Last Monday, on the same day as the opening of the new Supreme Court term, the federal appeals court in San Francisco threw out a damages suit by a former Guantánamo detainee who alleged that his detention and his treatment while detained had been unlawful. The decision by a unanimous three-judge panel in Hamad v. Gates did not hold that the plaintiff’s rights hadn’t been violated; rather, it held that it lacked the power to even address that question because of a 2006 statute that appears to take away the jurisdiction of the federal courts in such cases. Although there are reasons to quibble with the Ninth Circuit’s analysis, the result underscores a far broader point about which there can be no dispute: In case after case, on issues ranging from Guantánamo to surveillance to “extraordinary rendition” and torture, the federal courts have been categorically hostile to damages claims arising out of post-September 11 counterterrorism policies. And as in Hamad, this hostility has been reflected in the courts’ reliance upon a host of procedural doctrines to reject the plaintiffs’ claims without actually adjudicating—one way or the other—the underlying legality of the government’s conduct.
Perhaps the most notorious of these cases was that of Maher Arar, the dual Canadian-Syrian citizen who U.S. authorities arrested at JFK Airport in 2002, detained for several weeks, and then sent to Syria, where he was tortured. Arar, who, as we now know, had no links to terrorism, brought suit to challenge his “extraordinary rendition.” But in 2009, the federal appeals court in New York ruled, 7-4, that U.S. law does not recognize a “cause of action” for claims like Arar’s—and the Supreme Court denied certiorari three months later. Whereas Arar’s was by far the most prominent, a number of other challenges to post-9/11 counterterrorism policies have been dismissed on similar grounds—that the Constitution doesn’t authorize damages suits in such cases unless Congress specifically provides for them.
But even when Congress has provided a “cause of action,” the courts have bent over backwards to avoid allowing their use to challenge controversial government counterterrorism policies. Late last year, for example, the Ninth Circuit threw out a challenge by an Islamic charity to allegedly unlawful governmental surveillance under the Foreign Intelligence Surveillance Act (FISA), even though that statute includes an express provision authorizing suits by parties whose communications are wrongfully intercepted thereunder. As the Court of Appeals concluded, although Congress did provide a private remedy for violations of the statute, Congress wasn’t sufficiently clear that it intended for that remedy to also encompass damages—and so there was no waiver of the federal government’s sovereign immunity. (Of course, this reasoning misses the whole point of the FISA provision, which is to allow individuals to sue after their communications are intercepted—at which point damages would be the only viable remedy.)
And speaking of FISA, perhaps the pinnacle of the judicial hostility to these kinds of suits came this February, when a 5-4 Supreme Court ruled in Clapper v. Amnesty International that a coalition of attorneys and human rights, labor, legal, and media organizations could not pursue their constitutional challenge to section 702—the basis for the subsequently disclosed PRISM program—because, owing to the secret nature of such surveillance (at least before Edward Snowden came along), they could not demonstrate that interception of their communications was “certainly impending.”
These three sets of cases are hardly exhaustive. Even a cursory perusal of other challenges to U.S. counterterrorism policies reveals a host of other non-merits grounds on which these suits have been dismissed, including the state secrets privilege; official immunity doctrines; and failure to satisfy heightened pleading standards. (I’ve described these cases as “The New National Security Canon.”) Indeed, one is hard-pressed to find post-9/11 counterterrorism damages suits in which the government actually won on the merits—that is, where a court held that the plaintiff was not entitled to damages simply because his rights were not actually violated.
To be sure, many of these decisions may simply reflect a larger pattern, not limited to national security cases, wherein it has become increasingly difficult for plaintiffs to obtain damages for unlawful government conduct writ large. But whatever the merits of that larger theme, it has three especially pernicious consequences for accountability in the national security arena specifically.
First, from the plaintiffs’ perspectives, such decisions have the effect, if not the intent, of appearing to validate the government’s conduct—even in cases, like Arar, in which all now agree that the government acted wrongly. As a consequence, the inability to obtain damages relief may well give rise to a form of functional impunity—not just for the offending government officers, but for those who follow in their footsteps, for whom no precedent has been set specifically disclaiming the government’s ability to engage in the same controversial policies in the future. Whereas any number of other mechanisms exist outside the damages context to create forward-looking precedent in non-counterterrorism cases, it may well be damages or bust in these cases.
Second, and perhaps counterintuitively (if no less significantly), such lack of precedent setting also creates uncertainty on the part of the government, which can’t know for sure whether the lack of a judicial decision on the merits has actually validated the challenged policy, or has merely left the issue unresolved going forward. As former CIA General Counsel Tony Lapham put it in an analogous context, such uncertainty leads to the “worst of both worlds” wherein citizens are “as unsure of their liabilities as I am unsure of their obligations.”
Third, and related, if folks believe that the government should ever be liable for abuses arising out of counterterrorism policies, it should follow that damages remedies—which are, of necessity, after the fact—are far preferable to the coercive medicine of prospective relief. After all, it’s one thing to look back in hindsight and ask whether the government crossed a particular line at a time when any potential immediate justification for doing so has subsided; it’s quite another to stop the government from even approaching that line in the heat of the moment.
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Of course, fixing this problem won’t be easy. Yes, courts can—and should—be less skeptical of damages claims arising out of counterterrorism programs even under existing law. But at the end of the day, the real culprit here is Congress—which, outside the context of FISA, has refused to provide express remedies for even the most flagrant governmental counterterrorism abuses. And although that result may simply reflect the lack of a constituency for providing damages to those whose rights are violated in the context of counterterrorism operations, it’s high time for us to appreciate the broader effects that the lack of such relief have on governmental accountability—not just from the perspective of those whose rights have been violated, but from the perspective of current and future government operations, as well.