Constitutional torts and the war on terror

James E. Pfander*

*Corresponding author for this work

Research output: Book/ReportBook

17 Scopus citations


This book focuses on the judicial handling of constitutional tort claims arising from the war on terror, while examining the response of the federal courts to claims seeking redress for victims of human rights abuses committed during the Bush administration. To date, in over fifteen years of litigation not a single federal appellate court has confirmed an award of damages to victims of torture and cruel, inhuman, and degrading treatment. The silence of the federal courts leaves victims without redress and the constitutional limits on government accountability undefined. Litigation to secure an award of damages for constitutional violations committed by federal officials rests on the landmark 1971 Supreme Court decision in Bivens. But the assertion of tort-based claims against federal officers traces its origins to eighteenth century English common law. The book summarizes the history of common-law accountability, traces the rise of Bivens claims, surveys the post-Bivens history of constitutional tort litigation, and focuses on Bivens litigation arising out of the war on terror. After demonstrating that Bivens litigation has wholly failed in the war-on-terror context, the book considers and rejects the arguments for judicial deference that some have put forward to explain and justify this failure. The book argues that the Supreme Court must fundamentally rethink its Bivens jurisprudence. Rather than treating the national security context as a special reason for deferring to the executive, the modern Court should take a page from the nineteenth century, presume the viability of constitutional tort claims, and proceed to the merits.

Original languageEnglish (US)
PublisherOxford University Press
Number of pages234
ISBN (Electronic)9780190495282
StatePublished - Jan 1 2017


  • Constitutional tort litigation
  • Government accountability
  • Redress for victims
  • Supreme Court
  • Torture

ASJC Scopus subject areas

  • Social Sciences(all)


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