James E. Pfander, Owen L. Coon Professor of Law at Northwestern University

The U.S. Senate's Torture Report, released in 2014, details human rights abuses committed by the Central Intelligence Agency in the war on terror. Yet, none of the many former prisoners who brought civil actions won a federal appellate court judgment upholding an award of compensation for violation of their rights.

A forthcoming book, Constitutional Torts and the War on Terror, to be published by Oxford University Press, argues that “existing laws against torture and against cruel, inhuman, or degrading treatment went missing during the war on terror and have not fully returned to active status” and “calls for a reinvigorated judicial role.” The author, James E. Pfander, will assess the justifications that various scholars and jurists have offered for the judicial failure to address the merits of torture claims. Although they vary in detail, the accounts share an emphasis on the need for deference to executive branch control of national security and intelligence matters. Professor Pfander will discuss the possibility of a properly limited inquiry into the treatment of detainees that focuses on the fact of the matter—the conditions of confinement and the modes of coercive interrogation—and puts aside most foreign policy and national security considerations as irrelevant to the question of legality. Because the prohibitions against torture and cruel and degrading treatment do not permit any national security exception, under this approach, courts need not consider the context in which abusive treatment occurs, but can focus instead on what was done to the prisoners and detainees.

Jim Pfander is the Owen L. Coon Professor of Law at Northwestern University’s Prtizker School of Law. His research focuses on federal jurisdiction and procedure, including the history and structure of the constitutional basis of the federal judiciary (Article III). He is an author of leading textbooks on civil procedure and federal courts as well as articles in the Harvard Law Review, the Yale Law Journal, and other prominent law reviews. A member of the American Law Institute, Pfander has serveed as reporter-consultant to the Federal-State Jurisdiction Committee of the Judicial Conference of the United States.