Imagine this scenario: You are an American citizen. Based on a belief that you are a threat, you are ordered captured and detained by U.S. authorities. While being held pursuant to policy memoranda and orders issued by high-ranking officials in Washington, DC, you are subjected to acts of cruel and unusual physical treatment, which, in your view, violate the Eighth Amendment of the U.S. Constitution as well as the United Nations Convention against Torture.
Should you be able to file a civil action seeking damages against those high-ranking officials in the executive branch who authorized your torture or should they be shielded from suit on grounds of national security and official immunity? In the recent past, four such cases--known as Bivens actions--have made their way through the federal courts to the appellate level. This article reviews those cases and concludes that, given recent decisions, the plaintiffs in such suits are likely to have their claims barred.
When an official operating "under color of state law" violates someone's civil rights as established by the Constitution and federal law, victims have the right to sue for damages under 42 U.S.C. section 1983. (1) Yet, no such federal statute creates a cause of action against federal officials for violating those same civil rights. As a result, victims of civil rights violations by federal officials historically turned to state courts to seek redress, often with mixed results given the diversity of laws across the 50 states. (2)
In 1967, Webster Bivens brought suit against six agents of the Federal Bureau of Narcotics for violations of his Fourth Amendment rights in federal court. (3) Bivens alleged that the agents entered and searched his residence without a warrant and arrested him without probable cause. Arguing that he "suffered great humiliation, embarrassment, and mental suffering," Bivens sought $15,000 in damages from each of the agents for their unlawful conduct. (4) The district court accepted the federal government's view and dismissed on grounds that federal law did not create a cause of action against officials operating under color of federal law for violations of civil rights and, moreover, even if it did, the agents were operating in their official capacity and thus were immune from suit. Seizing on the district court's cause of action determination, the Second Circuit Court of Appeals affirmed the dismissal. (5)
The Supreme Court, however, disagreed and reversed. Writing for the majority, Justice William Brennan cautioned that "power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting--albeit unconstitutionally--in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own." (6) Noting the inherent danger in overstepping one's authority, the Court added that the pursuit of a civil action was an appropriate measure for someone whose rights were violated by an official of the executive branch: "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." (7)
Because the Supreme Court did not discern any "special factors counseling hesitation in the absence of affirmative action by Congress," it held that Bivens was "entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment." (8) As he wrapped up his opinion, Justice Brennan admonished, "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury." (9)
Even though Bivens dealt specifically with a violation of the Fourth Amendment, it opened the door for lawsuits alleging violations of the various amendments of the Bill of Rights. (10) Of particular relevance to the post-9/11 torture cases discussed below, in Carlson v. Green, the Supreme Court extended Bivens protections to violations of the Eighth Amendment. (11) In that case, Marie Green, the mother of a federal inmate, brought suit against prison officials for allegedly failing to provide proper medical attention to her son who died from injuries sustained while incarcerated. (12) Among the reasons the Court upheld Green's claim was that "the Bivens remedy, in addition to compensating victims, serves a deterrent purpose.... [T]he Bivens remedy is recoverable against individuals.... It is almost axiomatic that the threat of damages has a deterrent effect, surely particularly so when the individual official faces personal financial liability." (13)
While Carlson extended Bivens claims, it also opened the door to limiting the reach of such actions. As the majority opined, "Such a cause of action may be defeated in a particular case, however, in two situations. The first is when defendants demonstrate "special factors counseling hesitation in the absence of affirmative action by Congress." The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective." (14)
Prophetically, Justice Potter Stewart in his concurring opinion in Carlson predicted that the above quotation "contains dicta that go well beyond the prior holdings of this Court." (15) In all fairness, most of Justice Stewart's concurrence was focused on his concern that the second factor--an express congressional substitute remedy--was a confusing overstretch that would encourage Bivens claims when alternative remedies were readily available. (16) Still, he also foresaw, correctly as it turned out, that the former--a "special factors" defense--would be used by judges to carve out grounds for dismissing Bivens suits. As he wrote, "A defendant also may defeat the Bivens remedy under today's decision if 'special factors' counsel 'hesitation.' But the Court provides no further guidance on this point." (17)
In the words of one commentator, Carlson was "the high-water mark for Bivens remedies" (Vladeck 2012a, 1301). After Carlson, the Supreme Court drew on the two exceptions to limit Bivens litigation. In Correctional Services Corporation v. Malesko, the high court expressly stated that Bivens litigation should only be permitted if it is necessary "to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct." (18)
That said, one study found that Bivens claims have met with a slightly higher success than initially thought (Reinart 2010). Of 241 Bivens actions brought in a three-year period in the five federal district courts studied, 39 met with some degree of success--a 16% success rate. (19) Moreover, as 50 of the 241 claims (21%) were deemed frivolous, when those cases are excluded the success rate extended even higher to 20%. After the study further winnowed down the data set to the 128 cases wherein an answer or a motion to dismiss was filed, the success rate jumped to 30%. When Bivens claims were defeated, most dismissals were on the merits, followed by dismissals for frivolity and for failure to exhaust administrative remedies. Interestingly, Bivens actions were terminated because it was established the defendant had qualified immunity in only 2% of all filings, indicating that as a general defense the need to invoke qualified immunity is rare.
Despite such findings, in the area of national security, post-September 11 Bivens actions have generally met with little to no success. As Stephen Vladeck notes, to date, "not a single damages judgment has been awarded in any of the dozens of lawsuits arising out of post-September 11 U.S. counterterrorism policies alleging violations of plaintiffs' individual rights" (Vladeck 2012a, 1296). As the following review of torture cases shows, when national security and military affairs are involved, the federal government has vigorously pursued dismissal of all such Bivens suits before they can go to trial.
Post-9/11 Torture Cases
It is arguable that, of all the liberties government officials may infringe, to take one's life without clue process and to subject one to harsh physical treatment and torture are the gravest of violations. It follows that government should go to great lengths to deter such actions. This is precisely the underlying logic of creating a constitutional cause of action under Bivens.
Following the terrorist attacks of September 11, 2001, officials in the Bush administration took an extremely narrow view of what actions constituted torture as defined under both federal and international law (see Mayer 2008). In a series of documents drafted by then Deputy Assistant Attorney General John Yoo, often collectively referred to as the "torture memos," measures traditionally considered to be acts of torture were deemed legally permissive within the context of the "war on terror." (20) Because of the legal cover the memos provided, the Bush administration and, subsequently, the Obama administration concluded that executive branch officials were shielded from criminal prosecution for authorizing, ordering, or undertaking "enhanced interrogation techniques" like stress-position binding and waterboarding (Hunt 2010; Shane 2012). For Americans allegedly tortured, Bivens suits became the main recourse.
In four separate Bivens civil actions--Lebron v. Rumsfeld, Padilla v. Yoo, Doe v. Rumsfeld, and Vance v. Rumsfeld--numerous high-ranking officials were sued for their purported role in authorizing the detention and torture of Americans in violation of the law. In all four of these cases, appellate courts ruled in favor of dismissal. This section reviews the appellate opinions in these four cases. (21)
Lebron v. Rumsfeld
In 2007, convicted terrorist...