Arar v. Ashcroft et al., No. 06-4216 (2d Cir. 2009)

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This opinion or order relates to an opinion or order originally issued on June 30, 2008.

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06-4216-cv Arar v. Ashcroft 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 In Banc Rehearing: December 9, 2008 Decided: November 2, 2009 Docket No. 06-4216-cv - - - - - - - - - - - - - - - - - - - - - -x MAHER ARAR, Plaintiff-Appellant, - v.JOHN ASHCROFT, Attorney General of the United States, LARRY D. THOMPSON, formerly Acting Deputy Attorney General, TOM RIDGE, Secretary of Homeland Security, J. SCOTT BLACKMAN, formerly Regional Director of the Regional Office of Immigration and Naturalization Services, PAULA CORRIGAN, Regional Director of Immigration and Customs Enforcement, EDWARD J. MCELROY, formerly District Director of Immigration and Naturalization Services for New York District, and now Customs Enforcement, ROBERT MUELLER, Director of the Federal Bureau of Investigation, John Doe 1-10, Federal Bureau of Investigation and/or Immigration and Naturalization Service Agents, and JAMES W. ZIGLAR, formerly Commissioner for Immigration and Naturalization Services, United States, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x JACOBS, Chief Judge, McLAUGHLIN,* CALABRESI,** CABRANES, POOLER, SACK,** SOTOMAYOR,*** PARKER,** RAGGI, WESLEY, HALL, and LIVINGSTON, Circuit Judges. KATZMANN, Circuit Judge, took no part in the consideration or decision of the case. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Before: 26 Court for the Eastern District of New York (Trager, J.) JACOBS, C.J., filed the majority opinion in which MCLAUGHLIN, CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON, JJ., joined. CALABRESI, J., filed a dissenting opinion in which POOLER, SACK, and PARKER, JJ., joined. POOLER, J., filed a dissenting opinion in which CALABRESI, SACK, and PARKER, JJ., joined. SACK, J., filed a dissenting opinion in which CALABRESI, POOLER, and PARKER, JJ., joined. PARKER, J., filed a dissenting opinion in which CALABRESI, POOLER, and SACK, JJ., joined. Appeal from a judgment of the United States District * Senior Circuit Judge McLaughlin was a member of the initial three-judge panel that heard this appeal and is therefore eligible to participate in in banc rehearing. See 28 U.S.C. § 46(c)(1). ** Senior Circuit Judges Calabresi, Sack, and Parker, who assumed senior status during the course of in banc proceedings, are entitled to participate pursuant to 28 U.S.C. § 46(c)(2). *** The Honorable Sonia Sotomayor, who was originally a member of the in banc panel and who participated in oral argument, was elevated to the Supreme Court on August 8, 2009. 2 1 dismissing Plaintiff-Appellant Maher Arar s complaint 2 against John Ashcroft, the Attorney General of the United 3 States; Tom Ridge, the Secretary of Homeland Security; 4 Robert Mueller, the Director of the Federal Bureau of 5 Investigation; and others. 6 2d 250 (E.D.N.Y. 2006). 7 while changing planes at Kennedy Airport in New York (based 8 on a warning from Canadian authorities that he was a member 9 of Al Qaeda), mistreated for twelve days while in United Arar v. Ashcroft, 414 F. Supp. Arar alleges that he was detained 10 States custody, and then removed to Syria via Jordan 11 pursuant to an inter-governmental understanding that he 12 would be detained and interrogated under torture by Syrian 13 officials. 14 Arar s complaint alleges violations of the Torture 15 Victim Protection Act ( TVPA ) and the Fifth Amendment. The 16 District Court dismissed the complaint. A 17 three-judge panel of this Court unanimously held that: (1) 18 the District Court had personal jurisdiction over Thompson, 19 Ashcroft, and Mueller; (2) Arar failed to state a claim 20 under the TVPA; and (3) Arar failed to establish subject 21 matter jurisdiction over his request for a declaratory 22 judgment. Id. at 287-88. Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). 3 A 1 majority of the panel also dismissed Arar s Bivens claims, 2 with one member of the panel dissenting. 3 rehearing, the panel opinion is vacated and the judgment of 4 the district court is affirmed. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Id. After in banc DAVID COLE (Maria Couri LaHood, Jules Lobel, Katherine Gallagher, on the brief), Center for Constitutional Rights, New York, NY; Joshua S. Sohn (on the brief), DLA Piper US LLP, New York, NY, for PlaintiffAppellant. JONATHAN F. COHN, Deputy Assistant Attorney General (Gregory G. Katsas, Assistant Attorney General; Benton J. Campbell, United States Attorney; Larry Lee Gregg, R. Joseph Sher, Dennis C. Barghaan, Assistant United States Attorneys; Mary Hampton Mason, Jeremy S. Brumbelow, U.S. Department of Justice, Civil Division, Torts Branch; Barbara L. Herwig, Robert M. Loeb, Michael Abate, U.S. Department of Justice, Civil Division, Appellate Staff, on the brief), for Defendant-Appellee John Ashcroft, the official capacity Defendants-Appellees, and the United States. JEREMY A. LAMKEN (John J. Cassidy, Jamie S. Kilberg, Paul J. Nathanson, on the brief), Baker Botts L.L.P., Washington D.C.; Stephen L. Braga (on the brief), Ropes & Gray L.L.P., 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Washington D.C., for Defendant-Appellee Larry D. Thompson. Robin L. Goldfaden, American Civil Liberties Union Foundation, Immigrants Rights Project, San Francisco, CA, for Amici Curiae American Civil Liberties Union and New York Civil Liberties Union in support of Plaintiff-Appellant. Burt Neuborne, New York, NY, for Amici Curiae Norman Dorsen, Helen Hershkoff, Frank Michelman, Burt Neuborne, and David L. Shapiro, in support of Plaintiff-Appellant. Michael B. De Leeuw, Dale E. Ho, Jonathan J. Smith, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, for Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in support of Plaintiff-Appellant. Sidney S. Rosdeitcher, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, for Amici Curiae Retired Federal Judges in support of PlaintiffAppellant. Nancy Morawetz, New York University School of Law, New York, NY, for Amici Curiae Law Professors in support of Plaintiff-Appellant. Alexander Yanos, Freshfields Bruckhaus Deringer US LLP, New York, NY, for Amicus Curiae 5 1 2 3 4 5 6 7 8 Redress Trust in support of Plaintiff-Appellant. DENNIS JACOBS, Chief Judge: Maher Arar appeals from a judgment of the United States 9 District Court for the Eastern District of New York (Trager, 10 J.) dismissing his complaint against the Attorney General of 11 the United States, the Secretary of Homeland Security, the 12 Director of the Federal Bureau of Investigation, and others, 13 including senior immigration officials. 14 he was detained while changing planes at Kennedy Airport in 15 New York (based on a warning from Canadian authorities that 16 he was a member of Al Qaeda), mistreated for twelve days 17 while in United States custody, and then removed to Syria 18 via Jordan pursuant to an inter-governmental understanding 19 that he would be detained and interrogated under torture by 20 Syrian officials. 21 Torture Victim Protection Act ( TVPA ) and of his Fifth 22 Amendment substantive due process rights arising from the 23 conditions of his detention in the United States, the denial 24 of his access to counsel and to the courts while in the 25 United States, and his detention and torture in Syria. 26 Arar alleges that The complaint alleges a violation of the The district court dismissed the complaint (with leave 6 1 to re-plead only as to the conditions of detention in the 2 United States and his access to counsel and the courts 3 during that period) and Arar timely appealed (without 4 undertaking to amend). 5 250 (E.D.N.Y. 2006). 6 unanimously held that: (1) the District Court had personal 7 jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar 8 failed to state a claim under the TVPA; and (3) Arar failed 9 to establish subject matter jurisdiction over his request Arar v. Ashcroft, 414 F. Supp. 2d A three-judge panel of this Court 10 for a declaratory judgment. 11 (2d Cir. 2008). 12 Arar s Bivens claims, with one member of the panel 13 dissenting. 14 banc. 15 Id. Arar v. Ashcroft, 532 F.3d 157 A majority of the panel also dismissed The Court voted to rehear the appeal in We now affirm. We have no trouble affirming the district court s 16 conclusions that Arar sufficiently alleged personal 17 jurisdiction over the defendants who challenged it, and that 18 Arar lacks standing to seek declaratory relief. 19 reach issues of qualified immunity or the state secrets 20 privilege. 21 position of the panel that Arar insufficiently pleaded that 22 the alleged conduct of United States officials was done We do not As to the TVPA, we agree with the unanimous 7 1 under color of foreign law. 2 court that Arar insufficiently pleaded his claim regarding 3 detention in the United States, a ruling that has been 4 reinforced by the subsequent authority of Bell Atlantic 5 Corp. v. Twombly, 550 U.S. 544, 570 (2007). 6 is therefore focused on whether Arar s claims for detention 7 and torture in Syria can be asserted under Bivens v. Six 8 Unknown Named Agents of Federal Bureau of Narcotics, 403 9 U.S. 388 (1971) ( Bivens ). 10 We agree with the district Our attention To decide the Bivens issue, we must determine whether 11 Arar s claims invoke Bivens in a new context; and, if so, 12 whether an alternative remedial scheme was available to 13 Arar, or whether (in the absence of affirmative action by 14 Congress) special factors counsel[] hesitation. 15 Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v. 16 Lucas, 462 U.S. 367, 378 (1983)). 17 extraordinary rendition is a context new to Bivens claims, 18 but avoids any categorical ruling on alternative remedies-- 19 because the dominant holding of this opinion is that, in the 20 context of extraordinary rendition, hesitation is warranted 21 by special factors. 22 rendition and its related usages are defined and discussed This opinion holds that We therefore affirm. 8 See (The term 1 in the margin.1 ) 1 The term rendition refers to the transfer of a fugitive from one state to another or from one country to another. See Black s Law Dictionary 1410 (9th ed. 2004) (defining rendition as [t]he return of a fugitive from one state to the state where the fugitive is accused or was convicted of a crime ); see also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 1.9(c) ( [I]nterstate rendition[ ] is specifically provided for in the United States Constitution. In order to implement the rendition clause, Congress enacted the Federal Rendition Act, which requires that the demanding state produce a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor. (footnotes omitted)). In the international context, extradition is a distinct form of rendition in which one [country] surrenders a person within its territorial jurisdiction to a requesting [country] via a formal legal process, typically established by treaty between the countries. Cong. Research Serv., Renditions: Constraints Imposed by Laws on Torture 1 (2009); see also 1 Oppenheim s International Law §§ 415-16 (9th ed. 1996). Although most international renditions occur under a formal extradition treaty, renditions also occur outside the scope of extradition treaties, often as a matter of international comity. See 1 Oppenheim, supra, § 416; Cong. Research Serv., supra, at 1; see also 18 U.S.C. § 3181(b) (permitting, in the exercise of comity, the surrender of persons, other than citizens, nationals, or permanent residents of the United States, who have committed crimes of violence against nationals of the United States in foreign countries without regard to the existence of any treaty of extradition with such foreign government ). The terms irregular rendition and extraordinary rendition have been used to refer to the extrajudicial transfer of a person from one [country] to another. Cong. Research Serv., supra, at 1; see also Black s Law Dictionary 1410 (9th ed. 2009) (defining extraordinary rendition as [t]he transfer, without formal charges, trial, or court approval, of a person suspected of being a terrorist or supporter of a terrorist group to a 9 1 Our ruling does not preclude judicial review and 2 oversight in this context. But if a civil remedy in damages 3 is to be created for harms suffered in the context of 4 extraordinary rendition, it must be created by Congress, foreign nation for imprisonment and interrogation on behalf of the transferring nation ). As we understand and use the term here, extraordinary rendition does not, by itself, imply that a subject of extraordinary rendition will be treated as Arar alleges he was treated during and after the rendition alleged in this action. The United States Department of State records that, between 1993 and 2001, rendition provided the means for obtaining custody of ten suspected terrorists and extradition applied to another four suspects. See U.S. Dep t of State, Patterns of Global Terrorism 2001, App. D: Extraditions and Renditions of Terrorists to the United States. Accordingly, the rendition of suspected terrorists outside the mechanisms established by extradition treaties-so-called extraordinary rendition--had been employed as a means of combating terrorists for nearly a decade prior to the events giving rise to this litigation. See John B. Bellinger III, Legal Adviser, U.S. Dep t of State, Letter to the Editor, Wall St. J., July 5, 2006, at A25 (discussing the renditions of suspected terrorists Ramzi Yousef and Mir Aimal Kansi to the United States and the rendition of Illich Ramirez Sanchez, also known as Carlos the Jackal, by French authorities from the Sudan to France, which was subsequently upheld by the European Commission on Human Rights ), reprinted in Digest of United States Practice in International Law 162-63 (Sally J. Cummings ed., 2006); see also Remarks of Condoleezza Rice, U.S. Sec y of State (Dec. 5, 2005) ( For decades, the United States and other countries have used renditions to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice. ), in Digest of United States Practice in International Law 100, 102 (Sally J. Cummings ed., 2005). 10 1 which alone has the institutional competence to set 2 parameters, delineate safe harbors, and specify relief. 3 Congress chooses to legislate on this subject, then judicial 4 review of such legislation would be available. If 5 6 7 8 [lines 5-13 intentionally left blank] 9 10 11 12 13 14 Applying our understanding of Supreme Court precedent, 15 we decline to create, on our own, a new cause of action 16 against officers and employees of the federal government. 17 Rather, we conclude that, when a case presents the 18 intractable special factors apparent here, see supra at 19 36-37, it is for the Executive in the first instance to 20 decide how to implement extraordinary rendition, and for the 21 elected members of Congress--and not for us as judges--to 22 decide whether an individual may seek compensation from 11 1 government officers and employees directly, or from the 2 government, for a constitutional violation. 3 past and present have reserved the right to employ 4 rendition, see David Johnston, U.S. Says Rendition to 5 Continue, but with More Oversight, N.Y. Times, Aug. 24, 6 2009, and not withstanding prolonged public debate, Congress 7 has not prohibited the practice, imposed limits on its use, 8 or created a cause of action for those who allege they have 9 suffered constitutional injury as a consequence. Administrations 10 I 11 12 13 Arar s complaint sets forth the following factual allegations. 14 Arar is a dual citizen of Syria, where he was born and 15 raised, and of Canada, to which his family immigrated when 16 he was 17. 17 While on vacation in Tunisia in September 2002, Arar 18 was called back to work in Montreal. 19 for stops in Zurich and New York. 20 His itinerary called Arar landed at Kennedy Airport around noon on September 21 26. Between planes, Arar presented his Canadian passport to 22 an immigration official who, after checking Arar s 12 1 credentials, asked Arar to wait nearby. About two hours 2 later, Arar was fingerprinted and his bags searched. 3 Between 4 p.m. and 9 p.m., Arar was interviewed by an agent 4 from the Federal Bureau of Investigation ( FBI ), who asked 5 (inter alia) about his relationships with certain 6 individuals who were suspected of terrorist ties. 7 admitted knowing at least one of them, but denied being a 8 member of a terrorist group. 9 Arar was questioned by an official from the Immigration and Arar Following the FBI interview, 10 Nationalization Service ( INS ) for three more hours; he 11 continued to deny terrorist affiliations. 12 Arar spent the night alone in a room at the airport. 13 The next morning (September 27) he was questioned by FBI 14 agents from approximately 9 a.m. until 2 p.m.; the agents 15 asked him about Osama Bin Laden, Iraq, Palestine, and other 16 things. 17 return voluntarily to Syria. 18 torture, and asked instead to go to Canada or Switzerland. 19 Later that evening, he was transferred to the Metropolitan 20 Detention Center ( MDC ) in Brooklyn, where he remained 21 until October 8. 22 That evening, Arar was given an opportunity to He refused, citing a fear of On October 1, the INS initiated removal proceedings, 13 1 and served Arar with a document stating that he was 2 inadmissible because he belonged to a terrorist 3 organization. 4 in Ottawa--his prior requests to place calls and speak to a 5 lawyer having been denied or ignored. 6 lawyer to represent him and contacted the Canadian Consulate 7 in New York. 8 9 Later that day, he called his mother-in-law His family retained a A Canadian consular official visited Arar on October 3. The next day, immigration officers asked Arar to designate 10 in writing the country to which he would want to be removed. 11 He designated Canada. 12 with his attorney. 13 was again questioned by INS officials. 14 Director in New York left a voicemail message on the office 15 phone of Arar s attorney that the interview would take 16 place, but the attorney did not receive the message in time 17 to attend. 18 days following, the attorney was given false information 19 about Arar s whereabouts. On the evening of October 5, Arar met The following evening, a Sunday, Arar The INS District Arar was told that she chose not to attend. In 20 On October 8, 2002, Arar learned that the INS had: (1) 21 ordered his removal to Syria, (2) made a (required) finding 22 that such removal would be consistent with Article 3 of the 14 1 Convention Against Torture ( CAT ), 2 and (3) barred him from 2 re-entering the United States for five years. 3 inadmissible to the United States on the basis of 8 U.S.C. 4 § 1182(a)(3)(B)(i)(V), which provides that any alien who is 5 a member of a terrorist organization is inadmissible to the 6 United States. 7 with a suspected terrorist and other (classified) 8 information. 9 INS Regional Director, made a determination that Arar was He was found The finding was based on Arar s association Thereafter, Defendant J. Scott Blackman, an 10 clearly and unequivocally a member of Al Qaeda and 11 inadmissible to the United States. 12 Inadmissibility, dated October 8, and signed by Defendant 13 Deputy Attorney General Larry Thompson, stated that Arar s 14 removal to Syria would be consistent with the CAT, 15 notwithstanding Arar s articulated fear of torture. 16 A Final Notice of Later that day, Arar was taken to New Jersey, whence he 2 Article 3 of the Convention Against Torture prohibits any state party to the Convention from expelling, returning or extraditing any person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture, and provides that the determination of whether such grounds exist [must take] into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. Tun v. INS, 445 F.3d 554, 566 (2d Cir. 2006) (internal quotation marks, brackets, and ellipsis omitted). 15 1 flew in a small jet to Washington, D.C., and then to Amman, 2 Jordan. 3 handed over to Jordanian authorities who treated him roughly 4 and then delivered him to the custody of Syrian officials, 5 who detained him at a Syrian Military Intelligence facility. 6 When he arrived in Amman on October 9, he was Arar was in Syria for a year, the first ten months in 7 an underground cell six feet by three, and seven feet high. 8 He was interrogated for twelve days on his arrival in Syria, 9 and in that period was beaten on his palms, hips, and lower 10 back with a two-inch-thick electric cable and with bare 11 hands. 