High-ranking government officials are usually protected from claims that they violated a person’s civil rights. In lawsuits stemming from law enforcement and intelligence efforts after the Sept. 11 attacks, three federal courts have left open the possibility that former Attorney General John Ashcroft and a lieutenant may be held personally liable.
In two cases, judges appointed by Republican presidents have refused at an early stage to dismiss lawsuits that were filed against Ashcroft and former Justice Department official John Yoo. One complaint challenges Ashcroft’s strategy of preventive detention. The other seeks to hold Yoo accountable for legal memos he wrote supporting detention, interrogation and presidential power.
In a third case, the full federal appeals court in New York is reconsidering an earlier decision by three of its members to toss out a lawsuit by a man who was changing planes in the United States when he was mistaken for a terrorist and sent to Syria, where he claims he was tortured.
Senior officials are accustomed to having their actions in office judged by history, not the courts. Exposing them to legal risk might complicate recruitment as top prospects shun positions that could land them in personal trouble. It also could make officials think twice about aggressive use of executive authority.
The cases have been uncomfortable for the Obama administration, which inherited the task of representing Ashcroft and Yoo from the Bush administration, even though President Barack Obama opposed some of the homeland-security practices under his predecessor. As well, both the Obama and Bush administrations renounced some of Yoo’s legal positions.
Among the Yoo memos retracted was his Oct. 23, 2001, opinion that the Fourth Amendment’s protections against unreasonable searches did not apply to domestic military operations aimed at terror suspects — so soldiers could enter and search homes without warrants in pursuit of terrorists.
The Obama administration has yet to spell out its views on when people may be detained because of suspected terrorism links but without evidence of criminal activity.
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