Another (Dubious) Guantánamo Precedent

As Wells Bennett flagged over at Lawfare, the D.C. Circuit’s latest foray into the Guantánamo detainee litigation came two weeks ago in Al-Janko v. Gates, in which a three-judge panel held that Congress constitutionally divested the federal courts of subject-matter jurisdiction over suits for damages by former Guantánamo detainees–even those, like al Janko, who prevailed in their habeas petition, and therefore had a formal adjudication by the federal courts that their detention had been unlawful. In one sense, the decision in Al-Janko is wholly unremarkable, since the D.C. Circuit had already reached a superficially similar conclusion in Al-Zahrani v. Rodriguez–a 2012 case involving detainees who deceased while in custody at Guantánamo. But in holding that Al-Zahrani also applies where the detainee has prevailed (and thereby has an indisputably colorable damages claim on the merits), Al-Janko is arguably a more significant holding, and one that could easily become precedent far afield of Guantánamo for the debatable proposition that Congress may constitutionally foreclose judicial review of damages claims arising under the Constitution. And, as I explain below the fold, this is a particularly alarming result given the alternative grounds on which the same result could have been reached.

The problem in these cases arises from 28 U.S.C. § 2241(e)(2), the “other” jurisdiction-stripping provision of the Military Commissions Act of 2006–which, unlike the language the Supreme Court invalidated in Boumediene v. Bush, applies only to non-habeas actions on behalf of current or former detainees:

[N]o court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

The constitutional question that this provision raises is whether Congress may altogether preclude judicial review of damages claims–even those claims arising directly under the Constitution per the Supreme Court’s Bivens doctrine. In Al-Janko, the D.C. Circuit says “yes,” relying almost entirely on its earlier decision in Al-Zahrani, which had concluded that such a result follows from the unavailability of Bivens claims in a wide swath of cases. In short, Al-Zahrani suggested, if there is no constitutional right to a Bivens claim in all cases, then there can be no constitutional problem with Congress foreclosing jurisdiction in all such cases. As I wrote two years ago in response to that reasoning,

The problem with such analysis is that the Supreme Court has never, in fact, squarely held that damages remedies for constitutional claims are never constitutionally required. To the contrary, with one equivocal exception, every decision the Court has handed down in the Bivens context has presented a scenario where at least some remedy was available in some other forum–where the choice was not “Bivens or nothing.” And in other non-habeas contexts, the Court has gone so far as to suggest that there may be circumstances in which the Constitution does require a remedy (from which it should follow that the remedy would be damages when no other alternatives were available). Even the Court’s most recent foray into Bivens conditioned the unavailability of Bivens claims against private contractors on the existence of adequate remedies under state law. Of course, the Court has never held that damages for constitutional claims are constitutionally compelled, but that just means that this is an open question–not, as the D.C. Circuit would have you believe, that the answer necessarily follows from existing precedent.

More to the point, there was a far stronger, far narrower argument in Al-Zahrani that Bivens would have been unavailable in that case, in any event. The D.C. Circuit had already held, in “Rasul II,” that “special factors” militated against allowing Bivens claims as a means of litigating the legality of detention at Guantánamo, and that’s exactly what the plaintiffs in Al-Zahrani were trying to do (ditto the plaintiff in the Ninth Circuit’s decision in Hamad v. Gates). Thus, as I elaborated in response to questions from Ben Wittes, “Even if no Bivens claim is available here, and even if Congress could therefore validly divest the federal courts of jurisdiction over this Bivens claim, it is something else altogether to hold that damages suits are never constitutionally required. That’s what’s new–and, to my mind, alarming–about [Al-Zahrani].”

Of course, Al-Zahrani could have been limited to those facts–that Congress may constitutionally divest the federal courts of jurisdiction over Bivens claims in cases in which such claims would not have been available in any event. Even if that’s not what the Al-Zahrani panel said, it wouldn’t be the first time that later courts adopted “narrowing constructions” of opinions in earlier cases. And it would be analytically defensible; it’s a venerable (and understandable) principle of federal courts jurisprudence that the constitutional questions raised by jurisdiction-stripping statutes are most pronounced when such statutes preclude judicial consideration of potentially meritorious claims.

But that’s why Al-Janko is such a (subtly) big deal: In holding that Al-Zahrani controls the analysis despite the fact that Al-Janko had already obtained an adjudication of the illegality of his detention, Judge Henderson’s opinion arguably confirms the more expansive reading of Al-Zahrani that I feared–that Congress may constitutionally divest the federal courts of jurisdiction over Bivens claims even in cases in which such claims might otherwise be available. Indeed, Al-Janko appears to stand for an even broader proposition: that Congress may thereby foreclose federal jurisdiction over meritorious Bivens claims–a holding that will have obvious salience far beyond Guantánamo and the specific context of counterterrorism litigation.

Such a result may not come as a shock, given the current and pervasive hostility to Bivens litigation in the federal courts (especially in national security cases). But if anything, that hostility only underscores the unnecessary nature of the D.C. Circuit’s holding in Al-Janko. Just as Rasul II suggested that Bivens claims should never be available for Guantánamo detainees seeking to litigate the legality of their detention, the Court of Appeals could have held (however dubiously) that Bivens claims should be categorically unavailable to Guantánamo detainees, period. (And sidestepped the jurisdiction-stripping provision via the constitutional avoidance canon.) Such a result may well have provoked objections all its own, but at least its precedential value would have been limited to Guantánamo. By instead affirming the broadest possible reading of Al-Zahrani–and of Congress’s constitutional authority to preclude judicial review of Bivens claims–the D.C. Circuit has set an important forward-looking precedent the analysis of which is entirely free from any of Guantánamo’s baggage. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).