The Volokh Conspiracy
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May a U.S. citizen who was allegedly detained, interrogated, and tortured by U.S. law enforcement personnel overseas file a Bivens action against those responsible? Today, in Meshal v. Higgenbotham, a divided panel of the U.S. Court of Appeals for the D.C. Circuit answered "no," finding no precedent for such an action and concluding that if such suits may be filed, they must be authorized by Congress. Judge Janice Rogers Brown wrote for the court, joined by Judge Brett Kavanaugh, who also wrote a separate concurring opinion. Judge Nina Pillard dissented.
Here is how Judge Brown summarized the issue before the court:
Amir Meshal filed this Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against several agents of the Federal Bureau of Investigation ("FBI"), claiming they violated his Fourth and Fifth Amendment rights when they detained, interrogated, and tortured him over the course of four months in three African countries. Meshal insists a Bivens remedy in these circumstances is necessary and unexceptional. The government condemns the pro-Bivens rationale applied extraterritorially as unprecedented. The district court found the allegations of federal agents abusing an American citizen abroad quite troubling. So do we. Still, the district court dismissed Meshal's suit, finding a Bivens action unavailable.
Faced with a shifting paradigm in which counterterrorism and criminal investigation merge, we rely on a familiar framework in an unconventional context. No court has countenanced a Bivens action in a case involving the national security and foreign policy context. And, while Bivens remedies for ill-executed criminal investigations are common, extraterritorial application is virtually unknown. We hold that in this particular new setting-where the agents' actions took place during a terrorism investigation and those actions occurred overseas-special factors counsel hesitation in recognizing a Bivens action for money damages.
Surveying the relevant caselaw, Judge Brown concluded that there is no precedent for allowing a Bivens action in this sort of context unless and until such an action is authorized by Congress, which conspicuously failed to make other legal remedies available. These are points reiterated and emphasized by Judge Kavanaugh in his concurrence.
The fundamental divide between the majority opinion and the dissent arises over a seemingly simple question: Who Decides? In particular, who decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda and other radical Islamic terrorist organizations? In my view, the answer is Congress, not the Judiciary.
In confining the coverage of statutes such as the Federal Tort Claims Act and the Torture Victim Protection Act, Congress has deliberately decided not to fashion a cause of action for tort cases like Meshal's. Given the absence of an express cause of action, the dissent seizes upon Bivens. How does the dissent deal with the Supreme Court's oft-repeated caution against extending Bivens to new contexts? The dissent argues that this case does not present a new context.
On that point, I respectfully but strongly disagree with the dissent. Most importantly, the alleged conduct in this case occurred abroad. So far as the parties have been able to uncover, never before has a federal court recognized a Bivens action for conduct by U.S. officials abroad. Never. In statutory cases, we employ a presumption against extraterritoriality. There is no persuasive reason to adopt a laxer extraterritoriality rule in Bivens cases. It would be grossly anomalous, in my view, to apply Bivens extraterritorially when we would not apply an identical statutory cause of action for constitutional torts extraterritorially.
This case is far from the Bivens heartland for another reason as well. It involves a national security investigation during a congressionally authorized war, not a simple arrest for securities fraud, drug trafficking, or the like. Other courts of appeals have refused to recognize Bivens actions for alleged conduct that occurred during national security investigations, even for conduct that occurred in U.S. territory. . . . We should do the same in this case, especially because the conduct here occurred in a foreign country. . . .
The confluence of those two factors—extraterritoriality and national security—renders this an especially inappropriate case for a court to supplant Congress and the President by erecting new limits on the U.S. war effort. Make no mistake. If we were to recognize a Bivens action in this case, U.S. officials undoubtedly would be more hesitant in investigating and interrogating suspected al Qaeda members abroad. Of course, some might argue that would be a good thing. Maybe so, maybe not. Either way, it is not our decision to make. Congress and the President possess the authority to restrict the actions of U.S. officials during wartime, including by approving new tort causes of action. And in this war, they have done so by enacting new statutes such as the Detainee Treatment Act and the Military Commissions Act. But they have not created a tort cause of action for this kind of case. In my view, we would disrespect Congress and the President, and disregard our proper role as judges, if we were to recognize a Bivens cause of action here.
Judge Pillard took a different view:
Had Meshal suffered these injuries in the United States, there is no dispute that he could have sought redress under Bivens. If Meshal's tormentors had been foreign officials, he could have sought a remedy under the Torture Victim Protection Act. Yet the majority holds that because of unspecified national security and foreign policy concerns, a United States citizen who was arbitrarily detained, tortured, and threatened with disappearance by United States law enforcement agents in Africa must be denied any remedy whatsoever.
I would reverse the judgment dismissing Meshal's case and remand for further proceedings for the following two reasons:
First, congressional action supports a constitutional damages claim where, as here, it would not intrude on the unique disciplinary structure of the military and where there is no comprehensive regulation or alternative remedy in place; and
Second, where FBI agents arbitrarily detain a United States citizen overseas and threaten him with disappearance and death during months of detention without charges, those agents' mere recitation of foreign policy and national security interests does not foreclose a constitutional damages remedy. . . .
Courts have no power to make national security policy or conduct foreign affairs and, in fulfilling our own constitutional duty, the Article III courts must not imperil the foreign relations or national security of the United States. But no less today than when the Supreme Court decided Bivens, "the judiciary has a particular responsibility to assure the vindication of constitutional interests such as those embraced by the Fourth Amendment." Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407 (1971) (Harlan, J., concurring in judgment). Government is most tempted to disregard individual rights during times of exigency. Judicial scrutiny becomes particularly important when executive officials assert that individual rights must yield to national security and foreign policy imperatives. Presented with cases involving assertions of paramount national interests in apparent tension with individual liberty, the federal courts have proved competent to adjudicate. Removing all consequence for violation of the Constitution treats it as a merely precatory document. . . . We should not do so without more justification than was presented here.
Given the depth of the dispute, and the importance of the question, will this case be a candidate for en banc review? Or is the next stop the Supreme Court?