Since its inception, the Supreme Court has largely orphaned the Bivens doctrine, a child of its own jurisprudence. In doing so, the Court has repeatedly invoked dicta from the Bivens case warning that unspecified “special factors counseling hesitation” could preclude judicial recognition of future constitutional remedies. Picking up on this thread, lower courts have notably limited the justiciability of Bivens claims in cases challenging counterterrorism-related government conduct. This so-called “national security exception” to the Bivens doctrine has created a substantial hurdle to individual justice and government transparency.
This Note therefore proposes the creation of an Article I administrative court with jurisdiction over post-deprivation constitutional claims in national security cases. Part II traces the evolution of the Bivens doctrine and the national security exception; Part III discusses how the lack of a viable judicial remedy has created a critical accountability gap; and Part IV describes the proposed structure and responsibilities of this new tribunal.
Alexander S. Zbrozek,
Square Pegs and Round Holes: Moving Beyond Bivens in National Security Cases,
Colum. J. L. & Soc. Probs.
Available at: https://scholarship.law.columbia.edu/national_security_law/1