Lebron v. Rumsfeld: the Fourth Circuit Drops an Anvil on Bivens

I’m going to interrupt my look at the ECHR’s decision in Othman, in order to offer a few observations on the Fourth Circuit decision this week in Lebron v. Rumsfeld.  (There has been a little discussion on Lawfare.)  This case is one of two Bivens cases that had been pending involving Jose Padilla.  (The other is still before the Ninth Circuit and the parties have just been ordered to brief the effect of the Fourth Circuit decision, especially with respect to the issue of non-mutual collateral estoppel).   In Lebron, the Fourth Circuit found that “special factors” preclude a Bivens remedy in cases involving “enemy combatants” in military detention, even in cases of U.S. citizens held in the United States.  It’s a blunt instrument of a holding.  While a number of issues were before the Court, this post looks at the Bivens part of the decision and identifies a few errors in the Court’s reasoning.   The Fourth Circuit overreads Supreme Court precedents on Bivens dealing with the military and ignores Congress’s clear intention to preserve Bivens for citizens in its post-9/11 activity in the field of national security.


For those who are not national security junkies, Jose Padilla is the U.S. citizen who after training at an Al Qaeda training camp was arrested in the United States while allegedly engaged in activities related to a “dirty bomb” plot.  He was then transferred to a military brig, held incommunicado, and subjected to “enhanced interrogation techniques” (aka torture).  Padilla filed suits in South Carolina against Rumsfeld (and other Department of Defense officials) and against John Yoo in California for damages related to the injuries he suffered while in military detention.  Estela Lebron is his mother.

“Special factors” is part of the two-prong Bivens test.  Before fashioning a Bivens remedy, a court must consider whether any existing alternative process protects the interest at issue; if not, the court must engage in the kind of “remedial determination that is appropriate for a common law tribunal,” taking account of any “special factors counseling hesitation.”  (Bush v. Lucas).  In Lebron, the Fourth Circuit found two “special factors” especially important – first, that military affairs are  delegated by the Constitution to Congress and the President as Commander in Chief; and second, that judicial scrutiny in cases involving national security pose formidable issues of administrability.  Though the facts before the Court involve a designated “enemy combatant” held in special circumstances by the military, the logic of the decision potentially gives it much broader sweep.

The Fourth Circuit’s decision here leans heavily on two Supreme Court precedents involving Bivens and the military context, United States v. Stanley and Chappell v. Wallace, but radically enlarges their application. Both of those cases held that an enlisted man is precluded from bringing a Bivens suit for injuries sustained in the course of his military service.  (Stanley is a particularly ugly case involving a soldier who sustained injuries after enrolling in an Army program testing the effects of chemical weapons but was secretly ministered LSD.)  Both cases hold that the explicit constitutional grant of authority to Congress to “make Rules for the Government and Regulation of the land and naval Forces” and Congress’s subsequent exercise of that authority in enacting the Uniform Code of Military Justice mean that Congress has created an alternate remedial scheme in the case of military servicemen that provides the exclusive remedy to servicemen for injuries that are “incident to service.”   In other words, Stanley and Chappell are best read as cases dealing with the internal regulations of the military – with soldiers who have voluntarily waived some of their rights, not with prisoners who are being involuntarily held.  In Lebron, the Fourth Circuit takes the limitation of injuries “incident to service” and transforms it into something much different — injuries “incident to the conduct of armed conflict.”  Given that the government has argued that the war on terror – I know we’re not supposed to use that term anymore, but whatever the new war is, it feels a lot like the war on terror to me – potentially encompasses the entire world, this would mean that no citizen could ever sue military personnel for anything done in the name of national security.

As important as its over-reading of Stanley and Chappell is the error the Fourth Circuit arguably makes in concluding that Congress has affirmatively decided not to provide a damages remedy to citizen enemy combatants for injuries suffered in detention. The Court points to the lack of express causes of action in the Military Commissions Act of 2009, the Military Commissions Act of 2006, and the Detainee Treatment Act of 2005 as evidence that “Congress was no idle bystander” to the debate about detainee treatment.  That Congress did not expressly create causes of action in these statutes is taken as “ample evidence” that “congressional inaction has not been inadvertent” (citing Schweiker v. Chilicky).  Since the “special factors” analysis goes to the question of which branch is better suited to create the remedy, the Fourth Circuit concluded that it should not intrude into areas constitutionally delegated to a coordinate branch.

