September 11 Detainees Denied A Bivens Action For Their Detention

In Ziglar v. Abbasi, the Court was asked to extend the implied cause of action theories under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) to alleged constitutional violations six men claimed to have suffered during detention shortly after the September 11 terrorist attacks. The Second Circuit permitted the claims to go forward against certain executive officials, like former Attorney General John Ashcroft, as well as the wardens of the Brooklyn prison that held the men. The Court, in a 4-2 opinion (three justices recused) by Justice Kennedy, reversed, holding that Bivens would not be extended to these claims, which the Court said were markedly different from the three kinds of Bivens actions the Court had approved before. The Court further held that the “special factors” present in the detention cases weighed toward a need for Congress to create such a cause of action, not the courts. Justice Kennedy, along with Chief Justice Roberts and Justice Alito, would have further held that the officials were all entitled to qualified immunity against the claims. Justice Thomas, in concurrence, argued that the qualified immunity issue should be considered within the common law in 1871 instead of the modern gloss the Court has used. Justice Breyer, joined by Justice Ginsburg, dissented, arguing that these causes of action were well within the scope of Bivens, and worried that the Court’s decision would “shrink” its breadth. A link to the opinion is here.