Dave Hoffman notes that the Justice Department has filed an interesting amicus brief in Padilla v. Yoo arguing against the availabiltiy of a Bivens action in the national security context. Here’s a brief excerpt:
The threshold question presented by this case is whether a court should recognize a federal common-law damage action addressing the decisionmaking process within the Executive Branch about whether the military should detain and how it should treat those deemed to be enemies during an armed conflict. As we explain below, this context, which directly implicates war powers and matters of national security, presents compelling “special factors” that strongly counsel against judicial creation of such a money-damage remedy, in the absence of congressional action. The Supreme Court and the courts of appeals have consistently refused to extend Bivens remedies to new contexts. Where there are special considerations or sensitivities raised by a particular context, the courts recognize that it is appropriate for the courts to defer to Congress and wait for it to enact a private damage action if it so chooses. That course is clearly appropriate here.
For what it’s worth, I think this argument would likely appeal to a majority of justices on the current Supreme Court — should the case get that far. This is not a court eager to expand the scope of existing judicial remedies without an express legislative mandate.