security Service; Offices of Inspectors General; Postal Inspection Service; Internal Revenue Service; Department of Interior Bureau of Land Management; Air Force Office of Special Investigations; U.S. Park Police; Federal Protective Service; Defense Criminal Investigative Service; and other federal, state, and local law enforcement agencies.
20 FBI Director Robert Mueller, Press Conference at FBI Headquarters (September 14, 2001). We discuss the development and eventual dissolution of this watch list in greater detail in Chapter 4.
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people representing 32 federal, state, and local law enforcement agencies were working 24 hours a day at FBI Headquarters. By September 18, 2001, 1 week after the attacks, the FBI had received more than 96,000 tips or potential leads from the public, including more than 54,000 through an Internet site it established for the PENTTBOM case, 33,000 that were forwarded directly to FBI field offices across the country, and another 9,000 tips called into the FBI’s toll-free “hotline.”
B. Department of Justice Response
In response to the September 11 attacks, the Attorney General directed all Department of Justice components to focus their efforts on disrupting any additional terrorist threats. As articulated in a September 17, 2001, memorandum to all United States Attorneys from Attorney General Ashcroft, the Department sought to prevent future terrorism by arresting and detaining violators who “have been identified as persons who participate in, or lend support to, terrorist activities. Federal law enforcement agencies and the United States Attorneys’ Offices will use every available law enforcement tool to incapacitate these individuals and their organizations.” Given the identities of the September 11 terrorists, the Department recognized from the earliest days that its terrorism investigation had a significant immigration law component.
The Attorney General summarized the Department’s new focus in a speech he gave to the U.S. Conference of Mayors on October 25, 2001:
Forty years ago, another Attorney General was confronted with a different enemy within our borders. Robert F. Kennedy came to the Department of Justice at a time when organized crime was threatening the very foundations of the Republic...
Robert Kennedy’s Justice Department, it is said, would arrest mobsters for “spitting on the sidewalk” if it would help in the battle against organized crime. It has been and will be the policy of this Department of Justice to use the same aggressive arrest and detention tactics in the war on terror.
Let the terrorists among us be warned: If you overstay your visa – even by one day – we will arrest you. If you violate a local law, you will be put in jail and kept in custody as long as possible. We will use every available statute. We will seek every prosecutorial advantage. We will use all our weapons within the law and under the Constitution to protect life and enhance security for America.
In the war on terror, this Department of Justice will arrest and detain any suspected terrorist who has violated the law. Our single objective is to prevent terrorist attacks by taking suspected terrorists off the
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street. If suspects are found not to have links to terrorism or not to have violated the law, they are released. But terrorists who are in violation of the law will be convicted, in some cases deported, and in all cases prevented from doing further harm to Americans.
The Attorney General told the OIG that he instructed that if, during the course of the investigation, aliens were encountered who had violated the law, they should be charged with appropriate violations, particularly if the alien had a relationship to the September 11 attacks.
The Deputy Attorney General explained to the OIG that the threat presented by terrorists who carried out the September 11 attacks required a different kind of law enforcement approach. He stated that the Department needed to disrupt such persons from carrying out further attacks by turning its focus to prevention, rather than investigation and prosecution.
Michael Chertoff, the Assistant Attorney General for the Criminal Division, told the OIG that within days of the attacks it became evident that some aliens encountered in connection with the PENTTBOM investigation were “out of status” in violation of the law – a matter that fell within the jurisdiction of the INS. He stated the Department’s policy was to “use whatever means legally available” to detain a person linked to the terrorists who might present a threat and to make sure that no one else was killed. In some instances, he noted, that would mean detaining aliens on immigration charges, and in other cases criminal charges. Chertoff said he did not believe that the Department had a blanket policy to go with one or the other, if both were possible. He said he understood the Department would use whichever charge was most “efficacious.” He stated that he was involved in meetings with the Attorney General, the Deputy Attorney General, and the FBI Director at which this philosophy was discussed, but he added that, from the beginning, there was an insistence from senior Department officials that things be done legally. Chertoff explained that his deputy, Alice Fisher, was placed in charge of immigration issues for the Criminal Division.
Fisher told the OIG that during the fall of 2001 she spent the “majority” of her time on terrorism issues, some of which involved illegal aliens who presented a potential terrorism threat. She recalled that Chertoff told her “we have to hold these people until we find out what is going on.” She said she understood that the Department was detaining aliens on immigration violations that generally had not been enforced in the past.
C. New York FBI’s Response
The FBI Field Office in New York City and its JTTF received thousands of leads from the public related to terrorism in the weeks after September 11. Staff at the New York JTTF command post entered the leads into an FBI
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database that assigned each PENTTBOM lead a unique number. Leads then were sent to one of the four FBI command posts in the New York City area and assigned to a JTTF team that included FBI and INS agents, among other law enforcement personnel.
Many of the leads pursued by the JTTF in New York City and elsewhere across the country involved aliens, many from countries with large Arab or Muslim populations. If JTTF teams in New York encountered an illegal alien in the course of pursuing a PENTTBOM lead – whether or not the alien was the subject of the lead – the INS agent on the team examined the alien’s immigration and identity documents to determine whether the alien was lawfully in the United States. If an INS agent was not present during the JTTF’s initial interview of the individual, the team notified the INS New York District Office, which dispatched an INS agent to determine the alien’s immigration status. The team would arrest any alien encountered in the course of investigating a JTTF or PENTTBOM lead who was found to be in the country illegally.
Many of the aliens arrested under these circumstances were put into a special category referred to as persons “of interest” to the FBI. Their names were placed on a list referred to as “the INS Custody List.” The INS and FBI did not always agree on which aliens should be included on the list, and we found that the cases were not handled uniformly nationwide. The complexities of how a person came to be included in this special category of immigration detainees is discussed in detail in Chapter 4, where we also examine some of the problems that arose from creation of this category of detainees. Moreover, as we describe later in this report, being labeled “of interest” had significant ramifications for the detainees’ place and length of detention. The Department severely limited these detainees’ ability to obtain bond, and detainees on this list could not be removed from the United States without a written “clearance letter” from the FBI. These requirements created substantial obstacles for detainees who sought release or removal. We describe these issues in more detail in the chapters that follow.
In conjunction with the New York FBI’s JTTF, the U.S. Attorney’s Office for the SDNY immediately began to investigate the terrorist attacks. David Kelley, the Deputy United States Attorney for the SDNY, helped direct the search warrants, subpoenas, and material witness warrants in the Southern District and also participated in the supervision of the PENTTBOM task force in Washington, D.C. Within one to three days after the attacks, Kelley explained, he focused on individuals “really” of “investigative interest” (as opposed to those simply labeled “special interest” by the FBI or the INS). He explained that individuals of “genuine investigative interest” were people connected to a subject or target of the investigation, such as a person whose telephone number was linked to a hijacker, or a person who lived in a building near a location of high interest.
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D. SIOC Working Group
Within one week of the attacks, a group was established by Deputy Assistant Attorney General Alice Fisher to coordinate efforts among the various components within the Department that had an investigative interest in or responsibility for the September 11 detainees. This group became known as the “SIOC Working Group” because its initial meetings took place in the FBI’s SIOC. In addition to the FBI, the Working Group included staff from the INS; the Department’s Office of Immigration Litigation (OIL); the Terrorism and Violent Crime Section (TVCS) of the Department’s Criminal Division, which reported directly to Fisher; and the Office of the Deputy Attorney General.21
The SIOC Working Group met daily during the first months after the attacks, and sometimes multiple times within a single day. As one of its duties, the group coordinated information and evidence sharing among the FBI, INS, and U.S. Attorneys’ offices related to the September 11 detainees. As discussed in detail in Chapter 4, the group sought to ensure that aliens detained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of involvement with the September 11 attacks or terrorism in general. FBI participants from its Office of General Counsel assisted in preparing affidavits to support INS opposition to bond for these detainees, while FBI agents coordinated with FBI field offices to obtain information regarding clearance investigations for detainees. INS attorneys on the SIOC Working Group served as a link to INS Headquarters and its field offices. The assessments of individual detainee cases communicated by the FBI to the INS at the SIOC Working Group, as we describe later, had a significant impact on detainees’ ability to obtain bond or be removed from the United States.
The FBI created an “INS Detainee Unit” in October 2001 located in the SIOC to handle detainee cases. This group, staffed by FBI special agents and others from the FBI Counterterrorism Division, worked closely with the SIOC Working Group to handle detainee matters.
II. ARRESTS OF SEPTEMBER 11 DETAINEES
For the most part, the 762 aliens classified as September 11 detainees were arrested by FBI-led terrorism task forces pursuing investigative leads and were held on valid immigration charges.22 These leads ranged from information
21 OIL is the unit within the Department’s Civil Division that handles immigration litigation, while TVCS assists federal prosecutors nationwide in prosecuting terrorism cases.
22 We found one instance in which a September 11 detainee was held for over 72 hours before being released, despite the fact that there was no valid immigration charge.
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obtained from searches of the hijackers’ cars and personal effects to anonymous tips called in by members of the public suspicious of Arab and Muslim neighbors who kept odd schedules.
In New York, the JTTF moved aggressively to pursue the thousands of PENTTBOM leads that poured into the FBI in the days and weeks after the terrorist attacks. Witnesses both inside and outside the FBI told us that given the wide-ranging nature of the terrorism probe, the FBI interpreted and applied the term “of interest to the September 11 investigation” quite broadly. For example, a supervisory special agent in the FBI’s New York Field Office who was in charge of the unit responsible for detainee clearance investigations told the OIG that if JTTF agents searching for a particular person on a PENTTBOM lead arrived at a location and found a dozen individuals out of immigration status, each of them were considered to be arrested in connection with the PENTTBOM investigation. He said no distinction generally was made between the subjects of the lead and any other individuals encountered at the scene “incidentally,” because the FBI wanted to be certain that no terrorist was inadvertently set free. Consequently, he said all of the aliens in the above situation would be arrested on immigration charges and treated as “of interest” to the September 11 investigation because there was no way to tell who might be an associate of the subject of the lead.
PENTTBOM leads that resulted in the arrest of a September 11 detainee often were quite general in nature, such as a landlord reporting suspicious activity by an Arab tenant. For example, several Middle Eastern men were arrested and treated as connected to the September 11 investigation when local law enforcement authorities discovered “suspicious items,” such as pictures of the World Trade Center and other famous buildings, during traffic stops. Similarly, local police stopped three Russian tourists because they were observed photographing “sensitive” locations in New York City, such as the Holland Tunnel. Another man was arrested on immigration charges and labeled a September 11 detainee when authorities discovered that he had taken a roll of film to be developed and the film had multiple pictures of the World Trade Center on it but no other Manhattan sites. This man’s roommates also were arrested when law enforcement authorities found out they were in the United States illegally, and they too were considered September 11 detainees.
September 11 detainees and other witnesses interviewed by the OIG provided additional examples of how some aliens were arrested and labeled “September 11 detainees,” including:
• Shortly before the September 11 attacks, an alien from ▀▀▀▀▀, who worked at a ▀▀▀ ▀▀▀▀▀▀▀, struck up a conversation with a ▀▀▀▀▀▀▀▀ who paid for a purchase using an aviation-related credit card. During the conversation, the alien allegedly told the ▀▀▀▀▀▀▀ that he would
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like to learn how to fly an airplane. After the September 11 attacks, the ▀▀▀▀▀▀▀▀ called the FBI and recounted his conversation with the ▀▀▀ ▀▀▀▀▀▀▀ ▀▀▀▀▀▀▀▀▀. The INS subsequently arrested the alien when it determined he was out of immigration status, and he was considered a September 11 detainee.
• Another alien treated as a September 11 detainee was arrested at his apartment in ▀▀▀▀▀▀ a few days after a caller told the FBI that “two Arabs” rented a truck from his ▀▀▀ ▀▀▀▀ vehicle rental business on September ▀▀ for a one way trip to a ▀▀▀▀▀▀▀▀ city, and then returned it ▀▀ minutes later having gone only ▀ miles. They were, according to the caller, “extremely nervous,” and did not argue when told they would not be refunded the hundreds of dollars they had paid for the rental.
• Another alien was arrested, detained on immigration charges, and treated as a September 11 detainee because a person called the FBI to report that the ▀▀▀▀▀▀▀▀ grocery store in which the alien worked, “is operated by numerous Middle Eastern men, 24 hrs – 7 days a week. Each shift daily has 2 or 3 men. . . . Store was closed day after crash, reopened days and evenings. Then later on opened during midnight hours. Too many people to run a small store.”
III. ASSIGNMENT TO A DETENTION FACILITY
Our review determined that September 11 detainees arrested in New York City generally were confined at the MDC or transported to Passaic and other INS contract facilities in northern New Jersey. The housing determination for a September 11 detainee was the result of a two-step process that began with the FBI’s assessment of the detainee’s possible links to terrorism. The FBI provided this assessment to the INS, which made the actual housing determination. Witnesses told the OIG that the INS’s determination was based almost solely on the FBI’s assessment.
Where a September 11 detainee was housed had significant ramifications on the detainee’s detention experiences. Detainees housed at the MDC (discussed in Chapter 7) experienced much harsher confinement conditions than those held at Passaic (discussed in Chapter 8). The September 11 detainees held at the MDC were locked down 23 hours a day, were placed in four-man holds during movement, had restricted phone call and visitation privileges, and had less ability to obtain and communicate with legal counsel.
A. FBI Assessment
The first part of the process to determine where a September 11 detainee would be confined began with the FBI’s initial assessment of the detainee’s
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links to the PENTTBOM investigation or ties to terrorism. The FBI assessed a detainee as “high interest,” “of interest,” or “interest undetermined.” The “high interest” detainees were considered by the FBI to have the greatest potential to be linked to the PENTTBOM investigation or to terrorism. The FBI believed the “of interest” detainees might have some terrorist connections. For the “interest undetermined” detainees, the FBI could not affirmatively state that the detainee did not have a connection to the September 11 attacks. As we discuss in Chapter 4, this assessment was not based on specified criteria or consistently applied to all detainees. In addition, the INS was not authorized to release a September 11 detainee until the FBI completed its clearance investigation because of the concern about inadvertently releasing a terrorist. Therefore, the FBI in New York City never labeled a detainee “no interest” until after the clearance process was complete.
Almost all the September 11 detainees in our review were arrested by the INS. Often an FBI agent present at the arrest provided the INS with a verbal assessment of the FBI’s level of interest in the particular detainee. However, we found that this initial assessment often was based on little or no concrete information tying the detainee to the September 11 attacks or terrorism.
B. INS Housing Determination
After the INS arrested September 11 detainees, they were taken to an immigration processing center, such as the INS’s Service Processing Center on Varick Street in New York City, to complete arrest and initial detention processing (after the attacks the Center no longer housed detainees, but remained open for processing). The FBI New York Field Office identified its level of investigative interest in the detainee to the FBI’s International Terrorism Operations Section (ITOS) at FBI Headquarters, which informed, usually verbally, the INS’s National Security Unit (NSU). The information passed to the NSU by the FBI included a request that detainees of “high interest” be housed at the MDC.
From September 11 to 21, 2001, INS Executive Associate Commissioner for Field Operations Michael Pearson made all decisions regarding where to house September 11 detainees. According to Daniel Cadman, the NSU Director, NSU staff provided briefings to Pearson that consisted of the FBI’s assessments, other derogatory information obtained during the investigation (if any), and the security risk posed by the detainee (if known). Based on this information, Pearson decided whether a detainee should be confined at a BOP facility (such as the MDC), an INS facility, or an INS contract facility (such as Passaic). Pearson’s decision was relayed to the INS New York District, which transferred the detainees to the appropriate facility.
The INS’s housing determination process changed on September 21, 2001, when the INS created the Custody Review Unit (CRU) at Headquarters
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and appointed three INS District Directors to make detainee housing determinations based on input provided by the FBI. At this point, Pearson removed himself from this decision-making process.
We were also told that some detainee housing determinations were made outside the process described above. Dan Molerio, Assistant District Director for Investigations in the INS New York District, said three Assistant U.S. Attorneys from the Southern District of New York detailed to the FBI Headquarters contacted him on a number of occasions and identified “high interest” detainees held by the INS in New York. Molerio said the FBI’s Assistant Special Agent in Charge for Counterterrorism in New York also called him on several occasions about “high interest” detainees. Molerio said when the FBI told him a detainee was “high interest,” he would ensure that the detainee was sent to the MDC.
In sum, even though the INS established a process for making housing determinations, the INS’s decision was based almost entirely on the FBI’s assessment.
C. BOP Confinement Decisions
Soon after the September 11 attacks, the BOP made several decisions regarding the detention conditions it would impose on the September 11 detainees. These decisions (discussed in more detail in Chapter 7) included housing the detainees in the administrative maximum (ADMAX) Special Housing Unit (SHU), implementing a communications blackout, and classifying the detainees as Witness Security (WITSEC) inmates. According to Michael Cooksey, the BOP’s Assistant Director for Correctional Programs, the BOP decisions were based on the BOP’s concerns about potential security risks posed by the September 11 detainees. He said the BOP made the decision to impose strict security conditions in part because the FBI provided so little information about the detainees and because the BOP did not really know whom the detainees were. He said the BOP chose to err on the side of caution and treat the September 11 detainees as high-security detainees. He said that the Department was aware of the BOP’s decision to house the September 11 detainees in high-security sections in various BOP facilities. Cooksey said the BOP did not treat the September 11 detainees different than “regular” highsecurity inmates.
BOP Director Kathy Hawk Sawyer told the OIG that officials in the Deputy Attorney General’s Office contacted her to discuss specific detainees’ ability to communicate with other inmates and with the outside world. She said she understood from these conversations that the Department wanted the
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BOP to limit, as much as possible within their lawful discretion, the detainees’ ability to communicate with other inmates and with people outside the MDC.23
D. Department of Justice’s Role
Witnesses told us that the Department of Justice had little input into where the detainees were held. For example, Chertoff, the Assistant Attorney General in charge of the Criminal Division, said he did not have any information about where or how the detainees would be held, with the exception of one conversation in which he was told that an alien had claimed he was hurt by a guard. He said that he was later told that the report was inaccurate, and that the alien had not made such an accusation. David Israelite, Deputy Chief of Staff to the Attorney General, said he could not recall any discussions of holding people “incommunicado” or any discussion of where detainees should be held. He also recalled one allegation of mistreatment being called to the attention of the Attorney General, who he said asked staff to look into the incident.
Alice Fisher, the Deputy Assistant Attorney General who was in charge of terrorism issues for the Criminal Division, stated that she had no information about which facility a detainee would go to or the conditions that would be imposed on the detainees. She noted that there was an “effort” to accommodate the needs of the Assistant U.S. Attorneys who were conducting the grand jury investigation into the attacks. David Kelley, the Deputy U.S. Attorney for the SDNY who played an important role in the September 11 investigation, said he had no input into where people would be confined, except that a person might be moved to the New York area if he was needed to testify. An Assistant U.S. Attorney from the SDNY who worked on the terrorism investigation explained that he generally did not have input into where detainees would be held. He recalled being frustrated that the BOP did not distinguish between detainees who, in his view, posed a security risk and those detained aliens who were uninvolved witnesses.
IV. DEMOGRAPHICS OF SEPTEMBER 11 DETAINEES
The 762 September 11 detainees we reviewed were almost exclusively men, ▀▀▀▀ ▀▀▀ ▀▀▀▀ ▀▀▀▀▀▀▀▀▀ ▀▀▀▀▀ ▀ ▀▀▀▀▀▀ ▀▀▀ ▀▀▀ ▀▀▀ ▀▀▀▀▀▀▀▀ ▀▀ ▀▀▀▀▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀▀ ▀▀▀▀ ▀▀▀ ▀▀▀▀ ▀▀▀▀ ▀ ▀▀▀▀▀ ▀▀▀▀▀▀ ▀▀▀▀▀ ▀▀▀▀▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀▀ ▀▀▀ ▀▀▀▀▀ ▀▀▀ ▀▀▀ ▀▀▀▀▀▀▀▀ ▀▀ ▀▀▀ ▀▀▀ ▀▀ ▀▀▀▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀▀ ▀▀▀ ▀▀▀▀▀▀▀▀ ▀▀ ▀▀▀▀ ▀▀ ▀▀▀▀▀▀▀ ▀▀ ▀▀▀▀.
23 We discuss Hawk Sawyer’s conversations with Christopher Wray, Principal Associate Deputy Attorney General, and David Laufman, Chief of Staff to the Deputy Attorney General, in Chapter 7.
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The age of the detainees varied, although most, 479 (or 63 percent), were between 26 and 40 years old. However, many of the detainees were much older. ▀▀ ▀▀▀▀▀ ▀▀▀▀ ▀▀ ▀▀ ▀▀▀ ▀▀▀ ▀▀▀▀▀▀▀▀▀ ▀▀▀ ▀ ▀▀▀▀▀▀▀▀ ▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀ ▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀ ▀▀▀ ▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀▀▀▀▀▀ ▀▀▀▀ ▀▀▀▀▀▀▀▀▀ ▀▀▀▀ ▀▀▀▀ ▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀▀▀ ▀▀▀▀ ▀ ▀▀▀ ▀▀▀▀▀▀▀▀▀ ▀▀▀▀ ▀▀▀▀ ▀▀▀▀▀ ▀ ▀ ▀▀▀▀ ▀▀ ▀▀▀▀▀ ▀▀▀ ▀▀ ▀▀▀▀▀▀▀▀ See Figure 1.

Figure 1 Age Ranges for the September 11 Detainees

200

161

170 148

150

100

50

0Redact0ed

0

0

0Redac0ted 0

0

### ### 26-30 31-35 36-40 ### ### ### ### ###

The September 11 detainees were citizens of more than 20 countries. The largest number, 254 or 33 percent, came from Pakistan, more than double the number of any other country. The second largest number (111) came from Egypt. Nine detainees were from Iran and six from Afghanistan. In addition, 29 detainees were citizens of Israel, the United Kingdom, and France. See Figure 2.
Figure 2 Nationality of September 11 Detainees
300 250 200 150 100 50
0

PAKISTAN EGYPT
TURKEY JORDAN YEMEN
INDIA SAUDI ARABIA
MOROCCO TUNISIA SYRIA
LEBANON ISRAEL IRAN
GUYANA ALGERIA BANGLADESH AFGHANISTAN
UK FRANCE
OTHER

The arrest location of a September 11 detainee proved significant because it determined which FBI field office had responsibility for, among other things, investigating the detainee for any connections to terrorism (the “clearance process” that we examine in detail in Chapter 4). By far the
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majority of detainees were arrested in New York (491 of 762, or 64 percent), followed by New Jersey with 70 detainee arrests, ▀▀▀▀▀▀▀ with 38, ▀▀▀▀▀ with 28, and ▀▀▀▀▀▀▀▀▀▀ with 16. See Figure 3.

Figure 3 Arrest Location of September 11 Detainees

500 491

450

400

350

300

250

200

150

100 50

70

38 28 16 12 9

7

7

5

55

5

0

NY NJ Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted Redacted

The timing of detainee arrests shows that 658 detainees (86 percent) were arrested in the first 3 months after the terrorist attacks. See Figures 4 and 5 for information on the numbers of September 11 detainees arrested by week and month. The most detainees arrested in a single week – 85 – were arrested during the week after the September 11 attacks.
Figure 4 September 11 Detainee Arrests (By Week)
90 80 70 60 50 40 30 20 10
0

Sep 11-17, 2001 Oct 2001 Nov 2001 Dec 2001 Jan 2002 Feb 2002 Mar 2002 Apr 2002 May 2002 Jun 2002
After July 2002

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Sep 2001 Oct 2001 Nov 2001 Dec 2001 Jan 2002 Feb 2002 Mar 2002 Apr 2002 May 2002 Jun 2002 Jul 2002

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Figure 5 September 11 Detainee Arrests (By Month)*
350 300 250 200 150 100
50 0
* Detainee arrest data for the month of September 2001 is as of September 11, 2001.
V. PROCESSING OF SEPTEMBER 11 DETAINEES FROM ARREST TO CLEARANCE Perhaps the factor that most significantly affected the length of a
September 11 detainee’s confinement was the nature of the multi-step, multiagency process used by the Department for handling aliens detained as part of its terrorism investigation. The OIG developed the following flow chart (Figure 6) to depict the process for handling September 11 detainees from their initial encounter with law enforcement authorities through their release from custody or removal from the United States. The chart displays the process used by the Department to investigate PENTTBOM leads, arrest September 11 detainees, determine where to house them, conduct detainee clearance investigations, complete the INS hearings and removal proceedings, and remove the detainees.24
24 The chart depicts the process for September 11 detainees held at the MDC or Passaic. Some detainees only went through part of this process, depending on their individual immigration cases and the progress of their FBI clearance checks. The “BOP Process” shown in the chart applied only to those detainees housed at the MDC.
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The following steps describe the procedures depicted by this chart:
Arrest Process:
1. U.S. law enforcement received information regarding an individual who may have connections to the September 11 attacks or terrorism in general (a PENTTBOM lead).
2. If deemed worthy of investigation, the responsible FBI field office assigned the lead for investigation (in New York City, generally to the JTTF).
3. Law enforcement personnel interviewed the individual, and an INS agent determined his immigration status. The subject was released if the FBI expressed no investigative interest related to the terrorism probe and the individual had not violated his immigration status.
4. If the INS agent determined that the alien was in violation of immigration status, the INS agent took the alien into custody and asked the FBI for an assessment of its interest in the alien with respect to the terrorism investigation.
5. The FBI determined its level of interest in the alien: generally “of interest,” “high interest,” “no interest,” or “undetermined.” Based on this assessment by the FBI, “high interest detainees” were sent to BOP highsecurity facilities, while “of interest” and “interest unknown” detainees generally were housed in less restrictive facilities, such as county jails under contract to the INS.
FBI Clearance Process:
1. After the FBI received the detainee’s A-File from the INS, the FBI initiated detainee clearance investigations and notified the SIOC Working Group that the alien was in custody. The Department had issued a standing order that detainees were not to be released until clearance investigations were completed.
2. The SIOC Working Group requested CIA checks on the detainee.
3. If clearance investigations and CIA checks on the detainee were clear, the detainee was determined to be of “no interest” to the FBI.
4. The FBI’s ITOS decided the final clearance of a September 11 detainee and issued a formal FBI clearance letter, signed by the ITOS Section Chief. Until the FBI issued the clearance letter, the Department did not allow the INS to remove the detainee.
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5. The SIOC Working Group forwarded the FBI clearance letter to the INS or BOP, whichever agency was holding the alien. If the BOP was holding the alien, BOP Headquarters then issued its clearance memorandum to the BOP facility, called a “Cooksey memorandum,” notifying the appropriate warden that a detainee was eligible for release into the facility’s general population.25
INS Immigration Process:
1. After INS Headquarters review, the INS District Director in the INS district where the September 11 detainee was arrested issued the charging document to the detainee (known as the “Notice to Appear” or NTA) that describes the immigration laws the detainee has allegedly violated. The INS initially held all September 11 detainees without bond, but the detainees were able to request bond re-determination hearings before an Immigration Judge after receiving the NTA and accompanying documents.
2. An Immigration Judge conducted a hearing on the detainee’s alleged immigration violations (a “merits hearing”) to determine whether the detainee should be removed from the United States.
3. The Immigration Judge issued a final order removing the detainee or permitting the detainee to leave the country voluntarily.
4. INS Headquarters issued its clearance memorandum – known as the “Pearson memorandum” – to the appropriate INS Region Office.26 Issuance of the INS clearance letter was predicated on the INS receiving a clearance letter from the FBI stating that it had “no interest” in the detainee, as described above.
5. The alien was either removed from the United States, allowed to depart voluntarily, or released from INS custody.
The impact of each of these procedures on the length of the September 11 detainees’ detentions and their conditions of confinement is discussed in detail in the chapters that follow.
25 Cooksey memoranda were signed by Michael Cooksey, the BOP Assistant Director for Correctional Programs.
26 Pearson memoranda were signed by Michael Pearson, then the INS Executive Associate Commissioner for Field Operations.
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CHAPTER THREE
CHARGING OF SEPTEMBER 11 DETAINEES
The INS arrested hundreds of aliens in New York City and across the country in the aftermath of the September 11 terrorist attacks, most often while working as part of a Joint Terrorism Task Force. While some of these arrests resulted in criminal charges, the vast majority of September 11 detainees were charged with civil violations of federal immigration law, including: 1) staying past the expiration date on their visas, 2) entering the country without inspection, or 3) entering the country with invalid immigration documents.
Service of the charging document by the INS – called the “Notice to Appear” or NTA – provided the detainees with their first clear description of the charges they faced. Because the Department initially opposed bond for all September 11 detainees, service of the NTA and associated documents provided detainees their first opportunity to seek release by requesting a bond re-determination hearing before an Immigration Judge.27
In this chapter, we examine the INS’s provision of NTAs for September 11 detainees held on immigration violations. We also identify the policies, procedures, and timeliness of the INS’s charging decisions, and we examine reasons for the delay in charging experienced by some detainees. In addition, we discuss efforts by officials at INS Headquarters to review and approve charging documents for all September 11 detainees and the impact this Headquarters review had on the timely serving of NTAs and associated documents.
I. INS REGULATIONS AND POLICIES GOVERNING THE TIMING OF CHARGING DECISIONS
A. The Charging Determination
After an alien is arrested, the INS must decide whether to charge the alien with violating federal immigration law.28 If the INS decides that
27 A blank NTA form is attached at Appendix D.
28 Section 236A of the Patriot Act provides that the Attorney General may “certify” an alien if he has “reasonable grounds to believe” that the alien has violated any of the enumerated immigration provisions (all of which relate to terrorism, espionage, or national security), or if the Attorney General has “reasonable grounds to believe” that the alien “is engaged in any other activity that endangers the national security of the United States.” Any (cont’d)
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immigration charges are warranted, it initiates a removal proceeding by serving the NTA on the alien and the Immigration Court. The NTA must include the alien’s specific acts or conduct alleged to be in violation of the law. While an INS agent arrests the alien, an INS District Director, or his designee, makes the charging determination.29
Prior to the September 11 attacks, the INS was required by federal regulation to make this charging determination within 24 hours of arresting an alien. See 8 C.F.R. § 287.3(d). Within days of the September 11 attacks, the INS found that meeting this 24-hour timetable would be difficult, given the number of aliens arrested and the prospects of significantly more alien arrests.
As a result, on September 17, 2001, the Department issued a new regulation that changed the time by which the INS had to make the charging determination to 48 hours after the alien’s arrest.30 The revised regulation contains an exception to this 48-hour rule (an exception not contained in the previous version), which provides that, in the event of an emergency or other extraordinary circumstances, the charging decision could be made within an additional reasonable period of time. The regulation does not define “extraordinary circumstances” or “reasonable period of time.” It is important to note that the regulation contains no requirement with respect to when the INS must notify the alien or the Immigration Court about the charges – that is, when the NTA must be served on the alien. The regulation only addresses the timing of when the INS must make its charging determination. The INS does not record the date or time the charging determination is made.
B. Serving the Notice to Appear (NTA)
Once the INS makes the decision to charge an alien with an immigration violation, it serves the NTA on the alien and the Immigration Court in the
alien certified under the section must be taken into custody. If the certified alien is not placed in removal proceedings or criminally charged within seven days of his detention, the statute instructs the Attorney General to release the alien. An alien detained solely under this section who has not been removed within the initial 90-day removal period and “whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the alien will threaten the national security of the United States or the safety of the community or any person.” INA § 236A(a)(6). As of March 26, 2003, no alien had been certified by the Attorney General under these provisions.
29 In criminal cases, defendants must be brought before a magistrate no later than 48 hours after arrest for a probable cause determination, except in exceptional circumstances. See Riverside v. McLaughlin, 500 U.S. 44 (1991). In the immigration context, the INS District Director makes this “probable cause” determination.
30 8 C.F.R. § 287.3.
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jurisdiction where the alien is confined.31 The NTA must be served on the alien in person where practicable, but also may be served by mail.
According to the INS General Counsel’s Office, no statute or regulation explicitly states when the INS must serve the NTA on the alien or the Immigration Court. However, prior to the September 11 attacks, the INS’s general practice was to serve the NTA on aliens within 48 hours of their arrests. According to Michael Rozos, Chief of the Long Term Review Branch in the INS’s Office of Detention and Removal, after September 11 the INS established a goal of serving NTAs on aliens within 72 hours of arrest. Rozos said this goal was not established by regulation, but rather was based on “commonly recognized” INS practice. The INS keeps a record of the date the NTA is served. II. SERVICE OF NTAs ON SEPTEMBER 11 DETAINEES
Table 1 describes when NTAs were served on the September 11 detainees. According to INS data, 59 percent of these detainees (452 of 762) were served NTAs within 72 hours of their arrest, in accordance with INS practice. In the remaining 192 cases for which data was available, the INS took more than 72 hours to serve NTAs.32 Of these 192 detainees, 71 percent (137) were arrested by the INS in the New York City area. On average, September 11 detainees arrested in New York City and housed at the MDC received their NTAs 15 days from the time of their arrest.
31 8 U.S.C. § 1229(a)(1). The INS is not required to serve NTAs on certain categories of aliens. For example, the INS is not required to serve NTAs on aliens under criminal indictment and not yet in INS custody until their criminal cases are resolved and the aliens have served their sentences. In addition, reinstatement of an alien’s prior final order of removal does not require the INS to serve a new NTA.
32 Of the 762 detainees, 118 were excluded from this analysis for the following reasons: 90 were served with NTAs prior to September 11, 2001, because they already had a final order of removal on immigration violations before September 11, 2001; 21 were not required to be served with NTAs; and 8 had arrest dates prior to September 11, 2001.
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Table 1 Number of Days Between Arrest Date and NTA Served Date for September 11 Detainees

Number of Days
3 days or less 4 – 10 days 11 – 17 days 18 – 24 days 25 – 31 days
More than 31 days Excluded from analysis
Total
* Rounded

Frequency 452 71 43 30 24 24 118 762

Percent of Total 59.3% 9.3% 5.6% 3.9% 3.1% 3.1% 15.5% 100%*

Table 2 summarizes the timing of charges filed against all 762 September 11 detainees and for sub-sets of detainees in the OIG sample groups from the MDC and Passaic.

Table 2 Timing of NTA Service

Service of NTA
Detainees charged in 3 days or less
Detainees charged in more than 3 days Detainees with excluded
values Total

All Sept. 11 detainees
452 (59.3 %) 192 (25.2%) 118 (15.5%) 762 (100.0%)

MDC detainees 24 (45.3%) 14 (26.4%) 15 (28.3%) 53 (100.0%)

Passaic detainees 22 (33.3%) 18 (27.3%) 26 (39.4%) 66 (100.0%)

III. REASONS FOR DELAY IN SERVING NTAs
A. Pending Criminal Charges
According to INS data, 12 of the 192 September 11 detainees served with NTAs more than 3 days after their arrests also were charged with a criminal offense. The INS is not required to serve an NTA on an alien charged with a

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September 11 detainee arrested in New York City on October 1, 2001, pursuant to a PENTTBOM lead, was charged with passport fraud, marriage fraud, and alien smuggling. The detainee was transported to the MDC on October 3, 2001. On April 3, 2002, the INS served an NTA on the detainee for the immigration violation of overstaying a nonimmigrant visitor visa for business purposes. The following day, the detainee was sentenced in the Eastern District of New York to “time served” on the alien smuggling charge. The detainee was removed from the United States on May 30, 2002. Because the detainee was in custody based on a criminal indictment, the INS was not required to serve his NTA at the time of his initial arrest.
We identified 5 September 11 detainees who the INS served with NTAs an average of approximately 168 days after their arrest. In some of these cases, we found appropriate reasons for the delays – for example, two of the detainees were charged with both immigration and criminal offenses, but were held on the criminal offense and therefore were not in INS custody. Consequently, the INS did not serve NTAs on these two detainees until the BOP or the U.S. Marshals Service transferred custody of the detainees to the INS. However, according to INS data, once this transfer occurred, the INS still took 36 and 11 days, respectively, to serve NTAs on these detainees.
B. Delays Caused by Logistical Disruptions in New York City
The closure of the INS New York District Office at 26 Federal Plaza and the suspension of overnight delivery service to lower Manhattan after the September 11 attacks contributed to delays in NTA service. The detainees’ A-Files were stored at the National Records Center in Lee’s Summit, Missouri, and the INS New York District had to request copies of the detainees’ A-Files from the Records Center so that INS agents in New York City could determine the appropriate charges.32 With the disruptions in lower Manhattan, delivery of the A-Files was often delayed. Initially, in an attempt to speed up the review process, employees from the INS New York District and the National Records Center tried to select specific documents from a detainee’s A-File to fax to the INS New York District. However, INS New York District Counsel said this process was not effective because attempting to describe legal documents over the telephone proved inadequate for the INS New York District to determine their significance to the detainee’s case.
32 A-Files for September 11 detainees arrested in the New York City area had to be sent first to the INS New York District rather than to INS Headquarters because the District in which the detainee was arrested had to prepare and serve the NTA. A-Files are essential to preparing an NTA because they contain the detainees’ complete immigration histories.
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C. Delays Caused by INS Headquarters Review of NTAs
We found that the INS policy requiring all charging documents for September 11 detainees to be reviewed and approved by INS Headquarters also may have contributed to the delay in serving NTAs on many detainees. On September 15, 2001, the INS issued an Operational Order (discussed in Chapter 4) that directed all INS field offices to transmit copies of September 11 detainee case documents, including NTAs, to the National Security Unit (NSU) at INS Headquarters. Another Operational Order issued the following day stated that no charging documents should be served until the “facts and circumstances of the case” were reviewed and approved for legal sufficiency both by the NSU and the INS’s Office of General Counsel.33 Prior to the September 11 attacks, INS attorneys in the District offices had reviewed and approved NTAs for legal sufficiency.
According to Pearson, the INS Executive Associate Commissioner for Field Operations, INS Commissioner James Ziglar decided that NTAs for all September 11 detainees had to be approved at INS Headquarters because of some “glaring errors” in detainee charging documents in several early detainee cases. Pearson said that three or four September 11 detainees were charged with incorrect violations of immigration law in the first week after the terrorist attacks. While he said that these errors were not “pervasive,” the INS nonetheless was concerned that a potential terrorist could be released from INS custody because of erroneous charges on an NTA, and therefore wanted INS Headquarters officials to review all NTAs before they were served on the detainees.
Pearson’s order required that the INS New York District fax a copy of the detainee’s often-voluminous A-File to INS Headquarters. INS New York District Counsel told the OIG that the volume of documents being sent to INS Headquarters often caused facsimile machines at the INS New York District Office to break down. These facsimile transmission problems, coupled with the additional NTA review process at INS Headquarters, contributed to the delays in serving NTAs on the September 11 detainees.
On November 28, 2001, the INS rescinded the requirement that INS Headquarters review all NTAs for September 11 detainees and returned this responsibility to INS field offices. The chief of the INS’s National Security Law
33 The INS Office of General Counsel formed a group of attorneys known as the Legal Sufficiency Unit at INS Headquarters to review the legal sufficiency of NTAs prepared for September 11 detainees.
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Division said that by November 28 the volume of September 11 detainee arrests had diminished and that centralized NTA review no longer was required.
D. Delays Caused by Transfers of September 11 Detainees
The INS was forced to close its Service Processing Center (SPC) on Varick Street in Manhattan after the terrorist attacks due to a loss of electricity and utilities. While detainees could no longer be housed in the Varick Street SPC, they could still be processed there. The INS’s Eastern Region Office, which has jurisdiction over both the New York and Newark Districts, determined that the Newark District had available bed space in contract county jails to house immigration detainees formerly held at the Varick Street SPC. On September 11, 2001, New York District staff transported to the Newark District all 244 aliens who had been held at the Varick Street SPC. According to INS data, approximately 200 more detainees arrested in connection with September 11 leads in New York City were subsequently transferred to the INS Newark District from September 11, 2001, through May 31, 2002.
Facility determinations for September 11 detainees initially were made by the INS New York District, but beginning on September 23, 2001, these decisions required the approval of INS Headquarters.33 After INS Headquarters took over facility determinations for September 11 detainees, all detainees arrested in New York City were transported to the Newark District unless INS Headquarters informed the New York Office that a specific detainee should be held at the MDC. The INS deferred to FBI officials regarding decisions about whether detainees should be designated “high interest” and therefore housed in high-security facilities such as the MDC.34
INS policy requires that NTAs and other legal documents be prepared by the arresting INS officer. Consequently, September 11 detainees arrested in the New York City area should have been processed for any immigration violations in the New York District, and Newark District officials should have received NTAs for all transferred detainees when the detainees arrived in the INS Newark District.35 However, the New York Assistant District Director for
33 Pearson said he decided to centralize reporting and transfer authority for detainees at INS Headquarters because INS District Offices did not have the “visibility” as to which detainees were of interest to the FBI. He said that he wanted to ensure that FBI agents in the field knew where detainees were being held in order to facilitate interviews.
34 According to Pearson, “high interest” September 11 detainees had possible direct involvement with the September 11 terrorist attacks, needed to be interviewed by U.S. law enforcement, presented potential flight risks, and continued to present potential threats to the public. For a more extensive discussion of the detainee classification issue, see Chapter 4.
35 On April 17, 2001, Scott Blackman, the INS Eastern Region Director, had issued standardized procedures for transfers of detainees between districts in the Eastern Region that (cont’d)
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Investigations told the OIG that the requirement for INS Headquarters review of all NTAs delayed this process, and many detainees already had been transferred to the INS Newark District by the time the INS New York District received INS Headquarters’s sign-off on an NTA.
Because the detainees’ A-Files did not accompany the detainees when they were transferred to the INS Newark District, the INS Newark District was unaware that the NTAs had not been served and was unable to take timely actions to ensure that the NTAs were served within the INS’s 72-hour target.
The INS detention standards also require that the NTA and the alien’s A-File or a substitute “temporary file” accompany a detainee being transferred to another INS detention facility, including facilities like Passaic under contract with the INS to house federal immigration detainees. We found that the INS New York District’s failure to transfer all of the necessary paperwork for September 11 detainees arrested in New York but transferred to Newark resulted in inconsistent and untimely service of NTAs on the detainees.
Because the INS New York District transferred September 11 detainees to the INS Newark District before receiving INS Headquarters’s approval of charging documents, NTAs for many of the September 11 detainees had not been served by the time of the transfer. Yet, both the INS New York and the Newark Districts assumed that the NTAs had been served. INS Newark District officials who processed the transferred detainees’ cases told us that they assumed that NTAs had been served. The INS New York Assistant District Director for Investigations similarly said the New York District assumed that INS Headquarters had provided the INS Newark District with a copy of the approved NTAs when, in fact, it had not.
In October 2001, INS Eastern Region officials became aware of the caseprocessing problems associated with detainees transferred from the INS New York District to the INS Newark District. Beginning October 5, 2001, the INS Eastern Region detailed INS detention officers and investigators from other INS districts to help address the increased workload of the Newark District. This eventually alleviated some of the processing delays, although INS Newark District officials said it took time to work through the backlog of cases while new cases arrived at the INS Newark District.
specified responsibilities for “sending” Districts and “receiving” Districts. These procedures stated that all charging documents, including NTAs, will be “issued and signed” and served on detainees “prior to transfer.”
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IV. OIG ANALYSIS
The INS does not keep a record of when the charging determination is made for aliens charged with immigration violations. This makes it impossible to determine how often the decision is made within the 48-hour time period required by federal regulations. For the same reason, it is impossible to determine how often the INS took advantage of the “reasonable time” exception to the 48-hour requirement, an exception that is based on “extraordinary circumstances.”
We found that the INS did not consistently serve September 11 detainees with NTAs within its stated goal of 72 hours – only 60 percent were served within 72 hours. Until the INS removed its requirement for INS Headquarters review, the average length of time to serve the NTA was over seven days. Many detainees did not receive notice of the charges for weeks, and some for more than a month after being arrested.
One significant reason for the delay was the INS Headquarters’s requirement that it review and approve all NTAs for legal sufficiency. This delayed the serving of NTAs on September 11 detainees. This was especially true for those detainees arrested in New York City but transferred to the INS Newark District. While INS Headquarters wanted to ensure the accuracy and completeness of NTAs for September 11 detainees, this temporary review mechanism delayed the process. It also produced a disconnect between the INS New York and Newark Districts because the INS New York District thought the charging documents it submitted to INS Headquarters for approval had been forwarded to the INS Newark District when it took custody of the detainees. Conversely, the INS Newark District presumed that approved NTAs already had been served on the September 11 detainees arrested in New York City in accordance with INS procedures.
We believe the INS New York District should have exercised more diligence in ensuring that the INS Newark District was aware of which detainees had not been served with NTAs prior to their transfer. The practice of transferring detainees from the INS New York District to the Newark District after the detainees’ arrests in New York City, along with the failure of the New York District to transmit required immigration documents with the transferred detainees, caused significant delays in serving NTAs on September 11 detainees housed in New Jersey detention facilities.
In addition, the increased workload experienced by the INS Newark District’s Office of Detention and Removal after the terrorist attacks further compounded the delays in serving NTAs on September 11 detainees.
These delays affected the September 11 detainees in various ways. First, it postponed detainees’ knowledge of the specific immigration charges they
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CHAPTER FOUR
THE CLEARANCE PROCESS
This chapter examines the Department’s process for clearing the September 11 aliens who were detained because of possible links to terrorism. Specifically, we examine how problems with the process significantly lengthened the time detainees spent in custody. First, we discuss the origins of the Department’s directive that all September 11 detainees be held until the FBI cleared them of any connection to terrorism. Next, we examine the series of Operational Orders issued by INS Headquarters to its field offices in the weeks immediately following the September 11 attacks that sought to address the growing number of detainees arrested in connection with the PENTTBOM investigation.
We then turn to the process developed by the Department to clear the detainees of any connection to terrorism. In particular, we examine the activities of the squad created by the FBI New York Field Office that conducted most of the clearance investigations of September 11 detainees. We then describe the problems caused when the INS New York District failed to inform Headquarters of the arrest of hundreds of aliens “of interest,” and the discovery of a separate list of September 11 detainees kept by the FBI New York Field Office in the weeks immediately following the terrorist attacks, a list apparently unknown to FBI and INS officials in Washington, D.C. who were attempting to coordinate all September 11 detainee cases. We also discuss the effects of detainee name checks in databases maintained by the Central Intelligence Agency (CIA). We end by examining the FBI’s development of a “watch list” of potential terrorist suspects and its process for adding and removing names from that list.
I. “HOLD UNTIL CLEARED” POLICY
A. Origins of Policy
Officials from the FBI and the INS told the OIG they clearly understood from the earliest days after the terrorist attacks that the Department wanted September 11 detainees held without bond until the FBI cleared them of any connections to terrorism. This “hold until cleared” policy was not memorialized in writing, and our review could not determine the exact origins of the policy. However, this policy was clearly communicated to INS and FBI officials in the field, who understood and applied the policy.
We found that the directive was communicated to the INS and the FBI by a number of Department officials, including Stuart Levey, the Associate Deputy Attorney General responsible for oversight of immigration issues. Michael
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Pearson, the INS Executive Associate Commissioner for Field Operations, said that Levey called a senior INS official the week after the September 11 attacks and directed that no INS detainees should be released without being cleared by the FBI. Pearson said he also received instructions from INS Commissioner James Ziglar that none of the detainees should be released by the INS until they had been cleared by the FBI of any connections to terrorism. Pearson told the OIG that he passed these instructions along to employees at INS Headquarters’s units assigned to handle September 11 detainee cases.
Similarly in the FBI, our interviews and review of documents confirm that FBI officials understood and applied the “hold until cleared” policy. For example, an October 26, 2001, electronic communication (EC) (similar to an e-mail) from an FBI agent in the SIOC to FBI field offices stated that, “Pursuant to a directive from the Department of Justice, the INS will only remove individuals from [the special interest] list after the INS has received a letter from FBIHQ [FBI Headquarters] stating that the FBI has no investigative interest in the detainee.”
In addition, an attorney with the FBI’s Office of General Counsel who worked on the SIOC Working Group told the OIG that it was understood that the INS was holding September 11 detainees because the Deputy Attorney General’s Office and the Criminal Division wanted them held. She said the Deputy Attorney General’s Office took a “very aggressive stand” on this matter, and the Department’s policy was clear even though it was not written.
Levey told the OIG that the idea of detaining September 11 detainees until cleared by the FBI was “not up for debate.” He said he was not sure where the policy originated, but thought the policy came from “at least” the Attorney General.
A Senior Counsel in the Deputy Attorney General’s Office who worked closely with Levey on immigration matters (“Senior Counsel to the DAG”) stated in her response to the draft of this report that those involved in the discussion of the process, including attorneys from the INS, OIL, and the Criminal Division (including TVCS), were aware that the strategy had risks, and clearly anticipated the filing of habeas corpus petitions because of the position the Department planned to take that any illegal alien encountered pursuant to a PENTTBOM lead should be detained until cleared by the FBI. She noted that this was “unchartered territory.” On September 27, 2001, the Senior Counsel sent an e-mail to David Ayers, Chief of Staff to the Attorney General, on September 27, 2001, that discussed this “hold until cleared” policy. The e-mail described the “strategy for maintaining individuals in custody.” The document attached to the e-mail, entitled “Maintaining Custody of Terrorism Suspects,” begins with a “Potential AG Explanation” that states:
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The Department of Justice (Department) is utilizing several tools to ensure that we maintain in custody all individuals suspected of being involved in the September 11 attacks without violating the rights of any person. If a person is legally present in this country, the person may be held only if federal or local law enforcement is pursuing criminal charges against him or pursuant to a material witness warrant. Many people believed to be involved in the attacks, however, are not present legally and they may be detained, at least temporarily, on immigration charges. As of September 27, 2001, the Immigration and Naturalization Service (INS) was detaining without bond 125 aliens related to this investigation on immigration charges.
The document then describes plans for handling bond hearings and coordination efforts among the FBI, INS, and Criminal Division to ensure that September 11 detainees would remain in custody. Levey told us this document was drafted to enable the Attorney General to provide an explanation as to how, within the bounds of the law, the Department could hold and not release aliens who were suspected of terrorism.
Other senior Department officials confirmed that the directive to hold the September 11 detainees without bond stemmed from discussions at the highest levels of the Department. Assistant Attorney General Michael Chertoff told the OIG that in the early days after the terrorist attacks the issue was discussed among the Attorney General, Deputy Attorney General, and FBI Director that detention should be sought of a charged person “if there is a link to the hijackers and we are not able to assure that the person is not a threat and there is a legal violation.” Alice Fisher, a Deputy Assistant Attorney General in the Criminal Division and a participant in the SIOC Working Group, told the OIG that Chertoff told her that “we have to hold these people until we find out what is going on” and that, in some cases, they could use immigration charges to keep the detainees in custody.
David Laufman, Chief of Staff to the Deputy Attorney General, told the OIG that he recalled a meeting which INS representatives attended soon after the terrorist attacks that included a discussion of whether potential immigration violations could be “leveraged” against September 11 detainees when there was insufficient information for criminal cases. He added that it was recognized that, “if we turn one person loose we shouldn’t have, there could be catastrophic consequences.” He said he recalls, however, asking Levey to take whatever steps were appropriate to expedite clearance by the FBI and the CIA.
Daniel Levin, Counselor to the Attorney General, told the OIG that he could not say for certain when the clearance policy was developed or at what level. He described a “continuous meeting” for the first few months after the terrorist attacks involving the Attorney General, Deputy Attorney General, FBI
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Director, and Chertoff, and said he was sure that the issue of holding aliens until they were cleared was discussed.
The Deputy Attorney General told the OIG that he remembers the “decision to hold without bond” being discussed, and that he was in favor of requiring the clearance process “within the bounds of the law.” He explained that the threat after September 11 was a different threat that required a different approach. He said that investigating and prosecuting could not be the focus, as it had been before the terrorist attacks, and the Department needed to aggressively protect public safety, within the bounds of the law, by disrupting and preventing further incidents.
FBI Director Mueller stated that he did not recall being involved in any discussions about the creation of the “hold until cleared” policy, although he learned about the policy later.
When asked about a “hold until cleared” policy, the Attorney General told the OIG that the Department would want to know whom the detainees were if it was getting ready to remove them. He noted the inherent difficulty involved in conducting a “clearance” process, in that clearing someone is akin to “proving a negative.” He also noted that the Department does not assert that it could hold anyone “forever” without regard to a predicate offense. However, the Attorney General said he had no reluctance to do those things legally permissible to detain someone who had violated the law.
B. Implementation of Policy
From the first days after the terrorist attacks, the INS adopted the term “of interest” to identify aliens arrested on immigration violations in connection with the September 11 investigation who needed to be cleared by the FBI of any connections to terrorism before they could be released or removed from the United States. Detainees who were not “of interest” to the FBI’s terrorism investigation did not have to be cleared by the FBI and could be processed according to normal INS procedures. The FBI was responsible for determining whether an alien arrested in connection with a PENTTBOM lead on immigration charges should be further investigated. If it found further investigation warranted, then the alien was “of interest” and the FBI notified the INS of that determination. However, there were many cases where the FBI told the INS that it could not determine at the outset whether it had an interest in the alien. In cases of affirmative FBI interest or a statement that interest could not be determined, the INS treated the alien as “of interest.”
Problems quickly arose upon implementation of the “hold until cleared” policy for aliens arrested on PENTTBOM leads, because the Department and the FBI did not develop clear criteria for determining who was, in fact, “of interest” to the FBI’s terrorism investigation. From our interviews, we
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determined that, for the most part, aliens were deemed “of interest” based on the type of lead the law enforcement officers were pursuing when they encountered the aliens, rather than any evidence that they were terrorists. In the New York City area, for example, anyone picked up on a PENTTBOM lead was deemed “of interest” for purposes of the “hold until cleared” policy, regardless of the strength of the evidence or the origin of the lead. A PENTTBOM lead was considered any lead that was in any way connected to the World Trade Center or Pentagon investigation, or a lead that raised the specter of “suspicious activity” by an alien who might possibly be a terrorist. However, there need not be any evidence of connection to the terrorists or to the World Trade Center or Pentagon bombings for a lead to be considered a PENTTBOM lead. Any illegal alien encountered by New York City law enforcement officers following up a PENTTBOM lead – whether or not the alien turned out to have a connection to the September 11 attacks or any other terrorist activity – was deemed to be a September 11 detainee.
In a January 2002 court proceeding, the Department defined the term “September 11 detainees” as “individuals who were originally questioned because there were indications that they might have connections with, or possess information pertaining to, terrorist activity against the United States including particularly the September 11 attacks and/or the individuals and organizations who perpetrated them.”36
Many of the persons arrested as part of the PENTTBOM investigation were aliens unlawfully present in the United States either because they entered this country illegally or because they entered legally but remained after their authorization to do so had expired. It is unlikely that most if not all of the individuals arrested would have been pursued by law enforcement authorities for these immigration violations but for the PENTTBOM investigation.37 Some appear to have been arrested more by virtue of chance encounters or tenuous
36 This definition was contained in the declaration of James Reynolds, Chief of the Terrorism and Violent Crime Section in the Department’s Criminal Division (the “Reynolds Declaration”), submitted by the Department on January 11, 2002, in support of the Department’s summary judgment motion in connection with the case entitled Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 01-civ-2500 (D.D.C. filed Dec. 6, 2001).
37 The September 11 attacks focused renewed attention on the importance of knowing when nonimmigrant visitors enter and depart the United States. The OIG has reported previously on the INS’s efforts to identify and remove nonimmigrant overstays, most recently in an April 2002 follow-up report that found the INS has made little progress to effectively address the issue. The follow-up review concluded that the INS still did not have a reliable system to track overstays, did not have a specific overstay enforcement program, and could not provide accurate data on overstays. See Follow-Up Report on INS Efforts to Improve the Control of Non-Immigrant Overstays, Report No. I-2002-006, April 2002, available at http://www.usdoj. gov/oig/inspection/I-2002-006/report.pdf.
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connections to a PENTTBOM lead rather than by any genuine indications of a possible connection with or possession of information about terrorist activity.
For example, on September 15, 2001, New York City police stopped a group of three Middle Eastern men in Manhattan on a traffic violation. The men had the plans to a public school in their car. The next day, their employer confirmed that the men were working on construction at the school and that it was appropriate for them to have the plans. Nonetheless, they were arrested and remained detained as September 11 detainees. Another alien was arrested on September 22, 2001, because the phone company mistakenly put his phone calls home to ▀▀▀▀▀▀▀▀ on the bill of a New York ▀▀▀▀▀▀▀▀ office and the ▀▀▀▀▀▀▀▀ office called to report the “suspicious” bill. The alien was arrested, detained on immigration charges, and considered a September 11 detainee. He was not cleared until January 9, 2002. Another Middle Eastern alien was arrested because he went to a car dealership on September ▀, 2001, and was anxious to purchase a car right away. He put down a ▀▀▀▀ deposit on a car but did not return on September ▀▀, 2001, for the car as he agreed he would. He was arrested on September 29, 2001 and was not cleared until April 29, 2002. Another alien was arrested because a person called the FBI a few days after the terrorist attacks to say that six to ten weeks prior, the ▀▀▀▀▀▀ ▀▀ ▀ ▀▀▀ she hired through ▀ ▀▀▀ ▀▀▀▀▀▀▀, who was an ▀▀▀▀▀▀▀▀ male, told her that he was a licensed pilot and was saving to go to flight school in the U.S. to learn to fly commercial jets. He was arrested on September 24, 2001, and not cleared until February 12, 2002.38
In the days immediately following the September 11 attacks, before the clearance process was centralized in Washington, D.C., the INS could obtain an indication of “no interest” from an FBI field office and proceed to process the alien as a “regular” immigration case. In mid-September 2001, however, the Department instructed the INS that before it could treat a September 11 detainee as a “normal” immigration case, the INS needed to obtain a clearance letter from Michael Rolince, Chief of the FBI’s International Terrorism Operations Section (ITOS) in its Counterterrorism Division.39 According to several witnesses with whom we spoke, the FBI and the Department believed that the PENTTBOM investigation should be viewed as a “mosaic” that contained countless individual pieces of information and evidence, and field offices would not be in a position to determine if any single item was of significance to this mosaic. Therefore, it was believed that FBI Headquarters would have a broader perspective on the PENTTBOM investigation and would be in a better position to make an assessment of whether an individual alien
38 Other examples of tenuous PENTTBOM leads that led to detainee arrests and their designation as “of interest” to the September 11 investigation were described in Chapter 2.
39 A copy of a “Rolince” clearance letter is attached at Appendix E.
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detained in connection with a PENTTBOM lead was “of interest” to the investigation. However, as we describe below, this centralized clearance process was slow and insufficiently staffed, resulting in many detainees being held for long periods of time while no clearance investigations were being conducted.
II. INS OPERATIONAL ORDERS
By September 17, 2001, INS agents working with the FBI on PENTTBOM leads had detained approximately 69 aliens, and 40 bond hearings were scheduled for the following week. Michael Rozos, Chief of the INS’s Long Term Review Branch, told the OIG that, at the time, staff at INS Headquarters began to believe that the PENTTBOM investigation could involve the largest number of INS detainees since the Mariel boatlift in 1980.40
In response to the increasing number of aliens being detained as a result of the PENTTBOM investigation, officials at INS Headquarters developed a series of procedures to ensure that the detainees’ cases were handled uniformly. INS Headquarters officials told the OIG they also wanted to ensure that they had complete information on each September 11 detainee, because senior Department officials were requesting regular updates on the status of the cases. Consequently, Pearson, the INS Executive Associate Commissioner for Field Operations, disseminated 11 Operational Orders to INS field offices regarding the handling of September 11 detainees during a 12-day period beginning on September 15, 2001.
These Operational Orders varied the normal procedures for handling INS detainees. Routine immigration cases are usually handled by INS district offices and normally do not come to the attention of INS Headquarters officials. However, even before September 11 the National Security Unit (NSU) in INS Headquarters handled immigration cases involving terrorism and war crimes. Prior to September 11, the NSU consisted of three INS agents stationed at INS Headquarters and three agents working at the FBI’s ITOS at FBI Headquarters. Among other duties, the NSU coordinated the INS’s participation in the New York JTTF.
The Operational Orders created a different track for aliens detained in connection with the PENTTBOM investigation. After the September 11 attacks, Pearson designated the NSU as the INS’s intake unit for all immigration detainees designated as “special interest” cases. In the weeks after the attacks,
40 In 1980, a flotilla of boats carrying more than 100,000 undocumented Cubans arrived in the United States after Cuban authorities permitted a mass exodus from the Cuban port of Mariel. The influx of aliens put a tremendous strain on federal immigration and detention facilities in south Florida and elsewhere across the country.
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the NSU received information, primarily by facsimile, from INS field offices across the country that had detained aliens in connection with the PENTTBOM investigation. Daniel Cadman, the head of the NSU, told the OIG that the NSU consulted with the FBI to determine whether detainees were “of interest.” If the FBI notified the INS that the detainee was “of interest,” or if the FBI could not state whether or not it had interest, the INS labeled the detainee as a “special interest” case and forwarded the appropriate documentation to its Custody Review Unit (CRU). This unit, created after September 11, 2001, was the unit at INS Headquarters responsible for managing the September 11 detainees’ immigration cases.
Pearson’s Operational Orders described these INS procedures. His first order required that “information relating to investigating events or actions taken in [September 11] cases should be relayed immediately – repeat, immediately – to Headquarters NSU, with concurrent notification to the appropriate regional office.” Pearson told the OIG that he did not want INS field offices handling any September 11 cases without INS Headquarters’s full involvement and approval. A second order, sent later that same day, set forth the specific documents field offices were required to send to the NSU for each case.
Pearson’s third order, issued September 16, 2001, directed INS field offices to obtain approval from INS Headquarters before issuing any charging documents for September 11 detainees. In addition, the order instructed INS agents working with the FBI on the terrorism investigation to “exercise sound judgment” in deciding whether to arrest illegal aliens they encountered and generally to do so only if the FBI had “an interest” in the aliens.
A seventh operational order from Pearson on September 18, 2001, stated that the FBI had issued an EC to FBI field offices that included the following language:
As of early this morning, INS has sixty-one suspect foreign nationals in their custody for administrative violations of the Immigration and Nationality Act. In order to ensure continued custody of these individuals until an informed decision has been made regarding their potential as criminal suspects/material witnesses, it is essential that all field offices immediately make contact with their respective INS counterparts and articulate IN WRITING why these detained individuals are of significance. In turn, those submissions will be used by INS to argue for continued custody in imminent bail recommendation hearings as well as by the Criminal Division for possible preparation of material witness warrants.
Pearson’s order instructed INS field offices that participated in these arrests to communicate to their local FBI field office the urgency of
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receiving written assessments of the detainees’ investigative significance because bond re-determination hearings were forthcoming for many of the detainees.41
A variety of INS, FBI, and Department officials who worked on these September 11 detainee cases told the OIG that it soon became evident that many of the people arrested during the PENTTBOM investigation might not have a nexus to terrorism. To address this concern, Pearson issued an order on September 22, 2001, the tenth in the series, which addressed the responsibilities of INS agents who were participating in joint operations with the FBI when they encountered illegal aliens. The order instructed INS field agents to “exercise sound judgment” in determining whether circumstances require immediate arrest and detention, and urged INS agents to limit arrests to those aliens in whom the FBI has an “interest” given the “Servicewide resource implications” of the September 11 attacks. The order reiterated that field offices were required to “immediately notify” the NSU and INS District Counsel of any arrests and to provide information regarding the “degree of interest expressed by the FBI field office, if known.”
The order stated that “[n]o charging documents will be issued in any such case until the facts and circumstances of the case have been reviewed and the documents approved jointly by Headquarters National Security Unit and Headquarters Counsel (National Security Law Division, ‘NSLD’).” In instances where the person was already under arrest or where the detainee’s connection to terrorism is unknown, the order said, “we encourage and expect forwarding of cases for review and consideration – this is one reason we require the field to advise us of expressions of interest by the FBI.” Conversely, the order discouraged INS field offices from submitting cases that are “clearly of no interest in furthering the investigation of the terrorist attacks of September 11th.”
In addition to issuing a series of Operational Orders, INS Headquarters developed standard operating procedures for processing September 11 detainees. The procedures were intended to keep INS Headquarters informed of INS field activities related to the terrorism investigation, to enable the INS to maintain an accurate list of all INS detainees in whom the FBI had an interest, and to ensure that the INS did not inadvertently release a detainee in violation of the Department’s instructions to hold all September 11 detainees until
41 INS District Directors set the initial bond for aliens charged with immigration offenses. Because of the Department’s blanket “no bond” policy for September 11 detainees, District Directors refused bond for these detainees. A detainee not satisfied with the District Director’s initial bond determination could request a bond re-determination hearing before an Immigration Judge. We discuss in more detail bond issues and bond hearings in Chapter 5.
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cleared by the FBI. Under normal circumstances, INS Headquarters officials would not have reviewed charging documents in “routine” immigration cases.
III. THE CLEARANCE PROCESS
Department officials told the OIG that they initially believed the FBI would be able to clear, relatively quickly, aliens arrested in connection with a September 11 lead and who were “of interest” to the FBI’s PENTTBOM investigation. Many said they thought the clearance process generally would take only a few days for the majority of the aliens arrested on PENTTBOM leads. At most, they expected the process would take a few weeks to clear aliens arrested on PENTTBOM leads but who had no additional indications of a connection to terrorism.
For example, Michael Chertoff, the Assistant Attorney General in charge of the Criminal Division, told the OIG that he believed many clearances could be done “within a few days.” In his estimation, the clearance process involved a check of Government databases – including those at the CIA – and an evaluation by the FBI of all investigative information that had come to light. As late as the summer of 2002, other Department officials told the OIG that they were under the impression FBI clearances were completed in only a few days. The Attorney General stated that he did not recall hearing any complaints about the timeliness of the clearance process or a lack of resources dedicated to the effort to clear detainees.
The belief that the clearance process would occur quickly was inaccurate. As we describe below, the FBI cleared only 2.6 percent of the 762 September 11 detainees within three weeks of their arrests. The average length of time from arrest of a September 11 detainee to clearance by FBI Headquarters was 80 days.
A. Determining Which Aliens Would be Subject to the Clearance Process
As described above, the INS tried to hold without bond any alien arrested on immigration charges in whom the FBI expressed an interest, or any alien in whom the FBI’s interest was undetermined. If the FBI could not state whether it had an interest in a particular detainee (i.e., the level of interest was “undetermined” or “unknown”), then the INS treated the case as if it was “of interest” to the FBI. For example, Daniel Cadman, the head of the INS’s NSU, said that INS Executive Associate Commissioner Pearson instructed him that, absent a clear written statement to the contrary from Rolince, the ITOS Chief in the FBI’s Counterterrorism Division, any aliens arrested in connection with the PENTTBOM investigation should be considered “of interest.”
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Kenneth Ellwood, the INS Philadelphia District Director who was brought to INS Headquarters to assist in the detainee operation, told the OIG that the FBI created difficulties by not giving the INS clear signals about who should be on the “special interest” list. Ellwood said the FBI did not have enough agents to run down all the leads on many of the aliens to the point where they could feel comfortable about making an initial determination as to who was “of interest.” The FBI attorney assigned to the SIOC Working Group said that the FBI did its best with regard to “interest” classification determinations, but she acknowledged that the pace of information from FBI field offices about detainee cases was slow. Others told us they believed the FBI did not provide sufficient support to the clearance process. Nonetheless, given that the FBI was leading the PENTTBOM probe, the INS deferred to FBI assessments about who was “of interest” to its investigation.
We also found that the classification issue was not handled uniformly nationwide. In the New York City area, the INS forwarded case files for all aliens it arrested to the FBI New York Field Office for clearance. We found that neither the FBI nor the INS in New York attempted to distinguish between aliens encountered coincidentally to a PENTTBOM lead and those who were the subject of a PENTTBOM lead. In contrast, INS offices in jurisdictions outside of the New York City area used the procedures in Pearson’s Operational Orders described earlier in this chapter to try to screen out cases in which illegal aliens showed no evidence of any connection to terrorism. Officials at INS Headquarters told the OIG that this “vetting process” was somewhat helpful in ensuring that only meritorious cases were classified as September 11 detainees and, consequently, held without bond and required to undergo clearance by the FBI. However, this “vetting process” was not applied in New York City.
Several Department officials involved in the terrorism investigation also told the OIG that it soon became clear that many of the September 11 detainees had no immediately apparent nexus to terrorism. As a result, the terrorism investigation soon narrowed its focus to a few of the individuals who were detained, not the vast bulk of the aliens arrested in connection with PENTTBOM leads. For example, David Kelley, the Deputy U.S. Attorney for the Southern District of New York who immediately after the September 11 attacks came to Washington, D.C., to help supervise the investigation of the attacks, told the OIG that within one to three days of the attacks prosecutors were focusing on individuals of “genuine investigative interest,” such as a person whose telephone number was linked to one of the hijackers or a person who lived in a building near a location of high interest to the terrorism investigation, as opposed to aliens identified by the FBI simply as “of interest.” Other Department officials acknowledged to the OIG that they realized that many in the group of September 11 detainees were not connected to the attacks or terrorism in general.
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Nevertheless, the Department required the FBI to clear all September 11 detainees before they could be released – a policy supported uniformly by FBI staff interviewed by the OIG. Many witnesses told the OIG that no one wanted to prematurely release a September 11 detainee only to find out later that the person was a terrorist who posed a threat to the United States. Yet, as we next describe, the FBI clearance process for September 11 detainees was slow and not given sufficient priority, which resulted in most detainees being held for months before they were cleared.
B. FBI Field Office Role in the Clearance Investigation
The responsibility for clearing an individual September 11 detainee of a connection to terrorism fell, at least initially, to the FBI field office in whose jurisdiction the alien was arrested.42 The FBI New York Field Office bore the brunt of this requirement because almost 60 percent of the 762 September 11 detainees were arrested in the New York City area. The FBI in New York City created a special squad called “I-44A” to assist FBI agents and the JTTF in following up on some of the more than 20,000 PENTTBOM leads covered by the FBI New York Field Office in the year following the terrorist attacks. This unit also was given the responsibility for clearing aliens arrested in connection with PENTTBOM.
Members of the I-44A squad told the OIG that after an alien’s arrest in connection with a PENTTBOM lead, the INS agent forwarded a copy of the detainee’s A-File to the I-44A squad for its use during the detainee’s clearance investigation. After receiving the A-File, paralegals working in the I-44A squad began a series of computer checks to examine the detainee’s background. These included checks of Department of Motor Vehicle records, the FBI’s National Criminal Information Center database, Drug Enforcement Administration’s databases, databases with information on authorized federal wiretaps, Federal Aviation Administration databases, State Department databases, INTERPOL databases, and searches of as many as nine other databases. While we were told that the FBI paralegals generally processed these database checks, if any “positive” information came back on an alien it was an FBI agent’s responsibility to review that information and determine whether additional investigation was necessary.
Supervisors in the I-44A squad said they tried to assign each detainee’s clearance investigation to the FBI agent who was present at the detainee’s arrest. In some instances, however, this was not possible because the alien
42 As discussed later in this chapter, FBI officials centralized the detainee clearance process at FBI Headquarters in October 2001. After this time, agents in FBI field offices continued to conduct clearance investigations of September 11 detainees, but FBI Headquarters officials coordinated CIA checks and eventually issued the formal clearance letters.
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was arrested by other JTTF members or local law enforcement. In these cases, the clearance investigation was assigned to an FBI agent in the I-44A squad. FBI agents assigned detainee investigations were given a detailed set of instructions outlining the steps necessary to clear a detainee. In addition to conducting computer database and fingerprint checks, the agents were instructed to obtain from the detainee items such as identification documents and cell phone, and to run checks on all names, addresses, and telephone numbers obtained from those items. The clearance instructions also suggested interviewing landlords or employers “if necessary.”
FBI agents conducting clearance investigations also were required to interview detainees unless the agents determined that initial interviews with the detainees at the time of their arrests adequately addressed the required topics. However, the list of 31 issues FBI agents were required to cover during their review was so comprehensive that in all 28 New York cases the OIG reviewed, FBI agents had to re-interview detainees during the clearance investigations. None relied solely on the detainees’ arrest interviews for the clearance investigation. Moreover, the instructions directed FBI agents to interview detainees after I-44A paralegals had completed computer checks and clearance investigations. Given the required interview topics, the FBI agents’ questions often elicited names, telephone numbers, and addresses that required additional investigation.
The OIG’s review of 28 I-44A squad clearance files revealed that for many detainees the field work was rather straightforward – a few interviews in addition to the computer checks. In other cases, however, the clearance process required a substantial amount of investigative work for FBI agents.
The computer checks and detainee interviews were considered only the first level of clearance investigation. According to the instructions, if a detainee was “determined to be involved or associated with hijackers or terrorist organization” based upon the FBI agent’s initial work, the agent was required to refer the matter to another FBI unit for additional investigation. In cases not referred for additional investigation, the agents drafted a summary document describing the clearance investigation and including their recommendation as to whether the detainee exhibited any connections to the September 11 attacks or terrorism in general. FBI agents sent the reports to Kenneth Maxwell, the Assistant Special Agent in Charge of the FBI New York Field Office, who, among his many other duties in the weeks immediately after the terrorist attacks, made the ultimate determination for the FBI New York Field Office regarding clearance of September 11 detainees.
FBI agents assigned to the I-44A squad told the OIG that obtaining final approval from Maxwell on a clearance investigation often took a significant amount of time because of his hectic schedule. Agents said they would gather ten or more cases before approaching Maxwell to conduct reviews and, in most
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instances, they said Maxwell would sign clearance letters for all of the detainees. However, FBI agents said sometimes Maxwell would return a case to them for further investigation or would refer the case to the JTTF.
Until October 24, 2001, the FBI New York Field Office believed that no additional checks, other than its clearance process, were required to clear a detainee. On October 24, however, officials at FBI Headquarters notified its field offices that FBI Headquarters, rather than individual field offices, would be responsible for coordinating CIA “name checks” on all detainees (discussed in more detail below). The remainder of the tasks associated with the clearance investigation, including interviews of the detainee and any other witnesses as well as checks of law enforcement databases, remained the responsibility of FBI field offices.
C. CIA Name Checks
As part of the clearance process, the Department decided to ask that the CIA also conduct name checks on all September 11 detainees. The FBI centralized the CIA checks at FBI Headquarters because of concerns that requests from individual FBI field offices would flood the CIA and complicate its ability to respond. Prior to the September 11 attacks, FBI field offices across the country used a computer system to check if the CIA had information on a particular person. If that search was positive, or if the field offices wanted a more in-depth search, they contacted the CIA directly for information on a particular person. Similarly, the INS’s NSU would send its inquiries directly to the CIA’s Office of General Counsel (OGC), the point of contact for these informational requests.
An attorney in the CIA OGC explained to the OIG that prior to September 11, after receiving an inquiry from the FBI or INS, CIA OGC staff would send queries to the various CIA branches that might have pertinent information. CIA OGC staff would gather all relevant files and notify the FBI or INS that the information was available for review. AN FBI analyst or INS attorney would then review the CIA information. While this process was labor intensive and time consuming both for the CIA and the agency seeking the information, the CIA OGC attorney said that it had worked well in the past because the number of requests before September 11 was relatively small.
After the September 11 attacks, this system no longer worked because of the large volume of requests from the FBI. For example, a November 6, 2001, letter from the CIA OGC to an FBI special agent assigned to the SIOC Working Group explained that files of 42 individuals had been collected and were awaiting review. The letter also noted that the OGC has limited space in its offices for file storage and requested that the files be reviewed promptly.
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In late October 2001, because of concerns that the checks which could be done from FBI offices were not adequate and because of the volume of requests for name checks sent directly to the CIA, FBI Headquarters centralized the process and required that all contact with the CIA concerning September 11 detainees be routed through FBI Headquarters. The FBI New York Field Office received an EC dated October 24, 2001, from an FBI agent assigned to the SIOC Working Group that stated:
Effective with this communication, all CIA name checks will be conducted by FBIHQ. Therefore, once FBI New York has determined that there is no investigative interest in a detainee, FBI New York should send an EC to [the FBI] requesting that CIA name checks be conducted. Once [the FBI] has received the results of the CIA name checks, and a determination is made that there is no information of lead value, [FBI Headquarters] will advise FBI New York of this fact so that FBI New York can provide INS New York with a no investigative interest letter. FBI New York should not provide no interest letters to INS New York without CIA name checks being conducted.
Consequently, as of October 24, 2001, FBI Headquarters took over responsibility for the CIA name check portion of the detainee clearance process. After that date, the FBI New York Field Office did not issue clearance letters until it heard from FBI Headquarters that the CIA name check had not discovered any negative information associated with a September 11 detainee.
IV. TIMING OF CLEARANCES
We found the FBI took a long period of time to clear September 11 detainees. In an effort to examine the timeliness of the clearance process, the OIG analyzed information detailing the date detainees were arrested and the date FBI Headquarters issued final clearance letters.
The FBI cleared less than 3 percent of the 762 September 11 detainees within three weeks of their arrest. The average length of time from arrest of a September 11 detainee to clearance by FBI Headquarters was 80 days, and the median was 69 days. Further, we found that more than a quarter of the 762 detainees’ clearance investigations took longer than 3 months. See Table 3 and Figure 7.
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Table 3
Number of days from arrest to FBI HQ clearance: Average Median Minimum Maximum Missing values*

80.1 69 8 244 130

Figure 7 Number of Days from Arrest to FBI HQ Clearance

200

150

100

50

0 1-30 days
Frequency of days 42

31-60 days
198

61-90 days
199

91-120 days
89

121-150 days
53

151-180 More than Missing days 180 days values *

33

18

130

*Arrest date or FBI Headquarters clearance date missing

V. DELAYS IN THE CLEARANCE PROCESS

A variety of factors contributed to the discrepancy between the time frames envisioned by Department officials overseeing the detainee clearance process and the actual time it took to clear detainees. Some of the delay was attributable to a Department decision to include all New York City area arrests in the pool of detainees who needed FBI clearances. Another reason for the delay was a shortage of agents at FBI field offices available to conduct detainee clearance investigations, given the many demands on the FBI in the fall of 2001 and early 2002. We concluded that the delay was not significantly affected by CIA response time on name checks, as some officials claimed to the OIG. Rather, a larger part of the delay was because of the length of time it took for FBI Headquarters officials to review CIA responses to the name checks.

