Qualified Immunity, Constitutional Stagnation and the ‘War on Terror’

In recent years, several people detained by the United States during the “war on terror” have brought Bivens actions seeking compensation from executive officials for alleged constitutional torts. These suits are “inevitable” and will become increasingly common. Opponents and victims of the “war on terror” view a Bivens right of action as an appropriate safeguard for human rights and the rule of law, and have focused on securing the availability such suits. While “war on terror” Bivens plaintiffs face challenges inherent in the “nearly dead” Bivens right of action, the Bivens obstacles to relief are not insurmountable. The qualified immunity defense which the defendant officials in detainees’ Bivens have claimed nearly universally, on the other hand, has received less attention but likely presents the more formidable barrier to compensatory relief. In January 2009, in Pearson v. Callahan, the Supreme Court overturned the qualified immunity test that had been mandatory since 2001. The old test, from Saucier v. Katz, required courts to consider the constitutional merits of the plaintiff’s claim before determining whether the constitutional right involved was “clearly established” when the defendant official acted. The Pearson Court asserted that courts can decide most cases effectively based solely on the “clearly established” question. It recognized, however, that the Saucier test served important notice-giving and rights-development functions. Therefore, for claims that are unlikely to arise in other law-developing suits where qualified immunity is unavailable, the Saucier sequence remains “especially valuable”. The Bivens claims brought by “war on terror” detainees fit this “especially valuable” category, but the lower courts already have begun to show disagreement as to whether they should apply Saucier sequencing to these claims. This Comment shows that, indeed, “war on terror” detainees’ constitutional rights and the constitutionality of executive detention policies will not develop through alternative legal procedures. The lower courts therefore should address the constitutional merits of these claims before proceeding to the question of whether any constitutional rights that may have been violated were “clearly established” when the defendant official acted. Additionally, the Supreme Court should make explicit the continued value of the Saucier sequence for assessing qualified immunity in “war on terror” Bivens claims. Part II of this Comment introduces Bivens actions and the defense of qualified immunity, and reviews the recent Pearson decision recasting the Saucier sequence as discretionary. Part III explains why “war on terror” detainees are precisely the type of plaintiffs in whose suits qualified immunity determinations should continue to require a merits-first test. By analyzing “war on terror” cases seeking injunctive and declaratory relief, habeas corpus petitions, and motions to suppress evidence. Part III shows that detainee rights are unlikely to develop through alternative rights of action. Part IV examines discrepant decisions in the D.C. Circuit and the Ninth Circuit and shows that the lower courts have begun to apply Saucier sequencing inconsistently to the qualified immunity defense in detainees’ Bivens actions. Part IV then predicts the effects of this lower court confusion on the judiciary’s notice-giving and rights-development functions in the U.S. anti-terrorism efforts. Part V.A. addresses common criticisms leveled against Saucier sequencing and demonstrates why they are misconceived in the context of “war on terror” detainee Bivens actions. Finally, Part V.B explains why the judiciary should assume any role at all, rather than defer to the executive and legislative branches, in shaping war-time detainee rights and parameters for future executive war-time action. It argues that judicial involvement is important because of the infrequency of opportunities to clarify and update constitutional laws related to war-time activities and the judiciary’s quintessential task of protecting the rights of unpopular minorities.