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Why US Supreme Court will consider lawsuits from post-9/11 Arab detainees

The post-9/11 claims stem from a 2002 class-action lawsuit filed on behalf of hundreds detained on immigration violations.

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    Then a US senator from Missouri, John Ashcroft, left, answers questions after President-elect George W. Bush, right, nominated him to serve as US Attorney General, on Dec. 22, 2000. Mr. Ashcroft is named in lawsuits filed by immigrants detained following the terrorist attacks on Sept. 11, 2001. Those lawsuits are headed to the US Supreme Court.
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The US Supreme Court agreed Tuesday to hear an appeal from former federal officials who argue they cannot be sued or held personally liable for the government's mistreatment of Arab men detained and interrogated following the terrorist attacks of Sept. 11, 2001.

The eight plaintiffs, most of them Muslim, accuse former Attorney General John Ashcroft, former FBI director Robert Mueller, and others who served under Republican President George W. Bush, of detaining them for three to eight months each, beating, searching, and humiliating them.

The claims stem from a 2002 class-action lawsuit filed on behalf of hundreds detained on immigration violations at the Metropolitan Detention Center in Brooklyn, N.Y., and the Passaic County Jail in Paterson, N.J., according to court documents.

The Obama administration asked the high court to review the case after an appeals court ruled last year that the lawsuit could proceed.

"This case raises a difficult and delicate set of legal issues concerning individuals who were caught up in the post-9/11 investigation even though they were unquestionably never involved in terrorist activity," Second Circuit Court judge Rosemary Pooler and senior judge Richard Wesley wrote for the three-member panel's majority ruling that green-lighted the lawsuit.

Judge Reena Raggi, who wrote the dissent, said it would be a mistake to allow the lawsuit to proceed, even if the federal law enforcement officials were wrong to detain and interrogate the plaintiffs, as The New York Times reported.

"It is difficult to imagine," she wrote, "a public good more demanding of decisiveness or more tolerant of reasonable, even if mistaken, judgments than the protection of this nation and its people from further terrorist attacks."

Unsatisfied with the three-judge panel's ruling, the government asked the Second Circuit to rehear the case, but the 12 justices divided 6-6, letting the appellate court's ruling stand. So the government petitioned the Supreme Court and secured it over the objections of the plaintiffs' lawyers.

Rachel Meeropol, an attorney with the Center for Constitutional Rights, which represents the plaintiffs, said in a statement that the government's argument "defies the most fundamental principle of our legal system."

The case is especially troubling given the current political climate, Ms. Meeropol added.

"At a time when racial and religious profiling are put forward as serious policy proposals for dealing with everything from immigration to terrorism, it is more important than ever that the high court affirm that government officials, especially those at the highest levels, can be held accountable when they break the law," she said.

This case marks the third time the high court has intervened in lawsuits against Mr. Ashcroft and others from Muslims arrested in the United States following the 9/11 attacks. The justices have sided with Ashcroft twice.

As few as six justices – the minimum allowed by federal law – will preside over this case. Congress has yet to fill the seat vacated in February by Antonin Scalia's death, and two justices indicated they will not participate, as Politico reported. Sonia Sotomayor was on a Second Circuit panel involved in an earlier version of the case, and Elena Kagan was solicitor general under the Obama administration while it defended the case.

Politico's Josh Gerstein noted that the court's decision could be impacted by its composition for this case:

Dropping down to six justices could make it easier for conservatives to prevail, since four of the justices still on the case are Republican appointees, but it probably doesn't give them more advantage than they would have on a seven-member court. Only four justices are needed to grant review, or certiorari, in a case.

"It may be the conservatives voted for cert because they may actually have a chance to win," said Emory law professor Jonathan Nash.

Nash said that because the Sotomayor and Kagan recusals appear to have to do with their involvement with the case in earlier jobs, they're the kind that are less likely as time goes on, even if Scalia's chair remains vacant.

Additionally, cases decided by fewer than nine justices are sometimes given less weight, Mr. Gerstein added.

Arguments will likely take place in January, perhaps in time for Congress to confirm a new justice.

Material from the Associated Press was included in this report.

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