Do Counterterrorism Lawsuits Stand a Chance in Court?

In the days immediately following September 11, 2001, the U.S. Department of Justice convened an interagency group at FBI headquarters to coordinate an aggressive investigation aimed at finding any remaining 9/11 conspirators and forestalling any follow-up attacks. The group, which met several times a day, got the personal attention of high officials, including Attorney General John Ashcroft, FBI Director Robert Mueller, and Commissioner of the Immigration and Naturalization Service James Ziglar.

For many, the terror and disorientation of those post-attack days are mercifully fading memories. But on Tuesday, the U.S. Supreme Court agreed to hear a case brought by some who will almost certainly never forget—a group of non-citizens who were arrested on flimsy pretexts, confined without recourse, and brutalized by their jailers.

The plaintiffs in Hasty v. Turkmen have been seeking their day in court for 13 years; last week’s grant of review by the high court is probably a sign that they will never get it.

The FBI received nearly 100,000 tips from the public in the weeks following the 9/11 terrorist attacks. As recounted by the Second Circuit in a recent opinion, if agents investigating one of the tips encountered a “Muslim or Arab man” who was in the United States after unlawful entry or on an expired visa, they arrested him for the immigration violation, no matter how small. The policy was called “hold-until-cleared”—meaning these men would be detained until the FBI “cleared” them of connections to terrorism. Eventually, 762 people were placed on the “custody list,” 60 percent of them in the New York area.

In New York, many “high interest” detainees were held in the federal Metropolitan Detention Center in Brooklyn. MDC created a maximum-security unit stricter than even many high-security federal prisons. There, the detainees—many of whom, in ordinary times, would likely not have even been arrested—were held in tiny cells for 23 hours a day, strip-searched repeatedly, kept awake by constantly burning lights and by frequent shouts from guards, shackled, pushed, tripped and beaten, barred from the telephone and the commissary, denied the right to possess Korans, and physically harassed during Muslim prayer rituals. A number were held in these conditions even after the FBI had cleared them for release.

There’s no real dispute about those facts, which were confirmed by the Justice Department’s Inspector General as early as April 2003. Hasty is a suit by six of the detainees against not only the federal employees who ran the MDC, but also the high officials—Ashcroft, Mueller, and Ziglar—who, they argue, set the detention policy and closely supervised its implementation at MDC.  

In a strongly worded opinion last June, the Second Circuit had held that the case could proceed. The plaintiffs, the court ruled, had alleged enough facts to demonstrate—if they could prove them at trial—that the defendants, including the high officials, had knowingly violated clearly established constitutional rights.

The Supreme Court is unlikely to be quite as friendly to their cause—especially since two moderate-liberal justices, Elena Kagan and Sonia Sotomayor, will not sit. (The Court, as usual, gave no explanation, but Kagan as solicitor general may have discussed the case with government lawyers, and Sotomayor was on the Second Circuit when the case came before that court for the first time in 2009.)

Stephen Vladeck, a national-security and constitutional specialist at the University of Texas law school, noted in an email that “for the eighth time in eight tries, the Court has said yes when the government asked it to review an adverse lower-court ruling in a post-9/11 counterterrorism case.”  The score to date is seven for the government, zero for counterterrorism plaintiffs, and the result in this case doesn’t seem likely to break the string.

The plaintiffs claim that the conditions at MDC violated their Fifth Amendment rights to due process (because they were needlessly harsh and punitive) and equal protection (because they were imposed for being Muslim); their First Amendment free-exercise-of-religion rights; their Sixth Amendment right to assistance of counsel; and their Fourth Amendment rights against “unreasonable searches and seizures.” (As an aside, the Second Circuit noted that one of the detainees was actually neither an Arab or a Muslim; Purna Raj Bajracharya is a Nepal-born Buddhist who was arrested after someone noticed him using a video camera on a street in Queens. Cleared in November 2001, he was still held for two more months. When an attorney asked for him to be transferred, “an MDC ‘doctor responded that Bajracharya was crying too much, and would cause a riot.’”)

The defendants argued that the plaintiffs had not produced enough facts to suggest either that the defendants knew about the mistreatment or intended to mistreat them, or that the detentions violated “clearly established” constitutional rights. In June, the Second Circuit panel held that the detainees had produced enough evidence to require a full trial on both issues.

As Vladeck notes, the Supreme Court has rather consistently deflected any demand that courts hold counterterrorism defendants to account. In one case, Ashcroft v. Iqbal, it raised the amount of factual information a plaintiff must produce in order to take a government defendant to court. In another, Clapper v. Amnesty International, it refused to hear a challenge to secret government phone surveillance on the grounds that, because it was secret, no one could prove they’d been overheard. In Holder v. Humanitarian Law Project, it held that the government can criminalize otherwise completely legal political speech—advocacy of non-violent dispute settlement—if it is directed toward a group the secretary of state has designated as a “foreign terrorist organization.”

Holder, which runs contrary to almost all the Court’s recent chest-thumping about the sanctity of the First Amendment, relied for authority largely on a quote from James Madison that “[s]ecurity against foreign danger is . . . an avowed and essential object of the American Union.” That quote was irrelevant to the legal issue, but it suggests a possible anxiety underlying these cases. Some justices seem to feel that dragging the powerful to account may endanger the nation, either now (by revealing secrets) or in the future (by discouraging officials from acting in a crisis).

It’s tempting to sneer at this squeamishness. After all, what are courts for, if not to provide public accountability when government steps close to, or over, the lines guaranteeing equality and freedom, or tramples unpopular minorities? But the Court’s studied disinterest in looking back at the aftermath of 9/11 is hardly peculiar. All three branches of government have been at best mildly curious about the excesses of American counterterrorism. Even as President Obama took office in 2009, he disclaimed any interest in looking into the Bush record: “I also have a belief that we need to look forward as opposed to looking backwards. … My orientation is going to be moving forward.”

Americans always prefer to move forward, especially when the path behind is littered with bones. Tiresome as the question may be, it’s still worth asking exactly what the nation is moving forward to.