The New National Security Canon

Why have victims of post-September 11 governmental misconduct met with virtually no success thus far in pursuing damages claims arising out of the government's alleged abuses? One explanation is that these cases are nothing more than one piece of a larger puzzle in which fewer and fewer civil plaintiffs have been able to recover in any suit alleging official misconduct. After all, it is a familiar trope that the Supreme Court has shown increasing skepticism in recent years toward civil plaintiffs in damages suits against government officers. Complicating matters, because reasonable minds continue to disagree about the legality of the surveillance, detention, and treatment of terrorism suspects (and a host of other controversial measures) since September 11, different perspectives on the underlying legal questions will necessarily color our view of whether the absence of relief in these cases is a new-or troubling- development.In this Essay, I aim to provide a deeper answer to this question by looking carefully at the evolution of four different general doctrines in federal courts jurisprudence that have figured prominently in national security civil suits over the past decade: the availability of Bivens remedies; federal common law defenses to state-law suits against government contractors; qualified immunity; and the political question doctrine. To determine whether the lack of recovery in post-September 11 civil litigation differs in kind or merely degree from that which is true more generally, I contrast the state of these doctrines in non-national security cases with how the same law has been applied in suits with national security over- or under-tones. As I conclude, closer inspection reveals fairly compelling evidence for the emergence of a new "national security canon," a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment. Absent a change in direction, this trend will have two sets of consequences: First, national security policy will, in most cases, increasingly come to be an area over which the political branches exercise near-plenary control (thereby perpetuating, whether correctly or not, the argument that courts lack the institutional competence to resolve such claims). Second, as such, we may well come to understand the emergence of the national security canon over the past decade as another example of the "normalization of the exception"-the accommodation into existing law of practices and policies typically embraced only by virtue of their exigency and fleeting duration. As the national security canon becomes more deeply ingrained, so too the likelihood that it will expand into contexts other than those in which it has thus far been recognized.INTRODUCTIONAs of May 2012, not a single damages judgment has been awarded in any of the dozens of lawsuits arising out of post-September 11 U.S. counterterrorism policies alleging violations of plaintiffs' individual rights.1 For some, this result simply testifies to the thoughtfulness and care with which the government has conducted the "war on terrorism"; it follows that there is no need for damages if no rights have actually been violated.2 For others, this outcome is a function less of the legality of the government's conduct than the novelty of the measures adopted after September 11-and the corresponding idea that, whether or not the government crossed the line, the law was not "clearly established" such that individual officers should be held liable for whatever transgressions may have occurred.3 Still, others take a more cynical view, seeing in this body of jurisprudence a systematic effort to create a form of functional impunity-a creation of new doctrinal barriers to relief that deny recovery even where extant precedent would otherwise appear to have supported it.4Assessing who has the better of this argument is a difficult endeavor. …