12 to send him to Syria for the purpose of interrogation under 13 torture, and directed the interrogations from abroad by 14 providing Syria with Arar s dossier, dictating questions for 15 the Syrians to ask him, and receiving intelligence learned 16 from the interviews. 17 Arar alleges that United States officials conspired On October 20, 2002, Canadian Embassy officials 18 inquired of Syria as to Arar s whereabouts. 19 Syria confirmed to Canada that Arar was in its custody; that 20 same day, interrogation ceased. 21 however, receiving visits from Canadian consular officials. 22 On August 14, 2003, Arar defied his captors by telling 16 The next day, Arar remained in Syria, 1 the Canadians that he had been tortured and was confined to 2 a small underground cell. 3 confession that he had trained as a terrorist in 4 Afghanistan, Arar was moved to various locations. 5 October 5, 2003, Arar was released to the custody of a 6 Canadian embassy official in Damascus, and was flown to 7 Ottawa the next day. Five days later, after signing a On 8 II 9 10 On January 22, 2004, Arar filed a four-count complaint 11 in the Eastern District of New York seeking damages from 12 federal officials for harms suffered as a result of his 13 detention and confinement in the United States and his 14 detention and interrogation in Syria. 15 complaint seeks relief under the Torture Victim Protection 16 Act ( TVPA ), 28 U.S.C. § 1350 note (a)(1) (the TVPA 17 claim ). 18 Amendment for Arar's alleged torture in Syria (Count Two) 19 and his detention there (Count Three). 20 relief under the Fifth Amendment for Arar s detention in the 21 United States prior to his removal to Syria. 22 seeks a declaratory judgment that defendants conduct Count One of Arar's Counts Two and Three seek relief under the Fifth 17 Count Four seeks Arar also 1 violated his constitutional, civil, and human rights. 2 Defendants-Appellees moved to dismiss the complaint 3 pursuant to Federal Rule of Civil Procedure 12(b), 4 challenging personal jurisdiction over Defendants Ashcroft, 5 Thompson, and Mueller and challenging subject-matter 6 jurisdiction as to the claims alleging confinement and 7 torture in Syria on the ground that they arise from an order 8 of removal and are therefore subject to the jurisdictional 9 bar of the Immigration and Nationality Act (see infra Part 10 VI). 11 declaratory judgment. 12 It was also argued that Arar lacked standing to seek a On February 16, 2006, the district court dismissed 13 Counts One, Two, and Three with prejudice, and Count Four 14 without prejudice. 15 287-88 (E.D.N.Y. 2006). 16 that Arar lacked standing to bring a claim for declaratory 17 relief. 18 Arar v. Ashcroft, 414 F. Supp. 2d 250, The district court also concluded Id. at 258-59. Arar elected not to re-plead Count Four, and on August 19 17, 2006, the district court entered judgment dismissing all 20 of Arar s claims. 21 judge panel of this Court affirmed on June 30, 2008. 22 v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). Arar timely appealed. 18 A divided threeArar The Court voted 1 to rehear the case in banc, and oral argument was heard on 2 December 9, 2008. 3 4 III 5 We review de novo the district court s decision to 6 grant a motion to dismiss. In re NYSE Specialists Sec. 7 Litig., 503 F.3d 89, 95 (2d Cir. 2007). 8 accept as true the factual allegations of the complaint, and 9 construe all reasonable inferences that can be drawn from In so doing, we 10 the complaint in the light most favorable to the plaintiff. 11 Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); see also 12 Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009). 13 At the outset, we conclude (as the panel concluded 14 unanimously) that Arar: (1) sufficiently alleged personal 15 jurisdiction over the defendants, and (2) has no standing to 16 seek declaratory relief; in addition, because we dismiss the 17 action for the reasons set forth below, we need not (and do 18 not) reach the issues of qualified immunity or the state 19 secrets privilege. 20 This opinion owes a debt to the panel opinions. 21 22 19 IV 1 2 The TVPA creates a cause of action for damages against 3 any individual who, under actual or apparent authority, or 4 color of law, of any foreign nation . . . subjects an 5 individual to torture. 6 Count One of Arar s complaint alleges that the defendants 7 conspired with Jordanian and Syrian officials to have Arar 8 tortured in direct violation of the TVPA. 9 28 U.S.C. § 1350 note (a)(1). Any allegation arising under the TVPA requires a 10 demonstration that the defendants acted under color of 11 foreign law, or under its authority. 12 F.3d 232, 245 (2d Cir. 1995). 13 . color of law, courts are instructed to look . . . to 14 jurisprudence under 42 U.S.C. § 1983 . . . . 15 H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991) 16 reprinted in 1992 U.S.C.C.A.N. 84, 87). 17 [t]he traditional definition of acting under color of state 18 law requires that the defendant . . . have exercised power 19 possessed by virtue of state law and made possible only 20 because the wrongdoer is clothed with the authority of state 21 law. 22 United States v. Classic, 313 U.S. 299, 326 (1941)). Kadic v. Karadzic, 70 In construing the term[] . . Id. (citing Under section 1983, West v. Atkins, 487 U.S. 42, 49 (1988) (quoting 20 The 1 determination as to whether a non-state party acts under 2 color of state law requires an intensely fact-specific 3 judgment unaided by rigid criteria as to whether particular 4 conduct may be fairly attributed to the state. 5 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass n, 531 6 U.S. 288, 295 (2001). 7 a state officer may act under color of state law, see 8 Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154 9 (2d Cir. 2006); but since federal officials typically act 10 under color of federal law, they are rarely deemed to have 11 acted under color of state law. 12 Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997) 13 (emphasis in original). 14 See A federal officer who conspires with Strickland ex rel. Accordingly, to state a claim under the TVPA, Arar must 15 adequately allege that the defendants possessed power under 16 Syrian law, and that the offending actions (i.e., Arar s 17 removal to Syria and subsequent torture) derived from an 18 exercise of that power, or that defendants could not have 19 undertaken their culpable actions absent such power. 20 complaint contains no such allegation. 21 his allegation of conspiracy cures any deficiency under the 22 TVPA. The Arar has argued that But the conspiracy allegation is that United States 21 1 officials encouraged and facilitated the exercise of power 2 by Syrians in Syria, not that the United States officials 3 had or exercised power or authority under Syrian law. 4 defendants are alleged to have acted under color of federal, 5 not Syrian, law, and to have acted in accordance with 6 alleged federal policies and in pursuit of the aims of the 7 federal government in the international context. 8 it is alleged that the defendants encouraged or solicited 9 certain conduct by foreign officials. The At most, Such conduct is 10 insufficient to establish that the defendants were in some 11 way clothed with the authority of Syrian law or that their 12 conduct may otherwise be fairly attributable to Syria. 13 e.g., Harbury v. Hayden, 444 F. Supp. 2d 19, 42-43 (D.D.C. 14 2006), aff d on other grounds, 522 F.3d 413 (D.C. Cir. 15 2008). 16 panel and affirm the District Court s dismissal of the TVPA 17 claim.3 See, We therefore agree with the unanimous holding of the 3 Judge P OOLER relies on a line of section 1983 cases explaining when and how private conduct can constitute state action, and then reasons by analogy to deem the defendants conduct in this case to have arisen under foreign (Syrian) law. See Dissent of Judge Pooler at 8-9. Under this theory, Judge P OOLER would allow a person tortured abroad to sue an official of the United States government, who in the performance of her official duties, encourage[d], facilitat[ed], or solicit[ed] the mistreatment. Id. at 22 V 1 2 Count Four of the complaint alleges that the conditions 3 of confinement in the United States (prior to Arar s removal 4 to Syria), and the denial of access to courts during that 5 detention, violated Arar s substantive due process rights 6 under the Fifth Amendment. 7 this claim--without prejudice--as insufficiently pleaded, 8 and invited Arar to re-plead the claim in order to 9 articulate more precisely the judicial relief he was The District Court dismissed 10 denied and to name those defendants that were personally 11 involved in the alleged unconstitutional treatment. 12 414 F. Supp. 2d at 286, 287. 13 words) to stand on the allegations of his original 14 complaint. 15 Arar, Arar elected (in his counsel s On a motion to dismiss, courts require enough facts to 10. Notably, she cites no authority for this remarkable proposition, which would render a U.S. official an official of a foreign government when she deals with that foreign state on matters involving intelligence, military, and diplomatic affairs. At least one commentator has proposed a legislative amendment to bring the law into line with what Judge P OOLER thinks it is, or should be. See Richard Henry Seamon, U.S. Torture as a Tort, 37 Rutgers L.J. 715, 802, 804 (2006) ( Under current law, U.S. officials can seldom be held civilly liable for torture . . . . Congress could amend the TVPA to extend the cause of action to the victims of torture inflicted under color of federal law. ). 23 1 state a claim to relief that is plausible on its face. 2 Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 129 S. 3 Ct. 1937, 1949-50 (2009). 4 enough to raise a right to relief above the speculative 5 level . . . . 6 of conspiracy are insufficient; the plaintiff must provide 7 some factual basis supporting a meeting of the minds, such 8 that defendants entered into an agreement, express or tacit, 9 to achieve the unlawful end. Factual allegations must be Twombly, 550 U.S. at 555. Broad allegations Webb v. Goord, 340 F.3d 105, 10 110 (2d Cir. 2003) (internal quotation marks omitted) 11 (addressing conspiracy claims under 42 U.S.C. § 1985). 12 Furthermore, a plaintiff in a Bivens action is required to 13 allege facts indicating that the defendants were personally 14 involved in the claimed constitutional violation. 15 v. Blum, 643 F.2d 68, 85 (2d Cir. 1981); see also Thomas v. 16 Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). 17 See Ellis Arar alleges that Defendants --undifferentiated-- 18 denied Mr. Arar effective access to consular assistance, 19 the courts, his lawyers, and family members in order to 20 effectuate his removal to Syria. 21 any culpable action taken by any single defendant, and does 22 not allege the meeting of the minds that a plausible 24 But he fails to specify 1 conspiracy claim requires. 2 that his requests to make phone calls were ignored, and 3 that he was told that he was not entitled to a lawyer, but 4 he fails to link these denials to any defendant, named or 5 unnamed. 6 rejection of an opportunity to re-plead, we agree with the 7 District Court and the panel majority that this Count of the 8 complaint must be dismissed. 9 He alleges (in passive voice) Given this omission, and in view of Arar s We express no view as to the sufficiency of the 10 pleading otherwise, that is, whether the conduct alleged (if 11 plausibly attributable to defendants) would violate a 12 constitutionally protected interest.4 13 this claim may be deemed to be a Bivens-type action, it may 14 raise some of the special factors considered later in this 15 opinion. To the extent that 16 17 VI 18 Arar s remaining claims seek relief on the basis of 19 torture and detention in Syria, and are cast as violations 4 We need not, therefore, consider the panel s holding that Arar failed to establish that he possessed any entitlement to a pre-removal hearing or to the assistance of counsel. Arar, 532 F.3d at 187-88. 25 1 of substantive due process. 2 that the jurisdictional bar of the INA deprived the District 3 Court of subject-matter jurisdiction over these counts 4 because Arar s removal was conducted pursuant to a decision 5 that was at the discretion of the Attorney General. 6 At the outset, Defendants argue [A]ny policy toward aliens is vitally and intricately 7 interwoven with contemporaneous policies in regard to the 8 conduct of foreign relations, the war power, and the 9 maintenance of a republican form of government. Such 10 matters are so exclusively entrusted to the political 11 branches of government as to be largely immune from judicial 12 inquiry or interference. Harisiades v. Shaughnessy, 342 13 U.S. 580, 588-89 (1952). Accordingly, the INA requires an 14 alien to seek relief only through judicial review of a 15 removal order in the appropriate court of appeals; it 16 entirely forecloses judicial review of decisions of the 17 Attorney General or the Secretary of Homeland Security 18 specified by the INA to be within the discretion of those 19 officers. See 8 U.S.C. § 1252.5 5 8 U.S.C. § 1252(b)(9) provides that [j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States 26 1 However, the application of the INA s jurisdictional 2 bar is problematic in this case because the proceedings 3 under the INA are alleged to have been irregular in several 4 respects. 5 First, the complaint alleges that the government took 6 the following actions that impaired Arar s timely ability to 7 seek the judicial review normally afforded under the INA and 8 to receive any meaningful relief: denying his requests to 9 contact an attorney or his family; misleading his lawyer 10 (after one was retained for him) as to his location and 11 status, thereby frustrating any advocacy on his behalf; and 12 serving the removal order on Arar en route to Amman, when he 13 no longer had access to his attorney and could not make use . . . shall be available only in judicial review of a final order. Subsection 1252(a)(5), in turn, states that a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal. Finally, pursuant to § 1252 (a)(2)(B): [N]o court shall have jurisdiction to review . . . (ii) any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified . . . to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of [asylum]. 27 1 of the review process. 2 government undertook extraordinary rendition in clear 3 violation of the protections afforded aliens by the INA, 4 suggesting that the government itself might not have viewed 5 the INA as the real source of its removal authority in this 6 context. 7 do not circumvent a congressionally mandated remedial 8 scheme. 9 district courts could easily be evaded and thwarted. 10 The complaint also alleges that the However, mere allegations of obstruction generally Otherwise, limitations on the jurisdiction of the Second, although the INA governs the status of aliens 11 in transit at United States airports, and clearly has a role 12 in such circumstances, see 8 U.S.C. § 1182(d)(4)(C), this is 13 not a typical immigration case according to the complaint: 14 Arar took no step to enter or stay in this country; he was 15 changing planes to go elsewhere, repeatedly expressed his 16 desire to return to Canada, and was ticketed to Montreal. 17 Even though this case does not present the familiar fact 18 pattern of an alien trying to enter or remain in the United 19 States, our immigration laws apply with equal force to 20 aliens who seek admission to our country and to aliens whom 21 the government seeks to keep out of our country. 22 In short, it is not clear that the INA s judicial 28 1 review provisions govern circumstances of involuntary 2 rendition such as those alleged here. 3 take place in circumstances that in no way implicate United 4 States immigration laws, such as when a person is detained 5 abroad and rendered to some third country. 6 Indeed, rendition may Finally, even if the INA s jurisdictional bar is 7 surmounted and review not foreclosed, Arar has alleged 8 circumstances that would have prevented him from obtaining 9 review. If, as he alleges, he was served with the removal 10 order while he was already en route to Amman, the INA could 11 have afforded him no relief then (and can afford him no 12 affirmative relief at this time in this case). 13 In any event, we need not decide the vexed question of 14 whether the INA bar defeats jurisdiction of Arar s 15 substantive due process claims, because we conclude below 16 that the case must be dismissed at the threshold for other 17 reasons. 18 19 20 VII In Bivens v. Six Unknown Named Agents of Federal Bureau 21 of Narcotics, 403 U.S. 388 (1971), the Supreme Court 22 recognized for the first time an implied private action for 29 1 damages against federal officers alleged to have violated a 2 citizen s constitutional rights. Corr. Servs. Corp. v. 3 Malesko, 534 U.S. 61, 66 (2001). The plaintiff in Bivens 4 had been subjected to an unlawful, warrantless search which 5 resulted in his arrest. 6 Supreme Court allowed him to state a cause of action for 7 money damages directly under the Fourth Amendment, thereby 8 giving rise to a judicially-created remedy stemming directly 9 from the Constitution itself. 10 Bivens, 403 U.S. at 389-90. The Id. at 397. The purpose of the Bivens remedy is to deter 11 individual federal officers from committing constitutional 12 violations. 13 is brought against individuals, and any damages are payable 14 by the offending officers. 15 21 (1980). 16 that would serve that objective, the Supreme Court has 17 warned that the Bivens remedy is an extraordinary thing that 18 should rarely if ever be applied in new contexts. 19 Malesko, 534 U.S. at 69 (internal quotation marks omitted); 20 Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also 21 Dotson v. Griesa, 398 F.3d 156, 166 (2d Cir. 2005) ( Because 22 a Bivens action is a judicially created remedy . . . courts Malesko, 534 U.S. at 70. So a Bivens action Carlson v. Green, 446 U.S. 14, Notwithstanding the potential breadth of claims 30 See 1 proceed cautiously in extending such implied relief 2 . . . . ). 3 has extended it twice only: in the context of an employment 4 discrimination claim in violation of the Due Process Clause, 5 Davis v. Passman, 442 U.S. 228 (1979); and in the context of 6 an Eighth Amendment violation by prison officials, Carlson, 7 446 U.S. 14; see also Wilkie v. Robbins, 551 U.S. 537, 550 8 (2007) ( [I]n most instances we have found a Bivens remedy 9 unjustified. ); Malesko, 534 U.S. at 68 ( [W]e have In the 38 years since Bivens, the Supreme Court 10 consistently refused to extend Bivens liability to any new 11 context or new category of defendants. ). 12 1980, the Supreme Court has declined to extend the 13 Bivens remedy in any new direction at all. 14 rejected contexts are: violations of federal employees 15 First Amendment rights by their employers, Bush v. Lucas, 16 462 U.S. 367 (1983); harms suffered incident to military 17 service, United States v. Stanley, 483 U.S. 669 (1987); 18 Chappell v. Wallace, 462 U.S. 296 (1983); denials of Social 19 Security benefits, Schweiker, 487 U.S. at 412; claims 20 against federal agencies, FDIC v. Meyer, 510 U.S. 471 21 (1994); claims against private corporations operating under 22 federal contracts, Malesko, 534 U.S. 61 (2001); and claims 31 Since Carlson in Among the 1 of retaliation by federal officials against private 2 landowners, Wilkie, 551 U.S. at 562. 3 This case requires us to examine whether allowing this 4 Bivens action to proceed would extend Bivens to a new 5 context, and if so, whether such an extension is 6 advisable. 7 Context is not defined in the case law. At a 8 sufficiently high level of generality, any claim can be 9 analogized to some other claim for which a Bivens action is 10 afforded, just as at a sufficiently high level of 11 particularity, every case has points of distinction. 12 construe the word context as it is commonly used in law: 13 to reflect a potentially recurring scenario that has similar 14 legal and factual components. 15 We The context of this case is international rendition, 16 specifically, extraordinary rendition. 17 rendition is treated as a distinct phenomenon in 18 international law. 19 articles that affirmatively advocate the creation of a 20 remedy in cases like Arar s recognize extraordinary 21 rendition as the context. 