An "Equal Protection Free Zone" in New York?

A federal trial judge in Brooklyn yesterday issued an important ruling in the war on terror, one that constitutional scholars, lawyers, judges and politicians surely will be fighting over for months to come. The decision allows the government to detain indefinitely non-citizen immigrants based upon their race, religion or national origin but it also allows key challenges to that policy to proceed further along the path toward trial. It's a ruling that almost certainly will be appealed by one side, or the other, or both, and could ultimately wind up before the U.S. Supreme Court.

U.S. District Judge John Gleeson ruled that the government can round up and detain people "of a particular country" or race or religion so long as their "eventual removal" was "reasonably forseeable." This, some experts say, gives the government all the legal authority it needs following the next terror attack to detain without probable cause even more folks than it did just after 9/11. On the other hand, the judge also is allowing the class-action lawsuit to proceed against the government on claims that the confinement itself violated the rights of the detained immigrants. You can round them up based solely upon the color of their skin, this ruling says, but you have to treat them well once you have them in custody.

There is no guarantee that this ruling will stand. But it is equally clear that the government has much broader latitutude in handling non-citizens than it does in honoring the rights of citizens. So what are the higher courts likely to do? Think of it this way. After 9/11, the government held two U.S. citizens incommunicado, indefintely and without charges. And the U.S. Supreme Court did not immediately (or ever, actually) order the feds to either release the men or charge them. That's the reality of the law that faces the immigrant-plaintiffs in their case against the government. It is a grim reality for a grim time.

By Andrew Cohen |  June 15, 2006; 9:15 AM ET
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With the late Jackie Gleason it was "And away we go ...." With this Judge Jackie Gleeson it's "And away YOU go ..." if you fit the government's profile of the "reasonably forseeable". Perhaps I should get rid of the ACLU card which I carry, just in case that makes me one of the "reasonably forseeable". Better yet, let's all stand up like the Village People and sing: "A [join your hands above your head] ... C [make with your arms a sideways incomplete circle] ... L [arms at right angle] ... U [arms straight up]" and repeat several choruses: "A .. C .. L .. U .." But watch out, "Here come de Judge, Here come de Judge ...."

Posted by: Shag from Brookline | June 16, 2006 05:48 AM

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