PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ESTELA LEBRON, for herself and as
Mother and Next Friend of Jose
Padilla; JOSE PADILLA,
Plaintiffs-Appellants,
v.
DONALD H. RUMSFELD, Former
Secretary of Defense; CATHERINE
T. HANFT, Former Commander
Consolidated Brig; MELANIE A.
MARR, Former Commander
Consolidated Brig; LOWELL E.
JACOBY, Vice Admiral, Former
No. 11-6480
Director Defense Intelligence
Agency; PAUL WOLFOWITZ, Former
Deputy Secretary of Defense;
WILLIAM HAYNES, Former General
Counsel Department of Defense;
LEON E. PANETTA, Secretary of
Defense in his official and
individual capacities,
Defendants-Appellees,
and
2 LEBRON v. RUMSFELD
JOHN ASHCROFT, Former Attorney
General; MICHAEL H. MOBBS,
Special Advisor to Undersecretary
of Defense for Policy; JOHN DOES,
1-48, in their individual capacities;
MACK D. KEEN, Senior Chief
Consolidated Brig; CRAIG NOBLE,
Dr.; SANDY SEYMOUR, Technical
Director Consolidated Brig;
STEPHANIE L. WRIGHT, Commander
Consolidated Brig,
Defendants.
JAMES P. CULLEN, Brigadier
General, USA (Ret.); MORRIS D.
DAVIS, Colonel, USAF (Ret.);
EUGENE R. FIDELL, Lieutenant
Commander, USCG (Ret.);
EVELYN P. FOOTE, Brigadier
General, USA (Ret.); DON GUTER,
Rear Admiral, JAGC, USN (Ret.);
LEIF H. HENDRICKSON, Brigadier
General, USMC (Ret.); JOHN D.
HUTSON, Rear Admiral, JAGC,
USN (Ret.);
LEBRON v. RUMSFELD 3
DAVID R. IRVINE, Brigadier
General, USA (Ret.); CLAUDIA J.
KENNEDY, Lieutenant General,
USA (Ret.); MERRILL A. MCPEAK,
General, USAF (Ret.); RICHARD
O’MEARA, Brigadier General, USA
(Ret.); CHARLES OTSTOTT,
Lieutenant General, USA (Ret.);
THOMAS J. ROMIG, Major General,
USA (Ret.); STEPHEN N. XENAKIS,
Brigadier General, USA (Ret.);
ERWIN CHEMERINSKY, Founding
Dean University of California-
Irvine School of Law; NORMAN
DORSEN, Frederick I. and Grace A.
Stokes Professor of Law and Co-
Director, Arthur Garfield Hays
Civil Liberties Program New York
University School of Law; DAVID
GOLOVE, Hiller Family Foundation
Professor of Law New York
University School of Law;
4 LEBRON v. RUMSFELD
LEE B. KOVARSKY, Assistant
Professor University of Maryland
School of Law; ALAN B.
MORRISON, Associate Dean for
Public Interest and Public Service
George Washington University
Law School; SHELDON H. NAHMOD,
Distinguished Professor of Law
and Co-Director of the Institute
for Law and the Humanities
Chicago-Kent College of Law;
ALEXANDER REINERT, Associate
Professor of Law Benjamin N.
Cardozo School of Law; KERMIT
ROOSEVELT, III, Professor of Law
University of Pennsylvania Law
School; MICHAEL E. TIGAR,
Professor of the Practice of Law,
Emeritus Duke University School
of Law; CARL W. TOBIAS,
Williams Professor of Law
University of Richmond School of
Law;
LEBRON v. RUMSFELD 5
WILLIAM VAN ALSTYNE, Lee
Professor of Law William & Mary
Law School; STEPHEN I. VLADECK,
Professor of Law American
University Washington College of
Law,
Amici Supporting Appellants,
WILLIAM P. BARR; EDWIN MEESE,
III; MICHAEL B. MUKASEY; DICK
THORNBURGH; UNITED STATES OF
AMERICA,
Amici Supporting Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Richard M. Gergel, District Judge.
(2:07-cv-00410-RMG)
Argued: October 26, 2011
Decided: January 23, 2012
Before WILKINSON, MOTZ, and DUNCAN,
Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Motz and Judge Duncan joined.
6 LEBRON v. RUMSFELD
COUNSEL
ARGUED: Benjamin Elihu Wizner, AMERICAN CIVIL
LIBERTIES UNION, New York, New York, for Appellants.
David Boris Rivkin, BAKER & HOSTETLER LLP, Wash-
ington, D.C.; Richard Douglas Klingler, SIDLEY AUSTIN,
LLP, Washington, D.C., for Appellees. ON BRIEF: Alexan-
der A. Abdo, AMERICAN CIVIL LIBERTIES UNION, New
York, New York; Jonathan Freiman, Hope R. Metcalf, Tahlia
Townsend, ALLARD K. LOWENSTEIN INTERNATIONAL
HUMAN RIGHTS CLINIC, National Litigation Project, Yale
Law School, New Haven, Connecticut; Michael P. O’Connell,
STIRLING & O’CONNELL, PA, Charleston, South Carolina,
for Appellants. Lee A. Casey, Darin R. Bartram, Andrew M.
Grossman, BAKER & HOSTETLER LLP, Washington, D.C.,
for Appellee Donald H. Rumsfeld. Frank Gregory Bowman,
Edward C. Reddington, WILLIAMS & CONNOLLY LLP,
Washington, D.C., for Appellee William J. Haynes II; Jacque-
line G. Cooper, SIDLEY AUSTIN LLP, Washington, D.C.,
for Appellee Catherine T. Hanft; William A. Coates, ROE
CASSIDY COATES & PRICE, P.A., Greenville, South Caro-
lina, for Appellee Melanie A. Marr; Wan J. Kim, Kevin B.
Huff, Andrew S. Oldham, KELLOGG, HUBER, HANSEN,
TODD, EVANS & FIGEL, PLLC, Washington, D.C., Henry
L. Parr, Jr., WYCHE, P.A., Greenville, South Carolina, for
Appellee Lowell E. Jacoby; Paul W. Butler, Kevin R. Amer,
AKIN, GUMP, STRAUSS, HAUER & FELD, LLP, Wash-
ington, D.C., Ruth Wedgwood, Washington, D.C., for Appel-
lee Paul Wolfowitz. Michael F. Hertz, Deputy Assistant
Attorney General, Barbara L. Herwig, August E. Flentje,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee Leon E. Panetta. Eric L. Lewis, James
P. Davenport, Chiara Spector-Naranjo, Waleed Nassar,
BAACH ROBINSON & LEWIS PLLC, Washington, D.C.,
for Retired Military Officers, Amici Supporting Appellants.
Stephen I. Vladeck, Washington, D.C.; Armand Derfner,
DERFNER, ALTMAN & WILBORN, Charleston, South Car-
olina, for Constitutional Law and Federal Courts Professors,
LEBRON v. RUMSFELD 7
Amici Supporting Appellants. Andrew G. McBride, William
S. Consovoy, Claire J. Evans, WILEY REIN LLP, Washing-
ton, D.C., for Former Attorneys General William P. Barr,
Edwin Meese, III, Michael B. Mukasey, Dick Thornburgh,
Amici Supporting Appellees. Michael F. Hertz, Deputy Assis-
tant Attorney General, Barbara L. Herwig, Robert M. Loeb,
August E. Flentje, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for the United States, Amicus
Supporting Appellees.
OPINION
WILKINSON, Circuit Judge:
Plaintiffs Jose Padilla, presently incarcerated due to his
conviction after trial for federal crimes of terrorism, and his
mother, Estela Lebron, sue for legal and equitable relief based
on Padilla’s prior military detention as an "enemy comba-
tant." Padilla names as defendants the present Secretary of
Defense and a number of former high-level civilian policy-
makers in the Defense Department, as well as military officers
who implemented their orders. He seeks a declaration that
defendants’ policies were unconstitutional, an order enjoining
his future designation as an enemy combatant, and nominal
damages of one dollar from each defendant. The district court
dismissed the action. For the reasons that follow, we affirm.
I.
