Nothing Plus Nothing Is Nothing: How the D.C. Circuit Got Bivens Wrong Yesterday

The D.C. Circuit decided Meshal v. Higginbotham yesterday, and held 2-1 that where an American citizen is detained abroad* in a terrorism-related law enforcement investigation by FBI agents, he can't sue under Bivens for violations of the Fourth Amendment - even though the Bivens cause of action was originally recognized in the Fourth Amendment law enforcement context.  As the majority explains their holding, the presumption against extraterritoriality, and the subject matter of the investigation, make this kind of Fourth Amendment claim a "new context" for Bivens, where "special factors counsel hesitation" in creating a Bivens remedy.

* The facts as alleged in Meshal's complaint are very troubling.  After Meshal, a New Jersey resident, took a vacation to Somalia, he was secretly detained for four months of interrogation, threats of torture, disappearance and death, lost eighty pounds, and finally was released by the FBI and allowed to return to the United States, not having been charged of any crime.

I find this all very perplexing.  First, the presumption against extraterritoriality.  The presumption against extraterritoriality is a rule of statutory interpretation, which counsels that where the geographic scope of a statutory regulation of conduct is ambiguous, it is presumed to apply only in the United States.  This is so because (a) Congress is presumed to "ordinarily legislate[] with respect to domestic, not foreign, matters," and (b) because the presumption "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord."  So, for example, the Court has interpreted our securities fraud laws to not regulate misstatements made by Australian issuers of stock traded on the Australian stock markets.

Where it comes to the Constitution, however, it's black-letter law that it protects American citizens from extraterritorial state action - as the majority in today's decision concedes (see n.4). So the question here is whether, even though the Constitution forbids federal officials from unreasonably detaining American citizens on foreign and American soil alike, the presumption against extraterritoriality counsels against extension of the Bivens remedy to Fourth Amendment violations that occur abroad.  It's hard to see why it would. 

In the first place, the presumption is half-animated by a presumption of congressional disinterest in foreign matters that has nothing to do with the judicially created Bivens remedy.  It's incoherent for a court to talk about an interpretive presumption in the context of a remedy the court itself is creating.  Even by strained analogy, though, a presumption of disinterest in foreign matters is defeated by the Constitution's extraterritorial application.  That is, the Constitution is legislation with respect to how American officials conduct themselves abroad.  Does a case exist where a statute incontestably regulates domestic and foreign conduct but the presumption against extraterritoriality is used to bar the statute's remedies from applying to foreign violations?  I'm not aware of one.  In the second place, the application of the Fourth Amendment to FBI agents' conduct abroad doesn't risk an untintended clash between our law and that of other nations - unless we're worried about the Fourth Amendment displacing Kenyan law's regulation of FBI agents' detention of American citizens while in Kenya.  

Consider the following hypothetical, which should illustrate why extraterritoriality isn't a problem here. The Court held in Davis v. Passman that an administrative assistant who suffered gender discrimination at the hands of a Congressman, and who had no statutory cause of action because employment-discrimination law did not, at the time, protect congressional employees, could sue for a violation of the Due Process Clause of the Fifth Amendment under Bivens.  Suppose that the Congressman in Passman, while traveling abroad on an official tour, had hired an American citizen as an interpreter, but terminated her due to her gender.  Does the case come out differently?

The other part of the D.C. Circuit's holding is the terrorism-related subject matter of the defendant FBI agents' investigation.  As far as I can understand the majority's rather thin reasoning, terrorism implicates national security, and courts are "reticent" in cases involving national security, so Bivens shouldn't be extended, at least extraterritorially, to Fourth Amendment claims involving terrorism investigations.  This is puzzling.  For one thing, the Court has already applied Bivens to two terrorism-related actions - Ashcroft v. al-Kidd, and Ashcroft v. Iqbal - plus an action against Secret Servicemen assigned to protect the President, which raised national security concerns that the Court discussed in its opinion.

Today's opinion says (see n.11) that those cases just assumed Bivens's applicability, and that's right in the case of the latter two, which expressly assumed without deciding that Bivens applied.  However, what those cases assumed without deciding was that Bivens applied to First Amendment claims, an issue which the Court flagged sua sponte.  The Court didn't say it was assuming without deciding that there wasn't a national-security exception to Bivens, or flag national security as an area where Bivens's application was doubtful.  And in al-Kidd, there's no language about assuming without deciding that Bivens applied; the Fourth Amendment claims there, to which Bivens has applied since Bivens itself, just failed on the merits.  It's true that in al-Kidd the Court didn't "explicitly consider whether to imply a Bivens cause of action," but that's because the Court didn't need to consider whether to imply a cause of action for Fourth Amendment violations that Bivens itself implied.


