The Third Branch Takes on Torture; Why They’ll Fail

Oops, forgot to publish.

As an alternative to the possiblity of reparations, or truth & reconciliation for victims of torture or unnecessary detention, lawyers from my own favorite law school, with the ACLU, have sued John Ashcroft in the name of one man, Abdullah Al-Kidd, seeking damages for his illegal and inexplicable detention. They’ve met with a measure of success, winning at the Ninth Circuit in a particularly ringing opinion (pdf), but the Supreme Court just took certiorari, and that’s bad. Here’s why.

 Al-Kidd’s case is premised on the ancient Bivens doctrine. Under basic constitutional law, the theory goes, grants of particular rights confer a right, but not (of their own force) a remedy. The Fourth Amendment says what the police can’t do, e.g., and while you can win the suppression of evidence on that basis alone as a matter of equity, `you can’t obtain legal relief. That is, money. To gain some form of relief not directly tailored to the enforcement of the right, you would need a private right of action, something that courts won’t presume, and Congress hasn’t authored.

(I do not address 42 U.S.C. § 1983. )

Bivens modifies this rule by finding particular constitutional rights “self-executing.” In other words, if someone violates your constitutional right, the document itself implies a remedy to make you whole, not just by letting you raise the right against some illegal act, but by permitting you to penalize the party that violated it in the first place. In the original Bivens case, the plaintiff was illegally searched. He won suppression of the evidence, and money.

This is essentially what Al-Kidd has requested, and what the Ninth Circuit gave him. As a matter of policy, it’s also a fairly elegant solution to the problem of illegal detention. The recourse for such crimes, since the Magna Carta, has always been the courts; it avoids the messy political process; and vindicates a vital right that the majority is, for whatever reason, disinclined to grant. Simply put, this is why we have courts.

Nonetheless, Mr. Al-Kidd should brace for a loss. Because a rigorously textual reading of the Constitution will necessarily fail to find an implied right of action, implied rights whether constitutional or statutory (with the exception of Rule 10b-5 and associated securities law remedies) have more or less died a silent death under the ascendancy of Justice Scalia.

Of course, this problem cries out for an answer. An honest Congress, though certainly not the one we’ll be left with after January 2010, would draft a statue explicitly permitting wronged parties to claim against government agents, and waive all immunities, whether sovereign or qualified, to ensure that America takes a first step to restoring her image as a nation that respects human rights, or at least makes up for them given time. In years to come, we will profoundly regret this error. But there’s no need to wait for then to start making up for it.

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5 comments

  1. Ames, come on. WHAT about this Democratically-controlled Congress makes you think that they would draft and pass such a bill? They aren’t letting anyone seek justice from AT&T et al, you think they’re going to do so with any little bit ofthe United States Government in the cross-hairs?

  2. Yeah, I don’t think it’s likely. Which is too bad.

    But AT&T didn’t exactly do anything wrong, you know. If the government orders you to do something, and it’s illegal, it’s a hard case for a plaintiff to win, even without immunity. Look at the grant of immunity as just saving everyone a lot of time.

    1. And hiding all manner of sins. AT&T, and its national scale fellow corporations, have the means to withstand illegal government orders. Heck, we told German soldiers they had the individual means to withstand Hitler’s orders when we tried them at Nuremburg. AT&T chose not to resist those unlawful acts, and so should have been forced to stand trial in civil court.

      What Democrats did in immunizing them retroactively was place the color of authority on to them for no good reason other then to cover the illegal nature of the initial request. That’s hooey in my book – and yet another reason why I thinK Democrats deserve the butt whooping they may get.

    2. Technically, I don’t think they deserve it. Because it’s not the reason they’re getting said “butt whopping”. Voters apparently don’t care about these issues. So I can’t see their loss as a referendum on this issue.

      1. Oh I think Democrats deserve it. They have allowed the President to back away from nearly all his major civil rights related campaign promises; passed watered-down, industry friendly health reform and finance reform; and continue to fund wars off-book that are dragging our nation to slow economic ruin. And when they do have a success – like TARP, or the appointment of Elizabeth Warren as a consumer watch dog, they immediately run away from that success as if it were toxic sludge in Hungry. Democrats have become spineless, and leave those of us on America’s political left with a mixture of confusion, resigned indignance, and utter frustration.

        but I digress . . . .

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