My review of James Pfander's 'Constitutional Torts and the War on Terror'

Balkinization is hosting a small symposium on James Pfander's new book, "Constitutional Torts and the War on Terror." Posted below is the description of the book, and then my contribution.

First, the book:

Constitutional Torts and the War on Terror examines the judicial response to human rights claims arising from the Bush Administration's war on terror. Despite widespread agreement that the Administration's 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. The silence of the federal courts leaves victims without redress and the constitutional limits on government action undefined.

Many of the suits seeking redress have been based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. This book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutional tort litigation. After evaluating the failure of Bivens litigation arising from the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence.

The book provides the Supreme Court with the tools needed to rethink its Bivens jurisprudence. Rather than treating the overseas national security context as disabling, modern federal courts should take a page from the nineteenth century, presume the viability of tort litigation, and proceed to the merits. Only by doing so can the federal courts ensure redress for victims and prevent future Administrations from using torture as an instrument of official policy.

And my post, titled "Beyond the War on Terror":

Federal courts today are not eager to enforce constitutional rights against individual government officials who are alleged to violate them. Indeed, federal courts frequently dismiss such claims on various technicalities without ever confronting the substance of the rights invoked. That is notably true in 21st-Century litigation over the war on terror, where federal courts have expressed skepticism (or more) about implied causes of action, extraterritorial constitutional rights, and the damages remedy.

But was it always thus, and must it be thus, should it be thus, today? Constitutional Torts and the War on Terror, by James Pfander, sets out to answer these questions. (To all three: "No.") Pfander frames the book by showing us that legal rights were originally enforced against government officials in a quite different way. Government action was assumed to be regulated by generally applicable law. Ordinary citizens could challenge the legality of that government action through ordinary suits at common law. And judges saw their primary duty as simply applying the law to the cases before them, leaving for lawmakers the task of indemnifying officials or changing the law where its consequences were undesirable.

This 19th-Century model of government legality may seem quaint, but it teaches important lessons today. Pfander argues that our constitutional tort regime fails to live up the structure or benefits of the old regime, and fails to justify its replacement. The common law has worked itself foul. Pfander may be right or wrong about the consequences, but I think his more important critique sounds in legal process: The federal courts might have you believe that today's limits on constitutional torts are the result of an admirable judicial restraint—a hesitation to step into domains where judges have no commission. But the restraints are of the judiciary's own devising, and thus in deep tension with the original judicial duty—to apply the law rather than make it.

I may be taking this point further than Pfander would, but I emphasize it because it amounts to my only real disagreement with the book—that it does not take the original model of government legality nearly far enough. Consider two points.

First, the problems with today's doctrines of constitutional torts are not limited to the war on terror. You don't need to look to Guantanamo Bay, extraordinary rendition, or the CIA torture report to see government lawlessness gone unchecked. Alas, unchecked constitutional violations happen every day on America's streets, as police officers exceed their discretion to search or to use force, against both the guilty and the innocent. Constantly expanding exceptions to both civil liability and the criminal exclusionary rule make those violations difficult to remedy. And beyond the police—schoolteachers, prosecutors, and nearly every government official is insulated from accountability by judicially-devised restraints unknown to the common law.

To see the full scope of this problem, we ought not limit our focus narrowly to the war on terror, but rather consider the broader sweep of constitutional remedies. Once upon a time, we had common-law and self-help remedies for government lawlessness. Then for a time, the judiciary oversaw the replacement of the original remedies with substitute remedies such as the Bivens action and the exclusionary rule. But in more recent years, the courts have begun to roll back the substitute remedies, yet without being willing to revive the original remedies. There are valid and hard questions about the role of common law evolution in constitutional remedies—to what extent should we return to the original remedies and to what extent should we accept sensible modern substitutes?—but we already have too few remedies and might be on a path to even fewer. That is a real problem. The war on terror cases that Pfander writes about are simply a symptom of that broader problem.

Of course it is true that the law proceeds by halves, and so we can reform one area of doctrine without meaning to approve of what happens in a related area. But if we must prioritize, I would put domestic lawlessness against ordinary U.S. citizens at the core, and some of the abuses of the war on terror closer to the periphery. A full accounting of the original law of the war on terror may also raise technicalities that Pfander does not address—such as the allegedly reciprocal relationship between "allegiance" and "protection" in 19th-Century legal theory.

Second, and more specifically, there is the problem of qualified immunity, a judge-made doctrine which insulates government officials from suits for damages unless they violated "clearly established law." While that formulation might seem somewhat innocuous, in practice it amounts to a super-duper rule of lenity protecting only government officials. Ambiguities in prior precedent are assumed in the officer's favor, and a plaintiff must point to a remarkably specific precedent already adjudicating the issue or a really egregious set of facts.

Pfander provides an intriguing reform, which is to hold qualified immunity inapplicable to claims for nominal damages. This would allow plaintiffs to achieve symbolic victories and establish law for future cases, without unduly burdening or deterring government officials who are sued.

But in my view, this is not enough. The fundamental problem with qualified immunity—or so I argue in a recent article—is that it is contrary to law, and has neither a statutory nor common-law warrant. (This argument also owes a debt to Pfander's historical approach.) But Pfander's nominal damages solution is less than half a solution to this problem. It exalts a secondary duty of the judiciary—to write judicial opinions that can be cited as precedent in future cases—while neglecting the more fundamental one to enforce the law in the case at hand.

At bottom, these divergences are not really about disagreement. Rather, they reflect the fact that Pfander is on to a theory of federal courts that is more consequential than even his own conclusions suggest. Pfander repeatedly notes that many issues in the war on terror are questions of ordinary law, appropriate to our ordinary procedures for vindicating legal rights. But the point also implies a reverse diagnosis: The problem with constitutional torts and the war on terror is really the broader problem of constitutional torts in our ordinary legal system.