The Justice Department has requested a federal appeals court revisit and reverse its decision to revive a lawsuit against former Justice Department officials, who allegedly violated the rights of Arab or Muslim immigrants when they were detained in the immediate months after the September 11th terrorist attacks.

Attorneys for the Justice Department argue, regardless of whether immigrants had their rights violated, former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Commissioner of the Immigration and Naturalization Service (INS) James W. Ziglar adopted reasonable policies “in an effort to protect the nation during a turbulent time.” The former officials should not be liable for rights violations.

In 2002, the Center for Constitutional Rights filed a lawsuit on behalf of eight former immigrant detainees. The complaint sought to hold officials 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.)

More than a decade later, in January 2013, a federal court dismissed the complaints and concluded there was no evidence the officials had any “intent to punish” the plaintiffs.

However, in June, the Second Circuit Court of Appeals ruled 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.”

Justice Department attorneys now assert in a filing submitted to the court on August 14 [PDF] the appeals court was out of line to decide the former officials could be sued for violations of due process or equal protection rights.

As the attorneys note, the focus in the lawsuit is on abuse, which allegedly occurred in the administrative maximum unit of solitary confinement cells at the MDC in New York. Plaintiffs allege “former Attorney General and FBI Director directed that immigration detainees designated ‘of interest’ to the 9/11 investigation should be held until they were cleared of any connection to terrorism.” The Justice Department maintains the Supreme Court ruled this to be “legitimate policy” in Iqbal v. Ashcroft.

Javaid Iqbal, a Pakistani Muslim, was one of the many innocent immigrants rounded up after 9/11. The Supreme Court ruled he could not sue Ashcroft or Mueller for degrading strip searches or beatings he suffered while in detention.

Current and former government officials have seized upon the decision to make it harder for powerless individuals to sue the government, and it has substantially increased the rate of dismissal for civil lawsuits.

Justice Department attorneys reject the idea that the former officials knew undocumented immigrants were detained in harsh conditions in New York and that the detainees had no ties to terrorism except for the fact that they were or appeared to be Arabs or Muslims.

“The obvious explanation,” for what happened, the attorneys argue, “is that the Attorney General and FBI director acted cautiously to ensure that all those detained in connection with the 9/11 investigation would be held until they were cleared.” This is a “reasonable policy judgment.”

Attorneys for the government dismiss the theory that the rounding up of immigrants received “media attention” and the high-ranking officials would have been aware of conditions being imposed. The attorneys insist this fails to allege individual misconduct on the part of Ashcroft.

Similarly, the appeals court accepted the theory that the former officials would have known individuals were being targeted based on ethnicity or religion.

“There is no plausible allegation that Ashcroft or Mueller knew that any individual plaintiff was free from suspicion and was mistreated,” the attorneys declare.

The detainees at issue in this lawsuit were strip-searched each time they were removed or returned to their cells. They were subjected to abusive searches, even when they had no opportunities to obtain any contraband.

In regards to the appeals court’s decision to deny the former officials “qualified immunity,” the Justice Department attorneys state, “[T]he former Attorney General and FBI Director are entitled to qualified immunity because they did not violate any clearly established constitutional rights.”

“The policy at issue here was lawful by any measure: Plaintiffs were aliens properly subject to detention and arrested in conjunction with a lawful investigation into the September 11 attacks, and they could be held until they were cleared of any connection to terrorism.”

Such a position was flatly opposed by the appeals court in June.

The appeals court pointed out all rounded up Arab or Muslim males could arguably appear to be part of a group al Qaeda targeted for recruitment. As a result, 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 their detention.

“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,” the appeals court declared. “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.”

“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 appeals court concluded.