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Ahmer Abbasi talks to the Associated Press in Karachi, Pakistan, in January 2017. He was a plaintiff in Ziglar v. Abbasi, a lawsuit filed in 2002 on behalf of a class of Muslim, South Asian, and Arab non-citizens swept up and detained in connection with the 9/11 investigation. (AP file photo)
Ahmer Abbasi talks to the Associated Press in Karachi, Pakistan, in January 2017. He was a plaintiff in Ziglar v. Abbasi, a lawsuit filed in 2002 on behalf of a class of Muslim, South Asian, and Arab non-citizens swept up and detained in connection with the 9/11 investigation. (AP file photo)

Shameful ruling increases executive power

By Noah Feldman

It’s shameful that the U.S. Supreme Court has denied a day in court to innocent Muslims detained under harsh conditions without trial in the immediate aftermath of the Sept. 11 attacks. But the 4-2 decision is actually worse than inadequate.

Going forward, Justice Anthony Kennedy’s opinion effectively insulates high-ranking executive branch officials from being sued for adopting policies that violate individual liberties. As Justice Stephen Breyer wrote in dissent, this approach breaks a basic principle of constitutional law going back to the early republic: Where there is a right, there must be a remedy.

The outcome of the case, Ziglar v. Abbasi, was determined in part by recusals. Kennedy’s majority opinion was joined by conservative justices John Roberts, Samuel Alito and Clarence Thomas. (Thomas, as is his wont, refused to join one part of the opinion that he thought didn’t go far enough.) The case was argued before Justice Neil Gorsuch joined the court. So the four conservative justices sitting might have been countered by the four liberals.

Justice Ruth Bader Ginsburg did indeed join Breyer’s dissent. But Justices Elena Kagan and Sonia Sotomayor were both recused. That created the 4-2 result.

In an opinion that shows he still has conservative impulses despite his joining the liberal side on some high-profile cases, Kennedy held that the Muslim detainees couldn’t sue prison officials in New Jersey and New York for unlawfully detaining them.

The basis for the suit would have been a 1971 precedent with the mouthful name of Bivens v. Six Unknown Federal Narcotics Agents — Bivens for short. The Bivens case name is significant because it reveals what that case was about. Webster Bivens was subjected to illegal search and seizure by federal agents in violation of his Fourth Amendment rights. He didn’t even know the names of the agents, but the court said he could sue them anyway — and get damages for the rights violation.

The theory behind the Bivens decision — and the so-called Bivens lawsuits that it established — is that it doesn’t do much good to have a constitutional right if government actors can violate it with impunity. The Supreme Court inferred the existence of the Bivens action from the constitutional ideal that real rights deserve real remedies.

The court followed the Bivens opinion with two similar rulings in 1979 and 1980. But subsequently, a more conservative Supreme Court has backed away from the Bivens ideal, preferring to leave it to Congress to create, or not create, remedies for rights violations.

Kennedy made his distaste for the Bivens model pretty clear when he wrote that it’s possible that “the analysis in the Court’s three Bivens cases might have been different if they were decided today.” And he referred to the era in which the cases were decided as an “ancien régime” — the kind that gets overthrown by revolution.

In his opinion, Kennedy first said that the detainees’ claims weren’t similar enough to the claims in the three Bivens precedents to be recognized. That required him to ask whether a new kind of Bivens action should be recognized.

Here is where Kennedy did real damage to constitutional oversight of the executive branch. He said that Bivens claims were not appropriate against high-ranking executive officials when they derived from “the formulation and implementation of a general policy.”

The problem, according to Kennedy, is that deciding Bivens claims of this type would require courts to look into “the discussions and deliberations that led to the policies.” That would in turn distract executive branch officials from doing their jobs.

Amplifying this concern, Kennedy pointed out that the detainees were in effect challenging “major elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.” And national security, he pointed out, is the “prerogative” of the political branches, not the courts. Thus, the separation of powers counseled against allowing the lawsuit.

Kennedy’s argument proves far too much. When the executive branch or Congress violate individual constitutional liberties, they’re no longer exercising their legitimate power under the Constitution. They are, by definition, acting outside their lawful powers.

The job of the courts is precisely to oversee and check the political branches when they go outside their constitutional boundaries. Kennedy usually recognizes this, as he did when he cast the crucial vote to subject the prison at Guantanamo Bay, Cuba, to judicial jurisdiction despite its status as not quite inside the U.S.

Breyer’s dissent hit this point hard. He quoted the great Chief Justice John Marshall in Marbury v. Madison, which established that the federal courts could review Congress’s enactments and decide if they were constitutional. “The very essence of civil liberty,” wrote Marshall, is “the right of every individual to claim the protection of the laws, whenever he receives an injury.” Thus, as Marshall explained, every right must be given a remedy. The U.S. government would not be “a government of laws, and not of men … if the laws furnish no remedy for the violation of a vested legal right.”

And regarding Kennedy’s concern for high-ranking officials, Breyer was equally sharp: “Why should the law treat differently a high-level official and the local constable where each has similarly violated the Constitution?” he asked. And Breyer rejected the idea that Bivens shouldn’t apply to policies made under conditions of national emergency.

Breyer’s dissent draws attention to the reality of this opinion: The court’s conservatives wanted to protect the George W. Bush administration from retrospective judicial oversight, even at the distance of a decade and a half. What’s unfortunate is that in the process, the court has insulated executive branch officials from being called to account in court for violating constitutional rights. In the current political environment, that’s a result that should not be applauded.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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