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

Former Attorney General John Ashcroft (Photo by Gage Skidmore)

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. (more…)

Yemeni Whose Family Was Killed by Signature Drone Strike Sues US Government

Faisal bin Ali JaberA Yemeni civil engineer has filed a lawsuit in a United States federal court requesting that a judge declare that a drone strike was unlawful and resulted in the wrongful deaths of two members of his family.

On August 29, 2012, Faisal bin Ali Jaber’s brother-in-law, Salem, and his nephew, Waleed, were killed. The drone strike was reportedly a “signature strike,” which means based on patterns of life an attack team decided to carry out the strike that killed his family.

Salem, according to the complaint filed by Reprieve, was “an imam known locally for his sermons against terrorist violence.” Days before Salem’s death, “he had preached in Khashamir against al Qaeda and its methods.”

“Faisal’s nephew Waleed was the village’s local traffic policeman, who accompanied Salem as protection to an evening meeting with three youths who had driven into the village earlier in the day and had asked to meet with Salem. These three young men were the apparent targets of the drone strike,” the complaint claims.

“While the drone operators fixed on the visitors as their principal targets, Salem and Waleed were anonymously—but deliberately—attacked simply for having spoken to them.”

The complaint argues that Khashamir was not nearby “any battlefield” and, therefore, there was no “urgent military purpose or other emergency” to justify exterminating Salem and Waleed.

“The strike plainly violated the Torture Victim Prevention Act’s ban on extrajudicial killings,” the complaint further suggests. “Even if the strikes were taken as part of the United States’ war on al Qaeda, the strike violated the principles of distinction and proportionality. These are established norms of the laws of war, which are elements of customary international law that the United States explicitly acknowledges bind this country and apply to its drone warfare operations.”

An unnamed Yemeni official contacted family to offer condolences, which could be viewed as a tacit admission that wrongful deaths occurred.

Faisal bin ali Jaber pursued avenues of justice in Yemen but was met with “official silence.” He traveled to the US in late 2013 to meet with members of Congress and representatives of President Barack Obama’s National Security Council.

“Do they approve of such a policy? Do they approve of the killing of innocent civilians in a very far country?” Jaber wanted to find out. Or, are they people who believe Yemen means them no harm? “What is their reaction? Are they a peaceful society which really doesn’t mean any harm to other people?”

While officials were willing to offer “personal condolences” for his loss of family, “they could not or would not explain the reason for the attack or acknowledge officially that a US drone killed” his relatives.

Obama acknowledged weeks ago that a US drone had killed two hostages, an Italian and an American, who were being held hostage by al Qaeda. He stated that victims’ “families deserve to know the truth” and maintained that his apology demonstrated how the US is willing to “confront squarely our imperfections and to learn from our mistakes.”

In the filed complaint, Reprieve asks, “The President has now admitted to killing innocent Americans and Italians with drones; why are the bereaved families of innocent Yemenis less entitled to the truth?” (more…)