Update on: The Two Bags of Robert Mueller
Like the proverbial cat, Robert Mueller has nine lives. Every time it looks like justice has caught up with him, he escapes to reign another tyrannical day. This time it was the Supreme Court that saved his bacon. On June 20, the Court issued a decision in Ziglar v. Abbasi, a class-action lawsuit brought by Muslim immigrants that sought damages from Executive officials (named in the suit: ex-FBI Director Robert Mueller, 
ex-Attorney General John Ashcroft, ex-Immigration Commissioner James Ziglar) for unlawful imprisonment and torture after 9/11. Mueller as head of the FBI, headlined the cast of federal miscreants all of whom were in on the round-up of Muslim men after 9/11 without charge or warrant, their identification as “persons of interest,” and their imprisonment and torture in domestic black sites. The “heinous” crime they were accused of? They had overstayed their visas. No matter, in those frenzied, over-the-top days in New York after 9/11— watch out if you were Muslim, happened to be New York, and had been the subject of anonymous tips. [If you think you have to be a non-citizen to endure this treatment, be sure to check out “America’s Biggest Export: Perpetual War, see discussion of Section 1021 0f the NDAA]
Many of these immigrants were housed at the Metropolitan Detention Center (MDC) in Brooklyn, NY, a hell-hole which the Justice Department’s own Inspector General cited for a wide range of abusive practices. According to U.S. District Judge John Gleeson in 2013, conditions there included “[abusive practices which were] expressly directed at Arab and Muslim noncitizens who had violated immigration law…in other words, it was discriminatory on its face.”
On June 19th, the Supreme Court ruled 4-2 (two of the more liberal justices Sotomayor and Kagan recused themselves along with Gorsuch who had not been confirmed during the argument phase) to reverse the District Court’s decision that had given the plaintiffs the right to pursue their claims for damages. The Justices tackled the Solomonic task of splitting the baby —How to draw the line between protecting civil liberties and maintaining national security. Unlike Solomon they did it neither wisely nor well.
Writing for the majority, Justice Kennedy outlined the Court’s vision of the relationship between the three branches of government “The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary.” One of the most troubling aspects of this decision is Justice Kennedy’s rather fanciful notion of the way Congress operates — “if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III. You would have to search high and low to find even one instance in recorded history that the American Congress has bestirred itself in defense of the rights of powerless immigrants or for that matter powerless citizens.
There you have it. Justice Kennedy writing for three other justices would have us believe that Congress is the one branch of government best suited to protect civil rights. Surely one need only point to provisions of the USA Patriot Act which expands the federal government’s ability to gather intelligence, engage in domestic surveillance and secret searches and detain immigrants without charge to understand how short-sighted, unjust and downright delusional that position is. Kennedy is, in effect, “passing the buck” to an unwilling Congress and in the process moving light years away from James Madison’s concept of the Judiciary as “guardians” of individual liberties when threatened by other branches.
As the Court has moved closer to the far right end of the political spectrum, their interest in protecting the civil liberties of the people has taken a proportionate dive. Almost a half a century ago in 1971, in Bivens v. Six Unknown Named Agents, the Supreme Court ruled that individuals whose Fourth Amendment freedom from unreasonable search and seizure had been violated by the Federal Bureau of Narcotics had a right to sue federal officials for money damages. Despite the lack of federal statutes authorizing such a suit, the Court ruled that the existence of a remedy for the violation was implied by the importance of the right violated. In drawing a distinction between the powerlessness of an individual as opposed to the power of a government official, the Court said— “An agent acting — albeit unconstitutionally — in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own….”.
Forty-six years later, a much more conservative Court makes the case for keeping men whose only crime was to overstay their visas incarcerated on the basis that [government officials couldn’t] “know for sure if there might be a terrorist or two among them.” National security concerns may be a prudent part of overall policy but when these concerns take center stage trampling over constitutionally protected rights of individuals, it’s time to put the brakes on. What branch of government is better suited for the guardianship role than the Judiciary? And these days what branch is most reluctant to take on that responsibility—the Judiciary.
According to Justice Kennedy, the Supreme Court will adhere to the “paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its duties… [and cause] high officers who face personal liability for damages [to] refrain from taking urgent and lawful action in a time of crisis.“ “Vexatious litigation” is not how the 2nd Circuit saw it. Rather they found evidence of a criminal conspiracy entered into by both Ashcroft and Mueller “[who] discussed and decided upon a strategy to restrict the 9/11 detainees’ ability to contact the outside world and delay their immigration hearings. The group also decided to spread the word among law enforcement personnel that the 9/11 detainees were suspected terrorists…and that they needed to be encouraged in any way possible to cooperate.”
Individual liberties become endangered species when the Court rules as it has in this case that “Congress, not the courts, should decide whether a damages action should be allowed.“ In effect. Robert Mueller and his co-conspirators have dodged what could and should have been a very expensive bullet. Thanks to the great minds at the Court, the decision in Ziglar has “immunized tens of thousands of federal officers… from damages, no matter how egregious the officers’ conduct…even for torture, so long as the torture arises in a context involving national security… “ (statement of the American Civil Liberties Union.)
Justice Breyer in his blistering dissent reinforced the concerns of the ACLU— “History tells us of far too many instances where the Executive or Legislative Branch took actions during time of war that…turned out…to have unreasonably deprived American citizens of basic constitutional rights, that dark history is sure to be repeated.”
Justice Breyer words may be prophetic. Today, we sacrifice the rights of immigrants, tomorrow maybe it will be our own constitutionally protected liberties.
***If you missed SA’s report on Robert Mueller’s checkered past, check it out HERE: The Two Bags of Robert Mueller.
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