I was trying to formulate my mixed feelings about the Vance and Doe decisions when I received the following email from a Lawfare reader. It so totally represents my own uncertainty about the cases that I thought I would just pass it on and incorporate it all by reference:
On the one hand, there are some pretty carefully-thought-out legal arguments as to why the lawsuits should be dismissed: Extension of Bivens is not favored, interference with military decision-making, etc. On the other hand, I can’t escape the feeling that this is one of those issues where there is a narrow chain of legal reasoning, each step of which is perfectly reasonable, leading you to a conclusion that seems completely untenable, namely that an American citizen who was detained arbitrarily, held incommunicado and without access to counsel for as long as 9 months, tortured, and then released without charges has no remedy. But I equally can’t escape the feeling that this is a case that is not about damages for a wronged individual but about exposing and relitigating the policies of the last administration–a feeling that is reinforced by the fact that based on the opinions it seems that the complaints in the two cases were largely identical in substantial portion.