If We Don’t Have Accountability, There’s Nothing to Stop Unlawful Detention From Happening

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Janine Jackson: The Supreme Court has just reversed a federal Appeals Court ruling that would have allowed former top officials to be held accountable for the violation of the rights of the hundreds of Muslim, Arab and South Asian men swept up by programs and policies crafted by those officials in the wake of the September 11, 2001, attacks. Brought in on the strength of “tips” from people worried about the Arab-looking guy down the hall, men like the plaintiffs in Ziglar v. Abbasi had nothing to do with terrorism; there was no real reason to think they did. Nevertheless, they were locked away, abused grievously, with, in some cases, family and lawyers misled about where they were. After they were cleared of terrorism charges, the men were deported on immigration violations.

The Court didn’t seem to disagree these men’s rights were violated. So what did the ruling mean, and where do we go from here? Rachel Meeropol is a senior staff attorney and associate director of legal training and education at the Center for Constitutional Rights. She joins us by phone from here in New York. Welcome back to CounterSpin, Rachel Meeropol.

Rachel Meeropol: Thank you. It’s wonderful to be here.

The view of the majority, such as it is — this was a 4–2 ruling; Kagan and Sotomayor recused themselves, and Gorsuch wasn’t sitting yet when the case was heard — but the majority view was that bad things happened, but money damages aren’t appropriate? Or that damages aren’t appropriate, because we’re talking about federal officials, and so it’s not the Court’s role there? What was their thinking for reversing the ruling by the Second Circuit?

Well, that’s right. Basically what the majority in the Supreme Court held is that individuals whose constitutional rights are violated by federal officials simply cannot seek money damages from those officials when what they’re complaining about was something different than a one-time, spur-of-the-moment violation by a federal official. So the challenge in this case was to policies created after 9/11, policies to round up noncitizens based on religion, ethnicity and race; investigate them for ties to terrorism; keep them in restrictive confinement conditions as if they were terrorists while this was happening. And the Court ruled that that kind of policy decision is simply inappropriate for a damage remedy.

It’s very interesting to say that the claims don’t work against top officials because it’s a matter of policy. As if, well, if John Ashcroft had punched one of these guys in the face, that would be a damage, but setting up a policy in which that abuse could happen somehow diffuses it enough so that you can’t seek a remedy.

There’s really no logical explanation for it, honestly. I mean, a policy to violate the rights of hundreds of men is, I think most of us would agree, worse — more important to deter, more important to make sure it doesn’t happen again — than a one-off act of violence. The fact that so many men were injured in this way, in my mind, means that it was all the more important that officials should be held accountable. If we don’t have accountability, if the victims of civil rights violations can’t sue the people that made those violations happen, then there’s nothing to stop it from happening again, which is especially worrisome in this day and age, under this administration.

Absolutely. Well, let me just ask you, what is the significance of the inspector general reports from 2003? They documented the abuse, but they also seem to show the policy itself being unconstitutional.

That’s right. So the inspector general investigated what happened with the 9/11 detentions for years after the events, and published two scathing reports about the conditions of confinement in which these men were held, the lack of any real evidence at all connecting them to terrorism, and some of the individual abuses that occurred. And the Supreme Court seems to have accepted that this is what happened, that there were serious rights violations that occurred. The Court simply — or a majority of the Court — doesn’t seem to feel as though it’s their responsibility anymore to make sure that the Constitution is enforced. They’ve basically said that if Congress believes that individuals whose rights are violated pursuant to this kind of policy should be able to sue for damages, then Congress needs to pass a law to allow that to happen. Obviously, nobody is holding their breath.

What we want, of course, as you’ve said, is to prevent this from happening again. Are there other points of intervention to get to that end?

One interesting claim in the case that is not completely foreclosed for future litigants is this 1985 conspiracy claim. So Section 1985, the federal statute that was passed as part of the Civil Rights Acts back after the Civil War, allows an individual to sue over a conspiracy to deny equal protection under the law. The Supreme Court dismissed that claim and the case as well, but it did it on qualified immunity. It basically just ruled that it wasn’t clear that 1985 would apply to these types of claims. It doesn’t mean that future litigants can’t bring these types of claims in courts. And I think that that’s an avenue that we may need to look to in the future, to figure out some way to hold officials accountable when they conspire with other officials, or with private parties, to discriminate based on religion or race.

When we talked last, in September of 2015, you said how remarkable it was that what was then Turkmen v. Ashcroft had gone as far as it did, and you didn’t think a civil rights plaintiff had ever gotten discovery against Cabinet-level officials. And without that, of course, you won’t have the information to prove that person’s involvement, and to trace the connection all the way to the top, which is what was so special about this case. So of course it’s disappointing today, but what do you take that’s hopeful from this many-years-long fight that you’ve been in?

I think the fact that the case has just gone on this long, that it has been hanging over these former Bush administration officials’ heads for so long, that there are individuals courageous enough to stand up in court and seek justice for these types of violations, knowing that it may take decades on end, and they may lose at the end of the day — I take a lot of inspiration from that, and I know that will continue. We will all work together to continue to find a way, to try to find a way, to ensure that this sort of thing doesn’t happen again.

And then finally, when we spoke before, we also talked about understanding that rulings take place in a social context, and we know that if, in the wake of a terrible crime committed by a tall person, the state set a policy of rounding up and treating as suspects all tall people, that making the case that that was unreasonable would be a whole different story. It seems that beyond the Court and beyond the law, we have some questions to answer as a society about what we really mean by human rights.

That’s right, and I think really that raises the question of who bears the burden of these kind of techniques and policies. It seems to me incredibly relevant that the communities likely to be subjected to discriminatory and arbitrary national security policies are black and brown communities, communities that the conservatives on the Supreme Court may not have that much empathy for, when push comes to shove. That it seems that the rights of those individuals maybe don’t weigh quite as heavily as the rights of others, and that’s something we have to confront.

We’ve been speaking with Rachel Meeropol, senior staff attorney and associate director of legal training and education at the Center for Constitutional Rights. You can find their work online at CCRJustice.org. Rachel Meeropol, thank you very much for joining us today on CounterSpin.

Thank you.