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Andrew Kent on Al Aulaqi and <em>Bivens</em>

Benjamin Wittes
Friday, August 3, 2012, 7:44 AM
I am normally pretty good about keeping up with my Lawfare-related email, but sometimes, an important emails slips through the cracks. Andrew Kent of Fordham Law School sent me this comment on my post on the new Al Aulaqi suit some time ago. I only just noticed it yesterday, however.

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I am normally pretty good about keeping up with my Lawfare-related email, but sometimes, an important emails slips through the cracks. Andrew Kent of Fordham Law School sent me this comment on my post on the new Al Aulaqi suit some time ago. I only just noticed it yesterday, however. As the issues it discusses are still very timely and the discussion itself is particularly rich and valuable, I am posting it belatedly with my apologies to Andrew for having overlooked it before:
I agree with your views about Bivens and the new Al-Aulaqi lawsuit.  I’m writing to expand a bit on the current state of Bivens and how it will likely play out in the drone strikes suit. Readers will recall that Bivens is the landmark Supreme Court case which held that, even though no federal statute provides a cause of action against federal officers for money damages for violations of constitutional rights, the plaintiff could sue directly under the Constitution.  Today, the Supreme Court’s current Bivens jurisprudence is quite odd, in that it privileges a few constitutional rights above all others.  The original Bivens case itself was brought under the Fourth Amendment.  Relatively soon after Bivens, the Court also allowed Bivens claims under the equal protection component of the Fifth Amendment Due Process Clause (Davis v. Passman (1979)) and under the Eighth Amendment’s Cruel and Unusual Punishment Clause (Carlson v. Green (1980)).  Over time, a majority of the Court turned against the further expansion of Bivens.  It now calls Bivens “disfavored” and seems disinclined allow Bivens claims to be brought under any other constitutional provisions than the ones at issue in Bivens itself, Davis and Carlson.  My best guess is that, as currently composed, the Supreme Court will not overrule Bivens, Davis or Carlson, but will also not expand it any further to other constitutional provisions.  So it appears that three specific types of constitutional claims can be brought against federal officers for money damages, but no others.  There is no good policy reason why these three constitutional provisions get this special treatment, but that does appear to be where the Court is today. The recent Al-Aulaqi Bivens suit alleges claims under (1) the procedural due process component of the Fifth Amendment Due Process Clause, (2) the substantive due process component of the same clause, (3) the Fourth Amendment’s ban on unreasonable seizures and (4) the Bill of Attainder Clause. Claim (4) is frivolous---bills of attainder are legislative acts, while Al-Aulaqi involves the Executive.  The District Court in D.C. or the D.C. Circuit could dismiss claims (1) and (2) by saying that the Supreme Court has limited the availability of Bivens to the original contexts of Bivens itself, Davis and Carlson.  The lower courts might be reluctant to do this, though, because the Supreme Court has never expressly stated that Bivens can’t be extended to any new constitutional provisions.  Doctrinally, the Court is open to new Bivens claims; in practice it never allows them.  This puts lower courts in a bind because they are supposed to follow doctrine. As a result, the courts will turn to the “special factors” analysis found in cases like Lebron which you cite.  (They would have to address special factors in any event, though, because claim (3) is brought under the Fourth Amendment, the same constitutional provision as in Bivens itself.) What the courts hearing Al-Aulaqi will most likely do is dismiss all of the four claims as a group under the “special factors” doctrine.  The idea is that a Bivens remedy (even one arising under a constitutional provision blessed in Bivens itself, Davis or Carlson) should not be allowed if there are “special factors” in the context of the case which suggest that it would be inappropriate for courts to imply a remedy that has not been expressly created by Congress.  What started out as basically throw-away dicta in Bivens has in later Court cases metastasized into a full-blown special-factors doctrine under which the Court has repeatedly refused to extend Bivens to any new types of defendants (besides individual federal officers) or any new constitutional provisions besides those at issue in Bivens itself, Davis and Carlson. Lower courts hearing national security cases have taken the Court’s special factors doctrine and really run with it.  In addition to the Lebron case you cited from the Fourth Circuit, there is actually a lot of D.C. Circuit precedent supporting the proposition that Bivens claims should not be allowed in contexts in which intelligence agency and military decision-making are challenged, particularly if those claims arise overseas and/or involve noncitizens.  Steve Vladeck has, aptly in my view, suggested that there is now in the lower federal courts a “national security exception” to Bivens, developed under the rubric of special-factors analysis. Here are the relevant D.C. Circuit cases: Sanchez-Espinoza v. Reagan (D.C. Cir. 1985), was a putative Bivens suit was brought by residents of Nicaragua and other plaintiffs against President Reagan, the CIA Director, Secretary of State, Secretary of Defense and other senior officials, challenging U.S. actions in Nicaragua.  Then-Judge Scalia wrote that “the special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad.”  