22 Leaving the Invisible Universe: Why All Victims of See supra note 1. Extraordinary Indeed, law review See, e.g., Peter Johnston, Note, 32 1 Extraordinary Rendition Need a Cause of Action Against the 2 United States, 16 J.L. & Pol y 357, 363 (2007). 3 particularly, the context of extraordinary rendition in 4 Arar s case is the complicity or cooperation of United 5 States government officials in the delivery of a non-citizen 6 to a foreign country for torture (or with the expectation 7 that torture will take place). 8 court has previously afforded a Bivens remedy for 9 extraordinary rendition. 10 More This is a new context : no Once we have identified the context as new, we must 11 decide whether to recognize a Bivens remedy in that 12 environment of fact and law . 13 that this is a two-part inquiry. 14 whether to recognize a Bivens remedy in a new context, we 15 must consider: whether there is an alternative remedial 16 scheme available to the plaintiff; and whether special 17 factors counsel[] hesitation in creating a Bivens remedy. 18 Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at 378). The Supreme Court tells us In order to determine 19 VIII 20 21 22 There are several possible alternative remedial schemes here. Congress has established a substantial, 33 1 comprehensive, and intricate remedial scheme in the context 2 of immigration. 3 of removal, including review of the government s designation 4 of a particular destination country and many (albeit not 5 all) decisions of the Attorney General and the Secretary of 6 Homeland Security. 7 554 F.3d 335, 338 (2d Cir. 2009). 8 this general remedial scheme with specific guidance for 9 particular contexts by enacting (i) the Foreign Affairs 10 Reform and Restructuring Act of 1998 ( FARRA ), 8 U.S.C. 11 § 1231 note; see also 8 C.F.R. § 208.16(c); and (ii) the 12 TVPA, which, as already discussed, provides no remedy to 13 Arar. 14 review of the removal of aliens who (like Arar) are 15 removable for reasons related to national security. 16 U.S.C. § 1225(c). 17 various review mechanisms to account for perceived 18 difficulties and complications. 19 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302; Illegal 20 Immigration Reform and Immigrant Responsibility Act of 1996, 21 Pub. L. No. 104-208, div. C, 110 Stat. 3009-546. 22 of the complexity of the remedial scheme Congress has The INA provides for review of final orders See 8 U.S.C. § 1252; Mendis v. Filip, Congress has supplemented At the same time, Congress has expressly limited See 8 Congress has also regularly modified the 34 See, e.g., REAL ID Act of In light 1 created (and frequently amended), we would ordinarily draw a 2 strong inference that Congress intended the judiciary to 3 stay its hand and refrain from creating a Bivens action in 4 this context. 5 U.S. at 424-29; Bush, 462 U.S. at 388. 6 See Wilkie, 551 U.S. at 554; Schweiker, 487 We recognize, however, that any reliance on the INA as 7 an alternative remedial scheme presents difficulties for the 8 same reasons discussed in Part VI above. 9 that he was actively prevented from seeking any meaningful Arar has alleged 10 review and relief through the INA processes. 11 need not decide whether an alternative remedial scheme was 12 available because, even in the absence of an alternative 13 [remedial scheme], a Bivens remedy is a subject of judgment 14 . . . [in which] courts must . . . pay particular heed . . . 15 to any special factors counselling hesitation before 16 authorizing a new kind of federal litigation. 17 U.S. at 550 (internal quotation marks omitted).6 18 special factors are clearly present in the new context of 6 In the end, we Wilkie, 551 Such Accordingly, we have no occasion to consider the panel s conclusion that the review procedures set forth by the INA provide a convincing reason for us to resist recognizing a Bivens cause of action for Arar s claims. Arar, 532 F.3d at 180 (internal quotation marks and citation omitted). 35 1 this case, and they sternly counsel hesitation. 2 IX 3 4 When the Bivens cause of action was created in 1971, 5 the Supreme Court explained that such a remedy could be 6 afforded because that case involve[d] no special factors 7 counselling hesitation in the absence of affirmative action 8 by Congress. 9 limitation was expressly weighed by the Court in Davis, 442 Bivens, 403 U.S. at 396. This prudential 10 U.S. at 245-46, and Carlson, 446 U.S. at 18-19, and such 11 hesitation has defeated numerous Bivens initiatives, see, 12 e.g., Stanley, 483 U.S. at 683-84; Chappell, 462 U.S. at 13 304; Wilkie, 551 U.S. at 554-55; Dotson, 398 F.3d at 166-67. 14 Among the special factors that have counsel[ed] 15 hesitation and thereby foreclosed a Bivens remedy are: 16 military concerns, Stanley, 483 U.S. at 683-84; Chappell, 17 462 U.S. at 304; separation of powers, United States v. City 18 of Philadelphia, 644 F.2d 187, 200 (3d Cir. 1980); the 19 comprehensiveness of available statutory schemes, Dotson, 20 398 F.3d at 166; national security concerns, Beattie v. 21 Boeing Co., 43 F.3d 559, 563 (10th Cir. 1994); and foreign 22 policy considerations, United States v. Verdugo-Urquidez, 36 1 2 494 U.S. 259, 274 (1990). Two principles emerge from this review of case law: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ¢ Special factors is an embracing category, not easily defined; but it is limited in terms to factors that provoke hesitation. While special factors should be substantial enough to justify the absence of a damages remedy for a wrong, no account is taken of countervailing factors that might counsel alacrity or activism, and none has ever been cited by the Supreme Court as a reason for affording a Bivens remedy where it would not otherwise exist. ¢ The only relevant threshold--that a factor counsels hesitation --is remarkably low. It is at the opposite end of the continuum from the unflagging duty to exercise jurisdiction. Hesitation is a pause, not a full stop, or an abstention; and to counsel is not to require. Hesitation is counseled whenever thoughtful discretion would pause even to consider.7 With these principles in mind, we adduce, one by one, 26 special factors that bear upon the recognition of a Bivens 27 remedy for rendition. 28 X 29 30 Although this action is cast in terms of a claim for 7 Judge P OOLER labels these two principles dicta, see Dissent of Judge Pooler at 2, but they are not. They are integral to the holding in this in banc case, because we do not take account of countervailing factors and because we apply the standard we announce. 37 1 money damages against the defendants in their individual 2 capacities, it operates as a constitutional challenge to 3 policies promulgated by the executive. 4 of checks and balances provides means to consider allegedly 5 unconstitutional executive policy, but a private action for 6 money damages against individual policymakers is not one of 7 them. 8 pursuant to 42 U.S.C. § 1983, but it does not reach so far 9 as to create the federal counterpart to an action under Our federal system A Bivens action is sometimes analogized to an action 10 Monell v. Department of Social Services, 436 U.S. 658 11 (1978). 12 Bivens action can lie against policymakers because in the 13 context of extraordinary rendition, such an action would 14 have the natural tendency to affect diplomacy, foreign 15 policy, and the security of the nation, and that fact 16 counsels hesitation. Here, we need not decide categorically whether a Our holding need be no broader. 17 18 19 A. Security and Foreign Policy The Executive has practiced rendition since at least 20 1995. 21 Policy: The Impact on Transatlantic Relations: Joint Hearing 22 Before the Subcomm. on International Organizations, Human See Extraordinary Rendition in U.S. Counterterrorism 38 1 Rights, and Oversight and the Subcomm. on Europe of the H. 2 Comm. on Foreign Affairs, 110th Cong. 15 (2007) (statement 3 of Michael F. Scheuer, Former Chief, Bin Laden Unit, CIA). 4 Arar gives the mid-1990s as the date for the inception of 5 the policy under which he was sent to Syria for torture. 6 Pl. Maher Arar s Mem. of Law in Opp n to Defs. Invocation 7 of the State Secrets Privilege, Mar. 14, 2005, at 6. 8 seeking a damages remedy against senior officials who 9 implement such a policy is in critical respects a suit A suit 10 against the government as to which the government has not 11 waived sovereign immunity. 12 influences government policy, probes government secrets, 13 invades government interests, enmeshes government lawyers, 14 and thereby elicits government funds for settlement. 15 (Canada has already paid Arar $10 million. 8 ) 16 Such a suit unavoidably It is a substantial understatement to say that one must 17 hesitate before extending Bivens into such a context. 18 suit seeking a damages remedy against senior officials who 19 implement an extraordinary rendition policy would enmesh the 8 A See Press Release and Announcement, Stephen Harper, Prime Minister of Can. (Jan. 26, 2007),; Ottawa Reaches $10M Settlement with Arar, CBC News, Jan. 26, 2007, 39 1 courts ineluctably in an assessment of the validity and 2 rationale of that policy and its implementation in this 3 particular case, matters that directly affect significant 4 diplomatic and national security concerns. 5 the face of the complaint that Arar explicitly targets the 6 policy of extraordinary rendition; he cites the policy 7 twice in his complaint, and submits documents and media 8 reports concerning the practice. 9 without inquiry into the perceived need for the policy, the 10 threats to which it responds, the substance and sources of 11 the intelligence used to formulate it, and the propriety of 12 adopting specific responses to particular threats in light 13 of apparent geopolitical circumstances and our relations 14 with foreign countries. 15 It is clear from His claim cannot proceed The Supreme Court has expressly counseled that matters 16 touching upon foreign policy and national security fall 17 within an area of executive action in which courts have 18 long been hesitant to intrude absent congressional 19 authorization. 20 (emphasis added) (quoting Franklin v. Massachusetts, 505 21 U.S. 788, 819 (1992) (Stevens, J., concurring in part and 22 concurring in the judgment)). Lincoln v. Vigil, 508 U.S. 182, 192 (1993) It has recognized the 40 1 generally accepted view that foreign policy was the province 2 and responsibility of the Executive. . . . 3 Congress specifically has provided otherwise, courts 4 traditionally have been reluctant to intrude upon the 5 authority of the Executive in military and national security 6 affairs. 7 (1988) (emphasis added) (quoting Haig v. Agee, 453 U.S. 280, 8 293-94 (1981)). 9 counseled by: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Thus, unless Dep t of Navy v. Egan, 484 U.S. 518, 529-30 This hesita[tion] and reluctan[ce] is ¢ the constitutional separation of powers among the branches of government, see United States v. Curtiss-Wright Exp. Co., 299 U.S. 304, 32022 (1936) (noting the plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations and discussing the difficulties presented by congressional--let alone judicial--involvement in such affairs), and ¢ the limited institutional competence of the judiciary, see Boumediene v. Bush, 128 S. Ct. 2229, 2276-77 (2008) ( Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. ); see also Munaf v. Geren, 128 S. Ct. 2207, 2226 (2008) ( The Judiciary is not suited to [make] determinations [in the area of foreign affairs] that would . . . undermine the 41 1 2 3 4 5 6 7 8 9 Government s ability to speak with one voice in this area. In contrast, the political branches are well situated to consider sensitive foreign policy issues, such as whether there is a serious prospect of torture at the hands of any ally, and what to do about it if there is. (citation omitted)). True, courts can--with difficulty and resourcefulness-- 10 consider state secrets and even reexamine judgments made in 11 the foreign affairs context when they must, that is, when 12 there is an unflagging duty to exercise our jurisdiction. 13 Otherwise: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 [T]he special needs of foreign affairs must stay our hand in the creation of damage remedies against military and foreign policy officials for allegedly unconstitutional treatment of foreign subjects causing injury abroad. The foreign affairs implications of suits such as this cannot be ignored--their ability to produce what the Supreme Court has called in another context embarrassment of our government abroad through multifarious pronouncements by various departments on one question. Whether or not the present litigation is motivated by considerations of geopolitics rather than personal harm, we think that as a general matter the danger of foreign citizens using the courts in situations such as this to obstruct the foreign policy of our government is sufficiently acute that we must leave to Congress the judgment whether a damage remedy should exist. 33 Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 34 1985) (Scalia, J.) (quoting Baker v. Carr, 369 U.S. 186, 217 35 (1962)). Absent clear congressional authorization, the 42 1 judicial review of extraordinary rendition would offend the 2 separation of powers and inhibit this country s foreign 3 policy. 4 consequences would flow from innocent interference or from 5 deliberate manipulation. 6 hesitation in creating a new damages remedy that Congress 7 has not seen fit to authorize. It does not matter for our purposes whether such These concerns must counsel 8 9 10 B. Classified Information The extraordinary rendition context involves exchanges 11 among the ministries and agencies of foreign countries on 12 diplomatic, security, and intelligence issues. 13 sensitivities of such classified material are too obvious 14 to call for enlarged discussion. 15 at 529 (internal quotation marks omitted). 16 of these matters entails the risk that other countries will 17 become less willing to cooperate with the United States in 18 sharing intelligence resources to counter terrorism. 19 its core, as the panel opinion observed, this suit arises 20 from the Executive Branch s alleged determination that (a) 21 Arar was affiliated with Al Qaeda, and therefore a threat to 22 national security, and (b) his removal to Syria was 43 The Dep t of Navy, 484 U.S. Even the probing At 1 appropriate in light of U.S. diplomatic and national 2 security interests. 3 the basis for Arar s alleged designation as an Al Qaeda 4 member and his subsequent removal to Syria, the district 5 court would have to consider what was done by the national 6 security apparatus of at least three foreign countries, as 7 well as that of the United States. 8 government--which appears to have provided the intelligence 9 that United States officials were acting upon when they Arar, 532 F.3d at 181. To determine Indeed, the Canadian 10 detained Arar--paid Arar compensation for its role in the 11 events surrounding this lawsuit, but has also asserted the 12 need for Canada itself to maintain the confidentiality of 13 certain classified materials related to Arar s claims.9 14 15 C. Open Courts 16 Allegations of conspiracy among government agencies 17 that must often work in secret inevitably implicate a lot of 18 classified material that cannot be introduced into the 19 public record. 20 likely mean that some documents or information sought by Allowing Arar s claims to proceed would very 9 See Ottawa Trying to Hold Back Documents from Arar Inquiry, CBC News, Apr. 29, 2004, 44 1 Arar would be redacted, reviewed in camera, and otherwise 2 concealed from the public. 3 wrongdoing: in such matters, it is just as important to 4 conceal what has not been done. 5 measures would excite suspicion and speculation as to the 6 true nature and depth of the supposed conspiracy, and as to 7 the scope and depth of judicial oversight. 8 inquiry at oral argument as to whether classified materials 9 relating to Arar s claims could be made available for review Concealment does not bespeak Nevertheless, these Indeed, after an 10 in camera, Arar objected to the supplementation of the 11 record with material he could not see. 12 David Cole, Counsel for Maher Arar (Dec. 23, 2008). 13 pointing out that such materials are unnecessary to the 14 adjudication of a motion on the pleadings (where the 15 allegations of the complaint must be accepted as true), Arar 16 protested that any materials submitted ex parte and in 17 camera would not be subject to adversarial testing and that 18 consideration of such documents would be presumptively 19 unconstitutional since they would result in a decision on 20 the basis of secret information available to only one side 21 of the dispute. 22 See Letter from After The court s reliance on information that cannot be 45 1 introduced into the public record is likely to be a common 2 feature of any Bivens actions arising in the context of 3 alleged extraordinary rendition. 4 hesitation, given the strong preference in the Anglo- 5 American legal tradition for open court proceedings, a value 6 incorporated into modern First and Sixth Amendment law. 7 U.S. Const. amend. VI (guaranteeing the right to a public 8 trial (emphasis added)); Westmoreland v. Columbia Broad. 9 Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (noting that the This should provoke See 10 First Amendment secures a right of access to civil 11 proceedings ). 12 that where a proceeding has been concealed from public view 13 an unexpected outcome can cause a reaction that the system 14 at best has failed and at worst has been corrupted. 15 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 16 (1980). 17 by allowing people to observe proceedings. 18 People in an open society do not demand infallibility from 19 their institutions, but it is difficult for them to accept 20 what they are prohibited from observing. 21 especially true in the courts, where the guarantee of a 22 public trial has always been recognized as a safeguard The risk of limiting access, of course, is [T]he appearance of justice can best be provided 46 Id. at 572. Id. This is 1 against any attempt to employ our courts as instruments of 2 persecution. 3 subject to contemporaneous review in the forum of public 4 opinion is an effective restraint on possible abuse of 5 judicial power. 6 The knowledge that every criminal trial is In re Oliver, 333 U.S. 257, 270 (1948). Granted, there are circumstances in which a court may 7 close proceedings to which a public right of access 8 presumptively attaches. 9 45 (1984); United States v. Alcantara, 396 F.3d 189, 199-200 See Waller v. Georgia, 467 U.S. 39, 10 (2d Cir. 2005); United States v. Doe, 63 F.3d 121, 127-28 11 (2d Cir. 1995). 12 consider classified material are unavoidable in some 13 criminal prosecutions and in other cases where we have a 14 duty, imposed by Congress, to exercise jurisdiction. 15 this is not such a circumstance or such a case. 16 preference for open rather than clandestine court 17 proceedings is a special factor that counsels hesitation in 18 extending Bivens to the extraordinary rendition context. And the problems posed by the need to But The 19 20 XI 21 A government report states that this case involves 22 assurances received from other governments in connection 47 1 with the determination that Arar s removal to Syria would be 2 consistent with Article 3 of the CAT. 3 General, Dep t of Homeland Sec., (Unclassified) The Removal 4 of a Canadian Citizen to Syria 5, 22, 26-27 (2008).10 5 case is not unique in that respect. 6 extraordinary rendition are very likely to present serious 7 questions relating to private diplomatic assurances from 8 foreign countries received by federal officials, and this 9 feature of such claims opens the door to graymail. Office of Inspector This Cases in the context of 10 11 12 A. Assurances The regulations promulgated pursuant to the FARRA 13 explicitly authorize the removal of an alien to a foreign 14 country following receipt from that country of sufficiently 15 reliable assurances that the alien will not be tortured. 16 See 8 C.F.R. § 208.18(c). 17 into the extraordinary rendition context, resolution of 18 these actions will require us to determine whether any such Should we decide to extend Bivens 10 We take judicial notice of the existence of this unclassified report and the scope of its contents, including the limited discussion of assurances. Notice is taken only that the report alleges that assurances were received, not as to the truth of that allegation or the reliability of those assurances. 