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 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.