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Courts have since 9/11 struggled with legal issues arising in this novel context of enemy combatant detention, and Bivens damages have never been awarded against military officials for counter-terrorism measures, much less policy-making addressing enemy combatants. Whether judges should add a damages remedies to the “lawfare” arsenal of those who sue to change U.S. military policy is a significant--and entirely novel--issue.In footnote 4 of their reply brief, Padilla's ACLU counsel shoot back,
Defendants disparage as “lawfare” a United States citizen’s attempt to enforce constitutional prohibitions against arbitrary detention and torture. See Defs.’ Br. 15 n.1. But there is a pot and kettle problem here: as the complaint alleges, it was Defendants who enlisted unscrupulous lawyers to manipulate the law by crafting legal memoranda that would immunize them for conduct that had long been deemed criminal by the United States. JA-78–83 (3AC ¶¶ 46–54). Unlike Defendants’ unwarranted smearing of Plaintiffs’ counsel, Plaintiffs’ allegations must be accepted as true for purposes of this appeal.