WASHINGTON (CN) – In the last day of U.S. Supreme Court arguments under the Obama administration, Muslim, South Asian and Arab men rounded up in New York after 9/11 asserted Wednesday that unconstitutional national-security policy is a matter for judicial oversight.
The class action, led by undocumented immigrant Ahmer Iqbal Abbasi, has been underway since 2002, a year before the Immigration and Naturalization Service was rebranded as the U.S. Citizenship and Immigration Service.
One of hundreds rounded up by INS after 9/11, Abbasi says he was subjected to harsh conditions for months at the Metropolitan Detention Center in Brooklyn. In addition to being denied food, sleep and access to basic hygiene items, the detainees say they were subjected to high-security measures like isolation and regular strip searches, compounded by physical and verbal abuse.
The class contends that federal officials relied almost exclusively on citizen tips to make arrests. They knew, according to the complaint, that Abbasi and the other detainees had no connection to the 9/11 hijackings, but subjected them to extreme punishment in custody based on their race, religion, immigration status and ethnicity.
U.S. officials petitioned the Supreme Court for relief last year after the Second Circuit found that they must face the immigrants’ constitutional and conspiracy claims.
Rachel Meeropol, an attorney for the class with the Center for Constitutional Rights, told the justices Wednesday that no government official should be above the law when carrying out discriminatory national security policies.
“This court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion and in deterring future federal officials from creating government policy to do the same,” Meeropol said.
Justice Anthony Kennedy and Chief Justice John Roberts appeared wary, however, about the prospect of the high court wading into judgments of national-security policy, matters that traditionally fall within the congressional realm.
Kennedy’s weariness in particular could forecast a win for the government, as his more liberal colleagues, Justices Elena Kagan and Sonia Sotomayor, recused themselves from the case based on prior involvement. Sotomayor was a Second Circuit judge from 1998 to 2009, and Kagan did work on the case during her stint as U.S. solicitor general.
Roberts spoke about the context in which the government was operating at the time: national-security concerns were high at a time when the country had suffered the worst terrorist attacks on American soil.
Meeropol highlighted the mistreatment her clients faced in custody, saying the general prison population is not subjected to such abuse.
“Many of the detainees had their faces smashed into a T-shirt pinned to a wall with a picture of the American flag and the words ‘these colors don’t run’ and were told ‘welcome to America,'” according to a press release from the Center for Constitutional Rights.
The government meanwhile claims that the men were held only as long as it took officials to figure out what to do in the aftermath of a national-security emergency.
Acting Solicitor General Ian Gershengorn told the justices, however, that there was a simple explanation for why then-Attorney General John Ashcroft had merged a detainee list with an INS immigration list.
“Given the uncertainty about the status of detainees on the New York list, the list merger was undertaken to avoid the inadvertent or premature release of a dangerous terrorist,” Gershengorn said.
Gershengorn defended the so-called “hold until clear” policy as lawful, saying officials truly could not tell at the time who did and did not have ties to terrorism.
Trying to hold them accountable now “attempts to impose a 20-20 hindsight requirement,” he said.
Justice Stephen Breyer expressed understanding about the context of 9/11, but discomfort with picking people up and holding them beyond a day or two.
Gershengorn acknowledged to Breyer that a report by the Office of the Inspector General found fault with how long it took to clear the men. He insisted, however, that the policy was constitutional and could not be attributed directly to Ashcroft or to Robert Mueller and James Ziglar, the former heads of the FBI and INS, respectively.
Speaking about the case in an interview after the hearing, Meeropol said the justices should weigh in on the matter to help deter future abuses.
“We’re about to enter a new period of uncertainty,” Meeropol said. “And I think right now is when it’s so important for the court to grapple with how they will play their role to ensure that federal officials who are supposed to guard the law and the Constitution aren’t the ones who are violating it.”
But Gershengorn sharply disagreed during the hearing, saying the court should not be allowed to second-guess the FBI and the Department of Justice.
“It can’t really be the case that the right way to get effective compensation is to put the attorney general, the director of the FBI, and the commissioner of the INS personally on the hook for the whole class,” he said.
Chief Justice John Roberts echoed the solicitor general’s concern, highlighting in particular that the class seeks monetary damages. That could restrain policymakers acting under extraordinary or emergency circumstances, who might worry about their policies being found unconstitutional after the fact.
Meeropol tried to assure the high court that the case would not require the justices to wade into sensitive judgments of national security. She also noted that qualified immunity already provides federal officials engaged in good-faith efforts to protect national security with a powerful layer of protection.
“I don’t believe that it would be a threat to the republic to provide the attorney general with incentives to not create policy that violates clearly-established law,” Meeropol said.
Breyer piped in to echo the concerns of Roberts, but noted that the court does have a role in restraining the executive branch.
“There’s no blank check, even for the president,” he said. “And if there’s no blank check that means sometimes they can go too far. And if they have gone too far, it is our job to say that.”
Meeropol noted after the hearing that when race and religion are informing national-security decisions, rather than real suspicion and danger, “this is exactly the role that the court must play.”
“It is the court’s role to subject those types of decisions to the strictest scrutiny to ensure that as a nation we are not making law enforcement decisions based on how people look or what their faith is,” she continued.
“We’re at a time when rounding up Muslims, when torturing people are being discussed as legitimate policy positions.”
The Supreme Court will close Friday for the inauguration of President-elect Donald Trump.
Meeropol expressed fear that the next administration would willingly make national-security decisions based on race and religion.
“That’s why it’s so important for the court to be considering this issue right now,” Meeropol said.