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A. Inclusion of New York Arrests on the INS’s “Special Interest” List Requiring Clearances
Despite the elaborate system developed by INS Headquarters to identify and process aliens arrested in connection with the PENTTBOM case, INS officials in Washington, D.C. discovered – almost by accident – a large number of “special interest” cases not included on its Custody List that required clearances before release. By the end of October 2001, officials at INS Headquarters determined that the FBI’s New York Field Office was maintaining a separate list of approximately 300 detainees arrested in connection with the PENTTBOM investigation, most of whom were not on the INS Headquarters’s Custody List. These aliens were arrested on immigration charges in the New York City area by INS agents working with the New York JTTF. The names had been provided to the FBI’s New York Field Office, but had not been reported to the INS NSU as required by the Operational Orders issued by INS Headquarters, which we described previously in this chapter. By the time officials at INS Headquarters became aware of these additional detainees, many already had been detained for several weeks.
During discussions about what to do about the detainees on this separate New York list, officials at the INS, FBI, and the Department raised concerns about, among other things, whether the aliens had any nexus to terrorism. However, in the end, the New York list was combined with the INS Headquarters’s Custody List because of concerns that without further investigation of these aliens prior to removal, the FBI could unwittingly permit a dangerous individual to leave the United States.
1. Background to the New York Custody List
As noted above, unlike elsewhere in the country, where detainee cases were individually assessed for placement on the national INS Custody List, the FBI New York Field Office decided that all aliens arrested in connection with a PENTTBOM lead would be investigated fully, regardless of the factual circumstances of their arrests. In the first weeks after the terrorist attacks, FBI officials in New York City created a list of every alien arrested in connection with a PENTTBOM lead, regardless of the circumstances of the arrest. New York FBI and INS officials agreed that the INS New York District would detain all of the aliens without bond until the FBI had a chance to fully investigate and clear each one. As discussed previously, prior to centralization of the clearance process at FBI Headquarters in October 2001, aliens were removed from New York’s custody list only after receiving a clearance letter signed by Maxwell, the Assistant Special Agent in Charge of the FBI New York Field Office.
In early October 2001, an INS attorney in Newark forwarded INS Headquarters case names that the INS Newark District believed were on the
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INS Custody List but that in fact were not on the list. This led INS representatives to the SIOC Working Group to realize that the INS in New York and Newark had not been reporting all PENTTBOM-related cases to Headquarters, as required by the Operational Orders.
INS officials convened a meeting on November 2, 2001, to discuss why its New York office had failed to report the names contained on this separate list of “special interest” detainees, given efforts at INS Headquarters to ensure that it would be aware of all “special interest” cases. According to notes from the meeting, the INS New York Assistant District Director for Investigations explained that the FBI could not determine its interest in a large group of aliens arrested in connection with the PENTTBOM probe. Therefore, the INS New York District had read Pearson’s Operational Order 10 to mean that such cases not be forwarded to INS Headquarters.43 During the meeting, Pearson asked whether the aliens in question had been initially held without bond, and he learned that they had been.
The OIG attempted to determine why the New York FBI and INS offices failed to keep FBI and INS Headquarters informed of all aliens who would be subject to the clearance investigation requirement. A variety of witnesses told the OIG that federal law enforcement organizations in New York City have a long history of taking actions independent of direction from their Washington, D.C., headquarters. Several witnesses pointed out that the U.S. Attorney’s Office in the Southern District of New York and the FBI’s New York Field Office have coordinated many major terrorism investigations in the United States, including the 1993 World Trade Center bombing and the African embassy bombings. Witnesses told the OIG that the U.S. Attorney’s Office and FBI’s New York Field Office were accustomed to functioning in a highly independent manner with little oversight from officials in Washington, D.C.
Discovery of a large group of PENTTBOM-related detainees who had to be cleared and who were unknown to INS Headquarters until mid-October 2001 presented a host of problems, and several persons told the OIG that the INS aggressively sought to prevent wholesale incorporation of the New York list of approximately 300 detainees into its “INS Custody List.” By this time, INS officials already were concerned about the slow pace of FBI clearances even though the SIOC Working Group was only dealing with 200 detainee cases. Moreover, INS officials were concerned about such a merger’s impact because the New York list indicated that 85 cases were “unassigned,” meaning no FBI agents were working clearance investigations for these detainees. In addition,
43 Operational Order 10, issued by Pearson to all INS field offices on September 22, 2001, instructed INS field agents to exercise “sound judgment” in determining whether circumstances required immediate arrest and detention of aliens, and urged the agents to limit arrest to those aliens in whom the FBI had an interest.
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contemporaneous notes indicate that at least one INS Headquarters official was concerned about how it would look when the Department’s statistics regarding the number of September 11 detainees doubled overnight.
2. Merger of Lists
On October 22, 2001, the Senior Counsel in the Deputy Attorney General’s Office who worked on immigration matters, an attorney from the Terrorism and Violent Crime Section (TVCS), two attorneys from the Department’s Office of Immigration Litigation (OIL), an attorney from the FBI’s OGC, and the Unit Chief of the FBI ITOS staff met with INS staff to discuss the problems presented by the New York list. The INS sent multiple representatives to the meeting, including Victor Cerda (Commissioner Ziglar’s Chief of Staff), INS Deputy General Counsel Dea Carpenter, and others. Notes taken at the meeting by an INS attorney reflect that INS officials argued vehemently against subjecting all September 11 detainees on the New York list to the full FBI clearance process because, among other things, the clearance investigations were not being expeditiously completed.
According to meeting notes, Carpenter also stated that the Department might be subject to “Bivens liability” if it did not release the New York detainees in a timely manner.44 Another person at the meeting commented that the INS could not hold the detainees “forever.” One of the INS attorneys at the meeting who was in the SIOC Working Group noted that the recent reassignment of a helpful FBI special agent had brought the information flow from the FBI to the INS to a “grinding halt,” further delaying the clearance process. Among the issues raised at the meeting was the Department’s requirement that CIA checks be completed on all detainees before they could be released.
A similar group held a follow-up meeting at the FBI’s SIOC on November 2, 2001, to continue discussing what to do about the separate New York list. Associate Deputy Attorney General Levey attended the meeting, along with representatives from INS OGC; Cadman, the Director of the INS’s NSU; Cerda; and attorneys from the INS’s Bond Unit, OIL, and TVCS, among others. Raymond Kerr, the Supervisory Special Agent in charge of the I-44A squad in the FBI’s New York Field Office, participated by speakerphone. Contemporaneous notes taken by participants and subsequent OIG interviews indicate that the meeting was very contentious. According to the notes, INS officials expressed a wide range of concerns during the meeting, including the fact that FBI clearance checks on the detainees were not timely, that the INS
44 In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that damages may be obtained for injuries stemming from violation by a federal official of a person’s Fourth Amendment right to be free from unreasonable search and seizure.
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had insufficient evidence for upcoming bond hearings, and that Immigration Judges already had ordered certain September 11 detainees to be removed from the United States. When an INS official complained that the INS could not continue to hold the detainees, Levey responded that the INS needed to be patient. According to the notes, Levey said that he did not expect INS to wait months for the results of the clearance checks, but that the INS could wait four to five days for the CIA checks. The group also discussed resource problems at the FBI and INS, as well as ways to improve the flow of information between the two agencies.
According to the notes of the meeting, FBI Supervisory Special Agent (SSA) Kerr said the time frame for assigning a September 11 detainee case to an FBI agent for a clearance investigation was a few days. He urged Levey to direct that all the detainees on the New York list continue to be held without bond until cleared. Notes taken by a participant at the meeting summarized the conflict: “In NY, all people FBI picks up on pentbom [sic] get held no bond. Everyone else, INS exercises a little discretion, looking for a scintilla of evidence, to justify no bond.”
Cerda argued that the New York list should not be added wholesale to the INS’s Custody List. He explained that the INS did not want to begin treating all the detainees on the New York list under the more restrictive INS policies applicable to September 11 detainees. He stated that, for the most part, detainees’ placement on the list meant they did not get off for a long time. During the meeting, at least one INS official suggested dispensing with CIA checks for detainees who otherwise had been fully cleared by the FBI. Levey told the group that the Criminal Division favored the CIA checks and that he would need to check to see if any detainees could be released without the CIA check.
At the conclusion of the meeting, Levey decided that all the detainees on the New York list would be added to the INS Custody List and held without bond. In explaining his decision later to the OIG, Levey said he wanted to err on the side of caution so that a terrorist would not be released by mistake. He also stated that he had received a commitment from the FBI to “expedite” its investigation of everyone on the list, and a promise that the FBI would “analyze” all the detainees within one or two weeks. The FBI OGC attorney present at the November 2 meeting said she does not recall making, or hearing Kerr make, such a commitment. Kerr told the OIG that, while present at the November 2 meeting, he may well have committed to assigning the case within a short time frame but he does not recall making a commitment to expedite all the cases or analyze all the cases within two weeks. The notes of this meeting provided to the OIG by INS and TVCS officials contain mention of Kerr’s commitment to assign the “unassigned” cases to agents within a few days, but make no mention of a commitment to “expedite” the investigations or of any promise to “analyze” the cases within one to two weeks. According to
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contemporaneous notes from the meeting, Cerda stated at the end of the meeting that the “INS position is that we don’t want to ‘no bond’ the NY list. But we will comply with the no bond policy.”
As a result, on November 2, 2001, the INS Custody List contained 185 active INS cases and 34 inactive cases (meaning 34 detainees had been cleared). On November 5, 2001, after the New York cases were added, the INS Custody List contained 440 active and 41 inactive cases. The addition of the New York cases to the INS Custody List made the task of removing people from the list “unmanageable,” according to one INS participant at the meeting, and it clearly had the effect of slowing the clearance process.
B. Delays in the Field Portion of the Clearance Investigation
According to members of the I-44A squad, reassignment of FBI agents to other duties contributed to delays in detainee field investigations. Kerr, the Supervisory Special Agent in charge of the I-44A squad, said he consistently requested additional resources for clearance investigations but was told they were unavailable, and that he had been given all the resources that could be spared, given the many priorities assigned to the FBI. For example, during the fall of 2001 and the spring of 2002, the FBI Newark Field Office had been assigned a substantial amount of work in connection with the anthrax investigation and the Daniel Pearl kidnapping in Pakistan. The FBI Philadelphia Field Office had responsibility for the Fresh Kills landfill on Staten Island, where officials were examining debris and remains from the World Trade Center. In addition, FBI agents were assigned to investigate the crash of an American Airlines flight in Queens on November 12, 2001, while other agents were sent to Salt Lake City in early 2002 to help with security at the Winter Olympics.
In addition, during some clearance investigations, FBI agents uncovered information that Maxwell, the Assistant Special Agent in Charge of the New York Field Office, thought warranted review by the New York JTTF. In those cases, FBI agents transferred the files to the JTTF. The documents we reviewed showed that the files often were not returned to the I-44A squad for many months.
Moreover, the method by which the FBI managed the clearance investigation process affected the timeliness of these investigations. According to the members of the I-44A squad, once the FBI investigated a lead and the INS arrested an individual in connection with that lead, agents generally moved on to the next lead rather than taking time to investigate or clear the person arrested. Furthermore, we found that FBI Headquarters did not impose deadlines on squad members or other FBI agents to complete September 11 clearance investigations.
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We also found instances in which I-44A squad supervisors did not prioritize clearance investigations, even in response to ECs from FBI Headquarters alerting the FBI New York Field Office about upcoming detainee bond hearings. FBI agents working in the I-44A squad said they never were told about any time limits with respect to the INS’s authority to detain these aliens without bond. While an FBI member of the SIOC Working Group was designated to serve as liaison to the I-44A squad, that person changed in midNovember 2001. The INS New York District liaison to the I-44A squad changed frequently, according to the squad supervisor. Consequently, the flow of information from the SIOC to the I-44A squad and from the FBI New York Field Office to INS Headquarters staff concerning the status of individual detainee clearances was, in the INS’s view, sporadic at best.
C. CIA Name Checks
Several FBI and INS officials interviewed by the OIG expressed frustration with the CIA checks required by FBI Headquarters. For example, Kerr told the OIG that he believed his office had the ability to conduct an adequate clearance investigation using its own contacts at the CIA and its long-standing experience investigating al Qaeda and other related terrorist groups. Within the INS, the frustration came not so much from who handled the CIA checks but rather how long it took.
According to INS officials, the FBI told them that the CIA name check played a major role in delaying completion of detainee clearance investigations for September 11 detainees. Cerda, the INS Chief of Staff, told Levey that the CIA name checks were causing delays in the clearance process. As a result, Levey attempted to facilitate an expedited CIA name check that would meet the Department’s desire to ensure that dangerous individuals were not released, but would not cause unreasonable delay.
Consequently, representatives from the CIA, FBI, INS, and the Department met at the FBI SIOC on October 23, 2001, and agreed that an expedited name check would be sufficient to meet the FBI’s needs. On October 29, 2001, the CIA’s Litigation Division Chief sent a draft letter to Levey that outlined the new, expedited process. The Litigation Division Chief explained that the FBI would send a cable to the CIA with detainee names, in priority order, together with required identifying information. The CIA agreed to check its main database for each name and provide copies of the search results to the FBI, including a summary of any “derogatory” information, on an “expedited basis.” Levey said he was told this expedited name check could be accomplished in 48 hours. An FBI agent in the SIOC Working Group told the OIG that he was told the CIA checks should take only a “few days.”
This check of the CIA’s main database was a less thorough search than had been pursued in the past at CIA Headquarters. The new process required
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only that the raw information be summarized by the CIA, rather than requiring the FBI to review the files itself. Under the plan, FBI and Criminal Division attorneys would review the initial CIA summary information and send the CIA a letter identifying any individuals for whom they wanted the CIA to conduct a broader database and records search. The letter from the CIA stated that the more thorough search, which would be initiated only upon receiving a specific request, in most cases would take approximately two weeks.
Yet, despite the new, expedited procedures, several FBI and Department officials we interviewed stated that there continued to be a substantial delay in the CIA’s response to requests for name checks on the September 11 detainees. Several officials argued this was a big part of the reason why the clearance process for September 11 detainees continued to take so long. According to CIA officials, after the Department and the CIA developed the expedited name check process, the CIA’s initial checks for September 11 detainees were completed within approximately eight days. However, our analysis did not substantiate this claim.
First, in a number of instances, we found the CIA’s response was delayed due to a failure by the FBI or INS to submit complete information. We found multiple instances in which the CIA responded that it was waiting on the INS Form I-213 (the INS’s arrest report) in order to complete the check.45 CIA staff interviewed by the OIG noted that the cables received from the FBI often did not contain adequate identifying information on the detainees, thereby making the searches more difficult and ultimately less helpful. For example, a November 26, 2001, letter from the CIA OGC to Levey and the Chief of the FBI OGC’s National Security Law Division explained that the FBI name check requests “do not provide all of the information upon which we agreed during our meeting.” The letter explained that the information from the INS Form I213 allowed the CIA to more quickly discard nonresponsive hits on similar names, thereby improving the response time. The attachments to the letter demonstrated that the FBI had failed to include information from the INS Form I-213, as agreed, and had also failed to prioritize the names.
Second, we found that the substantial delays in many of the September 11 detainee clearance investigations were attributable to delays at FBI Headquarters, not because of delays in CIA name checks. In many cases, the OIG found that the CIA provided the FBI with the results of its name check months before FBI Headquarters cleared the detainee. The OIG’s review of 54 detainees’ files showed that the CIA was not responsible for clearance delays.46
45 A blank copy of Form I-213 is attached as Appendix F.
46 The OIG sample consisted of 54 detainees from the INS Custody List who were identified by the INS as having been held more than 90 days as of January 23, 2002.
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In these 54 cases, the CIA responded in just over 2 weeks on average. In 18 of 54 cases, the CIA responded within 8 days. While these times slightly exceeded the time frame the Department anticipated during discussions at the October 23, 2001, SIOC meeting, the response times do not seem unreasonable, given that the Department sent up to 190 names to the CIA at one time.
In contrast, we found that the FBI took months to analyze the information after receiving a response from the CIA. In 36 of the 54 detainee cases in our sample, the records reflect an average of 54 days between when the FBI received the CIA name check information and when it cleared the detainees. In all 36 of these cases, the aliens ultimately were cleared. In 14 of these 36 cases, the CIA had responded that either there were no records of the individuals in its databases or the information they had was “not identifiable” with the detainees.47 In 22 cases, the FBI received some information but deemed it “not identifiable” with the detainees. In the remaining 18 of the 54 cases, we were unable to determine the time it took to analyze this information, due to insufficient data in the file.
In most instances, we found that Rolince, the ITOS Chief in the FBI’s Counterterrorism Division, issued the detainee’s clearance letter shortly after receiving an EC from the Supervisory Special Agent assigned to evaluate the CIA information that affirmed there was no identifiable CIA information on the detainee. Consequently, it appears that failure by the FBI to provide sufficient resources to review the CIA name check results in a timely manner significantly delayed the issuance of detainees’ clearance letters.
The FBI OGC attorney assigned to the SIOC Working Group explained to the OIG that she recognized that she and her fellow OGC attorneys could not evaluate the CIA cables themselves, because they lacked the expertise to do so, and the personnel in the SIOC assigned to the detainees did not have adequate resources to handle the analysis. She alerted her superior, FBI General Counsel Larry Parkinson, who contacted the Deputy Executive Assistant Director, Tim Caruso. Caruso then contacted the Chief of the National Domestic Preparedness Office, Tom Kinnally, which was part of the ITOS. Kinnally assigned two SSAs from that unit to assist with and oversee the analysis of the CIA information. One of the SSAs told the OIG that, at the time, every member of her unit was working on a “critical” assignment, including work related to the anthrax investigation. She said she and the other SSA were assigned to do the CIA checks full time beginning in late November 2001, but later in December they also were assigned to work on the creation of a
47 According to an FBI analyst who reviewed the CIA name check results at FBI Headquarters, “not identifiable” meant that “based on information available, it cannot be determined if the subject is, in fact, identical to CIA file references.”
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document exploitation unit. Beginning in approximately January 2002, 2 special agents were detailed to the CIA name check project for 30 days at a time. While this provided some help, it also required new agents to be trained on the project every month.
Moreover, we found that these resources were insufficient to permit the group to analyze the CIA information in a more timely manner for a number of reasons. First, according to one of the SSAs assigned to the project, the volume of cases was simply too great. One of the FBI requests to the CIA for information contained the names of 190 detainees. Second, the SSA pointed to many technical difficulties and “growing pains” they faced when they first started in late November 2001. For example, they had to find a person who had access to and was trained on the computer system that contained many of the documents they needed. According to the SSA, it took “several weeks” to get things in place and running. Third, many of the people working on this project were not focused exclusively on this task, due to the many demands on the FBI. Finally, some of the cases required contacting FBI offices overseas or other agencies, which took time, especially because the FBI offices in the Middle Eastern countries also were over-burdened at the time.
The SSA also stated that, despite all the efforts made to carefully evaluate the CIA information, for the most part it was almost impossible to determine if the information provided by the CIA was identifiable with the detainee. Even if the name was the same or quite similar, many of the names were common and the lack of other identifiers beyond names made connecting the information to the detainees nearly impossible.
The SSA explained that the group of agents and intelligence analysts assigned to the project attempted to prioritize its work so that those with final orders of removal or other issues could be dealt with first. Cases were sometimes brought to their attention that were “priority” due to a court date or order of removal.
In late November 2001, INS Chief of Staff Cerda contacted Levey by e-mail to complain again about the timeliness of the CIA checks. He stated that 157 September 11 detainees who otherwise had been cleared by the FBI were “in limbo” while waiting for CIA checks. He asked Levey whether the Department would reconsider its policy to require CIA checks under these circumstances.48
48 This demonstrates the misperception held by many people, including some at the INS, who incorrectly attributed delays in the clearance process to unresponsiveness by the CIA rather than at FBI Headquarters.
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By the time Cerda raised this concern, even Fisher, a Criminal Division Deputy Assistant Attorney General and a member of the SIOC Working Group who initially imposed the CIA check requirement, was willing to reconsider the issue. In a November 29, 2001, e-mail to TVCS supervisors, Fisher wrote, “I guess my initial view is that we should triage at this point, rather than scrap the system. Let’s hold on people where we have other [negative] information until the CIA checks go through. Let’s get a CIA list with priority. And for those who are ready to be deported and we have no other [negative] info, let’s let them be deported if CIA can’t check, as a last resort.”
Levey told the OIG that he did not feel comfortable making the decision about Cerda’s request to change the CIA check policy without additional input, so he consulted David Laufman, the Deputy Attorney General’s Chief of Staff. Levey told the OIG that Laufman advised him to continue to require CIA checks, and Levey said he communicated this decision to Cerda by e-mail. Laufman told the OIG that while he did not recall specifically being asked by Levey about the CIA check policy, he did not dispute Levey’s claim that they discussed the matter. Laufman also stated that there could be “catastrophic consequences” if the Department turned one person loose it should not have.
Levey said that even after the decision to keep requiring CIA checks, he continued to try to expedite the CIA check process. Ultimately, however, the decision to require CIA checks and FBI clearance before a September 11 detainee could be removed from the country was changed. On February 6, 2002, based upon the FBI’s re-evaluation of the “hold until cleared” policy, Levey changed the Department’s policy that up to that point required formal clearance from both the FBI and CIA before removing a detainee. Neither the FBI nor the Criminal Division opposed the change. This reversal is described in detail in Chapter 6 of this report.
D. Examples of Delays
The following are examples of how delays in conducting clearance investigations affected individual September 11 detainees:
• An alien arrested in early October 2001 in the New York City area had been employed by a Middle Eastern airline, although not as a pilot. The alien, who entered the United States as a crewman, had been ordered removed from the country in 1995. His appeal of that order had been dismissed in 1996. In October 2001, he was arrested based on a lead received by the FBI indicating he was employed in the airline industry. On the Form I-213 completed on the day of his arrest, the INS special agent indicated, “FBI Trenton stated there is no reason to delay with removal of the subject.” The alien was nonetheless placed on New York’s “special interest” list because he had been arrested on a PENTTBOM lead
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stemming from his previous employment in the airline industry. In mid-October 2001, FBI agents interviewed the alien, one of his relatives, and his previous employer. On November 21, 2001, the FBI agent assigned to the SIOC Working Group sent an EC to the Special Agent in Charge of the FBI Newark Field Office requesting information about the detainee, stating:
[A]ll response ECs should contain a statement from the SAC or his/her designee stating whether the FBI has an investigation [sic] interest in [the] detainee. If a field office does not have an investigative interest in a detainee, the response EC should state this fact and request that Project INS/FBI Detainee conduct appropriate CIA name checks. Once the no interest EC is received from a field office and CIA name checks are completed, a letter will be generated to INSHQ advising of FBI’s no interest if the name checks do not provide information of investigative interest.
The EC contained no specific deadline for a response, although it had a precedence of “Immediate” and requested the information “as soon as possible.”49 We could find no response from the FBI Newark Field Office. In early December 2001, FBI Headquarters requested that the CIA conduct a name check for the detainee. In mid-December 2001, FBI Headquarters sent a follow-up EC to the FBI Newark Field Office, also with a precedence of “Immediate,” again requesting the “interest/no interest” assessment. Before it received a response to this second EC, FBI Headquarters received the results of the CIA name check that found “no identifiable information” in connection with the detainee. The CIA response arrived 17 days after the FBI requested the name check. This detainee’s name subsequently appeared on a list of detainees held more than 90 days that the INS forwarded to the Office of the Deputy Attorney General during the third week of January 2002. Within a week of the detainee’s name appearing on this list, the FBI Newark Field Office provided FBI Headquarters with an EC stating it had “no interest” in the detainee and, based on that information, FBI Headquarters produced a clearance letter indicating that the INS could remove the detainee.
49 FBI ECs have a line marked “precedence” that can be designated “immediate,” “priority,” or “routine.” The FBI Investigative Manual states that the “immediate” designator is to be used when the addressee(s) must take prompt action or have an urgent need for the information. Immediate teletypes require approval by the special agent in charge, division head, or their designated representative (at FBI Headquarters) and must be given preferred handling. The FBI Investigative Manual states that “priority” is used when information is needed within 24 hours, while “routine” is used when information is needed within the normal course of business.
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Thus, it appears that the FBI completed all field investigative work within three weeks of the detainee’s arrest. The CIA check, which was negative, took slightly more than two weeks. Yet the detainee was not cleared for nearly four months. Based on the FBI Newark Field Office’s and Headquarters’s records in connection with this case, there does not appear to be any justification for the three-and-a-half-month delay in clearing this detainee. Furthermore, the timing of the clearance suggests that the reason the FBI finally cleared him was due to his inclusion on the list forwarded by the INS to the Office of the Deputy Attorney General.
• A Middle Eastern man in his 20s was arrested on August 30, 2001 – more than a week prior to the terrorist attacks – for illegally crossing the border from Canada into the United States without inspection. After the September 11 attacks, the alien was placed on the New York “special interest” list even though a document in his file, dated September 26, 2001, stated that FBI New York had “no knowledge” of the basis for his detention. FBI Headquarters did not request a CIA name check on the detainee until November 8, 2001. The name check came back negative 13 days later, but the clearance letter was not issued until December 7, 2001. The alien was removed in late February 2002.
• A Muslim man in his 40s, who was a citizen of ▀▀▀ ▀▀▀▀▀▀ ▀▀▀▀▀▀▀, was arrested after an acquaintance wrote a letter to law enforcement officers stating that the man had made anti-American statements. The statements, as reported in the letter, were very general and did not involve threats of violence or suggest any direct connection to terrorism. Nonetheless, the lead was assigned to a special agent with the JTTF and resulted in the man’s arrest for overstaying his visa. Because he had been arrested on a PENTTBOM lead, he automatically was placed in the FBI New York’s “special interest” category.
Within a week, the New York FBI Field Office conducted a detailed interview of the detainee. By mid-November 2001, the Field Office concluded that the detainee was of no interest. However, FBI Headquarters did not request a CIA name check until December 7, 2001. In addition, FBI Headquarters failed to include the INS Form I-213 with its request to the CIA, even though the FBI Field Office’s records reflected that the FBI had a copy of the detainee’s Form I-213 in its file. A CIA response to the FBI’s request, dated late February 2002, indicated that the detainee’s case was one of those “pending 213s from 12/7.” The response also indicated that the CIA found “no identifying information” about the detainee in its databases. FBI Headquarters issued the detainee a clearance letter the next day. Thus, it appears that this alien, who was cleared by the New York FBI Field Office by mid-November
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2001, was not cleared by FBI Headquarters until late February 2002 due to an administrative oversight.
E. Knowledge of the Delays in the Clearance Process
At the end of September 2001, an attorney from the Criminal Division’s TVCS, who was also a member of the SIOC Working Group, raised concerns to his superiors that the FBI lacked adequate resources to conduct detainee clearances in a timely manner. In response, the Principal Deputy Chief of the TVCS drafted a memorandum in late September or early October 2001 from Assistant Attorney General Chertoff to Dale Watson, then the Assistant Director of the FBI’s Counterterrorism Section. The draft memorandum requested that each FBI field office designate at least one agent to promptly interview September 11 detainees held in that district, and urged that these interviews be conducted on a “priority basis.” The memorandum also requested that “[s]ufficient resources must be allocated in SIOC to provide notification to field offices of detainees and bond hearings in their districts and to facilitate the exchange of information to the INS attorney who will appear at the bond hearing. Currently, one person is handling this responsibility for all detainees and detention hearings with only intermittent assistance.” Finally, the draft memorandum noted that “It is important that these aliens in detention are handled appropriately to make sure that those who are of investigative interest continue to be detained and those who are not of investigative interest are handled by the INS in the manner that similarly situated aliens would be handled.”
After reviewing the draft memorandum, the TVCS attorney sent a typed note to the Chief and Deputy Chief of TVCS saying he believed that the FBI Director would “want to know that the field isn’t getting the job done.” He added, “To be candid, we are all getting screwed because the Bureau’s SACs haven’t been told explicitly they must clear, or produce evidence to hold, these people and given a deadline to do it.” He suggested that the way to resolve the problem was to “get to [FBI Director] Mueller or [Deputy Director] Pickard, and have them direct the SACs to interview, run checks and clear or recommend holding people within 24 hours and direct necessary HQ personnel to clear NLT [no less than] 24 hours after that.”50 He told the OIG the purpose of his typed
50 The attorney also wrote in his note, “We are sending INS into immigration court today to argue, in essence, that he [the alien] be held without bond because of WTC [World Trade Center].” The TVCS attorney told the OIG that after reviewing the files of these detainees it was “obvious” that the “overwhelming majority” were simple immigration violators and had no connection to the terrorism investigation. He said continuing to hold these detainees was a waste of resources and could damage the Government’s credibility to oppose bond or release in more meritorious detainee cases. He acknowledged that the only way to know “for sure” if these detainees were linked to terrorism was to conduct clearance investigations, but he argued that the Government must provide the resources for such an effort.
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note was to “urge that the memo to the FBI be more blunt.” He said, with respect to this note, that the FBI was not staffing the detainee cases with sufficient resources. According to this attorney, the Criminal Division eventually decided not to send the memorandum to the FBI.
When interviewed by the OIG, Chertoff said that while he was familiar with the contents of the draft memorandum, he did not know whether it was sent (it was not, according to other witnesses). Chertoff recalled orally raising the issue of the pace of clearance investigations with FBI Director Mueller and Assistant Director Watson, but indicated that during the first few months after the attacks he believed these issues related to the impact of the clearance process on bond hearings (as opposed to removal of aliens from the United States). Chertoff told the OIG that he later became aware of a delay in removing detainees when he received questions from Congress about this issue as a follow-up to his November 28, 2001, testimony before the Senate Committee on the Judiciary.51
Director Mueller said he did not recall hearing about any problems with the clearance policy until the spring or summer of 2002. He said he did not recall any expectation of how long the process would take, and he did not learn how long the process in fact was taking. At some point, however, he said he learned that it was taking more than a few days. He said he would have expected problems with the clearance process and the time it was taking to be handled at a level lower than him.
INS Commissioner Ziglar told the OIG that he called FBI Director Mueller on October 2, 2001, to discuss the INS’s problems in obtaining timely clearances from the FBI. FBI Deputy Director Pickard returned the call. Ziglar said he told Pickard that the FBI was putting the INS in the awkward position of holding aliens in whom the FBI had expressed “interest” but then failing to follow through with a timely investigation. Ziglar said he told Pickard that unless the INS received written releases in a timely manner, the INS would have to start releasing September 11 detainees. Pickard, who retired from the FBI in November 2001, told the OIG that he did not recall this conversation with Ziglar. Further, he said that he had no recollection of any complaints from the INS regarding the pace of the FBI clearance process.
Ziglar also told the OIG that he contacted the Attorney General’s Office on November 7, 2001, to discuss concerns about the clearance process, especially the impact of adding the New York cases to the INS Custody List. He initially called David Ayres, the Attorney General’s Chief of Staff, but recalls
51 Chertoff is apparently referring to this question posed by Senator Leahy: “Is the Department intentionally holding people in American custody even after they have been ordered removed?”
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reaching David Israelite, the Deputy Chief of Staff. According to Ziglar, he alerted Israelite to the fact that September 11 detainee cases were not being managed properly and warned of possible problems for the Department. Ziglar told the OIG that he was frustrated at this time and felt powerless to resolve the situation because he had no authority over the FBI, which was responsible for determining which detainees were “of interest,” who would be cleared, and when. Israelite told the OIG that he could not recall this particular conversation with Ziglar and did not recall any complaints from the INS during the fall of 2001 regarding the clearance process for September 11 detainees.
Ziglar said that based on these and other contacts with senior Department officials, he believed the Department was fully aware of the INS’s concerns about the ramifications caused by the slow pace of the detainee clearance process. When asked why he did not press the issue with the Attorney General or the Deputy Attorney General, he acknowledged that at some point he should have “gone around the chain of command” directly to the Attorney General or the Deputy Attorney General, but he felt it would have been futile to approach them directly about these issues because he did not think the outcome would have been different.
Deputy Attorney General Thompson told the OIG that he had not been made aware of the slow pace of FBI clearance investigations. He said that had the INS alerted him to the time limits it believed were applicable, he would have contacted the FBI immediately. Thompson said he received regular briefings during this period regarding the INS in which he was assured that the immigration processes for the detainees were being handled “properly.”
The Attorney General stated that he had no recollection of being advised that the clearance process was taking months, nor did he recall hearing any complaints about the timeliness of the clearance process or a lack of resources dedicated to the effort to clear detainees.
VI. FBI WATCH LIST
In contrast to the inefficient way that the clearance process for September 11 detainees on the INS Custody List was handled, the FBI handled clearances from another important list – its watch list – in a more efficient manner.52 We briefly discuss the FBI’s handling of this watch list to illustrate the differences in how the two clearance processes were handled.
52 We have not analyzed legal issues that may be presented by the creation of such a list, nor have we determined whether the list itself was effective from an investigatory or public safety perspective.
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The day after the terrorist attacks, the FBI began developing a watch list originally designed to identify potential hijackers who might be planning additional terrorist acts once air travel resumed. The FBI distributed the watch list to airlines, rail stations, and other common carriers to assist in its terrorism investigation.
The FBI developed two versions of the list. One contained a person’s name and date of birth only and the other contained additional information. The information on the lists was updated once or twice daily. The FBI provided the name and date of birth list to common carriers such as Amtrak, bus companies, truck rental companies, and the National Business Aviation Association. By September 26, 2001, the list had grown from the initial names to several hundred. As word spread nationwide that such a watch list existed, various agencies requested that names be added to the list.
Kevin Perkins, the Inspection Division Section Chief at FBI Headquarters who coordinated the watch list, told the OIG that he immediately recognized that the existence of the list created risks that innocent persons not connected to terrorists would be unfairly implicated. He said he wanted to create a mechanism for limiting who was placed on the list and for removing people from the list as quickly as possible. Perkins recruited an attorney from the FBI’s Office of General Counsel to assist with managing the watch list and asked the attorney to develop parameters for placing names on the list that followed the Attorney General’s guidelines for opening a criminal case. The attorney prepared a one-page document called “Screening Characteristics for Lookout Lists” that set out three categories of persons to be placed on the list.
Perkins said the list eventually grew to as many as 450 people. At one point, Perkins’s supervisor said he directed that no one could be added to the list without his authorization. When interviewed by the OIG, Perkins and the attorney assisting him said they became concerned that individuals were being placed on the list who had no connection to terrorists. For example, because the airlines use a “soundex” system to retrieve like-sounding names, this resulted in names ending up on the list as soundex matches to names that were entirely different. Perkins also gave an example where a group of entries on the list all had the same first initial and a common last name, with no additional information.
Perkins told the OIG that he quickly turned his attention from regulating who got on the list to working to get people off the list. He recruited a group of legal instructors stationed at the FBI Academy in Quantico, Virginia, to help manage the process. Perkins said he ensured that all of the names on the list were indexed and he created a file for each. He asked the legal instructors to take each file and review how each person got on the list and what work had been done by FBI field offices to follow up on any initial leads. He told the OIG
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that he asked the legal instructors to review the sufficiency of the information and to run records checks for each person.
Perkins said that in some instances, removing people from the list was not difficult. For example, a ▀▀▀▀▀▀▀ FBI field office had provided information that approximately 20 Arab men attended the same flight schools as the hijackers, so these men were placed on the list. Upon further checking, this information turned out to be inaccurate – the men had attended flight schools, but not the same ones as the hijackers. Consequently, the men’s names were taken off the list.
By late October 2001, the FBI alerted its field offices that it had stopped adding names to the watch list. By the end of November 2001, Perkins said the team had reduced the watch list to 20 to 30 names, 19 of which were the names used by the hijackers (the FBI was uncertain whether they had used their real names).
VII. OIG ANALYSIS
The Department reacted swiftly to the attacks on the World Trade Center and Pentagon by launching a massive investigation in this country and abroad. Within a week of the attacks, the FBI had assigned more than 7,000 employees to the task of tracking down anyone who had aided the terrorists and attempting to prevent additional attacks. In the ensuing weeks, JTTF agents and other law enforcement officers across the country arrested hundreds of illegal aliens they encountered while pursuing PENTTBOM leads, whether or not they were the subjects of the leads. While it is beyond the scope of the OIG’s review to assess the appropriateness of these law enforcement actions, we saw some instances of the detention of aliens that appear to be extremely attenuated from the focus of the PENTTBOM investigation.
The Department instituted a policy that all aliens in whom the FBI had interest in connection with the PENTTBOM investigation, no matter how tangential the connection, required clearance by the FBI of any connection to terrorism before they could be removed or released. Therefore, determining which of these aliens was “of interest” to the FBI’s terrorism investigation became the first of a series of critical decision points. We found that often the FBI could not state whether or not it had an interest in a particular alien and therefore, out of an abundance of caution, the FBI labeled the alien of interest or of unknown interest, and consequently the INS treated the alien as a September 11 detainee who required clearance from the FBI before he could be released.
In fact, in New York City we found that the FBI and the INS made little attempt to distinguish between aliens arrested as subjects of a PENTTBOM lead and those encountered coincidentally. This lack of precision had
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important ramifications for many aliens in the time they spent confined and the conditions of that confinement, as we discuss in subsequent chapters of this report.
We do not criticize the decision to require FBI clearance of aliens to ensure they had no connection to the September 11 attacks or terrorism in general. However, we criticize the indiscriminate and haphazard manner in which the labels of “high interest,” “of interest,” or “of undetermined interest” were applied to many aliens who had no connection to terrorism. Even in the hectic aftermath of the September 11 attacks, we believe the FBI should have taken more care to distinguish between aliens who it actually suspected of having a connection to terrorism as opposed to aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead. Alternatively, by early November 2001, when it was clear that the clearances could not be accomplished in a matter of days (or even weeks), the Department should have permitted the FBI and INS to review the cases and keep on the list only those detainees for whom there was some factual basis to suspect a connection to terrorism or to the PENTTBOM investigation.
We found that the information provided to high-level Department officials suggested that this “hold until cleared” policy was being applied to persons “suspected of being involved in the September 11 attacks.” In practice, the policy applied much more broadly to many detainees for whom there was no affirmative evidence of a connection to terrorism. This disconnect should have been discovered earlier and should have caused a review of the manner in which detainees were being categorized.
We appreciate the difficulty of making a definitive and expeditious determination in many cases, and realize that in the weeks and months after September 11 law enforcement decided to err on the side of caution. However, the manner that these designations were applied to arrested aliens was in many cases weak. Moreover, the FBI failed to provide adequate field office staff to quickly conduct the detainee clearance investigations and failed to provide adequate FBI Headquarters staff to effectively coordinate and monitor the detainee clearance process. This contributed to the slow pace of the FBI’s clearance process, which meant the FBI’s initial determination of its “interest” had enormous consequences for the detained aliens.
We also found that the FBI’s clearance process was understaffed and not accorded sufficient priority. Moreover, despite the belief at high levels of the Department that the clearance investigations underlying the “hold until cleared” policy could be and were being done quickly, we found that they were not. The average time from arrest to clearance was 80 days and less than 3 percent of the detainees were cleared within 3 weeks of their arrest.
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We found several reasons for this substantial delay. Although initially the clearance process was handled exclusively at local FBI offices, the clearance decision was soon centralized at FBI Headquarters. While the desire to centralize these decisions was supportable, given the need for a consistent process overseen on a national basis, centralization delayed the clearance process.
Moreover, the FBI failed to devote adequate resources to the task. Agents responsible for clearance investigations were often assigned other duties and were not able to focus on clearance investigations. The result was that detainees languished on the list for weeks and months, with no investigations being conducted.
Another reason for the delay was the inclusion of all New York City detainees arrested in connection with PENTTBOM leads being placed on the INS Custody List and therefore requiring FBI clearance. While this decision also was supportable, given the desire not to release any alien who might be connected to the attacks or terrorism, the inclusion of so many detainees in the clearance process required the FBI to devote additional resources to the clearance task. This did not happen, and the inclusion of 300 new names on the list overwhelmed the resources of the FBI in conducting clearance investigations.
As part of the clearance investigation, the Department required CIA name checks for all September 11 detainees. While we were told that the CIA delayed conducting the checks, we did not find this to be true. We found that the CIA conducted the checks in a timely fashion and that the delays relating to CIA name checks resulted from inaction by the FBI in reviewing the checks, not delays by the CIA in conducting them.
In contrast to the untimely manner in which the FBI handled the clearance process for September 11 detainees, the FBI handled adding and removing names to its watch list in a much more timely manner. Although we did not conduct an in-depth analysis of the watch list, it is clear from our limited review that the FBI was cognizant of the need to expeditiously remove people from that list who should not be on it. By contrast, the FBI did not devote similar attention to clearing September 11 detainees who had no connection to terrorism. The handling of the watch list also demonstrates the benefits of placing an individual with operational authority and access to substantial resources in charge of a project of this nature.
The untimely clearance process had enormous ramifications for September 11 detainees, who were denied bond and also were denied the opportunity to leave the country until the FBI completed its clearance investigation. For many detainees, this resulted in their continued detention in harsh conditions of confinement, which we describe in the chapters that follow.
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CHAPTER FIVE
THE DEPARTMENT’S “NO BOND” POLICY FOR SEPTEMBER 11 DETAINEES
This chapter examines the Department’s “no bond” policy for September 11 detainees. We first provide background on relevant immigration law, including an overview of the charging, bond, and removal processes for aliens arrested for immigration violations. Next, we describe the Department’s efforts to oppose bond for all September 11 detainees while the FBI conducted its clearance investigations. We also address the INS’s efforts to comply with the policy, despite its concerns about the legal dilemma created by the lack of information for bond hearings.
I. BACKGROUND ON IMMIGRATION LAW
The INS has authority to arrest aliens if they are present in the United States in violation of immigration law. Aliens who were never lawfully admitted into the United States are labeled “inadmissible.” Aliens who were lawfully admitted into the United States but failed to maintain their immigration status, overstayed their visa, or engaged in unlawful conduct are “removable” or “deportable.” In either case, the proceeding that ensues is currently referred to as a “removal” proceeding. It takes place in the Immigration Court, a trial-level tribunal that determines whether an alien is in the United States in violation of law, and, if so, whether any waiver or benefit is available that would allow the alien to remain in the United States lawfully.53 The Office of the Chief Immigration Judge coordinates the activities of the more than 220 Immigration Judges located in 51 Immigration Courts throughout the country. Decisions of Immigration Judges may be appealed to the Board of Immigration Appeals (BIA). Both the trial and appellate-level courts are components of the Department of Justice, under the authority of the Attorney General. In certain instances, aliens may appeal the decisions of the BIA to federal court.
Removal proceedings begin when the INS issues a “Notice to Appear” (an “NTA”) to an alien detained on federal immigration charges. As we described in Chapter 3, the NTA, issued by an INS District Director, is the charging document in a civil immigration case. The INS serves the NTA on both the alien and the local Immigration Court.
53 Removal proceedings are generally referred to as “section 240 proceedings” because they are governed by section 240 of the Immigration and Nationality Act, codified at 8 U.S.C. §§ 1101-1537.
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The INS District Director is responsible for setting the initial bond for an alien. The alien can request a bond re-determination hearing before an Immigration Judge by marking a box on the INS Form I-286 “Notice of Custody Determination,” which is served on the alien at the same time as the NTA.54 In certain cases, aliens are not eligible for bond, but in most cases, according to the INS General Counsel, the INS must provide justification to support its position to hold aliens without bond.
Separate from the bond hearing, the alien is entitled to a merits hearing.55 If the Immigration Judge orders removal and the alien does not appeal, the “order of removal” becomes final and the “removal period” begins. This removal period is the phase during which the INS arranges for the alien to be returned to the alien’s country of citizenship. Under federal immigration statutes, the INS “shall remove the alien within a period of 90 days” from the date the order becomes final.56 There are a number of reasons why removal may not be accomplished within that time frame, which the statute takes into account, such as aliens obstructing their return or a failure of the alien’s home country to accept the alien’s return. The removal period generally begins on the date the removal order becomes administratively final. Where an alien is being held for non-immigration reasons (such as when an alien is serving a criminal sentence), the removal period begins on the date the alien has finished his criminal sentence. The removal period can be extended if the alien fails to apply in good faith for travel or other documents necessary for his or her departure or takes other actions to prevent his or her removal.
According to the Immigration and Nationality Act, aliens who receive final orders of removal while being detained by the INS must continue to be detained during the 90-day “removal period.”57 Once the initial 90-day removal period is over, if the alien has not departed the country the alien “shall be subject to supervision under regulations prescribed by the Attorney General.” The statute permits certain aliens to be detained beyond the 90-day removal period, including those whom the INS – through a delegation of authority from the
54 See copy of Form I-286 at Appendix G.
55 The merits hearing is held to determine whether the alien is removable, or whether the alien is entitled to relief that would permit the alien to stay in the United States despite the fact that the alien is technically removable, such as if the alien is eligible for asylum.
56 8 U.S.C. § 1231.
57 “[D]uring the removal period, the Attorney General shall detain the alien.” 8 U.S.C. § 241(a)(2) (emphasis added).
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Attorney General – identifies as risks to the community or whom are unlikely to comply with the removal order.58
In the alternative, an alien can avoid an order of removal (and the negative consequences of such an order, including its 10-year ban on returning to the United States) by agreeing to voluntarily depart the United States. Aliens who accept “voluntary departure” may remain in custody pending departure or may be released.59
II. DEPARTMENT’S STRATEGY FOR MAINTAINING DETAINEES IN CUSTODY
As discussed in Chapter 2, after September 11 the Department was concerned about the possibility of additional terrorist attacks and the FBI immediately sought to shut down any “sleeper” cells of terrorists who might be preparing another wave of violence. The Department also wanted to ensure that the individuals it arrested as part of the PENTTBOM investigation would not be released to potentially cause additional harm, which led to the “hold until cleared” policy discussed previously. As Deputy Attorney General Thompson explained to the OIG, an individual arrested and detained posed no ongoing threat to the United States, and therefore law enforcement officials could focus on arresting others still at large who did pose a potential threat. Assistant Attorney General Chertoff told the OIG that, after the attacks, the Department almost immediately turned its attention to prevention, and that he and other top-level officials discussed using all legally available means to ensure that those who posed a danger would not be able to carry out further attacks.
The Attorney General told the OIG that, even though some detainees may have wanted to be released or may have been willing to leave the country, it was in the national interest to find out more about them before permitting them to leave. In addition, he said that the United States might want to share
58 According to INS data, 48 of the 762 (6 percent) September 11 detainees had received a final removal order prior to their arrest as part of the PENTTBOM investigation. Some of these detainees had been released from INS custody and ordered to appear on a certain date to be removed, but had failed to do so. Consequently, a final order of removal already was in existence for them when they were arrested after September 11 in connection with the terrorism investigation.
59 Certain aliens are not entitled to removal proceedings because they waived rights in advance of their arrival in the United States under the auspices of special programs, such as the Visa Waiver Program. Under the Visa Waiver Program, aliens from 28 specified countries may visit the United States for up to 90 days without first obtaining a visa. These aliens can be summarily returned to their countries if they are found to have violated the terms of the Visa Waiver Program.
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the information with the country to which the alien would be removed. He also noted that in the past the Department had problems with persons who were released pending appeal of their removal orders, because a very high percentage of them became “absconders” who later could not be located to be removed.
Within the Office of the Deputy Attorney General, the official primarily responsible for oversight of immigration issues was Associate Deputy Attorney General Stuart Levey. He and two attorneys (one a Senior Counsel) who reported to him coordinated the Department’s strategy to maintain control of the September 11 detainees until they were cleared by the FBI.
On September 27, 2001, the Senior Counsel in the Deputy Attorney General’s office sent an e-mail to David Ayers, Chief of Staff to the Attorney General, that included a “strategy for maintaining individuals in custody.” The first section of the document attached to the e-mail, “Potential AG Explanation,” explained that the Department was using several tools to maintain custody of all individuals suspected of being involved in the September 11 attacks, which involved criminal charges and material witness warrants for those in the country legally and immigration charges for those in the country illegally. The document noted that the INS already had 125 persons “related to this investigation” in custody, and that these detainees were requesting bond hearings. It stated:
In preparation for bond hearings for these individuals, the FBI and INS are diligently working to provide the INS attorneys in locations where these aliens are detained with all available information relating to the individual’s risk of flight and dangerousness. Attorneys from the Criminal and Civil Divisions are participating in this process to coordinate the immigration proceeding with the criminal investigation and to prepare to defend against petitions for writs of habeas corpus that these aliens will almost certainly file. In addition, the Criminal Division is examining each of the cases to determine whether the person can be detained on criminal charges or on a material witness warrant if the person is ordered released from INS custody.
The second section of the document explained that detained aliens who were not satisfied with their initial bond or no-bond determination could request bond re-determination hearings. The document then described efforts the FBI and INS would make to ensure that the aliens in question would not be released on bond.
According to the document, the INS would be obtaining information relevant to the alien’s risk of flight and dangerousness and would present that information to the Immigration Judge at the alien’s bond hearing through proffers, documents, or witnesses. If only classified information was available
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to establish the alien’s dangerousness or risk of flight, the information would be used only as a last resort after high-level review of the case. If the Immigration Judge ordered the alien’s release, the INS would “immediately” file a motion to stay that decision and would appeal the decision to the BIA. If the BIA ordered the alien released, the INS would refer the case to the Attorney General. According to the document, the Civil Division was preparing briefs in anticipation of having to oppose petitions that might be filed by aliens seeking release in federal court. The Department planned to argue that any such petitions filed before resolution of the aliens’ bond hearings were premature, and it planned to appeal any adverse decision from a federal district court granting release to these aliens. The strategy noted that if any alien “believed to be involved in the September 11 attacks” was ordered released, the Criminal Division might still be able to obtain a material witness warrant.
Implementation of this strategy, as discussed in the following sections of this chapter, determined whether a September 11 detainee would be released on bond pending a hearing on his immigration charges.
III. INS EFFORTS TO MAINTAIN DETAINEES IN CUSTODY
The INS took a variety of steps to ensure that aliens arrested in connection with the PENTTBOM investigation would not be released until the FBI had determined that they posed no danger to the United States. INS District Directors made an initial custody determination of “no bond” for all September 11 detainees (since granting bond could have resulted in the release of aliens not yet cleared by the FBI). Second, INS Executive Associate Commissioner for Field Operations Michael Pearson issued a directive two days after the terrorist attacks instructing INS field offices that no September 11 detainee could be released without Pearson’s written authorization. Third, officials at INS Headquarters created a bond unit to handle the September 11 detainees’ cases. Fourth, INS attorneys requested multiple continuances in bond hearings for September 11 detainees in an effort to keep the detainees in custody as long as possible. We describe these actions in turn.
A. Initial “No Bond” Determination
One of the initial steps taken by the INS to ensure that the September 11 detainees would not be released was the requirement that District Directors across the country who made the initial bond determination for aliens charged under federal immigration law make custody determinations of “no bond” for all September 11 detainees. As explained above, an alien initially denied bond by a District Director has the right to request a bond re-determination hearing before an Immigration Judge. In response to the blanket “no bond” policy, many September 11 detainees requested bond re-determination hearings. Consequently, the INS had to defend the “no bond” determination at hearings
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soon after the terrorist attacks. For example, 40 September 11 detainees had bond hearings scheduled during the week of September 24, 2001.
B. Pearson Order
Another aspect of the INS’s efforts to maintain control of aliens arrested as part of the PENTTBOM probe immediately after the terrorist attacks was a directive issued by Pearson to ensure that no September 11 detainee would be released by the INS until “cleared” by the FBI of any connection to terrorism. By September 13, 2001, Pearson issued an order to all INS field offices – at INS Commissioner James Ziglar’s request – directing that “Effective immediately, all persons arrested by the FBI, and turned over to the INS will not be released without written permission” from Pearson. In the initial period after the September 11 attacks, Pearson would not draft such a memorandum until he received a clearance letter from the FBI.60
C. Creation of a Bond Unit at INS Headquarters
To help INS field offices obtain evidence for the many bond hearings involving September 11 detainees, the INS established a Bond Unit at INS Headquarters in late September 2001. The unit, located at the FBI SIOC, consisted of six INS attorneys.
An e-mail sent by an INS National Security Law Division (NSLD) attorney to INS district offices on October 1, 2001, instructed all INS District Counsels to keep the Bond Unit informed of all bond hearings for aliens on the INS Custody List.61 This e-mail explained that Bond Unit attorneys would be working with the FBI and Department attorneys to review FBI Headquarters’s files for information that could be helpful at bond hearings for September 11 detainees. At the same time, the e-mail encouraged INS District Counsels to contact local FBI field offices to “ascertain if there is any information in the FBI file which could help INS maintain a successful ‘no bond’ position in litigation.” The e-mail indicated that the FBI had agreed to work cooperatively with local INS District Counsels to provide “as much information as possible without compromising the WTC/Pentagon investigations.” The e-mail also instructed the District Counsels to inform the Bond Unit of any information they obtained from FBI field office files so that the Bond Unit could review the information and “clear” it for use in a detainee’s bond hearing. This was designed to ensure
60 A sample of a “Pearson” memorandum is attached as Appendix H.
61 INS districts employ District Counsels who have staff attorneys who represent the INS in immigration proceedings, including bond hearings.
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that information used at such hearings would not compromise the ongoing September 11 investigation.62
D. Opposing Release at Bond Hearings
1. Concerns About Lack of Evidence for Bond Hearings and Impact of Delays in the Clearance Process
According to many INS officials we interviewed, implementing the Department’s “no bond” position for every September 11 detainee quickly became very difficult. Owen (“Bo”) Cooper, the INS General Counsel, said he was concerned whether INS attorneys facing bond hearings would have the evidence needed to support their effort to keep the detainees in custody. Several INS officials told the OIG that, at least initially, they expected the FBI to provide them with additional information to present at detainee bond re-determination hearings to support the “no bond” position. Instead, INS officials told the OIG they often received no information from the FBI about September 11 detainees and, consequently, had to request multiple continuances in their bond hearings.
On September 19, 2001, Cooper sent an e-mail to an INS Regional Counsel describing the problem and discussing his efforts to obtain more information from the FBI about September 11 detainees: “As for the information to support a no-bond determination, we are trying today to break through what has been an absence of information from the investigation to use in the immigration process.” Other INS officials expressed similar concerns, even as late as the summer of 2002. In a June 27, 2002, memorandum, INS Deputy General Counsel Dea Carpenter stated, “It was and continues to be a rare occasion when there is any evidence available for use in the immigration court to sustain a ‘no bond’ determination.” An INS District Director brought to INS Headquarters to assist with the detainee cases told the OIG that in many instances the FBI would base its interest in a detainee on the sole fact that the alien was arrested in connection with a PENTTBOM lead. Thus, even though from the INS’s perspective it had no evidence to support a “no bond” position, INS attorneys were required to argue that position in court.
The SIOC Working Group helped draft what they referred to as “boilerplate” documents that INS Counsel could use to oppose bond for September 11 detainees. These boilerplate memoranda, which became known
62 At the time, while the Department could close immigration hearings, thereby protecting the information discussed at those hearings, it did not have the ability to request a “protective order.” On May 28, 2002, the Department published new regulations that allowed for “protective orders” for certain information disclosed during immigration proceedings, similar to the process used in criminal proceedings in which a pleading may be filed under seal. 8 C.F.R. § 3.46.
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as “declarations,” took the form of affidavits signed by FBI agents that described the PENTTBOM investigation and the general national security concerns related to individuals arrested in connection with the investigation. While some declarations had space for the document to be customized by inserting details related to the particular detainee in question, others did not. Beginning October 4, 2001, and continuing over the next two months, INS attorneys filed 89 declarations and similar “letterhead memoranda” opposing bond for September 11 detainees.
The INS’s Bond Unit provided the OIG with examples of the problems caused by the lack of FBI information for detainee bond hearings. In one case, an INS attorney in the INS New Orleans District complained in an October 4, 2001, e-mail that the A-File of a detained Israeli citizen contained no basis for detention. Further, the attorney said that the FBI had, up to that point, failed to provide him any information about the detainee. The attorney requested assistance from INS Headquarters and raised the specter of “ethical and professional considerations” connected with arguing “no bond” under these circumstances.
In another example, Cooper noted on an October 1, 2001, printout of the INS Custody List that there had been “no single expression of interest” by the FBI for at least 12 of the detainees, 5 of whom were poised for a second bond re-determination hearing because the Immigration Court previously had granted a continuance. Cooper told the OIG that while these cases involved detainees who had been arrested on PENTTBOM leads, the FBI never affirmatively expressed an interest in them.
In another case, officials in the INS Miami District sent an e-mail to INS Headquarters on October 9, 2001, reporting that two detainees were scheduled for bond hearings the next day and “information has been received from local FBI liaison that the FBI may no longer be interested in these aliens.” However, the head of the INS’s NSLD responded to the Miami District officials that they should continue to oppose bond for the detainees because officials at FBI Headquarters indicated these two detainees had not yet been cleared.
Several witnesses told the OIG that the FBI also failed to provide the resources needed to efficiently manage the complicated and cumbersome process developed to obtain information relevant to bond re-determination hearings, get that information through the review process, and provide it in a format approved for use by INS attorneys at bond re-determination hearings. For example, a supervisor in the Department’s Terrorism and Violent Crime Section wrote in an October 5, 2001, e-mail to Levey and others that she had been told that the FBI agent in the SIOC who coordinated the flow of information about detainees from FBI field offices to the INS would be assigned two additional staff members, but the agent had received only intermittent assistance. Other witnesses also told the OIG that they raised concerns about
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the lack of FBI resources assigned to obtaining information for INS attorneys to use at detainee bond hearings.
In a “normal” immigration case (i.e., not involving a September 11 detainee), FBI field offices generally communicated directly with individual INS district offices to provide information. In these routine cases, INS attorneys would simply call FBI agents to testify at bond hearings to state why the alien should not be released. However, due to the sensitivity of the PENTTBOM investigation, the Department wanted to ensure that no evidence would be used in court unless it was approved at FBI Headquarters. In addition, FBI officials wanted the INS to avoid calling FBI agents to testify at detainee bond hearings, because they did not want aliens’ attorneys to be able to inquire into other aspects of the Government’s terrorism investigation. Consequently, officials developed a “vetting” process before any evidence could be used in a detainee’s case: information was passed from FBI field offices to the SIOC Working Group to the INS Bond Unit to INS attorneys preparing for court hearings. We found that this process made it much more difficult and time consuming than normal for the INS to obtain evidence for detainee bond hearings.
2. Difficulties Presented by New York Cases Added to INS Special Interest List
The fact that hundreds of detainees “of interest” to the FBI had been arrested in the New York area but not initially reported to INS Headquarters (see Chapter 4, Section V(A)) created additional problems for the INS related to bond hearings. In dozens of these cases, INS attorneys initially had not opposed bond for the detainees and treated them as they would aliens arrested for immigration violations in “normal” cases unrelated to PENTTBOM. When these detainees were added to the INS Custody List, the INS was instructed to oppose bond for these detainees. In a November 7, 2001, e-mail to Pearson, INS General Counsel Cooper wrote:
These are cases that had final unappealed bond orders from judges before they were added to the list (and therefore before there would have been any question of defending “no bond” determinations, appealing negative [Immigration Judge] decision, etc.). In these cases, there is no legal basis not to accept bond, and those aliens who offer to post bond should have that offer accepted and should be released. I have let [the Senior Counsel to the DAG] know that this is the case. (She agreed, by the way.) There are about 25 as of now.
In one case, an INS Regional Counsel advised an INS attorney facing an upcoming bond hearing that, “An alien’s addition to the Custody List is not sufficient new evidence that would justify the District Director re-determining bond. General Counsel concurs in this view. Therefore, we are legally
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obligated to abide by the [Immigration Judge] bond decision and must allow him to post and be released.” This alien was released on bond two weeks later.
3. INS Attempts to Revise Bond Policy
Given the lack of information about detainees forthcoming from the FBI, the INS developed a process of automatically seeking continuances in bond hearings to give the FBI more time to investigate the detainees. According to Cooper, the INS understood that the FBI needed some time to conduct these clearance investigations. He also said he understood that the FBI considered maintaining custody of the detainees “necessary to its efforts.”
However, by early October 2001, Deputy General Counsel Carpenter and others in the INS Office of General Counsel became concerned that their duty of candor to the Court created an ethical dilemma when INS attorneys argued that aliens be detained without bond and there was no evidence to sustain such positions. Consequently, as described below, the INS sought to modify the “no bond” policy to accommodate the Department’s desire to hold detainees in custody for as long as possible without crossing the line into legally unsupportable territory.
a. Proposal to Revise Bond Policy
Cooper said he approached Levey the first week in October 2001 for approval to change the Department’s “no bond” policy to avoid many of the problems INS attorneys were facing at detainee bond hearings due to lack of information from the FBI. Cooper proposed that INS attorneys would request a continuance at a September 11 detainee’s first bond hearing. If at the time of the second bond hearing the INS still had not received any evidence from the FBI that could be used to argue against bond, the INS would not treat the detainee as if the alien were a “special interest” case and would only argue against bond if it believed the alien presented a flight risk, danger to the community, or any other characteristic commonly argued in “normal” bond hearings. According to Cooper’s plan, in such a case the INS also would not attempt to intervene if the alien subsequently posted bond and was ordered released. The FBI opposed Cooper’s proposal and any revisions to the “hold until cleared” policy.
Levey agreed to modify the “hold until cleared” policy, but apparently not to the extent the INS requested. Levey told the OIG that he believed the revised policy, described in the next section, adequately addressed the INS’s concerns by permitting a detainee to be released on bond if the INS received no information from the FBI about the detainee after the second continuance. However, Cooper told the OIG that the revisions approved by Levey to the Department’s “hold until cleared” policy did not include all of the changes he originally requested. Specifically, the revised policy did not allow the INS to
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treat a September 11 detainee as a “normal” detainee if the FBI failed to provide information to support the “no bond” position. Instead, the INS still had to continue to oppose bond for all September 11 detainees unless the FBI specifically expressed “no interest.”
b. Revised Bond Hearing Policies
On October 3, 2001, as a result of the discussions between Levey and Cooper, the INS’s Office of General Counsel distributed an e-mail within the INS that described a “revised” policy for bond cases:
The policy regarding bond conditions for aliens who are detained by the INS and who appear on the “INS Custody List” has been modified. The new policy is outlined below.
New Position on List Cases:
1) If the alien is appearing for his/her first hearing and the alien is on the “INS Custody List” the [INS] should seek a continuance so that the Service can coordinate with the FBI to obtain evidence relating to the alien’s no bond status. If the [Immigration Judge] denies the motion to continue and issues a bond, an emergency appeal/stay must be filed under the previously delineated policy.
2) If the Service has received a prior continuance in the case and the alien is still on the “INS Custody List” and subsequent to the alien’s arrest the FBI has expressed no interest in the alien, the Service should proceed as with any other case by presenting the available evidence.
3) If the Service has received a prior continuance in the case and the alien is still on the “INS Custody List” and the FBI has expressed an interest in the alien beyond the initial arrest, the Service should seek an additional continuance so that it can continue to coordinate with the FBI to obtain any evidence relating to the alien in question. If the [Immigration Judge] denies the motion to continue and issues a bond, an emergency appeal/stay must be filed under the previously delineated policy. The Appellate Counsel’s Office will assist with such filings and should be contacted as soon as possible to expedite this process.
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Thus, under the revised policy, it appeared that the only cases in which the INS was not required to oppose bond were cases in which the FBI expressed “no interest” in aliens in connection with the PENTTBOM investigation. This expression of “no interest” still had to come from FBI Headquarters – expressions of “no interest” from FBI field offices continued to be insufficient.
However, officials in the INS General Counsel’s Office told the OIG that either when the October 3 policy was disseminated or shortly thereafter they began to receive verbal “no interest” statements on particular detainees from FBI SIOC representatives, and they treated these verbal statements as expressions of “no interest” for purposes of the bond policy described above. Thus, between October 2001 and January 2002, a person with a “verbal no interest” statement from the FBI representative to the SIOC could be released on bond.63 Nonetheless, these verbal “no interests” were not formal FBI clearances and were not sufficient to permit the INS to remove the detainees from the United States.
It later became apparent that the October 3 “revised” policy quoted above was silent as to detainees in whom the FBI had not expressed an interest “beyond the initial arrest” and who were appearing for their second bond hearing. In explaining how to handle these cases not addressed by the “revised” policy, Carpenter told an INS attorney handling a detainee bond hearing: “By the second bond hearing, if no evidence that the person poses a threat to national security exists and [FBI Headquarters] has not affirmatively indicated an interest in the person – our attorneys should treat this case no differently than any other case that is not linked to the events of September 11.” This e-mail, sent on October 11, 2001, illustrated the conflict between enforcing the Department’s “no bond” policy until the FBI cleared the detainee, and INS attorneys’ advice not to oppose bond if the FBI did not express an affirmative interest. It also illustrated the mixed messages INS Headquarters was sending to its employees about detainee bond issues, ranging from Pearson’s September 13, 2001, order not to release any detainees without his express authorization to advice from INS’s Office of General Counsel not to oppose bond at a detainee’s second hearing if no information was forthcoming from the FBI.
In the end, INS officials told the OIG that the October 3 policy changes offered little assistance because the INS continued to run into difficulty
63 The FBI OGC attorney assigned to the SIOC Working Group told the OIG that in January 2002 she stopped issuing verbal “no interest” statements. Instead, she referred to all detainee cases as “pending” until FBI Headquarters issued a written clearance letter.
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obtaining timely expressions of “no interest” from the FBI about individual detainees.64
E. Proposed Inter-Agency Memoranda
At the same time it was attempting to revise the Department’s “no bond” policy, INS officials drafted four form memoranda it wanted to send to the FBI in an attempt to memorialize and expedite the clearance process for September 11 detainees. The first draft memorandum advised the FBI that a detainee who was held without bond had been placed in removal proceedings and noted that the detainee “may be of interest to the FBI” relative to its terrorism investigation. The memorandum had a space for listing the bond hearing date and requested “information necessary for the INS to determine whether it continues to be appropriate to argue before the Immigration Court that the alien should remain in custody without bond.” If no such supporting evidence or testimony was provided, the memorandum said the INS would produce whatever information it had in its records for the Immigration Judge to make an appropriate custody determination.
The second draft memorandum requested an immediate update from the FBI on its interest in a specific September 11 detainee. It stated, “Absent any response within 24 hours of this notice, the INS will remove the alien’s name from our Custody List and will process the alien according to normal procedures.”
The third draft memorandum advised the FBI that the Immigration Court had set bond for a detainee and that, if the detainee posted the bond, the INS would be required to release him immediately. It noted that the detainee “may be of interest” to the FBI, but that the extent of the FBI’s interest was unknown. The memorandum requested information from the FBI to support an attempt to reopen the bond proceeding.
The fourth draft memorandum advised the FBI that a particular detainee had received a final order of removal. Again, it noted that the detainee “may be of interest” to the FBI but that the extent of the FBI’s interest was unknown. The memorandum concluded: “Absent further action on your part, we intend to remove the alien from the United States pursuant to the Order on (date).”
Victor Cerda, the INS Chief of Staff, faxed these draft memoranda to Levey on October 9, 2001, and requested approval to begin sending them to the
64 Levey said he was not provided with a written copy of the “revised” bond policy prior to its issuance. He also expressed frustration that INS officials had not raised the matter with him again when the revised policy, as written, failed to address their concerns. However, INS officials told the OIG they believed the decision had been made, and the attorneys worked within the confines of the policy that they understood Levey approved.
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FBI. Cerda told the OIG that he believed he needed to seek Levey’s approval because the memoranda would have altered the Department’s directive that no September 11 detainee could be released without first obtaining FBI clearance. While the first and third memoranda relating to the “request for information” and “order setting bond” did not substantially change the policy, the second and fourth memoranda would have altered significantly the existing process by permitting the INS to remove aliens who had final orders of removal without FBI clearance.
According to Cerda, Levey refused to allow the INS to use any of the memoranda and said there was no need to document the clearance process in this written fashion. Commissioner Ziglar told the OIG that he had a “clear recollection” of Cerda informing him about this telephone call with Levey and about Levey’s statements regarding the memoranda. Levey told the OIG that he does not recall making the comment about not wanting the process to be documented. He acknowledged that the INS had been instructed to hold detainees until they were cleared by the FBI, a policy that would have been substantially altered if the INS memoranda were used. Levey said he opposed using the memoranda because he wanted to create a process by which the FBI and the INS worked together cooperatively. He said the documents created an “opposing counsel” type of relationship between two Justice Department agencies. Levey also told the OIG that during this period he understood the Department’s position was that the INS’s interests were “subservient” to the FBI’s investigation, and that it was important to continue holding the detainees while the FBI investigated any possible connections to terrorism. However, Levey also stated that if INS officials believed the memoranda were essential, they should have approached him again to re-argue their position.
Levey told the OIG that he recognized that the process could not work well if the FBI failed to provide sufficient and timely information to INS attorneys to use at detainee bond hearings. He said he raised this issue with other Department officials, including Dan Levin, Counsel to the Attorney General. Levin told the OIG that he did not recall this discussion.
F. Impact of Pearson Order
Several witnesses told the OIG that Pearson’s order directing that no September 11 detainee could be released without his written authorization created tremendous pressure on Pearson to make timely detainee release decisions. Some witnesses said it was difficult to contact Pearson to obtain timely decisions in detainee cases.
In order to address some of these problems, Pearson eventually orally authorized release of some detainees followed by a written letter. In addition, occasionally Pearson permitted his deputy to sign letters authorizing a detainee’s release in his absence. However, these accommodations did not
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address the dilemma faced by INS field offices that aliens ordered released on bond by an Immigration Judge could not be released without violating Pearson’s order. One e-mail from a senior INS official stated, “[I]f bond is set as a condition of custody by the [Immigration Judge] in the hearing, it puts the district director and the [Office of Detention and Removal] staff in the position of either ignoring their orders from Pearson or taking sole responsibility for the continued detention of the alien in opposition to the [Immigration Judge]’s determination.”
INS General Counsel Cooper told the OIG that he met with Pearson in October 2001 to argue that his order was creating potential legal liability for the INS, but the order remained in place. Cooper said he advised Pearson and other INS officials that refusal to accept bond on an unappealed bond order, if based solely on the need for a “Pearson” letter, was not legally defensible. Cooper said he also advised Pearson that he was instructing INS field offices not to continue holding aliens who attempted to post bond unless the INS had appealed the Immigration Judge’s bond order. Pearson told the OIG that he attempted to address Cooper’s concern by issuing release authorization memoranda in advance of detainee bond hearings. The advance release memorandum stated that in the event the Immigration Judge ordered the detainee released on bond, the INS District Office was authorized to release the detainee.65 By receiving these letters in advance, the District Office would not have to seek out Pearson in order to obtain his approval to comply with the Judge’s order.
The problem continued to arise, however, due to the difficulties in communication between INS field offices, INS Headquarters, and the SIOC. When Pearson continued to insist on the letters despite the continuing problems, Cooper went to Cerda, the INS Chief of Staff. Cerda told the OIG that he encouraged Pearson to ensure that the letters would be issued in a timely manner. But Cerda said he did not favor eliminating the requirement of a letter because the purpose of the letter was to ensure that a terrorist did not get released, and the letter served as a “check” to ensure that all the coordination with the FBI and the Department had occurred.
As a result, INS employees routinely faced the dilemma of choosing between following Pearson’s directive or the INS General Counsel’s advice. For example, an October 12, 2001, e-mail to Pearson from an attorney working on detainee cases for the INS’s NSLD stated that INS Acting Deputy Commissioner Michael Becraft asked her to contact the SIOC to determine if the FBI had any interest in a particular detainee who had been ordered released on bond by an Immigration Judge. The attorney said she told Becraft that if the alien was not
65 A sample of a Pearson “advance” release memorandum is attached as Appendix I.
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released by the INS, “the individual making that decision could be held liable under a Bivens action.” She said Becraft instructed her that, “If the FBI did not provide us with a ‘no release’ recommendation within 20 minutes of his call, the alien would be released.” The attorney contacted the INS NSU’s agent on duty, who called the SIOC. The NSU agent reported back to the INS attorney shortly thereafter that the alien was of no interest to the FBI, and the alien was released.
Cooper and Carpenter told the OIG that whenever they confronted a conflict between a detainee’s unappealed final bond order and Pearson’s directive, their advice was that INS was obligated to release the detainee, regardless of whether the FBI had completed its clearance review.66 Carpenter noted that she provided this advice with reluctance, given that it was in conflict with the Department’s “hold until cleared” policy. For example, an INS Newark District official sent an e-mail to an INS Regional Counsel on November 8, 2001, that he had just learned of a case in which the INS refused to release a detainee when his attorney attempted to post bond even though the Government did not appeal the bond order. The official wrote, “Frankly, I do not know what to tell him because I cannot bring myself to say that the INS no longer feels compelled to obey the law.” The Regional Counsel forwarded the message to Cooper, noting that the District official clearly believed that he needed a letter from Pearson in order to release the detainee, even though the Regional Counsel had advised him to the contrary.
This dilemma continued to play itself out again and again as Immigration Judges granted bond for September 11 detainees. An e-mail sent to Carpenter on November 20, 2001, by an INS attorney discussed the case of a detainee whose attempts to post the $4,000 bond set in late October 2001 by an Immigration Judge in the Newark District were rejected because the detainee’s name appeared on the INS Custody List. The detainee’s name had been placed on the list as a result of the “merger” of the New York and INS Custody Lists discussed in Chapter 4. The detainee filed a habeas corpus petition on November 19, 2001, and was allowed to post bond two days later.67
66 Cooper told the OIG that beyond offering advice to INS attorneys handling these cases that it was unlawful for the INS to continue holding aliens who posted bond when the INS had not appealed, he reached out to the Executive Director of the American Immigration Lawyers Association (AILA) and asked her to contact him if she became aware of any aliens caught up in this dilemma. In a number of instances, lawyers for September 11 detainees notified the AILA about their clients’ bond problems, the AILA Executive Director notified Cooper, and Cooper worked through internal INS channels to obtain a letter from Pearson so that the aliens’ bond could be accepted.
67 Habeas corpus, which literally means “that you may have the body,” refers to a legal pleading in which a federal court is requested to order a Government official to undertake a particular action. In this case, a federal judge would order the INS to release a particular detainee.
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Carpenter recognized that her office and Pearson’s office were giving INS employees conflicting advice. In a December 3, 2001, e-mail she explained that:
We all recognize that there is a point at which the field will receive conflicting instruction from Genco [General Counsel] and Field Ops [Pearson’s office] – that is where the attorneys are ethically bound (due to a lack of evidence) not to appeal or oppose the setting of a bond or voluntary departure. Where that does not coincide with the issuance of a Pearson letter – it appears as though the attorneys are telling the field to release someone without a Pearson letter. What the attorneys are really telling the field is that the agency must release someone when there is no appeal pending and the alien has posted (or is attempting to post) the court ordered bond – since it lacks the legal authority to continue to detain the person.
According to Cooper, about 30 detainees were caught up in the conflict between Pearson’s order and advice from the General Counsel’s Office to allow detainees to post bond, primarily in October and November of 2001, but even as late as April 2002. Cooper said that when confronted with this dilemma, the INS was able to secure clearances for these detainees from the FBI generally from a few hours to several days.
IV. OIG ANALYSIS
The Department decided immediately after the terrorist attacks to oppose bond for all aliens arrested in connection with the PENTTBOM investigation until they were cleared by the FBI, as a way to disrupt potential future terrorist attacks. As the weeks went by, two situations developed that should have led to a re-evaluation of this approach. The FBI’s process for clearing September 11 detainees, originally envisioned as taking just a few days, was taking weeks and months. Also, as the Department learned more about the 762 September 11 detainees, the fact that many of these detainees were guilty of immigration violations alone, and were not tied to terrorism, should have prompted the Department to re-evaluate its original decision to deny bond in all cases.
The Department did not revise its approach for many months despite complaints by the INS about the problems it faced in bond hearings where it received no evidence from the FBI to tie the detained aliens to the September 11 attacks or terrorism. The INS raised the problem with officials in the Deputy Attorney General’s office responsible for overseeing and coordinating INS issues. There is some difference as to whether this resulted in any substantial change in policy. Associate Deputy Attorney General Levey told the OIG that he thought he had addressed the INS’s concerns by revising
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the Department’s bond policy. He believed the revisions were satisfactory to the INS, and thus the revisions permitted detainees to be released on bond if the INS received no information from the FBI after the detainees’ second continuance. However, our interviews and review of INS documents show that the policy was not changed to permit the INS to change its “no bond” position after the second continuance if there was no evidence provided by the FBI. While this written policy may not have accurately reflected the understanding reached between Levey and Cooper, the INS General Counsel, the policy continued to require FBI clearance.
The policy continued to place the INS in the untenable position of opposing bond unless it obtained a sign-off from FBI Headquarters stating that the FBI had no interest in the detainee, which was exceedingly hard to come by in the months immediately after the terrorist attacks. Thus, the INS still had to argue for “no bond” even when it had no information from the FBI to support that argument.
Although the INS appropriately raised this issue with Levey and other officials in the Deputy Attorney General’s office, it did not press the issue at a higher level, which we believed the INS should have when it recognized that the policy remained unchanged. At a minimum and at an early stage, it should have written a legal memorandum that clearly spelled out its concerns and its position. As we describe in the next chapter, when it did write such a memorandum in January 2002, the “hold until cleared” policy was changed.
The provision of prompt, accurate information from the FBI for use in the bond hearings would have minimized the problems that arose with the “no bond” policy. Had the FBI devoted more resources to field investigations of these detainees and more resources at the SIOC to relay that information to the INS in a timely manner, some of these problems might have been avoided.
In addition, we found that the process developed by the INS to gather and “clear” information for use by INS District Counsel in opposing bond for September 11 detainees was exceedingly cumbersome. Given the swift pace of bond hearings stemming from the INS’s initial “no bond” position for all September 11 detainees, asking District Counsel (who had little time to prepare for these hearings) to contact INS Headquarters, wait for the INS Bond Unit to receive a response from FBI SIOC agents to its request for a search of FBI files (where the FBI SIOC agents had to contact their local FBI field office for additional information), and then wait for approval from the SIOC before any of this information could be used (even non-classified information) was very time consuming. Consequently, INS officials in field offices told the OIG that they appeared in court with very little information to oppose bond in September 11 detainee cases.
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ensure that detainees are released according to Department policies, INS employees believed they faced the choice of either violating a direct order from a senior INS official or a valid, unappealed bond order issued by an Immigration Judge. Given that efforts to “anticipate” bond hearings and produce “advance” letters continued to be inadequate to address the situation, the INS should have either revised the Pearson order or developed a more effective means of ensuring that it did not cause INS officials to violate an Immigration Judge’s order.
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CHAPTER SIX
REMOVAL OF SEPTEMBER 11 DETAINEES
Federal law provides that, in general, aliens found to have violated immigration law shall be removed from the United States within 90 days of when the alien is ordered removed. This chapter examines the issues raised by the Department’s decision to delay removal of detainees with final removal orders and voluntary departure agreements, even after the 90-day removal periods had expired. In addition, we review the adequacy of the INS “custody reviews” that are required for any detainee held more than 90 days after an Immigration Court has issued a final order of removal.
I. BACKGROUND
Section 241(a) of the Immigration and Nationality Act (INA) provides that “[e]xcept as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” 8 U.S.C. § 1231(a)(1)(A). The statute provides exceptions when removal within the 90-day period is not possible (such as when the alien’s country of citizenship will not accept the alien). It also permits detention to continue beyond the 90-day period for aliens charged with certain types of immigration violations who have not been removed, or where the Attorney General determines that the aliens present a risk to the community or a risk of flight.68
As noted in previous chapters, the Department directed the INS to detain aliens arrested in connection with the PENTTBOM investigation until they could be cleared by the FBI of connections to terrorism. According to INS attorneys, the fact that the FBI clearance process took longer than the time needed by the INS to prepare to remove the aliens (to obtain travel documents and make travel arrangements) posed a significant legal issue for the INS.
Early on, INS attorneys believed that the delay in removing detainees created a legal problem for the INS and the Department and said that they highlighted these concerns in meetings with officials from the Deputy Attorney General’s office. However, these Department officials assert that the INS did not inform them of its belief that it was detaining aliens in violation of the law until January 2002, and when these Department officials became aware of this concern they changed the policy shortly thereafter.
68 8 U.S.C. §1231(a)(6).
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Whether an alien could be held within the 90-day period when the INS is ready to remove the alien, as well as whether the INS could hold an alien beyond the 90-day period in order to investigate the alien’s possible ties to terrorism was the subject of differing opinions during the fall of 2001 and 2002. These issues are the subject of the Turkmen lawsuit, which is pending.69 In a February 2003 opinion, the Department of Justice Office of Legal Counsel concluded that the INS can hold aliens beyond the 90-day removal period if the purpose is “related to effectuating the immigration laws and the nation’s immigration policies.”
This chapter describes the manner in which the issue was raised by those working on the detainee cases and concludes that the Department did not address the issue in a timely way. Once the legal issue was recognized by the Department as significant, however, the “hold until cleared” policy described in Chapter 4 was abruptly discontinued. In addition, we found many instances in which the cases of detainees held over 90 days were not reviewed, as required by the immigration regulations.
II. DISCUSSION OF THE LIMITS OF THE INS’S DETENTION AUTHORITY
INS General Counsel Bo Cooper and Deputy General Counsel Dea Carpenter told the OIG that after September 11, the INS operated under the belief that legally it had 90 days (the “removal period”) within which to remove an alien who had a final order of removal. Cooper also said the INS believed it could only use the entire 90-day period if the full 90 days were being used to “effectuate the removal.” In other words, Cooper believed the INS could not delay removal of an alien for a reason “not related to removal.” For example, Cooper believed that if it took the INS 85 days to obtain travel documents and make flight arrangements for an alien, then the INS could use 85 days of the 90-day removal period. However, if an alien was ready to be removed on the 30th day after receiving a final order, but another agency conducting a criminal investigation of the alien seeks to delay his removal, Cooper said he believed the INS could not use the remaining 60 days in the removal period to delay the alien’s departure.
According to Cooper, he believed such a delay would be impermissible because the removal period is for the purpose of removing an alien from the country, and a delay exclusively attributable to a criminal investigation is not a delay “related to removal.” Cooper said that he believed that in such a case the INS had no authority to continue holding the detainee if removal could otherwise be effectuated. Cooper stated that he recognized that it was
69 See Turkmen v. Ashcroft, 02-civ-2307 (E.D.N.Y. filed April 17, 2002).
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“arguable” that consulting with another law enforcement agency to determine if custody should be transferred to that agency is “related to removal.” Cooper told the OIG, however, that the slow pace of the FBI’s detainee clearance process in the months after the September 11 attacks took the INS into “gray areas” in terms of its legal authority to continue holding detainees in custody, both within and beyond the 90-day removal period.
The conflict between the INS’s interpretation of its legal authority to detain aliens with final removal orders and the Department’s desire to maintain custody of these detainees until cleared by the FBI created a concern in the INS beginning as early as September 30, 2001, when an INS attorney noted that detainees with final orders wanted to leave and were ready to leave. A series of e-mails between the INS’s three Regional Counsels and Carpenter reflected the INS’s internal debate about how to interpret and apply the statute’s 90-day requirement to this circumstance. The central question discussed in these e-mails was whether the INS had 90 full days within which to effectuate removal, or whether the INS had to effectuate removal as soon as possible, but prior to the expiration of the 90-day period. One Regional Counsel held the view that within the 90-day removal period, the INS did not need to have any reason to hold an alien who had a final order, and stated that delaying removal to obtain clearance from the FBI would constitute a legitimate reason for delay under the statute. Another Regional Counsel held the opposite view.
Attorneys from the INS and the Department’s Office of Immigration Litigation (OIL) told the OIG that beginning in mid-October 2001 they discussed questions about the INS’s legal authority to detain aliens who had been issued final orders of removal and voluntary departure cases at SIOC Working Group meetings.70 Either the Senior Counsel to the DAG, a former INS attorney who coordinated immigration issues along with Levey in the Deputy Attorney General’s office, or another counsel who transferred from OIL in November 2001 to the Deputy Attorney General’s office and who worked with Levey on immigration matters generally, attended these daily SIOC meetings between September and December 2001.71 Notes taken by OIL attorneys
70 As described in Chapter 2, the SIOC Working Group was an interagency group formed to coordinate efforts among the various components within the Department of Justice who had an investigative interest in or responsibility for the September 11 detainees. In addition to the FBI, the Working Group included staff from the INS, the Department’s Office of Immigration Litigation (OIL), the Terrorism and Violent Crime Section (TVCS) of the Department’s Criminal Division, and the Office of the Deputy Attorney General.
71 In response to the draft report, the Senior Counsel asserted that she often missed the SIOC meetings due to other assignments, and that she attended “very few” meetings after the additional counsel joined the office in November 2001. In response to the report, Levey also stated that he generally did not attend SIOC meetings with “a few exceptions at the beginning of the process.” As noted in Chapter 4, however, Levey was in attendance at a SIOC meeting (cont’d)
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during this period confirm that its representative in the SIOC Working Group raised concerns about the limits of the INS’s detention authority as early as October 26, 2001.
In particular, one OIL attorney told the OIG he described at an October 26, 2001, SIOC Working Group meeting limits on the INS’s legal authority to detain final order cases as a “problem.” According to this attorney, he told participants at the meeting (including the Senior Counsel to the DAG), that the Government’s obligations with respect to the 90-day removal requirement were “ambiguous.” He described how the slow pace of the clearance process created a “high litigation risk” for the Department.72
By mid- to late-October 2001, an OIL attorney noted in an internal OIL document that 45 detainees on the INS Custody List already had final orders of removal or had been granted voluntary departure. INS and OIL staff working in the SIOC Working Group said that, at the time, they realized that the FBI clearance process was moving much slower than anticipated. The OIL attorney said he told Levey’s staff that voluntary departure cases were even more problematic than final order cases in terms of the INS’s legal authority to continue to detain the aliens.73 He said he urged the FBI and INS to place all
on November 2, 2001, when the INS claims it raised concerns about the limits of its detention authority.
72 Notes from the FBI OGC attorney assigned to the SIOC Working Group from that same date indicate that the 90-day issue was discussed in some detail at the meeting. According to these notes, an INS representative stated that there were “45 cases with final orders,” dating to as far back as September 12. The notes also reflect that the INS representative stated that there is a 90-day removal period, and that there is a “split of opinion” as to whether the INS’s authority is “unfettered” during the 90-day removal period. The notes contain a notation: “clearances for removal – habeas fear” and reflect a comment that there is “some” additional time past 90 days, but the INS would “have to be trying to remove” the aliens. The notes also indicate that voluntary departure cases were discussed.
73 An alien can avoid an order of removal by agreeing to voluntarily depart the country. 8 U.S.C. § 1229(c). To be eligible for voluntary departure, the alien must show that he or she has a readiness, willingness, and financial ability to leave the United States at his or her own expense; that he or she has good moral character for the previous five years; and that a favorable exercise of discretion is warranted. Id. The INS is not obligated to accept an alien’s offer to voluntarily depart. If the INS agrees to the voluntary departure and the Immigration Judge grants it, the removal proceedings are terminated and the alien agrees to leave the United States on a specific date, under specific terms and conditions. Voluntary departure has some advantages over removal, both for the alien and the INS. A person who departs voluntarily is not barred from returning for 10 years, as is a person who is ordered removed. The INS also saves the expense of litigation (which may prolong detention) and transportation costs. Aliens who accept voluntary departure may remain in custody pending departure or may be released, depending on the particular circumstances. If an alien fails to depart by the specified date, the voluntary departure order converts to a final order, which carries with it the 10-year bar to re-entry.
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final order cases on a “high priority list.” The attorney told the OIG that his office was nonetheless prepared to defend any habeas corpus petitions that might be brought by detainees challenging their continued detention, and he believed that OIL had legal arguments upon which to base its defense.74
Several OIL attorneys said they informed members of the SIOC Working Group that the delays in removing aliens with final orders were creating an “increased litigation risk,” were “inviting habeas petitions,” and were “a bad idea.” Two OIL attorneys said they urged the Department to speed up the FBI clearance process in order to address the issue of removing detainees with final orders.
Thomas Hussey, the Director of OIL, told the OIG that in late September 2001, he also raised, at a meeting with representatives of the Criminal Division and the Deputy Attorney General’s office, the issue of detainees with final orders who were ready and willing to leave the United States but had yet to be cleared by the FBI. We confirmed this based on an e-mail exchange that occurred on February 7, 2002, between Carpenter, the INS’s Deputy General Counsel, and an OIL attorney in which Carpenter informed the OIL attorney of two habeas petitions filed by detainees held after voluntarily departure had been granted. According to the OIL attorney’s response:
Our and INS’s SIOC representatives have repeatedly sought to move the growing number of aliens in the WTCP [World Trade Center/Pentagon] pool who have taken or are subject to final orders, and particularly those who are approaching 90 or more days out. Thom [Hussey] anticipated the problem in one of the earliest WTCP meetings in ODAG [Office of the Deputy Attorney General]. What tends to happen now is that habeas filings by such aliens move them to the immediate attention SIOC list, and final clearance then tends to happen before we have to file a merits response.
OIL attorneys told the OIG they also raised concerns about the extent of the INS’s detention authority with respect to specific detainee cases. For example, on December 19, 2001, the OIL supervisor sent an e-mail to other OIL attorneys noting that the staff in the Deputy Attorney General’s office he spoke with about a particular case agreed that a habeas corpus petition should move the detainee “to the head of the CIA line” for clearance. The e-mail also said that the Deputy Attorney General’s staff agreed with his assessment that the
74 For example, in the Zadvydas case, which involved aliens whose countries of origin would not accept them, the Supreme Court stated that the “presumptively reasonable” detention period was six months. The Court also stated in Zadvydas, “In our view, the statute, read in light of the Constitution’s demands, limits an alien’s post-removal-period detention to a period reasonably necessary to bring about the alien’s removal from the United States.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
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INS’s failure to release certain detainees raised potential liability issues for the INS. The e-mail stated that the counsel in the Deputy Attorney General’s office had:
returned my call to [the Senior Counsel in the DAG’s office] on these two [aliens who had filed the petition] and the larger issue. She said the similarly situated number is 180 (correcting the 200 number I threw out), the CIA has cleared about 120 of them, and 2 weeks ago promised quick action on the remaining 60 (whatever quick means, but she agreed that a habe[as] moves the alien to the head of the CIA line, or should – but who communicates that to the CIA?). She indicated that they ([the Senior Counsel]) agree with our legal authority assessment and that Bivens etc is a prospect. . . . She knows nothing about any HQ-type order that might be imposing these holds, other than [the Senior Counsel]/Stewart [Levey]’s verbal directive to get the cases through the CIA checks where possible.
A review of other documents also tends to support the INS’s contention that it raised legal concerns about the extent of its detention authority and that attorneys in the Deputy Attorney General’s office were aware of these issues. For example, e-mails from INS attorneys stated that the issue was repeatedly raised in SIOC Working Group meetings, which were often attended by staff from the Deputy Attorney General’s office. In addition, INS officials interviewed by the OIG stated that Levey and other members of the Deputy Attorney General’s staff were aware during the fall of 2001 that continuing to hold detainees who had obtained a final removal order or voluntary departure order presented a potential legal problem for the INS. 75
75 The INS also asserted that the case of Zacarias Moussaoui brought to Levey’s attention the INS position on the limits on its authority to detain aliens with final orders who could be removed to their country of origin. Carpenter, the INS Deputy General Counsel, explained to the OIG that, due to his entry into the United States through the Visa Waiver Program, Moussaoui was ordered removed pursuant to summary proceedings. On November 14, 2001, according to Carpenter, Levey suggested the possibility that Moussaoui be placed into “regular” removal proceedings (versus summary proceedings), in order to start the process of removal again, and increase the time he could be held on the immigration violation. The INS advised that the removal proceeding could not be started over, and that if the INS continued to hold him on the final order, it risked a potentially successful habeas petition. The INS cited this exchange as evidence that Levey was aware of the INS’s view that final order cases had strict time limitations within which the INS was required to effectuate the removal.
By contrast, Levey stated that this was an example of how the process worked – that a problem was identified and then solved. He did not agree that the Moussaoui case brought to his attention the general problem of INS time limits on its authority to detain aliens with final orders. Levey noted that he had a meeting to discuss the Moussaoui case scheduled with the Criminal Division for November 13, the day before this conversation with the INS apparently took place. He acknowledged that the discussion likely was prompted by the realization that (cont’d)
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Levey and his Senior Counsel disputed the assertion that they were made aware of the legal issue regarding the limits of the INS’s detention authority.76 They told the OIG that while they were aware that individual detainees had final removal orders in the fall of 2001, they did not know that this situation presented a legal issue for the INS until they received a draft letter from the FBI in late January 2002 (discussed below) which stated that the FBI would concur in a decision to release a detainee (even when the clearance investigation was not complete) if the INS had determined that it had no legal basis to justify continued detention.
The Senior Counsel told the OIG that she was aware that aliens were accepting orders of removal and voluntary departure. She noted that she contacted the FBI agent assigned to the SIOC Working Group on December 11, 2001 (90 days after the PENTTBOM arrests began). She stated that the FBI agent told her that the “kinks” in the CIA check had been worked out and that they were “now caught up.”77 The Senior Counsel and Levey also both noted that, on December 19, 2001, Victor Cerda, the INS Chief of Staff, stated in an e-mail that the Department should “sell on the fact that the process is working, people are not being detained indefinitely in secret locations, and once no link or negative info[rmation] is determined after careful investigation, they are being processed in the normal course, often resulting in bond being posted and their release.”78
Moussaoui was nearing 90 days after his order of removal. But he stated that the case did not raise, in his mind, a concern about other detainees who might be nearing 90 days after their orders of removal because he believed Moussaoui was an unusual case given that he was already in post-order detention on September 11. Levey said he did not realize at the time that other detainees were, or would soon be, similarly situated. He also stated that the fact that the INS contacted him about this case would have reinforced his “reasonable expectation” that the INS would bring other cases to his attention if they were “approaching a legal deadline.”
76 Levey wrote in his response to the draft report that, in his opinion, what the INS had failed to bring to his attention was its belief that it was “acting beyond its legal authority.”
77 The Senior Counsel said that she was not aware of substantial delays in the FBI’s analysis of that CIA information, which had to be completed before detainees could be cleared. She also was not aware that the Special Agent whom she contacted was responsible for sending the name trace requests to the CIA and for forwarding the CIA responses to the FBI analysts. However, he was not responsible for the completion of the analysis of the CIA responses. See Chapter 4.
78 Both the Senior Counsel and Levey point to this e-mail as evidence that the INS was satisfied with the clearance process and that it did not raise legal concerns to the INS. However, Cerda’s e-mail was a suggested addition to a Public Affairs officer’s proposed language to accompany a public release of updated INS detainee figures. According to Cerda, he clearly and emphatically expressed his concerns about the limits of the INS’s detention authority to members of the Deputy Attorney General’s office throughout the fall of 2001.
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Prior to learning of the legal problem identified in the FBI’s letters, Levey claimed he saw the area as presenting more of a “procedural” problem. He said he heard the INS’s concerns more as complaints about the slowness of the clearance process than legal concerns, so he said he addressed the concerns by working to improve the clearance process. He described himself as an “advocate” for the INS in that regard. While he acknowledged that the INS may have mentioned the “litigation risks” presented by the detentions, he said that a warning such as that would not have been an effective means of informing him that the INS thought it was either in violation of the law or would soon be acting in violation of the law.
Levey told the OIG that the issue was not raised to him as a “legal” problem, as opposed to a procedural issue, until the DAG’s Senior Counsel did so in January 2002. Levey explained in his response to the draft of this report that he assumed that the INS could hold an alien for 90 days after a final removal order. He told the OIG that he did not know that the INS believed that, in certain circumstances, it had less than 90 days. He said that once it was raised, he immediately did what he was told the law required – allow the INS to remove detainees whose 90-day removal period had expired. He said that before then he did not understand that the INS believed it was acting beyond its legal authority. Both Levey and the Senior Counsel stated that, up until that point in time, they had never asked themselves the question “as a matter of law, how long can we hold these aliens with final orders of removal or voluntary departure orders?”79
III. DETAINEES’ LAWSUITS
Between October and December 2001, several September 11 detainees with final orders of removal and voluntary departure orders had filed lawsuits, or threatened to file lawsuits, to challenge their continued detention. The following are examples of cases in which detainees challenged their continued confinement:
• Two September 11 detainees filed a lawsuit against the Department in the Northern District of Ohio on December 18, 2001, when the INS did not allow them to leave the country after they had received voluntary departure orders from an Immigration Judge. Two weeks prior to filing the petition for release, the detainee’s attorney wrote the INS asking, among other things, “[u]nder what specific legal authority does the INS and/or the Department of Justice propose to prohibit these young men from returning home?” The INS did not
79 Levey asserted that he had no reason to ask himself this question because he said he was not informed until January 2002 that aliens were being detained for more than 90 days.
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respond to the attorney’s questions. The attorney filed the December 18, 2001, habeas corpus petition asserting that it was unlawful for the United States to prohibit the detainees from leaving the country. The next day, the detainees received final clearances from the FBI and were permitted to leave the country.
• A September 11 detainee who received a voluntary departure order from an Immigration Court had until November 23, 2001, to leave the country. However, that date passed with the INS refusing to release the detainee because FBI Headquarters had not issued a clearance letter because it had not received the CIA checks. Consequently, the INS District Director extended the time for the detainee’s voluntary departure past November 23, 2001, to prevent the voluntary departure order from converting to a removal order (which would result in more restrictive consequences to the detainee).
The detainee’s attorney filed a habeas corpus petition seeking his release on November 27, 2001. An e-mail from an INS Bond Unit attorney to an official at INS Headquarters noted that while the INS attorney handling the case in the district had made the “eminently reasonable” assumption that the detainee “must be a serious criminal or terrorist,” that assumption was not correct. The Bond Unit attorney explained that “the only reason [the detainee] remains on the list is for the CIA to run checks. It had been in that posture for at least two weeks.” He wrote that “there is no evidence [the detainee] is a terrorist or is of interest to the FBI.” In an earlier communication, the attorney had stated “how should the Service [INS] proceed. Should the Service continue to hold an individual for whom there is a final order, is on hunger strike, and for whom the FBI has no interest, in order for an administrative function to be completed, when that function is for reasons unknown to me, taking in excess of two weeks?”
The acting director of the National Security Law Division forwarded the Bond Unit attorney’s comments to Cooper, the INS General Counsel, and noted that this detainee’s case was discussed regularly by the SIOC Working Group. Another INS attorney noted in an e-mail to a Regional Counsel that the alien’s attorney had “threatened to go public and tell the Islamic community not to cooperate with the government . . . because the only thing that will happen is that they would be locked up indefinitely. The timing of this is horrible, coming as it does in the middle of the Attorney General’s effort to interview all those other
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folks.”80 The alien was removed from the United States on December 4, 2001.
These examples indicate that the INS generally avoided addressing the substantive legal issues raised in the habeas corpus lawsuits by obtaining FBI Headquarters’s clearance for an individual detainee who had filed a legal action before a formal response was needed on the merits. The INS first would argue that the detainees failed to exhaust all administrative remedies, thereby avoiding the primary legal question of whether the Department had legal authority to continue holding these detainees until the FBI could complete its clearance investigations. However, other aliens in similar circumstances, who did not have attorneys or had attorneys who did not file habeas petitions, remained in custody.
Witnesses from the FBI, the INS, the Criminal Division, and OIL stated that the habeas cases were a top priority for the Department, and that members of the Deputy Attorney General’s office were aware of the issues in these cases, including the legal claims brought by the aliens challenging the INS’s authority to detain them. Staff members for the Deputy Attorney General’s office dispute this. For example, the Senior Counsel in the DAG’s office told the OIG that she does not recall being aware of the details of the habeas petitions, nor does she recall any of the petitions raising the 90-day issue.
IV. POLICY CHANGE ALLOWING DETAINEES TO BE REMOVED WITHOUT FBI CLEARANCE
In January 2002, the Department changed its position as to whether the INS should hold aliens after they had received final orders of removal or voluntary departure orders until the FBI had completed the clearance process.
On January 18, 2002, an attorney working in the INS Commissioner’s office requested a meeting with the Deputy Attorney General’s Senior Counsel to discuss how to handle the final order cases that had not been cleared by the FBI.81 Five days later, on January 23, 2002, the INS faxed a list containing 54 detainees who had been held more than 90 days after receiving final removal or voluntary departure orders. INS officials provided a copy of this list to all SIOC Working Group members, including OIL, the FBI, and the Senior Counsel from
80 This apparently refers to the FBI’s plan to conduct voluntary interviews of 5,000 foreign visitors.
81 The Senior Counsel told the OIG that the request did not contain any words that conveyed a sense of urgency. According to her, the e-mail seemed to be innocuous.
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the Deputy Attorney General’s office, and the Working Group discussed these cases at a meeting the next day.82
At the same time, the INS General Counsel’s Office completed a legal opinion regarding its interpretation of the limits of its authority to detain aliens with final orders of removal within the 90-day removal period. The INS had been working on this opinion since October 2001. The legal opinion, formatted as a memorandum, was addressed to Pearson, the INS Executive Associate Commissioner for Field Operations. Carpenter, the INS Deputy General Counsel, and Cerda, the INS Chief of Staff, told the OIG that the opinion was faxed to Levey’s office on the day it was issued, January 28, 2002. However, Levey and his counsels stated they did not see the opinion until many months later.
The INS written opinion concluded that the INS has a duty to remove an alien with “reasonable dispatch” and the removal could not be delayed for the exclusive purpose of allowing the FBI to conduct an investigation to see if the person is a terrorist. The “Summary Conclusion” of the opinion stated:
The INS has the authority to detain an alien with a final order of removal during the 90-day removal period as long as the INS is acting with reasonable dispatch to arrange the removal of the alien from the United States. This authority may be called into question if the INS cannot establish that it diligently pursued the steps necessary to remove the alien. Section 241(a)(2) of the Immigration and Nationality Act (INA) states that the INS had the authority to detain an alien with a final order of removal for up to 90 days, the length of the removal period. However, case law provides that detention must be related to removal and cannot be solely for the purpose of pursuing criminal prosecution. While there is no bar to the government’s continuing a criminal investigation during the removal period for possible prosecution of the alien, the INS must also be proceeding with reasonable dispatch to arrange for removal and the investigation for criminal prosecution cannot be the primary or exclusive purpose of detention.
82 The Senior Counsel to the DAG told the OIG that legal concerns about the limits of the INS’s detention authority with respect to final order and voluntary departure cases were not raised at this meeting. OIG interviews with the FBI OGC’s representative at the SIOC Working Group suggest that the INS’s concerns were being conveyed at the SIOC meetings to members of the Working Group, including the Deputy Attorney General’s Counsel, with some urgency during this time frame. According to the FBI OGC representative, her increasing “discomfort” with respect to the final order issue caused her to brief the FBI General Counsel in December 2001, and caused her to draft the letter from FBI Director Mueller to the INS on January 28, 2002, discussed in detail later in this chapter.
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At the same time the INS was drafting this legal opinion, FBI officials were growing concerned as more and more September 11 detainees passed the 90-day mark after receiving final removal orders without being cleared. After reviewing the Supreme Court decision that addressed limits on the detention of aliens who could not be returned to their country of origin in the “foreseeable future,” 83 the FBI attorney representative to the SIOC Working Group said she was concerned that the September 11 detainees were being held longer than permitted under the law. She said she also became increasingly troubled by the fact that the INS was looking to the FBI as the agency responsible for extending the length of the detainees’ confinement and the fact that the INS was not seeking travel documents until clearance letters were received from the FBI. She was also concerned about the upcoming INS custody review process. She said that the slow pace of the FBI clearance process was due to an FBI “staffing issue.” However, she said the INS had not told the FBI “you have to let them [the detainees] go,” and she believed that the INS had allowed the situation to get to the point where dozens of detainees had been held beyond their initial removal periods or voluntary departure dates.
The FBI attorney also told the OIG that in December 2001 she briefed FBI General Counsel Larry Parkinson that detainees were filing habeas corpus petitions to protest their confinement and that she thought there was very little upon which to defend the case for continuing to detain the aliens. She told Parkinson that her efforts to “prioritize” detainees so that those with final orders would receive FBI clearances within the 90-day period had been unsuccessful. Parkinson subsequently briefed FBI Director Mueller on the problem. When interviewed by the OIG, Director Mueller could not recall this particular briefing, but did not dispute that it occurred.
As several more weeks went by and the issue remained unresolved, with Parkinson’s approval, the FBI attorney sought to clarify the FBI’s position with respect to detainees with final removal orders. She therefore drafted a proposed letter for FBI Director Mueller to send to INS Commissioner Ziglar that stated, “If the INS has determined that there is no legal basis justifying continued detainment of that alien, the FBI concurs with the INS’s determination to permit the individual to be removed.” Previously, the FBI’s position, and that of the Department, was that the INS should wait for results of the FBI clearance investigation before releasing or deporting any September 11 detainee. On January 28, 2002, the same day the INS states that it circulated its legal opinion about holding the detainees during the 90-day removal period, the attorney circulated her draft letter to her supervisor and the FBI General Counsel, as well as to the counsel to the DAG. At a subsequent meeting that, according to the FBI attorney, was attended by the
83 Zadvydas v. Davis, 533 U.S. 678 (2001).
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Senior Counsel to the DAG, INS Chief of Staff Cerda, and an INS NSLD attorney, the letter was discussed and a decision was made that it would not be formalized and sent by the FBI to the INS.84
The additional counsel to the DAG, who worked on immigration matters along with the Senior Counsel to the DAG, stated that the issue of limits on the INS’s detention authority was raised at a January 28, 2002, SIOC Working Group meeting she attended. She said she told the FBI attorney that the law was unclear, but to be on the “safe side” the INS should proceed with removal as soon as possible. Her notes appear to indicate that the FBI, the Terrorism and Violent Crime Section, and the Deputy Attorney General’s office made an initial decision at this meeting to permit the INS to release detainees with final orders of removal who had not received FBI clearance.
The Senior Counsel told the OIG that when she read the FBI’s draft letter it was the first time she became aware that the INS faced a legal issue involving how long it could detain an alien who had a final order of removal. She told the OIG that she then raised the issue with Levey immediately. She said she and Levey discussed the possibility of allowing aliens with final orders to be removed without FBI clearance with officials from the INS, FBI, and Criminal Division. This discussion, according to the Senior Counsel, was prompted by the indication in the FBI letter that detaining aliens after they had received final orders was unlawful.85
Levey said he agreed to revise the Department’s policy to allow the INS to remove aliens with final orders without FBI clearance. Levey told the OIG that he could not recall whether he consulted with any higher-level officials in the Deputy Attorney General’s office or the Attorney General’s office before deciding to change what had been Department policy for almost five months. The Senior Counsel’s notes indicate that Levey stated on January 29, 2002, “The
84 After reviewing a draft of this report, the Senior Counsel told the OIG that she does not recall such a meeting and does not believe such a meeting took place.
85 In response to a draft of our report, the Senior Counsel said that when the other counsel to the DAG obtained a copy of the letter from an INS attorney, they and Levey immediately called Cerda. She said that during that call, Cerda did not mention the January 28, 2002, INS opinion regarding the limits on the INS’s authority to detain aliens with final orders of removal within the 90-day removal period. The Senior Counsel stated that she did not see a copy of the INS opinion until October 2002. She told the OIG that if she had been informed that the INS was working on such an opinion, her office would have convened a meeting of representatives from INS, OIL, the Office of Legal Counsel (OLC), and the Office of the Solicitor General to discuss the legal issues and advise the Department on the correct interpretation of the law. She told the OIG that when her office requested an opinion on the issue from OLC in the fall of 2002 with respect to a particular case, her office received oral advice “within a few weeks” that the detention in question was legal. OLC’s February 2003 opinion is discussed in more detail later in this chapter.
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law is the law, change the policy.”86 Levey also stated that he verified that the Criminal Division and the FBI did not oppose this change.
The Attorney General told the OIG that he was unaware of people being detained inordinately long after a deportation order. He also stated that he had no recollection of the INS telling him of any concern that aliens were being detained against the law.
The Senior Counsel distributed new procedures to the INS, FBI, OIL, and Criminal Division in an e-mail on February 6, 2002. According to her e-mail, the INS was instructed to fax to the FBI and Criminal Division at the end of each day information on the day’s hearings and the results of each hearing. The INS then would be able to proceed with removal of aliens with final orders without giving the FBI or Criminal Division any additional notice. If the FBI or Criminal Division had a particular interest in a case, they were to contact the INS about it. The INS would prioritize the cases with final orders over 90 days to allow those aliens to be removed. The FBI continued the clearance process, but the INS did not have to wait for a clearance letter in order to remove a detainee who was otherwise ready to go.
Many of the September 11 detainees with final orders were not removed immediately because the INS had not yet requested travel documents for them. Because travel documents are only valid for a limited period, the INS had not requested documents in advance since they might expire before the FBI clearance had arrived. After the policy change, in early February 2002 the INS requested travel documents for detainees whose removals had been held up due only to their lack of FBI clearance. By August 2002, the majority of the aliens on the INS Custody List either had been released or removed.
The following charts show the timing of when September 11 detainees were removed and the number of days from their arrest to their removal or release.
86 The Senior Counsel and Levey point to this notation from January 29, 2002, as evidence that they had been unaware of the legal issue prior to that date, and that they took quick action once the FBI letter raised it to their attention.
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Figure 8 Detainees Removed per Month
100 90 80 70 60 50 40 30 20 10 0

Sep-01 Oct-01 Nov-01 Dec-01 Jan-02 Feb-02 Mar-02 Apr-02 May-02 Jun-02 Jul-02 Aug-02

Month and year
Note: 197 of the 762 detainees were released on bond, leaving 565 detainees. Of the 565, 68 had no release or removal dates. Consequently, the data in the chart represents 497 detainees not released on bond.

Figure 9 Number of Days from Arrest Date to
Removed/Released Date

250

220

200

174

150 127

100

77

47

50

27

0
1 to 50 days 51 to 100 days 101 to 150 days 151 to 200 days 201 to 250 days 251 to 300 days
*Number of missing values = 90

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V. OLC OPINION
In the fall of 2002, the Deputy Attorney General’s office asked the Office of Legal Counsel (OLC) to address two legal questions concerning the timing of removal of a detainee subject to a final order of removal under section 241(a) of the Immigration and Nationality Act (INA):
1) Whether the Department is under an obligation to act with reasonable dispatch in effecting an alien’s removal within the 90-day removal period established by the INA; and
2) Whether and for what purposes the Department may refrain from removing the alien beyond the 90-day period.
The OLC conducted its analysis in the context of an alien who had received a removal order in October 2002 and whose 90-day removal period expired in December 2002 without his being removed. The OLC opinion stated that insufficient information existed at first to press criminal charges or to transfer the detained alien to military custody as an enemy combatant. The OLC opinion stated that the question presented was whether the alien’s removal could be delayed to continue the investigation concerning his al Qaeda connections.
The OLC issued its memorandum opinion on February 20, 2003. The opinion concluded that, contrary to the opinion of the INS General Counsel, the INA by its terms grants the Department the full 90 days to effect an alien’s removal and imposed no duty to act within any particular speed within the 90-day period. The OLC opinion stated, however, that the Department’s ability to remove an alien within the 90-day period is not entirely unconstrained and “must be supported by purposes related to the proper implementation of immigration laws.” The OLC stated that although its opinion did not have to provide a comprehensive assessment of what purposes were “related to the proper implementation of immigration laws,” it concluded that investigating whether an alien has terrorist or criminal connections was related to the proper implementation of immigration laws.
The OLC opinion also concluded that it was permissible for the Department to take more than 90 days to remove an alien, even when the alien could be removed within 90 days, if the delay was related to affecting the immigration laws and the nation’s immigration policies. Again, the opinion did not describe all the circumstances that would meet this test, but it concluded that investigating whether an alien has terrorist connections met the test.
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VI. POST-ORDER CUSTODY REVIEWS OF SEPTEMBER 11 DETAINEES
We found that the September 11 detainees who were held by the INS beyond 90 days after their final orders of removal did not receive a Post-Order Custody Review (POCR) as required by regulation. According to 8 C.F.R. § 241(4(h)(5), aliens held for 90 days after a final order of removal are, by INS regulation, entitled to custody reviews to determine if their continued custody is warranted. Several witnesses told the OIG that these POCRs were not conducted for September 11 detainees.
To examine this issue, we requested information on POCRs for the 54 detainees on the January 23, 2002, list prepared by the INS of aliens with final orders who had been held more than 90 days. We found that, for the most part, the INS failed to conduct POCRs for these September 11 detainees as required by the regulations. For 20 of the 54 cases in this sample, the INS was unable to provide any information related to POCRs. For another 24 detainees in the sample, the INS data shows that POCRs should have been completed but were not. For six additional detainees, the INS noted that POCRs were not required because the aliens had obtained voluntary departure orders. The INS said it removed one additional alien before his POCR was due, it completed one POCR two weeks late, and it completed two reviews without documenting whether the INS was within the deadline imposed by the regulation.

