Padilla v. Yoo and the Bivens National Security Exception

by Roger Alford

David Luban has an extensive post over at Balkinization that makes it sound like Padilla’s case against John Yoo is much easier than it is. It’s not an easy case. I was especially surprised by Luban’s discussion of immunities. Here’s what he writes:


3. What about immunities? The short answer: only a few government officers get absolute immunity from lawsuits growing out of their performance of their duties, and OLC lawyers aren’t among them. The President does (Nixon v. Fitzgerald, 457 U.S. 731 (1982)). Judges do (the revolting case Stump v. Sparkman, 435 U.S. 349 (1978)). So do prosecutors, when they are prosecuting: Imbler v. Pachtman, 424 U.S. 409 (1976). But prosecutors get only qualified immunity when they are not prosecuting but — please note — giving legal advice to interrogators. That’s Burns v. Reed, 500 U.S. 478 (1991), and one paragraph seems especially relevant:

The Court of Appeals speculated that anything short of absolute immunity would discourage prosecutors from performing their vital obligation “of giving legal advice to the police…”…Although the absence of absolute immunity for the act of giving legal advice may cause prosecutors to consider their advice more carefully, “‘where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate.’” Indeed, it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice. Ironically, it would mean that the police, who do not ordinarily hold law degrees, would be required to know the clearly established law, but prosecutors would not.

Burns v. Reed, at 494-95. For that matter, under Mitchell v. Forsyth, 472 U.S. 511 (1985), the Attorney-General gets only qualified immunity — specifically, immunity “so long as his actions do not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).


What Luban appears to be ignoring is that there is a Bivens exception based on national security. In at least three recent cases courts have rejected Bivens claims based on concerns about national security. In Plame v. Libby, the D.C. district court rejected Valerie Plame’s suit against Scooter Libby and various other government officials:


The resolution of these claims therefore might require an exploration into Mrs. Wilson’s specific duties as a covert operative. Her class-of-one equal protection claim would necessitate an even broader investigation into CIA practices. Plaintiffs argue that the United States could invoke the state secrets privilege or utilize other established methods for the protection of sensitive information. But, in this and in future cases, “[s]uch procedures, whatever they might be, still entail considerable risk” of revealing sensitive information. Sterling, 416 F.3d at 348; see also Sims, 471 U.S. at 175, 105 S.Ct. 1881 (“Even a small chance that some court will order disclosure of a source’s identity could well impair intelligence gathering.”). At least one other district court has accordingly denied a Bivens remedy in light of the risks incurred by discovery into issues of national security.

Such potential difficulties associated with claims based on the disclosure of information relating to covert CIA operatives gives the Court reason to pause before extending Bivens to this context. “[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.”


And in Arar v. Ashcroft, the Eastern District of New York dismissed constitutional Bivens claims against high- and low-level government officials based on the same national security exception. Here is an excerpt:


The task of balancing individual rights against national-security concerns is one that courts should not undertake without the guidance or the authority of the coordinate branches, in whom the Constitution imposes responsibility for our foreign affairs and national security. Those branches have the responsibility to determine whether judicial oversight is appropriate. Without explicit legislation, judges should be hesitant to fill an arena that, until now, has been left untouched-perhaps deliberately-by the Legislative and Executive branches. To do otherwise would threaten “our customary policy of deference to the President in matters of foreign affairs.”… In sum, whether the policy be seeking to undermine or overthrow foreign governments, or rendition, judges should not, in the absence of explicit direction by Congress, hold officials who carry out such policies liable for damages even if such conduct violates our treaty obligations or customary international law.


Finally, in the case of In re Iraq and Afghanistan Detainees, the court rejected Bivens claims brought by alleged torture victims in Iraq and Afghanistan:

The defendants argue that special factors counseling hesitation exist in this case because inferring a Bivens cause of action would interfere with “core” executive and legislative functions by calling into question judgments made by the political branches regarding national security and military affairs. The defendants claim that a Bivens remedy would interfere with military decision-making by imposing judicial oversight on military strategy and policies relating to the appropriate circumstances according to which enemy aliens are detained during a war…. There is no getting around the fact that authorizing monetary damages remedies against military officials engaged in an active war would invite enemies to use our own federal courts to obstruct the Armed Forces’ ability to act decisively and without hesitation in defense of our liberty and national interests…. Military discipline and morale surely would be eroded by the spectacle of high-ranking military officials being haled into our own courts to defend against our enemies’ legal challenges, which might leave subordinate personnel questioning the authority by which they are being commanded and further encumber the military’s ability to act decisively…. We have no doubt that … considerations of institutional competence preclude judicial creation of damage remedies here. Just as the special needs of the armed forces require the courts to leave to Congress the creation of damage remedies against military officers for allegedly unconstitutional treatment of soldiers, so also the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad.


It’s curious that Luban and others have not discussed this Bivens exception as it seems potentially fatal to Padilla’s claim.

http://opiniojuris.org/2008/01/14/padilla-v-yoo-and-the-bivens-national-security-exception/

3 Responses

  1. Roger–

    Interesting discussion. Can you explain how Yoo — as a lawyer at DoJ, not at one of the national security agencies — would fall within this exception? I understand from press reports that Yoo met with CIA officials in the course of crafting the adminsitration’s legal policies (alhtough it is not at all clear that he needed access to (a) any classified information or (b) intelligence officials to opine on the legal questions at issue). But how is his role analogous to the concerns in these cases? I don’t know anything about these cases, so am curious how the arguments were made there and might be extended here.

  2. Given that immunities are a function of their functionality, i.e., they are derived from the interests they seek to protect, it would be hard to say that a lawyer from the DOJ would get treated differently than a lawyer at one of the NSAs.

    In other words, you can’t distinguish Yoo’s case without striking a serious blow agains the whole concept.

    One other point that is interesting, at some point down the road a Court may have to answer this question, was Yoo giving legal or political advice on the conduct of war. Maybe one could make a functional immunity distinction between the two, you need immunity for political advice, since its inherently political, but not legal. If that’s the case, then we run into the be-all of interesting questions, is advice on international law adherence political or legal advice … That would be a dooooozy.

  3. The judicial power declines to allow this means to address torture. The national security exception is allowed to be seen as broad enough to cover national security torture. Judicial constructions all – not preordained by statute or the constitution.

    Best,

    Ben

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