Amicus on Ziglar v. Abbasi and Lee v. Tam.

Can Noncitizens Sue Government Officials for Constitutional Violations?

Can Noncitizens Sue Government Officials for Constitutional Violations?

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Jan. 25 2017 1:57 PM

Can Noncitizens Sue Government Officials for Constitutional Violations?

Read what Slate’s Amicus podcast had to say about Ziglar v. Abbasi.


This is a transcript of Episode 58 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court and the law. I’m Dahlia Lithwick. I cover the courts for Slate.

This will be the first Amicus podcast that takes place post-inauguration, which means that you, me, and everyone else now live in the President Donald Trump era. Among the many things that that implicates are Jeff Sessions and his bid to be the U.S. attorney general, a nomination that is now pending in the Senate. For those of you who weren’t in the room for his testimony, let me just note that Sessions, among other things, said that in his view, lawyers who are secular or not religious are going to have a harder time grasping what he calls “truth.” Let’s sit with that for a minute, and let’s think about the fact that Donald Trump has said he’ll announce his nominee to the U.S. Supreme Court in the coming days.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

In addition to all of that, this week, the court heard several fascinating cases, and we’re going to discuss them on the show today. One of them had to do with the government’s searches and arrests and detentions of immigrants, including many Muslims in the days after 9/11. Then Attorney General John Ashcroft and other officials from the Bush administration are still trying to shut down a lawsuit over the way these men were treated. I should note that that treatment included strip searches, beatings, and other brutal abuses, some of which lasted months and months.

First, we turn to another case argued Wednesday at the high court posing this question: “What’s in a name?” Or “What’s in a band’s name?” Or maybe more aptly, “What’s not in a band’s name?” This is a case that pits a group called the Slants. This is the self-described, first and only all Asian American dance-rock band against the U.S. Patent and Trademark Office. The PTO refused in this case to issue the band a trademark for their band name, on the theory that the word slants actually disparages Asians. This dispute has been bouncing around for five years. It was argued before the high court this week.

Eagerly watching, and in fact participating in this dispute, by way of an amicus brief, is in fact the Washington football team. They’re involved in their own trademark dispute questioning whether the word redskins is disparaging. Joining us in the manner of all rock stars, from his car in Portland, Oregon, is Simon Tam, who is the bassist and founder of the Slants. Simon was at the court Wednesday, which I think is not one of his usual concert gig venues. Simon, welcome to the show.

Simon Tam: Hi, thanks so much for having me.

Lithwick: Simon, I wonder if you could just start by telling listeners about the genesis of your band, the Slants, and what you were thinking about when you picked this name?

Tam: I started the band. … The band idea, I should say, came to me about 2004. It was a very specific moment when I watching the film Kill Bill. There’s a scene where this woman named O-Ren Ishii walks into a restaurant with her gang of Crazy 88s, the Yakuza mafia that she led. For most people, it’s just another trademark Quentin Tarantino scene, like his main character is walking in, in a kind of a dramatic entrance. At the time, kind of like an epiphany for me, because I realized at that moment, it was the first time that I had ever seen Asian Americans depicted as cool, confident, and sexy onscreen by an American-produced film.

I started thinking about the lack of representation in other areas, especially in my own area of music, and how despite having over 17 million Asian Americans in this country, we had almost no representation in the entertainment industry. We never see them on the cover of Rolling Stone magazine. Our music videos weren’t being played on MTV back when they used to play music videos. I realized there was this absence and I wanted to create something that would celebrate our culture and kind of provide that representation. At the same time, I wanted to take down a lot of the false stereotypes about us.

I started asking friends, my white friends around, I said, “What’s something that you think all Asians have in common?” They almost always immediately said, “Slanted eyes.” I thought that’s really interesting. No. 1, it simply isn’t true. Not all Asian Americans have slanted eyes, and of course, Asians aren’t the only ethnic identities to have them. No. 2, we could talk about our slant on life and what it’s like to be people of color, while at the same time, using this outdated and obscure racial slur, and turning it on its head.

As a rock musician I thought, “Wow, this is something that Debbie Harry could front, a band called ‘the Slants.’ ” That ’80s new wave band name.