A.
Plaintiff Jose Padilla is a United States citizen and a mem-
ber of al Qaeda, who has been an active participant in that
organization’s terrorist mission since at least the late 1990s.
He stands convicted of conspiring with others within the
United States to support al Qaeda’s global campaign of terror,
8 LEBRON v. RUMSFELD
having travelled to Afghanistan in late 2000 to receive combat
training at al Qaeda’s al Farooq jihadist camp.
After al Qaeda killed over three thousand people in its Sep-
tember 11, 2001 attacks on the United States, Congress
empowered the President to use his warmaking authority to
defeat this terrorist threat to our nation. See Authorization for
Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224
(2001) ("AUMF"). Two administrations have and continue to
act pursuant to this authority. See Harold Hongju Koh, Legal
Adviser, U.S. Department of State, Address to the Annual
Meeting of the American Society of International Law: The
Obama Administration and International Law (Mar. 25, 2010)
("[W]e continue to fight a war of self-defense against an
enemy that attacked us on September 11, 2001, and before,
and that continues to undertake armed attacks against the
United States.")
While the U.S. military was engaged in combat against al
Qaeda and its allies in Afghanistan, Padilla orchestrated his
return from Afghanistan to the United States via Pakistan,
Egypt, and Switzerland, ultimately arriving at Chicago’s
O’Hare International Airport on May 8, 2002. There, Padilla
was arrested by FBI agents after falsely denying that he had
ever visited Afghanistan. Held pursuant to a material witness
warrant issued by the U.S. District Court for the Southern
District of New York, Padilla was transported to a federal
detention center in New York and assigned court-appointed
counsel.
On June 9, 2002, acting pursuant to his authority under the
AUMF, President George W. Bush issued an order to defen-
dant Donald Rumsfeld, then Secretary of Defense, to detain
Padilla as an enemy combatant, the President having deter-
mined that Padilla possessed vital intelligence and posed an
ongoing threat to the national security of the United States.
That day, Padilla was removed from civilian custody and
transferred to the Naval Consolidated Brig at Charleston,
LEBRON v. RUMSFELD 9
South Carolina. While in military custody, Padilla claims that
he was repeatedly abused, threatened with torture, deprived of
basic necessities, and unjustifiably cut off from access to the
outside world. Over time, these conditions were relaxed, and
he was allowed monitored meetings with his attorneys.
On November 17, 2005, Padilla was indicted on criminal
terrorism charges in the Southern District of Florida. The
Supreme Court authorized his transfer from the Naval Consol-
idated Brig into civilian custody on January 4, 2006. See
Hanft v. Padilla, 546 U.S. 1084 (2006). On August, 16, 2007,
Padilla was convicted after trial of one count of conspiracy to
murder, kidnap, or maim persons overseas in violation of 18
U.S.C. § 956(a)(1) and two counts of providing material sup-
port to al Qaeda in violation of 18 U.S.C. § 2339A. He is
presently serving his sentence for those crimes.
B.
Since his 2002 detention, Padilla has received the regular
attention of the federal courts. Two days after Padilla’s trans-
fer to military custody, on June 11, 2002, Padilla’s counsel
filed a petition for a writ of habeas corpus in the Southern
District of New York, challenging that detention. See Padilla
v. Bush, 233 F. Supp. 2d 564 (S.D.N.Y. 2002) ("Padilla I").
The district court denied the petition, upholding the Presi-
dent’s authority to detain Padilla, but a divided panel of the
Second Circuit reversed. See Padilla v. Rumsfeld, 352 F.3d
695 (2d Cir. 2003) ("Padilla II"). The Supreme Court vacated
Padilla II, ruling that Padilla’s petition should have been filed
in South Carolina where he was being held. See Rumsfeld v.
Padilla, 542 U.S. 426, 451 (2004) ("Padilla III").
On July 2, 2004, Padilla refiled his habeas petition in the
District of South Carolina. The district court granted Padilla’s
petition, holding that he could not be detained as an enemy
combatant because he had been captured in the United States.
See Padilla v. Hanft, 389 F. Supp. 2d 678 (D.S.C. 2005)
10 LEBRON v. RUMSFELD
("Padilla IV"). This court reversed, upholding the President’s
authority to detain Padilla under the AUMF. See Padilla v.
Hanft, 423 F.3d 386 (4th Cir. 2005) ("Padilla V").
Approximately two months after this decision, while Padil-
la’s petition for certiorari to the Supreme Court was pending,
the government unsealed the indictment in the Southern Dis-
trict of Florida and petitioned this court to vacate its prior
opinion and authorize Padilla’s removal into civilian custody.
When this court denied the government’s request, see Padilla
v. Hanft, 432 F.3d 582 (4th Cir. 2005) ("Padilla VI"), the
Supreme Court directly authorized the transfer, see Hanft v.
Padilla, 546 U.S. 1084 (2006) ("Padilla VII"). The Supreme
Court ultimately denied certiorari on Padilla’s habeas claim,
concluding that such a constitutional challenge to Padilla’s
military detention presented no live case or controversy once
he had been transferred to civilian custody. See Padilla v.
Hanft, 547 U.S. 1062 (2006) ("Padilla VIII").
While a wide range of issues were subsequently litigated in
Padilla’s criminal case, the only decision relevant to this
appeal is United States v. Jayyousi, 657 F.3d 1085 (11th Cir.
2011), which affirmed Padilla’s conviction on terrorism
charges, but reversed the district court’s sentence, concluding
that 208 months’ incarceration was unreasonably low.
C.
Padilla commenced this action on February 9, 2007, while
in civilian custody awaiting trial in his criminal case. The
claims at issue in this appeal are alleged in his Third
Amended Complaint, filed on July 23, 2008.
Padilla claims that, as a U.S. citizen captured within the
United States, he was unconstitutionally designated as an
enemy combatant, and alleges a range of constitutional viola-
tions stemming from his ensuing military detention: denial of
his right to counsel under the First, Fifth, and Sixth Amend-
LEBRON v. RUMSFELD 11
ments; denial of access to courts protected by Article III, the
First and Fifth Amendments, and the Habeas Corpus Suspen-
sion Clause; unconstitutionally cruel conditions of confine-
ment in violation of the Fifth and Eighth Amendments;
coercive interrogations in violation of the Fifth and Eighth
Amendments; denial of his freedom of religion under the First
Amendment and the Religious Freedom Restoration Act;
denial of access to information protected by the First Amend-
ment; denial of freedom of association under the First
Amendment; and general denial of due process protected by
the Fifth Amendment. As relief, Padilla seeks a declaration
that his designation, military detention, and treatment in cus-
tody were unconstitutional; a declaration that the policies that
led to his treatment were unconstitutional; an injunction pro-
hibiting his future designation and detention as an enemy
combatant; and one dollar in damages from each defendant.
Padilla initially named sixty-one persons as defendants in
this action. He has since dismissed his claims against those
defendants who dealt most directly with his custody—
specifically, the "legal professional[s]" who allegedly inter-
fered with his access to counsel or the courts, see Third
Amended Complaint ¶22; the "medical professional[s]" who
monitored his confinement, id. at ¶23; and the interrogators
and guards in direct control of his custody, id. at ¶¶24-25.
Seven defendants remain. Four are former high-ranking
policymakers of the Defense Department sued in their per-
sonal capacities: former Secretary of Defense Donald H.
Rumsfeld, former Deputy Secretary of Defense Paul Wol-
fowitz, former Defense Department General Counsel William
Haynes, and former Director of the Defense Intelligence
Agency Vice Admiral Lowell E. Jacoby. Padilla alleges that
these defendants formulated an unconstitutional policy for
detaining enemy combatants in the war on terrorism, which
included the legal defense of that designation and the harsh
interrogation measures used pursuant thereto. He does not
charge any of these defendants personally with violating his
12 LEBRON v. RUMSFELD
rights, for example by seizing him in violation of the Fourth
Amendment or physically abusing him in violation of the
Eighth Amendment. Rather, he holds them liable for develop-
ing the global detention and interrogation policies that he con-
tends were unconstitutional both on their face and as applied
to him.
