Arabs, Muslims can sue U.S. officials

By Jonathan Stempel

A divided U.S. appeals court said the federal government's top law enforcers can be sued by former inmates who claim their civil rights were violated while jailed after the Sept. 11, 2001 attacks because they were Arab, Muslim or stereotyped that way.

Wednesday's 2-1 decision by the 2nd U.S. Circuit Court of Appeals prompted an impassioned dissent that the ruling could make it harder to protect the country against terrorism.

The court revived claims against Bush administration officials including Attorney General John Ashcroft, FBI director Robert Mueller and Immigration and Naturalization Services Commissioner James Ziglar by former inmates at Brooklyn's Metropolitan Detention Center.

These inmates claimed they were illegally singled out as Muslims, Arabs or South Asians for 23-hour-a-day solitary confinement, strip searches, sleep deprivation and other abuses.

"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," Circuit Judges Rosemary Pooler and Richard Wesley wrote in an unusual, 109-page joint decision.

U.S. District Judge John Gleeson in Brooklyn had in 2013 dismissed the claims against the U.S. officials, while allowing some claims against the jail's wardens.

But the 2nd Circuit said Ashcroft, Mueller and Ziglar could be sued under the 1971 Supreme Court precedent Bivens v. Six Unknown Named Agents, over policies that treated some immigrant inmates as suspected terrorists though no suspicion existed.

Pooler and Wesley said it did not matter that the officials did not require or specify how the inmates should be confined.

In a 91-page dissent, Circuit Judge Reena Raggi blasted the majority for becoming the first court to allow Bivens claims against Executive Branch officials for national security policies "propounded to safeguard the nation" after Sept. 11.

The law did not require restrictive confinement only upon a "prior individualized suspicion of a terrorist connection," Raggi wrote. "Indeed, I am not sure that conclusion is clearly established even now."

Rachel Meeropol, a lawyer for the Center for Constitutional Rights representing the inmates, welcomed the majority decision.

"The rule of law and the rights of human beings, whether citizens or not, must not be sacrificed in the face of national security hysteria," she said.

The U.S. Department of Justice, which defended Ashcroft and Mueller, had no immediate response. Ziglar's lawyer declined to comment. Lawyers for the wardens had no immediate response or declined to comment.