48 1 assurances were received from the country of rendition and 2 whether the relevant defendants relied upon them in good 3 faith in removing the alien at issue. 4 Any analysis of these questions would necessarily 5 involve us in an inquiry into the work of foreign 6 governments and several federal agencies, the nature of 7 certain classified information, and the extent of secret 8 diplomatic relationships. 9 existence and content of such assurances would potentially 10 embarrass our government through inadvertent or deliberate 11 disclosure of information harmful to our own and other 12 states.11 13 foreign relations to the political branches and the 14 decidedly limited experience and knowledge of the federal 15 judiciary regarding such matters, such an investigation 16 would also implicate grave concerns about the separation of 17 powers and our institutional competence. An investigation into the Given the general allocation of authority over 11 See, e.g., Kiyemba This risk is not necessarily abated by the undertakings of counsel. See, e.g., United States v. Sattar, 395 F. Supp. 2d 79 (S.D.N.Y. 2005) (denying attorney Lynne Stewart s motion for a judgment of acquittal following her conviction by a jury of, inter alia, conspiring to defraud the United States, conspiring to provide material support to carry out murder and kidnap in a foreign country, and making false statements). 49 1 v. Obama, 561 F.3d 509, 515 (D.C. Cir. 2009) ( [S]eparation 2 of powers principles . . . preclude the courts from second- 3 guessing the Executive s assessment of the likelihood a 4 detainee will be tortured by a foreign sovereign. ). 5 considerations strongly counsel hesitation in acknowledging 6 a Bivens remedy in this context. These 7 8 9 B. Graymail As emphasized above, Arar invokes Bivens to challenge 10 policies promulgated and pursued by the executive branch, 11 not simply isolated actions of individual federal employees. 12 Such an extension of Bivens is without precedent and 13 implicates questions of separation of powers as well as 14 sovereign immunity. 15 there is further reason to hesitate where, as in this case, 16 the challenged government policies are the subject of 17 classified communications: a possibility that such suits 18 will make the government vulnerable to graymail, i.e., 19 individual lawsuits brought to induce the [government] to 20 settle a case (or prevent its filing) out of fear that any 21 effort to litigate the action would reveal classified 22 information that may undermine ongoing covert operations, This, by itself, counsels hesitation; 50 1 or otherwise compromise foreign policy efforts. 2 Doe, 544 U.S. 1, 11 (2005). 3 or his lawyers; this dynamic inheres in any case where there 4 is a risk that a defendant might disclose classified 5 information in the course of a trial. 6 Pappas, 94 F.3d 795, 799 (2d Cir. 1996). 7 risk in cases (however few) which involve a claim like 8 Arar s. 9 Tenet v. We cast no aspersions on Arar, United States v. This is an endemic The risk of graymail is itself a special factor which 10 counsels hesitation in creating a Bivens remedy. There 11 would be hesitation enough in an ordinary graymail case, 12 i.e., where the tactic is employed against the government, 13 which can trade settlement cash (or the dismissal of 14 criminal charges) for secrecy. 15 Pappas, 94 F.3d at 799. 16 rendition case is uniquely troublesome. 17 protecting military, diplomatic, and intelligence secrets is 18 located (as always) in the government; yet a Bivens claim, 19 by definition, is never pleaded against the government. 20 See, e.g., Malesko, 534 U.S. at 70. 21 there is a dissociation between the holder of the non- 22 disclosure interest (the government, which cannot be sued See Tenet, 544 U.S. at 11; But the graymail risk in a Bivens 51 The interest in So in a Bivens case, 1 directly under Bivens) and the person with the incentive to 2 disclose (the defendant, who cannot waive, but will be 3 liable for any damages assessed). 4 Bivens plaintiff could in effect pressure the individual 5 defendants until the government cries uncle. 6 Bivens action involving extraordinary rendition would 7 inevitably suck the government into the case to protect its 8 considerable interests, and--if disclosure is ordered--to 9 appeal, or to suffer the disclosure, or to pay. 10 In a rendition case, the Thus any This pressure on the government to pay a settlement has 11 (at least) two further perverse effects. First, a payment 12 from the Treasury tends to obviate any payment or 13 contribution by the individual defendants. 14 is concerned solely with deterring the unconstitutional acts 15 of individual officers by extracting payment from 16 individual wrongdoers. 17 government elects to settle a Bivens case which is 18 susceptible to graymail, the individual wrongdoer pays 19 nothing and the deterrent effect is lost. 20 individual defendant in such a case has no incentive to 21 resist discovery that imperils government interests; rather, 22 discovery induces the government to settle. Yet, [Bivens] Malesko, 534 U.S. at 71. 52 When the Second, the So in the 1 extraordinary rendition context, there is a risk (or 2 likelihood) that the government effectively becomes the real 3 defendant in interest, and the named defendants become 4 proxies that the government cannot control. 5 because Bivens has never been approved as a Monell-like 6 vehicle for challenging government policies, this factor 7 also counsels hesitation in extending a private damages 8 action in this context.12 9 Precisely In the end, a Bivens action based on rendition is--in 10 all but name--a claim against the government.13 11 for nothing that Canada (the government, not an individual It is not 12 Judge C ALABRESI does not discount the risk of graymail; he just minimizes the harm, equating it with settlement pressures that routinely inhere in section 1983 litigation. However, graymail is a term of art, signifying the use of military or intelligence information as hostage for payment of money or a plea bargain. The prospect of graymail does not induce Judge C ALABRESI to pause because he sees graymail as part of the judicial structures that facilitate the giving of compensation, at least to innocent victims . . . . See Dissent of Judge Calabresi at 15. 13 It is telling that, according to the Deputy Assistant Attorney General, Mr. Arar and his attorney went to the United States Congress and requested--without success--that it clarify the ambiguity [in this area] with legislation and . . . give [Mr. Arar] reparations. Transcript of Arar In banc Oral Argument at 49. Cf. 153 Cong. Rec. D1384-02 (Oct. 18, 2007); Matthew Jaffe, Congress Hears Testimony in Arar Torture Case, ABC News, Oct. 18, 2007, 53 1 officer of it) paid Arar $10 million dollars. 2 XII 3 4 In the small number of contexts in which courts have 5 implied a Bivens remedy, it has often been easy to identify 6 both the line between constitutional and unconstitutional 7 conduct, and the alternative course which officers should 8 have pursued. 9 beaten him; the agent who searched without a warrant should 10 have gotten one; and the immigration officer who subjected 11 an alien to multiple strip searches without cause should 12 have left the alien in his clothes. 13 may not amount to a special factor counseling hesitation in 14 the implication of a Bivens remedy. 15 remarkable that the context of extraordinary rendition is so 16 different, involving as it does a complex and rapidly 17 changing legal framework beset with critical legal judgments 18 that have not yet been made, as well as policy choices that 19 are by no means easily reached. 20 The guard who beat a prisoner should not have This distinction may or But it is surely Consider: should the officers here have let Arar go on 21 his way and board his flight to Montreal? 22 evidently unwilling to receive him; it was, after all, 54 Canada was 1 Canadian authorities who identified Arar as a terrorist (or 2 did something that led their government to apologize 3 publicly to Arar and pay him $10 million). 4 Should a person identified as a terrorist by his own 5 country be allowed to board his plane and go on to his 6 destination? 7 duty is owed to the other passengers and the crew. 8 9 Surely, that would raise questions as to what Or should a suspected terrorist en route to Canada have been released on the Canadian border--over which he could 10 re-enter the United States virtually at will? 11 have been sent back whence his plane came, or to some third 12 country? 13 thinks he is a terrorist? 14 him? 15 Or should he Should those governments be told that Canada If so, what country would take Or should the suspected terrorist have been sent to 16 Guantanamo Bay or--if no other country would take him--kept 17 in the United States with the prospect of release into the 18 general population? 19 699-700 (2001). 20 See Zadvydas v. Davis, 533 U.S. 678, None of this is to say that extraordinary rendition is 21 or should be a favored policy choice. 22 officials required to decide these vexed issues are subject 55 At the same time, the 1 to the pull of competing obligations. Lombardi v. Whitman, 2 485 F.3d 73, 83 (2d Cir. 2007). 3 might consider clash with other equally important 4 governmental responsibilities. 5 98, 114 (2d Cir. 2005) (internal quotation marks omitted). 6 Given the ample reasons for pause already discussed, we need 7 not and do not rely on this consideration in concluding that 8 it is inappropriate to extend Bivens to this context. 9 Still, Congress is the appropriate branch of government to Many viable actions they Pena v. DePrisco, 432 F.3d 10 decide under what circumstances (if any) these kinds of 11 policy decisions--which are directly related to the security 12 of the population and the foreign affairs of the country-- 13 should be subjected to the influence of litigation brought 14 by aliens. 15 XIII 16 17 All of these special factors notwithstanding, we cannot 18 ignore that, as the panel dissent put it, there is a long 19 history of judicial review of Executive and Legislative 20 decisions related to the conduct of foreign relations and 21 national security. 22 concurring in part and dissenting in part). Arar, 532 F.3d at 213 (Sack, J., 56 Where does that 1 leave us? We recognize our limited competence, authority, 2 and jurisdiction to make rules or set parameters to govern 3 the practice called rendition. 4 easily locate that competence, expertise, and responsibility 5 elsewhere: in Congress. 6 Executive Branch to exercise these powers without judicial 7 check. 8 individuals like Arar, it can enact legislation that 9 includes enumerated eligibility parameters, delineated safe 10 harbors, defined review processes, and specific relief to be 11 afforded. 12 courts in a proper case will be able to review the statute 13 and provide judicial oversight to the Executive and 14 Legislative decisions [which have been made with regard] to 15 the conduct of foreign relations and national security. 14 By the same token, we can Congress may be content for the But if Congress wishes to create a remedy for Once Congress has performed this task, then the 14 Dissents by their nature express views that are not the law. These dissenting opinions contain words and passages that are emotional and (in our respectful view) overwrought. Accordingly, there is no need for extended engagement. A brief survey will suffice. Judge S ACK s dissent deems artificial our characterization of the new Bivens context in this case as entirely one of international rendition, specifically extraordinary rendition. See Dissent of Judge Sack at 34. We would have thought it would be common ground that the context of this appeal is extraordinary rendition. Judge S ACK, however, reconceives the context, at some points characterizing the constitutional tort as encompassing only 57 1 those events that occurred within the United States while at other points requiring that the entire narrative be considered as a seamless whole, JFK to Syria. Compare id. at 34 with id. at 36-37. But this case is emphatically and obviously about extraordinary rendition (and its alleged abuse), as is elsewhere acknowledged in the opinions of Judge C ALABRESI and Judge P ARKER. See Dissent of Judge Calabresi at 15; Dissent of Judge Parker at 2. As to the extraordinary rendition context, Judge S ACK (joined by all dissenters) makes the following constructive (and telling) concessions: It is difficult to deny the existence of special factors counseling hesitation in this case[,] Dissent of Judge Sack at 47; It . . . may be that to the extent actions against policymakers can be equated with lawsuits against policies, they may not survive Iqbal[,] id. at 49; and, We share what we think to be the majority s intuition that this case would likely turn largely, if not entirely, on decisions of national security and diplomacy . . . [,] id. at 56. Judge C ALABRESI s dissent urges that we forgo considering whether specific factors counsel hesitation under Bivens so that we could instead remand to see whether the case might eventually be dismissed as unmanageable under the state secrets privilege--which Judge C ALABRESI seems equally to disapprove. See Dissent of Judge Calabresi at 13 (state secrets privilege is the subject of significant criticism, much of it warranted ). Thus Judge C ALABRESI professes hesitance to hesitate with respect to Bivens, as well as skepticism of the state secrets privilege. In doing so, he avoids fully endorsing either of the primary potential resolutions of this appeal, and hardly makes a choice at all. Even so, the authority cited by Judge C ALABRESI, which suggests deciding whether a claim is stated before doing Bivens analysis, is inapposite. Judge C ALABRESI fails to consider that application of the state secrets privilege is often performed witness-by-witness; questionby-question; page-by-page; paragraph-by-paragraph--and can take years. It is not judicial activism to hesitate before requiring such an exercise in circumstances in which a Bivens claim may not lie. In any event, the state secrets doctrine has roots in separation of powers principles, and 58 1 Id. 2 CONCLUSION 3 4 For the reasons stated above, the judgment of the 5 District Court is affirmed. 6 The panel opinion is hereby vacated. is not itself devoid of constitutional implications. See Dep t of Navy v. Egan, 484 U.S. 518, 527 (1988) ( The authority to protect [information related to national security] falls on the President as head of the Executive Branch and as Commander in Chief. ); El-Masri v. United States, 479 F.3d 296, 303 (4th Cir. 2007) ( Although the state secrets privilege was developed at common law, it performs a function of constitutional significance, because it allows the executive branch to protect information whose secrecy is necessary to its military and foreign-affairs responsibilities. ). 59 1 CALABRESI, POOLER, SACK, and PARKER, Circuit Judges, dissent. Each joins fully in all 2 the dissenting opinions, but each writes separately to emphasize particular aspects of these 3 dissents. 1 Arar v. Ashcroft, No. 06-4216 2 3 4 Sack, Circuit Judge, joined by Judges Calabresi, Pooler, and Parker, concurring in part and dissenting in part. ------------------------------------------------------------The opinion of the en banc majority1 departs from the 5 6 opinion of the panel majority in two important and salutary 7 respects. 8 9 First, the Court now explicitly acknowledges that "this is not a typical immigration case." Supra at [24]. We would 10 prefer that the Court concede that this is not an immigration 11 case at all -- it is about the alleged unconstitutional treatment 12 of an alien suspected of terrorism -- but we welcome the 13 resulting decision not to dismiss Arar's claims as 14 jurisdictionally barred by the Immigration and Nationality Act 15 ("INA"), see supra at [23], and not to rely, in the Court's 16 Bivens analysis, upon the INA's remedial scheme and the well nigh 17 unlimited executive power that the INA bestows, see supra at 1 Judges Straub and Sotomayor voted in the en banc poll but do not participate in deciding the case en banc because Judge Straub took senior status prior to the en banc hearing and Judge Sotomayor has been elevated to the Supreme Court. Judge Katzmann recused himself from both the poll and the en banc hearing. Senior Judge McLaughlin, as a member of the original panel, has participated in the en banc consideration. Judge Calabresi participated in the en banc hearing, but has taken senior status since the argument. The author of this opinion has also taken senior status since the hearing, but was a member of the panel that heard the appeal and therefore , like Judge McLaughlin, would have been able to have participated in the en banc hearing in any event. Judge Lynch, who joined the Court since the argument, has not participated in these proceedings. 1 [31]. 2 179-81 (2d Cir. 2008) ("Arar Panel Op."). Compare Arar v. Ashcroft, 532 F.3d 157, 169-71 & n.10, 3 In its second departure from the panel decision, the 4 Court declines to hold that if, as Arar alleges, government 5 conduct "denied [him] effective access to consular assistance, 6 the courts, his lawyers, and family members in order to 7 effectuate his removal to Syria," Arar's constitutional rights 8 would not have thereby been violated. 9 quotation marks omitted); compare Arar Panel Op., 532 F.3d at Supra at [20] (internal 10 184-89. 11 of these departures are significant enough in themselves to have 12 rendered the unwieldy and often wasteful en banc process 13 worthwhile here. 14 We agree with this approach too. Indeed, we think both We disagree, however, with the majority's continued 15 insistence that Arar cannot employ a Bivens remedy to seek 16 compensation for his injuries at the hands of government agents. 17 The majority reaches that conclusion by artificially dividing the 18 complaint into a domestic claim that does not involve torture -- 19 viz., "[Arar's] claim regarding detention in the United States," 20 supra at [6] -- and a foreign claim that does -- viz., "[Arar's] 21 claims for detention and torture in Syria," id. 22 then dismisses the domestic claim as inadequately pleaded and the -2- The majority 1 foreign claim as one that cannot "be asserted under Bivens" in 2 light of the opinion's "dominant holding" that "in the context of 3 involuntary rendition, hesitation is warranted by special 4 factors." Supra at [6-7]. 5 In our view, even treating Arar's claim for 6 mistreatment while in United States custody and denial of access 7 to United States counsel and United States courts as, arguendo, a 8 claim that is entirely isolated from the remainder of Arar's 9 allegations, it was adequately pleaded in his highly detailed 10 complaint. 11 As we will explain, however, the complaint's 12 allegations cannot properly be divided into claims for 13 mistreatment in the United States and "claims for detention and 14 torture in Syria." 15 broadly than that, encompassing a chain of events that began with 16 his interception and detention at New York's John F. Kennedy 17 Airport ("JFK") and continued with his being sent abroad in 18 shackles by government agents with the knowledge that he would 19 likely be tortured as a result. 20 conclude that Arar's allegations do not present a "new context" 21 for a Bivens action. Arar's complaint of mistreatment sweeps more Viewed in this light, we -3- 1 And even were it a new context, we disagree with what 2 appears to be the en banc majority's test for whether a new 3 Bivens action should be made available: the existence vel non of 4 "special factors counselling hesitation." 5 heeding "special factors" relating to secrecy and security is a 6 form of double counting inasmuch as those interests are fully 7 protected by the state-secrets privilege. 8 the applicable test is not whether "special factors" exist, but 9 whether after "paying particular heed to" them, a Bivens remedy First, we think Second, in our view 10 should be recognized with respect to at least some allegations in 11 the complaint. 12 available. 13 Applying that test, we think a Bivens remedy is We hasten to add that under the proper formulation of 14 the test, we might well agree with the en banc majority that a 15 Bivens action is not available in the context of an alien's 16 "claims for detention and torture in Syria." 17 explain, Arar's allegations are not so limited. 