Turkmen v. Ashcroft: Suing Bush Officials and the 2017 Reversal

Turkmen v. Ashcroft: The 2015 Ruling on Suing Bush Officials, and After

Turkmen v. Ashcroft was a lawsuit brought by Muslim, Arab and South Asian immigrants who were detained after the 11 September 2001 attacks. In June 2015 the US Court of Appeals for the Second Circuit ruled that their damages claims against senior Bush administration officials, including former Attorney General John Ashcroft and former FBI Director Robert Mueller, could go forward. That ruling made headlines as proof that top officials could be sued for war-on-terror policies. It did not last: in June 2017 the Supreme Court, hearing the case as Ziglar v. Abbasi, reversed most of it and closed that door for the senior officials.

Here is what the case was about, what each court decided, and why it still matters for anyone asking whether US officials can be held personally liable for national-security decisions.

Who the plaintiffs were and what they alleged

In the weeks after 9/11, federal authorities arrested 762 non-citizens on immigration violations while the FBI checked for links to terrorism. About 60 percent were picked up in the New York area, and 84 were held at the Metropolitan Detention Center (MDC) in Brooklyn, many in a restrictive unit known as the Administrative Maximum Special Housing Unit.

The plaintiffs said they were kept there for months after their immigration cases were finished, only because of their religion, ethnicity or nationality, even though none was ever charged with terrorism. They alleged harsh conditions: lights left on around the clock, near-total isolation, little or no contact with lawyers and family, obstacles to practising their faith, strip searches, slurs and physical abuse by guards. Some reports added allegations of deliberate religious humiliation.

These were allegations. The case was decided on the pleadings, which means courts assumed the facts were true for the purpose of deciding whether the lawsuit could proceed; no trial ever tested them. A 2003 report by the Justice Department's own Inspector General did, however, criticise how the detainees were treated at the MDC.

The suit was filed in April 2002 in federal court in Brooklyn, with the Center for Constitutional Rights representing the men. In 2009 six MDC plaintiffs settled their claims against the United States for a reported $1.26 million, while the claims against individual officials continued.

The 2015 Second Circuit decision

On 17 June 2015, a three-judge panel split two to one. Judges Rosemary Pooler and Richard Wesley held that the detainees had plausibly alleged that high-level officials knew about and approved the policy of holding them in punitive conditions because of their race, religion or national origin. The majority wrote that they could not conclude at that stage that concern for the safety of the nation "justified the violation of the constitutional rights on which this nation was built."

Judge Reena Raggi dissented at length. In her view the officials were entitled to qualified immunity, and the question of damages belonged elsewhere. She wrote that "Congress, not the judiciary, is the appropriate branch to decide whether the detained aliens should be allowed to sue executive policymakers."

The government asked the full appeals court to rehear the case. On 11 December 2015 that request was denied by an equally divided court, with six judges dissenting from the denial. That is the "rejected appeal" reported in many articles at the end of 2015, and it cleared the way for the Supreme Court.

Why the case drew so much attention

Lawsuits against individual federal officials for constitutional violations rest on a 1971 Supreme Court case, Bivens v. Six Unknown Named Agents, which allowed a man to sue narcotics agents for an illegal search. Extending that remedy to cabinet-level officials over national-security policy would have been a major step.

Supporters of the detainees saw the 2015 ruling as a rare moment of accountability. The broadcaster and author Thom Hartmann, for example, wrote a widely shared column calling the decision a step in the right direction and a chance for a kind of national redemption. Critics, including Judge Raggi and the dissenting appeals judges, warned that letting officials be sued personally could make them hesitate in emergencies and that such policy questions belong to Congress.

Some coverage at the time went further, claiming the ruling set a precedent for suing any member of the government. That was never accurate: the decision applied only to this case and this circuit, and it was still open to review.

What the Supreme Court decided in Ziglar v. Abbasi

The Supreme Court heard argument on 18 January 2017 and ruled on 19 June 2017. Only six justices took part: Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch had joined the Court after argument. The vote was four to two.

Writing for the majority, Justice Anthony Kennedy held that the Bivens damages remedy should not be extended to claims challenging the detention policy adopted by senior officials after 9/11. National-security decisions made by high-level officials in response to a terrorist attack, the Court said, were a "special factor" counselling hesitation, and other kinds of relief, such as injunctions or habeas corpus, existed. All defendants also received qualified immunity on a civil conspiracy claim.

The Court did not dismiss everything. A claim against the MDC warden, Dennis Hasty, over prisoner abuse was sent back to the lower courts for further analysis. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, dissented and read his dissent from the bench, arguing that the remedy should be available for serious constitutional harms even in times of crisis.

Why the case still matters

Ziglar v. Abbasi has become one of the most cited cases in this area of law. Since 2017, lower courts have used it to refuse new Bivens claims in many settings, and the Supreme Court narrowed the remedy further in later cases. In practice, it is now very hard to win money damages from a federal official personally for a constitutional violation unless the case closely matches the few situations the Court has already approved.

That leaves the question the 2015 judges and the dissenters argued about squarely with Congress, which could create a statutory right to sue federal officers, as it has for state and local officials. So far it has not done so.

For the detainees, the outcome was a partial settlement years earlier and no trial against the policymakers. For readers, the lesson is to treat any headline about a lower-court ruling with care: appeals can and often do change the result.

Videos: coverage from the time

The two clips below were published when the 2015 ruling was in the news. They reflect commentary from that moment, before the Supreme Court reversed the decision.