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No court review of terrorism policy

The military policies of detention and interrogation worked out by the Bush Administration and continued at least in part by the Obama Administration cannot be challenged in damage lawsuits in federal courts, the Fourth Circuit Court in Richmond, Va., ruled on Monday.  The Constitution assigns the making of such policy to Congress and the President, and the courts may not “trespass,” the Circuit Court decided in throwing out a lawsuit by one of the best-known post 9/11 detainees: American citizen Jose Padilla.  The decision can be read here.

The 39-page ruling was a sweeping victory for the government as it fended off claims that top Pentagon officials and military prison supervisors violated a string of constitutional provisions, including the Eighth Amendment ban on cruel and unusual punishment, while Padilla was detained.  Suing along with his mother, Estela Lebron, their case sought a court-approved remedy fashioned directly under the Constitution.  The Circuit Court said it had no authority to do so.

Padilla was captured nearly ten years ago  at O’Hare Airport in Chicago on his return from Afghanistan, after allegedly being trained by the al Qaeda terrorist network for violent action in the U.S.   But, rather than prosecute him for terrorist crimes, he was named an “enemy combatant” by direct order of President George W. Bush, and was transferred to military custody at a Navy brig in Charleston, S.C.   He left that brig after almost four years, when he was sent back to civilian custody for prosecution on three counts of plotting overseas murders and kidnapping and aiding al Qaeda.

After conviction, he was originally sentenced to 17 years and four months, but the Eleventh Circuit Court in Atlanta threw out that sentence last September as too short for the crimes involved.  He has not yet been re-sentenced.

Although the Fourth Circuit noted that war-on-terrorism detainees do have a constitutional right to challenge their confinement in federal habeas court (a route that Padilla pursued unsuccessfully), the ruling on Monday made it clear that there is no other remedy available in court against those who planned and carried out the government’s response to the terrorist attacks of September 11, 2001.

“This is a case,” Circuit Judge J. Harvie Wilkinson, III, wrote for the three-judge panel, “in which the political branches, exercising powers explicitly assigned them by our Constitution, formulated policies with profound implications for national security.  One may agree or not agree with those policies.  One may debate whether they were or were not the most effective counterterrorism strategy.  But the forum for such debates is not the civil cause of action pressed in the case at bar.”  Circuit Judges Diana Gribbon Motz and Allyson K. Duncan joined the opinion.

The opinion added: “The fact that Padilla disagrees with policies allegedly formulated or action allegedly taken does not entitle him to demand the blunt deterrent of money damages under Bivens to promote a different outcome” — a reference to the first Supreme Court decision allowing an individual to bring a lawsuit directly under the Constitution, when no other remedy is available, for violations of individual rights (Bivens v. Six Unknown Agents (1971)).

“Being judicial requires that we be judicious,” Judge Wilkinson wrote, “and adherence to our constitutional role in this area requires that we await ‘affirmative action by Congress.’  Put simply, creating a cause of action here is ‘more appropriately  for those who write the laws, rather than for those who interpret them.’ ”

Besides the restraint that the Constitution’s structure imposes on the courts, the Circuit Court said, hesitancy to create a new damages remedy is also dictated by the fact that the courts are not competent to take on the task of second-guessing military decision-making.  The Padilla lawsuit was aimed at former Defense Secretary Donald Rumsfeld, current Defense Secretary Leon Panetta, and five other military and intelligence officials.

Padilla’s lawsuit, it said, would require the court to compel members of the military and their civilian superiors to testify in court as to each other’s decisions and actions.   Courts traditionally have been reluctant to disrupt the “military chain of command,” it added.

Moreover, processing Padilla’s lawsuit would risk “interference with military and intelligence operations on a wide scale.  Any defense to Padilla’s claims — which effectively challenge the whole of the government’s detainee policy — could require current and former officials, both military and civilian, to testify as to the rationale for that policy, the global nature of the terrorist threat it was designed to combat, the specific intelligence that led to the application of that policy to Padilla, where and from whom that intelligence was obtained, what specific military orders were given in the chain of command, and how those orders were carried out.”

Much of the information that bears on the creation of government detainee policy, the opinion said, remains classified, and there is a risk of at least inadvertent disclosure of it in a lawsuit like this one.

In the few instances since 1971 in which the Supreme Court has recognized a direct constitutional lawsuit for damages, the Circuit Court noted, each involved legal questions that “fell within the traditional competence of courts.”  And when Congress has chosen to give the courts some role in the field of national security, it has done so only very narrowly, with tight restrictions to protect national security, the opinion said.

In “stark contrast,” it said, Padilla would invite federal courts across the country to exercise “unencumbered discretion” to inquire into military and intelligence matters.

Turning to alternative legal actions that Padilla had open to him, the Circuit Court said he had challenged his detention by the military repeatedly in federal habeas cases, in U.S. District Courts in South Carolina and New York, and the Fourth and Second Circuit Courts, raising “essentially the same arguments that he makes here about the legality of militarily detaining a U.S. citizen.”   His challenges ended, it noted, only when he was transferred to civilian custody for prosecution for crimes.

Besides rejecting his damages claim based on the Bivens precedent, the Circuit Court also turned down his damages claim based on alleged violation of his rights to exercise his Muslim religious faith.  Federal laws seeking to protect such religious rights, it concluded, probably do not apply to “enemy combatants detained by the military”  but, even if they do, the officials sued by Padilla have a right to qualified legal immunity to such claims because it was not clear during his military detention that officials had to defend themselves against such claims.

Padilla and his mother have the option of asking the full Circuit Court to reconsider the case, and ultimately to seek Supreme Court review.



Recommended Citation: Lyle Denniston, No court review of terrorism policy, SCOTUSblog (Jan. 24, 2012, 12:11 AM),