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.