ABSTRACT :: This Article examines the role of civil suits in providing accountability for the Bush administration’s conduct of the “war on terror.” There have been calls for a “Truth and Reconciliation Commission” to perform this function, almost like a retroactive impeachment of President Bush. For now, the idea appears to be dead, especially since many of the policies have continued under President Obama. Increasingly, the default accountability mechanism for questioning government conduct is the array of civil suits against federal officials by self-proclaimed victims of the war, cases which might be referred to as reverse war on terror suits. Many of these suits are high profile, including Ashcroft v. Iqbal, Padilla v. Yoo, and Arar v. Ashcroft.
These suits often fail at the threshold. This Article examines the specific reasons for these failures-including the Bivens doctrine, qualified immunity, and the state secrets privilege-and explores their underlying causes. It identifies both a systemic hesitation to use the tort suit as a vehicle for questioning government policy and an enhanced hesitation when the policy involves national security, an area of high judicial deference to the government. In addition to these problems, the Article concludes that the suits, like the commission proposal, suffer from the same retributive motivation and premises. The legal climate that reverse war on terror suits face may become more receptive. Perhaps, however, the goal of accountability should be re-examined and sought through other means.
It has always been true that a real accounting of the Bush administration’s abuses is vital if Mr. Obama truly wants to repair them and try to prevent them from recurring. It is more important than ever now, when the Republican right is trying hard to turn the clock back to those dark times by painting Democrats as “soft on terror” during an election year.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital