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 respondeat 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.

Though U.S. courts have led the world in human rights enforcement through civil litigation, such litigation against U.S. officials has been frustrated because of an amendment to the FTCA limiting civil claims that can be brought against U.S. officials in their individual capacities. “The Westfall Act” or “the Westfall Amendment” (so named after a Supreme Court decision it was intended to overturn legislatively) codified, and significantly broadened, the common law doctrine of absolute immunity, a doctrine giving federal officials immunity from common law torts committed when acting within the scope of their employment. As policy, absolute immunity is sometimes justified to enable federal officials to perform their duties fearlessly, without being inhibited by the threat of “vexatious” litigation. But since the Westfall Act thwarts even meritorious claims under international law against U.S. officials, irrespective of whether those claims are based on customary international law or on treaties, the Westfall Act is inconsistent with international law and results in a double standard whereby foreign officials may be held individually liable for torture and other human rights violations, but U.S. officials will not.

Under the pre-Westfall common law doctrine of absolute immunity, courts used federal common law to determine scope of employment. A major problem with the current Westfall doctrine is that courts have interpreted the Westfall Act as making state respondeat superior law the standard for deciding “scope of employment,” instead of federal common law. The use of such state law in the Westfall Act context derives from its incorporation of the FTCA. Use of state respondeat superior law to decide scope of employment of individual officials results in holdings that include within the scope of employment any wrong that grows out of a job-related activity – even if the act is forbidden by statute or patently illegal, even if it amounts to torture – because respondeat superior law generally interprets scope of employment liberally, in order to increase the victim’s chances of recovery. Under the common law used before the Westfall Act was enacted, the illegality of the acts alleged was highly relevant to the immunity determination. In contrast, under the Westfall Act, the illegality of the acts alleged is almost irrelevant, so long as they are carried out with intent to serve the master. This Article makes the case that the common law approach is preferable in general, but especially when the torts at issue are violations of international human rights norms.

Section I of the Article describes the mechanics of Westfall immunity and shows how it frustrates human rights claims against U.S. officials by nullifying the Alien Tort Claims Act (ATCA) and excluding rights guaranteed under international treaties. Section II presents an overview of the specific facts and holdings in recent cases raising torture claims against U.S. officials. Section III draws a roadmap of the evolution of the current immunity doctrine by looking at the interplay between the FTCA – a statute that enables plaintiffs to sue the United States directly when federal officials have committed torts while acting within the scope of employment, as determined by state respondeat superior law – and the common law immunity doctrine used to decide scope of employment when individual federal officials are sued in their individual capacity. The statutory immunity doctrine codified in the Westfall Act, as currently interpreted, is much broader than the common law absolute immunity doctrine for two reasons: first, because by incorporating the FTCA, the Westfall Act makes a suit against the United States the exclusive remedy when the tort has been committed within the scope of employment, and second, because courts have interpreted this exclusive remedy provision as incorporating state respondeat superior law along with the FTCA, even when the suit is initially filed against the individual official. Section IV examines civil human rights litigation against foreign officials, and shows that an ugly hypocrisy in jurisprudence now exists, as foreign officials who violate human rights norms are not infrequently held liable for their acts in U.S. courts, but U.S. officials are not. Section V makes the case that in the absence of congressional action, courts should return to using federal common law as a standard for determining scope of employment in cases involving suits filed initially against individual officials. This is necessary to protect individuals who have been injured by intentional torts generally, but it is also necessary to bring the immunity doctrine into compliance with international law and to provide a means of compensating victims of torture. Legislative amendments to the Westfall Act are also considered. Finally, Section VI examines the policy justifications for holding U.S. officials individually liable for torture.

The absolute immunity doctrine, as currently interpreted, makes it virtually impossible to hold U.S. officials individually liable for acts that they undertake in the course of duties found to be in some way to be “official,” even if those acts are war crimes or gross violations of international human rights laws. Under the broad respondeat superior doctrine used to interpret the Westfall Act, official acts will almost always be immunized. Of course, under international law torture is by definition an official act – under the Convention Against Torture (CAT), state action is an element of the offense of torture. The current Westfall regime, then, is inconsistent with international law, because the very element that is required to make an act “torture” is what under the current Westfall regime triggers absolute immunity.