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.