Lithwick: Simon, I think one of the cultural arguments undergirding this whole dispute—you’re having a very, very wonky trademark dispute—but one of the cultural arguments underneath it is this question about whether this kind of cultural reappropriation really works. Whether it’s rappers appropriating or reappropriating the N-word, or groups like Dykes on Bikes, or the magazine Heeb. This idea that this actually doesn’t achieve then end you’re seeking to achieve. All it does is make it OK to say something that is in fact disparaging.

Tam: Sure, and I completely understand that kind of concern. In the end, it’s simply just speculative. There’s no actual evidence of that. On the other side of things is every single sociological and psychological study ever done on the claiming of stigmatizing labels and words, and in every single study, you actually find that power shifts from the dominant group to the oppressed group and that it actually increases self-confidence and empowers that group. Even in a way where they get treated differently by the dominant group.

We can see how it has an effect if you go far enough back because this is a practice that’s actually been done for thousands of years. It’s not just only in recent history. The term Christian used to be a pejorative. Back in the day, Christians were persecuted; however, over time, it became one of the word’s biggest religions. Same thing with the term Mormons in the religious area. Mormons didn’t want to be called that. They wanted to be called Latter-day Saints. It’s only been in recent decades that they kind of shifted that position and took ownership of it.

You could see that again and again with other identities whether it be the term queer or kind of older phrases like guido. There have been numerous studies that have been done on it. What we see is that oftentimes it’s not necessarily accepted because it’s not a clean, easy to understand system. For me, that’s why it is so effective. It’s effective because it’s complex. Complex things oftentimes disrupt social norms.

Lithwick: Simon—I think this is the other sort of table-setting move I’m going to ask you to make—the administration, even the Obama administration, has actually had no problem with the band the Slants, and presumably the name of the band the Slants, in other contexts. This is, in some sense, a weird push me/pull you, where you’re in a fight with the Patent and Trademark Office on the one hand, but on the other hand, your message has actually been embraced in other parts of this administration, right?

Tam: That’s correct. Everyone from the Department of Defense to federal penitentiary systems to the White House Initiative on Asian Americans and Pacific Islanders have called us champions of the Asian American community and worked with us to put out an album, actually. In regards to the Trademark Office, I think they are genuinely concerned that registering trademarks that could be seen as disparaging, or revoking this kind of outdated law, will lead to this Pandora’s box of hate speech upon the world. Of course, they fear that those trademarks will be associated with the federal government.

Lithwick: Let’s use that to segway into the case itself. Let me see if I’ve got the facts straight. In 2011, the Patent and Trade Office, the PTO, rejected your trademark application because of a pretty obscure provision in the Lanham Act that prohibits the government from approving a trademark that contains “matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols.” This all begins when they do exactly what you just said. They said, “Listen, we don’t want to put the government’s imprimatur on something that disparages Asians.” Can you take us from there now?

Tam: Sure. Actually, the case begins a couple years before that. We’ve actually had two applications before the Patent and Trademark Office. For the government, they don’t actually take rejections lightly. It tends to be kind of this rubber stamp process where almost every registration gets approved, provided that they meet the basic kind of government criteria.

For the government, they say, “In order for us to reject it on these grounds, it has to be disparaging to a substantial composite of Asian Americans.” The problem is, they don’t actually define what “substantial composite” means. When we first began, we appealed using legal declarations or testimonies from members of the Asian American community. For example, executive directors from numerous social justice organizations. We had a couple of independent national surveys conducted, which showed that 92 to 98 percent of our community supported us, and dictionary experts, including one of the editors that the new American Oxford Dictionary, who did a extensive report showing how “slant” was pretty obscure to begin with as a racial slur, but over time had been used to create social change to the point where it’s now embraced as a term of self-empowerment.

All that lost. The Trademark Office instead supported their claim by using online dictionaries like, Wiki sites, and photographs of Miley Cyrus pulling her eyes back in a slant-eyed gesture, saying that those were evidence that social norms had not changed enough. Even though they had not found a single Asian American who would claim that it was disparaging, they believe that that was enough evidence to trump all the evidence provided from our community.

