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Thursday, January 24, 2008

The "National Security Exception" to Bivens

Over at Opinio Juris, Roger Alford has the latest in a series of posts related to the Padilla v. Yoo suit and the more general issue of Bivens claims in terrorism cases. As Roger writes, "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." [Bivens, for the non-Fed Courts geeks,  is a 1971 Supreme Court decision providing that, in certain situations, courts may infer a self-executing (and non-statutory) damages remedy for violations of constitutional rights by federal officials.]

First off, and apologizing for the double negative, I'm not sure that there isn't greater agreement about Roger's assertion. One need look only at the Brooklyn district court's decision in the Maher Arar case, dismissing his damages suit because of amorphous "national security" concerns that counseled against inferring a Bivens remedy, for proof of that. [Roger's post also discusses the D.C. Circuit's similar decision last week in Rasul v. Myers.] But more importantly, I think this is a disturbingly myopic reading of Bivens, for reasons I detail below the fold...

I've written previously on the question whether there should be a possible "national security exception" to Bivens claims, albeit in the context of Arar, and I think a lot of what I said there is relevant here. First, at least originally, the idea of "special factors counseling hesitation" in inferring a Bivens remedy was focused on Congress, and on the question of whether Congress had considered (and either provided or refused to provide) a statutory remedial scheme. Thus, in later cases like Bush v. Lucas and Chappell v. Wallace, for example, the Court declined to infer a Bivens remedy entirely because Congress had considered whether (and to what extent) it should provide a remedy for the alleged constitutional violation.

In other words, as I wrote then, "where Congress has not acted at all, let alone remedially, the Supreme Court has never suggested that Bivens should be foreclosed; in those cases, Bivens is most appropriate, as the only serious check on unconstitutional governmental action." I also explained in the piece why I thought arguments based on deference to the Executive were un-convincing.

But more generally, I just don't see why it is less important to remedy violations of clearly established constitutional rights simply because those rights were violated in the context of the "war on terrorism." As I wrote in reference to the district court's decision in Arar,

if amorphous “national security concerns” are sufficient to preclude courts from creating a Bivens remedy, then Bivens’s role as a deterrent will be effectively eviscerated in any case even tangentially implicating the security of the nation. What is to stop the next federal officer from detaining the next Maher Arar and rendering him to the next Syria? Again, that is why these are the cases where Bivens is the most important — where Congress, as the instrument of popular sentiment, is the least likely to look out for the rights of those swept up in the proverbial dragnet, and is the least willing to create remedies for constitutional violations to the news of which we have become too accustomed.

I'm not sure where I come down on the merits of Padilla v. Yoo, specifically (although I think Padilla's suit against his immediate captors is far more important). But Roger's suggestion that, as a general matter, Bivens is completely inappropriate in any "terrorism" case strikes me as rather inconsistent with the reasons the Supreme Court has provided for its articulation of the Bivens remedy in the first place.

Posted by Steve Vladeck on January 24, 2008 at 12:05 AM in Blogging, Constitutional thoughts, Steve Vladeck | Permalink


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Howard (G.) -- My apologies; I think I misunderstood part of your previous comment. I actually don't think you and I disagree about too much, including that enemy soldiers during wartime have exceedingly little in the way of constitutional rights, even if they are U.S. citizens. I guess the point of departure between us is that I think those concerns are largely (not entirely) irrelevant to whether or not to infer a Bivens remedy; they would just go to a quick dismissal on the merits.

Lou -- I agree that Bivens is dying (although I'm not sure it's dead yet). But I'm not sure the lower courts should be trying to hasten its demise. It's true that an amendment to the FTCA would make a whole lot of sense (although it would be somewhat inconsistent with the FTCA to cover intentional torts), but short of that, I would've thought courts should err on the side of _inferring_ a constitutional remedy, rather than denying one...

Posted by: Steve Vladeck | Jan 25, 2008 3:27:25 PM

Steve: I agree with you that there should not be a "terrorist" or "national security" exception to Bivens. There is, however, a POW exception because prisoners of war do not enjoy constitutional rights relatively to their detention as POWs even if they are US Citizens and even if they are held inside the US. Padilla certainly is entitled to all of his rights during his criminal trial in Miami. He is entitled to rights in any civil litigation on any other matter. However, you create an impossible logical dilemma if you assert that the constitution extends to a POW.

