Last month, the DC Circuit Court of Appeals heard oral arguments in the Doe v. Rumsfeld case.
Citing Bivens v. Six Unknown Fed. Narcotics Agents as an authority, the case involved alleged detention and interrogation abuses against a U.S. military contractor, “John Doe,” in Iraq. Doe, an Arabic translator for a Marine intelligence unit, is a U.S. citizen.
Shortly before his scheduled departure from Iraq, U.S. military personnel detained and interrogated the plaintiff. At this time, he was denied access to counsel and allegedly endured physical abuse. He was subsequently transported to a camp for high-value detainees and held there for nine months, where he endured further interrogation and abuse.
Doe was never formally charged with a crime and was released in August 2006. Since the detention, he has been barred from future employment with U.S. military contractors and has been on a terrorist watch list.
Doe’s lawsuit against Donald Rumsfeld invokes both procedural and substantive due process, the Detainee Treatment Act and the Bivens case.
The District Court granted the government’s motion to dismiss the procedural due process claims but rejected the motion to dismiss the substantive due process claims based on qualified immunity.
The District Court held that a Bivens remedy, essentially the private right of action against a federal official for constitutional violations, was available to Doe in this case so long as there were no alternative remedies available and so long as no special factors precluded a Bivens remedy.
In the oral arguments, attorneys presented arguments balancing national security against the right to bring a Bivens action.
“The sensitivities that cry out in this case for deference to Congress…depend on the context involved here, the issues the suit raises.”
Will national security interests trump constitutional liberty or will individual constitutional liberties prevail over the need to protect the nation?