In the wake of the Sept. 11, 2001, terrorist attacks, hundreds of mostly Muslim immigrants were rounded up and held in harsh conditions in New York. They later sued, but on Monday, the U.S. Supreme Court ruled that high-ranking Justice Department officials from the George W. Bush administration were immune from those lawsuits.
Even the Justice Department's own Inspector General eventually issued a 300-page report that criticized the way the post-9/11 roundup was conducted. The report said little or no effort was made to distinguish between genuine suspects and Muslim immigrants with minor visa violations. The report also faulted the length of the detentions, and the harsh — even abusive — conditions of detention.
In 2002, some of the detainees filed suit, seeking damages from top-ranking Justice Department officials for policies that they designed and carried out.
Those officials included former Attorney General John Ashcroft, former FBI Director Robert Mueller, former Immigration and Naturalization Service Commissioner James Ziglar, and the men in charge of running the federal detention center in Brooklyn where the detainees were held.
"If the facts alleged in the complaint are true," the Supreme Court acknowledged, then what happened was tragic and should not be condoned.
But the legal question, the justices added, was the relevance of an earlier 1971 decision by the court. That decision allowed money damages suits against government officials for constitutional violations.
On Monday, the justices decided that case did not apply and, with that, all but eviscerated the court's earlier decision.
Writing for the court, Justice Anthony Kennedy said it is generally up to Congress, not the courts, to authorize damages suits. While he recognized some exceptions — including some in which he played a key role — Kennedy said those exceptions did not apply in this case.
Here, "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis," for fear of being second-guessed by the courts later on, he writes.
A rare oral dissent
Justice Stephen Breyer took the rare step of dissenting orally from the bench.
"History warns of the risk to liberty in times of national crisis," Breyer observed. He pointed to the imprisonment of dissenters during World War I, and the "unnecessary internment during World War II of 70,000 American citizens of Japanese origin."
Breyer added that there is wisdom in allowing a damages action after the emergency has passed. By then, he said, emotions have cooled, information is more plentiful and courts "at least can see that there is compensation — a degree of vindication — for those whose constitutional rights were, at the time, clearly violated."
Just how far reaching the decision is, remains unclear.
William McDaniel, who represented Ziglar in the case, called the decision "a pretty strong statement that you're not going to have damages actions for policy-level decisions."
Seton Hall University law professor Jonathan Hafetz partially agreed. He added only that Monday's decision "does not reach ... rogue acts by individual federal agents, or other unconstitutional acts by government officials in a different context."
But University of Texas law professor Stephen Vladeck sees the court's decision as cementing far greater limits on damages suits, unless they are explicitly authorized by Congress. He said the ruling would seem to bar suits involving not only noncitizens, but citizens, too, and on topics ranging from property rights to First Amendment violations.
"What's so surprising and alarming about this ruling is its breadth," Vladeck said, "not just to be limited to the special and specific context of the post-9/11 counterterrorism response, but actually to make it harder for just about everybody to sue the federal government for damages when our constitutional rights are violated."
An unusual 4-to-2 vote
The vote was 4-to-2, with Justices Elena Kagan, Sonia Sotomayor and Neil Gorsuch not participating.
Gorsuch was not on the court when the case was argued. Kagan recused herself because she had previously worked on the case when she served as solicitor general in the Obama administration, and Sotomayor was on the appeals court that ruled on the case at earlier stages.
Joining Kennedy in the majority were Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito. Joining Breyer in dissent was Justice Ruth Bader Ginsburg.
There is one great irony to the case: its title, Ziglar v. Abbasi. Former INS Commissioner Ziglar left the Justice Department shortly after 9/11. The reason? He disagreed with some of the detention policies, which he thought posed constitutional problems.
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