The “hold-until-cleared policy" - For Non-whites Only. From [HERE] and [HERE] The US Supreme Court [official website] ruled [opinion, PDF] 4-2 Monday in Ziglar v. Abbasi [SCOTUSblog materials] that non-white Muslim men detained in the aftermath of the 9/11 attacks cannot sue top US officials. The three consolidated cases center on the arrest and detention of Middle Eastern men illegally present in the US when they were arrested for immigration violations. The men claimed that former US attorney general John Ashcroft, former FBI director Robert Mueller and a former Immigration and Naturalization Services commissioner confined them despite allegedly knowing they had no ties to terrorism.
In the weeks following the September 11, 2001, the Federal Bureau of Investigation (FBI) received more than 96,000 tips from members of the public. Some tips were based on well-grounded suspicion of terrorist activity, but many others may have been based on fear of Arabs and Muslims. FBI agents “questioned more than 1,000 people with suspected links to the [September 11] attacks in particular or to terrorism in general.”
While investigating the tips—including the less substantiated ones—the FBI encountered many aliens who were present in this country without legal authorization. As a result, more than 700 individuals were arrested and detained on immigration charges. If the FBI designated an alien as not being “of interest” to the investigation, then he or she was processed according to normal procedures. In other words the alien was treated just as if, for example, he or she had been arrested at the border after an illegal entry. If, however, the FBI designated an alien as “of interest” to the investigation, or if it had doubts about the proper designation in a particular case, the alien was detained subject to a “hold-until-cleared policy.” The aliens were held without bail.
Respondents were among some 84 aliens who were subject to the hold-until-cleared policy and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York. They were held in the Administrative Maximum Special Housing Unit (or Unit) of the MDC. The com- plaint includes these allegations: Conditions in the Unit were harsh. Pursuant to official Bureau of Prisons policy, detainees were held in “‘tiny cells for over 23 hours a day.’ ” 789 F. 3d, at 228. Lights in the cells were left on 24 hours. Detainees had little opportunity for exercise or recreation. They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a tooth- brush. When removed from the cells for any reason, they were shackled and escorted by four guards. They were denied access to most forms of communication with the outside world. And they were strip searched often—any time they were moved, as well as at random in their cells.
Some of the harsh conditions in the Unit were not im- posed pursuant to official policy. According to the com- plaint, prison guards engaged in a pattern of “physical and verbal abuse.” Ibid. Guards allegedly slammed detainees into walls; twisted their arms, wrists, and fingers; broke their bones; referred to them as terrorists; threatened them with violence; subjected them to humiliating sexual comments; and insulted their religion.
Respondents are six men of Arab or South Asian de- scent. Five are Muslims. Each was illegally in this coun- try, arrested during the course of the September 11 inves- tigation, and detained in the Administrative Maximum Special Housing Unit for periods ranging from three to eight months. After being released respondents were removed from the United States. [MORE]
In an opinion by Justice Anthony Kennedy, the court noted:
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners' alleged conduct was proper, nor whether it gave decent respect to respondents' dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
However, the court found that plaintiffs could not bring a Bivens [opinion] claim challenging the detention policy. The court remanded the claim against a jailer regarding detainee treatment to the lower court. The court also found that the officials were entitled to qualified immunity against claims under 42 USC § 1985(3) [text].
Justice Stephen Breyer filed a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. Justice Sonia Sotomayor, Elega Kagan and Neil Gorsuch took no part in the case. This is the third case where the court has ruled for Ashcroft [JURIST news archive] in suits against him and other top officials for conduct following the 9/11 attacks.