The Supreme Court will hear litigation that will determine if high-ranking US officials can be sued for civil rights abuses that occurred just after the Sept. 11, 2001 terrorist attacks.
Justices said on Tuesday that they will take up the case, which was brought by mostly Muslim immigrants against former top George W. Bush appointees. Defendants include former Attorney General John Ashcroft and former FBI Director Robert Mueller III.
A federal appeals court in New York had stripped Ashcroft and Mueller of their “qualified immunity” last year.
Hundreds of plaintiffs allege that they were swept up in an immigration dragnet in Brooklyn just after the 2001 attacks. They accuse the government of overseeing beatings, administering strip searches and placing them in solitary confinement for long stretches—something the Justice Dpartment Inspector General confirmed in 2003.
As then-Inspector General Glenn Fine testified before Congress that year, “detainees were placed in restraints whenever they were moved, including handcuffs, leg irons, and heavy chains.”
“[T]he evidence indicates a pattern of physical and verbal abuse by some correctional officers at the MDC against some September 11 detainees,” Fine noted. “This generally consisted of slamming some detainees into walls; dragging them by their arms; stepping on the chain between their ankle cuffs; twisting their arms, hands, wrists, and fingers; and making slurs and threats such as ‘you will feel pain’ and ‘you’re going to die here.’”
Most of the detainees were Muslim and they brought in on “minor visa violations,” The New York Times remarked on Tuesday. They have since been deported.
The already short-handed Supreme Court will hear the case with two recusals. Justices Elena Kagan and Sotomayor will be sitting out deliberations, as The Huffington Post noted.
Though both women are liberal and Sotomayor has recently sided with civil libertarians–in a strong dissent against a decision that carved a loophole in the Fourth Amendment–it is probable the recusals will wash each other out. Kagan has likely withdrawn because she used to serve as Solicitor General for the Obama administration, as The Wall Street Journal noted.
Current Solicitor General Donald Verrilli filed a briefing in the case, urging the Supreme Court to conclude that defendants be absolved of wrongdoing. Verilli wrote that Mueller and Ashcroft should not be held responsible “in their individual capacities” for how policies were being enforced “by lower-level officials during an unprecedented national security crisis.”
In 2011, the Supreme Court heard a similar case on the constitutionality of detention and qualified immunity that had been brought against Ashcroft. It ruled in favor of the former Attorney General. Kagan had also recused herself from that case.
Authoritarian law enforcement and profiling have become an issue in the 2016 presidential election. Businessman Donald Trump rose to claim the Republican nomination, after calling undocumented Mexican immigrants “rapists” and promising last year to ban all Muslims from entering the US.
Democratic Nominee Hillary Clinton has hit out at Trump for these types of remarks. But in an effort to win over more moderate Republicans, she has praised George W. Bush as a model of tolerance–despite the former President’s record, at-home and abroad.
“The week after 9/11, George W. Bush went to a mosque and declared for everyone to hear that Muslims ‘love America just as much as I do.’” Clinton tweeted in August.
