Interrogation: Interrogation Abuses: Civil Liability

Oral Argument Preview in Lebron v. Rumsfeld (Padilla's Bivens Suit)

By Alan Z. Rozenshtein
Tuesday, October 25, 2011, 10:37 PM

Tomorrow, the U.S. Court of Appeals for the Fourth Circuit will hear oral arguments in Lebron v. Rumsfeld, in which Jose Padilla and his mother, Estella Lebron, appeal a district court's dismissal of a Bivens claim against former Secretary of Defense Donald Rumsfeld and other high-level government officials for alleged civil rights violations arising out of Padilla's detention at a South Carolina military base from 2002 to 2006. This is one of the numerous War on Terror-related Bivens cases that have been making their way through the courts. Like Vance v. Rumsfeld, in which the Seventh Circuit upheld a Bivens cause of action for two U.S. civilians who alleged that they were tortured by the government while working as military contractors in Iraq, it raises particularly interesting and challenging legal issues given that Padilla is also a U.S. citizen.

Padilla's opening brief is available here, and his reply brief is available here. The defendants' briefs are available here (for Donald Rumsfeld), here (for Leon Panetta), and here (for the remaining named defendants). We will post the oral argument recording, assuming one becomes available. Below is the factual background for the case, as well as a summary of the main points in the district court case and the various briefs filed with the Fourth Circuit. There's a lot of material to cover, so I've confined myself to the main points.


Jose Padilla's story is by now well-known. A U.S. citizen, Padilla was arrested in May 2002 in Chicago and briefly held on a material witness warrant stemming from the 9/11 attacks. President Bush quickly declared him an "enemy combatant" and transferred him to a military brig in Charleston, South Carolina, where he was held for the next three and a half years. Padilla alleges that, while in South Carolina, he was subject to an "abusive interrogation regime," including being deprived of the Koran and being forced to endure "extreme temperatures and continual disruption of his sleep," as well as threats of "torture and death."

Padilla petitioned for a writ of habeas corpus in the Southern District of New York, and his case was ultimately heard by the Supreme Court, which dismissed the petition on the grounds that it should have been filed in federal court in South Carolina, where the brig was located. On the same day, however, the Supreme Court announced in Hamdi v. Rumsfeld that U.S. citizens detained pursuant to the AUMF were entitled to limited review of their detention. Padilla refiled his habeas petition in South Carolina and the Fourth Circuit ultimately upheld his detention. Padilla petitioned for certiorari, at which point the government declared that it would no longer hold him in military detention and instead transferred him to Florida to face a criminal trial. This famously led then–Fourth Circuit Judge Michael Luttig to criticize the government for adopting tactics seemingly designed to keep the case out of the Supreme Court. Padilla was convicted on multiple criminal counts as sentenced to 17 years in jail, though the Eleventh Circuit has since rejected the sentence as too lenient.

The District Court's Decision

Padilla filed his suit in South Carolina District Court, where Judge Richard Mark Gergel denied his claims on both Bivens "special factors" and qualified immunity grounds.

Judge Gergel began by analyzing Padilla's Bivens claim, based on the Supreme Court's 1971 holding in Bivens v. Six Unknown Federal Narcotics Agents granting a cause of action for Fourth Amendment violations by federal officials (since expanded to cover violations of other constitutional rights), similar to that granted by 42 U.S.C. § 1983 against state officials. Noting that the Supreme Court had granted a cause of action in Bivens in part because there were "no special factors counseling hesitation in the absence of affirmative action by Congress," Judge Gergel analyzed Bivens's progeny, noting that the Supreme Court has increasingly resisted the expansion of the Bivens remedy beyond the early Bivens cases, "generally finding present 'special factors counseling hesitation.'" Crucially, these early cases did not involve national security or military issues, and Judge Gergel noted multiple district and appellate cases dismissing national security–related Bivens suits over the past several years. Judge Gergel concluded his Bivens analysis by noting multiple factors counseling against extending the Bivens remedy: the "entagle[ment]" of the judiciary in "issues normally reserved for the Executive Branch," the litigation costs that would be incurred by the government if the case went to trial, the disruption to government official forced to testify, and complex state secrets issues.

Judge Gergel began his qualified immunity analysis by noting the applicable standard:

[G]overnment officials "performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of what a reasonable person would have known" at the time the action was taken.

Based on the President's declaration that Padilla was an "enemy combatant" as well as the complicated litigation history culminating in Padilla's transfer to Florida for civilian trial, Judge Gergel concluded that "it is hard for the Court to imagine a credible argument that the alleged unlawfulness of Padilla's designation as an enemy combatant and detention were 'clearly established' at that time." As for Padilla's treatment while detained in South Carolina, Judge Gergel explicitly declined to address whether Padilla's constitutional rights had been violated, since "[a]t the time of the Padilla's detention by the Department of Defense, there were few 'bright lines' establishing controlling law on the rights of enemy combatants." Finally, Judge Gergel upheld qualified immunity in connection with Padilla's Religious Freedom Restoration Act (RFRA) claim since RFRA contained a "compelling state interest" exception for government action.

