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In the wake of the 9/11 terrorist attacks, hundreds of mostly Muslim immigrants were rounded up and held in harsh conditions in New York, and they later sued. Today the U.S. Supreme Court ruled that high-ranking Justice Department officials from the George W. Bush administration are immune from those lawsuits. NPR Legal Affairs Correspondent Nina Totenberg has more.
NINA TOTENBERG, BYLINE: 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 that little to no effort was made to distinguish between genuine suspects and Muslim immigrants with minor visa violations. And it faulted the length of the detentions and the harsh, even abusive conditions. In 2002, some of the detainees filed suit, seeking damages from former Attorney General John Ashcroft, former FBI Director Robert Mueller, former Immigration Commissioner James Ziglar and the men in charge of running the prison where the detainees were held.
If the facts alleged in the complaint are true, the Supreme Court acknowledged today, what happened here was tragic and should not be condoned. But the legal question, the justices added, is whether a 1971 decision that allowed money-damage suits against government officials for constitutional violations applies to these circumstances. The answer, the court said, is it does not. And with that, the court all but eviscerated its earlier 1971 decision.
Writing for the court, Justice Anthony Kennedy said that it is generally up to Congress, not the courts, to authorize damage suits. And while he acknowledged some exceptions, he said those exceptions do not apply. Here, officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis, he said, for fear of being second guessed by the courts later on.
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, he observed, pointing to the jailing of dissenters in World War I and the unnecessary internment during World War II of 70,000 American citizens of Japanese origin. The wisdom of allowing a damages action after the emergency is passed, he said, is that emotions have cooled. Information is more plentiful, and courts at least see that there's a degree of vindication for those whose rights have been violated.
Just how far-reaching the decision is remains unclear. William McDaniel represented former INS Commissioner Ziglar in the case.
WILLIAM MCDANIEL: I think with regard to policymakers, it's a pretty strong statement that you're not going to have damages actions for policy-level decisions.
TOTENBERG: Seton Hall law professor Jonathan Hafetz seemed to at least partially agree. But he added...
JONATHAN HAFETZ: I think the decision does not reach, for example, rogue acts by individual federal agents or other unconstitutional acts by government officials in a different context.
TOTENBERG: But University of Texas law professor Stephen Vladeck sees today's opinion as cementing far greater limits on damage suits unless they are explicitly authorized by Congress. The decision, he says, would seem to bar suits involving not just non-citizens but citizens, too, and on topics ranging from property rights to First Amendment violations.
STEPHEN 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 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.
TOTENBERG: The vote in today's case was 4 to 2 with Justices Kagan, Sotomayor and 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 Roberts and Justices Thomas and Alito. Joining Breyer in dissent was Justice Ginsburg.
There is one great irony to the case, and that is its title, Ziglar v. Abbasi, Ziglar being the former INS commissioner. Ziglar left the Justice Department shortly after 9/11 because as it turns out, he disagreed with some of the detention policies, seeing them as presenting constitutional problems. Nina Totenberg, NPR News, Washington.
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