The mistake the Court makes here is not to recognize that although these statutes did not create a damages remedy for alien enemy combatants, they were careful to preserve damages remedies available to citizens.  By 2004, after the cases of John Walker Lindh and Yaser Hamdi, Congress was well aware that U.S. citizens could be designated enemy combatants.  (Full disclosure:  I was counsel of record on an amicus brief focused on special factors in the Ninth Circuit appeal in Padilla v. Yoo – the following sentences draw from that brief.)  In 2005, in the DTA, Congress stated that “[n]othing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody…of the United States.” In the MCA, Congress limited the stripping of jurisdiction to aliens in U.S. custody.  §2241(e)(2)(stripping federal courts of jurisdiction “to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”)  In addition, the U.S ratified the Convention against Torture (CAT) without lodging a reservation against the obligation in Art. 14 to provide a remedy for victims of torture occurring within the United States.  In a set of “Reservations, Understandings, and Declarations” accompanying its ratification, Congress expressed his understanding that the CAT required it to provide a private right of action only “for acts of torture committed in territory under [its] jurisdiction.”  In its first report to Committee on Torture, the treaty body overseeing implementation of the CAT, the Department of State enumerated Bivens as one of the existing federal laws that would provide the required right of action.  In ratifying the CAT, Congress surely realized that one agency of government that might potentially torture is the military.

The Court’s reading of these statutes would be correct if Padilla were an alien, but he is not.  As I’ve shown, 41 Seton Hall L. Rev. 1491, the pattern of post-9/11 damages claims brought thus far is that they succeed to greater or lesser extent when brought by citizens or resident aliens and fail completely when brought by aliens abroad.  Padilla’s enemy combatant label may put him in different category from other post-9/11 Bivens plaintiffs, but it seems to me clearly wrong to say that Congress has expressed its intent to foreclose a Bivens remedy in the case of citizen enemy combatants.

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3 Responses

  1. Howard Gilbert says:

    On July 24, 2000 Jose Padilla enlisted in the Army of Afghanistan under the Taliban government in effective control of that country. Over the next two months he received basic training at the Al Faroque camp and became an ordinary solider in an ordinary army of an ordinary country. On 9/11 the US was attacked by a unit of Al Qaeda operatives and Afghan Army soldiers. One consequence of this attack was an “international armed conflict (IAC, international law speak for what we usually call a “war”) between the US and Afghanistan. Padilla, a member of the regular armed forces of a foreign country that attacked the US and triggered a war became an enemy combatant in the same sense and in the same way that Japanese soldiers became enemy combatants after Pearl Harbor. On May 8, 2002 Padilla was arrested at the customs counter of O’Hare Airport on a material witness warrant issued in conjunction with a subpoena from a Grand Jury investigating the 9/11 attack. When interviewed by the FBI, he admitted that he was still an active duty soldier in the Afghan army, that he had come to the US on a military mission of sabotage to execute “The Apartments Operation” as it was called. He was acting under orders from his commanding officer Khalid Sheikh Mohammed (KSM) and had even paid for his airline ticket out of military operating funds given to him to execute the mission.

    Based on his statement, the US decided that Padilla was not a civilian and was therefore immune to a Grand Jury subpoena. However, he was an enemy combatant subject to detention by the military as a prisoner of war for the duration of hostilities. Hostilities here are not some amorphous “War on Terror” but rather the international armed conflict between the US and the Taliban former government of the country of Afghanistan.

    While in military custody at the Consolidated Navy Brig in Charleston SC, everything that happened to Padilla 24 hours a day was recorded on video. All the DVDs where inventoried, and except for one disk from March 2004 which was lost, they have all been available to his legal team since his criminal case five years ago. We have been told that Padilla was always cooperative and tried to answer questions as best he could.

