4th Circuit: Enemy Combatants Can’t Complain about Having Been Made Enemy Combatants

As you’ve probably heard, the 4th Circuit rejected Jose Padilla’s suit against Donald Rumsfeld on Tuesday. Both Lyle Denniston and Steve Vladeck have good summaries of the decision, which basically says the courts can’t grant damages for constitutional abuses not otherwise covered by law until such time as Congress sees fit to cover them in law:

The factors counseling hesitation are many. We have canvassed them in some detail, but only to make a limited point: not that such litigation is categorically forbidden by the Constitution, but that courts should not proceed down this highly problematic road in the absence of affirmative action by Congress. If Congress were to create a damages remedy here, we would trust that the legislative process gave due consideration to the broader policy implications that we as judges are neither authorized nor well-positioned to balance on our own.

But if that’s not circular enough reasoning for you, here’s a more disturbing one–one which may have troubling implications given the recent codification of indefinite detention.

The 4th Circuit Opinion hews closely to the argument the government made in its amicus brief which, as I described last year, itself engaged in circular logic. It effectively invoked national security to say that the court couldn’t consider Padilla’s deprivation of due process. And then having bracketed off the lack of due process that got him put in the brig with no access to lawyers, they effectively punted on the torture complaint.

To explain their failure to treat torture in their filing, they say 1) that the other defendants are addressing it and 2) they don’t have to deal with it anyway because the President has said the US does not engage in torture (which is precisely what Bush said when torture was official policy):

In this brief, we do not address the details of Padilla’s specific treatment allegations, which have already been thoroughly briefed by the individual defendants.1

1 Notwithstanding the nature of Padilla’s allegations, this case does not require the court to consider the definition of torture. Torture is flatly illegal and the government has repudiated it in the strongest terms. Federal law makes it a criminal offense to engage in torture, to attempt to commit torture, or to conspire to commit torture outside the United States. See 18 U.S.C. § 2340A. Moreover, consistent with treaty obligations, the President has stated unequivocally that the United States does not engage in torture, see May 21, 2009 Remarks by the President on National Security.

Note that bit, though, where the government acknowledges that torture is illegal?

That’s important, because they base their objections to the Bivens complaint in part on the possibility that a court could review Padilla’s treatment–treatment he alleges amounts to torture, which the government accepts is illegal–and determine whether it was in fact torture and therefore illegal.

Padilla also seeks damages in regard to the lawfulness of his treatment while in military detention. Thus, a court would have to inquire into, and rule on the lawfulness of, the conditions of Padilla’s military confinement and the interrogation techniques employed against him. Congress has not provided any such cause of action, and, as the district court concluded (JA 1522), a court should not create a remedy in these circumstances given the national security and war powers implications.

And they’re arguing Congress–which passed laws making torture illegal (to say nothing of the Constitution prohibiting cruel and unusual punishment)–didn’t provide for a cause of action.

That is, Padilla can’t sue both because Congress has made it illegal but not provided a cause of action here and … national security!

Effectively, then, the government shielded torture by shielding the initial lack of due process from all oversight under national security and therefore depriving Padilla of recourse once he lost his access to due process.

In my opinion, the 4th Circuit brief actually magnifies this problem. Check out the language in these two passages:

Special factors do counsel judicial hesitation in implying
causes of action for enemy combatants held in military detention.


With respect to detainees like Padilla, Congress has provided for limited judicial review of military commission decisions, but only by the District of Columbia Circuit Court of Appeals, and only after the full process in military courts has run its course. 10 U.S.C. § 950g. And to the extent that the Supreme Court in Boumediene v. Bush, 553 U.S. 723 (2008), permitted further judicial examination of the detention of enemy combatants, it did so using the limited tool of the constitutionally guaranteed writ of habeas corpus—not an implied and open-ended civil damages
action. See id. at 797. [my emphasis]

That is, the 4th Circuit did not consider whether American citizens with no other recourse could sue under Bivens for having been turned into enemy combatants precisely to deprive them of their rights. Rather, it considered whether “enemy combatants held in military detention” and “detainees like Padilla” had access to Bivens. It thereby ignored the most fundamental part of the process, where the Bush Administration removed Padilla, a citizen, from civilian detention with access to due process, and made him an enemy combatant.

The 4th Circuit denies Padilla the ability to sue for being deprived of his constitutional right to due process by considering him not as a citizen deprived of his constitutional rights, but as a detainee whose constitutional rights had already been suspended.

Which makes the final passages of this opinion all the more nauseating. Having premised their entire decision not on Padilla’s rights as a citizen, but on his rights as an enemy combatant (even seemingly referring to him as a detainee, in the present tense), they then argue that there would be no incremental harm for Padilla between being a citizen convicted of a felony through due process and being an enemy combatant.

It is hard to imagine what “incremental” harm it does to Padilla’s reputation to add the label of “enemy combatant” to the fact of his convictions and the conduct that led to them.

