University of Southern California

“Counter-Counter-Terrorism via Lawsuit”—The Bivens Impasse


Article by George D. Brown
From Volume 82, Number 5 (July, 2009)

This Article deals with one of the most difficult questions arising out of the war on terror: what to do about the victims. How should the legal system respond to claims of collateral damage to constitutional rights when the government has tilted in favor of security at the expense of liberty? The war on terror has already put the American legal system to a severe test, exacerbated by the divide between those who see the problem as essentially one of preserving civil liberties and those who see it as one of preserving national security.

Increasingly, the system will have to grapple with suits by terrorism suspects who seek damages for the governmental conduct to which they have been subjected. The Supreme Court has already decided one such case; others are on their way. Apart from damages for the victims, these suits present the question of potential civil liability for federal officials, particularly those of the previous administration. Much of this litigation will be based on the Bivens doctrine, which permits damages actions for constitutional torts committed by federal officials. This Article contends that the Bivens doctrine exists in two forms: the Marbury-rights model and the prudential-deferential model. The former focuses on the plaintiff and points toward allowing the suit to proceed. The latter focuses on the subject matter and leads to emphasis on protecting the government. It is closely related to the political question doctrine and has prevailed since the 1980s.

Thus, war on terror Bivens plaintiffs face obstacles, but they are not insurmountable. The Supreme Court’s recent habeas corpus cases in the context of the war on terror have emphasized a heightened judicial role in protecting individual rights. These cases might portend a return to the Marbury-rights model. As an alternative, the Court may be exploring the possibility of a middle ground: a balancing approach to Bivens that would permit some suits to proceed. In war on terror suits, this approach has an initial appeal. It avoids the Bivens dilemma: a choice between the prudential-deferential model, which will generally lead to dismissal, and the Marbury-rights model, which points toward allowing the suit to proceed. The Article contends, however, that while superficially appealing, this balancing alternative will not work, at least in the context of the war on terror. The same competing values will always be present in the balancing process: vindication of constitutional rights and judicial checking of the political branches versus deference to government actions to fight terrorism and concern over the detrimental effects of litigation on those efforts. The Bivens doctrine is, in effect, at an impasse. Courts are faced with an either/or choice that they, rightly, may not feel competent to make.

Yet the constitutional order can hardly ignore the need to strike some balance between individual liberty and national security. The issue of compensation is particularly acute. This Article contends that Congress, not the judiciary, should resolve the Bivens impasse. This approach would respond to the Supreme Court’s call for Congress to take the lead in the national debate over striking the balance and would be consistent with the prudential-deferential model’s reliance on congressional primacy in devising constitutional remedies. The Article concludes by considering steps Congress might take, including substituting governmental for individual liability, using a specialized court, and establishing administrative processes.


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