Why have victims of alleged governmental misconduct arising out of post-September 11 counter-terrorism policies met with virtually no success thus far in pursuing damages claims arising out of the government’s claimed abuses? It can't be the lack of merit to the allegations; virtually all of these lawsuits are being jettisoned at the motion-to-dismiss stage, a point at which we're supposed to assume that the plaintiff's allegations are, in fact, true. Instead, as in the D.C. Circuit's Doe v. Rumsfeld ruling earlier this month (reversing a district court decision that had allowed a U.S. government contractor subjected to military detention in Iraq to pursue a Bivens claim), the courts of appeals have consistently relied on a range of non-substantive doctrines to dismiss damages claims notwithstanding the assumption that the claims are, at their core, meritorious.
One view of decisions like Doe is that these cases are nothing more than one piece of a larger puzzle in which fewer and fewer civil plaintiffs have been able to recover in any suit alleging official misconduct. After all, it is a familiar trope that the Supreme Court has shown increasing skepticism in recent years toward civil plaintiffs in damages suits against government officers. Thus, the paucity of successful post-September damages suits is merely a microcosm of the larger difficulties all civil plaintiffs face these days in trying to obtain damages arising out of governmental wrongdoing.
In a new essay in the American University Law Review, I test this thesis as applied to four different doctrines: (1) the availability of Bivens remedies; (2) federal common law defenses to state-law suits against government contractors; (3) qualified immunity; and (4) the political question doctrine. I contrast the state of these doctrines in non-national security cases with how the same law has been applied in suits with national security over- or under-tones. As I conclude, closer inspection reveals fairly compelling evidence for the emergence of a new “national security canon,” by which I mean a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment.
Absent a change in direction, this trend will have two sets of consequences: First, national security policy will, in most cases, increasingly come to be an area over which the political branches exercise near-plenary control (thereby perpetuating, whether correctly or not, the argument that courts lack the institutional competence to resolve such claims). Second, as such, we may well come to understand the emergence of the national security canon over the past decade as another example of the “normalization of the exception”—the accommodation into existing law of practices and policies typically embraced only by virtue of their exigency and fleeting duration.
To be sure, because reasonable minds continue to disagree about the legality of the surveillance, detention, and treatment of terrorism suspects (and a host of other controversial measures) since September 11, different perspectives on the underlying legal questions will necessarily color our view of whether the absence of relief in these cases is a troubling development. Ultimately, though, the essay suggests that, as the national security canon becomes more deeply ingrained, so too the likelihood that it will expand into contexts other than those in which it has thus far been recognized.