Padilla also sues two former Commanders of the Naval
Consolidated Brig, Catherine T. Hanft and Melanie A. Marr,
alleging that they were responsible for "implement[ing] the
unlawful regime devised and authorized by [the] Senior
Defense Policy Defendants." Id. at ¶7.
Finally, Padilla sues current Secretary of Defense Leon
Panetta in his official and individual capacities, seeking both
declaratory relief and an injunction against his future designa-
tion as an enemy combatant.
On February 17, 2011, the district court granted the defen-
dants’ motion to dismiss Padilla’s suit. See Lebron v. Rums-
feld, 764 F. Supp. 2d 787 (D.S.C. 2011). This appeal fol-
lowed.
II.
Padilla first faults the district court for refusing to imply a
new cause of action for money damages against top Defense
Department officials for a range of policy judgments pertain-
ing to the designation and treatment of enemy combatants.1
1
Padilla also seeks a retrospective declaration that both his detention
and the broader detainee policies were unconstitutional. Inasmuch as equi-
table relief is prospective in nature, see Hecht Co. v. Bowles, 321 U.S.
321, 329-30 (1944), the request for a declaration of unlawful past confine-
ment is in essence an attempt to prove a constitutional violation as the nec-
essary predicate to any award of damages, see Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
As such, the requested declaration is part and parcel of the Bivens cause
of action.
LEBRON v. RUMSFELD 13
A.
We review the district court’s ruling on a motion to dismiss
de novo. See Novell, Inc. v. Microsoft Corp., 505 F.3d 302,
307 (4th Cir. 2007). Like the district court, we conclude that
a proper regard for the constitutional structure requires us to
decline to recognize this novel suit. The designations of per-
sons and groups as special threats to national security may be
subject to a variety of checks and to habeas corpus proceed-
ings. But they are not reviewable by the judiciary by means
of implied civil actions for money damages.
We begin by discussing the historic restraint applicable to
implied causes of action and the judicial standards developed
with respect to them. As to all but one of his claims,2 Padilla
asks the judiciary to imply a cause of action for constitutional
violations by federal officials, as first recognized in Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). However, the Supreme Court has long
counselled restraint in implying new remedies at law. A
Bivens action "has to represent a judgment about the best way
to implement a constitutional guarantee; it is not an automatic
entitlement." Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
That judgment is focused not on "the merits of the particu-
lar remedy that was sought" but, rather, on "who should
decide whether such a remedy should be provided," Bush v.
Lucas, 462 U.S. 367, 380 (1983), specifically, Congress or the
courts. "[B]edrock principles of separation of powers," Cor-
rectional Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001),
dictate that the judiciary refrain from implying a remedy
when "special factors counsel[ ] hesitation in the absence of
affirmative action by Congress," Bivens, 403 U.S. at 397, or
when Congress has provided "any alternative, existing pro-
cess for protecting the interest [that] amounts to a convincing
reason for the Judicial Branch to refrain from providing a new
2
Padilla’s RFRA claims are discussed infra Part III.
14 LEBRON v. RUMSFELD
and freestanding remedy in damages," Wilkie, 551 U.S. at
550.
In the forty years since Bivens, the Supreme Court has
monitored the limits of judicial competence to design implied
remedies, frequently reminding the courts "that Congress is in
a better position to decide whether or not the public interest
would be served by creating" Bivens actions in new situations.
Bush, 462 U.S. at 390. Exercising this restraint, the Court has
itself "consistently refused to extend Bivens liability to any
new context or new category of defendants." Malesko, 534
U.S. at 68. It only recently declined to "imply the existence
of an Eighth Amendment-based damages action . . . against
employees of a privately operated federal prison." Minneci v.
Pollard, No. 10-1104, slip op. at 1, 565 U.S. ___ (2012).
Given these principles, we must approach Padilla’s invita-
tion to imply a Bivens action here with skepticism. "The
Bivens cause of action is not amenable to casual extension,"
Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006), but rather
is subject to a strict test adopted by this court. To maintain a
Bivens claim, Padilla must demonstrate both that "there are no
‘special factors counseling hesitation in the absence of affir-
mative action by Congress’" and that "Congress has not
already provided an exclusive statutory remedy." Hall v. Clin-
ton, 235 F.3d 202, 204 (4th Cir. 2000) (citation omitted). We
do not require congressional action before recognizing a
Bivens claim, as that would be contrary to Bivens itself. We
will, however, refuse to imply a Bivens remedy where, as in
this case, Congress’s pronouncements in the relevant context
signal that it would not support such a damages claim.
B.
Special factors do counsel judicial hesitation in implying
causes of action for enemy combatants held in military deten-
tion. First, the Constitution delegates authority over military
affairs to Congress and to the President as Commander in
LEBRON v. RUMSFELD 15
Chief. It contemplates no comparable role for the judiciary.
Second, judicial review of military decisions would stray
from the traditional subjects of judicial competence. Litiga-
tion of the sort proposed thus risks impingement on explicit
constitutional assignments of responsibility to the coordinate
branches of our government. Together, the grant of affirma-
tive powers to Congress and the Executive in the first two
Articles of our founding document suggest some measure of
caution on the part of the Third Branch.
1.
Preserving the constitutionally prescribed balance of pow-
ers is thus the first special factor counseling hesitation in the
recognition of Padilla’s Bivens claim. The "Constitution con-
templated that the Legislative Branch [have] plenary control
over rights, duties, and responsibilities in the framework of
the military establishment, including regulations, procedures,
and remedies." Chappell v. Wallace, 462 U.S. 296, 301
(1983). Indeed, that control is explicit and not merely deriva-
tive of other powers: Congress has the enumerated powers to
declare war, see U.S. Const., art. I, § 8, cl. 11; establish the
armed forces, see id. cl. 12-13; and "make Rules for the Gov-
ernment and Regulation of the land and naval Forces," id. cl.
14. As the Supreme Court has noted, "What is distinctive here
is the specificity of that technically superfluous grant of
power . . . Had the power to make rules for the military not
been spelled out, it would in any event have been provided by
the Necessary and Proper Clause—as is, for example, the
power to make rules for the government and regulation of the
Postal Service." United States v. Stanley, 483 U.S. 669, 682
(1987) (internal citation omitted). As a consequence, "in no
other area has the Court accorded Congress greater defer-
ence." Rostker v. Goldberg, 453 U.S. 57, 64-65 (1981).
Further supporting judicial deference is the Constitution’s
parallel commitment of command responsibility in national
security and military affairs to the President as Commander in
16 LEBRON v. RUMSFELD
Chief. See U.S. Const. art. II, § 2, cl. 1. Here too, judges "tra-
ditionally have been reluctant to intrude upon the authority of
the Executive in military and national security affairs." Dep’t
of Navy v. Egan, 484 U.S. 518, 530 (1988). As a result, the
Supreme Court has consistently shown "great deference" to
what "the President—the Commander in Chief—has deter-
mined . . . is essential to national security." Winter v. Nat. Res.
Def. Council, 555 U.S. 7, 24, 26 (2008).
When, as here, these two branches exercise their military
responsibilities in concert –- Congress by enacting the AUMF
and the President by detaining Padilla pursuant thereto, see
Padilla V, 423 F.3d 386—the need to hesitate before using
Bivens actions to stake out a role for the judicial branch seems
clear. It is settled that courts "accord the President the defer-
ence that is his when he acts pursuant to a broad delegation
of authority from Congress." Id. at 395. In Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579 (1952), Justice Jackson
described the heightened judicial caution signalled by facts
such as those presented here: "A seizure executed by the Pres-
ident pursuant to an Act of Congress would be supported by
the strongest of presumptions and the widest latitude of judi-
cial interpretation, and the burden of persuasion would rest
heavily upon any who might attack it." Id. at 637 (Jackson, J.,
concurring).
The reasons for this constitutional structure are apparent.
Questions of national security, particularly in times of con-
flict, do not admit of easy answers, especially not as products
of the necessarily limited analysis undertaken in a single case.
