Appeals Court Stands By Decision to Allow Lawsuit Against High-Level Bush Officials for Post-9/11 Abuses

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December 11, 2015, New York – Today, in a case brought by the Center for Constitutional Rights (CCR), the Second Circuit Court of Appeals refused to reconsider a historic ruling by a three-judge panel that high-level former Bush administration officials may be sued for their roles in the post-9/11 immigration detentions, abuse, and religious profiling of Muslim, Arab, and South Asian men. The former officials named in the case, Turkmen v. Ashcroft, are Attorney General John Ashcroft, FBI director Robert Mueller, and INS Commissioner James Ziglar. Six judges voted to rehear the case, and six voted to let the decision stand; a majority is required to rehear a case.

Judges Richard C. Wesley and Rosemary S. Pooler wrote in a concurring opinion today: “This case has drawn this Court’s attention now for over thirteen years. The majority opinion and dissent have analyzed many arguments … and hundreds of cases. The length of our efforts now fills many pages.  In our view, it is time to move the case forward.”

Anser Mehmood, one of the men suing the officials, agreed:  “We have a belief from day one that America is built on very strong principles of justice. 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 15 long years, and now we are one step closer.”

In the months after 9/11, hundreds of Muslim, Arab, and South Asian men were swept up and imprisoned, many in the Metropolitan Detention Center in Brooklyn, where they were detained as “suspected terrorists” and physically abused. Claims in the case include allegations that former Attorney General Ashcroft ordered the INS and FBI to search out individuals with ties to terrorism by, among other means, looking for Muslim-sounding names in the phonebook. The district court dismissed the claims against high-level Bush officials on the grounds that the complaint did not contain sufficient detail linking them to how the detained men were mistreated. Reversing that decision, in a detailed, 109-page decision in June, the Second Circuit panel roundly rejected the government’s national security justification for racial profiling, writing:

[W]e simply cannot conclude at this stage that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built. The question at this stage of the litigation is whether the MDC Plaintiffs have plausibly pleaded that the Defendants exceeded the bounds of the Constitution in the wake of 9/11. We believe that they have.

“This is a victory for accountability,” said Center for Constitutional Rights Senior Staff Attorney Rachel Meeropol. “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.  Our case makes it crystal clear that responsibility lies at the highest levels of government, and our clients deserve the opportunity to take those who caused their ordeals to court.”

Though they were only charged with civil immigration violations such as overstaying a visa or working without authorization, the plaintiffs in Turkmen v. Ashcroft and other men detained after 9/11 were placed in solitary confinement for months, physically abused, and held until they were cleared of any connection to terrorism by the FBI, then deported. The government considered them dangerous based solely on their race and religion. Among other documented abuses, many of the 9/11 detainees had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.” The men were slammed against the t-shirt upon their entrance to MDC and told, “Welcome to America.” The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.

In its ruling dismissing claims against the Bush administration officials, the district court allowed claims against the MDC warden and other prison administrators to proceed. In its ruling reinstating claims against Ashcroft, Mueller, and Ziglar, the three-judge appellate panel simultaneously affirmed that aspect of the district court’s decision.

To learn more about the case, visit the Turkmen v. Ashcroft case page.

The Turkmen plaintiffs are represented by the Center for Constitutional Rights, cooperating attorney Michael Winger, and Covington & Burling, LLP.

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December 11, 2015