Monday, March 27, 2006
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. . . .
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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.