CURBING REMEDIES FOR OFFICIAL WRONGS: THE NEED FOR BIVENS SUITS IN NATIONAL SECURITY CASES.

AuthorMargulies, Peter
PositionSymposium on the Seventy-Fifth Anniversary Year of Executive Order 9066

INTRODUCTION I. HISTORY AND FOUNDING ERA II. ABBASI AND THE STORY OF THE POST-9/11 IMMIGRATION ROUNDUP A. Immigration, Detention, and National Security B. Retrenching on Remedies: The Court's Decision in Ziglar v. Abbasi III. CRITIQUING ABBASI'S ANTI-REMEDY PRESUMPTION A. The Difference Between Constitutional and Statutory Claims B. Misplacing Damages in the Hierarchy of Remedies C. Misconstruing Congressional Silence D. The Novelty Test and Moral Hazard Versus Sound Judgment on National Security Issues CONCLUSION INTRODUCTION

The Japanese-American internment litigation (1) demonstrated the difficulty of holding the government accountable for overreaching in national security cases. While some have argued that post-9/11 decisions break with that trend, (2) the Supreme Court has severely limited suits for damages against senior officials. (3) In Ziglar v. Abbasi, (4) the Supreme Court erected virtually impassable barriers to such actions, in a case brought by post-9/11 immigration detainees whom senior officials had shifted to a high-security facility in the absence of any proof of terrorist ties. (5) As a result, the detainees had allegedly been subjected to unduly long periods of detention and serious physical abuse. (6) This Article argues that the Court's parsimonious approach to damage suits against senior officials will hinder habits of deliberation that the Framers prized and impede learning the lessons of the internment.

The constitutional tort remedies that the Supreme Court hobbled in Abbasi stem from a Warren Court precedent, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (7) in which the Court held that the Constitution itself directly implied the existence of a cause of action for damages against federal officials. (8) Bivens was the contemporary manifestation of two lines of precedent that pre-dated the Constitution's enactment. English cases well-known to the Framers allowed suits for damages against officials by individuals harmed by abusive government searches. (9) During the Founding Era, individuals obtained monetary compensation against officials in prize cases. (10) In addition, the Framers drafted Article III of the Constitution specifically to provide the newly created federal courts with jurisdiction over suits for damages and other relief brought by foreign nationals. (11) Admittedly, the Framers viewed federal jurisdiction over such actions as a corrective measure for the biases of state courts. (12) Nevertheless, the concerns of the Framers--particularly Alexander Hamilton--support a broader reading: remedies are apt whenever precipitous action by government officials stokes the "spirit of injustice" at the state or federal level. (13)

Writing for the Court in Abbasi, Justice Kennedy failed to acknowledge either precedential strand. Justice Kennedy's opinion limited Bivens claims to three areas carved out in the decade after Bivens: searches by federal agents in criminal investigations, prison conditions, and employment discrimination in violation of the Equal Protection Clause. (14) In "new" contexts that moved beyond these confines, Justice Kennedy opined that the "factors counselling hesitation" alluded to by the Bivens Court precluded access to remedies for constitutional torts. (15) According to Justice Kennedy, suits for damages could unduly chill officials' sense of initiative (16) and usurp a function that Kennedy asserted belonged to Congress: balancing the deterrence of constitutional violations against the preservation of officials' discretion in coping with evolving national security threats. (17)

To shift to an anti-remedy default stance, Justice Kennedy had to ignore the Founding Era pedigree of suits for damages against public officials and the constitutional role of suits by foreign nationals. Justice Kennedy's opinion also failed to acknowledge Hamilton's praise of judicial review as a check against the haste, myopia, and prejudice of the political branches--praise that also applies to Bivens actions. This Article seeks to recover that understanding to counter the deference the Court displayed in Abbasi.

The Article is divided into three parts. Part I discusses the history of suits for damages against U.S. officials as well as the constitutional importance of federal jurisdiction over actions by foreign nationals. This history, supported by Hamilton's vision of judicial review, installed a pro-remedy presumption regarding actions for monetary relief against public officials. Part II outlines the Abbasi Court's rationale for shifting from a pro-remedy presumption to an anti-remedy default that brought a "full stop" to Bivens actions development. Part III critiques the Abbasi Court's pivot as unduly discounting history and Hamilton's vision.

