The "National Security Exception" to Bivens

Over at Opinio Juris, Roger Alford has the latest in a series of posts related to the Padilla v. Yoo suit and the more general issue of Bivens claims in terrorism cases. As Roger writes, "Whatever one thinks of John Yoo, I'm just surprised that there is not greater agreement that a Bivens claim for damages against government and military officials for alleged constitutional violations is a bad idea when it comes to government conduct in the waging of war." [Bivens, for the non-Fed Courts geeks,  is a 1971 Supreme Court decision providing that, in certain situations, courts may infer a self-executing (and non-statutory) damages remedy for violations of constitutional rights by federal officials.]

First off, and apologizing for the double negative, I'm not sure that there isn't greater agreement about Roger's assertion. One need look only at the Brooklyn district court's decision in the Maher Arar case, dismissing his damages suit because of amorphous "national security" concerns that counseled against inferring a Bivens remedy, for proof of that. [Roger's post also discusses the D.C. Circuit's similar decision last week in Rasul v. Myers.] But more importantly, I think this is a disturbingly myopic reading of Bivens, for reasons I detail below the fold...

I've written previously on the question whether there should be a possible "national security exception" to Bivens claims, albeit in the context of Arar, and I think a lot of what I said there is relevant here. First, at least originally, the idea of "special factors counseling hesitation" in inferring a Bivens remedy was focused on Congress, and on the question of whether Congress had considered (and either provided or refused to provide) a statutory remedial scheme. Thus, in later cases like Bush v. Lucas and Chappell v. Wallace, for example, the Court declined to infer a Bivens remedy entirely because Congress had considered whether (and to what extent) it should provide a remedy for the alleged constitutional violation.

In other words, as I wrote then, "where Congress has not acted at all, let alone remedially, the Supreme Court has never suggested that Bivens should be foreclosed; in those cases, Bivens is most appropriate, as the only serious check on unconstitutional governmental action." I also explained in the piece why I thought arguments based on deference to the Executive were un-convincing.

But more generally, I just don't see why it is less important to remedy violations of clearly established constitutional rights simply because those rights were violated in the context of the "war on terrorism." As I wrote in reference to the district court's decision in Arar,

if amorphous “national security concerns” are sufficient to preclude courts from creating a Bivens remedy, then Bivens’s role as a deterrent will be effectively eviscerated in any case even tangentially implicating the security of the nation. What is to stop the next federal officer from detaining the next Maher Arar and rendering him to the next Syria? Again, that is why these are the cases where Bivens is the most important — where Congress, as the instrument of popular sentiment, is the least likely to look out for the rights of those swept up in the proverbial dragnet, and is the least willing to create remedies for constitutional violations to the news of which we have become too accustomed.

I'm not sure where I come down on the merits of Padilla v. Yoo, specifically (although I think Padilla's suit against his immediate captors is far more important). But Roger's suggestion that, as a general matter, Bivens is completely inappropriate in any "terrorism" case strikes me as rather inconsistent with the reasons the Supreme Court has provided for its articulation of the Bivens remedy in the first place.