Figure 10 Information Regarding Post-Order Custody Reviews

POCR done, but not clear if done on time (2)

POCR not required because alien removed
in time (1)

POCR done late (1)
POCR not required due to alien's status (6)

No information provided (20)

POCR should have been done, but was not
(24)

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When we asked the INS to explain the lapses in conducting POCRs for September 11 detainees, a Special Counsel in the INS OGC cited several reasons. First, he said because the INS was unable to remove detainees on the INS Custody List until they were cleared by the FBI, INS District officers may have believed there was no purpose in performing the custody reviews. In addition, he said a number of aliens moved in and out of INS custody at different points in time and this probably led to confusion. Finally, he cited problems caused by the tremendous workload on INS staff in the New York and Newark Districts stemming from the PENTTBOM investigation.
VII. OIG ANALYSIS
In the aftermath of the September 11 attacks, whether the INS legally could hold September 11 detainees after they had received final orders of removal or voluntary departure orders to conduct FBI clearance investigations was the subject of differing opinions. A February 2003 OLC opinion concludes, however, that the INS can do so if the delay is related to the proper implementation of immigration laws, including investigating whether the alien has terrorist or criminal connections. A pending lawsuit also is addressing this issue.
Regardless of the outcome of that lawsuit, our review found that the INS and the Department did not address this issue in a timely or considered fashion. For many months, detainees were being held, even beyond 90 days, despite their willingness to leave the country. Some INS attorneys had doubts about the legality of preventing the September 11 detainees from leaving the country not only after 90 days had passed, but even within the 90-day removal period if the alien was willing to leave and arrangements could be made to remove the alien. INS and OIL attorneys asserted that they raised their concerns about the limits of the Government’s detention authority at various meetings, and we found evidence that they did. Yet, despite their concerns about the issue, as time passed and the issue was not addressed, the INS did not raise these concerns at a higher level. On such an important issue, considering the significant doubts that these attorneys harbored about the legality of the policy, we believe the INS had a responsibility to press the issue clearly – and in writing – if it believed that the policy presented a legal issue for the Department. It did not do so until January 2002, almost five months after the issue first arose.
By the same token, we concluded that attorneys in the Deputy Attorney General’s office who were responsible for coordinating these immigration issues had enough information to realize that this was a significant legal issue that needed to be addressed. The evidence indicates that Associate Deputy Attorney General Levey and his counsels attended meetings at the SIOC Working Group when the legal concerns regarding the extent of the INS’s authority to detain
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aliens with final orders of removal were raised. While they stated they did not know that the final order and voluntary departure cases presented a legal problem (as opposed to a procedural problem) until late January 2002, we concluded that there was sufficient discussion and information about this issue that they should have considered earlier the limits on the Government’s authority to hold detainees with final removal orders, both within the 90-day period and after the 90-day period.87 These issues also were raised by habeas corpus petitions and questions posed in the media and by Congress to Department officials. We believe the Department’s senior officials with day-today responsibility for immigration issues should not have missed the fact that continued detention of aliens who had final orders presented an important legal issue. Further, we believe the Department should have squarely addressed this issue, well before the end of January 2002 when the policy was changed.
In response to the draft of this report, Deputy Attorney General Thompson stated that it is important to take account of the circumstances and atmosphere in the Department during this time period. He wrote that the period after the September 11 attacks was one of tremendous intensity, as the Department was required to alter its central mission to prevent further acts of terrorism. He noted that his staff was required to respond, in a crisis atmosphere, to hundreds of novel issues; had to shoulder a monumental task and an enormous workload; and had a great number of other responsibilities during this period as part of a comprehensive effort to protect the United States from further acts of terrorism. He wrote:
The detention of those illegal aliens suspected of involvement with terrorism was paramount to that mission. My staff understood that the immigration authorities of the Department should be used to keep such people in custody until we could satisfy ourselves - by the FBI clearance process - that they did not mean to do us harm.
Given those circumstances, I respectfully submit that it is unfair to criticize the conduct of members of my staff during this period. In light of the imperative placed on these detentions by the Department, I would not have expected them to reconsider the detention policy in the absence of a clear warning that the law was being violated. It is clear in the Draft Report that that did not occur until January 2002. When the issue was squarely presented, it is apparent that they promptly did the right thing: they changed the policy.
87 After reviewing a draft of this report, Levey clarified that he was not aware until late January 2002 that the INS “believed it was acting unlawfully.” He acknowledged that the INS had raised concerns about detaining the aliens, but asserted that INS officials did not do so in a “coherent or appropriate” way that communicated their concerns about these final order cases with any “transparency or urgency.”
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[The full text of his letter is included at Appendix K.]
We recognize the circumstances surrounding the response to the September 11 attacks. We agree that there were enormous demands on the Deputy Attorney General’s staff – and on the entire Department – after the September 11 attacks, as the Department reoriented its mission and acted to prevent further attacks of terrorism. Yet, we believe that the Department, particularly staff in the Deputy Attorney General’s office who were responsible for coordinating immigration issues, should have carefully considered before January 2002 such a critical issue as the extent of the Department’s authority to hold detainees who had been issued final orders of removal, both up to and beyond the 90-day removal period. As we have pointed out above, we also agree that the INS could have, and should have, raised these issue more clearly and in writing before January 2002.
But the evidence indicates that concerns about the extent of the INS’s detention authority were, in fact, raised by the INS and OIL attorneys before January 2002. We also conclude that the attorneys on the Deputy Attorney General’s staff who were responsible for coordinating immigration issues should have been on notice of these issues not only because of the concerns expressed by INS and OIL attorneys at various meetings, but also because of the issues raised by the Moussaoui case, the habeas corpus petitions, and questions that were being raised publicly by Congress and the press. The authority of the Department to hold detainees after they received final orders of removal was not a hidden issue. We believe that, notwithstanding their significant responsibilities and the circumstances and atmosphere of the time, the Department attorneys responsible for coordinating immigration issues should have addressed squarely and earlier the issue of the Department’s authority to hold detainees up to and beyond 90 days from when they received final orders of removal.
Finally, with respect to the custody reviews, the regulations clearly require the reviews and the INS should have conducted them in a timely manner.
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CHAPTER SEVEN
CONDITIONS OF CONFINEMENT AT THE METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK
I. INTRODUCTION
Almost 60 percent of the 762 aliens detained in connection with the Government’s investigation of the September 11 terrorist attacks were arrested in the New York City area. As discussed previously, the overwhelming majority of these aliens were arrested on immigration charges that, in a time and place other than New York City post-September 11, would have resulted in either no confinement at all or confinement in an INS or INS contract facility pending an immigration hearing. However, fear of additional terrorist attacks in New York City and around the country changed the way aliens detained in connection with the investigation of the September 11 attacks were treated.
Aliens arrested by the INS on immigration charges who were deemed by the FBI to be of “high interest” to its terrorism investigation were held in highsecurity federal prisons across the country, such as the Federal Bureau of Prisons’s (BOP) Metropolitan Detention Center (MDC) in Brooklyn, New York.88 Overall, the BOP confined 184 September 11 detainees in its facilities nationwide. A total of 84 detainees determined by the FBI to have a possible connection with the PENTTBOM investigation or terrorism in general were housed at the MDC from September 14, 2001, to August 27, 2002.
Generally, aliens deemed by the FBI to be “of interest” or “of undetermined interest” to the Government’s terrorism investigation were detained in lower security facilities, such as the Passaic County Jail in Paterson, New Jersey (Passaic). From September 2001 to May 2002, 400 September 11 detainees were confined in Passaic.
This chapter examines the conditions of confinement for September 11 detainees held at the MDC, while the next chapter examines conditions experienced by September 11 detainees at Passaic. As we discuss in these two chapters, the FBI’s initial assessment of its level of interest in specific September 11 detainees directly affected the detainees’ conditions of confinement within the institution and their access to telephones, legal counsel, and their families.
88 The MDC is a 9-story BOP facility in Brooklyn that generally houses men and women either convicted of criminal offenses or awaiting trial or sentencing. On December 10, 2002, the MDC housed 2,441 men and 181 women.
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In this chapter, we discuss the BOP’s initial communications blackout after the terrorist attacks; its classification of September 11 detainees as “witness security” inmates; the MDC’s administrative maximum (ADMAX) Special Housing Unit (SHU), a special high-security section of the facility where September 11 detainees were held until cleared by the FBI of involvement with terrorism; the MDC’s process for transferring September 11 detainees from the ADMAX SHU to the facility’s general population; the detainees’ access to legal counsel; allegations of physical and verbal abuse made by detainees against MDC staff; and other condition of confinement issues, including consular visits, recreation opportunities, medical care, and lighting conditions in the ADMAX SHU cells.
II. INITIAL COMMUNICATIONS BLACKOUT AFTER SEPTEMBER 11
Immediately after the September 11 attacks, the BOP ordered all detainees who were “convicted of, charged with, associated with, or in any way linked to terrorist activities” to be placed in the highest level of restrictive detention. Also, MDC officials placed all incoming September 11 detainees in the ADMAX SHU without conducting the routine individualized assessment. BOP Director Kathy Hawk Sawyer told the OIG that this designation resulted from the FBI’s assessment and was not the BOP's “call.” Detainees held in the MDC’s ADMAX SHU were subjected to the most restrictive conditions of confinement authorized by BOP policy, including “lockdown” for 23 hours a day, restrictive escort procedures for all movement outside of the ADMAX SHU cells, and tight limits on the frequency and duration of legal telephone calls.
Hawk Sawyer told the OIG that the detainees were held under these restrictive detention conditions, in part because the BOP did not know who the detainees were or what security risks they might present to BOP staff and facilities. She said the policies applied to the September 11 detainees were not new policies created specially for the detainees. Rather, the policies were longstanding BOP practices for housing inmates who presented special security concerns. She noted that on any given day persons are detained by the BOP in conditions exactly like those applied to the September 11 detainees.
Hawk Sawyer informed the OIG that the Department did not initially give the BOP any guidance on how to confine the detainees. However, she said the Deputy Attorney General’s Chief of Staff, David Laufman, and the Principal Associate Deputy Attorney General, Christopher Wray, called her during the weeks after September 11 with concerns about detainees’ ability to communicate both with those outside the facility and with other inmates. Hawk Sawyer said she discussed specific September 11 detainees during these conversations as well as the detainees in general. Hawk Sawyer stated that Laufman’s and Wray’s concerns about the detainees’ ability to communicate both with those outside the facility and with other inmates confirmed for her that the BOP’s initial decision to restrict detainee communications with
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persons outside the facility and to isolate them from the general inmate population and from each other was appropriate.
Hawk Sawyer also told the OIG that she had conversations with David Laufman and Christopher Wray from the Office of the Deputy Attorney General, in which she was told to “not be in a hurry” to provide the September 11 detainees with access to communications – including legal and social calls or visits – as long as the BOP remained within the reasonable bounds of its lawful discretion. Hawk Sawyer emphasized that Department officials never instructed her to violate BOP policies, but rather to take the policies to their legal limit in order to give officials investigating the detainees time to “do their job.”
Laufman, Chief of Staff to the Deputy Attorney General, confirmed the substance of the conversations described by Hawk Sawyer. He told the OIG that he urged the BOP to exercise the full scope of its discretion to sequence detainee outside contacts on the “back end” of the BOP’s discretion. Wray stated that when he contacted Hawk Sawyer about some specific criminal inmates connected to terrorism who were already in BOP custody at the time of the September 11 attacks, he discussed having these inmates placed under the most secure conditions possible. He stated that while he does not recall giving any specific instructions, he stated that the “spirit” of his comments was that the BOP should, within the bounds of the law, push as far toward security as they could.
On September 12, 2001, David Rardin, the BOP’s Northeast Region Director (which includes the MDC), directed wardens in his region not to release inmates classified by the BOP as “terrorist related” from restrictive detention in SHUs “until further notice.” Rardin also ordered a communications blackout for September 11 detainees during a telephone conference call with all Northeast Region Wardens on September 17, 2001. Consequently, MDC staff did not allow detainees to receive telephone calls, visitors, or mail, or to place telephone calls or send mail until the BOP received information concerning the security risks presented by the detainees.
We could not determine with any certainty the length of the communications blackout that affected September 11 detainees in BOP facilities. However, based on multiple witness interviews, the blackout appears to have lasted from several days to several weeks. According to Michael Cooksey, the BOP Assistant Director for Correctional Programs, all September 11 detainees initially were held incommunicado, but after 8 to 10 days detainees were permitted limited attorney and social contacts. John Vanyur, Senior Deputy Assistant Director in the BOP’s Correctional Programs Division, told the OIG that the detainees had no external contacts for the first few weeks after the terrorist attacks until the BOP received more information on the September 11 detainees being held in BOP facilities.
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Fifteen of the September 11 detainees we interviewed who were placed in the MDC between September 14 and October 16, 2001, told the OIG that this “communications blackout” continued until mid-October 2001.89 The detainees said that during this period, MDC staff did not permit them visitors, legal or social telephone calls, or mail.
The BOP, in comments submitted to the OIG after reviewing the draft of this report, stated that “at no time did the [BOP] prohibit detainees from sending outgoing mail” that would have informed detainee attorneys and family members where they were being held. Our interviews with MDC staff and September 11 detainees and BOP documents contradict this assertion. For example, a conference call between the Eastern Regional Director on September 20, 2001, and various wardens (including MDC Warden Zenk) re-established legal visits, legal telephone calls, and legal mail for the September 11 detainees. However, detainees continued to be denied social visits, non-legal telephone calls, and non-legal mail until approximately mid-October 2001.
By the same token, the detainees’ recollections that the communications blackout lasted until mid-October 2001 conflicted with MDC records showing detainees meeting with some consular officials and attorneys in early October 2001. On October 1, 2001, Cooksey issued procedures to all BOP facilities housing September 11 detainees that should have ended the communications blackout that had been imposed on the detainees.90 This memorandum permitted “legal mail, legal calls, and legal visits for September 11 detainees in accordance with written Bureau (BOP) policy.” Yet, even though this communications blackout was supposed to be lifted by Cooksey’s October 1 memorandum, the way the BOP classified September 11 detainees created significant restrictions on access to detainees, which we describe below.
89 Because the September 11 detainees did not have calendars or clocks in their ADMAX SHU cells, during their interviews with the OIG most of the detainees estimated dates when specific events occurred.
90 “Guidance for Handling of Terrorist Inmates and Recent Detainees,” October 1, 2001, memorandum from Michael B. Cooksey, Assistant Director, Correctional Programs Division, BOP.
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III. IMPACT OF DETAINEE CLASSIFICATION
A. Detainees’ Classification
The BOP initially classified all September 11 detainees it housed as Witness Security, or WITSEC, inmates.91 Witness Security inmates generally are individuals who agree to cooperate with law enforcement, judicial, or correctional authorities by providing evidence against persons or groups involved in illegal activities. Because their cooperation with the Government can place their lives in jeopardy, the BOP takes significant precautions to ensure the safety of WITSEC inmates. Accordingly, any information about WITSEC inmates is closely guarded, such as their identity, location, and status.
Normally, the arresting agency would inform the BOP of the person’s status and the need for WITSEC protection, but the BOP classified the detainees in this category without any individual assessment of the circumstances of their arrests.
When applied to the September 11 detainees, the WITSEC classification resulted in MDC officials withholding information about the detainees’ status and location. This made it very difficult for attorneys, family members, and, at times, law enforcement officers to visit September 11 detainees or even determine their location. For example, because information on WITSEC inmates is so strictly protected, staff who worked at the MDC’s reception desk did not know specific detainees were confined at the MDC and often told people inquiring about a September 11 detainee that the detainee was not being held at MDC when, in fact, he was. The MDC reception staff instead would refer the caller or visitor to the BOP’s National Locator systems for information about the detainee.92 Yet, because WITSEC inmates are not listed in the BOP’s National
91 See September 21, 2001, memorandum from Cooksey to BOP Regional Directors and Wardens categorizing September 11 detainees as “General Population WITSEC” in the BOP’s SENTRY system. SENTRY is the BOP’s database for monitoring the movement and management of all BOP inmates. BOP management was uncertain about the potential security risks posed to BOP staff and to other BOP inmates by the September 11 detainees. They believed that they needed to provide a greater measure of security for the September 11 detainees. The WITSEC categorization, with its accompanying additional security provisions, provided BOP management with a quick, “off-the-shelf” methodology to address their security concerns.
92 Members of the public have access to at least two resources to obtain information about inmates – including September 11 detainees – in the BOP’s custody. The first resource, the Inmate Locator on the BOP’s website (www.bop.gov), allows people to search the BOP database using a variety of criteria, including the inmate’s name and BOP or INS number. When a match is made, the Inmate Locator provides the following information: the inmate’s name; BOP Register Number; age; race; sex; projected release date; date released; and the name of the BOP facility holding the inmate. The information, which comes from the BOP’s (cont’d)
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Locator systems, people who accessed the registry to inquire about September 11 detainees were unable to obtain any information about where a particular detainee was being held.
The OIG interviewed four attorneys who each represented a September 11 detainee housed at the MDC about their initial efforts to contact their clients. Three of the attorneys told us that they were informed by MDC front desk staff at some point that their clients were not present at the MDC when, in fact, their clients were being held in the facility at the time. One attorney told us that when she went to the MDC to attempt to locate her client, MDC staff checked their “system” and informed her that her client was not housed at MDC. After she complained, another MDC employee came to the front desk, informed the attorney that her client was in the MDC, and authorized her to meet with him.
Another attorney told the OIG that he went to the MDC after front desk staff had informed his paralegal that his client was not housed at the facility. The attorney said he provided the MDC front desk staff with numerous combinations of his client’s name, which contained five different parts. The attorney said he again was told that his client was not housed at the MDC. The attorney also visited the INS’s Varick Street Service Processing Center in Manhattan in a failed effort to locate his client. In fact, his client was in the MDC at the time.
In addition to lifting the initial communications blackout for September 11 detainees, Cooksey’s October 1, 2001, memorandum established a new inmate classification that was used for the September 11 detainees – Management Interest Group 155 (Group 155) – in part to address the lack of information the BOP was providing to attorneys and family members about the detainees. However, Cooksey’s October 1 memorandum directed all BOP staff, including staff at the MDC, to continue holding September 11 detainees in the most restrictive conditions of confinement possible until the detainees could be “reviewed on a case-by-case basis by the FBI and cleared of any involvement in or knowledge of on-going terrorist activities.”93 As a result, the BOP continued
main inmate database, is updated daily with data on both sentenced and pre-trial inmates. The second public resource, the BOP Telephone Inmate Locator, provides callers with information on federal inmates. To obtain inmate information, the caller must have any one of the following criteria to provide to a BOP operator: BOP Register Number; U.S. Marshals Service Number, FBI Number, DCDC Number, or INS Number; or the inmate's first and last names and age.
93 According to Cooksey’s October 1 memorandum, all detainees who entered the MDC “on or after September 11, 2001” and “may have some connection to or knowledge of” the events of that day or terrorism activities, were to be housed “in the Special Housing Unit [SHU]” in the “tightest” allowable conditions until cleared by the FBI.
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to use “WITSEC” as its primary designation for September 11 detainees and “Group 155” as a secondary designation. Therefore, the tighter restrictions that flowed from the WITSEC designation continued to apply to all September 11 detainees, and difficulties that families and attorneys had trying to locate the September 11 detainees continued.
Four senior managers at BOP Headquarters, including Senior Deputy Assistant Director John Vanyur, acknowledged to us that the BOP’s initial designation of September 11 detainees as WITSEC inmates caused administrative confusion. The MDC Warden’s Executive Assistant told the OIG that briefings for MDC staff in the weeks after the terrorist attacks did not provide clear guidance about how to handle inquiries from the public about September 11 detainees, particularly to staff assigned to the visitors’ desk in the MDC’s front lobby. MDC Warden Michael Zenk and the MDC Associate Warden for Programs both confirmed that staff at MDC’s front desk had turned away visitors – including attorneys – who sought to contact September 11 detainees because of confusion surrounding the WITSEC/Group 155 designation initially assigned to the September 11 detainees.94
The WITSEC designation also impeded law enforcement interviews of September 11 detainees. MDC staff told the OIG that several law enforcement officials in the New York area who called the MDC to schedule detainee interviews shortly after the terrorist attacks were told that a particular detainee was not housed at the MDC. To address this problem, MDC staff established a process under which law enforcement officers contacted staff in the MDC Command Center or one of the Lieutenants responsible for supervising the ADMAX SHU in advance of their arrival to schedule an interview and to ensure that the September 11 detainee was housed at the MDC.
In response to the continuing confusion about access to the detainees and obtaining information about the detainees, the BOP established another new classification for September 11 detainees. In an October 31, 2001, memorandum, Cooksey removed the WITSEC designation for September 11 detainees in SENTRY, the BOP’s inmate tracking database, but the Group 155 assignment continued to apply to the detainees. After October 31, when MDC staff at the front reception area searched for a September 11 detainee in SENTRY, a warning message referred to the detainee as a “SPECIAL SIS CASE.” The staff was therefore alerted to contact the MDC’s Special Investigative Supervisor (SIS), who determined whether the visitor had been cleared to meet with the detainee.
94 Dennis Hasty was the MDC Warden at the time of the September 11 attacks and was replaced by Zenk in April 2002.
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However, problems persisted even after this second re-classification because of the BOP’s initial decision to classify September 11 detainees as WITSEC inmates. As late as March 1, 2002, the Captain of the ADMAX SHU e-mailed the MDC Warden and officials at BOP Headquarters requesting that September 11 detainees no longer be categorized as WITSEC inmates in the SENTRY system.95 According to the Captain, the WITSEC designation was unnecessary and caused “confusion . . . at times attorneys are being turned away.”
B. MDC’s Special Housing Unit (SHU)
Because of the policy that all September 11 detainees were to be held in the most restrictive conditions at BOP facilities, they were placed in the MDC’s Special Housing Units (SHU). In BOP institutions, SHUs are designed to segregate inmates who have committed disciplinary infractions or who require administrative separation from the rest of the facility’s population.96 According to BOP regulations, an employee called the Segregation Review Official is required to review the status of each inmate housed in the SHU on a weekly basis after the inmate has spent seven days in disciplinary segregation or administrative detention. In addition, that official is required to conduct a formal hearing every 30 days to assess the inmate’s status.97
We found that the BOP did not review the status of each September 11 detainee on a weekly basis and did not conduct formal hearings monthly to assess the detainee’s status. Rather, it relied on the FBI’s assessment of “high interest.” We reviewed the monthly SHU reports for the September 11 detainees we interviewed and found that each was annotated with the phrase “continue high security.” MDC officials told the OIG that, if they did not receive notification from BOP Headquarters that the FBI had cleared a September 11 detainee, the detainee’s monthly report was automatically annotated with the phrase “continue high security,” without a hearing being conducted, and the detainee remained in segregation.
In addition, the September 11 detainees were housed in the most restrictive type of SHU – an Administrative Maximum (ADMAX) SHU. According to BOP officials, ADMAX units are not common in most BOP facilities because the conditions of confinement for disciplinary segregation or
95 The Captain is the highest-ranking correctional officer with direct responsibility for custody operations in the ADMAX SHU. The Captain reports to the Associate Warden for Custody, who reports to the MDC Warden.
96 BOP Program Statement 5270.07, Discipline and Special Housing Units.
97 The 30-day review is documented on the BOP Special Housing Review form.
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administrative detention in a normal SHU are usually sufficient for correcting inmate misbehavior and addressing security concerns. An ADMAX SHU has more restrictive conditions than a normal SHU. For example, the ADMAX SHU at the MDC, unlike a regular SHU, has a four-man hold restraint policy, handheld cameras recording detainee movements, cameras in each cell to monitor detainees, and physical security enhancements.98
Conditions in the ADMAX SHU differ markedly from conditions in the MDC’s general population. In the general population, inmates are allowed to move around the unit and use the unit’s telephones. They also are not subjected to the movement and restraint policies enforced in the ADMAX SHU. In addition, detainees in the general population are permitted certain electronic equipment in their cells, such as small radios.
By contrast, as we describe below, detainees in the ADMAX SHU are restricted to their cells, have limited use of telephones with strict frequency and duration restrictions, and can only move outside their cells for specific purposes and while restrained and accompanied by MDC staff. Several September 11 detainees who spent time in the ADMAX SHU before being moved to the MDC’s general population described the difference as “between night and day.”
Prior to September 11, 2001, the MDC had a SHU, but not an ADMAX SHU. After the September 11 terrorist attacks, MDC staff contacted staff from the BOP’s Metropolitan Correctional Center (MCC) in Manhattan for assistance in establishing an ADMAX SHU.99 The MDC quickly created an ADMAX SHU from one part of its existing SHU. This ADMAX SHU was only partially operational when the first September 11 detainees arrived on September 14, 2001. According to MDC officials, the unit became fully operational by October 15, 2001, when MDC management distributed operating procedures to staff assigned to the ADMAX SHU.
Each wing has 31 cells and a capacity of 60 inmates per wing. The wings are divided into two blocks of cells called “ranges.” September 11 detainees were housed in individual cells in the SHU range that was converted to an ADMAX SHU. As more detainees were transferred to the MDC, two and at times three detainees were housed in a single cell in the ADMAX SHU. MDC staff told the OIG that as many as 60 detainees were housed in the ADMAX SHU at one time.
98 The structure and policies of the MDC’s ADMAX SHU are discussed in more detail later in this chapter.
99 The MCC in Manhattan had created an ADMAX SHU after one of its correctional officers was seriously injured by a terrorist housed in the MCC’s regular SHU who had been convicted of involvement in the 1998 embassy bombings in Kenya and Tanzania.
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In an effort to improve security, the MDC also initiated a series of structural changes to the ADMAX SHU in early October 2001 that were completed in mid-November 2001. The changes included:
• Heavy iron grillwork was installed between the SHU area housing September 11 detainees and the area housing inmates in other SHU ranges;
• Two stationary security cameras were installed in each ADMAX cell, each mounted on the wall at ceiling height. The MDC previously had installed cameras for viewing the range hallway in front of the SHU cells. Monitors for viewing the cameras in the corridors and the new cameras installed in the cells were located in the officer-in-charge’s room; and
• A video camera mounted on a tripod or held by an MDC staff member was used to record all movement of September 11 detainees. Video recording equipment, linked to the stationary cameras in the cells, was located in a locked room adjacent to the ADMAX SHU.
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sink fixtures, a shower, and a small seating area.
Image 1: These pictures depict a typical ADMAX SHU cell and show (moving clockwise from top left) the bunk bed, shower, seating area, and combination toilet and sink fixture. Photographs dated May 1, 2002.
Detainees and MDC staff used a multipurpose room located at the end of the ADMAX SHU range for medical examinations, strip searches, recreation, and individual meetings.
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Image 2: This picture shows a multipurpose room on the ADMAX SHU range that is equipped for detainee medical examinations. Photograph dated May 1, 2002.
A modified food preparation area was located between the ADMAX range and the regular SHU ranges on the MDC’s ninth floor. Normally, inmate food at the MDC is served on hard plastic trays, but food for the September 11 detainees was transferred to foam plates to prevent the detainees from using plastic trays as weapons.
The recreation area in the ADMAX SHU consisted of four cell bays enclosed by chain link fencing on all sides and the ceiling. The roofs of the four recreation cells, located on the top floor of the MDC, were open to the outside. Due to security concerns, MDC staff did not provide recreation equipment to September 11 detainees housed in the ADMAX SHU.
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Image 3: This picture shows the ADMAX SHU recreation cells as viewed from the last recreation cell. Photograph dated May 1, 2002.
Visitors, attorneys, and family members met with September 11 detainees in a special visitation area adjacent to the ADMAX SHU range. All visits between detainees and their attorneys or family were “non-contact,” meaning physical contact between parties was prevented by a clear partition. Correctional officers were not present in the special visitation areas during these visits.
Image 4: These photographs show two views of the non-contact visiting area used by September 11 detainees in the ADMAX SHU. Photographs dated May 1, 2002.
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Law enforcement visitors to the ADMAX SHU were permitted contact visits with September 11 detainees in a separate visiting area across from the non-contact area.
Image 5: These pictures show two views of the contact visiting area in the ADMAX SHU. Photographs dated May 1, 2002.
C. ADMAX SHU Policies and Procedures Officials at the MDC combined existing BOP policies for disciplinary
segregation and administrative detention to create policies and procedures governing September 11 detainees housed in the ADMAX SHU.100 The following procedures were implemented for these detainees on September 20, 2001:
• One social telephone call a month; • One legal telephone call a week;
100 Disciplinary segregation has more restrictive conditions than administrative detention. For example, an inmate in disciplinary segregation is entitled to one social telephone call a month, while an inmate in administrative detention is entitled to one social telephone call a week. Administrative detention is considered non-punitive and is used to house either inmates who pose a threat to themselves or facility staff, or inmates in protective custody. According to BOP Program Statements, administrative detention is designed for short periods of time unless the inmate requires long-term protection or presents “exceptional circumstances, ordinarily tied to security or complex investigative concerns.”
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• A correctional counselor was required to stand in front of the cell while detainees completed all telephone calls (according to BOP officials, this was done for security purposes and not in an effort to monitor the detainee’s conversation);
• All requests to use the telephone had to be made using a “copout” form, which we describe below;
• Legal and social visits, except by law enforcement officers, were non-contact;
• Detainees remained in restraints while out of their cells. The MDC imposed three different restraint policies on the September 11 detainees:
– Routine escort: handcuffs and leg irons;
– When required to sign forms, be interviewed, or for visitation: handcuffs, leg irons, and “Martin Chain” (approximately four feet of heavy chain that links the leg irons to the handcuffs);
– When escorted from the institution: handcuffs, handcuff cover with padlock, Martin Chain, and leg irons.
• Three staff members and one Lieutenant were present each time a detainee was placed into restraints and escorted from a cell. During this “four-man hold,” one of the staff members was required to operate the portable video camera; and
• Detainees remained in restraints during non-contact visits with attorneys or family members.
D. Detainee Complaint Process
September 11 detainees had two methods to make a request or file a complaint about their treatment or conditions at the MDC – the “copout” and the Administrative Remedy Program. The copout, a process in which detainees identify concerns to MDC staff, was the primary method for detainees to request telephone calls (social and legal), medical care, or resolution of visitation problems.101 The copout, while not an official complaint process, was used by detainees to request staff assistance for a variety of issues.
101 BOP Program Statement 5511.07, Inmate Request to Staff.
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In contrast, the Administrative Remedy Program is the BOP’s formal process for filing a complaint, such as an allegation of physical or verbal abuse against facility staff. Detainees (or inmates) are expected to exhaust all informal methods for resolving their concerns, such as submitting copouts, before filing complaints under the Administrative Remedy Program.102
IV. HOUSING ASSIGNMENT OF SEPTEMBER 11 DETAINEES
A. Assignment of September 11 Detainees to the ADMAX SHU
As described above, the MDC did not follow the BOP’s inmate security risk assessment procedures for determining where to house the September 11 detainees. Instead, MDC officials relied on the FBI’s assessment that the detainees generally were “of high interest” to its ongoing terrorism investigation and automatically placed them in the MDC’s most restrictive housing conditions – the ADMAX SHU.
The first September 11 detainees arrived at the MDC on September 14, 2001. Initially, Dennis Hasty, the MDC Warden at the time, and the former Associate Warden for Custody told us they were under the impression that the MDC would be asked to house only about 16 September 11 detainees, the capacity of one block of SHU cells if each detainee was housed individually.103 However, the number of September 11 detainees sent to the MDC soon exceeded their original expectations as the FBI arrested additional aliens and classified them “of high interest.” At the time, the MDC was the only detention facility in New York City operational and suitable for housing detainees under highly restrictive conditions.104
Officials from the BOP’s Northeast Region and BOP Headquarters told MDC staff that they believed that September 11 detainees who were sent to the MDC were “suspected terrorists.” However, as discussed previously, from our interviews and document reviews we determined that the FBI did not have a formal process for making an initial assessment of a detainee’s possible links to terrorism, and this assessment lacked specific criteria and was applied
102 BOP Program Statement 1330.13, Administrative Remedy Program.
103 A 17th cell along the block was used for isolation purposes (e.g., an inmate on suicide watch). This isolation cell had bars traversing the front of the cell so that correctional staff could view the occupant at all times. Each of the other 16 SHU cells had a solid door with a small window.
104 The MCC in Manhattan had an ADMAX SHU. However, because of security and logistical concerns associated with its proximity to the World Trade Center, the MCC did not accept new inmates during the weeks after the attacks.
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inconsistently. The BOP’s Northeast Region Counsel explained to the OIG that the BOP accepted this assessment, since the BOP normally takes “at face value” FBI determinations that detainees had a potential nexus to terrorism and therefore were “high-risk.”
Under standard BOP practice, newly arrived inmates are kept separate from an institution’s general inmate population for the first 30 days while staff conducts risk assessments to determine whether the inmates can be released safely into the general population. We found no evidence that MDC staff performed any of the normal risk assessments on the September 11 detainees, because the detainees were assigned automatically to the ADMAX SHU.
B. Reassigning September 11 Detainees to the General Population
We found that even after September 11 detainees who had been placed in the ADMAX SHU were finally “cleared” by the FBI, some remained in the ADMAX SHU for days or weeks after they were supposed to be transferred to the MDC’s less restrictive general population.
1. Centralizing the Notification Process
As discussed in Chapter 4, prior to October 1, 2001, the FBI New York Field Office and the INS New York District Office developed their own procedures to clear local September 11 detainees using staff who served on the New York Joint Terrorism Task Force (JTTF). When the FBI liaison to the New York JTTF told the INS and BOP liaisons that the FBI had no further investigative interest in a particular detainee, the BOP liaison drafted a clearance memorandum to the MDC Warden or Captain. When the Warden received this memorandum, the detainee could be “normalized” (i.e., released to the general population).105
However, this process did not occur quickly, even after the FBI cleared the detainee. According to the OIG’s data analysis, before October 2001, the MDC received notification that the FBI had cleared a September 11 detainee an average of 15 days after the FBI’s New York Field Office had actually cleared the detainee.
On October 1, 2001, the process for transferring the detainees from the ADMAX SHU to the general population was centralized to BOP Headquarters in Washington, D.C. Under the new process, the FBI’s New York Field Office informed FBI Headquarters that a detainee was no longer of investigative interest to its terrorism investigation. Subsequently, staff in the International
105 A copy of such a memorandum is attached as Appendix J.
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Terrorism Operations Section at FBI Headquarters coordinated CIA checks for detainees before issuing clearance memoranda.
The BOP employee who served as a liaison to FBI Headquarters during this period told the OIG that he generally checked with the FBI on a daily basis for new clearance memoranda for September 11 detainees.106 The liaison said that once a clearance memorandum was issued, he notified the Intelligence Section at BOP Headquarters, either by e-mail or in his weekly report, that the FBI had cleared a specific September 11 detainee. Staff in BOP’s Intelligence Section then prepared a memorandum from Cooksey, the BOP’s Assistant Director for Correctional Programs, to the Warden of the BOP institution in which the detainee was held. The “Cooksey memorandum,” as it became known, formally notified a BOP Warden that a detainee was no longer considered “high risk” and that his conditions of confinement could be normalized.
After the FBI and BOP implemented this centralized process, the time it took for a BOP facility to receive notice that an inmate was no longer considered “high risk” lengthened. Our analysis found that the MDC received notice from BOP Headquarters, via a Cooksey memorandum, an average of 32 days after the FBI New York Field Office had cleared a September 11 detainee. The range of these cases varied from a minimum of 7 days after the FBI New York Field Office’s clearance for one detainee to 109 days for another detainee.
BOP officials told us that they would not transfer a September 11 detainee to an institution’s general population prior to receiving the FBI clearance notification via the Cooksey memorandum. We found inconsistencies in this policy, which we discuss in the next section. Moreover, BOP officials explained that the process to transfer an inmate to the general population after receiving clearance could take several days. The Cooksey memorandum permitted the MDC to assess detainees using normal BOP policies to place them in appropriate housing. After receiving a memorandum on a particular detainee, the MDC conducted its own assessment of the detainee, and BOP officials said it took time to review records and interview correctional officers as part of this assessment. BOP officials told us that they were aware of two detainees who unintentionally were left in the ADMAX SHU after the MDC received the Cooksey memorandum, due to administrative errors. They also stated that they were aware of a third detainee who received
106 The BOP liaison stated that he checked with the FBI daily until the end of April 2002, by which time the number of September 11 detainees held in BOP facilities was drastically reduced. The liaison said that starting in May 2002 he monitored the issuance of FBI clearance memoranda once or twice weekly.
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a Cooksey memorandum but remained in the ADMAX SHU because of disciplinary problems.
The efficiency of the FBI clearance process and the length of time it took BOP Headquarters to notify the MDC of a detainee’s clearance were significant because they dictated when a September 11 detainee could be released to the MDC’s general population, where detention conditions were markedly less restrictive.
2. Inconsistencies in Detainee Reassignment Procedures
We also found that the MDC inconsistently applied the Cooksey memorandum process for transferring September 11 detainees from the ADMAX SHU to the general population. Of the 53 detainees in our MDC sample, 23 received Cooksey memoranda; 20 never received Cooksey memoranda; and 10 were cleared using the local procedures in effect prior to centralization of the process at FBI and BOP Headquarters on October 1, 2001. Of the 20 detainees who never received Cooksey memoranda, 14 were transferred from the MDC,107 5 were released into the general population without FBI clearances,108 and 1 was released on bond.
Our analysis of the 23 detainees in our MDC sample who received Cooksey memoranda determined that FBI Headquarters took an average of 107 days to clear the detainees of any connection to terrorism, and the MDC received this notification an average of 24 days after the detainee was actually cleared by FBI Headquarters.109 In response to OIG questions, BOP management offered no explanation for why it took, on average, more than one month to issue Cooksey memoranda after the FBI had cleared the September 11 detainees.
107 Detainees removed from the institution were returned to INS custody, transferred to another BOP institution, or removed from the United States. One detainee in our sample was released on bond.
108 We asked MDC management for an explanation for why detainees were released into the general population without FBI clearances. They were unable to provide an explanation.
109 The time it took the MDC to release the inmate into the general population, after the FBI clearance was received, ranged from 5 to 119 days in our sample. In the 119-day case, the detainee had entered the MDC on October 4, 2001, and was cleared by the FBI on December 19, 2001. However, he was not released to the MDC’s general population until April 17, 2002. According to Warden Zenk, the detainee’s continued confinement in the ADMAX SHU for 119 days after he was cleared by the FBI “was due to an administrative error” on MDC’s part and was uncovered after BOP Headquarters performed an audit of September 11 detainees.
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Our analysis of the records of the 23 detainees who received a Cooksey memorandum showed that 4 of the 23 detainees were released into the general population prior to a Cooksey memorandum being received. Further, three of these four detainees did not have FBI clearances prior to being released into the general population. While it is possible that the MDC could have learned that a detainee had been cleared by the FBI from a source other than a Cooksey memorandum, such deviation from the standard procedure is noteworthy given the BOP’s adherence to other rules developed to ensure that the September 11 detainees did not present a risk to the facility’s staff or other inmates.
Case Study 1:
A September 11 detainee arrested in New York City arrived at the MDC on November 5, 2001. More than six months later, on May 16, 2002, the FBI officially determined that the detainee was of “no investigative interest” regarding the September 11 attacks or terrorism in general. However, a BOP Intelligence Liaison in the SIOC at FBI Headquarters wrote that “due to an internal FBI admin[istrative] error,” notification from the FBI to the BOP that the detainee had been cleared was not received by the BOP until June 13, 2002.
The Cooksey memorandum for this detainee issued by BOP Headquarters arrived at the MDC on June 14, 2002. The detainee was released into the MDC’s general population later that same day, more than seven months after his arrest and almost one month after the FBI had cleared him.
V. ACCESS TO LEGAL COUNSEL
This section examines the access to counsel afforded September 11 detainees while housed in the MDC. We focus on the policies and procedures implemented by the MDC that affected these detainees’ access to counsel. We also examine how the MDC’s initial communications blackout and the detainees’ WITSEC classification affected the availability of legal calls, access to pro bono attorney lists, and the ability of their attorneys to meet with them.
A. Legal Telephone Calls
We found that the BOP’s decision to house September 11 detainees in the most restrictive confinement conditions possible severely limited the detainees’ ability to obtain, and communicate with, legal counsel.
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Under applicable BOP policies, MDC officials had significant discretion to determine the frequency and length of the detainees’ legal telephone calls. Yet, we found that the MDC adopted procedures for September 11 detainees more appropriate for pre-trial inmates who had obtained counsel prior to their detention, rather than for individuals like the September 11 detainees, the vast majority of whom had no legal representation upon arriving at the MDC and needed to secure counsel.110
The BOP’s national policy on attorney telephone calls states that inmates should be afforded the opportunity “to place an occasional unmonitored call to his or her attorney . . . frequent calls should be allowed only when an inmate demonstrates that communication with his or her attorney by other means is not adequate.” BOP regulations do not specify an acceptable number of inmate legal telephone calls, nor does the policy define what level of attorney communication is “not adequate.”111 MDC officials told us that in accordance with BOP Headquarters’s instructions to maintain the tightest restrictions possible on the September 11 detainees, they decided to adopt a practice of permitting detainees one legal telephone call per week. The MDC’s legal call practice did not violate any BOP policy because, given the absence of existing written guidance from BOP Headquarters, MDC management was given broad discretion to develop and implement a facility-specific legal call policy for the detainees.
MDC unit managers and counselors controlled the process for placing legal telephone calls for detainees housed in the ADMAX SHU. Detainees who wanted to make a legal call had to submit a written request known as a “copout.” A unit counselor described the process for placing legal telephone calls in the ADMAX SHU once a September 11 detainee submitted a copout:
• The counselor or unit manager plugged a telephone into an unmonitored line outside of the detainee’s ADMAX SHU cell;
• The detainee provided the MDC employee with a telephone number, which the counselor or unit manager dialed and verified that the unmonitored call was placed to the detainee’s attorney;
110 For example, the BOP has no national policy regulating the number or length of telephone calls that inmates in an ADMAX SHU can make to their attorneys. Neither BOP Headquarters nor the MDC developed new policies addressing the unique needs of September 11 detainees regarding telephone access to allow them to obtain attorneys or place legal calls.
111 An exception in the written policy is when the inmate or the inmate’s attorney demonstrates an imminent court deadline.
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• The counselor passed the telephone to the detainee through the horizontal slot in the cell door; and
• The counselor remained at the cell door until the detainee completed his call.
In addition to the written copout process, our interview with the ADMAX SHU unit counselor and our review of the MDC Legal Call Log revealed that the unit counselor made rounds to offer legal calls to September 11 detainees, at the most, 2 to 3 times per week. In fact, our review of the Legal Call Log and copout records revealed that between September 17, 2001, and April 3, 2002, there were six periods of over seven days in which the counselor did not make rounds in the ADMAX SHU to offer detainees the opportunity to place legal calls. Three of these periods were between September 17, 2001, and January 2, 2002, and lasted 28, 16, and 8 days. The other three periods were between January 8 and April 3, 2002, and lasted 20, 16, and 8 days.
Three September 11 detainees interviewed by the OIG said that each time the unit counselor made rounds through the ADMAX SHU he simply asked detainees “are you okay?” The three detainees said that, initially at least, they did not realize that this question was shorthand for, “Do you want a weekly legal telephone call?” A unit counselor confirmed to the OIG that when he made rounds through the ADMAX SHU to provide legal calls, he asked the September 11 detainees, “Are you okay?” to determine whether they wanted to make legal calls. Detainees we interviewed reported that an affirmative response to the question of whether they were “okay” resulted in them not receiving a legal telephone call that week.
The Associate Warden for Programs, the ADMAX SHU unit manager, and a unit counselor told us that if a detainee declined an opportunity to make a legal call, this refusal was not always recorded in the MDC’s Legal Call Log. Our analysis also found that legal call refusals were not consistently annotated in the log. The Associate Warden said that the unit counselor prepared a weekly memorandum that listed the names of the detainees who refused legal calls that week.
We analyzed the weekly legal call memoranda, the Legal Call Log, and copouts for legal calls submitted by the 19 September 11 detainees we interviewed at the MDC. The first legal call made by any September 11 detainee, according to these three sources, was not until October 15, 2001.112
112 In order to assess the placement of legal calls by September 11 detainees, we requested the telephone records for the unmonitored telephone lines used by the detainees in the ADMAX SHU. The telephone company stated that it could not isolate telephone line extensions within the MDC. Additionally, MDC Warden Zenk informed us that the MDC (cont’d)
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Yet, the MDC was notified via conference call by the BOP Northeast Region that legal telephone calls could be made by detainees as of September 20, 2001.
Based on the length of time spent in the ADMAX SHU, the 19 detainees we interviewed collectively should have been offered 383 opportunities to make legal phone calls. The Legal Call Log lists 200 legal calls made by these detainees.113 We also reviewed 60 memoranda with the names of detainees who declined their legal calls and 27 copouts for which there are no corresponding entries in the log. We concluded that, at best, detainees in our sample were offered 287 legal telephone calls, far less than one legal call per detainee per week.
The detainees we interviewed also stated they were not always offered weekly legal calls. Seven of the 19 September 11 detainees we interviewed stated that they did not complete legal telephone calls and were not visited by attorneys from the time they arrived at the MDC in mid-October until midDecember 2001. When detainees began placing legal calls from the ADMAX SHU in mid-October 2001, 15 of the 19 detainees we interviewed told the OIG they were permitted, at most, one legal telephone call per week. Three detainees told us that they never were offered legal telephone calls, and one detainee stated that he was denied legal calls as part of disciplinary punishment. A review of the Legal Call Log indicates that this particular detainee placed one legal call during the month he spent in the ADMAX SHU.
Fourteen of the 19 detainees were not offered their first legal phone calls within 7 days of arrival at the MDC. Of this group of detainees, the earliest legal phone call was offered ten days after arrival. One detainee was not offered his first legal phone call until 42 days after arrival. The average time from arrival to the first offer to make a legal phone call for the 14 detainees was 17 days.
We found that of the 287 legal telephone calls offered, 101 (37 percent) were offered more than seven days apart. In response to this finding, the MDC unit counselor said he offered weekly legal calls and the detainees’ statements to the contrary were inaccurate.
Even when MDC offered detainees telephone calls, the MDC’s response to unsuccessful attempts to contact attorneys by telephone was arbitrary. Four of the 19 detainees we interviewed told the OIG that legal calls resulting in a
telephone system did not have the capacity to retrieve the detainees’ telephone records that we requested. Therefore, we were not able to independently verify the information in the MDC Legal Call Log or on the legal call copouts.
113 We obtained corresponding copouts for 123 of the legal calls.
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busy signal or calls answered by voicemail counted as their one legal call for the week. In addition, six detainees told the OIG that their calls to attorneys on the pro bono attorney list that resulted in no answer, were a wrong number, or resulted in a refusal to provide legal services counted as the detainees’ legal call for that week. The unit counselor disputed these claims, stating that a “no contact” or busy signal did not count against the detainee as his sole weekly legal call. The unit counselor told the OIG that if the line was busy or the call could not be placed for some other reason, he tried to provide another legal call to the detainee the next time he made rounds in the ADMAX SHU. Yet, the Legal Call Log, which lists 200 total calls for September 11 detainees, indicates at least four instances when a "no contact" or busy signal counted as a detainee's weekly legal call. Moreover, the Associate Warden for Programs, the ADMAX unit manager, and a second unit counselor acknowledged to the OIG that reaching an answering machine counted as a completed legal call, although encountering a busy signal did not. This meant that for some detainees, if they reached an answering machine while trying to obtain an attorney during their one weekly telephone call, they would not be permitted another legal call for a week.
Also, according to six September 11 detainees we interviewed, unit counselors unilaterally hung up the telephone when a detainee’s legal call lasted longer than three minutes. The ADMAX SHU unit counselor denied this allegation and stated that he did not limit the length of detainees’ legal calls. The Legal Call Log, which is supposed to track the length of detainee legal calls, shows most calls lasting at least 5 minutes, with the longest call noted as 34 minutes.
In late November 2001, at least 20 September 11 detainees at the MDC staged a hunger strike to express dissatisfaction with their confinement and the conditions in the ADMAX SHU, including the restrictive telephone policies. Four of the 19 September 11 detainees we interviewed said they refused food beginning in late November 2001 to protest a lack of attorney telephone calls, among other issues. A daily ADMAX SHU report filed on November 28, 2001, confirmed the hunger strike, and noted that 20 of the September 11 detainees were refusing to eat, in part because of concerns about limited legal telephone calls.114
Case Study 2:
We interviewed a September 11 detainee at the MDC who was arrested on September 26, 2001. He said he was originally arrested after the New York JTTF executed a search warrant for his
114 We discuss detainee hunger strikes at the MDC in greater detail in Section VII of this chapter.
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apartment. He was suspected of social security fraud, insurance fraud, and credit card fraud. He also was suspected of working with others in a scheme to provide funds to al Qaeda. He was immediately transferred to INS custody and spent approximately one day at the INS Varick Street Service Processing Center. He told us he was never informed as to why he was arrested but said he later pleaded guilty to marriage fraud.
Based on the Legal Call Log, the detainee was not offered a legal call until October 15, 2001. That call was listed as a completed 10minute call. According to the Legal Call Log, the detainee was not offered his next legal call until November 7, 2001, which the ADMAX SHU Counselor recorded as being refused by the detainee. The log showed that on December 17, 2001, the detainee made his next legal call, the result of which was an incomplete “no answer.” This detainee refused three legal call offers in January 2002, according to weekly memoranda that recorded the detainees who did not wish to make a legal call.
The detainee told us that he was given a pro bono attorney list by MDC staff in October 2001. He stated that he tried to contact several legal services providers on the list, but received no responses when he called the numbers listed. He denied being offered the opportunity to make a legal phone call in November 2001. The detainee also stated that he was not allowed to make a social call to his sister for the first three months he was incarcerated at the MDC. He said that in December 2001, he finally contacted his sister and that by mid-January 2002, his sister had obtained legal representation for him, approximately four months after he entered the MDC.
B. Attorney Visits
The BOP’s classification of September 11 detainees as WITSEC inmates also hampered their ability to visit with attorneys long after the MDC lifted its initial communications blackout. Even though MDC officials developed procedures to permit meetings between detainees and their attorneys in the ADMAX SHU, the continuing confusion on the part of MDC staff who interacted with attorneys about the location of detainees made the attorneys’ ability to visit their clients more difficult.
The first attorney visit recorded for a September 11 detainee at the MDC took place on September 29, 2001. The next two attorney visits for different detainees were noted on October 10, 2001. According to the Associate Warden
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for Programs, the MDC did not allow September 11 detainees any visitors for about three weeks after the terrorist attacks. During this communications blackout period, MDC staff told attorneys who sought to visit September 11 detainees that information on the detainees was not available. Instead, MDC staff referred the attorneys to the BOP’s National Locator Service, which, as we discussed previously, contained no information about September 11 detainees due to their WITSEC classification.
By the end of the first week in October 2001 (after the communications blackout was lifted), the MDC instituted the following new screening procedures to determine whether attorneys could meet with September 11 detainees:
• MDC staff referred an attorney seeking to visit a September 11 detainee to the Associate Warden for Programs;
• The Associate Warden called an Assistant United States Attorney to verify the credentials of the lawyer requesting to visit a detainee in the ADMAX SHU;
• The Associate Warden contacted the attorney to verify that the attorney represented a specific detainee or wanted to meet with a certain detainee to discuss representation; and
• If the attorney met the above criteria, the Associate Warden prepared a memorandum approving the attorney’s visit, which she sent to staff stationed at the MDC’s front desk. This approval for visitations by the Associate Warden also was effective for future visits by the attorney to the same detainee.
When an attorney seeking to visit a September 11 detainee arrived at the MDC and provided the name of his or her client, the desk officer checked two lists which were updated daily: a general, sanitized roster of all MDC inmates that did not include WITSEC/Group 155 inmates, and a list of “separatees” – inmates who had been separated from the general population for a variety of reasons. However, the Associate Warden for Programs, the MDC Captain, and MDC reception area staff told the OIG that the September 11 detainees were not on either list. Instead, their names were kept on a third list maintained elsewhere in the MDC in order to control access to the information. This list was not kept at the MDC reception area. Therefore, if an attorney asked about a detainee whose name was not on either of the two daily lists available to the officer at the front desk, and the attorney had not obtained prior approval for visits from the Associate Warden, the desk officer told the attorney that the detainee was not present at the facility (when, in fact, the detainee may have been incarcerated in the ADMAX SHU).
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Five New York-area attorneys told us that they were unable to meet with their September 11 detainee clients for many weeks because MDC staff told them that their clients were not housed at the MDC. Four of the attorneys each represented one detainee and one attorney represented several MDC detainees. According to the attorneys, they were not permitted to visit their clients during the second week of November 2001, and the first weeks of December 2001, February 2002, and March 2002. The attorneys said they were turned away either over the telephone or when they showed up at the MDC. According to the attorneys, no MDC officials mentioned any clearance procedure they needed to follow in order to visit their clients.
Eventually, these attorneys did gain access to their clients, and by the time of our May 2002 site visit to the MDC, all of the attorneys we interviewed said they were not having problems obtaining access to their clients at the MDC.
C. Pro Bono Attorney List
As noted above, most of the September 11 detainees had not hired attorneys before entering the MDC and, consequently, needed to solicit legal representation when initially incarcerated in the MDC. For example, 17 of the 19 September 11 detainees we interviewed said they did not have attorneys when they arrived at the MDC. The remaining two detainees had retained attorneys during their stays at other detention facilities before they were transferred to the MDC.
We found that the INS did not consistently provide September 11 detainees with lists of attorneys who would take immigration clients without compensation (known as “pro bono” cases). Several of the detainees we interviewed said that they did not receive the pro bono lists until days or months after their arrival at the MDC.115 We also found that the lists they eventually received contained significant inaccuracies, including wrong telephone numbers and numbers for attorneys who were unwilling or unable to take the September 11 detainees as clients because they only handled immigration asylum claims.
115 Eleven of the 19 September 11 detainees we interviewed said they received pro bono attorney lists from ADMAX SHU counselors within the first month of entering the MDC. However, four detainees stated that they did not receive the list for more than a month, and one detainee stated that he never received a pro bono attorney list. Two September 11 detainees we interviewed were unsure when they received the list, and one detainee’s attorney advised him not to respond to our question.
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As stated previously, the BOP classified the September 11 detainees as pre-trial inmates. The BOP has no policy that requires its staff to provide lists of pro bono attorneys to pre-trial inmates arrested by the INS. On the other hand, federal regulations specify that INS officers who processed the September 11 detainees after they were arrested were responsible for providing the detainees “with a list of the available free legal services . . . located in the [INS] district.”116 The Executive Office for Immigration Review (EOIR), part of the Department of Justice, maintains lists of pro bono attorneys who offer free legal services to immigration detainees in each INS District and distributes these lists to detention facilities holding immigration detainees.
In addition, Immigration Judges overseeing removal proceedings for the September 11 detainees also are required to, “[a]dvise [detainees] of the availability of free legal services . . . located in the [INS] district”.117 The INS requires that staff members at all of its detention facilities, including contract facilities, enable detainees to make calls to attorneys on the INS-provided pro bono list.
According to the MDC’s Associate Warden for Programs and the ADMAX SHU Captain, when the BOP lifted its restriction on telephone calls for September 11 detainees on October 1, 2001, MDC staff obtained a list of pro bono attorneys from the INS within a week and provided that list to detainees. However, the MDC staff we interviewed, including the Associate Warden, stated that the list contained inaccurate telephone numbers.
As described above, some detainees told us that their calls to attorneys on the pro bono list that resulted in no answer, were clearly an inaccurate number, or resulted in a refusal to provide legal services counted as the detainees’ legal calls for that week. Consequently, the inaccurate pro bono attorney list affected detainees’ ability to contact counsel in a timely manner. The Associate Warden and the ADMAX SHU Captain told the OIG that they obtained more accurate pro bono lists from EOIR and the INS between mid-October and early November 2001.
D. Social Visits
We found that BOP’s classification of September 11 detainees as WITSEC/Group 155 inmates, and the resulting confusion this designation caused MDC staff, prevented or delayed many of the detainees’ visits from family members.
116 8 C.F.R. § 287.3(c).
117 8 C.F.R. § 240.10(a)(2).
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In order to schedule a social (as opposed to an attorney) visit, September 11 detainees had to provide a list to MDC staff of which family members they wanted to be able to visit them. The same problems that attorneys encountered in attempting to visit their clients at the MDC hindered the detainees’ family visits as well. Three detainees we interviewed said family members on their lists were told by MDC staff that the detainees were not housed at the MDC when, in fact, the detainees were in the facility.
As discussed previously, the BOP made changes in the detainees’ classification status at the end of October 2001 after realizing that its original WITSEC/Group 155 designations were causing problems for MDC staff in handling requests for visits from detainees’ attorneys and family members. The BOP also added notations in its SENTRY inmate tracking system whenever a September 11 detainee’s name was queried before staff authorized a visit. The messages were designed to alert MDC staff about information that could and could not be released about these detainees (e.g., “Special SIS case – do not disclose location – notify SIS of inquiry”). We found, however, that the detainees’ redesignation in the BOP system did not mean that MDC staff provided better assistance to detainees’ visitors. The MDC’s Associate Warden for Programs told the OIG that MDC management sought to address the social visitation problem by training reception area staff on proper procedures for granting visitation to detainee family members. However, problems persisted, as illustrated by the following case study.
Case Study 3:
One September 11 detainee was held at the MDC from October 16, 2001, until June 14, 2002. His wife said she experienced repeated problems while attempting to visit her husband. The woman, who took unpaid leave from work to travel from her home in New Jersey to the MDC, said that between October and December 2001 she was told by staff at the MDC visitors’ desk that her husband was not incarcerated at the facility when, in fact, he was. When she eventually learned her husband was at the MDC, she visited him for the first time on December 19, 2001, after being granted a “special visit” by the unit manager at a date and time outside the normal visiting schedule. From January 31 to March 31, 2002, the woman said she was not permitted to visit her husband because he was being disciplined for failing to stand up for a 4:00 p.m. daily count.
The woman subsequently was permitted to visit her husband during the week of April 2, 2002. However, she was not permitted to visit her husband the week of May 1, 2002, because she arrived at the MDC on a day and at a time that MDC reception area staff told her was not the appropriate time to visit detainees held in the ADMAX SHU. The woman told the OIG that she
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assumed this was an appropriate time because it was the same day of the week and hour of her previous “special visit.” When she contacted the ADMAX SHU unit manager about this particular visitation problem, he arranged for another “special visit” which took place on May 4, 2002. On May 9, 2002, the detainee’s wife arrived at the MDC to visit her husband but MDC staff told her that all the visitation rooms were full. She was asked to wait until after the 4:00 p.m. inmate count for a possible visit at 4:30 p.m. At 4:30 p.m., the reception staff told her to go home and call the following day. On May 10, 2002, the detainee’s wife said she was unsuccessful in contacting anyone at the MDC to arrange a visit with her husband.
As of May 10, 2002, the woman had succeeded in visiting her husband three times during his more than five months of confinement in the ADMAX SHU.
E. Contact with Foreign Consulates
Similar to the problems experienced by attorneys seeking access to their September 11 detainee clients, the BOP’s categorization of these detainees as WITSEC inmates inhibited the ability of consular officials to determine whether individuals from their countries were held at the MDC. Beyond that issue, however, we found that MDC staff did attempt to facilitate visits by foreign consulates that requested meetings with detainees from their countries.
The federal government’s policy regarding consular access to incarcerated foreign nationals applies whether the detainees are in the custody of the BOP or the INS. Federal regulations state:
Every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States. Existing treaties with the following countries . . . require immediate communication with appropriate consular or diplomatic officers whenever nationals . . . are detained in removal proceedings, whether or not requested by the alien and even if the alien requests that no communication be undertaken in his or her behalf.118
According to Michael Rozos, Chief of the INS’s Long Term Review Branch, INS agents who arrested September 11 detainees on immigration violations were required to inform the aliens that they had a right to contact consular or diplomatic officers from their country of nationality in the United States. Rozos acknowledged that if aliens express an interest in making such contacts, the INS is required to facilitate that request, usually by providing the detainee access to a telephone along with the number for the appropriate consulate.
118 8 C.F.R. § 236.1(e).
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INS regulations specifically provide that an alien detained by the INS “shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States.” Therefore, the INS was responsible for informing the September 11 detainees of their rights to contact their consular representatives, even for those detainees who were first held at BOP facilities like the MDC. The INS uses a form to document that it asked detained aliens if they wanted to contact their consulate.119 Of the 44 A-Files we were able to review for the September 11 detainees in our MDC sample, only 10 detainees had copies of this form in their files.
BOP policy requires that “whenever it is determined that an inmate is a citizen of a foreign country, the Warden shall permit the consular representative of the country to visit on matters of legitimate business. A Warden may not deny this privilege even if the inmate is in disciplinary status.”120 MDC Warden Zenk said that the MDC’s role was limited to providing detainees with consular telephone calls upon their request and to facilitate detainees’ meetings with consular officials after MDC staff conducted appropriate screenings of the consular officials. He said that the MDC did not have responsibility for notifying detainees’ consulates about their incarcerations.
Zenk told the OIG that the MDC was not contacted by any foreign consulates about September 11 detainees in the two weeks immediately following the September 11 attacks. Zenk and the Associate Warden for Programs said that beginning in October 2001, all inquiries from consulates to the MDC were directed to the Warden’s Executive Assistant, who served as the point of contact for consular representatives seeking to visit September 11 detainees at the MDC. According to Zenk, the MDC carefully screened consular personnel before permitting them to visit with September 11 detainees. He said consulates were required to submit a written request stating the name of the detainee to be visited and the names of the visiting consular officials. When the visitors were approved, the Executive Assistant or the Associate Warden for Programs forwarded a memorandum officially approving the visits to the MDC’s front desk to inform MDC staff of the impending consular visit.
However, similar to the difficulty experienced by detainees’ attorneys and family members seeking to meet with them, the MDC detainees’ designation as
119 INS Form I-213, “Notice to Arrested or Detained Foreign Nationals Consular Notification and Access.”
120 BOP Program Statement 5267.06, Visiting Regulations.
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WITSEC inmates made it difficult for consulates to contact detainees who were citizens of their countries. For example, on October 9, 2001, a consular official met with five September 11 detainees at the MDC. Later that same day, the consular official tried to call the MDC Warden to discuss the detainees’ cases, but was informed by an MDC employee that none of the five detainees was held at the MDC. Instead, the MDC employee gave the consular official the telephone number for BOP’s National Inmate Locator, which, as discussed previously, did not contain information about the September 11 detainees.
Our review of files maintained by the Warden’s Executive Assistant shows that between October 1, 2001, and May 7, 2002, the MDC received 22 requests for visits from 9 consulates regarding 24 different detainees. In addition, the Pakistani consulate made two requests to meet all Pakistani detainees housed at the MDC. Most of the correspondence in the file is annotated to indicate that a consular visit was approved or actually occurred. The exceptions were an October 24, 2001, request to visit five detainees, and a December 6, 2001, letter requesting visits with two detainees. We were unable to determine whether these consular visits took place because the letters are not annotated and the MDC did not maintain a separate list that reflected consular visits with September 11 detainees.
The MDC was not required to affirmatively notify foreign consulates that it was detaining citizens from their countries who had been arrested in connection with the September 11 terrorism investigation. BOP policy mandated only that MDC officials “permit” visits by consular officials. The overwhelming majority of September 11 detainees were nationals of Pakistan, India, Egypt, and Saudi Arabia. The international treaties that the United States has with these countries do not require mandatory notification of the consulate when a foreign national of those countries is held in U.S. detention.
Our review of the 22 visitation requests from consulates received by the MDC from October 2001 to early May 2002 showed that only 2 of the requests were from a country (United Kingdom) that, by treaty, requires affirmative notification. While we did not determine if the INS affirmatively notified United Kingdom consular officials of these two detentions, we found that these two detainees were visited by consular officials from the United Kingdom and the MDC complied with BOP policies in facilitating consular visits for these two detainees.
VI. ALLEGATIONS OF PHYSICAL AND VERBAL ABUSE
Based on our interviews of 19 September 11 detainees and our investigation of allegations of abuse raised by several detainees, we believe the evidence indicates a pattern of physical and verbal abuse against some September 11 detainees held at the MDC by some correctional officers, particularly during the first months after the terrorist attacks. Although the
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allegations have been declined for criminal prosecution, the OIG is continuing to investigate these matters administratively.121
In this section of the report, we describe our interviews of 19 September 11 detainees during our inspection visit in May 2002, the investigation conducted by the OIG’s Investigations Division regarding specific complaints of abuse, and other allegations of abuse that were referred to the FBI or BOP for investigation.
A. OIG Site Visit
In connection with this review of the treatment of September 11 detainees, our inspection team interviewed 19 detainees who were being held at the MDC when we visited the facility in May 2002. All 19 detainees complained of some form of abuse. Twelve complained about physical abuse and 10 complained about verbal abuse. The complaints of physical abuse ranged from painfully tight handcuffs to allegations they were slammed against the wall by MDC staff. The detainees told us that the physical abuse usually occurred upon their arrival at the MDC, while being moved to and from their cells, or when the hand-held surveillance camera was turned off.
Ten of the 19 detainees we interviewed during our inspection visit alleged they had been subjected to verbal abuse by MDC staff, consisting of slurs and threats. According to detainees, the verbal abuse included taunts such as “Bin Laden Junior” or threats such as “you’re going to die here,” “you’re never going to get out of here,” and “you will be here for 20-25 years like the Cuban people.” They said most of the verbal abuse occurred during intake and during movement to and from the detainees’ cells.
Our inspection team interviewed 12 correctional officers about the detainees’ allegations of physical abuse. All 12 officers denied witnessing or committing any acts of abuse. Further, they denied knowledge of any rumors about allegations of abuse. The correctional officers we interviewed also denied they verbally abused the detainees and denied making these specific comments to the detainees.
121 The OIG can pursue a complaint either criminally or administratively. Many OIG investigations begin with allegations of criminal activity but, for a variety of reasons, may not result in prosecution. When this occurs, the OIG can continue the investigation and treat the matter as a case for potential administrative action. The standard of proof to prove allegations in an administrative case is less than the “beyond a reasonable doubt” standard in a criminal case.
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B. OIG Investigation of Abuse
On October 30, 2001, the OIG reviewed a newspaper article in which a September 11 detainee alleged he was physically abused when he arrived at the MDC on October 4, 2001. Based on the allegations in the article, the OIG’s Investigations Division initiated an investigation into the matter. When we interviewed the detainee, he complained that MDC officers repeatedly slammed him against walls while twisting his arm behind his back. He also alleged officers dragged him by his handcuffed arms and frequently stepped on the chain between his ankle cuffs. The detainee stated his ankles and wrists were injured as a result of the officers’ abuse. He also identified three other September 11 detainees who allegedly had been abused by MDC staff members.
We interviewed these three other September 11 detainees. They stated that when they arrived at the MDC, they were forcefully pulled out of the vehicle and slammed against walls. One detainee further alleged that his handcuffs were painfully tight around his wrists and that MDC officers repeatedly stepped on the chain between his ankle cuffs. Another detainee alleged officers dragged him by his handcuffs and twisted his wrist every time they moved him. All three detainees alleged that officers verbally abused them with racial slurs and threats like “you will feel pain” and “someone thinks you have something to do with the World Trade Center so don’t expect to be treated well.”
During our investigation of these complaints, we received similar allegations from other September 11 detainees. On February 11, 2002, four September 11 detainees held at the MDC (including one of the detainees we interviewed previously) told MDC officers that certain MDC officers were physically and verbally abusing them. Those complaints were provided to us. In interviews with our investigators, these detainees alleged that when they arrived at the MDC in September and October 2001, MDC officers forcefully pulled them from the car, slammed them into walls, dragged them by their arms, stepped on the chain between their ankle cuffs, verbally abused them, and twisted their arms, hands, wrists, and fingers. One of the detainees alleged that when he was being taken to the MDC’s medical department following a 4-day hunger strike, an officer bent his finger back until it touched his wrist. Another detainee alleged that when he arrived at the MDC, officers repeatedly twisted his arm, which was in a cast, and finger, which was healing from a recent operation. He also alleged that when he was transferred to another cell in December 2001, officers slammed him into a wall and twisted
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his wrist.122 One detainee claimed his chin was cut open and he had to receive stitches because officers slammed him against a wall.
During our investigation, the OIG asked the detainees individually to identify the officers who had committed the abuse through photographic lineups. The detainees identified many of the same officers as the perpetrators, and the OIG focused its investigation on eight officers. The OIG interviewed seven of these officers. Six of them denied physically or verbally abusing any of the detainees or witnessing any other officer abuse the detainees. Five remembered at least one of the detainees and some of them remembered a few of the detainees. Two officers described two detainees as disruptive and uncooperative. One of the officers explained that the high-security procedures in place during the weeks following the September 11 attacks required four officers to physically control inmates during all escorts; face them toward the wall while waiting for doors, elevators, or the application and removal of leg restraints; and place them against the wall if they became aggressive during these escorts.
The seventh officer interviewed by the OIG told us that he witnessed officers “slam” inmates against walls and stated this was a common practice before the MDC began videotaping the detainees. He said he did not believe these actions were warranted. He said he told MDC officers to “ease up” and not to be so aggressive when escorting detainees. He also said he witnessed a supervising officer slam detainees against walls, but when he spoke with the officer about this practice the officer told him it was all part of being in jail and not to worry about it. The seventh officer signed a sworn affidavit to this effect. In a subsequent interview with the OIG, this officer recharacterized the action as “placing” the detainees against the wall, and said he did not want to use the word “slam.” He denied that the officers acted in an abusive or inappropriate manner.
122 This detainee alleged that while being transferred to another cell in the MDC in December 2001, two officers threw him against his cell wall, twisted his wrist, and placed him in the cell naked and without a blanket. The detainee claimed the officers physically abused him because he refused to clean his cell prior to the transfer. He claimed the officers’ abuse left a scar on his wrist. The case was referred to the BOP, which interviewed the detainee, reviewed his medical records, and had the detainee’s wrist examined. The MDC medical department did not find a scar on the detainee’s wrist. The BOP also interviewed two officers alleged to have committed the abuse and a supervising officer who witnessed the detainee’s transfer. All three stated that during a routine cell rotation the detainee began cursing and threatening the officers. One officer filed an incident report describing what he characterized as the detainee’s insolent and threatening behavior. The three officers also stated that they did not throw the detainee against the wall, twist his wrist, or place him in a cell naked and without a blanket.
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The OIG reviewed the detainees’ medical records. The medical records do not indicate that most of the detainees received medical treatment for the injuries they asserted they received from officers. Two of the detainees’ medical records indicate they were treated for injuries that they later claimed were caused by officers, but the medical records did not indicate that they alleged their injuries were caused by officers at the time they were treated. One detainee’s records do not mention the cause of the injury and the other detainee’s records state the detainee said he was injured when he fell. In his interview with the OIG, the detainee alleged his chin was badly cut when detention officers slammed him against the wall. He said that nobody ever asked him how his injury occurred. The other five detainees did not seek treatment for their alleged injuries.
Based on the scarcity of medical records documenting injuries and the lack of evidence of serious injuries to most of the detainees, the U.S. Attorney’s Office for the Eastern District of New York and the Civil Rights Division declined criminal prosecution in this case. All of the detainees, with the exception of one, now have been removed from the United States. Nevertheless, the OIG is continuing its investigation of these allegations as an administrative matter. Because this case is ongoing, we are not describing in detail all the evidence in the case about the detainees’ allegations. However, we believe there is evidence supporting the detainees’ claims of abuse, including the fact that similar – although not identical – allegations of abuse have been raised by other detainees, which we describe in the next section.
C. FBI and BOP Investigations of Abuse
Four cases alleging physical abuse of September 11 detainees at the MDC were referred to the FBI for investigation. Another two complaints of abuse were referred to the BOP’s internal affairs office for review. As we summarize below, the FBI closed three of these cases and one FBI case remains open. The BOP closed one case due to the resignation of an employee and closed the other as unsubstantiated after conducting an investigation.
In each of the four cases assigned to the FBI, the detainee alleged that he was “slammed” against a wall or door by MDC correctional officers and was injured as a result. Two of the detainees also alleged that they were threatened by MDC correctional officers and incurred additional physical abuse, such as being kicked by officers or having the chain on their leg restraints stepped on by officers. The detainees’ complaints were forwarded initially to the Department’s Civil Rights Division, which after a delay in two of the cases assigned them to the FBI to investigate. In two of the cases sent to the FBI, the detainees already had been removed by the time the FBI received the complaints and were not interviewed. In another case, the detainee was removed six months after the FBI received the case, but was not interviewed. The FBI did not attempt to locate these removed detainees or to interview the
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correctional officers. The Civil Rights Division declined prosecution of the three cases, and the FBI subsequently closed its investigations.
In the one case that the FBI has not yet closed, the detainee complained in May 2002 that he was slammed into a wall, unnecessarily strip searched, and physically abused by MDC officers. The FBI received the case in July 2002, and opened an investigation in September 2002. As of March 19, 2003, however, the FBI had not interviewed the detainee or any officers.
In one of the cases referred to the BOP, the correctional officer who allegedly physically and verbally abused the detainee resigned during the investigation, and as a result the BOP closed the matter without further investigation. In the other case, the BOP interviewed the detainee, reviewed his medical records, and had his alleged injuries medically examined. The medical department did not find any injuries and the detainee’s medical records do not indicate any injuries around the time of the alleged abuse. The BOP also interviewed two subjects and a supervising officer who witnessed the detainee’s transfer. All three officers denied abusing the detainee and stated that during a routine cell rotation, the detainee began cursing and threatening the subjects. The BOP closed its investigation as unsubstantiated.
Based on the similarity of the allegations in these FBI and BOP cases to the ongoing OIG investigation, the OIG has decided to complete the investigations of the FBI and BOP cases and incorporate the relevant allegations from these cases into our ongoing investigation.
D. Allegations of Harassment
All 19 detainees we interviewed also complained of other types of harassing behavior by MDC staff while they were housed in the ADMAX SHU, such as staff banging on their cell doors or telling detainees to “shut up” while they were praying. All 19 detainees told the OIG that MDC officers banged on their cell doors for the midnight inmate count. When we questioned MDC staff about these allegations, they told us that they were responsible for ensuring that the detainees were alive during the nightly count and that banging on the cell doors was their method of waking the detainees. We confirmed that, according to BOP Program Statement 5511.06, Inmate Accountability, “Staff conducting counts shall ensure the observance of a real person and not a ‘dummy.’ When conducting a count, the staff member must personally observe a living breathing human body for each inmate counted.” MDC staff told us they banged on the cell door to satisfy the BOP’s national policy requirement to ensure that a living human body was in each ADMAX SHU cell.123
123 BOP national policy requires inmate stand-up counts at least five times per day but specifies times for only two of the counts – 4:00 p.m. daily and 10 a.m. on weekends and (cont’d)
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September 11 detainees also told the OIG that their afternoon prayers often were interrupted by MDC officers who conducted a “stand-up count” at 4:00 p.m. daily in the ADMAX SHU. MDC officials said the detainees were informed about these daily counts, including the midnight count, in a 2-page document containing ADMAX SHU policies that each detainee was supposed to receive when he first entered the MDC. However, several detainees told the OIG that they did not sufficiently understand English or they did not realize they were supposed to stop praying for the count. Two September 11 detainees said they were disciplined for not standing up during the count by being deprived of social visits. According to MDC records, one detainee had his social visitation privileges suspended for 60 days, while another detainee had his privileges suspended for 90 days.
When we questioned MDC staff on this subject, one Lieutenant said he delayed the afternoon count until the detainees had completed their prayers. All the other Lieutenants and correctional officers we interviewed said they followed standard BOP regulations and did not delay the afternoon count to avoid interfering with detainees’ prayers.
E. Reporting Allegations of Abuse
Even though the MDC has a formal process for inmates to file complaints of abuse, we found that MDC staff failed to inform the September 11 detainees about these procedures in a timely manner. As discussed previously, the Administrative Remedy Program (ARP) is the BOP’s formal procedure for filing allegations of physical or verbal abuse against facility staff. While the ARP is discussed in the MDC’s facility handbook, only 1 of the 19 detainees we interviewed said he received this handbook when he arrived at the MDC in October 2001. The other 18 detainees we interviewed told us that they did not learn about this complaint resolution process until they received their facility handbooks several months after their arrival at the MDC.124
Of the 19 detainees we interviewed, 5 who said they never received facility handbooks told the OIG that they only learned about the ARP from
holidays. The BOP’s practice is to conduct at least one of the other counts sometime during the hours of darkness.
124 During intake screening at BOP facilities, a facility handbook normally is provided to the inmate and prison staff annotates the inmate’s intake form to reflect that the inmate has received the handbook. When we examined the intake forms for the 19 September 11 detainees we interviewed, all forms were annotated to reflect that each detainee had received a handbook, which suggested that the handbook was given to the inmate but was quickly confiscated because it was on the list of forbidden items.
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other detainees in the ADMAX SHU. Ten detainees said they received a handbook four to six months after arriving at the MDC, while three other detainees said they received a handbook within a month of arriving at the MDC.125 One detainee did not respond to the question about when he received a facility handbook.
All 19 detainees told the OIG that they either were informed verbally about ADMAX SHU policies or they received a 2-page explanation of the policies instead of the complete MDC facility handbook. We found, however, that this 2-page summary of MDC policies did not include a description of the ARP process.
The Associate Warden for Programs told the OIG that all September 11 detainees were provided with a handbook when they were processed into the MDC. She suggested that it was possible that correctional officers confiscated the handbook from the detainees as an unacceptable item in their ADMAX SHU cell. The two-page document, “Special Housing Unit Rules and Regulations,” included a list of items that the detainees could retain in their ADMAX SHU cells. These items included certain clothing items, facility-provided linen, specified personal items, and select hygiene items. The list of permitted items did not include a facility handbook. Therefore, according to the Associate Warden for Programs, because the facility handbook was not on the list, correctional officers may have confiscated the handbook. On October 17, 2001, the MDC changed its policy to permit detainees to retain the facility handbook in their cells. MDC officials could not explain why the detainees said that they did not receive the facility handbooks until months later. The Associate Warden also stated that some detainees might not have become familiar with the ARP process until several months after they arrived at the MDC because they did not understand English or had not read the handbook.
F. MDC Videotapes
MDC management took some affirmative steps to prevent potential staff abuse by installing security cameras in each September 11 detainee’s cell in the ADMAX SHU and by requiring MDC staff to videotape all movements of detainees to and from their cells. However, the MDC’s policy that permitted staff to destroy or reuse these videotapes after 30 days hindered these efforts. As a result, the OIG, MDC management, and others were unable to use the videotapes to prove or disprove allegations of abuse raised by individual detainees.
125 One of these three detainees said he did not receive a handbook until he was released into the MDC’s general population in May 2002.
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According to interviews with BOP staff, the MDC installed cameras in its ADMAX SHU cells by mid-October 2001 pursuant to a national directive issued shortly after the September 11 attacks.126 The directive required that cameras be installed in each cell housing a September 11 detainee. According to BOP and MDC officials, the security cameras were installed because the video record could help protect BOP staff from unfounded allegations of abuse. According to an “al Qaeda Training Manual” found by police in Manchester, England, during a search of an al Qaeda member’s home, terrorists incarcerated in the United States were urged to distract Government officials by claiming mistreatment. Consequently, the BOP was concerned that specious allegations of abuse would consume valuable administrative and legal resources.
David Rardin, the former BOP Northeast Region Director, directed in an October 9, 2001, memorandum to Northeast Region Wardens (including the MDC) that any movement of a September 11 detainee outside of his cell must be videotaped. According to Rardin’s memorandum, the videotape policy was intended to deter unfounded allegations of abuse made by September 11 detainees and to substantiate abuse if it occurred.
Rardin also directed that these videotapes of detainee movements and tapes of detainees in their cells were to be preserved “indefinitely.” However, by December 18, 2001, after the MDC had accumulated hundreds of videotapes, Mickey Ray, Rardin’s successor as the BOP’s Northeast Region Director, revised the policy for retaining surveillance videotapes from “indefinitely” to 30 days, except for incidents involving use of force by BOP staff. According to instructions from Ray, tapes that showed use of force by MDC staff against detainees were to be preserved for “evidentiary use.” Tapes that did not show use of force against detainees could be reused on the 31st day. Acting on Ray’s new policy, MDC Warden Zenk and the MDC Captain told the OIG that correctional staff destroyed hundreds of tapes to free up storage space at the MDC.
Consequently, videotapes that could have helped prove or disprove allegations of abuse raised by detainees were not available. The lack of videotape evidence hampered the OIG’s investigation of detainee abuse complaints.
126 This policy was communicated by BOP Assistant Director Michael Cooksey to all BOP Regional Directors in a series of video conference calls that occurred between September 13 and September 20, 2001.
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VII. OTHER ISSUES
A. Medical Care
We were unable to assess fully the level or quality of medical care provided to the September 11 detainees based on the limited documentation in the detainees’ medical files.127 Four September 11 detainees we interviewed complained that MDC medical staff provided them with over-the-counter pain relievers for every medical problem they raised, including toothaches and pain from kidney stones. The detainees alleged that they were not offered more effective treatments for their medical conditions.
One detainee told the OIG that he was given Tylenol for a sore throat but was given nothing for an elevated temperature associated with the flu. Another detainee, who fractured his hand prior to arriving at the MDC and had his cast removed the day before he arrived, claimed he received no treatment after informing MDC medical staff that he was in pain. When the detainee’s hand was x-rayed in January 2002, the MDC physician’s assistant allegedly told him that while the x-ray showed cracks in his hand, “we are not going to do anything about it.” His MDC medical record showed that an x-ray was taken but the accompanying notes in the file were illegible. When questioned by the OIG, the physician’s assistant said she did not recall making that statement to the detainee.
When we asked the same physician’s assistant whether Tylenol was the only pain relief medication offered to the detainees, she responded that the MDC’s normal practice was to provide medications that are sufficient to relieve pain and discomfort. We interpreted this statement to mean that from the physician assistant’s perspective, Tylenol was sufficient to treat most discomfort. The physician’s assistant said she dispensed Tylenol to the detainee who claimed he was not treated for his hand discomfort.
In keeping with the high-security procedures implemented by the MDC for moving September 11 detainees housed in the ADMAX SHU, a detainee’s visit to the MDC medical or dental offices required removal of all other non-ADMAX SHU inmates from the offices before medical or dental staff could
127 An MDC physician’s assistant interviewed by the OIG in May 2002 initially said that September 11 detainees were not entitled to the same medical or dental care as convicted federal inmates. However, in a January 2003 follow-up interview, the physician’s assistant denied making those statements to the OIG, and instead asserted that pretrial inmates are entitled to the same health care as any other inmates in BOP custody. According to BOP Program Statement 7331.03 on Pretrial Inmates, “staff shall provide the pretrial inmate with the same level of basic medical (including dental), psychiatric, and psychological care provided to convicted inmates.”
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conduct diagnostic procedures such as x-rays. The MDC’s escort requirement for September 11 detainees was unique among MDC inmates and, according to the physician’s assistant, resulted in delayed medical or dental care for the detainees. For example, the physician’s assistant told the OIG about a 4-week delay in x-raying a detainee because of the manpower-intensive escort requirement. However, she speculated that other reasons also might have delayed a detainee’s diagnostic procedure, including an unexpected attorney visit. The physician’s assistant could not recall how many detainees were affected by such delays for diagnostic services, except that the number was small.
Interviews with September 11 detainees and MDC records confirmed that medical staff made daily rounds in the ADMAX SHU. Beyond that, however, incomplete documentation in the facility’s medical files made it impossible for us to draw conclusions about the quality of medical and dental care provided by MDC staff to September 11 detainees.
B. Recreation
MDC staff provided the limited amount of recreation for September 11 detainees required by BOP policy for high-security inmates. However, the large number of detainees housed in the ADMAX SHU, the lack of warm clothing, and scheduling conflicts restricted the detainees’ willingness or ability to participate in exercise.
According to BOP policy, ADMAX SHU detainees are entitled to one hour of recreation a day, five days a week. MDC staff documented the ADMAX SHU record each time they offered recreation to September 11 detainees and also noted any refusals by a detainee to participate in recreation.
September 11 detainees told the OIG that lack of proper clothing was a major reason why they often refused recreation. According to all 19 detainees we interviewed, during November and December 2001 the short-sleeved shirts they were provided offered insufficient protection from the cold in the recreation areas in the ADMAX SHU, which were located on the top floor of the MDC and were open-air.
Three detainees told the OIG that in January 2002, MDC staff began offering jackets to detainees who wanted to exercise. According to 18 ADMAX SHU reports we reviewed covering a period from November 9, 2001, to January 8, 2002, almost 75 percent of the detainees held at any one time in the ADMAX SHU declined recreation because it was regularly offered in the early morning when conditions were too cold.
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C. Lighting in the ADMAX SHU
Eighteen of the 19 detainees we interviewed told the OIG that lights in their cells were illuminated at all times, even at night. MDC management told the OIG that these lights were necessary to properly operate the security cameras installed in each of the detainees’ cells. In addition, MDC management claimed that it did not have the ability to reduce the amount of light in the detainees’ cells due to the manner in which the cellblock’s wiring was configured. However, we found that MDC staff was able to reduce the amount of light in individual detainee cells as early as November 2001, but chose to keep the cell lights on 24 hours a day until at least late February 2002.
In mid-October 2001, the MDC installed security cameras in each ADMAX SHU cell. According to Warden Zenk, each cell had to be illuminated sufficiently to provide for effective operation of the cameras. Each ADMAX SHU cell at the MDC has two lights: a small, square “nightlight” immediately inside the cell entrance, and a larger, rectangular “main light” in an upper corner of the cell. The nightlight, which is flush with the cell wall, is significantly dimmer than the cell’s larger main light. A single switch located in a secure area at the end of the range controlled the two lights in all ADMAX SHU cells. While BOP policy provides that ADMAX SHU cells should be “adequately lighted,” it does not specify the magnitude of lighting or hours of the day when lights should be turned on or off.
Eleven of the 19 detainees we interviewed said both lights in their ADMAX SHU cells were illuminated 24 hours a day until late March or early April 2002. Two detainees told the OIG that the main light in their cells was turned off in the evenings beginning in late February 2002. The other six detainees we spoke with could not specify the date the main cell lights were first turned off at night. A Lieutenant assigned to the ADMAX SHU during this period told the OIG that while he was unsure of the date, he remembered that detainees in the ADMAX SHU cells cheered when the main lights were first turned off in the evening.
All 19 detainees we interviewed complained about the difficulty of sleeping with both lights illuminated at all times in their ADMAX SHU cells. Detainees who were transferred to MDC’s general population – which did not follow the same cell lighting protocols as the ADMAX SHU – told the OIG they were relieved to have the cell lights turned off during the evenings. The detainees told the OIG that the constant lighting in their ADMAX SHU cells affected them in the following ways: lack of sleep, exhaustion, depression, stress, acute weight loss, fevers, panic attacks, rapid heart beat, and reduced eyesight. In addition, according to a November 27, 2001, ADMAX SHU report,
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a September 11 detainee at the MDC whom we did not interview requested to see the MDC psychologist because he claimed he was suffering from sleep deprivation “after several months with the cell lights continuously illuminated.”
When questioned about the issue, Warden Zenk and other MDC managers told the OIG that both lights in each detainee’s ADMAX SHU cell were illuminated 24 hours a day until mid-March 2002. They said that at that time, installation of a new electrical circuit permitted staff to independently operate the two lights in the cells housing September 11 detainees. MDC staff said that after mid-March 2002 the main lights in detainees’ cells were turned off from 11:00 p.m. until 6:00 a.m. on weekdays, and from 11:00 p.m. until 10:00 a.m. on weekends. They said that after mid-March 2002, only the smaller nightlight in each detainee’s cell was illuminated 24 hours a day, and this was done to facilitate operation of the security cameras.
However, we found a wide discrepancy among MDC staff and other BOP officials as to the date the ADMAX SHU cells were rewired to permit independent operation of the nightlight and the main light. Our interviews with MDC and BOP staff found:
• The MDC facilities manager stated that the two sets of cell lights were rewired in late September or early October 2001, which allowed the main lights in the ADMAX SHU cells to be turned off independently from the nightlights;
• The MDC Associate Warden for Operations estimated that the lights were rewired between January and February 2002;128
• The MDC electrician who performed the work said he rewired the circuits for the lights sometime in October or November 2001. While uncertain of the exact date, he told the OIG that he was positive the date was in this 2-month range; and
• The BOP’s Northeast Region detailed an employee to the MDC to assist with rewiring the lights in the ADMAX SHU cells and installing the security cameras. A Facilities Management Specialist from the Northeast Region Office told the OIG that he was detailed to the MDC from November 5-9, 2001, and assisted the MDC electrician in re-routing the lighting circuits in the ADMAX SHU cells so the two cell lights could be operated independently.
128 A written work order was not used to authorize rewiring the switch that controls the lights in the ADMAX SHU cells. According to MDC management, the work order was conveyed verbally by the Associate Warden of Operations.
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The MDC electrician stated that after detainees complained about both lights still being illuminated 24 hours a day, he checked the lights in January or February 2002 and found the rewiring he had performed in October or November 2001 was operating so that the larger main light in the cells could have been turned off separately from the smaller nightlight.
Warden Zenk responded to the OIG’s findings that the main lights could have been turned off by the fall of 2001 by stating that MDC staff completed rewiring lights in the ADMAX SHU cells “by December 1, 2001.” He said that at that point, the circuits for the lights were reconfigured for only two selections: either the nightlight could be turned on or the main light could be turned on, but not both lights simultaneously.
Warden Zenk further explained that while MDC management had originally told us that the two lights in the ADMAX SHU cells were illuminated 24 hours per day until “mid-March 2002,” this date represented the time by which all SHU cells, including the second non-ADMAX SHU range that did not house September 11 detainees, were rewired to permit independent operation of the two lights. However, his response does not explain why 13 of the 19 September 11 detainees we interviewed stated that both lights in their cells were illuminated 24 hours a day until at least late February 2002.
We concluded that MDC staff had the capability to independently operate the lights in the detainees’ ADMAX SHU cells by November 2001. We based our conclusion on interviews with September 11 detainees housed in the ADMAX SHU, BOP personnel from the Northeast Region Office, and staff at the MDC who either performed the rewiring or exercised direct oversight over the electrical work. While MDC management claimed that the facility did not have the ability to separately operate lights in detainees’ ADMAX SHU cells until December 2001, the earliest date in which detainees said the main lights were turned off at night was late February 2002. Consequently, we concluded MDC staff subjected September 11 detainees to having both cell lights illuminated 24 hours a day for several months after they had the ability to independently control the lights.
D. Personal Hygiene Items
Five of the 19 September 11 detainees we interviewed stated that they were deprived of personal hygiene items. According to applicable BOP policies, the MDC should have provided each detainee with one fresh towel each week and should have allowed each detainee to have one bar of soap. Two detainees stated that they were not given towels or soap during their first month in the ADMAX SHU. One detainee complained that he was not allowed to keep a toothbrush, towel, or toilet paper in his cell. Another detainee stated that he did not regularly receive soap or toilet paper. The fifth detainee stated that he
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did not have toilet paper in his cell during his first three weeks in the ADMAX SHU.
The MDC Captain in charge of the ADMAX SHU told us that the MDC policy for issuing hygiene supplies to September 11 detainees initially was established on September 21, 2001. According to this policy,
The SHU Lieutenant will supervise issuance of hygiene supplies every day. The SHU Officers will ensure the inmate receives toilet paper, toothbrush, toothpaste, etc. The security toothbrush is the only authorized toothbrush for use on this unit. The hygiene supplies will be provided to the inmate and then retrieved by the officers a short time later [emphasis added].
The Captain said that correctional officers issued hygiene supplies to the detainees each day according to this policy. He confirmed that all hygiene supplies were removed after use. Further, he stated that detainees were not permitted to keep toilet paper in their cells. When asked about the detainees’ complaints, the Captain expressed disbelief that detainees failed to receive personal hygiene items. The Captain said the policy was modified on October 15, 2001, by eliminating the sentence, “The hygiene supplies will be provided to the inmate and then retrieved by the officers a short time later.”
E. Hunger Strikes
Seven of the 19 September 11 detainees we interviewed stated they participated in a hunger strike while housed in the ADMAX SHU as a protest against their incarceration and their conditions of confinement. The detainees told the OIG that they were just “immigration violators” and not drug dealers or criminals and that confinement in the ADMAX SHU was “excessive punishment.”
According to BOP policy, an inmate must refuse nine consecutive meals before it considers the inmate to be on a hunger strike.129 When a detainee or inmate refuses nine meals, facility medical staff is required to carefully monitor the individual by weighing them daily and checking blood sugar levels frequently.
The MDC provided us with 18 ADMAX SHU reports for information about September 11 detainees on hunger strikes. According to these reports, for a 3-day period beginning November 27, 2001, 20 out of 46 detainees in the ADMAX SHU declared themselves to be on a hunger strike. Among the reasons cited on the ADMAX SHU reports by the detainees for refusing meals were “left
129 BOP Program Statement 5562.04, Inmate Hunger Strikes.
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for over 60 days with no visits from INS or the FBI, uncertainty over their future, confinement in Special Housing instead of general population, and limited visits and telephone calls.” By November 29, 2001, all of the detainees had ended their hunger strikes, according to the ADMAX SHU reports, after many of the detainees received visits from their attorneys.
Case Study 4:
A September 11 detainee arrived at the MDC on February 17, 2002, and began a hunger strike in late March 2002. According to the ADMAX SHU reports, the detainee began his hunger strike to protest his confinement in the ADMAX SHU instead of the MDC’s general population and because of the MDC’s limitation on visits and telephone calls. The detainee also was upset because he was not allowed to see his wife until she proved that she was married to him.
MDC staff began checking the detainee’s blood sugar levels daily and offered him liquid nutritional supplements when he refused his ninth consecutive meal. By April 2, 2002, the detainee had missed a total of 17 consecutive meals. We could not determine how many more meals he missed because the next available ADMAX SHU report was dated April 6, 2002, and contained no mention of the continuing hunger strike. Therefore, we infer that the detainee ended his hunger strike sometime before April 6, 2002. The detainee told the OIG that he could not pinpoint the date he ended his hunger strike because he did not have access to a calendar.
VIII. OIG ANALYSIS
In the aftermath of the September 11 attacks, 184 aliens arrested on immigration charges were confined in high-security federal prisons, as opposed to less restrictive INS detention facilities. Eighty-four of these aliens were held at the MDC in Brooklyn, New York. These MDC detainees were held under “the most restrictive conditions possible,” which included “lockdown” for at least 23 hours per day, extremely limited access to telephones, and restrictive escort procedures any time the detainees were moved outside their cells. To this end, the MDC created an ADMAX SHU specifically to confine the September 11 detainees.
The BOP played no role in deciding the security risk posed by individual September 11 detainees or their potential connections to terrorism. As discussed in Chapter 4, these decisions were made by the FBI in consultation with the U.S. Attorney’s Office in the Southern District of New York and were communicated to the INS, whose agents generally arrested the aliens as part of a Joint Terrorism Task Force effort.
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However, once the FBI characterized a detainee as “high interest” and the INS transferred the detainee to BOP rather than INS custody, the BOP took responsibility for the detainee’s confinement. In the heightened state of alert after the terrorist attacks, the BOP combined a series of existing policies and procedures that applied to inmates in other contexts and applied them to the detainees they received after September 11, such as designating September 11 detainees as WITSEC inmates.
As a threshold matter, we question the criteria (or lack thereof) the FBI used to make its initial designation of the potential danger posed by September 11 detainees. The arresting FBI agent usually made this assessment without any guidance and based on the initial detainee information available at the time of arrest. In addition, there was little consistency or precision to the process that resulted in detainees being labeled “high interest,” “of interest,” or “of undetermined interest.” While many of these decisions needed to be made quickly and were based on less than complete information, we believe the FBI should have exercised more care in the classification process, given the significant ramifications on detainees’ freedom of movement and association depending on whether they were confined in a high-security facility such as the MDC or a less restrictive facility such as Passaic (discussed in Chapter 8). More important, as discussed in Chapter 4, the FBI devoted insufficient resources to investigating or clearing most of these detainees, resulting in their prolonged confinement under extremely high security conditions. Even after clearance, the BOP’s delay in notifying the MDC lengthened even further these detainees’ stay in the ADMAX SHU.
With regard to the conditions of confinement for detainees at the MDC, we appreciate that the influx of high-security detainees stretched MDC resources to their limit, with MDC staff members often working double shifts to monitor the detainees during a highly emotional period of time. We also appreciate the uncertainty surrounding these detainees and the chaotic conditions in the immediate aftermath of the September 11 attacks. However, our review raises serious questions about the treatment of the September 11 detainees housed at the MDC in several regards.
First, BOP officials imposed a “communications blackout” specifically for September 11 detainees within a week of the terrorist attacks. During this blackout period, detainees were not permitted to receive any telephone calls, visitors, or mail, or to place any telephone calls or send mail. While we were unable to determine the exact length of this communications blackout, it appears to have lasted several weeks, after which time the September 11 detainees were permitted limited attorney and social contacts. During this time, attorneys and family members were unable to receive any information about these detainees, including where they were being held. While such a policy was within the BOP’s discretion, we question the justification for a total
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communications blackout on all these individuals, particularly for the length of time that it was imposed. In addition, the telephone limitations imposed on this group of detainees – one legal telephone call per week and one social call per month – further hindered the detainees’ ability to obtain legal assistance, which posed a significant problem since the majority of the detainees entered the MDC without counsel.
Second, as noted above, the BOP initially designated all September 11 detainees as WITSEC inmates. Usually, this designation is applied to individuals who agree to cooperate with law enforcement by providing testimony against criminal suspects. Application of this WITSEC classification to the September 11 detainees, however, resulted in MDC officials continuing to withhold information about the detainees’ location, even after the communications blackout was lifted.
This classification frustrated efforts by the detainees’ attorneys, family members, and even law enforcement officers to determine where the detainees were being held. Because information on WITSEC inmates is tightly restricted, even MDC staff working at the front desk in the facility’s lobby did not have access to information about the September 11 detainees. We found that MDC staff frequently – and mistakenly – told people who inquired about a specific detainee that the detainee was not held at the facility when, in fact, the opposite was true. Instead, the staff referred the caller or visitor to the BOP’s Inmate Locator system for information about where an individual detainee was being held. But WITSEC inmates are not listed in this public system because of security reasons, and this prevented attorneys or family members from locating these September 11 detainees. We fault the MDC for not considering in a more timely manner the implications of labeling these September 11 detainees as WITSEC detainees and for not properly communicating to its employees – especially its staff who worked the facility’s front desk – about the classification issues affecting September 11 detainees and how to properly address inquiries from the public.
The BOP tried at least twice to address this situation by reclassifying the September 11 detainees, first by renaming them “Group 155” inmates. Even then we found the BOP continued to use “WITSEC” as its primary designation. On October 31, 2001, the BOP reclassified the detainees as “Special SIS Cases.” Neither reclassification alleviated the access issues confronted by detainees’ attorneys and family members. In fact, we found that as late as March 1, 2002 – more than six months after the first September 11 detainees arrived at the MDC – the BOP’s initial decision to classify the detainees as WITSEC inmates continued to cause confusion and resulted in attorneys being told incorrectly that their clients were not being held at the MDC.
We understand the MDC’s efforts to follow instructions from BOP Headquarters and confine the September 11 detainees under secure
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conditions. That said, the detainees were pretrial inmates, most of whom had not obtained legal representation by the time they were confined at the MDC. Consequently, their designation by BOP officials as WITSEC inmates hindered the detainees’ efforts to contact legal counsel and their families. We also believe the BOP should have taken timelier and more effective steps to address the situation after it realized the impact this designation was having on the September 11 detainees and the ability of their attorneys and families to locate them.
Third, with regard to the policies within the MDC for confining the September 11 detainees, MDC officials used existing BOP policies applicable to inmates in disciplinary segregation, and confined the September 11 detainees in the ADMAX SHU. The detainees were placed in restraints whenever they were outside their cells, including handcuffs, leg irons, and heavy chains. Four staff members were required to be present each time a detainee was placed into restraints and escorted from a cell. The detainees also were required to remain in restraints during their non-contact visits with their attorneys or family members.
Because of these restrictive conditions, we believe it was important for the FBI, INS, and BOP to determine, in a reasonable time frame, whether these detainees were connected to terrorism or whether they could be cleared to be moved from the ADMAX SHU to the MDC’s much less restrictive general population. Yet, detainees remained in the ADMAX SHU for a long period of time waiting for the FBI’s clearance process which, as we described in Chapter 4, was excessively slow. Even when the FBI cleared the detainees, they remained in the ADMAX SHU for days and sometimes weeks longer than necessary due to delays between the time the FBI cleared a detainee of a connection to terrorism and the time the MDC received formal notification of the clearance. In addition, we found that the MDC did not consistently follow its established procedures. Without explanation, it released at least four September 11 detainees from the ADMAX SHU prior to receiving clearance from the FBI that the detainee had no links to terrorism.
Fourth, the restrictive conditions imposed by the MDC prevented the detainees from obtaining counsel in a timely fashion. The BOP has no national policy regulating the number or length of telephone calls that inmates in an ADMAX SHU can make to their attorneys. Consequently, the policy regulating the frequency and duration of legal telephone calls established by the MDC for September 11 detainees – while complying with very broad BOP national standards – severely limited the detainees’ ability to obtain and consult with legal counsel.
As mentioned previously, most September 11 detainees did not have legal representation prior to their detention at the MDC (only 2 of the 19 detainees we interviewed had hired legal counsel before they entered the MDC).
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The MDC imposed a policy that permitted September 11 detainees housed in the ADMAX SHU only one legal call per week. This type of policy is more appropriate for pre-trial inmates who have obtained counsel prior to their incarceration rather than for inmates like the September 11 detainees who needed to find counsel.
Further complicating the detainees’ efforts to obtain counsel, the pro bono attorney lists provided September 11 detainees by the INS through EOIR contained inaccurate and outdated information. As a result, detainees often used their sole legal call during a week to try to contact one of the legal representatives on the pro bono list, only to find that the attorneys either had changed their telephone number or did not handle the particular type of immigration situation faced by the detainees. In addition, detainees complained that legal calls that resulted in a busy signal or calls answered by voicemail counted as their one legal call for that week. When questioned about this, MDC officials gave differing responses about whether or not reaching an answering machine counted as a completed legal call. We believe that counting calls that only reached a voicemail, resulted in a busy signal, or went to the wrong number was unduly restrictive and inappropriate.
In addition, the manner in which the MDC inquired whether the detainees wanted to place a legal call was unclear and inappropriate. In many instances, the unit counselor inquired whether September 11 detainees in the ADMAX SHU wanted their weekly legal call by asking, “are you okay?” For some period, several detainees told the OIG that they did not realize that an affirmative response to this rather casual question meant they opted to forgo their legal call for that week. We believe the BOP should have asked the detainees directly “do you want a legal telephone call this week?” rather than relying on the detainees to decipher that a shorthand statement “are you okay?” meant “do you want to place a legal telephone call?”
Our review determined that the MDC officials recognized their obligation to permit representatives from foreign consulates to visit with detainees and established a clearance procedure to facilitate these visits. However, we found that consular representatives experienced the same difficulties as attorneys in obtaining access to detainees due to the BOP’s categorization of the detainees as WITSEC inmates. In addition, the MDC’s classification of detainee calls to their consulates as “social calls” severely limited the detainees’ ability to contact their consulates in a timely manner, given the MDC’s limit of one social call per month for detainees.
Fifth, the restrictive BOP policies and the classification of September 11 detainees also hindered family visits. Although MDC management tried to train reception area staff on proper procedures for granting visitation to detainee family members, problems persisted even many months after September 11.
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Sixth, with regard to allegations of physical and verbal abuse, we concluded that the evidence indicates a pattern of abuse by some correctional officers against some September 11 detainees, particularly during the first months after the attacks. Most detainees we interviewed at the MDC alleged that MDC staff physically abused them. Many also told us that that MDC staff verbally abused them with such taunts as “Bin Laden Junior” or with threats such as “you will be here for the next 20-25 years like the Cuban people.” Although most correctional officers denied such physical or verbal abuse, the OIG’s ongoing investigation of complaints of physical abuse developed significant evidence that it had occurred, particularly during intake and movement of prisoners.130
Seventh, MDC staff failed to inform detainees in a timely manner about the process for filing complaints about their treatment. Only 1 of the 19 detainees we interviewed said he received a facility handbook when he arrived that described the formal complaint process. Ten detainees told the OIG they did not learn about the complaint resolution process until they received their facility handbook 4 to 6 months after arriving at the MDC.
The Associate Warden for Programs told the OIG that all September 11 detainees received a facility handbook when they were processed into the MDC. Yet, even if the detainees received handbooks, staff apparently confiscated them as unacceptable items to retain in their ADMAX SHU cells. In addition, we found that a 2-page summary of MDC policies distributed to many of the detainees did not contain information about how to file a formal complaint. The haphazard fashion in which MDC staff handled dissemination of the facility handbook impeded the detainees’ ability to seek review for their complaints about conditions of confinement at the MDC. If the detainees were not permitted to keep the facility handbook in their cells for security reasons, the MDC’s 2-page summary of facility policies should have included information that described the process for filing a formal complaint.
Eighth, MDC staff appropriately took affirmative steps to prevent potential staff abuse against September 11 detainees – and protect MDC staff from unfounded allegations of abuse – by installing security cameras in each detainee’s cell and by requiring staff to videotape all detainee movements outside their ADMAX SHU cells. However, the BOP’s decision to permit MDC staff to destroy or reuse these videotapes after 30 days hampered the usefulness of the videotape system to prove or disprove allegations of abuse raised by individual detainees. We understand the difficulty in storing the
130 To date, our investigation has not uncovered any evidence that the physical or verbal abuse was engaged in or condoned by anyone other than the correctional officers who committed it. However, our investigation is still ongoing.
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hundreds of videotapes the MDC accumulated after several months of taping the detainees. But the decision to recycle or destroy the videotapes created problems regarding allegations of physical abuse at the MDC. Detainees were unable to use videotape evidence to support allegations of abuse filed more than 30 days after an alleged incident. Similarly, MDC staff had more difficulty refuting abuse allegations raised by detainees if the complaint was filed more than 30 days after the incident.
Given the proactive steps taken to prevent or document incidents of physical abuse against September 11 detainees, we believe rescinding the videotape retention policy was unwise. If BOP and MDC management wanted to refute detainee allegations of abuse using videotape evidence, it was shortsighted on their part to assume that all such allegations would be made and resolved within 30 days.
Ninth, we found that recreation offered to the September 11 detainees was limited due to BOP security policies, the limited number of recreation cells within the ADMAX SHU, and lack of proper clothing that led detainees to regularly refuse recreation because it was offered most often in the early morning hours when it was colder in the open-air recreation cells.
Tenth, MDC staff subjected the September 11 detainees to having both lights illuminated in their cells 24 hours a day for several months longer than necessary, even after electricians rewired the ADMAX SHU range. Our review determined that, despite the initial representations to us by MDC officials, the MDC was able to reduce the amount of light in an individual detainee’s cell as early as November 2001, but instead kept both cell lights illuminated until at least mid-March 2002. Eighteen of the 19 detainees we interviewed complained to the OIG about the difficulty of sleeping with both lights illuminated 24 hours a day, citing exhaustion, depression, stress, and sleep deprivation. The MDC had little reason for keeping the lights constantly illuminated for as long as it did.
In sum, we recognize the uncertainties and confusion surrounding the initial policies and treatment relating to these September 11 detainees. Much about these detainees was unknown, and the BOP had to accept the FBI’s loosely applied assessment of these detainees as “of interest” to the terrorism investigation. However, while we fault the FBI for the slowness of the clearance process, we believe the blackout and the initial WITSEC designation that the BOP imposed for several weeks was excessive, particularly because many of these detainees had no counsel or any contact with families. We also believe that the BOP instituted excessively restrictive policies on the detainees, particularly regarding telephone privileges. In addition, the BOP did not provide adequate information about the location of the detainees to the detainees’ attorneys or their family members. These policies hindered the detainees’ ability to obtain and consult with legal counsel and were more
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Case 1:02-cv-02307-JG-SMG Document 589-2 Filed 04/17/2007 Page 171 of 205 appropriate for detainees who had attorneys prior to arriving at the MDC. We also believe that some of the detainees were subject to physical or verbal abuse. Finally, we believe that some of the conditions of confinement were unnecessarily severe, such as two lights constantly illuminated in the detainees’ cells. While the chaotic situation and the uncertainties surrounding the detainees’ role in the September 11 attacks and the potential for additional terrorism explain some of these problems, they do not explain or justify all of them. We believe that the Department and the BOP should consider these issues carefully in an effort to avoid similar problems in the future.
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CHAPTER EIGHT
CONDITIONS OF CONFINEMENT AT THE PASSAIC COUNTY JAIL IN PATERSON, NEW JERSEY
I. INTRODUCTION
Not all September 11 detainees were confined in highly restrictive facilities like the MDC. The majority of the aliens arrested on immigration charges after the September 11 terrorist attacks were not deemed by the FBI to be of “high interest” to its terrorism investigation and therefore were housed in INS detention facilities or state or county jails under contract to the INS to house federal immigration detainees.
The Passaic County Jail (Passaic), located in Paterson, New Jersey, approximately 25 miles from the INS Newark District Office, has been under contract with the INS since 1985 to house federal immigration detainees awaiting processing of their cases.131 It also houses United States Marshals Service prisoners. The 4-story facility, built in 1956, houses inmates in both medium- and high-security settings and has a capacity of approximately 1,800 beds.
According to INS data, Passaic housed 400 September 11 detainees from the date of the terrorist attacks through May 30, 2002. This represented the most September 11 detainees held at any single U.S. detention facility. Passaic eventually housed 52 percent of all September 11 detainees (400 of 762).
Passaic’s total inmate population was approximately 1,600 on September 11, 2001. As September 11 detainees began arriving at Passaic, the total inmate population grew to a peak in late November 2001 of about 1,750 inmates, but never reached the facility’s capacity of 1,800. During the period September 2001 through May 2002, the population of non-INS inmates averaged approximately 1,440.
Unlike the MDC, Passaic had confined federal immigration detainees for more than 15 years, and the staff at Passaic was familiar with the INS and issues related to INS detainees. Also different from the MDC, September 11 detainees housed at Passaic were not identified as such by jail staff or segregated from the rest of the prison population. Passaic officials made no distinction between the detainees confined as a result of the September 11
131 Two other contract facilities in the INS Newark District – the Hudson County Jail and the Middlesex County Jail – also housed September 11 detainees.
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investigation and other INS detainees confined on “regular” immigration charges. Our interviews with September 11 detainees at Passaic confirmed that, while most stated that they did not understand why they were in jail, they were not singled out in any way for exceptional treatment by jail staff because they were or had been subjects of the September 11 terrorism investigation.
As discussed in Chapter 7, MDC officials were instructed by the BOP to treat the September 11 detainees as WITSEC inmates and hold them under very restrictive conditions. In contrast, the INS did not give Passaic specific classification instructions, and Passaic officials treated the September 11 detainees as regular INS detainees. Overall, September 11 detainees at Passaic were given considerably more privileges than detainees at the MDC and were not systematically subjected to the lockdown conditions or the restrictions on their freedom of movement or association experienced by detainees held at the MDC.
This chapter examines the conditions of confinement experienced by September 11 detainees housed at Passaic. As in the chapter on MDC, we address the detainees’ housing conditions, access to legal counsel, attorney and social visitation, allegations of physical and verbal abuse, medical services, and opportunities for recreation. We also describe oversight of the Passaic detainees by the INS Newark District.
We developed a sample of 66 September 11 detainees housed at Passaic. The sample included 30 detainees held at Passaic as of April 2002 and 30 additional detainees who were released or transferred prior to April 2002. When we conducted our fieldwork at Passaic in May 2002, 13 of the 30 detainees identified as currently held at Passaic were still there. The other 17 had been released or transferred. We interviewed the 13 detainees who were still confined at Passaic. We also interviewed six detainees held at Passaic who were the subject of media articles, and reviewed files for all 66 detainees in our sample.
II. BACKGROUND ON PASSAIC COUNTY JAIL
The INS has entered into numerous Intergovernmental Service Agreements (IGAs) with county governments across the United States to house federal immigration detainees. Passaic signed an IGA with the INS in January 1985 to house INS detainees; Passaic currently receives $77 per day for each detainee it confines. The INS has developed standards that facilities such as Passaic must follow to be eligible for INS contracts and funding. These standards articulate policies on a wide variety of confinement issues, including detainee telephone access, medical care, and discipline.
The INS Newark District contracted with Passaic and other county facilities in northern New Jersey to hold INS detainees, and had oversight
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responsibility for the September 11 detainees held at Passaic. In contrast, the INS New York District had no direct oversight of September 11 detainees confined at the MDC because the MDC is a federal prison operated by the BOP.
INS detainees were housed in the medium security portion of the Passaic County Jail. Within that part of the facility, a Special Detention Unit (SDU) of six single-person cells is used when needed to segregate inmates either for their own protection or to punish inmates who commit disciplinary infractions. Inmates confined to the SDU are monitored 24 hours per day by cameras in each cell. In addition, SDU inmates only are permitted to place calls to and receive visits from their attorneys – no social calls or visits are allowed. According to Passaic policy, disciplinary infractions such as assaulting or threatening staff and inmates are usually punishable by confinement in the SDU for 15 to 30 days per incident. Later in this chapter, we discuss the experiences of the few September 11 detainees held in the SDU.
In late April 2001, Edwin Englehardt, the Passaic County Sheriff for 28 years, resigned and then-Undersheriff Ron Fava was elevated to Acting Sheriff. Fava appointed Felix Garcia as Warden to run the Passaic jail. At the time of the terrorist attacks on September 11, 2001, Garcia had operational responsibility for Passaic. In January 2002, Jerry Speziale took office as Sheriff and appointed Charles Meyers as Warden of the Passaic jail.132
III. HOUSING OF DETAINEES
A. Processing of September 11 Detainees
Upon their arrival at Passaic, similar to other INS detainees, September 11 detainees were searched, fingerprinted, photographed, issued jail clothing, provided with the jail handbook, and placed in a temporary holding cell to await a medical examination and mental health screening by Passaic staff. Generally within 24 hours, the detainees were assigned to a housing unit in the facility.
The INS’s Detention Standards provide general guidelines for classifying inmates based on various factors, including “current offense, past offenses, escapes, institutional disciplinary history, and violent episodes/incidents.” The classification ranges from Level 1 (least serious) to Level 3 (most serious). Under these standards, INS detainees such as the September 11 detainees were classified as Level 1 inmates and could not be housed with Level 3 inmates who had been convicted of acts of physical violence or aggravated felonies such as narcotics trafficking. This stands in contrast with the BOP
132 Garcia was promoted to Undersheriff in January 2002, but subsequently left his position and was not on staff at the time of our site visit to Passaic in May 2002.
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memorandum, “Guidance for Handling of Terrorist Inmates and Recent Detainees,” issued on October 1, 2001, by Michael Cooksey, the BOP’s Assistant Director for Correctional Programs, that placed the September 11 detainees held by the BOP under extremely restrictive conditions of confinement.
Some INS detainees at Passaic were assigned to a unit (pod) with 2-person cells and an associated dayroom, but more often to large dormitory units housing approximately 50 men. The dormitory units served as both sleeping quarters and a dayroom. INS detainees, including September 11 detainees, had most of the same privileges and restrictions as other inmates at the facility, with the exception that jail policy forbade INS detainees from holding jobs in the jail. Beginning in September 2002, however, INS detainees were able to work in the Passaic laundry facility.
According to INS data, 92 percent of the September 11 detainees held at Passaic (371 of the 400) were arrested in the New York City area. Based on data from the INS and Passaic, the average number of total INS detainees housed at Passaic per week climbed steadily, from about 50 detainees out of a total of 1,596 inmates at the facility prior to September 11, 2001, to 98 by October 6, 2001. The number of INS detainees continued to climb, to 207 on October 20, 2001, to 306 on November 3, 2001, to a high of 417 (out of a total population of 1,777) by early December 2001. During this 3-month period, the number of INS detainees at Passaic increased from 3 percent to 23 percent of the facility’s total inmate population. In spite of the dramatic increase in INS detainees, the facility never reached overcrowded conditions because Passaic had a significant number of empty beds prior to September 11.
Figure 11 Weekly Average Number of INS Detainees Held
at Passaic County Jail
450 400 350 300 250 200 150 100 50
0
Week Ending
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The steady increase in INS detainees over such a relatively short period of time reduced Passaic’s ability to consistently ensure INS detainees were segregated from more serious offenders. Passaic Warden Meyers and Deputy Warden Brian Bendl told the OIG that due to the sudden influx of INS detainees after September 11, detainees were housed alongside sentenced county inmates. Bendl said this happened when Passaic did not have sufficient immigration detainees to fill an entire jail pod or dorm.
Nine of the 13 September 11 detainees we interviewed at Passaic in May 2002 said they shared dayrooms with sentenced criminal inmates during some portion of their custody at Passaic. The detainees said they knew this through their conversations with the inmates and based on the color of the wristbands worn by different inmates at the facility (according to Passaic staff, federal detainees wore red wristbands while county inmates wore white wristbands). Our review of the Passaic housing records also confirmed that at least 7 of the 13 September 11 detainees we interviewed were housed with sentenced criminal inmates for periods ranging from 1 week to 5 months. Bendl confirmed that Passaic periodically housed September 11 detainees with sentenced inmates, but he said only with inmates serving sentences of less than one year for crimes such as shoplifting, simple assault, and drug possession. We could not confirm this statement because the housing records we reviewed did not contain information about inmates’ criminal history.
All the September 11 detainees we interviewed expressed concern for their safety or were fearful to some degree. One detainee told the OIG that he shared a dormitory with county detainees for five months and did not feel safe. He was eventually moved to a unit with other INS detainees. Another detainee complained about being moved from an INS housing unit to a unit housing county inmates. A third detainee complained about problems he and fellow Muslims were having, not with county inmates but with other INS detainees.
Case Study 5:
We interviewed a September 11 detainee who said that he and other Muslim detainees were being intimidated by two INS criminal aliens, both aggravated felons. He told the OIG that when he and his fellow Muslims quietly conducted afternoon prayers in the common dayroom, these two criminal aliens turned up the volume on the television. When he asked them to turn the volume down, the criminal aliens refused and warned the detainee not to do anything about it.
The detainee said he complained to Passaic staff about this problem to no avail. In addition, the detainee said that no assistance was forthcoming from the INS because staff from the INS Newark District had
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not visited his unit.133 After the detainee raised this issue with the OIG during his interview, Passaic staff moved one of the criminal aliens out of the September 11 detainee’s housing unit.
We saw no evidence that the INS Newark District reviewed the housing assignments of September 11 detainees in Passaic. According to Deputy Warden Bendl and Passaic officers who had regular contact with the Newark District, INS officials did not ask about the detainees’ housing assignments. Bendl told the OIG that the INS Newark District left the housing decisions for September 11 detainees to Passaic officials.
When we interviewed INS Newark District officials, the two INS Newark detention officers responsible for visiting INS detainees at Passaic told us that they were not certain whether INS detainees were segregated from county detainees. Another INS Newark detention officer we interviewed told us that he thought the INS had no policy for segregating September 11 detainees from county inmates. These responses illustrate that INS Newark District detention officers with responsibility for monitoring INS detainees at Passaic did not ensure that INS policies on classifying and housing INS detainees were followed at Passaic.
B. SDU Housing Reviews
We found that Passaic and the INS also did not maintain adequate records about September 11 detainees placed in the facility’s SDU. According to INS detention standards, each detainee’s file should contain a written record explaining the reasons why, and for how long, a detainee was confined in the SDU.
We did not find any SDU housing records in the files of the September 11 detainees, even though our review of the Passaic SDU Log from September 12, 2001, to May 30, 2002, indicated that eight September 11 detainees were housed in the Passaic SDU for various lengths of time during this period.134 Our review of SDU logs showed that:
• Two September 11 detainees were placed in the SDU for medical isolation, one for chicken pox from October 28 to October 30,
133 We discuss INS Newark District oversight issues later in this chapter.
134 The SDU Log records the names of the inmates in the SDU, the date they entered the SDU, the infraction they were charged with, the release date, and any special problems or restrictions.
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2001, and one for pink eye from December 13 to December 18, 2001.
• Two September 11 detainees were sent to the SDU for assaulting a third September 11 detainee. The SDU Log records that one was in the SDU from January 8 to January 9, 2002; the other from January 8 to January 18, 2002. In the incident report, the victim stated that the two detainees pulled him out of bed and began hitting and punching him. The assaulted detainee was taken to a local hospital emergency room for stitches.
• One detainee spent eight days (from December 1 to December 8, 2001) in the SDU. The incident report documents that upon arrival at Passaic, the detainee was instructed to remove his clothing as part of the initial booking process. He refused to obey multiple orders and began to argue with the officer. According to the report, the detainee walked up to the officer, put his finger into the officer’s chest, and continued to argue. The officer took his arm and brought him to the ground to handcuff him. After a struggle, another officer handcuffed the detainee. Medical staff who examined the detainee a short time later observed no signs of injury.
• One detainee spent 24 days in the SDU (from December 18, 2001, to January 10, 2002) based on an FBI request to segregate the detainee. We were unable to determine the reason for the segregation request.
• One detainee spent his first four days at Passaic in the SDU after being transferred from the MDC on March 25, 2002. The detainee told the OIG that he was segregated because of his physical and mental condition at the time. The detainee stated that when he arrived at Passaic he was depressed, non-communicative, and could not walk after spending six months at the MDC. Passaic officials segregated him from other inmates and detainees until they could assess his condition.
• A September 11 detainee was placed in the SDU for 14 days (from May 19 to June 2, 2002) for threatening and assaulting a Passaic correctional officer, using abusive language, and for refusing to obey an order.135
135 This incident is discussed in Case Study 6 in this chapter.
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An INS Newark District Supervisory Detention Officer told the OIG that Passaic officials did not consistently inform the INS Newark District when INS detainees were placed in the SDU, contrary to instructions from Deputy Warden Bendl and Passaic policy. The only SDU record we found in the INS Newark District files regarding a September 11 detainee was for the detainee who served 14 days in the SDU for threatening and assaulting a correctional officer. After our inspection visit of Passaic in May 2002, the INS initiated a requirement that IGA facilities like Passaic must inform the local INS District office when a detainee is transferred to the SDU.
When asked about the lack of documentation in September 11 detainee files and the failure to consistently notify the Newark District when INS detainees were moved to the SDU, Bendl said that prior to January 2002 Passaic staff often notified the INS Newark District by telephone about incidents involving INS detainees, including placement of detainees in the SDU. After January 2002, he instructed his staff to fax incident reports involving INS detainees to the INS Newark District, including when a September 11 detainee was housed in the SDU. Bendl offered no explanation as to why, despite his instructions to his staff, the SDU report regarding the detainee transferred from the MDC on March 25, 2002, was not forwarded to the INS Newark District Office.
IV. ACCESS TO LEGAL COUNSEL
We found that September 11 detainees housed at Passaic generally received the same access to counsel as non-September 11 INS detainees. Furthermore, in contrast to detainees held at the MDC, the Passaic detainees generally had no difficulty contacting attorneys or family members, and attorneys and family members had no systemic difficulty locating the detainees or contacting them.
A. Background
Deputy Warden Bendl told us that if an attorney called or visited Passaic to speak to a specific INS detainee, Passaic staff would confirm for the attorney that the detainee was housed at the facility. Passaic officials said they asked attorneys to schedule appointments to see detainees at least 24 hours in advance. One attorney for a September 11 detainee in our sample stated that when he first contacted Passaic he was told that his client was not being held at the facility when, in fact, he was. When asked about this attorney’s experience, Bendl told us he was unaware of the specific incident, but that it likely was due to a simple mix-up. Bendl said some detainees used more than
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one name and frequently there was confusion among Passaic staff about spelling and name order.136
None of the 13 September 11 detainees we interviewed indicated that their family members were not informed that they were held at Passaic. At Passaic, family and friends were allowed to visit detainees. In contrast, only immediate family members were permitted to visit September 11 detainees confined at the MDC.
According to Bendl, in January 2002 immigration rights groups began contacting Passaic officials requesting information about September 11 detainees held at the jail. Bendl said Andrea Quarantillo, the INS Newark District Director, ordered Passaic to direct all such inquiries regarding September 11 detainees to the INS Newark District. At the same time, the INS requested that Passaic staff ask attorneys to present copies of INS Form G-28 (the document filed with the INS that indicates an attorney is representing a particular detainee) prior to their visit at Passaic.
In the spring of 2002, INS Headquarters issued at least two policies affecting dissemination of information on September 11 detainees. An April 8, 2002, memorandum from the INS’s Office of General Counsel (OGC) to all INS detention facilities, including contract facilities like Passaic, requested that facilities notify the OGC of any requests for information that could disclose the identities of September 11 detainees. In addition, in May 2002 Passaic Warden Meyers received a copy of an interim INS rule regarding release of information on INS detainees. This interim rule, effective on April 17, 2002, stated that detention facilities such as Passaic “shall not release information” on September 11 detainees and that requests for public disclosure of such information will be directed to the INS. These two policies continued the restrictions on the extent to which Passaic could release information on September 11 detainees to the media, immigration advocacy groups, or anyone other than individual detainees’ family, friends, or legal counsel. According to Quarantillo, the INS Newark District released the detainees’ locations to detainees’ attorneys and family members if they requested.
136 Bendl also said that particularly in the months immediately following the September 11 attacks, many detainees were being transferred in and out of the facility and there was confusion over the correct names of the detainees. If an attorney or family member called to find out if a detainee was being held at Passaic, Bendl said they might have been told “no” if the name the caller provided did not correspond exactly to the name on file at Passaic, even though the detainee may have been present.
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B. Legal Telephone Calls The INS’s policy on telephone access for immigration detainees states
that contract facilities such as Passaic “shall permit immigration detainees to make direct calls” to obtain or consult with legal representatives.137 Further, the policy states that, “the facility shall enable all detainees to make calls to the INS-provided list of free legal service providers and consulates at no charge to the detainee or the receiving party.” However, Passaic’s inmate handbook states that all calls by detainees must be collect, including calls to legal counsel. We found that all detainee calls made to attorneys, except for those facilitated by the Passaic ombudsman (discussed later), were collect calls.138
Image 6: This image depicts telephones in one of the Passaic dayrooms used by September 11 detainees. Photograph dated May 24, 2002. Five of the 13 September 11 detainees we interviewed at Passaic told the OIG that their attorneys’ offices did not accept collect calls. Warden Meyers and two other Passaic employees confirmed that several attorneys would not accept collect calls from September 11 detainees. A Passaic ombudsman also told us that he was aware that INS detainees were having problems contacting
137 INS Detention Standard, “Telephone Access,” September 20, 2000. 138 Detainees’ access to telephones differed somewhat depending on where a detainee was housed at Passaic. All telephones were located in the dayrooms. Dayroom access for the detainees in the dormitories was unrestricted. Therefore, these detainees could use the telephones anytime during the day. However, dayroom access for the detainees in the 2-man cells that comprised pods was more restricted. These detainees could use the telephones from 8:00 a.m. to 11:00 p.m.
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attorneys on the INS pro bono list in the days after September 11, 2001, because some attorneys would not accept collect calls.
To address this problem, beginning on September 28, 2001, Passaic officials permitted September 11 detainees to place direct calls to their attorney or consulate free of charge from the facility ombudsman’s office. According to an ombudsman, he would schedule a time for the detainee to come to his office to make a legal call at no cost to the detainee or the person being called after receiving a written request from a detainee.139
We interviewed two correctional officers who served as ombudsmen at Passaic. One had served as ombudsman for five years, while the other served in this position from September 2001 to February 2002. Both said they made rounds in the units once a day, told the detainees they were available for assistance in making legal telephone calls, and collected written requests from detainees who wanted to place calls. In addition, they said requests to use the telephone could be transmitted to them through other Passaic staff. The ombudsmen told the OIG that they permitted numerous detainees to place legal calls from their office because the detainees had no money or their attorneys would not accept collect calls. The ombudsmen also said they assisted interested detainees in contacting their consulates. Detainees we interviewed confirmed that the ombudsmen facilitated their legal calls.
C. Pro Bono Attorney List
We found that pro bono attorney lists were not consistently provided to September 11 detainees housed at Passaic, as required by INS regulations, although lists were posted at the jail.
According to INS regulations, INS officers who processed the September 11 detainees were responsible for providing each detainee upon arrest “with a list of the available free legal services . . . located in the [INS] district.”140 The INS Newark Assistant District Director for Investigations told the OIG that INS staff provided detainees with pro bono attorney lists when they were processed in the INS Newark District and before they were sent to detention facilities such as Passaic.
As discussed in Chapter 7, the Executive Office for Immigration Review (EOIR) is responsible for maintaining lists of pro bono attorneys who offer free legal services to immigration detainees in each INS District. According to
139 The ombudsman makes daily rounds in the housing units and serves as a liaison between the inmates and facility staff to address any problems.
140 8 C.F.R. § 287.3(c).
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federal regulations, each INS facility, including Passaic, is also required to “promptly and prominently post” the pro bono attorney lists “in detainee housing units and other appropriate areas.”141
According to Warden Meyers and Deputy Warden Bendl, Passaic employees posted laminated copies of the pro bono attorney lists in the detainees’ dayrooms and in the law library at Passaic. However, Bendl stated that it was not facility policy to give each detainee a copy of the pro bono list. He also acknowledged that not all the units in which the INS detainees were housed posted the lists.
Four of the 13 September 11 detainees we interviewed stated they never received a list of pro bono attorneys either from the INS or Passaic staff. Three other detainees said they saw a posted list, two said they obtained lists from immigration judges at their hearings, one said he had a list from another New Jersey facility from which he was transferred, and one did not recall if he received a list.
Three of the 13 September 11 detainees we interviewed already had attorneys when they arrived at Passaic, and three additional detainees contacted their families who arranged to hire attorneys. The other seven detainees said they depended upon the pro bono list or word of mouth from other detainees to find legal representation.
None of the eight legal organizations on the list of pro bono attorneys provided to Passaic officials by the INS Newark District listed toll free numbers.
D. Legal Rights Presentations
We found that Passaic took steps to ensure that September 11 detainees were aware of and able to attend legal rights presentations. In addition, we found that the INS Newark District was generally responsive to organizations seeking to conduct legal presentations at Passaic.
First, according to Deputy Warden Bendl, all INS detainees who entered Passaic after November 2001 were shown a video informing them of their rights at the facility, including their legal rights. This video was provided by the INS Newark District and shown after the detainees’ initial processing at the facility.
Second, Passaic detainees were given legal rights presentations by immigration groups. These “Know Your Rights” presentations are designed to inform INS detainees about U.S. immigration law and INS procedures. According to INS standards, attorneys and legal groups who wanted to conduct
141 INS Detention Standard, “Visitation,” September 20, 2000.
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a legal presentation at Passaic were required to submit a written request and an agenda to INS Newark District Director Quarantillo. When approved, INS Newark District officials notified Passaic staff, who in turn contacted the requesting organization to arrange a date and time for the presentation. According to Newark District officials, no requests were refused.
Bendl said legal presentations to detainees were limited generally to one hour, but could be extended at the discretion of Passaic staff. Detainees were required to sign up for the sessions 24 hours in advance and newly arrived detainees were given preference. According to Bendl, the number of detainees who could attend was limited only by the capacity of Passaic’s chapel, the room where the presentations were held, which held approximately 200 people. None of the 13 September 11 detainees we interviewed at Passaic complained about a lack of legal rights presentations or said they were not permitted to attend such presentations.
The American Friends Services Committee conducted the first legal rights presentation at Passaic on March 10, 2002, after submitting a request in mid-February to the INS Newark District. Quarantillo said that beginning in March 2002 and lasting for several months, legal rights groups made presentations at Passaic an average of “every other week.” Between March and May 2002, Passaic officials blocked out two hours every Tuesday for legal rights presentations, and Bendl said between 20 and 70 detainees attended each session.
V. ALLEGATIONS OF PHYSICAL AND VERBAL ABUSE
Unlike at the MDC, we did not find evidence of a pattern of physical abuse of September 11 detainees at Passaic. Eleven of the 13 detainees we interviewed during our site visits said they were not subjected to any physical abuse while at Passaic.142 The twelfth September 11 detainee at Passaic who we interviewed claimed that he was physically abused by correctional officers at Passaic. See Case Study 6 below. The thirteenth detainee we interviewed, who transferred to Passaic from the MDC, refused to discuss the issue with us. He told the OIG, however, that his situation at Passaic was “tolerable” compared to his situation at the MDC.
With regard to allegations of verbal abuse, 3 of the 13 Passaic detainees we interviewed said that on several occasions Passaic staff verbally harassed them with ethnic slurs.
142 These reports are significantly different than what we heard at the MDC, where 12 of the 19 September 11 detainees we interviewed told us they were subjected to some form of physical abuse.
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Passaic officials told the OIG that any complaints of physical or verbal abuse are referred to the Passaic Internal Affairs Division. The Passaic Internal Affairs Division officer responsible for receiving such referrals said that except for the incident described in Case Study 6, his office received no complaints from September 11 detainees about physical or verbal abuse.
Case Study 6:
On May 23, 2002, we interviewed a September 11 detainee at Passaic who had a black eye and walked with a limp, which he said resulted from a series of altercations with Passaic correctional officers on the evening of May 19, 2002.
According to incident reports and the Passaic SDU log, at 4:30 p.m. the detainee, who was supposed to receive a vegetarian meal, took a food tray with chicken. When a correctional officer ordered him to return it, an argument ensued and the officer notified the Sergeant on duty. At 5:30 p.m., the Sergeant took the detainee to his cell and told him to gather his belongings because he was going to be taken down to the first floor to be assigned to a different housing unit for using abusive language toward a correctional officer.
The Sergeant and a Lieutenant who escorted the detainee alleged that in a corridor on the first floor the detainee assaulted the Sergeant. By contrast, the detainee told us that the Sergeant initiated the hostilities by threatening him for talking back to the Sergeant. Officers forced the detainee to the floor, handcuffed his arms behind his back, and took him to the SDU because he continued to yell threats at them.
At 6:40 p.m., medical staff examined the detainee who, according to the medical records, was lying on the floor alert, able to speak, with no shortness of breath. The detainee said that his chest hurt, but he refused any treatment or medication. Medical staff prescribed Tylenol and scheduled him to see the doctor in the morning. The medical department noted the detainee did not appear to have difficulty breathing because he was very loud and vocal. When the detainee returned to his cell, he began yelling and kicking the door.
At about 8:15 p.m., two other officers visited the detainee’s cell to discuss the incident report. According to the officers, the detainee was belligerent, uncooperative, and verbally abusive. He took the incident report from the officers and refused to give it back. The detainee was ordered repeatedly to place his hands outside the cell to be handcuffed, but he refused to do so. One officer advised the detainee that if he did not cooperate, he would be sprayed with mace. The detainee still did not
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return the report or allow the officers to handcuff him. The officers sprayed him with mace, entered the cell, handcuffed him, and retrieved the incident report. The detainee was taken to the shower to rinse his face and then to the medical department because he claimed he was having difficulty breathing.
According to the detainee, the officers wanted him to sign a paper, but he refused because they would not let him read it. He said the argument escalated and several officers entered his cell to subdue him. During the ensuing struggle, the detainee said someone pushed him to the floor; pressed a knee against his neck, making it difficult for him to breathe; kicked him in the side; pepper-sprayed him; and punched him in the eye. As a result of the incident, the detainee claimed he suffered severe back pain, a badly swollen black eye, chest pains, and injuries that prevented him from standing, required him to use a wheelchair, and resulted in a permanent limp.
Subsequent to the incident, the detainee’s left eye became badly swollen and he complained of chest and back pain. By 12:41 a.m. on May 21, 2002, the detainee complained that he could not move his legs. According to an incident report, Passaic staff placed him in a wheelchair, took him to the Passaic medical department where he was examined, and sent him to a local hospital emergency room for evaluation.
The hospital emergency room discharge report recorded the detainee’s complaint that he could not move his right leg and observed that his left eye was blackened and swollen shut. He was x-rayed, given pain medications, and referred to an ophthalmology clinic. The doctors who examined the detainee determined he was in good health and had no spinal or back injuries.
According to the detainee, several days after his visit to the hospital guards brought a dog from Passaic’s canine unit into his SDU cell when he informed officers that he was unable to get out of bed. He alleged that the guards told him that if he did not get out of bed by the next day, they were going to “let the dog loose.” Passaic officers told us that it is not unusual to make rounds with dogs, including in the SDU area, but denied that they threatened to use the dogs on the detainee.
The OIG’s Investigations Division investigated the incident and presented the evidence in the case to the Civil Rights Division, which declined criminal prosecution. The OIG is currently conducting an ongoing administrative investigation of the matter.
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The OIG received three other complaints related to allegations of physical or verbal abuse of September 11 detainees housed at Passaic. In one case, a detainee alleged that unidentified officers verbally abused him when he arrived at the facility in October 2001. He also alleged that unidentified officers deprived him of adequate recreation, medical care, and food, and placed handcuffs on him so tightly and for such a long time that it caused damage to his wrist. The detainee’s medical records disclosed no report of injuries to his wrist. The Civil Rights Division declined prosecution in June 2002, and the OIG referred the allegations to the INS. It is unclear what further investigative actions the INS plans to take.
In the second case, a September 11 detainee informed the INS that while he was held at Passaic from October 2001 to April 2002, he was not provided adequate medical care, recreation, diet, or living conditions. He also alleged that unidentified officers hit, verbally abused, and threatened him, although he did not identify specific incidents. The detainee’s medical records contained no evidence of the injuries he claimed he suffered. The INS also did not find any records of complaints filed by the detainee while he was at Passaic. The INS did not interview the detainee before he was removed to Morocco on July 8, 2002. However, in October 2002 the INS conducted an official review of Passaic’s conditions of confinement to assess the detainee’s allegations that Passaic failed to provide adequate medical care, recreation, diet, or living conditions. The INS gave Passaic “acceptable” ratings in each of these categories.
Finally, a September 11 detainee alleged that when he was transferred to Passaic in October 2001, an unidentified officer dragged him by his neck to a room and kicked him in the ankles, feet, and groin. He also alleged he was verbally abused by officers. The Civil Rights Division declined prosecution of the case. The OIG referred the allegations to the INS, and the INS referred the case to local INS management. Local INS management reviewed the detainee’s medical records, but it appears that they did not investigate the matter further.
VI. OTHER ISSUES
A. Medical Care
Our review found that Passaic provided September 11 detainees with the medical and dental screenings required by INS standards. These standards require facilities like Passaic that house federal immigration detainees to provide “24-hour, 7 days per week emergency medical and dental care.” According to the Passaic Medical Director, Passaic has three shifts of medical staff to provide round-the-clock coverage with a staff nurse conducting rounds in each unit every eight hours. In addition, the Medical Director said the nursing staff collects written requests for medical treatment from detainees daily and provides treatment based on a “priority of need.” These written
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requests for treatment are similar to the “copout system” used at the MDC, which we discuss in Chapter 7.
According to Warden Meyers, September 11 detainees arriving at Passaic were examined initially by a nurse practitioner and received a follow-up exam by a doctor. Based on our interviews and a review of Passaic’s medical files, we determined that all 66 September 11 detainees in our Passaic sample, including the 13 detainees we interviewed, received an initial health screening at Passaic upon their arrival and a physical examination within the 14-day time frame prescribed by INS standards.
Our review of requests for medical attention submitted by 12 of the 13 September 11 detainees we interviewed found that Passaic medical staff were responsive to these written requests for treatment.143 According to Passaic records, these 12 detainees filed 34 requests for medical treatment. We found that 47 percent of the requests (16 of the 34) were fulfilled within 2 to 3 days and 70 percent (24 of the 34) were fulfilled within one week.
Two September 11 detainees we interviewed complained about untimely medical care at Passaic. We reviewed their medical records and found that one of the detainees had submitted two undated medical request forms and received treatment on both occasions, but we were unable to determine the timing of the treatment in relation to the requests. The other detainee said he complained of a toothache and was seen by medical staff four days later. He later complained of back pains and was seen eight days later.
B. Hunger Strikes
INS regulations applicable to the September 11 detainees at Passaic recognize a hunger strike when a detainee has refused food for 72 consecutive hours. According to Bendl, Passaic staff generate an incident report each time an INS detainee refuses a meal. A copy of each incident report is then sent to the Passaic medical staff and the INS Newark District. In the case of a detainee missing one meal, the INS Newark District files the Passaic incident report in the detainee’s detention folder.
We obtained and reviewed incident reports on the 66 detainees in our Passaic sample from September 20, 2001, to May 23, 2002. Of the 66 detainees in our sample, three refused to eat a meal, which warranted an incident report. Of the three detainees who missed meals, two were in the Special Detention Unit (SDU) at the time they declared themselves to be on a hunger strike. However, these two detainees each missed only two consecutive meals, and therefore their actions did not qualify as hunger strikes according
143 Passaic could not provide the treatment record for one of the 13 detainees.
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to INS regulations. One detainee stated he could not eat any food that contained milk by-products, and the second detainee said he was unjustifiably placed in the SDU for 30 days. According to an incident report, a third detainee stated that he was on a hunger strike because the INS left him at Passaic for eight months, during which time he should have been removed from the United States. He said that he was not upset with Passaic staff and that his dispute was with the INS. Beginning the third day of the detainee’s hunger strike, Passaic medical staff began monitoring his medical condition daily. His hunger strike lasted eight days.
C. Recreation
Passaic has two rooftop gyms for outdoor recreation. In addition, Passaic has two indoor exercise areas: a weight room and a recreation/exercise room. We could not determine whether September 11 detainees were afforded the required recreation time. The INS Detention Standard for Recreation requires that, weather permitting, contract facilities like Passaic shall make outdoor recreation available for detainees at least one hour a day, five days a week, at a reasonable time of day. Passaic officials we interviewed asserted that all detainees were scheduled for one hour of recreation daily. However, 6 of the 13 September 11 detainees we interviewed stated that they were offered the opportunity to go to the outdoor gym only every few weeks. Seven of the 13 detainees told the OIG that they were offered recreation only 3 times a week.
From the Passaic records, we could not determine whether the September 11 detainees were scheduled for recreation and whether they actually received recreation. When asked about the claims some detainees made about not receiving adequate recreation time, Deputy Warden Bendl and two correctional officers cited the limited size of the gyms, the lack of correctional officers to oversee movements of detainees to and from the gyms, and weather as the three factors that prevented detainee access to the outdoor recreation facilities as often as scheduled.
VII. INS NEWARK DISTRICT MONITORING OF SEPTEMBER 11 DETAINEES
We found that the INS Newark District did not sufficiently monitor September 11 detainees housed at Passaic, despite claims by INS Newark District management about the frequency and duration of their visits to Passaic.
The INS Newark District primarily monitored September 11 detainees at Passaic by sending INS Detention and Removal (D&R) staff to visit the facility. The INS did not have formal standards dictating how often INS Newark District staff were required to visit September 11 detainees at Passaic, according to David Venturella, the Deputy Executive Associate Commissioner of the INS’s Office of Detention and Removal. According to the IGA between Passaic and
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the INS, Passaic agreed to allow “periodic inspections” of its facility by the INS to ensure that a “minimally acceptable level of services” was provided to INS detainees. According to a supervisory detention officer (SDO) at the INS Newark District, these inspections are conducted annually by jail inspectors from the INS Newark District Office of D&R.
The INS Newark Assistant District Director for Detention and Deportation told the OIG that the purposes of these visits included communicating with detainees on their cases, hearing detainee complaints, observing jail conditions, discussing matters of mutual interest with Passaic management, and serving INS documents on September 11 detainees.144
An INS Newark District SDO told the OIG that the INS Newark District’s unofficial goal was to have an officer from its Office of D&R visit facilities with more than 100 INS detainees, such as Passaic, every day.145 According to the SDO, facilities with less than 100 INS detainees were supposed to be visited by an INS Newark District D&R officer at least one to three times every other week. The INS Newark Assistant District Director for Detention and Deportation said that INS Newark District staff visited Passaic at least three days per week and spent approximately six hours at the facility each visit. According to INS Newark District officials, 11 INS removal officers – 10 of whom were detailed from the INS New York District – conducted the site visits to county jails in the INS Newark District, including Passaic, from October 2001 to May 2002.
We evaluated the frequency of visits to Passaic by INS Newark District staff from the weeks ending January 19 to March 2, 2002, a 7-week period during which Passaic consistently housed more than 100 INS detainees.146 During this period, INS Newark District staff should have visited Passaic daily (five days per week), according to the INS Newark District. However, we found that INS District Newark staff visited Passaic daily in only 1 week during this 7-week period. After the INS detainee population slipped below 100 during the week ending March 9, 2002, we found that INS Newark District staff generally attained their goal of visiting Passaic 1 to 3 times every other week. However, no INS Newark District staff visited Passaic from April 28 to May 12, 2002.
144 When the INS changed the name of the Office of Detention and Deportation to the Office of Detention and Removal, it did not change personnel titles.
145 A review of INS data determined that Passaic housed a weekly average of more than 100 INS detainees from October 7, 2001, to March 2, 2002.
146 The length of visits by INS Newark District staff for the weeks beginning March 3, 2002, and April 14, 2002, was unclear in Passaic records and therefore was not included in our analysis.
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With respect to the length of their visits, our analysis determined that INS Newark District staff spent an average of from 0.5 to 3 hours at Passaic during the 7-week period described above, contrary to the INS’s claim that INS Newark District staff generally spent six hours at Passaic during each visit. In fact, we estimated that INS Newark District staff spent less than two hours per visit at Passaic during this 7-week period.
In addition, we found that the INS Newark District failed to prepare required reports for all incidents involving September 11 detainees reported by Passaic staff. Under INS regulations, INS Newark District officials should have sent reports on more serious detainee issues – such as hunger strikes or assaults involving prison guards – to officials at INS Headquarters in Washington, D.C., but we found that this did not occur.
VIII. OIG ANALYSIS
The Passaic County Jail housed 400 September 11 detainees from the date of the terrorist attacks through May 30, 2002, which represented the most September 11 detainees held at any single detention facility. Unlike most of the detainees housed at the MDC, who were considered of “high interest” to the Department’s PENTTBOM investigation, most of the detainees sent to Passaic were considered by the FBI to be “of interest,” “of undetermined interest,” or “no longer of interest.”
The Passaic detainees had much different (and significantly less harsh) detention experiences than those at the MDC for a variety of reasons. First, Passaic staff – unlike staff at the MDC – had more than 15 years’ experience handling INS detainees, and was familiar with INS procedures related to immigration detainees. Second, September 11 detainees were treated similarly to “regular” INS detainees housed at Passaic and were not singled out for more restrictive detention. Unlike the September 11 detainees at the MDC, they were not locked down 23 hours a day, were not placed in four-man holds during movement, and had much more liberal phone call and visitation privileges. Highly restrictive confinement conditions were the exception rather than the rule for September 11 detainees at Passaic, in stark contrast to the MDC where all detainees were confined in the facility’s ADMAX SHU.
September 11 detainees at Passaic had more independence and flexibility to obtain and communicate with legal counsel. Attorneys representing Passaic detainees did not experience the same level of difficulty experienced by attorneys seeking to visit their MDC detainee-clients. However, Passaic’s policy of permitting detainees to place only collect telephone calls initially hampered their ability to consult with legal counsel. To their credit, Passaic officials quickly realized the difficulty some September 11 detainees were experiencing in obtaining legal counsel and, on September 28, 2001, took steps to address
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this problem by providing detainees access to a telephone in a staff member’s office to place legal telephone calls free of charge.
We found that Passaic and INS Newark District officials also took steps to educate September 11 detainees about the immigration process by permitting various immigration groups to conduct “Know Your Rights” presentations at the facility. In addition, Passaic officials permitted regular visits by family members and friends of September 11 detainees, unlike at the MDC where only visits by immediate family members were permitted.
Our review did not find a pattern of physical and verbal abuse against September 11 detainees held at Passaic by correctional officers. The majority of detainees we interviewed stated they had not experienced any such abuse. With regard to allegations of verbal abuse, 3 of the 13 September 11 detainees we interviewed alleged that Passaic staff verbally harassed them, primarily by using ethnic slurs. The Passaic officers we interviewed denied making such remarks. While any such slurs are offensive and unacceptable, we found that the level of these allegations at Passaic was markedly different from the pervasive complaints we heard from detainees confined at the MDC.
We also concluded that Passaic staff provided appropriate medical and dental screenings and facilitated adequate access to medical services for the September 11 detainees. We found that Passaic medical staff was responsive to written requests for treatment by the detainees. The Passaic detainees were offered recreation opportunities, although not with the frequency specified by both INS and Passaic standards.
Finally, we found that INS Newark District staff conducted insufficient and irregular visits to September 11 detainees at Passaic, and the number and lengths of these visits were significantly less than INS District management claimed. We also found that INS Newark District staff was not receiving all Passaic incident reports or reviewing available documentation during visits to the facility. Consequently, we question whether the INS Newark District was adequately monitoring the conditions of confinement experienced by September 11 detainees at Passaic. We believe the INS Newark District should have made more effort to monitor the September 11 detainees, especially since the detainees were housed at a non-INS facility, which reduced the INS’s interaction with the detainees.
In sum, we found that the conditions of confinement for September 11 detainees at Passaic were significantly less harsh than those experienced by detainees at the MDC.
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CHAPTER NINE
OIG RECOMMENDATIONS
We recognize the tremendous challenges the FBI, INS, BOP, and other Department components faced as they responded to the September 11 attacks and mobilized to prevent additional attacks during a chaotic period. We also recognize the dedication exhibited by many Department employees in response to the attacks. Without diminishing their contributions in any way, we believe the Department can learn from the experience in the aftermath of the September 11 attacks, and we therefore offer a series of recommendations to address the issues we examined in our review.
I. UNIFORM ARREST AND DETAINEE CLASSIFICATION POLICIES
The FBI New York Field Office and its Joint Terrorism Task Force (JTTF) aggressively pursued thousands of PENTTBOM leads in the weeks and months after the terrorist attacks. Many leads that resulted in an alien’s arrest on immigration charges were quite general in nature, such as a landlord reporting suspicious activity by an Arab tenant. However, we found the FBI and INS in New York City did little to distinguish the aliens arrested as the subjects of PENTTBOM leads or where there was evidence of ties to terrorism from those encountered coincidentally to such leads with no indication of any ties to terrorism.
The FBI’s New York Field Office took an aggressive stance when it came to deciding whether any aliens arrested on immigration charges were “of interest” to its terrorism investigation. Witnesses both inside and outside the FBI told us that the New York FBI interpreted and applied the term “of interest” to the September 11 investigation quite broadly. Consequently, all aliens in violation of their immigration status that the JTTF encountered in the course of pursuing PENTTBOM leads – whether or not the subjects of the leads – were arrested, classified as September 11 detainees, and subjected to the full FBI clearance investigation, regardless of the factual circumstances of the aliens’ arrest or the absence of evidence connecting them to the September 11 attacks or terrorism. This contrasted with procedures used elsewhere in the country, where aliens were assessed individually before being considered “of interest” to the terrorism investigation and therefore subject to the full FBI clearance investigations.
Moreover, the FBI’s initial “interest” classification had an enormous impact on the detainees because it determined whether they would be housed in a high-security BOP facility like the MDC or in a less restrictive setting like Passaic. In addition, the decision to label an alien a “September 11 detainee”
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versus a “regular immigration detainee” significantly affected whether bond would be available and the timing of the detainee’s removal or release.
1. We believe the Department and the FBI should develop clearer and more objective criteria to guide its classification decisions in future cases involving mass arrests of illegal aliens in connection with terrorism investigations. For example, the FBI could develop generic screening protocols (possibly in a checklist format) to help agents make more consistent and uniform assessments of an illegal alien’s potential connections to terrorism. These protocols might require some level of evidence linking the alien to the crime or issues in question, and might include an FBI database search or a search of other intelligence and law enforcement databases.
In addition, the FBI should consider adopting a tiered approach to detainee background investigations that acknowledges the differing levels of inquiry that may be appropriate to clear different detainees of connections to terrorism. For example, a more streamlined inquiry might be appropriate when the FBI has no information that a detainee has ties to terrorism, while a more comprehensive background investigation would be appropriate in other cases.
2. The FBI should provide immigration authorities (now part of the Department of Homeland Security (DHS)) and the BOP with a written assessment of an alien’s likely association with terrorism shortly after an arrest (preferably within 24 hours). This, in turn, would assist the immigration authorities in assigning the detainee to an appropriate detention facility and the BOP in determining the appropriate security level within a particular facility. In addition, the FBI should promptly communicate any changes in its assessment of the detainee’s connection to terrorism so that the DHS and BOP can make appropriate adjustments to the detainee’s conditions of confinement.
3. The FBI did not characterize many of the September 11 detainees’ potential connections to terrorism and consequently they were treated as “of undetermined interest” to the terrorism investigation. In these cases the INS, in an understandable abundance of caution, treated the alien as a September 11 detainee subject to the “hold until cleared/no bond” policies applicable to all September 11 detainees. This lack of a characterization by the FBI also resulted in prolonged confinement for many detainees, sometimes under extremely harsh conditions. Unless the FBI labels an alien “of interest” to its terrorism investigation within a limited period of time, we believe the alien should be treated as a “regular” immigration detainee and processed according to routine procedures. In any case, the DHS should establish a consistent
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mechanism to notify the FBI of its plans to release or deport such a detainee.
II. INTER-AGENCY COOPERATION ON DETAINEE ISSUES
The INS relied on the FBI to provide evidence about the detainees that it could use in bond and removal proceedings. When this information was not forthcoming in a timely manner, the INS had to request multiple continuances in bond hearings and other immigration proceedings in an effort to maintain the detainees in custody. In many of these cases, the INS’s arguments against granting bond to the Immigration Court were based on little more than the fact the detainees were arrested in connection with PENTTBOM leads.
4. Unless the federal immigration authorities, now part of the DHS, work closely with the Department and the FBI to develop a more effective process for sharing information and concerns, the problems inherent in having aliens detained under the authority of one agency while relying on an investigation conducted by another agency can result in delays, continuing conflicts, and concerns about accountability. At a minimum, we recommend that immigration officials in the DHS enter into an Memorandum of Understanding (MOU) with the Department and the FBI to formalize policies, responsibilities, and procedures for managing a national emergency that involves alien detainees. An MOU should specify a clear chain of command for any inter-agency working group. Further, the MOU should specify information sharing and reporting requirements for all members of such an inter-agency working group.
III. FBI CLEARANCE PROCESS
While we appreciate the enormous demands placed on the FBI in the aftermath of the terrorist attacks, we found the FBI did not adequately staff or assign sufficient priority to its process for clearing September 11 detainees of a connection to terrorism. Agents responsible for clearance investigations often were assigned to other duties, which substantially delayed the completion of detainee clearance investigations. Even after the clearance decisions were centralized at FBI Headquarters, FBI officials failed to provide sufficient resources to complete the detainee clearance process in a timely manner. The FBI took, on average, 80 days to clear a September 11 detainee.
5. We believe it critical for the FBI to devote sufficient resources in its field offices and at Headquarters to conduct timely clearance investigations on immigration detainees, especially if the Department institutes a “hold until cleared” policy. The FBI should assign sufficient resources to conduct the clearance investigations in a reasonably expeditious manner, sufficient resources to provide timely information to other agencies (in this case, additional FBI agents to support the SIOC Working Group),
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and sufficient resources to review in a timely manner the results of inquiries of other agencies (in this case, completed CIA checks). In addition, FBI Headquarters officials who coordinated the detainee clearance process and FBI field office supervisors whose agents were conducting the investigations should impose deadlines on agents to complete background investigations or, in the alternative, reassign the cases to other agents.
6. We understand the resource constraints confronting the Department in the days and weeks immediately following the September 11 attacks. We also recognize that decisions needed to be made quickly and often without time to consider all the ramifications of these actions. However, within a few weeks of the terrorist attacks it became apparent to many Department officials that some of the early policies developed to support the PENTTBOM investigation were causing problems and should be revisited. Examples of areas of concern included the FBI’s criteria for expressing interest in a detainee and the “hold until cleared” policy. We believe the Department should have, at some point earlier in the PENTTBOM investigation, taken a closer look at the policies it adopted and critically examined the ramifications of those policies in order to make appropriate adjustments. We recommend that the Department develop a process that forces it to reassess early decisions made during a crisis situation and consider any improvements to those policies.
IV. NOTICES TO APPEAR
Under federal regulation, the INS was required to decide whether to file immigration charges against an alien within 48 hours of his arrest. However, the regulation contained no requirement with respect to when the INS must notify the alien or Immigration Court about the charges. No statute or regulation explicitly stated when the INS was required to serve the Notice to Appear (NTA) on the alien or the Immigration Court. We found the INS did not consistently serve September 11 detainees with NTAs within its stated goal of 72 hours after arrest. Part of the delay can be traced to the INS’s practice in the first several months after the terrorist attacks to having all NTAs reviewed for legal sufficiency at INS Headquarters. Another factor was the miscommunication that resulted when detainees arrested in New York City were transferred to the INS Newark District without having been served NTAs. INS Newark District officials assumed the detainees had been served in New York, while INS New York District officials incorrectly assumed that INS Headquarters had forwarded the NTAs to the INS Newark District for service. These delays affected the detainees’ ability to obtain legal counsel and postponed the detainees’ opportunity to seek a bond re-determination hearing.
7. We recommend that the immigration authorities in the DHS issue instructions that clarify, for future events requiring centralized approvals
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at a Headquarters’ level, which District or office is responsible for serving NTAs on transferred detainees: either the District in which the detainee was arrested or the District where the detainee is transferred.
8. We recommend that the DHS document when the charging determination is made, in order to determine compliance with the “48-hour rule.” We also recommend that the DHS convert the 72-hour NTA service objective to a formal requirement. Further, we recommend that the DHS specify the “extraordinary circumstances” and the “reasonable period of time” when circumstances prevent the charging determination within 48 hours. We also recommend that the DHS provide, on a case-by-case basis, written justification for imposing the “extraordinary circumstances” exception and place a copy of this justification in the detainee’s A-File.
V. RAISING ISSUES OF CONCERN TO SENIOR DEPARTMENT OFFICIALS
Department officials established the “hold until cleared” policy believing that the FBI’s clearance process for September 11 detainees would take just a few days. However, in many cases the clearance process stretched on for months and created dilemmas for INS attorneys who handled bond and removal proceedings. The slow pace of the FBI’s background investigations, coupled with the lack of individualized evidence connecting specific detainees to terrorism, left INS attorneys with little evidence to argue for continued confinement of the detainees.
The evidence indicated that attorneys in the INS’s Office of General Counsel made efforts to raise with some Department officials the issue of whether the INS could refuse to accept bond set by an Immigration Judge when the Government failed to appeal or block a detainee’s departure from the country when he had received a final removal order. Yet, when these efforts were unsuccessful, INS officials did not raise the issue at higher levels in the Department or submit their legal concerns in writing until months later.
9. We recommend that Offices of General Counsel throughout the Department establish formal processes for identifying legal issues of concern – like the perceived conflict between the Department’s “hold until cleared” policy and immigration laws and regulations – and formally raise significant concerns, in writing, to agency senior management and eventually Department senior management for resolution. Such processes will be even more important now that immigration responsibilities have transferred from the Department to the DHS.
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VI. BOP HOUSING OF DETAINEES
At least 84 September 11 detainees arrested on immigration charges in connection with the September 11 investigation were confined at the MDC. The BOP housed these detainees in its ADMAX SHU under extremely restrictive conditions. While the BOP played no role in deciding which detainees were “of interest” or “of high interest” to the FBI, once detainees were transferred to one of its facilities the BOP assumed responsibility for the detainees’ conditions of confinement.
The BOP combined a series of existing policies and procedures that applied to inmates in other contexts to create highly restrictive conditions of confinement for September 11 detainees held at the MDC and other BOP facilities. For example, the BOP initially designated September 11 detainees as witness security (WITSEC) inmates, a categorization that restricted public knowledge of and access to the detainees. This designation frustrated efforts by detainees’ attorneys, family members, consular officials, and even law enforcement officers to determine the detainees’ location, given how tightly information about WITSEC inmates is held. In addition, the BOP’s initial communications blackout and its policy of permitting detainees one legal call per week (coupled with arbitrary policies on whether reaching an answering machine counted as the legal call), severely limited the detainees’ ability to contact and consult with legal counsel.
10. We recommend that the BOP establish a unique Special Management Category other than WITSEC for aliens arrested on immigration charges who are suspected of having ties to terrorism. Such a classification should identify procedures that permit detainees’ reasonable access to telephones more in keeping with the detainees’ status as immigration detainees who may not have retained legal representation by the time they are confined rather than as pre-trial inmates who most likely have counsel. In addition, BOP officials should train their staff on any new Special Management Category to avoid repeating situations such as when MDC staff mistakenly informed people inquiring about a specific September 11 detainee that the detainee was not held at the facility.
11. Given the highly restrictive conditions under which the MDC housed September 11 detainees, and the slow pace of the FBI’s clearance process, we believe the BOP should consider requiring written assessments from immigration authorities and the FBI prior to placing aliens arrested solely on immigration charges into highly restrictive conditions, such as disciplinary segregation in its ADMAX SHU. Absent such a particularized assessment from the FBI and immigration authorities, the BOP should consider applying its traditional inmate classification procedures to determine the level of secure confinement required by each detainee.
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12. We found delays of days and sometimes weeks between when the FBI notified the BOP that a September 11 detainee had been cleared of ties to terrorism and when the BOP notified the MDC that the detainee could be transferred from its ADMAX SHU to the facility’s general population, where conditions were decidedly less severe. We recommend that BOP Headquarters develop procedures to improve the timeliness by which it informs local BOP facilities when the detention conditions of immigration detainees can be normalized.
13. We found evidence indicating a pattern of physical and verbal abuse by some MDC corrections staff against some September 11 detainees. While the OIG is continuing its administrative investigation into these matters, we believe MDC and BOP management should take aggressive and proactive steps to educate its staff on proper methods of handling detainees (and inmates) confined in highly restrictive conditions of confinement, such as the ADMAX SHU. The BOP must be vigilant to ensure that individuals in its custody are not subjected to harassment or more force than necessary to accomplish appropriate correctional objectives.
14. BOP and MDC officials anticipated that some September 11 detainees might allege they were subject to abuse during their confinement. Consequently, they took steps to help prevent or refute such allegations by installing cameras in each ADMAX SHU cell and requiring staff to videotape all detainees’ movements outside their cells. Unfortunately, the MDC destroyed the tapes after 30 days. We recommend that the BOP issue new procedures requiring that videotapes of detainees with alleged ties to terrorism housed in ADMAX SHU units be retained for at least 60 days.
15. We recommend that the BOP ensure that all immigration detainees housed in a BOP facility receive full and timely written notice of the facility’s policies, including procedures for filing complaints. We found that the MDC failed to consistently provide September 11 detainees with details about its Administrative Remedy Program, the formal process for filing complaints of abuse.
16. Some MDC correctional staff asked detainees “are you okay” as a way to inquire whether they wanted their once-a-week legal telephone call. Detainees told the OIG that they misunderstood this question and, consequently, unknowingly waived their opportunity to place a legal call. We recommend that the BOP develop a national policy requiring detainees housed in SHUs to affirm their request for or refusal of a legal telephone call, and that such affirmance or refusal be recorded in the facility’s Legal Call Log.
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17. We recommend that the MDC examine its ADMAX SHU policies and practices in light of the September 11 detainees’ experiences to ensure their appropriateness and necessity. For example, we found that while the MDC offered September 11 detainees exercise time in the facility’s open-air recreation cell, they failed to provide suitable clothing during the winter months that would enable the detainees to take advantage of this opportunity. In addition, we found that the MDC kept both lights on in the detainees’ cells 24 hours a day for several months after they had the ability to turn off at least one of the cell lights.
VII. OVERSIGHT OF DETAINEES HOUSED IN CONTRACT FACILITIES
18. INS Newark District staff conducted insufficient and irregular visits to September 11 detainees held at Passaic. We also found that Passaic officials did not always inform Newark staff when detainees were placed in the SDU and that Newark officials did not always maintain required records for SDU detainees. Consequently, Newark staff was unable to consistently monitor detainee housing conditions, health issues, or resolve complaints. We recommend that the DHS amend its detention standards to mandate that District Detention and Removal personnel visit immigration detainees at contract facilities like Passaic frequently, with special emphasis on those detainees placed in SDUs, in order to monitor matters such as housing conditions, health concerns, and complaints of abuse. District visits should include an interview of and a review of the records for detainees housed in SDUs. We further recommend that the DHS issue procedures to mandate that contract detention facilities transmit documentation to the appropriate DHS field office that describes the reasons why immigration detainees have been sent to SDUs.
19. We recommend that DHS field offices conduct weekly visits with detainees arrested in connection with a national emergency like the September 11 attacks to ensure that they are housed according to FBI threat assessments and BOP classifications (or other appropriate facility classification systems). In addition, the DHS should ensure that the detainees have adequate access to counsel, legal telephone calls, and visitation privileges consistent with their classification.
VIII. OTHER ISSUES
20. How long the INS legally could hold September 11 detainees after they have received final orders of removal or voluntary departure orders in order to conduct FBI clearance checks was the subject of differing opinions within the INS and the Department. A February 2003 opinion by the Department’s Office of Legal Counsel concluded, however, that the
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INS could hold a detainee beyond the normal removal time for this purpose. That issue is also a subject in an ongoing lawsuit. Regardless of the outcome of the court case, we concluded that the Department failed to turn its attention in a timely manner to the question of its authority to detain such individuals. Where policies are implemented that could result in the prolonged confinement of illegal aliens, we recommend that the Department carefully examine, at an early stage, the limits on its legal authority to detain these individuals. 21. The INS failed to consistently conduct Post-Order Custody Reviews of September 11 detainees held more than 90 days after receiving final orders of removal. These custody reviews are required by immigration regulations to assess if detainees’ continued detention is warranted. We understand that under Department policy in effect at the time, the INS was not permitted to remove September 11 detainees until it received FBI clearances. We believe the INS nevertheless should have conducted the custody reviews, both because they are required by regulation and because such reviews may have alerted Department officials even more directly that a number of aliens were being held beyond the 90-day removal period. We recommend that the DHS ensure that its field offices consistently conduct Post-Order Custody Reviews for all detainees who remain in its custody after the 90-day removal period.
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CHAPTER TEN
CONCLUSIONS
In the aftermath of the September 11 terrorist attacks, the Department of Justice used the federal immigration laws to detain aliens who were suspected of having ties to the attacks or terrorism in general. More than 750 aliens who had violated immigration laws were arrested and detained in connection with the FBI’s investigation into the attacks, called PENTTBOM. Our review examined the treatment of these detainees, including their processing, bond decisions, the timing of their removal or release, their access to counsel, and their conditions of confinement. To examine these issues, we focused on the detainees held at the BOP’s Metropolitan Detention Center in Brooklyn, New York, and at the Passaic County Jail in Paterson, New Jersey, because the majority of September 11 detainees were held in these two facilities, and because many complaints arose regarding their treatment.
In conducting our review, we were mindful of the circumstances confronting the Department and the country as a result of the September 11 attacks, including the massive disruptions they caused. The Department was faced with monumental challenges, and Department employees worked tirelessly and with enormous dedication over an extended period to meet these challenges.
It is also important to note that nearly all of the 762 aliens we examined violated immigration laws, either by overstaying their visas, by entering the country illegally, or some other immigration violation. In other times, many of these aliens might not have been arrested or detained for these violations. However, the September 11 attacks changed the way the Department, particularly the FBI and the INS, responded when encountering aliens who were in violation of their immigration status. It was beyond the scope of this review to examine the specific law enforcement decisions regarding who to arrest or detain. Rather, we focused primarily on the treatment of the aliens who were detained.
While recognizing the difficult circumstances confronting the Department in responding to the terrorist attacks, we found significant problems in the way the September 11 detainees were treated. The INS did not serve notices of the immigration charges on these detainees within the specified timeframes. This delay affected the detainees in several ways, from their ability to understand why they were being held, to their ability to obtain legal counsel, to their ability to request a bond hearing.
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In addition, the Department instituted a policy that these detainees would be held until cleared by the FBI. Although not communicated in writing, this “hold until cleared” policy was clearly understood and applied throughout the Department. The policy was based on the belief – which turned out to be erroneous – that the FBI’s clearance process would proceed quickly. Instead of taking a few days as anticipated, the clearance process took an average of 80 days, primarily because it was understaffed and not given sufficient priority by the FBI.
We also found that the FBI and the INS in New York City made little attempt to distinguish between aliens who were subjects of the PENTTBOM investigation and those encountered coincidentally to a PENTTBOM lead. Even in the chaotic aftermath of the September 11 attacks, we believe the FBI should have taken more care to distinguish between aliens who it actually suspected of having a connection to terrorism from those aliens who, while possibly guilty of violating federal immigration law, had no connection to terrorism but simply were encountered in connection with a PENTTBOM lead. Alternatively, by early November 2001, when it became clear that the FBI could not complete its clearance investigations in a matter of days or even weeks, the Department should have reviewed those cases and kept on the list of September 11 detainees only those for whom it had some basis to suspect a connection to terrorism.
The FBI’s initial classification decisions and the untimely clearance process had enormous ramifications for the September 11 detainees. The Department instituted a “no bond” policy for all September 11 detainees. The evidence indicates that the INS raised concerns about this blanket “no bond” approach, particularly when it became clear that the FBI’s clearance process was slow and the INS had little information in many individual cases on which to base its continued opposition to bond. The INS also raised concerns about the legality of holding aliens to conduct clearance investigations after they had received final orders of removal or voluntary departure orders. We found that the Department did not address these legal issues in a timely way.
The FBI’s classification of the detainees and the slow clearance process also had important ramifications on their conditions of confinement. Many aliens characterized by the FBI as “of high interest” to the September 11 investigation were detained at the MDC under highly restrictive conditions. While the FBI’s classification decisions needed to be made quickly and were based on less than complete information, we believe the FBI should have exercised more care in the process, since it resulted in the MDC detainees being kept in the highest security conditions for a lengthy period. At the least, the FBI should
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have conducted more timely clearance checks, given the conditions under which the MDC detainees were held.
Our review also raised various concerns about the treatment of these detainees at the MDC. For example, we found that MDC staff frequently – and mistakenly – told people who inquired about a specific September 11 detainee that the detainee was not held at the facility when, in fact, the opposite was true. In addition, the MDC’s restrictive and inconsistent policies on telephone access for detainees prevented them from obtaining legal counsel in a timely manner.
With regard to allegations of abuse, the evidence indicates a pattern of physical and verbal abuse by some correctional officers at the MDC against some September 11 detainees, particularly during the first months after the attacks. Although most correctional officers denied any such physical or verbal abuse, our interviews and investigation of specific complaints developed evidence that abuse had occurred.
We also concluded that, particularly at the MDC, certain conditions of confinement were unduly harsh, such as illuminating the detainees’ cells for 24 hours a day. Further, we found that MDC staff failed to inform MDC detainees in a timely manner about the process for filing complaints about their treatment.
The September 11 detainees held at Passaic had much different, and significantly less harsh, experiences than the MDC detainees. The Passaic detainees were housed in the facility’s general population and treated like other INS detainees held at the facility. Although we received some allegations of physical and verbal abuse, we did not find evidence of a pattern of abuse at Passaic as we did at the MDC. However, we found that the INS did not conduct sufficient and regular visits to Passaic to ensure the conditions of confinement were appropriate.
In sum, while the chaotic situation and the uncertainties surrounding the detainees’ connections to terrorism explain some of these problems, they do not explain them all. We believe the Department should carefully consider and address the issues described in this report, and we therefore offered a series of recommendations regarding the systemic problems we identified in our review. They include recommendations to ensure a timely clearance process; timely service of immigration charges; careful consideration of where to house detainees with possible connections to terrorism, and under what kind of restrictions; better training of staff on the treatment of these detainees; and better oversight of the conditions of confinement. We believe these recommendations, if fully implemented, will help improve the
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APPENDIX A