In 2011, when we went back again, our attorney suggested we actually change tactics. He said, “Well, you know, as long as you try and appeal saying, ‘We’re not offensive,’ you’re never going to win because no one who’s ever appealed has ever won in the 71 years that this law has been on the books.” Instead, we submitted what he called “an ethnic neutral application.” There was no imagery on there that could indicate we were Asian American. We didn’t say it was an Asian American band, it was just a band. The only thing kind of Asian about it was my Chinese name.

The thinking was, “slant” is not an inherent racial slur, unlike other things that are out there. It’s actually a neutral word with many different definitions. The government came back and rejected it again, copying and pasting all their previous responses. That’s when we asked them, “Well, hold on. If ‘slant’ is an inherent racial slur like you say it is, why have you registered it hundreds of times? This is the only case that’s been ever denied in trademark history, on the grounds of being disparaging to Asians. Why did you label ‘slant’ as a racial slur in this case, but not in other cases?”

The Trademark Office replied, “It is incontestable that the applicant is of Asian descent and part of an Asian band.” In other words, they said, “If this was a non-Asian band, this would not have been an issue,” or, more explicitly, anyone can register a trademark for “the Slants” as long as they’re not Asian. They said you have to look at the mark and its context and our racial identities as a live-music band provide the context for the word. In their opinion, having Asians use the term “the Slants” would make people automatically assume a racial slur and not any other definition that’s out there. That’s when we really revved it up and decided to fight.

Lithwick: Simon, let’s listen just for one second to Justice Anthony Kennedy asking your attorney in this case, John Connell, exactly the question you’ve just raised, what would be different if the band had been comprised of non-Asian members. Let’s have a listen.

Justice Kennedy: Suppose he had this hypothetical case. The facts are largely parallel to these, other than the band are non-Asians, they use makeup to exaggerate slanted eyes, and they make fun of Asians. Could the government under a properly drawn statute, decline to register that as a trademark in your view?
John Connell: They could not. First Amendment protects absolutely outrageous speech insofar as trademarks are concerned.
Kennedy: That is correct.

Lithwick: In addition to that, Simon, it seems to me that you had, I think, much of the court agreeing with the proposition that this is pretty classic viewpoint discrimination. Right? That this is simply saying that the government can disfavor some types of words when spoken by some people. Here’s Ruth Bader Ginsburg thinking about this question of the word Hebe and what happened when the Trademark Office both granted and didn’t grant trademarks around that.

Ruth Bader Ginsburg: The questions have concentrated on viewpoint discrimination, but there’s also a large concern with vagueness here, and the list that we have of things that were trademarked and things that weren’t. Take, for example, one had the word “Hebe,” and that was OK in one application, and it was not OK in another?

Lithwick: What’s the answer to this question of, you know, sometimes slant is OK, sometimes it isn’t. Sometimes Hebe is OK, sometimes it isn’t. Sometimes queer is OK, sometimes it isn’t. What’s the answer to that? Is the answer that there’s just no line here?

Tam: I don’t think the moral line in the sand, so to speak, should be drawn at trademark registrations. Obviously, I don’t support hate speech. I don’t want to support a racist football team or bands that are offensive. However, we have to understand that inconsistent law isn’t practical. Your kind of elephant in the room and the biggest criticism that people have about my case is that if we win, then pro football is going to have their trademark registration come back.

My reply is that we sometimes become so obsessed with punishing villainous characters, that we forget the collateral damage is actually experienced by marginalized groups, and we shouldn’t punish them for that. Dan Snyder made it explicitly clear that whether he has a trademark registration or not, he’s not going to change the name.

There are certainly other avenues to pursue changing the name, and I definitely agree with them. We should not support that team, however, we have different opinions of how to go about that change.

If we write our laws and design them around the most privileged members of society, i.e., billionaire football team owner, then we forget about the people who don’t have the same resources to make an appeal, to fight a wrongful accusation. Those tend to be members of the LGBT community and people of color because those are the people who tend to engage in the work of reappropriation to subvert discrimination. And yet those are the same ones being denied, based on their own identities.

