9/11 FBI Abuse Claims May Hit SCOTUS Roadblock

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By Patrick Gregory

Claims by former detainees alleging racial and religious discrimination by officials at the highest levels of federal government ran into skepticism at U.S. Supreme Court oral argument Jan. 18 ( Ziglar v. Abbasi , U.S., No. 15-1358 , argued 1/18/17 ).

The outcome could determine whether officials in the Trump administration and future administrations can be held liable for national security and immigration policy decisions.

The claims here involve immigrants who overstayed their visas and were detained during a federal investigation of the Sept. 11 terrorist attacks.

Chief Justice John G. Roberts Jr. said he was concerned that allowing the “Bivens claims” here could deter policymakers from doing their jobs. Bivens claims are damages actions for constitutional violations by federal officials.

Justice Anthony M. Kennedy suggested that the detainees were asking for the extension of Bivens claims into a new context, which the high court has been reluctant to do.

The skepticism of those justices carried extra weight here because only six justices are hearing the case. Justices Elena Kagan and Sonia Sotomayor recused themselves, and there is still a vacant seat on the high court left by the death of Justice Antonin Scalia last year.

But Justice Stephen G. Breyer suggested that refusing a Bivens remedy here could foreclose relief to future plaintiffs concerning egregious violations of constitutional rights.

Muslims, Arabs Detained

Here, out-of-status immigrants detained after the Sept. 11 terrorist attacks allege that they were unconstitutionally confined based on appearing to be Muslim or Arab.

The putative class action alleges that the immigrants were physically abused during confinement and denied access to basic hygiene items.

Their suit against federal officials including former Attorney General John Ashcroft and former Federal Bureau of Investigation Director Robert Mueller could proceed, the U.S. Court of Appeals for the Second Circuit held in Turkmen v. Hasty, 789 F.3d 218 (2d Cir. 2015) (83 U.S.L.W. 1962, 6/23/15).

A remedy was available under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Second Circuit found.

Race, Religion, Discrimination

Under the federal government’s theory, “any Muslim or Arab noncitizen” could “be placed for months in solitary confinement for violating the immigration law,” Rachel Meeropol of the Center for Constitutional Rights, New York, representing the plaintiffs, said.

“But this court has a historic role to play in ensuring that race and religion do not take the place of legitimate grounds for suspicion” as justifications for detaining individuals, she said.

A Bivens remedy was necessary here to deter future federal officials from creating similar discriminatory policies, she said.

Bivens Extension Questioned

Extending the scope of Bivens claims to policy decisions about national security and immigration would be “unprecedented,” argued Acting Solicitor General Ian H. Gershengorn of the Justice Department, Washington, representing the federal defendants.

Roberts shared this concern.

“We’ve been very explicit” about exercising restraint “in extending the Bivens action beyond its original contours,” Roberts said.

But Meeropol argued that the court didn’t have to extend the scope of Bivens claims here because it has already allowed Bivens claims involving prison conditions in other cases.

Kennedy was skeptical. “I think you’re asking us to go further,” he said.

“I think what you’re asking for is a legitimate argument with many valid points to it, but you’re asking for us to create a new Bivens cause of action,” Kennedy said.

‘Overdeterrence,’ Policymakers

Roberts said one problem with allowing Bivens claims in the context of policy decisions is that “we don’t want people forming policy to have to worry” about being sued as individuals.

Particularly in the national security context, the risk of overdeterrence “is a real one,” Gershengorn argued.

Further, the court has recognized that Congress is better suited to handle issues of national security, Gershengorn said.

But Meeropol argued that there isn’t “really any precedent for the idea that you can’t use Bivens to deter creation of a clearly unconstitutional policy.”

Habeas Relief

Roberts asked whether habeas corpus relief was available to the detainees here as an alternative to a Bivens remedy.

“It is an available remedy, and indeed it was used here,” resulting in the release of some detainees, Gershengorn responded.

Justice Ruth Bader Ginsburg asked how they “could have access to habeas when they were locked up without access to a lawyer, without access to a telephone?”

Some detainees “did file habeas petitions” and “were largely released before the claims could be adjudicated,” Gershengorn said.

But Meeropol said those petitions challenged the right to detain the immigrants, not the conditions of their confinement.

It’s “still not clear today that one can use a habeas petition to challenge the conditions of confinement,” she said.

Breyer, Japanese Internment Example

Breyer used the United States’ internment of Japanese Americans during World War II as an example of how a Bivens remedy might be more effective than habeas relief.

If an interned individual tried to pursue a habeas remedy, one “could understand how, in January of 1942, it would be pretty tough for a judge in a district court to start second-guessing people,” he said.

“But several years later,” it might become clear that “there was no justification whatsoever” for the internment, Breyer said.

Where “a big mistake was made,” a Bivens remedy allows “the possibility of compensation later,” he said.

Beware “of cutting off Bivens, you never know what will happen,” Breyer said.

Injunctive Relief

Roberts said injunctive relief would also be a better remedy, “at least at first blush,” than bringing “individual damages actions against officials responsible.”

Gershengorn argued that “injunctive relief has long been recognized as the proper means” for changing an entity’s policy.

“That makes good sense” because it can’t “be that the secretary of the treasury, who promulgates a policy that’s later found unconstitutional, could be liable personally to all the banks for the unconstitutional policy,” Gershengorn said.

But Meeropol said injunctive relief can only stop “current unconstitutional conduct” and doesn’t “deter future unconstitutional conduct from occurring.”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

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

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