18 But, as we will Our overriding concern, however, is with the majority's 19 apparent determination to go to whatever length necessary to 20 reach what it calls its "dominant holding": that a Bivens remedy 21 is unavailable. 22 government assures us that this case could likely be resolved Such a holding is unnecessary inasmuch as the -4- 1 quickly and expeditiously in the district court by application of 2 the state-secrets privilege. 3 What is at stake on this appeal is not whether Arar 4 will, through this litigation, obtain compensation for the injury 5 he suffered as a result of the malfeasance of employees of the 6 United States. 7 surmount,2 he would be extremely unlikely to do so. 8 question for the Court is, and has from the outset been, the 9 manner by which that likely result will (or will not) be reached. In light of the many hurdles he would have to Rather, the 10 We fear that the majority is so bound and determined to declare 11 categorically that there is no Bivens action in the present 12 "context," that it unnecessarily makes dubious law. 13 For those reasons, we respectfully dissent.3 14 I. Arar's Allegations 2 See, e.g., Arar Panel Op., 532 F.3d at 193 et seq. (Sack, J., concurring in part and dissenting in part) ("Arar partial panel dissent"). 3 We do not dissent from the majority's conclusions as to personal jurisdiction. The author of this opinion, as a member of the panel that originally heard this appeal, concurred in the panel opinion's conclusion that relief under the Torture Victim Protection Act is unavailable to Arar. Having reviewed the arguments to the contrary stated in Judge Pooler's partial dissent, infra, for the reasons stated in it, he now agrees that the relief under the Act is available to Arar. Inasmuch as the en banc Court now holds that it is not available, however, this opinion accepts its unavailability as a matter of law for the purposes of the Bivens analysis that follows. -5- The majority's recitation of the facts, see supra [8- 1 2 13], is generally accurate, but anodyne. 3 of the majority opinion and the implications of the Court's 4 decision is not possible without a fuller account of the 5 troubling allegations contained in Arar's complaint. 6 A complete assessment "Because this is an appeal from a dismissal of a 7 complaint under Fed. R. Civ. P. 12(b)(6), we view the allegations 8 of the complaint in the light most favorable to appellant." 9 Paycom Billing Servs. v. MasterCard Int'l, Inc., 467 F.3d 283, 10 285 (2d Cir. 2006). The district court's opinion carefully and 11 fully sets forth Arar's allegations. 12 F. Supp. 2d 250, 252-57 (E.D.N.Y. 2006). 13 account nearly verbatim.4 14 15 16 17 A. 18 immigrated to Canada with his family when he was a teenager. 19 is a dual citizen of Syria and Canada. 20 (Arar, 414 F. Supp. 2d at 252.) See Arar v. Ashcroft, 414 We adhere to that Arar's Apprehension, Detention, and Forcible Transportation to Syria Arar, who is in his thirties, is a native of Syria. 4 He resides in Ottawa. Citations to the district court opinion appear in parentheses. The footnotes and subheadings are ours. -6- He He 1 In September 2002, while vacationing with his family in 2 Tunisia, he was called back to work by his employer5 to consult 3 with a prospective client. 4 Montreal with stops6 in Zurich and New York. 5 September 25, 2002. 6 He purchased a return ticket to He left Tunisia on (Id.) On September 26, 2002, Arar arrived from Switzerland at 7 JFK to catch a connecting flight to Montreal. Upon presenting 8 his passport to an immigration inspector, he was identified as 9 "the subject of a . . . lookout as being a member of a known 10 terrorist organization." Compl. Ex. D (Decision of J. Scott 11 Blackman, Regional Director) at 2. 12 various officials for approximately eight hours.7 13 asked Arar if he had contacts with terrorist groups, which he 14 categorically denied. 15 at JFK, where he was placed in solitary confinement. 16 that he was transported in chains and shackles and was left in a He was interrogated by The officials Arar was then transported to another site He alleges 5 Arar was employed by a privately held Massachusetts-based developer and supplier of software for technical computing. See Compl. ¶ 12. 6 That is, changes of plane. 7 According to the complaint, on that day, Arar was questioned first by an FBI agent for five hours, Compl. ¶ 29, then by an immigration officer for three hours, id. ¶ 31. -7- 1 room with no bed and with lights on throughout the night. 2 (Arar, 414 F. Supp. 2d at 253.) 3 The following day, starting at approximately 9:00 a.m., 4 two FBI agents interrogated Arar for about five hours, asking him 5 questions about Osama bin Laden, Iraq, and Palestine. 6 alleges that the agents yelled and swore at him throughout the 7 interrogation. 8 telephone call and see a lawyer. 9 taken back to his cell, chained and shackled, and provided a cold 10 They ignored his repeated requests to make a At 2:00 p.m. that day, Arar was McDonald's meal -- his first food in nearly two days. 11 Arar (Id.) That evening, Arar was given an opportunity to 12 voluntarily return to Syria, but refused, citing a fear of being 13 tortured if returned there and insisting that he be sent to 14 Canada or returned to Switzerland. 15 Arar that the United States had a "special interest" in his case 16 and then asked him to sign a form, the contents of which he was 17 not allowed to read. 18 chains and shackles, to the Metropolitan Detention Center ("MDC") 19 in Brooklyn, New York,8 where he was strip-searched and placed in An immigration officer told That evening, Arar was transferred, in 8 This is the same federal prison in which, less than a year earlier, Javaid Iqbal was allegedly mistreated. Iqbal, a Muslim inmate accused of conspiracy to defraud the United States and fraud with identification and held post-9/11 in the MDC, allegedly suffered "unconstitutional actions against him in -8- 1 solitary confinement. During his initial three days at MDC, 2 Arar's continued requests to meet with a lawyer and make 3 telephone calls were refused. (Id.) On October 1, 2002,9 the Immigration and Naturalization 4 5 Service ("INS") initiated removal proceedings against Arar, who 6 was charged with being temporarily inadmissible because of his 7 membership in al-Qaeda, a group designated by the Secretary of 8 State as a foreign terrorist organization. 9 permission to make one telephone call, Arar called his mother-in- 10 law in Ottawa, Canada. 11 12 Upon being given (Id.) Upon learning of Arar's whereabouts, his family contacted the Office for Consular Affairs ("Canadian connection with his confinement under harsh conditions . . . after separation from the general prison population." Iqbal v. Hasty, 490 F.3d 143, 147, 148 n.1 (2d Cir. 2007). We held, with respect to Iqbal's subsequent Bivens action, that such treatment was not protected, as a matter of law, by the doctrine of qualified immunity. Id. at 177-78. The Supreme Court subsequently reversed that judgment and remanded, holding that the complaint was insufficiently pleaded as to two high-ranking official defendants. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009). On September 29, 2009, the remaining parties in Iqbal filed a document in this Court stipulating that the appeal was to be "withdrawn from active consideration before the Court . . . because a settlement has been reached in principle between Javaid Iqbal and defendant United States." Iqbal v. Hasty, No. 05-5768-cv (2d Cir. Sept. 30, 2009), "Stipulation Withdrawing Appeal from Active Consideration" dated September 29, 2009. 9 I.e., five days after Arar's arrival in the United States. -9- 1 Consulate")10 and retained an attorney, Amal Oummih, to represent 2 him. 3 detention. 4 Maureen Girvan from the Canadian Consulate, who, when presented 5 with the document noting Arar's inadmissibility to the United 6 States, assured Arar that removal to Syria was not an option. 7 October 4, 2002, Arar designated Canada as the country to which 8 he wished to be removed. The Canadian Consulate had not been notified of Arar's 9 On October 3, 2002, Arar received a visit from On (Id.) On October 5, 2002, Arar had his only meeting with 10 counsel. 11 to a room where approximately seven INS officials questioned him 12 about his reasons for opposing removal to Syria. 13 was not provided advance notice of the interrogation, and Arar 14 further alleges that U.S. officials misled him into thinking his 15 attorney had chosen not to attend. 16 Arar continued to express his fear of being tortured if returned 17 to Syria. 18 was informed that the officials were discussing his case with 19 "Washington, D.C." 10 The following day, he was taken in chains and shackles His attorney During the interrogation, At the conclusion of the six-hour interrogation, Arar Arar was asked to sign a document that The consulate is in New York City. -10- 1 appeared to be a transcript. 2 He refused to sign the form. (Id. at 253-54.) 3 The following day, October 7, 2002, attorney Oummih 4 received two telephone calls informing her that Arar had been 5 taken for processing to an INS office at Varick Street in 6 Manhattan, that he would eventually be placed in a detention 7 facility in New Jersey, and that she should call back the 8 following morning for Arar's exact whereabouts. 9 alleges that he never left the MDC and that the contents of both However, Arar 10 of these phone calls to his counsel were false and misleading. 11 (Id. at 254.) 12 That same day, October 7, 2002, the INS Regional 13 Director, J. Scott Blackman, determined from classified and 14 unclassified information that Arar is "clearly and unequivocally" 15 a member of al-Qaeda and, therefore, "clearly and unequivocally 16 inadmissible to the United States" under 8 U.S.C. 17 § 1182(a)(3)(B)(i)(V). 18 that finding, Blackman concluded "that there are reasonable 19 grounds to believe that [Arar] is a danger to the security of the 20 United States." 21 Supp. 2d at 254.) See Compl. Ex. D. at 1, 3, 5. Id. at 6 (brackets in original). -11- Based on (Arar, 414 F. 1 At approximately 4:00 a.m. on October 8, 2002, Arar 2 learned that, based on classified information, INS regional 3 director Blackman had ordered that Arar be sent to Syria and that 4 his removal there was consistent with Article Three of the United 5 Nations Convention Against Torture and Other Cruel, Inhuman, or 6 Degrading Treatment or Punishment ("CAT"). 7 reconsideration but was told by INS officials that the agency was 8 not governed by the "Geneva Conventions" and that Arar was barred 9 from reentering the country for a period of five years and would 10 be admissible only with the permission of the Attorney General. 11 (Id.) Arar pleaded for 12 Later that day, Arar was taken in chains and shackles 13 to a New Jersey airfield, where he boarded a small jet airplane 14 bound for Washington, D.C. 15 Jordan, arriving there on October 9, 2002. 16 over to Jordanian authorities, who delivered him to the Syrians 17 later that day. 18 either Canadian Consulate official Girvan or attorney Oummih that 19 Arar had been removed to Syria. 20 officials refused to accept Arar directly from the United States. 21 (Id.) From there, he was flown to Amman, He was then handed At this time, U.S. officials had not informed Arar alleges that Syrian -12- 1 Arar's Final Notice of Inadmissability ("Final Notice") 2 ordered him removed without further inquiry before an immigration 3 judge. 4 Commissioner of the Immigration and Naturalization Service has 5 determined that your removal to Syria would be consistent with 6 [CAT]." 7 October 8, 2002, and was signed by Deputy Attorney General Larry 8 Thompson. 9 defendants' motions to dismiss, in a letter dated August 18, 10 2005, counsel for Arar said that Arar had received the Final 11 Notice within hours of boarding the aircraft taking him to 12 Jordan. 13 B. See Compl. Ex. D. According to the Final Notice: Id. (brackets in original). "The The Final Notice was dated After oral argument in the district court on the (Arar, 414 F. Supp. 2d at 254.) Arar's Detention in Syria 14 During his ten-month period of detention in Syria, Arar 15 alleges, he was placed in a "grave" cell measuring six feet long, 16 seven feet high, and three feet wide. 17 within the Palestine Branch of the Syrian Military Intelligence 18 ("Palestine Branch"). 19 little light, and was infested with rats, which would enter the 20 cell through a small aperture in the ceiling. 21 on Arar through the aperture, and sanitary facilities were 22 nonexistent. The cell was located The cell was damp and cold, contained very Cats would urinate Arar was allowed to bathe himself in cold water -13- 1 once per week. 2 provided barely edible food. 3 ten-month period of detention in Syria. 4 He was prohibited from exercising and was Arar lost forty pounds during his (Id.) During his first twelve days in Syrian detention, Arar 5 was interrogated for eighteen hours per day and was physically 6 and psychologically tortured. 7 and lower back with a two-inch-thick electric cable. 8 also used their fists to beat him on his stomach, his face, and 9 the back of his neck. He was beaten on his palms, hips, His captors He was subjected to excruciating pain and 10 pleaded with his captors to stop, but they would not. 11 placed in a room where he could hear the screams of other 12 detainees being tortured and was told that he, too, would be 13 placed in a spine-breaking "chair," hung upside down in a "tire" 14 for beatings, and subjected to electric shocks. 15 exposure to the torture, Arar falsely confessed, among other 16 things, to having trained with terrorists in Afghanistan, even 17 though he had never been to Afghanistan and had never been 18 involved in terrorist activity. 19 He was To lessen his (Id. at 255.) Arar alleges that his interrogation in Syria was 20 coordinated and planned by U.S. officials, who sent the Syrians a 21 dossier containing specific questions. 22 allegation, Arar notes that the interrogations in the United -14- As support for this 1 States and Syria contained identical questions, including a 2 specific question about his relationship with a particular 3 individual wanted for terrorism. 4 Syrian officials supplied U.S. officials with all information 5 extracted from Arar; Arar cites a statement by one Syrian 6 official who has publicly stated that the Syrian government 7 shared information with the United States that it extracted from 8 him. 9 Sixty Minutes II: "His Year In Hell"). 10 11 C. In return, Arar alleges, the See Compl. Ex. E (January 21, 2004 transcript of CBS's (Id.) Arar's Contact with the Canadian Government While Detained in Syria 12 The Canadian Embassy contacted the Syrian government 13 about Arar on October 20, 2002, and the following day, Syrian 14 officials confirmed that they were detaining him. 15 the Syrian officials ceased interrogating and torturing Arar. 16 (Id.) 17 At this point, Canadian officials visited Arar at the Palestine Branch 18 five times during his ten-month detention. 19 Arar was warned not to disclose that he was being mistreated. 20 complied but eventually broke down during the fifth visit, 21 telling the Canadian consular official that he was being tortured 22 and kept in a grave. (Id.) -15- Prior to each visit, He 1 Five days later, Arar was brought to a Syrian 2 investigation branch, where he was forced to sign a confession 3 stating that he had participated in terrorist training in 4 Afghanistan even though, Arar states, he has never been to 5 Afghanistan or participated in any terrorist activity. 6 then taken to an overcrowded Syrian prison, where he remained for 7 six weeks. 8 9 Arar was (Id.) On September 28, 2003, Arar was transferred back to the Palestine Branch, where he was held for one week. During this 10 week, he heard other detainees screaming in pain and begging for 11 their torture to end. (Id.) 12 On October 5, 2003, Syria, without filing any charges 13 against Arar, released him into the custody of Canadian Embassy 14 officials in Damascus. 15 and reunited with his family. 16 He was flown to Ottawa the following day (Id.) Arar contends that he is not a member of any terrorist 17 organization, including al-Qaeda, and has never knowingly 18 associated himself with terrorists, terrorist organizations, or 19 terrorist activity. 20 he was questioned was a casual acquaintance whom Arar had last 21 seen in October 2001. 22 for interrogation under torture because of his casual Arar claims that the individual about whom He believes that he was removed to Syria -16- 1 acquaintance with this individual and others believed to be 2 involved in terrorist activity. 3 information and belief" that there has never been, nor is there 4 now, any reasonable suspicion that he was involved in such 5 activity. 6 (footnote omitted).) 7 Compl. ¶ 2. But Arar contends "on (Arar, 414 F. Supp. 2d at 255-56 Arar alleges that he continues to suffer adverse 8 effects from his ordeal in Syria. 9 relating to his wife and children, suffers from nightmares, is 10 frequently branded a terrorist, and is having trouble finding 11 employment due to his reputation and inability to travel in the 12 United States. 13 14 D. 15 He claims that he has trouble (Id. at 256.) U.S. Policy Relating to Interrogation of Detainees by Foreign Governments The complaint alleges on information and belief that 16 Arar was removed to Syria under a covert U.S. policy of 17 "extraordinary rendition," according to which individuals are 18 sent to foreign countries to undergo methods of interrogation not 19 permitted in the United States. 20 policy involves the removal of "non-U.S. citizens detained in 21 this country and elsewhere and suspected -- reasonably or 22 unreasonably -- of terrorist activity to countries, including The extraordinary rendition -17- 1 Syria, where interrogations under torture are routine." 2 ¶ 24. 3 States sends individuals "to countries like Syria precisely 4 because those countries can and do use methods of interrogation 5 to obtain information from detainees that would not be morally 6 acceptable or legal in the United States and other democracies." 7 Id. 8 involved with extraordinary rendition "have facilitated such 9 human rights abuses, exchanging dossiers with intelligence 10 officials in the countries to which non-U.S. citizens are 11 removed." 12 involves Syria in its extraordinary rendition program to extract 13 counter-terrorism information. 14 Compl. Arar alleges on information and belief that the United The complaint further alleges that federal officials Id. The complaint also alleges that the United States (Arar, 414 F. Supp. 2d at 256.) This extraordinary rendition program is, Arar alleges, 15 not part of any official or declared U.S. public policy; 16 nevertheless, it has received extensive attention in the press, 17 where unnamed U.S. officials and certain foreign officials have 18 admitted to the existence of such a policy. 19 number of articles in the mainstream press recounting both the 20 incidents of this particular case and the extraordinary rendition 21 program more broadly. 22 of his complaint. Arar details a These articles are attached as Exhibit C (Id. at 256-57.) -18- 1 Arar alleges that the defendants directed the 2 interrogations in Syria by providing information about Arar to 3 Syrian officials and receiving reports on Arar's responses. 4 Consequently, the defendants conspired with, and/or aided and 5 abetted, Syrian officials in arbitrarily detaining, 6 interrogating, and torturing Arar. 7 alternative that, at a minimum, the defendants knew or at least 8 should have known that there was a substantial likelihood that he 9 would be tortured upon his removal to Syria. 10 E. Arar argues in the (Id. at 257.) Syria's Human Rights Record 11 Arar's claim that he faced a likelihood of torture in 12 Syria is supported by U.S. State Department reports on Syria's 13 human rights practices. 14 Rights, and Labor, United States Department of State, 2004 15 Country Reports on Human Rights Practices (Released February 28, 16 2005) ("2004 Report"). 17 Syria's "human rights record remained poor, and the Government 18 continued to commit numerous, serious abuses . . . includ[ing] 19 the use of torture in detention, which at times resulted in 20 death." 21 prohibits such practices, "there was credible evidence that 22 security forces continued to use torture frequently." Id. at 1. See, e.g., Bureau of Democracy, Human According to the State Department, Although the Syrian constitution officially -19- Id. at 2. 