The Bush administration claims that 9/11 gives the government immunity from lawsuits seeking damages for violation of constitutional rights. The following lawsuit may tie together the many “counterterrorism” measures that the Bush administration has used since 9/11 that have been challenged on both grounds of secrecy and violating the laws. How many times how you heard this administration claim, as a justification for torture, warrantless surveillance of Americans and other claimed counterterrorism measures, that it is simply taking proactive steps that are necessary in this post-9/11 world to protect us from future terrorist attacks. If Bush wins this lawsuit, then no American is safe as Bush can violate all laws with immunity as long as he links his violation, however tenuous, to the claim that he is protecting us from terror attacks.
In the weeks following 9/11, the government conducted a sweep to capture hundreds of noncitizens for immigration visa violations, imprisoned them as “persons of interest” in terror investigations, and then deported them. The Muslim immigrants were never accused of a crime related to 9/11 and were eventually cleared of links to terrorism. The problem, aside from constitutional violations, was that the prisoners were abused and deprived of due process based upon religion or national origin. The widespread abuse was documented in a report by the inspector general of the Justice Department:
“Illegal recording of lawyer-client conversations was one of the abuses documented at the Brooklyn detention center in a scathing 2003 report by the Justice Department’s inspector general. The report also found a pattern of physical abuse, some of it caught on prison videotape, including beatings and sexual humiliations like those described by the Ibrahim brothers or other former detainees. The report said it was Mr. Ashcroft’s policy to hold detainees on any legal pretext until the F.B.I. cleared them, even though such clearances took months and many detainees were immigrants picked up by chance.”
The former prisoners filed a class action suit against 31 prison guards and Bush administration officials, including John Ashcroft, the former Attorney General and Robert Mueller, FBI Director. As 6 of these former prisoners return to the US for this lawsuit, US imposed conditions that they be in the “constant custody of federal marshals.”
Government lawyers now argue that 9/11 created “special factors” – including “the need to detect and deter future terrorist attacks – that outweigh the plaintiffs’ right to sue for damages for any constitutional violations.” While “critics charge that the authority that Mr. Ashcroft asserted after 9/11 – to detain any noncitizen considered a ‘person of interest’ secretly and indefinitely – is unconstitutional,” government officials “argue that secrecy is needed to keep terrorists in the dark.”
The standard which triggers this immunity is (1) a post-9/11 world and (2) the “need to detect and deter future terrorist attacks.” Given that the “war on terror” is supposed to be one of those endless wars that will outlive us all, this standard already exists for each day of our lives. We now live in a post-9/11 world and the US now has the need to detect and deter future terrorist attacks. If such immunity is granted, it will not be limited to the capture and imprisonment of Muslim immigrants. This is the Bush mantra for a good number of foreign and domestic measures and policies which affect all Americans and our democratic institutions. If nothing else, the surveillance by the Pentagon, FBI, NSA and local police on anti-war groups, environmental groups, etc. and the claim that such surveillance is predicated on the group’s classification as a “security threat,” should give us all pause on the slippery slope between true terrorists and ordinary, law-abiding Americans.
