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June 2017 Issue [Report]

The Immunity Doctrine

Can officials be held liable for the suffering they inflict?

On October 13, 2001, Ibrahim Turkmen answered a knock on the door of his home in West Babylon, New York, to find two FBI agents. A solemn man with a strong jaw and deeply etched features, Turkmen was thirty-five years old at the time. Though his English was limited, he tried to tell the officers that he had arrived in the United States from Konya, a city in southwestern Turkey, more than a year earlier to visit a friend. In Konya, Turkmen had worked as an imam, earning a modest salary to support his wife and four daughters. Realizing that he could earn more in a few years in the United States than he could in Turkey, he decided to stay in America. He found jobs at gas stations and in construction, and began sending money home.

The agents accused Turkmen of working with Osama bin Laden. They demanded his identification, and Turkmen handed over his passport with dread. In the weeks after the World Trade Center attacks, he had heard about government agents showing up at the homes and workplaces of other immigrants — and he knew that his tourist visa had expired months earlier.

Illustrations by John Ritter. Source photograph, John Ashcroft © J. Scott Applewhite/AP Images

The agents placed Turkmen under arrest and took him to a nearby office of the Immigration and Naturalization Service. Federal agents grilled him about his reasons for coming to the United States, his work experience, his religious beliefs. After several lengthy interrogations, he was taken to the Passaic County Jail in Paterson, New Jersey.

Soon after he arrived, he noticed that there were other foreigners in the unit. Turkmen knew a little French and Arabic, and using this linguistic hodgepodge he came to understand that some of the detainees were Muslim immigrants with visa violations similar to his own. The men speculated anxiously about their fate. None of them had been charged with a crime or been given an opportunity to contact a lawyer.

About a week after his arrest, Turkmen received an order to appear in immigration court. He was the first of the Turkish detainees to receive a summons, and the others in the unit acted as if it were a big honor. “Everyone was very envious of me,” he recalled, especially those who had been in the jail longer than he. Turkmen didn’t share the sentiment; he felt humiliated. “I was a man who had never even seen a courtroom before in my life,” he said.

At the hearing, Turkmen admitted that he had overstayed his visa, and the judge ordered him to leave the country by the end of November. He was relieved that he would be sent back to Turkey. His roommate in West Babylon bought him a ticket for the first available flight, and delivered it to an INS office, where an official told him Turkmen would get it at the airport.

On the day of his departure, Turkmen awoke excited. His flight was scheduled for six in the evening. By two, no one had come to take him to the airport, and he began to worry. By three, he was panicked. Turkmen showed the deportation order to a guard, but the man said there was nothing he could do.

After his missed flight, days passed with no information. Turkmen’s uncertainty turned into hopelessness. The dormitory he shared with the other detainees — some of them serving sentences for murder or drug trafficking — was small and crowded. Guards patrolled with dogs in the middle of the night, keeping the prisoners awake. They interrupted Turkmen’s prayers and ignored his requests for food that followed Muslim guidelines.

Two months had gone by when, in January, a lawyer named Bill Goodman came to see Turkmen. The legal director of the Center for Constitutional Rights, a legal advocacy organization, Goodman was struck by Turkmen’s quiet grace even as the prisoner wept while trying to explain what had happened to him. Goodman decided to document what Turkmen had experienced in detention, and for the next few weeks, he and his staff continued to interview Turkmen. Goodman learned that the FBI had labeled Turkmen a “person of interest” in the investigation into the September 11 attacks; he hadn’t been allowed to leave in November because he was still under suspicion. Turkmen would be detained until the investigation was completed.

Turkmen’s ordeal finally ended on February 25, 2002. Federal agents brought him to the Newark airport in handcuffs and put him on a plane to Istanbul. Along with his expired visa, he was now technically in violation of his deportation order, so he was banned from returning to the United States for ten years.

When I sought out Turkmen in Konya a few years ago, he met me for breakfast at a local hotel, dressed in a neat gray suit. “I went to America thinking of it as a country of law, a country of independence, as a country that serves as an example to the rest of the world,” he told me. “But I was destroyed there in a way I can’t describe.”

