CommunityThe Dissenter

Federal Appeals Court Revives Lawsuit Against Bush Officials for Post-9/11 Abuse of Immigration Detainees

A federal appeals court reinstated complaints in a lawsuit against former Justice Department officials, who allegedly violated the rights of Arab or Muslim immigrants in the immediate months after the September 11th terrorist attacks. It is very rare for this to happen.

The lawsuit, which was filed on behalf of eight former detainees in 2002 by the Center for Constitutional Rights, seeks to hold former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Commissioner of the Immigration and Naturalization Service James W. Ziglar accountable for subjecting immigrants to harsh confinement on the basis of their race, national origin, and religion. (Metropolitan Detention Center (MDC) and Passaic County Jail officials were also named as defendants in the lawsuit.)

In January 2013, a federal court dismissed the complaints after concluding there was no evidence the officials had any “intent to punish” the plaintiffs, who allege their rights were violated.

The Second Circuit Court of Appeals ruled [PDF] that the Justice Department officials were not entitled to “qualified immunity.” The appeals court also determined the confinement conditions imposed on immigrants, who were rounded up, were established with “punitive intent.”

“I am very delighted with the court’s ruling,” said Benamar Benatta, who is 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 US judicial system and gives me hope that justice will be served at the end.”

In Benatta’s case, he was cleared for release from detention on November 14, 2001, but despite the fact that the MDC had this information, Benatta was kept in solitary confinement until April 30, 2002.

The lawsuit indicates immigrants (or what the court refers to as “‘out of status’ aliens,”) were subject to a “hold-until-cleared policy,” and kept in confinement for “lengthy periods of times—often for months after they were ordered removed from the country—until the FBI affirmatively cleared them of suspicion of wrongdoing.”

The Muslim men, who are plaintiffs, were held in an Administrative Maximum Special Housing Unit ( “ADMAX SHU”). In a tiny cell, they were held:

…[F]or over 23 hours a day, provided with meager and barely edible food, and prohibited from moving around the unit, using the telephone freely, using the commissary, accessing MDC handbooks (which explained how to file complaints about mistreatment), and keeping any property, including personal hygiene items like toilet paper and soap, in their cells. Whenever they left their cells, they were handcuffed and shackled. Although they were offered the nominal opportunity to visit the recreation area outside of their cells several times a week, the recreation area was exposed to the elements and the MDC Detainees were not offered clothing beyond their standard cotton prison garb and a light jacket. Furthermore, detainees who accepted such offers were often physically abused along the way, and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment. As a result, they were constructively denied exercise during the fall and winter….

The men were “strip-searched every time they were removed from or returned to their cells, including before and after visiting with their attorneys, receiving medical care, using the recreation area, attending a court hearing, and being transferred to another cell. “ Each time they arrived at the MDC “in the receiving and discharge area and again after they had been escorted – shackled and under continuous guard – to the ADMAX SHU,” they were strip-searched, even though there was absolutely no opportunity for them to obtain contraband.

“[DOJ Defendants] seem to imply once ‘national security’ concerns become a reason for holding someone, there is no need to show a connection between those concerns and the captive other than that the captive shares common traits of the terrorist: illegal immigrant status and a perceived Arab or Muslim affiliation,” the appeals court stated.

Since all rounded up Arab or Muslim males could arguably appear to be part of a group al Qaeda targeted for recruitment, officials reasoned it was acceptable to hold Arabs or Muslims in harsh confinement conditions. There was nothing “punitive” about this to them because officials claimed they could not possibly know “they were not involved in terrorist activities.” Being in the US illegally and appearing to be Arab or Muslim justified detention.

The appeals court wholly rejected this defense:

…It presumes, in essence, that all out‐of‐status Arabs or Muslims were potential terrorists until proven otherwise.  It is built on a perception of a race and faith that has no basis in fact.  There was no legitimate governmental purpose in holding someone in the most restrictive conditions of confinement available simply because he happened to be—or, worse yet, appeared to be—Arab or Muslim…

…We believe, then, that the challenged conditions—keeping detainees in their cells for twenty‐three hours a day, constructively denying them recreation and exposing them to the elements, strip searching them whenever they were removed from or returned to their cells, denying them sleep by bright lights—were not reasonably related to a legitimate goal, but rather were punitive and unconstitutional.

At the end of the decision, the appeals court eloquently declared, “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.”

