From Volume 82, Number 5 (July 2009)
This Article deals with one of the most difficult questions arising out of the war on terror: what to do about the victims. How should the legal system respond to claims of collateral damage to constitutional rights when the government has tilted in favor of security at the expense of liberty? The war on terror has already put the American legal system to a severe test, exacerbated by the divide between those who see the problem as essentially one of preserving civil liberties and those who see it as one of preserving national security.
Increasingly, the system will have to grapple with suits by terrorism suspects who seek damages for the governmental conduct to which they have been subjected. The Supreme Court has already decided one such case; others are on their way. Apart from damages for the victims, these suits present the question of potential civil liability for federal officials, particularly those of the previous administration. Much of this litigation will be based on the Bivens doctrine, which permits damages actions for constitutional torts committed by federal officials. This Article contends that the Bivens doctrine exists in two forms: the Marbury-rights model and the prudential-deferential model. The former focuses on the plaintiff and points toward allowing the suit to proceed. The latter focuses on the subject matter and leads to emphasis on protecting the government. It is closely related to the political question doctrine and has prevailed since the 1980s.