U.S. Torture as a Tort

Abstract

Now that the United States has used torture in the war on terrorism and the victims of this torture have begun to sue, it is useful to analyze the potential liability of the U.S. and its officials for torture under current domestic law. This article conducts that analysis, and, based on it, assesses the adequacy of current law. The article concludes that the U.S. and its officials have no more than minimal liability for torture under current law. The article also concludes that current law is inadequate. It is inadequate not only because it seldom produces a remedy for the victims of U.S. torture but also because it misconceives official torture as a tort. Official torture is a wrong committed collectively by governmental officials upon a class targeted for subjugation. In contrast, the paradigmatic tort is a private wrong committed by one individual against another. The article argues that, in lieu of the current tort-based regime, the U.S. and its officials should be liable for torture under at least the same circumstances as municipalities can be held liable for their officials' violation of federal rights under 42 U.S.C. Section 1983; and that U.S. officials should be liable for torture under at least the same circumstances as state and local officials are under Section 1983, or as foreign officials are under the Torture Victim Protection Act of 1991.