Compelling high executive officials to appear in a judicial proceeding implicates the separation of powers regardless of whether the appearance is compelled initially by a party or sua sponte by the court. In either event, the appearance of the executive official must be, in the end, compelled by an order of the judiciary, which implicates the separation of powers. For that reason, in both circumstances, there must be a showing of special need before a high-ranking executive official can be compelled by the judiciary to appear.
There are practical reasons for that high threshold. Those reasons, according to the courts, include concerns about monopolizing the time of high-ranking officials by preparing and testifying in every case which they administer or prosecute.
In the Ashcroft-Mueller case, federal officials arrested and detained 762 people on immigration charges. In their lawsuit, the immigrants, primarily of Arab and South Asian descent, charge they were held in solitary confinement in a super-maximum security federal prison for months where they endured harsh restrictions, harassment and physical abuse in violation of their substantive due process and equal protection rights under the Fifth Amendment.
The complaint alleges Mueller, Ashcroft and the then INS commissioner crafted a policy knowingly consigning the men to extreme punishment and without any individualized suspicion that they had any connection to terrorism.
The U.S. Court of Appeals for the Second Circuit allowed the lawsuit to go forward in June 2015, ruling against Mueller and Ashcroft. The Obama Justice Department represented their interests in the appeal and in the Supreme Court.
“The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy,” the appeals panel wrote.
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