(Pro)motion to dismiss? Constitutional tort litigation and threshold failure in the war on terror

Windsor, M. ORCID: https://orcid.org/0000-0002-5125-6431 (2012) (Pro)motion to dismiss? Constitutional tort litigation and threshold failure in the war on terror. British Journal of American Legal Studies, 1 (1). pp. 241-264. ISSN 2049-4092

Abstract/Summary

This article introduces the concept of threshold failure as a way of understanding the accountability vacuum in post 9/11 constitutional tort litigation, where victims of counterterrorism detention and interrogation policies in the United States have unsuccessfully sought civil remedies for torture against government officials. Doctrinal hurdles at the motion to dismiss stage are canvassed including the “special factors counseling hesitation” exception to the Bivens remedy and the “clearly established” tenet of the qualified immunity analysis. Judicial reliance on these threshold failure techniques preclude a consideration of the merits and thwart torture claimants in their efforts to seek redress. The article considers the litigation posture of government lawyers, public interest lawyers and federal court judges as a way of illuminating how the counterterrorism objectives of the executive have been accorded normative priority over the vindication of individual rights in the national security context.