Posted by Nadia Aziz on August 05, 2015 in Blog

469px-John_Ashcroft_by_Gage_Skidmore.jpgIn the weeks following the September 11th attacks, hundreds of Arab and Muslim (or those perceived to be Arab or Muslim) men were swept up on immigration charges and held in detention centers. Based solely on their religion, ethnicity, and immigration status they were held as terrorism suspects, despite having no ties to terrorist activities. They were held for months after they were cleared of any links to terrorism.

Many of these men were held in specially created high security prison units. The conditions were abusive and unduly restrictive. They endured solitary confinement for 23 hours a day. They were deprived sleep and contact with the outside world. They werebeaten, verbally abused, and subject to excessive and humiliating strip searches. The men were denied edible food, basic toiletries and the right to practice their religion.  They were held in these conditions for months on end.

In 2002, several of the detainees filed a class action lawsuit against senior level officials in the Bush Administration, including former Attorney General John Ashcroft and wardens at the detention centers. The lawsuit, Turkmen et al. v. Hasty et al., was the first major legal challenge to the policies and practices of the post-9/11 detention of Arab and Muslim men. After more than a decade of litigation, a high level federal court, the United States Court of Appeals for the Second Circuit, issued a decision that gives the case the “go ahead” to proceed.

Despite being filed in 2002, the lawsuit is still in the beginning stages of litigation. The decision issued last month said the Judges believe the plaintiffs have plausibly pleaded that government officials exceeded the bounds of the Constitution in the wake of 9/11. In the split decision, Judges Rosemary Pooler and Richard Wesley wrote,  “We simply cannot conclude at this stage that concern for safety of our nation justified the violation of the constitutional rights on which this nation was built.”

As the decision says, “The Constitution defines the limits of the Defendants’ authority; 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.”  They added, “The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.”

1280px-Fed29jail5bbtjeh.jpg

The Court’s split decision concluded with final thoughts, “If there is one guiding principle to our nation, it is the rule of law. It protects the unpopular view, it restrains fear-based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color.”

This milestone in the Turkmen case is a stark reminder of the questionable immigration practices that were implemented in the wake of 9/11. One such practice was the National Security Entry-Exit Registration System (NSEERS) that was initiated in 2002 as a domestic component of the “War on Terror.” NSEERS required men and boys from predominately Arab or Muslim-majority countries to report to an immigration office to be photographed, fingerprinted, and interviewed.  There were criminal and civil penalties imposed by NSEERS, including arrest, detention, monetary fines, and/or removal from the United States.  Although this program was conceived as one to thwart terrorist attacks, NSEERS proved ineffective.

Among the tens of thousands forced to register, none were convicted by the U.S. for terrorism-related crimes.  Instead, NSEERS led to the deportations of thousands of people from predominately Arab or Muslim-majority countries for minor civil immigration violations, and brought abrupt ends to their productive jobs, property ownership, and community ties – including to U.S. citizen family members.  NSEERS caused egregious civil liberties offenses including racial profiling, unlawful arrests and detentions.

In 2011, The Department of Homeland Security (DHS) announced that it would be shutting down the NSEERS registration process. This was a significant step forward. However, shutting down the registration process only ceases the collection of data. It did not eradicate the potential misuse of the already-collected data. In fact, the DHS said that “The underlying NSEERS regulation will remain in place in the event special registration program is again needed.”

The Turkmen decision which allows post 9/11 detainees to sue top level Bush Administration officials for grave constitutional violations, and DHS’s decision to end the NSEERS registration process are both steps in the right direction.  While the Turkmen litigation will continue, the Administration should work to correct the wrongs of the federal government’s immigration actions in the wake of 9/11.