Understandably lost in this week's Supreme Court news was a somewhat surprising--and, in my view, welcome--dissent by Justice Thomas from the denial of certiorari in Lanus ex rel. Lanus v. United States. In his two-page dissent, Justice Thomas suggests that the Court should have granted cert.
Latest in Interrogation: Interrogation Abuses: Civil Liability
A while back, I posted about a forthcoming article by Carlos Vázquez (Georgetown) and me on the relationship between Bivens remedies and state law, especially in national security cases.
I received the following response from Richard Klingler to my ACSblog post on Monday re: the Al-Aulaqi suit and Bivens, and thought I'd post it in its entirety (below the fold) before replying (also below the fold):
Steve’s post arguing that courts should recognize Bivens actions seeking damages from military officials based on wartime operations, including the drone strikes at issue in al-Aulaqi v.
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.
Why have victims of alleged governmental misconduct arising out of post-September 11 counter-terrorism policies met with virtually no success thus far in pursuing damages claims arising out of the government’s claimed abuses? It can't be the lack of merit to the allegations; virtually all of these lawsuits are being jettisoned at the motion-to-dismiss stage, a point at which we're supposed to assume that the plaintiff's allegations are, in fact, true. Instead, as in the D.C.
Our friends over at Opinio Juris are hosting a neat online symposium discussion of Professor Laura Dickinson's book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs.
Whatever else one might say about Fourth Circuit Judge J. Harvie Wilkinson III, I think it's safe to describe him as one of the leading contemporary advocates of judicial restraint on the federal appellate bench. After all, it was the same noted conservative jurist who raised many eyebrows in 2009 when he attacked the conservative majority of the Supreme Court for its Second Amendment decision in Heller v.
I've blogged before about al-Shimari v. CACI International, and the larger question of whether state law tort claims may be brought against government contractors arising out of their support of military operations overseas--including their alleged complicity in torture and other prisoner abuse at Abu Ghraib and elsewhere.
The D.C. Circuit heard oral argument yesterday in Doe v. Rumsfeld (11-5209), a Bivens case brought by a U.S. citizen working as a military contractor in Iraq who alleged detention and interrogation abuses by the U.S. government. The case is similar to Lebron v. Rumsfeld and Vance v. Rumsfeld, two recent Bivens cases brought by U.S.-citizen plaintiffs.
Given Ben's report on the oral argument, today's fairly cryptic D.C. Circuit opinion in al-Zahrani v. Rodriguez, throwing out a damages suit arising out of the deaths of several inmates at Guantanamo, is hardly surprising.