The Supreme Court’s 4-2 decision in Ziglar v. Abbasi is both unsurprising and devastating.  It is unsurprising because the Supreme Court has contracted damages suits against federal officials for constitutional violations for 30 years now, and with the recusals of Justices Sotomayor and Kagan in the case, it was predictable that the Court would do so again.  The unsurprising nature of the outcome, however, shouldn’t detract from its significance:  for certain kinds of constitutional violations, it throttles attempts to hold federal officials accountable.  For the victims of human rights violations left without a legal remedy, it’s devastating.

Filed in 2002, Abbasi arose out of the mass detentions of immigrants following the September 11, 2001, terrorist attacks. FBI and immigration officials arrested hundreds of men, primarily from South Asian and Middle Eastern countries, often based on members of the public calling in vague tips about “suspicious” Middle Eastern men in their neighborhoods. According to a Justice Department Inspector General investigation, government officials indiscriminately labeled, and treated, these men as terrorism suspects, rather than as ordinary immigration detainees. As a result, many were confined for months under harsh conditions in a maximum-security prison and, worse, subjected to physical violence by prison guards. Following their eventual release, some of these detainees sued Attorney General John Ashcroft, FBI Director Robert Mueller, and a host of lower-level federal officials, accusing them of confining them under harsh conditions solely on the basis of their race or religion.

In Abbasi, the Supreme Court held that the detainees could not assert claims under Bivens v. Six Unknown Federal Narcotics Agents, a 1971 case that allowed individuals to sue federal officials for damages arising from an unconstitutional search. Following Bivens, the Court has extended a damages remedy for constitutional claims against federal officials only twice – in a 1979 case alleging an Equal Protection gender discrimination claim and a 1980 case alleging a Cruel and Unusual Punishment violation for failure to treat a prisoner’s medical condition.  Then it stopped.  For 30 years, the Court has rejected Bivens claims where litigants assert different claims, or sue different kinds of defendants, from those involved in the first three cases.  The theory is that it’s up to Congress, not the courts, to create a damages remedy for constitutional violations by federal officers.

Abbasi goes further in appearing to restrict Bivens claims even more narrowly to the particular legal and factual circumstances of the three early cases.  It applies a two-step:  first, it finds that the detainees’ Due Process and Equal Protection claims challenging their restrictive confinement present a “new context” from earlier Bivens cases, and second, that there are “special factors” that suggest courts shouldn’t allow a damages remedy where Congress hasn’t authorized it.

These steps of the inquiry aren’t new, but the way the Court applies them suggests that many allegations of constitutional wrongdoing wouldn’t survive. At step one, we’re told that, if a case is “different in a meaningful way” from earlier cases, it’s a new context, and that the kinds of differences that matter include, for instance, the “rank of the officers involved,” the extent of existing case law guiding officers (usually considered separately under qualified immunity analysis), and the risk of disrupting other branches. Because the Abbasi plaintiffs were challenging a policy decision affecting “illegal aliens” after the 9/11 attacks, and that claim doesn’t resemble the precise allegations and fact patterns of the three cases where the Court allowed a Bivens claim, it’s new.  Having concluded it’s new, the Court readily finds that “special factors” weigh against recognizing a damages remedy.   Among them, Bivens claims aren’t appropriate where they’d call into question a policy decision or where they’d require an “inquiry into sensitive issues of national security.”

What are the implications for future plaintiffs challenging unconstitutional conduct by federal officials?  For victims of torture, rendition, or unlawful detention undertaken in the name of counterterrorism, the lesson is clear:  unless one manages to sue for injunctive relief or to bring a habeas claim while the abuse is still ongoing, there will often be no remedy. Some “national security” cases – the travel ban cases are the obvious recent example – do offer an opportunity to challenge ongoing harm. But in other cases, especially in the wake of a perceived security emergency or where government actions are secret, the only real chance to assert one’s rights comes after the abuse has ended, in a suit for damages. Abbasi largely restricts judicial redress for constitutional harms to the very time period where victims are least able to access the courts and where courts are least willing to intervene.

But the implications of Abbasi go well beyond national security cases. Given the Court’s resistance to expanding Bivens claims beyond the particular factual and legal circumstances of the first three cases, constitutional suits for damages are threatened more generally. Certainly, some lower courts will distinguish future cases by interpreting Abbasi narrowly as a case about high-level policy decisions arising out of the 9/11 emergency.  But others will take up the invitation to curb even the traditional scope of Bivens claims, and it’s clear which side the Supreme Court prefers.

Stepping back from the line of Bivens decisions that makes Abbasi seem normal, it’s striking how far we’ve departed from two very basic premises: first, that where there’s a constitutional right at stake, there ought to be a way to vindicate it, and second, that the very point of including guarantees of individual rights in the Constitution was to guard against legislative temptations to overlook them. It’s the Court’s easy departures from these basic intuitions about constitutional rights – its refusal to permit a remedy and its assumption that Congress will do so when desirable – that should strike us as confounding, not conventional.

Shirin Sinnar is Associate Professor of Law and the John A. Wilson Faculty Scholar at Stanford Law School. Her scholarship focuses on the role of institutions, including courts and executive branch agencies, in protecting individual rights and democratic values in the national security context.