    Padilla was not subject to torture or enhanced interrogation. First, why would the CIA use black prisons in undisclosed locations and destroy all the evidence of real enhanced interrogation sessions if, at the same time, the Navy was going to use the same techniques in Charleston, SC against an American citizen whose capture and location were front page news after they were disclosed by the Attorney General in a press conference one day after his transfer, and while everything that happened to him was being video recorded to provide evidence if anything illegal happened (and provide evidence that nothing illegal happened). More importantly, we know from published interviews with someone involved with the CIA waterboarding that enhanced interrogation was used only to get someone talking at all and was discontinued and replaced by normal by the book interrogation as soon as they started talking. The reason is that enhanced interrogation (and real torture) produce unreliable intelligence. The subject tells you what he thinks you want to hear and not what is really true. Anything to get it to stop. Padilla was a cooperating witness talking from the first FBI interview. He was the last person in US custody that anyone would use enhanced interrogation or torture with, since it would be counter productive and compromise the value of the intelligence he was providing.

    This does not, however, prevent lawyers from alleging torture when filing a Bivens action. So the question is, how far do the courts allow the claim to proceed before they are required to provide some actual evidence of torture, or any other complaint they made.

    Padilla was a soldier. He was an enemy soldier, but when an enemy soldier surrenders he agrees to follow the orders of American officers. He can be ordered to do push ups until they hurt, just like any American soldier in boot camp. Soldiers do not enjoy a soft life. If Padilla had to sleep on a bed without a mattress, as one point in the complaint alleges, he still probably was more comfortable at night than he was during his three month assignment to guard duty at an Afghan Army post north of Kabul during the winter of 2000. Certainly he was more comfortable than a GI defending the periphery of Henderson Field on Guadalcanal, sleeping in a water filled foxhole and subject to nightly artillery barrages from Japanese troops. The point is that if you think about “stress positions”, and no mattress, and loud noises at night, your reference point has to be an infantry battalion on the march and not a night at Motel 6.

    Padilla was held under specific conditions that the DOD approved for prisoners of war in the current conflict. Originally this suit named over sixty high ranking members of the DOD involved in the policy. Now you may disagree with some of their rules, but the core finding of this decision is that a Bivens action is intended to provide relief from Federal officers engaged in clear violations of constitutional rights. It is not a mechanism for the courts to second guess the extensive and serious deliberations of the DOD about what are permissible and impermissible conditions for prisoners of war detained in the current conflict.

    Farmer Miller did not get to sue because of the damage to his cornfield at Antietam. The residents of Gettysburg did not get to sue because top ranking military policy let the Confederates get so far north. The soldiers in Patton’s army did not get to sue because of conditions on the forced march north to relieve Bastogne. That Padilla was a soldier in the Afghan rather than the US Army makes his case neither stronger nor weaker than the GI his army fights against.

    It may be that the conditions of Padilla’s detention crossed some line. If so, we will not find that line in the superficial analysis of the complaint in this case. The Fourth Circuit has decided that a civil suit for money damages (even $1) is not an appropriate context to make that determination. More importantly, it has decided that whatever that line is, it is a matter for the political branches to work out. If you think Padilla was “injured” by this policy, you should go to a VA hospital and see the GI’s who were really injured in this war. Most of them would be quite happy to spend three and a half years in the exact same conditions that Padilla experienced, if at the end of the period you gave them their legs back.

  2. Joe says:

    “Padilla was not subject to torture or enhanced interrogation.”

    Hard to take the rest of what you said seriously when you toss that in. Not “it is unlikely” or “I” (fwiw) “don’t think so.” No, simply didn’t happen. Helped by “someone” who “involved” in some fashion. This person apparently knew what happened in every case, including the intent of all the actors involved.

    “enhanced interrogation (and real torture)”

    “real” torture apparently being what you think counts or would be logical (as we know, torture is only used logically) for a given situation

    Your legal reasoning is as usual quite open to debate but I don’t recall seeing you letting the cat out of the bag about your bias quite THIS blatantly (sounds more like someone else I know at the likes of Balkinization). The last paragraph is rather blatant in this department.

  3. Sam Bagenstos says:

    Elizabeth,

    I think your legal analysis should be right, but I wonder how it all fits with the recent trend in Bivens cases in the Supreme Court outside of the national security context. At least since Wilkie v. Robbins, I read those cases (at a high level of generality) as essentially assimilating the Bivens inquiry to the Court’s now-restrictive jurisprudence on implied statutory causes of action. Minneci v. Pollard this Term is an example of that, as well. I’m interested in how those cases, and the analytical approach they employ, affect your analysis.