Court rules Bush officials can be sued for post-9/11 detentions

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A top federal court on Wednesday ruled that people held for months on end for immigration violations following Sept. 11, 2001, can sue top government officials for racial profiling and other abuses.

The split decision from a three-judge panel on the 2nd Circuit Court of Appeals comes after more than a decade of litigation and could lead to increased scrutiny of the government’s behavior following the 2001 terror attack.  

“We simply cannot conclude at this stage that concern for the safety of our nation justified the violation of the constitutional rights on which this nation was built,” Judges Rosemary Pooler and Richard Wesley wrote in their 109-page decision.

“The question at this stage of the litigation is whether the [eight foreigners arrested on immigration charges] have plausibly pleaded that the [government officials] exceeded the bounds of the Constitution in the wake of 9/11,” they wrote. “We believe that they have.”

After being arrested for immigration charges, such as overstaying a visa or working without legal authorization after 9/11, the men were held for between three to eight months in New York or New Jersey. The men, who are all Arab or South Asian, were detained for being “suspected terrorists” and claim that they were abused by prison guards and subjected to extended solitary confinement.

In 2002, they filed a class-action lawsuit against then-Attorney General John Ashcroft, then-FBI Director Robert Mueller, and other federal and local law enforcement officials.

Wednesday’s decision allows that lawsuit to go forward.

“The Constitution defines the limits of the Defendants’ authority,” the two judges wrote, “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.”

In a 91-page dissenting opinion, Judge Reena Raggi said the court was not fit to decide on the issue, given the seeming lack of precedent.  

“Congress, not the judiciary, is the appropriate branch to decide whether the detained aliens should be allowed to sue executive policymakers in their individual capacities for money damages,” she wrote.

The lawsuit is Turkmen v. Ashcroft.