The Supreme Court heard arguments Wednesday in a case that could allow innocent undocumented immigrants detained after the 9/11 terrorist attacks to sue government officials for civil rights violations.
The justices questioned why the government held eight Muslim men under harsh conditions for up to eight months without any evidence linking them to the attacks.
“I can understand after a bomb attack and 3,000 people are killed … that the first reaction of the law enforcement authorities is, ‘pick up anybody you might think is connected, and we'll worry about the rest of it later,’” Justice Stephen Breyer said. “Now, eight months?”
Three former George W. Bush administration officials -- former Immigration Commissioner James Ziglar, former Attorney General John Ashcroft and former FBI Director Robert Mueller -- are appealing a lower court ruling that allowed some of the immigrants’ civil rights claims to move forward.
The men seeking to sue claim they were strip searched whenever they were removed from or returned to their cells, provided meager or barely edible food, verbally abused, and denied sleep and basic hygiene items such as toilet paper, soap, towels, toothpaste and eating utensils while detained at the Metropolitan Detention Center in Brooklyn, N.Y., according to court documents.
Under the court’s 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, their attorney Rachel Meeropol argued they have the right to sue the government officials responsible for the abuse they endured while they were detained.
Meeropol argued it’s up to the courts to ensure that race and religion do not take the place of legitimate grounds for suspicion and deter future federal officials from creating government policy that do the same.
Justice Anthony Kennedy seemed to side with the government officials’ attorneys, and argued it’s up to Congress.
“This is for the Congress,” he said. “I think you're asking us to go further. I think what you're asking for is a legitimate argument with many valid points to it, but you're asking for us to create a new Bivens cause of action,” he said.
“I don't think that there is really any precedent for the idea that you can't use
Bivens to deter the creation of a clearly unconstitutional policy,” Meeropol argued. “And if the Court did rule in that way, what would there be to deter the creation of unconstitutional policies in the future?” she asked.
Acting Solicitor General Ian Gershengorn, however, argued that his clients can’t be sued because there’s no proof they ordered the detainees to be abused.
“There is no allegation that Ashcroft and Mueller or Ziglar created the punitive conditions, or that they required the putative conditions,” he said. “They had the right, as the Second Circuit itself held, and the district court held, to presume that the policy would be implemented lawfully.”
A short-handed court heard the case, which means Kennedy would have to side with Justices Ruth Bader Ginsburg and Breyer for the detainees' lawsuit to move forward.
Justices Sonia Sotomayor and Elena Kagan recused themselves from arguments and will take no part in the decision.
Sotomayor heard an earlier version of the case when she was on the Second Circuit Court of Appeals and Kagan worked on the issue while at the Justice Department, the New York Times reported.
A decision is expected before the end of June.