Last Friday, Judge Sullivan (D.D.C.) dismissed Meshal v. Higgenbotham, a long-outstanding Bivens suit brought by a U.S. citizen who alleged that, while travelling in the Horn of Africa, he was detained for four months, interrogated, and tortured at the direction of–and by–U.S. government officials (tellingly, the government did not claim that the alleged conduct was constitutional). In a thoughtful 37-page opinion setting forth his reasons for dismissing the case, Judge Sullivan offered a fairly candid (and, in my view, accurate) explanation for why Meshal couldn’t recover for conduct that, if proven, would unquestionably constitute “appalling (and, candidly, embarrassing)” violations of his constitutional rights: In a nutshell, it’s the Fourth, Seventh, and D.C. Circuits’ fault.

But whereas this ruling may seem like the last nail in a coffin long-since sealed for Bivens-based damages for constitutional violations in national security cases, there’s one small but potentially significant silver lining: As Judge Sullivan rightly explained, these circuit-level decisions are not compelled by the Supreme Court’s own Bivens jurisprudence–which, although hostile to Bivens, has repeatedly resisted invitations to curtail it to the same degree as the lower courts. Instead, as I explain below, whereas Judge Sullivan’s opinion concludes by suggesting that “Only Congress or the President can provide a remedy to U.S. citizens under such circumstances,” I respectfully disagree. The en banc D.C. Circuit or Supreme Court can do the same–that is, if either were inclined to restore a modicum of coherence to Bivens. And if ever there was a case in which such restoration seemed warranted, Meshal may well be it.

I.  The Supreme Court’s Qualified Hostility to Bivens

It’s no secret that the Supreme Court, ever since 1980, has expressed increasing skepticism of its 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which held that, in appropriate cases, plaintiffs may seek damages against federal officers for past violations of their constitutional rights, even if no statute expressly provides a cause of action. Whether reflecting specific separation-of-powers concerns or a more general judicial distaste for federal common lawmaking, the Court has declined to recognize any new Bivens remedy since Carlson v. Green, and has repeatedly expanded the scope of the two exceptions to Bivens that Justice Brennan articulated in his 1971 majority opinion: (1) cases in which Congress has provided an alternative to Bivens; or (2) cases presenting “special factors counseling hesitation.” What’s more, at least two of the Justices–Justices Scalia and Thomas–appear to be of the view that “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action.” (I’ve critiqued the flawed analogy at the heart of this argument elsewhere.)

At the same time, the number of cases in which the Court has specifically declined to recognize a Bivens claim since 1980 is fairly modest–it can be counted on two hands, and nearly all of them fall into identifiable (if not defensible) categories, including (1) cases in which statutes provided alternative means of redress; (2) cases brought by servicemembers arising out of their military service; (3) suits against defendants other than federal government officers (e.g., federal agencies, private corporations, or private contractors); or (4) suits advancing novel constitutional claims. Over the same time period, no Justices other than Scalia and Thomas have objected to the “core” of Bivens, and a handful of decisions have reached other issues in Bivens cases without expressing skepticism about the availability of a cause of action. In other words, there’s a case to be made that the Supreme Court’s perceived hostility to Bivens is not nearly as comprehensive and categorical as is widely portrayed, especially in suits at Bivens‘ “core”–suits against individual federal officers who were directly responsible for violations of clearly established constitutional rights.

II.  Meshal and the More Categorical Hostility of the Lower Courts

The lower courts, on the other hand, are a different story. As I explained in a pair of articles (a 2010 essay for the Lewis and Clark Law Review and a 2012 article in the American University Law Review), and as Judge Sullivan summarized in his opinion in Meshal, a series of circuit-level decisions have gone much further, and have refused to recognize Bivens claims in suits challenging alleged counterterrorism abuses by relying on debatable (if not indefensible) invocations of the “special factors” exception to Bivens–invocations with little or no relationship to those upon which the Supreme Court has relied.

Thus, for example, courts have invoked merits-based considerations (e.g., whether the defendants might have immunity; whether state secrets might bar further litigation; etc.), or entirely undifferentiated concerns about judicial interference with national security policies to refuse to recognize Bivens claims. Moreover, some of these very same jurists have shown no similar reluctance to infer judge-made federal common law principles to insulate contractor defendants from liability. As significantly, as Carlos Vázquez and I documented last year in a University of Pennsylvania Law Review article, these decisions have converted what used to be a choice between Bivens and state tort law remedies into a choice between Bivens and “nothing,” and have ended up holding that the appropriate answer is “nothing.”

