The Supreme Court on Tuesday said it would consider a long-running lawsuit against former attorney general John D. Ashcroft and other top officials filed by immigrants who say they were racially profiled and illegally detained after the Sept. 11, 2001, attacks.
The court will be even more shorthanded than usual: Justices Sonia Sotomayor and Elena Kagan recused themselves from the case, meaning it could be heard by a minimum quorum of six justices. The nine-member court has a vacancy because of the death of Justice Antonin Scalia in February.
The case was filed by six men on behalf of hundreds of mainly Muslim noncitizens who were detained on civil immigration charges for as long as eight months. They never were charged with terrorism but were held in harsh conditions at the Metropolitan Detention Center in Brooklyn.
Besides Ashcroft, they attempt to sue former FBI director Robert Mueller and former Immigration and Naturalization Service commissioner James W. Ziglar.
Ashcroft “ordered that respondents were to be held in these conditions (and their deportations delayed) until they were cleared of any connection to terrorism,” the men said in a brief filed with the Supreme Court. “Mueller oversaw the clearance operation, and would not authorize release of Respondents even after the New York field office cleared them, awaiting a CIA name check. Respondents and others languished for months in solitary confinement even after they had been cleared.”
The suit has been mired in legal maneuvering in the lower courts. A panel of the U.S. Court of Appeals for the 2nd Circuit said it could proceed, and the government asked the full circuit to reconsider. The judges split 6 to 6.
Those who said the suit could advance said the men “plausibly” alleged that Ashcroft “ratified the rogue acts of a number of field agents” aimed at men who were Arabs, Muslims or both.
The dissenters said the decision did not comport with the Supreme Court’s earlier decisions that protected Ashcroft from similar lawsuits.
The Obama administration asked the Supreme Court to intercede in this case, as well.
In its petition to the court, the Justice Department said that unless the justices stopped the suit, “the nation’s highest ranking law-enforcement officers” could be subjected to “compensatory and even punitive damages in their individual capacities because they could conceivably have learned about and condoned the allegedly improper ways in which their undisputedly constitutional policies were being implemented.”
Rachel Meeropol, a lawyer at the Center for Constitutional Rights, which represents the men, said the justices should have simply let the case proceed.
“No one is above the law. To suggest that the most powerful people in our nation should escape liability when they violate clearly established law defies the most fundamental principle of our legal system,” she said.
“At a time when racial and religious profiling are put forward as serious policy proposals for dealing with everything from immigration to terrorism, it is more important than ever that the high court affirm that government officials, especially those at the highest levels, can be held accountable when they break the law,” she said. “We look forward to making that argument before the justices.”
As is customary, Sotomayor and Kagan did not say why they recused themselves. But Sotomayor was a judge on the 2nd Circuit before she was confirmed to the Supreme Court. As President Obama’s solicitor general, Kagan might have dealt with some aspect of the litigation.
The combined cases against the officials will be called Ziglar v. Turkman.