International law governs prisoners of war and is superior to the law of any individual country. Furthermore, inside a normal POW camp (where there is more than one prisoner) the ordinary military discipline of the enemy army applies to the internal chain of command up to the highest ranking prisoner. There can be only set of laws that control any situation. If the enemy officer decides to cane a soldier for some infraction of enemy military rules, the soldier does not then have a Bivens action against the Secretary of Defense for allowing his own army to impose its own military punishment in violation of "his Eighth Amendment rights". Nor can a female soldier forced to wear a veil by other members of the camp then turn around and sue the camp commander for violations of the Fourteenth Amendment.

International law prevents us from interfering in the internal affairs of the prisoners. We can no more impose our views of individual freedom on them than they can impose their views of Shari'a on prisoners they capture. Because a POW who is also a US citizen remains subject to the internal camp chain of command, we cannot even assert that the constitution applies to him, although we can choose to separate him from all other prisoners so that, like Padilla, he becomes his own POW camp.

Now a guard who violates military rules for the treatment of prisoners can be brought up on charges under the UCMJ, but that is because we have rules not because the POW has rights. Generally, the UCMJ and military rules (if they are followed) should guarantee that the prisoners are treated according to the Third Geneva Convention. If there is a dispute, it is mediated through the ICRC. Such questions are in the form of an international dispute between the US represented by the camp officials and the enemy army represented by the highest ranking POW. The soldier whose treatment is in question has no personal rights or standing here because he has to accept whatever orders are given by his superior officers.

Which is why a dispute about the treatment of POWs is inherently a matter of military and foreign policy as the original quote suggested. It is a dispute between two armies represented by the highest ranking officers locally available. At that point any guard who committed an offense and any prisoner who was abused are simply bargaining chips for the two sides. We can punish the guard, but that is our business. If that is how the matter is settled, then it cannot be reopened by some lawyer who comes into court claiming to represent the individual POW. There can only be one set of rights here, and like it or not all the rights belong to the army to which the soldier belongs and not to the soldier himself. If you don't like that, don't enlist.

Posted by: Howard Gilbert | Jan 24, 2008 9:51:00 PM

While the Court in the 1980s focused its "special factors counseling hesitation" analysis upon Congressional action, this is certainly no longer its practice. In Wilke v. Robbins (US 2007), the Court takes the view that special factors might be any concerns that the Court, sitting like a quasi-common law court, might find important to the creation of a cause of action--not just Congressional action. So the potential for the district court in Yoo to proceed down this road would comport with the Supreme Court's most recent approach (at least, this is how I read it).

While I agree that national security could be used to bar all sorts of other worthy Bivens claims and probably bad policy, the Bivens doctrine is in its death throws anyway. See Malesko and the circuits post Malesko. Or put another way, I do not see Bivens (absent a radical reversal of course) operating as an effective check on the abuse of federal power generally in the future with or without the national security exception. Perhaps Congress should amend the FTCA to incorporate a 1980-era version of Bivens. But I doubt Bivens will do much heavy lifting in the future.

Posted by: Lumen Mulligan | Jan 24, 2008 7:14:53 PM

Howard (G). -- Leaving aside your rather stilted view of the constitutional rights of U.S. citizens, on which I think we'll have to agree to disagree, I think you're conflating the merits question with the availability of a remedy... Whether there should be a Bivens remedy on the _assumption_ that the plaintiff's rights were violated is a separate question from whether his rights were in fact violated. And what is so disturbing about the cases Roger and I have noted is that, even though they seem to be strong cases for inferring a remedy (because Congress hasn't addressed the question of whether or not there should be one), the courts decline to do so for amorphous and poorly articulated "national security" concerns.

It may certainly be true that most of these cases should be losers on the merits, but that's just not the question I was really addressing. Rather, the question of whether there should be a remedy on the _assumption_ that there is a claim on the merits is the necessary antecedent. I, for one, don't like the precedent that _any_ U.S. citizen cannot vindicate his constitutional rights in a damages suit that implicates "national security". This isn't about Padilla; it's about the Brandon Mayfields of the world.

