The U.S. mainstream media gushes over Russia-gate special prosecutor Robert Mueller as an upright man of the Establishment, ignoring how he oversaw torture of innocent Arabs after 9/11.
Robert Mueller III, the former FBI director who now heads the wide-ranging investigation into alleged misdeeds by President Trump and his associates, just dodged a major legal bullet himself. On Monday, the U.S. Supreme Court gave him and other former senior Bush administration officials legal immunity for the vicious abuses committed against more than 700 foreigners who were rounded up with little or no cause after the 9/11 attacks.
The court ruled 4-2, nearly 16 years after the fact, that “national security” trumps civil liberties and that however unfounded the arrests, or intolerable their treatment, the detainees had no right to sue senior federal officials for damages.
Punting to Congress, a branch of government rarely known for its defense of individual rights, the court declared, “The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.”
Although the climate of fear that followed 9/11 has eased a bit, the decision is highly relevant in the Trump era because the abused victims were all immigrants who had overstayed their visas. If the FBI had any question about the arrestees, it designated them “of interest” and ordered them held until cleared — in other words, guilty until proven innocent.
Dozens of the hapless victims were held at the Administrative Maximum Special Housing Unit in Brooklyn’s Metropolitan Detention Center (MDC), which was the subject of two scathing reports by the Bush Justice Department’s own Inspector General in 2003. Besides documenting a wide range of abuses, the reports concluded that staff members brazenly lied about the rough treatment they meted out.
News accounts of the Supreme Court decision made only brief reference to that treatment. Yet the appalling story can be glimpsed from this summary of facts provided in 2013 by U.S. District Judge John Gleeson:
“The harsh confinement policy was expressly directed at Arab and Muslim noncitizens who had violated immigration laws . . . In other words, it was discriminatory on its face. . .
“They were confined in tiny cells for over 23 hours a day, provided with meager and barely edible food, and prohibited from moving around the unit . . . (or) keeping any property, including personal hygiene items like toilet paper and soap, in their cells. Whenever they left their cells, they were handcuffed and shackled. . . (D)etainees . . . were often physically abused along the way, and were sometimes left for hours in the cold recreation cell, over their protests, as a form of punishment. . . .
“Detainees also were denied sleep. Bright lights were kept on . . . for 24 hours a day . . . and staff at the MDC made a practice of banging on the MDC Detainees’ cell doors and engaging in other conduct designed to keep them from sleeping. They also conducted inmate ‘counts’ at midnight, 3:00 a.m., and 5:00 a.m. . . . One of the officers walked by about every 15 minutes throughout the night, kicked the doors to wake up the detainees, and yelled things such as, ‘Motherfuckers,’ ‘Assholes,’ and ‘Welcome to America.’
“The MDC Detainees also were subjected to frequent physical and verbal abuse . . . The physical abuse included slamming the MDC Detainees into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways. The use of such force was unnecessary because the MDC Detainees were always fully compliant with orders . . . The verbal abuse included referring to the MDC Detainees as ‘terrorists’ and other offensive names, threatening them with violence, cursing at them, (and) insulting their religion . . .
“(Detainees) . . . were subjected to unreasonable and punitive strip-searches. . . Female officers were often present during the strip-searches; the strip-searches were regularly videotaped in their entirety . . . and MDC officers routinely laughed and made inappropriate sexual comments during the strip-searches.
“Officers at the MDC . . . also interfered with the Detainees’ ability to practice and observe their Muslim faith. . . In addition, most of the MDC Detainees were held incommunicado during the first weeks of their detention. MDC staff repeatedly turned away everyone, including lawyers and relatives, who came to the MDC looking for the MDC Detainees, and thus the MDC Detainees had neither legal nor social visits during this period.”
An Abu Ghraib in Brooklyn
In short, the kind of torture long associated with secret CIA detention centers and Abu Ghraib was going on right in the heart of New York City. Unlike some of the CIA’s torture victims, these detainees had nothing to do with terrorist plots; some were never even questioned by the FBI after their arrest.
Yet senior FBI and Justice Department officials were complicit in the abuse. The 2nd Circuit Court of Appeals, in a 2015 ruling that the lawsuit could proceed, cited evidence that two of the defendants, Attorney General John Ashcroft and FBI Director Mueller, “met regularly with a small group of government officials in Washington, D.C., and mapped out ways to exert maximum pressure on the individuals arrested in connection with the terrorism investigation.”
They “discussed and decided upon a strategy to restrict the 9/11 detainees’ ability to contact the outside world and delay their immigration hearings. The group also decided to spread the word among law enforcement personnel that the 9/11 detainees were suspected terrorists[ ] . . . and that they needed to be encouraged in any way possible to cooperate.” And it was the FBI that recommended housing the detainees in the maximum security facility where their rights were sure to be abused.
Such official misconduct and brutality constitutes a stain on this nation’s honor. Justice Anthony Kennedy, writing for the majority, said “Nothing in this opinion should be read to condone the treatment to which the (plaintiffs) contend they were subjected.”
A terrible precedent
But the court’s decision to protect high-level federal officials who made that treatment possible sets a terrible precedent. As the American Civil Liberties Union warned, it “would effectively immunize tens of thousands of federal officers . . . from damages, no matter how egregious the officers’ conduct. Indeed, [it] would effectively immunize federal officers from damages liability even for torture, so long as the torture arises in a context involving national security or noncitizens.”
Citing such egregious precedents as the Alien and Sedition Acts, the wholesale suppression of civil liberties during World War I, and the internment of Japanese-American citizens during World War II, a dissenting Justice Stephen Breyer insisted that the Court had an obligation to defend “fundamental constitutional rights.”
“History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights,” he wrote. With the latest court ruling, that dark history is sure to be repeated.[For more on the real Robert Mueller, see Consortiumnews.com’s “Russia-gate’s mythical heroes.”]
Jonathan Marshall is a regular contributor to Consortiumnews.com.
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