On June 19, 2017, the Supreme Court issued a landmark decision in Ziglar v. Abbasi likely to have ramification in both domestic law enforcement and international affairs. In a 4-2 decision, with two justices recusing themselves and another having not yet joined the court at the time the case was heard, the Court ruled that there was no personal civil liability or cause of action against top officials in the Bush administration for their actions immediately following the September 11, 2001 terror attacks.

In writing for the majority, Associate Justice Anthony Kennedy acknowledged the cruel treatment inflicted on the plaintiffs, a group of mostly Muslim immigrants who had been detained, beaten and unreasonably searched at the Metropolitan Detention Center in Brooklyn immediately following the attacks. Justice Kennedy stated that, “if the facts alleged in the complaint are true, then what happened to the respondents in the days following September 11 was tragic.” However, Kennedy wrote that in times of a national security crisis, a civil action against policy-makers is not a proper way to address improper conduct.

The case runs counter to longstanding Supreme Court precedent deriving from the 1971 case of Bivens v. Six Unknown Named Agents, in which the Court held that a civil right of action created by Congress against state and local officials was implicitly guaranteed by the Constitution against federal officials. While the Court has since severely restricted this right of action in the years since Bivens, this decision represents the most direct break from the precedent set in that case. In those cases, the Court held that Bivens did not apply to so-called “new contexts” — in this case, it ruled that the circumstances behind the mistreatment (a terror attack) constituted a “new context”, even though the actions taken by law enforcement (improper detention, unreasonable searches, assault) were context previously covered by Bivens.

Justice Stephen Breyer, in a dissent read from the bench, starkly disagreed with the majority’s logic, writing that “history tells us of far too many instances where the executive or legislative branch took actions during a time of war that, on later examination, turned out to be unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights.” Breyer argued that civil actions — referred to informally as Bivens actions or 1983 actions (after 42 U.S. Code § 1983, where the statute is located) — were an appropriate remedy for such malfeasance.

In addition to the constitutional questions raised, the case could have ramifications for the U.S. in international affairs. Countries who had previously been loathe to allow their citizens to file civil actions against U.S. officials in their home countries may now reconsider, as there is no longer an avenue for those cases to be filed in the U.S. This could expose U.S. officials to civil lawsuits in numerous foreign jurisdictions, which could obviously be a source of international conflict.