Originally published at the NYTimes by Adam Liptak on 6/17/15
WASHINGTON — Saying that high-ranking Bush administration officials may have taken part in grave constitutional violations after the Sept. 11 attacks, a federal appeals court in New York on Wednesday revived a long-running lawsuit brought by immigrants, most of them Muslim, who said they were subjected to beatings, humiliating searches and other abuses in a Brooklyn detention center.
“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,” Judges Rosemary S. Pooler and Richard C. Wesley wrote in a joint opinion for a divided three-judge panel of the court, the United States Court of Appeals for the Second Circuit.
“Holding individuals in solitary confinement 23 hours a day with regular strip-searches because their perceived faith or race placed them in the group targeted for recruitment by Al Qaeda violated the detainees’ constitutional rights,” the judges said.
The defendants include John Ashcroft, the former attorney general, and Robert S. Mueller III, the former F.B.I. director.
A lawyer for the plaintiffs said the ruling sent a powerful message.
“Punishing low-level perpetrators is necessary but hardly sufficient to prevent future abuse,” said Rachel Meeropol, a lawyer with the Center for Constitutional Rights. “Orders came from officials at the highest levels of government. Now we have the chance to ensure that they are held accountable and not treated as if they are above the law.”
“We are reviewing the court’s decision,” said Nicole A. Navas, a spokeswoman for the Justice Department.
The roundups after Sept. 11 drew criticism from the inspector general of the Justice Department, who in 2003 issued reports saying that the government had made little or no effort to distinguish between genuine suspects and Muslim immigrants with minor visa violations. The reports also documented widespread abuse at the Brooklyn detention center.
The eight named plaintiffs in the case, Turkmen v. Ashcroft, said they had been humiliated, beaten, and denied sleep and edible food or religious materials. Their detentions lasted three to eight months.
In 2009, in a related case called Ashcroft v. Iqbal, the Supreme Court ruled that another detainee, Javaid Iqbal, could not sue Mr. Ashcroft and Mr. Mueller because he had not supplied enough detail about what they were said to have done wrong. The decision on Wednesday said the plaintiffs had cleared that hurdle.
In dissent, Judge Reena Raggi said the majority had erred in allowing a lawsuit against “the nation’s two highest-ranking law enforcement officials” for “policies propounded to safeguard the nation in the immediate aftermath of the infamous Al Qaeda terrorist attacks.”
“It is difficult to imagine,” she wrote, “a public good more demanding of decisiveness or more tolerant of reasonable, even if mistaken, judgments than the protection of this nation and its people from further terrorist attacks.”
In their joint opinion, Judges Pooler and Wesley said that the evidence in the case could ultimately show that the defendants “are not personally responsible for detaining plaintiffs in these conditions.”
“But we simply cannot conclude at this stage,” they said, “that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built.”
Circuit Reinstates Claims by Post-9/11 Detainees
Originally published at New York Law Journal by Mark Hamblett on 6/18/15
Claims that former U.S. Attorney General John Ashcroft approved harsh confinement conditions for immigrants who had no connection to terrorism but were detained following the Sept. 11 attacks because they appeared to be Arab or Muslim were reinstated Wednesday by a divided Second Circuit.
Judges Rosemary Pooler and Richard Wesley said Ashcroft, former FBI Director Robert Mueller and former Immigration and Naturalization Service (INS) Commissioner James Ziglar could be sued for the allegedly punitive conditions imposed on detainees at the Metropolitan Detention Center in Brooklyn from November 2001 onward.
“The only reasons why the [detention center’s] plaintiffs were held as if they were suspected of terrorism was because they were, or appeared to be, Arab or Muslim,” Pooler and Wesley said in a jointly authored 106-page opinion in Turkmen v. Hasty, 13-981.
The circuit recognized a so-called “Bivens” cause of action against the high-ranking officials for unconstitutional conditions of confinement.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that there is implied in the U.S. Constitution the right to pursue private damages against federal officials for alleged violations of rights.
In Turkmen, the majority of the panel said, “It might well be that national security concerns motivated the defendants to take action, but that is of little solace to those who felt the brunt of the decision.” It found that plaintiffs had made plausible-enough allegations to survive a motion to dismiss. “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 majority said.
Judge Reena Raggi issued a lengthy dissent faulting the majority for extending the Bivens cause of action to violations of substantive due process based on conditions of confinement in this context.
Raggi also dissented from the denial of qualified immunity to Ashcroft, Mueller and Ziglar as well as Metropolitan Detention Center warden Dennis Hasty and associate warden James Sherman.
The lawsuit, which stretches back to 2002, is a putative class action brought by six men held at the Metropolitan Detention Center.
The suit targets the administration’s decision to sweep up people “of interest” after 9/11—those of Arab descent or Muslim faith with immigration problems. Anyone who was the subject of a tip in the 9/11 investigation who was found to be a non-citizen and had violated the terms of their visa was to be held until cleared of ties to terrorism.
A total of 762 people were detained on the INS custody list as “hold-until-cleared.” Of those, 84 were held at the Metropolitan Detention Center from three to six months.
