Are Damages Different? Bivens and National Security

Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, especially habeas, that have dramatically impacted post-9/11 national security policies, and federal courts, particularly the Supreme Court are increasingly willing to rule against the executive in cases concerning justiciability and judicial power.To date, the limitations on Bivens have been subject to nearly universal criticism. In contrast, this paper sympathetically explores why the courts have taken this apparently paradoxical approach to litigation concerning alleged official wrongdoing in the national security and foreign affairs contexts. Two long-term trends, not unique to national security and foreign affairs cases, help explain why damages are so disfavored. First, the increasing role that judicial supremacy plays in the Court’s self-conception means that law declaring in published opinions is often seen as an adequate substitute for individualized dispute resolution and redress. Second, and related, Congress’s and the Court’s preferred legal method for holding the executive accountable to the law has shifted from tort suits tried to juries to coercive remedies deployed by judges. Congress’s Administrative Procedure Act and the Court’s development of official immunity as a bar to many damages suits are some of the most visible examples of this. There are also reasons for disfavoring damages that are largely unique to national security and foreign relations contexts. If offensive suits seeking damages were routinely available in these kinds of cases, there would likely be unique discovery burdens and complications; a greatly expanded pool of potential plaintiffs and hence many more suits filed than at present; less ability for the executive to moot disruptive litigation; and, in this expanded number of lawsuits, difficult and consequential decisions about whether to extend robust constitutional protections developed for domestic, peacetime contexts to the very different worlds of military, intelligence and other security activities. Though the empirical basis for this judgment is disputed, the Court is convinced that damages suits cause “over-deterrence” — and seems particularly concerned about this in foreign affairs and national security contexts where the executive’s flexibility, vigor and decisiveness are thought most desirable. In addition, the Court might be reluctant to allow Bivens suits in national security and foreign affairs cases because there is an increasing array of other mechanisms, including many non-judicial ones, to ensure executive compliance with the law, making the costs of Bivens suits perhaps seem unjustifiably high. Taken together, these factors help explain why the Court’s modern assertiveness is expressed primarily in suits seeking coercive rather than money damages remedies. The apparently categorical bar on Bivens in national security and foreign affairs contexts has real costs, as redress and compensation for wronged individuals and, arguably, deterrence of executive lawbreaking, are both sacrificed. This paper concludes by suggesting that an administrative compensation scheme could allow wronged individuals to receive some redress while avoiding many of the complications of Bivens suit