37 Pages Posted: 29 Mar 2017
Date Written: March 28, 2017
This book explores the response of the federal courts to Bivens claims brought to secure remedies for torture and other human rights abuses that were committed in connection with the Bush Administration’s war on terror. It finds that such claims have been almost universally rejected, on one basis or another. Indeed, while some claims may have settled, no federal appellate court has confirmed an award of damages to a victim of torture. As a result, the constitutional limits on torture (if any) in the national security context remain undeveloped and victims have received no formal redress.
This book chronicles the failure of Bivens litigation, explores the justifications for judicial silence, and suggests a solution. It finds that the modern federal judiciary has pushed these suits aside as part of a stated reluctance to evaluate matters of national security policy as to which the political branches have greater expertise. Such a deferential approach represents a marked departure from a nineteenth-century approach to remedies for federal government wrongdoing. Back then, such leading jurists and statesmen as James Madison, John Marshall, and Joseph Story applied a narrow test of legality to claims of government wrongdoing. The executive was free to act in a moment of crisis, and could request indemnity from Congress. But as Justice Story explained, federal courts were to ignore proffered excuses based on claims of military necessity and national security: “the Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress.”
Federal courts can discharge their judicial duty and reclaim their law-saying function in war-on-terror litigation by adopting changes to current doctrine. The book argues that the Supreme Court should presume the right to sue under Bivens, in keeping with the lessons of the 1988 Westfall Act; it should eliminate the qualified immunity defense in cases in which the victim seeks only nominal damages; and it should recognize that the Constitution applies as a limit on government action taken outside the territorial boundaries of the United States. Two chapters of the book appear here: the Introduction and Chapter 5, responding to arguments against judicial intervention.
Keywords: war on terror, torture, human rights, Bivens actions, extraterritoriality, judicial review
JEL Classification: K10, K30
Suggested Citation: Suggested Citation
Pfander, James E., Constitutional Torts and the War on Terror (March 28, 2017). Northwestern Public Law Research Paper No. 17-07. Available at SSRN: https://ssrn.com/abstract=2942506