It is therefore unsurprising that "our Constitution recognizes
that core strategic matters of warmaking belong in the hands
of those who are best positioned and most politically account-
able for making them." Hamdi v. Rumsfeld, 542 U.S. 507, 531
(2004).
This explicit constitutional delegation of control over mili-
tary affairs is quite relevant to the Bivens inquiry. See Stanley,
LEBRON v. RUMSFELD 17
483 U.S. at 683 ("[T]he ‘special facto[r]’ that ‘counsel[s] hes-
itation’ is . . . the fact that congressionally uninvited intrusion
into military affairs by the judiciary is inappropriate.").
Observance of the constitutional structure requires that courts
properly consider whether officials of other branches, named
in Bivens suits, "enjoy such independent status in our consti-
tutional scheme as to suggest that judicially created remedies
against them might be inappropriate." Carlson v. Green, 446
U.S. 14, 19 (1980). Thus, whenever the Supreme Court has
considered a Bivens case involving the military, it has con-
cluded that "the insistence . . . with which the Constitution
confers authority over the Army, Navy, and militia upon the
political branches . . . counsels hesitation in our creation of
damages remedies in this field." Stanley, 483 U.S. at 682. Put
simply, "such a remedy would be plainly inconsistent with
Congress’ authority" in military affairs. Chappell, 462 U.S. at
304.3
These general observations are amply reinforced by the
particulars of Padilla’s case. To stay the judiciary’s hand in
fashioning the requested Bivens action, it suffices to observe
that Padilla’s enemy combatant classification and military
detention raise fundamental questions incident to the conduct
of armed conflict, and that "Congress, the constitutionally
authorized source of authority over the military system of jus-
tice, has not provided a damages remedy." Id. at 304. To the
extent the Constitution may require these defendants to justify
in court who is and is not an enemy combatant, it does so in
3
We respect the service to our country of the retired military officers
who have offered their views as amici curiae in this case. Their conclu-
sion, however, that this Bivens action "will cause no interference with the
legitimate mission of our military forces," Retired Military Officers’
Amicus Br. at 24, misapprehends the question posed by "special factors"
analysis. We do not address the merits of whether a damages remedy
would interfere with the military or not. Rather, we defer to Congress as
the branch constitutionally charged with addressing that question, and we
will not readily displace the legislative role by concluding on our own
authority that damages are appropriate.
18 LEBRON v. RUMSFELD
the very different context of habeas corpus proceedings, see
Hamdi, 542 U.S. at 533, proceedings that Padilla took full
advantage of up until his transfer to civilian custody. See
supra Part I.B.
The relevance of these separation of powers concerns is
underscored by the nature of Padilla’s allegations. The bulk
of Padilla’s complaint describes the evolution of the "deten-
tion and interrogation policies developed by Senior Defense
Policy defendants," Third Amended Complaint ¶49, which
Padilla contends "proximately and foreseeably" caused the
harm he suffered from his detention and conditions of con-
finement, id. at ¶6. In the course of describing the internal
debate over detainee policy, however, the complaint makes
very clear the extent to which the progression of this lawsuit
would draw courts into the heart of executive and military
planning and deliberation.
Padilla primarily challenges "the [detainee] policy devel-
oped by Senior Defense Policy Defendants." Id. at ¶37.
Padilla describes how this policy was created as part of the
broader effort in the fall of 2001 "to develop policy in the war
on terrorism." Id. at ¶47. Almost immediately after 9/11, the
defendants in this suit sought the advice of the Justice Depart-
ment, obtaining ten different memoranda from the Office of
Legal Counsel discussing the scope of presidential authority
under the AUMF, application of the Geneva Conventions to
members of al Qaeda, and permissible forms of interrogation.
Id. at ¶50. Nor was this the only legal advice the defendants
received. The FBI weighed in, id. at ¶67, as did Alberto Mora,
General Counsel of the Navy, id. at ¶72.
The debate over what interrogation techniques to use in
combating al Qaeda received equally high level attention.
According to the complaint, Major General Michael Dun-
lavey, the commander of Joint Task Force 170 at Guantanamo
Bay, Cuba, received input on the appropriateness of specific
interrogation techniques from, among others, the Defense
LEBRON v. RUMSFELD 19
Human Intelligence Services, id. at ¶60; Col. Steve Kleinman,
the head of the U.S. Air Force’s strategic interrogation pro-
gram; and Dr. Michael Gelles, the Navy’s top forensic psy-
chologist, id. at ¶71. Kleinman and Gelles presented
dissenting positions, objecting to the use of certain tech-
niques. Id. The defendants took an approach that reflects this
diversity of views—while Haynes told Rumsfeld that some
enhanced interrogation techniques "may be legally available,"
they "should not be the subject of a blanket approval at this
time." Id. at ¶67.
Later, interrogation policy was directed by the "Working
Group on Detainee Interrogations in the Global War on Ter-
rorism," which included defendant Haynes, general counsel of
the Department of Defense; Michael Mobbs, the head of the
Detainee Policy Group; representatives of the Defense Intelli-
gence Agency; and the General Counsels and Judge Advocate
Generals of the various departments of the military –- all
reporting to the Secretary and Deputy Secretary of Defense.
Id. at ¶73.
Nor did high-level oversight end with the creation of the
detainee policy. The complaint asserts that in May 2004,
defendant Rumsfeld ordered the Naval Inspector General,
Vice Admiral Albert T. Church, to conduct a review of deten-
tions at the Naval Consolidated Brig where Padilla was held.
Id. at ¶104. Admiral Church’s review included over 100 inter-
views and a variety of affidavits, JA-627, and frankly
acknowledged that "friction occurred between the FBI and
DOD" over what interrogation methods were best to use.
Third Amended Complaint ¶121.
Finally, even the few allegations specific to Padilla reveal
the sensitive nature of the debate into which his suit would
draw the courts. Padilla describes his own detention as deriv-
ing from intelligence obtained from "two suspected terrorists
detained and interrogated outside the United States." Id. at
¶40. Similarly, the specific conditions at the Naval Consoli-
20 LEBRON v. RUMSFELD
dated Brig were the result of a policy choice that all detainees
should receive the same treatment, regardless of where they
were held. See, e.g., id. at ¶107 ("JTF-GTMO [does] not pro-
vide [the Geneva Conventions] to their detainees. Accord-
ingly, neither will the NAVCONBRIG.").
In short, Padilla’s complaint seeks quite candidly to have
the judiciary review and disapprove sensitive military deci-
sions made after extensive deliberations within the executive
branch as to what the law permitted, what national security
required, and how best to reconcile competing values. It takes
little enough imagination to understand that a judicially
devised damages action would expose past executive deliber-
ations affecting sensitive matters of national security to the
prospect of searching judicial scrutiny. It would affect future
discussions as well, shadowed as they might be by the thought
that those involved would face prolonged civil litigation and
potential personal liability.
Of course Congress may decide that providing a damages
remedy to enemy combatants would serve to promote a desir-
able accountability on the part of officials involved in deci-
sions of the kind described above. But to date Congress has
made no such decision. This was not through inadvertence.
Congress was no idle bystander to this debate. Indeed, it
devoted extensive attention to the precise questions Padilla
presents pertaining to the treatment of detainees and to the
legitimacy of interrogation measures, see, e.g., Military Com-
missions Act of 2009, Pub. L. 111-84, 123 Stat. 2190; Mili-
tary Commissions Act of 2006, Pub. L. 109-366, 120 Stat.
2600; Detainee Treatment Act of 2005, Pub. L. 109-148, 119
Stat. 2739. For example, Congress provided in the Detainee
Treatment Act of 2005 that "No person in the custody . . . of
the Department of Defense . . . shall be subject to any treat-
ment or technique of interrogation not authorized by and
listed in the United States Army Field Manual on Intelligence
Interrogation." Pub. L. 109-163 § 1402, 119 Stat. 3475. It fur-
ther provided that "[n]o individual in the custody . . . of the
LEBRON v. RUMSFELD 21
United States Government, regardless of nationality or physi-
cal location, shall be subject to cruel, inhuman, or degrading
treatment or punishment . . . as defined in the United States
Reservations, Declarations, and Understandings to the United
Nations Convention Against Torture." 120 Stat. 2635. And
the Military Commissions Act of 2009, Pub. L. 111-84, 123
Stat. 2190, prohibits the use of a "statement obtained by the
use of torture or by cruel, inhuman, or degrading treatment
. . . whether or not under color of law" in the trial of an enemy
combatant before a military commission. 123 Stat. 2580.
