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Court: High-level Bush administration officials can be sued for abuse

Ruling means six detained on immigration charges and subjected to abuse can sue former AG, FBI director

High-level officials in the George W. Bush administration can be sued by immigrants who were swept up in post-9/11 investigations and subjected to abuse while held in detention facilities, the Second Circuit Court of Appeals ruled Wednesday. 

The plaintiffs — all men of Middle Eastern, North African or South Asian descent — had either entered the United States illegally or had entered legally but overstayed their visa or were employed without a work authorization. Six are Muslim, one is a Hindu and another a Buddhist. 

Following the Sept. 11 attacks, the FBI and the Immigration and Naturalization Service (INS) arrested the eight men on immigration charges and held them as “terrorism suspects” based solely on their race, religion, ethnicity and immigration status — and not because of any suspected activities related to terrorism, according a civil rights lawsuit filed on behalf of the men by the Center for Constitutional Rights in 2002.

The eight named plaintiffs are seeking to represent a class of hundreds of noncitizens swept up in investigations.

This decision marks a "strong rebuke" against claims that intrusive policing is acceptable because of "amorphous national security concerns," Rachel Meeropol, a senior staff attorney at the Center for Constitutional Rights and the lead lawyer for the plaintiffs, told Al Jazeera.

The court ruling, she said, "sends a strong message [that] individuals are not suspicious because of their religion or their ethnicity — you cannot mistreat people based on those types of characteristics."

The detainees said their First, Fourth and Fifth Amendment rights — due process and equal protection — were violated. The suit is also part of a larger fight for immigrant rights and government accountability against such alleged abuse.

Wednesday's ruling means that the men who had been detained can move forward with their litigation against former Bush administration officials, including former Attorney General John Ashcroft and former FBI Director Robert Mueller. The court ruled that those officials and others are not entitled to immunity.

A district court judge had previously dismissed the claims against Ashcroft, Mueller and others on the grounds that the complaint didn't contain sufficient detail linking them to how the detainees were mistreated, the Center for Constitutional Rights said in a release. 

“I am very delighted with the court's ruling,” said Benamar Benatta, one of the plaintiffs in the case. “It has been a long and stressful process that has taken a tremendous toll on my life. However, it is this kind of bold decision that restores my faith in the U.S. judicial system."

Steve Vladeck, a law professor at the American University Washington College of Law, said, “It’s the most plaintiff-friendly circuit-level ruling in a post-9/11 suit by a mile."

"Given that the government will almost certainly appeal, this will be a crucial test case for the Supreme Court on whether any post-9/11 government misconduct should ever give rise to damages claims," Vladeck told Al Jazeera. 

Six of the men were detained for periods of time, ranging from three to eight months at Metropolitan Detention Center (MDC) in Brooklyn, New York while two others were held at Passaic County Jail in Patterson, New Jersey. They were eventually cleared by the FBI and CIA, but were then deported.

According to the suit, the six held in MDC were placed in tiny cells for more than 23 hours a day, strip searched whenever they were moved from or returned to their cell, given “meager and barely edible” food, denied sleep, verbally abused and denied basic hygiene items.

“It's an important ruling that helps restore accountability for some of the most egregious abuses committed in the aftermath of the 9/11 attacks. The decision provides a remedy for these gross violations,” said Jonathan Hafetz, a law professor at Seton Hall University School of Law.

But the court did find that the two men who were held in New Jersey were held in less restrictive conditions and they failed to “adequately plead” that the defendants acted with the discriminatory motivation. Their claims were dismissed on Wednesday. 

One of the plaintiffs who was held at MDC, Anser Mehmood, a Muslim from Pakistan, had come to the U.S. on a business visa in 1989 along with his wife and three children. He overstayed his visa and started a trucking business, bought a home in New Jersey and had a fourth child.

Mehmood's brother submitted an immigration petition for all of them in May 2001. Following the 9/11 attacks, FBI and INS agents came to Mehmood’s house, asked him if he “was involved with jihad” and said they were there to arrest his wife, whose name had surfaced in another investigation. Mehmood asked the FBI to take him instead because his wife was still breastfeeding, according to court papers.

When he arrived at MDC, corrections officers dragged him from the van and threw him into several walls. His left hand was broken in the altercation and the guards threatened to kill him if he asked any questions, the suit alleges. 

Ahmed Khalifa, another plaintiff held at MDC, was in the U.S on a student visa and came to the FBI’s attention when the agency received a tip that “several Arabs who lived at Khalifa’s address were renting a post‐office box, and possibly sending out large quantities of money.”

Wednesday's ruling also rejected an attempt to dismiss claims against prison officials at MDC who carried out the alleged abuse of the men. 

"[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 court wrote in its ruling.

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