By Matthew T.Clarke

On. September 27, 2005, a federal district court in New York issued a
70-page, unpublished memorandum and order granting in part and denying in
part the defendants' motion to dismiss civil rights conditions-of
confinement claims brought by two 9-11 detainees.

Fhab Elmaghraby and Javaid Iqbal are Muslim men from Egypt and Pakistan,
respectively, who were arrested on criminal charges following 9-11 and
imprisoned at the federal Metropolitan Detention Center (MDC) in Brooklyn,
New York. They were designated "of high interest" to the government and
placed in Administrative Segregation Maximum Special Housing Unit (MAX
SHU), a super-high security unit invented especially for the "high
interest" prisoners at MDC. The conditions in MAX SHU were much harsher
than general population, or even "normal" SHU. Elmaghraby remained in MAX
SHU from October 1, 2001, until August 28, 2002; Iqbal from January 8,
2002, until the end of July 2002.

Plaintiffs allege that while in MAX SHU they were severely abused both
physically and verbally; subjected to unnecessary, repetitive, abusive
strip and body cavity searches; kept in extended solitary confinement
without any review of their classification status; denied of adequate food,
exercise, basic medical care, adequate bedding, and personal hygiene items;
and deliberately exposed to excessive heat, cold and continuous bright
lighting. They also alleged they suffered interference with the exercise of
their religious beliefs and interference with their communications with
their attorneys. They alleged severe physical injuries, emotional distress
and humiliation. For instance, the lack of adequate food caused. Iqbal to
lose 40 pounds and suffer persistent digestive problems. They also alleged
that their classification as persons "of high interest" and subsequent
abuse was based solely upon their race, religion and national origin
stemming from discriminatory policies promulgated by high-level federal
government officials. Neither plaintiff was ever, charged with any kind of
terrorism-related offense and both deny any ties to terrorists.

Plaintiffs filed a lawsuit for damages that included a Bivens action
alleging violation of their First, Fourth, Fifth, Sixth and Eighth
Amendment rights; a claim under the Alien Tort Statute (ATS), 28 U.S.C. §
1350; the Religious Freedom Restoration Act (EFRA); 42 U.S.C. § 2000bb, the
civil rights conspiracy statute, 42 U.S.C. § 1985(3); and the Federal Tort
Claims Act, 28 U.S.C. 2671, et seq. They named as defendants former U.S.
Attorney General John Ashcroft, FBI Director Robert Mueller, other FBI
officials and agents, former Director of the Bureau of Prisons Kathleen
Hawk Sawyer, other BOP officials, the former and current MDC Warden, and a
MDC physician's assistant.

All of the defendants moved to dismiss various parts of the suit. The
United States government moved under the Liability Reform Act, 28 U.S.C. §
2697, to be substituted as sole defendant for the ATS claims and for those
claims to be dismissed on the basis of sovereign immunity.

MAX SHU prisoners were kept in solitary confinement and were in handcuffs
and leg irons and escorted by four guards whenever they were moved. For
many weeks, plaintiffs were subjected to communications blackouts with no
mail, visits or telephone calls allowed with their families or attorneys.
Attorneys and family members were falsely told that plaintiffs were not
incarcerated at MDC. When visits were finally allowed, they all took place
with a thick Plexiglas partition preventing any kind of physical contact.

Contrary to BOP policy, plaintiffs were not given any kind of periodic
review of their confinement status. Instead, they were kept in MAX SHU
until the FBI "cleared" them of connections to terrorist activity.
Plaintiffs allege that the "hold until cleared" policy was approved by
Ashcroft, Mueller and Sawyer soon after 9-11 and that the lower-level FBI
and BOP officials responsible for actually "clearing" prisoners to general
population failed to do so due to plaintiffs' race, religion and national
origin rather than any evidence of ties to terrorism.

Plaintiffs alleged they were beaten and shoved against hard objects, which
resulted in broken teeth and other injuries. They allegedly were left
outside in the winter cold with inadequate clothing, left for many hours in
the unshaded heat in summer and left for hours in the rain on the rare
occasions when they were allowed recreation. They claim to have been
subjected to six body cavity strip searches on days when they went to court
(three times going and three times returning), some of which were abusive,
with them being displayed to female employees or with objects inserted into
their anuses causing injury and bleeding. They also claim that guards beat
on their cells while they were praying and took their Korans and refused to
let them meet for prayers with other Muslim prisoners on Fridays.

Plaintiffs allege they were only allowed attorney phone calls with a guard
nearby who monitored the calls and disconnected the phone when plaintiffs
complained about conditions of confinement. The attorneys were often made
to wait hours before being allowed to visit plaintiffs and all
attorney-client visits were tape recorded by MDC. Plaintiffs' cells were
ransacked while they were in attorney visits and they were strip searched
upon their return even though the visits were non-contact. Defendants often
falsely told plaintiffs' attorneys that they were no longer at MDC and held
up their legal mail for months.

Plaintiffs were allegedly denied medical care for their injuries.
Elmaghraby alleged his hypothyroidism was intentionally misdiagnosed as
asthma causing his condition to worsen to the point that he required surgery.

Assuming plaintiffs' claims are true, the court held that it had proper
jurisdiction over the non-New York-based plaintiffs and plaintiffs had
properly alleged personal involvement by the Washington-based
high-government officials in the creation or implementation of the
policies. The court rejected defendants' argument that 9-11 created special
circumstances that excused defendants' denial of plaintiffs' due process
rights for close to a year. It noted that many reports of abuse of
post-9-11 prisoners at MDC, including an April 2003 report by the Office of
Inspector General. PLN, June 2004, p. 19j. The court dismissed the claim
against Sawyer and other high-level BOP officials with regard to the strip
searches and racial/religious/national origin discrimination because
plaintiffs failed to show personal involvement. It dismissed the RFRA
claims because it was not clearly established in October 2001 that the RIBA
applied to the federal government. It dismissed the ATS claims on the
grounds of sovereign immunity after granting the United States' motion to
substitute. However, all the other claims, including the claim that
Ashcroft, Mueller and other high-ranking non-BOP government officials were
liable for promulgating discriminatory policies, remain for further litigation.

The government recently settled for $300,000 a suit alleging similar abuse
of two post-9-11 "high interest" immigration detainees in MDC. (PLN).
The same federal district court also refused to dismiss similar
conditions-of-confinement claims by eight other post-9-11 MDC "high
interest" immigration detainees. See: Elmaghraby v. Ashcroft, USDC SD NY,
Case No. 04 CV 1409 (JG)(SMG).

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