Even after Turkmen left the country, his plight continued to trouble Goodman. That year, he decided to file an ambitious lawsuit on behalf of Turkmen and his fellow detainees. It laid the foundation for a lengthy legal battle that, fifteen years later, could reach its climax this summer, when the Supreme Court hands down its decision. The case poses a simple question: When can the legal system hold accountable those who occupy the highest offices in the land?

In the hours after the September 11 attacks, law enforcement officials scrambled to generate leads about the perpetrators. The FBI set up a telephone hotline for anyone who might have relevant information. Within a week, the hotline had received 9,000 tips. In Turkmen’s case, it was his landlord who called in, telling operators that “she would feel awful if her tenants were involved in terrorism and she didn’t call.” Many of the men at the Passaic jail had been detained on the basis of similar tips, although they didn’t know it at the time. Nor did they know who had ordered the roundup in the first place.

“Let the terrorists among us be warned: If you overstay your visa — even by one day — we will arrest you,” Attorney General John Ashcroft said in October 2001. “In the war on terror, our Department of Justice will arrest and detain any suspected terrorist who has violated the law.”

James Ziglar © Mark Wilson/Getty Images; Robert Mueller © Vincent J. Ricardel/Getty Images

As law enforcement officials arrested individuals with visa violations, they launched investigations into whether the detainees were connected to criminal or terrorist activity. The policy became known as “hold until cleared.” In total, 762 foreigners were detained, almost 500 of them in facilities near New York City.

That fall, the Center for Constitutional Rights received calls from mosques, Islamic cultural centers, Muslim advocates, lawyers, and families whose relatives had been detained. “This kept on happening, over and over, so it became clear that there was some kind of program out there,” Goodman told me. Some of the men were held at the Passaic jail, and others at the Metropolitan Detention Center, a federal prison in Brooklyn. Most of them were Arab or South Asian, and almost all were Muslim. Many had been picked up for technical visa violations: overstays, for example, or working illegally on a student visa. At sixty-one, Goodman was a veteran civil rights lawyer who specialized in police and government misconduct. He found the situation deeply disturbing, reminiscent of Japanese internment camps during World War II.

At M.D.C., detainees were held in a highly restrictive maximum-security unit, confined to their cells for twenty-three hours a day. The men were “horribly vulnerable,” Goodman told me; many sobbed throughout their conversations with him. Some showed signs of physical abuse. When Goodman went to see Amjad Jaffri, a Pakistani man who had been working in the Bronx without a valid visa, he noticed that the man’s teeth were loose. Jaffri said the guards had beaten him.

Several legal issues stood out. The federal government had illegally detained the men for extended periods of time and subjected many of them to excessive force. Typically, visa violators who are arrested and ordered to leave the country are promptly deported. Goodman believed that the government had instead detained these men on the basis of their ethnic or religious background.

On April 17, 2002, C.C.R. attorneys filed a complaint in federal court in Brooklyn. It alleged that top officials had violated the constitutional rights of at least eighty-seven individuals detained at M.D.C. and the Passaic jail. Those officials were Ashcroft; Robert Mueller, the director of the FBI; and James Ziglar, the head of the INS. C.C.R. also accused a long list of federal corrections officers of being responsible for the “excessively harsh” conditions in the facilities. The lead plaintiff in the case was Ibrahim Turkmen. “He was so innocent, so free from any taint of suspicion,” Goodman told me.

Naming Ashcroft and the other officials as defendants was an unusual step. Attorneys shy away from accusing high-level government officials of deliberate wrongdoing because the judiciary prefers to avoid clashing with other branches of government. Furthermore, the legal hurdles facing such claims are extremely high. Plaintiffs must demonstrate that federal officials were personally responsible for creating and implementing an unreasonable policy — and that the officials knew or should have known that the policy would violate the constitutional rights of the plaintiffs.