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GLOSSARY OF NAMES IN THE REPORT

Ashcroft, John Ayers, David

Attorney General of the United States Chief of Staff to the Attorney General

Becraft, Michael
Bend!, Brian Cadman, Daniel

Acting Deputy Commissioner, Immigration and Naturalization Service
Deputy Warden, Passaic County Jail
Director, National Security Unit, Field Operations Division (INS)

Carpenter, Dea Caruso, Tim

Deputy General Counsel (INS) Deputy Executive Assistant Director (FBI)

Cerda, Victor Chertoff, Michael Cooksey, Michael
Cooper, Owen ("Bo") Elwood, Kenneth Fisher, Alice Hussey, Thomas
Israelite, David Kelley, David
Kerr, Raymond

Chief of Staff to the Commissioner (INS)
Assistant Attorney General, Criminal Division (Department of Justice)
Assistant Director for Correctional Programs
(BOP)
General Counsel (INS)
District Director, Philadelphia District (INS)
Deputy Assistant Attorney General, Criminal Division (Department of Justice)
Director, Office of Immigration Litigation, Civil Division (Department of Justice)
Deputy Chief of Staff to the Attorney General
Deputy United States Attorney, Southern District of New York (Department of Justice)
Supervisory Special Agent in Charge, I-44A Squad, New York Field Office (FBI)

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Kinnally, Tom
Laufman, David Levey, Stuart Levin, Dan Maxwell, Kenneth
Meyers, Charles Maleria, Dan
Mueller, Robert Parkinson, Larry Pearson, Michael
Perkins, Kevin Pickard, Thomas
Quarantillo, Andrea Rardin, David Ray, Mickey Rolince, Michael
Rozos, Michael Thompson, Larry Vanyur, John

Chief, National Domestic Preparedness Office (FBI)
Chief of Staff to the Deputy Attorney General
Associate Deputy Attorney General
Counselor to the Attorney Genera)
Assistant Special Agent in Charge, New York Field Office (FBI)
Warden, Passaic County Jail
Assistant District Director for Investigations, INS New York District
Director, Federal Bureau of Investigation
General Counsel (FBI)
Executive Associate Commissioner for Field Operations (INS) Section Chief, Inspection Division (FBI)
Deputy Director, Federal Bureau of Investigation District Director, Newark District (INS)
Former Director, Northeast Region (BOP)
Director, Northeast Region (BOP)
Chief, International Terrorism Operations Section, Counterterrorism Division (FBI)
Chief, Long Term Review Branch (INS)
Deputy Attorney General
Senior Deputy Assistant Director, Correctional Programs Division (BOP)

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Venturella, David Watson, Dale Wray, Chris Zenk, Michael Ziglar, James

Deputy Executive Associate Commissioner, Office of Detention and Removal (INS)
Assistant Director, Counterterrorism Division (FBI)
Principal Associate Deputy Attorney General
Warden, Metropolitan Detention Center (BOP)
Commissioner, Immigration and Naturalization Service

Note: Individuals mentioned by name in the report are, for the most part, identified using the titles they held at the time of the event or action under examination.

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ADMAXSHU A-File BIA BOP BOP Region
CIA CRU Department DHS D&R
EC
EOIR FBI FBI Field Office

GLOSSARY OF TERMS

Administrative Maximum Special Housing Unit (BOP)

Alien File -maintained by the INS; contains an alien's immigration history.

Board of Immigration Appeals, Department of Justice
Federal Bureau of Prisons
The BOP divides the United States into six regions; each region is responsible for BOP facilities located within its jurisdiction.

Central Intelligence Agency

Custody Review Unit (INS)

U.8. Department of Justice

Department of Homeland Security

Office of Detention and Removal -the INS division responsible for detaining aliens pending their removal from the United States for violating immigration laws.

Electronic communication refers to a messaging system used by the FBI to electronically communicate between FBI offices or within an FBI office.

Executive Office of Immigration Review (Department of Justice)

Federal Bureau of Investigation

The FBI operates 56 Field Offices located in

cities throughou~

United States.

1

Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 3 of 11

Habeas corpus
I-44A Squad
IGA INA INS INS Custody List INS District INS Form G-28 INS Form 1-213 INS Form 1-286

---
Latin term literally translated as "that you may have the body," refers to a legal pleading in which a federal court is requested to order a government official to undertake a particular action.
Unit created by the FBI's New York Field Office to follow up on PENTTBOM leads. This squad also had responsibility for clearing detainees arrested in connection with the PENTTBOM investigation in the New York City area.
Intergovernmental Service Agreement; in this review, relates to a contracts between government agencies to provide services.
Immigration and Nationality Act -created by Pub. L. No. 82-414 (1952) and as amended by Pub. L. No. 107-296 (2002).
Immigration and Naturalization Service (as of March 1,2003, part of the Department of Homeland Security)
The list maintained by the INS containing names of September 11 detainees.
The INS operated 33 Districts located in cities throughout the United States; each District was responsible for administering immigration programs within its jurisdiction.
Notice of Entry of Appearance as Attorney or Representative -filed with the INS by the attorney of record representing a detainee.
Record of Deportable/Inadmissible Alienthe INS arrest report.
Notice of Custody Determination -form used by an INS detainee to request a bond re-determination hearing.

2

Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 4 of 11

INS Form 1-862

Notice to Deportable Alien -also known as the Notice to Appear or NTA (the "charging document" in an immigration case).

INS Region

The INS field structure included three regions -Eastern, Central, and Westernthat reported to INS Headquarters and were responsible for administering immigration programs within their jurisdictions.

ITOS

International Terrorism Operations Section, Counter-terrorism Division (FBI)

JTTF

Joint Terrorism Task Force -multi-agency terrorism task force led by the FBI.

Management Interest Group 155 Second designation applied to September 11 detainees held at MDC (first designation was
"Witness Security" inmates or WITSEC).

MCC

Metropolitan Correctional Center in Manhattan, New York (BOP)

MDC

Metropolitan Detention Center in Brooklyn, New York (BOP)

NSLD

National Security Law Division, Office of the General Counsel (INS)

NSLU NSU

National Security Law Unit, OGC (FBI)
National Security Unit, Field Operations Division (INS)

NTA

Notice to Appear -INS Form 1-862, Notice to Deportable Alien (the "charging document" in an immigration case).

OGC GIG

Office of General Counsel
Office of the Inspector General (Department of Justice)

OIL

Office of Immigration Litigation, Civil

Di~on (Departme-!:!! of Justice) ~

3

Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 5 of 11

OLC Passaic County Jail PENTrBOM POCR
Pro Bono List
SENTRY SDO SDU SHU SIOC SIOC Working Group

Office of Legal Counsel (Department of Justice)
Referred to as "Passaic" in the report, the jail is located in Paterson, New Jersey.
Name given to the FBI's investigation of the September 11, 2001, Pentagon/Twin Towers Bombings.
Post Order Custody Review -the INS review required after a detainee has remained in INS custody for 90 days after issuance of a final order of removal by an Immigration Judge. The purpose of the review is to determine whether the detainee's continued detention is warranted.
A list of attorneys willing to represent immigration clients without compensation. The INS is required to provide this list to detainees.
Database used by the BOP to monitor the move men t and management of all BO P inmates.
Supervisory Detention Officer (INS)
Special Detention Unit (Passaic)
Special Housing Unit (MDC)
Strategic Information and Operations Center at FBI Headquarters in Washington, D.C.
Group established to coordinate efforts among the various Department components that had an investigative interest in or responsibility for the September 11 detainees. This group became known as the "SIOC Working Group" because its initial meetings took place in the FBI's SIOC. Members of the group included representatives f~ the FBI, INS, t~
4

Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 6 of 11

SPC
Special SIS Case
SSA TVCS USA PATRIOT Act
USMS WITSEC

Department's Office of Immigration Litigation, the Terrorism and Violent Crime Section of the Department's Criminal Division, and the Office of the Deputy Attorney General.
Service Processing Center -facility where the INS processes and detains illegal aliens who are awaiting disposition of their immigration cases or awaiting removal from the country.
Third designation used by the BOP for September 11 detainees. The MDC's Special Investigative Staff (SIS) supervised information and visitation policies concerning September 11 detainees.
Supervisory Special Agent (INS, FBI)
Terrorism and Violent Crime Section, Criminal Division (Department of Justice)
The Uniting and Strengthening America by Providing Appropriate Tools Required to In tercept and Obstruct Terrorism Act (Pub. L. No. 107-56 (2001).
United States Marshals Service
"Witness Security" inmate -WITSEC was the first designation applied by the BOP to the September 11 detainees.

5

Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 7 of 11

Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 8 of 11

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Case 1:02-cv-02307-JG-SMG Document 589-4 Filed 04/17/2007 Page 11 of 11

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 1 of 19

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 2 of 19

U.S. DepartmenotfJustice
Immigration and Nanmtlillltion Savice
in removalproceedingsunder section240 of the Immigration and Nationality Act:
In the Matter of: Respondent:

Notice to
File No: currently residing at:

.(Number.

street, city. state and ZIP code)

0 1. You are an arriving alien. 0 2. You are an "lien present in the United Stateswho has not beenadmitted nr paroled.

0 3. You have beenadmitted to the United States.but are deportable fnr the re"sonsst"ted below.

The Serviceallegesthat you:

(Area code and phone number)

On the basisof the foregoing, It is charged that you are subject to removal from the United Statespursuant to the following provision(s) of law:

0 This noticeis being issuedafter an asylum officer has found that the respondenthasdemonstrated a credible fear of persecutionor torture

Section23S(b}(1)order was vacated pursuant to:

0 8 CFR 208.30(1)(2) 0 8 CFR 23S.3(b)(S)(iv}

YOU ARE ORDERED to appear before an immigration judge of thl'linited States Department of Justice at:

on

at

the charge(s)set forth above.

Date:

(Complete Address of Immigration Court, including Room Number, if any)--

to showwhY vou should not be removedfrom the United Statesbasedon

(Date)

~ r,me)

(Signature andTltl. of 1';5UioltOm~.r) (City and State)

Seereversefor important information

Form 1-862 (Rey ;1.22/9'/)101

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 3 of 19

Notice to Respondent
Warning: Any statementyou make may be used againstyou in removal proceedings.
Alien Registration: This copy of the Notice to Appear served upon yml i~ ,'vidence of your alien registration while you are under removal proceedings. You are required to carry it with you at all time~.
Representation: If you so choose,you maybe representedin this proceeding.atno expenseto the Government,by an attorneyor otherindividual authorizedandqualified to represenpt ersonsbeforethe ExecutiveOffice for Immigration Review,pursuanto 8CFR 3.16. Unlessyou so request,no hearingwill be scheduledearlierthan lendaystrom thedateof this notice,to allow you sufficient time to securecounsel. A list of qualified attorney~andorganizations\\ hi' mavheavailableto representyou atno costwill provided with this Notice.
Conduct of the bearing: At the time of your hearing, you should bring with you any affidavits or other documents which you desire to have considered in connection with your case. If any document is in a foreign language, you must bring the original and a certified English translation of the document. If you wish to have the testimony, ,rallY \\'itnesses considered, you should arrange to have such witnesses present at the hearing.
At yourhearingyou will be giventhe opportunityto admitor denyanyor all of the allegationsin the Notice to Appearand that you areinadmissibleor deportableon the chargescontainedin theNoticeto Appear You will havean opportunityto presentevidenceon yourown behalf,to examineanyevidencepresentedby theGovernment.In objecl,on properlegal grounds,to the receiptof evidence andto crossexamineanywitnessespresentedby theGovernment. AI the,,'nclu~jonof your hearing,you havea right to appealan adversedecisionby the immigrationjudge.
You will be advised by the immigration judge before whom you appear of .my relief from removal for which you may appear eligible including the privilege of departing voluntarily. You will be given a rea~"nablt. opportunity to make any such application to the immigration judge.
Failure to appear: You arerequired 10provide the INS, in writing, with your full mailing addressandtelephonenumber. You.must notify the Immigration Court immediatelyby using Form EOIR-33wheneveryou changeyour addressor telephonenumberdunng thecourseof this proceeding. You will beprovided with a copyof this tom!. Noticesof hearing will bemailed to thiSa~dress. If you do not submit Form EOIR-33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shall not be required to provide you with written notice of your hearing. If you fail to attend the hearing at the time and place designated on this notice, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained hy the INS.
Requesftor PromptHearing
To expedite a detennination in my case. r request an immediate hearing I '..al\ e my right to have a la-day period prior to appearing before an immigration judge.

Before:
{Signature and Title of INS Officer}

Date:

(Signature of Respondent)

Certificate of Service This NoticeTo Appearwasservedon the respondentby me on ---

compliance with section 239(a)( I )(F) of the Act:

I Dal':.

.in the following mannerand in

0 in person

n by certified mail. returnreceiptrcl.\ue~ted 0 by regular mail

0 Attachedis a crediblefear worksheet.

0 Attachedis a list of organizationsandattorneyswhichprovidefree legal'It:rvices.

The alienwasprovided oral notice in the

languageof thetime andplaceof his or her

andof the consequenceosf failure to appearasprovided in section240Ib)I~) of the-Ahcet.aring

(Signatureof Respondentif Pe~nal\y Served)

-(Signature

and Title of Officer)

Fonn 1-862(Rev 3i22:99)N

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 4 of 19

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 5 of 19
u.s. Departmentof Justice
FederalBureau of Investigation
-
Washington, D. C. 20535-0001
December 12;2001

Mr. MichaelE. Pearson ExecutiveAssociateCommissioner
Field Operations ImmigrationandNaturalizationService

Re: PENn'BOM-FBI Major Case#182-INS Custody List

DearMr. Pearson:

Pleasebe advised that after consultation with FBI Headquartersand the appropriate field offices, the FBI hasdetennined that presently there is no investigative interest in the following persons in connection with the PENTTBOM investigation:

~E

DATE OF BIRTH INS NUMBER

As a result, the FBI consentsto the removal of the above listed personsfrom the Immigration and Naturalization's Custody List that was created in connection with this investigation.
Sincerely,
-"YlL.~..t<-~~-"<t:-". G.e.-:'~d{ Michael E. Rolince Chief InternationalTerrorism OperationsSection CounterterrorismDivision

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 6 of 19
APPENDIX F'

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 7 of 19

U.s. Departmentof Justice ImmigrationandNaturalizationService

Record of Deportable/Inadmissible Alien

Address

Date,PlaceT, ime,and Mannerof LastEntry Nwnbcr, Street, City, Province (State) and CQ(U1tryofPcrmancnt Rcsidcncc

PassengerBoardcdol

Date of Birth City, Province (Stale) and Counuy of Birth NlV Issuing Post and NlY Number Dale Visa Issued

Dale of Action AR0 I Form:(Typew No. SocialSccwityAccounNt ame Social Security Nwnbcr

I Location Code
Lifted0 NO! Liftcd 0

Immisration Record

Criminal Record

Hair

EYQ

Cmplxn

Height

Weight Occupation

Scarms MalbF,B,!

Number I g ~~ 0 Malried
Ig~=;:; ';:;:;1cd
Method of Location! Apprehensioo

AI/Near

IDate/Hour.

tly

Statusat Ently

Istatus When Found

Lengthof Timen..1y inu.s.

Name, Addrcsa, and Nationality of Spouse(Maidcn Name, if Approprialc) FaIhcr'.Name,Nationality,andAddr~, if Known

Number ond Nationality ofMilllX Children Mother'. Presenat ndMaidenNamesN, ationalitya, ndAddressi,f Known

Maties DueIPropertiynU.S. Not in ImmediatePossession

Fingerprinted?0 Yes 0 No INS S~tcmsChecks CharseCodeWor«.)

Namc and Address of(Lasl)/(Cwrent) U.S. Employcr

Type of Employment

Salary

(Employedf"'mlla Hr.

Narrative (Outline particulars wider which alicn waslocatcd/apprchcndcd. Includc dclails not shownabove rcgardingtimc, placc andmarmcr of last cnlly .aucmptcd cnlry, or any other cnuy, and elcmentswilich establish administrative and/or criminal violation Indicate meansandroute of mvel to interilY)

Alien has beenadvised of communication privileges. Distribution:

(Date/Initials)

(SignaturcandTitlc of INSOfficial)

Received (Subject and Docwnents) (Report oflnterview)

Officer

Fonn {-213 (Rev 4/1197)Y US.

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 8 of 19

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 9 of 19

V.s,~p'artll1~t of Jwtice l1ttmi&J'abaannd NatUtalizatianServicc

File No: Date:

..-
Pursuantto the authoritycontainedin section236 of the ImmigrationandNationality Act andpart 236 of title 8, Codeof FederalRegulations,I havedetem1inedthatpendinga fInal detenninationby the immigrationjudge in your case,and in the eventyou areordercd~moved from theUnited States,W. itil you are takeninto custodyfor removal, you shallbe:

(] detainedin the custodyof this Service.

[J releasedunderbond in the amountof $

.

0 releasedon your own recognizance.

0 Y oumay requesta review of this detem1inationby an immigrationjudge. D You may not requesta reviewof this detenninationby an immigrationjudge becausethe Immigrationand Nationality Act prohibits your releasefrom custody.

(Si~ allIJlheri2Cd~_)
(T- II~ot~%c4 off.-)

(D4S otliO1CIce

)

[:I I do a do not rcqucBt atedetermination of this ~ustody decision by an immisrationjud~e. a I acknowledgere<;eipot f tW notification.

(Si...IIu~o("~a1t)

(bAt.)

RESULT OF CUSTODYREDETERMINAnON

On

custodystatus/conditionsfor releasewerereconsideredby:

C lnunigration Judge

Q District Director

[J Board of Immigration Appeals

The results of the redetenninationlreconsideration are:

C No change -Original determination upheld.

D Release -Order of Recognizance

(J Detain in custody of this Service.

D Release -Personal Recognizance

() Bond amount reset to

-~

CJOther:

(Si~b1re or offi=J

Foom"'2U~.4-,.Jj1)W

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 10 of 19

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 11 of 19 v~- uc!"a."'"G...va~.--
Inlmigration ~!RdNatumization Service

omcc o{th~ Executive ASSOCiaCteommissioner

HQOPS son 8 .C
42.51 SVUI/IH' Wa:hilllton. m: 20J36

FEe 11 2002

SUBJECT: Removal of.-

~:._-,~From INS Cus~ody LiSt

A detemlmation has been made that

,

J. 3$

not of investigativeinterestto the FederalBureauof Investigation. As a result, the

SUBJECTbas beenremovedfrom the JNS O.1StodLyist. Pleasefollow normal due

processproceduresin the handlingof tbis caseandadvisethe CUStodyReview Unit if

the SUBJECTis releasedor removedfrom thetlnited Sf~te.<.

.

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 12 of 19

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 13 of 19

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 14 of 19
APPENDIX J

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 15 of 19

(/

-~

u.s. Department of Justice Federal Bureau of Prisons
Washington, DC 20534
March 29, 2002

MEMORANDUM FOR ALL CHIEF EXECUTIVE OFFICERS

FROM: SUBJECT:

//s// Michael B. Cooksey, Assistant Director Correctional Programs Division
Assignment of Inmates to Management Interest Group 155/Release of Inmates to General Population

Based on recent information

from the Federal Bureau of

Investigation

(FBI), inmates listed on the attached page are no

longer of interest to the FBI as related to the PENTTBOM or

subsequent investigations.

These inmates will be removed from

Management Interest Group 155 and are no longer required to be

housed subject to the conditions outlined in my October 1, 2001,

memorandum, entitled

"Guidance for Handling of Terrorist

Inmates

and Recent Detainees."

Unless you have reason to do otherwise,

these inmates can now be housed in general population

(GP), and

may be subject to the same conditions as any other inmate or

detainee in your facility

that is a GP inmate. However, we

suggest you place these inmates on your regular telephone and mail monitoring lists for the immediate future.

As information

is received from the FBI, updates

provided as to other inmates who can be released

you for your ongoing assistance in this matter.

will be to GP. Thank:~ If you have any~

questions regarding this matter, feel free to contact either

.:':.;

John Vanyur or Bill Taylor, Chief of Intelligence.

~j

I
',\

-."-
~
.:>
'-oJ

~-
-<::: ~=)::> ::,-,": ,... ,=:::' .
~~!:;~.;.";
... ..

SENSITIVE
LIMITEDOFFICIALUSEONLY

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 16 of 19

INMATES IN BOP CUSTODY WITH INS/FBI LETTERSINDICATING "NO INTEREST'

~

Re!!isterNumber Institution

Quarters

MDC Brooklyn May return to GP

Case 1:02-cv-02307-JG-SMG Document 589-5 Filed 04/17/2007 Page 17 of 19
APPENDIX K

Case 1:02-cv-02307-JG-SMG Document 589-5u.s. FDilepda0r4tm/1e7/n2ot0f0J7usticPeage 18 of 19
Office of the Deputy Attorney General

Th.: Deputy At!1,rncy Generoll

1t(J.I'hingIIJnD. .C. 20530

r".)

~;J

April 4, 2003

:- ~

MEMORANDUM TO: GLENN A. FINE INSPECTOR GENERAL

FROM:

LARRY D. THOMPSON DEPUTY ATTORNEY GENERAL

SUBJECT:

DIG Review of Seutember 11 Detainees

~."!
"J i-.)

I am writing in responseto your requestthat I review and comment on the mG's Draft Report concerning the September11 detainees.
In considering the issuesraised about the detention and removal of the September11 detainees, in Chapter Six, it is important to take into account the circumstances and atmosphere within the Department of Justice during that period. On September11,2001, terrorists murdered 3,000 innocent people on American soil. The period thereafter was one of tremendous intensity as the Department was required immediately to alter its central mission to the prevention of further acts of terrorism.
The circumstances required the Departmentto respond, in a crisis atmosphere,to hundreds of novel issues. The members of my staff who tried to coordinate theseissueshad to shoulder a monumental task and workload. They had a great number of other responsibilities during this period as part of our comprehensive effort to protect the American people from further acts of terrorism.
The detention of those illegal aliens suspectedof involvement with terrorism was paramount to that mission. My staff understood that the immigration authorities of the Department should be used to keep suchpeople in custody until we could satisfy ourselves -by the FBI clearance process-that they did not meanto do us harm.
Given those circumstances, I respectfully submit that it is unfair to criticize the conduct of members of my staff during this period. In light of the imperative placed on these detentions by the Department, I would not have expected them to reconsider the detention policy in the absence of a clear warning that the law was being violated. It is clear from the Draft Report that that did not occur until January2002. When the issuewas squarely presented, it is apparentthat they promptly did the right thing: they changedthe policy.

Case 1:02-cv-02307-JG-SMG
-
Memorandum to Glenn A. Fine
Page 2

Document 589-5

Filed 04/17/2007 Page 19 of 19

To the extent that OIG still believes that criticism is warranted, I ask that it be directed at my Office as a whole rather than at the individual membersof my staff who, as indicated above, acted in accordance with my expectations.
I ask that you include the text of this letter in the section of your report analyzing the removal of the September11 detainees.

 
 Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

2005 WL 2375202 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Ehab ELMAGHRABY and Javaid Iqbal, Plaintiffs, v.
John ASHCROFT, Attorney General of the United States, Robert Mueller, Director of the Federal
Bureau of Investigation, Michael Rolince, former Chief of the Federal Bureau of Investigation’s International Terrorism Operations Section, Counterterrorism Division; Kenneth Maxwell, former Assistant Special Agent in Charge, New
York Field Office, Federal Bureau of Investigations; Kathleen Hawk Sawyer, former Director of the
Federal Bureau of Prisons; David Rardin, former Director of the Northeast Region of the Bureau of
Prisons; Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau of Prisons; Dennis Hasty, former Warden of the
Metropolitan Detention Center, Michael Zenk, Warden of the Metropolitan Detention Center;
Linda Thomas, former Associate Warden of Programs of the Metropolitan Detention Center; Associate Warden Sherman, Associate Warden of Custody for the Metropolitan Detention Center;
Captain Salvatore Lopresti; Lieutenant Steven Barrere; Lieutenant William Beck; Lieutenant
Lindsey Bledsoe; Lieutenant Joseph Cuciti; Lieutenant Thomas Cush; Lieutenant Howard Gussak; Lieutenant Marcial Mundo; Lieutenant
Daniel Ortiz; Lieutenant Elizabeth Torres; Corrections Officer Reynaldo Alamo; Corrections Officer Sidney Chase Corrections Officer James
Clardy; Corrections Officer Raymond Cotton; Corrections Officer Michael Defrancisco;
Corrections Officer Richard Diaz; Corrections Officer Jai Jaikisson; Corrections Officer Dexter
Moore; Corrections Officer Jon Osteen; Corrections Officer Angel Perez; Corrections Officer Scott Roseberry; Unit Manager Clemmett Shacks; Nora Lorenzo, Physician’s Assistant; “John Doe” Corrections Officers Nos. 1-19, “John Doe” being fictional first and last names, and the
United States of America, Defendants.
No. 04 CV 01809 JG SMG. | Sept. 27, 2005.
Attorneys and Law Firms
Alexander A. Reinert, Koob & Magoolaghan, New York, NY, for plaintiffs.
Haeyoung Yoon, Urban Justice Center, New York, NY, for plaintiffs.

Stephen E. Handler, U.S. Department of Justice, Benjamin Franklin Station, Washington, DC, for the United States.
Paul J. McNulty, United States Attorney for the Eastern District of Virginia, Alexandria, VA, By: Larry Lee Gregg, for Defendant John Ashcroft.
Kenneth L. Wainstein, United States Attorney, Washington, D.C., By: R. Craig Lawrence, for Defendant Robert Mueller.
Lauren Resnick, Baker & Hostetler LLP, New York, NY, for Defendant Michael Rolince.
Leslie R. Caldwell, Morgan Lewis & Bockius, New York, NY, for Defendant Kenneth Maxwell.
Mark E. Nagle, Sheppard, Mullin, Richter & Hampton LLP, Washington, DC, for Defendant Kathleen Hawk Sawyer.
William E. Lawler, Vinson & Elkins, Washington DC, for Defendant Michael Cooksey.
Raymond R. Granger, New York, NY, for Michael Rardin.
Michael L. Martinez, Crowell & Moring, Washington, D.C., for Defendant Dennis Hasty.
Allan N. Taffet, Duval & Stachenfeld, New York, NY, for Defendant Michael Zenk.
Cary M. Feldman, Feldesman Tucker Leifer Fidell LLP, Washington, DC, for Defendant Nora Lorenzo.
Opinion
MEMORANDUM AND ORDER
GLEESON, J.
*1 Plaintiffs Ehab Elmaghraby and Javaid Iqbal are Muslim men from Egypt and Pakistan, respectively, who were arrested on criminal charges in the months following September 11, 2001, and detained at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York.1 Plaintiffs allege that they and other Muslim men were arbitrarily classified as persons “of high interest” to the government’s terrorism investigation following the September 11 attacks, and accordingly were housed in the Administrative Maximum Special Housing Unit (the “ADMAX SHU”) of the MDC instead of in a general population unit of the facility. Neither plaintiff was
1

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

afforded the opportunity to contest his classification or continued confinement in the ADMAX SHU. Elmaghraby remained confined there for the entire time he was detained in the MDC-from October 1, 2001 until August 28, 2002. Iqbal remained in the ADMAX SHU from January 8, 2002, when he was transferred there from the general population, until the end of July 2002, when he was returned to the general population.

1

Elmaghraby was arrested on September 30, 2001.

Charged with violating 18 U.S.C. § 1029

(producing/trafficking in a counterfeit device),

Elmaghraby pleaded guilty on February 13, 2002, and

was sentenced to a 24-month term of imprisonment on

July 22, 2002. A criminal complaint was filed against

Iqbal on November 5, 2001, charging him with

violations of 18 U.S.C. §§ 371 & 1028 (conspiracy to

defraud the United States and fraud with identification).

He pleaded guilty on April 22, 2002, and was sentenced

to a 16-month term of imprisonment on September 17,

2002. See Docket Reports for United States v.

Elmaghraby, Docket No. 01-cr-1175 (ILG); United

States v. Iqbal, Docket No. 01-cr-1318 (ILG).

Plaintiffs allege that during their confinement in the ADMAX SHU, they were subjected to, among other things, severe physical and verbal abuse; unnecessary and abusive strip and body-cavity searches; extended detention in solitary confinement; deliberate interference with the exercise of their religious beliefs; and deliberate interference with their attempts to communicate with counsel. In addition, plaintiffs allege that they were denied adequate exercise, nutrition, and medical treatment. As a result of their treatment while in detention, plaintiffs allege that they suffered severe physical injuries, emotional distress and humiliation.
Plaintiffs further allege that they were subjected to these harsh conditions because of their race, national origin, and religion, and that their continued detention under these conditions stemmed from a discriminatory policy created by high-level officials in the executive branch of the federal government.
Plaintiffs allege violations of their constitutional rights under the First, Fourth, Fifth, Sixth, and Eighth Amendments and seek damages pursuant to principles set forth in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs also assert claims under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350; the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb; the civil rights conspiracy statute, 42 U.S.C. § 1985(3); and the Federal Tort Claims (“FTCA”), 28 U.S.C. § 2671 et seq.
In addition to bringing claims against the MDC officers with whom they had direct contact, plaintiffs name as

defendants former Attorney General John Ashcroft; Robert Mueller, the Director of the Federal Bureau of Investigation (“FBI”); Michael Rolince, the former Chief of the Counterterrorism Division of the FBI’s International Terrorism Operations Section; Kenneth Maxwell, the former Assistant Special Agent in Charge of the FBI’s New York Field Office; Kathleen Hawk Sawyer, the former Director of the Bureau of Prisons (“BOP”); Michael Cooksey, the former Assistant Director for Correctional Programs of the BOP; and David Rardin, the former Director of the Northeast Region of the BOP. These defendants have moved to dismiss all the claims against them, as have Dennis Hasty and Michael Zenk (the former and current Wardens of the MDC, respectively), and Nora Lorenzo (a physician’s assistant at the MDC) .2 The United States has also moved pursuant to the Liability Reform Act, 28 U.S.C. § 2679, to be substituted as the sole defendant on the claims brought under the Alien Tort Statute and for dismissal of those claims.

2

For ease of discussion, I refer to the individual

defendants who have moved to dismiss as, collectively,

“defendants.” In addition, I refer to certain sub-groups

of defendants as follows: Mueller, Rolince, and

Maxwell as “the FBI Defendants”; Hawk Sawyer,

Cooksey, and Rardin as “the BOP Defendants”; Hasty

and Zenk as “the Wardens,” and MDC officials other

than the Wardens as “MDC Defendants.”

*2 For the following reasons, the motions to dismiss are granted in part and denied in part.

BACKGROUND

A. Overview For the purposes of this motion, I assume, as I must, that plaintiffs’ allegations are true.3 On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States, including the World Trade Center. See Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2635 (2004). Approximately 3,000 people were killed in those attacks. Id. In the months following September 11, the FBI arrested and detained thousands of Arab Muslim men (designated herein as “post-September 11 detainees”) as part of its investigation into the attacks.4

3

On a motion to dismiss pursuant to Fed.R.Civ.P.

12(b)(6), a court must assume as true all factual

allegations made in the complaint. See Bolt Elec., Inc.

v. City of New York, 53 F.3d 465, 469 (2d Cir.1995).

2

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

4

While motions to dismiss are evaluated based on facts

alleged in the complaint, this does not mean that the

complaint must be viewed in a factual vacuum.

Following the attacks on September 11, 2001, the FBI

immediately initiated a massive investigation into the

attacks. See United States Department of Justice, Office

of Inspector General, The September 11 Detainees: A

Review of the Treatment of Aliens Held on Immigration

Charges in Connection with the Investigation of the

September 11 Attacks 1 (April 2003) (the “April 2003

OIG Report” ). Within 3 days, more than 4,000 FBI

Special Agents and 3,000 support personnel were

assigned to work on the investigation. Id. at 11-12. By

September 18, 2001, the FBI had received more than

96,000 leads from the public. Id. at 12.

Plaintiffs allege that FBI officials Rolince and Maxwell classified them, along with many post-September 11 detainees, as persons “of high interest” to the government’s terrorism investigation. Plaintiffs assert that they were classified as such based solely on their race, religion, and national origin, and not on any evidence of their involvement in supporting terrorist activities. Indeed, plaintiffs allege that within the New York area, “all Arab Muslim men arrested on criminal or immigration charges while the FBI was following an investigative lead into the September 11th attacks-however unrelated the arrestee was to the investigation-were immediately classified as ‘of interest’ to the post-September-11th investigation.” (Compl.¶ 52.)
Plaintiffs and other “of high interest” detainees were confined in the ADMAX SHU, a special housing unit at the MDC created specifically to house post-September 11 detainees in highly restrictive conditions (“Administrative Maximum” refers to the most restrictive type of detention permitted under BOP procedures).5 Plaintiffs allege that former Warden Hasty, Associate Warden Sherman, and Captain Salvatore Loprestri selected the officers to work in the ADMAX SHU. Further, plaintiffs allege that the procedures for handling detainees within this restrictive unit were developed by Sherman, Lopestri, and Lieutenant Joseph Cuciti at the request of Hasty.

5

See 28 C.F.R. § 541.22 (“Administrative detention is

the status of confinement of an inmate in a special

housing unit in a cell either by self or with other

inmates which serves to remove the inmate from the

general population.”). Prior to September 11, the MDC

had a special housing unit, but it did not have one

designated as Administrative Maximum, which

provides more restrictive confinement than normal

SHUs. See April 2003 OIG Report at 118-119.

As discussed below, the conditions in the ADMAX SHU were highly restrictive. Detainees were kept in solitary confinement. When they were moved, they were escorted

by four officers and restrained with handcuffs and leg irons (a “four-man hold restraint policy”). Hand-held cameras were used to record detainee movements, and video cameras were placed in each cell.
For many weeks, Elmaghraby and other post-September 11 detainees were subjected to a communications blackout that barred them from receiving telephone calls, visitors, or mail. During this period, Elmaghraby and other detainees were unable to make contact with their attorneys or their families. In addition, MDC employees often turned away attorneys and family members by falsely stating that the individual detainee was no longer housed in the MDC. When detainees were allowed visitors, a clear partition separated the parties so that no physical contact was possible.
*3 Plaintiffs and other post-September 11 detainees were not provided with the periodic individual reviews required by BOP regulations to determine whether their continued detention in the ADMAX SHU was appropriate.6 Instead, post-September 11 detainees were held in the ADMAX SHU until the FBI “cleared” them of connections to terrorist activity and approved their release to the general population. Post-September 11 detainees remained in the ADMAX SHU until Michael Cooksey, the Former Assistant Director for the Correctional Programs of the BOP, issued a memorandum approving the release of the individual detainee into the general population unit.

6

See 28 C.F.R. § 541.22(c) (requiring formal reviews

and hearings for each inmate in administrative

detention to determine whether their continued

administrative detention is warranted).

Plaintiffs allege that this “hold until cleared” policy was approved by former Attorney General Ashcroft and FBI Director Mueller “in discussions in the weeks after September 11, 2001.” (Compl.¶ 69.) Further, plaintiffs allege that (1) on October 1, 2001, Cooksey directed that all “of high interest” detainees be confined in the most restrictive conditions possible until cleared by the FBI; (2) former BOP Director Hawk Sawyer was aware and approved of this policy of restrictive detention for “of high interest” detainees; (3) Rolince and Maxwell were responsible for determining whether a post-September 11th detainee had been “cleared” of any connection to terrorist activities; (4) FBI officials in Washington, D.C. were aware that the BOP relied on the FBI’s “high interest” classification to determine whether to detain prisoners in the ADMAX SHU of the MDC; (5) notwithstanding that awareness, Ashcroft, Mueller, and Rolince failed to impose deadlines for the clearance process; (6) as a result, numerous detainees, including plaintiffs, were held in the ADMAX SHU for extended periods of time although there was no evidence linking
3

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
them to terrorist activity; and (7) Rolince and Maxwell failed to approve post-September 11th detainees’ release to the general population because of the detainees’ race, religion, and national origin, and not on any evidence that continued detention in the ADMAX SHU was important or relevant to the FBI’s investigation of the events of September 11, 2001.

B. Conditions of Confinement in the ADMAX SHU Elmaghraby was arrested on September 30, 2001 by local and federal law enforcement agents. On October 1, 2001, Elmaghraby was brought to the MDC and housed in the ADMAX SHU. He remained confined in this highly restrictive unit throughout his detention at the MDC, until August 28, 2002. Iqbal was arrested on November 2, 2001 by INS and FBI agents. On November 5, 2001, Iqbal was taken to the MDC and housed in the general population on the fifth floor. He was transferred to the ADMAX SHU on January 8, 2002, and remained in detention there until the end of July 2002, at which time he was released back to the general population.
Plaintiffs allege that while detained in the ADMAX SHU they were (1) kept in solitary confinement; (2) prohibited from leaving their cells for more than one hour each day with few exceptions; (3) verbally and physically abused; (4) routinely subjected to humiliating and unnecessary strip and body-cavity searches, (5) denied access to basic medical care; (6) denied access to legal counsel; (7) denied adequate exercise and nutrition; (8) housed in small cells where the lights were left on almost 24 hours a day;7 (9) deliberately subjected to air conditioning during the winter months and heat during the summer months; (10) deprived of adequate bedding or personal hygiene items;8 and (11) they were deprived of adequate food, as a result of which Iqbal lost over 40 pounds (and suffers from persistent digestive problems) and Elmaghraby lost 20 pounds.

7

The 24-hour lighting of the cells ended in March 2002.

(Compl.¶ 84.)

8

For the first three months of his confinement,

Elmaghraby was not given a blanket, pillow, mattress,

or any toilet paper; Iqbal was never provided with

pillows or more than one blanket.

*4 Plaintiffs further allege that they were subjected to continuous verbal abuse from the MDC staff. For example, Iqbal was called a terrorist by Zenk; “a terrorist and a killer,” by Lieutenant Howard Gussak; a “Muslim bastard” by Officer Raymond Cotton; and a “Muslim killer” by Officer Perez. Elmaghraby was called a terrorist

by Unit Manager Clemmett Shacks, was told that “a terrorist should not ask for anything” by Cotton, and, when he requested a pair of shoes, former Associate Warden of Programs Linda Thomas responded “no shoes for a terrorist.”
Whenever plaintiffs were removed from their cells, they were handcuffed and shackled around their legs and waist. On the rare occasions when they were permitted to exercise, the officers subjected them to the harsh effects of the weather for purely punitive reasons. For example, during the winter months, MDC officers left Elmaghraby outside in the open-air recreation area for hours without a proper jacket or shoes. As the weather became milder, he was permitted to remain outside for only 15 minutes. In the summer months, when it was extremely hot and humid, Elmaghraby was again left outside for hours. Iqbal was also not provided with proper clothing when permitted to exercise in the winter. In addition, on certain days when it rained, Iqbal was left out in the open-air recreation area for hours. When he was brought back to his cell, drenched, officers turned on the air conditioner deliberately, causing him severe physical discomfort.
During their confinement in the ADMAX SHU, plaintiffs were never afforded any individualized review to determine whether their continued detention under highly restrictive conditions was appropriate.
C. Excessive Force
1. Elmaghraby Elmaghraby alleges that on the day he arrived at the MDC, officers threw him against a wall, subjected him to repeated strip searches and threatened him with death. Officers continually accused him of being a terrorist associated with Osama Bin Laden, Al Qaeda, and the Taliban. When Elmaghraby was transported to court on the same day, officers subjected him to repeated strip searches and dragged him on the ground while he was chained and shackled, causing him to bleed from his legs.
Later that day, upon his return to the MDC, Elmaghraby was brought to the ADMAX SHU by elevator (the unit is on the ninth floor of the MDC). In the elevator, MDC officers verbally and physically assaulted him, causing him to bleed from the nose. Although the officers carried a video camera with them, they turned it off while assaulting Elmaghraby.
On approximately December 1, 2001, while returning from recreation, Elmaghraby was pushed from behind by an MDC officer. He hit his face on a hard surface as a result, and broke his teeth.
4

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
2. Iqbal Iqbal was transferred from the general population of the MDC to the ADMAX SHU on January 8, 2002. On that day, he was told by an officer that he had a legal visit. He was then taken to a room where 15 officers were waiting for him. Several of these officers picked Iqbal up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room. The officers screamed at Iqbal, that he was a “terrorist” and a “Muslim.” Iqbal was then taken-shackled and chained around his arms, legs and waist, bleeding from his mouth and nose-to the ADMAX SHU.
*5 On March 20, 2002, several MDC officers subjected Iqbal to three strip and body-cavity searches, all while he was in the same room. Although the officers had a hand-held video camera, they turned it off while conducting the searches. When the officers ordered Iqbal to submit to a fourth search, he protested. In response, one officer punched him in the face while another punched and kicked him in the back and legs. As a result, Iqbal bled from the mouth. While escorting Iqbal back to the ADMAX SHU, the officers continued to physically and verbally harass Iqbal, kicking him and making racist and threatening comments about Muslims. When they arrived at the SHU, the officers pulled Iqbal’s arm through the slot in his cell door, causing him excruciating pain. An officer then urinated in the toilet in Iqbal’s cell and turned the water off so the toilet could not be flushed until the next morning.

D. Strip and Body-Cavity Searches
1. Elmaghraby During the first three or four months of Elmaghraby’s detention, he was strip searched every morning. MDC officers ordered him to take off his clothes and inspected him through the slot in the door before they entered the cell. In addition to these searches, Elmaghraby was strip and body-cavity searched six times on days he went to court-three times before going to court, and three times on his return. On such days, Elmaghraby would be searched first in his cell in the ADMAX SHU, then in a different room in the ADMAX SHU, and a third time on the ground floor of the MDC before going to court. Elmaghraby remained in the custody of MDC officers between the three searches. When Elmaghraby returned from court, the searches took place in reverse order. During these searches, Elmaghraby was ordered to pass his clothes to an officer and bend over while an officer used a flashlight to search his body cavities.9

9

These searches took place on October 1 and 2,

November 5 and 8, and December 11, 2001; and

January 8, February 12 and 13, and July 22, 2002.

While the strip and body-cavity searches were being conducted, Elmaghraby was threatened, verbally abused, and regularly pushed and shoved. On many occasions, the searches were conducted in an outrageous manner. Lieutenant Barrere once displayed Elmaghraby, naked, to a female MDC employee. On October 1, 2001, Barrere inserted a flashlight into Elmaghraby’s anal cavity. Elmaghraby saw blood on the flashlight when it was removed. On two occasions (involving two different officers), an MDC defendant pushed a pencil into Elmaghraby’s anal cavity during a search. Other officers were present during all of these searches.

2. Iqbal Each morning, MDC officers first searched Iqbal’s cell. During this search, he was chained and shackled, and he was routinely kicked and punched by the officers. After the cell was searched, the officers would conduct a strip and body-cavity search of Iqbal. In addition to these daily strip and body-cavity searches, Iqbal was subjected to three strip searches whenever he visited the medical clinic for treatment-one before the visit and two afterwards. On days he went to court, Iqbal was searched four times: in his cell at about 5:30 a.m. (as was done each morning); at about 7:40 a.m. on the first floor of the MDC; and twice on his return from court.10

10

These searches occurred on February 19, March 6 and

20, and April 22, 2002.

*6 Iqbal too was often searched in an outrageous manner. For example, as described above, on March 20, 2005, several MDC officers conducted three strip and body-cavity searches of Iqbal on a single occasion, and when he protested against a fourth, he was punched and kicked in response.

E. Interference with Religious Practice During the entire time plaintiffs were confined in the ADMAX SHU, MDC officers constantly interfered with their religious practices and beliefs. Such interference included banging on plaintiffs’ cells while they were praying, routinely confiscating their copies of the Koran, and refusing to permit plaintiffs to participate in Friday prayer services with fellow Muslims. When plaintiffs requested to join fellow Muslims for Friday prayers, officers made comments such as, “No prayer for terrorists,” and “Why do you need to pray when you are in jail?” Elmaghraby complained about this interference to Hasty and Zenk, among others, and they refused to take
5

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
any action to remedy the situation.
F. Interference with Right to Counsel The MDC defendants deliberately interfered with plaintiffs’ attempts to communicate with their criminal defense counsel. From October 1 to November 1, 2001, Corrections Officer Cotton, the ADMAX SHU counselor responsible for determining whether and when detainees were permitted visits or phone calls, prohibited Elmaghraby from speaking by telephone with his attorney. After November 1, 2001, Cotton stood near Elmaghraby when he spoke to his attorney by telephone, and disconnected the phone whenever Elmaghraby complained about the conditions of his confinement. When Elmaghraby’s attorney tried to visit him, she often waited for hours without seeing him. When they were able to meet, a video camera recorded the visit, and when Elmaghraby returned to his cell, he would find that it had been ransacked. On these occasions, Elmaghraby would be strip searched after the legal visit even though the visit was non-contact,.
When Iqbal spoke to his attorney by telephone, Cotton would disconnect the phone if he complained about the conditions of his confinement. On several occasions, Iqbal’s attorney was turned away from the MDC after being falsely informed that Iqbal had been transferred to another facility. In addition, Defendant Shacks routinely delayed Iqbal’s receipt of legal mail, sometimes by up to two months.
G. Medical Care On December 1, 2001, Elmaghraby was shoved by an MDC officer into a hard object and broke his teeth. Nina Lorenzo, a physician’s assistant, provided Elmaghraby with antibiotics for his injury, but they were confiscated by Lieutenant Ortiz when Elmaghraby returned to the ADMAX SHU. When Elmaghraby complained to Shacks about the confiscation, Shacks asked him why he needed his teeth. Plaintiffs also allege that Lorenzo misdiagnosed Elmaghraby’s hypothyroidism as asthma. After Lorenzo prescribed asthma medicine, Elmaghraby’s hypothyroidism became worse, and he had to undergo surgery as a result.
*7 On March 21, 2002, the day after Iqbal was beaten by MDC officers, he requested medical assistance from Lorenzo. Shacks, however, told Lorenzo to leave the ADMAX SHU without providing any medical assistance, and Iqbal did not receive any medical care for two weeks after this assault, despite the fact that he was suffering excruciating pain.

H. Personal Involvement Plaintiffs allege that all defendants were personally involved in creating or implementing the policy under which they were confined without recourse to procedures for challenging their confinement. Plaintiffs allege that defendants were not only aware of the conditions of their confinement, but agreed to subject plaintiffs to those conditions because of their race, religion, and national origin.
Plaintiffs allege that the physical and verbal abuse to which they were subjected, the unnecessary and abusive strip and body-cavity searches, the interference with religious practices, and the imposition of substantial restrictions on their ability to communicate with counsel were all components of a discriminatory policy for which high-level BOP and MDC officials bear personal liability. In general, plaintiffs assert that the BOP Defendants and the Wardens either (1) created or implemented these practices; (2) knew or should have known that their subordinates were engaging in the unlawful practices; or (3) knowing that these practices were taking place, failed to remedy them.

I. Summary of Plaintiffs’ Claims Plaintiffs bring the following claims:
1. The conditions of confinement in the ADMAX SHU, and the failure to take measures to remedy those conditions, violated their due process rights under the Fifth Amendment. Plaintiffs assert this claim against the Wardens and other MDC defendants.11

11

Plaintiffs have withdrawn claims 1, 8, 12, and 13

against Lorenzo. See Opp’n Br. at 2 n. 2. Plaintiffs have

also withdrawn claims 3, 4, 5, and 15 against Zenk. See

letter from Alexander A. Reinert to the Court dated

November 4, 2004; Opp’n Br. at 1 n. 1. Those claims

against Lorenzo and Zenk are hereby dismissed.