Having disposed of the Bivens and qualified immunity issues, Judge Gergel then dismissed Padilla's claims for declaratory and injunctive relief on standing grounds, since Padilla failed to allege sufficient facts that his military redetention was "actual or imminent."

Padilla's Opening Brief

Padilla argues that an extension of Bivens would be appropriate in this case because there is no alternative remedy available to him. Analyzing the Supreme Court's 2007 decision in Wilkie v. Robbins, Padilla argues that none of the three conditions that justify denying a Bivens remedy -- (1) "congressional preclusion," (2) "intrusion on 'the unique disciplinary structure of the Military Establishment and Congress'[s] activity in the field,'" and (3) "difficulty in defining a workable cause of action" -- exist in this case. With respect to the first factor, Padilla argues that Congress has only foreclosed civil actions for non-citizens (through the 2006 Military Commissions Act). With respect to the second, Padilla points out that, because he was seized and held domestically, a trial would not unduly burden military or intelligence officials or create discovery difficulties, in contrast to the district court's predictions. In addition, any discovery issues that came up could be handled through the state secrets privilege, which "requires the government, not an individual litigant, to assert the privilege after intervening." And with respect to the third factor, Padilla notes that the mere lack of congressional action to create a remedy does not mean that a judicially created remedy would therefore be unworkable. After all, the whole point of Bivens is to create a judicial remedy where Congress has not acted.

Padilla next argues that the defendants should not receive qualified immunity. The high-level argument here is that the district court erred in requiring a clear, on-point prior judicial decision before establishing that a particular action would be a clear violation of the Constitution. Padilla argues that substantive due process prohibits "coercive interrogation and detention for the purpose of interrogation" as well as "punishment without adjudication of guilt." On the later point, Padilla argues that his Eight Amendment rights were "at least as great as the eighth amendment protections available to the convicted prisoner" and that the interrogation he was subjected to "shock[ed] the . . . conscience" and violated the Eight Amendment. Second, Padilla argues that his right to counsel and to courts was violated. Third, he contends that his First Amendment rights to free exercise of religion, as well as to freedom of information, were violated. Fourth, he argues that his  detention violated the Fifth Amendment's Due Process guarantee, and, given Hamdi, that he should have been afforded some process to challenge his detention. He then argues that all of these constitutional violations were clearly established by 2002, when he was detained, and he rejects the district court's contention that his status as an "enemy combatant" made his case so "factual[ly] novel" that previous judicial precedent did not apply. Finally, he argues that the defendants are not entitled to immunity under RFRA because the district court, in his view, erred in applying RFRA's balancing test for qualified immunity.

Padilla then proceeds to argue that he has standing on two grounds: first, that he has "an objectively reasonable fear of military detention," and second, that he is suffering "the severe stigma of being branded a traitor." With respect to the first, he notes that standing should be evaluated at the time of filing, and that, in 2007, when he filed his suit in district court, he had not yet been convicted in civilian court and thus continued to the run the risk of redetention. Moreover, Padilla could potentially be redetained after being released from prison. With respect to the second point, Padilla cites a number of Supreme Court opinions noting that reputational damage is a sufficient harm to establish standing.

Defendants' Briefs

The defendants submitted three response briefs: one for Donald Rumsfeld, one for Leon Panetta, and one for the remaining named defendants. I will briefly summarize each brief, omitting duplicate or overlapping arguments as necessary for brevity.

Remaining Defendants' Brief

This brief, for Paul Wolfowitz, various former commanders of the South Carolina military brig, and others, is the longest and most comprehensive defendant brief. It begins with Padilla's Bivens claims, arguing first that the district court properly found that "special factors" counseled against extending the Bivens remedy. The brief identifies four factors, all related to the executive branch's unique role in national security:

(i) the commitment of responsibility for enemy designation and detention matters to the political branches, (ii) the direction that courts refrain from second-guessing military policies and operations, (iii) the risk of multifarious pronouncements from different branches on matters of foreign and military affairs, and (iv) the burdens and risks imposed on military operations, high-level policy formulation, and Presidential advice arising from a civil cause of action brought by the enemy against the chain of command.

The brief argues that Padilla's U.S. citizenship is not dispositive as to whether Bivens should be extended to his case, noting that prior decisions "over the past three decades that involved U.S. citizen plaintiffs and that declined to extend Bivens rested on separation of powers concerns that were not nearly as significant as those presented here"--to wit, guaranteeing national security.

