For more than two decades, the American way of war has been changing. The American military is relying more and more on independent contractors to complete its missions both domestically and abroad. The most dramatic, and public, use of contractors has been in the current wars in Iraq and Afghanistan.
In Vance v. Rumsfeld, the Seventh Circuit allowed a Bivens claim brought by two military contractors to proceed against Secretary of Defense Donald Rumsfeld. Although the initial opinion was vacated and the case will be reheard en banc, it is unclear which of the opposing conclusions reached by the court majority and dissent will soon become law. The Supreme Court has, in recent years, indicated a desire to limit Bivens to the precise circumstances of that case, and other circuits which have addressed similar questions to the one before the Seventh Circuit have precluded a Bivens remedy for violations of a constitutional right in a warzone.
This comment will argue that Congress is the proper forum for determining whether American citizens can bring Bivens actions against government officials for violations of a constitutional right in a warzone. Congress is better posed to answer the who, what, when, where, why, and how much of a private right of action for American citizens, and by answering those questions, it may open a Pandora's Box of claims, but it will do so only after careful deliberation and in accordance with democratic principles.
Big Boy Rules, or How I Learned to Stop Worrying and Love "Special Factors",
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol7/iss1/2