Opinio Juris

I have to say I find myself in agreement with Prof. Paust more than with Prof. Alford, although I can't help but notice that the more pleasant line of authority invoked by Prof. Paust almost exclusively dates from the 19th or early 20th century. That, of course, does not lessen its value in any way, but what does that say of more recent times?
[I also doubt if the terrorists care very much about whether the US respect their own law. Mind you, many others do.]

Now, I don't know much about Bivens, but I would just mention the way the common law (in England, Scotland and Australia) has long dealt with the kind of concerns that so detained the court in Rasul v. Myers.
Of course, the observations there were not on the basis of Bivens, or anything of the sort; they all concern the liability of (servants of) the Crown in tort. Nonetheless, some of the considerations in those cases may well be transferable.

To begin with, there is the concept of combat immunity. This is not strictly an immunity in the sense that it excludes all judicial supervision. It only excludes such supervision in respect of damage intentionally or negligently done in the course of combat operations; more particularly, it excludes the application of tort law (notably the tort of negligence).
The High Court of Australia has applied the rule of combat immunity in Shaw Savill and Albion Co. v. The Commonwealth (1940) 66 CLR 344, a case on a collision at sea involving HMAS Adelaide. Dixon J. said, in a passage approved by the English Court of Appeal in Mulcahy v. Ministry of Defence [1996] QB 732, 750 (Sir Iain Glidewell) and in the English High Court in Bell v. Ministry of Defence [2003] EWHC 1134, para. 2.C.12 (Owen J), and Bici v. Ministry of Defence [2004] EWHC 786, para. 92 (Elias J):

'It could hardly be maintained that during an actual engagement with the enemy or a pursuit of any of his ships the navigating officer of a King's ship of war was under a common-law duty of care to avoid harm to such non-combatant ships as might appear in the theatre of operations. It cannot be enough to say that the conflict or pursuit is a circumstance affecting the reasonableness of the officer's conduct as a discharge of the duty of care, though the duty itself persists. To adopt such a view would mean that whether the combat be by sea, land or air our men go into action accompanied by the law of civil negligence, warning them to be mindful of the person and property of civilians. It would mean that the Courts could be called upon to say whether the soldier on the field of battle or the sailor fighting on his ship might reasonably have been more careful to avoid causing civil loss or damage. No one can imagine a court undertaking the trial of such an issue, either during or after a war. To concede that any civil liability can rest upon a member of the armed forces for supposedly negligent acts or omissions in the course of an actual engagement with the enemy is opposed alike to reason and to policy. But the principle cannot be limited to the presence of the enemy or to occasions when contact with the enemy has been established. Warfare perhaps never did admit of such a distinction, but now it would be quite absurd. The development of the speed of ships and the range of guns were enough to show it to be an impracticable refinement, but it has been put out of question by the bomber, the submarine and the floating mine. The principle must extend to all active operations against the enemy. It must cover attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. But the real distinction does exist between active operations against the enemy and other activities of the combatant services in time of war.'

On any view of the concept of 'active operations against the enemy', John Yoo would fall well outside the scope of this particular immunity, it seems to me. How, after all, could it be argued that there simply was no way that either Yoo or any prison wardens could have given any thought to the reasonableness of their actions, in the sense that it might very well be impossible to do so in an actual combat situation?

The House of Lords has adverted to a substantially similar rule (this time relating to perfectly intentional damage) in the Scottish case of Burmah Oil Co. Ltd. v. Lord Advocate [1965] AC 75, 110 (Lord Reid):

'[The immunity must apply to] both accidental and deliberate damage done in the course of fighting operations. It cannot matter whether the damage was unintentional or done by our artillery or aircraft to dislodge the enemy or by the enemy to dislodge our troops. And the same must apply to destruction of a building or a bridge before the enemy actually capture it. Moreover, it would be absurd if the right to compensation for such a building or bridge depended on how near the enemy were when it was destroyed. But I would think that Vattel is right in contrasting acts done deliberately (librement et par précaution) with damage caused by inevitable necessity (par une necessité inevitable). His examples show that he means something dictated by the disposition of the opposing forces. It may become necessary during the war to have new airfields or training grounds and the necessity may be inevitable, but that kind of thing would not come within the exception as stated by any of the commentators, inevitably necessary because there is really no choice: for example, there may be only one factory in the country or one site available for a particular purpose.'

How could it seriously be suggested that it was either 'inevitably necessary' to torture or otherwise seriously ill-treat someone, or to advise that treatment like that meted out to Padilla and other, alien, captives, was available to the President?

It is these considerations that I would think are properly taken into account in law suits arising out of situations of armed conflict.
You will note, perhaps, that there is nothing here about 'multifarious pronouncements by various departments' or any obstruction of foreign policy. I believe there are serious reservations about both of these concepts in the two cases here at issue (Rasul v. Myers and Padilla v. Yoo). My first difficulty is with the constitutional thinking that is sometimes read into the phrase 'coordinate branches of government' (itself, of course, a quote from Baker v. Carr). The executive and the judiciary may be 'coordinate branches of government', but the first is subject to the law, and the second administers the law. If, therefore, the second is not to abandon its rightful function, there must be a degree of subordination between the two. The judiciary is the guardian, frequently the only guardian, of the rule of law; the rule of law and the rule of lawyers therefore cannot be entirely divorced. Certainly, there must also be a degree of understanding in the judiciary for the problems facing the executive, but that understanding is quite insufficiently explained as respect for an institution of the same constitutional stature.
That is, I believe, the thinking behind the common law authorities cited, and a line of thought, moreover, that is not displaced by cases such as Baker v. Carr or Sabbatino, which are rather more subtle than that. For instance, if 'multifarious pronouncements by various departments' resulted simply from the fact that executive action, believed by the executive to be lawful, is struck down as unlawful, then every executive conduct would have to be immune from challenge. That cannot be the true position, can it?

My second beef is with the assertion in Rasul that it would obstruct the nation's foreign policy if the court decided on the 'method of detaining and interrogating alleged enemy combatants'. How is that an issue of foreign policy? There may be a potential for embarrassment, but that is a feature of many of the most important civil rights cases. If the executive must fear being embarrassed by a conclusion that their actions were unlawful, it might simply think about changing tack. Judicial consideration, likewise, is not a source of acute embarrassment for the government abroad, but quite simply an internal matter. Not even the worst dictatorships on the planet (some of which are, of course, allies of the West) expect their partners in the war on terror to act free of all legal or judicial constraints. As in so many other contexts, nations take their allies as they find them - even if they happen to be liberal democracies governed by the rule of law...
The US judiciary also overestimates its international cachet if it believes that any ruling on conduct of the US government would create discomfort for those US allies that are doing the exact same thing. To put things the other way around, has any American lawyer even, let alone the American public, cared whether the ECHR is applied to British or Polish action in Iraq?

I cannot help but feel that Rasul v. Myers has thrown the kitchen sink of justiciability doctrines at an attempt to raise international issues. I don't think it was right to do so.

Howard,

Thanks for the correction. I haved edited the original post accordingly.

Roger Alford