BookTalk: Constitutional Torts and the War on Terror

August 7, 2017

by James E. Pfander, Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law

*If you would like to purchase a copy of Professor Pfander’s book, follow this link and use the code ALFLY5F for 20% off. 

Constitutional Torts and the War on Terror (Oxford University Press 2017) examines the judicial response to human rights claims arising from the Bush Administration’s war on terror. Despite widespread agreement that the Administration’s program of extraordinary rendition, prolonged detention, and “enhanced” interrogation was torture, not a single federal appellate court has confirmed an award of damages to the program’s victims. The silence of the federal courts leaves victims without redress and the constitutional limits on government action undefined.

Many of the suits seeking redress have been based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutional tort litigation. After evaluating the failure of Bivens lawsuits growing out of the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence.

In contrast to the Supreme Court’s recent decision in Ziglar v. Abassi (2017), which narrowly defines the right to sue under Bivens, the book shows that the Bivens action arose as the legal heir to nineteenth century trespass remedies for government wrongdoing. After intervening legislation eliminated the common law suit for damages, Bivens now offers the only practical means of holding federal officers accountable for actions that defy review through suits for injunctive, declaratory, and habeas relief. Rather than treating the overseas national security context as disabling, modern federal courts should take a page from the nineteenth century, presume the viability of overseas tort litigation, and proceed to the merits. Only by doing so can the federal courts ensure redress for victims and prevent future Administrations from using torture as an instrument of official policy.