by Fiss, Owen
Every lawsuit rests on a legal claim. When an injunction is sought, the Constitution itself provides the claim, without the need for any congressional authorization. The same rule applies to declaratory judgments. Although a congressional statute passed in the 1930s made the declaratory remedy available to federal courts,32 the cause of action or claim underlying the request for that remedy, much like that for an injunction, arises from the Constitution itself and does not need congressional authorization.
In the 1971 Bivens decision,33 the Supreme Court extended this same principle to actions for damages, though with one qualification. The Court held that a claim or cause of action underlying a request for damages for a constitutional wrong arises from the Constitution itself unless there are some “special factors” that might make it appropriate to require congressional authorization. In the Arar case, the Second Circuit treated the foreign policy and military ramifications of extraordinary rendition as such a “special factor” and on that ground disallowed Arar’s claim for damages. The judges were mindful of the Detainee Treatment Act of 2005 and the ban on torture spearheaded by Senator McCain but thought that act insufficient to provide the congressional authorization for awarding damages that they insisted upon.
In demanding this congressional authorization, the Second Circuit underscored the political character of Congress. However, unless the “special factors” exception to the Bivens rule is going to degenerate into a free-floating political question doctrine, long discredited by the Supreme Court, it is not clear why the characterization of Congress as a political institution constitutes a reason for the judiciary to await congressional authorization before allowing damages for the violation of a constitutional right. Although there is a long-standing tradition of the judiciary’s deferring to the executive in matters of foreign and military policy, that deference is not owed to Congress and does not in any way depend on the nature of the remedy sought. In fact, this deference might be due to the executive even if Congress passes a statute authorizing suits for damages.
Wholly apart from the question of whether a statute is needed under the terms of Bivens to create a claim for damages, the government sought to defeat Arar’s claim for damages by invoking what has become known as “qualified immunity.” According to this privilege, damages will be awarded only if it can be shown that the officials being sued violated a right that had been clearly articulated at the time they acted. The Second Circuit, sitting en banc, meticulously avoided any reliance on this doctrine, but it was invoked by the government, and in the earlier phases of the case served as an alternative basis for the decision. The government did not deny that the right against torture in some general sense had the requisite clarity, only that it was uncertain that the right extended to foreign nationals who were tortured on foreign soil by foreign officials. Accordingly, there would be no point, the government argued, in judging the constitutionality of the extraordinary rendition Arar suffered because, even if it were unconstitutional, damages could not be recovered by Arar due to the qualified immunity enjoyed by the U.S. officials who sent Arar to Syria.
As a general matter, the qualified immunity doctrine invoked by the government serves two purposes. It avoids the unfairness of holding the government liable for damages for conduct that was not understood to be unlawful at the time it was undertaken, and it avoids creating disincentives for the government to take forceful and innovative action in a context where the legality of the proposed action is uncertain. I am doubtful that either purpose would be furthered by a ruling that put under the protection of qualified immunity the extraordinary rendition Arar suffered. Although there has been no clear ruling on the legality of the rendition that occurred in this case, it should be clear to government officials acting in good faith that their actions ran afoul of the Constitution, given the universality and force of the norms and laws against torture. This is especially true in light of the fact that the Convention against Torture prohibits the United States from sending any alien back to his country of origin if there is any chance that he might be tortured.
More important, even if Arar’s claim for damages was correctly dismissed without reaching the merits, either because of the qualified immunity doctrine or because of the Bivens exception for special factors, his claim for a declaratory judgment remains unaffected. A declaratory judgment does not require any congressional authorization and does not penalize any past act. It simply declares the law. It is an exercise of the core judicial function. A declaratory judgment would enable the judiciary to remove any lingering uncertainty about the legality of the practice of rendering a suspect to another country for torture, and in that way it would restore the sovereignty of the Constitution.
The Second Circuit held otherwise and dismissed Arar’s claim for a declaratory judgment on the theory that he lacked the standing required by Article III of the Constitution. Anxious to establish that a declaratory judgment would confer a concrete benefit on Arar, his lawyers artificially defined the declaration sought. The complaint did not seek a declaration of the unconstitutionality of the rendition to which Arar was subjected, but rather asked the court to declare invalid the removal order that was issued against him (in order to effectuate the rendition). Such a declaration, Arar’s lawyers reasoned, would confer a concrete benefit on Arar and give him standing to seek a declaratory judgment. The Second Circuit denied, however, that a declaration of the invalidity of the removal order could, in fact, be of any benefit to Arar. He had been designated a member of a terrorist organization, and as long as that designation stood, the court reasoned, he could be denied permission to enter the country, and if so a judgment invalidating the removal order would not confer a concrete benefit on him.
Arar’s lawyers fell into a trap of their own devising. The focus of the request for a declaratory judgment should not have been on the removal order but on the practice of extraordinary rendition itself—the torture of a foreign national by a foreign government at the behest of U.S. officials. Rule 54(c) of the Federal Rules of Civil Procedure gives a court the authority to enter any order that is just,34 and Arar’s claim should not be precluded by the strategic decision—possibly a blunder—of his lawyers.