Lithwick: Simon, the big argument on the other side, and I think we heard this, that argument from Justice Sonia Sotomayor, who’s incredibly sensitive to the sensibilities of minorities. She really said, “Look, call yourself whatever you want, but why does the government have to put its imprimatur, its blessing, on this name?” In other words, “We’re not keeping you from calling the band the Slants, we’re just saying the government doesn’t bless this.” Let’s listen to her for a moment.

Sonia Sotomayor: This is a bit different than most cases. No one’s stopping your client from calling itself “The Slants.” No one’s stopping them from advertising themselves that way or signing contracts that way or engaging in any activity, except that of stopping someone else from using the same trademark, but even that they could do because you don’t need a registered trademark to sue under the Lanham Acts entitlement for the confusion of a public in the use of any kind of registered or unregistered mark. If another band called themselves “Slants,” they would be subject to deceptive advertisement because they wouldn’t be this “Slants.”
There is a big difference. You are asking the government to endorse your name to the extent of protecting it in a way that it chooses not to.

Lithwick: Simon, what’s your response to that? What’s your response to, “Look, the government has a moral role to play in not blessing terms that may be derogatory?”

Tam: I would argue that it isn’t a blessing because if it truly is a blessing, then the government—if the government truly cared about fighting racism through the trademark regime, then they should have begun with cancelling trademark registrations for white supremacist groups. Not necessarily denying one for an anti-racist band. If the government truly cared about that, then there’s all manner of things that could be extrapolated from there. For example, does the government bless all the offensive pornographic companies that are out there? Do they truly embrace the other sports teams that depict human beings, Native Americans, as mascots? I wouldn’t believe so.

I understand it’s a concern, but when you compare it with things like the copyright regime, the copyrights receive government protection as well, and a blessing of sorts, but nobody truly believes that they are conveying some kind of government message.

Finally, the other thing I would argue is that not only does it burden a person to have this rejection, but it chills speech. We’ve had numerous business owners have to give up on their dreams and close up shop. I get contacted by bands all the time and small business owners who are accused of violating Section 2A of the Lanham Act, who have to either give up on their dreams or sometimes declare bankruptcy for investing so much money into their business because the government thinks it may disparage. Not that it actually disparages, but it may be disparaging.

An example would be a Japanese restaurant owner who contacted me because he had his trademark registration denied for the word Fuku, which is f-u-k-u, a Japanese word for joy. They said, “Well, it may look too much like an obscenity.” Of course, they had no qualms about approving the trademark registration for French Connection U.K., who always goes by “F-C-U-K.” Something that looks like the exact same obscenity.

Again, you have people who try to embody their own cultural heritage and being denied for doing so. That’s a really important thing to consider when we think about how we create laws. Laws shouldn’t just be about the quality. They should also be about equity and if they’re placing a social burden on marginalized groups, then those laws need to be reconsidered.

Lithwick: My last question to you, Simon, and I know you’re not an attorney, but there has been criticism of what you’re trying to do, especially from some other Asian American groups who say, “Look. Yes, what you’re doing in your case is really honorable, but you are flinging open the gates for the Washington Redskins and other groups and that in an attempt to do good for yourself and your band, you’re ignoring what it means to inject into the conversation—especially at a moment where there’s been a huge uptick in racially motivated hate crimes—injecting language into the conversation that are going to net out to be bad for minority groups.”

What’s your response?

Tam: I think that’s a false assumption. When I went about going about this trademark battle, I traveled to 34 different states to speak to over 140 social justice organizations, confederated tribes and tribal leaders, activists, and others, to really get their opinion and their advice about approaching this particular case and I had overwhelming support from almost all of them. In fact, the same group that opposes me, NAPABA, the National Asian Pacific American Bar Association, for five years supported my band and at their national convention told me that they had many fans there and that they planned on supporting me in my fight. Only to turn around a few months later to reverse that decision.

Again, those groups are afraid of the larger context of opening the can of worms because they’re afraid of the trademark registration thing regained by the football team. I would also argue the same thing that they often tell me. Whether or not I have a trademark registration, those hate groups are free to continue using hate speech. Nothing is going to change that but if we use trademark registration as a way to try and deter it, which we, number one, know it doesn’t work in doing so, then what ends up happening is, we’re chilling the speech in the social justice efforts of those trying to make a positive change for our society. To me, we should be more concerned about supporting those groups than we should be about punishing others for disagreeable speech.

