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Ashcroft May Be Pulled Back into 9/11 Detainee Litigation

By Gabriella Khorasanee, JD on May 06, 2014 | Last updated on March 21, 2019

A case 12-years in the making was argued on appeal before a panel of the United States Second Circuit Court of Appeals last Thursday, and it may potentially go on for a few more, according to The Associated Press.

The Center for Constitutional Rights, on behalf of plaintiffs -- men of Arabic, South Asian or Muslim backgrounds, initiated an action regarding the unlawful detention of men after the 9/11 attacks. A district court dismissed the claims against former Attorney General John Ashcroft and former FBI Director Robert Mueller, but it looks like the Second Circuit is poised to revive the claims.

The 9/11 Detainees

The complaint, filed 12-years ago, alleges that plaintiffs were arrested on immigration infractions -- such as being a non-citizen, or violating the terms of a visa -- and held as people "of interest," solely on the basis of their religion, ethnicity, and/or race. They were subject to the "hold-until-cleared" policy, where INS held the plaintiffs until the FBI "affirmatively cleared them of terrorist ties." The complaint goes on to allege the horrible conditions and treatment that the plaintiffs received while wrongly incarcerated. All plaintiffs were eventually cleared of terrorist ties.

The plaintiffs sued then-Attorney General Ashcroft, then-FBI Director Robert Mueller, then-INS Director James W. Ziglar, as well as several prison wardens. As members of a purported class, the plaintiffs alleged violations of their First Amendment, Fourth Amendment and Fifth Amendment rights, as well as violations of 42 U.S.C. § 1985. They sought compensatory damages, punitive damages and fees.

The District Court

In January 2013, Judge John Gleeson, of the District Court for the Eastern District of New York, granted the motion to dismiss the claims against John Ashcroft, Robert Mueller and James Ziglar. It granted in part, and denied in part, the claims against the wardens. Plaintiffs appealed.

Second Circuit Arguments

Last Thursday, the Second Circuit heard oral arguments in the plaintiffs' appeal. Circuit Judge Richard Wesley chided a government lawyer stating, "You held people in segregation when your own people knew there was no reason to do so." He added, "It seems to me that it is plausible that Mr. Ashcroft may be right back in this litigation," according to Courthouse News Service.

No official decision yet, but we'll keep you posted.

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