The Supreme Court has agreed to decide cases accusing federal government officials at the highest levels of mistreating people investigated for possible terrorist connections after 9/11.

All Supreme Court qualified immunity cases, includingZiglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, affect state and local governments. These cases raise issues that frequently come up in run-of-the-mill qualified immunity cases, in particular, whether the court defined the “established law” at a high level of generality instead of considering the specific facts of the case when deciding whether to grant or deny qualified immunity.    

A number of “out-of-status” aliens were arrested and detained on immigration charges shortly after 9/11. They claim they were treated in a “discriminatory and punitive” manner while confined and detained long after it was clear they were never involved in terrorist activities. They have sued a number of high level federal government officials including former Attorney General John Ashcroft, former Director of the Federal Bureau of Investigation Robert Mueller, former Commissioner of the Immigration and Naturalization Service, James Ziglar, and two wardens and an assistant warden at the federal detention center where they were held.  

These cases raise multiple issues. Of most interest to state and local governments are the qualified immunity issues.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.” 

The detainees brought three claims against the government officials:  (1) substantive due process (confinement conditions failed to meet due process); (2) equal protection (detainees were confined to these conditions because of their race, religion, etc.); (3) conspiracy under 42 U.S.C. § 1985(3) (government officials conspired together to violate equal protection rights of the detainees).

The Second Circuit denied qualified immunity to all of the government officials on all three of these claims. The Supreme Court has agreed to review the Second Circuit decisions.

All of the government officials make the same argument regarding § 1985(3). Previously, the Second Circuit had not ruled whether § 1985(3) applied to federal officials. So they argue, how could they have violated “clearly established” law?  

Regarding the first and second claims the government officials make different arguments depending on the role they were accused of playing in the detention. INS Commissioner Zigler and Attorney General John Ashcroft and FBI Director Robert Mueller all argue that the Second Circuit’s qualified immunity inquiry was too general.

Zigler criticizes the Second Circuit for not considering the 9/11 context in the decision to detain the Respondents. “The Court of Appeals should have asked whether, in the context of the specific circumstances relating to the national emergency of 9/11, a reasonable person in Ziglar’s position would clearly have understood that persons illegally in the country, whom the FBI had arrested in connection with its investigation of 9/11, but whom the FBI had not yet linked to any terrorist activity, could not be detained in restrictive conditions until cleared of any possible link to terrorism by the FBI.”

Similarly, Ashcroft and Mueller criticize the Second Circuit for viewing as Respondents as “ordinary civil detainees” or “pretrial detainee[s]” instead of as persons “legally arrested and detained in conjunction with the September 11 investigation.”

Finally, the wardens and associate warden claim that no clearly established law gave them authority to “unilaterally overrule the FBI’s terrorism designations and place respondents in less restrictive condition.”