Post-9/11 lawsuit rejected

Court: Prisoners can't sue top U.S. officials for abuse

By David G. Savage | Tribune Newspapers
May 19, 2009

WASHINGTON - -- The Supreme Court served notice Monday it will set a high bar for anyone who seeks to hold top officials of the government liable for abuse suffered by prisoners held by the Bush administration as part of its war on terrorism.

Justice Anthony Kennedy spoke for the majority in a 5-4 ruling in throwing out a lawsuit against former Atty. Gen. John Ashcroft and FBI Director Robert Mueller for allegedly ordering the roundup of hundreds of Muslim men in the wake of the terrorist attacks of Sept. 11, 2001.

"It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the (9/11) attacks would produce a disparate, incidental impact on Arab Muslims," Kennedy said. "The Sept. 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al-Qaida, an Islamic fundamentalist group."

The ruling will serve as a procedural barrier for similar lawsuits against former officials by prisoners held as "enemy combatants." The suit dismissed Monday alleged the men were roughed up, strip-searched, shackled, screamed at by guards and locked in a maximum-security facility for months.

None of the 762 men arrested were later charged as terrorists, although many pleaded guilty to Immigration offenses.

In Monday's decision, the high court shielded Ashcroft and Mueller from being sued because the abused men could not show that these top officials personally ordered them to be mistreated.

Peter Margulies, a law professor at Roger Williams Law School in Rhode Island, said the former prisoners "will face an insoluble dilemma. They will need information to meet the heightened pleading requirement, but they won't be able to get it without discovery, which today's ruling will preclude."

Several prisoners who were formerly held at Guantanamo Bay, Cuba, have sued top Pentagon officials, alleging they were subjected to abuse akin to torture. Former Defense Secretary Donald Rumsfeld and his deputies face a suit from Jose Padilla, a one-time Chicago gang member who was arrested and harshly questioned in a military brig in South Carolina. He was later convicted of aiding terrorists, but he has sued on grounds he was subjected to abuse.



The Washington Legal Foundation, however, applauded the court's decision. It is "particularly welcome because it ensures the ability of senior national security officials to perform their duties without the distraction" of answering to lawsuits, said Richard Samp, a lawyer for the group.