Bivens in National Security Cases, Before and After Ziglar v. Abbasi
Forthcoming, JUDGING NATIONAL SECURITY (Robert M. Chesney & Stephen I. Vladeck, eds., Oxford University Press)
20 Pages Posted: 11 Jul 2019
Date Written: July 10, 2019
This book chapter addresses the failures of the Bivens cause of action and remedy for constitutional torts by federal officers to redress most harms inflicted by national security and foreign affairs activities of the U.S. government. It traces the initial creation and expansion of the remedy in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) and then the Supreme Court's decades-long retrenchment, culminating with Ziglar v. Abbasi (2017). The chapter closely reads Abbasi to explain the Court's reasons for refusing to extend Bivens into the domains of national security and foreign affairs. One of the keys to understanding Abbasi is the disinclination of a majority of the Supreme Court to allow the federal judiciary to elaborate constitutional doctrine that will bind national security and foreign affairs activities of the U.S. government, especially those activities occurring abroad and/or implementing directives of national policymakers. This negative view of the law declaring role of the federal courts stands in stark contrast to the ascendant judicial supremacy in the domestic, non-national security sphere. Since Bivens suits are presumptively unavailable for national security harms, and core interests protected for centuries by the Anglo-American legal system — rights to life, bodily integrity, and liberty (in the sense of freedom of movement) — are being infringed without redress — for instance in interrogation and detention abuses in the post-9/11 conflicts — the chapter suggests a shift in approach. Efforts expended on seemingly futile Bivens litigation might instead be directed to seeking legislative reform. While acknowledging the difficulties of securing legislation from the current Congress and President, the chapter closes with detailed suggestions for amendments to current law that would allow civil redress for victims harmed by U.S. national security activities. To reduce objections from Congress and the executive, the proposals seek to heed the Supreme Court's warnings about the risks of constitutionalizing national security policy. As a result, the proposals allow civil redress under nonconstitutional law, namely state tort law, federal statutory law, international law, and administrative compensation mechanisms.
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