In the past few years, four courts of appeals have applied a presumption against recognition of a Bivens cause of action in dismissing damages suits alleging constitutional violations arising out of federal officials’ pursuit of various national security and counterterrorism policies. In each of these cases, the court’s approach was based on the belief that allowing such suits to proceed would threaten undue interference with the executive branch’s conduct of military and national security affairs—interference that should be tolerated, if ever, only where Congress has expressly so provided. As Fourth Circuit Judge J. Harvie Wilkinson III explained in declining to recognize a Bivens claim that would have allowed José Padilla to seek compensation for his allegedly unconstitutional detention and treatment as an “enemy combatant,” “To stay the judiciary’s hand in fashioning the requested Bivens action, it suffices to observe that Padilla’s enemy com-batant classification and military detention raise fundamental questions incident to the conduct of armed conflict, and that Congress . . . has not provided a damages remedy.”
The Second Circuit, sitting en banc, used similar reasoning in declining to recognize the right of Maher Arar to seek compensation for the allegedly unconstitutional injuries he received at the hands of government officers arising out of his extraordinary rendition to Syria. Other courts have sounded variations on this theme to preclude relief for claims by, for example, former Guantánamo detainees and U.S. citizens who were detained and allegedly abused by U.S. military personnel while working as military contractors in Iraq. In the view of each of these courts, concerns about judicial interference with national security justified their refusal to recognize a federal damages remedy for the injuries caused by the defendants’ allegedly unconstitutional conduct.
We argue that the analysis employed by these courts of appeals to deter-mine whether to recognize a Bivens action improperly combines two problematic features. The first is the courts’ conceptualization of the Bivens question as a choice between recognizing a Bivens action and leaving the plaintiff with no damages remedy at all. Because the reasons that led the courts to decline to recognize a Bivens action are reasons to preclude all judicial involvement in the cases, these courts clearly understood the choice before them as “Bivens or nothing.” The second problematic feature is the courts’ application of what the Arar court described as a “remarkably low” standard for declining to recognize a Bivens action. In the words of the Arar court, all that is necessary to justify a decision not to recognize a Bivens claim is that the court have reason to “pause.” Considered separately, these two features of the courts’ analysis are both highly problematic. When combined, they produce a wholly insupportable approach to the Bivens question.