When a prisoner is tortured or otherwise abused in violation of his or her constitutional rights, that prisoner may sue the wrongdoer for money damages. If the abuse was done by a state or local official, § 1983 provides a statutory cause of action. Prisoners who are abused by federal officials may seek damages under Bivens, a federal common law doctrine that authorizes such a recovery even in the absence of explicit statutory authorization. This doctrine has been controversial since its inception in 1971 because it gives courts the power to create federal causes of action, a role typically thought to be exclusively reserved for Congress. Despite hesitancy by the Supreme Court to apply the doctrine in recent years, Bivens has yet to be overruled. Today, if an American citizen prisoner were tortured at the hands of a federal prison official, he or she could undoubtedly still seek damages under Bivens.
In Vance v. Rumsfeld, the Seventh Circuit considered such a claim, though it was no ordinary case of prisoner abuse. The plaintiffs, Donald Vance and Nathan Ertel, were not convicted criminals, but military detainees. The alleged abuse did not occur in a federal prison, but in a military facility near Baghdad in 2006 during the United States' occupation of Iraq. The named defendants included not only the soldiers who committed the abuse, but former Secretary of Defense Donald Rumsfeld for creating and condoning the policies that led to their injury.
Both the district court and a three-judge panel of the Seventh Circuit determined the claim could proceed under Bivens. However, the case was reheard en banc and dismissed in a sharply divided opinion. This Note argues that the Seventh Circuit's en banc reversal was incorrect in three respects: First, the decision improperly interprets Supreme Court Bivens precedent to preclude Vance and Ertel's claim. Second, the already existing doctrine of qualified immunity provides adequate shelter for government officials who execute their duties in good faith, which alleviates one of the majority's major concerns of subjecting the military chain of command to Bivens liability. Third, the majority was too willing to defer scrutiny to the executive branch as a matter of “national security,” abandoning the judiciary's historic role as protector of civil liberties in times war.
Another Glance at Vance: Examining the Seventh Circuit's About-Face on Bivens Immunity and the Military,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol8/iss2/4