Supreme Court to decide liability of top officials.

By Adam Liptak
New York Times
October 11, 2016


Former FBI Director Robert Mueller, right, is among Bush administration officials who could face new legal battles.

WASHINGTON – The Supreme Court agreed Tuesday to decide whether officials in President George W. Bush’s administration — including John Ashcroft, the former attorney general, and Robert Mueller, the former FBI director — may be held liable for policies adopted after the Sept. 11 attacks.

The case began as a class action in 2002 filed by immigrants, most of them Muslim, over policies that swept hundreds of people into a New York City detention center on immigration violations after the attacks. The plaintiffs said that they had been subjected to beatings, humiliating searches and other abuses.

The roundups drew criticism from the Justice Department inspector general, who in 2003 said that the government had made little effort to distinguish between genuine suspects and immigrants with minor visa violations.

A divided three-judge panel of the Second U.S. Circuit Court of Appeals let the case proceed last year.

“Holding individuals in solitary confinement 23 hours a day with regular strip searches because their perceived faith or race placed them in the group targeted for recruitment by Al-Qaida violated the detainees’ constitutional rights,” two judges said.

In dissent, Judge Reena Raggi said that the majority had erred in allowing a lawsuit against “the nation’s two highest-ranking law enforcement officials” for “policies propounded to safeguard the nation in the immediate aftermath of the infamous Al-Qaida terrorist attacks.”

In its petition seeking Supreme Court review, the Obama administration urged the justices to put an end to the litigation.

“The Court of Appeals concluded,” the petition said, “that the nation’s highest ranking law-enforcement officers — a former attorney general of the United States and former director of the FBI — may be subjected to the demands of litigation and potential liability for compensatory and even punitive damages in their individual capacities because they could conceivably have learned about and condoned the allegedly improper ways in which their undisputedly constitutional policies were being implemented by lower-level officials during an unprecedented national security crisis.”

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