“If you are cold, put on a sweater, perhaps an overcoat, and maybe even turn up the heat,” Justice Stephen Breyer told his colleagues from the Supreme Court bench Monday. “But don’t set fire to the house.”
Breyer favors deliberative rhetoric; but Monday he was, himself, in a low-key way, on fire.
Breyer was dissenting in Ziglar v. Abbasi, in which the court, by a 4-2 vote, held that a group of non-citizens held after the 9/11 attacks—in conditions admitted by the government to have been abusive, and to have been imposed even though there was no evidence of any crime or link to terrorism—can never seek damages against the high government officials who allegedly ordered the mistreatment. Indeed, the court cast doubt on even the prisoners’ most basic claim—that prison officials, responsible for the conditions of their detention, subjected them to demeaning conditions.
(Two of the more liberal justices, Elena Kagan and Sonia Sotomayor, recused themselves, and the case was heard before Justice Neil Gorsuch joined the court. Monday’s decision was written by Justice Anthony Kennedy, who was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito; Breyer, joined by Justice Ruth Bader Ginsburg, dissented.)
It’s impossible to read this case as simply a dispute about events now nearly a generation in the past. As the majority opinion made clear, the lurking issue is whether a court should second-guess any administration if plaintiffs seek “an inquiry into sensitive issues of national security [that are] the prerogative of the Congress and President.” The verdict could have significant implications for the case testing the Trump administration’s “travel ban” barring entry of persons from six majority-Muslim countries, which just arrived in the court’s in-basket.
Formally, Ziglar asked only whether, years after federal officials promulgate an unconstitutional policy, they may be required to pay money damages to those victimized by it. The Ziglar majority ruled out after the fact damages in part because, it said, plaintiffs in these kinds of cases could have pursued injunctions at the time. (The “travel ban” case concerns just such an injunction, not damages.)
Nonetheless, the language in Kennedy’s opinion betrays acute anxiety about holding high officials responsible, since “high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And ... the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office.”
The “urgent” action at issue in Ziglar seems only remotely “lawful.” After 9/11, high officials—including then Attorney General Attorney General John Ashcroft, FBI Director (now Special Counsel) Robert Mueller, and Commissioner of the Immigration and Naturalization Service James Ziglar, set out a nationwide policy by which FBI agents encountering “Arab or Muslim men” not lawfully present in the U.S. would seize them and jail them until the government decided they were not a danger. At the federal Metropolitan Detention Center in New York, these detainees were placed in tiny cells for 23 hours a day, strip-searched over and over, disrupted when they tried to sleep, shackled, pushed, tripped, and beaten by correction officers, denied use of the telephone, deprived of their Korans, and harassed when they tried to pray. Plaintiffs alleged that the top officials ordered them held in the harshest conditions possible, and that MDC’s warden deliberately ignored guards’ abuse. They asked a federal court to allow a trial for damages before a jury.
The house Breyer accused his colleagues of torching was built by the court nearly half a century ago in a 1971 case called Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics and Dangerous Drugs. In that case, federal drug agents broke into a private home and arrested the occupant without a warrant. He was shackled and strip-searched; but drug charges against him were later dismissed. The occupant sued in federal court for the violation of his Fourth Amendment right against “unreasonable searches and seizures.”
His lawsuit faced a paradoxical problem. A federal statute, 42 USC 1983, authorizes suits against state officials for “the deprivation of any rights ... secured by the Constitution and laws.” But Congress has never enacted a similar statute for lawsuits against federal officials. In Bivens, the court recognized a limited judge-made remedy for certain constitutional violations by federal officials. If Congress had not set up a specific scheme to address a type of violation, the courts could use their traditional power to allow damage suits.
The court added that “special factors” might bar damages in specific areas. In the years since Bivens, Warren Court-style liberalism has given way to judicial skepticism about rights. Bivens cases, the court said not long ago, are “disfavored” and “special factors” have multiplied. The court has rejected most Bivens claims in “new contexts.”
