Democracy in America | No relief

A new front in the legal fight over Donald Trump’s travel ban

But Ziglar v Abbasi may not be as useful to the Department of Justice as it thinks

By S.M. | NEW YORK

AMERICA awaits word from one more court in Trump v International Refugee Assistance Project and Trump v State of Hawaii—cases challenging the president’s entry ban from six Muslim-majority countries. The travel restrictions were blocked by federal judges in mid-March, and the Fourth and Ninth Circuit Courts of Appeals refused to lift those stays in May and June, respectively. Days before their summer recess is set to begin, the nine justices of the Supreme Court are poised to weigh in on Mr Trump’s executive order. They will decide any day whether to hear the cases in the autumn (or, less likely, over the summer) and whether to let the ban take effect in the meantime.

As the justices reckon with the limits of presidential power, a sleeper ruling on June 19th—also involving government animus toward Muslims—throws an unexpected wrench in the works. The case, Ziglar v Abbasi, is a relic from the George W. Bush administration. It addresses the ugly aftermath of the attacks on September 11th, 2001 in which law-enforcement authorities, acting on nearly 100,000 calls into an FBI tip line, rounded up hundreds of Muslim men only to detain and mistreat them. In their brief to the justices, the plaintiffs’ lawyers wrote that their clients were “held in solitary confinement in a super-maximum security wing of a federal prison, where for months they faced uniquely harsh restrictions, harassment and abuse”.

Like Mr Trump’s travel ban—which applies wholesale to 180m people from six countries—this “treatment was not based on any individualised suspicion that [the men] were dangerous or had committed any crime, let alone had some connection to terrorism”. Instead, the government’s actions were based on “a policy, crafted at the highest levels of government, to treat harshly Muslim non-citizens of Arab and South Asian descent, based on the false and pernicious assumption that individuals with those characteristics might have some connection to terrorism”.

In his 4-2 decision for a two-thirds-strong Supreme Court (Elena Kagan and Sonia Sotomayor were recused, and Neil Gorsuch was not yet in his seat), Justice Anthony Kennedy denied the detainees’ wish to sue federal officials for this treatment. Justice Kennedy did not contest that hundreds of innocent Muslim men were grabbed in this dragnet. Nor did he deny that they were subjected to harsh treatment. The men were held in solitary confinement for 23 hours a day, Justice Kennedy recounted. They were humiliated and beaten by guards, denied basic hygiene and repeatedly strip-searched. The episode, he wrote, was “tragic” and violated the detainees' “dignity and well-being”.

So why did Justice Kennedy, joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, turn a cold shoulder to the men’s legal challenge? The Fourth Amendment, after all, protects prisoners from unjustified searches; the Fifth Amendment shields them from unequal treatment based on their religion or nationality and from punitive pre-trial treatment and abuse. The answer is achingly technical, and boils down to this. In Bivens v Six Unknown Federal Narcotics Agents, a 1971 case, the Supreme Court permitted individuals to sue federal officials for violating their Fourth Amendment rights. But since then, the justices have rarely extended Bivens to other constitutional claims, preferring to let Congress decide when lawsuits should be allowed against executive branch officials.

Justice Stephen Breyer, in a dissent joined by Justice Ruth Bader Ginsburg, ramped up his usual technocratic tone to inveigh against the majority opinion. He wrote that constitutional wrongs generally demand legal remedies: when people are mistreated, the law doesn’t allow them to be hung up to dry. And this principle holds during times of grave threat to the nation’s security—as in the aftermath of the terrorist attacks of 2001—as much as it does during peaceful periods. “History tells us of far too many instances where the executive or legislative branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights”, Justice Breyer wrote, citing the the Alien and Sedition Acts, civilian imprisonment during the civil war, and hysteria about Japanese Americans after the bombing of Pearl Harbour.

The Department of Justice (DOJ) jumped on the majority opinion in Abbasi to support its case for the legality of Donald Trump’s travel ban in its June 21st brief: “[A]s this court reiterated only days ago, ‘[n]ational-security policy is the prerogative of the Congress and president’, and ‘[j]udicial inquiry into the national-security realm raises concerns for the separation of powers in trenching on matters committed to the other branches’”. The Supreme Court should, in line with Abbasi, give “deference to what the executive branch has determined is essential to national security”.

Does Abbasi really serve the president’s case for the travel ban? The language quoted in the previous paragraph seems to give the DOJ a very recent reiteration of the Supreme Court’s typical deference to presidents in national-security matters. But there are two caveats. First, the context is different: America has not just suffered the worst terrorist attack in its history. In Abbasi, Justice Kennedy makes much of the “great peril” America faced in the aftermath of the attacks on the World Trade Centre and the Pentagon. During such dangerous times, he wrote, officials must be freed “to make the lawful decisions necessary to protect the nation”. The world is in some turmoil in 2017, but it is hard to argue that American peril is as pronounced as it was 16 years ago. The second caveat has to do with the precise relief Justice Kennedy denies to the detainees: money damages against the likes of John Ashcroft, Mr Bush’s attorney general. There are no questions of money claims in the travel ban cases; the relief plaintiffs have been seeking is a judicial injunction against the executive order. That remedy, Justice Kennedy wrote in Abbasi, is the right path.

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