The concrete harm that Arar suffered should be sufficient to give him standing to obtain a declaratory judgment on the legality of his rendition. Although all of us suffer when someone is tortured, since the basic law of the nation is compromised, the victim of the rendition suffers in a distinct and very particularized way. His personal suffering constitutes an injury in fact and as such should entitle him to invoke the power of the federal judiciary. As a purely formal matter, such a declaratory proceeding would constitute a “case” or “controversy” within the meaning of Article III of the Constitution. The policy objectives served by the standing requirement are also satisfied. There is nothing abstract or academic about the controversy, and Arar would have every incentive to make certain that the contentions of law and fact are vigorously presented. In fact, the claim tendered is the same as would be presented in any injunctive proceeding—the government acted in violation of the Constitution—and respects the inherently legal function of the judiciary: to say what the law is.
Concrete benefits, in contrast to concrete harm, should not also be required for standing, but even if they are, they can be found in Arar’s case. A declaratory judgment would not contain the material component of a damages award, but, much like a damages award, it speaks both to the world and to the victim. It says to all the world that the government violated basic norms of the legal order—the Fifth and Eighth Amendments. It also addresses the victim of the rendition and tells him in a direct and personal way that he has been wronged—senior U.S. officials violated the basic law of their nation in sending him to Syria for interrogation under conditions of torture. Such a statement may have as much meaning to the victim and give him as much satisfaction as an award of damages. It helps restore his self-worth. It speaks to his soul, not his pocketbook, but there is n
othing in Article III and its standing requirement that prioritizes the material over the spiritual.
In dismissing Arar’s suit, the Second Circuit relied on a doctrine—the “special factors” exceptions to Bivens—that is rooted in the fact that Arar sought damages. The government also invoked the rule conferring qualified immunity, and that rule also is confined to damage suits. However, a number of lawsuits brought by other victims of extraordinary rendition in other circuits have been dismissed on the basis of yet another doctrine—the state secrets doctrine—and this doctrine is not tied to the damages remedy. It is as applicable to suits seeking a declaratory judgment or injunction as it is to suits for damages, and it arises from the very understandable need to conduct some of the business of government in the dark.
The state secrets doctrine was first announced in a 1953 case involving a tort suit against the United States for a death arising from the crash of a military airplane.35 As part of the discovery process, the plaintiff sought internal government documents relating to the construction of the plane, and the Supreme Court upheld the refusal of the government to surrender those documents on the ground that such disclosure would compromise important state secrets. The plaintiff was allowed to continue his litigation, although without the benefit of certain information in the possession of the government.
As originally crafted, the state secrets doctrine arose in a tort suit and operated only as an evidentiary privilege. In the post–9/11 era, it has been used to defend against suits charging violations of fundamental rights. In that context, the doctrine has been transformed into a de facto grant of immunity. This most notably occurred in the Fourth Circuit decision dismissing a suit brought by a German citizen allegedly subject to extraordinary rendition.36 According to the complaint, this individual was captured by the CIA in Macedonia, then transferred to a prison in or near the Bagram Air Field in Afghanistan. He was held there for months and allegedly tortured. The CIA allegedly then flew him to Albania, where he was left on the highway. The Fourth Circuit felt that any inquiry whatsoever into the rendition would compromise the secrecy of the CIA’s operations and on that ground affirmed a dismissal of the suit on the pleadings. The court did not require the defendant to identify with any particularity the items of evidence that it wished to withhold from the plaintiff and thus exclude from discovery or trial. Rather, the court reasoned that dismissal would be justified if there were “a reasonable danger” that the litigation would expose military, diplomatic, or intelligence matters, as would indeed be true of almost any suit against the CIA.37
In so expanding the state secrets doctrine from an evidentiary privilege into this de facto grant of immunity, the court threatened the rule—long the hallmark of our legal system—that subjects all government officials, even the CIA, to the Constitution, and entrusts the judiciary with the task of determining whether these officials have violated the Constitution. A lawsuit challenging the legality of a rendition serves both private and public purposes. It gives a concrete benefit to the plaintiff, in the form of either damages or a declaration that he was wronged. At the same time, the lawsuit serves noble public purposes—it is the mechanism by which these officials are held accountable, and the sovereignty of the Constitution preserved. Relying on the state secrets doctrine in its new and expanded form any time a clandestine agency such as the CIA is charged with violating the Constitution would, in effect, place that agency beyond the reach of the Constitution.
