“Friends of the Court” Urge Judicial Review for Post-9/11 Abuses

December 28, 2016, Washington, D.C. – Late yesterday, in the last case to be heard by the Supreme Court under President Obama, civil rights groups, scholars, and descendants of Japanese-Americans interred during World War II, filed friend-of-the court briefs in support of Muslim, Arab, and South Asian men rounded up, imprisoned, and abused following the September 11, 2001 attacks. In Ziglar v. Abbasi (formerly Turkmen v. Ashcroft), the Center for Constitutional Rights (CCR) is urging the Court to affirm an appeals court ruling allowing former high-level Bush administration officials to be sued for creating and implementing the clearly unconstitutional religious and racial profiling.

In their brief, Karen Korematsu, Jay Hirabayashi and Holly Yasui, three descendants of Japanese-Americans who were subject to internment during WWII, emphasized the importance of not extending immunity to high-level officials who engaged in clearly unconstitutional actions.

“Enforceable limits on executive power are essential to protect our constitutional and civil rights. Violations must have consequences. At a time when the incoming administration seeks a return to the policies of some of the darkest times in our nation’s history, the courts must ensure that no one is above the law,” said Jay Hirabayashi.

A brief filed by Muslim, Arab, South Asian and other civil rights groups notes the importance of judicial oversight of the executive branch, particularly in the face of an incoming administration that has promised to engage in Muslim profiling.

“Since 9/11, government policies have targeted Muslims, Arabs, and South Asians, sending the message to the public that it is acceptable to treat these communities as inherently suspicious and un-American,” said Amna Akbar, Assistant Professor at The Ohio State University, Moritz College of Law. “As a result, anti-Muslim prejudice has predictably worsened. The incoming Trump administration signals new, menacing threats to these communities.”

Following the 9/11 attacks, on the orders of former Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, more than 700 non-citizens were rounded up and imprisoned for months, some in extremely brutal conditions, based on nothing more than their race or religion. Many of the men were isolated in a maximum security housing unit and physically and psychologically abused. Ultimately, they were charged with civil immigration violations, such as overstaying a visa or working without authorization, cleared of any connection to terrorism, and deported.

A brief filed by a number of grassroots immigrants’ rights groups notes the importance of allowing the men to pursue accountability in the courts, given the harrowing nature of immigration detention in the United States. 

According to Professor Ranjana Natarajan, principal counsel on the brief and Director of the Civil Rights Clinic at the University of Texas School of Law, “The story of immigration detention is one of widespread abuses, from medical neglect to physical abuse, at facilities of all kinds across the country. Preserving a judicial remedy for serious constitutional violations like those alleged in this case is an important check against such abuses.”

Also filed yesterday were amicus briefs arguing that solitary confinement is physiologically and psychologically devastating and rarely used outside the United States; comparing U.S. accountability efforts to those of other Western countries, which regularly provide damages to victims of human rights violations by government officials; arguing that, given the strength of the allegations, it would be premature to dismiss the case; arguing that defendants’ approach would violate the Seventh Amendment right to a trial by jury; by former correctional officials, affirming that the wardens who were integral to the abuses that occurred should be held accountable; an additional brief by national civil rights and immigrants’ rights groups, noting that the Immigration and Nationality Act is not a substitute for a judicial remedy for the abuses in this case; and a brief arguing that religious discrimination of the kind practiced by the defendants is clearly prohibited by the Constitution.

For more information, visit 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.