This history reveals a Congress actively engaged with what
interrogation techniques were appropriate and what process
was due enemy combatant detainees. In enacting these stat-
utes, Congress acted with a "greater ability to evaluate the
broader ramifications of a remedial scheme by holding hear-
ings and soliciting the views of all interested parties," Holly,
434 F.3d at 290, than we possess, constrained as we are by the
limited factual record of a single case. Padilla asks us to
ignore this ample evidence that "congressional inaction has
not been inadvertent," Schweiker v. Chilicky, 487 U.S. 412,
423 (1988), and to do what Congress did not do, namely to
trespass into areas constitutionally assigned to the coordinate
branches of our government.
This is a case in which the political branches, exercising
powers explicitly assigned them by our Constitution, formu-
lated policies with profound implications for national security.
One may agree or not agree with those policies. One may
debate whether they were or were not the most effective coun-
terterrorism strategy. But the forum for such debates is not the
civil cause of action pressed in the case at bar. The fact that
Padilla disagrees with policies allegedly formulated or actions
allegedly taken does not entitle him to demand the blunt
deterrent of money damages under Bivens to promote a differ-
ent outcome. Being judicial requires that we be judicious, and
adherence to our constitutional role in this area requires that
we await "affirmative action by Congress." Put simply, creat-
22 LEBRON v. RUMSFELD
ing a cause of action here is "more appropriately for those
who write the laws, rather than for those who interpret them."
United States v. Gilman, 347 U.S. 507, 513 (1954).
2.
In addition to these structural constitutional concerns, a
second factor causing hesitation in the Bivens context is the
departure from core areas of judicial competence that such a
civil action might entail. This second factor overlaps to some
extent with the dangers of intrusion into the constitutional
responsibilities of others described above. But it also raises a
discrete set of problems all its own pertaining to the ability of
the judiciary to administer a Bivens remedy in a case like the
one at hand.
The problems of administrability here are at least two-fold.
The first has to do with the interruption of the established
chains of military command. The Supreme Court has cau-
tioned against entertaining suits that could be so "problematic,
raising the prospect of compelled depositions and trial testi-
mony by military officers concerning the details of their mili-
tary commands." Stanley, 483 U.S. at 682-83. Padilla’s suit
proposes to do precisely what the Supreme Court has
instructed we not do: "require members of the Armed Ser-
vices" and their civilian superiors "to testify in court as to
each other’s decisions and actions," Stencel Aero Engineering
Corp. v. United States, 431 U.S. 666, 673 (1977) in order "to
convince a civilian court of the wisdom of a wide range of
military and disciplinary decisions." United States v. Shearer,
473 U.S. 52, 58 (1985).
Padilla’s complaint is replete with references to the hierar-
chy of the Defense Department and its responsibility for over-
seeing the nation’s armed services. For example, he
emphasizes that Secretary of Defense Donald Rumsfeld "ex-
ercised command and control over all members of the U.S.
military," Third Amended Complaint ¶14, and that the mili-
LEBRON v. RUMSFELD 23
tary supervisor defendants at the brig were responsible "for
receiving[ ] and implementing orders from higher-ranking
members of the chain of command." Id. at ¶¶22-27. Padilla’s
very theory of liability thus depends upon a probe of the com-
mand structure of our military establishment, a hierarchy that
the federal courts have heretofore been reluctant to disrupt.
The gravamen of Padilla’s complaint is that commanders and
subordinates should be made to consider the possibility of lia-
bility for Bivens damages before formulating and implement-
ing directives pertaining to military detentions. If such a
check is warranted, the Constitution requires that Congress
impose it rather than courts imply it. After all, not only does
Congress have authority to regulate the nation’s military, it is
also "in a far better position than a court to evaluate the
impact of a new species of litigation against those who act on
the public’s behalf. And Congress can tailor any remedy to
the problem perceived, thus lessening the risk of raising a tide
of suits threatening legitimate initiative on the part of the
Government’s employees." Wilkie, 551 U.S. at 562 (internal
quotation marks and citations omitted).
A second difficulty of administering Padilla’s proposed
Bivens action pertains to its practical impact on military intel-
ligence operations. Padilla’s proposed litigation risks interfer-
ence with military and intelligence operations on a wide scale.
Any defense to Padilla’s claims—which effectively challenge
the whole of the government’s detainee policy—could require
current and former officials, both military and civilian, to tes-
tify as to the rationale for that policy, the global nature of the
terrorist threat it was designed to combat, the specific intelli-
gence that led to the application of that policy to Padilla,
where and from whom that intelligence was obtained, what
specific military orders were given in the chain of command,
and how those orders were carried out. As the Second Circuit
has noted in an analogous context, "A suit seeking a damages
remedy against senior officials who implement an extraordi-
nary rendition policy would enmesh the courts ineluctably in
an assessment of the validity and rationale of that policy and
24 LEBRON v. RUMSFELD
its implementation in this particular case, matters that directly
affect significant diplomatic and national security concerns."
Arar v. Ashcroft, 585 F.3d 559, 575 (2d Cir. 2009) (en banc).
The Supreme Court has taken such administrability con-
cerns seriously. Cautioning against the implication of a Bivens
cause of action here are practical concerns about obtaining
information necessary for the judiciary to assess the chal-
lenged policies. Much of the information relevant to the cre-
ation of the detainee policy remains classified. While we have
no doubt that courts would seek to protect such sensitive
information, see Classified Information Procedures Act, 18
U.S.C. App. III §§1-16, even inadvertent disclosure may jeop-
ardize future acquisition and maintenance of the sources and
methods of collecting intelligence. As the Supreme Court has
recognized, "Even a small chance that some court will order
disclosure of a source’s identity could well impair intelligence
gathering and cause sources to ‘close up like a clam.’" CIA v.
Sims, 471 U.S. 159, 175 (1985). The chilling effects on intel-
ligence sources of possible disclosures during civil litigation
and the impact of such disclosures on military and diplomatic
initiatives at the heart of counterterrorism policy often elude
judicial assessment. If courts assay such assessments, it
should be because the legislative branch has authorized that
course.
The problems of administrability are thus compounded by
their relative novelty. The inquiries presaged by Padilla’s
action are far removed from questions of probable cause, see
Bivens, 403 U.S. 388, or deliberate indifference to medical
treatment, see Carlson, 446 U.S. 14, routinely confronted by
district courts in suits under 42 U.S.C. § 1983 or Bivens. In
fact, when the Supreme Court has approved Bivens actions, it
has expressly noted that the questions presented fell within
the traditional competence of courts. See Davis v. Passman,
442 U.S. 228, 245 (1979) (approving Bivens claim for gender
discrimination in part because "[l]itigation under Title VII of
the Civil Rights Act of 1964 has given federal courts great
LEBRON v. RUMSFELD 25
experience evaluating claims for backpay due to illegal sex
discrimination.")
Padilla downplays these administrability concerns. He
argues that a Bivens action will not require courts to do much
more than they are doing already. Appellant’s Br. at 27-28. It
is inescapable, to be sure, that the branches of government
will sometimes interact, and the courts will be called upon to
take up sensitive matters. In those instances, however, Con-
gress has often provided courts with specific means and
mechanisms to consider delicate questions without imperiling
national security. Congress has not just opened up something
akin to a Bivens action to courts of general federal question
jurisdiction and left them without guidelines how to proceed.
Padilla also argues that cases like Stanley and Chappell,
which recognized the likelihood that certain Bivens actions
would interfere with military defense, do not apply to him
because he is not a member of the armed forces. But this mis-
conceives the nature of the special factors analysis. The
source of hesitation is the nature of the suit and the conse-
quences flowing from it, not just the identity of the plaintiff.