2. The policy of assigning plaintiffs to the ADMAX SHU without affording them the opportunity to challenge their continued administrative detention violated their due process rights under the Fifth Amendment. Plaintiffs assert this claim against Ashcroft, the FBI Defendants, the BOP Defendants, the Wardens, and other MDC defendants.
3-4. The intentional beatings to which plaintiffs were subjected, and the failure to take measures to prevent these beatings, violated plaintiffs’ right to due process under the Fifth Amendment, and the Eighth Amendment’s prohibition against cruel and unusual punishment. Plaintiffs assert these claim against Hasty and other MDC defendants.
6

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
5. The policy of interfering with plaintiffs’ access to counsel violated plaintiffs’ right to counsel under the Sixth Amendment. Plaintiffs assert this claim against Hasty and other MDC defendants.
6-7. The denial of adequate medical examination and care violated plaintiffs’ right to due process under the Fifth Amendment and the Eighth Amendment’s prohibition against cruel and unusual punishment. Plaintiffs assert these claims against Lorenzo and other MDC defendants.
8. The conditions of confinement that plaintiffs were subjected to in the ADMAX SHU, and the failure to take measures to remedy those conditions, violated the Eighth Amendment’s prohibition against cruel and unusual punishment, Plaintiffs assert this claim against the Wardens and other MDC defendants.
*8 9. The policy of subjecting plaintiffs to unreasonable strip and body-cavity searches, and the failure to remedy such a policy, violated the Fourth Amendment’s prohibition against unreasonable searches. Plaintiffs assert this claim against Hawk Sawyer, the Wardens, and other MDC defendants.
10. The policy of interfering with plaintiffs’ religious practices, and the failure to remedy such a policy, violated plaintiffs’ free exercise rights under the First Amendment. Plaintiffs assert this claim against the Wardens, and other MDC defendants.
11. The policy of subjecting plaintiffs to harsher conditions of confinement because of their religious beliefs, and the failure to remedy such a policy, violated plaintiffs’ rights under the First Amendment. Plaintiffs assert this claim against Ashcroft, the FBI Defendants, the BOP Defendants, the Wardens, and other MDC defendants.
12. The policy of subjecting plaintiffs to harsher conditions of confinement because of their race, and the failure to remedy such a policy, violated plaintiffs’ rights to equal protection under the Fifth Amendment. Plaintiffs assert this claim against all defendants.
13. The policy of subjecting plaintiffs to harsher conditions of confinement because of their religious beliefs, and the failure to remedy such a policy, substantially burdened their religious exercise, in violation of RFRA, 42 U.S.C. § 2000bb. Plaintiffs assert this claim against all defendants.
14. The policy of confiscating plaintiffs’ religious materials, regularly interrupting their daily prayers, and denying them access to Friday communal prayers, and the failure to remedy such a policy, substantially burdened plaintiffs’ religious exercise and belief, in violation of

RFRA. Plaintiffs assert this claim against the Wardens, and other MDC defendants.
15. By brutally beating and verbally abusing plaintiffs because of their religious beliefs, and by failing to take measures to remedy such abuse, defendants imposed a substantial burden on plaintiffs’ religious exercise, in violation of RFRA. Plaintiffs assert this claim against Hasty and other MDC defendants.
16-17. The agreements among various defendants to deprive plaintiffs of the equal protection and equal privileges and immunities of the laws because of their religious beliefs, race, and national origin violated the civil rights conspiracy statute, 42 U.S .C. § 1985(3). Plaintiffs assert that (1) Ashcroft, Mueller, the BOP Defendants and the Wardens, among others, agreed to subject plaintiffs to unnecessarily harsh conditions of confinement without due process; (2) the BOP Defendants and the Wardens, among others, agreed to subject plaintiffs to unnecessary and extreme strip and body-cavity searches as a matter of policy; and (3) the Wardens and other MDC defendants agreed to substantially burden Elmaghraby’s religious practice while he was housed in the ADMAX SHU.
18-20. The beatings of Iqbal and the failure to prevent those beatings; the negligent medical care Iqbal received; and the brutal conduct that caused him to suffer extreme and lasting emotional distress constitute torts for which Iqbal seeks compensatory damages from the United States pursuant to the FTCA, 28 U.S.C. § 2671 et seq.
*9 21. The cruel, inhuman and degrading treatment plaintiffs were subjected to violated international law. Plaintiffs assert a claim for this violation under the Alien Tort Statute, 28 U.S.C. § 1350, against all defendants.
DISCUSSION
A. The Motion to Dismiss Standard In considering a motion to dismiss under Rule 12(b)(6), a federal court is required to accept as true the factual assertions in the complaint and construe all reasonable inferences in favor of the plaintiff. Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992). Dismissal may be granted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotation omitted). Thus, a federal court’s task in determining the sufficiency of a complaint is “necessarily a limited one.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The appropriate inquiry is “not whether a plaintiff
7

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id.; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (“A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”) (internal quotation omitted).
B. Personal Jurisdiction Those defendants who are not domiciled in New York State-Ashcroft, the FBI defendants, and the BOP defendants-have moved to dismiss under Rule 12(b)(2), asserting that this Court lacks personal jurisdiction over them.
Personal jurisdiction must be established under the law of the state where the federal court sits. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999); Fed.R.Civ.P. 4(k)(1)(A). Under New York’s long-arm statute, a court may exercise jurisdiction over any non-domiciliary if “in person or through an agent,” he “transacts any business within the state,” or “commits a tortious act within the state” and the cause of action arises from those acts. See N.Y. C.P.L.R. § 302(a)(1), (2). The statute’s purpose is to “extend the jurisdiction of New York courts over nonresidents who have ‘engaged in some purposeful activity [here] in connection with the matter in suit.” ’ Padilla v. Rumsfeld, 352 F.3d 695, 709 (2d Cir.2003), rev’d on other grounds, 542 U.S. 426 (2004) (quoting Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 457 (1965)). One transaction is sufficient to support jurisdiction under § 302 “so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (1988); cf. Kronisch v. United States, 150 F.3d 112, 130 (2d Cir.1998) (there must be an “articulable nexus” between the defendant’s actions and the asserted claim). Personal jurisdiction cannot be based solely on a defendant’s supervisory position. See Ontel Prods., Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1148 (S.D.N.Y.1995). Instead, a plaintiff must show that defendant “personally took part in the activities giving rise to the action at issue.” Id.
*10 Here, plaintiffs allege that defendants were personally involved in the creation or implementation of unconstitutional policies that were directed at the post-September 11 detainees confined in the ADMAX SHU of the MDC. Such personal involvement, if established, satisfies § 302(a)(1)’s requirement that there be a substantial relationship or nexus between the defendant’s action and the asserted claim.
As a defense on the merits of plaintiffs’ claims,

defendants assert that they were not personally involved in the alleged unconstitutional activity. This defense overlaps with defendants’ jurisdictional argument, that is, a lack of personal involvement precludes both liability on the merits and the assertion of personal jurisdiction. See Richardson v. Goord, 347 F.3d, 431, 435 (2d Cir.2003)(mere linkage in the prison chain of command insufficient to confer liability for constitutional torts); Nwanze v. Philip Morris Inc., 100 F.Supp.2d 215, 220 (S.D.N.Y.2000) (“Mere supervision over the Bureau of Prisons, the reach of which extends into every state, is insufficient to establish a basis for the exercise of personal jurisdiction.”).
Accordingly, motions to dismiss for lack of personal jurisdiction are properly granted where plaintiffs have failed to sufficiently allege defendants’ involvement in any of the alleged violations of plaintiffs’ rights. Where such involvement is adequately alleged and discovery is required to determine the extent of personal involvement, such discovery will likewise resolve the jurisdictional question as well. See Newbro v. Freed, 2004 WL 691392, at *3 (S.D.N.Y. March 31, 2004) (discovery to resolve question of personal jurisdiction proper where plaintiff has “established that his jurisdictional position is not frivolous.”).

C. Qualified Immunity Generally The defendants seek dismissal of all claims against them on qualified immunity grounds. Government officials performing discretionary functions enjoy qualified immunity and are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “As a general rule, [state actors] are entitled to qualified immunity of (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir.1994).12

12

The qualified immunity standard in Bivens cases is

identical to the standard employed in cases brought

under 42 U.S.C. § 1983. See Wilson v. Layne, 526 U.S.

603, 609 (1999).

Whether a right was clearly established at the relevant time is a question of law. Kerman v. City of New York, 374 F.3d 93, 108 (2d Cir.2004). The inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 125 S.Ct. 596, 599 (2004) (internal quotation omitted). Accordingly, a court must determine the level of
8

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
generality of the relevant legal rule. Cf. Wilson v. Layne, 526 U.S. 603, 615 (1999) (it “could plausibly be asserted that any violation of the Fourth Amendment is ‘clearly established’ since it is clearly established that the protections of the Fourth Amendment apply to the actions of police.”). The precise act challenged need not have previously been held unlawful in order to defeat qualified immunity, but, its unlawfulness must be “apparent” in light of pre-existing law. Id. at 615; cf. Back v. Hastings on Hudson Union Free School Dist., 365 F.3d 107, 129 (2d Cir.2004) (the right in question “must not be restricted to the factual circumstances under which it has been established.”).
*11 In contrast to the “clearly established” law inquiry, “the matter of whether a defendant’s official conduct was objectively reasonable, i.e., whether a reasonable officer would reasonably believe his conduct did not violate a clearly established right, is a mixed question of law and fact.” Kerman, 374 F.3d at 109. If there is a genuine dispute as to material historical facts, those must be resolved by the factfinder before the court can properly make the ultimate legal determination of whether the defense is available. Id.; see also Poe v. Leonard, 282 F.3d 123, 133 (2d Cir.2002) (“if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendant’s conduct under the circumstances, qualified immunity applies.”) (internal quotation omitted).
The defense is not unavailable on a motion to dismiss. See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). However, a defendant asserting qualified immunity in a pre-discovery motion faces a “formidable hurdle”:
Not only must the facts supporting the defense appear on the face of the complaint, but as with all 12(b)(6) motions, the motion may be granted only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Thus, the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.
Id. at 434, 443 (internal citations and quotation omitted).
1. Allegations of Personal Involvement A government official may not be held liable for a constitutional tort under a theory of respondeat superior,

instead, a plaintiff must establish that the official was personally involved in the alleged violations. Richardson, 347 F.3d at 435 (discussing supervisory liability in the context of a § 1983 claim); see also Wilson, 526 U.S. at 609 (explaining that the qualified immunity analysis under Bivens is identical to the analysis under § 1983); Poe, 282 F.3d at 134 (qualified immunity analysis depends upon an individualized determination of the misconduct alleged). Here, the parties disagree about how specific and “nonconclusory” an allegation of personal involvement must be in order to survive a motion to dismiss where the defense of qualified immunity has been asserted. This disagreement exposes a tension between the liberal pleading standards under the Federal Rules and one of the core purposes of qualified immunity-protecting public officials from the burdens of discovery against unmeritorious claims.
To survive a motion to dismiss, a plaintiff need only provide a statement that gives the defendant “ ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” ’ See Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U .S. 41, 47 (1957)). Rule 8(a)’s simplified pleading standard applies to “all civil actions, with limited exceptions,” such as Rule 9(b)’s requirement that allegations of fraud and mistake be pleaded with particularity. See id. at 513. Thus, whether the allegations in a complaint are too conclusory to survive a motion to dismiss depends upon whether they meet the permissive standard set forth in Rule 8(a). The expectation that a defendant will assert qualified immunity as a defense does not elevate a plaintiff’s pleading requirements. See McKenna, 386 F.3d at 434 (defendant asserting qualified immunity at 12(b)(6) stage faces “formidable hurdle”).13

13

In recent years, the Supreme Court has repeatedly

rejected judicially-created heightened pleading

standards in favor of the liberal notice-pleading

requirement of Federal Rule of Civil Procedure 8(a).

See Swierkewicz, 534 U.S. at 514-15 (rejecting a

heightened pleading standard for employment

discrimination); Leatherman v. Tarrant County

Narcotics Intelligence and Coordination Unit, 507 U.S.

163, 164 (1993) (same; municipal liability under §

1983); Gomez v. Toledo, 446 U.S. 635, 639-40 (1990)

(plaintiff need not allege bad faith to state a claim

against a public official who might be entitled to

immunity if he acted in good faith); cf. Crawford-El v.

Britton, 523 U.S. 574, 595 (1998) (rejecting heightened

evidentiary standard for § 1983 cases alleging

unconstitutional motive). In Swierkewicz, the Court

reiterated that a requirement of greater specificity at the

pleading stage “is a result that ‘must be obtained by the

process of amending the Federal Rules, and not by

judicial interpretation.” ’ 534 U.S. at 515 (quoting

Leatherman, 507 U.S. at 168).

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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
*12 Defendants argue, however, that a plaintiff must allege a quantum of nonconclusory facts to survive a motion to dismiss. In support of this standard, they rely primarily on dicta in Crawford-El that in order to protect “the substance of the qualified immunity defense,” a court may insist at the pre-discovery stage that a plaintiff put forward “specific, nonconclusory factual allegations.” 523 U.S. at 598, 600. To the extent that this dicta suggests a heightened pleading requirement, such a requirement is foreclosed by Swierkewicz. See, e.g., Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 65 (1st Cir.2004) (although some courts post-Crawford-El required heightened pleading in civil rights cases in order not to erode the qualified immunity doctrine, “[w]hatever window of opportunity we thought remained open after Crawford-El has been slammed shut by the Supreme Court’s subsequent decision in Swierkiewicz.” ); cf. Phelps v. Kapnolas, 308 F.3d 180, 186-87 (2d Cir.2002) (“However unlikely it may appear to a court from a plaintiff’s complaint that he will ultimately be able to prove an alleged fact such as mental state, the court may not go beyond FRCP 8(a)(2) to require the plaintiff to supplement his pleadings with additional facts that support his allegation of knowledge either directly or by inference.”).
Second, while the Crawford-El Court stated that the question of qualified immunity should be resolved before permitting discovery, 592 U.S. at 598, it also recognized that such a pre-discovery determination may not be possible:
[D]iscovery involving public officials is indeed one of the evils that Harlow aimed to address, but neither that opinion nor subsequent decisions create an immunity from all discovery. Harlow sought to protect officials from the costs of “broad-reaching” discovery, and we have since recognized that limited discovery may sometimes be necessary before the district court can resolve a motion for summary judgment on qualified immunity.
Id. at 592 n. 14 (citation omitted); Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 793 (2d Cir.2002) (ruling on qualified immunity defense premature where issue “turns on factual questions that cannot be resolved at [the motion to dismiss stage]”); cf. Gomez, 446 U.S. at 641 (whether qualified immunity has been established “depends on facts peculiarly within the knowledge and control of the defendant.”).
Where the qualified immunity question cannot be

resolved at the motion to dismiss stage, a court “should give priority to discovery concerning issues that bear upon the qualified immunity defense, such as the actions that the official actually took, since that defense should be resolved as early as possible.” Crawford-El, 523 U.S. at 600; cf. Velez v. Levy, 401 F.3d 75, 101 (2d Cir.2005) (while defendant is not entitled to qualified immunity on motion to dismiss, the “factual basis for qualified immunity may arise as the proceedings develop.”). The Crawford-El Court suggested ways for district courts to manage the process while attempting to protect officials from the burdens of litigation, such as limiting discovery under Federal Rule of Civil Procedure 26. 523 U.S. at 599-600; see also Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir.2000) (Easterbrook, J., concurring) (“If immunity doctrines require decisions without discovery (or with limited discovery), then district judges must use their authority under Rule 26(b)(2) and (c) to curtail or eliminate discovery and decide on the basis of affidavits and other evidence that can be produced without compulsory process. Immunity does not justify decision on the basis of allegations instead of evidence (which is what judgment under Rule 12 entails) or a pretense that a complaint ... doesn’t state a claim on which relief may be granted.”).
*13 In sum, Crawford-El, Swierkewicz, and McKenna suggest the following principles when evaluating qualified immunity at the motion to dismiss stage: (1) a complaint must meet Rule 8(a)’s requirements: fair notice of the claims asserted and the grounds upon which they rest; (2) the plaintiff is entitled to all reasonable inferences from the facts alleged in the complaint, including those that defeat the immunity defense; (3) where there is a factual dispute bearing on the qualified immunity question, that dispute should be resolved at the earliest opportunity; and (4) to resolve such a dispute, it may be appropriate to limit discovery in scope (to issues that bear on the qualified immunity defense) and manner.
D. Bivens Actions Generally In Bivens, the Supreme Court held that a private cause of action under the Constitution was available to recover damages against federal officers for violations of Fourth Amendment rights. 403 U.S. at 389. This cause of action was later extended to allow recovery for other constitutional violations. See, e.g., Davis v. Passman, 442 U.S. 228, 248-49 (1979) (Fifth Amendment); Carlson v. Green, 446 U.S. 14, 20 (1980) (Eighth Amendment); Bush v. Lucas, 462 U.S. 367, 377-380 (1983) (refusing to allow a Bivens suit on the ground that Congress had created adequate alternative remedies, but generally recognizing the existence of such a cause of action for violations of the First Amendment). Courts generally treat Bivens claims as analogous to the cause of action created by 42 U.S.C. § 1983, which permits recovery for federal
10

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
rights violations by state officials. See Wilson, 526 U.S. at 609 (qualified immunity analysis identical for Bivens and § 1983 actions); Butz v. Economou, 438 U.S. 478, 498-99 (1978) (treating a Bivens claim as directly analogous to a § 1983 claim).
The Supreme Court has carved out two, potentially intersecting, exceptions to the availability of Bivens damages. A Bivens remedy is unavailable (1) “when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective,” Carlson, 446 U.S. at 18-19 (emphasis in original); and (2) where there are “special factors counseling hesitation in the absence of affirmative action by Congress.” Id. (internal quotation omitted); see, e.g., United States v. Stanley, 483 U.S. 669, 683-84 (1987) (holding that the unique disciplinary structure of the military constituted “special factors counseling hesitation” such that no Bivens remedy “is available for injuries that arise out of or are in the course of activity incident to service”) (internal quotation omitted); Bush, 462 U.S. at 388-89 (refusing to extend a Bivens claim to a federal employee in light of the comprehensive scheme Congress had established over the field of federal employment).
*14 Ashcroft argues that there are special factors present here that militate against the availability of a remedy under Bivens. Specifically, he argues that (1) to the extent plaintiffs are challenging their detention pending removal, the immigration statutes provide a comprehensive remedial scheme; and (2) plaintiffs’ claims arise within the context of the September 11 attacks and their aftermath.
I reject the contention that these features of the case constitute “special factors” militating against the provision of a Bivens remedy. First, while many post-September 11 detainees were held on immigration charges, plaintiffs here were detained on criminal charges. They challenge their treatment as criminal defendants, and not their detention pending removal. Second, our nation’s unique and complex law enforcement and security challenges in the wake of the September 11, 2001 attacks do not warrant the elimination of remedies for the constitutional violations alleged here. Cf. Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2648 (2004) (“it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested.”). This does not mean the context in which the challenged actions occurred is irrelevant. Rather, the qualified immunity standard takes that context into account, shielding officials from liability unless it is clear from preexisting law that the official’s actions are unlawful under the circumstances. However, the qualified immunity

standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: “Where an official could be expected to know that his conduct would violate statutory rights, he should be made to hesitate....” Harlow, 457 U.S. at 819. This is as true in matters of national security as in other fields of governmental action.
Mitchell v. Forsyth, 472 U.S. 511, 524 (1985). The problems posed by issues of national security are not akin to those posed by military service, where the need for a separate system of military justice precludes the provision of a Bivens remedy. See Chappell v. Wallace, 462 U.S. 296, 304 (1983); Stanley, 483 U.S. at 683-84.
As in § 1983 actions, there is no respondeat superior liability in a Bivens action. Cuoco v. Moritsugu, 222 F.3d 99, 110 (2d Cir.2000). To hold a supervisory official liable under § 1983 (and thus under Bivens ), a plaintiff must show one or more of the following:
(1) actual direct participation in the constitutional violation, (2) failure to remedy a wrong after being informed through a report or appeal, (3) creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue, (4) grossly negligent supervision of subordinates who committed a violation, or (5) failure to act on information indicating that unconstitutional acts were occurring.
*15 Richardson, 347 F.3d at 435; see also Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d. Cir.2001). Mere linkage in the prison chain of command is insufficient to implicate a supervisory prison official. Richardson, 347 F.3d at 435.
With these general principles in mind, I turn to plaintiffs’ claims in this case.
E. Plaintiffs’ Bivens Claims
1. Conditions of Confinement Claims
a. Substantive Due Process and Cruel and Unusual Punishment (Claims 1 & 8) Plaintiffs allege that the conditions of their confinement
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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

violated their substantive due process rights under the Fifth Amendment and constitute cruel and unusual punishment under the Eighth Amendment. Wardens Hasty and Zenk contend that (1) the conditions of confinement did not violate plaintiffs’ clearly established due process rights; and (2) plaintiffs have failed to allege sufficient personal involvement on the part of the Wardens in imposing those conditions to hold them liable under Bivens or to defeat their claims of qualified immunity.
The Due Process Clause protects pretrial detainees-persons who have been charged with a crime but have yet to be found guilty of the charge-from certain conditions and restrictions of pretrial detainment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). Specifically, a pretrial detainee has the right to be free from punishment prior to an adjudication of guilt in accordance with due process of law.14 Id. This does not mean, however, that a detainee may not be subject to significant restrictions. The maintenance of an institution’s security and discipline are “essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” Id. at 546. Prison administrators are “accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security .” Id. at 547. Thus, “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate government objective, it does not, without more, amount to ‘punishment.” ’ Id. at 539. Conversely, where a condition is not reasonably related to a legitimate goal, “a court permissibly may infer that the purpose of the governmental action is punishment.” Id.

14

Once an inmate is sentenced he may be “punished,” but

that punishment may not be cruel and unusual. Bell,

441 U.S. at 535 n .16. To state a claim of

unconstitutional conditions under the Eighth

Amendment, an inmate must show that inhumane

conditions were imposed with deliberate indifference.

See Wilson v. Seiter, 501 U.S. 294, 303 (1991)

( “deliberate indifference” standard articulated in

Estelle v. Gamble, 429 U.S. 97 (1976), for a claim of

inadequate medical care applies to claims of inhumane

conditions of confinement). Here, the allegations

concerning conditions of confinement stem largely

from the period when plaintiffs were pretrial detainees.

Elmaghraby was a pretrial detainee for almost 10 of the

11 months that he was confined in the ADMAX SHU;

Iqbal was a pretrial detainee throughout the entire time

he was confined in the ADMAX SHU.

Warden Zenk argues that plaintiffs have failed to state a claim primarily because the alleged conditions were reasonably related to legitimate penological goals and thus did not amount to punishment. Zenk argues, for

example, that (1) segregating Muslims in the aftermath of the September 11 attacks “served the important non-punitive purpose of protecting [post-September 11 detainees] from possible assault in the general prison population;” (2) strip and body-cavity searches ensure that detainees do not carry contraband into their cells (and the Supreme Court expressly validated visual body-cavity searches of pretrial detainees after contact visits, see Bell at 558-560); and (3) restricting toilet paper is justified because it can be used to set fires and clog toilets. See Zenk Br. at 16-19.
*16 Plaintiffs do not contend, however, that legitimate security interests could never justify some of the conditions which they were subjected to, such as strip and body-cavity searches. Instead, they allege that they were subjected to harsh conditions of confinement for purely punitive reasons. These conditions included: verbal and physical abuse; purposeless and abusive strip and body-cavity searches; the denial of access to basic medical care and hygiene; the denial of proper exercise; and confinement in solitary confinement with the lights on almost 24 hours per day.
In short, while defendants posit legitimate reasons that might justify the conditions in the ADMAX SHU, plaintiffs assert illegitimate reasons for those conditions. A restriction or condition that under some circumstances has a legitimate justification cannot be inflicted upon detainees where no such justification exists. See Bell 441 U.S. at 539 (where a restriction or condition is arbitrary or purposeless, a court may infer that the purpose of the governmental action is punishment). Here, the determination whether the conditions imposed upon plaintiffs were legitimate or punitive is not amenable to resolution on a motion to dismiss. In this procedural setting, I assume the truth of plaintiffs’ allegations and draw all inferences in their favor. While a court will normally defer to a prison administrator’s expert judgment on security matters, see Bell, 441 U.S. at 540 n .23, such deference is inappropriate “where there is substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations.” Id.; cf. United States v. Gotti, 755 F.Supp. 1159, 1164 (E.D.N.Y.1991) ( “due deference does not mean blind deference”). Without such a record, a court may not be able to determine the reasonableness or legitimacy of an allegedly punitive condition of confinement. See Bell at 541-63 (evaluating reasonableness of restrictions, including strip searches conducted after contact visits, on a full evidentiary record). The cases cited by Zenk to support the legitimacy of the conditions of the ADMAX SHU are not to the contrary. Morreale v. Cripple Creek, 113 F.3d 1246 (table), 1997 WL 290976 (10th Cir. May 27, 1997) (unpub.op.) (decision on summary judgment); Keenan v. Hall, 83 F.3d 1083 (9th Cir.1996) (same); Davenport v. DeRobertis, 844 F.2d 1310 (10th Cir.1988) (decision after
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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
full trial); Hay v. Waldron, 834 F.2d 481 (5th Cir.1987) (review of denial of preliminary injunction); Goff v. Nix, 803 F.2d 358 (8th Cir.1987) (review of grant of permanent injunction).

(i) Personal Involvement The Wardens argue that plaintiffs have failed to allege sufficient personal involvement in the violation of their due process rights to state a Bivens claim or defeat a defense of qualified immunity. Hasty argues, for example, that the conditions of confinement claims are premised on supervisory liability, and that plaintiffs allege only “the most attenuated, superficial connection between Hasty’s supervisory responsibilities at MDC and the alleged conduct of his subordinates.” Hasty Reply Br. at 1-2.
*17 The Wardens elide the difference between vicarious liability under the doctrine of respondeat superior (which is not available under Bivens ) and the liability of a supervisor based on his own actions or inactions). Hasty’s argument that he “had no meaningful contact with Plaintiffs” ‘ during their confinement, see Reply Br. at 1, misapprehends the type of personal involvement that must be alleged to state a claim of supervisory liability. An allegation, for example, that a supervisor was aware of a constitutional violation but took no action to remedy it may be sufficient to state a claim. See Johnson, 239 F.3d at 255 (denying motion to dismiss asserting qualified immunity where plaintiff alleged that supervisors failed to act on “information that unconstitutional acts were occurring” at the hands of subordinates); McKenna, 386 F.3d at 437 (allegation that prison superintendents allowed the continuation of unlawful policies sufficient to defeat assertion of qualified immunity at motion to dismiss stage); cf. Richardson, 347 F.3d at 435 (supervisors may be liable for, among other things, creation of a policy that sanctioned unconstitutional conduct, grossly negligent supervision, or failure to act on information indicating that unconstitutional conduct was occurring).
Plaintiffs allege, among other things, that both Wardens were aware of the abusive conditions of the ADMAX SHU and allowed plaintiffs to be subjected to those conditions for purely punitive reasons. The Wardens contend otherwise, but that dispute may properly be resolved only on summary judgment or at trial.15

15

Zenk argues that all claims against him should be

dismissed because “substantially all” of the specific

allegations of abuse are alleged to have occurred before

he became warden on April 22, 2002. Zenk Reply Br.

at 2. Plaintiffs concede that certain

conditions-specifically the denial of basic hygiene

items and inadequate lighting-took place prior to

Zenk’s tenure, and they do not assert claims against

Zenk on those grounds. Plaintiffs allege, however, that Zenk was personally involved in subjecting plaintiffs to unconstitutional conditions of confinement and for failing to remedy those conditions. Zenk cannot, of course, be held liable for acts that occurred prior to his becoming warden. The extent of his personal involvement, if any, in the conditions alleged during the period he was warden is a matter for discovery.
b. Procedural Due Process (Claim 2) Plaintiffs allege that Ashcroft, the FBI Defendants, the BOP defendants, and the Wardens, among others, violated their right to due process by creating or implementing a policy of confining plaintiffs in highly restrictive conditions without making individual determinations as to the appropriateness of such confinement and without allowing plaintiffs to challenge their continued detention under those conditions. Defendants argue that they are entitled to qualified immunity because (1) there was no violation of a constitutionally protected right because plaintiffs cannot establish a protectable liberty interest; and (2) if there was a protectable liberty interest, it was not clearly established in the aftermath of the September 11 attacks; and (3) in any event, the defendants’ actions were objectively reasonable. They also contend that plaintiffs have failed adequately to allege their personal involvement in the charged conduct.
(i) Whether a Protectable Liberty Interest Existed In determining whether a prisoner has stated a claim for a procedural due process violation, a court evaluates: “(1) whether the plaintiff had a protected liberty interest in not being confined and, if so, (2) whether the deprivation of that liberty interest occurred without due process of law.” Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir.2000) (internal quotation and ellipsis omitted). Plaintiffs allege that they received no process at all with regard to their continued detention in the ADMAX SHU. Thus, the issue here is whether they assert a protectable interest. In Tellier, the plaintiff was held in a Special Housing Unit at the Metropolitan Correction Center (“MCC”)16 because he was considered a flight risk. Id. at 74. He remained in the SHU for 514 days without an opportunity to be heard regarding his continued confinement in segregated housing. Id. The defendants, including the MCC’s former and current wardens, moved to dismiss for failure to state a claim and for summary judgment based on qualified immunity. Id. at 73, 79. The Second Circuit held that Tellier had a protectable liberty interest because (a) the alleged SHU conditions were “atypical and significant”;17 and (b) the interest in not being subjected to those conditions was created by BOP regulations setting forth mandatory procedures to be followed whenever a prisoner
13

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

was subjected to segregated housing.18 Id. at 80-81.

16

The MCC is the federal detention facility in Manhattan.

The MDC, the facility in which plaintiffs were

detained, is in Brooklyn.

17

Tellier alleged that the MCC conditions to which he

was subjected to included: being confined to his cell for

23 hours per day (as opposed to six or seven hours per

day for inmates in the general population), less access

to the telephone, showers, recreation area and law

library than general population inmates, and being

handcuffed whenever removed from the cell. 280 F.3d

at 74.

18

The initial decision to place a prisoner in a SHU is

discretionary under BOP regulations, and thus there is

no protected liberty interest associated with that

decision. Tellier, 280 F.3d at 82. To the extent that

plaintiffs here are alleging a denial of due process

based upon their initial assignment to the ADMAX

SHU, that portion of the claim is dismissed. See id.

*18 As in Tellier, plaintiffs here have satisfied both requirements for establishing a protectable liberty interest. First, the highly restrictive ADMAX SHU conditions are “atypical and significant” in comparison to the conditions faced by prisoners in the general population. See id. at 80 (where plaintiff has alleged confinement “under conditions that differ markedly from those in the general population, ... we cannot conclude as a matter of law that this confinement was not ‘atypical and significant.” ’). Second, the government “has created a liberty interest by statute or regulation.” Id. at 81. BOP regulations, codified at 28 CFR § 514.22, require individualized determinations concerning the appropriateness of continued segregation.19 See id. at 83 (§ 541.22 contains mandatory language that gives rise to a state-created right that requires a factual determination of the nature of confinement). The regulations also set forth the bases for administrative detention:

19

28 CFR § 514.22(c) provides in part that: “[T]he

Segregation Review Official will review the status of

inmates housed in administrative detention. The SRO ...

shall hold a hearing and formally review the status of

each inmate’s placement in administrative detention, ...

and shall hold a hearing and review these cases

formally at least every 30 days. The inmate appears

before the SRO at the hearing unless the inmate waives

the right to appear.”

Administrative detention is to be used only for short

periods of time except where an inmate needs long-term protection (see § 541.23), or where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns. An inmate may be kept in administrative detention for longer term protection only if the need for such protection is documented by the SRO. Provided institutional security is not compromised, the inmate shall receive at each formal review a written copy of the SRO’s decision and the basis for this finding. The SRO shall release an inmate from administrative detention when reasons for placement cease to exist. 28 CFR § 514.22(c). I reject Hawk Sawyer’s argument that the statute does not create a protectable interest because § 541.22 is “designed to allow continued segregation, with fewer procedural protections, for a continuing complex investigation and/or security concerns.” Hawk Sawyer Br. at. 12. While administrative detention may be used in the context of a complex investigation, the regulations do not suggest that under such circumstances an inmate may be denied all process while confined under highly restrictive conditions for over ten months.
In addition, defendants assert that administrative segregation was proper to protect plaintiffs from assault in the general population. Such an assertion does not, however, eliminate an inmate’s right to due process. See 28 C.F.R. § 541.23(b) (“Inmates who are placed in administrative detention for protection, but not at their own request ... are entitled to a hearing, no later than seven days from the time of their admission.”).
Defendants further argue that the context of plaintiffs’ detention provided legitimate rationales for not following BOP procedures. Ashcroft argues that the post-September 11 context extinguishes any rights otherwise conferred by § 541.22: “Regulations written in peacetime cannot circumscribe the government’s discretion at a time of national emergency from foreign threats.” Ashcroft Mem. at 15. This proposition, which suggests that, as a matter of law, constitutional and statutory rights must be suspended during times of crisis, is supported neither by statute nor the Constitution. Cf. Hamdi, 124 S.Ct. at 2648 (“It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164-65 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action.”)).
*19 In addition, Ashcroft asserts that: (1) “high interest”
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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
detainees presented unprecedented security concerns; (2) “persons connected with terrorist activities ... could provide Al Qaeda essential information about the scope of the government’s investigation that could be gleaned simply from the identity of those detained and those who had not been found,” and (3) disclosing information underlying the FBI’s investigation to plaintiffs during hearings could compromise the FBI’s investigation. See Ashcroft Br. at 12-13. These arguments may eventually prove persuasive. As discussed below, however, the inquiry into what actions defendants took and the reasonableness of those actions in the aftermath of the September 11 attacks is not one that can be made on a motion to dismiss.
(ii) Whether Plaintiffs’ Right Was Clearly Established Defendants argue that even if the complaint states a due process violation, they are entitled to qualified immunity because the right was not defined with reasonable specificity at the time the challenged actions were taken.
There is little dispute that the right to due process for a detainee held in administrative detention was clearly established as of September 10, 2001. In November 2000, the Second Circuit held in Tellier that under BOP regulations, an inmate’s right to process when held in atypically restrictive detention was clearly established, and that “it [was] simply unreasonable for any official to believe” that § 541.22 permitted a detainee to be kept in the SHU for 514 days without a hearing. Id. at 85; see also Wright v. Smith, 21 F.3d 496, 500 (2d Cir.1994) (“prison officials [could not] doubt that they have acted unconstitutionally where confinement ... continued, without a hearing, for 67 days.”).
The September 11 attacks placed an enormous burden on law enforcement and created unprecedented challenges for policy makers and their subordinates. See generally the April 2003 OIG Report. These events affected both the contours of detainees’ due process rights and the objective reasonableness of the defendants’ actions. Cf. Mathews v. Eldridge, 424 U.S. 319, 334 (1976) ( “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”) (internal quotation omitted); Zadvydas v. Davis, 533 U.S. 678, 696 (2001) (“terrorism or other special circumstances” may provide special arguments for preventive detention and for “heightened deference to the judgments of the political branches with respect to matters of national security”). I reject, however, the argument that the post-September 11 context wholly extinguished, as a matter of law, a pretrial detainee’s due process rights for almost a year while subjected to highly restrictive confinement because he had been flagged as “of interest” to the government’s ongoing investigation.

Plaintiffs are not complaining of a brief deprivation of process in the immediate aftermath of September 11, but one that continued for more than 8 months in Iqbal’s case and nearly 11 months in Elmaghraby’s. Indeed, Judge Glasser stated in February 2002 (approximately four months after Elmaghraby entered the ADMAX SHU) that “it appears that [Elmaghraby’s] constitutional rights have been violated as to being housed in a special unit at MDC.” See USA v. Elmaghraby, Docket No. 01-cr-1175, Docket Entry No. 42 (February 12, 2002 status conference entry).
(iii) Objective Reasonableness of Defendants’ Acts *20 Defendants argue that they acted reasonably under the circumstances, and thus are entitled to qualified immunity. Generally, the question whether a defendant acted reasonably is a factual inquiry which is not amenable to resolution at the motion to dismiss stage. See e.g., Johnson v. Meachum, 839 F.Supp. 953, 958 (D.Conn.1993) (Cabranes, C.J.) (“Whether the defendants can establish that their alleged conduct was nevertheless ‘objectively reasonable’ is a question which has its principal focus on the particular facts of the case,” and thus resolution is inappropriate on a motion to dismiss where a court has no factual record before it .) (internal quotation omitted).
Here, there are factual disputes concerning the nature of the defendants’ actions and the need for those actions in light of the investigative and security concerns at the time. Indeed, as discussed below, some defendants dispute that they were personally involved in the alleged deprivation of process at all. In these circumstances, the objective reasonableness of defendants’ actions is a question that, in my view, is properly addressed only on a motion for summary judgment. See McKenna, 386 F.3d at 436.
(iv) Personal Involvement Defendants argue that the allegations of their personal involvement are too conclusory to defeat their claims of qualified immunity. For the reasons discussed above concerning the substantive due process claims, plaintiffs have sufficiently alleged the personal involvement of the Wardens. Whether they have alleged sufficient facts concerning Ashcroft, the FBI Defendants or the BOP defendants presents a closer question.
Generally, the assertion that high-level executive branch members created an unconstitutional policy, without more, would be insufficient to state a claim. See Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir.1989) (“If a mere assertion that a former cabinet officer and two other officials acted to implement, approve, carry out, and otherwise facilitate alleged
15

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

unlawful policies were sufficient to state a claim, any suit against a federal agency could be turned into a Bivens action by adding a claim for damages against the agency head and could needlessly subject him to the burdens of discovery and trial.”) (internal quotation omitted) (footnote omitted). Here, however, the post-September 11 context provides support for plaintiffs’ assertions that defendants were involved in creating and/or implementing the detention policy under which plaintiffs were confined without due process. See generally the April 2003 OIG Report.20 In addition, plaintiffs have alleged that defendants were aware of the atypically restrictive conditions of their lengthy confinement. See Richardson, 347 F.3d at 435 (supervisory liability under Bivens may be shown by “creation of a policy or custom that sanctioned conduct amounting to a constitutional violation, or allowing such a policy or custom to continue,” or by the “failure to act on information indicating that unconstitutional acts were occurring.”).

20

The April 2003 OIG report, which discusses the

detention of aliens held on immigration violations after

September 11, 2001, suggests the involvement of

Ashcroft, the FBI Defendants, and the BOP Defendants

in creating or implementing a policy under which

plaintiffs were confined in restrictive conditions until

cleared by the FBI from involvement in terrorist

activities. See, e.g., 37-38 (Stuart Levey, an Associate

Deputy Attorney General, stated that “the idea of

detaining September 11 detainees until cleared by the

FBI was ‘not up for debate.’ He said he was not sure

where the policy originated, but thought the policy

came from ‘at least’ the Attorney General.”); 39

(Daniel Levin, Counselor to the Attorney General,

“described a ‘continuous meeting’ for the first few

months after the terrorist attacks involving the Attorney

General, Deputy Attorney General, FBI Director, and

[then Assistant Attorney General Michael] Chertoff,

and said he was sure that the issue of holding aliens

until they were cleared was discussed.”); 112 (“MDC

officials placed all incoming September 11 detainees in

the ADMAX SHU without conducting the routine

individualized assessment. BOP Director Kathy Hawk

Sawyer told the OIG that this designation resulted from

the FBI’s assessment and was not the BOP’s ‘call.” ’);

113 (“Rardin ... directed wardens in his region not to

release inmates classified by the BOP as ‘terrorist

related’ from restrictive detention in SHUs until further

notice.”); 116 (“Cooksey’s October 1, 2001

memorandum ... directed all BOP staff, including staff

at the MDC, to continue holding September 11

detainees in the most restrictive conditions of

confinement possible” until cleared by the FBI); 42, 49,

60 (mentioning Rolince and Maxwell’s roles in the

clearance process) and 69-71 (criticizing the pace of the

FBI clearance process, the “indiscriminate and

haphazard manner in which the labels of ‘high interest,’

‘of interest,’ or ‘of undetermined interest’ were applied

to many aliens who had no connection to terrorism,”

and explaining that the delays in clearing detainees had

“enormous ramifications” for those detainees).

*21 In addition, some of the defendants, in disclaiming responsibility, suggest that other defendants (who also disclaim responsibility) were personally involved. Ashcroft states, for example, that the MDC officials were not responsible: “BOP’s decision to place detainees in administrative segregation under § 541.22(a) until cleared by the FBI was driven by national security and foreign threat concerns which wardens and prison officials were in no position to second guess.” Br. at. 13. Rolince argues that it was the BOP’s decision, and not the FBI’s, to detain plaintiffs in the ADMAX SHU, and there are “no nonconclusory factual allegations that Rolince ... was personally aware that the BOP relied upon the FBI clearance process in designating plaintiffs to more restrictive housing units within the MDC.” Rolince Br. at 4-5. For their part, the BOP defendants contend that they were not responsible, either. Cooksey states, for example, that the MDC defendants exercised independent judgment that “breaks the chain of causation” between the alleged deprivations and his actions. Cooksey Br. at 10.21 See also fn. 20, supra.

21

As discussed in footnote 2, “the BOP Defendants” is

used here to refer to the defendants who were

upper-level managers of that agency (Hawk Sawyer,

Cooksey and Rardin), as distinct from the facility-based

defendants (the Wardens and the MDC Defendants).

Plaintiffs should not be penalized for failing to assert more facts where, as here, the extent of defendants’ involvement is peculiarly within their knowledge. See Gomez, 446 U.S. at 641. Plaintiffs have alleged sufficient facts to warrant discovery as to the defendants’ involvement, if any, in a policy that subjected plaintiffs to lengthy detention in highly restrictive conditions while being deprived of any process for challenging that detention.

(v) Discovery The issue of qualified immunity should be addressed at the earliest appropriate stage. Where, as here, there are factual disputes that bear on the availability of the defense, discovery may be structured accordingly. See Crawford-El, 523 U.S. at 599-600. Rule 26 of the Federal Rules of Civil Procedure “vests the trial judge with broad discretion to tailor discover narrowly and dictate the sequence of discovery.” Id. The personal involvement, if any, of the non-MDC defendants should be the subject of the initial stage of discovery. Accordingly, discovery concerning Ashcroft, the FBI Defendants (Mueller, Maxwell, and Rolince), and the BOP Defendants (Sawyer, Cooksey, and Rardin) will be generally limited to
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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
inquiries into their involvement in the alleged denials of due process. Appropriate topics will include whether the individual defendant participated in the creation and implementation of the policy or policies under which plaintiffs were detained, whether he or she had knowledge of the conditions under which plaintiffs were detained, and the defendant’s involvement in or knowledge of the clearance process and the alleged bypassing of BOP procedures for challenging administrative segregation of pretrial detainees. Any dispute about the precise form(s) and scope of discovery shall be resolved by Judge Gold. Once he determines that discovery related to the issue is completed, defendants may file a properly supported motion for summary judgment.
2. Excessive Force (Claims 3 and 4) *22 Plaintiffs allege that they were physically abused by MDC officers, and that Warden Hasty, among others, failed to take reasonable measures to prevent or remedy this abuse in violation of the Fifth and Eighth Amendments. For the reasons discussed above in connection with plaintiffs’ due process claims, I reject Hasty’s argument that plaintiffs do not adequately allege his personal involvement in the alleged deprivations of plaintiffs’ rights.
Hasty’s motion to dismiss claims 3 and 4 is denied.
3. Interference with Right to Counsel (Claim 5) Plaintiffs allege that Warden Hasty, among others, interfered with plaintiffs’ right to counsel in violation of the Sixth Amendment. The unreasonable interference with an accused person’s ability to consult counsel violates the Sixth Amendment. Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir.2001). The right to counsel attaches “at or after the initiation of adversary judicial proceedings,” whether by way of “indictment, information, or arraignment.” See Kirby v. Illinois, 406 U.S. 682, 689 (1972). In evaluating whether a pretrial detainee’s right to counsel was impaired, a court must determine whether the restrictions imposed unjustifiably obstructed the right of access to counsel or to the courts “in the light of the central objective of prison administration, safeguarding institutional security.” Benjamin, 264 F.3d at 87 (internal quotation marks omitted).
Plaintiffs allege that while detained in the ADMAX SHU, MDC defendants substantially interfered with plaintiffs’ ability to communicate with counsel by, among other things, preventing Elmaghraby from speaking over the telephone with his attorney for almost two months; subsequently disconnecting the phone when plaintiffs complained about the conditions of their confinement;

videotaping Elmaghraby’s meetings with his attorney; ransacking Elmaghraby’s cell while he met with his attorney; subjecting Elmaghraby to strip searches after non-contact visits with his attorney; preventing Iqbal from meeting with his attorney by falsely telling the attorney that Iqbal had been transferred out of the MDC; and routinely delaying Iqbal’s receipt of legal mail. Plaintiffs allege that this interference with counsel was pursuant to a discriminatory policy, and that Hasty and other defendants knew of this interference and did nothing to remedy it.
Hasty contends that plaintiffs’ claim fails because they did not state in their complaint that adversarial judicial pleadings had been initiated such that the right to counsel would attach. Hasty contends that by leaving this critical fact out of their complaint, plaintiffs have “sandbagged” Hasty, who had apparently been operating under the assumption that plaintiffs were “held in mere administrative detention until their release.” Hasty Br. at 9. Plaintiffs assert that this Court may take judicial notice of Elmaghraby and Iqbal’s arraignment dates (October 1, 2001 and November 5, 2001 respectively).
*23 While the complaint could have been more transparent regarding plaintiffs’ status as pretrial detainees facing criminal charges, it states that plaintiffs were arrested, held in the MDC after their arrest, transported to court on numerous occasions, and interfered with when they sought to communicate with their “criminal defense” attorneys. Such statements were sufficient to alert Hasty to the allegation that plaintiffs were not being held in mere administrative detention. Hasty’s motion to dismiss this claim is denied.

4. Denial of Medical Treatment (Claims 6 and 7) Plaintiffs allege that they were denied adequate medical treatment in violation of the Fifth and Eighth Amendments. Defendant Nina Lorenzo, a physician’s assistant at the MDC while plaintiffs were confined there, contends that (1) plaintiffs fail to state a claim; and (2) she is entitled to qualified immunity.

To state a cause of action under the Eighth Amendment for denial of medical care, a plaintiff must allege that a defendant has exhibited deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).22 The deliberate indifference standard incorporates both an “objective” prong-that the alleged deprivation be sufficiently serious-and a “subjective” prong-that the defendant acted with “a sufficiently culpable state of mind.” Hathaway v. Coughlin, 37 F.3d, 63, 66 (2d Cir.1994) ( “Hathaway I” ).

22

The standard for alleging a due process violation

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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
grounded in the denial of adequate health care may be less rigorous than the Eighth Amendment standard. See Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.1991) (“Although a pretrial detainee’s due process rights to adequate medical treatment are at least as great as the Eighth Amendment protections available to prison inmates, the Supreme Court has left unresolved what standard applies.” (citation omitted)). Courts, however, have applied the same analysis to both claims. See Davis v. Reilly, 324 F.Supp.2d 361, 367 (E.D.N.Y.2004) (regardless of the “academic distinction,” standard for analyzing pretrial detainee’s due process claim is same as the standard under the Eighth Amendment); Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000) (applying Eighth Amendment deliberate indifference test to pretrial detainee’s claim under the Due Process Clause of the Fifth Amendment). Because I find that plaintiffs state an Eighth Amendment claim, I need not determine here whether there is a less rigorous for stating a due process claim.
a. Objective Test There is “no settled, precise metric” for determining whether a prisoner’s condition is “sufficiently serious” such that liability under the Eighth Amendment may attach. See Brock v. Wright, 315 F.3d 158, 162 (2d Cir.2003). Factors courts consider include whether a reasonable doctor would perceive the medical need in question as worthy of treatment; whether the condition significantly affects daily activities; and whether the condition results in chronic and substantial pain. Id.
Plaintiffs allege that (1) after Elmaghraby was pushed into a hard surface and broke his teeth, Lorenzo provided Elmaghraby with antibiotics, but those antibiotics were confiscated by Lieutenant Ortiz upon Elmaghraby’s return to the ADMAX SHU; (2) after Lorenzo misdiagnosed Elmaghraby’s hypothyroidism as asthma, the condition worsened, and Elmaghraby had to undergo surgery; and (3) after a severe beating by MDC officers, Iqbal requested medical assistance from Lorenzo, but she was told by Shacks, the Unit Manager, to leave the ADMAX SHU without providing medical assistance; Iqbal did not receive any medical care for two weeks after the assault, despite suffering from excruciating pain. The latter two allegations-which are the grounds upon which plaintiffs’ claims against Lorenzo are based-state a sufficiently serious condition to satisfy the objective test. See id. (“the Eighth Amendment forbids not only deprivations of medical care that produce physical torture and lingering death, but also less serious denials which cause or perpetuate pain.” (internal quotation omitted).

b. Subjective Test *24 Under the subjective test, deliberate indifference requires more than negligence: “a prison official does not act in a deliberately indifferent manner unless that official ‘knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” ’ Hathaway I, 37 F.3d at 66 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Defendants argue that plaintiffs allege, at most, negligence. See Hathaway v. Coughlin, 99 F.3d, 550, 553 (2d Cir.1996) (“Hathaway II” ) (“ ‘mere medical malpractice’ is not tantamount to deliberate indifference”). In particular, defendants assert that because Lorenzo made some efforts to treat plaintiffs (i.e., prescribing antibiotics and (erroneously) asthma medicine; and reporting to the ADMAX SHU to provide medical services to Iqbal), the allegations demonstrate direct attention to plaintiffs’ needs which negate a possible finding of indifference. See McGann v. Coombe, 1997 WL 88719, *2 (E.D.N.Y.1997) (prescription of improper gout medicine shows attention and not indifference to prisoner’s needs). In addition, defendants argue that because plaintiffs allege that Shacks instructed Lorenzo to leave the ADMAX SHU without providing medical assistance to Iqbal, the claim must fail unless plaintiffs’ can demonstrate a duty on Lorenzo’s part to disregard or override Shacks’s directions.
As demonstrated by virtually all of the cases cited by Lorenzo, determining whether her conduct is actionable will require some discovery. See, e.g., Richardson, 347 F.3d 431 (deciding issue on summary judgment); Hernandez v. Keane, 341 F.3d 137 (2d Cir.2003) (affirming grant of judgment as a matter of law after jury trial); see also Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (allegation that prison officials knew that diet was inadequate and likely to inflict pain and suffering sufficiently pleads the subjective element of the deliberate indifference test); cf. Fed.R.Civ.P. 9(b) (“Malice, intent, knowledge, and other conditions of mind of a person may be averred generally.”). Plaintiffs’ allegations that Lorenzo was deliberately indifferent when she misdiagnosed Elmaghraby and failed to treat Iqbal (albeit after being instructed not to provide treatment at the ADMAX SHU) are sufficient to state a claim.
The deliberate indifference standard for a prisoner’s Eighth Amendment claims was clearly established during the period of plaintiffs’ confinement at the MDC in 2001 and 2002. See Estelle, 429 U.S. at 106. Lorenzo asserts that plaintiffs have not shown “that she should reasonably have known that her conduct fell short of meeting her legal duties” under that standard, and thus she is entitled to qualified immunity. Reply Br. at 6. Although Lorenzo may ultimately prevail on that ground and others as well, it is too early to make the determination. What Lorenzo
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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
knew; whether she in fact made a misdiagnosis; if so, whether it was mere negligence; whether she was bound to follow Shacks’s direction; and whether she acted reasonably under the circumstances are among the questions that cannot be resolved at this early stage. Lorenzo’s motion to dismiss Claims Six and Seven is therefore denied.
5. Unreasonable Searches (Claim 9) *25 Plaintiffs allege that they were subjected to unreasonable strip and body-cavity searches in violation of the Fourth Amendment. Specifically, they allege that there was a policy under which (1) they were subjected to daily strip and body-cavity searches for no legitimate penological reason and without reasonable suspicion; and (2) they were searched multiple times whenever transported to court or the medical department, despite remaining in continuous custody from one search to the next. They further allege that Hawk Sawyer, Hasty, and Zenk were either instrumental in establishing the search policy or, knowing that the searches were being conducted in an unconstitutional manner, failed to prevent or remedy the practice.
Defendants contend that plaintiffs fail to state a violation of a clearly established right because the searches at issue served the legitimate goal of ensuring that detainees were not in possession of dangerous or unlawful contraband. They further assert that plaintiffs fail to sufficiently allege their personal involvement.
a. The Legal Standard The Fourth Amendment prohibits “unreasonable” searches, “a somewhat amorphous standard whose meaning varies with the context in which a search occurs and the circumstances of the search.” N.G. v. Connecticut, 382 F.3d 225, 230 (2d Cir.2004). The Supreme Court has held that a policy of subjecting pretrial detainees to strip searches after contact visits did not violate the Fourth Amendment, see Bell, 441 U.S. at 546, but “Bell did not ‘read out of the Constitution the provision of general application that a search be justified as reasonable under the circumstances.” ’ Shain v. Ellison, 273 F.3d 56, 64 (2d Cir.2001) (quoting Weber v. Dell, 804 F.2d 796, 800 (2d Cir.1986); see also Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir.1992) (pretrial detainees retain a limited right to bodily privacy, and thus have the right to be free from bodily searches that are unreasonable under the circumstances of their confinement); cf. N.G. v. Connecticut, 382 F.3d at 238 (Sotomayer, J., dissenting in part) (“Our caselaw consistently has recognized the severely intrusive nature of strip searches and placed strict limits on their use.”).

The Second Circuit has evaluated the constitutionality of strip and body-cavity searches under two different tests: the Covino/Turner reasonable relation test and the Shain/Weber reasonable suspicion test. Here, plaintiffs assert that Shain/Weber provides the applicable standard, while Hawk Sawyer contends that plaintiffs’ claim should be analyzed under the Covino/Turner reasonable relation standard. I agree with Hawk Sawyer.
In Covino, the Second Circuit evaluated whether a prison regulation permitting random visual body-cavity searches of a pretrial detainee violated the Fourth Amendment by analyzing whether the regulation was “reasonably related to legitimate penological interests.” 967 F.2d at 75, 78. In making such a determination, the Second Circuit applied the four-factor test set forth in Turner v. Safley, 482 U.S. 78 (1987): “(i) whether there is a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; (ii) whether there are alternative means of exercising the right in question that remain open to prison inmates; (iii) whether accommodation of the asserted constitutional right will have an unreasonable impact upon guards and other inmates ...; and (iv) whether there are reasonable alternatives available to the prison authorities.” Covino, 967 F.2d at 78-79 (citing Turner, 482 U.S. at 89-90). The Covino Court held that a random visual body-cavity search policy was not an unreasonable regulation, and affirmed the denial of a motion for a preliminary injunction. Id. at 80. The Court noted, though, that plaintiff’s claim had not been dismissed because “it was not clear from the testimony at the preliminary injunction hearing whether the search procedure was being applied in a purely random manner or if the searches were intended to harass, intimidate, or punish [the inmate]”. Id. at 80.

*26 In Shain, the Second Circuit reviewed its cases on the constitutionality of searching persons charged with misdemeanors,23 and held that, in light of those decisions, “no law enforcement officer reasonably could have believed that it was permissible to perform [a strip search on an individual arraigned on misdemeanor charges] absent individualized reasonable suspicion.” Shain, 273 F.3d at 59. Shain delineated a bright line between a prison, where convicted felons are housed, and a jail, “a place where persons awaiting trial or those convicted of misdemeanors are confined.” Id. at 65 (internal quotation omitted). In a prison, the appropriate test for determining the constitutionality of a search policy was the Covino/Turner reasonable relation test. Id. at 65-66. In a jail, on the other hand, the determination should be made by whether there was reasonable suspicion for the search. Id.

23

Those cases are Weber v. Dell, 804 F.2d 796 (2d

Cir.1986) (holding that the Fourth Amendment

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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
precludes prison officials from performing strip/body-cavity searches of arrestees charged with misdemeanors absent reasonable suspicion that the arrestee is concealing contraband); Walsh v. Franco, 849 F.2d 66 (2d. Cir.1988) (reaffirming Weber ); and Wachtler v. County of Herkimer, 35 F.3d 77 (2d Cir.1994) (applying Weber to post-arraignment strip searches of a person charged with a misdemeanor).

escort after initial search) (citing Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir.1980) (Bell rationale does not justify strip searches after noncontact, supervised visits absent a showing that there is some risk that contraband will be smuggled into the prison)). In sum, the success or failure of these claims as well will turn on the particular facts of the case.

Plaintiffs argue that the MDC is the federal equivalent of a jail, and thus the clearly established applicable law is Shain/Weber (Shain was decided on October 19, 2001). I conclude, however, that plaintiffs are much more closely situated to the pretrial detainee held in prison in Covino than the misdemeanants and minor offenders of Shain/Weber. The MDC holds both pre-trial detainees and convicted criminals of all security levels. Moreover, plaintiffs were pretrial detainees who had been flagged, legitimately or not, as being “of high interest” to the postSeptember 11 investigation and were being held in a maximum security unit.
At the very least, it was not clearly established in the fall of 2001 that pretrial detainees held in highly restrictive detention in a federal facility could be searched only upon reasonable suspicion. Cf. N.G. v. Connecticut, 382 F.3d at 235 (“Perhaps the Turner standard applies to a state facility confining juveniles ... awaiting trial for [conduct that would be a crime if committed by an adult.]”). There is no dispute, however, that during the period in which plaintiffs were confined in the ADMAX SHU, it was clearly established that a strip and body-cavity search policy had to be reasonably related to legitimate penological goals. See Bell, 441 U.S. 576; Covino, 967 F.2d at 76-78.
b. Reasonable Relation Under the Covino/Turner reasonable relation standard, plaintiffs state a constitutional violation. Plaintiffs assert that they were subjected to a policy of serial and daily suspicionless strip and body-cavity searches, and that such a policy was unmoored from any legitimate penological interest. Plaintiffs do not dispute that there are legitimate justifications for strip or body-cavity searches-see Bell, 441 U.S. at 558-560 (upholding body-cavity searches after contact visits); Covino, 967 F.2d at 77-80 (upholding random searches)-but they allege that such justifications were not present here. Cf. Covino, 967 F.2d at 80 (random visual searches are constitutional, but plaintiff’s claim not dismissed because it was unclear whether purportedly random search procedure was being used to harass or punish the inmate); Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir.1983) (second search of administrative detainee appears to be unreasonable when detainee had been under continuous

c. Personal Involvement *27 Hawk Sawyer, Hasty, and Zenk all seek dismissal based on an asserted failure to allege their personal involvement in the allegedly unreasonable searches. Hasty argues that plaintiffs do not allege that he participated in or witnessed any challenged search. Zenk contends that the specific searches alleged by plaintiffs occurred prior to April 22, 2002, the day Zenk became warden, and Hawk Sawyer argues that plaintiffs have failed to allege that she participated in, or was even informed of, the alleged unconstitutional searches.

Plaintiffs have sufficiently alleged the personal involvement of the Wardens. See McKenna, 386 F.3d at 433-34. Zenk’s claim that plaintiff’s allegations pre-date his involvement is defeated by my obligation to draw all factual inferences from the facts alleged in plaintiffs’ favor. Such a claim, if accurate, can be resolved at the Rule 56 stage after discovery has been completed.

I find, however, that plaintiffs’ have failed to adequately allege the involvement of Hawk Sawyer in the challenged searches. To be sure, Hawk Sawyer’s (and the BOP Defendants’)24 involvement is alleged in conclusory fashion at two locations in the complaint. See ¶¶ 134, 142. But those boilerplate allegations conflict with the specific allegation in ¶ 58 that “[t]he procedures for handling detainees on the ADMAX SHU was developed by [certain MDC personnel] at the request of Defendant Hasty.” Moreover, as compared to the alleged policy to deprive detainees of their due process rights, the strip search allegations against Hawk Sawyer draw less support from the context in which defendants’ conduct occurred.25 Accordingly, Hawk Sawyer’s motion to dismiss the claim is granted.

24

It is not clear from the complaint whether plaintiffs

intended to assert this claim against Cooksey and

Rardin, the other higher-level BOP Defendants.

Plaintiffs have not alleged grounds to support a claim

that Cooksey and Rardin were personally involved in

the unreasonable search policy. To the extent that

plaintiffs intended to assert such claims, those claims

are dismissed.

25

See Office of the Inspector General, Supplemental

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Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York 33-35 (December 2003) (discussing strip searches conducted by MDC staff, and stating that it did not appear that the MDC issued written policies for when detainees were to be strip searched, and to the extent there may have been a policy, it was applied inconsistently).

6. Interference with Religious Practices (Claim 10) Plaintiffs allege that, as a matter of policy, MDC officers interfered with their religious practices in violation of the Free Exercise Clause of the First Amendment. Specifically, plaintiffs allege that MDC officers banged on their cells while they were praying, routinely confiscated their copies of the Koran, and refused to permit plaintiffs to participate in Friday prayer services with other Muslims. Plaintiffs allege that the Wardens, among others, were instrumental in the implementation of such a policy, or that they knew (or should have known) that their subordinates were unlawfully interfering with plaintiffs’ religious practices but did nothing to curtail such actions. The Wardens assert, among other things, that plaintiffs should have complained through administrative channels, and that plaintiffs have failed to sufficiently allege their personal involvement. In addition, Hasty asserts that he reasonably deferred to the MDC chaplain on issues concerning the religious accommodation of inmates at the ADMAX SHU.
While inmates “clearly retain protections afforded by the First Amendment,” there are limitations based on institutional security, among other things. O’Lone v. Shabazz, 482 U.S. 342, 348-49 (1987). A challenge to a prison policy on those grounds requires the court to determine whether the policy is reasonably related to legitimate penological interests. Id. at 349. In O’Lone, the Court held that regulations that may prevent Muslims from attending Jumu‘ah (a weekly service held every Friday afternoon) were reasonably related to a legitimate concern for institutional safety.26 Id. at 345, 350-51, 53.

26

The challenged regulations in O’Lone concerned the

prison’s policies of assigning inmates to jobs outside

the main building and preventing those inmates from

returning to the main building during the day (where

the Jumu‘ah service was held). 482 U.S. at 355-47.

*28 Here, plaintiffs have stated a claim under the First Amendment. Whether the policy or policies that allegedly impinged on their rights existed, and if so whether they were reasonably related to legitimate objectives are not questions that can be resolved on a motion to dismiss. Cf. O’Lone, 482 U.S. at 350-353 (the Supreme Court’s

determination that regulations were reasonably related to legitimate objectives was grounded in testimony by, among others, prison officials at a two-day hearing before the district court). Similarly, whether Hasty deferred to the MDC chaplain, and whether such deference was reasonable, are questions for summary judgment or trial.
Plaintiffs have also sufficiently alleged the Wardens’ personal involvement. They need not allege that the Wardens themselves banged on cells or confiscated Korans to state a claim of supervisory liability. Cf. Noguera v. Hasty, 2001 WL 243535, at *3 (S.D.N.Y. March 12, 2001) (where “the parties dispute almost every fact relevant to the qualified immunity determination, particularly the extent of the information provided to [the supervisory defendants] ... and the response of those officers to the information provided,” summary judgment is not warranted). Plaintiffs have alleged that the Wardens had knowledge of the violations and allowed them to continue; their disavowal of such knowledge does not warrant dismissal of these claims.
7. Racial and Religious Discrimination (Claims 11 and 12) Plaintiffs allege that harsher conditions of confinement were imposed upon them because of their religious beliefs and race, in violation of the First Amendment and the Equal Protection Clause of the Fifth Amendment, respectively. They claim that defendants created or implemented such a discriminatory policy, or failed to remedy the policy once it was imposed. Defendants assert that plaintiffs fail to state a constitutional violation and have not sufficiently alleged their personal involvement
“No person can be punished for entertaining or professing religious beliefs or disbeliefs.” People of State of Ill. ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign County, Ill., 333 U.S. 203, 210 (1948) (internal quotation omitted). While the protections afforded by the First Amendment may be limited in the prison setting for legitimate penological reasons, see O’Lone v. Shabazz, 482 U.S. at 348-49, a prisoner may not be punished because of his religious beliefs. See, e.g., Cooper v. Pate, 378 U.S. 546, 546 (1964) (prisoner’s denial of privileges because of religious beliefs states a § 1983 claim) (citing Pierce v. LaVallee, 293 F.2d 233, 235 (2d Cir.1961) (prisoner’s allegation of punishment based upon religious beliefs states a First Amendment claim)); Salahuddin v. Dalsheim, 1996 WL 384898, at *12 (S.D.N.Y. July 9, 1996) (denying motion to dismiss where inmate alleged that his transfer to a new facility violated his free exercise rights). Nor can a prisoner be punished because of his race. See, e.g., Turner, 482 U.S. at 84 (prisoners protected against invidious racial discrimination by the Equal Protection Clause); cf. Johnson v. California, 125 S.Ct. 1141, 1146 (2005) ( “all
21

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
racial classifications” imposed by government, including those in the prison context, must be analyzed under strict scrutiny).
*29 Defendants contend that plaintiffs cannot state an equal protection claim because they have not alleged sufficient facts to show that (1) defendants acted with discriminatory animus or (2) plaintiffs were treated differently than members of another protected class. I disagree.
Proof of racially discriminatory intent is required to establish a violation of the Equal Protection Clause. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977). Such proof is not required, however, to survive a motion to dismiss. See Phillip v. Univ. of Rochester, 316 F.3d 291, 298 (2d Cir.2003) (allegation that plaintiffs were singled out for maltreatment from a group that contained non-minorities is sufficient to survive a motion to dismiss). Arlington Heights, which defendants rely upon, is not to the contrary. There, the Court upheld a challenged zoning decision because the respondents, after trial, had “failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision.” 429 U.S. at 270. The Court elaborated on the fact-specific nature of the inquiry: “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Id. at 266. Such evidence may include the “historical background of the decision” and the “specific sequence of events leading up to the challenged decision.” Id. at 267.
Here, plaintiffs allege that they were confined under significantly harsher conditions than other pretrial detainees because of their race and religion, and not because of any evidence that they were involved in terrorist activity. I cannot conclude as a matter of law that there is no set of facts consistent with plaintiffs’ allegations that could entitle them to relief.
Defendants argue that plaintiffs fail to describe how defendants’ treatment of other races was different than the treatment of plaintiffs. Plaintiffs are not required, however, to plead such facts in order to proceed with their claim. See Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir.2001) (“a plaintiff who ... alleges an express racial classification ... is not obligated to show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection.”). In any event, the allegation that plaintiffs were singled out for harsher treatment because of race and religion necessarily implies that other non-Muslim, non-Arab prisoners confined at MDC during the same period were not subjected to similarly harsh treatment. See People United for Children, Inc. v. The City of New York, 108 F.Supp.2d 275, 297 n. 15 (S.D.N.Y.2000)

(denying motion to dismiss equal protection claims; allegations imply that plaintiffs were treated differently).
a. Personal Involvement Defendants argue that plaintiffs have failed to sufficiently allege their personal involvement. I agree with respect to the BOP Defendants but not with respect to Ashcroft, the FBI Defendants, or the Wardens. Plaintiffs assert that Ashcroft was the principal architect of the challenged policies (Compl.¶ 10), and that Rolince and/or Maxwell classified them as “of high interest” because of their race, religion, or national origin. (Compl.¶ 51.) In support of this assertion, plaintiffs allege that “all Arab Muslim men arrested on criminal or immigration charges while the FBI was following an investigative lead into the September 11th attacks-however unrelated the arrestee was to the investigation-were immediately classified as “of interest” to the post-September 11th investigation. (Compl.¶ 52.) Taking those allegations as true, it cannot be said that there are no set of facts on which the plaintiffs would be entitled to relief as against Ashcroft and the FBI Defendants. Though Plaintiffs assert that the BOP defendants were instrumental in the imposition of the challenged policies, they do not allege that those defendants were involved in the challenged classification. Accordingly, these claims are dismissed against the BOP Defendants. Although plaintiffs also have not alleged that the Wardens were involved in their initial classification, they have alleged that the Wardens were personally involved in imposing harsher conditions of confinement because of plaintiffs’ race and religion. Such a challenge, combined with the allegations of their treatment at the MDC, is sufficient to state a claim against the Wardens and defeat the assertion of qualified immunity on a motion to dismiss.
F. Plaintiffs’ Statutory Claims
1. Religious Freedom Restoration Act (Claims 13-15) *30 Plaintiffs allege violations of their rights under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (“RFRA”). Specifically, they allege that because of their religious beliefs, they were subjected to (1) harsher conditions of confinement; (2) interference with their religious practice; and (3) physical and verbal abuse, and that these actions imposed a substantial burden on their religious exercise and belief. Defendants assert, among other things, that they are entitled to qualified immunity because it was not clearly established in October 2001 that RFRA applied to federal officials. I agree.
RFRA prohibits government27 from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicability unless
22

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

the government can demonstrate the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court “invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment.” Cutter v. Wilkinson, 125 S.Ct. 2113, 2118 (2005).

27

The term “government” includes “a branch,

department, agency, instrumentality, and official (or

other person acting under color of law) of the United

States.” § 2000bb-2(1). RFRA accordingly reaches

officials acting in their individual capacities See

Solomon v. Chin, 1997 WL 160643, at *5 (S.D.N.Y.

April 7, 1997) (allowing claim under RFRA to proceed

against prison officers in their individual capacities).

support for the proposition that RFRA’s applicability to the federal government was clearly established. Moreover, in Ford v. McGinnis, 352 F.3d 582 (2d Cir.2003), the Second Circuit stated that the Supreme Court had “invalidated” RFRA:

28

Following Browne, at least one district court in this

circuit has noted that RFRA continues to apply to the

federal government, see Marrero v. Apfel, 87 F.Supp.2d

340, 348 (S.D.N .Y.2000) (construing claim that pro se

applicant was entitled to Social Security benefits on the

ground that his religious faith prevents him from

working a regular job as a claim under RFRA), while

another district court assumed that RFRA continued to

apply to the federal government where neither party

challenged its continuing applicability. United States v.

Any and All Radio Station Equipment, 93 F.Supp.2d

414, 418 n. 4 (S.D.N.Y.2000).

Plaintiffs argue that RFRA’s application to federal officials was clearly established during the relevant period because (1) Browne v. United States, 176 F.3d 25 (2d Cir.1999), implicitly holds that RFRA applies to federal officials; (2) other circuit courts that have considered the question post-Boerne have uniformly held that RFRA applies to federal officials; and (3) Congress amended RFRA post-Boerne (and prior to the alleged violations here) to eliminate references to state governments, and thus defendants could not have reasonably believed that RFRA did not apply to their actions. I find, however, that support for the proposition that it was clearly established in the Second Circuit that RFRA applied to federal officials during the 2001-2002 period is too tenuous to provide a basis for denying qualified immunity. Cf. Back, 365 F.3d at 129-130 (clearly established analysis based on whether the decisional law of the Supreme Court and the applicable circuit court supports the existence of the right in question).
Neither the Supreme Court nor the Second Circuit has directly addressed the applicability of RFRA to federal officials post-Boerne. See Cutter, 125 S.Ct. at 2118 n. 2 (“RFRA, Courts of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. This Court, however, has not had occasion to rule on the matter.”) (citations omitted); Browne, 176 F.3d at 26. In Browne, the Second Circuit affirmed the dismissal of a claim asserting that an IRS judgment violated RFRA. Id. The district court had questioned RFRA’s continuing constitutionality post-Boerne, but assumed it was constitutional for the purposes of its decision. See Browne v. United States, 22 F.Supp.2d 309, 312 (D.Vt.1998). On appeal, the Second Circuit did not discuss RFRA’s constitutionality.28 In comparison to the thorough discussion of the question by appellate courts that have directly addressed the issue (discussed below), the Browne court’s silence does not provide strong

*31 While it was still good law, we dutifully applied RFRA’s substantial burden test to prisoners’ free exercise claims, despite the Supreme Court’s suggestion in [Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990) ] that so doing puts courts in “the unacceptable business of evaluating the relative merits of differing religious claims.” Now with RFRA invalidated, however, the Circuits apparently are split over whether prisoners must show a substantial burden on their religious exercise in order to maintain free exercise claims. 352 F.3d at 592 (quoting Smith, 494 U.S. at 887, other citations omitted). While the holding in Ford concerned RFRA’s applicability to the states, the Second Circuit did not temper its language to make this distinction clear. Plaintiffs argue that all other circuit courts that have squarely addressed the issue have held that RFRA continues to apply to the federal government29 and that even where there is no Second Circuit or Supreme Court authority directly on point, decisions of other circuits may warrant the conclusion that a right was clearly established. In fact, the Second Circuit’s decisions have sent “conflicting signals” on the latter issue, see African Trade & Information Center, Inc. v. Abromaitis, 294 F.3d 355, 361 (2d Cir.2002), but I need not resolve it here, as the cases plaintiffs rely on suggest that during the 2001-2002 period in question here, RFRA’s applicability to the federal government was unclear. For example, in 2003, prior to its holding in O’Bryan, the Seventh Circuit stated only that Boerne had “left open the possibility” that RFRA still applied to the federal government. See United States v. Israel, 317 F.3d 768, 770-71 (7th Cir.2003) (assuming RFRA’s constitutionality as applied to the federal government where neither party contested it). Similarly, the Ninth Circuit explained in Guam v. Guerrero that it previously had “not definitively held
23

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

RFRA constitutional as applied in the federal realm.” 290 F.3d at 1220. And Kikumura reversed a district court’s holding that Boerne had rendered RFRA claims against federal prison officials unconstitutional as well. 242 F.3d at 958-60. Thus, the legal landscape in which the actions challenged in this case occurred differs markedly from that of Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir.1997) (finding reasonable suspicion standard for strip searching prison visitors was clearly established where three other circuits had so held prior to the search at issue and second circuit decisions had “foreshadowed” that standard); and Weber, 804 F.2d at 803-04 (relying on eleven decisions from other circuit courts, three of which antedated questioned search, in finding law clearly established).

29

See Madison v. Riter, 355 F.3d 310, 315 (4th Cir.2003);

O’Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th

Cir.2003); Guam v. Guerrero, 290 F.3d 1210, 1220-22

(9th Cir.2002); Kikumura v. Hurley, 242 F.3d 950,

958-60 (10th Cir.2001); In re Young, 141 F.3d 854,

858-863 (8th Cir.1998).

I find that it was not clearly established in October 2001 that RFRA applied to the federal government. Accordingly, defendants are entitled to qualified immunity and the motions to dismiss these claims are granted.

2. Conspiracy Under 42 U.S.C. § 1985(3) (Claims 16 and 17) *32 Plaintiffs claim that the defendants conspired to deprive them of equal protection of the laws and of equal privileges and immunities of the laws because of plaintiffs’ religious beliefs, race, and national origin, in violation of 42 U.S.C. § 1985(3). Specifically, plaintiffs claim that (1) Ashcroft, Mueller, the BOP Defendants, and the Wardens, among others, agreed to subject plaintiffs to unnecessarily harsh conditions of confinement without due process; (2) the BOP Defendants and the Wardens, among others, agreed to subject plaintiffs to unnecessary and extreme strip and body-cavity searches as a matter of policy; and (3) the Wardens and other MDC defendants agreed to substantially burden Elmaghraby’s religious practice while he was housed in the ADMAX SHU. Defendants assert that (1) they are entitled to qualified immunity because it is not clearly established law in the Second Circuit that 42 U.S.C. § 1985(3) applies to suits against federal officers; and (2) plaintiffs fail to sufficiently allege facts establishing their personal involvement in the alleged deprivations.
42 U.S.C. § 1985(3) reads, in pertinent part:
If two or more persons in any State

or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
To make out a violation of 42 U.S.C. § 1985(3), a plaintiff “must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” United Brotherhood of Carpenters v. Scott, 463 U.S. 825, 828-29 (1983). With respect to the second element, a plaintiff must show that the conspiracy was motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Id. (internal quotation omitted); see also Posr v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir.1999); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.1993).
a. Clearly Established Law Defendants argue that the Second Circuit has never recognized that 1985(3) is available for suits against federal officials sued in their individual capacities. In Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), the Second Circuit held that the United States Attorney General had absolute immunity from civil actions for malicious prosecution. 177 F.2d at 581. In reaching its decision, the court implied that § 1985(3) required state action. Id. In Griffin v. Breckenridge, 403 U.S. 88 (1971), the Supreme Court held that § 1985(3) did not contain a state action limitation. 403 U .S. at 101. The Court stated that instead, a plaintiff was required to establish “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102.
24

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)
*33 Like other district courts in this circuit, I conclude that the “holding in Griffin necessarily extends section 1985(3) to reach racially motivated conspiracies involving federal officers.” Li v. Canarozzi, 1997 WL 40979, at *4 (S.D.N.Y. Feb. 3, 1997). As Judge Sand reasoned:
Although the Second Circuit has yet to adopt this broader reading of 1985(3), its most recent authority to the contrary, Gregoire v. Biddle, preceded not only the Supreme Court’s decision in Griffin but also the evolution of the doctrine of qualified immunity.... The Gregoire Court’s holding followed a discussion of the danger of allowing federal officials to be sued for conduct in the course of their official duties. Many of those concerns are now addressed by the various immunities available to federal officials, including those arising pursuant to the FTCA and qualified immunity.
1997 WL 40979, at *3 (citations omitted); see also Moriani v. Hunter, 462 F.Supp. 353, 356 (S.D.N.Y.1978) (“Unless there is a rationale, unknown to the past cases, for holding that federal officers are not ‘persons’ under § 1985(3), there is no longer any reason to exclude from coverage federal officers acting under color of federal law.”); Hobson v. Wilson, 737 F.2d 1, 44 (D.C.Cir.1984) (Gregoire effectively overruled by Griffin; applying § 1985(3) to FBI agents); Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982) (§ 1985(3) action available against federal officials). I conclude that, after Griffin, it was clearly established that § 1985(3) applied to federal officers.
b. Personal Involvement To survive a motion to dismiss on a conspiracy claim, a plaintiff “must provide some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end.” Webb v. Gourd, 340 F.3d 105, 110 (2d Cir.2003) (internal quotation omitted). Plaintiffs are also required to allege “with at least some degree of particularity, overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy.” Thomas v. Roach, 165 F.3d 137, 147 (2d Cir.1999).
Plaintiffs assert that they have met these standards by alleging that various defendants agreed to deprive plaintiffs of their rights, and by alleging that defendants adopted and implemented policies which deprived

plaintiffs of these rights. As discussed in connection with plaintiffs’ Fourth Amendment claim, plaintiffs have not sufficiently alleged the personal involvement of the BOP Defendants in subjecting them to “unnecessary and extreme strip and body-cavity searches,” and the BOP Defendants’ motions are granted as to that alleged agreement. In all other respects, defendants motions to dismiss the § 1985 claims are denied. As discussed above, I am mindful of the fact that cabinet-level and other high-ranking government officials may not properly be burdened by litigation based on conclusory allegations that they are responsible (through policy-making or failing to supervise) the alleged torts of federal employees. Nevertheless, I am not convinced, given the particularized allegations in paragraphs 249-51 and the virtually unique context in which the alleged actions occurred, that there is no set of facts consistent with those allegations on which plaintiffs will be entitled to relief against the defendants.
3. Alien Tort Statute (Claim 21) *34 Plaintiffs allege that the moving defendants engaged in acts which “had the intent and the effect of grossly humiliating Plaintiffs, forcing them to act against their will and conscience, inciting fear and anguish, and breaking their physical and moral resistance.” Compl. ¶ 267. Plaintiffs assert that these acts constituted cruel, inhuman, or degrading treatment in violation of international law, and bring a claim under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”).
The United States moves to be substituted for the individual defendants pursuant to the Liability Reform Act, 28 U.S.C. § 2679, and for dismissal of the ATS claim on the ground of sovereign immunity. In addition, defendants assert that they are entitled to qualified immunity because, among other things, it was not clearly established during the relevant period what acts fall within the ambit of the ATS.
Plaintiffs concede that if the motion for substitution is granted, then the ATS claims should be dismissed because the United States has not waived its sovereign immunity from claims for money damages brought pursuant to the ATS. See Pl.’s Opp’n. Mem. at 5.
a. Liability Reform Act The Liability Reform Act provides that for civil actions based on the wrongful conduct of federal employees acting within the scope of their employment, the only available remedy is a claim under the Federal Tort Claims Act against the government itself. 28 U.S.C. § 2679(b). There are two exceptions to this exclusive remedy provision. It does not apply to actions against an employee of the government “brought for a violation of
25

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

the Constitution of the United States, or ... for a violation

(D.D.C.2004) (“The plain language of AT[S], however,

of a statute of the United States under which such action

does not confer rights nor does it impose obligations or

against an individual is otherwise authorized.” 28 U.S.C.

duties that, if violated, would trigger the § 2672(b)(2)(B)

§ 2679(b)(2)(A), (B).

exception.... A claim brought pursuant to the AT[S],

therefore, is based on violation of rights conferred under

Although the question is not free from doubt, I find that

international law, not the AT[S].”); Alvarez-Machain v.

because it is “international law cum common law” see

United States, 331 F.3d 604, 631-32 (9th Cir.2003) (en

Sosa v. Alvarez-Machain, 124 S.Ct. 2739, 2754 (2004),

banc), reversed on other grounds sub nom., Sosa v.

that defines the claims for which the ATS provides

Alvarez-Machain, 124 S.Ct. 2739 (2004); Schneider v.

jurisdiction, the statute does not fall into the §

Kissinger, 310 F.Supp.2d 251, 266-67 (D.D.C.2004);

2679(b)(2)(B) exception to the Liability Reform Act.

Bieregu v. Ashcroft, 259 F.Supp.2d 342, 353

(D.N.J.2003).

The ATS reads in its entirety as follows: “The district

courts shall have original jurisdiction of any civil action

Because the ATS is not a statute that itself can be violated,

by an alien for a tort only, committed in violation of the

it does not fall within the § 2679(b)(2)(B) exception.

law of nations or a treaty of the United States.” 28 U.S.C.

Accordingly, the government’s motion for substitution is

§ 1350. The statute, although “in terms only

granted. Because the United States has not waived its

jurisdictional,” enables “federal courts to hear claims in a

sovereign immunity from suits seeking money damages

very limited category defined by the law of nations and

under international law, its motion to dismiss the ATS

recognized at common law.” Sosa, 124 S.Ct. at 2754. In

claim is granted. See Federal Deposit Ins. Corp. v. Meyer,

Sosa, the Court concluded that although the ATS did not

510 U .S. 471, 474 (1994) (absent an express waiver of

create new causes of action, “[t]he jurisdictional grant is

sovereign immunity, a plaintiff may not sue the United

best read as having been enacted on the understanding

States in federal court).30

that the common law would provide a cause of action for

the modest number of international law violations with a potential for personal liability at the time.” Id. at 2761.

30

Because I find that the ATS does not fall within an

exception to the Liability Reform Act and grant the

*35 Plaintiffs argue that because the ATS authorizes a

United States’ motions for substitution and dismissal of the ATS claims, I need not decide whether it was

limited category of actions, it falls within the § 2672(b)(2)(B) exception for violations of a statute. The ATS does not, however, impose any duties or obligations

clearly established that the alleged violations of international law fell within the ambit of the ATS during the relevant period.

on an individual. See United States v. Smith, 499 U.S. 160,

174 (1991) (holding that the § 2679(b)(2)(B) exception

did not apply to the Gonzalez Act, 10 U.S.C. § 1089,

which immunized federal employees from individual

medical malpractice suits). In Smith, the Court concluded that the § 2679(b)(2)(B) exception did not apply because

CONCLUSION

the Gonzalez Act itself could not be violated: “Nothing in the Gonzalez Act imposes any obligations or duties of care upon military physicians,” and therefore “a physician

For the foregoing reasons, the motions to dismiss are granted in part and denied in part:

allegedly committing malpractice under state or foreign

law does not ‘violate’ the Gonzalez Act.” 499 U.S. at 174.

Similarly, the ATS itself cannot be “violated.” See

	  

Bancoult v. McNamara, 370 F.Supp.2d 1, 10

Claim	  1:	  

The	  Wardens’	  motions	  to	  dismiss	  are	  denied.	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

Claim	  2:	  

Defendants’	  motions	  to	  dismiss	  are	  denied.	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

Claim	  3-­‐4:	  

Hasty’s	  motion	  to	  dismiss	  is	  denied.	  

26

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

	  	   	   	  	   	   Claim	  5:	   	  	   	   	  	   	   Claims	  6-­‐7:	   	  	   	   	  	   	   Claim	  8:	   	  	   	   	  	   	   Claim	  9:	   	  	   	  
	  
	  	   	   Claim	  10:	   	  	   	   	  	   	   Claims	  11-­‐12:	   	  	   	  
	  
	  
	  	   	   Claims	  13-­‐15:	   	  	  

	  	   	   	  
Hasty’s	  motion	  to	  dismiss	  is	  denied.	   	  	   	   	  
Lorenzo’s	  motion	  to	  dismiss	  is	  denied.	   	  	   	   	  
The	  Wardens’	  motions	  to	  dismiss	  are	  denied.	   	  	   	   	  
The	  Wardens’	  motions	  to	  dismiss	  are	  denied.	  Hawk	   Sawyer’s	   	  	   	   motion	  to	  dismiss	  is	  granted.	   	  	   	   	  
The	  Wardens’	  motions	  to	  dismiss	  are	  denied.	   	  	   	   	  
The	  Wardens’	  motions	  to	  dismiss	  are	  denied.	  Ashcroft	   and	  the	   	  	   	   FBI	  Defendants’	  motions	  to	  dismiss	  are	  denied.	  The	  BOP	   	  	   	   Defendants’	  motions	  to	  dismiss	  are	  granted.	   	  	   	   	  
Defendants’	  motions	  to	  dismiss	  are	  granted.	   	  	  
27

Elmaghraby v. Ashcroft, Not Reported in F.Supp.2d (2005)

	   	  	   	   Claims	  16-­‐17:	   	  	   	  
	  
	  
	  
	  	   	   Claim	  21:	   	  	   	  
	  

	   	  
The	  BOP	  Defendants’	  motions	  to	  dismiss	  are	  granted	  with	   respect	   	  	   	   to	  the	  alleged	  agreement	  to	  subject	  plaintiffs	  to	   unnecessary	  and	   	  	   	   extreme	  strip	  and	  body-­‐cavity	  searches.	  In	  all	  other	   respects,	   	  	   	   Defendants’	  motions	  to	  dismiss	  are	  denied.	   	  	   	   	  
The	  United	  States’	  motions	  for	  substitution	  and	  dismissal	   are	   	  	   	   granted.	  The	  claim	  is	  dismissed	  as	  to	  all	  defendants.	   	  	   	  

	  
*36 So Ordered.

28

 
 Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 1 of 67
CLOSED,CONSOLIDATED,MAGAPP
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:04−cv−01809−JG−SMG

Elmaghraby et al v. Ashcroft et al Assigned to: Judge John Gleeson Referred to: Chief Mag. Judge Steven M. Gold Cause: 42:1983 Civil Rights Act
Plaintiff
Ehab Elmaghraby TERMINATED: 03/15/2006

Date Filed: 05/03/2004 Date Terminated: 11/10/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Alexander A. Reinert Koob &Magoolaghan 221 Devoe Avenue Yonkers, NY 10705 914−964−8888 Fax: 914−964−8801 Email: aar@kmlaw−ny.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Haeyoung Yoon The Urban Justice Center 123 William Street 16th Floor New York, NY 10038 646−459−3003 Fax: 212−533−4598 Email: hyoon@urbanjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mamoni Bhattacharyya Weil, Gotshal &Manges, LLP 767 Fifth Avenue New York, NY 10153 212−310−8617 Fax: 212−310−8007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Javaid Iqbal

represented by Alexander A. Reinert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Haeyoung Yoon (See above for address) TERMINATED: 08/24/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joan Marie Magoolaghan Koob &Magoolaghan 19 Fulton Street Ste. 408 New York, NY 10038 212−406−3095 Fax: 212−348−4962 Email: nymagoo@aol.com LEAD ATTORNEY

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 2 of 67
ATTORNEY TO BE NOTICED
Mamoni Bhattacharyya (See above for address) TERMINATED: 02/25/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rima Jennifer Oken Weil, Gotshal &Manges LLP 767 Fifth Avenue New York, NY 10153−0119 212−310−8323 Fax: 212−310−8007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harvey David Epstein Urban Justice Center 123 William Street 16th Floor New York, NY 10038 (646) 459−3002 Fax: (212) 533−4598 Email: hepstein@urbanjustice.org ATTORNEY TO BE NOTICED

V.
Defendant
John Ashcroft Attorney General of the United States

represented by Brian D Miller Office of the U.S. Attorney, E.D. Va. Civil Division 2100 Jamieson Avenue Alexandria, VA 22314 703−299−3809 Fax: 703−299−3983 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dennis C. Barghaan Office of the United States Attorney, VAED Civil Division 2100 Jamieson Avenue Alexandria, VA 22314 703−299−3700 Fax: 703−299−3983 Email: dennis.barghaan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Larry L Gregg Office of the U.S. Attorney, E.D. Va. Civil Divison 2100 Jamieson Avenue Alexandria, Va 22314 (703) 299−3700 Fax: 703−299−3983 Email: larry.gregg@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard W Sponseller

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 3 of 67

Office of the U.S. Attorney, E.D. Va Civil Division 2100 Jamieson Avenue Alexandria, VA 22314 (703) 299−3700 Fax: 703−299−3983 Email: richard.sponseller@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kathleen Hawk Sawyer former Director of the Federal Bureau of Prisons

represented by Jaime H. Weinberg Sheppard Mullin Richter &Hampton LLP 1300 I Street, N.W., 11th Floor East Washington, DC 20005−3314 202−218−0000 Email: jweinberg@sheppardmullin.com TERMINATED: 09/26/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Julian Vecchione Valad and Vecchione 3863 Plaza Drive Fairfax, VA 22030 703−352−4800 Email: jvecchione@valadlaw.com TERMINATED: 09/26/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark E. Nagle U.S. Attorney's Office Judiciary Center Building 555 Fourth Street, NW 10th Floor Washington, DC 20001 TERMINATED: 09/26/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Earl Nagle Troutman Sanders LLP 401 Ninth Street, N.W. Suite 1000 Washington, DC 20004 202−274−2972 Fax: 202−654−5666 Email: mark.nagle@troutmansanders.com ATTORNEY TO BE NOTICED

Defendant
Dennis Hasty former Warden of the Metropolitan Detention Center

represented by Frederick Ryan Keith Crowell &Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004 (202) 624−2904 Fax: 202−628−5116 TERMINATED: 04/15/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kyler Smart

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 4 of 67

Crowell &Moring LLP 1001 Pennsylvania Avenue NW Washington, DC 20004 202−624−2906 Fax: 202−628−5116 Email: ksmart@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Scarlato Crowell &Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004−2595 (202) 628−5116 Email: mscarlato@crowell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael L. Martinez Crowell &Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004−2595 202−624−2945 Fax: 202−628−5116 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Justin P. Murphy Crowell &Moring LLP 1001 Pennsylvania Avenue, N.W. Washington, DC 20004−2595 202−624−2536 Fax: 202−628−5116 Email: justin.murphy@crowell.com ATTORNEY TO BE NOTICED

Defendant
Michael Zenk Warden of the Metropolitan Detention Center

represented by Allan Noel Taffet Duval &Stachenfeld LLP 101 Park Avenue 11th Floor New York, NY 10178 212−883−1700 Fax: 212−883−8883 Email: ataffet@dsllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Linda Thomas former Associate Warden of Programs of the Metropolitan Detention Center

represented by Linda Marie Marino Flemming, Zulack Williamson Zauderer, LLP One Liberty Plaza New York, NY 10006 212−412−9520 Fax: 212−964−9200 Email: lmarino@fzwz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Archena Bhalla Flemming Zulack Williamson Zauderer LLP One Liberty Plaza, 35th Floor

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 5 of 67

New York, NY 10006 212−412−9537 Fax: 212−964−9200 Email: abhalla@fzwz.com ATTORNEY TO BE NOTICED

Joshua G. Oberman Flemming Zulack Williamson Zauderer LLP One Liberty Plaza New York, NY 10006−1404 212−412−9500 Fax: 212−964−9200 ATTORNEY TO BE NOTICED

Defendant Lieutenant William Beck

represented by William Beck 145 North Laurel Street Hazleton, PA 18201 (570) 578−9145 Email: whbeck@msn.com PRO SE

James G. Ryan Cullen and Dykman, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 (516) 357−3700 Fax: (516) 296−9155 Email: jryan@cullenanddykman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Goldman 73 Spring Street, Suite 402 New York, NY 10012 TERMINATED: 05/24/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer A. McLaughlin Cullen and Dykman Bleakley Platt, LLP 100 Quentin Roosevelt Boulevard Garden City, NY 11530 516−357−3713 Fax: 516−296−9155 Email: jmclaughlin@cullenanddykman.com ATTORNEY TO BE NOTICED

Defendant
Lieutenant Thomas Cush Lieutenant

Defendant Lieutenant Howard Gussak

represented by Kenneth C. Murphy Simon &Partners LLP 30 Rockefeller Plaza, 42nd Floor New York, NY 10112 212−332−8900 Fax: 212−332−8909 Email: kcmurphy@simonlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 6 of 67

Defendant Lieutenant Daniel Ortiz Defendant Corrections Officer Angel Perez
Defendant Lieutenant Steven Barrere Defendant Unit Manager Clemett Shacks
Defendant Corrections Officer Michael Defrancisco
Defendant Lieutenant Marcial Mundo TERMINATED: 07/12/2006

Laura L Nagel Simon &Partners LLP 30 Rockefeller Plaza 42nd Floor New York, NY 10112 212−332−8900 Fax: 212−332−8909 TERMINATED: 06/26/2006 ATTORNEY TO BE NOTICED
represented by David A Koenigsberg Menz Bonner Komar &Koenigsberg LLP 444 Madison Avenue, 39th Floor New York, NY 10022 212−223−2100 Fax: 212−223−2185 Email: dkoenigsberg@mbkklaw.com TERMINATED: 04/07/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James G. Ryan (See above for address) ATTORNEY TO BE NOTICED
represented by Barry M. Lasky Lasky &Steinberg PC 595 Stewart Avenue Suite 410 Garden City, NY 11530 516−227−0808 Fax: 516−745−0969 Email: bmlpc@aol.com ATTORNEY TO BE NOTICED
represented by Alan E. Wolin Wolin &Wolin, Esqs. 420 Jericho Turnpike Suite 215 Jericho, NY 11753 516−938−1199 Fax: 516−938−1178 Email: wolinlaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James F. Matthews Matthews &Matthews 191 New York Avenue Huntington, NY 11743 631−673−7555 Fax: 631−425−7030 Email: jmatthewslaw@aol.com

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 7 of 67

ATTORNEY TO BE NOTICED

Defendant
Capt. Robinson Corrections Officer TERMINATED: 09/30/2004

Defendant Corrections Officer Raymond Cotton

represented by Nicholas Gregory Kaizer Levitt &Kaizer 40 Fulton Street, 23rd Floor New York, NY 10038−5077 212 480−4000 Fax: 212 480−4444 Email: nkaizer@richardlevitt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yvonne Shivers Levitt &Kaizer 40 Fulton Street 23rd Floor New York, NY 10038 212−480−4000 Email: yshivers@landklaw.com ATTORNEY TO BE NOTICED

Defendant
Hosain Corrections Officer TERMINATED: 09/30/2004

Defendant Lieutenant Elizabeth Torres

represented by Linda Cronin Cronin &Byczek LLP 1983 Marcus Avenue Suite C−120 New Hyde Park, NY 11042 516−358−1700 Fax: 516−358−1730 Email: lcronin@cblawyers.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond Granger Granger &Associates, LLC 40 Fulton Street 23rd Floor New York, NY 10038 212−732−7000 Fax: 212−732−7001 Email: rgranger@grangerassociates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina A Leonard Cronin &Byczek LLP 1981 Marcus Avenue New Hyde Park, NY 11042 516−358−1700 Fax: 516−358−1730 TERMINATED: 04/12/2007

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 8 of 67

ATTORNEY TO BE NOTICED

Defendant
Nora Lorenzo Physician's Assistant

represented by Cary M Feldman Feldesman Tucker Leifer Fidell LLP 2001 L Street NW Washington, DC 20036 202−466−8960 Fax: 202−293−8103 Email: caryf@feldesmantucker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grace B. Culley Feldesman Tucker Leifer Fidell LLP 2001 L Street Second Floor Washington, DC 20036 (202) 466−8960 Fax: (202) 293−8103 Email: gculley@feldesmantucker.com TERMINATED: 07/07/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew S. Freedus Feldesman Tucker Leifer Fidell LLP 2001 L Street Second Floor Washington, DC 20036 (202)466−8960 Fax: (202)293−8103 Email: mfreedus@feldesmantucker.com ATTORNEY TO BE NOTICED

Robert A. Graham Feldesman Tucker Leifer Fidell LLP 2001 L Street, Nw Second Floor

Washington, DC 20036

202−466−8960 Fax: 202−293−8103 Email: rgraham@ftlf.com ATTORNEY TO BE NOTICED

Defendant
"John Doe" Corrections Officers Nos. 1−32, "John Doe" being fictional first and last names TERMINATED: 09/30/2004

Defendant Corrections Officer Richard Diaz

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Corrections Officer Jon Osteen

represented by David A Koenigsberg (See above for address)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 9 of 67

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Melissa Kelly Driscoll Menz Bonner &Komar LLP 140 East 45th Street 20th Floor New York, NY 10017 212−223−2100 Fax: 212−223−2185 Email: mdriscoll@mbklawyers.com ATTORNEY TO BE NOTICED

Defendant United States of America

represented by Armelle Nina VanDorp United States Department of Justice 1331 Pennsylvania Ave NW, Suite 8080n Washington, DC 20004 202−514−0130 Fax: 202−616−5200 ATTORNEY TO BE NOTICED

Paul David Stern United States Department of Justice 1331 Pennsylvania Avenue, NW Room 8020n Washington, DC 20004 202−616−2197 Fax: 202−616−5200 Email: paul.david.stern@usdoj.gov ATTORNEY TO BE NOTICED

Stephen E. Handler U.S. Department of Justice Torts Branch, Civil Division Benjamin Franklin Station P.O. Box 888 Washington, DC 20044 (202) 616−4279 Fax: 202−616−5200 Email: Stephen.Handler@usdoj.gov ATTORNEY TO BE NOTICED

Tabitha Justice Department of Justice 1331 Pennsylvania Ave, NW Room 8004n Washington, DC 20004 202−514−1067 Fax: 202−616−6200 Email: tabitha.justice@usdoj.gov ATTORNEY TO BE NOTICED

Defendant Corrections Officer Scott Roseberry

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Corrections Officer Dexter Moore TERMINATED: 07/25/2006

represented by Bridgett McMillan Bridgett McMillan, Attorney at Law 445 Park Avenue 9th Floor

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 10 of 67

New York, NY 10022 212−926−0231 Fax: 212−926−6406 Email: MsEsquire8@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Corrections Officer Jai Jaikisson TERMINATED: 07/25/2006

represented by Bridgett McMillan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott L. Hammer Lynch &Hammer 160 Broadway Ste 708 New York, NY 10038 212−509−2805 Fax: 212−509−2808 Email: klynchesq@aol.com ATTORNEY TO BE NOTICED

Defendant
Corrections Officer James Clardy TERMINATED: 07/25/2006

represented by Ronald Paul Hart Ronal Paul Hart, Esq. 225 Broadway Suite 2515 New York, NY 10007 212−766−1443 Fax: 212−766−0943 Email: ronaldphartesq@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Sydney Chase

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Corrections Officer Reynaldo Alamo TERMINATED: 07/13/2006

represented by Bridgett McMillan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Lieutenant Joseph Cuciti

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Lieutenant Lindsey Bledsoe

represented by Labe M. Richman Labe M. Richman, Attorney at Law 305 Broadway Suite 100 New York, NY 10007 (212) 227−1914 Fax: (212) 267−2129

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 11 of 67

Email: labe@laberichman.com ATTORNEY TO BE NOTICED

Defendant Captain Salvatore LoPresti

represented by Salvatore LoPresti U.S. Customs House 2nd &Chestnut STS Philadelphia, PA 19106 PRO SE

James J. Keefe 301 Mineola Boulevard Mineola, NY 11501 516−741−2650 Fax: 516−908−7961 Email: jkeefe@nylawnet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Associate Warden Sherman Associate Warden of Custody for the Metropolitan Detention Center

represented by Debra L. Roth Shaw, Bransford, Veileux &Roth, PC 1100 Connecticut Avenue Suite 900 Washington, DC 20036 202−463−8400 Fax: 202−833−8082 Email: droth@shawbransford.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas M. Sullivan United States Attorneys Office Eastern District of New York 610 Federal Plaza Central Islip, NY 11722 (631) 715−7865 Fax: (631) 715−7920 Email: thomas.sullivan@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Cooksey Former Assistant Director for Correctional Programs of the Bureau of Prisons

represented by William E. Lawler , III Vinson &Elkins, L.L.P. 1455 Pennsylania Avenue, N.W. Suite 700 Washington, DC 20004 (202) 639−6500 Email: wlawler@velaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cheryl A. Curtis Vinson &Elkins L.L.P. 1455 Pennsylvania Avenue, Nw

Washington, DC 20004 202−639−6714 Fax: 202−639−6604 Email: ccurtis@velaw.com ATTORNEY TO BE NOTICED

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 12 of 67

Defendant
David Rardin Former Director of the Northeast Region of the Bureau Prisons
Defendant
Kenneth Maxwell Former Assistant Special Agent in Charge, New York Field Office, Federal Bureau of Investigation

Nashiba D. Boyd Vinson &Elkins L.L.P. 1455 Pennysylvania Avenue, N.W. Suite #600 Washington, DC 20004−1008 202−639−6500 Fax: 202−639−6604 ATTORNEY TO BE NOTICED
represented by Raymond Granger (See above for address) ATTORNEY TO BE NOTICED
represented by Deborah Prisinzano Mikkelsen Morgan Lewis &Bockius LLP 1701 Market Street Philadelphia, PA 19103 215−963−4762 Fax: 215−963−5001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie R Caldwell Morgan Lewis &Bockius 101 Park Avenue New York, NY 10178 212−309−6260 Fax: 212−309−6001 Email: lcaldwell@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Richard Kalinowski Morgan, Lewis &Bockuis 101 Park Avenue New York, NY 10178 212−309−6785 Fax: 212−309−6001 Email: mkalinowski@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer W. Cohen Morgan Lewis and Bockius 101 Park Avenue New York, NY 10178 212−309−6928 Fax: 212−309−6001 Email: lshufro@yahoo.com ATTORNEY TO BE NOTICED
Margot Giselle Bloom Morgan Lewis &Bockius LLP 1701 Market Street Philadelphia, PA 19103−2921 215−963−5122 Fax: 877−432−9652 Email: margot.bloom@morganlewis.com ATTORNEY TO BE NOTICED
Matthew J.D. Hogan

