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Supreme Court: 9/11 Detainees Can't Sue Federal Officials

In the wake of the terrorist attacks on September 11, 2001, federal law enforcement officials ordered hundreds of mostly Muslim, Arab, or South Asian illegal aliens to be taken into custody and detained. These detentions happened before officials demonstrated any particularized suspicion or knowledge that the detainees had any connection to terrorism, and many were held for months under "harsh conditions" that included repeated and random strip searches, 24-hour-lighted cells, and physical and psychological abuse.

Six of those detained filed a lawsuit against a group of federal officials including former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar. But the Supreme Court dismissed those claims, ruling that federal officials are immune from such lawsuits.

Unconstitutional Detention

Ahmer Iqbal Abbasi and five other men allege a litany of constitutional violations while they were held in a federal detention facility in Brooklyn, claiming guards "slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion." The former detainees claim they were arrested based on apparent race, religion, or national origin and detained for punitive reasons without due process.

While federal law allows plaintiffs to sue for specific damages if their constitutional rights were violated by state officials, there is no similar remedy available for violations by agents of the federal government. While the Court has made some exceptions to that rule, it refused to do so in this case, in part out of fear that "high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis."

Bye Bye Bivens?

The exceptions noted above were carved out by a 1971 Supreme Court case, Bivens v. Six Unknown Federal Narcotics Agents, which held federal law enforcement officers could be sued personally for violation of a person's constitutional rights. The plaintiffs in this case tried to use Bivens as precedent for their suit, but the Court declined to apply Bivens to "new" cases:

If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases.

So unless a new Bivens lawsuit looks exactly like an old, successful one, it's hard to see how future plaintiffs could ever recover.

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