One of the consistent themes of the Supreme Court’s jurisprudence over the past few decades has been aggressive hostility to “judge-made” remedies, i.e., the implication of causes of action in contexts in which the legislature has not expressly provided for them. Among lots of other cases, this trend manifested perhaps most powerfully in the court’s (deeply problematic) ruling last June in Ziglar v. Abbasi, which made it much harder for courts to provide damages remedies for constitutional violations by federal officers. And just two weeks ago, the same hostility to judge-made remedies was on display in Jesner v. Arab Bank, in which a 5–4 court slammed the door closed on suits against foreign corporations under the Alien Tort Statute.
In almost all of these rulings, the principal justification for skepticism of judge-made remedies is proper respect for the separation of powers—and the idea that, as Justice Neil Gorsuch put it in Jesner, “separation of powers considerations ordinarily require us to defer to Congress in the creation of new forms of liability.” Put another way, it should be up to the political branches, in the first instance, to decide when, how, and where to hold defendants accountable for their misconduct. And as Abbasi suggests, this mentality has special force when the defendants are government officers being sued for acts within the scope of their employment.
This skepticism of judge-made remedies has a whole lot to do with why there’s been virtually no judicial accountability for torture of U.S. detainees in the aftermath of Sept. 11. As I wrote at some length after the Senate Select Committee on Intelligence released the Executive Summary of its far longer (and still classified) report on the CIA’s Rendition, Detention, and Interrogation program, the numerous failed efforts to hold anyone legally accountable for torture:
have not usually involved courts upholding the legality of these policies, but rather courts finding any number of justifications to dismiss the suit without even reaching the underlying legality of the government’s conduct. The doctrinal obstacles that have made it so difficult for these plaintiffs to recover are not all unique to the field of national security law, but for reasons both obvious and otherwise, they tend to produce the most comprehensive effects in that field, thereby creating a serious accountability gap for all government abuses in the field—and not just those arising from the CIA detainee program.
The upshot of these rulings is not that there should be no accountability. Instead, judge after judge has argued that we should defer to the political branches to provide meaningful accountability when it comes to these kinds of national security abuses. But for better or worse, the political branches have basically sat on the sidelines when it comes to providing new legal remedies for torture and other abuses carried out under the guise of government counterterrorism policies, and their track record with regard to other forms of political accountability is, well, not much better.
That’s why the upcoming confirmation hearing for Gina Haspel, President Donald Trump’s nominee to become CIA director, is such a profoundly important moment for government accountability, writ large. Because of these judicial decisions, and because of the political branches’ unwillingness to develop other accountability mechanisms, one of the only real levers that’s left is the Senate’s advice and consent role—authority that has been used in lots of other contexts to extract other forms of accountability from the executive branch.
Put another way, for everything else that’s already been said (and that will surely be said) about the Haspel nomination, we ought not lose sight of just how much pressure is placed on the nomination process because so many of the other classical mechanisms for obtaining accountability have been either formally or functionally unavailable. Insofar as the Haspel nomination is a referendum on accountability for torture, a big part of why is because other, perhaps better, accountability mechanisms have been all but useless.
All of this, of course, is no never mind to President Trump, who tweeted Monday morning that Haspel has come under fire for being “too tough on Terrorists.” As Laura Rosenberger (among others) has pointed out, unlike just about everyone else defending the Haspel nomination, Trump seems inclined to support her because of her involvement in torture, not in spite of it.
To me, a president who feels that way is all the more reason to want a CIA director with less of a sordid history. But regardless of the case for supporting or opposing Haspel, it’s worth emphasizing that the reason that it’s come to this is, at least in my view, largely a result of the unavailability or inefficacy of other accountability mechanisms for government torture.
And for that failure, shame on us.
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