At first, though, these decisions came almost entirely in suits brought by non-citizens, usually based upon alleged constitutional violations outside the United States. Thus, while decisions like the en banc Second Circuit’s ruling in Arar and the D.C. Circuit’s holding in Rasul II were controversial, they could at least be distinguished as not encompassing claims brought by U.S. citizens to vindicate clearly established constitutional rights. Indeed, as Judge Sullivan explained in Meshal, “when the constitutional rights of American citizens are at stake, courts have not hesitated to consider such issues on their merits even when the U.S. government is allegedly working with foreign governments to deprive citizens of those rights.”

The problem, Judge Sullivan went on to note, is three subsequent circuit-court decisions: The Fourth Circuit’s decision in Lebron v. Rumsfeld (the Jose Padilla case); the en banc Seventh Circuit’s holding in Vance v. Rumsfeld, and the D.C. Circuit’s decision in Doe v. Chertoff. In all three of these cases, the courts relied upon the “special factors” prong to hold that no Bivens claim should be available to U.S. citizens challenging their treatment at the hands of U.S. military captors, even though each of the citizens sought to vindicate clearly established constitutional rights. Although these cases all involved “battlefield” conduct (Padilla was an alleged “enemy combatant”; Vance and Doe were U.S. military contractors working in combat zones), Judge Sullivan explained that they all relied upon a more general conclusion equally applicable to Meshal’s claims: “That the same special factors compelling hesitation in military cases also compel hesitation in cases involving national security and intelligence. The cases hold that implying a Bivens cause of action in any of these types of cases would intrude into the affairs of the legislative and executive branches, in violation of the separation of powers.”

Although I have written at great length about the problems with each and all of these decisions, it’s difficult to disagree with Judge Sullivan’s application of them to bar relief in Meshal. Similarly, it’s difficult to disagree with his palpable frustration at such a result:

When Bivens was decided over forty years ago, it was intended for cases in which “[t]he mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist…. In such case, there is no safety for the citizen, except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name.” Mr. Meshal has come to court seeking the protection of judicial tribunals as the only way to provide for his safety. Under Lebron, Doe, and Vance, however, when a citizen’s rights are violated in the context of military affairs, national security, or intelligence gathering Bivens is powerless to protect him. As one of the Vance dissenters predicted, this evisceration of Bivens risks “creating a doctrine of constitutional triviality where private actions are permitted only if they cannot possibly offend anyone anywhere. That approach undermines our essential constitutional protections in the circumstances when they are often most necessary.” In issuing today’s opinion, the Court fears that this prediction is arguably correct.

Simply put, Meshal is the logical culmination of these deeply problematic circuit-level decisions: Even in a suit brought by a U.S. citizen plaintiff with no connection to the military or to a foreign combat zone, a Bivens claim to enforce clearly established constitutional rights is precluded by the government’s mere invocation of amorphous “national security” concerns.

III.  Why Meshal is the Right Case to Fix Bivens

Of course, that these three circuit-level decisions (especially the D.C. Circuit’s decision in Doe) compel the result in the district court in Meshal says nothing about whether the en banc D.C. Circuit or Supreme Court would necessarily agree. (Nor does the Supreme Court’s denial of certiorari in those cases.) And that’s the point of this post: It may well be that the Supreme Court has no problem with the more aggressive hostility to Bivens manifested in these lower court decisions–and is thereby comfortable with the complete absence of civil liability in any suit seeking retrospective relief for constitutional violations in the name of “national security” (and the functional impunity such a result would produce for government officers). That is to say, it may be that these lower courts are correctly interpreting implicit signals from the Justices in their even more comprehensive opposition to Bivens. But consider the claims in Meshal, as recounted by Judge Sullivan:

Count I alleges Defendants violated his Fifth Amendment right to substantive due process by threatening him with disappearance and torture; by directing, approving and participating in his detention in Kenya and his illegal rendition to Somalia and Ethiopia without due process; and by subjecting him to months of custodial interrogation in Africa. Count II alleges Defendants violated Mr. Meshal’s Fifth Amendment right to procedural due process by subjecting him to prolonged and arbitrary detention without charge; denying him access to a court or other processes to challenge his detention; and denying him access to counsel. Count III alleges Defendants violated his Fourth Amendment right to be free from unreasonable seizure without a probable cause hearing. Count IV alleges Defendants violated his rights under the Torture Victim Protection Act (TVPA). 

Short of a fact pattern that arose within the territorial United States (which shouldn’t make a difference with respect to Meshal’s constitutional rights), it’s hard to envision a clearer case for Bivens relief. And so, if a U.S. citizen who just happens to be in the wrong place at the wrong time may not pursue any recovery based upon these terrifying allegations of sustained mistreatment, then Bivens truly should be limited to its facts (or overruled outright), and it’s high time for the Supreme Court to say so.

But I have to think that part of why the rest of the Justices have never taken up Justice Scalia’s and Justice Thomas’s invitation to relegate Bivens to the historical dustbin is to preserve the specter of relief–however fleeting in most circumstances–for egregious cases just like this one. If not Meshal, then when?