Can Post-9/11 Detainees Sue Federal Officials for Constitutional Violations?

Steven D. Schwinn, John Marshall Law School

The Supreme Court will hear oral arguments tomorrow in Ziglar v. Abbasi, the case testing whether post-9/11 detainees can sue federal officials for constitutional violations. In particular, the case asks (1) whether the plaintiffs have a Bivens claim, (2) whether the federal defendants enjoy qualified immunity, and (3) whether the plaintiffs sufficiently pleaded their case for direct liability.

Here's my preview, reprinted with permission from the ABA Preview of United States Supreme Court Cases:

FACTS

Soon after the 9/11 attacks, the FBI and other agencies in the Department of Justice initiated an investigation aimed at identifying the 9/11 perpetrators and preventing another attack. The investigative unit, PENTTBOM, the Pentagon/Twin Towers Bombing investigation, was initially run out of the FBI’s field offices, but moved to the FBI’s Strategic Information and Operations Center, or SIOC, at FBI Headquarters in Washington, D.C. FBI Director Robert Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI field offices.

As part of DOJ’s response to the attacks, officials, including Attorney General John Ashcroft and Mueller, developed policies on the arrest and detention of alien suspects based on tips that the FBI received from the public. As part of the policies, according to the plaintiffs’ complaint, “any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation . . . and discovered to be a non-citizen who had violated the terms of his visa, was arrested.” Ashcroft also created the “hold-until-cleared” policy, which required that individuals arrested in the investigation would not be released from custody until FBI Headquarters affirmatively cleared them of ties to terrorism.

In order to coordinate efforts among the various agencies within DOJ that had an interest in, or responsibility for, detainees, the Deputy Attorney General’s Office (DAG) established the SIOC Working Group. The Group included representatives from the FBI, the INS, and the DAG. The group met at least once a day in the months following the 9/11 attacks. Its responsibilities included “coordinat[ing] information and evidence sharing among the FBI, INS, and U.S. Attorneys’ offices” and “ensur[ing] that aliens detained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of involvement with the September 11 attacks or terrorism in general.”

The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the investigation and the effort to prevent additional attacks. It received about 96,000 tips in the week after the 9/11 attacks alone. (Many of these, including the tips on some of the plaintiffs in this case, were astonishingly weak or unreliable or had nothing to do with terrorism.)

The INS maintained a national list of aliens in which the FBI had “an interest.” Separately, the New York FBI created its own list of individuals that were “of interest” or “special interest.” (The New York effort differed from similar efforts in the rest of the country at least in part because of the New York FBI’s and U.S. Attorney’s Office’s long tradition of independence from their headquarters in Washington, D.C. For at least some number of individuals on the New York list, arresting officers failed to conduct the same vetting that detainees on the INS list received.) FBI Headquarters learned of the New York list in October 2001, and officials eventually merged the two lists. Ultimately, 762 detainees, including the plaintiffs, were placed on the INS Custody List and were subject to the hold-until-cleared policy. (491 of these detainees were arrested in New York, but it is not clear how many of those were arrested as a result of the efforts of the New York FBI.)

(For more on the identification, arrest, detention, and treatment of individuals in the post-9/11 investigation, see the DOJ’s Office of Inspector General Report, A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (April 2003), available at https://oig.justice.gov/special/0306/full.pdf.)

The plaintiffs were held at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Under the MDC confinement policy, created by MDC officials in consultation with the FBI, these plaintiffs were placed in the MDC’s Administrative Maximum Special Housing Unit (ADMAX SHU), a particularly restrictive unit within the Center. Conditions in the ADMAX SHU were severe. For example, detainees, including the plaintiffs, were placed in small cells for over 23 hours a day, they were strip-searched whenever they were removed from or returned to their cells, they received “meager and barely edible” food, they were denied sleep, and they were denied basic hygiene items, among other problems. MDC staff also physically and verbally abused the plaintiffs. (The conditions are described in greater detail in the lower court opinion and in the plaintiffs’ briefs. For yet more on the conditions at the MDC, see the DOJ’s Office of Inspector General Report, Supplemental Report on September 11 Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003), available at http://www.justice.gov/oig/special/0312/final.pdf. ) The plaintiffs were held from three to eight months.

