I received the following response from Richard Klingler to my ACSblog post on Monday re: the Al-Aulaqi suit and Bivens, and thought I'd post it in its entirety (below the fold) before replying (also below the fold):
Steve’s post arguing that courts should recognize Bivens actions seeking damages from military officials based on wartime operations, including the drone strikes at issue in al-Aulaqi v. Obama, seemed to omit some essential legal and policy points. The post leaves unexplained why any judge might decline to permit a Bivens action to proceed against military officials and policymakers, but a fuller account indicates that barring such Bivens actions is sensible as a matter of national security policy and the better view of the law.
A Bivens action is a damages claim, directed against individual officials personally for an allegedly unconstitutional act, created by the judiciary rather than by Congress. The particular legal issue is whether a suit addressing military operations implicates “special factors” that “counsel hesitation” in recognizing such claims (injunctions and relief provided by statute or the Executive Branch are unaffected by this analysis). In arguing that the answer is ‘no,’ the post (i) bases its Bivens analysis on how the Supreme Court “has routinely relied on the existence of alternative remedial mechanisms” in limiting Bivens relief; (ii) argues that the Bivens Court “originally intended” that there be some remedy for all Constitutional wrongs in the absence of an express statutory bar to relief; (iii) invokes the policy interest in dissuading military officials from acting unlawfully, and (iv) argues that courts should ensure that a remedy exists if an officer has no defenses to liability (such as immunity).
The post’s first point, which underpins the legal analysis, is simply not correct. United States v. Stanley, the Supreme Court’s most recent and important Bivens case in the military context, directly rejected that argument: “it is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford Stanley, or any other particular serviceman, an ‘adequate’ federal remedy for his injuries. The ‘special factor’ that ‘counsels hesitation’ is … the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.” Wilkie v. Robbins, too, expressly indicated that consideration of ‘special factors’ is distinct from consideration of alternative remedies and may bar a Bivens claim even where no remedy exists (and that in a Souter opinion for eight Justices).
Similarly, the Bivens Court’s original intention is a poor basis for implying a damages claim in the military context. Justice Brennan in 1971 no doubt would have resisted the separation of powers principles reflected in cases that have since limited Bivens relief, especially for military matters. Instead, the relevant inquiry needs to address either first principles (did Congress intend a remedy and personal liability in this particular context? should judges imply one?) or the line of Supreme Court cases beginning with, but also authoritatively limiting, Bivens. There’s considerable support for denying a Bivens remedy under either of those analyses: for the former, support in the form of the presumptions deeply rooted in precedent and constitutional law that disfavor implied causes of action, as well as the legal and policy reasons that have traditionally shielded military officials from suit or personal liability; for the latter, Stanley, Chappell v. Wallace, Wilkie, the last thirty years of Supreme Court decisions that have all limited and declined to find a Bivens remedy, and various separation of powers cases pointing to a limited judicial role in military affairs.
The post’s policy point regarding incentives that should be created for military officers to do no wrong is hardly as self-evident as the post claims. Congress has never accepted it in the decades since Stanley and has instead generally shielded military officials from personal financial liability for their service. Supreme Court and other cases from Johnson v. Eisentrager to Stanley to Ali v. Rumsfeld have elaborated the strong policy interest in not having military officials weigh the costs and prospects of litigation and thus fail to act decisively in the national interest. Many other Supreme Court cases have emphasized the potential adverse security consequences and limited judicial capabilities when military matters are litigated. The post criticizes Judge Wilkinson’s view of the adverse incentives that Bivens liability would create. That view is, however, supported by decades of Supreme Court and other precedent (and strong national security considerations) and was joined in that particular case, as in certain others, by a liberal jurist -- while the post’s view is, well, popular in faculty lounges and among advocacy groups that would relish the opportunities to seek damages against military officers and policymakers.
As for the post’s proposed test, it fails to account for either the Bivens case law addressed above or the separation of powers principles and litigation interests identified in the cases. It would simply require courts to determine facts and defenses, often in conditions of great legal uncertainty and following discovery, which begs the question whether Congress intended such litigation to proceed at all and fails to account for the costs of litigating military issues -- to the chain of command, confidentiality, and operational effectiveness. As noted in Stanley, those harms arise whether the officer is eventually found liable or prevails. Those costs and the appropriate limits on the judicial role are recognized, too, in the separation of powers principles that run throughout national security cases – principles that jurists, even jurists sympathetic to the post’s perspective, should and will weigh as they resolve cases brought against military officials and policymakers.
There's a lot here that merits a response (including the observation that Richard has a strange view of what goes on in faculty lounges), but I'd like to focus my reply on three specific observations:
1. The Narrowness of Stanley
Like the D.C. Circuit in al-Zahrani v. Rodriguez, Richard places an enormous amount of weight on the Supreme Court's 1987 decision in United States v. Stanley, which (controversially) declined to recognize a Bivens action in a suit brought by a former serviceman claiming that the Army secretly administered LSD to him as part of an experiment. Richard is absolutely correct that Stanley rejected the argument that the availability of Bivens in all cases turns on the lack of adequate alternative remedies under federal law. But a critical part of the reasoning in Stanley was that the plaintiff was seeking to challenge his treatment while he was a servicemember. As the Court had already established under the FTCA in Feres v. United States, there are special reasons to prevent servicemembers from using the federal courts to vindicate claims against their (former) superior officers--even those, like the FTCA claims in Feres, expressly provided for by statute. As Justice Scalia explained, the key in Stanley was that the "special factor counseling hesitation," i.e., “the unique disciplinary structure of the Military Establishment and Congress' activity in the field," "require[s] abstention in the inferring of Bivens actions as extensive as the exception to the FTCA established by Feres and United States v. Johnson." Quoting Feres, Justice Scalia thus described the "holding" of Stanley as that there can be "no Bivens remedy . . . for injuries that 'arise out of or are in the course of activity incident to service.'"
