US Torture as a Tort? Expanding Remedies for Victims Commentary
US Torture as a Tort? Expanding Remedies for Victims
Edited by: Jeremiah Lee

JURIST Guest Columnist Richard Seamon of the University of Idaho School of Law says that in light of ever-increasing evidence of detainee abuse by US personnel or parties acting with the approval or complicity of the United States, Congress should change federal law to create a civil remedy for victims of US-sanctioned torture…

Newly publicized photos from Abu Ghraib prison and the ongoing court-martials of some of the soldiers who served there remind us of the uncomfortable truth that the United States has tortured people detained in the war on terrorism. Although Congress banned torture late last year, the ban is an empty gesture without ways to enforce it. One way is through civil suits for damages. Current law provides almost no support for such suits, however, as a recent federal court case shows. Congress should change the law to create a civil remedy for U.S.-sanctioned torture.

The recent case involved Maher Arar, a native of Syria whose parents immigrated to Canada when he was a teenager. U.S. officials arrested Mr. Arar in 2002, when he stopped in a U.S. airport on his way back to Canada from a vacation in Tunisia. After several days of interrogation, U.S. officials determined that Mr. Arar was a member of Al Qaeda. They arranged for him to be taken to Syria, despite his protests that he would be tortured there. For the first twelve days of his detention in Syria, Syrian officials interrogated him eighteen hours a day and beat him with two-inch-thick electrical cable. For ten more months, they kept him in a dark, rat-infested cell the size of a grave. Then Syria released him without filing any charges.

Mr. Arar sued John Ashcroft and other U.S. officials in a federal court. He alleged that he has not a terrorist and, as far as he knew, had no ties with terrorists. He alleged that U.S. officials sent him to Syria precisely so he could be tortured outside the U.S. He asserted claims under the Torture Victim Protection Act (TVPA) and the Due Process Clause of the Fifth Amendment.

In February, the federal district court for the Eastern District of New York (Judge David G. Trager) dismissed Mr. Arar's action. The court held that Mr. Arar failed to state a claim for which relief could be granted under the TVPA. Among other reasons for this failure, the court explained, was that the TVPA authorizes remedies only for torture conducted under color of foreign law, not torture conducted under color of U.S. law. Furthermore, Mr. Arar could not assert constitutional claims under the Bivens doctrine. Bivens relief was barred because of "the serious national-security and foreign policy issues at stake."

Judge Trager's decision is not necessarily incorrect, nor is it unusual. To the contrary, most suits in U.S. courts seeking civil remedies against the U.S. or its officials for U.S.-sanctioned torture will fail.

The barrier to claims against the United States is sovereign immunity. Congress has waived sovereign immunity from some tort claims in the Federal Tort Claims Act ("FTCA"). The FTCA has exceptions, however, that collectively will bar most civil suits for U.S.-sanctioned torture. FTCA exceptions bar claims for most intentional torts; for claims arising in a foreign country; for claims "arising out of combatant activities of the military or naval forces … during time of war"; and for claims based on the exercise of a "discretionary function."

The most viable basis for claims against the federal officials responsible for torture is the Bivens doctrine. Most Bivens claims, however, will founder on one or more of three grounds. First, people who are not U.S. citizens and who are tortured on foreign soil may have no constitutional right to be free from torture. Second, even if torture violates a person's constitutional rights, Bivens may not create a cause of action for that violation. As the court concluded in Mr. Arar's case, torture claims by suspected terrorists may present "special factors" — such as the danger of inserting the federal courts into foreign affairs matters traditionally reserved to the political branches of government – that would defeat a Bivens action. Finally, many officials sued for torture in Bivens actions might have qualified immunity because of the paucity of case law clearly establishing the unconstitutionality of the use of torture in the war on terrorism and high-level executive-branch actions seeming endorsing the torture, such as the Department of Justice's infamous "torture memo."

The near-total absence of remedies for U.S. sanctioned torture does not reflect a determination by Congress or the courts that remedies are unwarranted. Rather, it reflects that current law was not designed with U.S.-sanctioned torture in mind. Congress designed the FTCA to deal with the "garden variety torts" of federal employees, as the Supreme Court has observed. Thus, FTCA exceptions limiting government liability reflect Congress's determination that certain governmental interests outweigh the interest in providing civil remedies for everyday negligence. Congress may well — and should — make a different determination for U.S.-sanctioned torture.

Similarly, the law governing claims against federal officials is designed more for the rogue officer who deliberately violates someone's constitutional rights than for the reasonably competent, well-intentioned officer who violates constitutional rights in the course of "just following orders." The idea has been that the specter of tort liability in the latter situation could discourage officials from doing their duty. The government's interest in officials doing their duty might justify denying a remedy for an individual official's tort. But U.S.-sanctioned torture is more than just a garden-variety tort conducted by an individual officer (the "bad apple") who has gone astray. To the contrary, the torture has been systemic and approved at the highest levels of government.

The problem with current law is that it treats U.S.-sanctioned torture as a mere tort. Instead, it should be treated as a human rights and a civil rights violation. One way to move toward this treatment is through legislation that would make the U.S. and its officials liable for torture under the same circumstances as local governments and their officials would be under the civil rights statute, 42 U.S. Code Section 1983. Such legislation, though not ideal, might be politically feasible. It would put the U.S. and its officials on a similar footing with local governments and theirs — hardly an irrational result — using familiar and well developed (even if arguably flawed) legal standards.

Richard Seamon is a law professor at the University of Idaho College of Law

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