Terror in the Homeland: The Supreme Court, “See Something, Say Something,” and the Specter of 9/11

Reminders of 9/11 are scattered around our country. Coral Springs, my hometown, displays a piece of twisted steel from the World Trade Center. These objects identify a monumental affront to our national consciousness. Insulated by oceans, protected by powerful armies, we never thought it would happen here. Instead, we had to confront a reality where we are vulnerable.

Following 9/11, the country was told that we the citizens must defend America. We rightly praised those who apprehended the would-be shoe bomber Richard Reid. Similarly, in many of our cities, “See Something, Say Something” campaigns calling upon people to report suspicious behavior remain ubiquitous on billboards, subways, and trains.

Interestingly enough, another vestige of that not-so-far-gone era came before the Supreme Court on Jan. 18 of this year. While it had little fanfare in light of the Presidential inauguration, Ziglar v. Abbasi presents troubling questions for our future under administrations with ever growing police powers. Ziglar will decide whether federal officials, such as then Attorney General John Ashcroft, can be held personally liable for violating non-citizens’ constitutional rights in the wake of 9/11. The rampant torture and abuses at Guantanamo Bay are widely acknowledged but its analogues on the homeland have been mostly ignored. Ziglar confronts our sordid history of abuses head-on and should make us question more than just legal minutiae but our values surrounding hyper vigilance as well.

Background on Ziglar

While the legal issues surrounding Ziglar are complicated and multifaceted, the facts behind the case are simple and terrifying. After 9/11, non-citizen Muslims and Arabs in the New York City metropolitan area were arrested for immigration violations and detained in a variety of local prisons including the Metropolitan Detention Center (MDC) in Brooklyn. The lack of evidence justifying these detentions shocks the conscience.

These otherwise innocent people were held because concerned citizens and federal agencies acted out of fear. For example, one wrongfully imprisoned person was an Egyptian medical student who came to the United States for vacation. He was arrested after a tip came in that Arabs at his address rented out a post-office box. His detention lasted four months. An original plaintiff in the case “came to the FBI’s attention when his landlord called the FBI’s 9/11 hotline to report that she ‘rented an apartment in her home to several Middle Eastern men, and she would feel awful if her tenants were involved in terrorism and she didn’t call.’” Another man still does not know the reason for his detention.

Despite the questionable justification, the individuals were placed in an Administrative Maximum Special Housing Unit (SHU) at MDC where they suffered exposure to the harshest conditions within the federal prison system. These conditions included 23-to-24 hour-a-day lockdowns in solitary confinement, repetitive strip searches, sleep deprivation, and physical abuse. The detainees, never charged and without any tangible connection to terrorist activities, were imprisoned subject to a “Hold Until Cleared; policy where officials held them indefinitely until they were “cleared” of all accusations. A “Hold Until Cleared” policy is a potentially unconstitutional inversion of our country’s righteous belief in a presumption of innocence.

What occurred at MDC is not speculation. The Office of the Inspector General (OIG) for the Department of Justice described in explicit detail the conditions the individuals were exposed to in the SHU. For example, the OIG found that cells were illuminated 24 hours a day. MDC and the warden claimed that they could not reduce the lighting but the OIG determined this to be untrue. Twenty-four hour a day lighting lasted “until at least late February 2002” or mid-March 2002. The OIG also found that MDC interfered with detainees’ abilities to possess Korans in their cells and make legal calls. MDC even failed to release detainees after the FBI cleared them of all accusations of terrorism.

It would be easy, albeit incorrect, to dismiss those complaints as petty. Maybe some people just think that prison is a rough place and being denied access to a lawyer or having the lights permanently on is the cost of being there. Thankfully, the OIG also described a pattern of horrific physical and verbal violence. Detainees were slammed into concrete walls and threatened with having their necks broken. Officers told them that but for security cameras, they would have “bashed” in a detainee’s face. Staff also bent their arms, hands, wrists, and fingers, causing severe pain and fear. In fact, MDC staff confirmed individuals were treated “pretty roughly” and that they were not “using kid gloves” with them. Some staff tried to “prove that America was superior” by being overly aggressive and taunted the individuals by calling them “Bin Laden, Junior.” This continued in public areas where the detainees were called racial slurs and terrorists so that members of the general prison population would associate them with the 9/11 attacks.

