TY - BOOK
T1 - Constitutional torts and the war on terror
AU - Pfander, James E.
N1 - Publisher Copyright:
© James E. Pfander 2017.
PY - 2017/1/1
Y1 - 2017/1/1
N2 - 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.
AB - 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.
KW - Constitutional tort litigation
KW - Government accountability
KW - Redress for victims
KW - Supreme Court
KW - Torture
UR - http://www.scopus.com/inward/record.url?scp=85045901286&partnerID=8YFLogxK
UR - http://www.scopus.com/inward/citedby.url?scp=85045901286&partnerID=8YFLogxK
U2 - 10.1093/acprof:oso/9780190495282.001.0001
DO - 10.1093/acprof:oso/9780190495282.001.0001
M3 - Book
AN - SCOPUS:85045901286
BT - Constitutional torts and the war on terror
PB - Oxford University Press
ER -