Human Rights and War-on-Terror Litigation

This chapter offers a detailed overview of Bivens litigation that arose from the war on terror, including the suit brought by Jose Padilla to contest his detention as an unlawful combatant in the war on terror, those brought by Khaled el-Masri and Maher Arar to recover damages for their extraordinary rendition, and those brought to challenge the government’s use of enhanced interrogation techniques at Abu Ghraib. To date, not a single Bivens litigant has obtained an appellate judgment confirming an award of damages for torture in violation of the Constitution. The government’s winning streak in Bivens litigation contrasts with its more checkered record in defending Guantanamo Bay detention decisions in habeas corpus litigation. The contrast in the success of these two different forms of litigation tends to confirm the lawyer’s view that procedural form sometimes determines substance.