The Law: No Relief in Sight: Barring Bivens Claims in Torture Cases


  • AUTHOR'S NOTE: I would like to thank Lou Fisher and Steve Vladeck for comments on a previous draft of this article; Professor Ilias Kouskouvelis and the faculty and staff of the Department of International and European Studies at the University of Macedonia in Thessaloniki, Greece, for providing a collegial environment to develop this article; and the Fulbright Foundation for its financial support while working on this article and the larger accountability project.


Generally, the appropriate private cause of action against officials who, under color of federal law, violate someone's constitutional rights is to seek damages in a Bivens lawsuit. When national security issues are involved, however, the federal courts regularly bar relief under Bivens. As the recent appellate decisions in Lebron v. Rumsfeld, Padilla v. Yoo, Doe v. Rumsfeld, and Vance v. Rumsfeld display, even when the rights violations involve torture and similar acts, which “shock the conscience,” there is no Bivens relief available to plaintiffs.