1 The 2004 Report cites "numerous cases of security forces using 2 torture on prisoners in custody." 3 throughout the 2004 Report, as well as State Department reports 4 from prior years, are legion. 5 State Department Human Rights Report on Syria). 6 Supp. 2d at 257.)11 7 F. Similar references See, e.g., Compl. Ex. A (2002 (Arar, 414 F. The Canadian Government Inquiry 8 9 Id. On September 18, 2006, a Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar ("Arar 10 Commission"), established by the government of Canada to 11 investigate the Arar affair, issued a three-volume report. 12 Arar Commission, Report of the Events Relating to Maher Arar 13 (2006) ("Commission Report").12 14 Commission summarized: "On Maher Arar the Commissioner [Dennis 15 O'Connor] comes to one important conclusion: 16 categorically that there is no evidence to indicate that Mr. Arar See A press release issued by the 'I am able to say 11 The district court's description of the facts as alleged in the complaint ends here. 12 On October 23, 2007, this Court granted Arar's motion to take judicial notice of the Report insofar as its existence and the scope of its contents were concerned, but denied the motion insofar as it may have sought judicial notice of the facts asserted in the report. But cf. supra at [4-5] (employing the report as the source for facts relating to Canadian involvement in the Arar incident). -20- 1 has committed any offence or that his activities constitute a 2 threat to the security of Canada.'" 3 Release, Arar Commission Releases Its Findings on the Handling of 4 the Maher Arar Case (Sept. 18, 2006) (boldface in original), 5 available at Final_Sept 6 18.pdf (copy on file with the Clerk of Court). 7 2007, the Office of the Prime Minister of Canada issued the 8 following announcement: Arar Commission, Press On January 26, 9 10 11 12 13 14 Prime Minister Stephen Harper today released the letter of apology he has sent to Maher Arar and his family for any role Canadian officials may have played in what happened to Mr. Arar, Monia Mazigh and their family in 2002 and 2003. 15 16 17 18 19 20 21 22 23 "Although the events leading up to this terrible ordeal happened under the previous government, our Government will do everything in its power to ensure that the issues raised by Commissioner O'Connor are addressed," said the Prime Minister. "I sincerely hope that these actions will help Mr. Arar and his family begin a new and hopeful chapter in their lives." 24 25 26 27 28 29 30 31 32 33 Canada's New Government has accepted all 23 recommendations made in Commissioner O'Connor's first report, and has already begun acting upon them. The Government has sent letters to both the Syrian and the U.S. governments formally objecting to the treatment of Mr. Arar. Ministers Day and MacKay have also expressed Canada s concerns on this important issue to their American counterparts. Finally, Canada has removed -21- 1 2 3 4 5 6 7 8 9 10 11 12 13 Mr. Arar from Canadian lookout lists, and requested that the United States amend its own records accordingly. The Prime Minister also announced that Canada's New Government has successfully completed the mediation process with Mr. Arar, fulfilling another one of Commissioner O'Connor's recommendations. This settlement, mutually agreed upon by all parties, ensures that Mr. Arar and his family will obtain fair compensation, in the amount of $10.5 million, plus legal costs, for the ordeal they have suffered. 14 Office of the Prime Minister, Press Release, Prime Minister 15 Releases Letter of Apology to Maher Arar and His Family and 16 Announces Completion of Mediation Process (Jan. 26, 2007), 17 available at 18 media.asp?id=1509 (last visited July 15, 2009); see also Margaret 19 L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition 20 and the Rule of Law, 75 Geo. Wash. L. Rev. 1333, 1339-40 (2007). 21 II. The Dismissal of the Fourth Claim for Relief 22 The fulcrum of the en banc majority's analysis is its 23 conclusion that this appeal requires us to decide whether "to 24 devise a new Bivens damages action" under Wilkie v. Robbins, 127 25 S. Ct. 2588, 2597 (2007). 26 can characterize Arar's action as "new" only by isolating and 27 eliminating the domestic aspects of the case. See supra at [6]. -22- But the majority It does so in part 1 by affirming the district court's dismissal of Arar's "Fourth 2 Claim for Relief, (Fifth Amendment: Substantive Due Process -- 3 Domestic Detention)" on the ground that the claim was 4 insufficiently pleaded. 5 ruling to be incorrect. 6 See supra at [19-21]. We think that With respect to the conditions of confinement aspect of 7 this claim, the district court concluded that Arar was entitled 8 to Fifth Amendment substantive due process protection and that 9 his rights in that respect could have been violated by "the 10 deprivations Arar alleges with respect to his treatment while in 11 U.S. custody." 12 majority does not decide otherwise. 13 to the access to counsel and the courts aspect of the claim, the 14 district court concluded that Arar would be able to state a claim 15 for interference "with his access to courts in part by 16 [government officials] lying to his counsel," if he could 17 "identify 'a separate and distinct right to seek judicial relief 18 for some wrong.'" 19 Christopher v. Harbury, 536 U.S. 403, 414-15 (2002)). 20 here, too, and the majority does not decide otherwise. 21 22 Arar, 414 F. Supp. 2d at 286. We agree, and the Supra at [21]. With respect Arar, 414 F. Supp. 2d at 285 (quoting We agree But the district court nonetheless dismissed the Fourth Claim for Relief without prejudice. -23- On pain of forfeiture of the 1 claims, it required Arar (1) with respect to the mistreatment 2 claim, to "name those defendants that were personally involved in 3 the alleged unconstitutional treatment," and, (2) with respect to 4 the denial of access claim, to replead "without regard to any 5 [underlying] rendition claim," in light of the court's conclusion 6 that no Bivens action was available with respect to such a claim, 7 and, because it was unclear to what underlying relief Arar was 8 denied access, "identify[ing] the specific injury he was 9 prevented from grieving." 10 Arar, 414 F. Supp. 2d at 287-88. Arar declined to replead,13 rendering the dismissal final. 13 Following the district court's dismissal of the fourth claim without prejudice and dismissal of the first three claims with prejudice, Arar moved for certification of a final judgment on the first three claims to enable him to appeal them immediately. See Arar v. Ashcroft, No. CV-04-0249 (DGT), 2006 WL 1875375, 2006 U.S. Dist. LEXIS 45550 (E.D.N.Y. July 5, 2006). The district court denied the motion. See id. Arar then declined to replead the fourth claim, apparently in order to obtain this Court's early review of the dismissal of the first three claims, cf. id. The majority affirms the dismissal of the fourth claim partly "in view of Arar's rejection of an opportunity to replead." Supra at [21]. While we do not read that as a suggestion that this claim has been waived on appeal, we note that any such suggestion would be incorrect. We may review the entire judgment. See, e.g., Kittay v. Kornstein, 230 F.3d 531, 541 n.8 (2d Cir. 2000) ("[A] disclaimer of intent to amend the complaint renders the District Court's judgment final and allows review of the dismissal in this Court."); Festa v. Local 3 Int'l Brotherhood of Elec. Workers, 905 F.2d 35, 36-37 (2d Cir. 1990) (per curiam); Conn. Nat'l Bank v. Fluor Corp., 808 F.2d 957, -24- 1 A. Specification of Defendants' Acts and Conspiracy Allegations 2 The majority affirms the dismissal of the Fourth Claim 3 for Relief on the ground that Arar's complaint does not "specify 4 any culpable action taken by any single defendant" and fails to 5 allege a conspiracy. 6 these rationales. 7 Supra at [21]. We disagree with each of Arar should not have been required to "name those 8 defendants [who] were personally involved in the alleged 9 unconstitutional treatment." Arar, 414 F. Supp. 2d at 287. In 10 actions pursuant to 42 U.S.C. § 1983, which are "analog[s]" of 11 the less-common Bivens action, Ashcroft v. Iqbal, 129 S. Ct. 12 1937, 1948 (2009) (citation omitted), we allow plaintiffs to 13 "maintain[] supervisory personnel as defendants . . . until [they 14 have] been afforded an opportunity through at least brief 15 discovery to identify the subordinate officials who have personal 16 liability." 17 (citing Second Circuit authority). 18 19 20 21 22 23 Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) Similarly, courts have rejected the dismissal of suits against unnamed defendants described by roles . . . until the plaintiff has had some opportunity for discovery to learn the identities of responsible officials. Once the supervisory officer has inquired within 960-61 (2d Cir. 1987). -25- 1 2 3 4 5 the institution and identified the actual decision-makers of the challenged action, those officials may then submit affidavits based on their personal knowledge of the circumstances. 6 Id. (citations omitted). 7 full name of the Bivens case itself is Bivens v. Six Unknown 8 Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) 9 (emphasis added).14 10 It should not be forgotten that the To be sure, the Supreme Court has recently set a strict 11 pleading standard for supervisory liability claims under Bivens 12 against a former Attorney General of the United States and the 13 Director of the FBI." 14 however, that the Court has thereby permitted governmental actors 15 who are unnamed in a complaint automatically to escape personal 16 civil rights liability. See Iqbal, supra. A We do not think, plaintiff must, after all, have some 14 The Supreme Court explained: "The agents were not named in petitioner's complaint, and the District Court ordered that the complaint be served upon "those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the [petitioner]." App. 3. Five agents were ultimately served." Id. at 390 n.2; see also Bivens, Brief for Respondent at *2 n.1, 1970 WL 116900 ("The apparent contradiction in the title of this case -- "Unknown Named" -- arises from the fact that after petitioner filed his complaint, the United States Attorney supplied the clerk of the court with the agents' names. However, as the summonses and their returns indicate, only five agents are apparently involved (App. 5-24), rather than six as stated in the case title.") -26- 1 way to identify a defendant who anonymously violates his civil 2 rights. 3 abusers' business cards in order to state a civil rights claim. 4 Put conversely, we do not think that Iqbal implies that federal 5 government miscreants may avoid Bivens liability altogether 6 through the simple expedient of wearing hoods while inflicting 7 injury. 8 reasons we recognized in Davis. 9 We doubt that Iqbal requires a plaintiff to obtain his Some manner of proceeding must be made available for the Whether or not there is a mechanism available to 10 identify the "Doe" defendants, moreover, Arar's complaint does 11 sufficiently name some individual defendants who personally took 12 part in the alleged violation of his civil rights. 13 defendant J. Scott Blackman, formerly Director of the Regional 14 Office of INS, for example, is, as reflected in the district 15 court's explication of the facts, see Arar, 414 F. Supp. 2d at 16 252-54, set forth in reasonable detail in the complaint.15 15 The role of The complaint alleges, inter alia: Early on October 8, 2002, at about 4 a.m., Mr. Arar was taken in chains and shackles to a room where two INS officials told him that, based on Mr. Arar's casual acquaintance with certain named individuals, including Mr. Almalki as well as classified information, Defendant Blackman, Regional Director for the Eastern Region of Immigration and Naturalization Services, had decided to -27- So are 1 at least some of the acts of the defendant Edward J. McElroy, 2 District Director of the INS.16 3 The majority also asserts that Arar does no more than 4 "allege[] (in passive voice) that his requests to make phone 5 calls 'were ignored,' and that 'he was told' that he was not 6 entitled to a lawyer." 7 such an identification of the unnamed defendants by their "roles" 8 should be sufficient to enable a plaintiff to survive a motion to 9 dismiss, and subsequently to use discovery to identify them. 10 Supra at [21]. But as indicated above, And while the majority is correct that the complaint does not utter remove Mr. Arar to Syria. Without elaboration, Defendant Blackman also stipulated that Mr. Arar's removal would be consistent with Article 3 of CAT. . . . (A copy of Defendant Blackman's decision is attached as Exhibit D [to the complaint]). Compl. ¶ 47. 16 The complaint alleges, inter alia: The only notice given [Arar's counsel prior to his interrogation late on the evening of Sunday, October 6, 2002] was a message left by Defendant McElroy, District Director for Immigration and Naturalization Services for New York City, on [counsel's] voice mail at work that same [Sunday] evening. [She] did not retrieve the message until she arrived at work the next day, Monday morning, October 7, 2002 -- long after Mr. Arar's interrogation had ended. Compl. ¶ 43. -28- 1 the talismanic words "meeting of the minds" to invoke an 2 agreement among the defendants, see supra at [21], it is plain 3 that the logistically complex concerted action allegedly taken to 4 detain Arar and then transport him abroad implies an alleged 5 agreement by government actors within the United States to act in 6 concert. 7 8 9 10 B. Dismissal of Claims of Denial of Access to Courts and Counsel 11 "interfere[nce] with his access to lawyers and the courts" while 12 he was incarcerated by United States officials, Compl. ¶ 93, we 13 think the district court erred here, too. 14 claim requires the pleading of (1) a "nonfrivolous, arguable 15 underlying claim" that has been frustrated by the defendants' 16 actions, and (2) a continued inability to obtain the relief 17 sought by the underlying claim. 18 (internal quotation marks omitted). 19 that Arar failed to plead with sufficient "precis[ion]" the 20 existence of a sought-for underlying claim for relief, Arar, 414 21 F. Supp. 2d at 286, which means it decided that, for purposes of 22 Federal Rule of Civil Procedure 8,17 the defendants were not put With respect to the dismissal of Arar's claim for 17 An access to courts Christopher, 536 U.S. at 415-16 The district court decided That rule provides: Claim for Relief. A pleading that states a -29- 1 on notice of the existence of such a claim. 2 U.S. at 416 ("Like any other element of an access claim, the 3 underlying cause of action and its lost remedy must be addressed 4 by allegations . . . sufficient to give fair notice to a 5 defendant."). 6 See Christopher, 536 But taking the allegations in the complaint as true, as 7 we must, the complaint clearly implies the existence of an 8 underlying claim for relief under CAT. 9 argue that under Arar's assertions, which we take to be true, The defendants can hardly 10 they lacked notice of such a claim, since the complaint says that 11 it was they who first notified Arar about it: 12 on October 8, 2002, "two INS officials told him that . . . 13 Defendant Blackman . . . had decided to remove [him] to Syria," 14 and "Defendant Blackman also stipulated that [such action] would 15 be consistent with Article 3 of CAT." Arar alleges that Compl. ¶ 47. Indeed, the claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief. Fed. R. Civ. P. 8(a). -30- 1 complaint alleges that Arar asked defendants for reconsideration 2 of that decision -- i.e., relief from it -- in light of the 3 prospect of torture in Syria, but the officials said that "the 4 INS is not governed by the 'Geneva Conventions.'" 5 Id. Insofar as the district court's requirement that Arar 6 "articulate more precisely the judicial relief he was denied," 7 Arar, 414 F. Supp. 2d at 286, related to its holding that "Bivens 8 did not extend a remedy to Arar for his deportation to Syria," 9 id., we disagree for the reasons set forth below. Insofar as the 10 district court thought Arar's underlying CAT claim would have 11 been frivolous, it was mistaken. 12 357 F.3d 169, 184 (2d Cir. 2004) (pursuant to the CAT, the United 13 States may not remove an alien to a country if "'it is more 14 likely than not that he or she would be tortured if removed to 15 [that country]'" 16 Cf. Ramsameachire v. Ashcroft, (quoting 8 C.F.R. § 208.16(c)(2))). Nor was CAT the only relief Arar was denied. As the 17 government pointed out at oral argument, "th[e] decision [in 18 Michael v. INS, 48 F.3d 657 (2d Cir. 1995),] shows that in 19 extraordinary cases, and no one can dispute that this is an 20 extraordinary case, the plaintiff could have filed a habeas -31- 1 [petition] and sought a stay pursuant to the All Writs Act." 2 Tr. at 82 (Cohn).18 3 Contrary to the district court's ruling, then, Arar's 4 complaint put the defendants on notice of claims seeking relief 5 to bar his removal that were frustrated by the defendants' 6 actions. 7 would not have been "frivolous." 8 rendition and torture themselves -- 9 majority, of course, conclude there is none -- no contemporaneous 10 legal relief is now possible except through the access to courts 11 and counsel claim. 12 al. at 12-14. 13 sufficient due process access claim. 14 C. Whatever the ultimate merits of those claims, they And absent a remedy for the the district court, and the See generally Br. of Amici Norman Dorsen et The Fourth Claim for Relief therefore states a Sufficient Pleading under Iqbal 15 More generally, we think the district court's extended 16 recitation of the allegations in the complaint makes clear that 17 the facts of Arar's mistreatment while within the United States 18 In response to a question by the Chief Judge as to what cognizable allegations might be made in such a habeas petition, the government said, "Your Honor, I'm not going to speak for what a judge might or might not have said, but in his habeas position and his petition for a stay he could say, look, things are moving quickly, I'm afraid they're going to send me to Syria, don't let that happen." Tr. 84; see also id. at 85. -32- 1 -- including the alleged denial of his access to courts and 2 counsel and his alleged mistreatment while in federal detention 3 in the United States -- were pleaded meticulously and in copious 4 detail. 5 and names when known -- is lengthy and specific. 6 in light of Supreme Court case law post-dating the district 7 court's dismissal of the fourth claim, which instituted a more 8 stringent standard of review for pleadings, the complaint here 9 passes muster. The assertion of relevant places, times, and events -Even measured It does not "offer[] 'labels and conclusions' or 10 'a formulaic recitation of the elements of a cause of action.'" 11 Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 12 550 U.S. 544, 555 (2007)). 13 assertion[s]' devoid of 'further factual enhancement.'" 14 (quoting Twombly, 550 U.S. at 557). 15 constitutional violation are "'plausible on [their] face.'" 16 (quoting Twombly, 550 U.S. at 555). 17 Arar has pled "factual content that allows the court to draw the 18 reasonable inference that the defendant[s] [are] liable for the 19 misconduct alleged." 20 would therefore vacate the district court's dismissal of the 21 Fourth Claim for Relief. Nor does it "tender[] 'naked Id. Its allegations of a Id. And, as we have explained, Id. (quoting Twombly, 550 U.S. at 556). -33- We 1 2 III. The Majority's Interpretation of the Second and Third Claims for Relief 3 Having thus decided, mistakenly we think, that Arar's 4 Fourth Claim for Relief has failed, our colleagues leap to the 5 conclusion that what remains -- the allegations contained in what 6 Arar's complaint styles as the Second and Third Claims for Relief 7 -- relates only to the legal implications of the international 8 and foreign elements of the defendants' behavior. 9 [21] ("Arar's remaining claims seek relief on the basis of See supra at 10 torture and detention in Syria . . . ."). 11 with the majority's view that the Fourth Claim for Relief 12 warranted dismissal, we would still not concur in its crabbed 13 interpretation of Arar's complaint in light of the facts alleged 14 in it. 15 Even were we to agree "[W]e may not affirm the dismissal of [a] complaint 16 because [it has] proceeded under the wrong theory 'so long as [it 17 has] alleged facts sufficient to support a meritorious legal 18 claim.'" 