This entire suit is about the magical power that term “enemy combatant” has to put an American citizen beyond the realm of due process (and, in Padilla’s case, to be tortured precisely because he has lost due process). That is precisely the logic the judges use throughout this opinion. And yet they simply can’t imagine what the difference between being a citizen–even one convicted of multiple felonies–and being an enemy combatant is?

And then there are the larger implications of this. In a world where indefinite detention is now codified into law, in a world where Padilla has always delimited the possible applications of claimed authority to hold American citizens captured in this country as enemy combatants, the circuit that covers CIA’s and JSOC’s actions–not to mention the two military brigs, Charleston and Quantico, that would be the most likely places to detain American citizens–just accorded that term, “enemy combatant,” magical status. Once applied to an American citizen, the 4th Circuit says, the Executive Branch is absolved of any infringements of a citizen’s constitutional rights, even the infringements of constitutional rights used to get him into that magic status in the first place.

24 replies
  1. Quanto says:

    Why not cut to the chase and just circle the U.S. boarders with concertina wire and relabel the United States a Supermax prison. We could then call it the S.M.of A., duel meanings but both apply.

  2. bmaz says:

    This decision was a no brainer after the SCOTUS decision in Minneci v. Pollard two weeks ago. Granted the 4th Circuit is all over the road, even were it cleaner, their decision was going to be the same. There simply will not be squat for support of Bivens availability under the Roberts Court, much less expansion thereof.

  3. MadDog says:

    I may be wrong (not at all unusual *g*), but it seems to me that the judges in the 4th Circuit seem to think that they can cabin all of their “the Constitution doesn’t exist” opinions via any locus to a prosecutorial claim of “terrorism”.

    If you rob a bank, you still have Constitutional rights.

    If you rob a bank and are defined by the prosecution as having some connection however remote to terrorism, you have no Constitutional rights.

    That’s what it seems to me to be occurring with the 4th’s opinions. Of course, their belief that other Circuits will abide by their “terrorism” cabin and not shapeshift these opinions in every day law unrelated to terrorism is pure fantasy.

  4. matt carmody says:

    Whatever happened to the judiciary as a shield against congressional overreaching that took up so much debate time during the ratification conventions back in the time after the constitutional convention?

    Do these justices really believe that the people of this country are so stupid that we can’t see the mazes they’re trying to construct to keep us in the dark? I fully believe that anyone born between 1947 and 1955 can still read and understand what the constitution is supposed to stand for, Federalist Society lawyers and judges notwithstanding.

    I know what the constitution says and I have a pretty good idea of what the Framers had in mind when they were establishing this country of ours. We are so far off-course it isn’t funny anymore and hasn’t been for a really, really long time. I’m 61 and for 42 years, give or take a few, this fucking country has been a real disappointment. I’ve watched so many scumbags get rich by wrapping themselves in the flag or carrying a bible that I can’t even count them.

    It’s time for a root and branch change of the system in this country, long past due.

  5. Peterr says:


    This strikes me as a very, very poorly crafted decision by the 4th circuit, and a decent cert petition by Padilla’s legal team should be able to point out just the kind of problems that Marcy has laid out.

    Assuming you are right about what the Roberts Court would ultimately rule, will they feel obliged to grant cert and hear the arguments anyway, if only to clean up the mess the 4th Circuit has made of it, rather than simply allow this opinion to stand?

    Also, if SCOTUS were to deny cert, I could easily envision a scathing dissent to that decision offered by someone like Ginsberg when the denial was announced. This, too, would be something Robert & Co. would likely not like to endure.

  6. bmaz says:

    @Peterr: You are severely underestimating the Court’s aversion to Bivens. This is not a torture, nor morality, case, it is a Bivens question. Ain’t happening.

  7. Peterr says:

    @bmaz: The telling point Marcy raises, though, is that the 4th Circuit employed the Government’s circular logic to justify their decision here.

    Is SCOTUS so averse to touching Bivens that they would be willing to let such defective logic speak for them in a case like this?

  8. geoschmidt says:

    @matt carmody: Ten/four on that… good buddy!
    How about a little outrage from this little society of… (twerps… spunges… paracites… ) [term to be chosen from a contest…. (prize not stipulated…), but for sure, it is not cool, what is.

    Like a root cannal of the bastards before they do what they are here to do: They are ANTILIFE, which is too much under estimated, as a factor.

  9. orionATL says:

    our federal court system is at it again.

    what is “it”?


    using the congress as a foil to avoid making very badly needed decisions protecting american citizens like padilla from the american president and from the america military, an extension of the american presidency.

    only the fools and cowards currently inhabiting the federal judiciary in overwhelming numbers would refuse to see that padilla is, in all guises, about the presidential branch of gov’t ignoring and encroaching upon the prerogatives of the judiciary branch.

    and, in addition, conning and pushing dozens of individual timid federal judges into contextual and interpretive judicial devices deliberately designed to avoid challenging that same presidential branch which is usurping the judiciary’s powers by leagues a day.

