Some Notes on Ziglar v. Abbasi

Yesterday, the Supreme Court ruled that multiple Bush administration could not be sued for constitutional violations committed during the arbitrary, indefinite detentions after 9/11. A few points:

• The Beltway rule about the Bush administration’s many illegalities remains that nobody can ever be held accountable for anything.
• It’s worth noting that these immunity rules are purely judge-made. Kennedy, in a familiar argument, couches this judicial policy-making in the language of deference, suggesting that it’s up to Congress to determine whether executive branch officials can be held accountable for legal violations. But this is silly. The presumption should be that they’re liable for legal violations unless Congress says otherwise.
• This is the latest iteration of a classic conservative bait-and-switch. It’s particularly dark comedy with respect to the Fourth Amendment. On the one hand, the exclusionary rule should be limited or eliminated because WHY SHOULD THE CRIMINAL GO FREE BECAUSE THE CONSTABLE HAS BLUNDERED and civil suits are a better remedy. On the other, conservative judges invent rules that immunize more and state officials from accountability for anything. 
• Kennedy leans hard on national security justifications. But as Breyer observes, inter arma enim silent legēs has a pretty ugly track record. From the Adams to Wilson to FDR to Bush, national security has provided a pretext to deny rights to political opponents, dissenters, and unpopular racial minorities. The level of judicial deference Kennedy advocates has proven to be inappropriate again and again.