A Conversation with Professor James Pfander on ‘Constitutional Torts and the War on Terror’

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 rethink the manner in which they enforce constitutional rights protections.” Why is that solution preferable to additional legislation? And what would that shift in interpretation look like?

Law books abound with provisions that bar torture. We have constitutional guarantees of due process, prohibitions against cruel and unusual punishment, limits on coercive interrogation and punitive detention, requirements of prompt arraignment that bar kidnapping and disappearance, treaties that prohibit torture and cruel, inhuman and degrading treatment. In the context of domestic criminal process, courts routinely give effect to these assurances of fair and humane treatment. But in the war on terror, the courts have gone silent, using various doctrinal tools to dismiss claims, deny redress, and avert their gaze. Additional legislation, further prohibiting torture, cannot supply the judicial will needed to provide effective remedies.

To afford redress, and develop rules of law that will define the limits of permissible interrogation and detention, federal courts must find a way to address the merits of these claims, rather than dismissing them on national security grounds. How to do that? Obviously, the Supreme Court has to reframe its approach to Bivens litigation, accepting the suit for damages as a key element in a system of effective remedies. But perhaps more important, the Court has to understand its judicial duty as including civil redress for individuals whose rights have been violated. That’s no new thing; indeed, federal courts in the nineteenth century refused to consider issues of military policy and national security and only addressed the legality of government action. They did so, moreover, even where the claimants were foreign nationals injured outside the territory of the United States. In the past few decades, the Court has turned away from a narrow focus on the legality of government conduct to embrace a wide range of discretionary policy considerations that have resulted in a widespread refusal to adjudicate.

When researching and writing this book, did you learn anything surprising?

To me, the most surprising finding in the book was the wide gap between the hands-off attitude of today and the frank willingness of the federal courts in the nineteenth century to offer civil redress against officials of the government. In Little v. Barreme (1803), Chief Justice Marshall upheld an award of substantial damages against a U.S. naval captain who wrongly intercepted a boat operated by Danish nationals. In The Appollon (1824), Justice Joseph Story allowed a substantial damage award to stand against U.S. officials who seized a French vessel in the port of another country. Here’s Justice Story’s explanation:

“It may be fit and proper for the government . . . to act on a sudden emergency . . . by summary measures, which are not found in the text of the laws. Such measures are properly matters of state, and if the responsibility it taken, under justifiable circumstances, the Legislature will doubtless apply a proper indemnity. But this Court can only look to questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress.”

Story was making a straightforward argument, based on the proper function of each branch of the government. The executive must act in the heat of the moment; Congress can protect the officials in question by indemnifying them against any civil liability. But the courts must follow the law and afford a “suitable redress” to victims of illegal government action. Today, instead of following the law, the courts have been acting more like a policy-making legislature in attempting to excuse or justify executive branch actions.

President Trump claimed that “waterboarding works,” and has suggested his administration might roll back President Obama’s executive order forbidding interrogation techniques deemed to be torture by the Senate’s report. How should the Courts and lawyers (and Congress and the public) move forward during this administration? Where do you expect these issues to go over the next 4 years?

Unfortunately, President Trump appears to be misinformed about the efficacy of waterboarding. Happily, though, his Secretary of Defense, James Mattis, understands that interrogators will get further, in his words, with “cigarettes and a beer” than with harsh interrogation tactics. That was certainly the conclusion of the Senate Torture Report. President Trump has indicated that he may, at least initially, defer to Secretary Mattis.

President Trump’s comment does, however, highlight one of the serious problems associated with the hands-off attitude of the federal courts. The Court has never had occasion to declare waterboarding to be torture, even though it has been widely so described by a range of political figures. In the absence of a clear federal judicial decision to that effect, the law as currently constructed invites the executive branch to take aggressive action in the shadow of legal uncertainty. The failure to adjudicate leaves the law unsettled and creates space for a new round of rights abuses.

I worry most, looking forward, that the breakdown in trust between President Trump and our national security team could lead to a major terrorist attack. Then we will be forced to reckon with the humanitarian consequences of the attack and the likely executive branch response. President Trump has already positioned himself, in his response to the immigration ban litigation, to blame the federal courts for anything that happens. No one will win if a determined executive seeks to undermine the legitimacy of the federal courts.

Does your book shed light on any current controversies?

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa, a case that presents questions at the analytical center of the book. The case began when a border patrol agent of the United States shot and killed a young Mexican national standing on the Mexican side of the border. The young man’s family has sued the agent for damages, alleging a violation of the Fourth Amendment’s prohibition of unreasonable seizures. No other body of law, besides a Bivens action, provides any hope of redress or remediation. The Fifth Circuit, sitting en banc, nonetheless dismissed the case, citing uncertainty about the degree to which the U.S. Constitution applies to conduct across the border. My book explains why, in the absence of any conflicting or overlapping body of remedial law, the U.S. Constitution and Bivens apply, essentially as the only remedial option.

On January 18, 2017, the Court heard oral argument in a Bivens action coming up from the Second Circuit, in which Muslim men detained in New York in the wake of 9/11 seek damages for the government’s imposition of punitive conditions of confinement. In addition, a range of torture cases remain pending in the federal courts, including some that have been brought against the psychologists hired by the CIA to oversee the program. While litigation against private contractors differs from that against federal agents themselves, the cases may offer the federal courts an opportunity to clarify the law.

What is the biggest takeaway you hope readers will get?

It’s hard for the federal courts to enforce the rule of law against patriotic federal government officials who are acting to protect the country. The judges who serve in the federal judiciary are smart, hard-working and devoted to the public weal. They enjoy remarkable independence from political reprisals, but they fear for their country and recall the shock and despair and pain caused by the 9/11 attacks. I want readers to understand that the federal courts can be patriotic without deferring entirely to the executive branch’s claims of necessity. By adopting Justice Story’s narrow conception of the job, federal courts can pass on issues of legality, and leave the political branches free to act for the national good, within the bounds of the law.