Case Scheduled Inauguration Week, Newly Urgent in Face of Trump Presidency

December 19, 2016, Washington, D.C. – Today, the Center for Constitutional Rights (CCR) filed a brief with the U.S. Supreme Court urging it to affirm an appeals court ruling allowing former high-level Bush administration officials to be sued for their roles in the post-9/11 profiling and abuse of Muslim, Arab, and South Asian men. Former Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar argue that high-level officials who create and implement even clearly unconstitutional polices should be shielded from liability. Attorneys say the case is critically important as a deterrent against future executive abuse of power in the face of President-elect Trump’s campaign promises around Muslim profiling, immigration enforcement, and torture. It will be argued on January 18.

“Government officials cannot be allowed to violate the Constitution with impunity,” said Center for Constitutional Rights Senior Staff Attorney Rachel Meeropol. “With president-elect Trump touting registration for Muslim immigrants, the deportation of millions, and a return to waterboarding and ‘a hell of a lot worse,’ nothing could be more important than ensuring that no one is above the law.”

After the September 11, 2001 attacks, more than 700 men were rounded up and imprisoned for months, some in extremely brutal conditions, based on nothing more than their race or religion. They came to the attention of the FBI through citizen reports about such things as “Arabs” working long hours or “Middle Eastern” men renting post office boxes. Despite the clearly discriminatory nature of such tips, and though the Bush officials knew there was no reason beyond the men’s religion and ethnicity to suspect them of wrongdoing, Mueller ordered that each tip be thoroughly investigated and Ashcroft ordered that everyone arrested for any reason be held as a suspected terrorist until cleared by the FBI.

Some of the men were detained in a specially-created maximum security housing unit for months, isolated in solitary confinement and prohibited from any contact with the outside world, beaten, deprived of sleep, and denied the ability to practice their religion. Upon arrival at the detention facility in Brooklyn, many of the detainees had their faces smashed into a t-shirt pinned to the wall with a picture of the American flag and the words “These colors don’t run,” and were told “Welcome to America.” The blood-smeared shirt hung on the prison wall for months. Ultimately, the men were charged only with civil immigration violations, such as overstaying a visa or working without authorization, cleared of any connection to terrorism, and deported.

“This lawsuit is very important for me because if we win, this judgment will set a great example for others to get justice as well,” said plaintiff Ahmer Iqbal Abbasi. “The days I spent behind the bars were the worst days of my life, but I do have lots of positive memories, which is why I still hope life in the U.S.A. for Muslims will be fearless once again.”

In its detailed, 109-page ruling, the Second Circuit Court of Appeals explained:

“If there is one guiding principle to our nation it is the rule of law. It protects the unpopular view, it restrains fear‐based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color. The Constitution defines the limits of the Defendants’ authority; detaining individuals as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim exceeds those limits. 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 that decision. 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.”

Ziglar v. Abbasi (formerly Turkmen v. Ashcroft) was first filed by the Center for Constitutional Rights in April 2002 and has been working its way through the courts ever since. It was brought pursuant to the 1971 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Supreme Court first allowed individuals to sue federal officials for money damages for constitutional violations. Although federal prisoners frequently use this precedent to sue for violations of their rights while in federal prison, Bush-era officials are now arguing that an exception should be made for non-citizens swept up in the name of national security. The Supreme Court will hear the case on January 18.     

The former wardens and other officials at the Metropolitan Detention Center in New York City who oversaw the abuse are also defendants in the case.

Read the brief filed today on CCR’s case page.

The Abbasi plaintiffs are represented by the Center for Constitutional Rights, cooperating attorneys Michael Winger and Alexander A. Reinert, and Covington & Burling, LLP.