Eight years after the terrorist attacks of Sept. 11, 2001, many legal theories that the Bush administration relied on to detain people remain controversial and legally murky.
Now some former detainees are trying to hold Bush administration officials personally accountable — and clarify the legality of the government's more creative anti-terrorism policies — through civil lawsuits against people who held senior positions at the Justice Department and other parts of the federal government. The results of the suits have been mixed, with judges throwing some out and letting others proceed.
The most recent such decision came down in California, against former Attorney General John Ashcroft. After Sept. 11, 2001, Ashcroft ordered that some Americans be held without charge as material witnesses to terrorism. In a 2-1 ruling, the court said the imprisonment violated the detainees' rights. The two Bush-appointed judges in the majority called Ashcroft's behavior "repugnant to the Constitution," and they said Ashcroft could be held personally liable.
Ashcroft's spokesman, Mark Corallo, fears that "people are not going to want to come into the government if they think they have to hire a lawyer the minute they take the oath of office."
Corallo, who was the Justice Department's communications director under Ashcroft, said, "People come into the executive branch because they want to serve America. They should not be faced with legal bills for things that they did in their capacity in good faith."
The fear of driving people away from government is one concern in these sorts of cases, says George Washington University law professor Orin Kerr. The other consideration is the constitutional rights of the American people. Kerr says the law tries to strike a delicate balance.
"On the one hand, you want government officials to be very concerned about the Constitution, to be absolutely concerned about following the law. On the other hand, sometimes the law is unclear. And you don't want government officials to be so worried that they take a very conservative view every step of the way and don't take the steps they need to protect public safety," says Kerr.
Not All Officials Actions Are Immune From Suits
In some areas, the law says government officials have total immunity from suits. For example, prosecutors cannot be sued for charging someone with a crime. But in other instances, people can be personally liable even for actions they take in a professional, governmental capacity. The key question is whether the law was clear enough at the time that the official should have known that his actions were illegal.
A few months ago, a Bush-appointed judge in California ruled that former Justice Department lawyer John Yoo can be held personally accountable for authorizing harsh treatment of former detainee Jose Padilla.
"Holding people accountable in that way is the best way for future governments to ensure that their employees are really doing what we expect them to do," says human rights lawyer Vincent Warren. He directs the Center for Constitutional Rights, a nonprofit human rights group that has brought some of these civil lawsuits.
Warren argues that it is important for powerful government officials to know that if they break the law, they will pay a price.
"We don't want to have a society in which every government official decides that they're going to turn a blind eye to torture, abuse, detention and other illegalities because the president really wants it to happen," he says.
A High Threshold For Suing Government Officials
There is a high bar for lawsuits like these to proceed. "The gatekeeping that the courts are doing here is allowing only the strongest cases to go forward when you're going after the highest-level supervisory officials," says Florida International University law professor Howard Wasserman.
Many cases against top government officials have been thrown out. The Supreme Court rejected one against Ashcroft in a 5-to-4 decision last May. And courts may yet reject cases that are currently alive.
Professor Kerr believes a better outcome would be for the courts to use these lawsuits to finally clarify some legal policies.
"The challenge since Sept. 11, 2001, from a legal standpoint, has been, 'How do you get courts to clarify what the law is?' " Kerr says. "Eight years later, it looks like the way to do that is through a civil lawsuit that works its way through the courts, that raises immunity issues, but also lets the courts address core legal questions of how the Constitution applies to the war on terror."
Kerr predicts that many of these cases will eventually reach the Supreme Court and force the justices to "make the law clear and say exactly what the rules are."
But Kerr anticipates that even if courts decide that the Bush administration's detention policies are not legal, the ruling may well say that the issue was ambiguous enough to absolve government officials from personal liability for their actions.