The Demise of Damages in Counterterrorism Cases
Via the New Republic's Security States blog, I have a new essay up on last week's Ninth Circuit decision in Hamad, and how it's part of the larger pattern of judicial hostility to damages suits in counterterrorism cases--not on the merits, but on an ever-increasing range of non-substantive g
Published by The Lawfare Institute
in Cooperation With
Via the New Republic's Security States blog, I have a new essay up on last week's Ninth Circuit decision in Hamad, and how it's part of the larger pattern of judicial hostility to damages suits in counterterrorism cases--not on the merits, but on an ever-increasing range of non-substantive grounds. As I argue, we need to appreciate the extent to which the accountability gap that results from these decisions are not just problematic from the perspective of the plaintiffs in these cases, but also for the government, "which can’t know for sure whether the lack of a judicial decision on the merits has actually validated the challenged policy, or has merely left the issue unresolved going forward."
As we continue to have conversations about reforming counterterrorism policies from surveillance to targeted killing, we should keep in mind the important role that damages suits can and should play in both providing a check on the government and in providing firmer legal footing for otherwise valid government operations in the future.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
