My Thoughts on Al-Aulaqi and the Inversion of Bivens
Over at the ACSblog, I have a guest post up on Al-Aulaqi v. Panetta and Ben’s suspicion that the lawsuit will go the way of Arar, Lebron, Doe, and Rasul–with courts holding that there should be no Bivens cause of action to challenge national security policies. As my post argues, although Ben’s prediction may well be right, that would only further perpetuate a troubling misunderstanding of Bivens, one that would foreclose relief even in cases in which there were no state secrets, no qualified immunity defense, and no question that the subject-matter was judicially cognizable. Whether Aulaqi itself is such a suit is a separate question, but one that shouldn’t be folded into the availability vel non of Bivens…
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