The Unconstitutional Torture of an American by the U.s. Military: Is There a Remedy Under Bivens?

• Publication year: 2013

The Unconstitutional Torture of an American by the U.S. Military: Is There a Remedy Under Bivens?

Katrina Carmichael

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THE UNCONSTITUTIONAL TORTURE OF AN AMERICAN BY THE U.S. MILITARY: IS THERE A REMEDY UNDER BIVENS?

Katrina Carmichael^*

Introduction

After the conflict in Iraq began in 2003,¹ two young American civilians, Donald Vance and Nathan Ertel, moved to the war-torn nation to help "rebuild the country and achieve democracy."² They began work at an Iraqi security services company, but, after becoming suspicious of illegal activity by their employer, they volunteered as whistleblowers for the FBI.³ Following the company's discovery of Vance and Ertel's espionage, the men were taken hostage in the company compound by their employers.⁴ After calling on their U.S. contacts for aid, the men believed they would be rescued.⁵ However, Vance and Ertel were not rescued; instead, they were apprehended by the U.S. military, taken to a detention camp, and "tortured by their own government, without notice to their families and with no sign of when the harsh physical and

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psychological abuse would end."⁶ Under such facts, most observers would agree that a wrong has clearly occurred. And where there's a wrong, shouldn't there be a remedy? Perhaps; but for Vance, Ertel, and other plaintiffs like them, curing such a wrong is a complex matter.

Under United States law, an American civilian who is tortured by the government, especially while in a war zone, has limited options for recovery.⁷ While federal statute provides a remedy for persons deprived of constitutional rights by state officials under 42 U.S.C. § 1983, no such statutory equivalent exists when the same deprivation of rights occurs at the hands of federal officials.⁸ Thus, an American civilian whose constitutional rights have been violated by a federal official is left with but one judicially created remedy: Bivens, the common law right to sue a federal official who deprives a citizen of his constitutional rights established in the 1971 case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.⁹ However, Bivens may not be sufficient to establish a proper remedy for constitutional violations, especially when courts are reluctant to

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allow Bivens claims to proceed.¹⁰ Unfortunately for Vance and Ertel, the Seventh Circuit denied their Bivens claims.¹¹ Likewise, other courts have similarly found a Bivens remedy untenable, finding that Bivens claims have been severely curtailed in recent decades by the Supreme Court's insistence on deference to Congress.¹² Several courts and scholars have suggested that such deference to Congress is appropriate; others have found that Congress's failure to legislate on the issue speaks to its desire to leave Bivens to the courts.¹³

In analyzing the extension of a Bivens remedy to American civilians tortured by the U.S. military, this Note proceeds in four parts. Part I traces the origin, development, and retraction of Bivens.¹⁴ Part II analyzes the competing judicial approaches in applying a Bivens remedy for American citizens tortured by the federal government, comparing Doe v. Rumsfeld, Lebron v. Rumsfeld, and the majority opinion in Vance v. Rumsfeld, all of which denied a Bivens action, to the dissenting opinions of Judges Hamilton, Williams, and Rovner and the concurring opinion of Judge Wood, all

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of which argued that a Bivens remedy is appropriate.¹⁵ Finally, Part III proposes that Congress establish a Bivens remedy modeled after an existing statute, such as § 1983 or the Torture Victim Protection Act, and that, until Congress takes such action, courts should not curtail Bivens beyond the already-established exceptions.¹⁶ Part IV further proposes that the extension of Bivens is particularly appropriate when American civilians' constitutional rights are at stake.¹⁷

I. Origin And Evolution Of Bivens

A. Bivens Begins

Section 1983 of the United States Code provides a remedy for civilians deprived of their constitutional or statutory rights by a state government official.¹⁸ No such analogous federal statute exists.¹⁹ However, in 1971 the Supreme Court handed down a judicially created remedy in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, establishing a right of action against federal officials equivalent to that provided by § 1983.²⁰ However, in Bivens, Justice Brennan outlined two limitations under which a Bivens remedy would be unavailable: (1) if Congress has provided an adequate statutory alternative²¹ or (2) if "special factors counsel[]

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hesitation . . . ."²² While the Court did not invoke such exceptions in Bivens, it soon would.

