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| Volume 82 | July 2009 | Number 5 |
"Counter-Counter-Terrorism via Lawsuit"—The Bivens Impasse
George D. Brown
82 S. Cal. L. Rev. 841
ABSTRACT
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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