Back in June, I wrote a long post about the D.C. district court’s decision in Meshal v. Higgenbotham, in which Judge Sullivan dismissed a damages suit brought by a U.S. citizen making, in Judge Sullivan’s words, “appalling (and, candidly, embarrassing) allegations” of mistreatment and abuse by federal law enforcement officers after he was arrested and detained while traveling in Africa. As I wrote back then, Meshal is perhaps the “last, best hope” for what are known as “Bivens” claims (where litigants sue federal officers for damages directly under the Constitution) in national security cases because (1) the alleged violations of Meshal’s Fourth and Fifth Amendment rights are at the very core of those few Bivens remedies the Supreme Court has expressly endorsed; and (2) the defendants are not senior military or intelligence officials, but rather federal law enforcement officers–again, the heartland of Bivens. Thus, as I concluded, “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.”
To make a long story short, Meshal has since appealed Judge Sullivan’s decision to the D.C. Circuit, and filed his opening brief on appeal last Monday (see also this release from the ACLU). Yesterday, three amicus briefs were filed in support of Meshal, including briefs on behalf of the Constitution Project; the U.N. Special Rapporteurs on Torture; and three of the leading academic experts on Bivens (well, two, anyway)–Northwestern’s Jim Pfander, Georgetown’s Carlos Vázquez, and me. Our brief picks up on some of the arguments I already alluded to in my June post–specifically, that the lower courts’ widespread hostility to Bivens remedies in national security litigation is a byproduct of two different–but equally significant–errors, including (1) a misunderstanding of how a statute Congress enacted in 1988 (the Westfall Act) should have affected the scope and availability of Bivens remedies today; and (2) a complete failure to appreciate that, when truly faced with a choice between “Bivens or nothing,” the Supreme Court has never left a non-servicemember plaintiff alleging a colorable constitutional violation with “nothing.”
Thus, we argue, because these lower-court decisons (including the D.C. Circuit’s decision in Doe v. Rumsfeld, on which the district court heavily relied in dismissing Meshal’s claims) can be limited to their distinct facts, they should be so limited–and the district court’s refusal to recognize a cause of action should be reversed and remanded. Oral argument has not yet been scheduled, so we won’t know until late next year whether Bivens remedies in these kinds of cases are not just elusive, but altogether illusory.