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Unpublished Paper
TORTURE, AMERICAN STYLE: A RECIPE FOR CIVIL TORT IMMUNITY
ExpressO (2010)
  • Matthew J. Jowanna, The Law Offices of Matthew J. Jowanna, P.A.
Abstract

If someone is tortured, surely, at a minimum, an intentional tort has been committed against that person. This article specifically addresses the civil tort remedy, or lack thereof, for victims of torture at the hands of employees of the United States. In ratifying the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and in its subsequent reporting to the United Nations Committee Against Torture, the United States has consistently denounced torture and proclaimed itself to be a nation that provides for civil remedies against torturers. However, this article will draw attention to the hypocrisy and self-protection tactics of the United States when dealing with torturers employed by the United States, as opposed to foreign torturers. One of the key inequities addressed in this article is the current application of the Westfall Act codified, in part, in 28 U.S.C. § 2679.

This article begins with an examination of how the United States has allowed, and even promoted, the availability of civil tort remedies, in the courts of the United States, against foreign torturers. Next, a critical comparison is made in regard to the availability, or lack thereof, of civil tort remedies when the alleged torturer is an employee of the government of the United States. Particularly, this article will examine the Westfall Act and explain how this federal legislation, in combination with torture relevant exceptions to the Federal Tort Claims Act, can leave victims of torture, at the hands of employees of the United States, without any tort remedy at all – while victims of torture by foreign nationals are permitted to seek civil tort remedies in the courts of the United States.

This article then addresses two international human rights treaties ratified by the United States: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights. By and through these two treaties, the United States has obligations under international law to condemn torture and to provide victims of torture with adequate legal remedies for compensation. An examination of the reservations, understandings and declarations asserted by the United States when ratifying these treaties will be set forth along with an explanation of the effect these conditions have on treaty enforcement by torture victims. Next, this article addresses how the Westfall Act, in combination with torture relevant exclusions to the Federal Tort Claims Act, is violating the international treaty obligations of the United States. Finally, a recommendation is made to amend 28 U.S.C. § 2679 in order for the United States to comply with its obligations under international law by providing a domestic civil tort remedy to victims of torture by the United States.

Whether fully implemented in domestic law or not, the United States is obligated to respect the international treaties it ratifies. The Westfall Act and the exceptions to the FTCA currently deny victims of torture, American style, from an adequate civil tort remedy. Therefore, not only do the Westfall Act and the FTCA result in violations of the international treaty obligations of the United States, they also result in a miscarriage of justice that is clearly contrary to the represented intent of Congress. The end result is a purely self-protectionist, hypocritical position of the United States when compared to its position on civil tort liability for torturers from other countries.

Accordingly, it is time for Congress to fix the problem it has created. While House Representative Barney Frank has represented that it was never the intent of Congress to shield torturers from civil tort liability, the fact remains that Congress is obviously aware of the problem and, to date, has done nothing to remedy the situation. Therefore, Congress should amend the Westfall Act to allow civil tort suits against employees of the United States when the tortious conduct at issue is for torture and other jus cogens violations. Alternatively, the United States Senate and the State Department should withdraw the non-self-executing declarations in regard to the CCPR and the CAT so that torture victims could use the conventions as a legal source of rights not currently being properly provided by the national law – namely, the Westfall Act and the FTCA. An ideal situation would be for the United States to do both. A change is clearly necessary in order to finally burn the recipe for torture-related tort immunity.

Keywords
  • Filartiga,
  • Alien Tort Statute,
  • ATS,
  • Alien Tort Claim Act,
  • ATCA,
  • Torture Victim Protection Act,
  • Westfall,
  • Federal Tort Claims Act,
  • FTCA,
  • Convention Against Torture,
  • CAT,
  • Immunity
Disciplines
Publication Date
May 28, 2010
Citation Information
Matthew J. Jowanna. "TORTURE, AMERICAN STYLE: A RECIPE FOR CIVIL TORT IMMUNITY" ExpressO (2010)
Available at: http://works.bepress.com/matthew_jowanna/1/