By James E. Pfander
Constitutional Torts and the struggle on Terror examines the judicial reaction to human rights claims coming up from the Bush Administration's conflict on terror. regardless of common contract that the Administration's application of striking rendition, lengthy detention, and "enhanced" interrogation was once torture by way of one other identify, now not a unmarried federal appellate courtroom has proven an award of damages to the program's sufferers. The silence of the federal courts leaves sufferers with no redress and the constitutional limits on govt motion undefined.
Many of the matches looking redress were according to the landmark 1971 very best courtroom choice in Bivens v. Six Unknown Named brokers of the Federal Bureau of Narcotics. This e-book strains the historical past of universal legislations responsibility, the increase of Bivens claims, and the post-Bivens heritage of constitutional tort litigation. After comparing the failure of Bivens litigation coming up from the battle on terror, the e-book considers and rejects the arguments which were recommend to give an explanation for and justify judicial silence.
The ebook presents the very best courtroom with the instruments had to reconsider its Bivens jurisprudence. instead of treating the abroad nationwide safety context as disabling, glossy federal courts should still take a web page from the 19th century, presume the viability of tort litigation, and continue to the benefits. merely by way of doing so can the federal courts be sure redress for sufferers and stop destiny Administrations from utilizing torture as an device of reliable policy.
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Extra resources for Constitutional Torts and the War on Terror
After mildly observing that the parties during oral argument had addressed themselves to considerations more suitable for another department (Congress), Story made this remarkable statement: [T]his Court has a plain path of duty marked out for it, and that is, to administer the law as it finds it. We cannot enter into political considerations, on points of national policy, or the authority of the government to defend its own rights against the frauds meditated by foreigners against our revenue system, through the instrumentality and protection of a foreign sovereignty.
For a time, under Saucier v. Katz, courts confronting qualified immunity issues were obliged to reach the constitutional question, and only then to decide if the right in question was clearly enough established to overcome the official’s qualified immunity. Yet critics of Saucier argued that the mandatory approach gave rise to unnecessary decisions of constitutional law, some of which were novel and difficult, and could lead to an awkward posture when the government sought further review in the Supreme Court.
Notably, the Procunier decision introduces the idea that the immunity defense may depend on the clarity of the law the official allegedly violated. The Court completed its transformation of immunity law in Harlow v. 16 Apart from cutting itself loose from existing norms, the Court explicitly framed its new qualified immunity standard to encourage judicial protection of federal defendants. Under the old approach, disputes over immunity often necessitated a jury trial to resolve the subjective good faith of the officer as a matter of fact.
Constitutional Torts and the War on Terror by James E. Pfander