REMEDIES FOR MISCONDUCT IN WAR
IF Americans are barred from suing the government for misconduct in a war zone, there would be no way to hold officials accountable for even gross violations of constitutional rights in those situations. Such an outcome would do extraordinary damage to principles of law and provide untenable protection for officials, who claim a national security interest in shielding their misconduct. Vance v. Rumsfeld involves two men who worked for an American security firm in Iraq and were detained by American military forces for three months and six weeks, respectively, after they expressed concern that the firm was involved with illegal activity, including weapons trafficking. They claimed that they were tortured by the military while in custody. They were eventually released with no charges filed. Last summer, in a 2-to-1 vote, a panel of the appeals court ruled that the two men could sue government officials, including the former secretary of defence, Donald Rumsfeld, for monetary damages for intentional mistreatment, even if that conduct happened in a war zone. Judge David Hamilton wrote that the wrongdoing alleged “violates the most basic terms of the constitutional compact between our government and the citizens of this country” — and that the suit was allowed under the landmark Bivens case, which lets citizens sue officials for damages for violating their constitutional rights.
The dissenter on the panel, Judge Daniel Manion, argued that previous Supreme Court rulings have been very cautious about extending the right to sue to new circumstances and that it should be up to Congress to address the “special factors” raised in this case. The dissent rests heavily on concerns about “the risk of the judiciary prying into matters of national security or disrupting the military’s efficient execution of a war.” In a similar Bivens case involving Jose Padilla, a Fourth Circuit appeals court panel last month cited national security concerns in ruling that a citizen abused in the war on terrorism cannot sue for damages for the mistreatment.
The fundamental problem with this view is its failure to recognise the difference between judicial deference to the executive branch and an abdication of a court’s responsibility to provide a check and balance. Bivens lawsuits are brought in those cases when there is no other remedy available. As Justice John Harlan wrote in 1971, it is “damages or nothing” when it is too late to keep the harm from occurring with a different kind of legal action. Imposing damages can also help deter similar misconduct. Such suits are necessary to make sure the government is operating within the law. Merely claiming a national security interest does not allow officials to violate constitutional rights with impunity. The judges’ duty is to defend the Constitution, without exception.