WASHINGTON: The Supreme Court sounds leery of expanding the right to sue high-ranking officials in a case that dates to the aftermath of the Sept 11, 2001, attacks.

Just six justices heard arguments on Wednesday in an appeal by former attorney general John Ashcroft and other former top officials to shut down a lawsuit filed by Muslim men who were detained for months in harsh conditions in a Brooklyn jail after the 2001 attacks on the World Trade Centre and the Pentagon.

The detainees have several claims against Ashcroft, former FBI director Robert Mueller, former immigration chief James Ziglar and the two men who ran the federal jail. Claims against the jail officials seemed to have the best chance of surviving Supreme Court review.

A divided panel of the 2nd US Circuit Court of Appeals in New York had said the men were detained “as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim”.

The appeals court said that the suit could go forward because “the suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy”.

The case stems from a class-action suit originally filed in 2002. It’s the third time the court has intervened in lawsuits against Ashcroft and others from Muslims who were arrested in the US following the 2001 attacks. The justices have twice sided with Ashcroft.

Justice Anthony Kennedy, whose vote the detainees would need to win at the Supreme Court, said the court had carefully limited the circumstances in which top officials could be sued. “I think you’re asking us to go further,” Kennedy told Rachel Meeropol, the lawyer for the men.

The detainees were arrested on immigration violations and they claim that there was never an indication that they had connections to terrorism. “There was no judgment being exercised. No one was determined to be a threat,” Meeropol said.

Allowing Ashcroft and the others to act with impunity, she said, would in essence ratify that “race or religion could play a part in legitimate discrimination”.

Justice Department lawyer Ian Gershengorn said the court should not subject the former heads of the Justice Department and FBI to a lawsuit where they could be personally liable for paying money to the plaintiffs for actions they took following the Sept 11 attacks “to avoid the inadvertent or premature release of a dangerous terrorist”.

Published in Dawn January 19th, 2017