A conversation with Professor James Pfander on 'Constitutional Torts and the War on Terror'

Northwestern Now: Summaries

In his new book, James E. Pfander, Owen L. Coon Professor of Law, examines the judicial response to human rights claims arising from the Bush Administration’s war on terror. Despite widespread agreement that the program of extraordinary rendition, prolonged detention, and “enhanced” interrogation was torture by another name, not a single federal appellate court has confirmed an award of damages to the program’s victims.
Constitutional Torts and the War on Terror (Oxford University Press, 2017) traces the history of common law accountability, the rise of claims based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the post-Bivens history of constitutional tort litigation, and what the Supreme Court could do to rethink its Bivens jurisprudence.
What inspired you to write this book?
I have long been interested in the history of the federal court system and the role of courts in ensuring government accountability. I’ve written about the use of the officer suit as a way to secure accountability in the face of government’s sovereign immunity claims and the historic practice of Congress in indemnifying officials held responsible for violations of individual rights. I’ve also written about the special role the Bivens action plays in our modern scheme of constitutional remedies. With that background, it seemed natural to ask—as I do in the book—why the federal courts have so far entirely failed to offer civil redress to those who were victimized by the Bush administration’s use of torture as an instrument of official policy in the war on terror.
You argue that despite current law seemingly prohibiting the extraordinary rendition and enhanced interrogation techniques used during the war on terror, the federal courts have not granted proper relief when hearing these cases. Instead of additional legislation, you argue the federal courts “should fundamentally ...

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