22 Jan D.C. Circuit on Bivens Claims in the War on Terror
From last week’s D.C. Circuit decision in Rasul v. Myers, Judge Brown in a concurring opinion argued:
The present case involves the method of detaining and interrogating alleged enemy combatants during a war–a matter with grave national security implications. Permitting damages suits by detainees may allow our enemies to “obstruct the foreign policy of our government.” Moreover, dealing with foreign relations is primarily delegated to the executive and legislative branches, see U.S. CONST. art. I, § 8, cls. 11-16; id. art. II, § 2, and creating a damages action could produce “multifarious pronouncements by various departments.” Nor does our government’s unanimous condemnation of torture answer this concern, since where to draw that line is the subject of acrimonious debate between the executive and legislative branches. Treatment of detainees is inexorably linked to our effort to prevail in the terrorists’ war against us, including our ability to work with foreign governments in capturing and detaining known and potential terrorists. Judicial involvement in this delicate area could undermine these military and diplomatic efforts and lead to “embarrassment of our government abroad.” Accordingly, all of the special factors we identified in Sanchez-Espinoza apply to this case and plaintiffs cannot bring their claims under Bivens.
I agree. Whatever one thinks of John Yoo, I’m just surprised that there is not greater agreement that a Bivens claim for damages against government and military officials for alleged constitutional violations is a bad idea when it comes to government conduct in the waging of war. I have almost no doubt that is what the courts will conclude assuming Padilla gets that far. If Congress wants to create a cause of action that is another matter. But why judicially impose one on government and military officials through a Bivens claim?
For an analysis of Rasul v. Myers from an international law perspective, see Jordan Paust’s essay in Jurist, available here.
Roger Alford
I have to say I find myself in agreement with Prof. Paust more than with Prof. Alford, although I can’t help but notice that the more pleasant line of authority invoked by Prof. Paust almost exclusively dates from the 19th or early 20th century. That, of course, does not lessen its value in any way, but what does that say of more recent times? [I also doubt if the terrorists care very much about whether the US respect their own law. Mind you, many others do.] Now, I don’t know much about Bivens, but I would just mention the way the common law (in England, Scotland and Australia) has long dealt with the kind of concerns that so detained the court in Rasul v. Myers. Of course, the observations there were not on the basis of Bivens, or anything of the sort; they all concern the liability of (servants of) the Crown in tort. Nonetheless, some of the considerations in those cases may well be transferable. To begin with, there is the concept of combat immunity. This is not strictly an immunity in the sense that it excludes all judicial supervision. It only excludes such supervision in respect of damage… Read more »
The quotation that this post attributes to “D.C. Circuit decision” is actually taken from the separate concurrence by Judge Brown. The majority opinion found the Bivens claim reduced to the question of “whether the rights the plaintiffs press under the Fifth and Eighth Amendments were clearly established at the time of the alleged violations.” Since the DC Circuit “recently held that Guantanamo detainees lack constitutional rights because they are aliens without property or presence in the United States, Boumediene v. Bush,” they could hardly now rule that such rights were “clearly established”. Judge Brown then added a third vote in his concurrence that went beyond this argument to add the quoted passage that Bivens is also precluded by the DC Circuit decision in Sanchez-Espinoza v. Reagan. His point is that based on DC Circuit precedent, “because special factors foreclose a Bivens action, ‘[w]e do not reach the question whether the protections of the Constitution extend to noncitizens abroad'”. Therefore, he believes that the majority should have stopped before it got to the constitutional question. One suspects that the majority might have hesitated to decide the constitutional question itself, but was willing to depend on a prior decision of the question… Read more »
Howard,
Thanks for the correction. I haved edited the original post accordingly.
Roger Alford
I have some thoughts on Roger’s post up over at Prawfs…