The plaintiffs filed a putative class-action lawsuit against Ashcroft, Mueller, former Commissioner of the INS James Ziglar, former MDC Warden Dennis Hasty, former MDC Warden Michael Zenk, and former MDC Associate Warden James Sherman, alleging that they discriminated against them and mistreated them in violation of the Constitution. They also alleged a conspiracy to violate their civil rights. (There are eight plaintiffs now in the case. It has not been certified as a class action.) The district court dismissed all the claims against the DOJ defendants and some (but not all) of the claims against the MDC defendants. The United States Court of Appeals for the Second Circuit reversed in part and ruled that many of the claims against all of the defendants could move forward. This appeal followed. (The defendants appealed in three separate petitions, but the Court consolidated them into a single appeal. Ashcroft and Mueller are represented by the Solicitor General; Ziglar is represented by private counsel; Hasty and Sherman are represented by different private counsel.)

CASE ANALYSIS

The case involves three discrete issues. Let’s take them one at a time. (The various defendants make largely the same arguments on each point below. But where they make different arguments, this summary distinguishes between the arguments of the FBI defendants and those of the MDC defendants.)

Can the plaintiffs bring a federal civil rights action?

Civil rights in the U.S. Constitution are not self-executing. This means that Congress has to enact legislation in order for individuals to enforce them in the courts. Congress has not enacted such legislation for civil rights claims against federal officials. But the Supreme Court has recognized an implied right of action against federal officials in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971).

Bivens is a quite limited remedy, however. The Court has recognized Bivens actions only in certain contexts (including, as relevant here, a case where a prisoner challenges the conditions of his or her confinement). And the Court will not extend a Bivens claim to new contexts when “special factors counsel hesitation,” that is, when circumstances suggest that Congress, and not the courts, should decide whether an action is appropriate.

The defendants argue that the plaintiffs’ case presents a new context, and that special factors counsel against a Bivens remedy. The defendants say that the context here is the executive branch’s response to an “unprecedented terrorist attack and the detention of foreign nationals illegally in the United States.” They claim that the plaintiffs seek to challenge high-level policy decisions on national security and immigration—new contexts for Bivens. Moreover, they claim that the case implicates the correctness of FBI terrorist designations and federal law enforcement lines of authority and chains of command, in addition to the DOJ’s response to a national-security threat and its implementation of the nation’s immigration laws. They contend that these are all special factors that counsel against extending a Bivens remedy to this new context.

The plaintiffs counter that their case falls squarely within a recognized Bivens context, prisoner challenges to conditions of confinement. But even if their case presents a new context, the plaintiffs argue that a Bivens remedy is appropriate. They say that their claims have nothing to do with national security or immigration enforcement (some of the special factors that the defendants raise that, they say, counsel against a Bivens remedy), and that the interests in deterring federal officials from violating constitutional rights and compensating victims cut in favor of a Bivens remedy. The plaintiffs assert that these points are especially true against the MDC defendants (even if not against the DOJ defendants), because the MDC officials were directly responsible for their conditions of confinement.

Qualified Immunity

The doctrine of qualified immunity protects government officials from civil liability for alleged constitutional harms, so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” In determining whether a right is “clearly established,” the Court looks to “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194 (2001). The inquiry necessarily looks to Supreme Court rulings on the right in question at the time of the officer’s actions.

The defendants argue that they are entitled to qualified immunity, given the special situation in which they operated. The FBI defendants claim that the plaintiffs did not have a “clearly established right to be immediately released from restrictive confinement” when the federal officials learned that “in some instances, arresting officers had failed to conduct the same initial vetting that other September 11 detainees received.” They contend that applying the hold-until-cleared policy was not clearly “so arbitrary as to constitute an impermissibly punitive or impermissibly discriminatory act.” The MDC defendants assert that they were simply implementing FBI and BOP policies in holding the plaintiffs, and that no clearly established law required them to “impos[e] less restrictive conditions [of confinement] based on their own subjective assessment of the [plaintiffs’] terrorism connections.” They claim that the strip-searches did not violate clearly established Fourth Amendment law, because they were reasonably related to prison security.

