Academic

Will the War on Terror Save Bivens?

By George D. Brown

The latest development in the Bivens saga occurred when the government filed its brief in opposition to cert. in Arar v. Ashcroft (09-923).  The Bivens doctrine--well known to Federal Courts geeks--permits constitutional tort actions against federal officials, without any statutory authorization like Section 1983. It has been controversial since the Court pronounced it in 1971, and in recent years has appeared moribund if not dead. However, the "war on terror" has spawned a number of constitutional claims against Bush--era officials. Plaintiffs in search of a cause of action have relied mainly on Bivens.

Arar is a good example. He complains of an "extraordinary rendition," from JFK to Jordan to Syria, where he was tortured. His suit against federal officials foundered, mainly on Bivens grounds. He lost in the district court, the Second Circuit, and in the Circuit en banc (7-to-4).  His petition for certiorari gives the Supreme Court the chance to weigh in on the principal issue Bivens plaintiffs face: the contention that the particular case before the court presents "special factors counselling hesitation, " a concept derived from Bivens itself.

Lower courts have been generally receptive to finding special factors in the national security context presented by what might be called reverse war on terror suits. Ashcroft v. Iqbal was such a suit, but the Supreme Court dispatched it on other grounds. As for what happens now, there seem to be three principal possibilities.

The Court might simply deny cert. This would be a victory for the government, although perhaps not the last word. Alternatively, the Court might take the case, and, next year, rule broadly that the national security issues present in a suit like Arar's constitute a special factor counselling hesitation. That could be the last nail in Bivens' coffin. Finally, It could reverse the Second Circuit, emphasizing the need for courts to remedy constitutional wrongs. National security deference would suffer what might be a bigger setback than in the Supreme Court's habeas cases. They can be seen as presenting a special situation. Reviving Bivens would be to read Marbury for all that it is worth in the national security context. Stay tuned.

Full post as published by The Faculty Lounge on May 21, 2010 (boomark / email).