WASHINGTON — The Obama administration appeared before the Supreme Court justices for the final time on Wednesday morning — defending George W. Bush's attorney general, John Ashcroft, against people trying to sue him and others for detaining individuals in the wake of the attacks of Sept. 11, 2001, who were later found to have no connection to terrorism.
The people, including Ahmer Iqbal Abbasi, were among those individuals who were detained in the aftermath of Sept. 11 for roughly eight months — detentions resulting from policies that ensnared many men with immigration violations who were held without any specific government suspicion of terroristic activities beyond "tips" that came in to the FBI in the wake of the attacks. The plaintiffs in the case, eventually, were found not to have any ties to terrorism.
"[T]his Court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion and in deterring future Federal officials from creating government policy to do the same," Abbasi's lawyer, Rachel Meeropol, argued to the justices.
This set of lawsuits is not about the detention itself, however, but rather is over the conditions that the plaintiffs faced while detained. A lack of any access to lawyers for a period of time, the general confinement conditions, and at times harsh treatment were among the issues raised
Specifically, they are seeking money damages from Ashcroft; former FBI director Robert Mueller; and James Ziglar, the former head of the US Immigration and Naturalization Service (INS) — as well as the warden and associate warden of the Metropolitan Detention Center in Brooklyn, New York, where Abbasi and others were held. The officials are being sued in their individual capacity — not simply as a stand-in for the government.
The damages should be able to be sought under a 1971 US Supreme Court decision, Abbasi's lawyer argued. Further, she pressed, the federal and detention center officials should not be entitled to qualified immunity — protection against being sued as individuals — for their actions because such actions violated clearly established due process and equal protection rights.
The government's lawyer, Acting Solicitor General Ian Gershengorn, countered that allowing such a lawsuit to proceed for damages in this situation would be a "massive extension" of the 1971 case — known as Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics — to national security and immigration-related cases. "If the damages remedy is to be imposed, it's for Congress, not this Court, to do so," Gershengorn said.
The plaintiffs in the case were detained as the result of being on a New York list of detainees — which was not vetted — that was merged with an INS list. As a result of the merger the "hold-until-cleared" policy was kept in place for people on both lists. Gershengorn argued that "uncertainty about the status of detainees on the New York list" led to holding people on both lists "to avoid the inadvertent or premature release of a dangerous terrorist."
While Meeropol argued that the lawsuit was actually brought in the "familiar Bivens context" of prison conditions, she also said it would be "appropriate" to go further with the case law if, as Justice Anthony Kennedy suggested, this lawsuit would require the justices to do so in order to allow Abbasi and others to succeed in their claims.
Justice Stephen Breyer, in the tensest exchange of the day's arguments, questioned Gershengorn about his argument that people could instead file petitions for habeas corpus — challenging their detention at the time — asking him, without saying it specifically, about US policy of internment camps during World War II.
"I suppose that in 1942, there was a president or a secretary of defense who decided let's take 140,000 people — 60,000, 70,000 citizens and 60,000 noncitizens — and lock them up for ten years or five years or four years," Breyer said, suggesting that a judge at the time might not be willing to do something but that "several years later," when more information is known, judges might find that the government had no right to do what it did.
"That's the whole argument, that beware of cutting off Bivens, [because] you never know what will happen," he said.
Gershengorn pushed back, saying, "First of all, I recognize Your Honor is not suggesting that this is Korematsu" — a reference to the heavily criticized Supreme Court decision upholding the constitutionality of the internment camps in 1944.
"No, not at all," Breyer said, explaining that he was just using "a historic example" for an instance when court action possible at the time of the alleged violation might not be as effective as a remedy that could be sought later in time.
On the other side, however, Chief Justice John Roberts pushed Abbasi's lawyer on the government's argument that Bivens actions aren't a proper way of addressing disagreements with policy decisions like the detentions at issue in this case — saying that "part of the policy that we've announced is that we don't want people forming policy to have to worry about they're going to have to pay if the policy is found infirm."
Responding, Meeropol said, "I don't believe that it would be a threat to the republic to provide the attorney general with incentives to not create policy that violates clearly-established law. I see the threat coming from the other side."
The case was heard with the minimum six justices required under law for quorum because both Justices Sonia Sotomayor and Elena Kagan have recused themselves from hearing the case — presumably because of, respectively, their prior roles as a judge on the US Court of Appeals for the 2nd Circuit, from where the cases were appealed, and the solicitor general in the Obama administration.
Breyer and Justice Anthony Kennedy raised questions regarding the scope of the decision from the lower court and another legal avenue for relief, respectively, that could figure into finding alternative ways to resolve the case if a majority opinion is unable to be reached on the primary questions before the justices on Wednesday.