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Students file amicus brief with U.S. Supreme Court in 9/11 detainee abuse case

Monday, January 9, 2017  /  Rate this article:
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Four law students helped prepare and file a recent amicus curiae ("friend of the court") brief with the United States Supreme Court in a high profile civil case against former senior U.S. officials, including the attorney general, FBI director, and prison wardens, for abuses suffered by detainees held in the immediate aftermath of the 9/11 attacks. The U.S. Supreme Courts will hear oral arguments in the case on January 18.

The origins of Ziglar v. Abbasi go back 15 years. In the wake of 9/11, the United States government used federal immigration law to arrest and detain 762 Arabs, South Asians and Muslims over an 11-month period following the attack as part of a comprehensive and targeted sweep in the investigation of potential terror suspects. Eighty-four of the detainees, who were arrested for overstaying their visas or entering the country illegally, were labeled "high interest" and confined at Metropolitan Detention Center (MDC), a federal facility in Brooklyn, New York, where they were subjected to a blanket "hold-until-cleared" policy.

The detainees who filed the lawsuit were detained despite having no ties to terrorism and were subjected to abusive conditions at MDC, including long periods of solitary confinement, excessive bodily searches, sleep deprivation, denial of the ability to worship according to their faith and other verbal and physical abuses. Government officials appealed to the Supreme Court the lower courts' findings that the detainees' allegations were plausible and that the lawsuit could continue, arguing instead that they enjoyed immunity from suit and that the wardens could not be held responsible for just following orders.

To rebut government officials' arguments, law students Seth Garfinkel, Rohmah Javed, Sam Levine and Kevin Vogel, under the supervision of Milton A. Kramer Law Clinic Center Professors Andrew S. Pollis and Avidan Y. Cover, wrote the brief supporting the detainees in partnership with Dorsey Whitney LLP, on behalf of 10 former correctional directors and administrators with extensive experience supervising prisons and jails throughout the United States.

The former correctional officials contend in the brief that established prison regulations and policies forbid the alleged abusive treatment, requiring individualized assessments before detainees can even be placed in restrictive confinement and that the wardens' actions led to unconstitutional punishment.

"It's our hope that by contrasting established policies and practices at other federal correctional centers with the policies and practices at the MDC in the aftermath of 9/11, the Justices will better understand that it was the former officials' actions that produced the abuses that the detainees suffered at the MDC," said Avidan Y. Cover, professor of law and director of the Civil Rights, Human Rights and Immigration Clinic, part of the Milton A. Kramer Law Clinic Center.

In addition to setting forth the federal prison regulations and policies that prohibit confining detainees on non-individualized grounds and on the basis of race, religion or national origin, the brief also discusses how wardens' extensive authority over correctional institutions makes it likely that they approved the alleged abuses. The former correctional officials also explain how the wardens were not required to follow any alleged orders from the FBI or federal prison headquarters which violated established prison regulations and that served no legitimate prison objective. Moreover, the brief concludes, it is "immunization of correctional officials who follow unlawful orders and fail to remedy punitive conditions of confinement that would undermine the proper functioning of jails and prisons."

Read the brief

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