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 13 of 67
Morgan, Lewis &Bockius LLP 1701 Market St

Defendant Michael Rolince Former Chief of the Federal Bureau of Investigation's International Terrorism Operations Section, Counterterrorism Division
Defendant Robert Mueller Director of the Federal Bureau of Investigation
Defendant Kevin Lopez Defendant Interested Party Ibrahim Turkmen

Philadelphia, PA 19130
(215)963−5000 Fax: (215)963−5001 Email: mjdhogan@morganlewis.com ATTORNEY TO BE NOTICED
represented by Anagha S. Apte Baker &Hostetler LLP 45 Rockefeller Plaza New York, NY 10111 212−589−4200 Fax: 212−589−4201 Email: aapte@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lauren J. Resnick Baker &Hostetler, LLP 45 Rockefeller Plaza New York, NY 10111 212−589−4200 Fax: 212−589−4201 Email: lresnick@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando A. Bohorquez , Jr. Baker &Hostetler LLP 45 Rockefeller Plaza New York, NY 10111 212−589−4252 Fax: 212−589−4201 Email: fbohorquez@bakerlaw.com ATTORNEY TO BE NOTICED
represented by R. Craig Lawrence United States Attorneys Office District of Colombia 555 Fourth St. N.W. Washington, DC 20530 202−514−7151 Fax: 202−514−8780 Email: craig.lawrence@usdoj.gov ATTORNEY TO BE NOTICED
represented by Matthew D. Strugar Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212−614−6478

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 14 of 67

Fax: 212−614−6499 Email: mstrugar@ccr−ny.org ATTORNEY TO BE NOTICED

Cross Claimant
Lieutenant Elizabeth Torres TERMINATED: 01/14/2005

represented by Rocco G. Avallone Cronin &Byczek, LLP 1983 Marcus Avenue Suite C120 Lake Success, NY 11042 516−358−1700 Fax: 516−358−1730 Email: ravallone@cblawyers.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant United States of America TERMINATED: 01/14/2005
Cross Claimant Lieutenant Thomas Cush Lieutenant

V. Cross Defendant United States of America
Cross Claimant Corrections Officer Michael Defrancisco

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant United States of America
Cross Claimant Corrections Officer Richard Diaz

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Cross Defendant United States of America
Cross Claimant Corrections Officer Scott Roseberry

represented by Alan E. Wolin (See above for address) LEAD ATTORNEY

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 15 of 67 ATTORNEY TO BE NOTICED

V. Cross Defendant United States of America
Cross Claimant Corrections Officer James Clardy TERMINATED: 07/25/2006

V. Cross Defendant United States of America
Cross Claimant Lieutenant Elizabeth Torres

represented by Christina A Leonard (See above for address) TERMINATED: 04/12/2007 ATTORNEY TO BE NOTICED

V. Cross Defendant United States of America
Counter Claimant Corrections Officer Reynaldo Alamo TERMINATED: 07/13/2006

V. Counter Defendant United States of America
Cross Claimant Corrections Officer Jai Jaikisson TERMINATED: 07/25/2006

V. Cross Defendant United States of America
Cross Claimant Corrections Officer Dexter Moore TERMINATED: 07/25/2006

V. Cross Defendant United States of America

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 16 of 67

Date Filed 05/03/2004
07/09/2004 07/12/2004 07/12/2004 07/12/2004 07/22/2004 07/27/2004 08/02/2004 08/02/2004 08/03/2004
08/09/2004 08/09/2004 08/11/2004 08/16/2004 08/16/2004
08/16/2004

# Docket Text
1 COMPLAINT Summons Issued against "John Doe", John Ashcroft, Birar, Buck, Cotton, Cush, DeFrancisco, Guss, Dennis Hasty, Hosain, Lorenzo, Mounbo, Ortiz, Perez, Robinson, Kathleen Hawk Sawyer, Shack, Linda Thomas, Torres, Michael Zenk filing fee $ 150, receipt number 293448, filed by Ehab Elmaghraby, Javaid Iqbal. (Attachments: # 1 Civil Cover Sheet)(Villanueva, William) (Entered: 05/06/2004)
11 ORDER endorsed on letter dated 7/7/04 from Thomas Cush to Judge Gleeson, granting dft's request for an extension of time until 8/7/04 to respond to allegations. ( Signed by Judge John Gleeson)(Piper, Francine) (Entered: 08/11/2004)
2 Letter dated 7/12/04 from Steven Barrere to Judge Gleeson, requesting an extension of time to respond until 8/12/04. (DiLorenzo, Krista) (McGee, Mary Ann). (Entered: 07/13/2004)
3 Letter dated 7/12/04 from Marcial Mundo to Judge Gleeson, requesting an extension of time to respond until 8/12/04. (DiLorenzo, Krista) (McGee, Mary Ann). (Entered: 07/13/2004)
4 Letter dated 7/12/04 from Michael Zenk to Judge Gleeson, requesting an extension of time to respond until 8/12/04. (DiLorenzo, Krista) (McGee, Mary Ann). (Entered: 07/13/2004)
5 ENDORSED ORDER signed by Judge John Gleeson on 7/19/04 granting dft. Ortiz's request to extend time to respond to the allegations until 8/9/04. C/M by Chambers.(DiLorenzo, Krista) (Entered: 07/22/2004)
6 ORDER setting an initial conference for 9/7/2004 at 2:00 PM before Magistrate−Judge Joan M. Azrack. Signed by Magistrate Judge Joan M. Azrack on 7/21/04. C/M by Chambers.(DiLorenzo, Krista) (Entered: 07/27/2004)
9 MOTION for Limited Admission (to admit Michael Martinez Pro hac Vice) by Dennis Hasty. (Piper, Francine) (Entered: 08/09/2004)
10 AFFIDAVIT of Michael L. Martinez in support of 9 MOTION for Limited Admission (to admit Michael Martinez Pro hac Vice). (Piper, Francine) (McGee, Mary Ann). (Entered: 08/09/2004)
7 ORDER endorsed on letter dated 7/28/04 from Dennis Hasty to Judge Gleeson, dft is granted an extension of time until 8/13/04 to respond to the complaint. ( Signed by Judge John Gleeson on 7/28/04) c/m(Piper, Francine) (McGee, Mary Ann). (Entered: 08/03/2004)
8 ORDER endorsed on letter dated 8/3/04 from Nicholas Kaizer to Judge Gleeson, dft Raymond Cotton granted an extension to answer. ( Signed by Judge John Gleeson on 8/5/04) (Piper, Francine) (Entered: 08/09/2004)
ORDER granting 9 Motion for Limited Admission. (Signed by JudgeJohn Gleeson on 8/5/04) (see document #9) (Piper, Francine) (Entered: 08/09/2004)
12 Letter from F. Ryan Keith (Counsel for Defendant Dennis Hasty) to Judge Gleeson Regarding Extension of Time for Mr. Hasty to Respond to the Complaint. (Keith, Frederick) (Entered: 08/11/2004)
13 ORDER, the motion for admission of Michael L. Martinez to practice pro hac vice is granted. (Signed by Judge John Gleeson on 8/2/04) (Piper, Francine) (Entered: 08/16/2004)
14 ORDER endorsed on letter dated 8/11/04 from F. Ryan Keith (counsel for dft Dennis Hasty) to Judge Gleeson, application granted for an extension of time until 8/31/04 to respond to the complaint is granted. ( Signed by Judge John Gleeson) (Piper, Francine) (Entered: 08/16/2004)
15 STIPULATION, the time for dft Steven Barrere s/h/a Lieutenant Birar, to answer the complaint is extended to 8/19/04. (Signed by Judge John Gleeson)(Piper, Francine) (Entered: 08/16/2004)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 17 of 67

08/17/2004 08/18/2004 08/18/2004
08/18/2004 08/18/2004 08/18/2004 08/25/2004 08/27/2004 08/30/2004 09/01/2004 09/01/2004 09/02/2004 09/03/2004 09/07/2004 09/07/2004
09/13/2004 09/13/2004 09/14/2004 09/20/2004

16 Letter dtd July 30, 2004 to Robert C. Heinemann from F. Ryan Keith, enclosing Motion to Admit Counsel Pro Hac Vice of Michael L. Martinez. (Schillat, Louise) (McGee, Mary Ann). (Entered: 08/17/2004)
17 ORDER endorsed on letter dated 7/8/04 from Raymond Cotton to Judge Gleeson, granting dft an extension until 8/8/04 to respond to allegations. (Signed by Judge John Gleeson)(Piper, Francine) (Entered: 08/18/2004)
18 ORDER endorsed on letter dated 8/12/04 from William Beck, Marcial Mundo, Eugene Perez and Arcelio Torres, granting dfts until 9/12/04 to respond to allegations. (Signed by Judge John Gleeson)(Piper, Francine) (Entered: 08/18/2004)
19 ORDER endorsed on letter dated 8/13/04 from Melissa Robinson to Judge Gleeson, granting dft an extension until 9/12/04 to answer the allegations. (Signed by Judge John Gleeson) (Piper, Francine) (Entered: 08/18/2004)
20 ORDER dated 8/2/04 admitting F. Ryan Keith pro hace vice. . Signed by Judge John Gleeson on 8/2/04. (Glenn, Marilyn) (Entered: 08/18/2004)
Email Test − DO NOT REPLY. (Glenn, Marilyn) (Entered: 08/18/2004)
21 ANSWER to Complaint by Birar. (Attachments: # 1 Affidavit of Service)(Ryan, James) (Entered: 08/25/2004)
22 Letter from F. Ryan Keith (Counsel for Defendant Dennis Hasty) to Judge Gleeson Regarding Premotion Conference Request. (Keith, Frederick) (Entered: 08/27/2004)
23 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Request for enlargement of time to serve complaint. (Reinert, Alexander) (Entered: 08/30/2004)
24 Letter from F. Ryan Keith (Counsel for Defendant Dennis Hasty) to Magistrate Judge Azrack Regarding Scheduling of Initial Conference. (Keith, Frederick) (Entered: 09/01/2004)
25 Letter from Alexander A. Reinert to The Honorable Joan M. Azrack Regarding Initial Conference. (Reinert, Alexander) (Entered: 09/01/2004)
26 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Premotion Conference Request by Defendant Dennis Hasty. (Reinert, Alexander) (Entered: 09/02/2004)
27 STIPULATION Setting Answer Date for Defendant Ashcroft by Ehab Elmaghraby, Javaid Iqbal. (Attachments: # 1 Letter to Judge Gleeson)(Reinert, Alexander) (Entered: 09/03/2004)
28 NOTICE of Appearance by Raymond Granger on behalf of Torres (Piper, Francine) (Entered: 09/07/2004)
29 Minute Entry for proceedings held before Joan M. Azrack : Status Conference held on 9/7/2004. Status Conference 11/18/04 at 3:00. Continuation to answer until 11/8. Pro Hac Vice granted. (Piper, Francine) (McGee, Mary Ann). (Entered: 09/10/2004)
30 MOTION for Limited Admission (for Mark E. Nagle to be admitted pro hac vice) by Kathleen Hawk Sawyer. (Piper, Francine) (Entered: 09/13/2004)
31 ORDER granting 30 Motion for Limited Admission. (Signed by JudgeJohn Gleeson on 9/7/04) C/M. (Piper, Francine) (Entered: 09/13/2004)
32 NOTICE of Appearance by Richard W Sponseller, Brian D Miller, Larry L Gregg on behalf of John Ashcroft (Piper, Francine) (Entered: 09/16/2004)
33 STIPULATION AND ORDER, the time for dft Ashcroft to answer is extended to 11/8/04.(Signed by Judge John Gleeson on 9/13/04) (Piper, Francine) (Entered: 09/20/2004)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 18 of 67

09/27/2004 09/30/2004
10/01/2004 10/04/2004 10/04/2004 10/06/2004 10/07/2004 10/08/2004 10/15/2004 10/15/2004 10/19/2004 10/19/2004 10/28/2004 10/28/2004 10/29/2004 10/29/2004
11/02/2004

34 Letter from Mark E. Nagle to The Honorable John Gleeson Regarding Elmaghraby, et al. v. Ashcroft, et al., Civil Action No. 04−1809 (JG)(JMA). (Nagle, Mark) (Entered: 09/27/2004)
35 AMENDED COMPLAINT First Amended Complaint and Jury Demand against Richard Diaz, Jon Osteen, United States of America, Scott Roseberry, Dexter Moore, Jai Jaikisson, James Clardy, Sydney Chase, Reynaldo Alamo, Joseph Cuciti, Lindsey Bledsoe, Salvatore LoPresti, Sherman, Michael Cooksey, David Rardin, Kenneth Maxwell, Michael Rolince, Robert Muller, "John Doe", John Ashcroft, Birar, Buck, Cotton, Cush, DeFrancisco, Guss, Dennis Hasty, Lorenzo, Mounbo, Ortiz, Perez, Kathleen Hawk Sawyer, Shack, Linda Thomas, Torres, Michael Zenk, filed by all plaintiffs.(Yoon, Haeyoung) (Entered: 09/30/2004)
36 Letter from Plaintiffs' counsel to Judge Gleeson Regarding First Amended Complaint. (Yoon, Haeyoung) (Entered: 10/01/2004)
37 Letter from F. Ryan Keith (Counsel for Defendant Dennis Hasty) to Judge Gleeson Regarding Renewal of Premotion Conference Request, as to First Amended Complaint. (Keith, Frederick) (Entered: 10/04/2004)
38 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Defendant Hawk Sawyer's Request for a Pre−Motion Conference. (Reinert, Alexander) (Entered: 10/04/2004)
ENDORSED ORDER: Plaintiff's request for an additional 45 days to serve defts granted. Endorsed on document #23. Signed by Judge John Gleeson on 10/6/04. (Chee, Alvin) (Entered: 10/21/2004)
39 Consent MOTION for Leave to Appear Pro Hac Vice by Kathleen Hawk Sawyer. (Nagle, Mark) (Entered: 10/07/2004)
40 Letter from Mark E. Nagle to The Honorable John Gleeson Regarding briefing schedule. (Nagle, Mark) (Entered: 10/08/2004)
41 ANSWER to Amended Complaint by Clemett Shacks.(Lasky, Barry) (Entered: 10/15/2004)
42 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Extension of Time to Serve Defendants Lorenzo, DeFrancisco, and Cush. (Reinert, Alexander) (Entered: 10/15/2004)
43 STIPULATION AND ORDER that time answer the complaint is extended to 11/8/04. Signed by Judge John Gleeson on 10/6/04. (Greene, Donna) (Entered: 10/19/2004)
48 ORDER granting 39 Motion for Leave to Appear Pro Hac Vice. Signed by JudgeJohn Gleeson on 10/6/04. (Greene, Donna) (Entered: 11/01/2004)
44 Letter from Allan Taffet, Esq. to The Honorable Judge Gleeson Regarding request for permission to submit an enlarged brief in support of defendant Warden Michael Zenk's motion to dismiss (dated 10/25/04). (Taffet, Allan) (Entered: 10/28/2004)
45 Letter from Allan Taffet, Esq. to The Honorable John Gleeson Regarding Premotion Conference Request by Defendant Warden Michael Zenk (dated 10/28/04). (Taffet, Allan) (Entered: 10/28/2004)
46 Letter from Mark E. Nagle to The Honorable John Gleeson Regarding Defendant Sawyer's Motion to Dismiss and Memorandum in Support of her Motion to Dismiss. (Nagle, Mark) (Entered: 10/29/2004)
47 Letter from F. Ryan Keith (Counsel for Defendant Dennis Hasty) to Judges Gleeson and Azrack Regarding Service of Defendant Dennis Hasty's Notice of Motion to Dismiss and Memorandum of Law in Support thereof. (Keith, Frederick) (Entered: 10/29/2004)
49 ORDER that Jaime H.Weinberg be admitted t appear and participate in the case as co−counselfor deft. Kathleen Hawk Sawyer. Signed by Judge John Gleeson on 10/8/04. (Greene, Donna) (Entered: 11/02/2004)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 19 of 67

11/04/2004 11/05/2004 11/05/2004 11/05/2004
11/05/2004 11/05/2004 11/08/2004 11/08/2004 11/09/2004 11/10/2004 11/11/2004 11/12/2004
11/12/2004
11/15/2004 11/17/2004 11/18/2004
11/18/2004
11/19/2004

50 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Defendant Zenk's Request for Premotion Conference. (Reinert, Alexander) (Entered: 11/04/2004)
51 Letter from Alexander A. Reinert to Clerk of Court Regarding Correction of Docket. (Reinert, Alexander) (Entered: 11/05/2004)
52 ORDER, endorsed on letter dated 10/28/04 from Allan Taffert to Judge Gleeson, Pre−motion conference set for 11/4/04 at 10:00. (Signed by Judge John Gleeson undated) (Piper, Francine) (Entered: 11/05/2004)
53 Letter from Brian D. Miller and Dennis C. Barghaan, Jr., Attorneys for Defendant Attorney General John Ashcroft to The Honorable John Gleeson, U.S. District Judge Regarding Motion to Dismiss Defendant Attorney General John Ashcroft. (Sponseller, Richard) (Entered: 11/05/2004)
54 ANSWER to Amended Complaint by Steven Barrere. (Attachments: # 1 Affidavit of Service)(Ryan, James) (Entered: 11/05/2004)
55 NOTICE of Appearance by Richard W Sponseller on behalf of John Ashcroft (Sponseller, Richard) (Entered: 11/05/2004)
56 ANSWER to Complaint by Marcial Mundo.(Matthews, James) (Entered: 11/08/2004)
57 ANSWER to Amended Complaint by Raymond Cotton.(Kaizer, Nicholas) (Entered: 11/08/2004)
74 Minute Entry for proceedings held before John Gleeson : Status Conference held on 11/9/2004. (Court Reporter Marsha Diamond.) PMC Conference held. (Greene, Donna) (McGee, Mary Ann). (Entered: 12/06/2004)
60 ANSWER to Complaint by William Beck.(Piper, Francine) (Entered: 11/15/2004)
58 NOTICE of Appearance by Allan Noel Taffet on behalf of Michael Zenk (Taffet, Allan) (Entered: 11/11/2004)
Per the e'mail from MJ Pollak's chambers that this case is related to 02−cv−2307, and with the consent of JG and JMA: Mag. Judge Cheryl L. Pollak added. Mag. Judge Joan M. Azrack no longer assigned to case. Chambers advised by e'mail. (Vaughn, Terry) (Entered: 11/12/2004)
59 ORDER setting briefing schedule for motions to dismiss for all defendants whose time to move or answer expires on or before January 28, 2005; the motions to dismiss by Michael Zenk and John Ashcroft shall be fully briefed and filed by January 28, 2005; oral argument of all motions to dismiss will be held on March 11, 2005 at 10:00 am.Plaintiffs' request for a 15 day extension of time in which to serve defendants is granted. Signed by Judge John Gleeson on November 12, 2004.(Gleeson, John) (Entered: 11/12/2004)
61 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Request to File Consolidated Brief in Opposition to Motions to Dismiss. (Reinert, Alexander) (Entered: 11/15/2004)
62 ORDER setting discovery schedule. Signed by Judge Cheryl L. Pollak on 11/17/04. (Caggiano, Diana) (Entered: 11/17/2004)
63 ORDER, endorsed on letter dated 11/15/04 from Alexander Reinert to Judge Gleeson, granting the request for permission to file a consolidated brief in opposition to dft's motions, of a length not to exceed 50 pages. (Signed by Judge John Gleeson on 11/15/04) (Piper, Francine) (Entered: 11/18/2004)
64 Letter dated 11/4/04 from Allan Taffet to Alexander Reinert, advising that Judge Gleeson has scheduled a pre−motion conference for 11/9/04 to discuss dft Zenk's request for permission to file a motion to dismiss. (Piper, Francine) (McGee, Mary Ann). (Entered: 11/18/2004)
65 Letter dated 11/12/04 from Dimple Gupta to Mag. Pollak, the govt requests that the court suspend the deadline for the govt's initial disclosures until the govt has been properly served. (Piper, Francine) (McGee, Mary Ann). (Entered: 11/19/2004)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 20 of 67

11/19/2004 11/19/2004 11/24/2004
11/24/2004 11/24/2004 11/29/2004 11/30/2004 12/01/2004 12/02/2004 12/07/2004 12/07/2004 12/09/2004
12/10/2004 12/10/2004

66 Letter dated 11/12/04 from Haeyuoung Yoon to Mag. Pollak, pltff's do not object to the govt's request for the suspension of the three week deadline on the initial disclosures until they received the amended complaint. (Piper, Francine) (McGee, Mary Ann). (Entered: 11/19/2004)
67 Letter dated 10/25/04 from Allan Taffet to Judge Gleeson, requesting permission to submit an enlarged brief in support of dft Zenk's motion to dismiss. (Piper, Francine) (McGee, Mary Ann). (Entered: 11/19/2004)
68 SUMMONS Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Richard Diaz served on 10/13/2004, answer due 11/2/2004; Scott Roseberry served on 10/13/2004, answer due 11/2/2004; Jai Jaikisson served on 10/13/2004, answer due 11/2/2004; Lindsey Bledsoe served on 10/13/2004, answer due 11/2/2004; Elizabeth Torres served on 10/13/2004, answer due 11/2/2004. (Attachments: # 1 # 2 # 3 # 4)(Reinert, Alexander) (Entered: 11/24/2004)
69 SUMMONS Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Thomas Cush served on 10/14/2004, answer due 11/3/2004. (Reinert, Alexander) (Entered: 11/24/2004)
70 SUMMONS Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Linda Thomas served on 10/14/2004, answer due 11/3/2004; Michael Defrancisco served on 10/19/2004, answer due 11/8/2004; Nora Lorenzo served on 11/13/2004, answer due 12/3/2004. (Attachments: # 1 # 2)(Reinert, Alexander) (Entered: 11/24/2004)
71 SUMMONS Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Thomas Cush served on 11/27/2004, answer due 12/17/2004. (Attachments: # 1)(Reinert, Alexander) (Entered: 11/29/2004)
72 Letter from Dennis C. Barghaan, Jr. to U.S. Magistrate Judge Pollak Regarding Seeking Clarification of Discovery Orders dated November 17 and 19, 2004. (Sponseller, Richard) (Entered: 11/30/2004)
73 Letter from Mark E. Nagle to The Honorable John Gleeson Regarding Request on behalf of defendants Kathleen Hawk Sawyer and Dennis Hasty, for an extension of two business days, of the time to reply to plaintiffs' opposition to Ms. Hawk Sawyer's and Mr. Hasty's motions to dismiss. (Nagle, Mark) (Entered: 12/01/2004)
ORDER granting defendants Kathleen Hawk Sawyer and Dennis Hasty's request for extension of time to reply to plaintiffs' opposition to motions to dismiss. Per letter of December 1, 2004 from Mark Nagle, time to file extended to December 7, 2004. Signed by Judge John Gleeson on December 2, 2004. (Gleeson, John) (Entered: 12/02/2004)
75 Notice of MOTION to Dismiss and Memorandum of Law in Support Thereof by Dennis Hasty. (Attachments: # 1 Plaintiffs' Opposition to Defendants Hasty and Hawk Sawyer's Motions to Dismiss# 2 Reply Memorandum of Law in Support of Defendant Dennis Hasty's Motion to Dismiss)(Keith, Frederick) (Entered: 12/07/2004)
76 Letter from Mark Nagle to The Honorable John Gleeson Regarding Kathleen Hawk Sawyer's Motion to Dismiss and attaching related Memoranda of Law. (Attachments: # 1 # 2 # 3 # 4)(Nagle, Mark) (Entered: 12/07/2004)
85 Letter / MOTION for Extension of Time to File Response to the allegations in the above−referenced lawsuit; filed by Senior Officer Specialist Richard Diaz on behalf of himself, Scott Roseberry, Jai Jaikisson, James Clardy, Sydney Chase, Reynaldo Alamo, Lindsey Bledsoe, Salvatore LoPresti, Michael DeFrancisco, dtd 12/6/2004. *Fwd to Judge Gleeson. (Latka−Mucha, Wieslawa) (Entered: 12/15/2004)
77 SCHEDULING ORDER: A conference is scheduled for DECEMBER 17, 2004 at 9:00 A.M., before the Honorable Cheryl L. Pollak, United States Magistrate Judge. Signed by Judge Cheryl L. Pollak on 12/10/04. (Caggiano, Diana) (Entered: 12/10/2004)
78 ANSWER to Amended Complaint, CROSSCLAIM against United States of America by Elizabeth Torres.(Avallone, Rocco) (Entered: 12/10/2004)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 21 of 67

12/10/2004 12/13/2004 12/14/2004
12/14/2004
12/14/2004
12/14/2004 12/14/2004
12/17/2004 01/03/2005 01/05/2005 01/06/2005 01/06/2005 01/06/2005 01/06/2005 01/06/2005 01/07/2005 01/07/2005

79 NOTICE of Appearance by Linda Marie Marino on behalf of Linda Thomas (Marino, Linda) (Entered: 12/10/2004)
80 Letter from William R. DeCoste to The Honorable John Gleeson Regarding Extension of Defendant Linda Thomas' Time to Answer or Move. (Decoste, William) (Entered: 12/13/2004)
ORDER granting defendant Linda Thomas's request for an extension of time to answer or move to January 28, 2005, as requested in a letter from William R. DeCoste to me dated December 13, 2004. Signed by Judge John Gleeson on December 14, 2004.(Gleeson, John) (Entered: 12/14/2004)
81 WAIVER OF SERVICE Returned Executed by Ehab Elmaghraby, Javaid Iqbal. James Clardy waiver sent on 11/8/2004, answer due 1/7/2005; Reynaldo Alamo waiver sent on 11/8/2004, answer due 1/7/2005; David Rardin waiver sent on 11/8/2004, answer due 1/7/2005; Kenneth Maxwell waiver sent on 11/8/2004, answer due 1/7/2005; Michael Rolince waiver sent on 11/8/2004, answer due 1/7/2005; Howard Gussak waiver sent on 11/8/2004, answer due 1/7/2005. (Attachments: # 1 # 2 # 3 # 4 # 5)(Reinert, Alexander) (Entered: 12/14/2004)
82 SUMMONS Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Michael Rolince served on 11/28/2004, answer due 1/7/2005; Robert Mueller served on 11/29/2004, answer due 12/20/2004. (Attachments: # 1)(Reinert, Alexander) (Entered: 12/14/2004)
83 Letter from Joshua Klein to Judge Gleeson Regarding Service of Defendant Michael Zenk's Notice of Motion to Dismiss and Memorandum of Law in Support thereof. (Taffet, Allan) (Entered: 12/14/2004)
84 Letter from Dennis C. Barghaan, Jr. − AUSA Eastern District of Virginia to Honorable John Gleeson, United States District Judge Regarding Notice of Service of Motion to Dismiss and Memorandum of Law in Support Thereof for Defendant Attorney General John Ashcroft. (Sponseller, Richard) (Entered: 12/14/2004)
86 ANSWER to Amended Complaint, CROSSCLAIM against United States of America by Thomas Cush.(Piper, Francine) (Entered: 12/22/2004)
87 DISCLOSURE of Interested Parties by Raymond Cotton.(Kaizer, Nicholas) (Entered: 01/03/2005)
88 Letter from Alan E. Wolin, Esq, to Magistrate Judge Pollak Regarding Extension of Time to Answer or Otherwise Move on behalf of defendants S. Chase, M. DeFrancisco, R. Diaz and S. Rosebery. (Wolin, Alan) (Entered: 01/05/2005)
89 DISCLOSURE of Interested Parties by Steven Barrere.(Ryan, James) (Entered: 01/06/2005)
90 Letter from Ronald P. Hart, Esq. to Hon. John Gleason Regarding extension to serve &file an Answer. (Hammer, Scott) (Entered: 01/06/2005)
91 ANSWER to Amended Complaint by Jai Jaikisson.(Hammer, Scott) (Entered: 01/06/2005)
92 AFFIDAVIT of Service for Answer served on Attorneys for Plainitiffs, Attorneys for Co−Defendants on January 6, 2005, filed by Jai Jaikisson. (Hammer, Scott) (Entered: 01/06/2005)
93 DISCLOSURE of Interested Parties by Marcial Mundo.(Matthews, James) (Entered: 01/06/2005)
94 ENDORSED ORDER re 88 Letter. REQUEST GRANTED. Signed by Judge Cheryl L. Pollak on 1/7/05. (Caggiano, Diana) (Entered: 01/07/2005)
ORDER granting defendants James Clardy and Reynaldo Alamo's requests for an extension of time to file answers until January 28, 2005, as requested in a letter to me dated January 4, 2005 from Ronald P. Hart. Signed by Judge John Gleeson on January 7, 2005. (Gleeson, John) (Entered: 01/07/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 22 of 67

01/07/2005 01/07/2005 01/12/2005 01/12/2005 01/12/2005 01/14/2005
01/14/2005 01/20/2005 01/21/2005 01/22/2005 01/27/2005 01/27/2005 01/28/2005 01/28/2005
01/28/2005 01/28/2005
01/28/2005 01/28/2005 01/28/2005
01/28/2005

95 Letter from Stephen E. Handler to Judge Gleeson Regarding Service of Motions. (Handler, Stephen) (Entered: 01/07/2005)
96 NOTICE of Appearance by Stephen E. Handler on behalf of United States of America (Handler, Stephen) (Entered: 01/07/2005)
97 NOTICE of Appearance by Kenneth C. Murphy on behalf of Howard Gussak (Murphy, Kenneth) (Entered: 01/12/2005)
98 Letter from Kenneth C. Murphy to The Honorable Cheryl L. Pollak Regarding request for extension to file Answer. (Murphy, Kenneth) (Entered: 01/12/2005)
99 NOTICE by Elizabeth Torres of dismissal of Cross−Claims against Defendant United States of America (Leonard, Christina) (Entered: 01/12/2005)
100 ORDER, endorsed on letter dated 1/12/05 from Kenneth Murphy to Mag. Pollak, request for a one−week extension until 1/20/04 to file an answer to first amended complaint on behalf of Mr. Gussak is granted. (Signed by Judge Cheryl L. Pollak on 1/13/04) (Piper, Francine) (Entered: 01/14/2005)
101 DISCLOSURE of Interested Parties by Elizabeth Torres.(Leonard, Christina) (Entered: 01/14/2005)
102 ANSWER to Amended Complaint by Howard Gussak.(Murphy, Kenneth) (Entered: 01/20/2005)
103 DISCLOSURE of Interested Parties by Jai Jaikisson.(Hammer, Scott) (Entered: 01/21/2005)
104 NOTICE of Appearance by Thomas M. Sullivan on behalf of Sherman (Sullivan, Thomas) (Entered: 01/22/2005)
105 NOTICE of Appearance by Yvonne Shivers on behalf of Raymond Cotton (Shivers, Yvonne) (Entered: 01/27/2005)
106 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Extension of time to Serve Defendant Moore. (Attachments: # 1 Text of Proposed Order)(Reinert, Alexander) (Entered: 01/27/2005)
107 NOTICE of Appearance by Robert Craig Lawrence on behalf of Robert Mueller (Lawrence, Robert) (Entered: 01/28/2005)
108 Letter from R. Craig Lawrence to The Honorable John Gleeson Regarding Defendant Robert Mueller's Motion To Dismiss and Adoption of Attorney General Ashcroft's Memorandum of Law in Support of his Motion to Dismiss. (Attachments: # 1 Defendant Robert Mueller's Motion to Dismiss)(Lawrence, Robert) (Entered: 01/28/2005)
109 ANSWER to Amended Complaint by Linda Thomas.(Marino, Linda) (Entered: 01/28/2005)
110 Letter from Dennis C. Barghaan, Jr., AUSA ED/VA to Honorable Judge John Gleeson Regarding Transmitting Defendant Attorney General John Ashcroft's Motion to Dismiss All Claims Against Him and Enclosing All Memoranda of Law. (Sponseller, Richard) (Entered: 01/28/2005)
111 ANSWER to Amended Complaint by Jon Osteen.(Koenigsberg, David) (Entered: 01/28/2005)
112 First MOTION to Dismiss All Claims Against Defendant Attorney General John Ashcroft − Reply Memorandum of Law by John Ashcroft. Responses due by 1/28/2005 (Sponseller, Richard) (Entered: 01/28/2005)
113 Notice of MOTION to Dismiss and Memorandum of Law in Support Thereof by Michael Zenk. (Attachments: # 1 Plaintiffs' Opposition to Defendant Michael Zenk's Motion to Dismiss# 2 Reply of Defendant Michael Zenk in further support of his Motion to Dismiss)(Taffet, Allan) (Entered: 01/28/2005)
114 ANSWER to Amended Complaint by United States of America.(Handler, Stephen) (Entered: 01/28/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 23 of 67

01/28/2005 01/28/2005 01/28/2005 01/28/2005 01/28/2005 01/28/2005 01/28/2005 01/31/2005
01/31/2005 01/31/2005
02/01/2005 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/03/2005 02/04/2005

115 MOTION to Dismiss by Nora Lorenzo. (Piper, Francine) (Entered: 01/31/2005)
116 MEMORANDUM in Support re 115 MOTION to Dismiss by Nora Lorenzo. (Piper, Francine) (Entered: 01/31/2005)
122 MOTION for Limited Admission as to Debra L. Roth by Sherman. (Piper, Francine) (Entered: 02/03/2005)
124 MOTION for Limited Admission to admit Cary M. Feldman by Nora Lorenzo. (Piper, Francine) Modified on 2/3/2005 − Fee: $25.00 Received. Receipt #305081 (Piper, Francine). (Entered: 02/03/2005)
126 MOTION for Limited Admission to admit Grace B. Culley by Nora Lorenzo. (Piper, Francine) Modified on 2/4/2005 − Fee Paid $25.00 Receipt #305080.(Piper, Francine). (Entered: 02/03/2005)
131 MOTION for Limited Admission to admit Robert A. Graham (Filing Fee Paid $25.00 Receipt #305078) by Nora Lorenzo. (Piper, Francine) (Entered: 02/04/2005)
133 MOTION for Limited Admission to admit Matthew S. Freedus (Filing Fee paid $25.00, Receipt #305079) by Nora Lorenzo. (Piper, Francine) (Entered: 02/04/2005)
117 MOTION to Dismiss the Claims Against Attorney General John Ashcroft in His Individual Capacity by John Ashcroft. Responses due by 1/25/2005 (Attachments: # 1 Plaintiff's Memorandum of Law In Opposition to Defendant John Ashcroft's Motion to Dismiss# 2 Reply Memorandum of Law in Support of Motion to Dismiss the Claims against Attorney General John Ashcroft in His Individual Capacity)(Sponseller, Richard) (Entered: 01/31/2005)
118 Letter from Dennis C. Barghaan, Jr. AUSA ED/VA to Honorable John Gleeson Regarding Filing of Documents on January 28, 2005. (Sponseller, Richard) (Entered: 01/31/2005)
119 Letter dated 1/3/05 from Yvonne Shivers to Mag. Pollak, enclosing a courtesy copy of the Initial Disclosures on behalf of dft Raymond Cotton electronically filed and mailed to parties on 1/3/05. . (Piper, Francine) (McGee, Mary Ann). (Entered: 01/31/2005)
120 Letter from Alan E. Wolin, Esq. to Magistrate Judge Pollak Regarding Extension of Time to Answer on behalf of defendants DeFrancisco, Diaz and Rosebery. (Wolin, Alan) (Entered: 02/01/2005)
121 Letter dated 1/27/05 from Yvonne Shivers to Mag. Pollak, enclosing a courtesy copy of the Notice of Appearance filed electronically on 1/27/05 on behalf of dft Raymond Cotton. (Piper, Francine) (McGee, Mary Ann). (Entered: 02/03/2005)
123 ORDER granting 122 Motion for Limited Admission to admit Debra Roth. (Signed by JudgeJohn Gleeson on 1/28/05) (Piper, Francine) (Entered: 02/03/2005)
125 ORDER granting 124 Motion for Limited Admission to admit Cary M. Feldman. (Signed by JudgeJohn Gleeson on 1/28/05) (Piper, Francine) (Entered: 02/03/2005)
127 NOTICE of Appearance by Fernando A. Bohorquez on behalf of Michael Rolince (Bohorquez, Fernando) (Entered: 02/03/2005)
128 MOTION to Dismiss by Michael Rolince. Responses due by 2/18/2005 (Bohorquez, Fernando) (Entered: 02/03/2005)
129 Letter from Lauren J. Resnick to Honorable John Gleeson Regarding Representation of Michael Rolince and Permission to Join Attorney General Ashcroft's Motion to Dismiss. (Bohorquez, Fernando) (Entered: 02/03/2005)
149 "First Amended ANSWER" to Amended Complaint; filed by pro se Sydney Chase, dated 1/31/2005. *Fwd to Chambers. (Latka−Mucha, Wieslawa) (Entered: 02/15/2005)
130 ORDER granting 126 Motion for Limited Admission to admit Grace B. Culley. (Signed by JudgeJohn Gleeson on 1/28/05) (Piper, Francine) (Entered: 02/04/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 24 of 67

02/04/2005 02/04/2005 02/04/2005 02/04/2005 02/04/2005 02/07/2005 02/07/2005 02/08/2005 02/08/2005 02/08/2005 02/08/2005 02/08/2005
02/11/2005 02/14/2005
02/14/2005 02/14/2005
02/14/2005 02/14/2005
02/14/2005

Email Test − DO NOT REPLY (Piper, Francine) (Entered: 02/04/2005)
132 ORDER granting 131 Motion for Limited Admission to admit Robert A. Graham. (Signed by JudgeJohn Gleeson on 1/28/05) (Piper, Francine) (Entered: 02/04/2005)
134 ORDER granting 133 Motion for Limited Admission to admit Matthew S. Freedus. (Signed by JudgeJohn Gleeson on 1/28/05) (Piper, Francine) (Entered: 02/04/2005)
135 ORDER, the application is referred to Mag. Pollak. (Signed by Judge John Gleeson on 1/28/05) (Piper, Francine) (Entered: 02/04/2005)
136 Letter dated 12/14/04 from Dennis Bargham, Jr. to Judge Gleeson, advising that all motion papers will be filed upon the completion of the briefing process on 1/28/05. (Piper, Francine) (Entered: 02/04/2005)
137 ANSWER to Amended Complaint by James Clardy.(Hart, Ronald) (Entered: 02/07/2005)
138 ANSWER to Amended Complaint by Reynaldo Alamo.(Hart, Ronald) (Entered: 02/07/2005)
139 Defendant Michael DeFrancisco's ANSWER to Amended Complaint, CROSSCLAIM against United States of America by Michael Defrancisco.(Wolin, Alan) (Entered: 02/08/2005)
140 Defendant Richard Diaz' ANSWER to Amended Complaint, CROSSCLAIM against United States of America by Richard Diaz.(Wolin, Alan) (Entered: 02/08/2005)
141 Defendant Scott Rosebery's ANSWER to Amended Complaint, CROSSCLAIM against United States of America by Scott Roseberry.(Wolin, Alan) (Entered: 02/08/2005)
142 NOTICE of Change of Address/Firm/Email by David A Koenigsberg Counsel for Jon Osteen (Koenigsberg, David) (Entered: 02/08/2005)
143 MINUTE ENTRY for Telephone Conference proceeding held before MJ Cheryl L. Pollak held on 2/8/2005. Answers filed by five guards today. Plaintiffs given 15 days to serve Dexter Moore. Conference set for 4/11/05 @ 10:00 AM. (Pollak, Cheryl) (Entered: 02/08/2005)
144 ANSWER to Amended Complaint by Lindsey Bledsoe. (Attachments: # 1 Supplement continued answer# 2 Supplement continued answer)(Richman, Labe) (Entered: 02/11/2005)
145 Letter from Leslie R. Caldwell to Judge John Gleeson Regarding representation of defendant Kenneth Maxwell; request for permission to join in Attorney General Ashcroft's Motion to Dismiss and request for permission to submit a Supplemental Motion to Dismiss, if necessary, on or before March 4, 2005.. (Caldwell, Leslie) (Entered: 02/14/2005)
146 NOTICE of Appearance by Leslie R Caldwell on behalf of Kenneth Maxwell (Caldwell, Leslie) (Entered: 02/14/2005)
147 MOTION to Dismiss all claims asserted against defendant Kenneth Maxwell in the Amended Complaint on the grounds that subject matter jurisdiction is lacking and the Amended Complaint fails to state a claim upon which relief can be granted by Kenneth Maxwell. (Caldwell, Leslie) (Entered: 02/14/2005)
Please disregard document #145; It has been filed in error. (Lee, Tiffeny) (Entered: 02/14/2005)
148 Letter from Leslie R. Caldwell to Judge John Gleeson Regarding representation of defendant Kenneth Maxwell; request for permission to join in Attorney General Ashcroft's Motion to Dismiss and request for permission to submit a Supplemental Motion to Dismiss, if necessary, on or before March 4, 2005 (replaces document number 145 which was filed in error). (Caldwell, Leslie) (Entered: 02/14/2005)
ORDER granting defendant Rolince's request for permission to join in Attorney General Ashcroft's Memorandum of Law and Reply in Support of his Motion to

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 25 of 67

02/14/2005 02/15/2005
02/16/2005 02/16/2005 02/21/2005
02/22/2005 02/22/2005 02/23/2005 02/23/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005 02/25/2005
02/25/2005
02/25/2005

Dismiss; granting defendant Rolince's request to submit a Supplemental Motion to Dismiss, if necessary on or before March 4, 2005, as requested in a letter from Lauren Resnick dated February 3, 2005. This supplemental motion may not be longer than 15 pages. Signed by Judge John Gleeson on February 14, 2005.(Gleeson, John) (Entered: 02/14/2005)
Email Test − DO NOT REPLY. (Lee, Tiffeny) (Entered: 02/14/2005)
150 Letter dated 12/1/04 from Mark E. Nagle to Judge Gleeson, requesting an extension of time on behalf of dfts Kathleeyn Sawyer and Dennis Hasty to reply to pltff's oppositio to Ms. Hawk Sawyer's and Mr. Hasty's motions to dismiss. (Piper, Francine) (McGee, Mary Ann). (Entered: 02/15/2005)
151 Interoffice Memorandum dated 2/16/05 from MJ Pollak recusing herself from this action. (Vaughn, Terry) (Entered: 02/16/2005)
See Doc. 151: Mag. Judge Steven M. Gold added. Mag. Judge Cheryl L. Pollak no longer assigned to case. Chambers advised. (Vaughn, Terry) (Entered: 02/16/2005)
ORDER granting defendant Maxwell's request for permission to join in Attorney General Ashcroft's Memorandum of Law and Reply in Support of his Motion to Dismiss, and granting request to submit a Supplemental Motion to Dismiss, if necessary, on or before March 4, 2005, as requested in a letter from Leslie R. Caldwell dated February 11, 2005. The supplemental motion may not be longer than 15 pages. (Gleeson, John) (Entered: 02/21/2005)
152 ANSWER to Interrogatories by Clemett Shacks.(Lasky, Barry) (Entered: 02/22/2005)
153 ANSWER to Amended Complaint by Sherman.(Sullivan, Thomas) (Entered: 02/22/2005)
154 ANSWER to Interrogatories from Raymond Cotton by Raymond Cotton.(Shivers, Yvonne) (Entered: 02/23/2005)
Email Test − DO NOT REPLY. (Lee, Tiffeny) (Entered: 02/23/2005)
ORDER confirming that oral argument on all motions to dismiss will be held on March 18, 2005 at 11:30 am. Signed by Judge John Gleeson on February 25, 2005. (Entered: 02/25/2005)
155 Letter from Stephen E. Handler to Judge John Gleeson Regarding Completion of briefing process. (Handler, Stephen) (Entered: 02/25/2005)
156 MOTION to Substitute Party by United States of America. (Handler, Stephen) (Entered: 02/25/2005)
157 MOTION to Substitute Party Memorandum by United States of America. (Handler, Stephen) (Entered: 02/25/2005)
158 MOTION to Dismiss by United States of America. (Handler, Stephen) (Entered: 02/25/2005)
159 MOTION to Dismiss Memorandum by United States of America. (Handler, Stephen) (Entered: 02/25/2005)
160 RESPONSE in Opposition re 158 MOTION to Dismiss, 157 MOTION to Substitute Party Memorandum, 156 MOTION to Substitute Party, 159 MOTION to Dismiss Memorandum filed by Ehab Elmaghraby. (Handler, Stephen) (Entered: 02/25/2005)
161 REPLY to Response to Motion re 158 MOTION to Dismiss, 157 MOTION to Substitute Party Memorandum, 156 MOTION to Substitute Party, 159 MOTION to Dismiss Memorandum filed by United States of America. (Handler, Stephen) (Entered: 02/25/2005)
162 Proposed Pretrial Order for Substitution by United States of America. (Handler, Stephen) (Entered: 02/25/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 26 of 67

02/25/2005 02/25/2005 02/25/2005 02/25/2005
03/01/2005
03/01/2005 03/02/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005 03/04/2005 03/07/2005
03/08/2005 03/08/2005 03/10/2005

163 Proposed Pretrial Order re Dismissal of Count XXI by United States of America. (Handler, Stephen) (Entered: 02/25/2005)
164 Letter from R. Craig Lawrence to Honorable Cheryl Pollak Regarding Three business day extentsion to file reply to plaintiffs' opposition to defendant's motion to dismiss. (Lawrence, Robert) (Entered: 02/25/2005)
165 Letter from Counsel for Defendant Nora Lorenzo to Honorable John Gleeson Regarding Defendant Nora Lorenzo's Motion to Dismiss, Plaintiffs' Memorandum in Opposition, Defendant's Reply Memorandum. (Feldman, Cary) (Entered: 02/25/2005)
166 MOTION to Dismiss by Nora Lorenzo. Responses due by 2/18/2005 (Attachments: # 1 Exhibit Plaintiffs' Memorandum of Law in Opposition to Defendant Nora Lorenzo's Motion to Dismss# 2 Exhibit Reply Memorandum in Support of Defendant Nora Lorenzo's Motion to Dismiss# 3 Exhibit Certificate of Service)(Feldman, Cary) (Entered: 02/25/2005)
167 WAIVER OF SERVICE Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Jon Osteen waiver sent on 11/8/2004, answer due 1/7/2005; Sydney Chase waiver sent on 12/29/2004, answer due 2/28/2005; Salvatore LoPresti waiver sent on 12/29/2004, answer due 2/28/2005; Sherman waiver sent on 12/21/2004, answer due 2/21/2005; Michael Cooksey waiver sent on 1/27/2005, answer due 3/28/2005. (Attachments: # 1 # 2 # 3 # 4)(Reinert, Alexander) (Entered: 03/01/2005)
168 SUMMONS Returned Executed by Ehab Elmaghraby, Javaid Iqbal. Dexter Moore served on 2/15/2005, answer due 3/7/2005; Joseph Cuciti served on 1/19/2005, answer due 2/8/2005; Angel Perez served on 1/27/2005, answer due 2/16/2005. (Attachments: # 1 # 2)(Reinert, Alexander) (Entered: 03/01/2005)
169 REPLY to Response to Motion re 166 MOTION to Dismiss Defendant's Reply Memorandum in Support of His Motion to Dismiss filed by Robert Mueller. (Attachments: # 1 Exhibit Attachment 1# 2 Exhibit Attachment 2# 3 Exhibit Attachment 3)(Lawrence, Robert) (Entered: 03/02/2005)
170 INTERROGATORIES Propounded to Elmaghraby by Raymond Cotton.(Shivers, Yvonne) (Entered: 03/04/2005)
171 INTERROGATORIES Propounded to Iqbal by Raymond Cotton.(Shivers, Yvonne) (Entered: 03/04/2005)
172 REQUEST for Production of Documents by Raymond Cotton.(Shivers, Yvonne) (Entered: 03/04/2005)
173 NOTICE by Kenneth Maxwell Supplemental Memorandum of Law In Support of His Motion to Dismiss (Caldwell, Leslie) (Entered: 03/04/2005)
174 NOTICE by Michael Rolince re 129 Letter, 128 MOTION to Dismiss Supplemental Memorandum of Law in Support of Motion to Dismiss (Bohorquez, Fernando) (Entered: 03/04/2005)
175 Letter from R. Craig Lawrence to The Honorable John Gleeson Regarding Defendant's Robert Mueller's Reply Memorandum in Support of His Motion to Dismiss was incorrectly linked to docket entry 166, Plaintiff's Motion to Dismiss by Nora Lorenzo, as well as filing in error Defendant Nora Lorenzo's Opposition as exhibit/attachment two of our filing. We are therefore filing the correct attachment to our reply.. (Attachments: # 1)(Lawrence, Robert) (Entered: 03/07/2005)
NOTICE The hearing scheduled for Friday March 18, 2005 at 11:30am has been moved up to 10:00am per Judge Gleeson. (Klein, Vivian) (entered on 3/8/05) (Entered: 03/08/2005)
176 NOTICE of Appearance by Alan E. Wolin on behalf of Sydney Chase (Wolin, Alan) (Entered: 03/08/2005)
177 NOTICE by Sydney Chase Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/10/2005)

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03/10/2005 03/10/2005 03/10/2005 03/10/2005 03/10/2005 03/10/2005 03/10/2005 03/11/2005 03/11/2005 03/11/2005 03/15/2005 03/16/2005 03/16/2005 03/17/2005 03/17/2005 03/18/2005
03/18/2005 03/18/2005 03/21/2005

178 NOTICE by Michael Defrancisco Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/10/2005)
179 NOTICE by Richard Diaz Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/10/2005)
180 NOTICE by Scott Roseberry Initial Diclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 03/10/2005)
181 REQUEST for Production of Documents by Richard Diaz, Scott Roseberry, Sydney Chase, Michael Defrancisco.(Wolin, Alan) (Entered: 03/10/2005)
182 INTERROGATORIES Propounded to Ehab Elmaghraby by Richard Diaz, Scott Roseberry, Sydney Chase, Michael Defrancisco.(Wolin, Alan) (Entered: 03/10/2005)
183 INTERROGATORIES Propounded to Javaid Iqbal by Richard Diaz, Scott Roseberry, Sydney Chase, Michael Defrancisco.(Wolin, Alan) (Entered: 03/10/2005)
184 NOTICE of Appearance by Lauren J. Resnick on behalf of Michael Rolince (Resnick, Lauren) (Entered: 03/10/2005)
185 Letter from Lynch &Hammer to Koob &Magoolaghan Regarding substitution of Counsel for Defendant Jai Jaikisson from Lynch &Hammer to Bridgett McMillan, Esq.. (Hammer, Scott) (Entered: 03/11/2005)
186 NOTICE by Lindsey Bledsoe Initial FRCP 26(a)(1) Disclosure (Richman, Labe) (Entered: 03/11/2005)
187 NOTICE of Appearance by Labe M. Richman on behalf of Lindsey Bledsoe (Richman, Labe) (Entered: 03/11/2005)
196 MOTION for Limited Admission to admit Nashiba D. Boyd by Michael Cooksey. Filing Fee $25.00, Receipt #307295(Piper, Francine) Modified on 3/24/2005 (Piper, Francine). (Entered: 03/24/2005)
188 ANSWER to Interrogatories from Elizabeth Torres by Elizabeth Torres.(Leonard, Christina) (Entered: 03/16/2005)
189 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Plaintiff's Opposition to Defendants Rolince and Maxwell's Motions to Dismiss. (Reinert, Alexander) (Entered: 03/16/2005)
190 MOTION for Limited Admission as to William E. Lawler, III by Michael Cooksey. Filing Fee $25.00. Receipt #306984. (Piper, Francine) Modified on 3/17/2005 (Piper, Francine). (Entered: 03/17/2005)
191 ORDER granting 190 Motion for Limited Admission. (Signed by JudgeJohn Gleeson on 3/11/05) (Piper, Francine) (Entered: 03/17/2005)
ECF registration forms have been mailed to "WILLIAM LAWLER", so that all filings may be made electronically. All actions before this Court are ECF matters. It is MANDATORY that you file all original documents electronically. Please refer to the Judge's Individual Rules. From this point forward, original documents are REQUIRED to be filed electronically and forward a hard copy, labeled courtesy copy, to chambers. The Judges' Individual Rules of Chambers and further information on ECF may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov.. (Piper, Francine) (Entered: 03/18/2005)
192 NOTICE of Appearance by Leslie R Caldwell on behalf of Kenneth Maxwell (Caldwell, Leslie) (Entered: 03/18/2005)
199 Minute Entry for proceedings held before John Gleeson : Motion hearing held on 3/18/2005. Decision reserved. (Greene, Donna) (McGee, Mary Ann). (Entered: 03/28/2005)
193 AFFIDAVIT re 89 Disclosure of Interested Parties inadvertently omitted from original filing by Steven Barrere. (Ryan, James) (Entered: 03/21/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 28 of 67

03/22/2005 03/24/2005 03/24/2005 03/24/2005
03/24/2005 03/30/2005
03/31/2005 04/01/2005 04/01/2005 04/06/2005 04/11/2005 04/13/2005 04/14/2005 04/14/2005
04/15/2005 04/19/2005 04/20/2005

194 NOTICE of Appearance by Bridgett McMillan on behalf of Jai Jaikisson (McMillan, Bridgett) (Entered: 03/22/2005)
195 Letter from William E. Lawler to The Honorable John Gleeson Regarding Premotion Conference Regarding Cooksey's Intent to File a Motion to Dismiss. (Lawler, William) (Entered: 03/24/2005)
197 ORDER granting 196 Motion for Limited Admission. (Signed by JudgeJohn Gleeson on 3/18/05) (Piper, Francine) (Entered: 03/24/2005)
ECF registration forms have been mailed to NASHIBA D. BOYD, so that all filings may be made electronically. All actions before this Court are ECF matters. It is MANDATORY that you file all original documents electronically. Please refer to the Judge's Individual Rules. From this point forward, original documents are REQUIRED to be filed electronically and forward a hard copy, labeled courtesy copy, to chambers. The Judges' Individual Rules of Chambers and further information on ECF may be found at the website for the Eastern District of New York at www.nyed.uscourts.gov.. (Piper, Francine) (Entered: 03/24/2005)
198 NOTICE by Sherman of Initial Disclosures Pursuant to FRCP 26(a)(1) (Sullivan, Thomas) (Entered: 03/24/2005)
200 RESPONSE in Support re 128 MOTION to Dismiss, 147 MOTION to Dismiss all claims asserted against defendant Kenneth Maxwell in the Amended Complaint on the grounds that subject matter jurisdiction is lacking and the Amended Complaint fails to state a claim upon which relief can be granted filed by Kenneth Maxwell, Michael Rolince. (Attachments: # 1 Defendant Michael Rolince's Supplemental Memorandum of Law in Support of His Motion to Dismiss# 2 Defendant Kenneth Maxwell's Supplemental Memorandum of Law in Support of His Motion to Dismiss# 3 Plaintiffs' Memorandum of Law in Opposition to Defendants Michael Rolince and Kenneth Maxwell's Motions to Dismiss# 4 Letter to Judge Gleeson enclosing Memoranda of Law)(Mikkelsen, Deborah) (Entered: 03/30/2005)
201 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Defendant Cooksey's Request for Premotion Conference. (Reinert, Alexander) (Entered: 03/31/2005)
202 ANSWER to Interrogatories from Jai Jaikissoon by Jai Jaikisson.(McMillan, Bridgett) (Entered: 04/01/2005)
203 NOTICE of Voluntary Dismissal by Michael Defrancisco, Richard Diaz, Scott Roseberry (Wolin, Alan) (Entered: 04/01/2005)
204 NOTICE of Appearance by Bridgett McMillan on behalf of Dexter Moore (McMillan, Bridgett) (Entered: 04/06/2005)
205 Letter from Debra L. Roth to Judge Gleeson Regarding Assignment of Turkmen and Elmaghraby cases to one magistrate judge. (Sullivan, Thomas) (Entered: 04/11/2005)
206 Letter MOTION to Withdraw as Attorney by Dennis Hasty. (Keith, Frederick) (Entered: 04/13/2005)
207 DISCLOSURE of Interested Parties by Dexter Moore.(McMillan, Bridgett) (Entered: 04/14/2005)
208 ORDER : The letter application of F.Ryan Keith, seeking leave to withdraw as counsel of record for defendant Dennis Hasty, docketed as document 206, is GRANTED . Ordered by Judge Steven M. Gold on 04/14/05. (Gold, Steven) Modified on 11/14/2008 (Marziliano, August). (Entered: 04/14/2005)
209 NOTICE of Appearance by Raymond Granger on behalf of David Rardin (Granger, Raymond) (Entered: 04/15/2005)
210 Letter from Raymond Granger to Judge Gleeson. (Granger, Raymond) (Entered: 04/19/2005)
ORDER granting defendant Rardin's request to file an answer or a motion to dismiss by May 19, 2005, as set forth in a letter from Raymond Granger to Judge

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 29 of 67

04/20/2005
04/25/2005 04/29/2005
04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 04/29/2005 05/02/2005
05/03/2005 05/05/2005 05/05/2005 05/09/2005

Gleeson dated April 19, 2005. Ordered by Judge John Gleeson on April 20, 2005. (Gleeson, John) (Entered: 04/20/2005)
211 ORDER: Due to the recent reassignment of the above−captioned related cases to the undersigned, an in−person status conference will be held on all three cases at 12 noon on Friday, May 6, 2005. By close of business on April 29, 2005, counsel in all three cases shall electronically submit a status report to the Court, alerting the Court in particular to any outstanding issues that need to be addressed at the conference. See Attached Order. Ordered by Judge Steven M. Gold on 04/20/2005. (O'Connor, Erin) (Entered: 04/20/2005)
212 ANSWER to Amended Complaint by Dexter Moore.(McMillan, Bridgett) (Entered: 04/25/2005)
213 STATUS REPORT Status Report to Hon. Steven M. Gold in Turkmen, et al. v. Ashcroft, et al., 02cv2307 (JG); Elmaghraby, et al. v. Ashcroft, et al.,04cv1809 (JG); and Kurzberg, et al. v. Ashcroft, et al. 04cv3950 (JG) from Dennis C. Barghaan, Jr., AUSA − Special DOJ Attorney, on behalf of the individual−capacity defendants John Ashcroft, Robert Mueller, James Ziglar, Kathleen Hawk−Sawyer, Michael Rolince, and Kenneth Maxwell. by Kenneth Maxwell, Michael Rolince, Robert Mueller, John Ashcroft, Kathleen Hawk Sawyer. (Sponseller, Richard) (Entered: 04/29/2005)
214 STATUS REPORT by United States of America. (Handler, Stephen) (Entered: 04/29/2005)
215 STATUS REPORT by Clemett Shacks. (Lasky, Barry) (Entered: 04/29/2005)
216 STATUS REPORT by Linda Thomas, Sherman, Dennis Hasty, Michael Zenk. (Smart, Kyler) (Entered: 04/29/2005)
217 Letter from Alexander A. Reinert to The Honorable Steven M. Gold Regarding Status Report. (Reinert, Alexander) (Entered: 04/29/2005)
218 STATUS REPORT of Defendant Nora Lorenzo by Nora Lorenzo. (Feldman, Cary) (Entered: 04/29/2005)
219 STATUS REPORT (for Defendants Michael Cooksey and David Rardin) by Michael Cooksey. (Lawler, William) (Entered: 04/29/2005)
SCHEDULING ORDER:The conference previously scheduled for 12 noon on May 6, 2005 will be held instead at 10:30 a.m. on May 6, 2005. Counsel shall confer with each other to ensure that all parties are aware of the change in time. So Ordered. Ordered by Judge Steven M. Gold on 05/02/2005. (O'Connor, Erin) (Entered: 05/02/2005)
220 ANSWER to Amended Complaint by Angel Perez.(Koenigsberg, David) (Entered: 05/03/2005)
225 MOTION for Limited Admission to admit Kyler E. Smart by Dennis Hasty. (Piper, Francine) (Entered: 05/25/2005)
226 MOTION for Limited Admission to admit Matthew F. Scarlato by Dennis Hasty. (Piper, Francine) (Entered: 05/25/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/6/2005. See also 02−CV−2307 and 04−CV−3950. (Tape #ESR 63−64/05.)Mirapole for Turkmen plaintiffs, Reinert for Elmaghraby plaintiffs, Tolchin for Kurzburg plaintiffs, Molina for US in Turkmen, Reinhardt for US in Elmaghraby, various counsel for remaining defendants. ESR 63−64/05. (1) The protective order previously entered in the Turkmen action shall apply in all three cases, subject to the proviso that individual defendants will have one week advance notice of their client's confidential documents within which to lodge objections to disclosure. Any objections to this preliminary ruling must be submitted in writing by 5/10; if no objections are received by that date, the order will become final and binding, and all counsel will be expected to sign the protective order within one week of today's date. (2) The United States represents that it will state its position regarding whether plaintiffs will be permitted to enter the United States for

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05/09/2005 05/09/2005 05/10/2005 05/13/2005 05/19/2005
05/25/2005
05/26/2005 05/27/2005 05/27/2005 05/27/2005

purposes of deposition within four weeks. If the United States agrees to allow plaintiffs to enter the US for purposes of being deposed, plaintiffs will be deposed before defendants. Said depositions shall be conducted beginning July 1. If not, those defendants who do not have motions to dismiss pending will be deposed first, beginning August 1. The defendants who have motions pending may not be deposed until their motions are decided, and may either participate in the depositions of plaintiffs in the US if same are held, or defer their depositions of plaintiffs to a later date in plaintiffs' home countries. (3) All videotapes must be produced, at the expense of the party seeking them, within one week. (4) Defendants who have been properly served shall enter a notice of appearance or answer within 30 days, or plaintiffs may seek notice of default with respect to them. Counsel for the United States shall communicate the substance of this order to Rafael Gomez of the "Federal Program," which has played some role in coordinating communications with unrepresented defendants in these actions. (5) Defendants shall attempt to coordinate service of interrogatories and document demands by June 22, 2005, with responses due July 22, 2005. Any defendant who chooses to serve discovery demands on a later date must first review previously disclosed responses and certify that the new demands are not duplicative. Duplication may be a grounds for objection. (6) Kurzburg plaintiffs' oral motion for additional time to accomplish service denied without prejudice to submit a formal motion seeking that relief. (7) Plaintiffs shall answer interrogaties and document demands previously served and now overdue by May 20. (8) Counsel are urged to coordinate their efforts, use list serves, document and videotape repositories and other means of coordinating their discovery efforts so that this case may progress efficiently. NEXT CONFERENCE: 2:00 PM ON JUNE 28, 2005. (Houlihan, Tina) (Entered: 05/09/2005)
221 Letter from Nashiba D. Boyd to The Honorable John Gleeson Regarding Electronic Service Upon Counsel of Record of Defendant Michael Cooksey's Motion to Dismiss. (Lawler, William) (Entered: 05/09/2005)
222 MOTION to Dismiss for Lack of Jurisdiction by Michael Cooksey. Responses due by 6/6/2005 (Lawler, William) (Entered: 05/09/2005)
223 Letter from Raymond R. Granger to The Honorable John Gleeson. (Granger, Raymond) (Entered: 05/10/2005)
224 Filing Fee Received, Receipt #310012, $50.00. Pro Hac Vice Motion for Matthew Scarlato and Kyler Smart. (Piper, Francine) (Entered: 05/23/2005)
ORDER re Status Conference:The Court hereby corrects its Minute Entry of May 6, 2005 and note that Stephen E. Handler, not Reinhardt, appeared for the United States. Ordered by Judge Steven M. Gold on 05−19−2005. (Houlihan, Tina) (Entered: 05/19/2005)
ORDER granting 225 Motion for Limited Admission, granting 226 Motion for Limited Admission: The proposed orders to admit Kyler E. Smart and Matthew F. Scarlato, pro hac vice, submitted with the motions in Docket Entries 225 and 226, are hereby adopted by the Court. An attorney admitted to practice pro hac vice is required to pay a $25.00 per attorney admission fee and present this order to the intake deputy clerk in the Clerk's Office. When paying by mail, return a copy of this Order to the Clerk's Office with the required fee. So Ordered. Ordered by JudgeSteven M. Gold on 05/25/2005. (O'Connor, Erin) (Entered: 05/25/2005)
Email Notification Test − DO NOT REPLY (Piper, Francine) (Entered: 05/26/2005)
227 Letter from Bridgett McMillan to Judge Gleeson &Magistrate Gold Regarding discovery production &defendants personal Information. (McMillan, Bridgett) (Entered: 05/27/2005)
228 Letter from Christina Leonard to Hon. John Gleason Regarding Staying disclosure for a period of 60 days. (Leonard, Christina) (Entered: 05/27/2005)
229 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Ronald P. Hart's May 27 Letter Motion. (Reinert, Alexander) (Entered: 05/27/2005)

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06/01/2005 06/03/2005 06/03/2005
06/15/2005 06/15/2005 06/15/2005 06/15/2005 06/17/2005 06/20/2005 06/20/2005 06/20/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/21/2005 06/22/2005 06/22/2005 06/22/2005 06/22/2005

230 Letter from Ronald P. Hart to Judge Gleason Regarding Withdrawal of Motion to stay of Production of Discovery. (McMillan, Bridgett) (Entered: 06/01/2005)
231 ANSWER to Amended Complaint by Joseph Cuciti.(Wolin, Alan) (Entered: 06/03/2005)
232 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding United States'Position regarding plaintiffs entering the United States. (Handler, Stephen) (Entered: 06/03/2005)
233 First MOTION to Dismiss by David Rardin. Responses due by 6/15/2005 (Granger, Raymond) (Entered: 06/15/2005)
234 First MOTION to Dismiss by David Rardin. Responses due by 6/15/2004 (Granger, Raymond) (Entered: 06/15/2005)
235 First MOTION to Dismiss by David Rardin. Responses due by 6/15/2004 (Granger, Raymond) (Entered: 06/15/2005)
236 First MOTION to Dismiss by David Rardin. Responses due by 6/15/2004 (Granger, Raymond) (Entered: 06/15/2005)
237 NOTICE by Joseph Cuciti Initial Disclosures Pursuant to Rule 26(a)(1) (Wolin, Alan) (Entered: 06/17/2005)
238 DEPOSITION of Plaintiffs taken on Date To Be Determined by Joseph Cuciti.(Wolin, Alan) (Entered: 06/20/2005)
239 INTERROGATORIES Propounded to Plaintiffs by Joseph Cuciti.(Wolin, Alan) (Entered: 06/20/2005)
240 REQUEST for Production of Documents by Joseph Cuciti.(Wolin, Alan) (Entered: 06/20/2005)
241 INTERROGATORIES Propounded to Plaintiffs by Jai Jaikisson.(McMillan, Bridgett) (Entered: 06/21/2005)
242 REQUEST for Production of Documents by Jai Jaikisson.(McMillan, Bridgett) (Entered: 06/21/2005)
243 REQUEST for Production of Documents by Reynaldo Alamo.(McMillan, Bridgett) (Entered: 06/21/2005)
244 REQUEST for Production of Documents by Dexter Moore.(McMillan, Bridgett) (Entered: 06/21/2005)
245 REQUEST for Production of Documents by James Clardy.(Hart, Ronald) (Entered: 06/21/2005)
246 INTERROGATORIES Propounded to plaintiff by Reynaldo Alamo.(McMillan, Bridgett) (Entered: 06/21/2005)
247 INTERROGATORIES Propounded to plaintiff by Dexter Moore.(McMillan, Bridgett) (Entered: 06/21/2005)
248 INTERROGATORIES Propounded to plaintiff by James Clardy.(Hart, Ronald) (Entered: 06/21/2005)
249 INTERROGATORIES Propounded by Clemett Shacks.(Lasky, Barry) (Entered: 06/22/2005)
250 NOTICE to Take Deposition by Clemett Shacks.(Lasky, Barry) (Entered: 06/22/2005)
251 REQUEST for Production of Documents by Clemett Shacks.(Lasky, Barry) (Entered: 06/22/2005)
252 REPLY to Response to Motion re 222 MOTION to Dismiss for Lack of Jurisdiction filed by Michael Cooksey. (Lawler, William) (Entered: 06/22/2005)

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06/24/2005 06/29/2005
06/29/2005 06/29/2005 06/29/2005 06/29/2005 06/29/2005 07/11/2005 07/27/2005
08/12/2005
08/19/2005 08/22/2005 08/25/2005

253 Letter from Stephen Handler to Magistrate Judge Steven Gold Regarding United States' statement regarding paroling plaintiffs into the United States. (Handler, Stephen) (Entered: 06/24/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 6/28/2005. Also 02−2307 and 04−3950. (Tape #ESR 90/05.)Counsel for all parties other than Kurzburg plaintiffs present. ESR 90/05. (1) Proposed revisions to protective order put forward by counsel for Turkmen plaintiffs are approved, absent objection no later than July 1 from any counsel who has not yet reviewed them. (2) Counsel shall work together on protocol for scheduling depositions and IMEs of plaintiffs to be paroled into US for limited purpose of participating in this case. (3) At next conference, counsel shall be prepared to discuss whether the case has reached the point where settlement discussions might be productive and, if so, the format for holding same. NEXT CONF: SEPT 8 AT 3 PM. (Houlihan, Tina) (Entered: 06/29/2005)
254 NOTICE to Take Deposition of Ehab Elmaghraby and Javid Iqbal by Reynaldo Alamo.(McMillan, Bridgett) (Entered: 06/29/2005)
255 NOTICE to Take Deposition of Plaintiff's Ehab Elmaghraby and Javid Iqbal by Reynaldo Alamo.(McMillan, Bridgett) (Entered: 06/29/2005)
256 NOTICE to Take Deposition of Plainitffs Ehab Elmaghraby and Javid Iqbal by Jai Jaikisson.(McMillan, Bridgett) (Entered: 06/29/2005)
257 NOTICE to Take Deposition of Plaintiffs Ehab Elmaghraby and Javid Iqbal by Dexter Moore.(McMillan, Bridgett) (Entered: 06/29/2005)
258 NOTICE to Take Deposition of Plaintiffs Ehab Elmaghraby and Javid Iqbal by James Clardy.(Hart, Ronald) (Entered: 06/29/2005)
259 TRANSCRIPT of Civil Cause for Status Conference held on 6/28/05 before Judge Steven M. Gold. Court Reporter: Rosalie Lombardi, L.F., Transcription Plus II. (Black, Amanda). (McGee, Mary Ann). (Entered: 07/13/2005)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 7/26/2005. (Tape #ESR 94/05.)Meerepol, Yoon and Reinhart for plaintiffs. Molina and Handler for defendants. ESR 94/05. The Government's letter application of July 1, 2005, seeking an order requiring inclusion of proposed para. 18 in the protective order to be entered in this case, is denied without prejudice to propose a more narrowly tailored provision which addresses the concerns I expressed on the record of today's conference. (Houlihan, Tina) (Entered: 07/27/2005)
SCHEDULING ORDER:In response to the letter from counsel for plaintiffs in this matter a telephone conference has been scheduled for AUGUST 24, 2005 at 3:00 p.m. before the Honorable Steven M. Gold, United States Magistrate Judge at (718) 260−2560. Ms. Meeropol is directed to arrange the call as well as confirm with all parties that they are aware of this conference. Ordered by Judge Steven M. Gold on 08−12−2005. (Houlihan, Tina) (Entered: 08/12/2005)
260 Letter from Def. United States by Stephen Handler to Magistrate Judge Gold Regarding Plaintiffs' 8−12−05 Letter re: Conditions of Parole. (Handler, Stephen) (Entered: 08/19/2005)
261 Letter from David Koenigsberg, Esq. to Magistrate Judge Gold Regarding Plaintiffs' Depositions. (Koenigsberg, David) (Entered: 08/22/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 8/25/2005. Meeropol and Reiner for plaintiff, Handler and Molina for United States, Koeningsberg, Marino, Granger et al for other defendants. ESR 103 and 105/05. (1) United States will advise within one week whether it is able to accept the court's proposed modification to the declaration plaintiffs must execute to be paroled into the United States. If not, discovery of defendants will proceed first. (2) Plaintiffs will promptly, and in any event prior to the next conference now set for 9/8, advise which plaintiffs will seek entry to the United States to be deposed, and which will require medical examinations. (3) Defendants may seek further factual responses to interrogatories prior to the plaintiffs' depositions; plaintiffs may not

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 33 of 67

08/30/2005 09/06/2005 09/07/2005 09/07/2005 09/15/2005 09/16/2005 09/16/2005
09/21/2005
09/23/2005 09/27/2005 09/27/2005 09/27/2005 09/30/2005

object on the grounds that the information sought is more efficiently obtained by way of deposition. (4) The depositions will, absent further order of the court, be held over two days with 8 and 1/2 hours of questioning each day. The United States will have four hours, and the remaining defendants will share the rest of the time. Plaintiffs may submit their redirect by way of affidavit after returning home, and the affidavit will be treated for all procedural and evidentiary purposes as if part of the deposition. Defendants may leave the deposition open and reserve the right to ask additional deposition questions in writing after plaintiffs return to their home countries. (5) Remaining rulings stated on the record. (Tape #103, 105/05.) (Vasquez, Lea) (Entered: 08/25/2005)
262 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding United States' position regarding the conditions of parole. (Handler, Stephen) (Entered: 08/30/2005)
264 Answer to Amended Complaint filed by pro se Salvatore LoPresti. (Fwd. to Judge Gleeson).(Layne, Monique) (Entered: 09/13/2005)
263 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding Postponement of September 8, 2005, Status Conference. (Handler, Stephen) (Entered: 09/07/2005)
ORDER re 263 LetterThe conference is adjourned without date. Counsel shall submit a status report to the Court within 60 days from the date of this Order.So Ordered by Judge Steven M. Gold on 09/07/2005. (Vasquez, Lea) (Entered: 09/07/2005)
265 Letter from Raymond R. Granger to Magistrate Judge Gold Regarding Depositions of Plaintiffs. (Granger, Raymond) (Entered: 09/15/2005)
266 Letter from Stephen E. Handler to Magistrate Judge Gold Regarding Co−defendants' request for reconsideration of order, dated August 25, 2005, regarding the limiting of plaintiffs' depositions to two days. (Handler, Stephen) (Entered: 09/16/2005)
ORDER re 265 Letter: The motion for reconsideration is denied. My prior order permits each plaintiff to be questioned by defendants for 17 hours, with 13 hours set aside for defendants other than the United States. Even after taking into account the complexity of this action and the language difficulties posed, this time should be sufficient if defense counsel work together to avoid duplicative questioning and proceed efficiently. Ordered by Judge Steven M. Gold on 09/16/05. (Gold, Steven) (Entered: 09/16/2005)
ORDER: Defendant Salvatore Lopresti opposes a motion for default judgment in Elmaghraby (04−cv−1809, docket entry 264) and Kurzberg (04−cv−3950, docket entry 51). While no such motions appear to have been filed in those cases, a motion for default judgment against Lopresti has been filed in Turkmen (02−cv−2307). Lopresti presumably opposes that motion for the reasons set forth in the papers he filed under the Elmaghraby and Kurtzberg matters. The application for default judgment against Lopresti has been referred to Judge Gold. (Ordered by Judge John Gleeson on September 21, 2005.) (Entered: 09/21/2005)
267 NOTICE of Change of Firm and Counsel's Address by Mark Earl Nagle , Counsel for Kathleen Hawk Sawyer (Nagle, Mark) (Entered: 09/23/2005)
Email Notification Test − DO NOT REPLY (Vaughn, Terry) (Entered: 09/27/2005)
268 ORDER granting in part and denying in part defendants Ashcroft, Mueller, Rolince, Maxwell, Hawk Sawyer, Cooksey, Rardin, Hasty, Zenk, Lorenzo and the United States' motions to dismiss. Ordered by Judge John Gleeson on September 27, 2005. (Gleeson, John) (Entered: 09/27/2005)
285 TRANSCRIPT of Status and discovery Conferene held on 5/6/05 before Judge Steven M. Gold. (Drayton, Lorraine) (Entered: 10/28/2005)
286 TRANSCRIPT of Status and Discovery Conference held on 7/26/05 before Judge Steven M. Gold. (Drayton, Lorraine) (Entered: 10/28/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 34 of 67

09/30/2005 10/11/2005
10/12/2005
10/13/2005 10/17/2005 10/17/2005 10/20/2005 10/24/2005 10/25/2005

287 TRANSCRIPT of Status and Discovery Conference held on 8/24/05 before Judge Steven M. Gold. (Drayton, Lorraine) (Entered: 10/28/2005)
269 Letter MOTION for Extension of Time to File Answer on behalf of defendants Kathleen Hawk Sawyer, John Ashcroft, Robert Mueller, Michael Zenk, Kenneth Maxwell, Michael Cooksey, Nora Lorenzo, Michael Rolince, Dennis Hasty, and David Rardin by Kathleen Hawk Sawyer. (Nagle, Mark) (Entered: 10/11/2005)
ORDER: The request of defendants Kathleen Hawk Sawyer, John Ashcroft, Robert Mueller, Michael Zenk, Kenneth Maxwell, Michael Cooksey, Nora Lorenzo, Michael Rolince, Dennis Hasty, and David Rardin, for an extension of time to file an answer is respectfully referred to Magistrate Judge Gold. Ordered by Judge John Gleeson on October 12, 2005. (Gleeson, John) (Entered: 10/12/2005)
270 NOTICE of Appearance by Linda Cronin on behalf of Elizabeth Torres (Cronin, Linda) (Entered: 10/13/2005)
271 NOTICE of Change of Addres of Counsel for Jon Osteen by David A Koenigsberg (Koenigsberg, David) (Entered: 10/17/2005)
272 NOTICE of Change of Address of Counsel for Angel Perez by David A Koenigsberg (Koenigsberg, David) (Entered: 10/17/2005)
273 AMENDED COMPLAINT filed with consent of counsel for defendants against all defendants, filed by all plaintiffs. (Attachments: # 1 Certificate of Service)(Reinert, Alexander) (Entered: 10/20/2005)
274 NOTICE OF APPEAL as to 268 Order, by Dennis Hasty. Filing fee $ 255, receipt number 1517005. (Smart, Kyler) (Entered: 10/24/2005)
Electronic Index to Record on Appeal sent to US Court of Appeals re 105 Notice of Appearance, 204 Notice of Appearance, 96 Notice of Appearance, 157 MOTION to Substitute Party Memorandum, 235 First MOTION to Dismiss, 99 Notice (Other), 267 NOTICE of Change of Address/Firm/Email, 50 Letter, 208 Order, 23 Letter, 209 Notice of Appearance, 201 Letter, 239 Interrogatories Propounded, 249 Interrogatories Propounded, 25 Letter, 214 Status Report, 9 MOTION for Limited Admission (to admit Michael Martinez Pro hac Vice), 248 Interrogatories Propounded, 192 Notice of Appearance, 47 Letter, 83 Letter, 221 Letter, 255 Notice to Take Deposition, 103 Disclosure of Interested Parties, 223 Letter, 257 Notice to Take Deposition, 171 Interrogatories Propounded, 109 Answer to Amended Complaint, 59 Order,, 82 Summons Returned Executed, 122 MOTION for Limited Admission as to Debra L. Roth, 21 Answer to Complaint, 220 Answer to Amended Complaint, 218 Status Report, 68 Summons Returned Executed,, 56 Answer to Complaint, 60 Answer to Complaint, 225 MOTION for Limited Admission to admit Kyler E. Smart, 146 Notice of Appearance, 93 Disclosure of Interested Parties, 237 Notice (Other), 154 Answer to Interrogatories, 48 Order on Motion for Leave to Appear, 271 NOTICE of Change of Address/Firm/Email, 79 Notice of Appearance, 210 Letter, 102 Answer to Amended Complaint, 163 Proposed Pretrial Order, 107 Notice of Appearance, 62 Order, 159 MOTION to Dismiss Memorandum, 260 Letter, 147 MOTION to Dismiss all claims asserted against defendant Kenneth Maxwell in the Amended Complaint on the grounds that subject matter jurisdiction is lacking and the Amended Complaint fails to state a claim upon which relief can be granted, 91 Answer to Amended Complaint, 203 Notice of Voluntary Dismissal, 273 Amended Complaint, 131 MOTION for Limited Admission to admit Robert A. Graham (Filing Fee Paid $25.00 Receipt #305078), 129 Letter, 5 Order, 120 Letter, 180 Notice (Other), 197 Order on Motion for Limited Admission, 12 Letter, 127 Notice of Appearance, 75 Notice of MOTION to Dismiss and Memorandum of Law in Support Thereof, 189 Letter, 125 Order on Motion for Limited Admission, 134 Order on Motion for Limited Admission, 46 Letter, 253 Letter, 198 Notice (Other), 173 Notice (Other), 14 Order,, 130 Order on Motion for Limited Admission, 95 Letter, 97 Notice of Appearance, 234 First MOTION to Dismiss, 84 Letter,, 241 Interrogatories Propounded, 270 Notice of Appearance, 219 Status Report, 71 Summons Returned Executed, 149 Answer to Amended Complaint, 165 Letter, 118 Letter, 44 Letter, 232 Letter, 143 Telephone Conference, 262 Letter, 254 Notice to Take Deposition, 34 Letter, 17 Order, 152 Answer to Interrogatories, 135 Order, 246 Interrogatories Propounded, 27 Stipulation, 228 Letter, 30 MOTION for

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 35 of 67

10/26/2005 10/26/2005

Limited Admission (for Mark E. Nagle to be admitted pro hac vice), 148 Letter,, 37 Letter, 52 Order, 168 Summons Returned Executed,, 216 Status Report, 69 Summons Returned Executed, 92 Affidavit of Service, 1 Complaint,, 54 Answer to Amended Complaint, 153 Answer to Amended Complaint, 164 Letter, 22 Letter, 6 Order, Set Hearings, 20 Order, 193 Affidavit, 265 Letter, 101 Disclosure of Interested Parties, 207 Disclosure of Interested Parties, 258 Notice to Take Deposition, 63 Order,, 36 Letter, 110 Letter, 202 Answer to Interrogatories, 123 Order on Motion for Limited Admission, 170 Interrogatories Propounded, 24 Letter, 206 Letter MOTION to Withdraw as Attorney, 247 Interrogatories Propounded, 272 NOTICE of Change of Address/Firm/Email, 106 Letter, 155 Letter, 274 Notice of Appeal, 205 Letter, 61 Letter, 78 Answer to Amended Complaint, Crossclaim, 114 Answer to Amended Complaint, 13 Order, 49 Order, 176 Notice of Appearance, 196 MOTION for Limited Admission to admit Nashiba D. Boyd, 224 Notice (Other), 31 Order on Motion for Limited Admission, 73 Letter,, 178 Notice (Other), 236 First MOTION to Dismiss, 58 Notice of Appearance, 70 Summons Returned Executed,, 98 Letter, 190 MOTION for Limited Admission as to William E. Lawler, III, 243 Request for Production of Documents, 252 Reply to Response to Motion, 261 Letter, 126 MOTION for Limited Admission to admit Grace B. Culley, 86 Answer to Amended Complaint, Crossclaim, 245 Request for Production of Documents, 89 Disclosure of Interested Parties, ECF registration forms have been mailed, so that all filings may be made electronically.,,, 156 MOTION to Substitute Party, 226 MOTION for Limited Admission to admit Matthew F. Scarlato, 108 Letter,, 94 Order, 195 Letter, 81 Waiver of Service Executed,,, 269 Letter MOTION for Extension of Time to File Answer on behalf of defendants Kathleen Hawk Sawyer, John Ashcroft, Robert Mueller, Michael Zenk, Kenneth Maxwell, Michael Cooksey, Nora Lorenzo, Michael Rolince, Dennis Hasty, and David Rardin, 112 First MOTION to Dismiss All Claims Against Defendant Attorney General John Ashcroft − Reply Memorandum of Law, 15 Stipulation and Order, 57 Answer to Amended Complaint, 160 Response in Opposition to Motion, 250 Notice to Take Deposition, 111 Answer to Amended Complaint, 72 Letter, 32 Notice of Appearance, 233 First MOTION to Dismiss, 158 MOTION to Dismiss, 124 MOTION for Limited Admission to admit Cary M. Feldman, 175 Letter,, 55 Notice of Appearance, 77 Scheduling Order, 251 Request for Production of Documents, 132 Order on Motion for Limited Admission, 174 Notice (Other), 133 MOTION for Limited Admission to admit Matthew S. Freedus (Filing Fee paid $25.00, Receipt #305079), 264 Answer to Amended Complaint, 194 Notice of Appearance, 240 Request for Production of Documents, 100 Order,, 80 Letter, 8 Order, 35 Amended Complaint,,, 167 Waiver of Service Executed,, 268 Order,, 200 Response in Support of Motion,,,, 116 Memorandum in Support, 177 Notice (Other), 113 Notice of MOTION to Dismiss and Memorandum of Law in Support Thereof, 141 Answer to Amended Complaint, Crossclaim, 230 Letter, 244 Request for Production of Documents, 242 Request for Production of Documents, 172 Request for Production of Documents, 222 MOTION to Dismiss for Lack of Jurisdiction, 87 Disclosure of Interested Parties, 117 MOTION to Dismiss the Claims Against Attorney General John Ashcroft in His Individual Capacity, 76 Letter, 229 Letter, 51 Letter, 227 Letter, 238 Deposition, 263 Letter, 104 Notice of Appearance, Order, 266 Letter, 26 Letter, 115 MOTION to Dismiss, 231 Answer to Amended Complaint, 191 Order on Motion for Limited Admission, 256 Notice to Take Deposition, 128 MOTION to Dismiss, 38 Letter, 217 Letter, 11 Order, 53 Letter,, 28 Notice of Appearance, 33 Stipulation and Order, 88 Letter, 45 Letter, 144 Answer to Amended Complaint, 179 Notice (Other), 40 Letter, 39 Consent MOTION for Leave to Appear Pro Hac Vice, 169 Reply to Response to Motion, For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (Gonzalez, Mary) (Entered: 10/25/2005)
275 NOTICE OF APPEAL as to 268 Order, by Michael Rolince. (Bohorquez, Fernando)Filing fee of $255.00 paid 10/27/05 R#317024. Original receipt and stamped copy of NOA returned to Baker &Hostetler LLP. Modified on 10/28/2005 (McGee, Mary Ann). Modified on 10/28/2005 (McGee, Mary Ann). (Entered: 10/26/2005)
276 NOTICE OF APPEAL as to 268 Order, by Kenneth Maxwell. Filing fee $ 255, receipt number 1520242. (Attachments: # 1 Exhibit)(Mikkelsen, Deborah) (Entered: 10/26/2005)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 36 of 67

10/26/2005 10/26/2005 10/26/2005 10/27/2005 10/27/2005 10/27/2005 10/27/2005
10/27/2005 10/27/2005 10/28/2005 10/28/2005 10/28/2005 10/28/2005 10/31/2005 10/31/2005 11/03/2005 11/03/2005

277 NOTICE OF APPEAL as to 268 Order, by Kathleen Hawk Sawyer. (Nagle, Mark) R#317050 $255.00 paid. Modified on 10/28/2005 (McGee, Mary Ann). (Entered: 10/26/2005)
278 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Request for Certification Pursuant to 28 U.S.C. 1292(b). (Reinert, Alexander) (Entered: 10/26/2005)
279 AMENDED DOCUMENT by Ehab Elmaghraby, Javaid Iqbal. Amendment to 278 Letter Requesting Certification Pursuant to 28 U.S.C. 1292(b). (Reinert, Alexander) (Entered: 10/26/2005)
280 STATUS REPORT by United States of America. (Handler, Stephen) (Entered: 10/27/2005)
281 NOTICE OF APPEAL as to 268 Order, by Michael Cooksey. Filing fee $ 255, receipt number 1521149. (Attachments: # 1 Exhibit Exhibit A to Defendant Micahel Cooksey's Notice of Appeal)(Lawler, William) (Entered: 10/27/2005)
282 NOTICE OF APPEAL as to 268 Order, by Nora Lorenzo. (Attachments: # 1)(Feldman, Cary) Fee paid. R#317089. Modified on 10/31/2005 (McGee, Mary Ann). (Entered: 10/27/2005)
ORDER: Any party wishing to respond to (or to support) the plaintiffs' request for certification of an interlocutory appeal under 28 U.S.C. s.1292(b) of the court's dismissal of the plaintiffs' claims under the Religious Freedom Restoration Act shall do so by November 4, 2005; any reply papers shall be filed by November 9, 2005. Ordered by Judge John Gleeson on October 27, 2005. (Gleeson, John) (Entered: 10/27/2005)
283 NOTICE OF APPEAL as to 268 Order, by Robert Mueller, John Ashcroft. (Lawrence, Robert) (Entered: 10/27/2005)
284 NOTICE OF APPEAL by David Rardin. Filing fee $ 255, receipt number 1522640. (Granger, Raymond) (Entered: 10/27/2005)
288 NOTICE of Change of Firm Name by Linda Marie Marino (Marino, Linda) (Entered: 10/28/2005)
289 ANSWER to Amended Complaint by Linda Thomas.(Marino, Linda) (Entered: 10/28/2005)
290 AFFIDAVIT re 289 Answer to Amended Complaint by Linda Thomas. (Marino, Linda) (Entered: 10/28/2005)
291 ANSWER to Amended Complaint (Second Amended Complaint) by Raymond Cotton.(Shivers, Yvonne) (Entered: 10/28/2005)
292 ANSWER to Amended Complaint Seconed Amended Complaint by Jon Osteen.(Koenigsberg, David) (Entered: 10/31/2005)
293 ANSWER to Amended Complaint Second Amended Complaint by Angel Perez.(Koenigsberg, David) (Entered: 10/31/2005)
294 Letter from David Koenigsberg to Hon. Steven M. Gold Regarding Depositions of Plaintiffs. (Koenigsberg, David) (Entered: 11/03/2005)
295 ORDER of default against them, are notified of the conference. Counsel shall be prepared to address, among other matters, the following: With respect to Mr. Handler's letter of October 27, 2005 (04−CV−1809 Document 280): Why is it more efficient for the U.S. Marshals Service to have a large number of plaintiffs in the United States at the same time, rather than spreading the dates of plaintiffs' depositions over a more extended time period? Wouldn't fewer officers be needed if only one or two plaintiffs proceeded at one time? How can the court properly schedule multiple depositions to be held simultaneously when, if the court's understanding is correct, several defendants are represented by solo practitioners and others are proceeding without counsel? With respect to Mr. Nagle's letter of October 11, 2005 (04−CV−1809 Document 269): shouldn't answers be required before plaintiffs are deposed? So Ordered by Judge Steven M. Gold on 11/3/2005.

