Court Weighs Post-9/11 Liability

Garre relied in part on a decision from the court last year that made it harder for those suing for antitrust violations to pursue their cases without more detailed allegations of wrongdoing. Plaintiffs argue that such detail is available only after they have received the right to question the targets of the suits.

But the author of that opinion, Justice David H. Souter, was one of the justices most skeptical about whether those standards applied to an allegation that "the attorney general of the United States and the director of the FBI were in fact directly involved in devising a policy" that discriminated on the basis of race and religion.

Although the issue at hand was whether the circuit court had correctly decided that the case could go forward, much of the argument concerned whether the tough policies enacted after the Sept. 11, 2001, attacks were justified.

Reinert echoed the circuit court in saying that federal officials are never allowed to devise a scheme that would allow suspects to be swept up solely on the basis of their national origin and religion.

Scalia challenged Reinert's description, saying if that were the case, "the net surely was not cast wide enough, if anybody of that race, religion was swept in. I mean, if it's solely for that reason, there would have been hundreds of thousands of others."

Other justices pointed out that the detention applied to those who had violated immigration or criminal statutes.

The case is Ashcroft v. Iqbal.