A busy Supreme Court on Monday ruled, in a vote of 4-2, that former September 11 detainees do not have the right to sue government officials for money damages.
This is an issue for Congress, not the judiciary, Justice Anthony Kennedy argued in the court’s opinion. Furthermore, he said, the Second Circuit “erred” in allowing respondents’ detention policy claims to move forward under the context of Bivens v. Six Unknown Fed. Narcotics Agents, which determined that federal officers would need to pay damages to compensate individuals who were subjected to unconstitutional conditions. Expanding Bivens is a “disfavored” judicial activity, Kennedy noted.
After the September 11, 2001 attacks, the public sent 96,000 tips to the FBI regarding what they believed was suspicious behavior. The Court notes that while many of these were legitimate, others were the effect of a "fear of Arabs and Muslims." The agency interviewed 1,000 people with suspected links to the attacks, discovering that many of those interviewees were in the U.S. illegally. As such, these individuals were arrested and detained. If they were determined not to be connected to 9/11, he or she was treated by the authorities just as an illegal alien at the border. Eighty-four “aliens” were detained, however, after authorities had reason to believe they were connected to the terror attack. A group of detainees held in a Brooklyn jail filed a lawsuit against federal officials, including Attorney General John Ashcroft, and former FBI Director Robert Mueller, who is now the special counsel for the investigation into Russia's meddling in the 2016 election.
In the opinion, the justices do note that some prisoners were often subject to “harsh conditions.” They allowed one suit to continue against the warden at the Metropolitan Detention Center, over allegations of physical and mental abuse, including slamming prisoners into walls.
Justices Elena Kagan, Sonia Sotomayor and Neil Gorsuch were not eligible to rule in the case. Justice Stephen Breyer issued the dissent, stating, in part, “History warns of the risk to liberty in times of national crisis."