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.