By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law
There’s quite a lot to say about the damages suit filed last week by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of the family of Anwar al-Aulaqi and his 16-year-old son Abdulrahman, both of whom were killed (along with a third U.S. citizen) in a pair of drone strikes in Yemen in the fall 0f 2011. And although the suit raises a host of important and thorny legal questions of first impression, including whether a non-international armed conflict existed in Yemen at the time of the strikes and whether a U.S. citizen can claim a substantive due process right not to be collateral damage in an otherwise lawful military operation, I suspect my Lawfare colleague Ben Wittes is quite correct that this case won’t actually resolve any of them. Instead, as Ben suggests, it seems likely that the federal courts will refuse to recognize a “Bivens” remedy — a cause of action for damages arising directly out of the constitutional provision allegedly offended (e.g., the Fifth Amendment’s Due Process Clause), and that the plaintiffs will therefore be unable to state a valid cause of action.
As I explain below, such a result would unfortunately perpetuate a fundamental — and increasingly pervasive — misunderstanding of Bivens. Moreover, even if plaintiffs will ultimately lose suits like Al-Aulaqi because of various defenses — including qualified immunity, the state secrets privilege, and the political question doctrine — getting the Bivens question right still matters. To the extent that the specter of judicial review deters governmental misconduct down the road, Bivens suits can and should have a salutary effect on the conduct of U.S. national security policy — so long as they’re properly understood in the first place.
Although it may come as a surprise to many, there is no federal statute that provides a general cause of action for damages when a federal officer violates an individual’s constitutional rights. [42 U.S.C. § 1983 provides just such a remedy for violations of such rights by state officers.] Partly in response to that shortcoming, Bivens, a 1971 Supreme Court decision, recognized limited circumstances in which, to vindicate a plaintiff’s federal constitutional rights, it would be appropriate for federal courts to fashion a judge-made damages remedy. By then, it was well-established (as it remains today) that courts have such power when it comes to injunctive relief; the additional step Bivens took was extending that authority to monetary remedies for prior governmental misconduct, as well — even when, as in Bivens, the plaintiff could also have pressed his claims under state law.
To be sure, the Supreme Court has spent much of the past three decades scaling back the scope of Bivens remedies, usually relying on the existence of federal statutory alternatives or on other “special factors counseling hesitation,” as Justice Brennan suggested in Bivens itself. But despite the Delphic nature of this latter phrase, it is fairly clear in retrospect, as Georgetown law professor Carlos Vásquez and I argue in a forthcoming article, that the Bivens Court was focused on those situations in which it made sense to remit plaintiffs to state, rather than federal, remedies (as, for example, in the Court’s most recent foray into Bivens — its January decision in Minneci v. Pollard). And so, even though the Supreme Court has not identified a viable Bivens claim in over 30 years, it has routinely relied on the existence of alternative remedial mechanisms — whether under federal law, state law, or the internal disciplinary rules of the military — to justify the foreclosure of constitutional damages. Put simply, in a case where the available remedies were literally “Bivens or nothing,” the Supreme Court has never taken the latter route.
In recent years, however, lower courts in high-profile national security cases have done exactly that, refusing to recognize Bivens remedies for allegations of egregious governmental misconduct even where the alternative was “nothing.” Such analysis can be found in the Second Circuit’s decision in the Maher Arar case; the Fourth Circuit’s decision in the Jose Padilla case; and the D.C. Circuit’s decisions in Doe v. Rumsfeld and Rasul v. Myers. Although the specific language of each decision varies, they all rest on a bottom line captured succinctly in a footnote in Rasul: the reason for staying the judicial hand is nothing more than “[t]he danger of obstructing U.S. national security policy.”
As Professor Vásquez and I explain, this analysis fundamentally misunderstands Bivens, for it fails to appreciate the role state-law remedies were originally intended to play in the relevant calculus. Although there may be some situations where it makes sense to leave plaintiffs to whatever remedies state law has to offer, or to statutory alternatives devised by Congress, in the context of sensitive national security policy, it seems likely that the federal courts are in a far better position to look out for the unique interests of the executive branch than either of the other actors the Bivens Court (and the Constitution) envisioned. But whereas the decisions noted above have used that conclusion to justify a refusal to recognize a Bivens remedy, in fact, such analysis should cut in the opposite direction: if federal law is what should govern these disputes, and if Congress hasn’t clearly spoken to the issue (as, in most of these cases, it hasn’t), then that is an argument for recognition of a Bivens remedy — not against it.
Separate from the doctrinal flaw in these recent cases, there is also the central logical fallacy of their reasoning. For illustration, consider the following passage from Fourth Circuit Judge J. Harvie Wilkinson’s opinion in Jose Padilla’s Bivens suit (as quoted by Ben Wittes in his discussion of Al-Aulaqi), which sought to explain why recognizing a cause of action for Padilla’s allegations would be unwise:
It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the thought that those involved would face prolonged civil litigation and potential personal liability.
Perhaps I’m missing something, but isn’t that the point? Qualified immunity will still protect individual officers from liability so long as their conduct is based upon an objectively reasonable understanding of what the law permits; the state secrets privilege will protect government secrets from being inappropriately disclosed in the course of that litigation (and may even bar the litigation from going forward in extreme cases); and the political question doctrine will bar courts from intervening in disputes that the Constitution requires to be left to the political branches. But in a case in which (1) no state secrets are implicated; (2) judicial resolution is appropriate; and (3) the officer did in fact violate clearly established constitutional rights of which he knew or should have known, shouldn’t we want to “expose past executive deliberations affecting sensitive matters of national security”? And shouldn’t we want to “affect future discussions as well, shadowed as they might be by the thought that,” in those circumstances, “those involved would face prolonged civil litigation and potential personal liability”?
This is the point that most commentators fail to appreciate about Bivens suits — and that the courts will almost certainly neglect in Al-Aulaqi v. Panetta: in deciding whether to recognize a cause of action under Bivens, courts should focus on two straightforward inquiries: whether it is appropriate to have the matter resolved by federal — rather than state — law; and whether, if the plaintiff’s allegations are true and no defenses foreclose liability, the laws of the United States should provide him with a remedy. Through that (admittedly narrow) lens, I have to think that courts would look far differently at the extrajudicial killings of three U.S. citizens.