In Post-9/11 Mass Detention Case, Court Decides If Government Officials Are Always Above the Law

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More than 1200 men were caught in a dragnet of racial profiling after the attacks of September 11, 2001. About 700 were held, some for months, at federal detention centers such as the Metropolitan Detention Center (MDC) in Brooklyn as "persons of interest" to terror investigators; most were deported.

The Center of Constitutional Rights wants to hold high-level Bush administration officials personally responsible for decisions they made in their professional capacity, positioning that no one is above the law. The Supreme Court heard their case, Ziglar vs Abbassi, on January 18, 2017. The case’s decision could have a significant impact on how Muslims are treated under a Trump administration.

“The case alleges that former Attorney General John Ashcroft created and implemented a policy of rounding up and detaining Arab and South Asian Muslims to question about terrorism shortly after 9/11,” says Bahar Azmy, Legal Director of the Center for Constitutional Rights.

Azmy says that former FBI director Robert Mueller — going against FBI practice —ordered that all citizen tips be thoroughly investigated, even those that were based nothing more than religion or ethnicity, such as reports of “Arabs” working long hours, or “Middle Eastern” men renting post office boxes.

Azmy shares that one of CCR’s clients was apprehended by the FBI when his landlord called the FBI hotline to report that she rented an apartment to several Middle Eastern men, and that she ‘would feel awful if her tenants were involved in terrorism and she didn’t call.’

“Ashcroft ordered that the Arab and Muslim men who were arrested nevertheless be held as suspected terrorists until cleared by the FBI—turning the presumption of innocence on its head.

Those who survived the human rights abuses committed by the U.S. government have been fighting for accountability for more than 14 years.

Benamar Benatta, one of the plaintiffs in the case, came to Washington D.C. from Toronto for the hearing. In terrible series of unfortunate events, he overstayed his U.S. visit visa and was seeking asylum in Canada six days prior to 9/11. He is originally from Algeria. A Muslim Arab with an aviation engineering and military background, he became a prime suspect.

He described being held in circumstances that resembled other “War on Terror” prisons. He was placed in solitary confinement–- in ‘the box’, which was “illuminated 24 hours a day”. The United Nations did an investigation into his case."They called it a form of torture...humiliation, sleep deprivation, beating, and interrogation,” he says, touching his nose that was broken in detention. He didn't want to place himself in the shoes of the prisoners in Guantánamo, “because they have bad,” he says in an interview with the Muslim Link. “...Brooklyn Abu Ghraib,” he adds, about the detention, looking much older than his 43 years. Of all the 9/11 detainees, he spent the most time “caged like an animal” — 5 years — despite being cleared by the FBI.

“The days I spent behind bars were the worst days of my life, I was absolutely unaware of the charges. I know that they knew from the first day that they got a wrong guy, but they kept me custody long after that,” states Ahmer Iqbal Abbasi, another plaintiff in the case who overstayed his visa, relaying similar experiences as Benatta.

The damage is done, says Benatta, as he is unable to find a job in the aerospace industry — his passion — despite a new Canadian. “Once placed on the terrorism list, you never really get off of it,” he says.

Three cases consolidated under Ziglar vs. Abbasi before the Supreme Court were brought by a group of Muslim and Arab men who were in the United States illegally and were arrested after the September 11, 2001, attacks.

CCR claims that their rights were violated when they were held in detention centers under unreasonably harsh conditions until they were cleared of any connection to terrorism, even though federal officials knew that they had no connection to terrorism, solely because of their race and ethnicity.

The cases have been going on for a long time. While an appeal was pending, some of the plaintiffs settled their claims against the government and the U.S. Supreme Court decided Ashcroft v. Iqbal, which held that a complaint must allege sufficient facts to be plausible on its face and to allow a court to draw the reasonable inference that the defendant is liable for the claimed conduct. Based on these events, the U.S. Court of Appeals for the Second Circuit allowed the plaintiffs to amend their complaint. The appellate court again dismissed some of the claims and allowed others to proceed.

“You are in charge of detention facility... [how are you not aware] prisoners’ arms are being twisted?” Justice Ruth Ginsburg questioned the former Warden in charge of the Metropolitan Detention Center, Dennis Hasty, about the harsh treatment and injuries of the prisoners, during the hearing.

“This court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion,” stated Rachel Meeropool, Center for Constitutional Rights senior staff attorney, at the Supreme Court hearing on January 18, 2017.

“Government officials cannot be allowed to violate the constitution with impunity,” Meeropool said to the Guardian.

According to Andy Worthington, the co founder of Close Guantanamo, when Benatta’s case was finally reviewed in a court, in September 2003, Federal Magistrate Judge H. Kenneth Schroeder Jr. concluded that not only was Benatta was “undeniably deprived of his liberty” in what he called a “sham,” but that the explanations offered for the sham “bordered on ridiculousness”.

There are three separate questions for the Court to review. Whether non-citizens discriminated against and abused in the name of national security can sue high-level government officials in what's known as a Bivens action. Bivens, explains CCR’s lawyers, was a Supreme Court case from the 1970s that first gave people the right to sue federal officials for money damages for violating the Constitution (in that case the 4th Amendment). The Supreme Court also looked into whether the plaintiffs in this case have adequately pled that the high-level government defendants were responsible for violating their rights. Specifically, the Court will have to decide if plaintiffs' allegations sufficiently demonstrate that Ashcroft, Mueller, and Ziglar devised a plan to hold Muslim, South Asian, and Arab non-citizens in restrictive conditions while they were investigated for ties to terrorism, while knowing there was no non-discriminatory reason to suspect them of such ties.

Another important aspect of the case is questioning the legal doctrine "qualified immunity” that protects high-level government officials when they act in good faith, but nevertheless break the law.
Defendants are arguing that it wasn't clearly established in 2001 that the Constitution forbids placing people in ultra-restrictive conditions of confinement based on their religion and race.
“Tomorrow the [defendants] want the case against them dismissed; they want immunity [and] want the court to declare that they are above the law. The best outcome would be that the court disagrees with them and concludes that high level officials even in a national emergency are held accountable. Then, we are allowed to go forward and get to cross examine John Ashcroft,” says Azmy at a CCR event at Busboys and Poet, a DC intellectual hub. Dr Maha Hilal, of the DC Justice for Muslims Coalition, says the moral exclusion of Muslims increasing target non-citizens and citizens. “Muslims are seen solely as a security risk in the War of Terror,” she commented at the same event.

“Ziglar v. Abbasi is a defining moment for the rule of law. Along with some of CCR’s other cases challenging torture, extraordinary rendition and arbitrary detention, it takes us back to the worst abuses of the Bush Administration’s post 9/11 responses,” notes Azmy, “but, it also lunges us forward into a world where potentially unchecked executive power will fall into the hands of an extremely dangerous man.”

“It’s pretty clear to us that we’re going to have to think about new engagement strategies with the Trump administration,” says Vince Warren, executive director of CCR. He believes that under the Obama administration there were opportunities to engage through dialog, and that was in addition to litigation. “But the opportunities to engage in dialogue with the Trump administration appear next to nothing,” he adds.

“If your faith is not strong, I don’t think you can survive, you will lose your mind— God kept me going,” stresses Benatta, as he does the difficult task of recalling his torture and ruined career. He, his co-plaintiffs and the rest of the nation await the Supreme Court decision.