Numerous examples suffice to illustrate the point that Con-
gress has been cautious about conferring broad discretionary
powers on all Article III courts in matters trenching on impor-
tant national security concerns. For example, even though
courts routinely consider applications for telephone intercepts
in criminal cases under Title III of the Omnibus Crime Con-
trol and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat.
197, Congress created the special Foreign Intelligence Sur-
veillance Court to consider wiretap requests in the highly sen-
sitive area of investigations of "a foreign power or an agent
of a foreign power." 50 U.S.C. §§ 1803-04. With respect to
detainees like Padilla, Congress has provided for limited judi-
cial review of military commission decisions, but only by the
District of Columbia Circuit Court of Appeals, and only after
the full process in military courts has run its course. 10 U.S.C.
§ 950g. And to the extent that the Supreme Court in Boumed-
26 LEBRON v. RUMSFELD
iene v. Bush, 553 U.S. 723 (2008), permitted further judicial
examination of the detention of enemy combatants, it did so
using the limited tool of the constitutionally guaranteed writ
of habeas corpus—not an implied and open-ended civil dam-
ages action. See id. at 797. And the Court recognized the need
for the judiciary carefully to avoid adverse effects on our
national security, limiting proper venue for detainee habeas
cases to the District of Columbia District Court so as to "re-
duce administrative burdens on the Government" and "to
avoid the widespread dissemination of classified informa-
tion." Id. at 796.
Even a cursory survey thus suffices to illustrate that when
Congress deems it necessary for the courts to become
involved in sensitive matters, such as those involving enemy
terrorists, it enacts careful statutory guidelines to ensure that
litigation does not come at the expense of national security
concerns. Such circumscribed grants and detailed directions
as those set forth above stand in stark contrast to the unen-
cumbered discretion that Padilla would invite all Article III
courts across this country to exercise. Padilla responds that
such constructs as qualified immunity and the state secrets
privilege should suffice to allay these concerns. See Appel-
lant’s Br. at 24-25. But the litigation of such matters still pre-
sents the potential of diverting "efforts and attention" from the
primary obligations of officials entrusted with the sober
responsibilities of protecting the lives and safety of American
citizens. Johnson v. Eisentrager, 339 U.S. 763, 779 (1950).
Moreover, courts have developed these doctrines to prevent
unintended adverse effects on national security from already-
established causes of action. See Tenet v. Doe, 544 U.S. 1, 9-
11 (2005). Here, by contrast, Padilla asks for a new Bivens
cause of action, and the Supreme Court has instructed us to
consider any aspect of that claim that would cause us to hesi-
tate before entertaining suit. See Bivens, 403 U.S. at 397. We
need not await the formal invocation of doctrines such as
qualified immunity or state secrets to say that the prospect of
adverse collateral consequences confirms our view that Con-
LEBRON v. RUMSFELD 27
gress rather than the courts should decide whether a constitu-
tional claim should be recognized in these circumstances. See
Wilson v. Libby, 535 F.3d 697, 710 (D.C. Cir. 2008) ("[T]he
concerns that underlie the protective restrictions of the [Intel-
ligence Identities Protection Act] and the Totten [state secrets]
doctrine are valid considerations in the Bivens analysis and
weigh against creating a remedy in this case.").
The factors counseling hesitation are many. We have can-
vassed them in some detail, but only to make a limited point:
not that such litigation is categorically forbidden by the Con-
stitution, but that courts should not proceed down this highly
problematic road in the absence of affirmative action by Con-
gress. If Congress were to create a damages remedy here, we
would trust that the legislative process gave due consideration
to the broader policy implications that we as judges are nei-
ther authorized nor well-positioned to balance on our own.
C.
Before recognizing a Bivens action, courts must not only
consider special factors that would counsel hesitation, but also
"whether any alternative, existing process for protecting the
interest amounts to a convincing reason for the Judicial
Branch to refrain from providing a new and freestanding rem-
edy in damages." Wilkie, 551 U.S. at 550. Here, Padilla had
extensive opportunities to challenge the legal basis for his
detention.
Padilla challenged his military detention in habeas corpus
proceedings before five different courts. In adjudications on
the merits before district courts in the Southern District of
New York and the District of South Carolina, and on appeals
to the Second Circuit and to this court, Padilla was able to
present essentially the same arguments that he makes here
about the legality of militarily detaining a U.S. citizen. See
generally Padilla II, 352 F.3d 695; Padilla V, 423 F.3d 386
(characterizing Padilla’s arguments). Padilla pursued those
28 LEBRON v. RUMSFELD
claims up until the very moment that they were mooted by his
transfer into civilian custody. And if Padilla is again detained
by the military, he could presumably avail himself further of
whatever "adequate and effective substitute for habeas cor-
pus" is in use for detainees at that time. Boumediene, 553 U.S.
at 795. With respect to Padilla’s claims arising from his
enemy combatant designation, this is not a case of "damages
or nothing." Davis, 442 U.S. at 245. The Supreme Court has
warned that "the full protections that accompany challenges to
detentions in other settings may prove unworkable and inap-
propriate in the enemy-combatant setting." Hamdi, 542 U.S.
at 535.
"That [Padilla] considers [his] existing remedies insuffi-
cient is simply irrelevant" to whether a court should imply a
Bivens action. Judicial Watch v. Rossotti, 317 F.3d 401, 413
(4th Cir. 2003). Bivens "is concerned solely with deterring
individual officers’ unconstitutional acts." Malesko, 534 U.S.
at 71. In such circumstances, we cannot regard the legislative
failure to provide Padilla with the monetary damages he seeks
from each defendant as an invitation to design some preferred
remedial regime of our own.
D.
All these sources of hesitation in recognizing Padilla’s
Bivens claim are related. The practical concerns merely serve
to illustrate the wisdom of the constitutional design, which
commits responsibility for military governance and the con-
duct of foreign affairs to the branches most capable of
addressing them and most accountable to the people for their
choices. Padilla asks us to intervene in a manner courts have
not before seen fit to attempt. To say that the cumulative con-
cerns "counsel hesitation" is something of an understatement,
and we must decline to create the damages remedy Padilla
seeks. Because we conclude that Padilla’s Bivens action can-
not be maintained, we need not reach the questions of whether
LEBRON v. RUMSFELD 29
the defendants are entitled to qualified immunity or whether
Padilla has pleaded his claim with adequate specificity.
III.
Padilla also brought suit under the Religious Freedom Res-
toration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. That stat-
ute authorizes "[a] person whose religious exercise has been
burdened" to "obtain appropriate relief against a government."
Id. § 2000bb-1(c). Padilla contends that this provision permits
him to recover damages by suing the individual defendants in
their personal capacities.
Congress enacted RFRA in response to the Supreme
Court’s decision in Emp’t Div., Dep’t of Hum. Res. of Oregon
v. Smith, 494 U.S. 872 (1990), seeking "to restore the compel-
ling interest test . . . and to guarantee its application in all
cases where free exercise of religion is substantially bur-
dened." 42 U.S.C. § 2000bb(b)(1). RFRA initially applied to
both the states and the federal government, but the Supreme
Court concluded in City of Boerne v. Flores, 521 U.S. 507
(1997), that the statute exceeded Congress’s remedial powers
over the states under section 5 of the Fourteenth Amendment.
See id. at 532-36. Congress "sought to avoid Boerne’s consti-
tutional barrier by relying on its Spending and Commerce
Clause powers" in enacting the subsequent Religious Land
Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C.
§ 2000cc et seq. Madison v. Riter, 355 F.3d 310, 315 (4th Cir.
2003). Congress has thus created a parallel statutory scheme,
using virtually identical language, in which "RFRA contin-
ue[s] to apply to the federal government" and RLUIPA "mir-
ror[s] the provisions of RFRA" in suits against the states
concerning land regulation or institutionalized persons. Id.
Because of the close connection in purpose and language
between the two statutes, courts commonly apply "case law
decided under RFRA to issues that arise under RLUIPA" and
vice versa. Redd v. Wright, 597 F.3d 532, 535 n.2 (2d Cir.
2010).
