Tuesday, May 23, 2017

Constitutional Torts and the War on Terror

Guest Blogger

James E. Pfander

For the symposium on James Pfander, Constitutional Torts and the War on Terror

Let me first offer a few words of thanks: to my interlocutors for spending some time with, and sharing their thoughts about, the book and to my colleague Andy Koppelman for putting together this mini-symposium. Instead of replying to particular claims, I will try to tease out and respond to some of the broader themes in the collected reviews.

My book chronicles a departure in the United States from the sharp-edged rules of the common law, in which ordinary courts applied ordinary law to government actors. While they once followed English common law, federal courts today apply a familiar collection of discretionary doctrines that often result in the denial of remedies to the victims of government wrongdoing. The failure of remedies, in turn, leads to a shortage of law; courts fail to give voice to the legal norms that regulate the officialdom. The book focuses on the remedial failure that has greeted the victims of the Bush Administration’s RDI program of extraordinary rendition, detention, and enhanced interrogation (torture). But the remedial failure extends more generally (as Will Baude, Alex Reinert, and Steve Vladeck observed). Indeed, the Supreme Court has heard argument in two cases this Term, Abassi and Hernandez, that may tell us much about the future efficacy of the Bivens action.

The nineteenth century model, and its rejection of justifications based on military necessity and national security, comes through in the decision by Justice Joseph Story in The Appollon, upholding the right of a foreign national to recover damages from US government officials who wrongly seized property overseas:

"It may be fit and proper for the government, in the exercise of the high discretion confided to the executive, for great public purposes, to act on a sudden emergency, or to prevent an irreparable mischief, by summary measures, which are not found in the text of the laws. Such measures are properly matters of state, and if the responsibility is taken, under justifiable circumstances, the Legislature will doubtless apply a proper indemnity. But this Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress."

 On this view, national security concerns could well justify an award of indemnity (ie, legislative payment of any damages awarded) but could not prevent a court from reaching the merits and affording suitable redress. Special factors did not counsel hesitation, even where a foreign national sought recompense for the misconduct of U.S. officials outside the United States.

 The book then chronicles the very different state of the law today. One can describe that law with alarming simplicity: no appellate court has reached the merits of a claim challenging the Bush Administration’s RDI program. Instead, the courts have pushed these claims aside on one or more familiar bases. (Shall we recognize a right to sue? Has the law been clearly established? Does the national security context counsel hesitation?) The book next contests the justifications for judicial deference; there’s no mechanism with which to test the legality of government torture other than by suit for damages. Deference leaves the law inarticulate and victims without redress.

Finally, the book asks what can be done. Here, the challenge lies in articulating common law solutions to problems of the courts’ own making. The solutions suggested here: to presume a more robust right to sue under Bivens (as Vladeck and Carlos Vazquez have also suggested), to reach the merits of claims for nominal damages in the face of qualified immunity arguments, and to extend the reach of the Bivens remedy to government misconduct abroad, can all be sensibly instituted by the courts themselves. But the first step in reforming the law must be to reform the sense of judicial duty with which the courts approach their task. Courts must reclaim their role in addressing narrow issues of legality and leave issues of discretion and policy to the political branches.

 I was heartened by the general agreement among reviewers that the remedial shortcomings identified in the book pose a serious problem. While the reviews vary, Greg Sisk shares the view that we must improve government accountability and Will Baude, Joanna Schwartz, and Steve Vladeck all agree that courts today labor under a mistaken conception of judicial duty. The judicial mindset makes the problem especially difficult to solve through the adoption of more laws. Put in other terms, there were a host of serviceable prohibitions on torture ready to hand when the Office of Legal Counsel issued the torture memos, justifying the practices of the CIA and Department of Defense, and when the federal courts declined to adjudicate the claims of victims. That’s what makes me skeptical of the McCain-Feinstein anti-torture amendments; they proclaim rules of humanitarian interrogation but provide no system of remedies. Common lawyers know the old saying, no writ, no right. Without writs, we live in a world where victims petition for redress in humble terms and courts decide as a matter of discretion whether to allow victims to sue.

We could fix this by establishing a presumptive right to sue under Bivens, as the book contends, or by adding “color of federal law” to section 1983 as Vladeck suggests and the book acknowledges, or by amending the Federal Tort Claims Act, as Greg Sisk argues. The Sisk solution certainly deserves consideration, but raises problems of its own. First, it requires legislation, something notably difficult to come by these days. The government has resisted any change in FTCA liability that would limit its ability to proffer qualified immunity defenses to constitutional tort claims. To be sure, Sisk urges the incorporation of intentional tort theories of liability that would rest on state common law and would not so obviously give rise to immunity defenses but that expansion of government liability would surely need to overcome similar resistance. Second, the FTCA includes its own discretionary function exception that may, as Sisk recognizes, complicate the right to sue. Third, the FTCA does not apply to government conduct that causes injuries outside the territory of the United States, making the Act a poor vehicle for the redress of federal government wrongs that occur overseas.