The government asked the court to dismiss Turkmen v. Ashcroft, arguing that the policy did not violate the Constitution. Federal officials denied that they were profiling the detainees by race or religion; they portrayed the campaign as a crackdown on potentially dangerous foreigners.1 But to Goodman, it was clear that Ashcroft himself had ordered government agencies to subject Muslims and Arabs to excessively punitive treatment out of hostility toward Islam. That perception was bolstered by a column from December 2001 that quoted Ashcroft saying, “Islam is a religion in which God requires you to send your son to die for him. Christianity is a faith in which God sends his son to die for you.”2 (Requests for comment sent to the agencies and officials named in this piece were all declined or ignored.)

In September 2002, a recent New York University law school graduate named Rachel Meeropol joined C.C.R. When she arrived, all seven of the organization’s staff attorneys were working on the Turkmen case. A tall, slender woman with a curly brown ponytail, Meeropol told me that she felt a “sort of kinship” with the plaintiffs. Her grandparents were Julius and Ethel Rosenberg, U.S. citizens who were executed for conspiring to spy on behalf of the Soviet Union in 1953. The family, including Meeropol’s father and uncle, continues to maintain that Ethel was wrongfully convicted. Such intimate knowledge of a controversial case (and one she views as a miscarriage of justice) helped Meeropol to empathize with her clients. They were, to her mind, being “demonized.”

At the outset, Meeropol was optimistic. The detention program was “so clearly and outrageously illegal,” she thought. “What did it really matter that they were the highest-level officials in the Department of Justice? They violated the Constitution and they would be held accountable like anybody else.”

Accountability seems like a straightforward concept. One party causes another harm, and the offender makes amends. Things get complicated, however, when one of the parties is a government official.

In 1871, when Southern states still sanctioned or supported the Ku Klux Klan, Congress passed a law that allowed individuals to sue state and local officials for depriving them of constitutional rights. There is no comparable law that allows individuals to sue federal officials for violations of the Constitution. But in 1971, the Supreme Court acknowledged for the first time that the Constitution “implies” a right to bring such lawsuits. In the case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Court granted the plaintiff, Webster Bivens, the right to sue federal drug agents for monetary compensation after they conducted a warrantless search of his apartment. That precedent was used to sue federal officers — a prison official and a congressman — over other constitutional violations in two more Supreme Court cases before the end of the 1970s.

In 1982, however, the Court imposed a new limit on suits against federal officials in Harlow v. Fitzgerald. Ernest Fitzgerald, a former Air Force analyst, was suing two Nixon aides for an alleged retaliatory firing. The court ruled that government officials were shielded from such lawsuits unless their actions violated “clearly established” rights that a “reasonable person” would have known about. This doctrine, known as “qualified immunity,” is now invoked almost every time someone sues a federal officer for monetary damages, says Steve Vladeck, a University of Texas law professor who specializes in national security and constitutional law. He notes that courts have also grown increasingly reluctant to let victims of unusual constitutional violations — such as the abusive detention programs enacted in the wake of terrorist attacks — bring Bivens claims.

In the past decade, judges have questioned the application of Bivens to high-level officials. As a result, lawsuits such as the one Turkmen brought against Ashcroft in 2002 face an uphill battle. “If those lawsuits cannot be heard, victims of unconstitutional policies will not be able to hold policymakers accountable,” Vladeck says. “That is why it is so important for courts to let these cases go forward, especially in the national security context.”

What complicates matters is that the doctrine of qualified immunity is based on a patchwork of court decisions, not on legislation vetted by Congress. Bivens claims against federal officials have been allowed only on a case-specific basis — they have never been encoded in statute. “The question is, how far does that doctrine extend?” said Meeropol. Even though Turkmen’s case was unusual because of the national security context, she and the plaintiffs argued that they should be allowed to sue the officials responsible for their mistreatment in detention, just as the Supreme Court had allowed plaintiffs to sue federal prison officials in the past.

When Turkmen arrived in Istanbul in February 2002, Turkish security agents met him at the airport and drove him to a police station. The local commissioner demanded to know why he had spent nearly five months in an American jail. Turkmen explained his ordeal, but the commissioner responded, “Come on. People who violate visas don’t serve jail time.”

