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Supreme Court: Detainees Can't Sue Government for Jailing After 9/11

By William Vogeler, Esq. | Last updated on

The U.S. Supreme Court said illegal aliens who were jailed after the Sept. 11 attacks cannot sue top government officials, but they may proceed against the jailer.

In Ziglar v. Abassi, the court acknowledged that the six named plaintiffs -- including five Muslims -- suffered for months in a Brooklyn jail before they were deported. The court said what happened to them was "tragic," but the principal defendants were not liable for damages.

"There is ... a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the nation in times of great peril," Justice Anthony Kennedy wrote for the court. "The proper balance is one for the Congress, not the Judiciary, to undertake."

Limiting the Bivens Claim

In a rare vote -- 4-2 with Justices Sonia Sotomayor and Elena Kagan abstaining because they participated in underlying proceedings and with Justice Neil Gorsuch not yet confirmed at the time -- the majority said the appellate court should have considered other factors. The case was based on unreasonable search and seizure claims under the 1971 decision in Bivens v. Six Unknown Federal Narcot­ics Agents.

"Before allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis," Kennedy wrote. "It should have analyzed whether there were alternative remedies available or other 'sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy' in a suit like this one."

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said the majority had gone too far in limiting the Bivens claim in times of war.

"If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house," Breyer wrote.

Unreasonable History

The dissent said the executive and legislative branches have often disregarded constitutional rights in the name of national security. They cited official decisions that have violated basic rights over the past two centuries.

"President Franklin Roosevelt's attorney general, perhaps exaggerating, once said that 'the Constitution has not greatly bothered any wartime president,'" Breyer wrote.

The decision ended the long-running lawsuit against former Attorney General John Ashcroft, former FBI Director Robert Mueller and other top Bush administration officials. However, the court remanded the case for further consideration against Warden Dennis Hasty.

The plaintiffs claim the jailer violated their Fifth Amendment rights by allowing prison guards to abuse them.

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