Appeals Court Ruled Officials Could Be Sued for Unconstitutional Profiling and Abuse; Ashcroft, Ziglar, Mueller Seeking Reversal

October 11, 2016, Washington, D.C. – Today, the U.S. Supreme Court granted a request by former high-level Bush administration officials to review a 2015 ruling allowing them to be sued for their roles in the post-9/11 profiling, immigration detention, and abuse of Muslim, Arab, and South Asian men. Former FBI director Robert Mueller, Immigration and Naturalization Service (INS) Commissioner James Ziglar, and Attorney General John Ashcroft will be urging the Court to protect government officials who create and implement unconstitutional policies.   

“No one is above the law. To suggest that the most powerful people in our nation should escape liability when they violate clearly established law defies the most fundamental principle of our legal system,” said Center for Constitutional Rights Senior Staff Attorney Rachel Meeropol. “At a time when racial and religious profiling are put forward as serious policy proposals for dealing with everything from immigration to terrorism, it is more important than ever that the high court affirm that government officials, especially those at the highest levels, can be held accountable when they break the law. We look forward to making that argument before the justices.”

The plaintiffs in Turkmen v. Ashcroft and other men detained after 9/11 came to the attention of the FBI in 2001 through discriminatory tips by scared citizens about “Arabs” working long hours, or “Middle Eastern” men renting post office boxes. Mueller ordered that all such tips be thoroughly investigated, even those based on blind animus, and Ashcroft ordered that everyone arrested as a result be held as a suspected terrorist until cleared by the FBI, then deported. Though the men could only be charged with civil immigration violations, such as overstaying a visa or working without authorization, they were detained in solitary confinement for months and physically abused, suspected only due to their religion and ethnicity. Among other documented abuses, many of the men had their faces smashed into a wall where prison guards had pinned a t-shirt with the image of an American flag and the words, “These colors don’t run.” They were slammed against the t-shirt upon their entrance to prison and told, “Welcome to America.” The shirt was smeared with blood and stayed up on the prison wall for months.

Turkmen v. Ashcroft was first filed by CCR 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 who challenge unconstitutional government policy.           

“I was put in a hole like a grave for four months because I’m Muslim,” saidAnser Mehmood, a plaintiff in the lawsuit who was held in solitary confinement. “The guards called us camels and kept us from sleeping and praying. Meanwhile I was so worried for my kids who were at home. I was never handcuffed in my whole life before this ordeal. Even after 15 long years I still feel the shame of being cuffed and shackled. I want our day in court to finally come so those responsible for our pain will have to answer for the laws they broke.”

CCR had urged the Court not to take the case, arguing that the Second Circuit Court of Appeals’ decision reinstating the due process and equal protection claims against Ashcroft, Mueller and Ziglar for punitive conditions of confinement and racial and religious profiling was rightly decided. That court 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."

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

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