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Supreme Court bails out Bush officials over 9/11 detentions

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WASHINGTON — Bush administration officials should not be held personally liable for the detention and harsh treatment of illegal immigrants in the calamitous days after the 9/11 terrorist attacks, the Supreme Court ruled Monday.

In a case heard by only six justices, the court’s conservative majority reasoned that the climate of fear pervading the nation in the fall of 2001 called for extreme measures by law enforcement officials, even at the temporary expense of human rights.

The case was brought by six Muslim non-citizens who were among hundreds jailed and subjected to harsh treatment, largely because they fit the racial and religious profile of the 9/11 attackers. All eventually were released and deported, based on their immigration status.

It was a victory for top officials in the Bush administration, including former attorney general John Ashcroft and FBI director Robert Mueller, who could have been on the hook for personal liability if the justices ruled against them.

“What happened to respondents in the days following September 11 was tragic,” Justice Anthony Kennedy wrote for the court in a 4-2 decision, with two justices recused and the newest justice, Neil Gorsuch, not voting. “The question before the court, however, is not whether petitioners’ alleged conduct was proper,” but “whether to allow an action for money damages in the absence of congressional authorization.”

The case was unusual in several respects. It was the last case argued at the court in January by President Barack Obama’s Justice Department, who were defending the actions of their Republican predecessors. With the late Justice Antonin Scalia’s seat still vacant at the time, recusals by Justices Sonia Sotomayor and Elena Kagan — presumably because of past involvement with the case — left the court with only six voting members.

Justice Stephen Breyer wrote a lengthy dissent, joined by Justice Ruth Bader Ginsburg. “History tells us of far too many instances where the executive or legislative branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights,” Breyer said.

Arguing for the Muslim men was Rachel Meeropol, the granddaughter of Julius and Ethel Rosenberg, who were convicted as Soviet spies and executed in 1953 during the height of McCarthyism. She contended that the men were rounded up, held in restrictive conditions and “treated as suspected terrorists” because of their appearance and immigration status.

Obama’s acting solicitor general, Ian Gershengorn, countered that following the attacks on the World Trade Center and Pentagon, “you couldn’t tell … who did and who did not have a potential link to terrorism.”

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