After he was released, Turkmen borrowed bus fare from an acquaintance for the 400-mile ride back to Konya. He had hoped to resume his work as an imam, but his application was denied. Instead, he used the money he had sent home from the United States to start a new business upgrading fuel systems in cars. He was well liked in the community, and supporters helped him rent a stall in the city’s neighborhood of auto-service shops and invest in equipment. The economy was on an upswing and business grew quickly as Turks bought more cars and sought out Turkmen’s services.

Every few months, Turkmen spoke with Goodman and Meeropol to learn about developments in the case. In April 2003, they told him that the DOJ inspector general had released the results of a yearlong inquiry into the detention program. The report helped buttress C.C.R.’s allegation that high-level officials had knowingly ordered the immigrants’ detention without any reason to suspect them of terrorist activity. For instance, it included an excerpt of an internal email advising Ashcroft’s chief of staff that immigration violations could be used to justify detaining non-U.S. citizens “at least temporarily.” The report also quoted an INS official who said that Ziglar had instructed him to detain all suspects until the FBI had cleared them of any connections to terrorism.

In June 2006, John Gleeson, a district judge in Brooklyn federal court, issued the first significant opinion in the case, dismissing the argument that the government should not have detained the plaintiffs while it investigated them for ties to terrorism. In other words, the hold-until-cleared policy was not illegal. “The government may use its authority to detain illegal aliens pending deportation even if its real interest is building criminal cases against them,” Gleeson wrote. However, he accepted the claim that officials could be held responsible for detaining plaintiffs in harsh conditions and discriminating against them on the basis of race or religion. Both sides brought Gleeson’s ruling to the Second Circuit Court of Appeals. In 2008, a panel of three judges considered the case.

Meeropol, who had taken over from Goodman as lead attorney, waited for a decision. In the meantime, Barack Obama was sworn into office, and the incoming administration brought new energy to settlement negotiations. On November 3, the two parties announced an agreement: $1.2 million to be shared among the five M.D.C. plaintiffs. Many interested parties — including the DOJ — thought the settlement would end the lawsuit, Meeropol said. But the government still had not admitted that any officials were personally responsible for the treatment suffered by the detainees.

Some of the issues raised in C.C.R.’s case were considered by the Supreme Court in May 2009, in Iqbal v. Ashcroft, which also alleged that the post-9/11 detention policy had unreasonably targeted Muslim, Arab, and South Asian immigrants and subjected them to overly harsh conditions because they were racially or religiously similar to the September 11 attackers. Unlike Turkmen and his fellow plaintiffs, however, Javaid Iqbal had been detained on criminal charges. In a 5?4 split, the Court wrote that Iqbal had provided evidence only of the detainees’ harsh conditions of confinement, and not enough detail to prove that DOJ officials had a “discriminatory state of mind” or had personally singled out the plaintiffs for harsh treatment on the basis of their race or religion. The Court’s decision also set a higher standard: In order for judges to allow claims to move forward, the Turkmen plaintiffs would have to establish that it was plausible Ashcroft had acted with discriminatory purpose.

The Iqbal opinion signaled to Meeropol that C.C.R. should add more information to establish that Ashcroft, Mueller, and Ziglar had deliberately intended the discriminatory treatment. The judiciary seemed to agree. In December 2009, the Second Circuit Court of Appeals dismissed C.C.R.’s claims that the hold-until-cleared policy was illegal. The judges sent the case back to district court so that Meeropol could include more details in light of the Iqbal decision.

Meeropol and her team intensified their investigative work. They went through boxes of prison surveillance footage and hundreds of thousands of pages of interview transcripts and government documents that she had accumulated over the years. The investigation proved fruitful: Meeropol discovered that several DOJ sources knew that Ashcroft had ordered the agencies to investigate individuals with Muslim-sounding names (drawn from INS records of noncitizens entering the United States, as well as phone books). She also found that he had requested and received a daily report about the 9/11 investigation and the related arrests. Ashcroft relied on these updates for his daily briefings with the president and the National Security Council.