19 89 (2d Cir. 2000) (plurality opinion of Pooler, J.) (quoting 20 Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 21 1997)), cert. denied, 534 U.S. 888 (2001). 22 alone are what matter[].'" 23 Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (en Hack v. President & Fellows of Yale Coll., 237 F.3d 81, "'Factual allegations Northrop, 134 F.3d at 46 (quoting -34- 1 banc)); see also Newman v. Silver, 713 F.2d 14, 15 n.1 (2d Cir. 2 1983) ("[T]he nature of federal pleading . . . is by statement of 3 claim, not by legal theories.").19 4 those factual allegations as a whole. 5 F.3d 717, 721 (2d Cir. 1997); see also Aldana v. Del Monte Fresh 6 Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005) 7 (per curiam), cert. denied, 127 S. Ct. 596 (2006); Goldwasser v. 8 Ameritech Corp., 222 F.3d 390, 401 (7th Cir. 2000). And we are required to read See Shapiro v. Cantor, 123 9 Although Arar pled in his Fourth Claim for Relief what 10 he denominated as a separate "Claim" on the subject of "Domestic 11 Detention," including allegations about unconstitutional 12 conditions of confinement and denial of access to courts and 13 counsel, the complaint as a whole makes broader allegations of 14 mistreatment while within the borders of the United States. 15 According to the complaint: 16 government agents as he sought to change planes at JFK; (2) he 17 was not seeking to enter the United States; (3) his detention was (1) Arar was apprehended by 19 The Federal Rules of Civil Procedure instruct that "[p]leadings must be construed so as to do justice." Fed. R. Civ. P. 8(e). Wright and Miller's treatise counsels that "[t]his provision is not simply a precatory statement but reflects one of the basic philosophies of practice under the federal rules." 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004). "One of the most important objectives of the federal rules is that lawsuits should be determined on their merits and according to the dictates of justice, rather than in terms of whether or not the averments in the paper pleadings have been artfully drawn." Id. -35- 1 for the purpose of obtaining information from him about terrorism 2 and his alleged links with terrorists and terrorist 3 organizations; (4) he was interrogated harshly on that topic -- 4 mostly by FBI agents - for many hours over a period of two days; 5 (5) during that period, he was held incommunicado and was 6 mistreated by, among other things, being deprived of food and 7 water for a substantial portion of his time in custody; (6) he 8 was then taken from JFK to the MDC in Brooklyn, where he 9 continued to be held incommunicado and in solitary confinement 10 for another three days; (7) while at the MDC, INS agents sought 11 unsuccessfully to have him agree to be removed to Syria because 12 they and other U.S. government agents intended that he would be 13 questioned there along similar lines, but under torture; (8) U.S. 14 officials thwarted his ability to consult with counsel or access 15 the courts; and (9) thirteen days after Arar had been intercepted 16 and incarcerated at the airport, defendants sent him against his 17 will to Syria, where they allegedly intended that he be 18 questioned under torture and while enduring brutal and inhumane 19 conditions of captivity. 20 single course of action conceived of and executed by the 21 defendants in the United States in order to try to make Arar 22 "talk." This was, as alleged, all part of a -36- 1 It may not have been best for Arar to file a complaint 2 that structures his claims for relief so as to charge knowing or 3 reckless subjection to torture, coercive interrogation, and 4 arbitrary detention in Syria (the second and third claims) 5 separately from charges of cruel and inhuman conditions of 6 confinement and "interfere[nce] with access to lawyers and the 7 courts" while in the United States (the fourth claim). 8 division of theories is of no legal consequence. 9 allegations alone are what matter[].'" Northrop, 134 F.3d at 46 10 (quoting Albert, 851 F.2d at 571 n.3). The assessment of Arar's 11 complaint must, then, take into account the entire arc of factual 12 allegations that it contains - his interception and arrest; his 13 interrogation, principally by FBI agents, about his putative ties 14 to terrorists; his detention and mistreatment at JFK in Queens 15 and the MDC in Brooklyn; the deliberate misleading of both his 16 lawyer and the Canadian Consulate; and his transport to 17 Washington, D.C. and forced transfer to Syrian authorities for 18 further detention and questioning under torture. 19 to the complaint's factual allegations, rather than its legal 20 theories, makes perfectly clear that the remaining claims upon 21 which Arar seeks relief are not limited to his "detention or 22 torture in Syria," supra at [6], but include allegations of -37- But such "'Factual Such attention 1 violations of his due process rights in the United States. The 2 scope of those claims is relevant in analyzing whether a Bivens 3 remedy is available. 4 IV. The "Context" in Which a Bivens Remedy Is Sought 5 The majority's artificial interpretation of the 6 complaint permits it to characterize the "context" of Arar's 7 Bivens action as entirely one of "international rendition, 8 specifically, 'extraordinary rendition.'" 9 also id. ("Extraordinary rendition is treated as a distinct Supra at [32]; see 10 phenomenon in international law."). This permits the majority to 11 focus on the part of the complaint that presents a "new context" 12 for Bivens purposes. 13 light of all of Arar's allegations, his due process claim for 14 relief from his apprehension, detention, interrogation, and 15 denial of access to counsel and courts in the United States, as 16 well as his expulsion to Syria for further interrogation likely 17 under torture, is not at all "new." 18 A. But when the complaint is considered in Bivens and Its Progeny 19 In Bivens v. Six Unknown Named Agents of Fed. Bureau of 20 Narcotics, 403 U.S. 388 (1971), the Supreme Court "recognized for 21 the first time an implied private action for damages against 22 federal officers alleged to have violated a citizen's -38- 1 constitutional rights." 2 61, 66 (2001). 3 violation by federal officers [to] bring suit for money damages 4 against the officers in federal court." 5 has been reluctant, as the majority correctly observes, to 6 "extend" Bivens liability further. 7 at 2597. 8 "an implied damages remedy under the Due Process Clause of the 9 Fifth Amendment" in Davis v. Passman, 442 U.S. 228 (1979), and 10 under "the Cruel and Unusual Punishments Clause of the Eighth 11 Amendment" in Carlson v. Green, 446 U.S. 14 (1980). Malesko, 534 12 U.S. at 67; see also Wilkie, 127 S. Ct. at 2597-98. But we must 13 ask whether we should "devise a new Bivens damages action," 14 Wilkie, 127 S. Ct. at 2597, only if the asserted action is, 15 indeed, new. 16 the plaintiff is asking the court to "extend Bivens liability to 17 a[] new context or new category of defendants." 18 U.S. at 68. 19 B. 20 Corr. Servs. Corp. v. Malesko, 534 U.S. Bivens permitted "a victim of a Fourth Amendment Id. The Supreme Court See, e.g., Wilkie, 127 S. Ct. The Court has done so only twice - in the contexts of And a new Bivens action is not being sought unless Malesko, 534 The New Category of Defendants Test The majority does not suggest that Arar's Bivens claim 21 fails because it is against a new category of defendants. 22 Bivens remedy was devised to supply relief for constitutional -39- The 1 torts by federal agents and officials. 2 70. 3 C. 4 See Malesko, 534 U.S. at The New Context Test The questions, then, are whether we are facing a "new 5 context," or considering recognizing "a new Bivens damages 6 action," questions that are complicated by the fact that the 7 meaning that the Supreme Court has ascribed to those terms is 8 less than clear. 9 Bivens was extended to "a new right of action" in Davis v. Compare Malesko, 534 U.S. at 67 (noting that 10 Passman, in which the Court "recognized an implied damages remedy 11 under the Due Process Clause of the Fifth Amendment" (emphasis 12 added)), with id. at 68 (describing Schweiker v. Chilicky, 487 13 U.S. 412 (1988), as presenting a "new context[]" in which the 14 plaintiffs sought damages under the Due Process Clause for errors 15 made by federal officials "in the[] handling of [their] Social 16 Security applications" (emphasis added)). 17 If the alleged facts of Arar's complaint were limited 18 to his claim of "extraordinary rendition" to, and torture in, 19 Syria -- that is, limited to his allegations that he was 20 transported by the United States government to Syria via Jordan 21 pursuant to a conspiracy or other arrangement among the countries 22 or their agents and mistreated in Syria as a result -- as the -40- 1 majority would have it, then we might well agree that we are 2 dealing with a "new context." 3 complaint is not so limited. 4 without cause, mistreatment while so incarcerated, denial of 5 access to counsel and the courts while so incarcerated, and the 6 facilitation of torture by others, considered as possible 7 violations of a plaintiff's procedural and substantive due 8 process rights, are hardly novel claims, nor do they present us 9 with a "new context" in any legally significant sense.20 10 But, as we have explained, the Incarceration in the United States We have recognized implied Bivens rights of action 11 pursuant to the Due Process Clause, so Arar's claims for relief 12 are not new actions under Bivens in that sense. 20 A deprivation of In one sense, every case presents a new context, in that it presents a new set of facts to which we are expected to apply established law. But a new set of facts is not ipso facto a "new context." We do not decide, based on the difference in factual setting alone, whether or not it is a good idea to allow a plaintiff to avail him or herself of a well-established remedy such as that afforded by Bivens. This is illustrated by cases involving legal contexts where Bivens is well-established, in which courts do not conduct a fresh assessment as to whether a Bivens action is available based on the facts of each case. See, e.g., Groh v. Ramirez, 540 U.S. 551 (2004) (Bivens action for Fourth Amendment violation); McCarthy v. Madigan, 503 U.S. 140 (1992) (Bivens action for Eighth Amendment violation), superseded by statute on other grounds as stated in Booth v. Churner, 532 U.S. 731 (2001); Castro v. United States, 34 F.3d 106 (2d Cir. 1994) (Fourth Amendment); Armstrong v. Sears, 33 F.3d 182 (2d Cir. 1994) (same); Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994) (same); see also Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004) (same), rev'd on other grounds, sub nom Will v. Hallock, 546 U.S. 345 (2006). -41- 1 procedural due process rights can give rise to a Bivens claim 2 under our case law. 3 80-83 (2d Cir. 2000). 4 squarely considered whether a Bivens action may lie for alleged 5 violations of substantive due process rights, our cases imply 6 that it can be. 7 rev'd in part on other grounds sub nom Ashcroft v. Iqbal, 129 S. 8 Ct. 1937 (2009), for example, we considered a Bivens action 9 brought on, inter alia, a Fifth Amendment substantive due process See, e.g., Tellier v. Fields, 280 F.3d 69, And while we do not appear to have In Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), 10 theory. The plaintiff alleged physical mistreatment and 11 humiliation, as a Muslim prisoner, by federal prison officials, 12 while he was detained at the MDC. 13 interlocutory appeal, that the defendants were not entitled to 14 qualified immunity, we returned the matter to the district court 15 for further proceedings. 16 a Bivens remedy was unavailable or that its availability would After concluding, on We did not so much as hint either that -42- 1 constitute an unwarranted extension of the Bivens doctrine.21 2 Iqbal, 490 F.3d at 177-78. 3 In other cases we have apparently assumed Bivens 4 remedies were available for substantive due process claims. See 5 Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006) (reversing 6 district court's dismissal of Bivens action for violation of 7 plaintiff's Fifth Amendment substantive due process rights while 8 detained at the MDC); Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 9 2000) (dismissing, on qualified immunity grounds, plaintiff's 10 Bivens claim for, inter alia, substantive due process violations, 11 without questioning whether a cause of action was available); Li 12 v. Canarozzi, 142 F.3d 83 (2d Cir. 1998) (affirming judgment 13 following jury verdict for defendants in Bivens action based on 14 allegations of physical assault by guards at the federal 15 Metropolitan Correctional Center in New York City, although not 16 explicitly on substantive due process grounds); Ayeni v. Mottola, 17 35 F.3d 680, 691 (2d Cir. 1994) (apparently assuming that Bivens 18 remedy was available for substantive due process claim, but 21 Shortly after we decided Iqbal, the Supreme Court made clear that by appealing from the district court's denial of qualified immunity, the defendants placed within our jurisdiction the question of "the recognition of the entire cause of action." Wilkie, 127 S. Ct. at 2597 n.4. The district court in Iqbal had specifically rejected the defendants' argument that a Bivens action was unavailable. See Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *14, 2005 U.S. Dist. LEXIS 21434, at *44-*45 (E.D.N.Y. Sept. 27, 2005). Thus, had we thought that no Bivens action was available, we had the power to resolve Iqbal's claims on that basis. -43- 1 deciding that it could not be pursued because the claim in issue 2 was covered by the more particular provisions of the Fourth 3 Amendment, for which a Bivens action was permitted), abrogated on 4 qualified immunity grounds, Wilson v. Layne, 526 U.S. 603 (1999). 5 Indeed, even the most "international" of Arar's 6 domestic allegations -- that the defendants, acting within the 7 United States, sent Arar to Syria with the intent that he be 8 tortured -- present no new context for Bivens purposes. 9 Principles of substantive due process apply to a narrow band of 10 extreme misbehavior by government agents acting under color of 11 law: mistreatment that is "so egregious, so outrageous, that it 12 may fairly be said to shock the contemporary conscience." 13 Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (internal 14 quotation marks omitted). 15 with the intent or understanding that he will be tortured in 16 Syria easily exceeds the level of outrageousness needed to make 17 out a substantive due process claim. 18 Sending Arar from the United States Although the "shocks the conscience" test is undeniably 19 "vague," see Estate of Smith v. Marasco, 430 F.3d 140, 156 (3d 20 Cir. 2005); Schaefer v. Goch, 153 F.3d 793, 798 (7th Cir. 1998), 21 "[n]o one doubts that under Supreme Court precedent, 22 interrogation by torture" meets that test, Harbury v. Deutch, 233 -44- 1 F.3d 596, 602 (D.C. Cir. 2000), rev'd on other grounds sub nom 2 Christopher v. Harbury, 536 U.S. 403 (2002);22 see also Rochin v. 3 California, 342 U.S. 165, 172 (1952) (holding that the forcible 4 pumping of a suspect's stomach to obtain evidence to be used 5 against him was "too close to the rack and the screw to permit of 6 constitutional differentiation"); Palko v. Connecticut, 302 U.S. 7 319, 326 (1937) (noting that the Due Process Clause must at least 8 "give protection against torture, physical or mental"), overruled 9 on other grounds, Benton v. Maryland, 395 U.S. 784 (1969); Brown 10 v. Mississippi, 297 U.S. 278, 285-86 (1936) ("Because a state may 11 dispense with a jury trial, it does not follow that it may 12 substitute trial by ordeal. 13 be substituted for the witness stand.").23 The rack and torture chamber may not 22 The D.C. Circuit in Harbury concluded that the interrogation in question did not violate the Constitution because it occurred entirely abroad. See Harbury, 233 F.3d at 602-04 (relying upon United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)). 23 The full quotation is: [T]he freedom of the state in establishing its policy is the freedom of constitutional government and is limited by the requirement of due process of law. Because a State may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and torture chamber may not be substituted for the witness stand. Because a state may dispense with a jury trial, it does not follow that it may substitute trial by ordeal. The rack and -45- 1 To be sure, Arar alleges not that the defendants 2 themselves tortured him; he says that they "outsourced" it.24 3 we do not think that the question whether the defendants violated 4 Arar's substantive due process rights turns on whom they selected 5 to do the torturing,25 or that such "outsourcing" somehow changes 6 the essential character of the acts within the United States to 7 which Arar seeks to hold the defendants accountable. 8 We think that Arar states a substantive due process 9 But claim under either of two theories of substantive due process 10 liability: "special relationship liability" or 11 "state-created-danger liability," Benzman v. Whitman, 523 F.3d 12 119, 127 (2d Cir. 2008) (internal quotation marks omitted). torture chamber may not be substituted for the witness stand. Brown, 297 U.S. at 285-86. 24 "[R]endition -- the market approach -- outsources our crimes, which puts us at the mercy of anyone who can expose us, makes us dependent on some of the world's most unsavory actors, and abandons accountability. It is an approach we associate with crime families, not with great nations." Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century 388 (2008). "[O]ne could get the worst of both worlds: national responsibility for acts as to which the agents we have empowered are unaccountable." Id. at 387. 25 "I do not think that whether the defendants violated Arar's Fifth Amendment rights turns on whom they selected to do the torturing: themselves, a Syrian Intelligence officer, a warlord in Somalia, a drug cartel in Colombia, a military contractor in Baghdad or Boston, a Mafia family in New Jersey, or a Crip set in South Los Angeles." Arar partial panel dissent at 205. -46- 1 Under the latter doctrine, the defendants can be held liable for 2 "tak[ing] an affirmative act that creates an opportunity for a 3 third party to harm a victim (or increases the risk of such 4 harm)." 5 owed "an affirmative duty" by the defendants to protect him from 6 harm by Syrian agents in light of the fact that the government 7 took him "into its custody and h[eld] him there against his 8 will." 9 Cir.) (citations, internal quotation marks, and footnotes 10 11 Lombardi, 485 F.3d at 80. Under the former, Arar was Matican v. City of New York, 524 F.3d 151, 155-56 (2d omitted), cert. denied, 129 S. Ct. 636 (2008). In sum, we do not view the current action as presenting 12 a "new context" in any relevant sense. We therefore do not think 13 we must decide whether "to devise a new Bivens damages action." 14 Wilkie, 127 S. Ct. at 2597, here. 15 V. Devising a New Bivens Damages Action 16 Even apart from our disagreement with the majority that 17 Arar's claims present a new context in which to extend Bivens 18 liability, we are puzzled by the majority's analysis as to 19 whether to do so. 20 consideration is whether a Bivens action should be permitted in 21 what it has concluded is a new context, the majority engages in a 22 two-part inquiry: "whether there is an alternative remedial Having decided that the issue for our -47- 1 scheme available to the plaintiff; and whether 'special factors 2 counsel[] hesitation' in creating a Bivens remedy." 3 [33] (quoting Wilkie, 127 S. Ct. at 2598). Supra at 4 Our colleagues wisely decline to decide the first 5 issue, whether an alternative remedial scheme is available, 6 partly because they conclude that this is not an immigration case 7 (or, at least, not a "typical" one), see supra at [28], and 8 partly because "Arar has alleged that he was actively prevented 9 from seeking any meaningful review and relief through the INA 10 processes," supra at [35]; see also supra at [27]. 11 significant inasmuch as the Supreme Court has observed that it 12 has recognized "new" Bivens actions precisely, inter alia, "to 13 provide a cause of action for a plaintiff who lacked any 14 alternative remedy for harms caused by an individual officer's 15 unconstitutional conduct." 16 omitted). 