A Question for Steve on Zahrani

Steve is quite right that yesterday's decision in Al Zahrani is no surprise. Indeed, after the total train wreck of an oral argument, in which the judges literally walked out on counsel for the plaintiffs, I wrote that "everyone in the room knows exactly what this opinion is going to say." And it says exactly what everyone in the room knew it would: That the MCA deprives the courts of jurisdiction over civil suits concerning detainee treatment at Guantanamo and that this deprivation is constitutional. If anything, counsel for the families of the deceased detainees are lucky that this is all the opinion says; Chief Judge Sentelle seemed so angry by the end of oral argument that I would not have been altogether surprised to see something more, at least rhetorically. I was, however, mildly surprised to see Steve's doubt as to the correctness of the court's holding, specifically on the question of the constitutionality of the jurisdiction-stripping provisions of the MCA as applied not to habeas cases but to civil damages suits. He raises a very interesting point about the Supreme Court's Bivens jurisprudence, and I was wondering how he would respond to some of the questions the judges posed in oral argument in Zahrani. Two questions, which I crib here from my paraphrase in my oral argument summary, seem particularly germane:

Judge Sentelle asks [Zahrani counsel Pardiss Kebriaei] how long the United States existed before the federal courts got federal question jurisdiction, and when she responds that this happened in the late 19th Century, he asks whether the courts were unconstitutional for their first 100 years of their existence. Judge [A. Raymond] Randolph adds that this argument can get nowhere in the D.C. Circuit, since–while Kebriaei may disagree–her clients, as aliens abroad, have no constitutional rights under the law of the circuit. Kebriaei responds that such a formalistic approach was rejected in Boumediene. But this principle, Judge Randolph responds, was reiterated as the law of the circuit after Boumediene, in the Uighur case, Kiyemba. Kebriaei argues that it’s wrong, but Judge Randolph points out that it’s not for a panel to revisit at this point. This is a potential en banc question now. Kebriaei contends that this point was not a holding in Kiyemba. Judge Randolph says she’s wrong.

It seems to me that there simply has to be a good answer to these questions for a Bivens action to be available. Kebriaei offered no plausible answer to either. I would be fascinated to hear how Steve considers thems.