The Subtle New (Constitutional) Holding in <i>Al-Zahrani</i>

Given Ben's report on the oral argument, today's fairly cryptic D.C. Circuit opinion in al-Zahrani v. Rodriguez, throwing out a damages suit arising out of the deaths of several inmates at Guantanamo, is hardly surprising. Writing for a himself and Judges Williams and Randolph, Chief Judge Sentelle held that the plaintiffs' claims are barred by the non-habeas jurisdiction-stripping provision of the Military Commissions Act of 2006, i.e., 28 U.S.C. § 2241(e)(2), which forecloses jurisdiction over "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 non-citizens detained by the United States as enemy combatants. The question, of course, is whether § 2241(e)(2) is unconstitutional to the extent that it thereby bars even those damages suits seeking to enforce constitutional rights. The D.C. Circuit's answer is pretty straightforward. Unfortunately, as I explain below the fold, it's a little too straightforward. As Chief Judge Sentelle writes in the opinion's critical passage,

the only remedy [plaintiffs] seek is money damages, and, as the government rightly argues, such remedies are not constitutionally required. The Supreme Court has made this eminently clear in its jurisprudence finding certain of such claims barred by common law or statutory immunities, and applying its “special factors” analysis in preclusion of Bivens claims.

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. The one equivocal exception is the Stanley case on which Chief Judge Sentelle relies. In Stanley, the Supreme Court declined to recognize a Bivens claim by a former servicemember for injuries suffered as part of a secret experiment in which he was given LSD. There, the Court held that "no Bivens remedy is available for injuries that 'arise out of or are in the course of activity incident to service'"--not that, in general, damages remedies are never constitutionally required and/or that Congress may constitutionally divest the federal courts of jurisdiction over Bivens claims, even those that otherwise would exist. This may seem like a distinction without a difference--and it may well be in al-Zahrani itself. After all, the D.C. Circuit has already held (albeit in a footnote) that Bivens claims should not be inferred on behalf of the Guantanamo detainees for claims arising out of their detention and treatment. If that holding is correct (I have my doubts), then it's hard to see a constitutional problem with applying § 2241(e)(2) to bar jurisdiction over claims like those at issue here. But in a case where a Bivens claim would otherwise be available (including those in which such a remedy may be constitutionally compelled), the Supreme Court simply hasn't endorsed Congress's power to divest the federal courts of jurisdiction. Now, however, now the D.C. Circuit has.