The Supreme Court has ruled that six men detained after the September 11 attacks are not legally able to sue top officials from the Bush administration.
The men, who are of Arab or South Asian descent and in the U.S. illegally, were detained with hundreds of others and held for periods of between three and six months at a federal facility in Brooklyn, according to the opinion. Five are Muslim.
The men say they were subject to harsh condition and physical abuse in detention. For example: “Guards allegedly slammed detainees into walls; twisted their arms, wrists and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.”
They sued seeking damages and the Second Circuit Court of Appeals had ruled that the lawsuit could proceed. But the Supreme Court said the former detainees are not able to hold top Bush administration officials personally liable for constitutional violations. The officials named in the case include former Attorney General John Ashcroft and former FBI Director Robert Mueller. The case is Ziglar v Abbasi.
“The court’s decision allows for high-level officials to violate the Constitution without fear of personal accountability — a dangerous message in this time of rampant state-sponsored discrimination against Muslim and immigrant communities,” attorney Rachel Meeropol said in a statement. She represents the former detainees through the Center for Constitutional Rights.
In a 4-2 vote, the justices found that Congress has not provided a legal mechanism for seeking damages for “constitutional violations by agents of the Federal Government.” Such a mechanism exists for constitutional violations by state officials.
In his majority opinion, Justice Kennedy wrote that Congress’ silence on the issue is unlikely to have been accidental.
There is “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,” the opinion reads. However, “the proper balance is one for the Congress, not the Judiciary, to undertake.”
As NPR’s Nina Totenberg reported, Kennedy said it is Congress that generally authorizes damages suits. And while he acknowledged some exceptions, “he said those exceptions do not apply in this case.”
He stressed that the Supreme Court’s opinion “should not be read to condone” the alleged abuse, calling it “tragic.”
The opinion also remanded back to a lower court a prison abuse claim against a warden in charge of the New York facility.
Justice Stephen Breyer “took the rare step of dissenting orally from the bench,” Nina reported. Justice Ruth Bader Ginsburg joined him in dissenting.
Breyer said he is critical of the court’s apparent reluctance to weigh in on balancing rights and security at times of national emergency, suggesting that history provides examples of executive or legislative overreach at these moments:
“As the Court correctly points out, the Constitution grants primary power to protect the Nation’s security to the Executive and Legislative Branches, not the Judiciary. But the Constitution also delegates to the Judiciary the duty to protect an individual’s fundamental constitutional rights. Hence when protection of those rights and a determination of security needs conflict, the Court has a role to play.”
Three of the justices played no role in the case. As the Associated Press writes, “Justices Elena Kagan and Sonia Sotomayor had been involved in earlier stages of the lawsuit, before they were on the court.” And the case had already been argued which Justice Neil Gorsuch joined the court.
This is not the first time the justices have sided with Ashcroft; according to the AP, “The decision was the third in which the court has intervened and ruled for Ashcroft in lawsuits against him and others from Muslims who were arrested in the U.S. following the 2001 attacks.”
It’s not clear how far-reaching this decision is, Nina reports.
“I think that with regard to policymakers, it’s a pretty strong statement that you’re not going to have damages actions for policy-level decisions,” William McDaniel, who represented one of the Bush administration officials, tells Nina.
Seton Hall law professor Jonathan Hafetz tells Nina he does not think the decision reaches “rogue acts by individual federal agents, or other unconstitutional acts by government officials in a different context.”
However, as Nina reported, University of Texas law professor Stephen Vladeck says this opinion cements “far greater limits on damage suits unless they are explicitly authorized by Congress.”
Here’s more from Vladeck:
“What’s so surprising and alarming about this ruling is its breadth, not just to be limited to the special and specific context of the post-9/11 counter terrorism response, but actually to make it harder for just about everybody to sue the federal government for damages when our constitutional rights are violated.”
Plaintiff Benamar Benatta, who flew in from Canada to witness the case being argued, said in a statement from his lawyers that he was “very disappointed” in the court’s ruling. He added: “Being labeled a terrorist and sitting there in your small cell without any distraction or reading material, not knowing what will happen to you or where you will end up is the worst thing that can ever happen to a human being.”