Posted by: Steve Vladeck | Jan 24, 2008 6:49:12 PM

Roger actually says "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" That is different from your characterization that "Bivens is completely inappropriate in any 'terrorism' case." Terrorism is plausibly a criminal justice issue where constitutional protections apply. The detention of prisoners of war, however, is a matter of international law where constitutional protections do not apply. Disputes about POW treatment are national policy issues mediated by the ICRC. This is a particularly difficult matter when the enemy has explicitly rejected international law and the Geneva Convention and routinely beheads prisoners. This is not to say that we should then be free to behead our prisoners, but neither should we allow them to whine like Padilla.

"49. Mr. Padilla was forced to endure the introduction into his cell of noxious fumes that caused pain and discomfort to his eyes and nose." The commander of the brig has already testified that it is located in the bad part of town and when the wind blows from the wrong direction there are unpleasant industrial smells to which he, all the guards, and the prisoners are exposed.

"e. Administering to Mr. Padilla, against his will, chemicals that Mr. Padilla believed to be psychotropic drugs." the commander noted that the injection Padilla got was a flu shot like everyone else.

"d. Unconstitutional Interrogations. Acting under color of law and his authority as a federal officer, Defendant Yoo subjected Mr. Padilla to coercive and involuntary illegal interrogations, both directly and through unlawful conditions of confinement designed to aid the interrogation, all in violation of Mr. Padilla’s Fifth Amendment rights to ... freedom from self-incrimination." This is relatively easy. Padilla has had one criminal trial in Miami and one can search the record to verify that no statements from his interrogation were introduced in that trial. That is as far as the Fifth Amendment right against self-incrimination extends.

Padilla is a traitor who came to the US on a mission assigned to him by the commander of the 9/11 attack to blow up apartment buildings and kill thousands of American women and children in their sleep. He now complains that his constitutional rights have been violated because he doesn't like the smell of that part of Charleston. It would seem to me that those who have legitimate constitutional questions about administration policy would be deeply offended by a suit that trivializes those concerns. In any event, Padilla's delicate nose should not allow him to go to court and object to the location where the government chooses to keep prisoners of war. Nor are interrogations of enemy soldiers intended to obtain military intelligence against a wartime enemy conducted under exactly the same rules as interrogation of a criminal suspect when his statements are to be entered into evidence in a criminal proceeding.

However, the general inapplicability of Bivens to war is better demonstrated by other cases. The bloodiest battle in American history was fought in Mr. Miller's cornfield near a creek named Antietam. Neither army obtained a warrant to enter the property. Nor was a warrant issued for Little Roundtop or any other battlefield. Armies engaged in battle are not subject to the Fourth Amendment rules on search and seizure or Fifth Amendment due process when they kill someone in battle. Nor should some wounded enemy soldier (who would have a hell of a better case than Padilla does) have a right to bring a Bivens case against the soldier who wounded him because some Yale lawyer turns on the rhetorical spigot and starts complaining about his "right to be free from military detention guaranteed by the Fourth Amendment to the U.S. Constitution, the Due Process Clause of the Fifth Amendment to the U.S. Constitution, the Habeas Suspension and Treason Clauses of the U.S. Constitution, and Article III of the U.S. Constitution."

I don't have nearly as sensitive a nose as Padilla does, but even I can smell this particular load of bullsxxx.

Posted by: Howard Gilbert | Jan 24, 2008 1:28:05 PM

Focusing on Bivens and whether the cause of action should be available puts the emphasis in the wrong place. The question of national security justification should be part of the analysis of the constitutional rights asserted--whether there was a violation might depend on context, including national security justification. But we should not short-circuit or preempt that analysis by simply saying that the claim does not exist.

Posted by: Howard Wasserman | Jan 24, 2008 12:43:27 PM

Considering that Padilla isn't seeking monetary damages.. and essentially a declaratory judgment, I think it would be hard to for Yoo (or the government) to claim that discovery issues (which is what the SSP is limited to in the 9th) prevents a declaration that some legal analysis is unconstitutional.

Posted by: S.cotus | Jan 24, 2008 8:50:16 AM

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