Detention & Guantanamo

Oral Argument Yesterday in Doe v. Rumsfeld [Updated]

By Alan Z. Rozenshtein, Lawfare Staff
Tuesday, March 20, 2012, 12:05 AM

The D.C. Circuit heard oral argument yesterday in Doe v. Rumsfeld (11-5209), a Bivens case brought by a U.S. citizen working as a military contractor in Iraq who alleged detention and interrogation abuses by the U.S. government. The case is similar to Lebron v. Rumsfeld and Vance v. Rumsfeld, two recent Bivens cases brought by U.S.-citizen plaintiffs. In Lebron, the Fourth Circuit refused to extend a Bivens remedy, while the Seventh Circuit is currently awaiting rehearing on its decision in Vance permitting a Bivens action. Given the rough time war-related Bivens suits have had over the past few years, Doe likely faces an uphill battle. The briefs reflect as much and generally cover well-trodden ground, though Doe's brief and the government's reply brief have an interesting discussion of how Congress's detention legislation over the past decade, especially the Detainee Treatment Act, relates to the Bivens "special factors" analysis.

The argument took place before a panel consisting of Judges David Sentelle, Janice Brown, and Thomas Griffith. The lower court opinion is available here, the government's brief here, Doe's brief here, and the government's reply brief here. We'll post the argument transcript when it become available.

Update: LegalTimes reports on the oral argument here.


Doe's complaint alleges as follows: In late 2004, the plaintiff, a U.S. citizen and army veteran, traveled to Iraq to work as a military contractor. He served as translator for a marine intelligence unit that made contact with the powerful Iraqi sheikh Abdul Sattar Abu Risha. In November 2005, the day before his scheduled departure from Iraq, he was interrogated by military personnel who denied him access to counsel and physically abused him. He was then transported to Camp Cropper, an American facility near Baghdad that held high-value detainees. Doe was held at Camp Cropper for more than nine months, and he was subjected there to more physical and psychological abuse. Two Detainee Status Board hearings were held during Doe's detention, the first of which authorized his continuing detention. Doe was released in August 2006, shortly after the second hearing. Doe was never formally charged with a crime, although he was blacklisted from future employment with American military contractors and was placed on a watch list. The result is that he gets interrogated by customs agents whenever he reenters the country.

In November 2008, Doe sued Donald Rumsfeld in his personal capacity in D.C. district court for violations of Doe's constitutional rights, including substantive and procedural due process violations. Doe alleged that Rumsfeld approved the specific interrogation and detention practices at Camp Cropper and controlled the release of detainees. He grounded his causes of action in two alternate sources: (1) the Detainee Treatment Act (DTA) and (2) a Bivens remedy. Doe also sued various other government officials in their official capacities, both for return of property that was taken from him and for what he alleged was a violation of his right to travel. The government moved to dismiss Doe's claim for lack of subject matter jurisdiction and for failure to state a claim.

The District Court's Decision

Judge James Gwin issued the district court opinion. He granted the government's motion to dimiss the procedural due process and property claims. However, he rejected the motion to dismiss the substantive due process claims, holding that a Bivens remedy was available and that Rumsfeld was not entitled to qualified immunity for those claims. He also denied the government's motion to dismiss the right-to-travel claim, holding that it was sufficiently pleaded.

After reviewing the applicable legal standards and quickly dismissing Doe's DTA argument as unsupportable by the legislative text, Judge Gwin addressed the Bivens argument. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court created a private right of action, in the absence of congressional authorization, against federal officials for certain alleged Fourth Amendment claims. Although the Court has resisted expanding Bivens beyond its original context, Judge Gwin emphasized that the Court has "neither overruled Bivens nor explicitly precluded additional Bivens remedies." A Bivens remedy is available, Judge Gwin noted, as long as there are no alternative remedies available and no "special factors counsel[] hesitation in the absence of affirmative action by Congress."

In holding that a Bivens remedy was available, Judge Gwin first noted that there was no alternative remedy, a fact which the government did not dispute. Neither did special factors preclude a Bivens remedy. Allowing Doe's suit would not lead the judiciary to impermissibly infringe on the political branches' constitutionally granted discretion over military and foreign affairs, since Doe's alleged detention and abuse occurred near the end of his stay in Iraq and when he was away from the battlefield. Quoting Hamdi v. Rumsfeld, Judge Gwin also emphasized the important role for courts to play in safeguarding the rights of citizens during wartime, and cited contemporaneous decisions by other district courts allowing smilar suits. Judge Gwin also emphasized that Doe is a U.S. citizen rather than an alien as a further reason to grant a Bivens remedy. Finally, Judge Gwin addressed the "real world consequences" that the government warned would result if a Bivens suit were permitted. Although the threat of litigation could chill military decisionmaking, Judge Gwin noted that the whole point of Bivens was to deter certain types of government actions. And though Doe's suit might require the disclosure of sensitive information as well as judicial adjudication of complicated military issues, both of those issues could be adequately dealt with through the traditional tools of civil litigation.

