More than 15 years after allowing sweeping post-9/11 detentions, the government officials who implemented the policies are off the hook.
Top officials in the Bush administration, including former Attorney General John Ashcroft and former FBI Director Robert Mueller, will not be held personally liable for unlawful detention policies and practices implemented after the September 11 terror attacks, a Supreme Court ruling handed down Monday stated.
In the wake of the attacks, over 1,200 citizens and immigrants were detained as potential terrorism suspects in a broad legal sweep dubbed “Hold until cleared.”
Rounding up suspects without formal charges was justified by the nation’s state of emergency at the time, but in response, a group of non-white, mainly Muslim and Arab men who were detained in New York and New Jersey sued government officials, arguing they were targeted based on race and ethnicity and faced harsh abuse in detention. They were held anywhere from three to eight months without access to the outside, allegedly had their bones broken by the prison guards, and were subjected to “humiliating sexual comments” as well as religious insults.
The plaintiffs also argued they were detained on illegal immigration charges, not terrorism-related charges, and that the government did this deliberately to avoid the oversight of criminal detention.
“Immigration law cannot be used as a shortcut around the Fourth Amendment,” said the Center for Constitutional Rights lead attorney Rachel Meeropol in one of her appeals. “Just because the executive wants to investigate a non-citizen doesn’t mean high-level officials can ignore the law. This should be made even more clear by the abuse our clients suffered while they were deprived of access to friends, family, or counsel.”
On top of that, the group of men argued government officials should be held personally liable for damages because they allowed the detention policies to be implemented.
In 2013, a district court approved Ahmer Iqbal Abbasi’s claims against the detention facility’s direct supervisors but denied claims against the “high-level officials.” Abbasi appealed this decision and in June 2015, the 2nd Circuit ruled in favor of reinstating the claims against Ashcroft and Mueller. In court, the defendants argued that Abbasi had not shown enough evidence that they were mistreated in detention and claimed that high-level officials qualified for immunity.
The Supreme Court dissented on Monday, denying the post 9-/11 detainees any relief, besides remanding one prisoner-abuse claim to the Court of Appeals for consideration.
This isn’t surprising. The Supreme Court has ruled in favor of the government now eight out of eight times in counterterrorism cases. Justice Sonya Sotomayor and Justice Elena Kagan recused themselves because of conflicts of interest, meaning that the case was decided by six judges, four of which were Republican appointees. Justice Gorsuch did not take part in the decision either, since the case was argued before he was on the bench.
While complex, the Abbasi case points to a larger ongoing debate about executive power and government accountability. President Trump, for example, is currently battling cases against him as a private citizen, while remaining personally immune to cases against him as commander-in-chief.