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Saturday, 12 March 2016

Federal Employees, Torts, and the Westfall Act of 1988...


You know how various "truthers" like to tell us that you can hold government employees personally responsible for committing unlawful acts in the line of duty?  Don't believe it.  The Westfall act if 1988, in effect, negates the Nuremberg Code which holds the individual responsible for carrying out illegal and immoral orders, giving them Federal immunity from prosecution.  Another little known fact is that Sheriff and Police forces have been Federalized in recent years and would, therefore, also be exempt.

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AN UNINTENDED DOUBLE STANDARD OF LIABILITY:  THE EFFECT OF THE WESTFALL ACT ON THE ALIEN TORT CLAIMS ACT
    by Karen Lin
In recent years, largely as a result of the war on terror and resulting abuses at Guantanamo and elsewhere, noncitizens have begun to file more suits against U.S. officials, alleging torture and other violations of the law of nations. Although such claims against foreign officials may succeed on these grounds pursuant to the Alien Tort Claims Act (ATCA), the Westfall Act bars these claims when made against U.S. officials. The Westfall Act provides absolute immunity to federal employees for torts committed in the scope of their employment. An examination of the history of the Westfall Act, however, demonstrates that the Act was only meant to immunize federal employees for garden variety, state law torts. Torts of the kind cognizable under the ATCA were not intended or even foreseen to fall within the ambit of the Westfall Act’s immunity. Rather, the current double standard of liability for international law violations is an unintended byproduct of unforeseeable developments in the law governing ATCA actions. This Note proposes a legislative amendment to the Westfall Act that creates an exception to the Act’s provision of immunity for cognizable violations of the law of nations in order to return the Westfall Act to its original intended scope.
 more here...
Columbia Law Review

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