When Fear Rules, Constitutional Rights Get Trampled
The defendants before the U.S. Supreme Court sound like a political “Where are they now?” quiz: former Attorney General John Ashcroft, former FBI Director Robert S. Mueller III and former Commissioner James W. Ziglar of the U.S. Immigration and Naturalization Service.
They are involved in a civil suit, the last arguments of which were heard by the high court before Donald Trump’s inauguration. At issue is whether the plaintiffs — 760 foreign men, mostly Muslim — have standing to sue the former government officials for denying them the constitutional rights of due process and equal protection.
The case takes new significance now, as Trump has notoriously promised to institute policies with respect to Muslims that are of questionable constitutional legitimacy.
The plaintiffs in the case were rounded up in 2001 in the days and weeks following the Sept. 11 attacks. They were thrown into two detention centers and held for about eight months. The immigrant men say they were targeted because they were Muslim, dark-skinned and Arab or South Asian. They were kept in solitary confinement and put through sleep and food deprivation. A government investigation later found that some were slammed up against walls, strip-searched unnecessarily and yelled at with slurs for praying.
None of these men — not one — was ever charged with terrorism. Instead, most eventually faced deportation for immigration violations such as having overstayed visas or worked without a green card. These are civil crimes, but hardly the stuff of high national-security drama.
It’s worth remembering the shock and fear that followed those terror attacks on U.S. soil. The nation is forever changed for the lives lost that day.
Yet this embarrassing episode — an example of hysteria that led to a clear miscarriage of justice — is as pertinent as ever. We have every reason to believe that our new commander-in-chief and his intelligence and law-enforcement appointees are liable to repeat this behavior.
We just inaugurated as president a man who dogmatically clung to the lie that Muslims in New Jersey were dancing in the streets after terrorists flew planes into the twin towers and the Pentagon. Trump is not known to back down from his lies and calumnies, yet many of his Cabinet nominees and advisers have tried to distance the administration from talk of creating a database for Muslims, monitoring mosques and banning practicing Muslims from immigrating.
On the other hand, Rex Tillerson, Trump’s nominee for secretary of state, waffled in Senate confirmation hearings when asked about a Muslim registry, saying he needed more information. (Here’s some free advice: Check the Constitution.)
The Supreme Court case, brought by the Center for Constitutional Rights, turns on the question of whether top officials in the George W. Bush administration bear any personal responsibility, or if they have qualified immunity, for violations of the plaintiffs’ constitutional rights.
An inspector general’s report on the detentions mentioned that some in the administration tried to push back against overreach, but the rational voices were silenced. Hooligans took over. Guards at one detention center were fond of twisting hands, wrists and fingers and dragging the men around when they were handcuffed and in leg shackles. Withholding soap and toilet paper was another game.
Family members had trouble finding out information, left to guess how or why their loved ones had disappeared. Many of the men had been caught in the sights of the government thanks to anonymous tips. Gadflies called authorities, believing that their Muslim neighbors were highly suspicious, perhaps because they worked odd hours. In one case, a man landed in a detention center because someone thought he had made “anti-American statements.”
That’s what happens when fear leads. When those in power bend to it. It’s one thing for a private citizen to answer the call of “If you see something, say something” and mistakenly flag an innocent person. It’s quite another when officials working for the government brush off their duty to respect constitutional rights, holding people for months, even after they knew those people were innocent.
Certainly, anyone with memory of those horrifying days following the attacks that killed 3,000 people can understand how mistakes were made. Some reasons for delay in releasing the men were a lack of resources and muddled communications between the FBI and other agencies.
Erring on the side of recklessness comes at a high price. It undermines the constitutional rights America values most. It harms our international image. It hands a recruitment tool to terrorists.
We know this now. Time to apply the lesson.