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9/11 Detainees May Sue Ashcroft and Others for Rights Violations

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By Casey C. Sullivan, Esq. on June 18, 2015 12:59 PM

Muslim and Arab men who were wrongfully detained can sue former attorney general John Ashcroft and other Bush-era officials for violating their constitutional rights, the Second Circuit ruled yesterday. The class action lawsuit, filed by former 9/11 detainees, alleges that Ashcroft and others established a discriminatory policy of arresting and detaining Muslim and Arab men following the attacks and keeping them in abusive conditions.

In a lengthy ruling, Second Circuit said that under the alleged facts, based largely on a government investigation, the Department of Justice and FBI put in place policies which violated the detainees civil rights and took no steps to stem the abuse when they knew detainees were not terrorism suspects. The development means that the Bivens suit, which has dragged on for over 13 years and which targets officials in their individual capacity, can go forward.

Harsh Conditions for Detainees

Following the attacks on the World Trade Center and Pentagon on September 11th, 2001, the FBI, INS, and DOJ initiated a sweeping investigation. According to a lawsuit, that investigation resulted in a "hold-until-cleared" policy where any non-citizen Muslim or Arab man who had violated his visa and was "encountered during the investigation of a tip," would be arrested and detained, regardless of whether he was a legitimate suspect or not.

The eight men who filed the class action were detained for three to eight months but were never considered serious suspects. The detention center where the men were kept was made of "tiny cells," where detainees were confined for 23 hours a day, with "meager and barely edible" food, bright lights, and degrading conditions. According to 9/11 detainees, they were often subject to abuse from guards, including being kept from sleeping and regularly strip searched.

National Security Doesn't Protect Against Suit

The Court explicitly rejected the government's national security defenses. While national security concerns may have motivated the government's actions, they do not prevent the 9/11 detainees from suing over those actions. As the Second Circuit wrote, "the suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days following 9/11 is not without a remedy."

If the facts are as alleged, the 9/11 detainees' conditions were "punitive and unconstitutional" and a result of the decisions of high level government officials. The court notes, however, that discovery could prove otherwise.

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