WASHINGTON — Since 9/11, the Bush administration has successfully fended off suits by many victims of its war-on-terrorism policies not by showing their charges are false, but by relying on legal barriers that prevent the suits from being heard.
Lawyers for the administration were able to kill a lawsuit against its wiretapping policy by saying those who sued could not prove they had been wiretapped. Therefore, they had no standing to sue.
They blocked lawsuits from several people who say they were wrongly captured and tortured by the CIA on the grounds that they could expose state secrets.
The latest example of this approach came Wednesday, when a top Bush administration lawyer urged the Supreme Court to throw out a lawsuit against former Atty. Gen. John Ashcroft and FBI Director Robert S. Mueller III on allegations that they ordered the arrest and jailing of Muslim men in the New York area after the attacks of Sept. 11, 2001.
More than 700 Muslim or Arab men were taken into federal custody that fall, and many were held in solitary confinement for months. None were charged with terrorism crimes, although many were found guilty of immigration offenses.
Their suits allege that they were arrested and held because of their race and religion, and that they were subjected to strip searches and other abuses in jail.
But U.S. Solicitor General Gregory G. Garre said the suit against Ashcroft and Mueller should be thrown out because the Muslim men could not show the "personal involvement of those high-ranking officials in the alleged discriminatory acts." Because they lacked this proof in their original complaint, the suit should be dismissed at the pleading stage, Garre said.
Lawyers for the Muslim men called this a classic Catch-22.
"Plaintiffs will never be able to provide the level of detail Ashcroft and Mueller would demand at the beginning of a lawsuit, because that information is in the exclusive control of the government," said Rachel Meeropol, a lawyer at the Center for Constitutional Rights. "It's a Catch-22 that would always let high-level officials off the hook," she said.
But Garre's argument won a sympathetic hearing from the high court. He called the FBI's decision to arrest and question Muslim men "a perfectly lawful law enforcement response" to the attacks. Ashcroft and Mueller "are entitled to a dismissal" of the suit, he said, so they are not forced to respond to questions.
