In New York, many “high interest” detainees were held in the federal Metropolitan Detention Center in Brooklyn. MDC created a maximum-security unit stricter than even many high-security federal prisons. There, the detainees—many of whom, in ordinary times, would likely not have even been arrested—were held in tiny cells for 23 hours a day, strip-searched repeatedly, kept awake by constantly burning lights and by frequent shouts from guards, shackled, pushed, tripped and beaten, barred from the telephone and the commissary, denied the right to possess Korans, and physically harassed during Muslim prayer rituals. A number were held in these conditions even after the FBI had cleared them for release.

There’s no real dispute about those facts, which were confirmed by the Justice Department’s Inspector General as early as April 2003. Hasty is a suit by six of the detainees against not only the federal employees who ran the MDC, but also the high officials—Ashcroft, Mueller, and Ziglar—who, they argue, set the detention policy and closely supervised its implementation at MDC.

In a strongly worded opinion last June, the Second Circuit had held that the case could proceed. The plaintiffs, the court ruled, had alleged enough facts to demonstrate—if they could prove them at trial—that the defendants, including the high officials, had knowingly violated clearly established constitutional rights.

The Supreme Court is unlikely to be quite as friendly to their cause—especially since two moderate-liberal justices, Elena Kagan and Sonia Sotomayor, will not sit. (The Court, as usual, gave no explanation, but Kagan as solicitor general may have discussed the case with government lawyers, and Sotomayor was on the Second Circuit when the case came before that court for the first time in 2009.)

Stephen Vladeck, a national-security and constitutional specialist at the University of Texas law school, noted in an email that “for the eighth time in eight tries, the Court has said yes when the government asked it to review an adverse lower-court ruling in a post-9/11 counterterrorism case.” The score to date is seven for the government, zero for counterterrorism plaintiffs, and the result in this case doesn’t seem likely to break the string.

The plaintiffs claim that the conditions at MDC violated their Fifth Amendment rights to due process (because they were needlessly harsh and punitive) and equal protection (because they were imposed for being Muslim); their First Amendment free-exercise-of-religion rights; their Sixth Amendment right to assistance of counsel; and their Fourth Amendment rights against “unreasonable searches and seizures.” (As an aside, the Second Circuit noted that one of the detainees was actually neither an Arab or a Muslim; Purna Raj Bajracharya is a Nepal-born Buddhist who was arrested after someone noticed him using a video camera on a street in Queens. Cleared in November 2001, he was still held for two more months. When an attorney asked for him to be transferred, “an MDC ‘doctor responded that Bajracharya was crying too much, and would cause a riot.’”)