Lithwick: Simon Tam is the bassist and founder of  the Slants. He’s also, I believe, the first rock star we’ve had on the show. Simon, thank you for joining us on Amicus this week.

Tam: Thank you so much.

Lithwick: We’re now going to turn to a second case argued at the high court this week on the same day, in fact, as the Tam case we just talked about. This case dates back to the days after 9/11 and even though more than 15 years have elapsed since that time, the case itself actually raises questions that may become salient again if Donald Trump’s talk of establishing a national registry or database based on religion or country of origin really is in the cards.

Ziglar v. Abbasi is an appeal by a group of mostly Muslin men, charging that former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former INS Commissioner James Ziglar, along with two wardens at the Federal Detention Center where some detainees were held, can be sued by these detainees for their treatment in the months after 9/11.

Now, the 2nd U.S. Circuit Court of Appeals found that the case could proceed, but the government appealed, and it’s that appeal that the court considered this week. One slight oddity in this case is that two of the eight justices, Justice Sonia Sotomayor and Elena Kagan, recused themselves from the case presumably because they were involved in the earlier proceedings in their former jobs as a judge on the U.S. Court of Appeals for the 2nd Circuit in Sotomayor’s case, and the U.S. solicitor general in Kagan’s. This means there were only six judges hearing arguments this week.

Joining us now is Rachel Meeropol. She’s a senior staff attorney at the Center for Constitutional Rights, where she works on prisoners’ rights, national security, and First Amendment issues. She argued this case on Wednesday. It was her first at the high court and she argued on behalf of her client Ahmer Abbasi.

In a twist, I should note that Rachel is the granddaughter of Ethel and Julius Rosenberg. Welcome to the show, Rachel.

Rachel Meeropol: Thanks. It’s great to be here.

Lithwick: I’m sure you have been asked that a million times, but, wow, you’re really the granddaughter of Ethel and Julius Rosenberg?

Meeropol: I am. No stranger to injustice.

Lithwick: OK, well said. Can you just tell us first and foremost about your client Ahmer Abbasi and what happened to him in the weeks and months after 9/11?

Meeropol: Yeah. Basically, right after 9/11, the FBI set up a tip line, and people were calling in from all over the country with tips like, “My neighbor’s Arab and he keeps strange hours. It think he might be a terrorist.” On that sort of information, hundreds of men were swept up, including Ahmer Abbasi, who came to the attention of the FBI after a postal worker at the New Jersey DMV reported that an Arab man had left a false Social Security card there. This led to an apartment where Ahmer was staying as a houseguest.

He was arrested and designated as “of interest” to the terrorism investigation, not based on any reason to suspect that he actually had any involvement in terrorism, but because he fit the profile of the 9/11 hijackers. Muslim Arab men who had violated the immigration law.

He was held in the Metropolitan Detention Center in Brooklyn. Placed in a solitary confinement unit there. Beaten by guards, harassed, kept from practicing his religion, deprived of sleep, deprived of exercise for months, until he was cleared from any connection to terrorism and then deported.

Lithwick: This is not a fact that’s in dispute in this case, right? The DOJ itself has conceded that detainees were treated horrifically in complete violation of whatever protocols we would use, so what is their argument about why they are not on the hook for this?

Meeropol: The issue is really whether individuals who were abused and discriminated in this way, can even get into court. We have the solicitor general under the Obama administration defending Bush-era officials in, just before the Trump presidency begins, saying that, federal officials, even when they violate clearly established law, like denying the right to equal protection and allowing for the abuse of prisoners, that even when that happens, individuals should not be able to sue those federal officials for damages when their rights are violated.

Lithwick: This brings us, I’m afraid, dear listeners, to Bivens because there were three big issues in the case but I think the one that the court was most focused on this week is whether this fits into the confines of the doctrine established in a case called Bivens. Rachel, can you, just for listeners who are not necessarily completely conversant with what that means, explain to us, first of all, what that law is and then, whether you are asking for a radical extension of that doctrine?

