Wednesday, April 25, 2012
Jose Padilla filed a cert. petition with the Supreme Court this week, asking the Court to review the Fourth Circuit's ruling rejecting his Bivens claim against former Defense Secretary Donald Rumsfeld and other officials allegedly involved in his torture.
This case could be a first foray for the Court into the spate of cases since the attacks of 9/11 that allege torture by U.S. government officials and their private-sector collaborators. In particular, despite several similar Bivens cases percolating in the lower courts, the Supreme Court has yet to rule on this precise question: Whether a U.S. citizen can sue government officials for torture while in military custody, when the detention may (or may not) be related to national security. (We last posted on one of these cases, Vance v. Rumsfeld, recently argued before the en banc Seventh Circuit. (The three-judge panel ruled that the plaintiffs' torture suit could move forward.)) The Court has also not yet taken up a case involving another barrier to torture suits, the state secrets privilege.
Padilla sued Rumsfeld, et al., for violation of his rights, and authorization of violation of his rights, while he was detained at the Naval Brig in Charleston, South Carolina, for two years as an "enemy combatant." Padilla sued under Bivens, the 1971 case authorizing an individual cause of action against federal officers for violations of the Fourth Amendment; subsequent cases have restricted Bivens claims when "special factors" counsel against a judicial remedy. The defendants moved to dismiss the case, arguing just that--that "special factors" counseled against a Bivens remedy. The district court dismissed the case (on this ground, and also on qualified immunity grounds), and the Fourth Circuit affirmed.
Padilla, represented by Ben Wizner and a team at the ACLU, argues that the Fourth Circuit's ruling is contrary to Carlson v. Green (1980), a case extending the Bivens remedy to a prisoner's Eighth Amendment claim that federal officers were deliberately indifferent to his mistreatment in federal custody:
Petitioners' claims here fall squarely within the heartland of Bivens and Carlson. As in Carlson, petitioners allege mistreatment while in federal custody. And as in both Bivens and Carlson, the traditional circumstances for permitting Bivens relief are plainly present: petitioners seek to hold individual federal officers accountable for grave abuses of a prisoner in federal custody, and there is no adequate alternative remedy.
Padilla also argues that the Fourth Circuit effectively turned the Bivens "special factors" analysis into an executive trump card in military matters, weildable any time somebody tries to sue the military. Padilla says that this is a misreading of Bivens and the Court's precedents, which show that "special factors" "embody judicial deference to the legislative, rather than the executive, prerogative." Padilla also argues that it frustrates checks-and-balances and undermines principles of separation-of-powers (by allowing too much power to be consolidated, unchecked, in the executive).