IS TORTURE ALL IN A DAY’S WORK? SCOPE OF EMPLOYMENT, THE ABSOLUTE IMMUNITY DOCTRINE, AND HUMAN RIGHTS LITIGATION AGAINST U.S. FEDERAL OFFICIALS

U.S. federal courts have held as a matter of law that torture is within the “scope of employment” of federal officials. Under the current absolute immunity doctrine, such a determination results in the automatic substitution of the United States as defendant. Since the United States is immune from torture liability because of sovereign immunity and various exceptions to the Federal Tort Claims Act (FTCA), victims of torture by U.S. officials are left without a remedy. The law currently used to make the scope of employment determination is state respondent superior law. This Article argues that federal common law should be used when the torts at issue are violations of international law, especially jus cogens norms, because state law should not be used to decide matters involving international law and because, where possible, U.S. statutes should always be interpreted to be consistent with international law. View More