Detentions a horror US cannot forget
Innocent men detained for months or years after the September 11 attacks on suspicion of being Muslim got their day in the US Supreme Court this week.
The odds don’t look good. The court will probably dismiss their constitutional suit against the government officials who implemented the policies that had them arrested.
Yet this is one of those cases that deserves attention because it casts a harsh light on facts that Americans would rather forget. Call it the ‘‘It Can’t Happen Here’’ case. And remember: it can. And in 2001, it did.
The case dates 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 two reports by the Justice Department’s Office of the Inspector-General, and described in a detailed, balanced, 200-page opinion by the US Court of Appeals for the 2nd Circuit, Ashcroft and Robert Mueller, the director of the FBI, 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 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 one New York facility, detainees 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.
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. 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 and the directors of the detention facilities.
But the Supreme Court is unlikely to affirm the lower court’s decision. Its justices recently decided 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 September 11 – as a lesson in what not to do the next time there is a terrorist attack on US 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. – Bloomberg