“Holding individuals in solitary confinement twenty‐three hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by al Qaeda violated the detainees’ constitutional rights,” the appeals court added.

“We are thrilled with the court’s ruling. The court took this opportunity to remind the nation that the rule of law and the rights of human beings, whether citizens or not, must not be sacrificed in the face of national security hysteria,” said Center for Constitutional Rights Senior Staff Attorney Rachel Meeropol.

Meeropol celebrated the fact that this case might be a rare opportunity to hold high-ranking officials accountable for abuse.

Benatta added, “It is time for those officials at the highest levels of government to stop hiding behind excuses and answer for their arbitrary and discriminatory decisions that affected, and in some cases ruined, innocent people’s lives.”

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."


  1. MrB206
    June 17, 2015 at 4:11 pm

    I think the ‘forced rectal feeding’ discussed in “The Senate Intelligence Committee Report on Torture” is all one needs to read/hear about to realize the detainees’ claims are generally valid. I’d argue the ‘intent to punish’ requirement could easily be met, as these men were held in response to a perceived action against the USA. Had these men not been labeled ‘terrorist’ and ‘enemy combatant’, the treatment obviously would not have been as harsh as it was.

  2. June 17, 2015 at 4:45 pm

    Peace Prize pardon coming in 3.2.1…

  3. Jaalleman
    June 17, 2015 at 4:45 pm

    @MrB206 – wtr to the forced rectal feeding point you brought up, I remember, back in the early days of the Abu Gharib scandal, arguing with my friends making the point that, in today’s battle field, If i was unfortunate enough to be captured by the enemy, I still would prefer it to be the American Army.

    I reminded them that back in WW2, even the Germans preferred the Americans, vs, say, the Russians. I reminded them about the cruel bamboo shoots under the nails in Vietnam, the Arab state security apparatuses penchant for genital electrocution and hanging by the feet.

    Not anymore, I have to admit, just the thought of being rectally fed is enough to shake me to my soul. Give me the bamboo needles under every nail while you proceed to pull them out with pliers. Fry my gonads till they pop – sprinkle me with fire, poke with me a pitchfork and water board me six ways from sunday.

    If i had the horrible choice of getting beheaded by a raving salafist (i’m not calling them Islamist for a good reason) or getting rectally fed by a nice American nurse, I would have to give it a thought – and that is saying something.

    P.S. I want to be clear that my revulsion towards this rectal feeding has nothing to do with fear of some type of dishonor or sexual humiliation – it is not homophopia. It is just horribly painful i would imagine – what a bunch of sadistic SOBs.

  4. bsbafflesbrains
    June 17, 2015 at 5:28 pm

    Look Forward Not Back! (unless you are Snowden)

  5. PCM
    June 17, 2015 at 5:55 pm

    And to think it took our brave, principled, fiercely independent federal courts only 13 years to reach this patently obvious conclusion. American immigration officials effectively got immunity for their crimes for 5 years longer than Pinochet did for his, and the Americans are answering only in civil, not criminal, court. (And guess who will foot the bill for damages. Hint: it’s not the officials.)

  6. Jsharp
    June 17, 2015 at 6:06 pm

    Could not have said it any better!

  7. kgosztola
    June 17, 2015 at 6:23 pm

    That did not happen to any of the men pursuing this lawsuit. They were not subjected to “forced rectal feeding.”

  8. sisterlauren
    June 17, 2015 at 7:53 pm

    I agree with you. It would take a really sick bastard to think that it was a good idea.

  9. sisterlauren
    June 18, 2015 at 1:31 pm

    I have been an activist for about 11 years. I have had my computer hacked God knows how many times. One thing I have learned is to not go to websites when I do not know who or what they are.

  10. sisterlauren
    June 18, 2015 at 1:33 pm

    Also, your Discus profile comes up as a complete blank. If that is not suspicious, then what is it?

  11. kgosztola
    June 18, 2015 at 5:48 pm

    This was a big deal for the plaintiffs in the case. It is a victory for justice. I don’t know if any of you are capable of positive thoughts in a world of so much horror, but please take a moment to be pleased with the outcome here.

  12. CloudyTheScribbler
    June 18, 2015 at 9:32 pm

    admittedly off topic but on my computer both Kevin’s fdl page and w/ this article there appears a huge online ad for natural gas — is this a paid ad w/fdl? I think they should sell ads to keep this online, but not to the big fossil fuel companies