Ashcroft Denied En Banc Stage in Abuse Case

MANHATTAN (CN) - More than 13 years after innocent Muslims faced prison abuses, "it is time to move the case forward" against former Attorney General John Ashcroft and others, two Second Circuit judges said Friday as the federal appeals court refused calls to hear the case en banc.

The landmark class action accuses Ashcroft and other high-ranking officials in the President George W. Bush administration of endorsing the government "dragnet" created by then-FBI chief Robert Mueller, which led hundreds of men into abusive custody at Metropolitan Detention Center (MDC) in Brooklyn and Passaic County Jail in New Jersey.

Lead plaintiff Ibrahim Turkmen brought the suit in 2002, claiming that Mueller's directive to follow every lead, however tenuous, swept up hundreds of innocent men on the thinnest of pretexts, subjecting them to brutal interrogations.

Nobody disputes that the men incarcerated in the raids had no connection to terrorism, but courts have wrangled over whether the officials have immunity over civil rights claims for actions taken after a national emergency.

The officials sought a rehearing from the full federal appeals court after a divided three-judge panel advanced the case to discovery in June.

That effort failed by a 6-6 vote Friday, with Judges Richard Wesley and Rosemary Pooler applauding the result in a three-page concurring opinion.

"This case has drawn this court's attention now for over thirteen years," Wesley and Pooler said.

"The length of our efforts now fills many pages," they added. "In our view, it is time to move the case forward."

Rachel Meeropol, an attorney at the Center for Constitutional Rights for the once-incarcerated men, called the decision a "victory for accountability."

"Our case makes it crystal clear that responsibility lies at the highest levels of government, and our clients deserve the opportunity to take those who caused their ordeals to court," Meeropol wrote.

Anser Mehmood, one of the men suing the officials, said that the decision vindicates his belief "that America is built on very strong principles of justice."

"I have a great respect for all the judges hearing the case: they prove that America respects the constitutional rights of all people, no matter who they are," Mehmood said in a statement.

Judge Dennis Jacobs wrote on behalf of six dissenting judges, however, that the national emergency of responding to terrorist attacks shields high-ranking officials from civil claims.

"In this case, a sharply divided panel makes our court the first in the nation to imply a Bivens damages action against senior executive-branch officials - including the former attorney general of the United States and the director of the FBI - for actions taken to safeguard our country in the immediate aftermath of the 9/11 attacks," Jacobs wrote.

In the 1971 decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court allowed federal courts to award damages for violations of the Fourth Amendment protections against unreasonable searches and seizures.

The U.S. Attorney's office for the Eastern District of New York declined to comment.

In addition to Ashcroft and Mueller, the complaint here accuses ex-immigration chief James Ziglar and ex-Metropolitan Detention Center warden Dennis Hasty of complicity in conduct that two scathing inspector general reports exposed.

Echoing interrogation methods documented against Guantanamo Bay detainees, MDC officials allegedly slammed detainees against a wall, kept them in lockdown 23 hours a day, and placed them in solitary confinement.

The men blame discrimination for their rough treatment in custody.

Prison staff allegedly referred to the men as "camel[s]," "fucking Muslims," and "Arabic asshole[s]."

Hasty, the warden, also has an active lawsuit accusing him of hanging a Confederate flag in his office and waging a "personal vendetta" against a former Latino prisoner based on racial animus.

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