I've long been a huge fan of (Retired) Supreme Court Justice John Paul Stevens, not least because his prized possessions include a scorecard from Game 3 of the 1932 World Series--better known to baseball history as the "called shot" game--which he attended, in person, at the age of 12(!). It should therefore come as little surprise that I found a lot to admire and agree with in a speech he delivered yesterday here in Washington to the Lawyers for Civil Justice, which focused on Guantánamo.
The full text of the speech is available here. In a nutshell, though, Justice Stevens offered three primary observations: (1) the statutory ban on detainee transfers is deeply problematic ("more irrational than the detention of Japanese American citizens during World War II"); (2) the government should provide some kind of reparations to those detainees who have been deemed not to pose a security threat to the United States (as it eventually did for those Japanese Americans subjected to interment during World War II); and (3) one of the biggest obstacles to having courts provide (2) is the Supreme Court's "mistake" in Iqbal, which rejected respondeat superior liability for Bivens claims--and thereby made it impossible to hold the government accountable for constitutional violations carried out by federal agents acting within the scope of their employment. As Justice Stevens argued, there are good reasons why individual senior government officers should not be personally liable for such scope-of-employment misconduct, especially in the national security sphere. But the government, writ large, should be.
I have, in various contexts (including prior Lawfare posts), made a similar argument: That Congress ought to enact an express cause of action for constitutional violations by federal officers, and, borrowing from the Westfall Act for non-constitutional torts, it should substitute the federal government as the proper defendant in any case in which the violation occurred in the course of the relevant federal officer's employment. Although I don't expect folks to listen to me, perhaps Justice Stevens's voice (like Babe Ruth's called shot) carries a bit further?