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Supreme Court: High-Level Bush Officials Immune from Liability for Muslim Profiling, Abuse

June 19, 2017 (4 min read)

But Possibility to Prove Liability of Prison Administrators Remains

June 19, 2017, CCR - "Today, the U.S. Supreme Court reversed a federal appeals court ruling that former high-level Bush administration officials may be sued for their roles in the post-9/11 profiling and abuse of Muslim, Arab, and South Asian men. In the wake of the 9/11 attacks, hundreds of non-citizen Muslim, Arab, and South Asian men were rounded up solely on the basis of their race, religion, ethnicity, and immigration status. They were held in extremely restrictive confinement and physically and psychologically abused. The Court held that high-level government officials who implement and create clearly unconstitutional policies alleged to be based on national security are nonetheless shielded from liability.

“We are very disappointed with the Court’s dismissal of our clients’ claims,” said Center for Constitutional Rights Senior Staff Attorney Rachel Meeropol. “The Court’s decision allows for high-level officials to violate the Constitution without fear of personal accountability—a dangerous message in this time of rampant state-sponsored discrimination against Muslim and immigrant communities. As Justice Breyer noted in dissent, ‘If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.’” Meeropol added, “I fear our house is ablaze.”

However, the Court allowed plaintiffs an opportunity to prove their case against Warden Hasty, finding that complaint’s allegations at this stage of the case, “plausibly show the warden’s deliberate indifference” to the abuse plaintiffs suffered while they were held at the MDC. The claims against the Warden will be sent back to the lower courts for an opportunity to show that prison administrators are not entitled to the same immunity given to high-level officials in this case.

The Supreme Court’s decision reversed an earlier ruling by the Second Circuit Court of Appeals that allowed claims to go forward against former Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar. The plaintiffs in the case were arrested based on citizen tips reporting activity such 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 race, religion, and ethnicity to suspect them of ties to terrorism, Mueller ordered that each be thoroughly investigated and Ashcroft ordered that everyone who fit the profile be held as a suspected terrorist until cleared by the FBI.

Justice Breyer, joined by Justice Ginsburg (Justices Kagan and Sotomayor had recused themselves from the case and could not participate in the ruling), read a powerful dissent from the bench, the first time he has done so this year. He stressed the significance and seriousness of plaintiffs’ claims and the central role the courts must play to check executive abuses. Comparing the majority’s decision to other regrettable episodes in U.S. history when the courts looked the other way, including Japanese internment, he wrote: “In wartime as well as in peacetime, it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy for the most flagrant and patently unjustified, unconstitutional abuses of official power.”

Many of the detained men were held in a specially created maximum security housing unit for months, held in solitary confinement and prohibited from contact with the outside world, beaten, deprived of sleep, and denied the ability to practice their religion. Upon arrival at MDC, many of the detainees had their faces smashed into a t-shirt pinned to a 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 with civil immigration violations, such as overstaying a visa or working without authorization, cleared of any connection to terrorism, and deported.

Benamar Benatta, who now resides in Canada, said, “Being labeled a terrorist and sitting there in your small cell without any distraction or reading material, not knowing what will happen to you or where you will end up is the worst thing that can ever happen to a human being.”

Mr. Benatta traveled to the U.S. for the first time since his ordeal to witness his case being argued before the Supreme Court. He continued, “This is a total failure of justice in my opinion. To this day we see high-level officials either retired or still holding office talk and praise the effectiveness of torture and mistreatment of detainees despite mounting evidence to the contrary! It is only by holding high-level officials to account when their policies are ineffective or discriminatory that a country can properly heal and look forward to the future. I am very disappointed.”

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.

Read today’s opinion here. For more information on the case, 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."