Kennedy warned that even matters of national security do not give the Executive carte blanche, but that the silence of Congress is relevant and telling here.
“In the almost 16 years since September 11, the federal government’s responses to that terrorist attack have been well documented,” the ruling states. “Congressional interest has been ‘frequent and intense,’ and some of that interest has been directed to the conditions of confinement at issue here. Indeed, at Congress’ behest, the Department of Justice’s Office of the Inspector General compiled a 300-page report documenting the conditions in the MDC in great detail. Nevertheless, ‘at no point did Congress choose to extend to any person the kind of remedies that respondents seek in this lawsuit.’”
Kennedy called it difficult as such to credit the argument by the former detainees that Congress’ failure to provide a damages remedy in circumstances like these was “inadvertent.”
As for other avenues available to the former detainees, Kennedy noted that a habeas remedy, for example, "would have provided a faster and more direct route to relief than a suit for money damages."
Whereas this case remains unresolved after 15 years, “a successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately," the ruling states.
Kennedy also emphasized that "national-security policy is the prerogative of the Congress and president."
If they had to worry about personal damages liability, however, Kennedy said there is a very real risk that officials would "second-guess difficult but necessary decisions concerning national-security policy."
Without express indication by Congress, Kennedy said courts are thus traditionally "reluctant to intrude upon the authority of the Executive in military and national security affairs."
For the dissenting justices, however, security-related government actions show the need for Bivens actions.
“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 wrote. “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. President Franklin Roosevelt’s attorney general, perhaps exaggerating, once said that ‘the Constitution has not greatly bothered any wartime president.’
“Can we, in respect to actions taken during those periods, rely exclusively,” the dissent continues, “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. That reluctance may itself set an unfortunate precedent, which, as Justice Jackson pointed out, can ‘li[e] about like a loaded weapon’ awaiting discharge in another case. 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. I should think that the wisdom of permitting courts to consider Bivens actions, later granting monetary compensation to those wronged at the time, would follow a fortiori.”
A shorter section of the lead opinion meanwhile rejects civil conspiracy claims against executive officials and the MDC wardens on the basis of qualified immunity.
Abbasi and the others contend that there was an agreement among these officials to subject them to harsh treatment because of their race, religion, ethnicity and national origin.
But Kennedy said no reasonable official in the position of those sued here would have known, or could have predicted, that federal law “prohibited their joint consultations and the resulting policies that caused the injuries alleged.”
“Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the officials as individuals, the result would be to chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies,” the ruling continues.
Thomas recommended in a concurring opinion that the court reconsider its qualified-immunity jurisprudence.
“Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress,” he wrote.
Monday’s opinion is not quite a full reversal because the court vacated a section of the Second Circuit’s ruling involving a claim that Dennis Hasty, the MDC warden, violated the Fifth Amendment by allowing prison guards to abuse the detainees.
“Before allowing this claim to proceed under Bivens,” Kennedy wrote, “the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other ‘sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy’ in a suit like this one.”
Justice Thomas did not participate in a section of the opinion about this claim, where Kennedy called it “the better course ... to vacate the judgment below,” allowing the Second Circuit or the District Court to perform the necessary analysis on remand.
In addition to the absence of Justice Neil Gorsuch, not yet confirmed for the court’s bench when it held oral argument, neither Justices Sonia Sotomayor nor Elena Kagan participated in Monday's ruling.
Sotomayor abstained because she participated in the case when it was before the Second Circuit, and Kagan likewise participated in the case as a former solicitor general.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.