Based on conclusory allegations and after-the-fact inferences drawn in the chambers of appellate judges, the court of appeals concluded that the nation’s highest-ranking law-enforcement officers—a former Attorney General of the United States and former director of the FBI—may be subjected to the demands of litigation and potential liability for compensatory and even punitive damages in their individual capacities because they could conceivably have learned about and condoned the allegedly improper ways in which their undisputedly constitutional policies were being implemented by lower-level officials during an unprecedented national-security crisis.

Two related petitions raising similar issues also have been filed by Ballard Spahr’s William McDaniel Jr. on behalf of former Immigration and Naturalization Service commissioner James Ziglar, and by MoloLamken’s Jeffrey Lamken on behalf of former wardens of the Metropolitan Detention Center in Brooklyn.

The petitions and Second Circuit decision stem from a lawsuit filed in April 2002 by the Center for Constitutional Rights. The center alleged that the Turkmen plaintiffs and other detainees were placed in solitary confinement, some for up to eight months even though they were only charged with civil immigration violations such as overstaying a visa or working without authorization. The suit also claimed the men were physically abused. They ultimately were deported.

“The Second Circuit decision affirmed what should be obvious—noncitizens have the same rights as citizens to be free from abuse and discrimination in federal detention,” said Rachel Meeropol of the Center for Constitutional Rights, counsel to the Turkmen plaintiffs. “Even cabinet-level officials are not above the law if they take part in that abuse and discrimination.”

A brief in opposition to the three petitions is due June 8, but Meeropol said she likely would request additional time to respond to all three. The high court probably would not look at the petitions until the fall.

Read the Justice Department’s petition on behalf of Ashcroft and Mueller below.