Oral arguments in Lebron v. Rumsfeld took place before the Fourth Circuit on Wednesday. The oral argument audio recording is available here, and my argument preview, with background on the case as well as links to the lower court decision and the appellate briefs, is available here. The ACLU's Benjamin Wizner argued for the petitioner, and Sidley Austin's Richard Klingler and Baker Hostetler's David Rivkin argued for the respondents. The panel consisted of Judges J. Harvie Wilkinson, Diana Motz, and Allyson Duncan. As I was often unable to distinguish the voices of Judges Motz and Duncan in the audio for the argument, which I was unable to attend in person, I refer in the summary below to "the panel" where it was not clear to me which judge was speaking.
As I have already summarized the case, I will assume reader familiarity with it in what follows.
Most of the argument centered around the Bivens claim -- specifically, around the question of whether Bivens should apply to national security–related detention in the absence of clear congressional authorization, and whether the Uniform Code of Military Justice (UCMJ) provides Padilla an adequate remedy. Judge Wilkinson, who was broadly skeptical of applying Bivens to this case, played an outsize role in the argument.
The Petitioners' Case
Wizner begins his argument by stating that "it could not be more clearly established" that detention abuses of an American citizen in an American prison gives rise to a Bivens action. He argues that to deny the Bivens remedy or to grant the respondents immunity would be to "reward" them for subverting the criminal process by removing Padilla from it. Judge Wilkinson interrupts, noting that the Supreme Court has been "very skeptical" of Bivens actions and that, since permitting a Bivens action in this case would impinge on foreign affairs and national security, the Court would thus want evidence of clear congressional authorization for a cause of action and "they're not going to be sympathetic at all to implied rights of action." So where, Judge Wilkinson asks Wizner, is the clear congressional authorization for the cause of action?
Wizner replies that a rule requiring clear Congressional affirmation for a Bivens cause of action would effectively overrule Bivens, since Bivens is about implied causes of action. In addition, Congress has spoken to this issue. In section 7 of the Military Commissions Act of 2006 (MCA), Congress tried to deny habeas corpus for aliens designated as enemy combatants and also made it impossible for alien enemy combatants to bring civil actions regarding detention conditions. Thus, when we look for whether Congress has either explicitly created a remedial scheme that displaces Bivens, or alternatively has clearly signaled that Bivens should not apply, the language in the MCA, because it is only restricted to aliens, suggests that U.S. citizens should be able to bring Bivens causes of actions. Judge Wilkinson isn't buying this, however, and insists on a "positive grant" of congressional authority. Since the MCA doesn't say anything about private causes of actions for U.S. citizens, it can't be relied on to provide such a positive grant. Wizner repeats his point that Bivens doesn't require a positive grant. But Judge Wilkinson responds that, because this is in the foreign affairs and national security context (and thus not "any old context"), we should look for explicit congressional authorization. Wizner again repeats that Bivens is about implied causes of action.
Judge Wilkinson notes that Congress may have thought that habeas corpus and sanctions under the UCMJ were sufficient remedies, and thus a Bivens action wasn't necessary. Wizner "emphatically disagree[s]" that these would be alternative remedies for the "lion's share" of Padilla's claims. As a practical matter, habeas corpus wasn't available to Padilla during the time that the alleged abuse took place, since he was being held incommunicado without access to counsel. Also, the Supreme Court decided in Carlson v. Green that the habeas corpus remedy available to federal inmates does not preclude a Bivens remedy.
The panel then asks when the last time the Supreme Court has recognized a new (i.e., an extension of the original) Bivens remedy. Wizner's answer is the early 1980s, but he wants to argue that this case doesn't present the issue of fashioning a new Bivens remedy. The panel notes that the Court has advocated for "caution" in recognizing new Bivens claims, and thus the issue of special factors comes into play, especially when dealing with matters of foreign affairs and national security. Wizner disagrees. First, this case doesn't touch on foreign policy. It's about an American citizen in an American jail. Second, national security isn't a Bivens special factor, since the potential national security issues--i.e., sensitive information--can be adequately dealt with under the state secrets doctrine. Judge Wilkinson responds by noting the district court's observation that this suit would "unleash massive discovery requests upon the intelligence agencies." Wizner responds that this wouldn't necessarily happen, since just by having to answer the complaint, the respondents might provide sufficient information.
Judge Wilkinson takes this opportunity to crystalize his concern: before "wading into" foreign affairs and national security, imposing potentially significant discovery on the intelligence community, and applying money damages (which Judge Wilkinson notes is only one type of remedy, not the only kind) to high-level government officials, shouldn't the judiciary wait for an "express authorization . . . not an implication" from Congress? Damage actions are particularly problematic because they would operate as a "significant deterrent on how counterterrorism policies are executed and carried out."
Wizner responds that, first, the government can protect sensitive information through other methods--for example, the state secrets doctrine. He notes that the government has not intervened to state on the record that there would be sensitive information that would be disclosed if this case went to discovery. Second, the same sensitive information concerns are raised when appellate courts remand enemy combatant habeas corpus petitions to district courts; thus, the Supreme Court effectively decided in Hamdi v. Rumsfeld that district courts are capable of dealing with classified information. The special factors inquiry is limited to whether providing a Bivens remedy would interfere with Congress--the issue of interference with the Executive is handled by other means.