The brief next argues that Padilla's habeas proceedings were a "suitable, existing process" to deal with his alleged injuries and thus that a Bivens remedy is unavailable to him. Importantly, just because the habeas proceeding did not allow for monetary damages does not mean that a Bivens remedy is appropriate. Quoting the Supreme Court's 2001 opinion in Correctional Services Corp. v. Malesko, the brief notes: "So long as the plaintiff ha[s] an avenue for some redress, bedrock principles of separation of powers foreclose[] judicial imposition of a new substantive liability" (alterations in the original).

Having dealt with the Bivens claims, the brief moves on to the issue of qualified immunity, arguing that "[n]one of the authority cited by Padilla and addressed abstractly to the civilian context comes close to establishing 'beyond debate' he had clearly established rights that were violated." The brief argues for a very high bar for a "clear" constitutional violation, where "existing precedent must have placed the statutory or constitutional question beyond debate." The brief cites the multiple district and appellate court opinions rejecting similar Bivens-type suits as evidence that the defendant's actions did not amount to a violation of Padilla's clearly established constitutional rights. The brief also argues that Padilla cannot sue the defendants under RFRA, since RFRA does not permit individual liability and that the defendants have qualified immunity under RFRA, in part because of its balancing test.

Finally, the brief argues that, given the Supreme Court's heightened pleading standards in 2009's Ashcroft v. Iqbal, Padilla failed to plead sufficient facts showing the defendants' individual participation in the alleged constitutional violations.

Rumsfeld's Brief

Rumsfeld's brief notes that the category of "enemy combatant" is well-established in U.S. law, going back at least to the Supreme Court's 1942 decision in Ex parte Quirin. And, as the Supreme Court decided in Hamdi, enemy combatants do not have all the rights and protections that criminal defendants or pre-trial detainees have. Thus, not only were the conditions of Padilla's detention not clear violations of his constitutional rights, but "Padilla received all the process that was due."

In arguing against Padilla's standing, the brief notes that Padilla's legal interests were affected by his designation as an enemy combatant, a designation controlled entirely by the President, rather any of the named defendants. Similarly, a judgment against the defendants, rather than the President, would not redress Padilla's injuries. In addition, the brief argues for dismissal on political question grounds, since the case implicates military and national security issues better left to the political branches.

Panetta's Brief

Panetta's brief, prepared by the Department of Justice, is limited to the standing issue. The brief argues that any fear of redetention is not imminent, both because the government has not expressed any desire to redetain Padilla, and also because Padilla is currently serving a 17-year prison term. The brief also argues that Padilla's stigma over being labeled an enemy combatant is insufficient, both because it is not tied to a "further cognizable injury" (since the threat of redetention is not imminent) and because the injury is subjective, rather than objective.

Padilla's Reply Brief

Padilla first answers the objection that habeas proceedings were an "alternative, existing process" to a Bivens cause of action. He notes that because he was held in South Carolina for two years before being given an opportunity to challenge his detention, he wasn't actually afforded his habeas rights as an adequate remedy. In addition, the habeas proceeding only evaluated whether he could be held on the facts as stipulated -- it did not itself afford an opportunity to litigate the facts themselves. Finally, because Bivens is based "on the deterrence of individual officers who commit unconstitutional acts," it requires a sanction to be effective, which a habeas proceeding does not provide. Having disposed of the habeas argument, Padilla notes that there are no other adequate avenues for relief, as the Uniform Code of Military Justice does not provide "remed[ies] to the victims of unlawful abuse," and the Military Claims Act would likely not apply to Padilla because of his designation as an enemy combatant.

Padilla then emphasizes that the "special factors" limiting Bivens "involve uninvited 'interference with legislative, rather than executive, prerogative," and that "the 'intrusion' into executive-branch warmaking authority that might be caused by this litigation are properly addressed through other doctrines, including evidentiary privileges and, where appropriate, qualified immunity." Padilla argues that, under the defendants' interpretation of Bivens, "any United States citizen who is gravely injured by the unlawful conduct of military officials" would be deprived of a Bivens remedy.

Padilla addresses the qualified immunity arguments by first noting that, prior to the district court's ruling, "no court had suggested that a citizen’s right to be free from torture could be abrogated by a status or classification unilaterally imposed on him by his torturers." He then discusses in detail how the complaint alleges sufficient involvement by the named defendants to satisfy Iqbal. Finally, Padilla analyzes the statutory langauge of RFRA to conclude that it does, in fact, authorize individual liability for a "person acting under color of law."

Padilla responds to the standing argument that only the President was responsible for Padilla's designation as an "enemy combatant" by noting that "[n]o court has ever held that subordinate federal officers are immune from liability for grave misconduct so long as they act pursuant to a presidential order--much less that courts lack jurisdiction to hear such claims." In addition, Padilla notes that the interrogation practices that Padilla was subjected to were approved by Rumsfeld, without the President's knowledge. Finally, Padilla notes that his incarceration does not make the threat of redetention any less imminent, and that injury to reputation "can nonetheless suffice for purposes of constitutional standing."