Constitutional Torts and the War on Terror

Hardcover | February 1, 2017

byJames E. Pfander

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Constitutional Torts and the War on Terror 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" interrogationwas torture by another name, 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. This book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutionaltort litigation. After evaluating the failure of Bivens litigation arising from the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence.The book provides the Supreme Court with the tools needed to rethink its Bivens jurisprudence. 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 tort litigation, and proceed to themerits. 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.

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Constitutional Torts and the War on Terror 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" interrogationwas torture by another name, not a single fede...

James E. Pfander, the Owen L. Coon Professor of Law at the Northwestern Pritzker School of Law, teaches civil procedure, conflicts of law, federal jurisdiction, and constitutional law. A member of the American Law Institute, Pfander has served as chair of the procedure and jurisdiction sections of the Association of American Law School...

other books by James E. Pfander

Format:HardcoverDimensions:288 pages, 9.25 × 6.12 × 0.98 inPublished:February 1, 2017Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0190495286

ISBN - 13:9780190495282

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"Not a single U.S. official who participated in torture in the wake of 9/11 has been held accountable for his actions; many victims have sued, but not a single one has received compensation. James Pfander offers a bracing account of judicial abdication in the face of brutal illegality, and acogent and persuasive argument for the resurrection of the judiciary's role in holding government wrongdoers accountable for unconstitutional national security initiatives in the future." --David Cole, Professor, Georgetown University Law Center