Meeropol submitted her findings to the district court in September 2010, and for the next three years the two sides traded motions. Repeatedly, the government would ask the court to dismiss the case, and C.C.R. would reply in opposition.

In January 2013, district judge Gleeson dismissed the claims against the three officials. C.C.R. appealed yet again to the Second Circuit. Finally, in May 2014, the three-judge panel heard oral arguments, and things took a more promising turn for the plaintiffs. Judge Richard Wesley pointed out to Ashcroft and Mueller’s attorney, Thomas Byron, that the decision to detain each plaintiff “didn’t come out of thin air”:

wesley: Someone in the FBI made that decision. Now, you well know this, you represent the attorney general of the United States. Tell me now, who did?

byron: I don’t know, Your Honor.

wesley: You don’t know? Then maybe the former attorney general of the United States does. It’s no answer to tell me you don’t know.

Another judge on the panel, Rosemary Pooler, brought up the daily briefings that Ashcroft and other government officials had received. “What did they talk about at the daily briefings?” she asked. “Your Honor, I’d like to know that, too,” Byron replied.

What the Second Circuit judges would decide, Wesley said, was whether it was plausible that the DOJ officials knew that the M.D.C. detainees were being held in the maximum-security unit. “It seems to me that if it is plausible, then Mr. Ashcroft might be back in this litigation,” he said.

The court took more than a year to make a decision, but on June 17, 2015, it reinstated the claims against Ashcroft and the other officials. The case could return to the district court for a trial. But the decision had an additional impact. Turkmen and the other plaintiffs who had been detained at the Passaic jail would have to be removed from the case. Those individuals, the judges wrote, had not claimed that they were subject to harsh detention conditions, given that they had greater freedom of movement in the general population of the jail and had not been confined to the restrictive maximum-security unit. The case would now be called Ziglar v. Abbasi — Ziglar was the first official to ask the Supreme Court to review the case, and Ahmer Abbasi was alphabetically first on the list of remaining plaintiffs.

For Turkmen, the ruling was another sign of the deep injustice of the U.S. legal system. “The torture I experienced must be repaid,” he wrote to me. “But in a country where justice is shoddy, torture goes unpunished.” Still, although he no longer stood to receive damages, he believed that the larger outcome was more important: that officials would be held to account for the suffering he and hundreds of others had experienced.

Not surprisingly, the government appealed. The Supreme Court, the last possible venue, heard the case on January 18, 2017. I arrived and saw only six justices at the oral arguments. (Elena Kagan and Sonia Sotomayor had recused themselves, and Antonin Scalia’s seat was still empty.) The government was represented by Ian Gershengorn, a towering, gray-haired attorney appointed by President Obama. He began by asserting that even if Ashcroft knew that not every immigrant detained in the course of the 9/11 investigation was suspicious, he believed that “some may well have had ties to terrorism” and thought that the risk of releasing one potential terrorist outweighed the harm of detaining a few non-terrorists for a couple of months. Ashcroft and FBI Director Mueller had the right, he went on, “to presume that the policy would be implemented lawfully,” without detainees experiencing abuse in prison. If Ashcroft and Mueller were responsible for problems with the way the policy was designed or carried out, Gershengorn said, it was up to Congress to determine that and decide on the best punishment.

Chief Justice John Roberts seemed to agree. If the court allowed the claims against Ashcroft and Mueller to proceed, he said, future officials might shy away from necessary national security policies out of fear that they would be sued. “We don’t want people forming policy to have to worry about what they’re going to have to pay if the policy is found infirm,” he said.

Meeropol argued that the government had many tools to investigate national security emergencies, but confining individuals indefinitely in harsh conditions while investigating them for terrorism ties was not one of them. “What you cannot do is single out a group of people whom you know there is no basis to suspect of any ties to terrorism beyond sharing racial and religious characteristics with the 9/11 hijackers, and to decide that that group of people poses such a threat that they must be placed in the most restrictive conditions of confinement that exist in the federal system,” she said. All the men detained under the policy were ultimately cleared of connections to terrorism, Meeropol pointed out, and any congressional remedy would not deter policymakers from enacting unconstitutional policies. Personal damages claims, she said, are the most effective deterrent.

