When a Court Opinion Makes You Feel Tingly All Over

Although it was overshadowed by the usual mix of politically driven end-of-term decisions coming out of the Supreme Court (gay marriage, Obamacare, the EPA, etc.), for me the most encouraging opinion this month was written by the Second Circuit in Turkmen v. Hasty. The plaintiffs in that case are Muslim men who were rounded up inside the United States in the wake of September 11 and allegedly abused while in detention. The court held that the case could proceed against John Ashcroft and Robert Mueller (then attorney general and FBI director) because it was possible that the plaintiffs could show that Ashcroft and Mueller were responsible for the plaintiffs’ treatment. So ultimate victory is still a long way off, and probably unlikely.

But this is what the court said in its unusual “Final Thoughts” section of the opinion:

If there is one guiding principle to our nation it is the rule of law. It protects the unpopular view, it restrains fear‐based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color. The Constitution defines the limits of the Defendants’ authority; detaining individuals as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim exceeds those limits. It might well be that national security concerns motivated the Defendants to take action, but that is of little solace to those who felt the brunt of that decision. The suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.

James Kwak is an associate professor at the University of Connecticut School of Law, a co-author of 13 Bankers and White House Burning, and a founder of Guidewire Software. Find more at Twitter, Medium, The Baseline Scenario, The Atlantic, or jameskwak.net.