 The reviewers also broadly agreed that the problem with the inadequacy of constitutional remedies extended beyond the war on terror, a conclusion with which I certainly agree. The book’s appendix set out to assess whether war-on-terror claims were like other Bivens claims, hard to win, or were virtually impossible to win. To do so, it adopted a metric similar to that developed by Alex Reinert, who showed in an important paper that settlements should count as successes and that litigants succeed at a much higher rate in Bivens litigation than the conventional wisdom would have us believe. Applying Reinert’s test, the appendix finds that war-on-terror Bivens claimants in cases that arise in the United States enjoy success comparable to that Reinert reported, but such claimants invariably fail when their cases have overseas elements (even when the claimants’ US citizenship solves the interesting puzzle of allegiance and protection that Baude posited). It thus appears that the systemic remedial inadequacy that plagues all constitutional tort litigation takes a special toll on Bivens claims brought by overseas claimants. While the book’s proposed solutions would aid that class of litigants, it would also surely benefit Bivens litigants across the board. Nor would mending the doctrine in the ways I suggest solve all problems; Will Baude correctly observes that we have much work to do to address instances of remedial inadequacy that shape the daily interactions between officialdom and citizenry. He argues against the legitimacy of the doctrine of qualified immunity, a view I happen to share. The half solution I propose, a lawyer’s workaround, seeks to facilitate the clarification of law in suits for nominal damages in the event qualified immunity proves hard to dislodge.

That workaround, among other things, moved Alex Reinert to ask more searching questions about the book. He doubts that the courts will embrace the reform project the book advances (fair enough) and wonders if it will do much good, even if adopted. He’s particularly concerned, and correctly so, with the denial of compensation to victims who seek to avoid qualified immunity by mounting claims for nominal damages. Better, I would agree, that we should abandon qualified immunity altogether, as Baude argues. (Joanna Schwartz has shown in other work that indemnity functions very well today to protect state and local officials from personal liability in section 1983 litigation, just as it often operated to protect officers sued personally in the nineteenth century.) But Reinert over-reads the book’s proposal to the extent he treats it as applicable to every war-on-terror or national security claimant. Nominal claims need proceed only in the shadow of unsettled law; once the law has been clarified, future litigants could point to established law as the basis for obtaining a fully compensatory award.

Reinert also questions the book’s suggestion that the Supreme Court has been more solicitous of habeas than of Bivens litigation. For Reinert, the Court’s relative assertiveness in habeas can be explained as an instance of judicial self-defense against concerted attacks by the political branches (culminating in Boumediene) whereas its lassitude in Bivens litigation represents a kind of judicial self-abnegation with the Court acting as its own governor. But I’m not persuaded that the habeas and Bivens contexts present different separation-of-powers puzzles. Consider the reaction to Rasul v. Bush (2004), which upheld district court jurisdiction to entertain both the habeas and Bivens claims of Guantanamo Bay detainees. Congress and the president responded in precisely the same way to both litigation threats: by proposing and enacting legislation that would deprive the federal courts of jurisdiction over habeas and Bivens claims by those detained as enemy combatants. The Boumediene Court pushed back, invalidating the habeas restriction, but has done nothing to restore oversight of the legality of the treatment of prisoners at Guantanamo Bay in the face of lower court decisions that have (wrongly, in the book’s view) upheld the Bivens jurisdictional restrictions.

Alex also offers a more nuanced assessment of Iqbal and its implications for qualified immunity as an affirmative defense. I bow to him on all things Iqbal. He has lived that case, and others, and has an exceptional command of the way litigants pursue and officers defend Bivens cases. But in the end, I’m not sure we disagree.  Alex believes that qualified immunity remains an affirmative defense in the sense that the government defendant still bears the ultimate burden of persuasion if the parties join issue at trial. I focused instead on the change Iqbal wrought in the burden of pleading. Listen to the Supreme Court’s account in Woods v. Moss (2014): “The doctrine of qualified immunity protects government officials from liability for civil damages “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” As authority for asking the plaintiff to plead around qualified immunity, the Woods Court cited Ashcroft v. al-Kidd and Ashcroft v. Iqbal. This formulation would seem to cast the burden of pleading on the plaintiff; after all, the case was decided on the officers’ motion to dismiss under Rule 12(b)(6). As a formal matter, affirmative defenses are not typically resolved by mounting challenges to the sufficiency of the plaintiff’s complaint.

 Is there hope? Joanna Schwartz sees reason for guarded optimism in the lower courts’ handling of the Trump travel ban litigation. Indeed, she locates in Judge Robart’s travel ban opinion a restatement of judicial duty not unlike that Justice Story articulated nearly two hundred years ago. As she recognizes, however, that stirring declaration came in the context of a suit for injunctive and declaratory relief, a context in which the courts have more willingly articulated constitutional norms. The litigation did not face the built-in headwinds that a Bivens action might encounter. Imagine the fate of a suit for damages, brought to seek recompense for the unlawful detention of individuals under the cover of a Trump travel ban that the courts invalidated and the President has now withdrawn? One might fairly doubt that such litigation would succeed, even though most jurists apparently agreed that the first travel ban was clearly unlawful.

 To be sure, we have a less pressing need for a rigorous Bivens jurisprudence when the federal courts can reach the constitutional issue on a motion for preliminary injunctive relief. But that depends on finding a plaintiff with standing to mount the challenge, a role the State of Washington played in Robart’s case. If, as seems conceivable, the Court adjusts the rules of standing to deprive States of their preferred status in challenging federal regulation, identifying a plaintiff with standing to seek prospective relief may prove more difficult. And that brings us back to the nub of the problem: when government misconduct defies remediation through habeas or other forms of injunctive or declaratory relief, Bivens provides the only plausible remedy (as Vladeck reminds us). That’s true for torture victims (who cannot petition to end a waterboarding session) and for others who find themselves swept up in unconstitutional programs. By reviving the Bivens action, the Supreme Court can help preserve its fundamental law-saying role. It can also restore the rule-of-law premises to which James Madison, John Marshall, Joseph Story and other nineteenth century figures gave voice.

 James E. Pfander is the Owen L. Coon Professor of Law at the Northwestern Pritzker School of Law. You can reach him by email at j-pfander at

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