Meeropol: Sure. Bivens is a doctrine that allows individuals to sue federal officials when they violate the Constitution. I think most people would assume that we have that right. We can certainly sue state officials when they violate the Constitution, but what’s strange about the system that’s set up, is that a federal law allows you to sue state officials. There is no federal law that allows you to sue federal officials.

Rather, the court ruled, in a case called Bivens, that it could imply the right to sue federal officials under the Constitution itself. That ruling came in a Fourth Amendment case. Ever since the first ruling, the court expanded the doctrine into some other areas, allowing, for example, federal prisoners to sue their jailers when they are abused in detention and allowing individuals to sue over equal protection violations.

The question is, how far does that doctrine extend? There’s only been three cases in which the Supreme Court has explicitly recognized that an individual could bring a lawsuit for damages against federal officials but the lower courts have allowed many other lawsuits to go forward based on the assumption that those kind of actions are allowed.

In the last 30 years, however, the courts have been slowly pulling back from the doctrine, especially the Supreme Court, and recently, the Supreme Court, anytime it sees what it thinks is an extension of Bivens, it has rejected that extension. Really one of the essential questions in the case is, is this an extension of Bivens? Are we asking for something new here? We say that we’re not.

This is a case about individuals who are detained in federal custody, in a federal prison in New York City. It’s not a case about mistreatment. In a military context, it’s not about something that happened overseas. This is about what you can do to individuals present in this country, in a federal prison.

Of course, even if it is an extension of Bivens, the second question that the court will have to grapple with is if it’s an extension, should the right be extended? Should my clients be allowed to sue for what happened to them? I can address that question if you’d like, as well.

Lithwick: Well, before you do, I feel like I want you to clarify one thing for listeners who are not clear on the distinction between what rights you have as a U.S. citizen or someone who is here in some legal capacity and someone like your client, who I think admittedly, had violated his green card and was here illegally. Does that matter and what rights do you have as a noncitizen in this country who has, let’s say in this instance, completely violated the conditions of your visa?

Meeropol: Yeah. It does and it doesn’t, in a really strange way. Nobody is arguing that my clients have different rights to be free from abuse in prison. It’s clear that noncitizens, even when they are here unlawfully, have the right not to be abused in detention. This is a proposition that’s been established for many years.

Now, that said, it doesn’t necessarily mean that they have the same right to sue if that right is violated. One of the arguments that the government is making in this case is that because what happened after 9/11 was national security policy that relates to immigration and because Congress has power over immigration, that the courts really shouldn’t get involved, that it’s not proper for the courts to imply the ability for noncitizens to sue over immigration policy especially when that policy encroaches on national security concerns.

Now, our response to that is that this actually isn’t about immigration at all. It’s not about whether people should be allowed in or out of the country. It’s about how you treat them when they are here and if the Constitution cannot be a way for noncitizens to deter abuse in detention, to deter law enforcement excesses, then what protects them? What keeps law enforcement from doing the worst thing that we can imagine to millions of individuals who are here and vulnerable?

Lithwick: That raises the question, and I think that they roughed you up a little bit about this at oral argument, Rachel, why can’t we just give them other protections? Why is this the remedy, to be able to sue? In his personal capacity, John Ashcroft seems like a pretty excessive remedy. I think the chief justice was like, “Why cannot you just bring a habeas corpus action?” So what’s your response to that?

Meeropol: Yeah. There are two different responses there. First of all, in this actual situation, one of the policies that was being implemented by the government against my clients was that they were kept from accessing the outside world, including lawyers, while they were in detention, so they were initially subjected to a complete communications blackout. No access to phones. No access to visits. No access to anybody. That blackout was lifted after a matter of weeks, but their access to the outside world was still extremely restricted. It was very difficult for them to get lawyers to try to bring any sort of cases to challenge what was happening to them while it was happening. When a few were able to bring some challenges to their treatment and their detention in the courts, the response was to clear those individuals more quickly and deport them, to keep the federal courts from examining what was going on.

That means, not only that it’s difficult for an individual to actually get relief but perhaps more fundamentally, because the court cannot get involved, there’s no way to rule on the legality of what is happening. There’s no way to deter future officials from doing the same. Now, one of the core purposes of the Bivens doctrine, as the Supreme Court has recognized it, has always been that it is a way to deter future illegality. That if you want to keep individual federal officers from violating people’s rights, an individual lawsuit that puts them on the hook for damages, is really the only way to do it.

