High Court's Free Pass for Constitutional Wrongs

      Justice delayed is justice denied, according to the familiar legal maxim. But worse is for justice still to be denied even after the law's protracted delay. That was the message the Supreme Court gave last week [June 19] to the hundreds of innocent Arab and Muslim immigrants rounded up more than 15 years ago in a post-9/11 frenzy and held for months without charge in prison conditions usually reserved only for the worst of the worst.
      For 15 years, some of these "persons of interest," none of them ever found to have terrorism connections, have fought in federal court to hold the ranking officials responsible for these policies accountable under the Constitution. But the court that proudly promises "equal justice under law" decided instead to give a free pass to former Attorney General John Ashcroft, former FBI director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar.
      The plaintiffs in this still unfinished litigation, represented since 2002 by lawyers from the Center for Constitutional Rights in New York City, asked for money damages from the three federal officials and the warden and associate warden of the federal prison where they were held. As authority, the lawyers relied on a decades-old Supreme Court precedent allowing damage suits against federal law enforcement agents for violations of constitutional rights.
      In blocking the suit against Ashcroft, Mueller, and Ziglar, a bare 4-2 majority of the shorthanded court has given federal officials a national-security get-out-of-litigation-free card. When the nation's security is at stake, Justice Anthony M. Kennedy wrote for the court in Ziglar v. Abbasi, federal officials cannot be second-guessing their decisions based on fears of being held financially responsible for violating individuals' constitutional rights. The ruling leaves prison warden Dennis Hasty's potential liability to be reconsidered on remand.
      In dissent, Justice Stephen G. Breyer protested that legal remedies against federal officials may be especially needed when they claim to be acting in times of emergency in the interest of national security. "[T]here may well be a particular need for Bivens remedies," Breyer wrote, referencing the court's 1971 decision, "when security-related Government actions are at issue." Justice Ruth Bader Ginsburg joined Breyer's dissent, but liberal justices Sonia Sotomayor and Elena Kagan had to recuse themselves because of prior involvement with the case respectively as judge on the Second Circuit and U.S. solicitor general.
      The seminal decision in Bivens v. Six Unknown Federal Narcotics Agents (1971) filled a gaping hole in U.S. law. Back at the time of the Reconstruction, Congress passed a law providing that state or local officials could be held liable for violating an individual's constitutional or legal rights "under color of [law]." Written against the backdrop of the defiance of federal officials by southern states, the Civil Rights Act of 1871 included no provision for comparable suits against federal officials for violating individual rights.
      In Bivens, the Supreme Court's 6-3 majority ruled that federal cops, just like state or local cops, could be held liable in federal court for violating an individual's constitutional rights — specifically in the case, for a warrantless search of James Biven's home. "That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition," Justice William J. Brennan Jr. wrote for the majority.
      Whether surprising or not, Bivens is now in jurisprudential disfavor, as Kennedy explained in the new decision. The court has followed the Bivens' "implied damages remedy" approach in only two subsequent cases, Kennedy noted, and refused in several others. The court in
Davis v. Passman (1979) allowed a Fifth Amendment equal-protection suit against a sitting congressman by the female administrative assistant he fired after deciding he had to have a man in the post. A year later, the court in Carlson v. Green (1980) allowed the mother of a deceased federal prisoner to sue federal prison officials under the Eighth Amendment's Cruel and Unusual Punishments Clause for leaving her son's asthma untreated with tragically fatal results.      The plaintiffs' allegations in what was originally styled as Turkmen v. Ashcroft invoked all three of the Bill of Rights amendments cited in the Bivens trio of cases. For starters, they claimed unreasonable seizures in violation of the Fourth Amendment. They also claimed that they were subjected to severe conditions in prison — sleep deprivation, close confinement, and so on —  because of their religion or national origin in violation of the Fifth Amendment's equal protection requirement. The prison conditions, including unwarranted strip searches and verbal and physical abuse, were alleged to be Eighth Amendment violations.
      All of those well-pleaded allegations left Kennedy and his conservative colleagues, Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr., unmoved. "National-security policy is the prerogative of the Congress and President," Kennedy wrote, not he added for the courts. Breyer countered by pointing to the court's historically wrong decision in Korematsu v. United States (1944) to uphold the wartime internment of thousands of Japanese Americans.
      Four decades later, Congress apologized and provided $20,000 apiece in compensation to the wrongly interned Japanese Americans. For the victims of the post-9/11 dragnet, the Supreme Court offers nothing but Kennedy's caveat that the opinion should not be read to condone the "tragic" treatment that they received. Breyer's apt retort: the court's holding, he wrote, may "diminish[ ]  the compensatory remedy constitutional tort law now offers to harmed individuals."