(This post is cross-posted with COMAR LAW)
Last week, the United States Court of Appeal for the Fourth Circuit (which hears appeals from Maryland, the Carolinas and Virginia) dismissed a civil case brought by Jose Padilla against Donald Rumsfeld and other Bush-era officials for alleged violations of law taking place after 9/11. Lebron v. Rumsfeld, No. 11-6480 (4th Cir. Jan. 23, 2012).
Padilla, an American citizen, was labelled an “enemy combatant” by President George W. Bush and indefinitely detained for close to four years without trial until he was transferred into civilian custody in early 2006.
Padilla sued Rumsfeld and other officials for violating his constitutional rights, specifically:
- Denying Padilla his right to counsel under the First, Fifth and Sixth Amendments;
- Denying Padilla his right to access a court under Article III of the Constitution, the First and Fifth Amendments, and the Habeas Corpus Suspension Clause;
- Subjecting Padilla to cruel conditions of confinement in violation of the Fifth and Eighth Amendments;
- Subjecting Padilla to coercive interrogations (torture) in violation of the Fifth and Eighth Amendments;
- Denying Padilla his freedom of religion under the First Amendment and the Religious Freedom Restoration Act;
- Denying Padilla access to information protected by the First Amendment;
- Denying Padilla his freedom of association under the First Amendment; and
- Denying Padilla due process protected by the Fifth Amendment.
In a surprisingly broad decision, the Fourth Circuit dismissed Padilla’s claims because of concerns of interfering with “military affairs,” which the court stated were the purview of Congress and the President as Commander in Chief. (Slip op., at 14-15.)
In the court’s view, Congress gave the President the ability to label American citizens “enemy combatants” in 2001, when it passed the Authorization of Use of Military Force after the 9/11 attacks.
Allowing Padilla to seek money damages for past constitutional wrongs would bring judicial review into “sensitive military decisions” made by the executive branch, which might burden future executives with the prospect of “civil litigation and potential personal liability.” (Slip. op, at 20.)
The court also expressed hesitation about interrupting the “established chains of military command” and “military intelligence” by permitting the suit to proceed. (Slip. op., at 22-23.)
The court surmised that people who wish to fight their enemy combatant status can do so through a habeas corpus proceeding. The fact that it took the Government almost four years to charge Padilla — an American citizen — with any type of crime did not affect the court’s calculus. (Slip op., at 17-18.)
The court also dismissed two related causes of action made by Padilla under the Religious Freedom Restoration Act and for declaratory relief. ”Claims implicating national security and war powers flash caution signals all their own. Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military, preferring that Congress explicitly authorize suits that implicate the command decisions of those charged with our national defense.”
The effect of Lebron is that American citizens who may be innocently caught up in the paranoia of contemporary terrorism policy may be prevented from seeking monetary damages against the people who deprive them of their rights.
This “military affairs” exception to civil rights law is highly suspect, particularly in light of the fact that Padilla was seeking redress against the chief architects of his detention — people such as Donald Rumsfeld — and not the soldier at the bottom of the chain-of-command just following orders.
Shielding so-called “military decisions” from civil liability creates a perverse incentive for policymakers to claim a military logic to any decision that implicates constitutional rights in order to avoid future judicial inquiry.
If there’s any question that a policy is unconstitutional, just call it a “military decision” and the courts will stay out.
The Fourth Circuit has effectively said: “We will not review decisions made by Congress or the President that relate to military affairs.”
In an era when the line between military and civil domains continues to weaken and blur, the Fourth Circuit risks losing oversight of these political branches in chief areas of government activity.
By attempting to respect “checks-and-balances,” the Fourth Circuit may have done the exact opposite.