If that action is not available today, as we move into uncertain times, I fear that there will be nothing to restrain the worst of executive abuses.

Lithwick: Now, I want to play for you—this is the hard part of this show, Rachel. We’re now going to play for you audio just casting you back into your breakdown from Wednesday, but I want to play for you John Roberts questioning you on a principle, I think, you just actually flicked at. Let’s listen to it more explicitly because I think what he’s saying is, we certainly want to deter future illegality, but we don’t want to terrorize people out of doing their jobs and creating good policy, particularly in difficult times. Let’s listen to him.

John Roberts: When you have the attorney general, the director of the FBI, the director of INS sitting down and making, “What are we going to do to respond to this crisis?” and people in the … old enough, 9/11 sort of have a better sense of what that crisis was like and if you imply a Bivens actions, one of the things they’re going to enter into their, what is best, what is appropriate, and presumably also what’s constitutional. They’re going to say, “Well, gosh. If I’m wrong, I’m going to be sued, not because I’m the attorney general but as an individual.” Part of the policy that we’ve announced is that we don’t want people forming policy to have to worry about, they’re going to have to pay if the policy is found infirm.

Lithwick: Rachel, what’s your response? What do we do about the fact that people say, “I’m just working in good faith. I’m just a warden in a prison. I’m just executing policy someone else gave me.” That if you, in fact, get the remedy you’re seeking here, all you’re going to do is chill future government workers from trying to do the best job they can do.

Meeropol: Well, even if my clients get into court, there they will have to face another hurdle, which is called “qualified immunity.” Qualified immunity protects government officials, federal and state officials, who are sued for individual liability. What it means is that, even if a federal official or state official violates the Constitution, they cannot be held accountable unless they violate clearly established law that any reasonable officer would have known of. Basically, what the court’s concern there, is that officials might pause before violating clearly established law.

I don’t think that should be a concern. I’m more concerned that federal officials won’t pause before they violate clearly established rights and to the extent that we want to be sure that we protect people who serve the government in good faith and are just trying to do a good job in difficult times. Qualified immunity already provides that protection and it is substantial protection.

Lithwick: You had two, I think, robust supporters on the array of six justices that you faced this week. This is Ruth Bader Ginsburg questioning the government’s lawyer on the length of the incarceration and detention. Let’s listen.

Ruth Ginsburg: It’s one thing, as Justice Pryor pointed out, to say you initially hold these people, but you know from day one that many of them have nothing to do with terrorists and yet, you allow that system, that might have been justified in October, to persist for months and months when these people are being held in the worst possible conditions of confinement.
Speaker 9: Your Honor, they are being held in restrictive conditions of confinement, but those conditions are lawful as …

Lithwick: Rachel, how much of a difference, if any, does it make that, as you claimed, not only did this persist for a very long time, but that, in fact, after the fact, not one of the people who were detained in these sweeps was ever determined to be a threat? Do those two things make a difference for this hindsight look at what the government should have done differently?

Meeropol: I think they do and I think they’ll come into play later on in the case if we’re allowed to go forward. The government will have the opportunity, if it wishes, to actually defend its use of race and religion here. They could try to prove that what they did after 9/11 was really necessary to protect national security.

Now, I can’t imagine how that argument could prevail but they will have the opportunity to make it and there they will be faced with some very difficult facts, including that there was no reason to suspect the 9/11 detainees of ties to terrorism when they were arrested and that at the end of the day, none of the detainees were found to have any ties to 9/11. This investigation proved completely unsuccessful.

Lithwick: Rachel, can you talk a little bit about the distinction between some of the named officials in this case because it seems to me that the claims against someone like John Ashcroft or Robert Mueller are really, really different from the claims against the prison warden, some of the lower level officials who, I don’t think, could be said to have been formulating policy. In a sense, we’re talking about apples and oranges, no?

Meeropol: That’s right and really the wardens are defending the case by saying, “We were just following orders. We were just doing what the FBI told us we had to do.” Now, we have problems with that defense as a factual matter but even more importantly, there is no “following orders” defense to the Constitution. If you violate clearly established constitutional rights, whether or not someone tells you to do so, federal officials can be held accountable.

