28.2.06

U.S. Is Settling Detainee's Suit in 9/11 Sweep - New York Times

U.S. Is Settling Detainee's Suit in 9/11 Sweep - New York Times

The federal government has agreed to pay $300,000 to settle a lawsuit brought by an Egyptian who was among dozens of Muslim men swept up in the New York area after 9/11, held for months in a federal detention center in Brooklyn and deported after being cleared of links to terrorism.

The settlement, filed in federal court late yesterday, is the first the government has made in a number of lawsuits charging that noncitizens were abused and their constitutional rights violated in detentions after the terror attacks.

It removes one of two plaintiffs from a case in which a federal judge ruled last fall that former Attorney General John Ashcroft, the director of the Federal Bureau of Investigation and other top government officials must answer questions under oath. Government lawyers filed an appeal of that ruling on Friday.

In the settlement agreement, which requires approval by a federal judge in Brooklyn, lawyers for the government said that the officials were not admitting any liability or fault. In court papers they have said that the 9/11 attacks created "special factors," including the need to deter future terrorism, that outweighed the plaintiffs' right to sue.

"A settlement like this is not a precedent, but it's a form of accountability," said Gerald L. Neuman, a law professor at Columbia University who is an expert in human rights law and was not involved in the case. "When the government finds it necessary to settle, that changes the government's incentives. It doesn't mean the government will settle future cases that it makes different calculations about," like another lawsuit, brought as a class action on behalf of hundreds of detainees, that is pending before the same judge.

A spokesman for the Justice Department said officials would not comment on the agreement. But lawyers who represent both the Egyptian, Ehab Elmaghraby, who used to run a restaurant near Times Square, and the second plaintiff, a Pakistani who is still pursuing the lawsuit, described the outcome as significant.

"This is a substantial settlement and shows for the first time that the government can be held accountable for the abuses that have occurred in Abu Ghraib, Guantánamo Bay and in prisons right here in the United States," said one of the lawyers, Alexander A. Reinert of Koob & Magoolaghan.

The lawsuit accuses Mr. Ashcroft and the F.B.I. director, Robert S. Mueller III, of personally conspiring to violate the rights of Muslim immigrant detainees on the basis of their race, religion and national origin, and names a score of other defendants, including Bureau of Prison officials and guards at the Metropolitan Detention Center in Brooklyn.

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

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

In a telephone interview from his home in Alexandria, Egypt, Mr. Elmaghraby, 38, said he had reluctantly decided to settle because he is ill, in debt and about to have surgery for a thyroid ailment aggravated by his treatment in the detention center.

"I wish I come to New York, to stay in the court face to face with these people," he said in imperfect English, adding that he had always expected the courts to uphold his claim. "I lived 13 years in New York, I see a lot of big cases on TV. I think the judges is fair."

The government had argued that the lawsuits should be dismissed without testimony because the extraordinary circumstances of the terror attacks justified extraordinary measures to confine noncitizens who fell under suspicion, and because top officials need governmental immunity to combat future threats to national security without fear of being sued.

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

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