Wednesday, June 13, 2012
The Supreme Court on Monday declined to review an earlier Fourth Circuit ruling rejecting Jose Padilla's civil case against former Defense Secretary Donald Rumsfeld and others for torture. The move leaves the Fourth Circuit ruling untouched and will almost certainly influence the outcome in a similar case now before the full Seventh Circuit. The move also lends further legitimacy to the Fourth Circuit's approach--that separation-of-powers principles can be a "special factor" counseling against a civil damage remedy in federal court--or, in short, that the executive has something close to a trump card to shut down litigation against executive officers for torture of individuals while detained for reasons that the executive says are related to national security or terrorism.
The case, Lebron v. Rumsfeld, arose out of Jose Padilla's detention and torture. Padilla filed a Bivens claim against Rumsfeld and others for violations of his constitutional rights. The Fourth Circuit ruled that special factors counseled against a Bivens remedy and that Padilla had other forms of relief (i.e., habeas). As to special factors, the court said that separation-of-powers principles counseled against a Bivens remedy--in particular, that military matters like this are the province of the political branches, and that courts lack expertise and risk upsetting the military command structure and intelligence-gathering activities.
The Fourth Circuit ruling is in tension with similar recent rulings by the Seventh Circuit and two district courts. The Seventh Circuit case, Vance v. Rumsfeld, was vacated and is now on appeal to the full Seventh Circuit. The Court's rejection of Lebron will almost certainly influence the outcome of Vance (as if the outcome needed any influencing) and other cases by U.S. citizens alleging constitutional violations against executive officials related to national security, terror, intelligence, and the military.
The Court's rejection also lends further legitimacy to the Fourth Circuit approach, which was an aggressively pro-government, anti-plaintiff approach. The Fourth Circuit reasoning all but gives the executive a trump card to shut down constitutional litigation against executive officials anytime the government says that the case is related to national security, terror, intelligence, and the military. This approach gives the executive nearly complete control over this kind of litigation, takes the courts nearly entirely out of it, and sharply curtails plaintiffs' remedies for constitutional violations while in custody for anything that the executive says is related national security, terror, intelligence, and the military.
While the Court's rejection of Padilla's cert. petition is certainly not a ruling on the merits, the rejection signals a constriction of Bivens actions--a signal that the full Seventh Circuit will surely read and apply in the Vance case.
Congress, of course, could change this by authorizing suits for individuals like Padilla (or Vance and Ertel in the Seventh Circuit) for constitutional violations against executive officials. But don't look for that to happen anytime soon.
The next chapter in this saga will come when the full Seventh Circuit issues its ruling in Vance v. Rumsfeld. Especially now, in light of the Court's rejection of Padilla's cert. petition, look for the court to reverse the three-judge panel and to reject Vance's Bivens claim. The only interesting aspect of the Seventh Circuit ruling will be how closely the court follows the Fourth Circuit's reasoning.