Tuesday, January 24, 2012
Fourth Circuit Rejects Padilla's Civil Claims
A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention. The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.
Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act. He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief. The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.
The Fourth Circuit affirmed. The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief. The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.
The panel also said that Padilla had other forms of relief, in particular habeas.
The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts. Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy. The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld. Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens. (We posted on the cases here.)
The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates. That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien. The court ruled that alienage didn't matter for the special factor analysis.
The ruling on alternative relief is not so obviously in tension with Vance and Doe. The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas. (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)
The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit. Oral arguments are set for February 8.
The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.
Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief. It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.
On July 24, 2000 Jose Padilla enlisted in the Army of Afghanistan. Over the next two months he went through basic training, and then like any soldier he spent three months standing guard with his AK-47 at an Afghan Army outpost north of Kabul. He was recruited in early 2001 Mohammed Atef, the top ranking commander of foreign born forces in the Afghan army, for "The Apartments Operation", an attack inside the US. On May 8, 2002 when he was arrested at the customs counter at O'Hare airport, he was an enemy combatant, that is a member of the regular armed forces of a foreign country that had attacked the US and triggered an international armed conflict (a war) who had been captured while on active duty and while involved in a military mission (of sabotage). After he told this to the FBI, he was transferred to military custody and was held for 3 and a half years as a prisoner of war.
When an enemy soldier surrenders, one consequence under international law is that he accepts superior officers of the US military into his chain of command. He is obligated to follow the lawful orders of superior US officers as he previously followed his own officers, or alternately he is obligated to follow orders and is subject to military discipline just as if he had joined the US army directly.
This means that Chappell v Wallace is directly on point and completely controls this case. "[T]he unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute "special factors" which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers."
That Padilla joined the Afghan army and then surrendered is not important. He ended up in the same place as if he had joined the US army directly. The defendants in this suit are superiors in his chain of command, and Bivens is precluded. If this were not the case, you would be arguing that a citizen who joins an enemy army is entitled by his treason to more constitutional protection than a patriot who joins the US army to fight against that foreign enemy.
Posted by: Howard Gilbert | Feb 2, 2012 1:41:38 PM
It just seems to me when we look at Ex Parte Young and wonder what has changed about officials knowingly doing acts that are unconstitutional, we have lost civility. How did Qualified or other immunity become so blanket that serial killers are protected. Padilla is a civilian thrown in the brig, a provision of the US constitution that is clearly barred, so what is the recourse? The consequences of immunity is tyranny and the US undoes itself if you can not seek relief in any court from oppression.
Posted by: Kai Landow | Jan 28, 2012 6:19:39 AM