30 LEBRON v. RUMSFELD
For the reasons that follow, we believe that to permit recov-
ery in this case would be at odds with the positions of the two
coordinate branches to whom our Constitution has entrusted
primary responsibility for the conduct of military affairs. As
we shall explain, it is anything but clear that Congress has
created under RFRA a cause of action that Padilla may bring
against these federal officers.
As a preliminary matter, we have no occasion to inquire
how RFRA applies outside a military setting. Those questions
are not before us, and we have no need to address them. The
military context is, however, once again important. There
exist strong reasons for defendants to believe that RFRA did
not apply to enemy combatants detained by the military.
Indeed, no authority suggested to the contrary. And the defen-
dants have asserted that, at the very least, they are entitled to
the qualified immunity available to public officials on the
grounds that "any rights that enemy combatants may have had
under RFRA were not clearly established during the period of
Padilla’s military detention." Appellee’s Br. of Hanft et al. at
46. We agree. This case is an appropriate one for the recogni-
tion of the immunity defense because it would run counter to
basic notions of notice and fair warning to hold that personal
liability in such an unsettled area of law might attach. The fol-
lowing discussion underscores why it would be impermissible
for us to conclude that the relevant law was clearly estab-
lished in anything like a manner that would vitiate a qualified
immunity defense. We thus dismiss Padilla’s RFRA claim on
qualified immunity grounds.
Padilla contends that Congress clearly intended RFRA to
authorize "enemy combatants" to challenge the circumstances
of their military detention. We are not persuaded. Claims
implicating national security and war powers flash caution
signals all their own. Courts have long been reluctant to inter-
pret statutes in ways that allow litigants to interfere with the
mission of our nation’s military, preferring that Congress
LEBRON v. RUMSFELD 31
explicitly authorize suits that implicate the command deci-
sions of those charged with our national defense.
Perhaps the best known example of this principle is the
doctrine derived from Feres v. United States, 340 U.S. 135
(1950). There, the Supreme Court concluded that even though
the Federal Tort Claims Act, 28 U.S.C. § 1346(b), had no
express limits on who may recover from the government and
even included as possible tortfeasors "members of the military
or naval forces," 28 U.S.C. § 2671(1), the statute did not
authorize tort suits by members of the military for injuries
sustained while engaged in military service. The Feres Court
emphasized two principles: first, the unique nature of "author-
ities over persons [that] the government vests in echelons of
command," and second, a "reluctance to impute to Congress
such a radical departure . . . in the absence of express congres-
sional command." Feres, 340 U.S. at 141, 145. The Court
sixty-one years ago expressed the same puzzlement that gives
us pause in sanctioning Padilla’s RFRA action today: "If Con-
gress had contemplated that this Tort Act would be held to
apply in cases of this kind, it is difficult to see why it should
have omitted any provision to [authorize it]. The absence of
any such [provision] is persuasive that there was no aware-
ness that the Act might be interpreted to permit recovery for
injuries incident to military service." Id. at 144.
This need for hesitation is present in the context of military
detention. In United States v. Joshua, 607 F.3d 379 (2010),
our court recently emphasized the substantial differences
between individuals in civilian custody and individuals in mil-
itary custody. Those in military custody—either through des-
ignation as enemy combatants or courts martial—are subject
to the UCMJ, a different body of law than applies to those in
civilian life. And whereas "a civilian criminal code carves out
a relatively small segment of potential conduct and declares
it criminal, the Uniform Code of Military Justice essays more
varied regulation of a much larger segment of . . . activities."
Id. at 383 (quoting Parker v. Levy, 417 U.S. 733, 749 (1974)).
32 LEBRON v. RUMSFELD
Military proceedings are held before military judges who do
not enjoy the protections of Article III. Id. Nor do the full
measure of traditional civilian "constitutional guarantees" of
rights for defendants apply. Id. at 383-384.
In Joshua, our concern about the "different substantive
laws and separate adjudicative proceedings," id. at 382, was
sufficiently great that we held that the military still retained
"custody" over an individual even if his physical place of con-
finement was in a civilian jail. In interpreting the federal civil
commitment statute, 18 U.S.C. § 4248, we found it significant
that Congress had created a separate "elaborate mechanism"
with "detailed procedures for hospitalizing and civilly com-
mitting military defendants" codified in the UCMJ itself. Id.
at 389 n.7. We held that this "belie[d] the suggestion that
Congress intended to bring military prisoners into § 4248." Id.
In short, when Congress wishes to legislate with respect to the
military, it does so both unmistakably and typically in those
sections of the U.S. Code that apply to military affairs.
Congress is aware of the reluctance by courts to intrude
into matters of military governance, and when it wishes to
legislate with respect to the military, it does so with precision.
For example, in a case predating RFRA, the Supreme Court
denied a free exercise challenge by a Jewish doctor to an Air
Force regulation that effectively prohibited him from wearing
a yarmulke. See Goldman v. Weinberger, 475 U.S. 503
(1986). When Congress wished to overturn that decision, it
did so with a carefully drawn statute, 10 U.S.C. § 774. Codi-
fied in Title 10, which also contains the UCMJ and other mili-
tary regulations, the statute authorizes wearing religious
apparel, but preserves specific authority for the Secretary of
Defense to prohibit wearing religious clothing that "would
interfere with the performance of the member’s military
duties" or "is not neat and conservative." See id. § 774(b). The
statute does not sweep broadly, addressing only the limited
situation in which a serviceman’s uniform interferes with his
ability to wear a religious garment, and it does not create a
LEBRON v. RUMSFELD 33
cause of action allowing military regulations to be challenged
in civilian courts. The legislative care that was necessary in
that context would be equally expected here. Just as Congress
did not leave it to the Article III courts to decide when sol-
diers can vary their attire from the military uniform, so too
have we not been given the discretion to decide what practices
can safely be permitted to military detainees.
RFRA and the congressional response to Goldman present
in fact a useful study in contrasts. As noted, RFRA was an
effort to reverse the Supreme Court’s denial of a free exercise
claim in Emp’t Div., Dep’t of Hum. Res. of Oregon v. Smith,
494 U.S. 872 (1990) (holding that the Free Exercise Clause
does not require accommodation of a religious practice as
long as the challenged government policy is generally and
neutrally applicable). Congress passed RFRA to overturn the
decision in the civilian context, locating the statute in Title 42
along with other civilian civil rights, and failing to include the
exceptions or discretionary authority that only four years
before Congress deemed so necessary to achieving the same
result in the military context. For unlike Congress’s narrowly
tailored response to Goldman in Title 10, RFRA addresses
any free exercise claim, not only the limited facts presented
by Smith. The contrast is striking, and it is hard to contend
that a Congress that took such pains to ensure that the wearing
of religious garments did not unnecessarily interfere with the
military mission somehow meant for RFRA to provide a
cause of action for a detained terrorist suspect to challenge the
conditions of his confinement.
Padilla offers us no evidence to support the conclusion that
RFRA supplies an action at law to enemy combatants in mili-
tary detention. Given the stark differences between civilian
and military detentions described in Joshua, we would be cul-
pable of a complete transposition of contexts to apply RFRA
in the circumstances here. Indeed, the same concerns about
judicial interference with the military that caused us to hesi-
tate in implying a Bivens action give us pause in interpreting
34 LEBRON v. RUMSFELD
this statute to achieve an equally unanticipated and compara-
bly disruptive outcome. See Rasul v. Myers, 563 F.3d 527,
535-36 (D.C. Cir. 2009), cert. denied, 130 S. Ct. 1013 (2009)
(Brown, J., concurring) ("Accepting plaintiffs’ argument that
RFRA imports the entire Free Exercise Clause edifice into the
military detention context would revolutionize the treatment
of captured combatants in a way Congress did not contem-
plate. In drafting RFRA, Congress was not focused on how to
accommodate the important values of religious toleration in
the military detention setting."). Were Congress to prefer
damages actions over alternate remedies for those in Padilla’s
situation, that would be one thing. But we have no indication
that Congress even considered the prospect of RFRA actions
brought by enemy combatants with anything like the care that
it has customarily devoted to matters of such surpassing sensi-
tivity.