  1. HISTORY AND FOUNDING ERA

    Suits for damages against public officials are not a new development in American law. (18) Their pedigree stretches back to England in the era before the Revolutionary War. From that beginning, the history of suits for damages or other monetary compensation against officials extends to state and federal systems from the Founding Era to the Civil War and beyond. That history overlaps within an equally prominent commitment at the time of the Constitution's enactment to conferring jurisdiction on the federal courts to hear suits for damages and other relief brought by aggrieved foreign nationals. (19)

    In England, courts before the Revolution had clearly established the right of individuals to sue officials for unreasonable searches and seizures. (20) In groundbreaking English cases, courts awarded damages for abuses committed by officials engaged in searches and seizures, including searches authorized by uncabined general warrants that allowed officials to search homes for evidence of political opposition to the government. The Framers were aware of these prominent English cases, which formed part of the backdrop for enactment of the Fourth Amendment. (21) The latter provision's protection of "the people" against "unreasonable searches and seizures" (22) borrowed in part from the English cases upholding suits for damages against errant or abusive government officials. Indeed, a key reason for seeking a specific warrant to search a home or other property for evidence of crime was the utility of such a warrant as a defense against a subsequent suit for damages brought by the owner of the property. (23)

    Payment of monetary compensation was also well-known during the U.S. Founding Era. In prize cases, for example, courts regularly required that captains who had wrongfully seized vessels provide compensation to the vessel's rightful owner. This practice occurred in two celebrated cases. In Little v. Barreme, (24) Chief Justice John Marshall, in his opinion for the Court, overcame his initial hesitation in requiring that a U.S. navy captain pay compensation to the owner of a ship seized in violation of a federal statute. (25) In Murray v. The Schooner Charming Betsy, (26) the Court ordered a U.S. navy commander to pay for seizing a vessel owned by a foreign national not subject to provisions of U.S. neutrality law that limited trade with France. (27)

    During this time, officials under an obligation to provide such compensation regularly received indemnification from Congress. (28) Indemnification, which often occurs today along with funding for legal representation, held the official harmless for any adverse award. Officials' knowledge that indemnification would be forthcoming mitigated any chilling effect wrought by the prospect of liability on officials' discharge of public duties. Congress typically opted for this regime of judicial redress and subsequent indemnification as a superior alternative to immunity from suit, which Congress doled out sparingly. (29)

    Other early cases tell the same tale. For example, in one case a court authorized the award of monetary damages against a collector of an illegal fine who had entered the defendant's home and seized property to pay a fine. (30) State courts regularly considered suits for damages against both state and federal officials. (31) Through the Civil War, individuals sued officials alleging torts both constitutional and common-law in nature. (32) Congress enacted legislation intended to provide officials with protection from liability. (33)

    In sum, in English courts and U.S. courts from the Founding Era through the aftermath of the Civil War, the courts' default position favored the availability of suits for damages against public officials. Specific legislation from Congress could either immunize or indemnify those officials. However, absent such express congressional action, courts would routinely entertain lawsuits against official defendants. (34)

    Justice Kennedy's concern in Abbasi with the novel nature of certain suits for damages by foreign nationals should not obscure the fact that Framers viewed openness to those lawsuits as a key rationale for the Constitution's enactment. While the Articles of Confederation were in force, private violence was common against foreign nationals, particularly British subjects. (35) United States citizens who were indignant about British ownership of property in the post-Revolution republic often resorted to self-help, taking property when it suited them. Under the international law of the period, the failure to redress such wrongs constituted just cause for war waged by the country whose citizens were deprived of remedies. In drafting the Constitution, the Framers authorized Congress to "define and punish ... Offences against the Law of Nations." (36) Pursuant to the Define and Punish Clause, Congress passed legislation, including the Alien Tort Statute ("ATS"), which gave a remedy to foreign nationals injured by torts committed in violation of international law. (37) In addition, in Article III of the Constitution, the Framers expressly conferred on the federal courts jurisdiction to hear...

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