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By Miriam Raftery

June 20, 2017 (Washington D.C.) – The US. Supreme Court has ruled that former Bush administration officials cannot be sued for allegedly violating Constitutional rights protecting against illegal search and seizures.  The case, Ziglar v. Abbasi, was filed by Muslim immigrants who allege that they were profiled based on their religion, arrested and detained in harsh conditions after the September 11th terrorism attacks.  

The high court granted immunity to former Attorney General John Ashcroft, former Immigration and Naturalization Service commissioner James Ziglar and former FBI director Robert Mueller. Mueller is now the special prosecutor appointed to investigate Russian hacking of U.S. elections and Trump administration ties to Russia.

The Supreme Court did, however, remand a case against the prison’s warden back to a lower court to determine if he may be held accountable for allegedly allowing guards to physically abuse the prisoners detained after the 911 attacks.

Rachel Meeropol, senior staff attorney for the Center for Constitutional Rights, stated after the decision, “We are very disappointed with the Court’s dismissal of our clients’ claims.  The court’s decision allows for high level officials to violate the Constitution without fear of personal accountability –a dangerous message in this time of rampant state-sponsored discrimination against Muslim and immigrant communities.”

But the Court’s decision, authored by Justice Anthony Kennedy, held that in times of national crisis, there is a “balance to be struck” between “deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the nation in times of great peril.” Kennedy concluded, “The proper balance is one for Congress, not the judiciary, to undertake.”

According to the lawsuit, over 700 individuals were rounded up on immigration charges as persons of interest and held without bail, in some cases for months. According to the Center for Constitutional Rights, those detained were arrested based on citizen tips reporting such activities as Arabs working long hours or Middle Eastern men renting post office boxes.

A press release from the organization states, “Despite the clearly discriminatory nature of such tips and though the Bush officials knew there was no reason beyond the men’s race, religion, and ethnicity to suspect them of ties to terrorism, Mueller ordered that each be thoroughly investigated and Ashcroft ordered that everyone who fit the profile be held as a suspected terrorist until cleared by the FBI.”

Many of the men were held in solitary confinement, beaten, deprived of sleep, and denied the ability to practice their religion, the suit states.  At times, they were subjected to violence such as having their faces smashed into a t-shirt pinned to a wall with a picture of the American flag. The blood-stained flag reportedly hung on the prison wall for months.

All of the men were eventually cleared of any ties to terrorism, but they were deported anyway for immigration violations such as overstaying visas.

Benamar Benatta, one of those detainees, now lives in Canada but returned to watch the case argued before the Supreme Court. He called his experience, “the worst thing that can happen to a human being” and said of the verdict, “It is only by holding high-level officials to account when their policies are ineffective or discriminatory that a country can properly heal,” adding that he is “very disappointed” in the verdict.

The landmark case was heard by only six of the nine Supreme Court justices was decided by a slim 4-2 vote margin.  Justice Sonia Sotomayor had served as judge on an appeals court ruling that reinstated the lawsuits against the federal officials and Justice Elena Kagan had worked on the case while serving as U.S. solicitor general.  Neil Gorsuch, the newest justice appointed by President Donald Trump, also did not participate in the decision since he was not on the high court when the arguments were presented.

Justices Stephen Breyer and Ruth Bader-Ginsburg wrote a blistering dissent, which Breyer read from the bench. He compared the majority’s decision to other times when the courts turned a blind eye to discriminatory actions such as the internment of Japanese-Americans during World War II.  “In wartime as well as in peacetime,” the dissent concludes, “it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy for the most flagrant and patently unjustified, unconstitutional abuses of official power.”

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