Arab and Muslim former detainees who say they faced harsh jail conditions due to their faith and ethnicity following the Sept. 11, 2001 attacks can pursue a lawsuit against former top U.S. law enforcement officials, a sharply divided federal appeals court ruled on Friday.
The 2nd U.S. Circuit Court of Appeals in New York voted 6-6 not to hear the case again before the entire court, leaving in place an earlier decision from a three-judge panel. A majority of the court’s active judges must approve such a rehearing, known as an “en banc” review.
The plaintiffs were arrested on minor immigration violations and eventually cleared of any connection to terrorism, according to the lawsuit, which was first filed in 2002. Friday’s decision clears the way for a possible trial in federal court.
The former detainees have sued officials from the administration of President George W. Bush, including former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller and former Immigration and Naturalization Service Commissioner James Ziglar.
They claim they were singled out for solitary confinement for 23 hours per day and sleep deprivation because of their religion or ethnicity.
The decision comes days after Republican presidential candidate Donald Trump called for a temporary ban on foreign Muslims entering the country, setting off a furor both in the United States and abroad. His statement came after last week’s shooting in California by a couple authorities said were “radicalized” by extremist Islamist groups.
The 2nd Circuit rarely grants en banc reviews and has heard only one such case in the last two years.
But the split decision prompted an impassioned dissent from the six judges who voted to rehear the case, arguing that the court had failed to take into proper consideration the “unprecedented challenges” U.S. officials faced following the Sept. 11 attacks that killed nearly 3,000 in New York, the District of Columbia and Pennsylvania.
Two judges who voted not to rehear the case disagreed, saying the restrictive conditions were alleged to have “resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue.”
The U.S. Justice Department, which represents Ashcroft and Mueller, and a lawyer for Ziglar, did not immediately respond to requests for comment.
The Center for Constitutional Rights, which represents the plaintiffs, also did not immediately comment.
(Reporting by Joseph Ax; Editing by Bill Rigby)