Having established the availability of a Bivens remedy, Judge Gwin turned to the government's argument for qualified immunity. Judge Gwin first held that Doe had alleged sufficient acts to support his claim against Rumsfeld for substantive due process violations. However, Doe failed to allege sufficient facts for the procedural due process and denial-of-access-to-courts claims, and Judge Gwin thus  dismissed those claims. Turning to the substantive due process claims, Judge Gwin found that Doe had alleged sufficient facts of an actual constitutional violation -- specifically, the physical and psychological abuse and extreme interrogation that had allegedly occurred. Judge Gwin rejected the government's argument that the "pursui[t] of legitimate government interests, even if in an allegedly unauthorized manner" could excuse abuses, especially where they rose to the level of "shock[ing] the conscience." Judge Gwin also held that Doe had sufficiently pled that Rumsfeld's actions amounted to "deliberate indifference to his substantive due process right." Finally, Judge Gwin held that the substantive due process rights at issue were "clearly established" at the time of the alleged abuse, even if the specific fact pattern in this case was novel.

Judge Gwin finished his opinion by addressing Doe's claims relating to seized property and the right to travel. He found that Doe had insufficiently pleaded that the seizure of property was a "final agency action" as required under the APA and thus dismissed the claim. However, he found that Doe's right to travel claim was sufficiently specific and thus denied the government's motion to dismiss.

The Government's Brief

The government first argues that the district court should not have permitted a Bivens remedy. It notes that "[t]he question here is not how extreme the allegations asserted are. Rather, it is who should decide whether such a damages remedy should be provided in this context." It notes that the Supreme Court has resisted expanding Bivens claims beyond their original contexts and emphasizes that courts are generally hesitant to get involved in national security issues. The government points to the D.C. Circuit's holding in Ali v. Rumsfeld, which dismissed a Bivens suit by Afghan and Iraqi citizens detained by the U.S. military, to establish that it would be "improper for the courts on their own to recognize 'a Bivens action to be brought [by military detainees] against American military officials engaged in war'" (alteration in original). Even though Doe is a U.S. citizen, Ali still controls because Doe's Bivens suit would involve "judicial intrusion into matters of national security and sensitive intelligence information" and would interfere with the conduct of war given the possibility of "far-reaching discovery concerning events that occurred in the field of battle." In addition, the government argues that the existence of alternate remedies -- for example, the Military Claims Act's administrative process for monetary relief -- and comprehensive detainee treatment legislation demonstrates Congress's intent not create a statutory cause of action in this context.

The government next argues that Rumsfeld is entitled to qualified immunity. It argues that Doe's complaint does not plead a "plausible causal connection" between Rumsfeld's actions and the alleged abuse. It emphasizes that Doe cannot point to specific evidence of Rumsfeld's evaluation and approval of the alleged interrogation and detention tactics. It disputes the claim that Rumsfeld secretly modified the Army Field Manual on Intelligence Interrogation to circumvent the DTA by noting that the the Doe's detention predated the DTA and the alleged modification of the field manual. Criticizing the district court for "ma[king] little attempt to come to grips with . . . [the] fatal deficiencies in [Doe's] pleadings," the government describes the potentially disruptive consequences of the court's decision:

The district court's ruling could allow virtually anyone allegedly subjected to mistreatment at the hands of the government to survive a motion to dismiss and proceed to the intrusive and burdensome discovery stage of federal litigation against the highest ranking officials of the Executive Branch simply by alleging that the official personally created "policies" that allegedly led to the mistreatment. That is not, and cannot be, the law, especially after the Supreme Court's decision in [Ashcroft v.Iqbal.

The government also emphasizes that Rumsfeld's alleged conduct did not violate clearly established constitutional law. Noting that the courts have not considered the specific fact pattern presented in this case, the government then goes further and argues that what "shocks the conscience" in most situations may not do so in the military context, where detention and interrogation "present[] obvious difficult, weighty, and sensitive interests." Relying on Hamdi and other cases, the government emphasizes that "constitutional protections applicable in the domestic criminal context [do not] apply in the same manner and to the same degree to wartime military detention."

