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Constitutional Torts and the War on Terror (Hardcover)
Loot Price: R3,837
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Constitutional Torts and the War on Terror (Hardcover)
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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.
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