Shirin Sinnar is an associate professor at Stanford Law School. She co-authored an amicus brief in Ziglar v. Abbasi.
At various moments, President-elect Donald Trump has pledged to torture terrorism suspects, ban Muslims from entering the country, banish more prisoners to Guantanamo Bay and round up millions of undocumented immigrants. The Obama administration opposes all of these policies and has taken some steps to make it harder for Trump to achieve them. Yet two days before Trump’s inauguration, President Obama’s Justice Department will argue to the Supreme Court that victims of federal policies related to immigration and national security should not be able to sue government officials for damages — even if those policies were clearly unconstitutional. In the final case of the Obama administration, lawyers for a president avowedly committed to the rule of law will empower a successor threatening to demolish it.
The case, Ziglar v. Abbasi, arises out of the roundup of hundreds of immigrants in the months following the Sept. 11, 2001, attacks. Federal officials arrested more than 750 men from South Asian and Middle Eastern countries, often based on nothing more than vague tips from members of the public reporting “suspicious Arabs” in their neighborhoods. One man came to the FBI’s attention when his landlord called to say that she would “feel awful” if her Middle Eastern tenants were involved in terrorism and she hadn’t called. Another immigrant was detained after someone reported that the grocery store where he and other Middle Eastern men worked employed “too many people to run a small store.”
After an independent investigation into these detentions, the Justice Department inspector general rebuked government officials for the “indiscriminate and haphazard” manner in which they classified immigrants as terrorism suspects. It also found that many of these men languished in a maximum-security prison for months in highly restrictive conditions, while prison guards routinely assaulted them. Ultimately, though many had violated immigration laws, none of the detainees were found to have any connection to the Sept. 11 attacks, and none stand convicted of terrorism.
In 2002, a group of these former detainees sued then-Attorney General John D. Ashcroft, then-FBI Director Robert Mueller and other officials, accusing them of treating them as terrorism suspects purely because of their race or religion, and of confining them under unreasonably harsh conditions. Nearly 15 years have passed since they filed suit, yet they still have not had a chance to prove their claims. Instead, the Obama Justice Department argues that these men should not be able to sue government officials for money damages at all, even if they have no other way of challenging their treatment.
The Supreme Court has explicitly allowed lawsuits seeking damages from federal officials for constitutional violations (known as “Biven suits”) in several contexts, including for violations of Fourth Amendment rights, for discrimination claims under the equal protection clause and for claims against prison officials for “cruel and unusual punishment” violations. But it has refused to allow such lawsuits in certain other contexts, and the scope of Bivens claims has long been unclear. Now, Obama’s lawyers are asking the court to disallow these suits altogether where individuals are challenging policy decisions at the intersection of immigration and national security, even if they have no other remedies for the constitutional violations they experienced.
If the Supreme Court agrees, not only would these detainees lose any opportunity to prove their claims, but so, too, would many future victims of human rights violations. Trump has virtually promised to enact unconstitutional policies affecting immigrants and citizens. While individuals might challenge some of these policies in court through other means, a suit for damages is sometimes the only opportunity they will have — and thus, an essential mechanism for deterring government officials from violating the law. No one should be above the law. Whether an individual prison guard or a high-ranking official orders the torture of a prisoner or the murder of a prisoner’s family — as Trump has advocated — neither should be beyond the reach of the Constitution and our courts.
Some have argued that Obama paved the way for Trump to abuse unilateral powers long ago by targeting U.S. citizens for assassination, trying foreigners in military courts and continuing the indefinite detention of terrorism suspects. Yet when Obama made these troubling decisions, administration officials could at least tell themselves, rightly or wrongly, that the president would use these powers with restraint. But Trump’s election laid bare the dangers of pretending that the executive branch can adequately police itself.
Or at least it should have. Apparently oblivious to the impending threat, the Obama administration’s top lawyers will march up the steps of the Supreme Court on Jan. 18 and ask the justices to gut one of the few remaining checks on executive overreach. While Washington swells with crowds preparing for the inauguration of a president hostile to human rights and the rule of law, Obama’s lawyers will ask our nation’s highest court to further shield his national security policies from the reach of our courts. History will not judge kindly this final act of the Obama presidency.