Jack just flagged the Fourth Circuit's unanimous 39-page opinion throwing out Lebron v. Rumsfeld--one of the two pending Bivens suits brought by Jose Padilla arising out of his detention (and alleged abuse) as an "enemy combatant." Although Padilla's allegations (if true) would have stated serious violations of his constitutional rights arising out of his long-term incommunicado detention as an "enemy combatant" (and his alleged abuse while in custody), the panel (Wilkinson, Motz, Duncan) declined to recognize a Bivens remedy. There's a lot to say about Judge Wilkinson's disturbing opinion for the court--and I'll try to explain why it's disturbing below the fold.
The short of Judge Wilkinson's analysis is encapsulated within the following two passages:
Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.
In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn't clear enough, Judge Wilkinson concludes:
Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.
I've written before about why this line of reasoning is utterly incoherent in the context of whether to infer a Bivens remedy, since these are the very issues that are usually resolved through application of either the state secrets privilege or the qualified immunity defense. Indeed, this was the logic behind the dissents by Judges Sack and Calabresi in the en banc Second Circuit's decision in Arar, only here, we have alleged mistreatment of U.S. citizens within the territorial United States...
Thus, to hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief--that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla's case, this is a disturbing result going forward. In my view, at least, we should want government officials to worry that their mistreatment of detainees while in custody (especially U.S. citizens held without charges) might subject them to legal liability.
Does the Fourth Circuit really disagree? Apparently so...
[Full disclosure: I co-authored an amicus brief brief in support of Padilla before the Fourth Circuit.]