The relationship between Stanley and Feres is critical, because, contra Richard's response, it demonstrates that those cases are not about tort suits that might interfere with military affairs in general (what Richard describes as the "limited judicial role in military affairs"), but rather about tort suits by servicemembers, who arguably forfeit at least some of their constitutional rights when they join up; and for whom, in any event, a separate disciplinary system created by Congress already exists. I don't think Richard misreads Stanley; but no subsequent Supreme Court decision takes a similarly dim view of Bivens in a suit brought by someone who wasn't part of our armed forces.
2. Bivens Isn't an Immunity Doctrine (But Qualified Immunity Is)
In any event, Richard's central critique is that my ("faculty lounge") understanding of Bivens fails adequately to account for the very real-world separation of powers and litigation interests implicated in these suits. In so arguing, Richard quite helpfully proves the very point I was trying to make in my initial post--that too many commentators (and lower court judges) have increasingly conflated the Bivens question with other considerations that may militate against relief in suits like Aulaqi. Just to reiterate what I wrote on Monday, the cause-of-action question should assume that these concerns are not present, because holding that there is no Bivens claim in cases like Aulaqi is to categorically reject the possibility that a meritorious claim might ever arise under remotely similar facts. Richard may be comfortable with a world in which the government can never be held liable for anything it does under the guise of national security, but I'm not--and you shouldn't be. To be clear, that doesn't mean Aulaqi should win; it just means I don't think these concerns go to the existence vel non of a cause of action under Bivens--the first of a veritable smorgasbord of procedural issues raised by the suit.
Richard thinks that this understanding makes me naive. But a closer reading of both my original post and the forthcoming article by Carlos Vazquez and me to which it linked should make abundantly clear that I take these concerns very seriously--I just think they come into play in other places. Qualified immunity, for example, allows government officers to move to terminate suits like Aulaqi long before any discovery takes place, and the denial thereof is immediately appealable (case in point: Padilla v. Yoo). So in a case in which the defendant's conduct did not violate "clearly established" law, the concerns Richard articulated will quickly and readily be disposed of at the motion-to-dismiss stage even with recognition of a Bivens cause of action, with minimal intrusion into sensitive military affairs. The same can be said for the amorphous separation-of-powers concerns Richard identified (which are usually handled through either qualified immunity or, in appropriate cases, the political question doctrine), and the state secrets privilege (and "potentially adverse security consequences"). Indeed, what's wholly missing from Richard's critique (and all of these lower-court opinions) is any explanation for why these other doctrines don't adequately account for the government's (and government officer's) interests on a case-specific basis. If such arguments are out there, I'm all ears...
Instead, what Richard is ultimately arguing in his response is that Bivens should effectively be understood as an absolute immunity doctrine in suits implicating military affairs. It's not just that this isn't what Stanley held (see above); it's that this fundamentally misunderstands not just the Court's original decision in Bivens itself, but the analytical approach it has taken even in the subsequent cases narrowing Justice Brennan's original reasoning.
3. How I Learned to Stop Worrying and Love [Damages Suits]
Finally, although Richard limits his view of the limited judicial role that courts should play in military affairs to damages suits, he never explains why damages are more intrusive than situations in which courts have shown more of a willingness to intervene--e.g., detainee habeas cases. As Andrew Kent pointed out over at Slate, there's more than a little tension in a body of law that embraces suits that interfere with ongoing governmental operations while disfavoring those that pursue liability after the allegedly unlawful conduct has ceased. And it wasn't Justice Brennan, but rather Justice Harlan (the younger), who explained in Bivens that "the presumed availability of federal equitable relief against threatened invasions of constitutional interests appears entirely to negate the contention that the status of an interest as constitutionally protected divests federal courts of the power to grant damages absent express congressional authorization."
To be sure, Andrew and I come out differently on how that tension should be resolved, but it's hard to disagree with his descriptive thesis. And if it's the Constitution that requires a cause of action in those contexts (see, e.g., Boumediene), is the argument utterly implausible that the Constitution might also counsel in favor of relief in a case where a U.S. citizen's constitutional rights are violated, no defenses are available, and no other remedies will make him (or his decedents) whole? Indeed, wouldn't it make it easier to argue against such aggressive judicial intervention if the more moderate, retrospective review provided by damages suits were available ex post?
Richard is absolutely right that the Supreme Court has shown increasing hostility toward Bivens suits, and that this hostility has included a departure from some of the analytical underpinnings of Justice Brennan's opinion for the Court. But that doesn't change the simple and ineluctable fact that Bivens is a cause of action the existence of which cannot be left to case-specific factual circumstances. The answer may be that Richard would disclaim Bivens remedies even for egregious governmental misconduct against innocent bystanders for which there is no viable defense so long as the subject-matter is "national security." To be clear, those may not be the facts of Aulaqi. But on Richard's view, the facts just don't matter--and never will.