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 37 of 67

11/03/2005 11/04/2005
11/04/2005 11/04/2005
11/07/2005 11/07/2005
11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005 11/07/2005
11/09/2005
11/10/2005 11/11/2005 11/13/2005 11/15/2005 11/15/2005

(Vasquez, Lea) (Entered: 11/03/2005)
296 Letter from Christina A. Leonard to Magistrate Gold Regarding Objection to the proposed deposition schedule. (Leonard, Christina) (Entered: 11/03/2005)
NOTICE re 295 OrderALL COUNSEL ARE DIRECTED TO APPEAR IN PERSON FOR THE CONFERENCE SCHEDULED FOR NOVEMBER 8, 2005. (Vasquez, Lea) (Entered: 11/04/2005)
297 Letter from Plaintiffs' Counsel to Magistrate Judge Gold Regarding Status Report. (Magoolaghan, Joan) (Entered: 11/04/2005)
298 Letter from Mark E. Nagle to The Honorable John N. Gleeson Regarding Opposition to Plaintiffs' Request for Certification Pursuant to 28 U.S.C. 1292(b). (Nagle, Mark) (Entered: 11/04/2005)
299 STATUS REPORT by Steven Barrere. (Aranyos, Stephanie) (Entered: 11/07/2005)
300 STATUS REPORT Dated November 7, 2005 by Michael Cooksey, David Rardin, Kenneth Maxwell, Michael Rolince, Robert Mueller, John Ashcroft, Kathleen Hawk Sawyer, Dennis Hasty. (Sponseller, Richard) (Entered: 11/07/2005)
301 STATUS REPORT by Dennis Hasty. (Smart, Kyler) (Entered: 11/07/2005)
302 STATUS REPORT by Marcial Mundo. (Matthews, James) (Entered: 11/07/2005)
303 Letter from Linda M. Marino to Honorable Steven M. Gold Regarding status. (Marino, Linda) (Entered: 11/07/2005)
304 Letter from Y. Shivers to Magistrate Gold Regarding Status Report. (Shivers, Yvonne) (Entered: 11/07/2005)
305 Letter from Kenneth C. Murphy to Honorable Steven M. Gold Regarding status. (Murphy, Kenneth) (Entered: 11/07/2005)
306 STATUS REPORT dated November 7, 2005 by Sherman. (Sullivan, Thomas) (Entered: 11/07/2005)
307 Letter from Defendant Nora Lorenzo to Judge Gold Regarding Status report. (Feldman, Cary) (Entered: 11/07/2005)
308 Letter from Joshua C. Klein to Magistrate Judge Gold Regarding Status Report. (Taffet, Allan) (Entered: 11/07/2005)
309 STATUS REPORT by Reynaldo Alamo. (McMillan, Bridgett) (Entered: 11/07/2005)
310 STATUS REPORT by James Clardy. (Hart, Ronald) (Entered: 11/07/2005)
312 ANSWER to Second Amended Complaint 273 , filed by pro se Salvatore Lopresti, dated 11/2/2005. *Fwd. to Chambers. (Latka−Mucha, Wieslawa) (Entered: 11/09/2005)
311 Letter from Alexander A. Reinert to The Honorable John Gleeson Regarding Request for Certification of Interlocutory Appeal. (Reinert, Alexander) (Entered: 11/09/2005)
313 ANSWER to Amended Complaint Second Amended Complaint by Steven Barrere. (Attachments: # 1 Affidavit of Service)(Ryan, James) (Entered: 11/10/2005)
314 ANSWER to Amended Complaint Second Amended Complaint by Sherman.(Sullivan, Thomas) (Entered: 11/11/2005)
315 ANSWER to Amended Complaint by Lindsey Bledsoe.(Richman, Labe) (Entered: 11/13/2005)
318 MOTION for Leave to Appear Pro Hac Vice (Cheryl A. Curtis) by Michael Cooksey. (Piper, Francine) (Entered: 11/22/2005)
319 FILING FEE: $ 25.00, receipt number 317657 (Piper, Francine) (Entered: 11/22/2005)

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11/16/2005 11/16/2005
11/17/2005 11/17/2005 11/17/2005

First Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals re 312 Answer to Amended Complaint, 293 Answer to Amended Complaint, 286 Transcript, 277 Notice of Appeal, 303 Letter, 302 Status Report, 308 Letter, 299 Status Report, 298 Letter, 284 Notice of Appeal, 306 Status Report, 285 Transcript, 289 Answer to Amended Complaint, 301 Status Report, 281 Notice of Appeal, 287 Transcript, 304 Letter, 314 Answer to Amended Complaint, 282 Notice of Appeal, 313 Answer to Amended Complaint, 295 Order,,,, 278 Letter, 276 Notice of Appeal, 296 Letter, 292 Answer to Amended Complaint, 288 NOTICE of Change of Address/Firm/Email, 294 Letter, 290 Affidavit, 291 Answer to Amended Complaint, 300 Status Report, 283 Notice of Appeal, 279 Amended Document, 305 Letter, 310 Status Report, 297 Letter, 309 Status Report, 311 Letter, 307 Letter, 315 Answer to Amended Complaint, 280 Status Report, 275 Notice of Appeal, For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 11/16/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 11/8/2005.ESR 132. Meerepol for Turkmen plaintiffs, Reinert for Elmaghraby plaintiffs, Handler and Molina for United States in both actions, various counsel present for individual defendants. (1) Turkmen plaintiffs will respond to defendant Pray's discovery requests promptly. (2) Plaintiffs will alert all pro se defendants of all court orders, minute entries, and conferences. WIth respect to pro se defendant Ortiz, counsel for the United States will either assume responsibility for notifying Ortiz of all court orders, minute entries, and conferences or provide plaintiffs' counsel with Ortiz' home address. (3) The schedule for paper discovery proposed in the letter submitted by the Turkmen plaintiffs dated November 4, 2005, at page 2, is adopted in the Turkman and Elmaghraby cases. (5) A CONFERENCE TO DISCUSS MODIFICATION OF THE SCHEDULE FOR DEPOSING PLAINTIFFS WILL BE HELD AT 5:30 PM ON NOVEMBER 15, 2005. Although all counsel and parties are of course welcome to attend, those present will include, at a mimimum, counsel for plaintiffs, counsel for the U.S., and the members of informal planning group of counsel for the individual defendants (Stephanie Aranyos, counsel for defendant Barrere; Linda Marino, counsel for defendant Thomas; David Koenigsberg, counsel for defendants Perez and Osteen; Raymond Granger, counsel for defendant Rardin). (6) Plaintiffs in Turkmen will submit a draft of their class certification motion no later than 30 days before the first plaiintiff is deposed, and their final brief within 15 days of conclusion of the last plaintiffs' deposition. No objections or arguments in opposition to class certification may be based upon any discrepancies between the draft brief and the final papers submitted by plaintiffs. Opposition to class certification will be submitted within 30 days of service of moving papers, and replies within 15 days of service of opposition. (7) The request to extend time to answer by defendants in Elmaghraby who are appealing Judge Gleeson's decision is granted, without prejudice to plaintiffs' rights to seek discovery or defendants' rights to seek a stay or protective order, while the appeal is pending. (8) Any supplemental paper discovery demands by defendants of plaintiffs must be served within three weeks. Plaintiffs will respond within 30 days. (Tape #132.) (Vasquez, Lea) (Entered: 11/16/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 11/15/2005. Meerepol for Turkmen pls, Reinert for Elmaghraby pls, Handler for United States, Koenigsberg, Marino, Granger and Aranyos for defendants. (1) Depositions will proceed as provided on the record during today's conference. Counsel will submit a stipulation memorializing those procedures by 11/30. (2) United States will produce OIA documents within three weeks. (3) STATUS CONF: DECEMBER 14 AT 4:30 PM. Counsel to submit a letter setting forth issues to be addressed by December 12. ESR 134−35/05 (Tape #134−35/05.) (Vasquez, Lea) (Entered: 11/17/2005)
316 Letter from R. Craig Lawrence to The Honorable John Gleeson Regarding electronic notice. (Lawrence, Robert) (Entered: 11/17/2005)
349 MOTION for Leave to Appear Pro Hac Vice (Justin P. Murphy) by Dennis Hasty. (Piper, Francine) (Entered: 12/07/2005)

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11/17/2005 11/17/2005 11/21/2005 11/22/2005 11/22/2005
11/23/2005 11/25/2005 11/28/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005 11/29/2005
11/30/2005 11/30/2005

350 FILING FEE: $ 25.00, receipt number 318064 (Piper, Francine) (Entered: 12/07/2005)
351 ORDER granting 349 Motion for Leave to Appear Pro Hac Vice. (Ordered by JudgeJohn Gleeson on 11/22/05) (Piper, Francine) (Entered: 12/07/2005)
317 Letter dated 11/17/05 from Mr. Lawrence stating that he is counsel for Deft. Mueller. (Vaughn, Terry) (Entered: 11/21/2005)
320 ORDER granting 318 Motion for Leave to Appear Pro Hac Vice Cheryl A. Curtis for Michael Cooksey. (Ordered by Judge John Gleeson on 11/15/05) (Piper, Francine) (Entered: 11/22/2005)
321 Letter from Linda Marino to Magistrate Judge Gold Regarding Plaintiff Iqbal's Interrogatory Responses. (Attachments: # 1 Exhibit Interrogatories# 2 Exhibit Plaintiff Iqbal's Responses# 3 Exhibit Transcript 8/24 Conf.)(Marino, Linda) (Entered: 11/22/2005)
322 ANSWER to Amended Complaint second amended complaint by Marcial Mundo.(Matthews, James) (Entered: 11/23/2005)
323 Letter from Alexander A. Reinert to The Honorable Steven M. Gold Regarding Motion to Compel by Defendant Linda Thomas. (Reinert, Alexander) (Entered: 11/25/2005)
324 Letter from David Koenigsberg to Magistrate Judge Gold Regarding Request to Extend Time for the Parties to Submit Stipulation and Proposed Order to December 2, 2005. (Koenigsberg, David) (Entered: 11/28/2005)
325 ANSWER to Amended Complaint (Second) by Sydney Chase.(Wolin, Alan) (Entered: 11/29/2005)
326 ANSWER to Amended Complaint (Second) by Joseph Cuciti.(Wolin, Alan) (Entered: 11/29/2005)
327 ANSWER to Amended Complaint (Second) by Michael Defrancisco.(Wolin, Alan) (Entered: 11/29/2005)
328 ANSWER to Amended Complaint (Second) by Richard Diaz.(Wolin, Alan) (Entered: 11/29/2005)
329 ANSWER to Amended Complaint (Second) by Scott Roseberry.(Wolin, Alan) (Entered: 11/29/2005)
330 Letter from R. Craig Lawrence to The Honorable Steven M.Gold Regarding Stay of Discovery against Individual Defendants Pending Appeal. (Lawrence, R.) (Entered: 11/29/2005)
ORDER: The plaintiffs request, pursuant to 28 U.S.C. s. 1292(b), that the court certify for interlocutory appeal the portion of the Order of September 27, 2005 dismissing their claims under the Religious Freedom Restoration Act ("RFRA"). The court may grant such a request only if the order sought to be appealed "involves a controlling question of law as to which there is substantial ground for difference of opinion and... an immediate appeal from the order may materially advance the ultimate termination of the litigation." I am unpersuaded the latter requirement is satisfied here. The plaintiffs assert, as a "certainty," that there "will be an appeal of the RFRA dismissal" after a final judgment is rendered. Although I do not doubt the plaintiffs' sincerity, such certainty in litigation is impossible; in any event, the plaintiffs' expression of resolve in litigating this case, thus far matched by the defendants', merely adds to my estimation that a post−judgment appeal, including more than just the RFRA claims, is likely to be taken. The plaintiffs' request for certification is denied. Ordered by Judge John Gleeson on November 29, 2005. (Gleeson, John) (Entered: 11/29/2005)
331 ANSWER to Amended Complaint by United States of America.(Handler, Stephen) (Entered: 11/30/2005)
332 MOTION to Compel Plaintiff Elmaghraby's Interrogatory Responses by Linda Thomas. (Attachments: # 1 Exhibit Linda Thomas's Interrogatories to Plaintiff

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11/30/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/01/2005 12/02/2005 12/02/2005
12/02/2005 12/02/2005 12/05/2005 12/06/2005
12/06/2005 12/06/2005 12/07/2005

Elmaghraby# 2 Exhibit Elmaghraby's Interrogatory Responses# 3 Exhibit Nov 22 letter re Iqbal's Interrogatory Responses# 4 Exhibit Letter from Alex Reinert, Esq. re Iqbal rogs# 5 Exhibit Transcript Excerpts From Aug 24 Status Conference)(Marino, Linda) (Entered: 11/30/2005)
333 Defendant's Second ANSWER to Complaint with Jury Demand, First CROSSCLAIM against United States of America by James Clardy.(Hart, Ronald) (Entered: 11/30/2005)
334 ANSWER to Complaint by Nora Lorenzo.(Feldman, Cary) (Entered: 12/01/2005)
335 ANSWER to Amended Complaint (Second), CROSSCLAIM against United States of America by Elizabeth Torres.(Leonard, Christina) (Entered: 12/01/2005)
336 Amended ANSWER to Amended Complaint (Second) by Elizabeth Torres.(Leonard, Christina) (Entered: 12/01/2005)
337 First ANSWER to Amended Complaint second, First COUNTERCLAIM against United States of America by Reynaldo Alamo.(McMillan, Bridgett) (Entered: 12/01/2005)
338 Jaikissoon First ANSWER to Amended Complaint second, First CROSSCLAIM against United States of America by Jai Jaikisson.(McMillan, Bridgett) (Entered: 12/01/2005)
339 Moore's First ANSWER to Amended Complaint Second, First CROSSCLAIM against United States of America by Dexter Moore.(McMillan, Bridgett) (Entered: 12/01/2005)
340 ANSWER to Amended Complaint by Howard Gussak.(Murphy, Kenneth) (Entered: 12/01/2005)
341 ANSWER to Amended Complaint by Michael Zenk.(Taffet, Allan) (Entered: 12/01/2005)
342 MOTION for Discovery (unopposed motion for a consent order) by United States of America. (Handler, Stephen) (Entered: 12/02/2005)
ORDER re 342 MOTION for Discovery (unopposed motion for a consent order) filed by United States of America, is hereby entered as an order of the court. Ordered by Judge Steven M. Gold on 12/02/05. (Gold, Steven) (Entered: 12/02/2005)
343 Letter from Keith M. Donoghue to The Honorable Steven M. Gold Regarding Plaintiffs' Opposition to Stay of Discovery Pending Appeal. (Donoghue, Keith) (Entered: 12/02/2005)
344 Letter from Stephen Handler to Magistrate Judge Gold Regarding Stipulation. (Handler, Stephen) (Entered: 12/02/2005)
345 Letter from Alexander A. Reinert to The Honorable Steven M. Gold Regarding Defendant Linda Thomas's Motion to Compel. (Reinert, Alexander) (Entered: 12/05/2005)
346 Letter from Joan Magoolaghan to The Honorable Steven M. Gold Regarding Request for Court Assistance in Reaching Agreement as to Costs Associated with Plaintiffs' Depositions. (Attachments: # 1 Letter from Alexander A. Reinert to Stephen Handler Regarding Costs Associated with Plaintiffs' Depositions)(Magoolaghan, Joan) (Entered: 12/06/2005)
347 ANSWER to Amended Complaint by Clemett Shacks. (Attachments: # 1 Affidavit of Service)(Lasky, Barry) (Entered: 12/06/2005)
348 Letter from Stephen Handler to Magistrate Judge Gold Regarding unresolved terms in Stipulation. (Handler, Stephen) (Entered: 12/06/2005)
352 Defendant's Alamo, Clardy, Jaikissoon &Moore WITHDRAWAL of Claim re 339 Answer to Amended Complaint, Crossclaim, 338 Answer to Amended Complaint, Crossclaim, 337 Answer to Amended Complaint, Counterclaim United States of

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12/07/2005 12/08/2005 12/08/2005 12/09/2005
12/09/2005 12/12/2005
12/15/2005 12/15/2005 12/16/2005 12/23/2005 12/27/2005 12/28/2005 12/28/2005

America by Reynaldo Alamo. (McMillan, Bridgett) (Entered: 12/07/2005)
353 Letter from R. Craig Lawrence to Magistrate Judge Steven M. Gold Regarding Individual Defendants Reply to Plaintiff's opposition to the request for a limited stay of discovery. (Lawrence, R.) (Entered: 12/07/2005)
354 Letter from Lauren J. Resnick, Esq. to Magistrate Judge Honorable Steven M. Gold Regarding Defendant Michael Rolince joining in Defendants' December 7, 2005 Reply to Plaintiffs' Opposition to Defendants' Motion− (Document # 353). (Resnick, Lauren) (Entered: 12/08/2005)
355 Letter from Keith M. Donoghue to The Honorable Steven M. Gold Regarding Plaintiffs' Request to Strike Defendants' Reply Letter in Further Support of Request for Stay of Discovery. (Donoghue, Keith) (Entered: 12/08/2005)
356 ORDER The conference currently scheduled for Wednesday, December 14, 2005 will instead be held at 3:30 p.m. on Monday, December 12, 2005. All counsel for plaintiffs and defendants on the Steering Committee shall participate in person. Plaintiff?s counsel will arrange a call in number for other defendants to participate. So Ordered by Judge Steven M. Gold on 12/09/2005. (Vasquez, Lea) (Entered: 12/09/2005)
357 Letter from David Koenigsberg to Magistrate Judge Gold Regarding Plaintiffs' Depositions. (Koenigsberg, David) (Entered: 12/09/2005)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 12/12/2005. Ron Tolkin, Court reporter. Meerepol and Reinert for pls, Handler et al for defendants. (1) The United States will state by letter within 3 days whether it will accept the court's proposal with respect to the amounts plaintiffs should be required to pay to come to the United States for deposition. If the United States cannot accept the Court's proposal, plaintiffs may be deposed on written questions or by telephone. (2) The objections of plaintiffs Iqbal and Elmaghraby to the interrogatories of Linda Thomas, to the extent based upon the number of interrogatories, are denied. Counsel are instructed to renew their efforts to resolve any remaining disputes pursuant to the discussion held on the record of today's proceedings. (3) The motions to stay discovery, made by those individual defendants who have appealed the denial of their motions to dismiss, will be held in abeyance until counsel advise me that discovery demands have been served and that the motion needs to be decided. A STATUS CONFERENCE WILL BE HELD AT 3:00 PM ON JANUARY 10, 2006. (Court Reporter Tolkin.) (Vasquez, Lea) (Entered: 12/12/2005)
358 Letter from Stephen Handler to Magistrate Judge Gold Regarding United States' request for one additional day to state its position regarding costs of the discovery plan. (Handler, Stephen) (Entered: 12/15/2005)
ORDER re 358 Letter: Application granted. Ordered by Judge Steven M. Gold on 12/15/05. (Gold, Steven) (Entered: 12/15/2005)
359 Letter from Clay Mahaffey to Magistrate Judge Gold Regarding United States' position as to costs associated with plaintiffs' parole and depositions. (Handler, Stephen) (Entered: 12/16/2005)
360 Letter from Stephen Handler to Magistrate Judge Gold Regarding revised costs regarding plaintiffs' depositions and associated security and lodging. (Handler, Stephen) (Entered: 12/23/2005)
361 MOTION for Protective Order re: personnel records by Marcial Mundo. (Matthews, James) (Entered: 12/27/2005)
362 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere by Steven Barrere. (Ryan, James) (Entered: 12/28/2005)
363 Letter from Linda M. Cronin to Magistrate Steven Gold Regarding Motion for a Protective Order. (Cronin, Linda) (Entered: 12/28/2005)

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12/28/2005 12/28/2005
12/28/2005 12/28/2005 12/28/2005 12/29/2005
12/29/2005 12/30/2005 01/03/2006
01/05/2006 01/09/2006 01/13/2006
01/13/2006 01/18/2006 01/20/2006
01/20/2006 01/23/2006

364 Letter from Counsel for Defendant Nora Lorenzo to Judge Gold Regarding Letter Motion for Protective Order. (Feldman, Cary) (Entered: 12/28/2005)
ORDER re 362 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere filed by Steven Barrere,, 364 Letter, 361 MOTION for Protective Order re: personnel records filed by Marcial Mundo,, 363 Letter: The defendants' request to defer disclosure of personnel files until the matter can be addressed at the conference scheduled for 1/10/06 is granted. Ordered by Judge Steven M. Gold on 12/28/05. (Gold, Steven) (Entered: 12/28/2005)
365 Letter from Stephen Handler to Magistrate Judge Gold Regarding co−defendants' motions for protective order. (Handler, Stephen) (Entered: 12/28/2005)
366 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records by Angel Perez. (Koenigsberg, David) (Entered: 12/28/2005)
367 Letter from R. Craig Lawrence to Magistrate Judge Steven M. Gold Regarding Renewed Stay Motion. (Lawrence, R.) (Entered: 12/28/2005)
368 RESPONSE in Opposition re 362 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere, 366 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records, 361 MOTION for Protective Order re: personnel records filed by all plaintiffs. (Reinert, Alexander) (Entered: 12/29/2005)
369 NOTICE of Appearance by Laura L Nagel on behalf of Howard Gussak (Nagel, Laura) (Entered: 12/29/2005)
370 Letter from Keith M. Donoghue to The Honorable Steven M. Gold in Response to Defendants' Renewal of Motion for Stay of Discovery by Ehab Elmaghraby, Javaid Iqbal. (Attachments: # 1 Exhibit A)(Donoghue, Keith) (Entered: 12/30/2005)
371 USCA Scheduling Order as to 283 Notice of Appeal filed by John Ashcroft,, Robert Mueller,. USCA#05−5768−cv(L);05−5844. Appellant's brief shall be filed on or before 1/25/06. That the argument of the appeal shall be heard no earlier than the week of 4/3/06. (Drayton, Lorraine) (McGee, Mary Ann). (Entered: 01/03/2006)
372 Letter Letter to Magistrate Judge Gold from Nashiba Boyd dated January 5, 2006 regarding renewal of Defendant Michael Cooksey's Motion for Stay of Discovery. by Michael Cooksey. (Lawler, William) (Entered: 01/05/2006)
373 NOTICE of Appearance by Margot Giselle Brooks on behalf of Kenneth Maxwell (Brooks, Margot) (Entered: 01/09/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 1/10/2006. Gene Rudolph, Ct Rptr. Reinert and Meerepol, et al, for plaintiffs; Handler et al for defendants. Various discovery rulings on the record. NEXT CONF: MARCH 7, 2006 AT 2 PM. (Court Reporter Gene Rudolph.) (Vasquez, Lea) (Entered: 01/13/2006)
374 NOTICE of Change of Office Location by Bridgett McMillan Defense Counsel for Alamo, Jaikissoon &Moore (McMillan, Bridgett) (Entered: 01/13/2006)
375 NOTICE of Appearance by Dennis C. Barghaan on behalf of John Ashcroft (Barghaan, Dennis) (Entered: 01/18/2006)
376 Letter motion for order authorizing the US Marshals Service to conduct security screening by United States of America. (Attachments: # 1 Text of Proposed Order proposed order authorizing US Marshals Service to Conduct Screening)(Handler, Stephen) (Entered: 01/20/2006)
ORDER re 376 Letter, filed by United States of America: the proposed order is hereby entered by the court. Ordered by Judge Steven M. Gold on 01/20/06. (Gold, Steven) (Entered: 01/20/2006)
377 MOTION for Leave to Appear Pro Hac Vice Matthew J.D. Hogan Filing fee $ 25, receipt number 1634159. by Kenneth Maxwell. (Bloom, Margot) (Entered:

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01/25/2006 01/25/2006
01/25/2006 01/26/2006 01/29/2006 01/30/2006 01/30/2006 01/30/2006 01/30/2006 01/31/2006
02/03/2006 02/06/2006 02/06/2006

01/23/2006)
378 Letter Submitting Stipulation and Order Regarding Plaintiffs' Depositions by Linda Thomas. (Attachments: # 1 Stipulation and Order)(Marino, Linda) (Entered: 01/25/2006)
379 Letter To the Honorable John Gleeson re: Objections to Order of Magistrate Judge Gold, appealing his decision to authorize discovery against them personally. by Michael Cooksey, David Rardin, Kenneth Maxwell, Michael Rolince, Robert Mueller, John Ashcroft, Kathleen Hawk Sawyer, Dennis Hasty. (Attachments: # 1 # 2)(Lawrence, R.) (Entered: 01/25/2006)
380 Letter Regarding Reconsideration of Directives at January 10, 2006 Status Conference by Linda Thomas, Michael Zenk. (Taffet, Allan) (Entered: 01/25/2006)
ORDER re 378 Letter filed by Linda Thomas, the stipulation forwarded by the parties governing the conduct of plaintiffs' depositions is hereby entered as an order of the court. Ordered by Judge Steven M. Gold on 1/26/2006. (O'Connor, Erin) (Entered: 01/26/2006)
381 Letter MOTION to Produce documents reviewed in preparation for deposition by Marcial Mundo. (Matthews, James) (Entered: 01/29/2006)
382 RESPONSE in Opposition re 381 Letter MOTION to Produce documents reviewed in preparation for deposition filed by all plaintiffs. (Reinert, Alexander) (Entered: 01/30/2006)
383 Letter in Response to January 25, 2006 Request by Defendants Thomas and Zenk for Reconsideration of Court's January 10, 2006, Order by Ehab Elmaghraby, Javaid Iqbal. (Reinert, Alexander) (Entered: 01/30/2006)
384 ORDER re 380 Letter filed by Linda Thomas,, Michael Zenk, denying request for reconsideration. Ordered by Judge Steven M. Gold on 01/30/06. (Gold, Steven) (Entered: 01/30/2006)
385 Letter regarding obtaining the presentence report of Javaid Iqbal by Jon Osteen. (Driscoll, Melissa) (Entered: 01/30/2006)
ORDER granting 377 Motion for Leave to Appear pro hac vice: The proposed order to admit Matthew J.D. Hogan, pro hac vice, submitted with the motion in Docket Entry 377, is hereby adopted by the Court. An attorney admitted to practice pro hac vice is required to pay a $25.00 per attorney admission fee and present this order to the intake deputy clerk in the Clerk's Office. When paying by mail, return a copy of this Order to the Clerk's Office with the required fee. So Ordered. Ordered by JudgeSteven M. Gold on 1/31/2006. (O'Connor, Erin) (Entered: 01/31/2006)
386 Letter requesting that personnel records of defendants Thomas and Zenk be limited to attorneys' eyes only by Linda Thomas. (Marino, Linda) (Entered: 02/03/2006)
ORDER re 386 Letter filed by Linda Thomas and Michael Zenk, GRANTING application that personnel records be produced on an "attorneys'−eyes−only" basis absent further order of the court. Ordered by Judge Steven M. Gold on 02/06/06. (Gold, Steven) (Entered: 02/06/2006)
387 Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 1/31/2006. Recorded by deposition stenographer. Reinert and Winger for plaintiffs, Handler, Matthews and Koenigsberg for defendants. (1) Defendants' application to require counsel for plaintiffs to produce documents they showed to plaintiffs denied. Ruling requiring disclosure of documents reviewed by plaintiffs further explained on the record. (2) Defendants' application for discovery of plaintiff Iqbal's pre−sentence report may be presented to Judge Glasser by way of formal motion or re−presented to me for recommendation to Judge Glasser upon a showing of compelling need. The application that I recommend disclosure on the current record is denied. (Vasquez, Lea) Modified on 11/14/2008 (Marziliano, August). (Entered: 02/06/2006)

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02/08/2006
02/08/2006 02/15/2006 02/16/2006 02/16/2006
02/21/2006
02/22/2006
02/24/2006 02/27/2006 02/28/2006 02/28/2006
03/02/2006
03/06/2006 03/06/2006 03/06/2006 03/06/2006 03/08/2006

388 Letter from Keith M. Donoghue to the Honorable John Gleeson re: Plaintiffs' Response to Defendants' Objections to Order of Magistrate Judge Gold by Ehab Elmaghraby, Javaid Iqbal. (Attachments: # 1 Memorandum of Law# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D)(Donoghue, Keith) (Entered: 02/08/2006)
389 CERTIFICATE OF SERVICE by Ehab Elmaghraby, Javaid Iqbal re 388 Letter, (Donoghue, Keith) (Entered: 02/08/2006)
390 MOTION for Protective Order by all plaintiffs. (Attachments: # 1)(Yoon, Haeyoung) (Entered: 02/15/2006)
391 Letter in response to plaintiffs' request to limit information revealed in deposition by United States of America. (Handler, Stephen) (Entered: 02/16/2006)
ORDER re 390 MOTION for Protective Order filed by Ehab Elmaghraby,, Javaid Iqbal: Counsel shall abide by the terms of the protective order proposed by plaintiffs until the next conference, scheduled for March 7, 2006 at 2 pm, at which time the court will hear defendants' objections. Ordered by Judge Steven M. Gold on 02/16/06. (Gold, Steven) (Entered: 02/16/2006)
392 Letter To the Honorable John Gleeson re: Reply to Plaintiff's Response to Defendants' Objections to Order of Magistrate Judge Gold by Michael Cooksey, David Rardin, Kenneth Maxwell, Michael Rolince, Robert Mueller, John Ashcroft, Kathleen Hawk Sawyer, Dennis Hasty. (Attachments: # 1)(Lawrence, R.) (Entered: 02/21/2006)
393 ORDER staying discovery from individual defendants John Ashcroft, Robert Mueller, Kathleen Hawk Sawyer, Kenneth Maxwell, Michael Rolince, David Rardin, Michael Cooksey and Dennis Hasty during the pendency of their interlocutory appeal of the denial of their motion to dismiss on qualified immunity grounds. Ordered by Judge John Gleeson on February 22, 2006. (Gleeson, John) (Entered: 02/22/2006)
394 NOTICE of Appearance by Mamoni Bhattacharyya on behalf of all plaintiffs (Bhattacharyya, Mamoni) (Entered: 02/24/2006)
395 Letter Requesting Dismissal Pursuant to Fed. R. Civ. P. 41(a)(2) by Ehab Elmaghraby. (Attachments: # 1 Text of Proposed Order # 2 Settlement Agreement)(Reinert, Alexander) (Entered: 02/27/2006)
396 NOTICE by Kenneth Maxwell of Withdrawal of Counsel (Mikkelsen, Deborah) (Entered: 02/28/2006)
ORDER: The stipulation of settlement between plaintiff Elmaghraby and all defendants is "so ordered". The parties are directed to notify the Court of Appeals of the settlement. Ordered by Judge John Gleeson on February 28, 2006. (Gleeson, John) (Entered: 02/28/2006)
397 ORDER: An in−person status conference in the above−captioned case is scheduled for Tuesday, March 7, 2006 at 2:00 p.m. Counsel shall submit a proposed agenda for the conference no later than Monday, March 6th by 12:00 noon. SEE ATTACHED ORDER for additional details. Ordered by Judge Steven M. Gold on 03/02/06. (O'Connor, Erin) (Entered: 03/02/2006)
398 Letter Setting Forth Proposed Agenda for March 7, 2006, Status Conference by Ehab Elmaghraby, Javaid Iqbal. (Reinert, Alexander) (Entered: 03/06/2006)
399 Letter regarding agenda for status conference scheduled for March 7, 2006, by United States of America. (Handler, Stephen) (Entered: 03/06/2006)
400 Letter from Steering Committee with Subjects for Status Conference by Jon Osteen. (Koenigsberg, David) (Entered: 03/06/2006)
401 NOTICE of Appearance by Jennifer W. Cohen on behalf of Kenneth Maxwell (Cohen, Jennifer) (Entered: 03/06/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 3/7/2006. Meerepol, Reinert et al for plaintiffs, Handler et al for United States, various counsel for defendants. Various discovery rulings on the record. NEXT

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03/14/2006 03/15/2006 03/15/2006 03/15/2006 03/17/2006 03/24/2006 03/27/2006 03/29/2006 03/30/2006 04/12/2006 04/13/2006 04/18/2006 04/20/2006 04/24/2006
05/04/2006 05/05/2006 05/05/2006 05/08/2006

CONFERENCE: MAY 11 AT 2 PM.(Tape #FTR 2:09 − 3:09.) (Vasquez, Lea) (Entered: 03/08/2006)
402 Letter request re March 7 conference by Javaid Iqbal. (Attachments: # 1 # 2)(Magoolaghan, Joan) (Entered: 03/14/2006)
403 ORDER of Dismissal with prejudice by pltff Ehab Elmahraby against all named dfts. (Ordered by Judge John Gleeson on 3/3/06) (Piper, Francine) (Entered: 03/15/2006)
404 STIPULATION for Compromise Settlement and Release of Federal Tort Claims Act Claims Prusuant to 28 U.S.C. 2677. (Piper, Francine) Additional attachment(s) added on 3/15/2006 (Piper, Francine). (Entered: 03/15/2006)
405 ORDER of Dismissal with prejudice by pltff Ehab Elmaghraby against all named dfts. (Ordered by Judge John Gleeson on 3/10/05) (Piper, Francine) (Entered: 03/15/2006)
406 Letter regarding reconsideration of the Court's Order, dated March 7, 2006, by United States of America. (Handler, Stephen) (Entered: 03/17/2006)
407 Letter Opposing Defendant United States' Request for Reconsideration of March 7, 2006, Order by Javaid Iqbal. (Reinert, Alexander) (Entered: 03/24/2006)
408 Letter in response to plaintiffs' opposition for request to reconsider order, dated March 7, 2006 by United States of America. (Handler, Stephen) (Entered: 03/27/2006)
TRANSCRIPT of Civil Cause for Status Conference held on 3/7/06 before Judge Steven M.Gold. Court Reporter: Fiore Transcription Service, Inc. (Drayton, Lorraine) (Entered: 04/06/2006)
409 Letter to Magistrate Judge Gold opposing reconsideration of March 7, 2006 Order by Javaid Iqbal. (Magoolaghan, Joan) (Entered: 03/30/2006)
TRANSCRIPT of Proceedings held on 1/10/06 @ 3:00 p.m. before Judge Steven M. Gold. Court Reporter: Gene Rudolph. (Drayton, Lorraine) (Entered: 04/17/2006)
410 Letter in Response to Plaintiffs' March 30, 2006, letter by United States of America. (Handler, Stephen) (Entered: 04/13/2006)
411 Letter confirming conference call for April 21, 2006, at 4:30 pm by United States of America. (Handler, Stephen) (Entered: 04/18/2006)
412 Letter MOTION to Dismiss pursuant to Stipulation by Marcial Mundo. (Attachments: # 1 Stipulation# 2 Text of Proposed Order)(Matthews, James) (Entered: 04/20/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 4/21/2006. Reinert and Meerepol for pls, Handler et al for United States. Counsel will submit simultaneous letters amplifying their positions on the matters discussed today within two weeks, and replies one week thereafter. (Tape #FTR 4:35−4:52.) (Vasquez, Lea) (Entered: 04/24/2006)
415 TRANSCRIPT of Civil Cause for Conference held on 4/21/06 before Judge Steven M. Gold. Court Reporter: Rosalie Lombardi. (Black, Amanda) Additional attachment(s) added on 10/10/2006 (McGee, Mary Ann). (Entered: 05/08/2006)
413 Letter to the Honorable Steven M. Gold re: United States' Motion for Reconsideration by Javaid Iqbal. (Reinert, Alexander) (Entered: 05/05/2006)
414 Letter in response to Court's proposed witness statement by United States of America. (Handler, Stephen) (Entered: 05/05/2006)
SCHEDULING ORDER: The in−person status conference previously scheduled for May 11, 2006 will be held instead at 10:00 a.m. on May 26, 2006. Counsel shall submit a joint proposed agenda no later than 12 noon on May 22, 2006. So Ordered. Ordered by Judge Steven M. Gold on 5/8/06. (O'Connor, Erin) (Entered:

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05/12/2006 05/12/2006 05/22/2006 05/22/2006 05/22/2006 05/24/2006 05/26/2006
05/30/2006 06/02/2006 06/06/2006 06/06/2006 06/06/2006 06/08/2006

05/08/2006)
416 Letter replying to plaintiffs' response dated May 5, 2006 by United States of America. (Handler, Stephen) (Entered: 05/12/2006)
417 Letter to the Honorable Steven M. Gold in Response to Defendant United States' Letter Dated April 5, 2006, by Javaid Iqbal. (Reinert, Alexander) (Entered: 05/12/2006)
418 Letter to The Honorable Steven M. Gold Re: May 26, 2006, Status Conference by Javaid Iqbal. (Reinert, Alexander) (Entered: 05/22/2006)
419 Letter Joint Status Conference Letter by United States of America. (Handler, Stephen) (Entered: 05/22/2006)
420 Letter dated 3/13/2006 from William Beck, advising that the undersigned discharged Robert Goldman as a counsel and will be representing himself in the above referenced civil lawsuits. W/Letter dated 5/18/2006 attached. *Fwd. to Chambers. *Docket sheet updated. (Latka−Mucha, Wieslawa) (Entered: 05/24/2006)
421 Letter responding to plaintiffs' letter, dated May 22, 2006, explicating positions on agenda items 2, 3, and 4, for the Status Conference scheduled for May 26, 2006 by United States of America. (Handler, Stephen) (Entered: 05/24/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/26/2006. Court reporter Lisa Schmid. Meerepol for Turkmen plaintiffs, Reinert for Elmaghraby, Handler et al for United States, various counsel for individual defendants. Rulings on numerous discovery applications on the record, including a deadline of June 5 for production of personnel and disciplinary records of defendants, a requirement that plaintiff Turkmen appear in the United States at some time over the next few months agreed to by counsel for an in−person deposition, a presumption that plaintiffs will have 1 1/2 days and defendants 1/2 day for each defendant's deposition, a direction that counsel for the Turkmen plaintiffs promptly issue a subpoena for the social security records sought by counsel for defendant Pray, and a direction that counsel for plaintiffs provide the court with a list of all pro se defendants and their last known addresses. The government's motion for reconsideration of this court's order of March 7, 2006, with respect to surveillance of attorney−client communications is submitted and taken under advisement. Plaintiffs' motion for a protective order will be the subject of further efforts at resolution by counsel and further briefing to the court if required. NEXT CONFERENCE: AUGUST 3 AT 10 AM. (Court Reporter Schmid.) (Vasquez, Lea) (Entered: 05/26/2006)
422 ORDER denying the government's motion for reconsideration of the discovery ruling made during the conference held on March 7, 2006. Ordered by Judge Steven M. Gold on 05/30/06. (Gold, Steven) (Entered: 05/30/2006)
423 Letter Application to Consolidate Discovery for the Limited Purpose of Defendants Depositions by Steven Barrere. (Aranyos, Stephanie) (Entered: 06/02/2006)
424 ORDER notifying pro se defendants of the status of the case and informing them that a failure to attend conferences is a waiver of their right to be heard and object. See Attached Order. Ordered by Judge Steven M. Gold on 6/6/06. (O'Connor, Erin) (Entered: 06/06/2006)
425 Letter Motion for an extension of time to serve and file objections to an Order entered by Magistrate Judge Gold on May 30, 2006, by United States of America. (Handler, Stephen) (Entered: 06/06/2006)
426 Letter Opposing United States' Request for Extension of Time to File Objections by Javaid Iqbal. (Reinert, Alexander) (Entered: 06/06/2006)
ORDER: The request of the United States for an extension of time, until June 23, 2006, to serve and file objections to Magistrate Judge Gold's Order of May 30, 2006 is granted. Ordered by Judge John Gleeson on June 8, 2006. (Gleeson, John) (Entered: 06/08/2006)

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06/22/2006 06/23/2006
06/26/2006 06/27/2006 06/29/2006 07/05/2006
07/07/2006 07/10/2006 07/10/2006 07/12/2006 07/12/2006 07/13/2006 07/13/2006 07/14/2006
07/20/2006
07/20/2006
07/20/2006

427 First MOTION to Withdraw by Laura Nagel, Esq. and by Howard Gussak. (Murphy, Kenneth) (Entered: 06/22/2006)
428 Letter regarding objections to May 30, 2006, Order by United States of America. (Attachments: # 1 Memorandum in support of objections to May 30, 2006, Order# 2 Exhibit Tab 1, February 28, 2006, letter# 3 Exhibit Tab 2, March 7, 2006, transcript# 4 Exhibit Tab 3, proposed modifications to witness statement# 5 Exhibit Tab 4, Negroponte Declaration# 6 Exhibit Tab 5, Quirk Declaration)(Handler, Stephen) (Entered: 06/23/2006)
ORDER: The request of Laura Nagel for leave to withdraw as counsel for defendant Howard Gussak is granted. Ordered by Judge John Gleeson on June 26, 2006. (Gleeson, John) (Entered: 06/26/2006)
429 Letter from Grace B. Culley requesting leave of Court to withdraw as counsel of record by Nora Lorenzo. (Freedus, Matthew) (Entered: 06/27/2006)
430 Letter Regarding United States' Objections to Magistrate's May 30, 2006, Order by Javaid Iqbal. (Reinert, Alexander) (Entered: 06/29/2006)
ORDER: The request of the United States to file an oversize brief in support of its objections to the Order of the Magistrate Judge entered May 30, 2006 is granted. The plaintiffs' request to file a brief of like size in opposition is granted. Ordered by Judge John Gleeson on July 5, 2006. (Gleeson, John) (Entered: 07/05/2006)
ORDER: The request of Grace Culley to withdraw as counsel for defendant Nina Lorenzo is granted. Ordered by Judge John Gleeson on July 7, 2006. (Gleeson, John) (Entered: 07/07/2006)
ORDER granting 427 Motion to Withdraw. ( Ordered by JudgeJohn Gleeson on 6/26/06) (Piper, Francine) (Entered: 07/10/2006)
431 Appellee's BRIEF by Javaid Iqbal. (Attachments: # 1 Exhibit Transcript of March 7, 2006# 2 Exhibit Transcript of 4/21/06)(Magoolaghan, Joan) (Entered: 07/10/2006)
ORDER: The stipulation of dismissal with prejudice of all claims of plaintiff Javaid Iqbal against defendant Marcial Mundo is "so ordered". Ordered by Judge John Gleeson on July 12, 2006. (Gleeson, John) (Entered: 07/12/2006)
432 Notice of MOTION to Dismiss Stipulation Javid Iqbal by Reynaldo Alamo. (McMillan, Bridgett) (Entered: 07/12/2006)
ORDER: The stipulation of dismissal with prejudice of all claims of plaintiff Javaid Iqbal against defendant Reynaldo Alamo is "so ordered". Ordered by Judge John Gleeson on July 13, 2006. (Gleeson, John) (Entered: 07/13/2006)
433 Letter requesting an extension of time to July 28, 2006, to serve and file a reply brief by United States of America. (Handler, Stephen) (Entered: 07/13/2006)
ORDER: The request of the United States for an extension of time, until July 28, 2006, to file reply papers in support of its objections to the Magistrate Judge's Order of May 30, 2006 is granted. Ordered by Judge John Gleeson on July 14, 2006. (Gleeson, John) (Entered: 07/14/2006)
434 STIPULATION of Dismissal Consenting to Order of Dismissal of All Claims of Plaintiff Javaid Iqbal Against Reynaldo Alamo by Reynaldo Alamo. (Attachments: # 1 Text of Proposed Order # 2 Supplement Letter to Judge)(McMillan, Bridgett) (Entered: 07/20/2006)
435 STIPULATION of Dismissal Consenting to Order of Dismissal of All Claims of Plaintiff Javaid Iqbal Against Defendant Jai Jaikissoon by Jai Jaikisson. (Attachments: # 1 Text of Proposed Order Order of Dismissal# 2 Letter to Judge to Judge Gleeson)(McMillan, Bridgett) (Entered: 07/20/2006)
436 STIPULATION of Dismissal Consenting to Order of Dismissal of All Claims of Plaintiff Javaid Iqbal Against Defendant Dexter Moore by Dexter Moore. (Attachments: # 1 Text of Proposed Order Order of Dismissal# 2 Letter to Judge Gleeson)(McMillan, Bridgett) (Entered: 07/20/2006)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 48 of 67

07/20/2006 07/21/2006 07/23/2006 07/23/2006 07/25/2006 07/28/2006 07/31/2006 08/04/2006
08/17/2006 08/24/2006 09/01/2006 09/01/2006 09/05/2006 09/06/2006 09/11/2006

437 STIPULATION of Dismissal Consenting to Order of Dismissal of All Claims of Plaintiff Javaid Iqbal Against James Clardy by James Clardy. (Attachments: # 1 Text of Proposed Order Order of Dismissal# 2 Letter to Judge Gleeson)(Hart, Ronald) (Entered: 07/20/2006)
438 Letter to Judge Gleeson by Javaid Iqbal. (Attachments: # 1)(Yoon, Haeyoung) (Entered: 07/21/2006)
439 NOTICE of Appearance by James G. Ryan on behalf of William Beck (Ryan, James) (Entered: 07/23/2006)
440 Letter Notifying Appearance of Counsel on behalf Mr. Beck by William Beck. (Attachments: # 1 # 2)(Aranyos, Stephanie) (Entered: 07/23/2006)
ORDER: The stipulations dismissing all claims of plaintiff Javaid Iqbal against defendants Jai Jaikissoon, Dexter Moore, and James Clardy are "so ordered." Ordered by Judge John Gleeson on July 25, 2006. (Gleeson, John) (Entered: 07/25/2006)
441 Letter Regarding Reply in Support of Objections to May 30, 2006, Order by United States of America. (Attachments: # 1 Exhibit Reply in Support of Objections to May 30, 2006, Order# 2 Exhibit Goodman Affirmation# 3 Exhibit Meeropol Affirmation)(Handler, Stephen) (Entered: 07/28/2006)
442 NOTICE of Appearance by James J. Keefe on behalf of Salvatore LoPresti (Keefe, James) (Entered: 07/31/2006)
ORDER re 423 Letter filed by Steven Barrere, denying application of defendant Barrere that parties in 04−cv−3950 be directed to depose him at the same time that his deposition is held in 02−cv−2307 and 04−cv−1809. Because all other counsel who have responded to the application have objected to it, and because the issues in each of these cases are complex and involve many parties and attorneys, I conclude that a consolidated deposition will cost more in administrative difficulty and confusion than it will save in convenience to counsel and the parties. Ordered by Judge Steven M. Gold on 08/04/06. (Gold, Steven) (Entered: 08/04/2006)
443 Letter seeking a protective order regarding the deposing of defendants and third party witnesses by United States of America. (Handler, Stephen) (Entered: 08/17/2006)
444 Letter (1) In Opposition to Defendant United States' August 17, 2006, Request for Protective Order and (2) Requesting that United States Be Required to Produce Certain Witnesses in New York City for Deposition by Javaid Iqbal. (Reinert, Alexander) (Entered: 08/24/2006)
445 Letter responding to plaintiffs' letter, dated August 24, 2006, regarding the United States' request for a protective order and request that plaintiffs pay the costs incident to their discovery by United States of America. (Handler, Stephen) (Entered: 09/01/2006)
446 MOTION for Protective Order by Jon Osteen. (Koenigsberg, David) (Entered: 09/01/2006)
447 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne by United States of America. (Attachments: # 1 Affidavit Declaration of FBI Special Agent James P. Wynne)(Handler, Stephen) (Entered: 09/05/2006)
448 RESPONSE to Motion re 446 MOTION for Protective Order, 447 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne filed by all plaintiffs. (Reinert, Alexander) (Entered: 09/06/2006)
First Supplemental Electronic Index to Record on Appeal sent to US Court of Appeals re 400 Letter, 312 Answer to Amended Complaint, 445 Letter,, 418 Letter, 293 Answer to Amended Complaint, 335 Answer to Amended Complaint, Crossclaim, 316 Letter, 402 Letter, 397 Order,, 348 Letter, 286 Transcript, 419 Letter, 362 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere, 375 Notice of Appearance, 352 Withdrawal of Claim,, Add and Terminate Parties, 302 Status Report, 359 Letter, 391 Letter, 308 Letter, 299 Status Report, 298 Letter, 284 Notice of Appeal,

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 49 of 67

09/11/2006
09/11/2006 09/14/2006 09/19/2006

347 Answer to Amended Complaint, 333 Answer to Complaint, Crossclaim, 322 Answer to Amended Complaint, 401 Notice of Appearance, 306 Status Report, 409 Letter, 334 Answer to Complaint, 301 Status Report, 327 Answer to Amended Complaint, 406 Letter, 358 Letter, 380 Letter, 372 Letter, 323 Letter, 384 Order, 319 Filing Fee Received, 282 Notice of Appeal, 365 Letter, 393 Order,, 278 Letter, 403 Order, 342 MOTION for Discovery (unopposed motion for a consent order), 386 Letter, 378 Letter, 288 NOTICE of Change of Address/Firm/Email, 369 Notice of Appearance, 290 Affidavit, 291 Answer to Amended Complaint, 346 Letter,, 324 Letter, 330 Letter, 421 Letter, 383 Letter, 377 MOTION for Leave to Appear Pro Hac Vice Matthew J.D. Hogan Filing fee $ 25, receipt number 1634159., 283 Notice of Appeal, 447 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne, 357 Letter, 382 Response in Opposition to Motion, 279 Amended Document, 337 Answer to Amended Complaint, Counterclaim, 305 Letter, 354 Letter,, 394 Notice of Appearance, 381 Letter MOTION to Produce documents reviewed in preparation for deposition, 364 Letter, 360 Letter, 325 Answer to Amended Complaint, 416 Letter, 389 Certificate of Service, 307 Letter, 356 Order,, 443 Letter, 392 Letter,, 412 Letter MOTION to Dismiss pursuant to Stipulation, 326 Answer to Amended Complaint, 332 MOTION to Compel Plaintiff Elmaghraby's Interrogatory Responses, 420 Letter,, 318 MOTION for Leave to Appear Pro Hac Vice (Cheryl A. Curtis), 339 Answer to Amended Complaint, Crossclaim, 410 Letter, 407 Letter, 277 Notice of Appeal, 367 Letter, 303 Letter, 413 Letter, 385 Letter, 398 Letter, 388 Letter,, 405 Order, 379 Letter,, 366 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records, 285 Transcript, 289 Answer to Amended Complaint, 331 Answer to Amended Complaint, 373 Notice of Appearance, 417 Letter, 341 Answer to Amended Complaint, 338 Answer to Amended Complaint, Crossclaim, 329 Answer to Amended Complaint, 281 Notice of Appeal, 353 Letter, 399 Letter, 370 Letter, 344 Letter, 287 Transcript, 304 Letter, 350 Filing Fee Received, 314 Answer to Amended Complaint, 349 MOTION for Leave to Appear Pro Hac Vice (Justin P. Murphy), 390 MOTION for Protective Order, 317 Letter, 396 Notice (Other), 340 Answer to Amended Complaint, 408 Letter, 313 Answer to Amended Complaint, 343 Letter, 295 Order,,,, 446 MOTION for Protective Order, 276 Notice of Appeal, 296 Letter, 292 Answer to Amended Complaint, 448 Response to Motion, 411 Letter, 294 Letter, 374 NOTICE of Change of Address/Firm/Email, 300 Status Report, 444 Letter,, 328 Answer to Amended Complaint, 336 Answer to Amended Complaint, 321 Letter, 310 Status Report, 351 Order on Motion for Leave to Appear, 355 Letter, 320 Order on Motion for Leave to Appear, 361 MOTION for Protective Order re: personnel records, 297 Letter, 309 Status Report, 311 Letter, 395 Letter, 280 Status Report, 315 Answer to Amended Complaint, 275 Notice of Appeal,, 363 Letter, 414 Letter, 404 Stipulation For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) Modified on 9/11/2006 (McGee, Mary Ann). (Entered: 09/11/2006)
449 Second Supplemental Record on Appeal transmitted to US Court of Appeals re 282 Notice of Appeal, 276 Notice of Appeal, 277 Notice of Appeal, 283 Notice of Appeal, 284 Notice of Appeal, 274 Notice of Appeal, 281 Notice of Appeal, 275 Notice of Appeal. USCA#05−5768. This record was requested by V. Mathias. it is being sent to her attention. USCA#05−5768. (McGee, Mary Ann) (Entered: 09/11/2006)
450 Letter responding to plaintiffs' letter, dated September 6, 2006, addressing the costs of transporting witnesses to New York and the United States' motion to quash the subpoena for taking the deposition of FBI agent James Wynne by United States of America. (Handler, Stephen) (Entered: 09/11/2006)
451 NOTICE of Appearance by Melissa Kelly Driscoll on behalf of Jon Osteen (Driscoll, Melissa) (Entered: 09/14/2006)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 9/15/2006. Meerepol for Turkmen plaintiffs, Reinert for Elmaghraby plaintiffs, Handler and Mahaffey for United States, Koenigsberg for Osteen, McCabe, defendant pro se, counsel for other defendants. (1) Defendant McCabe alerted to his responsiblity to respond to plaintiffs' discovery demands. Counsel for United States to investigate and report on whether McCabe will be provided

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 50 of 67

09/19/2006
09/27/2006 09/28/2006 09/29/2006 10/03/2006 10/03/2006 10/04/2006
10/06/2006 10/10/2006 10/10/2006

counsel. (2) Plaintiffs' application to depose FBI agent Wynne during the current phase of discovery is denied for the reasons stated on the record. (3) Out−of−district witnesses will be deposed in New York City, with plaintiffs and the United States each reimbursing half of the travel expenses the witnesses incur. (4) Plaintiffs' application to defer briefing on class certification until after the Second Circuit rules on the pending appeal is unopposed and granted. (5) NEXT CONFERENCE: NOVEMBER 16, 2006 AT 3 PM. Counsel shall submit letters identifying any matters to be addressed at the next conference by November 9. (Tape #FTR 4:02−4:28.) (Vasquez, Lea) (Entered: 09/19/2006)
ORDER: The Minute Entry for the Telephone Conference held on 9/15/06 should be amended to include the following: The United States' application for a protective order, Docket Entry 543, precluding plaintiffs from deposing defendants and third party witnesses with respect to their awareness of any post−removal surveillance of attorney−client communications until Judge Gleeson rules on the pending objections to the May 30, 2006 Order, is granted. Ordered by Judge Steven M. Gold on 9/19/06. (O'Connor, Erin) (Entered: 09/19/2006)
452 Letter Response to Court Order 9−26−06 by Kevin Lopez. (Galleshaw, James) (Entered: 09/27/2006)
453 NOTICE of Appearance by Anagha Sateesh Apte on behalf of Michael Rolince (Apte, Anagha) (Entered: 09/28/2006)
454 Letter regarding United States' objections to certain rulings made by Magistrate Judge Gold on September 15, 2006 by United States of America. (Attachments: # 1 United States' Objections to Certain Rulings Made by Magistrate Judge Gold on September 15, 2006)(Handler, Stephen) (Entered: 09/29/2006)
455 ORDER concerning government disclosure regarding the "Terrorist Surveillance Program" (superceding Magistrate Judge Gold's Order dated May 30, 2006). Ordered by Judge John Gleeson on October 3, 2006. (Gleeson, John) (Entered: 10/03/2006)
456 Letter to the Honorable Steven M. Gold regarding deposition of non−party witnesses by Javaid Iqbal. (Reinert, Alexander) (Entered: 10/03/2006)
457 Third Supplemental Record on Appeal transmitted to US Court of Appeals re 282 Notice of Appeal, 276 Notice of Appeal, 277 Notice of Appeal, 283 Notice of Appeal, 284 Notice of Appeal, 274 Notice of Appeal, 281 Notice of Appeal, 275 Notice of Appeal. This record was requested by V. Mathias USCA. It is being sent to her attention. Acknowledgment requested. USCA:05−5768. (McGee, Mary Ann) (Entered: 10/04/2006)
458 Letter responding to plaintiffs' request for an order requiring the United States to produce Messrs. Ray and Lane in New York and request for a temporary stay of the Court's September 15, 2006, Order by United States of America. (Handler, Stephen) (Entered: 10/06/2006)
459 Letter regarding defendant Michael McCabe's request for representation by United States of America. (Handler, Stephen) (Entered: 10/10/2006)
ORDER re 456 Letter filed by Javaid Iqbal,, 458 Letter, filed by United States of America. By letter dated October 6, 2006, defendant United States seeks a stay of an order rendered during a conference held on September 15, 2006. The order provides that out−of−district witnesses will be deposed in New York City, with plaintiffs and the United States each reimbursing half of the travel expenses the witnesses incur. The United States has appealed my ruling to United States District Judge John Gleeson, and seeks a stay of the order pending Judge Gleeson's resolution of the appeal. If a stay is granted, plaintiffs will be required to advance funds they will be entitled to recoup if my order is affirmed; if a stay is denied, the United States will be required to advance funds it will be entitled to recoup if my order is reversed. The burden of advancing funds is more easily borne by the United States, and allowing my ruling to stand pending appeal is therefore less likely to disrupt the existing deposition schedule. Accordingly, the application for a stay is denied. In the event my ruling is reversed, the United States will be permitted to seek prompt reimbursement from plaintiffs for any payments it has

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 51 of 67

10/13/2006 10/16/2006 10/18/2006 10/19/2006 10/19/2006 10/20/2006 10/20/2006
10/30/2006 10/31/2006 11/09/2006 11/13/2006
11/13/2006

already made . Ordered by Judge Steven M. Gold on 10/10/06. (Gold, Steven) (Entered: 10/10/2006)
460 MEMORANDUM in Opposition to United States' Objections to Magistrate Judge Gold's Order Dated September 19, 2006 by all plaintiffs. (Reinert, Alexander) (Entered: 10/13/2006)
461 Letter on behalf of all defendants regarding the motion for reconsideration of the October 3, 2006, Order and Request for an Extension of Time by United States of America. (Attachments: # 1 United States' Motion and Memorandum in Support of its Motion for Reconsideration of the October 3, 2006, Order and Request for an Extension of Time# 2 proposed Order)(Handler, Stephen) (Entered: 10/16/2006)
ORDER: Should plaintiffs want to be heard on the motion 461 of the United States for reconsideration of the Court's October 3, 2006 order, which the Court is inclined to grant, they should file their response by close of business on October 19, 2006. Ordered by Judge John Gleeson on October 18, 2006. (Gleeson, John) (Entered: 10/18/2006)
462 Letter Regarding United States Request for Reconsideration of Order dated October 3, 2006 by Javaid Iqbal. (Reinert, Alexander) (Entered: 10/19/2006)
463 Letter requesting an extension of time to October 30, 2006, in support of the United States' Objections to Certain Rulings Made by Magistrate Judge Gold on September 15, 2006 by United States of America. (Handler, Stephen) (Entered: 10/19/2006)
ORDER: The United States has requested by letter 463 an extension of time to October 30, 2006 to serve and file a reply memorandum in support of its objections to a September 15, 2006 order by Magistrate Judge Gold. The request is hereby granted. Ordered by Judge John Gleeson on October 20, 2006. (Gleeson, John) (Entered: 10/20/2006)
ORDER: There being no opposition from plaintiffs, the motion and request by the United States 461 are granted: (1) The United States, through the National Security Agency, shall be allowed to make a comprehensive submission of the requisite information that will cover all federal defendants and employees. (2) The United States shall have an extension of time to November 17, 2006 to comply with the order. Ordered by Judge John Gleeson on October 20, 2006.(Gleeson, John) (Entered: 10/20/2006)
464 Letter regarding the United States' Reply in Support of its Objections to Magistrate Judge Gold's Order Entered on September 15, 2006, and request for leave to file an 11 page brief by United States of America. (Attachments: # 1 United States' Reply in Support of its Objections to Magistrate Judge Gold's Order Entered on September 15, 2006)(Handler, Stephen) (Entered: 10/30/2006)
465 Acknowledgment 3rd SUPPLEMENTAL received re: 283 Appeal. ACknowledgment signed by VM on 10/12/06. USCA#05/5768cv. (Drayton, Lorraine) (Entered: 10/31/2006)
466 Letter Regarding Status Conference Scheduled for November 16, 2006 by United States of America. (Mahaffey, Clay) (Entered: 11/09/2006)
SCHEDULING ORDER: The parties' joint application to adjourn the conference scheduled for November 16, 2006 is GRANTED. The court, however, is not available the week of December 11th. Accordingly, the in−person status conference will be held instead at 2:00 p.m. on December 20, 2006. Counsel shall file a jointly proposed agenda no later than December 13, 2006. So Ordered. Ordered by Judge Steven M. Gold on 11/13/2006. (O'Connor, Erin) (Entered: 11/13/2006)
ORDER: I have reviewed the objections of the United States to the portion of Magistrate Judge Gold's September 15, 2006 order that directed the United States to produce "out−of−district witnesses" for deposition in New York City and split the travel costs with the plaintiffs. Because I conclude that portion of the order was neither clearly erroneous nor contrary to law, the order is affirmed. Ordered by Judge John Gleeson on November 13, 2006. (Gleeson, John) (Entered: 11/13/2006)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 52 of 67

11/17/2006 12/06/2006 12/13/2006 12/18/2006 12/18/2006 12/18/2006 12/28/2006
12/28/2006 01/05/2007 03/13/2007 03/13/2007 03/26/2007 03/27/2007 04/09/2007 04/12/2007 04/19/2007 04/19/2007 04/20/2007

467 Letter regarding the United States' response to the Court's October 3, 2006, Order by United States of America. (Attachments: # 1 United States' Notice of Lodging of In Camera, Ex Parte Materials)(Handler, Stephen) (Entered: 11/17/2006)
468 ORDER regarding the response of the United States to my order of October 3, 2006 455 . Ordered by Judge John Gleeson on December 6, 2006. (Gleeson, John) (Entered: 12/06/2006)
469 Letter Setting Forth Joint Agenda for Status Conference by Javaid Iqbal. (Reinert, Alexander) (Entered: 12/13/2006)
470 Letter Concerning Production of Documents by Stuart Pray by Jon Osteen. (Koenigsberg, David) (Entered: 12/18/2006)
471 Letter Regarding December 20, 2006, Status Conference by Javaid Iqbal. (Reinert, Alexander) (Entered: 12/18/2006)
472 Letter regarding discovery dispute between the United States and the plaintiffs by United States of America. (Handler, Stephen) (Entered: 12/18/2006)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 12/20/2006. Meerepol et al for Turkman plaintiffs, Reinert et al for Iqbal, Handler for US, various defense counsel. Rulings on the record with respect to the application of defendants Osteen and Perez (docket entry 575 in 02−2307) with respect to the production of documents by defendant Pray, and with respect to the discovery dispute between plaintiffs and the United States (docket entries 576 and 577 in 02−2307 and 471 in 04−1809). NEXT CONFERENCE: MARCH 15, 2007 AT 2 PM. (Tape #FTR 2:09 − 4:18.) (Vasquez, Lea) (Entered: 12/28/2006)
TRANSCRIPT of Proceedings held on 12/20/06 before Judge Steven M. Gold. Court Reporter: Offical Rosalie Lombardi. (Drayton, Lorraine) (Entered: 01/08/2007)
473 Mail Returned as Not at 501, Not at ICE. Mail − Document #468 sent to Salvatore LoPresti. (Piper, Francine) (Entered: 01/11/2007)
474 Letter Requesting Adjournment of Status Conference by Javaid Iqbal (Reinert, Alexander) (Entered: 03/13/2007)
SCHEDULING ORDER: The status conference previously scheduled for March 15th will instead be held at 2:00 p.m. on March 29, 2007. So Ordered by Judge Steven M. Gold on 3/13/2007. (Vasquez, Lea) (Entered: 03/13/2007)
475 Letter responding to Defendant Pray's letter, dated March 14, 2007, by United States of America (Handler, Stephen) (Entered: 03/26/2007)
476 Letter Re: Status Conference by Javaid Iqbal (Reinert, Alexander) (Entered: 03/27/2007)
477 NOTICE of Change of Address by Haeyoung Yoon (Yoon, Haeyoung) (Entered: 04/09/2007)
478 NOTICE by Elizabeth Torres withdrawal of attorney (Leonard, Christina) (Entered: 04/12/2007)
479 Letter to the Honorable Steven M. Gold by Javaid Iqbal (Reinert, Alexander) (Entered: 04/19/2007)
480 Letter requesting Protective Order by United States of America (Handler, Stephen) (Entered: 04/19/2007)
Minute Entry for proceedings held before Steven M. Gold : Telephone Conference held on 4/20/2007. Reinert for plaintiffs, Caro for Prey, Handler for US, various other counsel. The application by the United States to stay discovery in light of pending criminal case, United States v LoPresti et al, 07cr273, is denied for the reasons stated on the record of today's proceeding. Having unilaterally decided to cancel the deposition in these cases scheduled for Monday April 23, and apparently having done so while the question of whether that deposition should go forward was the subject of a pending application to the court, and contending for reasons this court cannot understand that the deposition may not now go forward because it

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 53 of 67

05/04/2007 05/04/2007 05/08/2007 05/10/2007 05/10/2007 05/14/2007
05/16/2007
05/16/2007 05/22/2007
05/31/2007

is too difficult to arrange for travel to the deposition on Monday, the United States shall be responsible for all costs incurred by any other counsel as a result of arranging to attend and conduct the deposition scheduled for April 23. The deposition that had been set for April 23 shall be rescheduled for another date next week forthwith, and the deposition scheduled for April 24 shall proceed as scheduled. Counsel are precluded from asking questions at any deposition about the specific events described in the criminal indictment, but may propound general questions even though they might prompt an answer relevant in a general sense to the charges in the indictment. This ruling is without prejudice to the right of the United States to make a formal motion for a stay based upon something more than conclusory assertions, but discovery will not be stayed pending such an application being made or heard. (Tape #FTR 10:12−10:35.) (Vasquez, Lea) (Entered: 04/20/2007)
481 Letter re motion to submit ex parte declaration, in support of United States' motion to stay, for in camera review by the Court by United States of America (Handler, Stephen) (Entered: 05/04/2007)
482 Letter re Motion to Stay actions by United States of America (Attachments: # 1 Exhibit Tab 1# 2 Exhibit Tab 2# 3 Exhibit Tab 3# 4 Exhibit Tab 4# 5 Exhibit Tab 5# 6 Exhibit Tab 6# 7 Exhibit Tab 7# 8 Exhibit Tab 8# 9 Exhibit Tab 9# 10 Exhibit Tab 10# 11 Exhibit Tab 11) (Handler, Stephen) (Entered: 05/04/2007)
483 Letter in Opposition to Defendant United States' Request to File Material Ex Parte by Javaid Iqbal (Reinert, Alexander) (Entered: 05/08/2007)
484 Letter responding to plaintiffs' letter, dated May 8, 2007, opposing the United States' motion to submit an ex parte Declaration by United States of America (Handler, Stephen) (Entered: 05/10/2007)
485 Letter Opposing Defendant United States' Motion to Stay Deposition Discovery by Javaid Iqbal (Reinert, Alexander) (Entered: 05/10/2007)
ORDER: granting permission to file affidavit of AUSA Chen ex parte for in camera review. Having considered the positions of the parties, I conclude that ex parte in camera review is appropriate, at least in the first instance, in the unique circumstances of this case, where defendants in a civil litigation are indicted for conduct that appears to be, at least in some respects, similar to that charged in the civil case, and where the government contends that its criminal prosecution will be hindered if the civil case goes forward. The government shall provide the Chen affidavit at its earliest convenience. Once I have reviewed the affidavit, I will consider whether it should remain under seal or be shared with counsel for the other parties in this case.. Ordered by Judge Steven M. Gold on 05/14/07. (Gold, Steven) (Entered: 05/14/2007)
SCHEDULING ORDER: There will be an in−person conference concerning the government's application for a stay on Monday, May 21, 2007 at 1:30 p.m. Counsel for the United States and plaintiffs and AUSA Pamela Chen must attend in person. Counsel for the individual defendants are also welcome to participate in person or may arrange to participate via a conference call. So Ordered. Ordered by Judge Steven M. Gold on 5/16/2007. (OConnor, Erin) (Entered: 05/16/2007)
486 Letter responding to plaintiffs' letter, dated May 10, 2007, opposing the United States' motion to stay by United States of America (Handler, Stephen) (Entered: 05/16/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 5/21/2007. Reinert, et al for plaintiffs, Handler, Chen and Coyne for USA. Various discovery−related issues discussed on the record. The court will hold a conference at 2:00 p.m. on June 4th unless counsel report before then that the conference is not required. (Court Reporter Fred Guerino.) (Vasquez, Lea) (Entered: 05/22/2007)
487 Letter regarding the United States' motion for the entry of a Protective Order by United States of America (Attachments: # 1 Exhibit Protective Order) (Handler, Stephen) (Entered: 05/31/2007)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 54 of 67

06/01/2007 06/01/2007 06/04/2007 07/10/2007
07/17/2007 07/17/2007 07/17/2007 07/17/2007 07/18/2007 07/25/2007
07/26/2007 07/26/2007
08/23/2007 08/24/2007

ORDER In light of the government's letter dated May 31, 2007, the conference previously set for June 4 is canceled. The next scheduled conference is set for June 26. Ordered by Judge Steven M. Gold on 06/01/07.. Ordered by Judge Steven M. Gold on 05/31/07. (Gold, Steven) (Entered: 06/01/2007)
ORDER The protective order submitted by the United States as document 602−2, which the court understands has been agreed to by all parties, is hereby entered as an order of the court. Ordered by Judge Steven M. Gold on 05/31/07. (Gold, Steven) (Entered: 06/01/2007)
488 NOTICE of Change of Baker &Hostetler's Address from 666 Fifth Avenue to 45 Rockefeller Plaza, New York, New York 10111 by Lauren J. Resnick (Resnick, Lauren) (Entered: 06/04/2007)
ORDER: A conference is scheduled in this matter for July 24 at 2:00 pm. Counsel for plaintiffs, counsel for the United States, and counsel for any other parties who wish to comment shall submit a letter identifying the issues to be addressed at the conference by July 17, 2007. In particular light of the Second Circuit's decision in Iqbal, counsel should address how discovery should proceed and whether it is an appropriate time to discuss the possible settlement of any of plaintiffs' claims. Ordered by Judge Steven M. Gold on 07/10/07. (Gold, Steven) (Entered: 07/10/2007)
489 Letter to Court Regarding Discovery Issues to be Discussed at July 24, 2007 Status Conference by Dennis Hasty (Murphy, Justin) (Entered: 07/17/2007)
490 Letter to Honorable Steven M. Gold Regarding Status Conference Scheduled for July 24, 2007 by Robert Mueller, John Ashcroft (Barghaan, Dennis) (Entered: 07/17/2007)
491 STATUS REPORT in regard to July 24, 2007 appearance by Javaid Iqbal (Magoolaghan, Joan) (Entered: 07/17/2007)
492 Letter identifying issues for status conference scheduled for July 24, 2007, by United States of America (Handler, Stephen) (Entered: 07/17/2007)
493 Letter MOTION for Hearing regarding settlement possibilities by Steven Barrere. (Ryan, James) (Entered: 07/18/2007)
Minute Entry for proceedings held before Steven M. Gold : Status Conference held on 7/24/2007. Meerepol et al for Turkmen pls, Reinert et al for Iqbal, Handler et al for defendants. Various discovery and settlement issues discussed. (1) Plaintiffs will serve new discovery demands on the United States, which may be outside the scope of Judge Pollak's prior order, within one week. Counsel will contact my chambers promptly if they anticipate litigation over the scope of the demands. (2) The United States will either produce the documents pertaining to its settlement of disciplinary charges with defendant Cotton, and withdraw its claim of confidentiality with respect to same, within one week, or move for a protective order by that time. (3) Plaintiffs and the United States will submit correspondence, by fax, regarding the status of any ongoing settlement discussions by October 1. NEXT CONFERENCE OCTOBER 24 AT 2:00 PM. (Vasquez, Lea) (Entered: 07/25/2007)
494 Letter Seeking Clarification of Minute Entry by Javaid Iqbal (Magoolaghan, Joan) (Entered: 07/26/2007)
ORDER re 494 Letter filed by Javaid Iqbal adopting the proposed clarification of the court's minute entry for the conference held on July 24, 2007. Plaintiffs are not to serve new discovery demands but, instead, shall inform the United States by July 31, 2007 which of their previously served demands they assert should be answered now. Ordered by Judge Steven M. Gold on 07/26/07. (Gold, Steven) (Entered: 07/26/2007)
495 MOTION to Substitute Attorney by Javaid Iqbal. (Attachments: # 1 Text of Proposed Order substitution of counsel) (Yoon, Haeyoung) (Entered: 08/23/2007)
ORDER: The stipulation of substitution of counsel for the plaintiff Javaid Iqbal, 495 , is "so ordered." Ordered by Judge John Gleeson on August 24, 2007.

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 55 of 67

08/31/2007 09/28/2007
10/01/2007 10/01/2007
10/02/2007 10/02/2007
10/17/2007 10/18/2007 10/26/2007 11/01/2007 11/06/2007

(Gleeson, John) (Entered: 08/24/2007)
496 NOTICE of Change of Address of Counsel &Addition of Joan Magoolaghan as a named Lead Counsel for Javaid Iqbal by Joan Marie Magoolaghan (Magoolaghan, Joan) (Entered: 08/31/2007)
The following motions were previously decided: 412 Letter MOTION to Dismiss pursuant to Stipulation filed by Marcial Mundo, 366 Letter MOTION for Protective Order With Regard to Defendants' Personnel Records filed by Angel Perez, 362 Letter MOTION for Protective Order preventing disclosure by the United States of personnel records of Steven Barrere filed by Steven Barrere, 269 Letter MOTION for Extension of Time to File Answer on behalf of defendants Kathleen Hawk Sawyer, John Ashcroft, Robert Mueller, Michael Zenk, Kenneth Maxwell, Michael Cooksey, Nora Lorenzo, Michael Rolince, Dennis Hasty, and David Rardin filed by Kathleen Hawk Sawyer, 446 MOTION for Protective Order filed by Jon Osteen, 381 Letter MOTION to Produce documents reviewed in preparation for deposition filed by Marcial Mundo, 493 Letter MOTION for Hearing regarding settlement possibilities filed by Steven Barrere, 447 Letter MOTION to Quash Subpoena of FBI Special Agent James Wynne filed by United States of America, 361 MOTION for Protective Order re: personnel records filed by Marcial Mundo, 206 Letter MOTION to Withdraw as Attorney filed by Dennis Hasty, 495 MOTION to Substitute Attorney filed by Javaid Iqbal, 390 MOTION for Protective Order filed by Ehab Elmaghraby, Javaid Iqbal, 432 Notice of MOTION to Dismiss Stipulation Javid Iqbal filed by Reynaldo Alamo, 332 MOTION to Compel Plaintiff Elmaghraby's Interrogatory Responses filed by Linda Thomas. (Vaughn, Terry) (Entered: 10/05/2007)
497 STATUS REPORT Re Settlement Discussions by Javaid Iqbal (Magoolaghan, Joan) (Entered: 10/01/2007)
ORDER re 497 Status Report filed by Javaid Iqbal: The application of the parties to continue their ongoing discussions for an additional month before deciding whether to seek the court's assistance is granted. Counsel are asked to clarify whether their letter seeks to adjourn the conference set for October 24, and if so, whether the parties in the related action, 02cv2307, also seek an adjournment. If no adjournment is sought, the conference will proceed as scheduled, and the parties shall submit a proposed agenda no later than October 17. Ordered by Judge Steven M. Gold on 10/01/07. (Gold, Steven) (Entered: 10/01/2007)
498 STATUS REPORT requesting conference proceed as scheduled by Javaid Iqbal (Magoolaghan, Joan) (Entered: 10/02/2007)
499 USCA JUDGMENT as to 276 Notice of Appeal filed by Kenneth Maxwell, 282 Notice of Appeal filed by Nora Lorenzo, 284 Notice of Appeal filed by David Rardin, 277 Notice of Appeal filed by Kathleen Hawk Sawyer, 283 Notice of Appeal filed by Robert Mueller, John Ashcroft, 281 Notice of Appeal filed by Michael Cooksey, 274 Notice of Appeal filed by Dennis Hasty, 275 Notice of Appeal, filed by Michael Rolince. The judgment of the District Court is AFFIRMED in part, REVERSED in part, &Remanded in part in accordance with the OPINION of this Court (See document for further details). Issued as mandate on 9/28/07. (Gonzalez, Mary) (Entered: 10/02/2007)
500 STATUS REPORT to Magistrate Judge Gold by Javaid Iqbal (Attachments: # 1 Exhibit Deposition excerpts) (Magoolaghan, Joan) (Entered: 10/17/2007)
501 Letter regarding status conference scheduled for October 24, 2007 by United States of America (Handler, Stephen) (Entered: 10/18/2007)
502 ANSWER to Amended Complaint by William Beck. (McLaughlin, Jennifer) (Entered: 10/26/2007)
503 Letter Regarding Order on Classified Information by Javaid Iqbal (Reinert, Alexander) (Entered: 11/01/2007)
504 Letter in response to letter of Alexander Reinert on behalf of plaintiffs dated November 1, 2007 by William Beck, Steven Barrere (Ryan, James) (Entered: 11/06/2007)

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 56 of 67

11/07/2007
11/08/2007 11/08/2007
11/09/2007 11/15/2007 11/16/2007
12/05/2007 12/06/2007 12/07/2007 12/07/2007
12/07/2007

Minute Entry for proceedings held before Steven M. Gold : Discovery Hearing held on 10/24/2007. Reinert, Meerepol et al for plaintiffs, Handler for United States, various other counsel present in person and by telephone. Various rulings on the record. In light of the discussion held during today's conference with respect to classified information, this Court will enter an order, absent an objection filed on or before October 31, precluding defendants from offering evidence of any fact not disclosed in discovery to justify or explain why plaintiffs were treated as they allege in these lawsuits they were. NEXT CONFERENCE: DECEMBER 20TH AT 3:00 PM.(Tape #FTR 2:09−3:16.) (Vasquez, Lea) (Entered: 11/07/2007)
505 Appeal Record Returned from the Court of Appeals containing documents numbered 2−4,10,16,29,64−67,119,121,150,415. Document number 7 were not renturned to us. USCA#05/5768cv. (Drayton, Lorraine) (Entered: 11/08/2007)
ORDER re 503 Letter filed by Javaid Iqbal, 504 Letter filed by William Beck, Steven Barrere : The court has received a letter dated November 1, 2007 from plaintiffs and a letter from defendants Barrerre and Beck dated November 6, 2007. Counsel shall be prepared to address the issues raised in these letters at the next conference, currently scheduled for December 20 at 3:00 p.m. Counsel for individual defendants shall be in a position to advise, at a minimum, counsel for the United States whether they anticipate relying on classified information as part of their defense, and if so, to identify the nature of that classified information. Ordered by Judge Steven M. Gold on 11/08/07. (Gold, Steven) (Entered: 11/08/2007)
506 Appeal Record Returned from the Court of Appeals containing documents numbered 74,259,371,457. USCA#05/5768cv (Drayton, Lorraine) (Entered: 11/09/2007)
507 Letter Requesting Clarification of November 7, 2007, Order by United States of America (Handler, Stephen) (Entered: 11/15/2007)
ORDER: The court has received the letter from the United States dated November 15, 2007. There seems to be some confusion about the court's entry dated November 7, which is in fact the court's minute entry for the conference that was held on October 24. In any event, the court does intend, as indicated in the order entered on November 8, to revisit and rule upon this issue, particularly in light of the letter from defendants Barrerre and Beck dated November 6, 2007, at the conference currently set for December 20. If there is a practical need to address the issue sooner, counsel may advise my chambers and an earlier date will be scheduled. Ordered by Chief Magistrate Steven M. Gold on 11/16/07. (Gold, Steven) (Entered: 11/16/2007)
508 Letter requesting a conference after "meet and confer" conducted by Elizabeth Torres (Avallone, Rocco) (Entered: 12/05/2007)
509 Letter requesting withdrawal of Protective Order, Document 602−2, entered on June 1, 2007, by United States of America (Handler, Stephen) (Entered: 12/06/2007)
510 Letter requesting an extension of time to file a response to plaintiffs' motion to compel by United States of America (Handler, Stephen) (Entered: 12/07/2007)
ORDER re (510 in 1:04−cv−01809−JG−SMG) Letter filed by United States of America, (620 in 1:02−cv−02307−JG−SMG) Letter filed by United States: The government's application, with the consent of plaintiffs, for an extension of time to file its response to plaintiffs' motion to compel is GRANTED. Counsel are advised that, in the future, applications seeking relief from the court should be filed as motions, even if made in letter form. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 12/7/2007. (O'Connor, Erin) (Entered: 12/07/2007)
SCHEDULING ORDER: re (509 in 1:04−cv−01809−JG−SMG) Letter filed by United States of America, (508 in 1:04−cv−01809−JG−SMG) Letter filed by Elizabeth Torres, (618 in 1:02−cv−02307−JG−SMG) Letter filed by Shakir Baloch, Ashraf Ibrahim, Yasser Ebrahim, Asif−Ur−Rehman Saffi, Akil Sachveda, Ibrahim Turkmen, Hany Ibrahim, (619 in 1:02−cv−02307−JG−SMG) Letter filed by United States. THE COURT WILL HOLD A TELEPHONE CONFERENCE AT 3:00 PM ON DECEMBER 11, 2007 to discuss the issues raised in the letters

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 57 of 67

12/11/2007 12/12/2007
12/12/2007 12/13/2007 12/14/2007 12/18/2007 12/19/2007 12/20/2007 12/21/2007
12/28/2007 01/03/2008 01/07/2008 01/08/2008
01/11/2008

cited above. Counsel for plaintiffs are directed to arrange the call. Only counsel involved in the issues raised are required to participate. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 12/7/2007. (O'Connor, Erin) (Entered: 12/07/2007)
511 Letter MOTION to Compel by Javaid Iqbal. (Attachments: # 1 Exhibit) (Reinert, Alexander) (Entered: 12/11/2007)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Telephone Conference held on 12/10/2007. Meerepol for Turkmen pls, Reinert for Elmaghraby plaintiffs, Mahaffy and Handler for US, Avallone and Cronin, and Kousouras, for Torres. (1) Defendant Torres' motion to defer her deposition until after her criminal trial is granted. Assuming Ms. Torres is detained after trial, the court will make a courtroom available and order BOP to produce Ms. Torres at the courthouse for the deposition. (2) As per the letter of the United States dated December 6, 2007, the protective order entered on June 1, 2007 is withdrawn with respect to the United States. Any defendant being deposed or subjected to discovery demands, however, may invoke any applicable provision of the order up to but not after January 28, 2008. (Tape #FTR 4:00−4:25.) (Vasquez, Lea) (Entered: 12/12/2007)
NOTICE to all counsel. The conference scheduled for December 20th will begin at 3:30 p.m. instead of 3:00 p.m. as previously scheduled. (Vasquez, Lea) (Entered: 12/12/2007)
512 Letter moving for an extension of time to respond to plaintiff's motion to compel by United States of America (Handler, Stephen) (Entered: 12/13/2007)
ORDER re 512 Letter filed by United States of America GRANTING requested extension of time. Ordered by Chief Magistrate Steven M. Gold on 12/14/07. (Gold, Steven) (Entered: 12/14/2007)
513 Letter responding to plaintiff Iqbal's motion to compel by United States of America (Handler, Stephen) (Entered: 12/18/2007)
514 REPLY to Response to Motion re 511 Letter MOTION to Compel filed by Javaid Iqbal. (Reinert, Alexander) (Entered: 12/19/2007)
ORDER granting in part and denying in part 511 Motion to Compel for reasons stated on the record during today's proceedings. Ordered by Chief Magistrate Steven M. Gold on 12/20/07. (Gold, Steven) (Entered: 12/20/2007)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold:Status Conference held on 12/20/2007. Various discovery rulings on the record. Next conference: February 27, 2008 at 2:00 p.m. Counsel shall submit letters identifying issues to be addressed by February 20. (Court Reporter SILVERMAN.) (Vasquez, Lea) (Entered: 12/21/2007)
515 TRANSCRIPT of Telephone Conference held on 12/10/07 before Judge Mag. Gold. (Piper, Francine) (Marziliano, August). (Entered: 12/28/2007)
TRANSCRIPT of Status Conference held on 10/24/07 before Judge Gold. (DOCUMENT FILED IN 02 CV 2307, DOCUMENT #625) (Piper, Francine) (Entered: 01/03/2008)
516 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Javaid Iqbal re Order on Motion to Compel (Reinert, Alexander) (Entered: 01/07/2008)
ORDER: The government is directed to respond in writing, on or before Tuesday, January 15, 2008, to plaintiffs' objections 516 to Judge Gold's order dated December 20, 2007 denying in part plaintiffs' motion to compel discovery from the United States. Ordered by Judge John Gleeson on January 8, 2008. (Gleeson, John) (Entered: 01/08/2008)
517 TRANSCRIPT of Status Conference Proceedings held on 12/20/2007 before Judge Gold. (Credle, Rita) (Marziliano, August). (Entered: 01/11/2008)

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01/11/2008 01/11/2008
01/15/2008
01/16/2008 01/16/2008 01/18/2008 01/23/2008
01/24/2008 01/24/2008 01/25/2008
01/30/2008 02/01/2008
02/07/2008
02/19/2008 02/20/2008 02/20/2008 02/21/2008

518 Letter MOTION for Extension of Time to File Request for Pre−Motion Conference by David Rardin. (Granger, Raymond) (Entered: 01/11/2008)
ORDER granting 518 Motion for Extension of Time to File. Defendants Rardin, Cooksey and Hawk Sawyer shall seek a pre−motion conference by January 16, 2008. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 1/11/2008. (O'Connor, Erin) (Entered: 01/11/2008)
519 MEMORANDUM in Opposition to Plaintiffs' Objections to Magistrate Judge Gold's Order Entered on December 20, 2007 filed by United States of America. (Attachments: # 1 Exhibit A (Relevant pages of transcript of 12/20/2007 hearing, # 2 Exhibit B (United States' letter, dated 11/1/2007), # 3 Exhibit C (Working Copy FBI document)) (Handler, Stephen) (Entered: 01/15/2008)
520 Letter MOTION to Adjourn Conference regarding Defendant Kathleen Hawk Sawyer's intention to move for dismissal by Kathleen Hawk Sawyer. (Nagle, Mark) (Entered: 01/16/2008)
521 Letter Pre−Motion Conference Letter Regarding Intent to File Motion to Dismiss by Michael Cooksey, David Rardin (Curtis, Cheryl) (Entered: 01/16/2008)
522 REPLY in Support re 516 Appeal of Magistrate Judge Decision to District Court filed by Javaid Iqbal. (Magoolaghan, Joan) (Entered: 01/18/2008)
ORDER REFERRING MOTION: 520 Letter MOTION to Adjourn Conference regarding Defendant Kathleen Hawk Sawyer's intention to move for dismissal filed by Kathleen Hawk Sawyer and 521 Letter Pre−Motion Conference Letter Regarding Intent to File Motion to Dismiss filed by Michael Cooksey, David Rardin is respectfully referred to Judge Gold for a Report and Recommendation. Ordered by Judge John Gleeson on January 23, 2008. Motions referred to Steven M. Gold. (Gleeson, John) (Entered: 01/23/2008)
523 Letter responding to plaintiff Iqbal's assertion that the Protective Order was violated by United States of America (Handler, Stephen) (Entered: 01/24/2008)
524 Letter In Response to Request for Premotion Conference by Defendants Sawyer, Rardin, and Cooksey by Javaid Iqbal (Reinert, Alexander) (Entered: 01/24/2008)
SCHEDULING ORDER: The Court will hold a pre−motion conference with respect to the application of defendants Cookson and Rardin for leave to file a motion to dismiss at 12:00 p.m. on February 8, 2008. Only counsel for the moving parties and for plaintiffs are required to attend. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/25/2008. (Vasquez, Lea) (Entered: 01/25/2008)
525 Letter MOTION to Adjourn Conference scheduled for February 8, 2008 until February 20, 2008 by Javaid Iqbal. (Magoolaghan, Joan) (Entered: 01/30/2008)
ORDER granting 525 Motion to Adjourn Conference. The conference previously scheduled for February 8th will instead be held at 11:00 a.m. on February 20, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 2/1/2008. (Vasquez, Lea) (Entered: 02/01/2008)
ORDER: Because Judge Gold's order dated December 20, 2007 denying in part plaintiff's motion to compel discovery is neither clearly erroneous nor contrary to law, I affirm it. Ordered by Judge John Gleeson on February 7, 2008. (Gleeson, John) (Entered: 02/07/2008)
526 Letter MOTION to Substitute Attorney by Javaid Iqbal. (Bhattacharyya, Mamoni) (Entered: 02/19/2008)
527 Letter regarding the status of discovery for the February 27th conference by United States of America (Handler, Stephen) (Entered: 02/20/2008)
528 STATUS REPORT by Javaid Iqbal (Magoolaghan, Joan) (Entered: 02/20/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Pre Motion Conference held on 2/20/2008. Magoolaghan for plaintiffs, Nagle for Sawyer, Granger for Rardin, Curtis for Cooksey. Conference held with respect to the application of these defendants for leave to file a motion to dismiss claims

Case: 1:04-cv-1809 As of: 02/20/2013 03:01 PM EST 59 of 67

02/22/2008 02/25/2008 02/28/2008
03/14/2008 03/19/2008 03/21/2008 03/24/2008
03/26/2008
04/02/2008 04/07/2008
04/15/2008

sixteen and seventeen in plaintiffs' Second Amended Complaint as to them. In the event these defendants decide to go forward with their motion, they shall file their moving papers by 3/17; plaintiffs' opposition papers are due 4/4, and defendants' reply papers are due 4/14. Counsel shall indicate by letter no later than 4/14 whether they seek oral argument on the motion. If defendants do not move to dismiss by 3/17, they shall file their answers by 3/24. In either event, any previously entered stay of discovery with respect to these defendants is lifted, and responses to plaintiffs' outstanding written discovery demands is due 3/24. (Tape #FTR 11:07−11:40.) (Vasquez, Lea) (Entered: 02/21/2008)
529 Notice of MOTION to Withdraw as Attorney for Defendant Angel Perez by Angel Perez. (Koenigsberg, David) (Entered: 02/22/2008)
ORDER granting 526 Motion to Substitute Attorney. Attorney Mamoni Bhattacharyya terminated. Ordered by Chief Magistrate Steven M. Gold on 02/25/08. (Gold, Steven) (Entered: 02/25/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 2/27/2008. Meerepol, et al for plaintiffs, Handler, et al for defendants. Various discovery rulings on the record. NEXT CONFERENCE: MAY 8, 2008 AT 2:00 P.M. Counsel shall submit letters by May 2nd identifying the issues to be addressed at the conference. (Court Reporter Fred Guerino.) (Vasquez, Lea) (Entered: 02/28/2008)
530 Letter to Chief Magistrate Judge Gold Regarding Filing of Joint Cross−Petition for Certiorari and Continuance of Stay of Discovery by David Rardin (Granger, Raymond) (Entered: 03/14/2008)
531 Letter opposing stay of discovery application by defendants Rardin, Cooksey and Rardin by Javaid Iqbal (Magoolaghan, Joan) (Entered: 03/19/2008)
532 REPLY in Support of Continuance of Stay of Discovery filed by David Rardin. (Granger, Raymond) (Entered: 03/21/2008)
ORDER re 532 Reply in Support filed by David Rardin : The application of defendants Rardin, Cooksey and Sawyer to extend their time to answer or move against the complaint and provide discovery responses until ten days after a ruling on their pending motion for a stay is granted. This order, having been entered based upon an application filed only one business day ago and without any response from plaintiffs, is entered without prejudice to plaintiff's right to seek reconsideration or modification. Ordered by Chief Magistrate Steven M. Gold on 03/24/08. (Gold, Steven) (Entered: 03/24/2008)
Minute Entry for proceedings held before Chief Magistrate Steven M. Gold: Telephone Conference held on 3/26/2008: Magoolaghan for plaintiff, Granger and Nagle for BOP defendants. For the reasons stated on the record, BOP defendants' application to stay discovery against them while they seek Supreme Court review is GRANTED. Counsel are advised that, in the future, applications seeking relief from the court should be filed as motions, even if made in letter form. (Tape #12:33−12:37.) (O'Connor, Erin) (Entered: 03/26/2008)
533 REPLY in Support re 529 Notice of MOTION to Withdraw as Attorney for Defendant Angel Perez filed by Angel Perez. (Koenigsberg, David) (Entered: 04/02/2008)
ORDER granting 529 Motion to Withdraw as Attorney. Attorney David A Koenigsberg terminated for reasons stated in his motion, in his letter dated April 2, 2008 (docket entry 533) and on the record during the conference held on 2/27/08. Mr. Koenigsberg shall promptly advise Angel Perez of this order, alert Mr. Perez to the possibility of seeking pro bono counsel, and advise Mr. Perez that he is hereby directed to submit a letter to the court by June 2, 2008, stating, assuming no new counsel has by then appeared for him, whether he intends to proceed pro se or has chosen not to defend this action. Ordered by Chief Magistrate Steven M. Gold on 04/07/08. (Gold, Steven) (Entered: 04/07/2008)
534 Letter requesting stay of discovery be vacated against defendants Rolince and Maxwell by Javaid Iqbal (Magoolaghan, Joan) (Entered: 04/15/2008)

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04/16/2008 04/18/2008 04/21/2008 04/22/2008 04/22/2008 04/29/2008
05/06/2008
05/08/2008
05/12/2008 05/12/2008 05/12/2008

535 Letter to Judge Steven M. Gold from Lauren J. Resnick, Esq. and Leslie R. Caldwell, Esq.−dated 4−16−08 by Kenneth Maxwell, Michael Rolince (Resnick, Lauren) (Entered: 04/16/2008)
536 Letter in reply to the opposition of defendants Rolince and Maxwell to submit to discovery by Javaid Iqbal (Magoolaghan, Joan) (Entered: 04/18/2008)
537 SCHEDULING ORDER: A Status Conference is set for 4/24/2008 at 2:30 PM in Courtroom13D South before Chief Magistrate Steven M. Gold for plaintiff's counsel and counsel for defendants Rolince and Maxwell. Counsel are to refer to the attached Order for further information. (Vasquez, Lea) (Entered: 04/21/2008)
538 Letter dated April 22, 2008 from Leslie Caldwell to Magistrate Judge Steven M. Gold requesting rescheduling of the in−person court conference currently scheduled for April 24, 2008 by Kenneth Maxwell (Caldwell, Leslie) (Entered: 04/22/2008)
SCHEDULING ORDER: The status conference previously scheduled for April 24th will instead be held at 2:30 p.m. on April 28th. Future application for adjournment must be filed as MOTIONS but may remain in letter form. So Ordered by Chief Magistrate Judge Steven M. Gold on 4/22/2008. (Vasquez, Lea) (Entered: 04/22/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 4/28/2008. Reinert for plaintiffs, Resnick and Caldwell for Rolince and Maxwell. Plaintiff's application to lift the stay of discovery with respect to defendants Rolince and Maxwell is granted for the reasons stated on the record. These defendants will answer the complaint, with out prejudice to filing of an amended answer upon obtaining additional documents, by May 12. Any change in the substance of the answer may not be the basis of cross−examination at trial. In addition, these defendants will respond to outstanding document demands by May 27 and submit a letter by May 12 proposing a schedule for moving forward with additional discovery, including answering interrogatories and appearing for depositions. (Tape #FTR 2:38−3:06.) (Vasquez, Lea) (Entered: 04/29/2008)
539 Transcript of Proceedings held on April 28, 2008, before Judge Gold. Court Transcriber Aria Transcriptions, Telephone number 215−767−7700. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. Release of Transcript Restriction set for 8/4/2008. After that date it may be obtained through PACER. Redaction Request due 5/27/2008. Redacted Transcript Deadline set for 6/6/2008. (Rocco, Christine) (Entered: 05/06/2008)
NOTICE: The next in−person status conference in these related actions is scheduled for June 4, 2008 at 3:00 p.m. By letter dated April 3, 2008, plaintiffs in the Turkmen action requested an adjournment of the joint status conference scheduled for May 8, 2008. 02−CV−2307, Docket Entry 635. Plaintiffs indicated in their letter that they spoke to parties in both actions and there was no opposition to adjourning the conference. Accordingly, on April 15, 2008, I granted plaintiffs' motion and adjourned the conference previously scheduled for May 8th to 3:00 p.m. on June 4th. COUNSEL ARE DIRECTED TO FILE ALL FUTURE REQUESTS THAT AFFECT BOTH ACTIONS ON THE DOCKET SHEETS OF BOTH ACTIONS. Counsel are reminded that a report identifying the issues to be raised at the conference must be submitted by May 28th. (O'Connor, Erin) (Entered: 05/08/2008)
540 ANSWER to 273 Amended Complaint by Kenneth Maxwell. (Stolley, Martha) (Entered: 05/12/2008)
541 ANSWER to 273 Amended Complaint Answer to Second Amended Complaint by Michael Rolince. (Attachments: # 1 Certificate of Service) (Resnick, Lauren) (Entered: 05/12/2008)
542 Letter from Lauren J. Resnick, Esq. and Leslie R. Caldwell, Esq to Hon. Steven M. Gold−dated 5−12−08 by Kenneth Maxwell, Michael Rolince (Resnick, Lauren) (Entered: 05/12/2008)

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05/13/2008 05/28/2008 05/29/2008
07/03/2008 07/03/2008
08/07/2008 08/08/2008 08/12/2008 08/15/2008 08/19/2008 08/22/2008 09/03/2008 09/04/2008 09/04/2008 09/12/2008
09/12/2008

543 NOTICE of Appearance by Joshua G. Oberman on behalf of Linda Thomas (aty to be noticed) (Oberman, Joshua) (Entered: 05/13/2008)
544 MOTION to Adjourn Conference by Ibrahim Turkmen. (Strugar, Matthew) (Entered: 05/28/2008)
ORDER granting (544) Motion to Adjourn Conference in case 1:04−cv−01809−JG−SMG; granting (637) Motion to Adjourn Conference in case 1:02−cv−02307−JG−SMG. The conference previously scheduled for June 4th will instead be held at 3:00 p.m. on July 10, 2008. So Ordered by Chief Magistrate Judge Steven M. Gold on 5/29/2008. (Vasquez, Lea) (Entered: 05/29/2008)
545 MOTION to Adjourn Conference by Ibrahim Turkmen. (Strugar, Matthew) (Entered: 07/03/2008)
ORDER granting 545 Motion to Adjourn Conference. The conference previously scheduled for July 10th will be held instead at 10:00 a.m. on September 10, 2008. Counsel shall submit a report identifying the issues to be raised at the conference by September 4th. So ordered. Ordered by Chief Magistrate Steven M. Gold on 7/3/2008. (O'Connor, Erin) (Entered: 07/03/2008)
546 Letter Seeking Order to Preclude Discovery by United States of America (Attachments: # 1 Exhibit Tab A Plaintiffs' First Combined Discovery Demand to Defendant United States) (Handler, Stephen) (Entered: 08/07/2008)
547 Letter Defs. Rolince &Maxwell Request for Classified and Other Materials by United States of America (Mahaffey, Clay) (Entered: 08/08/2008)
548 Letter in opposition to stay application of United States by Javaid Iqbal (Attachments: # 1 Exhibit A) (Magoolaghan, Joan) (Entered: 08/12/2008)
549 Letter in support of stay application of United States by Michael Rolince (Apte, Anagha) (Entered: 08/15/2008)
550 Letter in opposition to Rolince/Maxwell stay application by Javaid Iqbal (Magoolaghan, Joan) (Entered: 08/19/2008)
551 Letter Replying to Plaintiffs' Opposition to Motion Seeking Order to Preclude Discovery by United States of America (Handler, Stephen) (Entered: 08/22/2008)
552 Letter Advising as to Status of Request for Classified and/or Privileged Information by Michael Rolince (Apte, Anagha) (Entered: 09/03/2008)
553 STATUS REPORT by Javaid Iqbal (Strugar, Matthew) (Entered: 09/04/2008)
554 Letter Status Report by United States of America (Handler, Stephen) (Entered: 09/04/2008)
555 Transcript of Proceedings held on 9/10/08, before Judge Gold. Court Transcriber TYPEWRITE WORD PROCESSING SERVICE, Telephone number 718−966−1401. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/3/2008. Redacted Transcript Deadline set for 10/13/2008. Release of Transcript Restriction set for 12/11/2008. (Hong, Loan) (Entered: 09/12/2008)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Telephone Conference held on 9/10/2008. Magoolaghan et al for plaintiffs, Handler et al for US, various other counsel for individual defendants. (1) The United States will complete its rolling production with respect to the 169 witnesses identified in its Rule 26(a) disclosure by November 17. (2) The application of the United States to bar the depositions of witnesses from the OIG is denied. The United States may, of course, instruct the witnesses not to answer questions calling for privileged information. See Fed. R. Civ. P. 30(c)(2); Local Civil Rules 26.2 and 30.6. (3) The applications of defendants Rolince and Maxwell and of the United States to stay certain aspects of discovery are granted in part and denied in part as specified in detail on the record of today's proceeding. Counsel for the United States and for Rolince and Maxwell shall continue their efforts to resolve the

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09/17/2008 09/22/2008 09/23/2008 10/17/2008 10/30/2008
11/14/2008 11/17/2008 11/18/2008
01/08/2009 01/13/2009 01/13/2009

request by Rolince and Maxwell for access to certain classified information, and shall submit a letter or memorandum to the court by October 17 reporting on the status of those efforts and proposing a schedule for presenting the matter to the court if it remains unresolved at that time. (4) Any defendants with a current intention to rely on classified information and have not already disclosed that intention shall do so by September 26. (5) Discovery with respect to what the court and the parties have referred to as "Phase One" of this litigation shall be concluded by December 1, 2008, absent an application to extend the date based upon disclosures of information made after today's conference. NEXT CONFERENCE: DECEMBER 19, 2008 AT 10:00 A.M. Letters identifying issues to be raised at the next conference shall be submitted no later than December 15th. Counsel shall be prepared to discuss the grounds for any anticipated motion for summary judgment and to set a motion schedule. (Tape #FTR 10:10−11:15.) (Vasquez, Lea) (Entered: 09/12/2008)
556 Letter MOTION for Extension of Time to Complete Discovery by Ibrahim Turkmen. (Strugar, Matthew) (Entered: 09/17/2008)
ORDER granting 556 Motion for Extension of Time to Complete Discovery as no timely objection has been filed. Ordered by Chief Magistrate Steven M. Gold on 09/22/08. (Gold, Steven) (Entered: 09/22/2008)
ORDER terminating as moot 520 Motion to Adjourn Conference. Ordered by Chief Magistrate Steven M. Gold on 9/23/2008. (O'Connor, Erin) (Entered: 09/23/2008)
557 Letter to Chief Magistrate Judge Gold concerning request for access to certain information by Defendants Rolince and Maxwell by United States of America (Mahaffey, Clay) (Entered: 10/17/2008)
558 ORDER of USCA An Order has been entered by this Court RECALLING &STAYING the mandate issuance of the MANDATE of this Court. The Mandate was Issued on 9/28/07. As per instructions the mandate is being returned to the USCA to Ms. Anna Bozyn at the USCA. as to 276 Notice of Appeal filed by Kenneth Maxwell. 282 Notice of Appeal filed by Nora Lorenzo, 284 Notice of Appeal filed by David Rardin, 277 Notice of Appeal filed by Kathleen Hawk Sawyer, 283 Notice of Appeal filed by Robert Mueller, John Ashcroft, 281 Notice of Appeal filed by Michael Cooksey, 274 Notice of Appeal filed by Dennis Hasty, 275 Notice of Appeal, filed by Michael Rolince (Gonzalez, Mary) (Entered: 10/30/2008)
559 Letter MOTION for Extension of Time to Complete Discovery by Ibrahim Turkmen. (Strugar, Matthew) (Entered: 11/14/2008)
560 Letter dtd 11/13/08 from Eleanore Baptiste, Assistant Clerk, Supreme Court of the United States to Appeals Clerk re: please transmit entire record to this Court. USSC #07−1015 (McGee, Mary Ann) (Entered: 11/17/2008)
ORDER granting 559 Motion for Extension of Time to Complete Discovery. The parties shall report to the court no later than January 14, 2009 concerning the status of discovery. Accordingly, the conference previously scheduled for December 19, 2008 is adjourned to 10:00 a.m. on February 6, 2009. So Ordered. Ordered by Chief Magistrate Steven M. Gold on 11/18/2008. (O'Connor, Erin) (Entered: 11/18/2008)
561 Letter MOTION to Withdraw as Attorney by Sherman. (Sullivan, Thomas) (Entered: 01/08/2009)
562 MOTION for Extension of Time to Complete Discovery by Ibrahim Turkmen. (Strugar, Matthew) (Entered: 01/13/2009)
604 MANDATE of USCA as to 276 Notice of Appeal filed by Kenneth Maxwell, 282 Notice of Appeal filed by Nora Lorenzo, 284 Notice of Appeal filed by David Rardin, 277 Notice of Appeal filed by Kathleen Hawk Sawyer, 283 Notice of Appeal filed by Robert Mueller, John Ashcroft, 281 Notice of Appeal filed by Michael Cooksey, 274 Notice of Appeal filed by Dennis Hasty, 275 Notice of Appeal, filed by Michael Rolince. It is stipulated that the appeal is hereby

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01/14/2009 01/16/2009
01/22/2009
01/29/2009 01/29/2009 02/04/2009 02/04/2009 02/04/2009
02/09/2009
02/17/2009 02/27/2009 03/02/2009 03/03/2009

withdrawn from active consideration before the Court, such withdrawal to be without prejudice to reactivation by appellants's counsel by written notice to the Clerk of this Court by 11/27/09. If not reactivated by 11/27/09, the appeal is subject to dismissal with prejudice &without costs or attorneys fees incurred to date. (See documents for further details). Certified on 1/5/10 (Gonzalez, Mary) (Entered: 01/19/2010)
563 Letter Regarding Agenda for February 6, 2009, Status Conference by United States of America (Mahaffey, Clay) (Entered: 01/14/2009)
ORDER granting (562) Motion for Extension of Time to Complete Discovery in case 1:04−cv−01809−JG−SMG; granting (655) Motion for Extension of Time to Complete Discovery in case 1:02−cv−02307−JG−SMG. Counsel shall submit a letter by January 29th identifying any issues they seek to raise at the conference. Responses shall be filed by February 4th. So Ordered by Chief Magistrate Judge Steven M. Gold on 1/16/2009. (Vasquez, Lea) (Entered: 01/16/2009)
ORDER granting (561) Motion to Withdraw as Attorney. Attorney Thomas M. Sullivan terminated in case 1:04−cv−01809−JG−SMG; granting (654) Motion to Withdraw as Attorney. Attorney Thomas M. Sullivan terminated in case 1:02−cv−02307−JG−SMG. Ordered by Chief Magistrate Steven M. Gold on 1/22/2009. (O'Connor, Erin) (Entered: 01/22/2009)
564 Letter Regarding Agenda for February 6 Status Conference by United States of America (Attachments: # 1 Exhibit Plts Fourth Request for Production to U.S., # 2 Exhibit Plts Rule 30(b)(6) Notice) (Mahaffey, Clay) (Entered: 01/29/2009)
565 Letter Re February Conference by Javaid Iqbal (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit) (Magoolaghan, Joan) (Entered: 01/29/2009)
566 NOTICE of Appearance by Paul David Stern on behalf of United States of America (aty to be noticed) (Stern, Paul) (Entered: 02/04/2009)
567 Letter in Response to United States' Request for Protective Order by Ibrahim Turkmen (Meeropol, Rachel) (Entered: 02/04/2009)
568 Letter to Chief Magistrate Judge Gold in Response to Plts. Agenda Ltr. by United States of America (Attachments: # 1 Exhibit Molerio Transcript, # 2 Exhibit Gleason Transcript, # 3 Exhibit Pearson Transcript, # 4 Exhibit Forman Transcript, # 5 Exhibit Cadman Transcript, # 6 Exhibit Moran Transcript, # 7 Exhibit Mawn Transcript) (Mahaffey, Clay) (Entered: 02/04/2009)
Minute Entry for proceedings held before Chief Magistrate Judge Steven M. Gold:Status Conference held on 2/6/2009. Meerepol and Magoolihan for plaintiffs, Mahaffey and Handler for defendants. Various discovery rulings on the record of the proceedings. The government will submit a letter within two weeks proposing a schedule for OIG depositions. NEXT CONFERENCE: March 31, 2009 at 10:00 a.m. Counsel are to submit letters setting forth an agenda for the conference by March 26th. (Court Reporter Torres−Butler.) (Vasquez, Lea) (Entered: 02/09/2009)
569 NOTICE of Appearance by Matthew Richard Kalinowski on behalf of Kenneth Maxwell (aty to be noticed) (Kalinowski, Matthew) (Entered: 02/17/2009)
570 STATUS REPORT on Phase One Discovery by Ibrahim Turkmen (Strugar, Matthew) (Entered: 02/27/2009)
571 NOTICE of Change of Address by David A Koenigsberg and Menz Bonner &Komar LLP (Koenigsberg, David) (Entered: 03/02/2009)
STATUS REPORT ORDER re (570 in 1:04−cv−01809−JG−SMG) Status Report filed by Ibrahim Turkmen, (663 in 1:02−cv−02307−JG−SMG) Status Report filed by Shakir Baloch, Ashraf Ibrahim, Yasser Ebrahim, Asif−Ur−Rehman Saffi, Akil Sachveda, Ibrahim Turkmen, Hany Ibrahim. As plaintiffs propose, they shall submit a report on the status of Phase One discovery by 3/16/2009. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/3/2009. (Vasquez, Lea) (Entered: 03/03/2009)

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03/05/2009 03/16/2009 03/23/2009 03/25/2009 03/26/2009
04/06/2009 04/21/2009 04/23/2009
06/10/2009 06/11/2009 06/15/2009 06/15/2009 06/16/2009 06/16/2009
06/16/2009 06/18/2009 06/18/2009 06/19/2009 06/19/2009

572 Letter from Matthew Kalinowski to the Clerk of Court requesting that the court terminate the appearances of Deborah Prisinzano Mikkelsen and Jennifer W. Cohen by Kenneth Maxwell (Kalinowski, Matthew) (Entered: 03/05/2009)
573 STATUS REPORT on Phase One Discovery by Ibrahim Turkmen (Strugar, Matthew) (Entered: 03/16/2009)
574 NOTICE of Appearance by Tabitha Justice on behalf of United States of America (aty to be noticed) (Justice, Tabitha) (Entered: 03/23/2009)
575 Letter regarding Status Conference by Ibrahim Turkmen (Meeropol, Rachel) (Entered: 03/25/2009)
SCHEDULING ORDER: The conference previously scheduled for March 31st will instead be held at 3:00 p.m. on Monday, April 27th. So Ordered by Chief Magistrate Judge Steven M. Gold on 3/26/2009. (Vasquez, Lea) (Entered: 03/26/2009)
576 NOTICE of Appearance by Armelle Nina VanDorp on behalf of United States of America (aty to be noticed) (VanDorp, Armelle) (Entered: 04/06/2009)
577 Letter to Judge Gold by Ibrahim Turkmen (Meeropol, Rachel) (Entered: 04/21/2009)
SCHEDULING ORDER: At the parties' request, the status conference previously scheduled for April 27, 2009 is adjourned to 3:00 p.m. on June 23, 2009. Counsel are to submit letters setting forth an agenda for the conference by 12:00 noon on June 19th. Ordered by Chief Magistrate Steven M. Gold on 4/23/2009. (O'Connor, Erin) (Entered: 04/23/2009)
578 Letter Motion to Stay Discovery by United States of America (Attachments: # 1 Exhibit Tab A, # 2 Exhibit Tab B, # 3 Exhibit Tab C, # 4 Exhibit Tab D, # 5 Exhibit Tab E) (Handler, Stephen) (Entered: 06/10/2009)
579 NOTICE of Change of address, telephone, email address by Yvonne Shivers for firm of LEVITT &KAIZER (Shivers, Yvonne) (Entered: 06/11/2009)
580 Letter to Hon. John Gleeson from Lauren J. Resnick, Esq. and Leslie R. Caldwell, Esq. by Kenneth Maxwell, Michael Rolince (Attachments: # 1 Exhibit A) (Resnick, Lauren) (Entered: 06/15/2009)
581 Letter to Hon. Steven M. Gold from Lauren J. Resnick, Esq. and Leslie R. Caldwell, Esq. by Kenneth Maxwell, Michael Rolince (Attachments: # 1 Exhibit A) (Resnick, Lauren) (Entered: 06/15/2009)
582 Letter in Support of United States' Motion to Stay Discovery by Robert Mueller, John Ashcroft (Barghaan, Dennis) (Entered: 06/16/2009)
ORDER: Defendants Michael Rolince and Kenneth Maxwell's request for a pre−motion conference 580 is granted. The pre−motion conference will be held on June 25, 2009 at 3:30 PM in Courtroom 6C. Ordered by Judge John Gleeson on 6/16/2009. (Gleeson, John) (Entered: 06/16/2009)
583 Letter In Opposition to Stay Application by Javaid Iqbal (Magoolaghan, Joan) (Entered: 06/16/2009)
584 Letter to Judge Gleeson requesting adjournment of pre−motion conference by Javaid Iqbal (Magoolaghan, Joan) (Entered: 06/18/2009)
585 Letter in opposition to application by defendants Rolince and Maxwell by Javaid Iqbal (Magoolaghan, Joan) (Entered: 06/18/2009)
586 Letter in Support of Motion to Stay Discovery by Dennis Hasty (Murphy, Justin) (Entered: 06/19/2009)
ORDER: The parties' telephonic application to adjourn the upcoming conferences is granted. Accordingly, the settlement conference previously scheduled for June 22, 2009 will be held instead at 3:00 p.m. on June 23, 2009. The status conference previously scheduled for June 23, 2009 will be held instead at 10:30 a.m. on July 2, 2009. Counsel shall submit letters setting forth an agenda for the status