B. The Development And Retrenchment Of Bivens

Bivens enjoyed a decade of acceptance and expansion by the courts before facing restriction by the judiciary.²³ In Davis v. Passman, the Supreme Court extended Bivens to include Equal Protection violations under the Fifth Amendment.²⁴ Later, in Carlson v. Green, the Supreme Court continued to expand Bivens by applying the remedy to a claim of cruel and unusual punishment in violation of the Eighth Amendment.²⁵ This expansion soon met resistance though, resulting in a curtailment of its application.

In 1983, the Court began rejecting the extension of Bivens. In Bush v. Lucas, the Court denied a Bivens claim because other statutory mechanisms giving meaningful, albeit incomplete, remedies existed.²⁶ The Court also denied a Bivens remedy in Chappell v. Wallace, finding that the unique disciplinary structure of the military, coupled with the alternative system of justice in place for the military, constituted "special factors" that ultimately barred military personnel from bringing an action against their commanders.²⁷

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Again, in Schweiker v. Chilicky, the Court held that Bivens could not be invoked when an administrative program already provided alternative relief.²⁸ In Schweiker, Justice O'Connor made the stringency of limitations on Bivens clear, stating, "[o]ur more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts."²⁹

The most decidedly damaging blow to Bivens came in 2007 with Wilkie v. Robbins, where the Supreme Court denied a Bivens remedy to a plaintiff alleging violation of his Fifth Amendment right to due process.³⁰ In Wilkie, government officials continuously harassed the plaintiff in an attempt to coerce him into providing an easement across his property.³¹ Despite the clear violations alleged and the lack of alternative remedies, the Court emphasized the disfavor of Bivens in recent years and explained, "Congress is in a far better position than a court to evaluate the impact of a new species of litigation."³²

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Most recently, in the 2012 case Minneci v. Pollard, the Supreme Court denied a prisoner's Eighth Amendment claim of cruel and unusual punishment when a federal prison guard allegedly denied him necessary medical care.³³ The Court, applying Wilkie, found that because a private company ran the federal prison, the plaintiff could sue the guard and the company as private defendants under state tort law.³⁴ Thus, an "alternative, existing process" provided protection for the constitutional rights at stake, making Bivens an unnecessary and inappropriate form of redress.³⁵

C. A Recent Development: Bivens And Torture

In recent years, courts have refused to recognize a Bivens claim for foreign citizens who have been mistreated or tortured while detained by U.S. officials, finding that the "special factors" of foreign policy, national security, and military autonomy counsel hesitation.³⁶ In Arar v. Ashcroft, the plaintiff—a dual citizen of Canada and Syria—was detained and mistreated by U.S. officials and then removed to Syria, where he was interrogated and tortured by the Syrian government.³⁷ In denying a Bivens remedy, the Court held that "in the context of extraordinary rendition, hesitation is warranted by special factors"³⁸ and that "when a case presents the intractable 'special factors' apparent here, it is for . . . the elected members of Congress—and not for us as judges—to decide whether an individual may seek

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compensation from government officers and employees . . . for a constitutional violation."³⁹

In Ali v. Rumsfeld, nine plaintiffs, including five Iraqi citizens and four Afghani citizens, sued Secretary of Defense Rumsfeld and others for violation of due process under the Fifth Amendment and for violation of the prohibition against cruel and unusual punishment under the Eighth Amendment.⁴⁰ The nine men had been detained and tortured at the Abu Ghraib and Bagram detention facilities in Iraq for periods ranging from a few weeks to over six months.⁴¹ Despite the horrific violations alleged by the plaintiffs' complaint—including physical, psychological, and sexual abuse—the Court denied a Bivens remedy due to concern over special factors, observing that "allowing a Bivens action to be brought against American military officials engaged in war would disrupt and hinder the ability of our armed forces 'to act decisively and without hesitation in defense of our liberty and national interests.'"⁴²

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These recent decisions all clearly restrict the use of Bivens in the context of torture; however, the plaintiffs in these unsuccessful torture-based Bivens actions share one key characteristic: their citizenship.⁴³ Until very recently, only non-resident aliens had asserted claims of torture under Bivens, and thus limitations on the application of Bivens had not yet extended to claims brought by American citizens.⁴⁴ As of 2011, however, claims involving American citizens have been asserted.⁴⁵

D. Reshaping Bivens: The Modern Battle Over Two Models

As is evident from the history of its applications, Bivens has undergone significant transformation over the last thirty years. When courts review Bivens claims today, they battle two interests: the desire...