The Supreme Court, taking on for a second time a dispute over actions by top government officials in the wake of the 9/11 terrorist attacks, agreed on Tuesday afternoon to decide whether those officials may be sued for allegedly violating the rights of foreign nationals rounded up and jailed during a sweeping terrorism investigation.
Former Attorney General John D. Ashcroft and former FBI Director Robert Mueller, along with a former immigration commissioner and two Brooklyn, N.Y., federal detention center wardens, are asking the Court to block the lawsuit that a federal appeals court has cleared to move ahead.
The six individuals pursuing the claim of mistreatment in the federal jail in Brooklyn in the months after the 2001 terrorist attack have based their case on a 1971 Supreme Court decision that — in rare instances — allows an individual to sue a federal official personally for allegedly violating constitutional rights.
That 1971 decision — Bivens v. Six Unknown Narcotics Agents — is also at issue in another new case that the Justices agreed on Tuesday to hear. That case was filed in U.S. courts by the parents of a 15-year-old Mexican boy who was shot dead by a U.S. Border Patrol agent, who fired across the border in the incident. The parents have been attempting to sue that agent for violating their son’s rights.
In their appeal to the Supreme Court, the parents are seeking a ruling that the U.S. Constitution reaches outside of the United States, to protect foreigners against the actions of U.S. officials — a plea rejected by lower courts. In agreeing to hear their case, however, the Court added a question of its own for review: whether the parents had any right to sue when they relied on the Bivens decision.
Ordinarily, most constitutional claims against federal officials are aimed at them in their official capacity — that is, as holder of a public office at the time they allegedly violated someone’s rights while carrying out their duties. in the Bivens ruling 45 years ago, however, the Court ruled that such lawsuits sometimes can be filed against officials in their personal capacity — that is, in an attempt to hold them personally responsible, and compel them to pay money damages, for their actions.
In the nearly half-century since, however, the Court has added only a few new kinds of claims to the list of those that may be pursued directly against federal officials. The Court has said repeatedly in those intervening years that lower courts should hesitate long before they add to the types of Bivens claims that will be allowed.
In the three 9/11 cases that the Court accepted for review Tuesday, the U.S. Court of Appeals for the Second Circuit ruled that it was allowing the six individuals’ lawsuit to go ahead, but it insisted it was not creating a new type of Bivens claim. The constitutional violations claimed in the case, the divided appeals court said, were well within traditional claims of discrimination and violation of due process rights.
After the 9/11 attacks, the federal government staged a wide-ranging investigation of the attacks, seeking to find out if there were threats of other attacks by other individuals. Ultimately, investigators rounded up 762 individuals — foreign nationals who were living in the U.S. The arrests were based on government claims that they had violated U.S. immigration laws. Most of those individuals turned out to be of Arabic descent or were Muslims. More than 80 of them were held in harsh conditions at a federal jail in Brooklyn where, they have since claimed, they were severely abused.
Ultimately, most of them were deported, without being prosecuted for any terrorist crimes. After being sent home, a number of them have sought to sue government officials that they claimed were responsible for their mistreatment while in the Brooklyn detention center.
The Supreme Court cast doubt on the constitutional claims raised by those individuals seven years ago, when it took its first look at this controversy — involving, in that instance, a single individual from Pakistan. By a 5-4 vote, the Court concluded that the foreign national lacked specific facts to back up his claims of constitutional violations. That was the ruling in Ashcroft v. Iqbal — involving the former attorney general as well as some of the other officials involved in the new case now on the Court’s docket.
Because the Court has been so rigorous in turning aside pleas for what it deemed to be new variations of the Bivens remedy, the chances may be slim that the foreign nationals involved in the 9/11 case and the Mexican parents will ultimately be able to get their constitutional claims decided.
Those chances probably are even less promising in the 9/11 case because two of the Court’s more liberal members, Justices Elena Kagan and Sonia Sotomayor, have taken themselves out of any role in deciding that case. Both may have had something to do with this particular controversy in their former roles — Kagan as U.S. Solicitor General, and Sotomayor as a Second Circuit Court judge. Both, however, will take part in review of the Mexican parents’ case.
As of now, with one vacancy on the Court, it appears that the 9/11 case may be decided by only six Justices — the minimum number specified by law to make a quorum for a decision. The Court may have taken on the case, however, in the hope that, by the time it comes up for a hearing, a ninth Justice may be in place on the bench.
Four of the Justices in the five-Justice majority in the Iqbal case in 2009 remain on the Court, as do two of the four dissenters.
The 9/11 cases are titled Ashcroft v. Turkmen, Ziglar v. Turkmen and Hasty v. Turkmen.
Besides taking on the two new Bivens-related cases, the Court on Tuesday agreed to sort out the relationship, or conflict, between the federal law that requires fair practices in collecting debts and federal bankruptcy law. The Court granted review of the case of Midland Funding v. Johnson. The issue is whether an individual who files for bankruptcy because of heavy consumer debt has a right to sue under the debt collection law when a financial firm moves into that individual’s bankruptcy case and seeks to collect a former debt that has since expired and thus would not otherwise be subject to collection.
Both sides in the Midland Funding case agreed that the Court should settle a dispute among lower courts on the legal issue.
The Court had issued a series of orders before it took the bench on Tuesday morning, but none of those involved a grant of review in any new case. Why the Court waited until afternoon to issue the orders granting new cases has not been explained.