John Ashcroft, Robert Mueller 9/11 lawsuit to proceed

A deeply divided federal appeals court in Manhattan on Friday kept alive a lawsuit against former Attorney Gen. John Ashcroft and former FBI Director Robert Mueller for allegedly approving mistreatment of Muslim immigrants rounded up after 9/11.

A Second U.S. Circuit Court of Appeals panel had ruled in June that the lawsuit could proceed, and in Friday’s decision the full court split 6-6 — with one judge not voting — on whether to rehear it, leaving the earlier decision intact.

Writing for the six who let the 2002 lawsuit proceed, Judges Rosemary Pooler and Richard Wesley said, “The Attorney General is alleged to have endorsed the restrictive detention of a number of men who were Arabs or Muslims or both ... in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue.”

“This case has drawn this court’s attention now for over thirteen years,” they said, referring to previous appeals. “In our view, it is time to move this case forward.”

The suit, which also names former officials at federal jails in Brooklyn and New Jersey as defendants, will now be returned to Brooklyn U.S. District Judge John Gleeson, who originally dismissed it, for pretrial proceedings, unless the government seeks Supreme Court review.

A Justice Department official did not immediately respond to an email requesting comment.

The six judges who wanted to review the June ruling issued a stinging dissent, saying the ruling was the first to allow a damages action against senior executive branch officials “for actions taken to safeguard our country in the immediate aftermath of the 9/11 attacks.”

Citing the Supreme Court, they said cases involving the threat of terrorism required “heightened deference” to executive branch judgments. “These circumstances present important legal issues warranting full-court review,” they wrote.

The plaintiffs in the case are eight men who were swept up for immigration violations in a dragnet following the Sept. 11, 2001, terror attacks and held in harsh, high-security conditions before they were eventually cleared.

They say they were subjected to punitive treatment later documented in Justice Department internal reports, including solitary confinement, frequent strip searches and abuse by guards, and that “maximum pressure” tactics had been condoned by top officials despite the lack of evidence of links to terrorism.

Decisions forcing officials at the level of Mueller and Ashcroft to stand trial in civil suits are rare.

“This is a victory for accountability,” said Rachel Meeropol, the Center for Constitutional Rights litigator who has spearheaded the case. “To dismiss high-level officials this early in the case would effectively grant them immunity for directing the religious and racial profiling of our clients.”

The judges who voted to let the case go forward were Rosemary Pooler, Richard Wesley, Denny Chin, Gerard Lynch, Raymond Lohier and Susan Carney.

The judges who wanted to reconsider the June ruling in favor of letting the case go forward were Dennis Jacobs, José Cabranes, Reena Raggi, Peter Hall, Debra Ann Livingston and Christopher Droney.

Chief Judge Robert Katzmann did not participate and did not explain why in the published decision.