These people were never convicted of terrorism, charged with terrorism, or even associated with terrorism. They were held and treated harshly based on fleeting and shoddy accusations by concerned citizens. While Ziglar will answer a litany of important legal questions, it represents something much greater than that. It demonstrates just how nationalism, suspicion, and aggression run amok can endanger all of us.

The Conditions to Repeat the Horrors in Ziglar are Present Today

“See Something, Say Something” and the push for a vigilant citizenry possess the capacity to protect democratic community values. The idea we must all look out for each other and be our neighbor’s protector dovetails with some of the most progressive ideas in campaigns advocating social justice. But in an environment wracked with suspicion, where crimes against Muslims and other minorities rise to the highest levels since 9/11, “See Something, Say Something” possesses the capacity to cast every person as a criminal, anyone unfamiliar as an enemy. We saw this happen after 9/11 and the facts of Ziglar show the consequences. The margin of error today remains slim should we hope to avoid that again.

While “See Something, Say Something” feels reassuring, what results has the campaign produced? The numbers do not lie. Through early 2008 in New York, the tip-line produced zero leads associated with terrorism. In fact, in urban areas such a campaign seems particularly misguided. It calls on citizens to report anything abnormal, but at least in New York, the whole city is pretty strange. After all, a mostly naked cowboy is a fixture in Times Square, one of the world’s premier tourist spots. Following the 2016 Chelsea bombing, reports on suspicious packages rose to nearly 20 times their average. Still, credible leads have been scarce, resources have been diverted from where they are actually needed, and the possibility of subjecting innocent people to police surveillance or violence is all too real.

The resurgence of the protest movement shows how easily that can happen. Police regularly record and videotape protesters so that they have their own records of local activists. A law-abiding protester reported to officials can expect to be logged in a federal database. If you wonder what the implications are for this kind of surveillance, remember that President George W. Bush’s Department of Homeland Security explicitly directed local law enforcement to regard critics of the War on Terror as potential terrorists themselves. And now, even local police seem to be able to tap cell phones at protests without any warrant. Bad enough as that is, journalists and lawyers have become targets. Many face felony rioting charges for simply reporting on and observing protests at President Trump’s inauguration. Altogether, these actions chill speech and create a nervous suspicion around dissent.

But Republicans and their supporters do not have a monopoly on this intimidation. After all, it was Howard Dean who questioned whether critical journalists are paid off by the Kremlin or Iran.

Would be interesting to find out if the intercept gets money from Russia or Iran https://t.co/A6ym7Qkx6y

— Howard Dean (@GovHowardDean) December 21, 2016

If you pause before accepting the words from on high in the American establishment, you may be labeled a traitor by Keith Olbermann. But even worse, if you dare express solidarity with Muslims, Republican Representative Steve King, who seems wholly incapable of understanding the difference between Islam and ISIS, will think you are “sympathetic to ISIS; What this amounts to is an attack from the elites on both sides against dissenters. They want to label it un-American to oppose the government and they want to make it unacceptable to disagree.

If we take seriously the narrative that President Trump’s administration may endanger those who hope to resist him, and we should take that narrative seriously, these accusations against others are irresponsible, immature, and dangerous. If our leaders and law enforcement cannot be trusted to responsibly “say something” or protect our rights, how can we expect citizens informed by those so-called leaders’ fears to behave any better?

It is hard to overstate just how horrible the detainees in Ziglar had it. They were in New York City and imprisoned based on very thin evidence. We subjected them to cavity searches, physical abuse, and solitary confinement. It is heart-wrenching to imagine the fear these people must have felt, literally cold and alone in a prison being made to prove their innocence oftentimes without real access to lawyers. It would be comforting to think what happened sixteen years ago could not again happen today, but we can all feel the political winds changing with some reverting back to that chilly air that permeated post-2001.

People on both sides of the aisle enjoy invoking the unity we felt as Americans following 9/11. Never since then has it been so necessary to actually be united, to stand together, and to protect our brothers and sisters from whatever untold aberrations of justice come next. If our leaders have proved incapable or unwilling, such as Attorney General John Ashcroft demonstrated, it is up to us to reject those leaders and to be what we were told we were sixteen years ago: the real defenders of democracy, decency, and community.

Alex Jacobs is a graduate of Northwestern University Law School where he was President of the American Constitution Society and served as senior editor on the Northwestern Journal of Law & Social Policy.