Josh Gerstein at the Politico beat me to the punch with a point I have been meaning to make since looking at the Seventh Circuit's Vance decision yesterday: The viability of civil cases against former officials for allegations of detention and torture of U.S. citizens seems headed for the Supreme Court. Gerstein writes:
The Seventh Circuit decision . . . comes as two other appeals courts, the Ninth Circuit and the Fourth Circuit, face somewhat similar appeals involving an alleged terrorist held in military custody and allegedly tortured in the U.S.: Jose Padilla. A district court in California allowed a suit against former Justice Department lawyer John Yoo to proceed, but a judge in South Carolina rejected a similar suit against Rumsfeld and other officials.
Just last week, a district court in Washington State allowed a suit by another U.S.-citizen civilian who sued Rumsfeld claiming torture by U.S. forces in Iraq. How the full array of cases come out is hard to predict right now, but it seems certain that one or more of them will head to the Supreme Court.
This seems right to me. One can imagine that all three court of appeals will come down here on the site of allowing this type of suit to proceed, in which case the justices may well duck the issue. The far more likely possibility, however, is that the circuits will split, in which case we are likely to see a real showdown at the Supreme Court--one with a defendant named either Yoo or Rumsfeld.