D.C. Circuit Review – Reviewed: A War Court

by Aaron Nielson — Friday, Oct. 23, 2015@Aaron_L_Nielson

“Each of the federal circuit courts of appeals has its own unique character,” John G. Roberts, Jr., onceobserved, shortly before he became the nation’s Chief Justice. “For example, I am sure you are familiar with the tradition in the Court of Appeals for the Fourth Circuit, where at the end of oral argument the judges come down from the bench and shake hands with the lawyers. It is a very endearing custom emblematic of the grace and hospitality of the region encompassed by the Fourth Circuit. Things are different in the District of Columbia Circuit.” During the early days of the court, for instance, D.C. Circuit Judge Buckner Thruston “was in the habit of finding the lawyers appearing before him deficient” and “giving voice to that view. On one occasion, a lawyer responded in kind, letting Judge Thruston know that he, the lawyer, found the Judge equally deficient. The Evening Starexplained what happened next: ‘Judge Thruston’s reaction was to hustle down from the bench and berate his critic as “a scoundrel and poltroon,” whom he challenged to step “outside and fight.”’ Perhaps those sorts of beginnings explain why the tradition never really caught hold in D.C. as it has in Richmond.”

I share this anecdote to make a point. Everyone knows that the D.C. Circuit is a court of administrative law. But that is not all the D.C. Circuit is; it is also a court of war. In Federal Courts, for instance, I assign my students this case. And anyone who follows Guantanamo Bay well understandsthe role of the D.C. Circuit.* (Indeed, the en banc court will soon consider another one of these cases.) In fact, even the D.C. Circuit’s “admin law” cases are often war cases. And war, rightly, stirs strong emotions. Although the D.C. Circuit’s judges are not likely to engage in fisticuffs anytime soon, because of the nature of the cases they must confront, the fighting spirit of Judge Thruston runs deep in this court. The D.C Circuit’s big case this week is a good illustration.

That case, of course, is Meshal v. Higgenbotham, and it concerns whether an American citizen can bring a Bivens claim “against several agents of the Federal Bureau of Investigation, claiming they violated his Fourth and Fifth Amendment rights when they detained, interrogated, and tortured him over the course of four months in three African countries.” Judge Brown (for whom I clerked), writing for herself and Judge Kavanaugh, concluded that he cannot bring such a claim. Judge Pillard dissented. Although Judges Brown and Kavanaugh found “allegations of federal agents abusing an American citizen abroad quite troubling,” they nonetheless concluded that (1) extraterritorial application of Bivens combined with (2) “a terrorism investigation” means “special factors counsel hesitation in recognizing a Bivens action for money damages.” (Notably, the court did not decide whether either of those conditions, by itself, would be sufficient.)

I am not going to get into the details of Bivens here; suffice it to say, Bivens created a peculiar type of implied right of action, and some judges are reluctant to read it broadly. (Note there are also statutory arguments floating around, including whether Congress has implicitly ratified Bivens and whether Congress could eliminate it altogether.) But I will focus on the D.C. Circuit’s discussion of terrorism and war. In a series of cases – including Wilson v. Libby – the court has declined to recognize a Bivensaction “in cases within the national security arena.” Judge Brown explained some of the dangers of allowing such suits: “We cannot forecast how the spectre of litigation and the potential discovery of sensitive information might affect the enthusiasm of foreign states to cooperate in joint actions or the government’s ability to keep foreign policy commitments or protect intelligence.” Judge Kavanaugh’s language was even stronger: “The United States is at war against al Qaeda and other radical Islamic terrorist organizations. Shortly after al Qaeda’s attacks on the United States on September 11, 2001, Congress authorized this war. President Bush and President Obama have aggressively commanded the U.S. war effort. The terrorists’ stated goals are, among other things, to destroy the State of Israel, to drive the United States from its posts in the Middle East, to replace more moderate Islamic leadership in nations such as Saudi Arabia, and to usher in radical Islamic control throughout the Greater Middle East. … The war continues. No end is in sight.” Moreover: “U.S. officials were attempting to seize and interrogate suspected al Qaeda terrorists in a foreign country during wartime. If this case is not national-security related, it is hard to see what is. … Make no mistake. If we were to recognize aBivens action in this case, U.S. officials undoubtedly would be more hesitant in investigating and interrogating suspected al Qaeda members abroad. … In my view, we would disrespect Congress and the President, and disregard our proper role as judges, if we were to recognize a Bivens cause of action here.”

For her part, Judge Pillard also did not pull her (rhetorical) punches: “[W]here FBI agents arbitrarily detain a United States citizen overseas and threaten him with disappearance and death during months of detention without charges, those agents’ mere recitation of foreign policy and national security interests does not foreclose a constitutional damages remedy. …. Government is most tempted to disregard individual rights during times of exigency. Judicial scrutiny becomes particularly important when executive officials assert that individual rights must yield to national security and foreign policy imperatives.” Likewise: “The Constitution includes a Bill of Rights because the Framers ultimately recognized that a Congress responsive to the will of the majority would not always adequately protect individual rights that might be unpopular with majorities.” And this: “As Judge Easterbrook observed … ‘[p]eople able to exert domination over others often abuse that power; it is a part of human nature that is very difficult to control.’”

Strong words all around. Nor is this the last time that the D.C. Circuit will be asked to decide these sorts of questions. The D.C. Circuit is remarkably collegial, especially given the court’s docket. But Chief Justice Roberts is right: The D.C. Circuit “has its own unique character.” And that is especially true when it comes war.

(The D.C. Circuit decided two more cases this week, neither of which is especially notable. Oneinvolves a sufficiency-of-the-evidence challenge in a criminal case; the other shows that “[t]he problem with scorning a lawyer is that lawyers tend to sue.”)

* Judge Silberman, for one, has strong views on this. In a separate opinion from 2011, he let the Supreme Court know what he thinks of its decision to plop all of the detainee cases on the D.C. Circuit: “I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter. Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do – taking a case might obligate it to assume direct responsibility for the consequences ofBoumediene v. Bush, 553 U.S. 723 (2008)).”

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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