The plaintiffs argue that the defendants are not entitled to qualified immunity. As to the FBI defendants, the plaintiffs claim that at the time of their arrests and detentions, precedent clearly established that officials could not detain individuals arbitrarily and without a purpose reasonably related to a legitimate government interest. They also say that precedent clearly established that officials could not single out individuals for arrest and detention based on race, religion, or ethnicity. As to the MDC defendants, the plaintiffs contend that placing individuals in restrictive detention without individualized justification violates Bureau of Prisons policy and clearly established law at the time of the detention.

Pleading Standards

While this case was moving through the lower courts, the Supreme Court clarified and heightened the pleading standard that a plaintiff must satisfy in a civil rights case. In particular, the Court ruled that a complaint must “state a claim to relief that is plausible on its face.” This means “more than a sheer possibility that a defendant has acted unlawfully,” or that the alleged facts are “merely consistent with a defendant’s liability.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). Moreover, a plaintiff’s Bivens claim cannot move forward based on supervisory (or vicarious) liability; instead, a plaintiff must plead that a defendant is directly liability for the unconstitutional conduct.

The defendants argue that the plaintiffs have failed to meet the Iqbal standards. The DOJ defendants point to Iqbal itself and contend that the Court in that case refused to credit similar assertions against the hold-until-cleared policy. They also say that the plaintiffs failed to plead that the DOJ defendants’ decision to merge the New York list and the INS list was based on discrimination, instead of a valid concern that “the FBI could unwittingly permit a dangerous individual to leave the United States.” The MDC defendants claim that they were simply implementing FBI and BOP policies, not acting to discriminate or treat detainees arbitrarily. They also say that they were not personally responsible for certain abuses within the MDC (like strip-searching), because they did not create or approve or even know about those abuses.

The plaintiffs counter that they have met the Iqbal standards against all the defendants. As to the DOJ defendants, the plaintiffs contend that their complaint included sufficiently detailed factual allegations that the DOJ defendants established policies to target Muslim men of Arab and South Asian descent and to hold such men in isolation and to treat them harshly. As to the MDC defendants, they assert that their complaint plausibly claimed that the MDC defendants were deliberately indifferent, and even willfully blind, to the abuse against them. They also say that the MDC defendants failed to correct the abuse when they learned of it.

SIGNIFICANCE

This is an incredibly important case that tests the boundaries of civil rights claims against individual federal officials for designing and implementing policies on the identification, arrest, detention, and treatment of individuals in the investigations into the 9/11 attacks. In other words, it tests when and how federal officials might be personally liable for civil damages arising out of these hotly disputed events and extremely challenging times for both law enforcement and targeted Muslims and Arabs alike.

But it’s important to remember that this case only touches on threshold defenses, and not on the underlying merits. The Court won’t examine whether the defendants actually violated the plaintiffs’ rights, except to the extent necessary to determine whether the claims arise in new context, whether the defendants are entitled to qualified immunity, and whether the plaintiffs sufficiently pleaded their case. (Moreover, the Court will almost surely say nothing about the merits of the underlying policies in investigating or preventing terrorist attacks.)

At the same time, however, these threshold defenses are very important. They operate as gate-keepers to the courts for any plaintiffs who seek to bring civil rights claims against federal officials. As such, they largely control whether a plaintiff has a remedy in the federal courts for a federal violation of civil rights. (And for many federal-civil-rights plaintiffs, the federal courts provide their only remedy.) How the Court rules on these defenses will determine whether plaintiffs have access to a federal judicial remedy in this case, and beyond.

When the Roberts Court has ruled on issues like those in this case, it has fairly consistently restricted access to the courts (and not expanded it). But this case involves three different threshold issues with two (or more) sets of differently situated defendants, so it gives the Court a unique opportunity to more carefully explore the particular metes and bounds of these doctrines.

The Court will be particularly short-staffed in this case. That’s because Justices Sotomayor and Kagan are recused. If the Court divides along conventional ideological lines, three justices (Chief Justice Roberts and Justices Thomas and Alito) will likely rule in favor of the defendants, and two (Justices Ginsburg and Breyer) will likely rule in favor of the plaintiffs. Justice Kennedy could join the conservatives to hand the defendants a win, or he could join the progressives to create a tie. If so, the Second Circuit ruling will stand, although it will have no nationwide precedential value. Given the number of issues and differently situated defendants, however, it is also possible that the Court could issue a more nuanced ruling.