Kar v. Rumsfeld (D.D.C. Sep. 26, 2008)

* Kar v. Rumsfeld (D.D.C. Sep. 26, 2008)

A very interesting opinion by Judge Robertson.  Cyrus Kar is a US citizen who was arrested in Baghdad in 2005, and subsequently held by the US military for two months on suspicion of involvement with IED attacks.  He brought a Bivens claim for damages for alleged violations of his Fourth and Fifth Amendment rights:

Fourth Amendment claim: the government violated the Fourth Amendment by (i) failing to provide him with a probable cause hearing or its equivalent for almost seven weeks and (ii) continuing to detain him even after determining that he was innocent;

Fifth Amendment claim:  “Kar asserts that the “due process violation in this case derives from the totality of circumstances defining [his] indefinite, arbitrary and prolonged detention,” focusing on three specific circumstances: (1) his detention without charge, and therefore, without notice of any charge; (2) his lack of opportunity to be heard in a meaningful manner at the Detainee Status Board hearing; and (3) his continued detention despite being found innocent.”

The opinion dismisses Kar’s suit on the ground that these rights were not sufficiently clearly established–as to this particular context—at the time of Kar’s detention, and therefore that the defendants would be entitled to qualified immunity.  Notably, however, the opinion suggests that the facts alleged do suffice to make out a Fourth Amendment claim (though not necessarily a Fifth Amendment claim):

Kar has alleged facts sufficient to make out a Fourth Amendment violation, but his rights were not clearly established ‘in light of the specific context of the case.’ . . . .

Kar concedes that his initial arrest and detention were reasonable, see Dkt. 18, at 31, but argues that his continued detention without a hearing was unreasonable because the Fourth Amendment requires a “prompt[ ]” hearing to assess the sufficiency of the evidence supporting detention… In the domestic criminal context, the Supreme Court requires that a detained individual receive a hearing within 48 hours of his seizure. See County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Congress insists that non-citizens detained pursuant to the USA Patriot Act receive a probable cause hearing within seven days. See 8 U.S.C. § 1226a(5). Kar claims that his detention for 48 days [FN2] without a hearing–more than 20 times longer than acceptable for domestic criminal suspects, and nearly seven times longer than permitted for aliens suspected of endangering U.S. national security–must be unreasonable.

*4 The government urges, however, that Kar’s extended detention without a hearing was reasonable when considered in its context. The 48-hour requirement in County of Riverside arose from a ” ‘practical compromise’ between the rights of the individuals and the realities of law enforcement.” County of Riverside, 500 U.S. at 53 (quoting Gerstein, 420 U.S. at 113). The Supreme Court acknowledged that “the Fourth Amendment permits a reasonable postponement of a probable cause determination while the police cope with the everyday problems of processing suspects through an overly burdened criminal justice system.” County of Riverside, 500 U.S. at 55. In the government’s view, the “everyday problems of processing suspects” that arise for the military in Iraq are far more daunting than those encountered by the domestic police: “[t]he exigencies are more pressing, the stakes higher, and the pre-existing systems more rudimentary.” Dkt. 13, at 25. Under similar circumstances, the government notes, the Supreme Court permitted the military to detain a suspected insurgent for two and a half months without a probable cause hearing, see Moyer v. Peabody, 212 U.S. 78, 82-86 (1909), and it submits that the military should be permitted to do so in this instance as well.

It may indeed be inconvenient to hold prompt probable cause hearings in Iraq, and military officials will be justifiably wary of releasing a suspected insurgent–particularly one thought to be involved in the manufacture of the IEDs that have claimed so many American lives. But it is startling that the government thinks it fitting to rely on a century-old Oliver Wendell Holmes opinion that asserts, flatly and without nuance, that “public danger warrants the substitution of executive power for judicial power.” [FN3] Id . at 85. Granted that the “exigencies are more pressing” in Iraq, and that “the stakes are higher” there, and that “pre-existing systems are more rudimentary”–an army that is fully equipped with the latest technology can surely organize itself to convene a probable cause hearing in far less than 48 days.

Kar’s problem in this suit, however, is that his right to a probable cause hearing was not clearly established with sufficient specificity to overcome the defendants’ qualified immunity. As weak as the government’s authority is, Kar has provided none at all–no precedent that clearly establishes the right of a U.S. citizen to a prompt probable cause hearing when detained in a war zone. Any attempt to apply the two-day requirement from City of Riverside or the seven-day requirement from the Patriot Act to Kar’s circumstances ignores the differences between detention on U.S soil and detention in hostile territory. Because defendants did not violate any clearly established Fourth Amendment right, they are entitled to immunity.

This analysis suggests that the government might not have qualified immunity should the same scenario arise again.  It may be, of course, that this is a non-issue going forward given changes in the nature of the detainee processing system employed in Iraq since 2005.

It also is worth noting that the opinion rejects out of hand the government’s suggestion that a Bivens remedy would be inappropriate in this setting.  The opinion does not engage with the 2d Circuit holding in Arar v. Ashcroft to the effect that Bivens should not be available in connection with rendition claims for reasons relating to national security, a decision that is now subject to en banc review.

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