9-11 Cases Mean SCOTUS No Longer MIA in War on Terror

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By Kimberly Strawbridge Robinson

Oct. 12 — The U.S. Supreme Court has “sat idly by” as lower courts made it harder to sue federal officials for “egregious constitutional violations,” a leading scholar on national security law told Bloomberg BNA recently.

But that changed Oct. 11 when the high court agreed to hear two cases that have “enormous potential implications” for efforts to hold federal officials liable for violations of constitutional rights, according to Professor Stephen I. Vladeck of the University of Texas Law School in Austin, Texas.

Those cases are Ziglar v. Turkmen, U.S., No. 51-1358, review granted 10/11/16 , and Hernandez v. Mesa, U.S., No. 15-118, review granted 10/11/16 , Vladeck told Bloomberg BNA Oct. 11.

Both cases deal with the availability of Bivens claims, which allow some individuals to sue federal officials for constitutional violations. The Supreme Court created the doctrine in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

“Taking these cases together could be a major opportunity for the Justices to reverse—or endorse" the trend of restricting the availability of such claims, Vladeck said.

Reversing the trend and broadening access to Bivens claims could deter official misconduct and “shape government conduct in the future,” Professor James E. Pfander of Northwestern University's Pritzker School of Law, Chicago, said.

But that outcome is unlikely, he told Bloomberg BNA in an e-mail Oct. 11.

Pfander has written a book on Bivens claims that is scheduled for a 2017 release, “ Constitutional Torts and the War on Terror.”

“I would be quite surprised” if the current Supreme Court were to rule in favor of the individuals suing federal officials, Pfander said.

SCOTUS ‘Missing in Action.’

At the heart of the cases the Supreme Court agreed to hear Oct. 11 are the detention of Muslims after the Sept. 11, 2001, terrorist attacks, and the cross-border killing of a Mexican teenager by a federal border patrol agent.

In Turkmen, a group of individuals are suing former Attorney General John Ashcroft and other federal officials for alleged abuses while being detained in the wake of the Sept. 11 attacks (see related story).

In Hernandez, the family of a Mexican teenager who was killed while on the Mexican side of the border is suing a border patrol officer who was on the U.S. side when he shot the teen (see related story).

The Supreme Court “has long been missing in action in the litigation of cross-border and war-on-terror cases,” Pfander said.

“It has silently declined to hear cases” seeking damages from the government for “extraordinary rendition (official kidnapping), prolonged detention, and ‘enhanced’ interrogation or torture,” he said.

It has also “declined to review cases claiming torture and cruel, inhuman, and degrading treatment by those subject to detention at” military prisons like Guantanamo Bay and Abu Ghraib, Pfander said.

In the meantime, “individuals using Bivens to challenge the constitutionality of their treatment during the war on terror have almost invariably run into a roadblock at the appellate level,” Pfander writes in his book.

Federal courts have unnecessarily “complicated their analysis of the war-on-terror claims with discretionary analysis of political and national security considerations” he says.

“They consider whether special factors counsel hesitation in the recognition of a right to sue (frequently concluding that they do),” according to the book.

They “identify legal uncertainty as the basis for dismissal, rather than as a reason to clarify the law,” Pfander writes.

And “they decline to apply U.S. law to U.S. conduct overseas,” he says.

Fundamental and Sweeping Implications

But there are those who believe the implications of the court’s new cases “are fundamental, and potentially quite sweeping,” such as Deepak Gupta, who represents the family suing the federal government in the Hernandez case.

That’s demonstrated by the fact that the court itself interjected the Bivens issue into the Hernandez case, Gupta, of Gupta Wessler PLLC, Washington, said.

“In addition to the questions presented by the petition the parties are directed to brief and argue the following question: ‘Whether the claim in this case may be asserted under Bivens,' ” the court said when granting the petition for review.

That’s likely because both Justices Sonia Sotomayor and Elena Kagan are recused from the Turkmen case, , he told Bloomberg BNA in an Oct. 12 e-mail.

Sotomayor was on the original Second Circuit panel that considered the case below. Kagan worked on the case when she was solicitor general, he said.

It’s possible that the court added the Bivens issue to the Hernandez case “to ensure that the full Court—or the current eight, in any event—could” weigh in on that issue, Vladeck said.

Moreover, the fact that there will only be six justices considering Turkmen—the vacancy left by Justice Antonin Scalia’s death still remains unfilled—“might dampen the Justices’ ardor for reaching some kind of broad holding.”

So the court might have interjected the issue into Hernandez to allow for a broader holding, Vladeck said.

Kennedy Hostile to Claims

Pfander thinks that’s bad news for individuals seeking to hold federal officials accountable for unconstitutional behavior.

“The make-up of the bench suggests that the cases present an ideal opportunity for the [U.S.] government” to “secure a favorable decision” in Turkmen, he told Bloomberg BNA.

The six-member court that will consider that case puts Justice Anthony Kennedy “front and center,” Vladeck said.

“Kennedy has already expressed some hostility to these claims,” Pfander said.

He ruled against them at the pleading stage in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and suggested “that the war-on-terror context of this sort of litigation provides a special reason to defer to the government” in Ashcroft v. Al-Kidd, 563 U.S. 731 (2011), Pfander said.

If the justices voting to grant review in the Turkmen case contemplate a “general tightening” of the Bivens doctrine, they may have added the Bivens question to the Hernandez case to ensure that they have “ample room to clarify the operation of the Bivens doctrine more generally,” he said.

Job for Someone Else

The federal government has argued to the Supreme Court that restricting the Bivens action is the right result.

“Respondents seek to challenge high-level policy decisions and to do so in a context that implicates both national security and immigration,” the federal government said in its request for Supreme Court reviewin Turkmen.

However, the Bivens remedy has never been considered the proper way to alter such policies, but instead “is concerned solely with deterring the unconstitutional acts of individual officers,” the government said.

Such high-level policy decisions are better left to “non-judicial sources, such as the Inspector General and Congress,” the government said.

The government declined to comment on these cases in an Oct. 12 e-mail to Bloomberg BNA.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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