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06/19/2009 06/22/2009 06/24/2009
06/26/2009 06/29/2009 06/29/2009 06/30/2009 07/02/2009
07/08/2009 07/09/2009 07/22/2009 07/24/2009 07/31/2009

conference no later than close of business on June 29, 2009. Ordered by Chief Magistrate Steven M. Gold on 6/19/2009. (O'Connor, Erin) (Entered: 06/19/2009)
587 Letter in Support of Motion to Stay Discovery by Michael Cooksey (Curtis, Cheryl) (Entered: 06/19/2009)
ORDER: In response to the parties' request, 584 , the pre−motion conference scheduled for June 25, 2009, at 3:30 PM is rescheduled for July 14, 2009 at 3:30 PM before Judge Gleeson in Courtroom 6C. Ordered by Judge John Gleeson on 6/22/2009. (Gleeson, John) (Entered: 06/22/2009)
Minute Entry for Settlement Conference held on 6/23/2009 before Chief Magistrate Judge Steven M. Gold: Meerepol et al for Turkmen plaintiffs, Reinert and Magoolaghan for Iqbal, Handler et al for United States. TODAY'S SETTLEMENT CONFERENCE WILL BE CONTINUED AT 10:00 AM ON JULY 2ND. COUNSEL FOR PLAINTIFFS ARE TO USE THEIR BEST EFFORTS TO ARRANGE FOR THEIR CLIENTS TO BE AVAILABLE BY TELEPHONE DURING THE CONFERENCE. THE ARGUMENT ON DEFENDANTS' APPLICATION FOR A STAY WILL BE HELD AT 4:00 PM ON JULY 2ND. (Vasquez, Lea) (Entered: 06/24/2009)
588 Letter in Opposition to Defendants Hasty, Ziglar, Cooksey, Rardin, and Sawyer's Motion for Stay of Discovery by Javaid Iqbal (Reinert, Alexander) (Entered: 06/26/2009)
589 Letter re Proposed Agenda for Status Conference by Ibrahim Turkmen (Meeropol, Rachel) (Entered: 06/29/2009)
590 Letter regarding agenda for Status Conference scheduled for July 2, 2009, by United States of America (Handler, Stephen) (Entered: 06/29/2009)
ORDER: Due to a conflict by the court, the status conference and oral argument on the pending discovery motions, previously scheduled for July 2, 2009, is CANCELLED. The conference will be held instead in August on a date to be determined. Ordered by Chief Magistrate Steven M. Gold on 6/30/2009. (O'Connor, Erin) (Entered: 06/30/2009)
SCHEDULING ORDER: The settlement conference previously scheduled for July 2, 2009 will be held instead at 10:30 a.m. on August 13, 2009. By close of business on August 10, 2009, counsel for plaintiffs shall submit a letter with the following information: a) a list of all claims currently pending and a brief summary of the nature of each claim, and indicating against which defendants; and b) a list of claims no longer pending or pending appeal and whether plaintiffs intend to pursue any of these claims. Plaintiffs may submit their letter, along with their updated settlement position, ex parte by fax. Counsel for the United States may submit any updated settlement letter by the same date. The status conference previously scheduled for July 2, 2009 will be held instead at 2:00 p.m. on August 13, 2009. Counsel shall submit updated agenda letters no later than close of business on August 10, 2009. Ordered by Chief Magistrate Steven M. Gold on 7/2/2009. (O'Connor, Erin) (Entered: 07/02/2009)
591 Letter to Hon. John Gleeson from Lauren J. Resnick, Esq. and Leslie R. Caldwell, Esq. by Kenneth Maxwell, Michael Rolince (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Resnick, Lauren) (Entered: 07/08/2009)
ORDER: Defendants Michael Rolince's and Kenneth Maxwell's counsel's application to cancel the July 14, 2009 pre−motion conference is granted. Ordered by Judge John Gleeson on 7/9/2009. (Gleeson, John) (Entered: 07/09/2009)
592 STIPULATION and Order Substituting Counsel of Record for Plaintiff Javaid Iqbal by Javaid Iqbal (Ball, David) (Entered: 07/22/2009)
593 NOTICE of Change of Address by Allan Noel Taffet (Taffet, Allan) (Entered: 07/24/2009)
SCHEDULING ORDER: Parties for plaintiff, Javaid Iqbal, are to appear for a status conference scheduled on Thursday, August 6, 2009 at 11:30 AM in Courtroom 6C South before Judge John Gleeson pursuant to a remand order from

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08/04/2009 08/05/2009 08/07/2009 08/10/2009 08/11/2009 08/11/2009
08/14/2009
08/26/2009 09/18/2009 09/24/2009
09/29/2009

USCA dated 7/29/2009. Ordered by Judge John Gleeson on 7/31/2009. (Lee, Ilene) (Entered: 07/31/2009)
ORDER: The prior scheduling order has understandably generated some confusion. With apologies to all, I make it clear that there will be a status conference in which counsel for all parties must appear. However, due to an ongoing trial, the Thursday, August 6 status conference is rescheduled for Tuesday, August 11 at 11:30 AM. Ordered by Judge John Gleeson on 8/4/2009. (Gleeson, John) (Entered: 08/04/2009)
594 Letter reply to the letters of both Javaid Iqbal and the Turkmen Plaintiffs in opposition to the June 10, 2009 motion to stay discovery by United States of America (Handler, Stephen) (Entered: 08/05/2009)
595 NOTICE of Appearance by Archena Bhalla on behalf of Linda Thomas (aty to be noticed) (Bhalla, Archena) (Entered: 08/07/2009)
596 Letter re Agenda for August 13, 2009 Status Conference by Ibrahim Turkmen (Meeropol, Rachel) (Entered: 08/10/2009)
597 Letter to Judge S. Gold from Lauren Resnick, Esq. and Leslie Caldwell, Esq.−dated August 11, 2009 by Kenneth Maxwell, Michael Rolince (Resnick, Lauren) (Entered: 08/11/2009)
601 Minute Entry for proceedings held before Judge John Gleeson: Case called. Plaintiffs represented by Alexander Reinert, Esq. and Jennifer Brace, Esq. Defendants represented by Dennis C. Barghaan, Jr., Esq. and AUSA R. Craig Lawrence. Status Conference held on 8/11/2009 in re: Plaintiffs Motion for a Leave to Amend the Complaint. The Court shall give the defendant's an opportunity to file a letter regarding the basis of their opposition and if appropriate, the Court shall set a briefing schedule. (Court Reporter Gene Rudolph.) (Lee, Ilene) (Entered: 10/26/2009)
Minute Entry for Settlement Conference held on 8/13/2009 proceedings held before Chief Magistrate Judge Steven M. Gold: Meerepol et al. for Turkmen plaintiffs, Reinert et al. for Iqbal, Handler et al. for United States. Settlement agreement reached with Turkmen MDC plaintiffs and United States. Counsel will submit a stipulation discontinuing these claims, or a status report on their efforts to do so, by October 1. A further settlement conference with Iqbal and the United States will be held at 10:00 a.m. on September 8. Principals with full settlement authority must be present or available by telephone. Argument on defendants' motion to stay is adjourned without date, to be rescheduled if a settlement is not reached on September 8. (Vasquez, Lea) (Entered: 08/14/2009)
NOTICE: Per counsels' request, the conference previously scheduled for September 8th will instead be held at 10:30 a.m. on September 18, 2009. (Vasquez, Lea) (Entered: 08/26/2009)
Minute Entry for Settlement Conference held on 9/18/2009 before Chief Magistrate Judge Steven M. Gold: Magoolaghan et al for plaintiff Iqbal, Handler et al for defendants. Settlement discussed. If the parties are unable to reach a settlement, they shall submit a letter by October 2 indicating the manner in which they intend to proceed with the litigation of Mr. Iqbal's claims. (Vasquez, Lea) (Entered: 09/18/2009)
Minute Entry for Telephone Conference held on 9/24/2009 before Chief Magistrate Judge Steven M. Gold: Magoolaghan and Reinert for plaintiff, Handler for defendant. Counsel report that they have reached a settlement agreement fully resolving all remaining claims in this action. A stipulation discontinuing the case, or a letter reporting on the status of preparing such a stipulation and proposing a date for its filing, same, shall be submitted by counsel for defendant by October 23, 2009. (Vasquez, Lea) (Entered: 09/24/2009)
598 MANDATE of USCA as to 283 Notice of Appeal filed by Robert Mueller, John Ashcroft. It is Ordered that the case is remanded for the District Court to decide whether leave to amend (complaint) should be granted in accordance with the opinion of this Court. Issued as Mandate: 9/22/09. USCA#05−6352−cv. (McGee,

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10/13/2009
10/23/2009 11/09/2009 11/10/2009 01/04/2010

Mary Ann) (Entered: 10/02/2009)
599 ORDER of USCA − Stipulation of undersigned counsel (see Document) withdrawing appeal from active consideration, without prejudice to reactivation by Appellant's counsel's written notice to the Clerk of this Court by November 27, 2009. If not reactivated by 11/27/09, the appeal is subject to dismissal with prejudice and without costs or attorneys fees incurred to date. Certified: 10/07/09 USCA#05−5844−cv(L); 05−6358−cv(CON) and 05−6386−cv(CON). (McGee, Mary Ann) (Entered: 10/20/2009)
600 Letter regarding Status Report pertaining to the settlement by United States of America (Handler, Stephen) (Entered: 10/23/2009)
602 Letter by Javaid Iqbal (Attachments: # 1 Proposed Order Proposed Order of Dismissal) (Magoolaghan, Joan) (Entered: 11/09/2009)
ORDER: In light of the settlement of his claims, Iqbal's action is dismissed against all named defendants with prejudice. Ordered by Judge John Gleeson on 11/10/2009. (Gleeson, John) (Entered: 11/10/2009)
603 MANDATE of USCA as to 276 Notice of Appeal filed by Kenneth Maxwell, 275 Notice of Appeal, filed by Michael Rolince. The parties having entered into a stipulation by 11/27/09, and the parties having declined to reactivate the appeal by that date, it is Ordered that the appeal is dismissed. Certified: 12/03/09. USCA#05−6379−cv and 05−6388−cv. (McGee, Mary Ann) (Entered: 01/04/2010)

 
 490 F.3d 143 (2007)
Javaid IQBAL, Plaintiff-Appellee, v.
Dennis HASTY, former Warden of the Metropolitan Detention Center, Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau of Prisons, John
Ashcroft, former Attorney General of the United States, Robert Mueller, Director of the Federal Bureau of Investigation, David Rardin, former Director of the Northeast Region of
the Bureau of Prisons, Michael Rolince, former Chief of the Federal Bureau of Investigation's International Terrorism Operations Section, Counterterrorism Division,
Kathleen Hawk Sawyer, former Director of the Federal Bureau of Prisons, Kenneth Maxwell, former Assistant Special Agent in Charge, New York Field Office, Federal Bureau
of Investigation, Defendants-Appellants.
Docket Nos. 05-5768-CV (L), 05-5844-CV (con), 05-6379-CV (con), 05-6352-CV (con), 05-6386-CV (con), 05-6358-CV (con), 05-6388-CV (con).
United States Court of Appeals, Second Circuit.
Heard: October 4, 2006. Decided: June 14, 2007.
14456 *144 *145 *146 Michael L. Martinez, Wash., D.C. (Shari Ross Lahlou, David E. Bell, Justin P. Murphy, Matthew F. Scarlato, Crowell & Moring LLP, Washington, DC, on the brief), for Defendant-Appellant Hasty.
Gregory G. Garre, Deputy Solicitor Gen., Dept. of Justice, Washington, DC (Peter D. Keisler, Asst. Atty. Gen., Gregory G. Katsas, Deputy Asst. Atty. Gen., Kannon K. Shanmugam, Asst. to the Solicitor Gen., Barbara L. Herwig, Robert M. Loeb, Dept. of Justice, Washington, DC; Dennis C. Barghaan, Richard W. Sponseller, Larry Lee Gregg, Asst. U.S. Attys., Alexandria, VA.; R. Craig Lawrence, Asst. U.S. Atty., Washington, DC, on the brief), for Defendants-Appellants Ashcroft and Mueller.
Mark E. Nagle, Troutman Sanders LLP, Wash., D.C. (William E. Lawler, III, Cheryl A. Curtis, Nashiba D. Boyd, Vinson & Elkins, L.L.P., Washington, DC; Raymond R. Granger, New York, N.Y., on the brief), for DefendantsAppellants Sawyer, Cooksey, and Rardin.
Lauren J. Resnick, New York, N.Y. (Fernando A. Bohorquez, Jr., Baker & Hostetler, LLP, New York, N.Y.; Leslie R. Caldwell, Morgan, Lewis & Bockius LLP, New York, N.Y., on the brief), for Defendants-Appellants Rolince and Maxwell.
Alexander A. Reinert, New York, N.Y. (Keith M. Donoghue, Elizabeth L. Koob, Joan Magoolaghan, Koob & 147 Magoolaghan, New York, N.Y.; Haeyoung Yoon, Urban *147 Justice Center, New York, N.Y.; Mamoni
Bhattacharyya, David Ball, Weil, Gotshal & Manges LLP, New York, N.Y., on the brief), for Plaintiff-Appellee Iqbal.
(Anil Kalhan, New York, N.Y., for amici curiae Civil Rights Organizations in support of Plaintiff-Appellee.).
(Michael J. Wishnie, New York, N.Y., for amici curiae Individuals and Religious Organizations in support of Plaintiff-Appellee.).
Before: NEWMAN, CABRANES, and SACK, Circuit Judges.
JON O. NEWMAN, Circuit Judge.
These interlocutory appeals present several issues concerning the defense of qualified immunity in the aftermath of the events of 9/11. Several current and former government officials from the Department of Justice, the Federal Bureau of Investigation ("FBI"), and the Bureau of Prisons ("BOP") appeal from the September 27, 2005,

Order of the District Court for the Eastern District of New York (John Gleeson, District Judge) denying in part their motions to dismiss on the ground of qualified immunity. See Elmaghraby v. Ashcroft, No. 04 CV 1409, 2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005) ("Dist.Ct.op."). Plaintiff-Appellee Javaid Iqbal alleges that the DefendantsAppellants took a series of unconstitutional actions against him in connection with his confinement under harsh conditions at the Metropolitan Detention Center ("MDC") in Brooklyn, after separation from the general prison population. We conclude that the defense of qualified immunity, to the extent rejected by the District Court, cannot be sustained as to any Defendants at this preliminary stage of the litigation except as to the claim of violation of procedural due process rights, and we therefore affirm in part, reverse in part, and remand.
Background
Parties. Iqbal is a Muslim Pakistani currently residing in Pakistan. Iqbal's co-plaintiff was Ehad Elmaghraby, a Muslim Egyptian. After Judge Gleeson's ruling on the motions to dismiss, the United States settled Elmaghraby's claims by payment of $300,000.
Four groups of Defendants have filed appeals from Judge Gleeson's order. The first group consists of former Attorney General John Ashcroft and current FBI Director Robert Mueller. The second group consists of Michael Rolince, former Chief of the FBI's International Terrorism Operations Section, Counterterrorism Division, and Kenneth Maxwell, former Assistant Special Agent in Charge of the FBI's New York Field Office (the "FBI Defendants"). The third group consists of former BOP officials: Kathleen Hawk Sawyer, former BOP Director; David Rardin, former Director of the Northeast Region of the Bureau of Prisons; and Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau of Prisons (the "BOP Defendants"). The fourth appeal was filed by Dennis Hasty, former MDC Warden. Other Defendants include Michael Zenk, MDC Warden at the time the lawsuit was filed, other MDC staff, and the United States.
Factual allegations. The complaint alleges the following facts, which are assumed to be true for purposes of the pending appeals, as we are required to do in reviewing a ruling on a motion to dismiss. See Hill v. City of New York, 45 F.3d 653, 657 (2d Cir.1995). The Plaintiff was arrested by agents of the FBI and the Immigration and 148 Naturalization Service on November *148 2, 2001.[1] Following his arrest, he was detained in the MDC's general prison population until January 8, 2002, when he was removed from the general prison population and assigned to a special section of the MDC known as the Administrative Maximum Special Housing Unit ("ADMAX SHU"), where he remained until he was reassigned to the general prison population at the end of July 2002. On this appeal, we consider only claims concerning the Plaintiff's separation from the general prison population and confinement thereafter in the ADMAX SHU. We do not consider the legality of his arrest or his initial detention in the MDC.
The complaint further alleges that in the months after 9/11, the FBI arrested and detained thousands of Arab Muslim men as part of its investigation into the events of 9/11. The fact of their detention, its duration, and the conditions of confinement depended on whether those arrested were classified as "of high interest." Many of these men, including the Plaintiff, were classified as "of high interest" solely because of their race,[2] religion, and national origin and not because of any involvement in terrorism. In the New York City area, all Arab Muslim men arrested on criminal or immigration charges while the FBI was investigating a 9/11 lead were classified as "of high interest." The FBI Defendants were responsible for making these classifications for detainees arrested in the New York City area, including the Plaintiff.
The complaint further alleges that Ashcroft and Mueller approved a policy of holding detainees "of high interest" in highly restrictive conditions until they were "cleared" by the FBI. In early October, BOP Defendant Cooksey, with the knowledge of BOP Defendant Sawyer, directed that all detainees "of high interest" be held in the most restrictive conditions possible. FBI officials were aware that the BOP was relying on this classification to hold detainees in restrictive conditions.
The complaint further alleges that soon after 9/11, the MDC created within the MDC an ADMAX SHU, the BOP's most restrictive type of confinement, to house the detainees "of high interest." The procedures for handling ADMAX SHU detainees were developed by MDC staff, at the request of Defendant Hasty. ADMAX SHU

detainees were permitted to leave their cells only one hour each day, and all legal and social interactions were non-contact. Movement outside their cells required handcuffs and leg irons and four-officer escorts. Movement inside their cells was monitored by video cameras. For many weeks, the detainees were subject to a communications blackout.
The complaint further alleges that the MDC did not conduct any review of the detainees' segregation in the ADMAX SHU. Instead, the detainees remained in the ADMAX SHU until the FBI approved their release to the 149 general population. As a result, numerous detainees were held in the ADMAX SHU for extended periods *149 of time even though there was no evidence linking them to terrorism.
The complaint further alleges that the Plaintiff was transferred to the ADMAX SHU on January 8, 2002. He was kept in solitary confinement. Until March, the lights in his cell were left on almost 24 hours a day, and MDC staff deliberately turned on air conditioning during the winter and heating during the summer. MDC staff left the Plaintiff in the open-air recreation area for hours when it was raining and then turned on the air conditioner when he returned to his cell. Whenever the Plaintiff was removed from his cell, he was handcuffed and shackled. The Plaintiff was not provided with adequate food and lost 40 pounds while in custody. MDC staff called him, among other things, a "terrorist" and a "Muslim killer."
The complaint further alleges that the Plaintiff was brutally beaten by MDC guards on two occasions: upon his transfer to the ADMAX SHU in January 2002 and again in March. Following the March beating, the Plaintiff was denied medical care for two weeks even though he was in excruciating pain. He was also subjected to daily strip and body-cavity searches. The March beating was prompted by the Plaintiff's protestations to a fourth consecutive strip and body-cavity search in the same room. MDC staff interfered with the Plaintiff's prayers, routinely confiscated his Koran, and refused to permit him to participate in Friday prayer services. They also interfered with the Plaintiff's communications with his defense attorney, for example, by disconnecting the phone if the Plaintiff complained about his conditions of confinement and delaying his receipt of legal mail for up to two months.
The Plaintiff pled guilty on April 22, 2002, and was sentenced on September 17, 2002. He was released from the ADMAX SHU at the end of July 2002, after pleading guilty but before sentencing. Judge Gleeson considered the Plaintiff to be a pretrial detainee throughout his entire time in the ADMAX SHU. Dist. Ct. op. at *15 n. 14. The Plaintiff was released from the MDC on January 15, 2003, and thereafter was removed to Pakistan (a fact not in the complaint but undisputed).
Litigation in the District Court. The Plaintiff (and his co-plaintiff) commenced this action in May 2004. Their complaint asserted twenty-one causes of action, including both statutory claims and constitutional tort claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The causes of action, and the Defendants against whom they were asserted, are set forth in the margin.[3]
150 *150 Ashcroft and Mueller, the FBI Defendants, the BOP Defendants, Hasty, the MDC Warden, and an MDC medical assistant[4] filed motions to dismiss on the grounds that (1) a Bivens action was precluded by "special factors," (2) they were protected by qualified immunity, (3) the supervisory defendants were not alleged to have sufficient personal involvement, and (4) Ashcroft, Mueller, the FBI Defendants, and the BOP Defendants were not subject to personal jurisdiction in New York. In addition, the United States moved to be substituted as the defendant on the ATCA claim (Count 21) and for dismissal of that claim.
With a few exceptions, Judge Gleeson denied the motions to dismiss. He first rejected Ashcroft's argument that "special factors," namely the post-9/11 context, precluded a Bivens action in this case. See Dist. Ct. op. at *14. Judge Gleeson then turned to the substance of the Plaintiff's Bivens claims. He denied Hasty's motion to dismiss the conditions of confinement claims (Counts One and Eight), concluding that the Plaintiff had adequately alleged (1) illegitimate reasons for the conditions of his confinement and (2) Hasty's personal involvement. See id. at *15*17. He also found adequate allegations of Hasty's personal involvement in the claims of excessive force (Counts Three and Four), interference with the Plaintiff's right to counsel (Count Five), unreasonable strip searches (Count Nine), and interference with the Plaintiff's exercise of religion (Count Ten). See id. at *22, *27, *28.

However, he found the allegations insufficient to support the personal involvement of BOP Defendant Sawyer in the unreasonable strip searches and dismissed this claim against her. See id. at *27.
With respect to the procedural due process claim (Count Two), Judge Gleeson found that the Plaintiff had alleged both a deprivation of a liberty interest that involved "atypical and significant" hardships compared to the conditions in the general prison population and the absence of any due process protections, that the Plaintiff's right was clearly established, and that he could not assess the objective reasonableness of the Defendants' actions as a matter of law at this stage of the litigation. See id. at *18-*20. He also found that the Plaintiff had adequately alleged the personal involvement of all the Defendants, observing that "the post-September 11 context provide[d] support for [the P]laintiffs' assertions that [the D]efendants were involved in creating and/or 151 implementing the detention policy under which [the P]laintiffs were confined without due process." *151 See id. at *20-*21. Finally, with respect to the procedural due process claim, he limited the first stage of discovery to the issue of the Defendants' personal involvement in the alleged denial of due process. See id. at *21.
With respect to the Plaintiff's Bivens claims of race and religious discrimination (Counts 11 and 12), Judge Gleeson ruled that the Plaintiff's allegations that he was confined in significantly harsher conditions solely because of his race and religion were sufficient to state a cause of action. See id. at *29. He also concluded that the Plaintiff had adequately alleged the personal involvement of Ashcroft and Mueller, the FBI Defendants, and Hasty. See id. However, because the Plaintiff had not alleged that the BOP Defendants were involved in the challenged classification in any way, Judge Gleeson concluded that the Plaintiff had not alleged the personal involvement of the BOP Defendants, and he dismissed these claims against them. See id.
Turning to the Plaintiff's statutory claims, Judge Gleeson dismissed the RFRA claims against all the Defendants, concluding that they were entitled to qualified immunity because it was not clearly established that RFRA applied to federal government officials. See id. at *30-*31. He also dismissed the ATCA claim after first having substituted the United States for the individual defendants. See id. at *34-*35. Finally, he denied the motions to dismiss the section 1985(3) conspiracy claims, rejecting the Defendants' arguments that it was not clearly established that section 1985 applied to federal officers and concluding that the Plaintiff had adequately alleged the Defendants' personal involvement, except with respect to the allegation that the BOP Defendants had conspired to subject the Plaintiff to unreasonable strip searches. See id. at *32-*33.
Discussion
The Defendants appeal from the District Court's order denying their motions to dismiss on the ground of qualified immunity. Their arguments with respect to qualified immunity fall into several broad categories: (1) the Plaintiff's allegations do not allege the violation of a clearly established right, (2) do not allege sufficient personal involvement of the Defendants in the challenged actions, (3) are too conclusory to overcome a qualified immunity defense, and (4) the Defendants' actions were objectively reasonable. Permeating the Defendants' assertion of a qualified immunity defense is the contention that, however the defense might be adjudicated in normal circumstances, the immediate aftermath of the 9/11 attack created a context in which the defense must be assessed differently and, from their standpoint, favorably.
In addition, Ashcroft, Mueller, and FBI Defendant Rolince seek review of the denial of their motion to dismiss for lack of personal jurisdiction, arguing that the issue of personal jurisdiction is available for review on this interlocutory appeal because the issue is inextricably intertwined with that of qualified immunity.
Because many of the Defendants' grounds for asserting an immunity defense overlap with respect to several of the Plaintiff's allegations, it will be convenient to consider separately each of the Plaintiff's causes of action with respect to the one or more Defendants against whom it is asserted, rather than consider separately the claims asserted against each Defendant. Before turning to each of the Plaintiff's allegations, we first consider the legal standards that apply to nearly all of the Plaintiff's claims and to most of the grounds on which the Defendants assert their qualified immunity defense.
152 *152 I. General Principles of Qualified Immunity

(a) Standard of review. When a district court denies qualified immunity on a Rule 12(b)(6) motion to dismiss, "we review the district court's denial de novo, accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs' favor." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 250 (2d Cir.2001).
(b) Appealability. A district court's denial of qualified immunity is appealable as a collateral order if it turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Thus, a defendant may appeal a district court's ruling denying qualified immunity when, if a plaintiff's allegations are assumed to be true, the only question is whether the alleged conduct violated a clearly established right. See Locurto v. Safir, 264 F.3d 154, 163 (2d Cir.2001).
(c) The qualified immunity defense. Qualified immunity is an immunity from suit and not just a defense to liability. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The first step in a qualified immunity inquiry is to determine whether the alleged facts demonstrate that a defendant violated a constitutional right. See id. at 201, 121 S.Ct. 2151; see also Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 1774 & n. 4, 167 L.Ed.2d 686 (2007). If the allegations show that a defendant violated a constitutional right, the next step is to determine whether that right was clearly established at the time of the challenged action 0907that is, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." See Saucier, 533 U.S. at 202, 121 S.Ct. 2151. A defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law. See Johnson, 239 F.3d at 250.
In determining whether a right was clearly established, the court must assess whether "the contours of the right [were] sufficiently clear in the context of the alleged violation such that a reasonable official would understand that what he [was] doing violate[d] that right." Id. at 250-51 (internal quotation marks omitted). To that end, the court should consider what a reasonable officer in the defendant's position would have known about the lawfulness of his conduct, "not what a lawyer would learn or intuit from researching case law." Id. at 251 (internal quotation marks omitted). Furthermore, the court need not identify "legal precedent addressing an identical factual scenario" to conclude that the right is clearly established. Id.; see also Tellier v. Fields, 280 F.3d 69, 84 (2d Cir.2000) (noting that a law is "clearly established" so long as a ruling on the issue is "clearly foreshadow[ed]" by this Circuit's decisions).
(d) Personal involvement. Many of the Defendants claim qualified immunity on the ground that the Plaintiff has failed to allege their personal involvement in the challenged actions. All of the appealing Defendants are supervisory officials. The personal involvement of a supervisor may be established by showing that he (1) directly participated in the violation, (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act 153 on information that constitutional rights were being violated. See Colon v. *153 Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (discussing section 1983 liability).
Although a lack of personal involvement may be grounds for dismissing a claim on the merits (a ruling that would not be subject to an interlocutory appeal), such a lack is also relevant to a defense of qualified immunity because it goes to the question of whether a defendant's actions violated a clearly established right. See McCullough v. Wyandanch Union Free School District, 187 F.3d 272, 280 (2d Cir. 1999) ("Where there is a total absence of evidence of [a violation], there is no basis on which to conclude that the defendant seeking qualified immunity violated clearly established law." (internal quotation marks omitted)). "[O]ur task is to consider whether, as a matter of law, the factual allegations and all reasonable inferences therefrom are insufficient to establish the required showing of personal involvement." Johnson, 239 F.3d at 255.
(e) Pleading requirements. The parties dispute the extent to which a plaintiff must plead specific facts to overcome a defense of qualified immunity at the motion-to-dismiss stage. Although most of the Defendants disclaim requiring the Plaintiff to meet a heightened pleading standard, beyond the requirement of Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that a complaint "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," see Fed.R.Civ.P. 8(a)(2), all the Defendants

make the somewhat similar argument that "conclusory allegations" will not suffice to withstand a qualified immunity defense, especially with respect to allegations of supervisory involvement, racial and/or religious animus, or conspiracy. BOP Defendant Cooksey explicitly urges us to adopt a heightened pleading standard in Bivens actions.
The pleading standard to overcome a qualified immunity defense appears to be an unsettled question in this Circuit. Four Supreme Court opinions provide guidance, although the guidance they provide is not readily harmonized. In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Court rejected a heightened pleading standard in a civil rights action alleging municipal liability, applying instead only the traditional requirement of "`a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 168, 113 S.Ct. 1160 (quoting Fed.R.Civ.P. 8(a)(2)). In reaching this conclusion, the Court distinguished between municipalities' immunity from respondeat superior liability and government officials' qualified immunity from suit. See id. at 166, 113 S.Ct. 1160. Arguably, this distinction could permit requiring a plaintiff to satisfy a heightened pleading standard of a cause of action in order to overcome a government official's defense of qualified immunity. However, the Court's opinion in Leatherman suggests that heightened pleading standards are never permissible except when authorized by Rule 9(b) of the Federal Rules of Civil Procedure. See id. at 168, 113 S.Ct. 1160 (noting that Rule 9(b) "do[es] not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983"). Indeed, the Court observed that, in the absence of amendment to Rules 8 or 9, the courts could rely only on control of discovery and summary judgment to "weed out unmeritorious claims." Id. at 168-69.
A more pertinent precedent is Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), which concerned the adequacy of pleading a Title VII complaint. The Court rejected what had been this Circuit's 154 rule requiring employment *154 discrimination plaintiffs to allege facts constituting a prima facie case of employment discrimination. See id. at 515, 122 S.Ct. 992. The Court again emphasized that the judicially imposed heightened pleading standard conflicted with Rule 8(a) and that a heightened pleading standard could be attained only "by the process of amending the Federal Rules, and not by judicial interpretation." Id. (internal quotation marks omitted).
Leatherman and especially Swierkiewicz0907with their insistence that courts cannot impose heightened pleading standards in the absence of statutory authorization0907 indicate that a court cannot impose a heightened pleading standard in Bivens (or other civil rights) actions against individual officials, a precept we have heeded since the Supreme Court's decision in Swierkiewicz. See, e.g., Phillip v. University of Rochester, 316 F.3d 291, 298-99 (2d Cir.2003) (general allegation of racial animus); Phelps v. Kapnolas, 308 F.3d 180, 186-87 (2d Cir.2002) (general allegation of knowledge).
However, a third Supreme Court case, decided between Leatherman and Swierkiewicz, cryptically suggests that, in some circumstances, a court could require "specific, nonconclusory factual allegations" at the pleading stage in claims against government officials. In Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), the D.C. Circuit had recognized a heightened burden of proof in cases against government officials alleging unconstitutional motive. See id. at 582-83, 118 S.Ct. 1584. The Court observed that the D.C. Circuit had adopted the heightened standard in an attempt "to address a potentially serious problem: Because an official's state of mind is easy to allege and hard to disprove, insubstantial claims that turn on improper intent may be less amenable to summary disposition than other types of claims against government officials." Id. at 584-85, 118 S.Ct. 1584 (internal quotation marks omitted). Although the Supreme Court recognized this problem, it rejected the heightened standard of proof.
The Court held that the D.C. Circuit's rule was not compelled by either the holding or the reasoning of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In Harlow, the Court had stated that "bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery." Id. at 817-18, 102 S.Ct. 2727. However, as the Court explained in Crawford-El, this statement merely concerned a plaintiff's attempt to overcome a legitimate qualified immunity defense by alleging malicious intent; this holding was irrelevant to a plaintiff's burden in alleging a constitutional violation of which improper motive is an essential element. See 523 U.S. at 588-89, 118 S.Ct. 1584. Neither did Harlow's reasoning require a heightened burden of proof: the Court observed that there existed other mechanisms for protecting

officials from unmeritorious actions, such as the requirement that the officials' conduct violate clearly established law, the need to prove causation, and procedural protections. See id. at 590-93.
The Court acknowledged that the usual pleading standard would sometimes not preclude at least limited discovery to amplify general allegations. The Court observed that Harlow only "sought to protect officials from the costs of `broad-reaching' discovery" and that limited discovery is sometimes necessary to adjudicate a qualified immunity defense. See id. at 593 n. 14, 102 S.Ct. 2727. The Court concluded by observing that "broad discretion" 155 in the discovery process is more "useful and equitable" than categorical *155 rules such as that of the D.C. Circuit. See id. at 601.
What Crawford-El gave civil rights plaintiffs with respect to traditional notice pleading, however, it might have modified by permitting some post-complaint detailing of a claim. In discussing the procedural mechanisms available to judges in civil rights actions, at least those alleging wrongful motive, the Court observed that, before permitting discovery, a court could require a plaintiff to "put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment." Id. at 598, 118 S.Ct. 1584 (internal quotation marks omitted). Perhaps significantly, the Court quoted the phrase "put forward specific, nonconclusory factual allegations" from Justice Kennedy's concurring opinion in Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), in which he had explicitly advocated a heightened pleading standard for civil rights actions requiring a showing of malice. See id. at 235-36, 111 S.Ct. 1789 ("There is tension between the rationale of Harlow and the requirement of malice, and it seems to me that the heightened pleading requirement is the most workable means to resolve it.").
The First Circuit has remarked that "[w]hatever window of opportunity [it] thought remained open after CrawfordEl has been slammed shut by the Supreme Court's subsequent decision in Swierkiewicz." Educadores Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 65 (1st Cir.2004). Most Circuits appear to have rejected a heightened pleading standard. See Doe v. Cassel, 403 F.3d 986, 988-89 & n. 3 (8th Cir.2005) (collecting cases); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir.2002) (same).
Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). If we were to consider only a narrow view of the holding of that decision, we would not make any adjustment in our view of the applicable pleading standard. Bell Atlantic held that an allegation of parallel conduct by competitors, without more, does not suffice to plead an antitrust violation under 15 U.S.C. § 1. See id. at 1961. The Court required, in addition, "enough factual matter (taken as true) to suggest that an agreement was made." Id. at 1965. However, the Court's explanation for its holding indicated that it intended to make some alteration in the regime of pure notice pleading that had prevailed in the federal courts ever since Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), was decided half a century ago. The nature and extent of that alteration is not clear because the Court's explanation contains several, not entirely consistent, signals, which we consider (not necessarily in the order set forth in the Court's opinion).
Some of these signals point toward a new and heightened pleading standard. First, the Court explicitly disavowed the oft-quoted statement in Conley of "`the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Bell Atlantic, 127 S.Ct. at 1968 (quoting Conley, 355 U.S. at 45-46, 78 S.Ct. 99 ). Bell Atlantic asserted that this "no set of facts" language "has earned its retirement" and "is best forgotten." Id. at 1969.
156 *156 Second, the Court, using a variety of phrases, indicated that more than notice of a claim is needed to allege a section 1 violation based on competitors' parallel conduct. For example, the Court required "enough factual matter (taken as true) to suggest that an agreement was made," id. at 1965; "enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement," id.; "facts that are suggestive enough to render a § 1 conspiracy plausible," id.; "allegations of parallel conduct . . . placed in a context that raises a suggestion of a preceding agreement," id. at 1966; "allegations plausibly suggesting (not merely consistent with) agreement," id.; a "plain statement" (as specified in Rule 8(a)(2)) with "enough heft" to show entitlement to relief, id.; and "enough facts to state a claim to relief that is plausible on its face," id. at 1974, and also stated that the line "between the factually neutral and the factually suggestive . . . must be crossed to enter the realm of

plausible liability," id. at 1966 n. 5, and that "the complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible," id. at 1973 n. 14.
Third, the Court discounted the ability of "`careful case management,'" "to weed[] out early in the discovery process" "a claim just shy of a plausible entitlement." Id. at 1967 (quoting id. at 1975 (Stevens, J., dissenting)).
Fourth, the Court encapsulated its various formulations of what is required into what it labeled "the plausibility standard." Id. at 1968. Indeed, the Court used the word "plausibility" or an adjectival or adverbial form of the word fifteen times (not counting quotations).
On the other hand, some of the Court's linguistic signals point away from a heightened pleading standard and suggest that whatever the Court is requiring in Bell Atlantic might be limited to, or at least applied most rigorously in, the context of either all section 1 allegations or perhaps only those section 1 allegations relying on competitors' parallel conduct. First, the Court explicitly disclaimed that it was "requir[ing] heightened fact pleading of specifics," id. at 1974, and emphasized the continued viability of Swierkiewicz, see id. at 1973-74, which had rejected a heightened pleading standard. See also Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Bell Atlantic's citation of Swierkiewicz).
Second, although the Court faulted the plaintiffs' complaint for alleging "merely legal conclusions" of conspiracy, Bell Atlantic, 127 S.Ct. at 1970, it explicitly noted with approval Form 9 of the Federal Civil Rules, Complaint for Negligence, which, with respect to the ground of liability, alleges only that the defendant "negligently drove a motor vehicle against plaintiff who was then crossing [an identified] highway," Fed.R.Civ.P.App. Form 9. See Bell Atlantic, 127 S.Ct. at 1970 n. 10. The Court noted that Form 9 specifies the particular highway the plaintiff was crossing and the date and time of the accident, see id., but took no notice of the total lack of an allegation of the respects in which the defendant is alleged to have been negligent, i.e., driving too fast, crossing the center line, running a traffic light or stop sign, or even generally failing to maintain a proper lookout. The adequacy of a generalized allegation of negligence in the approved Form 9 seems to weigh heavily against reading Bell Atlantic to condemn the insufficiency of all legal conclusions in a pleading, as long as the defendant is given notice of the date, time, and place where the legally vulnerable conduct occurred.
157 Third, the Court placed heavy emphasis on the "sprawling, costly, and hugely time-consuming" *157 discovery that would ensue in permitting a bare allegation of an antitrust conspiracy to survive a motion to dismiss, see id. at 1967 n. 6, and expressed concern that such discovery "will push cost-conscious defendants to settle even anemic cases," id. at 1967. These concerns provide some basis for believing that whatever adjustment in pleading standards results from Bell Atlantic is limited to cases where massive discovery is likely to create unacceptable settlement pressures.
Fourth, although the Court expressed doubts about the ability of district courts to "weed[] out" through case management in the discovery process "a claim just shy of a plausible entitlement to relief," id. (emphasis added), the Court did not disclaim its prior statement that "federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later." Leatherman, 507 U.S. at 168-69, 113 S.Ct. 1160 (emphasis added).[5] Leaving Leatherman and Crawford-El undisturbed (compared to the explicit disavowal of the "no set of facts" language of Conley) further suggests that Bell Atlantic, or at least its full force, is limited to the antitrust context.
Fifth, just two weeks after issuing its opinion in Bell Atlantic, the Court cited it for the traditional proposition that "[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]"; the statement need only "`give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 127 S.Ct. at 2200 (quoting Bell Atlantic's quotation from Conley) (omission in original).
These conflicting signals create some uncertainty as to the intended scope of the Court's decision.[6] We are reluctant to assume that all of the language of Bell Atlantic applies only to section 1 allegations based on competitors' parallel conduct or, slightly more broadly, only to antitrust cases.[7] Some of the language relating generally to Rule 8 pleading standards seems to be so integral to the rationale of the Court's parallel conduct holding as to constitute a necessary part of that holding. See Pierre N. Leval, Judging under the Constitution: Dicta about Dicta, 81 N.Y.U. L.Rev. 1249, 1257 (2006) ("The distinction [between holding and dictum] requires

recognition of what was the question before the court upon which the judgment depended, how (and by what reasoning) the court resolved the question, and what role, if any, the proposition played in the reasoning that led to the judgment.").
After careful consideration of the Court's opinion and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a 158 flexible "plausibility standard," which obliges a pleader to amplify *158 a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. We will say more about this approach as we apply it below to some of the Plaintiff's specific allegations.
Notwithstanding what we understand to be the essential message of Bell Atlantic, we acknowledge that we see some merit in the argument in favor of a heightened pleading standard in this case for two reasons. First, qualified immunity is a privilege that is essential to the ability of government officials to carry out their public roles effectively without fear of undue harassment by litigation. In this respect, the factors favoring a heightened pleading standard to overcome a qualified immunity defense are distinguishable from the purely prudential and policy-driven factors that the Supreme Court found inadequate to justify a heightened pleading standard in the Title VII context. See Swierkiewicz, 534 U.S. at 514-15, 122 S.Ct. 992.
Second, some of the allegations in the Plaintiff's complaint, although not entirely conclusory, suggest that some of the Plaintiff's claims are based not on facts supporting the claim but, rather, on generalized allegations of supervisory involvement. Therefore, allowing some of the Plaintiff's claims to survive a motion to dismiss might facilitate the very type of broad-ranging discovery and litigation burdens that the qualified immunity privilege was intended to prevent.
Nevertheless, although Swierkiewicz was decided in the context of Title VII, we are mindful of the Supreme Court's statement in that decision that heightened pleading requirements "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Id. at 515, 122 S.Ct. 992 (internal quotation marks omitted). Absent any indication from the Supreme Court that qualified immunity might warrant an exception to this general approach and the explicit disclaimer of a heightened pleading standard in Bell Atlantic, reinforced by the reversal of the Tenth Circuit's use of a heightened pleading standard in Erickson, we conclude that a heightened pleading rule may not be imposed. However, in order to survive a motion to dismiss under the plausibility standard of Bell Atlantic, a conclusory allegation concerning some elements of a plaintiff's claims might need to be fleshed out by a plaintiff's response to a defendant's motion for a more definite statement. See Fed.R.Civ.P. 12(e). In addition, even though a complaint survives a motion to dismiss, a district court, while mindful of the need to vindicate the purpose of the qualified immunity defense by dismissing non-meritorious claims against public officials at an early stage of litigation, may nonetheless consider exercising its discretion to permit some limited and tightly controlled reciprocal discovery so that a defendant may probe for amplification of a plaintiff's claims and a plaintiff may probe such matters as a defendant's knowledge of relevant facts and personal involvement in challenged conduct. In a case such as this where some of the defendants are current or former senior officials of the Government, against whom broad-ranging allegations of knowledge and personal involvement are easily made, a district court might wish to structure such limited discovery by examining written responses to interrogatories and requests to admit before authorizing depositions, and by deferring discovery directed to high-level officials until discovery of front-line officials has been completed and has demonstrated the need for discovery higher up the ranks. If discovery directed to current or former senior officials becomes warranted, a district court might also consider making all such discovery subject to prior court approval.
159 *159 We note that Rule 8(a)'s liberal pleading requirement, when applied mechanically without countervailing discovery safeguards, threatens to create a dilemma between adhering to the Federal Rules and abiding by the principle that qualified immunity is an immunity from suit as well as from liability. Therefore, we emphasize that, as the claims surviving this ruling are litigated on remand, the District Court not only may, but "must exercise its discretion in a way that protects the substance of the qualified immunity defense . . . so that officials [or former officials] are not subjected to unnecessary and burdensome discovery or trial proceedings." Crawford-El, 523 U.S. at 597-98, 118 S.Ct. 1584 (emphasis added). In addition, the District Court should provide ample opportunity for the Defendants to seek summary judgment if, after carefully targeted discovery, the evidence indicates that certain of the Defendants were not sufficiently involved in the alleged violations to support a finding of personal

liability, or that no constitutional violation took place. See Harlow, 457 U.S. at 821, 102 S.Ct. 2727 (Brennan, J., concurring) ("[S]ummary judgment will also be readily available whenever the plaintiff cannot prove, as a threshold matter, that a violation of his constitutional rights actually occurred."). We give these matters additional consideration below with respect to particular claims.
(f) The post-9/11 context. Several Defendants contend that even if the Plaintiff's complaint would survive a motion to dismiss in the face of a qualified immunity defense under normal circumstances, the post-9/11 context requires a different outcome. This argument is advanced on three fronts. First, some Defendants contend that the Government was entitled to take certain actions that might not have been lawful before 9/11 because the Government's interests assumed special weight in the post-9/11 context. Second, some Defendants contend that, even if the law was clearly established as to the existence of a right claimed to have been violated, it was not clearly established in the extraordinary circumstances of the 9/11 attack and its aftermath. Third, some Defendants contend that the post-9/11 context renders their actions objectively reasonable, an argument we do not reach in view of our disposition of their second contention.
We fully recognize the gravity of the situation that confronted investigative officials of the United States as a consequence of the 9/11 attack. We also recognize that some forms of governmental action are permitted in emergency situations that would exceed constitutional limits in normal times. See Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 425-26, 54 S.Ct. 231, 78 L.Ed. 413 (1934) ("While emergency does not create power, emergency may furnish the occasion for the exercise of power."). But most of the rights that the Plaintiff contends were violated do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement, the right to be free from the use of excessive force, and the right not to be subjected to ethnic or religious discrimination. The strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.
With some rights, for example, the right to be free from unreasonable searches, the existence of exigent circumstances might justify governmental action that would not otherwise be permitted. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (exigent circumstances permitted warrantless 160 entry into home). But, as we discuss below, see Part VI, the exigent circumstances of the *160 post-9/11 context do not diminish the Plaintiff's right not to be needlessly harassed and mistreated in the confines of a prison cell by repeated strip and body-cavity searches. This and other rights, such as the right to be free from use of excessive force and not to be subjected to ethnic or religious discrimination, were all clearly established prior to 9/11, and they remained clearly established even in the aftermath of that horrific event. To whatever extent exigent circumstances might affect the lawfulness of the Defendants' actions or might have justified an objectively reasonable belief that their actions did not violate clearly established law, we consider the argument in connection with a particular claim.
With these general principles in mind, we turn to the Plaintiff's specific claims.
II. Procedural Due Process
The Plaintiff alleges that Ashcroft and Mueller, the FBI Defendants, the BOP Defendants, and Hasty adopted a policy under which he was deprived of a liberty interest without any of the procedural protections required by due process of law. His allegation of the deprivation of a liberty interest, even while lawfully confined without bail on criminal charges, is based on his placement in solitary confinement, where he was subjected to needlessly harsh restrictions that were atypical and significant when compared to those in the rest of the MDC population. The Defendants contend that (1) the Plaintiff did not allege that the confinement was punitive; (2) no procedural due process right was violated because the Plaintiff did not have a liberty interest in avoiding extended confinement in the ADMAX SHU and, even if he did, he received all the process that was due; (3) even if the Plaintiff's procedural due process right was violated, the contours of this right were not clearly established at the time of the events in question; (4) the Defendants' actions were objectively reasonable in the post-9/11 context; and (5) the Plaintiff has failed to allege personal involvement.
We are required by the Supreme Court's decision in Saucier to assess these arguments within a two-part framework, asking first whether the alleged facts show a violation of a constitutional right, see Saucier, 533 U.S.

at 201, 121 S.Ct. 2151, and, if so, "whether the right was clearly established . . . in light of the specific context of the case," see id. The first, second, and fifth of the Defendants' arguments bear on the initial issue of whether a violation has been alleged; the third argument0907whether the right was clearly established is 0907 precisely the second issue under Saucier; and the fourth argument is often a further component of a qualified immunity defense because even if the law was clearly established, it might have been objectively reasonable, on the facts of a particular case, for a defendant to believe that the actions taken did not violate that established law, see Johnson, 239 F.3d at 250.
(a) Has a Violation of a Procedural Due Process Right Been Adequately Pleaded?
In assessing the adequacy of the Plaintiff's pleading of a procedural due process violation we first consider the basic question of whether the Plaintiff has pleaded the existence of a liberty interest and entitlement to procedures that were not provided and then consider the Defendants' arguments that punitive intent and personal involvement were not adequately pleaded.
(i) The Plaintiff's procedural due process right. In concluding that the Plaintiff had a protected liberty interest, 161 Judge Gleeson relied on this Court's decision *161 in Tellier v. Fields, 280 F.3d 69 (2d Cir.2000). See Dist. Ct. op.
at *17-*18. In Tellier, a federal inmate allegedly was placed in administrative detention in the SHU for more than 500 days without being informed of the reasons for his placement or receiving any hearings. See 280 F.3d at 74. The regulations governing administrative segregation, 28 C.F.R. § 541.22, entitle inmates to "an administrative detention order detailing the reasons for placing an inmate in administrative detention. provided institutional security is not compromised thereby." 28 C.F.R. § 541.22(b). Moreover, the regulations require a Segregation Review Officer to "hold a hearing and formally review the status of each inmate who spends seven continuous days in administrative detention, and thereafter . . . hold a hearing and review these cases formally at least every 30 days." Id. § 541.22(c)(1). The regulations specifically provide that administrative detention "is to be used only for short periods of time except . . . where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns." Id.
In assessing whether a prisoner had a protected liberty interest in avoiding administrative segregation, Tellier looked to Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), in which the Supreme Court held that state-created liberty interests of prisoners were limited to freedom from restraint that "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483-84, 115 S.Ct. 2293. Since Sandin, the rule in this Circuit has been that a prisoner has a protected liberty interest "`only if the deprivation . . . is atypical and significant and the state has created the liberty interest by statute or regulation.'" Tellier, 280 F.3d at 80 (quoting Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997)) (omission in original); see also Palmer v. Richards, 364 F.3d 60, 64 & n. 2 (2d Cir.2004).
Numerous cases in this Circuit have discussed the "atypical and significant hardship" prong of Sandin. Relevant factors include both the conditions of segregation and its duration. See Palmer, 364 F.3d at 64. Segregation of longer than 305 days in standard SHU conditions is sufficiently atypical to require procedural due process protection under Sandin. See id. at 65 (citing Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000)). When confinement is of an intermediate duration0907between 101 and 305 days 0907"`development of a detailed record' of the conditions of the confinement relative to ordinary prison conditions is required." Id. at 64-65 (quoting Colon, 215 F.3d at 232).
Applying these standards, Tellier first observed that the prisoner had alleged confinement of more than 500 days "under conditions that differ markedly from those in the general population," finding this sufficient to allege "atypical and significant" hardships. 280 F.3d at 80. Turning to the language of the regulations, the Court agreed that because the initial decision to place a prisoner in administrative detention is a discretionary one, the plaintiff did not have a "protected liberty interest that is violated when the Warden removes him or her from the general population." Id. at 82. However, the Court found, the regulations constrain the warden's discretion in maintaining a prisoner in detention and the procedures "are designed to ensure that a prisoner is kept in SHU for no longer than is necessary." Id. at 82-83. Accordingly, the Court concluded that section 541.22 "creates a protectable liberty interest when an official's failure to adhere to the [regulation] results in an atypical, significant deprivation." Id. at 83 (internal quotation marks omitted).
162

*162 Relying on Tellier, Judge Gleeson concluded that the Plaintiff had a clearly established protectable liberty interest in avoiding continued detention in the ADMAX SHU. See Dist. Ct. op. at *18. On appeal, the Defendants contend that Tellier is no longer good law in light of the Supreme Court's recent opinion in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005). In Wilkinson, the Supreme Court considered Sandin's application to segregation in Ohio's Supermax facility. Inmates in the Supermax facility were detained in solitary confinement indefinitely, they remained in their cells 23 hours a day, the lights were turned on constantly, they could not go outside for recreation, and they were limited to non-contact visits. See id. at 214-15, 125 S.Ct. 2384. The Court confirmed Sandin's holding that "a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin," id. at 222, 125 S.Ct. 2384, but observed that "the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life," id. at 223, 125 S.Ct. 2384 (internal quotation marks omitted). The Court recognized that the courts of appeals had struggled to identify a baseline for determining what constitutes an atypical and significant hardship, but it concluded that confinement in the Supermax facility "imposes an atypical and significant hardship under any plausible baseline." Id. Having found that the prisoner had a protected liberty interest, the Court concluded that Ohio's "informal, nonadversary procedures" were sufficient to satisfy due process requirements. Id. at 228-29, 125 S.Ct. 2384.
The Defendants argue that Wilkinson abrogates Tellier or that it at least renders the relevant standard unclear because it instructs courts to consider the nature of the conditions, not the requirements of the regulations. We disagree for two reasons. First, while Wilkinson instructs courts to focus on the nature of the conditions, it nonetheless explains that the "liberty interest in avoiding particular conditions of confinement . . . arise[s] from state policies or regulations." Id. at 222, 125 S.Ct. 2384. Following Tellier, Judge Gleeson looked to the duration and conditions of confinement, as instructed by Wilkinson. See Dist. Ct. op. at *18.
Second, and more significantly, for at least half (if not all) of the Plaintiff's confinement in the ADMAX SHU, he 163 was a pretrial detainee, not a convicted prisoner.[8]*163 This Court has said that Sandin does not apply to pretrial
detainees and that, accordingly, pretrial detainees need not show that an imposed restraint imposes atypical and significant hardships to state deprivation of a liberty interest protected by procedural due process. See Benjamin v. Fraser, 264 F.3d 175, 188-89 (2d Cir.2001) ("Benjamin I"). In Benjamin I, this Court affirmed the district court's ruling that the imposition of painful physical restraints during the movement of pretrial detainees required "reasonable after-the-fact procedural protections to ensure that such restrictions on liberty [would] be terminated reasonably soon if they [had] no justification." Id. at 188.
In sum, Wilkinson does not affect the validity of Judge Gleeson's ruling that the Plaintiff had a protected liberty interest because (1) he considered the Plaintiff's allegations of atypical and significant hardships and (2) the Wilkinson and Sandin analysis does not apply to the interval of the Plaintiff's pretrial detention. Under this Court's case law, the Plaintiff's confinement of more than six months fell in the intermediate range, thereby requiring inquiry into the conditions of his confinement, which he sufficiently alleges to have been severe. Even under Wilkinson, the conditions under which the Plaintiff alleges that he was confined 0907solitary confinement, repeated strip and body-cavity searches, beatings, exposure to excessive heat and cold, very limited exercise, and almost constant lighting as 0907 well as the initially indefinite duration of confinement could be found to constitute atypical and significant hardships. See 545 U.S. at 223-24, 125 S.Ct. 2384. The Plaintiff has alleged a protected liberty interest in avoiding more than six months' detention in the ADMAX SHU, especially in light of his status as a pretrial detainee.
The Defendants also dispute the violation of a procedural due process right by arguing that, even if the Plaintiff had a protected liberty interest in avoiding extended detention in the ADMAX SHU, he received all the process that was due by virtue of the FBI's review. This argument is unavailing at this preliminary stage of the litigation. In Wilkinson, the Supreme Court applied the familiar balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether the plaintiff received adequate procedural protections. See 545 U.S. at 224-25, 125 S.Ct. 2384. Under the second prong of this test, the Court observed that inmates received "notice of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal," stating that "these are among the most important procedural mechanisms for purposes of avoiding erroneous

deprivations." Id. at 225-26, 125 S.Ct. 2384. After weighing all the relevant factors, the Court found that "[w]here the inquiry draws more on the experience of prison administrators, and where the State's interest implicates the safety of other inmates and prison personnel, . . . informal, nonadversary procedures" were sufficient. Id. at 228-29, 125 S.Ct. 2384. In the pending case, the Plaintiff alleges that he did not even receive notice of the factual grounds on which he was being detained in the ADMAX SHU nor did he have any opportunity for rebuttal.
We recognize that in the post-9/11 context the first Mathews factor0907the gravity of the Government's interest is 0907 appropriately accorded more weight than would otherwise be warranted. It might be that the combination of (1) 164 the Plaintiff's interest *164 in avoiding confinement under harsh conditions, (2) the risk of an erroneous determination of the need for such confinement, and (3) accorded added weight in the post-9/11 context, would, on balance, lead to the conclusion that the Government need not have given the Plaintiff notice and a chance for rebuttal before placing him in the ADMAX SHU. However, once it became clear that the Plaintiff was going to be confined in the ADMAX SHU for an extended period of time, some process was required. We cannot say in the absence of a developed factual record whether the FBI's clearance procedure comported with the requirements of the Due Process Clause as interpreted in Mathews and subsequent cases. The sparse record thus far developed provides no indication as to what security-related steps the Defendants were taking that might justify prolonged confinement. Nor does that record indicate in what respect providing the Plaintiff with some notice of the basis for his separation in the ADMAX SHU and affording some opportunity for rebuttal would have impaired national security interests or legitimate penological interests of the Government. The Government has not as yet had an opportunity to refute the Plaintiff's allegation that there was no evidence connecting him to terrorism. Accordingly, we cannot say whether the Government's national security interests rendered the clearance procedure sufficient to satisfy procedural due process requirements or whether more traditional procedural protections were required. Nevertheless, because we are required at this stage of the litigation to accept all of the Plaintiff's allegations as true and draw all reasonable inferences in his favor, we cannot say that the Plaintiff has failed to plead a viable claim under the procedural component of the Due Process Clause. Judge Gleeson dismissed the Plaintiff's procedural due process claim with respect to the initial confinement in the ADMAX SHU, Dist. Ct. op. at *17 n. 18, but properly ruled that the Plaintiff had stated a procedural due process claim with respect to his continued confinement, see id. at *18-*19.
(ii) Punitive intent. Ashcroft, Mueller, and Hasty, citing Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), contend that the Plaintiff has not stated a claim that the confinement in the ADMAX SHU violated his procedural due process rights because he has not alleged that the confinement was punitive. Preliminarily, we note that the complaint alleges that the Defendants designed a policy under which the Plaintiff was "arbitrarily designated to be confined in the ADMAX SHU" and that "[k]eeping Plaintiff[] in isolation . . . amounted to the willful, malicious, and unnecessary infliction of pain and suffering." This is sufficient to allege that the confinement was punitive in nature.
More fundamentally, however, we deem unsupportable the Defendants' premise that the Plaintiff's procedural due process claim requires an allegation of punitive intent. Defendants Ashcroft and Mueller cite Wolfish, 441 U.S. at 535, 99 S.Ct. 1861, for the proposition that "in evaluating the constitutionality of conditions or restrictions of pretrial detention, the proper inquiry under the Due Process Clause is whether the conditions `amount to punishment of the detainee.'" However, Wolfish did not involve a claim that inadequate procedures had been used to impose challenged conditions of confinement. The claim there was that the challenged conditions of confinement, being punitive, could not be imposed on pretrial detainees at all because they had not been convicted. Although the Court did not consider the challenged conditions punitive, it ruled that "under the Due 165 Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance *165 with due process of law." Id. This ruling implements the substantive component of the Due Process Clause.[9]
By contrast, the relevant line of authority for the Plaintiff's procedural due process claim begins with Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and continues through Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), and Sandin, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418. Wolff outlined fairly extensive procedures that must be observed before a prisoner's liberty interest in retaining good time credits could be impaired because of disciplinary violations. 418 U.S. at 563-72, 94 S.Ct. 2963. Helms required only notice of charges and an opportunity to rebut in order to place a prisoner in administrative segregation pending an investigation of misconduct charges. 459 U.S. at 476, 103 S.Ct. 864. Sandin modified

Helms by making the existence of a prisoner's liberty interest turn primarily on the atypical nature of the challenged conditions of confinement, 515 U.S. at 483-87, 115 S.Ct. 2293, but did not alter the basic requirement that where a prisoner's liberty interest exists, its impairment requires some procedural protections.
The Plaintiff's liberty interest, based primarily on a federal regulation, is entitled to some procedural protection regardless of punitive intent. To the extent that the interest derives directly from the Due Process Clause (and hence requires procedural protection only when punishment is imposed, see Wolfish, 441 U.S. at 535, 99 S.Ct. 1861), the harsh conditions set forth in the complaint adequately meet the criteria for punishment, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), whether or not such conditions were imposed with punitive intent.
(iii) Lack of personal involvement. Defendants Ashcroft and Mueller contend that the Plaintiff has not adequately alleged their personal involvement in the denial of procedural due process because the continued detention decision was made by FBI subordinates. Applying the standards applicable to personal involvement outlined above, we reject this claim at this stage of the litigation. Ashcroft and Mueller are alleged to have condoned the policy under which the Plaintiff was held in harsh conditions of confinement until "cleared" by the FBI. Since the complaint adequately alleges, for purposes of a motion to dismiss, that procedural due process required some procedures beyond FBI clearance, the allegation of condoning the policy of holding the Plaintiff in the ADMAX SHU until cleared suffices, at the pleading stage, to defeat dismissal for lack of personal involvement.
At the other end of the leadership chain, Defendant Hasty asserts his lack of personal involvement because the 166 continued detention decision was made far above his level of responsibility. But this defense *166 also cannot
prevail at this stage of the litigation. Cf. Anthony v. City of New York, 339 F.3d 129, 138 (2d Cir.2003) ("Plausible instructions from a superior . . . support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists (e.g.[,] . . . exigent circumstances)." (internal quotation marks omitted)). Hasty is alleged to have known of the continued detention in the ADMAX SHU and the absence of procedural protections for the Plaintiff. Whether his conduct as a subordinate was objectively reasonable under all the circumstances is an issue distinct from the adequacy of the pleading of personal involvement.
Between these extremes in the official hierarchy, the lack of adequate allegations of personal knowledge of, or involvement in, the Plaintiff's continued detention is also asserted by the FBI Defendants and the BOP Defendants. However, the complaint at least implicitly alleges the knowledge of the FBI Defendants by stating that they "failed to approve post-September 11 detainees' release to general population." With respect to the BOP Defendants, the complaint alleges that BOP Defendant Cooksey "directed that all detainees `of high interest' be confined in the most restrictive conditions possible until cleared by the FBI," that BOP Defendant Sawyer approved this policy, and that BOP Defendant Rardin, along with others, designed the policy of arbitrary confinement in the ADMAX SHU. The FBI Defendants also dispute their personal involvement in a procedural due process violation by arguing that they could not reasonably be expected to know about the BOP regulations. However, some factual development of this claim would have to precede its determination. Moreover, even absent the FBI Defendants' knowledge of the BOP regulation, the complaint can support the inference that the FBI Defendants understood that their alleged role in the clearance procedure was linked to a detainee's release to the general population. This suffices to overcome the defense of no personal involvement at this stage of the litigation.
It is arguable that, under the plausibility standard of Bell Atlantic, some subsidiary facts must be alleged to plead adequately that Ashcroft and Mueller condoned the Plaintiff's continued confinement in the ADMAX SHU, that Hasty had knowledge of that confinement, or that the mid-level Defendants knew the relationship between their clearance procedure and the Plaintiff's release to the general population. However, all of the Plaintiff's allegations respecting the personal involvement of these Defendants are entirely plausible, without allegations of additional subsidiary facts. This is clearly so with respect to Hasty and the mid-level Defendants. Even as to Ashcroft and Mueller, it is plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies. Sustaining the adequacy of a pleading of personal involvement in these circumstances runs no risk that every

prisoner complaining of a denial of rights while in federal custody anywhere in the United States can survive a motion to dismiss simply by alleging that the Attorney General knew of or condoned the alleged violation. And, like the Form 9 complaint approved in Bell Atlantic, Iqbal's complaint informs all of the Defendants of the time frame and place of the alleged violations.
167 *167 (b) Was the Plaintiff's Right to Procedural Due Process Clearly Established?
Although we conclude that the Plaintiff has adequately pleaded a violation of a procedural due process right, we also conclude that in this case "officers of reasonable competence could [have] disagree[d]," Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), whether their conduct violated a clearly established procedural due process right. Accordingly, the Plaintiff's right to additional procedures was not clearly established with the level of specificity that is required to defeat a qualified immunity defense. See Brosseau v. Haugen, 543 U.S. 194, 199-200, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004).
Several factors combine to create this lack of clarity in prior case law. First, some uncertainty exists in determining when administrative segregation procedures are required even in the ordinary criminal context. Our case law would require an officer in the Defendants' situation to consider various factors including the length of the Plaintiff's confinement, the extent to which the conditions of confinement were atypical, the text of relevant BOP regulations, and the Plaintiff's status as a pretrial detainee. See, e.g., Tellier, 280 F.3d at 79-83. As noted above, no single factor is dispositive in this case, which concerns administrative segregation of approximately six months. Although the harshness of the conditions alleged weigh in favor of requiring procedural protections, an officer could reasonably note that the Plaintiff's six-month continued confinement was comparable to the duration of confinements in cases that we characterized in Tellier as involving "relatively brief periods of confinement." See id. at 85.
Second, uncertainty in existing case law is heightened by the fact that, even on the facts alleged in the complaint, which specified that the "of high interest" designation pertained to the Government's post-9/11 terrorism investigation, the investigation leading to the Plaintiff's separation from the general prison population could be reasonably understood by all of the Defendants to relate to matters of national security, rather than an ordinary criminal investigation. Prior to the instant case, neither the Supreme Court nor our Court had considered whether the Due Process Clause requires officials to provide ordinary administrative segregation hearings to persons detained under special conditions of confinement until cleared of connection with activities threatening national security. Cf. Forsyth, 472 U.S. at 534-35, 105 S.Ct. 2806 (granting Attorney General qualified immunity for warrantless wiretapping for national security purposes despite prohibitions of warrantless wiretapping in criminal context).
Third, the BOP regulation on which the Plaintiff relies itself contains potentially relevant exceptions that undermine certainty as to established requirements of law. "Administrative detention is to be used only for short periods of time except . . . where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns," 28 C.F.R. § 541.22(c)(1) (emphasis added), and inmates are entitled to "an administrative detention order detailing the reasons for placing an inmate in administrative detention . . . provided institutional security is not compromised thereby," id. § 541.22(b) (emphasis added).
In sum, these factors, taken together, would suffice to raise "a legitimate question," Forsyth, 472 U.S. at 535 n. 168 12, 105 S.Ct. 2806, among Government officials as to whether the Due Process Clause required *168
administrative segregation hearings or any procedures other than the FBI's clearance system. See id. ("[W]here there is a legitimate question whether an exception to [a constitutional requirement] exists," failure to abide by the requirement "cannot be said [to have] violate[d] clearly established law." (emphasis added)). Accordingly, we will direct dismissal of the portions of the Plaintiff's complaint alleging violations of procedural due process rights. See Compl. ¶¶ 204-06.
III. Conditions of Confinement
Hasty contends that Judge Gleeson should have dismissed the Plaintiff's conditions of confinement claims against him on the ground of qualified immunity because (1) the Plaintiff did not allege conditions amounting to a violation of substantive due process rights, (2) the Plaintiff failed to allege Hasty's deliberate indifference to the

maintenance of the conditions of confinement, and (3) Hasty's actions were objectively reasonable under the circumstances.[10]
Because the Plaintiff was a pretrial detainee during his detention in the ADMAX SHU, his challenge to the conditions of his confinement arises from the substantive component of the Due Process Clause of the Fifth Amendment and not from the cruel and unusual punishment standards of the Eighth Amendment. See Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir.2003) ("Benjamin II"). Pretrial detainees have not been convicted of a crime and thus "may not be punished in any manner0907neither cruelly and unusually nor otherwise." Id. at 49-50. Courts considering challenges to confinement brought by pretrial detainees must first consider whether the circumstances of the particular confinement render the confinement punitive; since some restraint is necessary to confine a pretrial detainee, not all uncomfortable conditions or restrictions are necessarily punitive. Id. at 50. In Bell v. Wolfish, supra, the seminal case on the substantive due process claims of pretrial detainees, the Supreme Court recognized the following factors as relevant to the determination of whether a condition of confinement is punitive:
"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment0907retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned. . . . "
441 U.S. at 537-38, 99 S.Ct. 1861 (quoting Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554). A court may infer that a condition of confinement is intended as punishment if it is not reasonably related to a legitimate government objective. See id. at 539, 99 S.Ct. 1861.
The complaint alleges, among other things, that MDC staff placed the Plaintiff in solitary confinement, deliberately 169 subjected him to extreme hot and cold *169 temperatures, shackled him every time he left his cell, and
repeatedly subjected him to strip and body-cavity searches, and that these conditions were intended to be, and were in fact, punitive. Applying Wolfish, Judge Gleeson found these allegations sufficient to state a substantive due process claim, observing that whether the conditions were reasonably related to legitimate government objectives could not be determined on a motion to dismiss. See Dist. Ct. op. at *16.
Hasty contends that Judge Gleeson did not properly consider whether the Plaintiff alleged that he was "deprived of the minimal civilized measure of life's necessities" or whether Hasty was deliberately indifferent to the Plaintiff's health or safety. But this Court has never applied those standards in this context. In Benjamin II, we distinguished between challenges to disabilities imposed purposefully on pretrial detainees, which are analyzed under the Wolfish "punitive" inquiry, and pretrial detainees' challenges to prison environmental conditions. See 343 F.3d at 50. Recognizing that the "punitive" standard is neither required nor helpful in the context of environmental conditions, we adopted a modified version of the Eighth Amendment's deliberate indifference standard; we required a showing of deliberate indifference but stated that such indifference could be presumed from an absence of reasonable care. See id. We explicitly rejected analogies to the Eighth Amendment that would require a showing of wantonness on the part of the prison official, see id. at 51, or a showing that the alleged conditions were so inhumane as to constitute cruel and unusual punishment, see id. at 52 (citing Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
The Plaintiff has alleged the purposeful infliction of restraints that were punitive in nature. Accordingly, the District Court need not have considered whether a Defendant was "deliberately indifferent" in inflicting the restraints or whether the restraints constituted cruel and unusual punishment. The right of pretrial detainees to be free from punitive restraints was clearly established at the time of the events in question, and no reasonable officer could have thought that he could punish a pretrial detainee by subjecting him to the practices and conditions alleged by the Plaintiff.
The Plaintiff alleges that Hasty (1) requested that certain officials develop procedures for the ADMAX SHU, (2) knew of the conditions of confinement to which Plaintiff was subjected, (3) approved the strip search policy, and (4) knew or should have known of the practice or custom of beating detainees. Under a notice pleading standard,

reaffirmed in Bell Atlantic and Erickson, these allegations are sufficient to state a claim that Hasty failed to remedy constitutional violations of which he was aware. Moreover, the general allegations of knowledge, which are sufficient under Phelps, cited above, see Part I(e), are bolstered by the allegation that Hasty directed other officers to set up procedures for the ADMAX SHU.
Hasty's final argument is that, even if the Plaintiff has pled the violation of a clearly established right, Hasty's actions were objectively reasonable in the post-9/11 context. He argues that the actions were taken "in the immediate aftermath of September 11th during the course of a large-scale investigation of unprecedented scope in United States history, and Plaintiff was, at that time, considered to be possibly complicit in the terrorist acts." As discussed above, see Part I(f), the post-9/11 context does not lessen the Plaintiff's right, as a pretrial detainee, to be free of punitive conditions of confinement.
170 *170 IV. Excessive Force
The only argument of a Defendant directed to the claim of excessive force is Hasty's contention that the complaint does not allege his personal involvement.
The complaint alleges that Hasty knew or should have known of the MDC practice of beating detainees in the ADMAX SHU, that he knew or should have known of the propensity of his subordinates to beat the Plaintiff unnecessarily, and that he was deliberately indifferent in failing to take action to curtail the beatings. The complaint also alleges that Hasty chose the officers who worked in the ADMAX SHU.
Applying the standards for supervisory liability, outlined above, see Part I(d), the Plaintiff's allegations, on a notice pleading standard, see Part I(e), suffice to state a claim of supervisory liability for the use of excessive force against the Plaintiff. See Phelps, 308 F.3d at 187 n. 6 ("[A] plaintiff's allegation of knowledge is itself a particularized factual allegation, which he will have the opportunity to demonstrate at the appropriate time in the usual ways." (internal quotation marks omitted)). The plausibility standard requires no subsidiary facts at the pleading stage to support an allegation of Hasty's knowledge because it is at least plausible that a warden would know of mistreatment inflicted by those under his command. Whether such knowledge can be proven must await further proceedings.
V. Interference with Right to Counsel
Hasty argues that the Plaintiff did not adequately plead a violation of his Sixth Amendment right to counsel because (1) the complaint does not state that he was charged with criminal (as opposed to immigration) offenses and (2) he failed to plead supervisory involvement. Although, as Judge Gleeson observed, "the complaint could have been more transparent regarding plaintiffs' status as pretrial detainees facing criminal charges," see Dist. Ct. op. at *23, the complaint does refer to interference with the Plaintiff's conversations with his "criminal attorney." This allegation was sufficient to give Hasty "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. As for the issue of supervisory liability, the complaint alleges that Hasty "knew of and condoned the imposition of substantial restrictions on Plaintiff's right to communicate with counsel." The Plaintiff's allegations of knowledge are sufficient to state a claim of supervisory liability, and, for the reasons stated above, satisfy the plausibility standard without an allegation of subsidiary facts.
VI. Unreasonable Searches
Hasty challenges Judge Gleeson's conclusion that he is not entitled to qualified immunity at this stage on the Plaintiff's Fourth Amendment claim on the grounds that (1) the law on prisoners' Fourth Amendment right to be free from strip and body-cavity searches was not clearly established and (2) Judge Gleeson failed to explain why the searches of the Plaintiff did not serve legitimate penological interests.
As to whether the right to be free from strip and body-cavity searches was clearly established, Hasty argues that "the Circuits differ sharply on the existence of prisoner privacy rights under the Fourth Amendment outside of prison cells." This argument ignores the fact that it is this Circuit's law that determines whether a right is clearly established for purposes of a qualified immunity defense, see Tellier, 280 F.3d at 84, and Hasty does not reckon with the long line of Second Circuit cases on strip and body-cavity searches in prisons and jails. See, e.g., Shain

171 v. Ellison, 273 F.3d 56 (2d Cir.2001); Covino v. Patrissi, *171 967 F.2d 73 (2d Cir.1992); Weber v. Dell, 804 F.2d 796 (2d Cir.1986).

Under the Saucier framework for considering a qualified immunity defense, discussed above, we must first decide whether, assuming the Plaintiff's allegations are true, his Fourth Amendment rights were violated, which will require determining the proper standard for his claim.

The Supreme Court has held that visual body-cavity searches of pretrial detainees and prisoners after contact visits are not unreasonable under the Fourth Amendment, even in the absence of probable cause. See Wolfish, 441 U.S. at 558, 99 S.Ct. 1861. Emphasizing that the Fourth Amendment prohibits only unreasonable searches, the Court instructed judges to consider "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. at 558-59, 99 S.Ct. 1861. Because of the potential for smuggling money, drugs, and weapons into prisons, the Court concluded that the practice of strip searching inmates after contact visits was not facially unconstitutional. See id. at 559-60, 99 S.Ct. 1861. Applying Wolfish, this Court has concluded that, while it might be reasonable to strip search a prisoner before initially placing him in administrative detention, it would not be reasonable to conduct a second strip search shortly after the first search if the prisoner was under continuous escort the entire time. See Hodges v. Stanley, 712 F.2d 34, 35 (2d Cir.1983).

Since Wolfish and Hodges, two lines of cases involving strip searches have evolved in this Circuit. In Weber v. Dell, jail officials conducted a visual body-cavity search on a woman arrested on misdemeanor charges. See 804 F.2d at 799. This Court ruled that

the Fourth Amendment precludes prison officials from performing strip/body cavity searches of arrestees charged with misdemeanors or other minor offenses unless the officials have a reasonable suspicion that the arrestee is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.

Id. at 802; see Wachtler v. County of Herkimer, 35 F.3d 77, 81 (2d Cir.1994) (accepting Weber but upholding immunity defense on the basis of reasonable suspicion of contraband); Walsh v. Franco, 849 F.2d 66, 69 (2d Cir.1988) (applying Weber to hold a search unconstitutional).

However, in Covino v. Patrissi, we applied the "legitimate penological interests" standard outlined in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), to assess the constitutionality of a strip search of a pretrial detainee held in a prison with sentenced inmates. The prison in which Covino was detained had a policy of random visual body-cavity searches. Covino, 967 F.2d at 75. Observing that the Supreme Court applied Turner 's "legitimate penological interests" test to all claims that prison regulations violate constitutional rights, see Washington v. Harper, 494 U.S. 210, 223-24, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), we analyzed the random search policy under the four factors of Turner:

(i) whether there is a valid, rational connection between the prison regulation and the legitimate

governmental interest put forward to justify it; (ii) whether there are alternative means of exercising

the right in question that remain open to prison inmates; (iii) whether accommodation of the

asserted constitutional right will have an unreasonable impact upon guards and other inmates,

172

and upon the allocation of prison resources generally; and (iv) whether *172 there are reasonable

alternatives available to the prison authorities.

Covino, 967 F.2d at 78-79 (citing Turner, 482 U.S. at 89-90, 107 S.Ct. 2254). Applying these factors, we concluded that the regulation was rationally related to legitimate security interests, there were no alternative means of exercising the detainee's right that would allow the prison to achieve the same level of effectiveness, the regulation accommodated the privacy rights of the detainee by conducting the search behind closed doors, and there was no "alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests." Id. at 79-80, 107 S.Ct. 2254 (internal quotation marks omitted).

In 2001, we attempted to reconcile these two lines of cases in Shain v. Ellison, supra. Judge Pooler's opinion for the majority observed that the Turner test governs the constitutionality of prison regulations. See Shain, 273 F.3d

at 65. By limiting Covino to prison regulations, she reconciled Covino and the "reasonable suspicion" line of cases beginning with Weber, which all concerned events occurring in jails. See id. at 65-66. In concurrence, Judge Katzmann remarked that this Circuit's precedents required a distinction "either between misdemeanors and felonies or between jails and prisons," but observed that he did not find the distinction persuasive. See id. at 70. Judge Cabranes, in dissent, criticized the jail/prison distinction and argued that Weber's "reasonable suspicion" rule was not good law in light of Turner. Id. at 71-74; see also N.G. v. Connecticut, 382 F.3d 225, 234-35 (2d Cir.2004) (rejecting the Turner standard for strip searches in juvenile detention centers).
On this appeal, the parties assume, as did Judge Gleeson, see Dist. Ct. op. at *26, that the proper inquiry is whether the Plaintiff was housed at a jail or a prison. Finding that the MDC was most like a prison, Judge Gleeson applied the Covino/Turner standard. See id. This was correct. The Plaintiff was confined for an extended period of time in a prison-like environment, and it appears that he was charged with felonies, see 18 U.S.C. §§ 371, 1028. In the environment where the Plaintiff was held, the lesser reasonable suspicion standard would jeopardize prison officials' ability to maintain security.
As Judge Gleeson recognized, even if the precise standard governing intrusive searches of the Plaintiff at the MDC might not have been clearly established in 2001, it was clearly established that even the standard most favorable to prison officials required that strip and body-cavity searches be rationally related to legitimate government purposes. Cf. Hodges, 712 F.2d at 35 (holding that a plaintiff stated a Fourth Amendment claim where consecutive body-cavity searches were unnecessary). The complaint alleges that the Plaintiff was routinely strip searched twice after returning from the medical clinic or court and that, on one occasion, the Plaintiff was subjected to three serial strip and body-cavity searches in the same room. He also alleges that he was subjected to strip and body-cavity searches every morning. These allegations may reasonably be understood to claim that repeated strip and body-cavity searches were unrelated to legitimate government purposes and apparently were performed to punish. The Plaintiff has adequately alleged a violation of his clearly established Fourth Amendment rights. Of course, the success or failure of these claims will turn on the specific facts that are revealed after discovery or at trial.
173 Although exigent circumstances can justify some conduct that would otherwise *173 violate Fourth Amendment standards, see, e.g., Tyler, 436 U.S. at 509, 98 S.Ct. 1942 (exigent circumstances justify warrantless entry into a home), the post-9/11 context does not provide a basis for conducting repeated and needless strip and bodycavity searches of a pretrial detainee. See Part I(f), above.
VII. Interference with Religious Practices
Hasty also argues that Judge Gleeson should have dismissed the Plaintiff's First Amendment claim against him on qualified immunity grounds because (1) BOP regulations "conclusively establish" a lack of personal involvement and (2) the Plaintiff did not allege a violation of his First Amendment rights.
Both arguments lack merit. Hasty contends that the only "policy" on religion at the MDC was the official BOP policy, codified at 28 C.F.R. part 548, and that the Plaintiff has not indicated that these policies were suspended or that he availed himself of available complaint procedures, see 28 C.F.R. part 542. Hasty contends that he "was under no clearly established constitutional obligation to take affirmative steps to inquire whether Plaintiff observed particular religious practices, but as the BOP regulations instruct, Plaintiff had the responsibility to make his religious preferences known." Br. for Hasty at 47. But neither the complaint procedures nor the official policy governing religion allowed Hasty to ignore violations of detainees' First Amendment rights. If Hasty is arguing that the Plaintiff has forfeited his right to recover damages because he did not follow administrative complaint procedures, this may be relevant to the merits of the case, but it is not relevant to a qualified immunity defense.
Similarly without merit, Hasty argues that he could not be personally involved in any deprivations of religious freedom because BOP regulations establish that prison chaplains "are responsible for managing religious activities within the institution." 28 C.F.R. § 548.12. As the Plaintiff points out, however, Hasty ignores other regulations stating that the warden determines, among other things, what religious items may be used by prisoners, see id. § 548.16, and whether attendance at religious functions is open to all prisoners, id. § 548.15.

Hasty's second argument is that Plaintiff has not alleged a violation of his First Amendment rights. He relies on O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), which applied Turner's "legitimate penological interests" test to First Amendment claims, see id. at 348-49, 107 S.Ct. 2400. Though recognizing that a prison regulation precluded some Muslim prisoners from attending Friday prayers, see id. at 345, 107 S.Ct. 2400, the Supreme Court found the regulation justified under Turner, focusing on the officials' legitimate security objectives and the availability of other channels by which prisoners could exercise their religious rights, see id. at 350-53, 107 S.Ct. 2400. In the pending case, however, the Plaintiff alleges that he was not allowed to attend Friday prayers, that prison guards banged on his door when he tried to pray, and that his Koran was routinely confiscated.[11] These allegations suffice to preclude a qualified immunity defense at this stage of the litigation. In particular, consideration of Hasty's arguments 0907that "restrictions on movement and 174 possessions . . . were a necessary part *174 of the legitimate and proper functioning of the maximum security procedures in the ADMAX SHU" and that such restrictions were "justified by security concerns and other institutional needs," Br. for Hasty at 49-500907must await factual discovery so that the Government's asserted security interests can be assessed against a factual record of what restrictions actually existed and what purpose they served.
VIII. Racial and Religious Discrimination
The Defendants argue that they are entitled to qualified immunity on the Plaintiff's First Amendment claim of religious discrimination and Fifth Amendment claim of racial or ethnic discrimination on three grounds: (1) the Plaintiff has failed to state a violation of clearly established rights, (2) the Plaintiff's allegations of discriminatory intent are too conclusory, and (3) the Plaintiff has not alleged the personal involvement of Ashcroft and Mueller. [12]
The arguments of Ashcroft and Mueller challenging the sufficiency of the Plaintiff's race, ethnic, and religious discrimination claims misunderstand his complaint. They contend that his "complaint amounts to an objection that most of those persons determined to be of high interest to the 9/11 investigation were Muslim or from certain Arab countries," which they justify by pointing out that the 9/11 hijackers were Muslims from Arab countries. However, what the Plaintiff is alleging is that he was deemed to be "of high interest," and accordingly was kept in the ADMAX SHU under harsh conditions, solely because of his race, ethnicity, and religion. The Plaintiff also alleges that "Defendants specifically targeted [him] for mistreatment because of [his] race, religion, and national origin." These allegations are sufficient to state a claim of animus-based discrimination that any "reasonably competent officer" would understand to have been illegal under prior case law. See Malley, 475 U.S. at 341, 106 S.Ct. 1092; see also Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.1999) (stating that racial classifications violate Equal Protection Clause where motivated by racial animus and having a discriminatory effect). Accordingly, the Plaintiff's racial, ethnic, and religious discrimination claims cannot be dismissed on qualified immunity grounds at this stage of the litigation.
Hasty also argues that the Plaintiff has failed to state a claim of discrimination. Citing Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AAADC"), he argues that the Equal Protection Clause does not apply in the context of proceedings to remove illegal aliens and that the Government can permissibly deem nationals of a particular country to be a special threat. In AAADC, the Supreme Court concluded that a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1252(g), deprived the federal courts of jurisdiction to consider an illegal alien's selective enforcement challenge to deportation. See 525 U.S. at 487, 119 S.Ct. 936. The Court rejected the argument that it nevertheless had jurisdiction to consider an alien's constitutional arguments, holding that "an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation," see id. at 488, 119 S.Ct. 936, even when the Government deports the alien "for the additional reason that it believes 175 him to be a member of an organization that supports terrorist *175 activity," id. at 492, 119 S.Ct. 936. AAADC affords the Defendants no relief. The Plaintiff is not challenging his deportation or even his arrest on criminal charges. Moreover, AAADC does not stand for the proposition that the Government may subject members of a particular race, ethnicity, or religion to more restrictive conditions of confinement than members of other races, ethnic backgrounds, or religions.

The Defendants argue that the Plaintiff's allegations of racial, ethnic, and religious animus are too conclusory. But, as discussed above, see Part I(e), Crawford-El indicates that courts cannot require a heightened pleading standard for civil rights complaints involving improper motive. In Phillip, 316 F.3d at 298-99, this Court held that Swierkiewicz's notice pleading standard applied to a civil rights complaint alleging racial animus. Although recognizing that the complaint did not "contain many evidentiary allegations relevant to intent," see id. at 299, we found the allegations sufficient to state a claim, observing that the complaint alleged that the plaintiffs were African-American, described the defendants' actions in detail, and alleged that the plaintiffs were selected for maltreatment "solely because of their color," id. at 298.
The Plaintiff's allegations suffice to state claims of racial, ethnic, and religious discrimination. He alleges in particular that the FBI Defendants classified him "of high interest" solely because of his race, ethnic background, and religion and not because of any evidence of involvement in terrorism. He offers additional factual support for this allegation, stating that "within the New York area, all Arab Muslim men arrested on criminal or immigration charges while the FBI was following an investigative lead into the September 11th attacks 0907however unrelated the arrestee was to the investigation0907were immediately classified as `of interest' to the post-September 11th investigation." We need not consider at this stage of the litigation whether these allegations are alone sufficient to state a clearly established constitutional violation under the circumstances presented because they are sufficient to state a violation when combined with the Plaintiff's allegation that he was singled out for mistreatment and for unnecessarily punitive conditions of confinement based on his racial, ethnic, and religious characteristics.
Finally, Ashcroft and Mueller argue that the Plaintiff failed to allege their personal involvement in any discrimination. However, the complaint alleges broadly that Ashcroft and Mueller were instrumental in adopting the "policies and practices challenged here." The complaint also alleges that the FBI, "under the direction of Defendant Mueller," arrested thousands of Arab Muslims and that Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed to subject Plaintiff[] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." The Plaintiff acknowledges that the FBI Defendants made the determination that Plaintiff was "of high interest," but this allegation does not necessarily insulate Ashcroft and Mueller from personal responsibility for the actions of their subordinates under the standards of supervisory liability outlined above, see Part I(d). As with the procedural due process claim, the allegation that Ashcroft and Mueller condoned and agreed to the discrimination that the Plaintiff alleges satisfies the plausibility standard without an allegation of subsidiary facts because of the likelihood that these senior officials would have concerned themselves with the formulation and implementation of 176 policies dealing with *176 the confinement of those arrested on federal charges in the New York City area and designated "of high interest" in the aftermath of 9/11. Whether or not the issues of personal involvement will be clarified by court-supervised discovery sufficient to support summary judgment remains to be determined.
IX. Section 1985(3) Conspiracy
The Defendants contend that they are entitled to qualified immunity on the Plaintiff's conspiracy claims under 42 U.S.C. § 1985(3) because (1) it was not clearly established that federal officials were subject to liability under section 1985(3), and (2) the Plaintiff's allegations of conspiracy are too conclusory to state a violation of clearly established law.
Clearly established law. A conspiracy claim under 42 U.S.C. § 1985(3) has four elements: (1) a conspiracy, (2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an act in furtherance of the conspiracy, and (4) whereby a person is injured in his person or property or deprived of a right or privilege of a citizen. See United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). In addition, the conspiracy must be motivated by some class-based animus. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971).
In Gregoire v. Biddle, 177 F.2d 579 (2d Cir.1949), this Court considered a section 1985(3) claim against several federal officials stemming from an allegedly false arrest. The Court first held that the officials had absolute immunity from the false arrest claim. See id. at 580-81. Turning to the section 1985(3) claim, the Court rejected the plaintiff's argument that "this language creates a claim against any two persons who conspire to injure

another for spite or other improper motives, apparently because to single out anyone for illegal aggression is to deny him equal protection of the laws." Id. at 581. Gregoire has been interpreted by some lower courts to mean that section 1985(3) does not apply to federal officials. See, e.g., Lofland v. Meyers, 442 F.Supp. 955, 957 (S.D.N.Y. 1977); Williams v. Halperin, 360 F.Supp. 554, 556 (S.D.N.Y.1973); see also Hobson v. Wilson, 737 F.2d 1, 19 (D.C.Cir.1984) (criticizing Gregoire).
In Griffin, the Supreme Court held that section 1985(3) contains no requirement of state action and thus applies to private conspiracies. See 403 U.S. at 101, 91 S.Ct. 1790. Although this Court has had no occasion since Gregoire to consider whether section 1985(3) applies to conspiracies among federal officials, numerous courts of appeals, applying Griffin, have concluded that section 1985(3) applies to federal officials. See, e.g., Hobson, 737 F.2d at 20; Jafree v. Barber, 689 F.2d 640, 643 (7th Cir.1982); Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.1980); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 931 (10th Cir.1975).[13] We agree that the development of case law since Gregoire has eroded any basis for interpreting that decision to render section 1985(3) inapplicable to federal officials. And we also agree that, in the absence of prior Second Circuit case law 177 on point, it was not clearly established in 2001 that section 1985(3) applied to federal officials. *177 However, even without a definitive ruling from this Court on the application of section 1985(3) to federal officials, federal officials could not reasonably have believed that it was legally permissible for them to conspire with other federal officials to deprive a person of equal protection of the laws, at least where the officials' conduct, alleged to have accomplished the discriminatory object of the conspiracy, would violate the Equal Protection Clause. As we have recently held, "[T]he proper inquiry is whether the right itself0907rather than its source0907is clearly established." Russo v. City of Bridgeport, No. 05-4302-cv, 2007 U.S. App. LEXIS 4428, at *39 (2d Cir. June 12, 2007) (collecting cases), amending 479 F.3d 196 (2d Cir.2007).
Adequacy of allegations. Applying the normal pleading rules previously discussed, see Part I(e), even as supplemented by the plausibility standard, we have no doubt that the Plaintiff's allegations of a conspiracy to discriminate on the basis of ethnicity and religion suffice to withstand a motion to dismiss. Unlike the situation in Bell Atlantic, we do not encounter here a bare allegation of conspiracy supported only by an allegation of conduct that is readily explained as individual action plausibly taken in the actors' own economic interests.
X. Personal Jurisdiction
The final issue is whether Judge Gleeson erred in denying the motions by Ashcroft, Mueller, and FBI Defendant Rolince to dismiss for lack of personal jurisdiction. Ordinarily, we would lack jurisdiction over this issue on this interlocutory appeal concerning qualified immunity. However, "[a] defendant who is entitled to immediate appellate review of a qualified immunity decision is also entitled to appellate review of pendant issues if those issues are inextricably intertwined with the question of qualified immunity or are otherwise necessary to ensure meaningful review of it." Toussie v. Powell, 323 F.3d 178, 184 (2d Cir.2003) (internal quotation marks omitted). "Whether issues are inextricably intertwined is determined by whether there is substantial factual overlap bearing on the issues raised." Id. (internal quotation marks omitted). Judge Gleeson recognized the overlap between the Defendants' personal jurisdiction arguments and personal involvement arguments pertaining to qualified immunity. See Dist. Ct. op. at *10.
Under New York's long-arm statute, a court may exercise jurisdiction over a non-domiciliary who "in person or through an agent . . . commits a tortious act within the state" so long as the cause of action arises from that act. See N.Y.C.P.L.R. § 302(a)(2). As the District Court observed, see Dist. Ct. op. at *9-*10, personal jurisdiction cannot be predicated solely on a defendant's supervisory position. See Ontel Products, Inc. v. Project Strategies Corp., 899 F.Supp. 1144, 1148 (S.D.N.Y.1995). Rather, a plaintiff must show that a defendant "personally took part in the activities giving rise to the action at issue." Id.
The same intertwining of the issue of personal involvement with the issue of personal jurisdiction that provides us with pendent appellate jurisdiction also demonstrates that the pleading of personal involvement suffices to establish personal jurisdiction, at least at this preliminary stage of the litigation.

Conclusion
For the foregoing reasons, the order of the District Court is affirmed as to the denial of the Defendants' motions to dismiss all of the Plaintiff's claims, except for the claim of a violation of the right to procedural due process, as to 178 which we *178 reverse. In affirming almost all of the District Court's ruling, we emphasize that we do so at an early stage of the litigation. We recognize, as did Judge Gleeson in ruling on the Plaintiff's procedural due process claim, see Dist. Ct. op. at *21, that carefully limited and tightly controlled discovery by the Plaintiff as to certain officials will be appropriate to probe such matters as the Defendants' personal involvement in several of the alleged deprivations of rights. We are mindful too that, for high-level officials, this discovery might be either postponed until discovery of front-line officials is complete or subject to District Court approval and additional limitations. We also recognize that the Defendants will be entitled to seek more specific statements as to some of the Plaintiff's claims and perhaps renew their claims for qualified immunity by motions for summary judgment on a more fully developed record.
In sum, the serious allegations of gross mistreatment set forth in the complaint suffice, except as noted in this opinion, to defeat the Defendants' attempt to terminate the lawsuit at a preliminary stage, but, consistent with the important policies that justify the defense of qualified immunity, the defense may be reasserted in advance of trial after the carefully controlled and limited discovery that the District Court expects to supervise.
Affirmed in part, reversed in part, and remanded.
JOSÉ A. CABRANES, Circuit Judge, concurring:
I concur fully in Judge Newman's characteristically careful and comprehensive opinion, which seeks to hew closely to the relevant Supreme Court and Second Circuit precedents, including the Supreme Court's decision in Bell Atlantic v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That said, it is worth underscoring that some of those precedents are less than crystal clear and fully deserve reconsideration by the Supreme Court at the earliest opportunity; to say the least, "the guidance they provide is not readily harmonized," Maj. Op. at 153.
Most importantly, the opinion's discussion of the relevant pleading standards reflects the uneasy compromise0907forged partially in dicta by the Supreme Court in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)0907between a qualified immunity privilege rooted in the need to preserve "the effectiveness of government as contemplated by our constitutional structure," Harlow v. Fitzgerald, 457 U.S. 800, 820 n. 35, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.
Here, that uneasy compromise presents itself in a case brought by Javaid Iqbal, a federally convicted felon now residing in his native Pakistan. Iqbal does not challenge his arrest in the aftermath of 9/11, his detention, his conviction, or his apparent subsequent deportation. Iqbal instead challenges his separation from the general prison population at the Metropolitan Detention Center and his treatment during that separation. He claims that his separation stemmed from a general policy authorized at the highest levels of government in the wake of 9/11. But most, if not all, of the assertedly unlawful actions in his complaint 0907including the decision to place plaintiff in the ADMAX SHU and the abuses which purportedly ensued there 0907are alleged to have been carried out by defendants much lower in the chain of command.
Nevertheless, as a result of the Supreme Court's precedents interpreting Rule 8(a), even as modified by the 179 "plausibility standard" *179 established in Bell Atlantic, 127 S.Ct. at 1968, it is possible that the incumbent
Director of the Federal Bureau of Investigation and a former Attorney General of the United States will have to submit to discovery, and possibly to a jury trial, regarding Iqbal's claims. If so, these officials 0907FBI Director Robert Mueller and former Attorney General John Ashcroft0907may be required to comply with inherently onerous discovery requests probing, inter alia, their possible knowledge of actions taken by subordinates at the Federal Bureau of Investigation and the Federal Bureau of Prisons at a time when Ashcroft and Mueller were trying to cope with a national and international security emergency unprecedented in the history of the American Republic. In Bell

Atlantic, the Supreme Court has quite rightly expressed concern that "careful case management" might not be able to "weed[] out early in the discovery process" an unmeritorious claim in private civil antitrust litigation, see Bell Atlantic, 127 S.Ct. at 1967, and might have limited success in "checking discovery abuse," id. This concern is all the more significant in the context of a lawsuit against, inter alia, federal government officials charged with responsibility for national security and entitled by law to assert claims of qualified immunity. Even with the discovery safeguards carefully laid out in Judge Newman's opinion, it seems that little would prevent other plaintiffs claiming to be aggrieved by national security programs and policies of the federal government from following the blueprint laid out by this lawsuit to require officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery processes.
The decision in this case may be required by the faithful application of the relevant precedents by a court of inferior jurisdiction. But a detached observer may wonder whether the balance struck here between the need to deter unlawful conduct and the dangers of exposing public officials to burdensome litigation a 0907 balance compelled by the precedents that bind us0907jeopardizes the important policy interest Justice Stevens aptly described as "a national interest in enabling Cabinet officers with responsibilities in [the national security] area to perform their sensitive duties with decisiveness and without potentially ruinous hesitation." Mitchell v. Forsyth, 472 U.S. 511, 541, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (Stevens, J., concurring in the judgment).[1]
[1] The complaint does not identify the charges on which Iqbal was arrested, but Judge Gleeson's opinion states that he was charged with conspiracy to defraud the United States and fraud with identification. Dist. Ct. op. at *1 n. 1.
[2] Iqbal is a Muslim and a Pakistani, but not an Arab. Nevertheless, his claim is fairly to be understood as alleging unlawful treatment based on his ethnicity, even if not technically on a racial classification. And his allegations of what was done to Arab Muslims are fairly understood to mean that unlawful actions were taken against him because officials believed, perhaps because of his appearance and his ethnicity, that he was an Arab.
[3] The claims, in the order set forth in the complaint, are:
1. Fifth Amendment substantive due process claim based on the conditions of confinement: Hasty and MDC staff.
2. Fifth Amendment procedural due process claim based on confinement in the ADMAX SHU: Ashcroft and Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC staff.
3-4. Fifth and Eighth Amendments excessive force claims: Hasty and MDC staff.
5. Sixth Amendment interference with right to counsel claim: Hasty and MDC staff.
6-7. Fifth and Eighth Amendments denial of medical treatment claims: MDC staff (not at issue on this appeal).
8. Eighth Amendment conditions of confinement claim: Hasty and MDC staff.
9. Fourth Amendment unreasonable search claim based on strip and body-cavity searches: BOP Defendant Sawyer (but not other BOP Defendants), Hasty, and MDC staff.
10. First Amendment claim based on interference with religious practice: Hasty and MDC staff.
11. First Amendment claim based on religious discrimination: Ashcroft and Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC staff.
12. Fifth Amendment race-based equal protection claim: Ashcroft and Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC staff.
13. Religious Freedom Restoration Act ("RFRA") claim based on conditions of confinement: Ashcroft and Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC staff.
14-15. RFRA claims based on interference with religious practice and excessive force: Hasty and MDC staff.

16-17. 42 U.S.C. § 1985(3) claims for conspiracy to deprive the Plaintiff of equal protection on the grounds of religion, race, and national origin: Ashcroft and Mueller, BOP Defendants, Hasty, and MDC staff.
18-20. Federal Tort Claims Act ("FTCA") claims for assault and battery, negligent denial of medical treatment, intentional infliction of emotional distress: United States.
21. Alien Tort Claims Act ("ATCA") claim: Ashcroft and Mueller, FBI Defendants, BOP Defendants, Hasty, and MDC staff.
[4] Zenk, the MDC Warden at the time the lawsuit was filed, and the MDC medical assistant are not appealing Judge Gleeson's ruling.
[5] There is no possibility that the "weed out" language of Leatherman was overlooked; it was called to the Court's attention in Justice Stevens's dissent. See Bell Atlantic, 127 S.Ct. at 1982.
[6] The parties, not surprisingly, view Bell Atlantic entirely differently. Defendant Hasty characterizes the Supreme Court's decision as a "sea change" in the pleading standard of Rule 8, see Letter from Michael L. Martinez, counsel for Defendant Hasty, to the Acting Clerk of this Court (May 25, 2007); the Plaintiff emphasizes the antitrust holding of the decision, see Letter from Alexander A. Reinert, counsel for Plaintiff Iqbal, to the Acting Clerk of this Court (May 22, 2007).
[7] For example, it would be cavalier to believe that the Court's rejection of the "no set of facts" language from Conley, which has been cited by federal courts at least 10,000 times in a wide variety of contexts (according to a Westlaw search), applies only to section 1 antitrust claims.
[8] The Defendants do not seriously contest Judge Gleeson's characterization of the Plaintiff as a pretrial detainee, although Ashcroft and Mueller briefly contend that his private interest in avoiding detention in the ADMAX SHU after he pled guilty should be evaluated "within the context of the prison system," i.e., under Eighth Amendment standards. The Plaintiff argues that he should be treated as a pretrial detainee until he was sentenced, citing Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir.2000).
The circuits are divided as to whether to treat convicted, but unsentenced, inmates as pretrial detainees. Compare id. (treated as pretrial detainee) with Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir.2000) (treated as prisoner), Whitnack v. Douglas County, 16 F.3d 954, 956-57 (8th Cir.1994) (same), and Berry v. City of Muskogee, 900 F.2d 1489, 1493 (10th Cir.1990) (same). Because none of the Defendants seriously challenges Judge Gleeson's characterization of the Plaintiff as a pretrial detainee throughout his entire confinement in the ADMAX SHU, we will refer to him as a pretrial detainee, a status that plainly applies during the several months of confinement prior to the Plaintiff's plea. We do not consider the question of whether convicted, but unsentenced, inmates are pretrial detainees under the Supreme Court's jurisprudence establishing criteria for evaluating constitutional limits on conditions of confinement.
[9] Since Wolfish prohibited punishment prior to the process of adjudicating guilt, it could be considered a decision vindicating a procedural claim. However, as the Supreme Court's decisions in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), and Sandin, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418, make clear, when the Court is truly considering a claim that restrictions were imposed within a prison without adequate procedures, it is focusing precisely on the procedural requirements of the Due Process Clause, and not what in reality is the substantive component that was at issue in Wolfish. See Block v. Rutherford, 468 U.S. 576, 591 & n. 12, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984) (applying Wolfish to pretrial detainees' substantive due process claim and distinguishing it from a procedural due process claim).
[10] There is some question as to whether Hasty sought to dismiss the substantive due process claim or the excessive force claim, see Part IV, infra, in the District Court on the ground of qualified immunity, as distinguished from the merits of the claim. However, the District Court understood all the Defendants to "seek dismissal of all claims against them on qualified immunity grounds," Dist. Ct. op. at *10, and we are satisfied that we have jurisdiction of an appeal from the rulings that are premised on that understanding.

[11] Hasty's arguments that the repeated banging on Iqbal's cell while he prayed shows that he was at least allowed to pray, and that the repeated confiscation of his Koran shows that he was at least permitted to have a Koran need no response.
[12] Judge Gleeson dismissed the discrimination claims against the BOP Defendants. See Dist. Ct. op. at *29.
[13] BOP Defendant Cooksey cites post-Griffin cases from the Fifth and Third Circuits stating that section 1985(3) does not apply to federal officials. See, e.g., Mack v. Alexander, 575 F.2d 488, 489 (5th Cir.1978); Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir.1971). However, these cases cite pre-Griffin cases for this proposition and neglect to consider Griffin.
[1] The Supreme Court's recognition in Bell Atlantic that "proceeding to . . . discovery can be expensive," Bell Atlantic, 127 S.Ct. at 1967 has particular resonance where, as here, discovery would not only result in significant cost but would also deplete the time and effectiveness of current officials and the personal resources of former officials. Indeed, as Justice Stevens noted, "[p]ersons of wisdom and honor will hesitate to answer the President's call to serve in these vital positions if they fear that vexatious and [in some cases] politically motivated litigation associated with their public decisions will squander their time and reputation, and sap their personal financial resources when they leave office." Mitchell, 472 U.S. at 542, 105 S.Ct. 2806 (Stevens, J. concurring in the judgment); see also Harlow, 457 U.S. at 814, 102 S.Ct. 2727 (noting the "danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties" (alteration in original) (internal quotation marks omitted)).
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