There is a possibility of “embarrassment of our government abroad through the multifarious pronouncements by various departments on one question,” and the possibility that “foreign citizens [are] using the courts in situations such as this to obstruct the foreign policy of our government.” The fact that the deceased persons whose rights are being asserted in the Al-Aulaqi complaint are U.S. citizens means that Sanchez-Espinoza is not fully on-point.  But two other D.C. Circuit cases recognizing a national security exception to Bivens did involve U.S. citizens.  First, in Wilson v. Libby (2008), the D.C. Circuit refused to allow a Bivens action against Vice President Cheney and senior advisers challenging the allegedly illegal outing of Valerie Plame as a CIA operative in retaliation for the political speech of her husband, Joseph Wilson.  According to the court: “We also cannot ignore that, if we were to create a Bivens remedy, the litigation . . . would inevitably require judicial intrusion into matters of national security and sensitive intelligence information. The decision of whether to create a Bivens remedy involves our judgment and weighing [of] reasons for and against the creation of a new cause of action . . . . Pertinent to that judgment are the difficulties associated with subjecting allegations involving CIA operations and covert operatives to judicial and public scrutiny.” In Doe v. Rumsfeld, a very recent (summer 2012) decision by the D.C. Circuit that you also cited, the court refused to extend Bivens to Due Process and Eighth Amendment claims by a U.S. citizen military contractor who sued Secretary of Defense Rumsfeld, alleging that he approved the plaintiff’s unjustified detention as a security threat and mistreatment in military custody in Iraq during the conflict.  The court found that there were many “special factors” counseling against allowing a Bivens suit, including “the separation of powers,” the possibility of “public scrutiny of sensitive information,” the sensitivity of having a court review “the development and implementation of numerous military policies and decisions,” the fact that discovery would “require testimony from top military officials as well as forces on the ground,” and that “allowing such an action would hinder our troops from acting decisively in our nation’s interest for fear of judicial review of every detention and interrogation.” Other D.C. Circuit cases appearing to recognize a national security exception to Bivens involved foreign nationals (unlike Al-Aulaqi) but did involve military and intelligence activities overseas (like Al-Aulaqi): In Rasul v. Myers (D.C. Cir. 2009), a putative Bivens suit under the Fifth and Eighth Amendments against the Secretary of Defense, the Chairman of the Joint Chiefs and other senior military officers challenging the military detention and alleged mistreatment of foreign nationals at Guantanamo Bay, the D.C. Circuit held that an “alternative ground” for dismissing the suit (in addition to qualified immunity) was the “danger of obstructing U.S. national security policy” by entertaining the lawsuit was a “special factor” counseling against recognizing a Bivens claim. In Ali v. Rumsfeld (D.C. Cir. 2011), the D.C. Circuit refused to recognize Bivens claims under the Fifth and Eighth Amendments against the Secretary of Defense and senior Army officers, which were pressed by Afghan and Iraqi nationals challenging their mistreatment at U.S. military prisons in those countries during wartime.  The court held that a Bivens action was inappropriate here when “brought against American military officials engaged in war” because it “would disrupt and hinder the ability of our armed forces to act decisively and without hesitation in defense of our liberty and national interests,” would “hamper the war effort and bring aid and comfort to the enemy,” and present an acute “danger of foreign citizens using the courts . . . to obstruct the foreign policy of our government.” The Supreme Court has certainly never directly endorsed a national security exception to Bivens.  (The Supreme Court has twice rejected Bivens claims brought by and against members of the military, but I agree with Steve Vladeck that these cases turned on very different issues than do the “national security exception” cases.)  But given the current Court’s general hostility to Bivens, combined with hints in at least three cases that Bivens might be inappropriate for claims involving national security and/or arising overseas (Ashcroft v. Iqbal (2009), Christopher v. Harbury (2002), and United States v. Verdugo-Urquidez (1990), I think it quite likely that the Supreme Court would adopt a national security exception to Bivens under a special factors analysis if it granted cert on appropriate case, something it has so far declined to do.  At the least, lower federal courts should feel themselves to be on very firm ground (i.e., quite unlikely to be reversed) if they dismiss putative Bivens suits challenging national security policies, especially when those cases involve overseas military and intelligence operations, and especially when the cases attempt to bring Bivens claims under different constitutional provisions than those allowed in Bivens itself, Davis and Carlson.  In sum, I think there is basically zero doubt that the Al-Aulaqi case will be dismissed using the “special factors” / “national security” analysis. That said, I don’t actually think the idea of a generalized national security exception to Bivens makes a lot of sense, as I’ve briefly argued recently, and plan to write about at length soon.  I also agree with a lot of the criticisms of Bivens jurisprudence that Steve Vladeck has offered.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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