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.