The hearing concluded with a statement by Gershengorn. In a perfect world, he said, the detentions would have been avoidable. “The idea that because in twenty-twenty hindsight we can identify the particular individuals who were not connected at all to terrorism and thus wrongly detained does not change the reasonableness of his judgment,” he said of Ashcroft.

Speaking to the press after the hearing, Meeropol pointed out that the decision would have wide-reaching ramifications. It was her first time in front of the high court, and her voice was still shaking from the adrenaline. “If the Supreme Court cannot deter future federal officials from creating unconstitutional policies in the name of national security, then, truly, there are millions of individuals in this country who will be completely vulnerable to abuse or torture,” she said.

Among the group, I spotted Michael Winger, an attorney who had worked on the case pro bono since 2002. I told him that I had recently been in touch with Ibrahim Turkmen. “Poor Mr. Turkmen,” he said. “It’s odd not to see his name on the docket anymore — it’s as if he’s been forgotten by the courts.”

The ruling in the case that began as Turkmen v. Ashcroft is expected by the end of June, nearly sixteen years after Turkmen was first detained. The justices will decide whether a suit against Ashcroft and the others can move forward. With Kagan and Sotomayor recused, most Supreme Court experts believe that Ruth Bader Ginsburg and Stephen Breyer will rule in favor of the detainees and that there is a plausible chance that other justices may join them in allowing the charges against federal prison officials to proceed. Most think there is only a slim chance that the charges against Ashcroft, Mueller, and Ziglar will move forward.

There are three ways in which the Supreme Court could dismiss the claims against the three officials. It could simply rule either that the post-9/11 detention policy was not unreasonable, or that the detainees did not amass sufficient evidence for their claims. The Court’s third option is more severe. The justices could accept the government’s argument that policymakers are immune from being sued for enacting national security policies that violate the constitutional rights of noncitizens.

If policymakers cannot be held liable, the only way to challenge such policies in court will be to ask judges to halt them while they are being implemented. This approach is the worst-case scenario, not just for the plaintiffs but for future lawsuits.

This risk has become all too clear. Soon after taking office, President Donald Trump issued an executive order restricting immigration from seven majority-Muslim countries. A lawsuit filed by the A.C.L.U. persuaded a federal court to block part of the order. When the Trump Administration tried again, state attorneys general were quick to challenge it, once again halting the order’s provisions.

But immigration policies enacted in the wake of national security disasters are often less transparent than Trump’s executive orders have been so far. “We should not be sanguine that the kind of litigation we’re seeing with the executive orders is going to suffice in other contexts,” says Vladeck, the University of Texas law professor. “It’s uniquely difficult to challenge government policies while they’re happening, either because we won’t know about them because they’re secret, or because the subjects of those policies aren’t really in a position to challenge them while they’re being applied.”

Soon after the Supreme Court hearing, I sent Turkmen a message describing the proceedings. It was close to midnight in Turkey on January 20, a few hours after Trump had been sworn in. Turkmen replied with a series of texts and voice messages in which he reflected on the long journey that his case had made through the American court system. In the background of his voice messages, I could hear the chirping of his pet birds.

Turkmen told me he was glad that the M.D.C. detainees had been able to proceed, even if his own claims had been dropped. “My fear back then was precisely that a man like Trump would come to power, and he could make brutal decisions concerning immigrants,” he told me. But he also said that he was pessimistic about the outcome of the Supreme Court case. American law, he insisted, “protects those who are already in power.”

During my 2013 visit to Konya, Turkmen had shown me around the city, most famous as the home of Rumi, the thirteenth-century Sufi mystic. Turkmen told me he would never return to the United States. “In the eyes of the American government, its own citizens are people, but its noncitizens are not,” he said. But he vowed he would never forget his experience there. When we walked outside my hotel, he showed me his car, a silver Chevrolet sedan. He made sure to point out the custom license plate: a.b.d., Turkish for “U.S.A.” ?

covers national affairs and the Department of Justice for Reuters.

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