Turkmen claims the men were beaten and abused by guards, strip-searched repeatedly, held in administrative segregation at the ADMAX Special Housing Unit in cells for at least 23 hours a day and denied sleep through the use of bright lights. Metropolitan Detention Center officers also called the men “camels,” “terrorists” and worse, denied them the Quran and interrupted their prayers, the suit alleges.
Turkmen also alleged that Ashcroft, Mueller and Ziglar merged a national INS list with a separate, more expansive list made in New York, where all “out-of-status” aliens encountered in the course of investigating a lead were allegedly detained “regardless of strength of the evidence or the origin of the lead.” This, the plaintiffs charged, made it certain that more people would be held in the harsh conditions in the Metropolitan Detention Center with no individualized suspicion they had any ties to terrorism.
Eastern District Judge John Gleeson in 2013 kept claims against Hasty and Sherman but dismissed all claims against the Justice Department defendants (NYLJ, Jan. 17, 2013). The prison officials appealed and the plaintiffs cross-appealed the dismissal of the Justice Department defendants.
Oral arguments were heard by Pooler, Wesley and Raggi on May 1, 2014, as Rachel Meeropol of the Center for Constitutional Rights and H. Thomas Byron III of the Department of Justice squared off over liability for the officials (NYLJ, May 2, 2014).
‘Potential Terrorists’
On Wednesday, Pooler and Wesley said that Metropolitan Detention Center conditions of confinement “stand firmly within a familiar Bivens context”—a point disputed by Raggi. She said the plaintiffs’ immigration status made this a new context that fails to clear the high bar set by the U.S. Supreme Court and the Second Circuit for recognizing new causes of action under Bivens.
Pooler and Wesley said an Office of Inspector General Report on the Sept. 11 investigation “makes plain” that the Justice Department defendants were aware of the Bureau of Prisons’ decision to house Sept. 11 detainees in high-security sections. They said the report also supports “the inference that not only was Ashcroft’s office aware of some of the conditions imposed, but affirmatively supported them.”
The defendants had argued that there was no punitive intent in holding the men in these conditions, that Ashcroft and the others were motivated purely by national security concerns. That argument was dismissed by the majority.
“They seem to imply that once ‘national security’ concerns become a reason for holding someone, there is no need to show a connection between those concerns and the captive other than that the captive shares common traits of the terrorist: illegal immigrant status and a perceived Arab or Muslim affiliation,” Pooler and Wesley said.
They also rejected the idea that the officials were merely erring on the side of caution.
“It presumes, in essence, that all out-of-status Arabs or Muslims were potential terrorists until proven otherwise,” they said. “It is built on a perception of a race and faith that has no basis in fact.”
The majority said there was “no legitimate governmental purpose in holding someone in the most restrictive conditions of confinement simply because he happened to be—or worse yet, appeared to be—Arab or Muslim.”
It went on to revive an equal protection claim based on the harsh conditions, because the Justice Department defendants, as alleged, knew that the New York list was formed in a discriminatory manner. The majority also revived a civil rights conspiracy claim against the defendants.
The November cut-off date by the majority was imposed because that was when the Justice Department defendants purportedly learned that the plaintiffs were being held without individualized suspicion that they were involved with terrorism.
Extending ‘Bivens’
In her 91-page dissent, Raggi concurred in the majority’s dismissal of plaintiffs’ claims under the Free Exercise Clause of the First Amendment. But she dissented from the rest, saying the majority failed to conduct the analysis required by the case law—the Second Circuit en banc decision in Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009)—on the standard for identifying the Bivens context.
“I conclude that plaintiffs’ constitutional challenges to an alleged executive policy for confining lawful arrested illegal aliens in the aftermath of the 9/11 attacks cannot pass the stringent test for recognizing a Bivens action,” she said.
Raggi also took sharp issue with the finding that the officials were not protected by qualified immunity in the wake of the unprecedented challenges following the hijackings and the murder of 3,000 people on 9/11.
“The law did not then clearly alert federal authorities responding to these challenges that they could not lawfully hold arrested illegal aliens—identified in the course of the 9/11 investigation and among the group targeted for recruitment by al Qaida in restrictive (as opposed to general) confinement pending FBI-CIA clearance of any ties to terrorism unless there was prior individualized suspicion of a terrorist connection,” she said. “Indeed, I am not sure that conclusion is clearly established even now.”
Meeropol said Wednesday she was “absolutely thrilled” by the majority’s decision.
“This is a huge victory in what so far has been a 13-year struggle by my clients and their advocates to hold the highest-level officials accountable for their 9/11 detentions and abuse,” she said. “It’s incredibly rare for the court to allow claims against officials at this level to move forward and that’s why its taken us 13 years to get this, but this decision is a huge step forward.”
The Department of Justice is reviewing the ruling, spokeswoman Nicole Navas said Wednesday.
Hugh Sandler, then of Crowell & Moring and now of Nussbaum Law Group, argued for Hasty.
Jeffrey Lamken of MoloLamken argued for Sherman.
William McDaniel, a partner at Ballard Spahr in Baltimore, argued for Ziglar.
Joshua Klein, a partner at Duval & Stachenfeld, argued for Hasty’s successor at the Metropolitan Detention Center, Michael Zenk, against whom all claims were dismissed.