Second, how is the subject matter of a criminal investigation a reason to deny a cause of action for Fourth Amendment violations?  Suppose that state police were involved in a domestic terrorism investigation and wrongfully detained someone; a 1983 action would lie, without even some special national-security immunity doctrine to protect the policemen.  Any state secrets pertaining to that action would be privileged, and only if the action as a whole required judicial intrusion into state secrets would the action be dismissed.  We even allow aliens who have been detained on foreign soil and designated as enemy combatants to seek habeas relief from their detention, which is going quite a bit farther than allowing a released citizen who's currently suspected of nothing to sue over a past detention.   

Bivens, of course, is neither 1983 nor habeas; it's neither a statutory cause of action nor an ancient common-law cause of action, but rather, a judicially created cause of action that courts extend to new contexts with some caution.  Nevertheless, the existence of any number of causes of action that trench on terror-related matters suggests that there's no need for a categorical bar to Bivens actions for Fourth Amendment violations in terrorism investigations.  After all, what would such a bar protect?  The state secrets privilege can protect sensitive information, and between qualified immunity, indemnification, and the extreme rarity of Bivens actions for a terrorism-related detention winning a Bivens action for a terrorism-related detention and the extreme difficulty of winning them, it's hard to imagine that the availability of a Bivens action would chill terrorism investigations.

More broadly, Meshal raises an important question on when courts should view a Bivens action as a request to extend Bivens to a "new context," which triggers a multi-factor inquiry into whether to extend Bivens.  As the majority acknowledges, the Court has described two kinds of Bivens actions as "new contexts" - those where someone is suing under a provision of the Constitution for which the Court hasn't previously implied a Bivens action, and those where someone is suing a kind of defendant against whom the Court hasn't previously implied a Bivens action.  This case is neither of those - the Court has, in Bivens itself, allowed Bivens actions under the Fourth Amendment, and has, in Bivens itself, allowed Bivens actions against federal law-enforcement agents.  The majority says, nevertheless, that Meshal presents a new context - extraterritorial terrorism investigations - which allows the panel to decline to "extend" Bivens to the new context.

I don't think I have a problem with declining to extend Bivens to unusual fact patterns - not just new classes of defendants or new provisions of the Constitution.  After all, statutory causes of action can have all sorts of subject-matter-related exceptions.  But if we're going to go down the road of carving out claims from Bivens on the basis of their facts, I think we would want more fine-grained screens than "any foreign terrorism investigation."  Some aspects of terrorism investigations might be too sensitive to probe in Bivens actions; others may not.  What if the FBI unconstitutionally detains a bank employee to ask him questions about terrorist money handled at his bank, or a landlady to question her on whether she rented an apartment to a low-level terrorism suspect?  What if the FBI unlawfully executes a search of a suspect's childhood home?  What danger does judicial scrutiny pose in cases like these?

Finally, a few comments on or really just quotes from Judge Kavanaugh's concurring opinion, which reads at times like an introductory monologue to an episode of 24.  His main point is that we are in a never-ending war with terrorists, and even law-enforcement investigations into terrorist activities are a part of this "integrated war effort":

The United States is at war against al Qaeda and other radical Islamic terrorist organizations. Shortly after al Qaeda's attacks on the United States on September 11, 2001, Congress authorized this war. President Bush and President Obama have aggressively commanded the U.S. war effort.

 

The terrorists' stated goals are, among other things, to destroy the State of Israel, to drive the United States from its posts in the Middle East, to replace more moderate Islamic leadership in nations such as Saudi Arabia, and to usher in radical Islamic control throughout the Greater Middle East. In pursuing their objectives, the terrorists have repeatedly attacked U.S. persons and property, both in foreign countries and in the U.S homeland.

 

The war continues. No end is in sight.

In waging this war, the United States has wielded a wide array of federal assets, including the military, the CIA, the FBI, and other U.S. intelligence and law enforcement agencies. The traditional walls dividing military, intelligence, and law enforcement operations have given way to a more integrated war effort. As President Bush and President Obama have explained, the United States employs military, intelligence, and law enforcement personnel in an often unified effort to detect, surveil, capture, kill, detain, interrogate, and prosecute the enemy.

Maybe I just don't read enough about terror, but this is new to me.  The majority opinion, which Judge Kavanaugh joined, says Meshal was the subject of a criminal investigation, not an FBI-assisted man hunt.  (He was even given Miranda-like waiver forms when his detention started.)  If criminal investigations into terrorist activities are part of an "integrated war effort" to, among other things, "prosecute the enemy," are federal prosecutors part of the war too?  Do judges who preside over terrorism trials preside over a phase in a war?  What does this make accused terrorists' defense lawyers?  This all reaches an imaginative fever pitch when Judge Kavanaugh explains that while Meshal was never designated as an enemy combatant, the four months of detention, coercive interrogations, and threats of torture he suffered were "an investigation to determine whether Meshal was an enemy combatant."  (Hopeful) prediction: en banc.