Post-Sept. 11 Profiling Case Tests Government Officials’ Broad Immunity From Civil Suits

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WASHINGTON

The Supreme Court considered on Jan. 18 whether high-level U.S. government officials can be held liable for the alleged unconstitutional treatment of a group of Muslim noncitizens after the terrorist attacks of Sept. 11, 2001.

The long-running case dates to the months after the attacks, when hundreds of Arab and South Asian men – many of them Muslim – were arrested and detained as part of a nationwide terrorism probe.

Six plaintiffs say they were beaten, strip-searched and treated as terrorism suspects because of their religion and ethnicity. The men, who all lacked lawful immigration status, were held for months in highly-restrictive conditions in a federal detention center in Brooklyn, but none were found to have any connection to terrorism.

Two of the court’s liberal justices, Ruth Bader Ginsburg and Stephen Breyer, seemed particularly troubled during oral arguments on jan. 18 about the length of their incarceration and treatment even after government officials knew the men had no ties to terrorism.

“To allow it to persist for months and months when people were held in the worst conditions of confinement,” Ginsburg said.

Breyer suggested that such lawsuits were sometimes necessary as a deterrence.

“There is no blank check even for the president,” Breyer said. “Sometimes they can go too far, and if they have, it is our job to say so.”

The question for the shorthanded high court is not whether the men were abused, but whether they can bring a case for civil damages against high-ranking government officials in the administration of former president George W. Bush.

Former attorney general John Ashcroft, former FBI director Robert Mueller and other Bush administration officials appealed a divided decision by the U.S. Court of Appeals for the 2nd Circuit in New York that allowed the case to proceed in 2015.

Human rights and immigrant advocates say the outcome of the case is even more significant with the inauguration of President-elect Donald Trump because his policy proposals could possibly violate the Constitution. Trump has called for the mass deportation of undocumented immigrants, a ban on new Muslim immigrants and deeper scrutiny of Muslims within the United States.

In general, government officials are shielded from civil lawsuits seeking monetary damages when they have acted in good faith. There are exceptions for intentional violations of law.

The high court first recognized a limited right for individuals to sue government officials in a 1971 case. Since 1980, the Supreme Court has generally been hesitant to expand that right.

Acting Solicitor General Ian Heath Gershengorn urged the court Wednesday not to order what he said would be a “massive extension.” Congress, not the courts, he told the justices, should make such judgments when it comes to legal challenges to national security and immigration policies.

Chief Justice John Roberts seemed to agree, saying it would be “extraordinary” to allow such a lawsuit for monetary damages. High-ranking government officials crafting policies to respond to a national emergency should not be worried about being sued, Roberts suggested.

“You’re asking us to shape a remedy Congress has not provided,” he told Rachel Meeropol of the Center for Constitutional Rights, who argued the plaintiffs’ case.

Meeropol told the court that such lawsuits are necessary to “deter the creation of unconstitutional policies” by future government officials.

The lawsuit is the third filed against Ashcroft and others to reach the high court involving claims of alleged harsh treatment of Muslims arrested after 9/11.

The Supreme Court ruled in 2009 that top officials were not liable for allegedly discriminatory actions of their subordinates unless they had ordered the measures. In that case, the court split along ideological lines, with Justice Anthony Kennedy siding with Roberts, Justices Clarence Thomas and Samuel Alito and the late Justice Antonin Scalia.

The court was down to six justices at oral arguments Wednesday. Justices Elena Kagan and Sonia Sotomayor were recused presumably because of their earlier work in the solicitor general’s office and on the 2nd Circuit.

Four former attorneys general sided with the former Bush administration officials, saying the threat of such lawsuits inhibits high-level government officials from carrying out their duties.

“For senior officials to do their jobs properly, they can’t have in the back of their mind the potential to be sued based on their conduct,” said Richard Samp, chief counsel of the Washington Legal Foundation, who filed a brief on behalf of the former attorneys general, including Alberto Gonzales and Edwin Meese.

The Justice Department’s inspector general criticized government officials in 2003 for their handling of some detainees after 9/11, finding that the FBI took too long to investigate and clear them of connections to terrorism. The report said authorities at the federal Metropolitan Detention Center in Brooklyn subjected detainees to “unduly harsh” conditions.

Only one of the immigrants who filed suit, Benamar Benatta, who now lives in Canada, was in the courtroom Wednesday. Three others, who were deported following their detentions, were denied visas to return, according to Meeropol.

Outside the court, a small group of activists read testimonies provided by some of the plaintiffs. One woman read the words of Anser Mehmoud, one of two Pakistani plaintiffs, who described the jarring transition from having “never [been] handcuffed my entire life” to being detained after 9/11 and shoved into a cell, where corrections officers called him and the other inmates “camels.”

“They arrested me because I am Muslim,” the woman said, reading Mehmoud’s account of his detention. The 10 other demonstrators held signs, one of which called for an “end to racial and religious profiling.” Using a small portable speaker and microphone, they chanted, “Hey, hey, ho, ho, Islamophobia has got to go.”

THE WASHINGTON POST