Justices leery of expanding right to sue top officials

AP News
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Posted: Jan 18, 2017 1:45 PM

WASHINGTON (AP) — The Supreme Court sounds leery of expanding the right to sue high-ranking officials in a case that dates to the aftermath of the Sept. 11 attacks.

Just six justices heard arguments Wednesday in an appeal by former Attorney General John Ashcroft and other former top officials to shut down a lawsuit filed by Muslim men who were detained for months in harsh conditions in a Brooklyn jail after the 2001 attacks on the World Trade Center and the Pentagon.

The detainees have several claims against Ashcroft, former FBI Director Robert Mueller, former immigration chief James Ziglar and the two men who ran the federal jail. Claims against the jail officials seemed to have the best chance of surviving Supreme Court review.

A divided panel of the 2nd U.S. Circuit Court of Appeals in New York had said the men were detained "as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim."

The appeals court said that the suit could go forward because "the suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy."

The case stems from a class-action suit originally filed in 2002. It's the third time the court has intervened in lawsuits against Ashcroft and others from Muslims who were arrested in the U.S. following the 2001 attacks. The justices have twice sided with Ashcroft.

Justice Anthony Kennedy, whose vote the detainees would need to win at the Supreme Court, said the court had carefully limited the circumstances in which top officials could be sued. "I think you're asking us to go further," Kennedy told Rachel Meeropol, the lawyer for the men.

The detainees were arrested on immigration violations and they claim that there was never an indication that they had connections to terrorism. "There was no judgment being exercised. No one was determined to be a threat," Meeropol said.

Allowing Ashcroft and the others to act with impunity, she said, would in essence ratify that "race or religion could play a part in legitimate discrimination."

Justice Department lawyer Ian Gershengorn said the court should not subject the former heads of the Justice Department and FBI to a lawsuit where they could be personally liable for paying money to the plaintiffs for actions they took following the Sept. 11 attacks "to avoid the inadvertent or premature release of a dangerous terrorist."

Justice Stephen Breyer said that after 3,000 people were killed, he understood the decision to "pick up anybody who might be connected and we'll worry about the rest of it later." But the length of the detention concerned him. "I can see it for a day, two days. Five years? Eight months?" Breyer said.

Gershengorn said Ashcroft was "trying to sort through how to respond to a very difficult situation."

Among the more than 80 detainees was Ahmer Abbasi, who was living in Jersey City, New Jersey, in 2001. He described being strip-searched on a regular basis and held in his cell for all but an hour or two a day during more than four months in the most restrictive confinement. He spent nearly 11 months in jail before he was deported to his native Pakistan.

In a telephone interview with The Associated Press, he said he is proud to be part of the lawsuit because 15 years after his detention, "somebody has to be accountable, somebody has to be responsible."

Justices Elena Kagan, who worked on the case while serving in the Justice Department, and Sonia Sotomayor, who was on the appeals court when it heard an earlier version of the case, are not taking part.

A decision in Ziglar v. Abbasi, 15-1358, and related cases is expected by late June.