Supreme Court Rules That Government Officials Aren’t Liable for Post-9/11 Detentions

(The Washington Post) —
9/11 lawsuit, Supreme Court, Ashcroft, Mueller
In this 2004 photo, Attorney General John Ashcroft (R) and FBI Director Robert Mueller hold a news conference at FBI headquarters announcing individuals sought in connection with possible terrorist threats against the United States. (AP Photo/Charles Dharapak)

High-level U.S. government officials including former Attorney General John Ashcroft and former FBI director Robert Mueller cannot be held liable for the alleged unconstitutional treatment of non-citizens detained after the terrorist attacks of Sept. 11, 2001, the Supreme Court ruled Monday.

In a shorthanded 4-to-2 decision, the Court ended a long-running lawsuit filed against former officials in the administration of President George W. Bush for actions following the attacks on the World Trade Center and the Pentagon. Hundreds of Arab and South Asian men, many of them Muslim, were arrested and detained as part of a nationwide terrorism investigation.

Six plaintiffs brought a representative suit, brought on behalf of those rounded up, who were non-citizens and lacked lawful immigration status. They alleged they were held because of their race, religion, ethnicity, and national heritage and immigration status, and were subjected to verbal and physical abuse, daily strip searches and months in solitary confinement. None of those held at the detention center in Brooklyn were found to have any connection to terrorism.

9/11 lawsuit, Ashcroft, Mueller, Supreme Court
Ahmer Abassi, one of the men who filed a lawsuit against U.S. government officials, speaking to the Associated Press in Karachi, Pakistan, on Jan. 12, 2017. Abassi says he was arrested shortly after 9/11 for an immigration violation, and was detained for nearly 11 months, including more than four months in the most restrictive conditions. He was strip-searched frequently and allowed out of his cell for no more than a couple of hours a day. He was deported in August 2002. (AP Photo/Fareed Khan)

Justice Anthony Kennedy said that the treatment alleged by the men was “tragic,” but that the U.S. Court of Appeals for the 2nd Circuit in New York was wrong to let the suit proceed. In general, government officials are shielded from civil lawsuits when they have acted in good faith in carrying out their duties.

Kennedy acknowledged competing concerns.

Without lawsuits holding public officials accountable, he said, “there will be insufficient deterrence to prevent officers from violating the Constitution.” On the other hand, if such lawsuits were allowed, “high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis.”

“There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the nation in times of great peril,” Kennedy said, before concluding:

“The proper balance is one for the Congress, not the Judiciary, to undertake.”

His opinion was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.

Three justices did not participate in the ruling: Justices Sonia Sotomayor and Elena Kagan recused themselves, presumably because each had worked on the case before joining the Court, and new Justice Neil Gorsuch took no part in the case because it was argued before he was confirmed to the Court.

Justices Ruth Bader Ginsburg and Stephen Breyer dissented. Breyer read part of his dissent from the bench, an rare occurrence generally reserved only for when justices feel very strongly about a case.

Breyer said he was most concerned by the majority’s view that “post 9/11 circumstance – the national security emergency – does or might well constitute a ‘special factor’ precluding lawsuits.”

“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,” Breyer wrote in the dissent Ginsburg joined.

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