Doe's Brief

Doe first emphasizes that, without a Bivens remedy, he and other similarly situated plaintiffs would be left without a meaningful remedy, since the Military Claims Act's administrative scheme is discretionary and unreviewable, and was in any case not designed to comprehensively address detainee abuses. In addition, the DTA, far from counseling against the Bivens remedy, actually supports it, for two reasons. First, it prohibits the detention and interrogation practices that Doe alleges occurred. Second, it provides for limited, rather than absolute, immunity. Here, Doe relies on the Supreme Court's observation in United States v. Stanley that a grant of absolute immunity by Congress is "functional[ly] equivalent" to denying a remedy. Thus, Congress's grant of only limited immunity implicitly leaves open the possibility for federal-official liability under the DTA. Thus, even if detainee-abuse litigation would hamper the military's activities (which Doe rejects), the court "should not substitute its own assessment of the relevant priorities between detainee abuse litigation and the needs of the military for the policy choice Congress has already made in this area." Doe cites prior cases such as Saucier v. Katz to argue that Bivens actions are available in the military context and argues that the tradeoff between rights vindication and interference with government functions inherent in Bivens actions can be managed by "a rule that uses the DTA as a bright line." Finally, Doe distinguishes prior cases denying relief for detainee abuses by noting that the plaintiffs in those cases were aliens, whereas Doe is a U.S. citizen.

Doe next argues that Rumsfeld was "personally involved" in Doe's abusive treatment. Emphasizing that factual allegations are presumed to be true at the pleading stage and that "all reasonable inferences are drawn in [the plaintiff's] favor," Doe summarizes his factual claims as to Rumsfeld's involvement. Doe rejects the government's argument that the timing of the DTA and alleged field manual modifications undermine the case for Rumsfeld's personal involvement, since Rumsfeld did not stop the alleged tactics. In addition, Rumsfeld's supervisory role over the military is sufficient to plausibly establish the required causal link.

Finally, Doe addresses the government's qualified immunity argument, which he provocatively characterizes as "the position that a reasonable official in November 2005 to August . . . 2006 could have believed that it is constitutional to intentionally torture an American citizen if the American citizen is in a warzone." Doe then notes that the field manual had prohibited torture and that the DTA and other statutes had make clear that "torture violates the Constitution 'in both Wartime and Peacetime.'" In addition, cases like Reid v. Covert and Hamdi make clear that U.S. citizens enjoy due process protections abroad.

Government's Reply Brief

In its reply brief, the government first addresses Doe's arguments in support of a Bivens remedy. It characterizes the DTA argument as a "nonsequitur": "that Congress has outlawed inhumane treatment does nothing to change the fact that Congres has not provided a court damages action." On the contrary, the comprehensiveness of the DTA with respect to detainee treatment suggests that the absence of a cause of action implies Congress's intent not to create one. Given that Congress has legislated in the detention arena multiple times since the Military Claims Act, its failure to create a judicial rather than administrative damages remedy suggests its satisfaction with the Military Claims Act regime. In addition, the government responds to Doe's DTA-immunity argument by noting that the DTA preserves "any defense or protection otherwise available to any person or entity from suit, civil or criminal liability," which includes "special factors" precluding Bivens remedies. Finally, the government notes that, although prior precedent restricting Bivens actions in detainee-abuse contexts involved U.S.-citizen plaintiffs, "none of the sensitivities [that Doe's] lawsuit presents -- the intrusive factual inquiry into foreign detention policies and conduct in a combat zone, or the need for the judiciary to pronounce on the validity of those policies, for example -- is erased by the fact of [Doe's] identity as a U.S. citizen."

The government next reiterates why Doe's factual allegations are insufficient to satisfy Iqbal's pleading standards. It emphasizes that Rumsfeld's approval of specific interrogation tactics was limited to Guantanamo Bay, not Iraq, and that there is no evidence that Rumsfeld directed that the Guantanamo interrogation policy be applied to Iraq. The government also notes that, under Iqbal, "'knowledge and acquiescence' can[not] give rise to personal Bivens liability by a superior." Finally, the government notes that, even if Doe's allegation that Rumsfeld secretly modified the field manual is true, Doe does not specify what the modifications were and whether they were meant to apply to Iraq.

Finally, the government rejects Doe's characterization of the qualified immunity question as whether Doe was tortured and whether Rumsfeld knew that torture violated constitutional rights. Instead, the government emphasizes the uniqueness of the military detention and interrogation context, the traditional deference courts have given in the national security arena, and the lack of clear on-point precedent.