This time, Judge Sonia Sotomayor wrote the dissent, blaming the majority for inventing new standards and nearly inventing things to achieve a favorable outcome for the agent. “Existing precedent allows Boule to seek compensation for his injuries in federal court,” she wrote. “The Court is making extraordinary efforts to avoid this outcome: it is rewriting a legal standard it established just five years ago, extending national security concerns beyond recognition, and discerning an alternative remedial structure where there is none. The Court’s innovations, taken together, allow it to close the door on Boule’s claim and, presumably, others that fall squarely within Bivens’ jurisdiction. Indeed, the circumstances in which the court will confirm the future Bivens claims is far from clear.
It should be noted that the Supreme Court’s enthusiasm for impunity does not always follow typical ideological lines. Perhaps the best example of this term came United States vs. Zubaydah, which dealt with the legal fallout from the CIA’s use of torture against detainees during the War on Terror. The plaintiff, Abu Zubaydah, remains in custody at Guantanamo Bay today. He and his lawyers sought to subpoena two former CIA contractors who had participated in his torture on behalf of prosecutors in Poland, where the torture allegedly took place at a CIA “black site”.
The Justice Department sought to quash the subpoena under the doctrine of state secrets, which generally allows the government to withhold evidence that could harm US national security interests. But unlike, say, US nuclear weapons designs or Normandy landings plans, the CIA’s treatment of Zubaydah is a well-established matter of public record. During litigation, the Ninth Circuit Court of Appeals found that the state secret privilege did not apply to publicly available information.