By Lisa Soronen

Several former officials in the George W. Bush administration were granted qualified immunity for their actions after the 9/11 terrorist attacks.

In Ziglar v. Abbasi, theU.S.  Supreme Court in a 4-2 decision granted the qualified immunity related to a claim they conspired to violate the equal protection rights of a number of undocumented immigrants held on suspicion of a connection to terrorism in the wake of the attacks. 

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

This case doesn’t involve any state or local government officials. But every qualified immunity case matters.

Six men of Arab or South Asian descent, five who are Muslims, brought a variety of legal claims against former Attorney General John Ashcroft, former FBI Director Robert Mueller, former Immigration and Naturalization Service Commissioner James Ziglar, and two federal prison wardens.

According to the court, the “gravamen of their claims was that the government had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in . . . harsh conditions.”

None of their claims has any relevance to state and local government except their claim that the federal officials violated federal statute 42 U.S.C. 1985(3) by engaging in a conspiracy to violate the detainees’ equal protection rights.

According to the majority of the justices deciding this case, in an opinion written by Justice Anthony Kennedy, two factors weighed in favor of qualified immunity.

First, the alleged conspiracy was between officials in the same branch and department of the government. In antitrust law, per the intracorporate-conspiracy doctrine, no conspiracy can exist between agents from the same legal entity. While the lower courts are split on whether this doctrine applies in the Section 1985 context, the split indicates the law on this question isn’t clearly established.

Second, the court noted that the government officials in this case discussed matters of “general and far-reaching policy.” “[O]pen discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the federal government should pursue. Close and frequent consultations to facilitate the adoption and implementation of policies are essential to the orderly conduct of governmental affairs.”

Lisa Soronen is executive director of the State and Federal Legal Center and a frequent contributor to the NCSL Blog on judicial issues.