Claims of secrecy are commonplace in criminal prosecutions—the paradigmatic public lawsuit. In that context, the government has been given two options: either make the evidence (or its equivalent) available to the defendant or drop the prosecution altogether. In the civil context, especially when a request for a declaratory judgment is at issue and the public nature of the lawsuit is most manifest, a similar procedure can be fashioned. First, the government must identify with some specificity the evidence it wishes to maintain in secrecy. Second, the judge must determine, in camera if necessary, whether the need for secrecy is justified. Third, if the judge decides that the need for secrecy is legitimate, he or she must then go on to determine how central or indispensable the evidence is to the plaintiff’s claim or the defendant’s defense. Of course, if it is not central to the plaintiff’s claim or the defendant’s defense, and the government’s claim for secrecy is well grounded, then the information can be withheld and the plaintiff should be allowed to move forward with his case.
To take one remarkable example, the Ninth Circuit dismissed a lawsuit against a private transport contractor allegedly used by the CIA in an extraordinary rendition even though it conceded that the plaintiff could prove the prima facie elements of his claim and the defendant could make a valid defense without the evidence the government wanted to withhold.38 Disregarding its responsibility to hold the government accountable for violating fundamental rights, the court justified its dismissal of the suit on the grounds that “litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets.”39 The duty of the court is to manage the lawsuit to prevent such a risk from ever materializing, not to turn that risk into a shield that would protect the defendant from liability.
Of course, situations may arise where the evidence is essential to the plaintiff’s claim or the defendant’s defense and the claim of secrecy is justified. This may be so, for example, when the evidence sought would disclose the identity of an undercover agent of the CIA. In those cases, the government should be presented with two options that are analogous to the ones provided in a criminal case: either disclose the evidence or, if the plaintiff can establish a prima facie case, allow the entry of a default judgment against it. In providing the government with these options, the judge, as in a criminal case, will respect the government’s insistence on secrecy but at the same time will require it to bear the consequences of its action and thus prevent the state secrets doctrine from becoming a de facto grant of immunity. Holding the CIA and other government agencies accountable to the Constitution is as urgent a public undertaking as providing the accused in a criminal trial with access to all the evidence in the possession of the government that might be of benefit to him or her.
The state secrets doctrine, as was true of the doctrines limiting the liability of government officials for damages (Bivens special factors or qualified immunity), might well be seen as technical encrustments by a judiciary reluctant to second-guess the executive on foreign and military matters. The decisions of the circuit courts may have been couched in terms of these formal doctrines, but the governing impulse may well have been derived from the constitutional tradition that calls for judicial deference to the executive in cases that involve foreign and military matters. Such a view may explain, but certainly does not justify, the decisions of the lower federal courts summoned to examine renditions to torture.
Admittedly, the executive possesses a special competence in defining the foreign policy objectives of the nation and how those objectives might be pursued. The executive also has special competence in determining how a war should be fought—what military action is required for a victory. Yet the executive has no special competence when it comes to determining whether the challenged action, even if it is of a military nature or implicates foreign policy, comports with the fundamental values of the nation.40 Indeed, such a normative determination is the essence of the judicial function—to determine whether extraordinary rendition, even if fully required by foreign policy or military objectives, is consistent with the dictates of the Fifth and Eighth Amendments. On that issue, the executive is likely to have a view, but it is owed no deference. The authority of the judiciary over such normative questions arises not from the personal virtues of those who happen to sit on the bench but from its political insularity and the strictures of public reason that govern all exercises of the judicial power—the need to listen to all those aggrieved, to try questions of the law and facts in open court, and to justify its decision on the basis o
f principle.
Obama’s Policies
On January 20, 2009, the Bush presidency drew to a close. On assuming office, President Obama immediately issued executive orders addressing some of the abuses of the previous administration. He confined the CIA, at least until further study, to interrogation techniques set forth in the Army Field Manual; closed the secret prisons, the so-called black sites, maintained by the CIA; and required the closing of Guantánamo in a year’s time.41 These actions were applauded—quite properly so—because they had the inevitable effect of minimizing the risk of torture. “Black sites” and “Guantánamo” entered the legal lexicon as prisons in which foreign nationals were abused and maybe even tortured. Moreover, having the CIA governed by the Army Field Manual will, at least nominally, place off-limits the “enhanced interrogation techniques” the agency had used during the Bush era.
Apart from these initial measures, the signals sent by the new administration on the issue of torture were decidedly more mixed. To his credit, President Obama maintained, as he did throughout his campaign, that he was opposed to torture.42 In his first address to a joint session of Congress, he spoke inspirationally of the example of America, and once again declared his opposition to torture.43 His nominee for attorney general, Eric Holder, in a clear attempt to distance himself from Bush’s last attorney general, Michael Mukasey, declared in his confirmation hearing, without the least hesitation, that waterboarding is torture.44
On the other hand, President Obama did not issue an order barring extraordinary rendition. At his confirmation hearing to become the director of the CIA, Leon Panetta equivocated on whether extraordinary rendition would be used by his agency in the future. He said he was unprepared to send someone to another country “for the purpose of torture or actions by another country that violate our human values,” but he also said that he might be prepared to return the person seized “to another country where they prosecute them under their laws.”45 He failed to guarantee that the person subject to the rendition would have judicial procedures available to make certain that he would not be tortured, and this failure may have made the distinction he drew illusory in practice.