Constitutional Torts and the War on Terror

281 Pages·2017·2.051 MB·English

by  James E. Pfander

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Constitutional Torts and the War on Terror
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Constitutional Torts and
the War on Terror
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James E. Pfander
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Constitutional Torts and the War on Terror. James E. Pfander
© James E. Pfander 2017. Published 2017 by Oxford University Press.
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Published in the United States of America by Oxford University Press
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© James E. Pfander 2017
First Edition published in 2017
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Library of Congress Cataloging- in- Publication Data
Names: Pfander, James E., author.
Title: Constitutional torts and the War on Terror / James E. Pfander.
Description: New York : Oxford University Press, [2017] | Includes
bibliographical references and index.
Identifiers: LCCN 2016028412 | ISBN 9780190495282 ((hardback) : alk. paper)
Subjects: LCSH: Government accountability—United States. | Constitutional torts—
United States. | Terrorism—Prevention—Law and legislation—United States. |
United States. Constitution. 4th Amendment. | Searches and seizures—
United States | Civil rights—United States.
Classification: LCC KF1306.C64 P43 2017 | DDC 342.7308/ 8—dc23 LC record
available at https://l ccn.loc.gov/2 016028412
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Printed by Edwards Brothers Malloy, United States of America
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To my parents, Bill and Margo,
to my children, Sarah, Samantha, and Benjamin,
and to Laurie, a person in her own right.
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CONTENTS
Acknowledgments xi
Introduction xiii
PART ONE: The Common Law Origins of Government Accountability
1. Government Accountability in the Nineteenth Century 3
1.1. The English Common Law Courts 4
1.2. Federal Courts in the Early Republic 6
1.3. Generalizing the Lessons of the Quasi- War 9
1.4. Immunity as a Legislative Concern 11
1.5. Indemnity for Military Invasions of Civilian Rights 13
1.6. Extraterritorial Application of U.S. Law 14
1.7. Conclusion 16
2. Bivens and Government Accountability in the Twentieth Century 19
2.1. Recognizing a Federal Right to Sue under Bivens 20
2.2. Post- Bivens Developments in Constitutional Tort Litigation 23
2.3. Bivens and the Doctrine of Qualified Immunity 25
2.4. Qualified Immunity and the Problem of Decisional
Sequencing 26
2.5. Conclusion 28
PART TWO: Evaluating Human Rights Litigation in War- on- Terror
Cases
3. Human Rights and War- on- Terror Litigation 31
3.1. The Legal Context of the Torture Memos 31
3.2. Rendition, Detention, and Interrogation 35
3.3. Litigating the War on Terror: Habeas Corpus and the Articulation
of Governing Norms 37
3.4. Litigating the War on Terror: Bivens and Avoidance 42
3.5. Bivens Litigation in the Lower Federal Courts 45
3.6. Conclusion 56
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4. Evaluating the Effectiveness of Bivens Litigation 57
4.1. R emedies for Individual Suitors and Government Compliance
with Law 57
4.2. Evaluating the Clarity of the Law 61
A. First Amendment Retaliation Claims 62
B. Military Detention of U.S. Citizens 63
C. Harsh Treatment of U.S. Citizens 64
D. Treatment of U.S. Citizens Abroad 66
E. Extraordinary Rendition 67
4.3. Human Rights Litigation in Comparative Perspective 69
A. European Court of Human Rights 69
B. The Israeli High Court of Justice 72
C. Courts of the United States in Prison Treatment Cases 73
D. Courts of the United States in Coerced Confession Cases 74
E. Courts of the United States in ATS and TVPA Cases 75
4.4. Conclusion 77
5. Evaluating Justifications for Judicial Silence 79
5.1. Judicial Deference and National Security 80
5.2. Bivens as a Foundation for War- on- Terror Claims 87
5.3. Judicial Silence as Remedial Equilibration 92
5.4. Law Compliance in the Executive Branch 94
5.5. Conclusion 98
PART THREE: Reviving the Bivens Action
6. Congressional Ratification of the Bivens Action 101
6.1. The 1974 Expansion of FTCA Remedies 101
6.2. The 1988 Westfall Act 102
6.3. The 1995 Prison Litigation Reform Act 105
6.4. Implementing the Convention Against Torture 107
6.5. The Detainee Treatment and Military Commission Acts 110
6.6. Constitutional Problems with the MCA’s Jurisdictional
Restrictions 112
6.7. Conclusion 119
7. Applying Bivens to Conduct Outside the United States 121
7.1. The Law of Extraterritoriality in the Nineteenth Century 122
7.2. Extraterritoriality Today 124
A. Framing the Inquiry 124
B. The Statutory Presumption 126
C. Extraterritorial Constitutionalism 131
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7.3. Extraterritoriality in the Context of Bivens Litigation 134
A. The Constitutional Predicate 134
B. The Crucial Role of the Bivens Action 137
C. The Bivens Suit in Action 139
7.4. Conclusion 143
8. Overcoming Qualified Immunity 145
8.1. Elements of an Immunity- Free Nominal Claim 146
8.2. Nominal Damages and Qualified Immunity 148
8.3. Addressing Predictable Concerns 152
8.4. Identifying Unexpected Benefits 154
8.5. Conclusion 156
9. Common- Law Solutions to Judge- Made Problems 159
9.1. Measuring Judicial Performance by the Clarity of the Law 160
9.2. Comparing the Performance of the Political Branches 162
9.3. Conclusion 164
Appendix: An Empirical Assessment of Bivens Claims (by Ross J. Corbett and
James E. Pfander) 167
Notes 181
Table 1. Success Rate Data 229
Table 2. Non-Prisoner Appeals Data 232
Bibliography 233
Table of Leading Authorities 239
Index 243