Judge Wilkinson responds that a Bivens money-damage remedy could deter national security officials from detaining or interrogating individuals suspected of terrorism because of the risk of ex post litigation. Thus, the judiciary should only create such a cause of action "in coordination with the legislative branch." Wizner responds that an official who has to make a hard decision in a "gray area" would be protected by qualified immunity. In addition, he quotes Justice Scalia's opinion in Correctional Services Corp. v. Malesco to the effect that "deterrence is . . . precisely the purpose of Bivens." Officials should be deterred from violating individuals' constitutional rights; thus, the deterrent effect of Bivens is a "virtue, not a vice."
Wizner quickly turns to Padilla's injunctive claim asking that his enemy combatant designation be lifted. To the district court's argument that a citizen sitting in a civilian jail should have no fear about military detention, Wizner points out that that is exactly what happened in 2002 when Padilla was first arrested. He asks to yield one minute of his time to the government to ask whether Padilla's 2002 enemy combatant designation is "still operative." To Judge Wilkinson's objection that this issue is too speculative because Padilla will spend at least 17 years in jail, Wizner responds that if the court declares that the President would have to redesignate Padilla an enemy combatant in accordance with Hamdi and Al-Marri v. Wright (4th Cir.), that would resolve the injunction issue. Judge Wilkinson responds that if the government tries to return Padilla to military custody some time in the (distant) future, that issue could be dealt with then.
A member of the panel then states that, in her opinion, a Bivens cause of action does not require congressional action, and that the government's argument relies on United States v. Stanley and Chappell v. Wallace as counseling caution to courts when providing for a Bivens remedy. Wizner responds that Stanley and Chappell do not stand for the proposition that there can be no Bivens action when the military is involved, but rather that members of the military cannot bring Bivens actions against the military. This case, by contrast, is about a civilian suing other civilians. Wizner concludes.
The Respondents' Case
Klingler gets up to argue for Captain Catherine Hanft, the former commander of the South Carolina military brig where Padilla was detained, and for other former military commanders of the facility. Klingler frames the issue as whether, in the absence of congressional authorization, the nation's "most hotly debated issues" will be decided in civilian court by civilian juries, and whether military officials will personally pay for "formulating and executing" various national security policies. The panel notes that, "by definition," Bivens claims have no statutory authorization. Klingler replies that he mentioned congressional authorization because, according to Stanley, Bivens is appropriate where "there is congressionally invited judicial intrusion into military affairs," but that a special factor that would bar a Bivens claim is a "congressionally uninvited intrusion." Klingler cites Middlebrooks v. Leavitt (4th Cir.) for the proposition that a civilian suing the military can be denied a Bivens action on these grounds. The panel asks Klingler whether a Bivens action would be available for a civilian who had not been designated an enemy combatant and who was only challenging the nature of the detention. Klingler replies that there wouldn't be, because Stanley makes clear that the judiciary cannot engage in "second-guessing" of military affairs without "congressional invitation." And, although Dunbar Corp. v. Lindsey (4th Cir.) allowed a Bivens action against the military in the absence of a congressional invitation, this was limited to cases (in that case involving land use) that don't involve Article I issues or issues of military discipline; Padilla's suit, by contrast, would implicate both.
Judge Wilkinson changes the subject to the issue of remedies, discussing at some length that both habeas and the UCMJ would provide, while not a full remedy, at least some relief to Padilla. He also expresses concern that many of the allegations regarding the conditions of confinement relate to Guantanamo, though Padilla was never held at Guantanamo, and that Padilla neither included much detail about the conditions at the military brig in the complaint nor tied the respondents to the specific conditions at the brig. Specifically, he expresses doubt that Rumsfeld "had any knowledge of the conditions in the South Carolina brig," and that, under the pleading standards articulated in Ashcroft v. Iqbal, the complaint thus lacks the necessary showing of the relevant "nexus," given that it is largely taken up with Guantanamo.
Klingler agrees, but the panel interrupts to ask about the the emails included in the complaint that discuss Padilla's treatment. Klingler argues that the only evidence bearing directly on the detention conditions at the brig point to the role of the United States Joint Force Command, not Captain Hanft or the other commanders of the brig. Thus, Klingler argues, not only does the complaint only allege a "bare allegation," which is insufficient under Iqbal to demonstrate plausible personal responsibility on the part of the respondents, but the exhibits attached to the complaint point to a different responsible party. As the court articulated in Fayettville Investors v. Commercial Builders, Inc. (4th Cir.), where the exhibits contradict the bare allegations in the complaint, the exhibits control.
Klingler moves on to the MCA. He argues that Congress in section 7 was responding to Rasul and Hamdan by blocking habeas suits for aliens held abroad, while simultaneously creating an avenue to the federal courts for such aliens. Judge Wilkinson cuts in to emphasize that Congress was addressing this limited issue and was not trying to address other issues (e.g., access to courts for detained enemy combatant citizens). Thus Congress did not provide, whether by implication or otherwise, an avenue to the courts for U.S. citizens. Klingler concludes.