Arguing before the Second Circuit, the officials said the “context” should include the nation’s “response to an unprecedented terrorist attack.” The Second Circuit rejected that argument, arguing that “context” referred to the rights asserted—and that prison abuse cases are a familiar Bivens area.
This, the Supreme Court majority said, was error: “new context” analysis isn’t limited to the legal area involved. Instead, from now on, courts are to ask whether a claim is “different in a meaningful way” from earlier claims—a free-wheeling inquiry that should include “the rank of the officials involved” and “the risk of disruptive intrusion” into legislative or executive operations. In this case, the majority said, the context was “new” because “respondents’ detention policy claims challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil.” That “new context” required that the courts avoid any collision with the other branches’ national security policies—unless invited to do so by passage of a congressional remedial statute.
The court did not hold that such cases can’t be heard at all. Future detainees, Kennedy wrote, might be able to challenge future conditions while detained, through actions for an injunction, or petitions for habeas corpus. But that time, in this case, has long passed. (Arguably, in fact, that time never came. The detainees were held largely incommunicado, given at best limited access to lawyers, and—because they were held on immigration issues, a civil matter—had no access to court-appointed counsel. By the time they were freed, injunctions and habeas writs would be of no help.)
The plaintiffs had also alleged one cause of action under a specific federal statute, 42 U.S.C. 1985(3), which prohibits “conspir[ing]” to deprive any person or group of equal protection; the policy, plaintiffs argue, was based on nationality and religion, and thus the constant conferring by authorities about their confinement was a conspiracy. The court struck this allegation too, arguing that the law does not clearly allow officials with one government department—in this case the U.S. Department of Justice—to be charged with conspiracy. Such a suit might “chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies,” Kennedy wrote.
Breyer argued the court was turning a blind eye to the well-known dangers of deference in national-security cases.
The court thus eliminated all the causes of action except one—a potential lawsuit against MDC Warden Dennis Hasty alleging that he was “deliberately indifferent” to the systematic mistreatment by guards at the facility. That would seem like a pretty ordinary Bivens claim; the Supreme Court in 1980 recognized Bivens prison-abuse actions. But even in this area, the court Monday remanded the case to the Second Circuit for a new “special factors” analysis. In so doing, it hinted that this perfectly ordinary prison case may be “different” in the context of a national-security emergency.
All in all, Bivens, and official accountability, had a bad day in court Monday. Breyer’s response, both in his statement from the bench, was civil but furious. Bivens and following cases already provided protection for federal officials and their high-level functions, he wrote. Plaintiffs must produce specific allegations, officials are usually entitled to immunity from suit, and courts know how to limit discovery and pretrial motions to prevent disruption and intrusion. But the majority, he wrote, had decided that was not enough. In essence, it was dismantling Bivens altogether. (Here is where he accused the majority of arson—of burning the entire structure of constitutional torts to shelter officials in national-security matters.)
In fact, Breyer argued, the court was turning a blind eye to the well-known dangers of deference in national-security cases:
[T]here may well be a particular need for Bivens remedies when security-related Government actions are at issue. 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. 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 I. 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.
As for Kennedy’s reassuring rhetoric about injunctions and habeas corpus, Breyer points out, courts are actually reluctant to step in while the crisis is still going on: “That reluctance may itself set an unfortunate precedent, which, as Justice [Robert] Jackson pointed out [in a dissent in the Japanese internment cases], can ‘li[e] about like a loaded weapon’ awaiting discharge in another case.”
Breyer’s invocation of fire did not make his tone inflammatory. His opinion is, however, pointed—especially as set against the background of the “travel ban” and the willingness of candidate Donald Trump to compare himself and the “problem” of Muslim immigrants with Franklin Roosevelt and the internment. And Kennedy’s soothing tone, against the same background, did not make his opinion reassuring. The issue was not constitutional rights, but purely money damages, he said:
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
So we can all congratulate ourselves on our splendid Constitution and cluck our deep sympathy for the victims of hysterical overreaction. In practical terms, however, the court’s majority Monday made past and potential future victims the same promise the White Queen made to Alice in Through the Looking-Glass: “The rule is, jam to-morrow and jam yesterday—but never jam today.”