Detention of Innocent Muslims Is a Horror We Can't Forget

(Bloomberg View) -- Innocent men detained for months or years after the Sept. 11 attacks on suspicion of being Muslim got their day in the U.S. Supreme Court on Wednesday. The odds don’t look good. The court will probably dismiss their constitutional suit against the government officials who implemented the policies that arrested immigrants who had overstayed their visas and held them in abusive conditions until after they had been affirmatively proved innocent, and sometimes beyond.

Yet this is one of those cases that deserves attention because it casts a harsh light on real-world facts that we’d rather forget. Call it the “It Can’t Happen Here” case. And remember: It can. And in 2001, it did.

The facts are the most important aspect of the case, Ziglar v. Abbasi. They date back to the immediate aftermath of  attacks on the World Trade Center and Pentagon, when a panicked and embarrassed Department of Justice under Attorney General John Ashcroft embarked on an unprecedented effort to detain Muslims on the basis of almost no suspicion at all.

As detailed in tworeports by the Justice Department’s Office of the Inspector General, and described in a detailed, balanced, 200-page opinion by the U.S. Court of Appeals for the 2nd Circuit, Ashcroft and Robert Mueller, the director of the Federal Bureau of Investigation, adopted a policy of arresting any immigrant named in a tip to the FBI who was found to have overstayed his or her visa. Then the arrestees became subject to a “hold until cleared” policy that kept them locked up until the FBI could determine that they were harmless and communicate that to their jailers.

In the week after the Sept. 11 attacks, the FBI got 96,000 tips regarding Muslims or Middle Easterners (you read that right) -- and investigated all of them, with no effort made to determine the quality of the information. That led to an unknown number of arrests. Ultimately, 762 people were subjected to the hold-until-cleared detention policy.

If that isn’t worrisome enough, the conditions of detention were deeply shocking -- a kind of domestic minor league version of black sites and Abu Ghraib. Federal officials told prison officials to find ways to “exert maximum pressure” on the detainees.

That meant blocking the detainees from contact with family or lawyers, but it went much further. At the Metropolitan Detention Center in Brooklyn, New York, the detainees were held in a special housing unit. They were confined to their cells for 23 hours a day under bright lights. Some were deprived of sleep by being woken every 20 minutes. They were denied toilet paper, soap or utensils. When they left their cells they were strip-searched and cavity-searched. They were subjected to humiliating sexual comments and frequent verbal abuse.

According to the 2nd Circuit and the inspector general, the detainees were also physically abused. Practices included “slamming … into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways.”

Wednesday’s case was brought by eight men -- six Muslims plus one Hindu and one Nepali Buddhist accidentally swept up in the craze, and all completely innocent -- who were detained at the Brooklyn facility and at another in New Jersey. They were held for months or years, even after their innocence had been determined.

Remarkably, the 2nd Circuit allowed the former detainees to sue a number of government officials including Ashcroft, Mueller, Immigration and Naturalization Service Director James Ziglar, and the directors of the detention facilities. The legal basis for the suit is what’s known as a Bivens action, after a landmark 1971 decision called Bivens v. Six Unknown Federal Narcotics Agents.

The Bivens precedent allows someone whose Fourth Amendment rights against unlawful search and seizure have been violated to sue government officials directly. That fits the detainees, the appeals court held.

The officials are urging the Supreme Court to reverse the 2nd Circuit’s decision. They claim that the facts of the case don’t match the Bivens facts closely enough; that they’re entitled to immunity from suit because what they did wasn’t barred by clearly established law when they did it; and that the detainees’ complaint isn’t specific enough in attributing unlawful actions to them in particular.

Unluckily for the detainees, Justices Elena Kagan and Sonia Sotomayor are both recused, the former probably because the case was alive when she was solicitor general, the latter because she was on the 2nd Circuit as the case made its way through the courts. That leaves six justices sitting. The detainees therefore need both Justices Stephen Breyer and Ruth Bader Ginsburg as well as at least one conservative to get a tie that would affirm the 2nd Circuit.

That’s unlikely to happen. The justices recently decided unanimously that a police officer should be immune from a lawsuit unless there is a precedent holding officers liable in very similar factual circumstances. Applying that logic might lead to dismissal of the detainees’ suit.

That’s too bad, because we need to be reminded of what actually happened after Sept. 11 -- as a lesson in what not to do the next time there is a terrorist attack on U.S. soil. As we inaugurate a president who has called for barring Muslim immigrants, the lessons of panic, overreach and bias are more important than ever.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.