The case of Ziglar v. Abbasi began the week following the Sept. 11 attacks, when the FBI received more than 96,000 terrorism-related tips from the public—some based in fact, many based on nothing more than fear of Arabs and Muslims. A group of high-ranking Department of Justice officials, including Attorney General John Ashcroft, then–FBI Director (now Special Counsel) Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, developed and implemented a policy by which undocumented Arab and Muslim men encountered while investigating these tips would be arrested and held in custody under highly restrictive conditions until they could be cleared of suspicion; once they were cleared, they were then deported. Many of the men were detained in a high-security unit at the Metropolitan Detention Center in Brooklyn, where they were held for months and subject to brutal conditions, even after federal law enforcement officials knew of their innocence. The DOJ’s Office of the Inspector General conducted an extensive and detailed investigation into the conditions at the detention center, finding they included “inadequate access to counsel,” “sporadic and mistaken information to detainees’ families and attorneys about where they were being detained,” “lockdown for at least 23 hours a day,” and “detainees placed in heavy restraints whenever they were moved outside their cells,” in addition to a catalog of physical and verbal abuses.
…The modern doctrine of qualified immunity prevents government officials from being subject to personal liability for damages unless the official can be shown to have violated “clearly established law”—that is, some closely analogous precedent that would’ve put an officer on notice that his conduct was illegal. The qualified immunity defense is available to officials in all federal civil rights cases, and courts have required plaintiffs to show “clearly established law” with increasing (and sometimes absurd) degrees of specificity in recent years. Qualified immunity has become an impossibly difficult hurdle for plaintiffs to clear and has drawn widespread criticism, including from Kennedy and Thomas. But this week’s concurrence from Thomas is the most direct call for change to date.
…Thomas cites a forthcoming paper by University of Chicago law professor Will Baude, which argues that qualified immunity has expanded well beyond its historical scope to protect modern officers from liability for claims to which no immunity would have been applicable in the past.