“The Supreme Court appropriately deferred to Congress’s decision not to authorize lawsuits against senior officials by aliens detained during the 9/11 investigation.  Lawsuits seeking to hold officials personally liable for their official conduct are highly disruptive and likely to impair their ability to perform their duties.”
—Richard Samp, WLF Chief Counsel

WASHINGTON, DC—The Supreme Court today ruled that senior federal officials—including former Attorney General John Ashcroft and former FBI Director Robert Mueller—are not subject to damages claims based on the manner in which they conducted their investigation into the 9/11 terrorist attacks.  The decision was a victory for WLF and its clients, five former Attorneys General (William Barr, Alberto Gonzales, Edwin Meese, Michael Mukasey, and Dick Thornburgh) and two former FBI Directors (William Sessions and William Webster).  The Court agreed with arguments in WLF’s briefs (one on the merits and an earlier brief urging the Supreme Court to hear the case) that, in most instances, it should be up to Congress to decide whether to authorize suits alleging violations of the Constitution.  Congress has not done so in this instance, and, the Court ruled, the courts should not “imply” the existence of a cause of action in national- security cases of this sort.

Several Arab/Muslim aliens filed the lawsuit following their 2001 arrests for being in the U.S. illegally.  After law enforcement officials designated them as “of interest” or “of high interest” in the 9/11 investigation, they were held under highly restrictive conditions for several months until they were cleared.  The plaintiffs contend that the harsh conditions of confinement violated their constitutional rights because:  (1) the defendants (including Ashcroft and Mueller) knew all along that the plaintiffs lacked any connection to terrorism; and (2) they were subjected to harsh conditions (rather than being placed in the general prison population) because the defendants intended to discriminate against them on the basis of their religion and ethnic background.  The appeals court held that the complaint stated valid claims and that the defendants should be required to respond and to be subjected pre-trial discovery proceedings.

The Supreme Court reversed.  Although the Court in its 1971 Bivens decision held that, in some limited instances, courts may permit individuals to assert constitutional claims even in the absence of congressional authorization, it held today that Bivens is a very limited doctrine and should not apply here.  Among the reasons for not applying Bivens:  national-security matters are largely the province of Congress and the President; and if Congress had intended to permit damages claims against senior officials, it likely would have said so explicitly.  The Court also ruled that senior officials are entitled to qualified immunity from claims of this sort.

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