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 intentionally or negligently done in the course of combat operations; more particularly, it excludes the application of tort law (notably the tort of negligence).
The High Court of Australia has applied the rule of combat immunity in Shaw Savill and Albion Co. v. The Commonwealth (1940) 66 CLR 344, a case on a collision at sea involving HMAS Adelaide. Dixon J. said, in a passage approved by the English Court of Appeal in Mulcahy v. Ministry of Defence [1996] QB 732, 750 (Sir Iain Glidewell) and in the English High Court in Bell v. Ministry of Defence [2003] EWHC 1134, para. 2.C.12 (Owen J), and Bici v. Ministry of Defence [2004] EWHC 786, para. 92 (Elias J):
On any view of the concept of ‘active operations against the enemy’, John Yoo would fall well outside the scope of this particular immunity, it seems to me. How, after all, could it be argued that there simply was no way that either Yoo or any prison wardens could have given any thought to the reasonableness of their actions, in the sense that it might very well be impossible to do so in an actual combat situation?
The House of Lords has adverted to a substantially similar rule (this time relating to perfectly intentional damage) in the Scottish case of Burmah Oil Co. Ltd. v. Lord Advocate [1965] AC 75, 110 (Lord Reid):
How could it seriously be suggested that it was either ‘inevitably necessary’ to torture or otherwise seriously ill-treat someone, or to advise that treatment like that meted out to Padilla and other, alien, captives, was available to the President?
It is these considerations that I would think are properly taken into account in law suits arising out of situations of armed conflict.
You will note, perhaps, that there is nothing here about ‘multifarious pronouncements by various departments’ or any obstruction of foreign policy. I believe there are serious reservations about both of these concepts in the two cases here at issue (Rasul v. Myers and Padilla v. Yoo). My first difficulty is with the constitutional thinking that is sometimes read into the phrase ‘coordinate branches of government’ (itself, of course, a quote from Baker v. Carr). The executive and the judiciary may be ‘coordinate branches of government’, but the first is subject to the law, and the second administers the law. If, therefore, the second is not to abandon its rightful function, there must be a degree of subordination between the two. The judiciary is the guardian, frequently the only guardian, of the rule of law; the rule of law and the rule of lawyers therefore cannot be entirely divorced. Certainly, there must also be a degree of understanding in the judiciary for the problems facing the executive, but that understanding is quite insufficiently explained as respect for an institution of the same constitutional stature.
That is, I believe, the thinking behind the common law authorities cited, and a line of thought, moreover, that is not displaced by cases such as Baker v. Carr or Sabbatino, which are rather more subtle than that. For instance, if ‘multifarious pronouncements by various departments’ resulted simply from the fact that executive action, believed by the executive to be lawful, is struck down as unlawful, then every executive conduct would have to be immune from challenge. That cannot be the true position, can it?
My second beef is with the assertion in Rasul that it would obstruct the nation’s foreign policy if the court decided on the ‘method of detaining and interrogating alleged enemy combatants’. How is that an issue of foreign policy? There may be a potential for embarrassment, but that is a feature of many of the most important civil rights cases. If the executive must fear being embarrassed by a conclusion that their actions were unlawful, it might simply think about changing tack. Judicial consideration, likewise, is not a source of acute embarrassment for the government abroad, but quite simply an internal matter. Not even the worst dictatorships on the planet (some of which are, of course, allies of the West) expect their partners in the war on terror to act free of all legal or judicial constraints. As in so many other contexts, nations take their allies as they find them – even if they happen to be liberal democracies governed by the rule of law…
The US judiciary also overestimates its international cachet if it believes that any ruling on conduct of the US government would create discomfort for those US allies that are doing the exact same thing. To put things the other way around, has any American lawyer even, let alone the American public, cared whether the ECHR is applied to British or Polish action in Iraq?
I cannot help but feel that Rasul v. Myers has thrown the kitchen sink of justiciability doctrines at an attempt to raise international issues. I don’t think it was right to do so.
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 by the same Circuit in a previous case.
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…