The United States Supreme Court ruled against Arab or Muslim immigrants, who sued former high-ranking government officials for their alleged role in violating their rights in the immediate months after the September 11th attacks. They were rounded up and placed in harsh confinement conditions, even though they had no ties to terrorism.

Justice Stephen Breyer wrote a dissent against the 4-2 decision that raised concerns about the Supreme Court’s decision to essentially abolish or extremely limit lawsuits against government officials for constitutional rights violations during wartime or national security emergencies.

Such a development is significant given the fact that the U.S. government remains on a permanent war footing.

“In the wake of the 9/11 attacks, hundreds of non-citizen Muslim, Arab, and South Asian men were rounded up solely on the basis of their race, religion, ethnicity, and immigration status,” the Center for Constitutional Rights (CCR), which represented the plaintiffs, declared. “They were held in extremely restrictive confinement and physically and psychologically abused.”

For this abuse and mistreatment, eight former detainees sought damages.

CCR added, “The court held that high-level government officials who implement and create clearly unconstitutional policies alleged to be based on national security are nonetheless shielded from liability.”

“We are very disappointed with the court’s dismissal of our clients’ claims,” said CCR senior staff attorney Rachel Meeropol. “The court’s decision allows for high-level officials to violate the Constitution without fear of personal accountability—a dangerous message in this time of rampant state-sponsored discrimination against Muslim and immigrant communities.”

“This is a total failure of justice in my opinion,” Benamar Benatta, one of the plaintiffs, reacted. “To this day we see high-level officials, either retired or still holding office, talk and praise the effectiveness of torture and mistreatment of detainees, despite mounting evidence to the contrary! It is only by holding high-level officials to account when their policies are ineffective or discriminatory that a country can properly heal and look forward to the future. I am very disappointed.”

The decision reversed a federal appeals court, which reinstated complaints against former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Commissioner of the Immigration and Naturalization Service James W. Ziglar in 2015.

Justices Neil Gorsuch, Elena Kagan, and Sonia Sotomayor recused themselves because of their past histories with the Justice Department.

According to a prior Second Circuit court opinion [PDF], Ashcroft allegedly “endorsed the restrictive detention of a number of men who were Arabs or Muslims or both—or those who appeared to fit those categories—that resulted from the fear and frenzy in greater New York following the 9/11 attacks in which suspicion was founded merely upon one’s faith, one’s appearance, or one’s native tongue.”

The Second Circuit judges pointed to the fact that two of the defendants were involved in operating the Metropolitan Detention Center, where they allegedly filed “false documents” about the risks detainees posed. They were complicit and/or responsible for a facility, where assaults, daily strip searches, and numerous other degrading acts” were routinely carried out against individuals not suspected of any particular security risks.

CCR alleged the immigrants were kept in their cells for over 23 hours a day and provided with “meager and barely edible food.” They were prohibited from moving in their units and could not use a phone, which grossly limited their ability to file a petition for habeas relief as Supreme Court justices in this case contended the immigrants should have done. They were often abused if they accepted offers to go out to the recreation area and guards would even leave them in a “cold recreation cell, over their protests, as a form of punishment.”

The men, CCR further alleged, were “strip-searched every time they were removed from or returned to their cells, including before and after visiting with their attorneys, receiving medical care, using the recreation area, attending a court hearing, and being transferred to another cell.

Each time they arrived at the Metropolitan Detention Center “in the receiving and discharge area and again after they had been escorted – shackled and under continuous guard – to the [Administrative Maximum Special Housing Unit],” they were strip-searched, even though there was absolutely no opportunity for them to obtain contraband.

Justices Anthony Kennedy, Samuel Alito, and Clarence Thomas, and Chief Justice John Roberts ruled [PDF] in favor of immunizing government officials from “damages actions” for violating constitutional rights. They contended allowing it to proceed would interfere “in an intrusive way with sensitive functions of the Executive Branch.”

“National security policy is the prerogative of the Congress and President,” Kennedy, who authored the decision, stated. “These concerns are even more pronounced when the judicial inquiry comes in the context of a claim seeking money damages rather than a claim seeking injunctive or other equitable relief. The risk of personal damages liability is more likely to cause an official to second-guess difficult but necessary decisions concerning national-security policy.”

But that would seem to be the point of the lawsuit—to ensure high-ranking officials might second-guess rounding up innocent people and subjecting them to harsh treatment on the basis of their race, religion, ethnicity, or immigration status in the future.

“Because it is clearly established that it is unconstitutional to subject detainees to punitive conditions of confinement and to target them based solely on their race, religion, or national origin, the defendants are not entitled to qualified immunity on the constitutional claims,” Breyer contended in his dissent, which Justice Ruth Bader Ginsburg joined.

The Supreme Court decision left the door open for plaintiffs to prove their case against a warden in a lower court.

“Why should the law treat differently a high-level official and the local constable where each has similarly violated the Constitution and where neither can successfully assert immunity or any other defense?” Breyer asked.

Breyer added, “All damages actions risk disrupting to some degree future decision-making by members of the executive or legislative branches.”

The “claimed harms,” Breyer noted, are worse than similar cases. The plaintiffs say they were “unncessarily shackled,” subject to “continuous lighting” to prevent sleep, strip searched frequently, “slammed against walls, injured physically, and subject to verbal abuse.”

Breyer reminded the Supreme Court justices opposed to accountability for high-ranking officials that the judiciary has a duty to protect an individual’s “fundamental constitutional rights.” For example, the Supreme Court made this clear when it came to the detention of “enemy combatants” at Guantanamo Bay.

The justices who ruled against the immigrants argued discovery might intrude into the national security work of the executive branch. But that ignores the ability of courts to “tailor discovery so they do not interfere in ‘official’s work,'” Breyer pointed out.

This decision came from the same high court that is expected to hear a lawsuit from President Donald Trump’s administration to reinstate a ban against Muslim immigrants from at least seven countries, who seek to travel or obtain visas.

Breyer did not shy away from placing the Supreme Court’s decision into a broader historical context.

“History tells us of far too many instances where the executive or legislative branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights,” Breyer recalled.

“We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War II. The pages of the U.S. reports themselves recite this court’s refusal to set aside the government’s World War II action removing more than 70,000 American citizens of Japanese origin from their west coast homes and interning them in camps—an action that at least some officials knew at the time was unnecessary.”

“Can we, in respect to actions taken during those periods, rely exclusively, as the Court seems to suggest, upon injunctive remedies or writs of habeas corpus, their retail equivalent?”

“Complaints seeking that kind of relief typically come during the emergency itself, when emotions are strong, when courts may have too little or inaccurate information, and when courts may well prove particularly reluctant to interfere with even the least well-founded executive branch activity,” Breyer additionally argued.

“A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available. In such circumstances, courts have more time to exercise such judicial virtues as calm reflection and dispassionate application of the law to the facts.”

“We have applied the Constitution to actions taken during periods of war and national security emergency,” Breyer acknowledged.

As Meeropol concluded, “Justice Breyer noted in [his] dissent, ‘If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.’”

“I fear our house is ablaze,” the CCR staff attorney proclaimed.