Appeals Court Refuses to Shield Top Bush Officials From Lawsuit Against Post-9/11 Abuses

The Second Circuit Court of Appeals rejected a push by the government to have a historic decision in a lawsuit against former Justice Department officials overturned. The officials allegedly violated the rights of Arab or Muslim immigrants in the immediate months after the September 11th terrorist attacks.

Senior staff attorney Rachel Meeropol of the Center for Constitutional Rights, which filed the lawsuit thirteen years ago, called the decision a “victory for accountability.” Meeropol further declared, “To dismiss high-level officials this early in the case would effectively grant them immunity for directing the religious and racial profiling of our clients.”

One of the plaintiffs, Anser Mehmood, reacted, “I have a great respect for all the judges hearing the case: they prove that America respects the constitutional rights of all people, no matter who they are. We have been waiting for justice for [nearly] 15 long years, and now we are one step closer.”

The lawsuit was filed by CCR on behalf of eight former detainees in 2002. It seeks to hold former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Commissioner of the Immigration and Naturalization Service James W. Ziglar accountable for subjecting immigrants to harsh confinement on the basis of their race, national origin, and religion after 9/11. Metropolitan Detention Center (MDC) and Passaic County Jail officials are also defendants in the lawsuit.

In January 2013, a federal court dismissed the complaints after concluding there was no evidence the officials had any “intent to punish” the plaintiffs. However, in June, the Second Circuit Court of Appeals ruled that the Justice Department officials were not entitled to “qualified immunity.” The appeals court also determined the confinement conditions imposed on the rounded up immigrants were established with “punitive intent.” The sued officials requested in August that the court rehear the lawsuit.

On December 11, in a concurring opinion [PDF] issued by the Second Circuit, Judge Rosemary S. Pooler and Richard C. Wesley indicate the plaintiffs “plausibly pled” that the Attorney General “ratified the rogue acts of a number of field agents” when carrying out policy.

Ashcroft allegedly “endorsed the restrictive detention of a number of men who were Arabs or Muslims or both—or those who appeared to fit those categories—that resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue.”

The judges pointed to the fact that two of the defendants were involved in operating the Metropolitan Detention Center, where they allegedly filed “false documents” about the risks detainees posed. They were complicit and/or responsible for a facility, where assaults, daily strip searches, and numerous other degrading acts” were routinely carried out against individuals not suspected of any particular security risks.

Nonetheless, six judges, including one judge named Christopher F. Droney, dissented from the majority’s decision [PDF].

The judges insist the former officials are entitled to “qualified immunity” because there is “no case clearly establishing” their right to “not be restrictively confined in the absence of an individualized suspicion of dangerousness.” The judges bemoan the fact that the former Attorney General, FBI Director, and other federal officials are potentially exposed to “unlimited personal liability for their efforts” to protect the country after the “deadliest terror attack in the history of this nation.”

The reality is the plaintiffs in this case were abused in an Administrative Maximum Special Housing Unit (ADMAX SHU). As CCR alleged:

…[F]or over 23 hours a day, provided with meager and barely edible food, and prohibited from moving around the unit, using the telephone freely, using the commissary, accessing MDC handbooks (which explained how to file complaints about mistreatment), and keeping any property, including personal hygiene items like toilet paper and soap, in their cells. Whenever they left their cells, they were handcuffed and shackled. Although they were offered the nominal opportunity to visit the recreation area outside of their cells several times a week, the recreation area was exposed to the elements and the MDC Detainees were not offered clothing beyond their standard cotton prison garb and a light jacket. Furthermore, 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. As a result, they were constructively denied exercise during the fall and winter….

The men were “strip-searched every time they were removed from or returned to their cells, including before and after visiting with their attorneys, receiving medical care, using the recreation area, attending a court hearing, and being transferred to another cell. “ Each time they arrived at the MDC “in the receiving and discharge area and again after they had been escorted – shackled and under continuous guard – to the ADMAX SHU,” they were strip-searched, even though there was absolutely no opportunity for them to obtain contraband.

What the Second Circuit appeals court explicitly rejected was the idea that “national security” concerns could be used to justify treating undocumented immigrants or someone’s perceived Arab or Muslim affiliation as traits, which automatically made one a potential terrorist.

“The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy,” the appeals court maintained. “Holding individuals in solitary confinement twenty‐three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaida violated the detainees’ constitutional rights.”

Additionally, the appeals court rejected the government’s continued efforts to stall and prevent plaintiffs from having their day in court.

“The length of our efforts now fills many pages. In our view, it is time to move the case forward,” Pooler and Wesley declared.