WASHINGTON (CN) – By a rare 4-2 vote Monday, the Supreme Court sidelined damages claims against high executive officers at the Justice Department over the inhumane treatment suffered by Muslim, South Asian and Arab men in the name of national security after 9/11.
Led by undocumented immigrant Ahmer Iqbal Abbasi, the federal class action in New York complains about the conditions endured for months by 84 men detained at the Metropolitan Detention Center in Brooklyn.
Though Abbasi and his five co-plaintiffs were all ultimately removed from the United States, they say they deserve damages because the government had no reason to suspect them of terror connections, and thus had no legitimate reason to subject them to harsh conditions for as long as it did.
During lockup, the men were allegedly kept for over 23 hours a day in solitary, and the lights were always on in their tiny cells. Denied even a toothbrush, let alone the opportunity to contact the outside world, the men say they were strip searched regularly, beaten by the guards, threatened with violence, subjected to humiliating sexual comments, and mocked about their religion.
“If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic,” Justice Anthony Kennedy wrote for the majority. “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. Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization.”
The Supreme Court set the standard for damages actions against federal government employees in the 1971 case Bivens v. Six Unknown Federal Narcotics Agents, but Kennedy said the Second Circuit erred in this case by failing to “perform any special factors analysis at all.”
Because the special factors in this case implicate U.S. detention policy, Kennedy said they should be considered by Congress not the courts.
“There is … a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the nation in times of great peril,” Kennedy wrote. “The proper balance is one for the Congress, not the Judiciary, to undertake.”
Justice Stephen Breyer slammed this approach in a dissent joined by Justice Ruth Bader Ginsburg.
“Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the court’s abolition, or limitation of, Bivens actions goes too far,” Breyer wrote. “If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.”
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.