Rivkin gets up to argue for Donald Rumsfeld. He begins by arguing that Congress, through the UCMJ, has created an "elaborate and effective system to enforce military discipline" and that this system protects the rights of those in military custody; thus, a Bivens remedy is foreclosed. Rivkin argues that Padilla was subject while in custody to the protections afforded by the UCMJ and was able to challenge his confinement through internal procedures.
Judge Motz asks Rivkin to address Padilla's Religious Freedom Restoration Act (RFRA) claim, and Rivkin argues that the realities of military detention mean that RFRA cannot be fully applied to military detention. Judge Motz asks Rivkin for a case on this point, and Rivkin replies that, to his knowledge, the courts have not addressed this particular issue. Judge Motz asks Rivkin why military detention should be any different than regular civilian detention, where the courts have held that RFRA applies. Judge Wilkinson cuts in and argues that RFRA "addresses itself" to civilian criminal justice system, not the military detention system. Because of the unique concerns raised by military detention, Judge Wilkinson continues, when Congress addresses itself to that area, it does so clearly and explicitly. Judge Motz quotes RFRA to argue that nothing in the statutory language excludes military detention facilities from RFRA's scope. Rivkin replies that the issue is one of context, and that Congress always speaks explicitly about military detention when trying to regulate it. Judge Wilkinson points out that RFRA is not applicable to individual respondents sued in their personal capacities. Judge Duncan points out that the uncertainty around RFRA's application in the military detention context might provide an argument for qualified immunity.
Rivkin returns to the issue of Bivens and why the UCMJ is a satisfactory alternate remedy that forecloses Bivens. First, unlike in the civilian system, where complaints need not be pursued, a complaint under the UCMJ prompts a mandatory investigation and failure to address a complaint of misconduct is itself an offense. Second, there are a number of sanctions that can be deployed if a member of the military is found to have engaged in wrongdoing, and military defendants have fewer procedural rights than do civilian defendants.
Judge Wilkinson brings the discussion back to RFRA and asks Rivkin how the Supreme Court's decision last term in Sossamon v. Texas bears on Padilla's RFRA claim. Rivkin apologies and says that he is not familiar with the case and was not planning to discuss RFRA. Judge Wilkinson says that he understands, but that when advocates divide an argument, they each have to be prepared to "field whatever ground balls are hit."
Rivkin returns to the UCMJ. The third reason that the UCMJ is a satisfactory alternative scheme is that even "very benign military punishments are an absolute career killer." Thus, it doesn't take much to produce an effective deterrent. Fourth, the military system is a system "permeated with consultation with lawyers," including regarding conditions of confinement. The upshot of these four factors is that the military is "shackled" (as it should be) by the UCMJ regarding military discipline. Thus, Rivkin argues, Stanley and Chappell should not be read as limited to military-to-military interactions. Judge Wilkinson notes that the UCMJ has been explicitly approved by Congress. Rivkin then cites Middlebrook, noting that, in that case, a Bivens remedy for a civilian plaintiff (a nurse who unsuccessfully tried to join an auxilliary part of the military and sued for employment discrimination) was foreclosed because of the military context, even though the plaintiff could not readily avail herself of the UCMJ. Rivkin also notes that, in Stanley, half of the defendants were civilians. Rivkin concludes.
Wizner begins by discussing the UCMJ. He argues that the respondents made the processes of the UCMJ unavailable to Padilla. Wizner notes that Padilla was denied access to counsel for the first two years of confinement, and that he was also not allowed to make complaints through the usual UCMJ process. Wizner notes, "Had the defendants actually abided by the Uniform Code of Military Justice, we would not be here today." Judge Wilkinson responds that the question is not whether Padilla was denied access to the UCMJ procedures, but whether the existence of the UCMJ precludes a court from extending Bivens so as to create a new remedy. Wizner disagrees, arguing that, because Padilla was denied access to the UCMJ remedies, he was effectively denied any adequate remedy, and thus the only one left to him is Bivens. In addition, Wizner argues, the respondents should not be allowed to use the fact of military detention to foreclose a Bivens remedy because that would beg the question as to whether Padilla's seizure from civilian jail was itself lawful, and would further allow future government officials to strip civilians of their constitutional rights by removing them from civilian prison to military detention.
Wizner emphasizes that the proper doctrine with which to deal with the various liability concerns is qualified immunity, not Bivens. Judge Wilkinson notes that one first has to decide whether a cause of action exists at all before going on to the issue of qualified immunity, because there can be no issue of immunity where there is no lawsuit. Wizner agrees with this "truism," but he argues that this is not a case of some new extension of Bivens. Rather, it fits under the existing Bivens causes of action as elaborated in the settled case law.
Wizner moves on to RFRA. He argues that the respondents can argue that RFRA should apply differently to military detention at the summary judgment stage, but the clear text of the statute's language means that, at least for the threshold inquiry, RFRA should presumptively apply to the case. And with that, Wizner concludes.
Judge Wilkinson thanks both sides and ends the proceedings.