The corrections officers told their new prisoner, Ahmer Iqbal Abbasi, to strip and face the wall. They had already twisted his hands in his handcuffs, shoved him and called him a “f---ing Muslim,” Abbasi said in an interview last week.
It was September 2001, two weeks after 19 Muslim hijackers carried out the worst terrorist attacks in U.S. history. Federal authorities never found any connection between Abbasi, a 28-year-old yellow-taxi driver from Pakistan, and the terrorists. But like hundreds of other Arab and South Asian men swept up in the aftermath of the attacks, he was not a legal immigrant.
Abbasi is one of six plaintiffs in a long-running case brought by noncitizens detained after 9/11 that reaches the Supreme Court on Wednesday.
The question for the high court is not whether the men were abused, but whether they have the right to bring a case for damages against high-level U.S. government officials for the alleged unconstitutional treatment.
Their lawyers say authorities held some 400 men — many of them Muslim — on the basis of their race, religion, ethnicity, national heritage and immigration status, and subjected them to “brutal” conditions, including verbal and physical abuse, daily strip searches and months in solitary confinement.
The defendants include former attorney general John D. Ashcroft, former FBI director Robert S. Mueller III and other officials in the administration of former president George W. Bush.
A divided three-judge panel of the U.S. Court of Appeals for the 2nd Circuit in New York ruled in 2015 that the lawsuit could go forward.
Civil rights and immigrant advocates say the outcome will set a powerful precedent that becomes all the more significant with the election of 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.
“Allowing high-level officials basic impunity for constitutional violations would send a really problematic message at this time when we’re faced with an incoming administration who talks about bringing back torture — and worse, rounding up Muslims — as legitimate policy choices,” said Rachel Meeropol of the Center for Constitutional Rights, who will argue the plaintiffs’ case.
Government lawyers, in the final case to be argued by the Obama administration, have urged the high court to reverse the 2nd Circuit decision and to stop the lawsuit from proceeding. Congress, not the courts, they say, should decide whether individuals can sue government officials for what the administration describes in its briefing as “unintended consequences arising from the implementation of policy decisions they made during an unprecedented national-security crisis.”
Four former attorneys general from Republican administrations have also weighed in on the side of the former Bush administration officials.
“Nobody claims they even knew who these defendants were, let alone ordered them held in solitary confinement,” said Richard A. Samp, chief counsel of the Washington Legal Foundation, who filed a brief on behalf of the former attorneys general.
“The obvious motivation was better safe than sorry. We’re not going to release anyone until we’re sure they are not terrorists.”
None of the immigrants who filed suit will be present in the courtroom Wednesday. All were deported after their detentions, and the three who sought to return to hear their case argued were denied visas, Meeropol said.
The men who filed suit all lacked lawful immigration status at the time of their detention, but none were found to have any connection to terrorism.
In 2003, the Justice Department’s inspector general criticized government officials 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, where Abbasi was held, subjected detainees to “unduly harsh” conditions.
Meeropol said authorities also often declined to tell family members where their loved ones were being held. “These were disappearances,” she said.
In 2009, the government reached a settlement of $1.2 million with five original plaintiffs in the case. But those men were suing the United States, not the individual officials who presided over policy.
The high court first recognized a limited right for individuals to sue government officials in a 1971 case known as Bivens v. Six Unknown Named Agents involving an illegal search by federal narcotics agents. Since 1980, the Supreme Court has generally been hesitant to expand that right.
Civil rights and immigrant advocates are most concerned that the Supreme Court could shut off any opportunity for individuals to hold the executive branch accountable for damages in court after a constitutional violation has occurred.
If the Supreme Court sides with the Obama administration, “not only would these detainees lose any opportunity to prove their claims, but so, too, would many future victims of human rights violations,” Stanford Law School professor Shirin Sinnar, who co-authored an amicus brief in the case, wrote in a Washington Post column.
The court will be shorthanded at oral arguments on Wednesday with only six justices. Justices Elena Kagan and Sonia Sotomayor are recused presumably because of their earlier work in the solicitor general’s office and on the 2nd Circuit.
Abbasi, a father of four, who now lives in Karachi, Pakistan, said he is “hopeful.” He will wait for his attorneys in the United States to tell him how it goes.
The case is Ziglar v. Abbasi, 15-1358.