  10. bmaz says:

    @orionATL: You know, I don’t know that such is the proper construct here. To most people, Padilla is a cut out for all kinds of frustrations and wrongs in the war on terror. And, in a lot of ways, his case is just that. But this is a Bivens case, and that is an unique and narrowly proscribed relief vehicle, and it was a stretch from the start. Personally, I think Bivens liability should be MUCH braoder than it is, but that is simply not the case. Now the 4th Circuit was, as Marcy describes, a little sloppy in how they arrived at their decision, but the decision was inevitable and, given the narrowing of, and disdain for, Bivens claims over the last decade or two by SCOTUS, completely consistent with existing law and interpretation by SCOTUS.

  11. orionATL says:


    according to miss wiki:

    justice brennan wrote – “… [edit] The Court’s decision “For the reasons set forth below, I am of the opinion that federal courts do have the power to award damages for violation of ‘constitutionally protected interests’ and I agree with the Court that a traditional judicial remedy such as damages is appropriate to the vindication of the personal interests protected by the Fourth Amendment.”

    The Court, in an opinion by Justice Brennan, laid down a rule that it will imply a private right of action for monetary damages where no other federal remedy is provided for the vindication of a constitutional right, based on the principle that for every wrong, there is a remedy. The court reasoned based upon a presumption that where there is a violation of a right, the plaintiff can recover whatever he could recover under any civil action, unless Congress has expressly curtailed that right of recovery, or there exist some “special factor counseling hesitation.”

    [edit] Harlan’s concurrence

    Justice Harlan voted with the majority to reverse the lower court, but also wrote a separate concurring opinion. Harlan particularly emphasized the special importance of constitutional rights. He presented that it was well-settled, even undeniable, that a suit for injunction based on a constitutional right was long recognized in the Federal courts. That being the case, where equally necessary, a suit for damages should be equally if not more acceptable. (Money damages were traditionally considered to be less onerous of a remedy than injunction, except in Constitutional Jurisprudence; in Edelman, Justice Rehnquist declared exactly the opposite, an assertion of dubious legal pedigree.)

    [edit] Dissents of Burger, Black, and Blackmun

    Dissenting opinions were written by Chief Justice Burger, and by Justices Black and Blackmun.

    Chief Justice Burger’s dissent asserted that this decision was legislating, and should be left to Congress.

    Justice Black basically agreed with Burger, and worried about the growing docket.

    Justice Blackmun went a step further, declaring that this holding would lead to “another avalanche of new federal cases.”

    oh, my!

    the dear justices dassent be overworked.

    if an injustice is done an american citizen, whether it is remedied or not, apparently would depend on the judges and justices not being “too busy” to accept and hear the case.

    this history reassures me about work ethic of the american judiciary.

  12. orionATL says:


    thanks for that informed response.


    however “justified” the law readers’ sly or careful or self-serving interpetation,

    revolutionary resentment and distrust builds,

    then multiplies.

  13. Gitcheegumee says:

    How long before some of the participants in various Occupy movements are detained and declared enemy combatant..with all that entails?

  14. emptywheel says:

    @klynn: SCOTUS’ unwillingness to accept Bivens cases will. Though they are much more sympathetic figures than Padilla, their legal case is tougher, bc they were picked up in a true war zone not, as Padilla was, from a civilian jail.

  15. klynn says:


    That would not be good. Should Vance and Ertel not receive proper justice, I think SCOTUS should be closed and of course, freedom is clearly dead.

    The Vance and Ertel case has been my final barometer to determine if justice and freedom are gone.

  16. Bob Schacht says:

    @bmaz: Isn’t this whole issue dependent, ultimately, on the AUMF? Just like Congress, which goes all nuts when we are at “war” (never mind what kind of war), the Courts also get all weak in the knees when we’re “at war.” So, well, while we’re at War, the Constitution really doesn’t matter all that much.

    The AUMF is a cancer on our country. While it remains in force, we are doomed. To choose another metaphor, it is a poison pill that we have swallowed that will destroy us unless the President and Congress decide that this bogus “war” is over.

    Bob in AZ

  17. bmaz says:

    @Bob Schacht: Not technically, no. That may be a/the reason there are not more and better avenues to pursue relief, but this is technically a Bivens issue. Again, I think if you are going to have Bivens liability at all, it should be broader in scope and allow true relief where other avenues are non-existent and/or foreclosed. But that is certainly not how SCOTUS has viewed it over the last 10-15 years, and especially not how they have viewed it under the Roberts Court.

  18. lysias says:

    We have canvassed them in some detail, but only to make a limited point: not that such litigation is categorically forbidden by the Constitution, but that courts should not proceed down this highly problematic road in the absence of affirmative action by Congress.

    Didn’t the Bivens court go down precisely this road in the absence of affirmative action by Congress?

Comments are closed.