Civil Rights Since 9/11 Conference at UT Law

I had the good fortune to attend the “Civil Rights since 9/11” Conference on Feburary 3rd at the law school.  The conference featured several prominent speakers, headlined by Susan Herman, President of the ACLU and author of the recently published book Taking Liberties: The War on Terror and the Erosion of Democracies.  I thought I would take a few minutes to summarize and reflect on one of the panels I took in.

The first panel of the day was on the topic of “qualified immunity” as it applies to high-level government officials being sued for promoting policies that led to the violation of constitutional rights in the wake of the 9/11 attacks.  The panel featured Rachel Meeropol – Staff Attorney, Center for Constitutional Rights, Alexander Reinert – Associate Professor of Law, Cardozo Law School, and Lee Gelernt – Deputy Director, ACLU National Immigrant Rights Project, and was moderated by the law school’s own Jennifer Laurin.  The main thrust of the panel’s discussion was that “qualified immunity,” which protects government officials from liability for constitutional violations, presents a major challenge to post 9/11 civil liberties litigation. No surprises there.  None of the panelists were optimistic that the present Supreme Court was about to reverse course and open the courts to litigants seeking discovery from high-level national security and justice officials, let alone hold these officials liable for violating the constitutional rights of Muslim and Arab-American citizens rounded-up by the FBI and local law enforcement post 9/11. 

Despite their sobering message, however, the panelists raised some interesting questions about the future of post 9/11 civil liberties litigation and the courts’ position on qualified immunity.  One question raised by the panel was whether the trial courts will permit discovery against lower-level officials (prison guards, FBI agents, etc,) while the appellate courts weigh qualified immunity defenses raised by high-level officials.  According to the panel, the trial courts have taken different positions on this issue.  Some courts have allowed discovery to advance against low-level defendants even while the appellate courts address qualified immunity issues, while other courts have delayed all discovery until qualified immunity issues have been resolved. 

The other interesting question raised by the panel had to do with whether the Supreme Court is likely, in the future, to decide any constitutional issues raised in post 9/11 civil liberties suits before ruling on the question of qualified immunity.  Or, whether the Supreme Court is likely to dodge any constitutional issues by upholding the qualified immunity of high-level officials and declining the opportunity to decide any constitutional questions. The answer to this question obviously has major implications for future litigation against high-level government officials for constitutional violations.  Civil liberties advocates and their clients hope that the Court shows a willingness to invalidate certain government policies as unconstitutional, even while shielding high-level government officials from liability.  The opposite would be truly unfortunate and warrant serious consideration as to whether, for the client’s sake, it is worth naming high-level officials as defendants.

The issues surrounding qualified immunity obviously highlight the tensions between national security interests and civil rights and civil liberties.  There are obvious reasons for protecting government officials from private actions seeking to hold them liable for the actions they took to protect the country from serious and imminent threats.  We want our officials to act decisively in response to national emergencies and the fear of being sued should not keep them from doing so.  On the other hand, by its very definition, qualified immunity is qualified and not absolute.  The Court should decide where this immunity ends and what is necessary to overcome it, because fairness and justice require that high-level officials be held equally accountable for policies that lead to severe abuses of constitutional freedoms as the low-level officials who carry out these policies.