Now that the United States has used torture in the war on terrorism and the victims of this torture have begun to sue, it is useful to analyze the potential liability of the United States and its officials for torture under current domestic law. This Article conducts that analysis, and, based on it, assesses the adequacy of current law. The Article concludes that the United States and its officials have no more than minimal liability for torture under current law. The Article also concludes that current law is inadequate. It is inadequate because it is based on considerations of when the government should be liable for mere torts, and official torture is far removed from ordinary torts. The Article argues that, instead of being treated like a tort, torture should be treated like a civil rights and a human rights violation. Specifically, the United States should be liable for torture under at least the same circumstances as units of local government would be under the civil rights statute, 42 U.S.C. § 1983; and U.S. officials should be liable for torture under at least the same circumstances as state and local officials would be under § 1983, or as foreign officials would be under the Torture Victim Protection Act of 1991.
37 Rutgers L.J. 715 (2006)