Thursday, April 16, 2009

Human Rights: Court allows inquiry into legality of U.S. government's attempt to conscript foreign national to spy

On April 13, 2009, a federal judge issued a ruling calling into question the U.S. immigration agents' treatment of a Syrian-born German citizen who was jailed by U.S. officials, subjected to strip and visual cavity searches, and asked to spy for the U.S. government. The federal court rejected the government's request to have the case against the U.S. government and immigration agents dismissed in its entirety.

In its ruling, the court held that strip searches of immigrants arriving in the country, including those housed at local detention facilities, are constitutional only if supported by reasonable suspicion. The court further held that the immigration agents' actions could be considered "extreme and outrageous conduct" and allowed an inquiry into the legality of the government's attempt to conscript a foreign national to spy to move forward.

Last year, the lawsuit was filed on behalf of Majed Chehade by the Lawyers' Committee for Civil Rights and the law firm of Munger, Tolles & Olson against the United States, federal agents, the City of North Las Vegas, and the North Las Vegas Police Department. Mr. Chehade is a 64-year old German citizen whose wife, three children, and grandson are U.S. citizens. Mr. Chehade owns a home in Massachusetts and is the export director of a German manufacturing company. He was on his way to visit his daughter on December 28, 2006 when he was detained at Las Vegas McCarran International Airport and taken to a local jail, where he was subjected to strip and visual cavity searches, denied access to medical care and his prescription medications, and told that if he wanted to return to the U.S., he would have to spy on behalf of the government.

In December 2008, the U.S. government and Immigration and Customs Enforcement Senior Special Agent Peter Lazaro sought to have the case against them dismissed. Both argued they were immune from liability and that Mr. Chehade was not permitted to challenge the propriety of their actions.

In yesterday's decision, the court rejected many of the U.S. government's and Mr. Lazaro's arguments. The court held that under the Fourth Amendment, "federal officials at the border must have reasonable suspicion before strip searching a detainee." The court further recognized that immigration agents' actions could not bypass constitutional requirements by sending Mr. Chehade to a detention facility, such as the North Las Vegas Detention Center, where federal agents allegedly knew that strip searches occurred.

The court, in a first-of-its kind decision, also recognized that the federal agents' threats and actions, which were designed to conscript Mr. Chehade to spy on behalf of the U.S. government, could be considered "extreme and outrageous conduct" under Nevada law. The court cited a Nevada Supreme Court case that defines "extreme and outrageous conduct" as "that which is outside all possible bounds of decency and is regarded as utterly intolerable in a civilized community."

The court also called into question the federal agents' decision to jail Mr. Chehade at North Las Vegas Detention Center, citing a September 29, 2000 government memorandum that explained that visitors such as Mr. Chehade "should NOT be booked into any jail facility absent extraordinary circumstances" and that the jailing of visitors "has caused problems and embarrassment for the Service on several occasions."

As a result of the decision, the U.S. government now must defend the legality of its actions. In response to the decision, Mr. Chehade said, "I am glad to have my day in court. I look forward to being vindicated."

Nira Geevargis, an attorney at the Lawyers' Committee for Civil Rights, explained the importance of the decision. "Until now, the government has resisted any effort to question the legality of its policies around conscripting people to spy. We are grateful that the court has pulled back the curtain so that we can shed light on what individual agents have been doing and whether government policy allows it." She added, "hopefully, this decision will force the new administration to reconsider the wisdom of its policies."

Attorney Kristina Wilson, of Munger, Tolles & Olson, added, "It's a very important result in the area of immigrant detentions. For Mr. Chehade, it means the law will allow him to hold the Nevada agencies, the federal government, and the individual agents responsible to the extent they were aware of his mistreatment."

Source: Lawyers' Committee for Civil Rights
Published by Mike Hitchen, Mike Hitchen Consulting
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