Actually, every single judge so far who has considered one of our claims against the former warden, Dennis Hasty, who’s alleged to have allowed physical and verbal abuse of my clients for months and months at the Metropolitan Detention Center, every judge who has heard those claims, has agreed that they should go forward, and we very much hope that the Supreme Court agrees.

Lithwick: In a sense, isn’t there a weird space between these high-level folks who are saying, “Hey, we were just establishing the outlines of policy,” and the low-level folks who are, first of all, I think in some instances now saying, “I didn’t even know this was going on.” There’s a space in the middle where it almost feels like nobody’s accountable, right?

Meeropol: Well, right, and if we allow people who are sued to point fingers at each other before the client has even had an opportunity to get to discovery, so these are unsworn statements by defense attorneys saying, “No. He’s more responsible. No. He is,” without even filing an answer to our allegations. That can’t be the way that serious lawsuits are resolved.

Lithwick: I want to listen to one last voice from the court this week and this is Steven Breyer. As I said, one of the two liberal justices on the court who seemed, I think, to be in your camp this week. Here he is talking about blank checks and we know that the language of blank checks hearkens back to the earliest detainee cases. Let’s have a listen.

Stephen Breyer: I mean, I think it is an enormously important and very open question and we can say, on the one hand, just what was said, I think, everything the chief justice said is true. There is a problem in this time of real national emergency to overdeter people from doing what they reasonably think is necessary. They have the authority for security. Not the judges.
At the same time, the law of this court correctly, I think, is, but there is no blank check even for the president and if there’s no blank check, that means sometimes they can go too far and if they have gone too far, it is our job to say that.

Lithwick: I want to give you a chance, not just to respond to the notion that the government is being given a blank check retroactively in terms of what was done to your client and other detainees swept up after 9/11, but also to talk a little bit about prospectively. We’re heading into a new administration that has talked pretty radically and dramatically about the rights of Muslims, the rights of immigrants. Going forward, is there a sense in your mind that the actions post-9/11 and what may come down the pike, are connected if the government is to get the blank check that you feel they’re seeking here?

Meeropol: Well, absolutely. What happens in this case is not just about whether individuals who were harmed will get compensation. It’s also what, going forward, federal officials will understand they’re facing if they violate the Constitution, right? There is a difference, I think, a really serious difference between understanding that one of your policies might be stopped, might be enjoined, in legal terms, because it violates the law, versus an idea that you could actually be held personally accountable for violating somebody’s constitutional rights.

I fear that one doesn’t provide adequate deterrence. That just the sense that a court could rule, that something can’t go forward, doesn’t deter future officials from taking incredibly aggressive stances that they know may not be constitutional but that they’re going to do anyway.

In a time when torture, when Muslim registries are talked about as legitimate policy options, this is an incredibly dangerous time for the court to send a message that federal officials could violate even clearly established law and not be held personally accountable.

Lithwick: One last question, Rachel. This was, in fact, the very last case of the Obama administration. You’ve already mentioned that there’s some form of irony that the Obama Justice Department was laying the groundwork for a pretty broad defense of government officials going forward. Was it bittersweet to be sitting in the court that day, listening to what is a very, very paradoxical last case for the Obama Justice Department to be arguing?

Meeropol: Oh, sure, and the reality is that if I had been arguing it just a few weeks later, the attorney on the other side would be probably approaching it in a very different way. Now what the Obama administration is arguing for is incredibly broad, but that doesn’t mean it couldn’t be broader, and I wonder what kind of argument I would have come up against if this had happened in February.

Lithwick: Rachel Meeropol is a senior staff attorney at the Center for Constitutional Rights, where she works on prisoners’ rights, national security, and First Amendment issues. Rachel, thank you so very much for your time this week on Amicus.

Rachel Meeropol: Oh, thank you.

Lithwick: That is going to do it for today’s inauguration weekend edition of Amicus. Maybe a good point to pause and think about the extent to which law and lawyers and the Constitution and checks and balances are going to be really useful going forward for all of us. Something to think about.