This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.
Lots of attention has been paid to Judge Quackenbush’s denial of James Mitchell and John Jessen’s motion to dismiss the ACLU’s lawsuit (on behalf of former US detainees) against them, the central allegation of which is that they “designed, implemented, and personally administered an experimental torture program for the [CIA].” Although Judge Quackenbush denied the motion orally at the April 22 hearing, he issued a 19-page opinion last Thursday setting out his specific reasons for doing so in more detail.
There’s plenty one could say about Judge Quackenbush’s three major holdings — that the political question doctrine does not bar the claims; that the defendants are not entitled to “derivative sovereign immunity”; and that the Alien Tort Statute does confer jurisdiction over the claims. Indeed, if I hadn’t already written my Federal Courts exam, it would’ve made for fascinating fodder for my students. There’s also plenty that could be said about the government’s somewhat surprising decision not to seek dismissal of the suit at this stage based upon the state secrets privilege — which has been celebrated by many (prematurely so, in my view) as signaling a broader scaling back in the Justice Department’s approach to such privilege claims.
But rather than get lost in the weeds of Federal Courts doctrine or Justice Department politics, I wanted to take this opportunity to make a somewhat more cynical point, lest the interest in this still-forming tree obscure our vision of the far more problematic forest. Put simply, even if Salim v. Mitchell somehow makes it to an adjudication on the merits, it will be at most the exception that proves the rule — a rule in which the federal courts have found over a dozen different reasons to not rule on the merits of a challenge to post-September 11 US counterterrorism policies. And even the exception will be deeply equivocal — with two independent, private contractors left as the only individuals held liable for the widespread torture and other abusive treatment of post-September 11 detainees, abuses that were sanctioned at the highest levels of the US government.
I. The Post-September 11 Obstacle Course
Two weeks ago, I wrote about the difficulties that the victims of the September 11 attacks and their families have encountered in trying to sue those foreign governments and private entities they hold responsible for supporting the attacks. But those difficulties pale in comparison to the number of obstacles plaintiffs have faced in seeking to challenge the legality of post-September 11 US counterterrorism programs. Although there have been a handful of cases that have produced rulings on the merits, challenges to everything ranging from prior detention to abusive interrogations to extraordinary rendition to unconstitutional surveillance have been dismissed based upon some combination of the following obstacles:
- Article III standing;
- The political question doctrine;
- Refusal to recognize Bivens remedies;
- Unavailability of Alien Tort Statute claims;
- Heightened pleading standards;
- The “immediate custodian” doctrine;
- Councilman abstention;
- Sovereign immunity;
- Official immunity;
- The state secrets privilege; and
- “Battlefield preemption”
Some of the rulings have involved trans-substantive doctrines that apply to all civil litigation against government officers; others have been specific to the national security context. Some of the rulings relying upon these obstacles have been plausible applications (or extensions) of existing doctrine; others have not. My point is not to offer case-by-case analyses of these individual decisions, but rather to emphasize the larger pattern they reflect: Federal courts have found every conceivable way (and some previously inconceivable ways) to avoid even reaching the merits of challenges to post-September 11 counterterrorism initiatives, let alone resolving them.
As applied to Salim v. Mitchell, that leads me to two bottom-line reflections on the events of the past fortnight: First, there will be plenty of opportunities for the district court to find some other ground on which to avoid reaching the merits as the lawsuit goes forward — including, quite possibly, the state secrets privilege, depending upon how discovery proceeds. (And that all assumes that Mitchell and Jessen don’t pursue an interlocutory appeal of the denial of their motion to dismiss — or that, if they do, it is ultimately unsuccessful.)
Second, even if Salim becomes one more case in which the merits are reached — and in which a federal court does decide the merits of particular challenges to post-September 11 counterterrorism initiatives — it will still be in the decided minority compared to the myriad similar challenges that went out on non-merits grounds. As I’ve explained at some length before, whatever one thinks the right answers are on the merits of these cases, there is a value to having these questions answered either way, both from the classical perspective of deterring misconduct and improving government accountability, and from the more counterintuitive (but no less important) perspective of clarifying the full scope of the government’s permissible authorities.
II. The Curious Example of Mitchell and Jessen
Separate from where Salim ends up in the National Security Canon, there’s also something dissonant to me about a remedial universe in which the only individuals who actually face meaningful civil liability for such a widespread, comprehensive, and sanctioned program of abusive interrogation methods are two private, independent contractors like Mitchell and Jessen.
Don’t get me wrong — if the plaintiffs’ allegations are true, then we should have no love lost for Drs. Mitchell and Jessen. The allegations against Mitchell and Jessen, with substantial support from the Executive Summary of the Senate Select Committee on Intelligence’s study of the CIA’s detention program, are quite powerful (don’t take my word for it; read pages 6–7 of Judge Quackenbush’s ruling). But what does it say about our legal system if a court ultimately holds that Mitchell and Jessen can indeed be held liable under the Alien Tort Statute for jus cogens violations of customary international law (through their role in promoting, facilitating, and justifying the torture of US detainees), when no US official — from the line officers who committed the abuses to the government lawyers who rationalized them to the senior government officials who ordered them — has faced a similar ruling?
The ACLU’s lawyers, as usual, have done yeoman work. And I don’t mean to suggest for a moment that we’d be better off if the district court had granted the defendants’ motion to dismiss, all the more so because, in my view, it would have required the further perversion of existing doctrines to support such a step. But for all of the positive feedback that the ruling in Salim has generated within the human rights community and from certain media outlets, it seems to me that we all need to both (1) remember how hard it has been (and how hard it remains) for civil litigants to obtain a merits adjudication, let alone any relief, in a challenge to post-September 11 US counterterrorism policies, and (2) consider how unsatisfying it would be if, when all is said and done, the only guys holding the bag for all of the US government’s post-September 11 abuses of detainees are two private psychologists.
Indeed, whatever happens going forward in Salim, I both hope and fear that the case will stand as an important reminder of the gross insufficiency of contemporary federal civil remedies for US governmental misconduct, especially in the national security sphere.