The foregoing discussion underscores what we believe are
considerable obstacles to applying RFRA in this context. But
we need not go so far as to announce such a proposition in its
most absolute terms. Under Pearson v. Callahan, 129 S. Ct.
808 (2009), we are permitted to explain directly why "there
was no violation of clearly established law." Id. at 820. As set
forth in Pearson, the qualified immunity inquiry is hardly an
empty one. For here it brings us to the threshold question of
whether RFRA even speaks to the military detention setting.
We think it anything but clearly established that it does. At
the very least, the defendants transgressed no clearly estab-
lished law in this area, and to hold them personally liable in
the absence of clear notice that such a prospect was even pos-
sible would run counter to the reasons that the immunity
exists. See Rasul, 563 F.3d at 533 n.6. For the reasons hereto-
fore expressed, we hold that the defendants have asserted a
valid qualified immunity defense to Padilla’s RFRA claim.
IV.
Padilla’s final claim is that the district court erred in con-
cluding that he lacked standing to seek an order enjoining the
LEBRON v. RUMSFELD 35
government from designating him as an enemy combatant in
the future.
The standing doctrine gives practical effect to the Constitu-
tion’s "fundamental limits on federal judicial power in our
system of government" imposed by the case or controversy
requirement. Allen v. Wright, 468 U.S. 737, 750 (1984). To
satisfy this jurisdictional baseline, a plaintiff must demon-
strate:
(1) it has suffered an "injury in fact" that is (a) con-
crete and particularized and (b) actual or imminent,
not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and (3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision. Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
Padilla claims he has sustained two types of "injury in
fact": a reasonable fear of future military detention and an
ongoing stigma resulting from his prior detention as an enemy
combatant. We shall address each in turn.
A.
A plaintiff who seeks, as Padilla does, to enjoin a future
action must demonstrate that he "‘is immediately in danger of
sustaining some direct injury’ as the result of the challenged
official conduct and the injury or threat of injury must be both
‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’" City
of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983). Padilla
argues that he has alleged such danger by virtue of his prior
enemy combatant designation and the government’s failure to
deny the possibility that it could designate him an enemy
combatant in the future. Padilla’s only support for this appre-
hension is that then-Deputy Solicitor General Gregory Garre
informed his attorney in November 2005 that the policy could
36 LEBRON v. RUMSFELD
be reapplied to him. His own brief acknowledges, however,
that the most that can be read into this statement is that "the
military could therefore detain Padilla at any time." Appel-
lant’s Br. at 48 (emphasis added). This proves no more than
that there is a possibility that Padilla could be redesignated an
enemy combatant.
The Supreme Court has repeatedly rejected such a basis for
standing. Time and again, the Court has reiterated that "[p]ast
exposure to illegal conduct does not in itself show a present
case or controversy regarding injunctive relief." Lyons, 461
U.S. at 102 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-
96 (1974)). And it is equally insufficient for a plaintiff claim-
ing standing to observe that the challenged conduct is repeat-
able in the future. See Golden v. Zwickler, 394 U.S. 103, 109
(1969) (noting "that the former Congressman can be a candi-
date for Congress again is hardly a substitute for evidence that
this is a prospect of immediacy and reality" (emphasis
added)). Nor does a claim that the purportedly illegal practice
is commonly used suffice to make the threat to the plaintiff
sufficiently concrete. Lyons, 461 U.S. at 106 ("The additional
allegation in the complaint that the police in Los Angeles rou-
tinely apply chokeholds . . . falls far short of the allegations
that would be necessary to establish a case or controversy
between these parties.").
Not only has Padilla failed to allege a "real" threat, but he
also cannot allege an "immediate" one. Convicted of serious
charges of terrorism, and now facing more than seventeen
years in jail on resentencing, see Jayyousi, 657 F.3d 1115-19,
the possibility that the President will exercise "[his] authority
to subject those [he] designates as enemy combatants to mili-
tary detention even after they complete a civilian jail sen-
tence," Appellant’s Br. at 52, will not arise for many years.
Much could occur in the interval to head off such an event.
Much could occur to change the requirements and procedures
of enemy combatant detentions. To resolve the legality of
such a remote military detention at present quite simply "takes
LEBRON v. RUMSFELD 37
us into the area of speculation and conjecture," O’Shea, 414
U.S. at 497, far removed from "that concrete adverseness
which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitu-
tional questions." Baker v. Carr, 369 U.S. 186, 204 (1962).
Indeed, when the Supreme Court denied certiorari on Padil-
la’s habeas petition, mooted by his intervening criminal pros-
ecution, three Justices voiced these precise concerns. "Any
consideration of what rights he might be able to assert if he
were returned to military custody would be hypothetical."
Padilla VIII, 547 U.S. at 1062 (Kennedy, J., concurring,
joined by Roberts, C.J., and Stevens, J.). Any "continuing
concern that [Padilla’s] status might be altered again . . . can
be addressed if the necessity arises. . . . Were the Government
to seek to change the status or conditions of Padilla’s custody,
[the Florida District Court] would be in a position to rule
quickly." Id.
Padilla submits that the district court erred in considering
the effect of his criminal conviction and sentence on the
imminence of any future injury he might suffer as a result of
being designated an enemy combatant. He argues that because
those events occurred after his suit was filed, they are relevant
only to mootness, not standing. But both requirements—
standing and mootness—address themselves to the actuality,
and hence the justiciability, of a dispute. "Mootness has been
described as ‘the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commence-
ment of the litigation (standing) must continue throughout its
existence (mootness)." Arizonans for Official English v. Ari-
zona, 520 U.S. 43, 68 n. 22 (1997) (quoting U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). Thus, what-
ever label we choose to put on the analysis, the conclusion is
the same: the prospect of any justiciable controversy is so
remote and contingent that we have no authority to consider
Padilla’s request. In sum, the district court did not err in con-
sidering the fact of Padilla’s conviction and sentence, and we
38 LEBRON v. RUMSFELD
also may consider the Eleventh Circuit’s affirmance of his
conviction and its remand to the district court for imposition
of an even lengthier prison term.
B.
Padilla also claims that he suffers a continuing injury from
the stigma of being labeled an enemy combatant.
"[C]ontinuing, present adverse effects" stemming from "[p]ast
exposure to illegal conduct" can suffice to establish standing.
O’Shea, 414 U.S. at 495. That, however, is not this case. The
reputational harm Padilla alleges is still inadequate to satisfy
the "injury in fact" requirement.
As the district court correctly concluded, Padilla’s criminal
convictions for serious terrorism related charges make it
unlikely that he suffers any additional harm as a result of his
designation as an enemy combatant. This case presents analo-
gous circumstances to those confronted by the D.C. Circuit in
McBryde v. Committee to Review Circuit Council Conduct,
264 F.3d 52 (2001). There, that court found that a former fed-
eral judge lacked standing to challenge suspensions that had
already been completed based on the stigmatizing effect of
the records of that punishment. It noted that "[t]he legally rel-
evant injury is only the incremental effect of a record of the
suspensions . . . over and above that caused by the . . . explicit
condemnations." Id. at 57.
Here, Padilla was convicted after trial of three federal
crimes of terrorism based on proof that he was a member of
al Qaeda who had conspired with leaders of that organization
and who was receiving training in an al Qaeda camp in
Afghanistan at the very moment that members of that organi-
zation were murdering thousands of people with hijacked air-
craft on 9/11.4 It is hard to imagine what "incremental" harm
4
Moreover, Padilla’s claim of stigmatic injury is purely derivative of his
other claims, giving us added reason to agree with the district court that
LEBRON v. RUMSFELD 39
it does to Padilla’s reputation to add the label of "enemy com-
batant" to the fact of his convictions and the conduct that led
to them.
V.
Finding Padilla’s claims to be without merit, the judgment
of the district court is
AFFIRMED.
it is insufficient to support standing. "[T]he Supreme Court has strongly
suggested, without deciding, that where an effect on reputation is a collat-
eral consequence of a challenged sanction, it is insufficient to support
standing." McBryde, 254 F.3d at 57 (citing Spencer v. Kemna, 523 U.S.
1, 16-17 n.8 (1998)).