17 This is Malesko, 534 U.S. at 70 (emphasis The majority moves on to the second prong of the test, 18 concluding that "special factors are clearly present in the new 19 context of this case, and they sternly counsel hesitation." 20 Supra at [35-36]. 21 concludes that Arar should be afforded no Bivens right of action 22 in light of such "special factors." We think it unfortunate that the majority -48- We quarrel not only with 1 their conclusion, but also the majority's apparent treatment of 2 the existence vel non of "special factors counseling hesitation" 3 as the determinative legal standard for whether an extension of 4 Bivens is warranted. 5 many of the "special factors" cited by the majority are not 6 properly considered to be such, we think it mistaken to preclude 7 Bivens relief solely in light of a citation or compilation of one 8 or more purported examples of such "special factors." 9 A. 10 Setting aside for the moment our view that "Special Factors" As a Standard The majority is not altogether clear in conveying its 11 understanding of the legal significance of a finding that 12 "special factors counseling hesitation," "sternly" or otherwise, 13 are present. 14 pause, not a full stop, or an abstention; and to counsel is not 15 to require," supra at [37], but it also states that 16 countervailing factors are not considered, and that no such 17 factors have "ever been cited by the Supreme Court as a reason 18 for affording a Bivens remedy where it would not otherwise 19 exist," id. 20 presence of "special factors counseling hesitation" in fact does 21 require a "full stop, or an abstention." The majority acknowledges that "[h]esitation is a What we are left with is an implication that the -49- We disagree. It seems 1 to us that the existence of such "special factors" alone does not 2 compel a conclusion that a Bivens action is unavailable. 3 When the words "special factors counseling hesitation" 4 were first uttered by the Supreme Court, in Bivens itself, the 5 Court asserted that there is a general rule "that where legal 6 rights have been invaded, and a federal statute provides for a 7 general right to sue for such invasion, federal courts may use 8 any available remedy to make good the wrong done." 9 U.S. at 396 (internal quotation marks omitted). Bivens, 403 The Court then 10 said: "The present case involves no special factors counseling 11 hesitation in the absence of affirmative action by Congress," 12 citing cases in which the general rule had not been applied.26 13 Id. 14 hesitation, and its simultaneous recognition in the case before 15 it of a private right of action did not imply, however -- as the 16 majority seems to -- that if there had been reason to hesitate, The Bivens Court's observation that there was no cause for 26 The Court referred by way of example to its previous decisions in United States v. Standard Oil Co., 332 U.S. 301, 311 (1947), in which it had concluded that the government had no implied right of action against a company that had allegedly injured a soldier because it trenched upon "federal fiscal policy" particularly delegated to Congress, and Wheeldin v. Wheeler, 373 U.S. 647 (1963), in which the Court found no private right of action under federal law where the defendant's acts were not asserted to violate the plaintiff's constitutional rights and were governed by state law. -50- 1 then the Court, ipso facto, would not have recognized a right of 2 action.27 3 The Supreme Court has not told us that "special factors 4 counseling hesitation" are to be understood to prohibit a private 5 right of action. 6 deciding "whether to recognize a Bivens remedy may require two 7 steps," the second of which asks that the court "pay[] particular 8 heed . . . to any special factors counselling hesitation," id., 9 127 S. Ct. at 2598 (emphasis added). In Wilkie, for example, the Court noted that And the Court, in Bush v. 10 Lucas, 462 U.S. 367 (1983), relied upon by the Wilkie Court in 11 this regard, similarly observed that "[i]n the absence of . . . a 12 congressional directive [that a right of action lies], the 13 federal courts must make the kind of remedial determination that 14 is appropriate for a common-law tribunal, paying particular heed, 15 however, to any special factors counseling hesitation before 16 authorizing a new kind of federal litigation." 17 (emphasis added). 27 Id. at 378 This appears to reflect a classic logical fallacy, "denial of the antecedent," which mistakes a necessary condition for a sufficient one. E.M. Adams, The Fundamentals of General Logic 164 ("The truth of the premises does not require the truth of the conclusion. This means that denying the antecedent is an invalid form of the simple conditional argument."). -51- 1 "[H]eed" means "[c]lose attention" or "notice." 2 American Heritage Dictionary of the English Language 813 (4th ed. 3 2000). 4 "to be governed by." 5 is 'counseled' whenever thoughtful discretion would pause even to 6 consider." 7 counseling hesitation" were determinative of the existence of a 8 right of action, the bar to declining to allow a new Bivens claim 9 would be less than "remarkably low." 10 To "pay heed," then, means "to notice," it does not mean The majority tells us that "'[h]esitation' Supra at [37]. If the existence of "special factors Id. It would be chimerical. 11 It is difficult to deny the existence of "special 12 factors counseling hesitation" in this case. We have been 13 "hesitating" -- in order to deliberate in light of those factors 14 -- for nearly two years. 15 consider "special factors" strongly indicates that they counsel 16 hesitation, it cannot follow that having hesitated, we must 17 therefore halt, and dismiss the Bivens complaint.28 While the time we have taken to 28 Such a test would be reminiscent of Leo Tolstoy's brother's perhaps apocryphal challenge to Tolstoy to stand in a corner and not think of a white bear. See, e.g., Aylmer Maude, The Life of Tolstoy: First Fifty Years (Dodd, Mead and Co. 1910) 19 ("[T]here was also a certain Fanfarónof Hill, up which [my brother] said he could lead us, if only we would fulfil all the appointed conditions. These were: first, to stand in a corner and not think of a white bear. I remember how I used to get into a corner and try (but could not possibly manage) not to think of -52- 1 B. The Special Factors Identified by the Majority 2 The "special factors" cited by the majority fall into 3 one of two general categories: those involving security, secrecy, 4 and confidentiality, and those involving other policy 5 considerations. 6 summarizing each factor as the majority describes it and then 7 setting forth our view of the factor's weight. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1. ! We turn to the latter category first, briefly Factors not involving secrecy or security. This action asks for damages, but it functionally "operates as a constitutional challenge to the policies promulgated by the executive." Supra at [38]. We should hesitate to allow such an action to proceed because to do so would tacitly "decide," id., that Bivens can subject federal officers to the kind of enterprise liability that was established for actions under 42 U.S.C. § 1983 by Monell v. Department of Social Services, 436 U.S. 658 (1978), but has not been established for Bivens actions. This paraphrase sets forth the strongest argument 22 ("factor"), we think, for denying a Bivens remedy to Arar. 23 Iqbal, it would be difficult to argue that Arar's complaint can 24 survive as against defendants who are alleged to have been 25 supervisors with, at most, "knowledge" of Arar's mistreatment. 26 See Iqbal, 129 S. Ct. at 1949; see also id. at 1955 (Souter, J., a white bear."). -53- After 1 dissenting). 2 defendant, perhaps it should be dismissed for want of possible 3 liability under Bivens too. 4 case against the lower-level defendants, such as Blackman, 5 McElroy, and the Doe defendants, who are alleged to have 6 personally undertaken purposeful unconstitutional actions against 7 Arar. 8 9 And to the extent that the United States remains a But that does not dispose of the It also may be that to the extent actions against "policymakers" can be equated with lawsuits against policies, 10 they may not survive Iqbal either. But while those championing 11 Arar's case may in fact wish to challenge extraordinary rendition 12 policy writ large, the relief Arar himself seeks is principally 13 compensation for an unconstitutional implementation of that 14 policy. That is what Bivens actions are for. 15 16 17 18 19 20 21 22 ! Actions for damages against federal officers "who implement" rendition "policy" implicate sovereign immunity concerns, by "influenc[ing] government policy, prob[ing] government secrets, invad[ing] government interests, enmesh[ing] government lawyers, and . . . elicit[ing] government funds for settlement." Supra at [39]. 23 24 25 26 27 28 29 ! Recognizing a Bivens action for Arar would entail a judicial "assessment of the validity and rationale" of rendition, which "directly affect[s] significant diplomatic and national security concerns." Supra at [40]. The concern here is in part one of separation of powers, see supra at [41], and in part one of -54- 1 2 institutional incompetence, see supra at [41]. 3 Aside from diplomatic and national security 4 considerations, which we address below, this consideration 5 applies to all civil rights actions. 6 implicates "government interests," enmeshes government lawyers, 7 and elicits government funds for settlement. 8 nature authorizes courts to invalidate exercises in executive 9 power. Bivens by its nature Bivens by its A Bivens action, like any other civil rights action, is 10 an attempt to hold members of the executive accountable for their 11 allegedly unconstitutional acts, through the courts. 12 "special factors" were persuasive grounds on which to deny Bivens 13 actions, they would not only not be permitted in new contexts, 14 they would not be permitted at all. 15 If these Similarly, insofar as this Bivens action may influence 16 executive policy, we doubt that that should be a factor 17 "counseling hesitation" either. 18 policy: 19 violate the Constitution. 20 Cole, 504 U.S. 158, 161 (1992) ("The purpose of § 1983 is to 21 deter state actors from using the badge of their authority to 22 deprive individuals of their federally guaranteed rights and to 23 provide relief to victims if such deterrence fails."). Civil rights actions influence They make it more costly for executive officers to That is their point. -55- See Wyatt v. 1 Finally, the majority suggests that "[i]n the small 2 number of contexts in which courts have implied a Bivens remedy, 3 it has often been easy to identify both the line between 4 constitutional and unconstitutional conduct, and the alternative 5 course which officers should have pursued," a "distinction [the 6 majority says] may or may not amount to a special factor 7 counseling hesitation in the implication of a Bivens remedy." 8 Supra at [54]. It should be noted to the contrary that in the two 9 Supreme Court decisions that did "extend" a Bivens remedy in a 10 "new context," such identification was anything but "easy." 11 Carlson v. Green, 446 U.S. 14 (1980), involved the line between 12 constitutional and unconstitutional medical treatment and medical 13 facilities in prisons, whose management the Supreme Court has 14 found "peculiarly within the province and professional expertise 15 of corrections officials" -- and thus outside of the competence 16 of judges -- and instructed courts to "ordinarily defer to 17 [prison officials'] expert judgment," Pell v. Procunier, 417 U.S. 18 817, 827 (1974). 19 addressed the line between constitutional and unconstitutional 20 discrimination in public employment, which the Court later 21 observed raises issues requiring "decisions [that] are quite 22 often subjective and individualized, resting on a wide array of 23 factors that are difficult to articulate and quantify," Engquist 24 v. Or. Dep't of Agric., 128 S.Ct. 2146, 2154 (2008). And Davis v. Passman, 442 U.S. 228 (1979), -56- 1 The factors relied upon by the majority that do not 2 relate to secrecy or security therefore do not appear to us to 3 counsel strongly against recognition of a Bivens remedy here. 4 2. Factors involving secrecy or security. The other 5 "special factors" cited by the majority focus our attention on 6 the ability of the executive to conduct the business of diplomacy 7 and government in secret as necessary and to protect public and 8 private security. 9 protect that concern. It is beyond dispute that the judiciary must See, e.g., Doe v. CIA, 576 F.3d 95 (2d 10 Cir. 2009). 11 doing just that, we think treating that need as giving rise to 12 "special factors counseling hesitation" is an unfortunate form of 13 double counting. 14 is, dealt with case by case by employing the established 15 procedures of the state-secrets doctrine, see id.; see also 16 section VI, below, rather than by barring all such plaintiffs at 17 the courtroom door without further inquiry. 18 C. 19 But inasmuch as there are established procedures for The problem can be, should be, and customarily Factors Weighing in Favor of a Bivens Action At least some factors weigh in favor of permitting a 20 Bivens action in this case. We assume, as we are required to, 21 that Arar suffered a grievous infringement of his constitutional 22 rights by one or more of the defendants, from his interception -57- 1 and detention while changing planes at an international airport 2 to the time two weeks later when he was sent off in the 3 expectation -- perhaps the intent and expectation -- that he 4 would be tortured, all in order to obtain information from him. 5 Breach of a constitutional or legal duty would appear to counsel 6 in favor of some sort of opportunity for the victim to obtain a 7 remedy for it. 8 explains: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Justice Harlan's landmark concurrence in Bivens The[ government's] arguments for a more stringent test to govern the grant of damages in constitutional cases [than that governing a grant of equitable relief] seem to be adequately answered by the point that the judiciary has a particular responsibility to assure the vindication of constitutional interests . . . . To be sure, "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." But it must also be recognized that the Bill of Rights is particularly intended to vindicate the interests of the individual in the face of the popular will as expressed in legislative majorities; at the very least, it strikes me as no more appropriate to await express congressional authorization of traditional judicial relief with regard to [the plaintiff's constitutional] legal interests than with respect to interests protected by federal statutes. 31 Bivens, 403 U.S. at 407 (Harlan, J., concurring) (citation and 32 footnote omitted). -58- 1 And more generally, Bivens should be available to 2 vindicate Fifth Amendment substantive due process rights such as 3 those asserted here. 4 Circuit with respect to a Bivens action: As Judge Posner wrote for the Seventh 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 [I]f ever there were a strong case for "substantive due process," it would be a case in which a person who had been arrested but not charged or convicted was brutalized while in custody. If the wanton or malicious infliction of severe pain or suffering upon a person being arrested violates the Fourth Amendment - as no one doubts - and if the wanton or malicious infliction of severe pain or suffering upon a prison inmate violates the Eighth Amendment - as no one doubts it would be surprising if the wanton or malicious infliction of severe pain or suffering upon a person confined following his arrest but not yet charged or convicted were thought consistent with due process. 21 Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989), cert. denied, 22 493 U.S. 1026 (1990);29 accord Magluta v. Samples, 375 F.3d 1269 23 (11th Cir. 2004) (reversing district court's dismissal of 24 pretrial detainee's Bivens action alleging unconstitutional 25 conditions of confinement at federal penitentiary in violation of 26 the Due Process Clause of the Fifth Amendment); Cale v. Johnson, 27 861 F.2d 943, 946-47 (6th Cir. 1988) (concluding that "federal 29 Although there is some disagreement in the Circuits regarding precisely when, following arrest, abuse of detained persons is to be analyzed under principles of substantive due process, we think Judge Posner's comment as to why those principles must apply at some point is insightful and remains valid. -59- 1 courts have the jurisdictional authority to entertain a Bivens 2 action brought by a federal prisoner, alleging violations of his 3 right to substantive due process"), abrogated on other grounds, 4 Thaddeus-X v. Blatter, 175 F.3d 378, 387-88 (6th Cir. 1999); see 5 also Sell v. United States, 539 U.S. 166, 193 (2003) (Scalia, J., 6 dissenting) (observing that "a [Bivens] action . . . is available 7 to federal pretrial detainees challenging the conditions of their 8 confinement" 9 Cir. 1988)).30 10 (citing Lyons v. U.S. Marshals, 840 F.2d 202 (3d A federal inmate serving a prison sentence can employ 11 Bivens to seek damages resulting from mistreatment by prison 12 officials. 13 odd if a federal detainee not charged with or convicted of any 14 offense could not bring an analogous claim.31 Carlson v. Green, 446 U.S. 14 (1980). It would be 30 While cases permitting pretrial detainees to bring Bivens actions for violations of their substantive due process rights support the availability of a Bivens action here, Arar's substantive due process claim should not be evaluated under the standard for assessing the claims of persons who, unlike Arar, were detained pretrial rather than for the purpose of interrogation. 31 We have not been asked by the parties to examine the possibility that Arar has pled facts sufficient to raise a claim under theories other than substantive due process -- such as under the Fourth Amendment, the self-incrimination clause of the Fifth Amendment, or even the Eighth Amendment. Because this is an appeal from a dismissal on the facts pleaded in the complaint under Rule 12(b)(6), we think that even if this Court were to consider such an alternate theory and conclude that it was valid, the case would be subject to remand to the district court for -60- 1 Finally, a factor counseling recognition of a Bivens 2 action is that Arar has no other remedy for the alleged harms the 3 defendant officers inflicted on him. 4 ("In 30 years of Bivens jurisprudence we have extended its 5 holding only twice, to provide an otherwise nonexistent cause of 6 action against individual officers alleged to have acted 7 unconstitutionally, or to provide a cause of action for a 8 plaintiff who lacked any alternative remedy for harms caused by 9 an individual officer's unconstitutional conduct."). 10 11 VI. A. Cf. Malesko, 534 U.S. at 70 The State-Secrets Privilege Resolution on State-Secrets Grounds 12 If we have not been fully persuasive in arguing that a 13 Bivens remedy should not be denied in this case, we hope we have 14 made it abundantly clear that the question is a complex and 15 difficult one. 16 dissent. 17 road to a categorical conclusion that no plaintiff has a private 18 right of action in these circumstances and circumstances like 19 them, when, by a brief order, we could take steps that would 20 likely permit the case to be resolved on its particular facts 21 without new and strained declarations of law. And that underlies our principal cause for We think it improper for the Court to take the twisting further proceedings on that theory. -61- 1 The majority makes a thinly veiled reference to the 2 recognition of a Bivens action as "alacrity or activism." 3 at [37]. 4 out unnecessarily to decide a difficult issue related to 5 separation of powers principles should not be lost. 6 the defense of "liberty," we gather, is no vice. 7 Supra, The irony of its making that assertion while reaching Activism in "The state secrets privilege is a common law 8 evidentiary rule that allows the government to withhold 9 information from discovery when disclosure would be inimical to 10 national security." 11 544, 546 (2d Cir. 1991). 12 invocation of the privilege may be so drastic as to require 13 dismissal," as when a "proper assertion of the privilege 14 precludes access to evidence necessary for the plaintiff to state 15 a prima facie claim." 16 the majority's intuition that this case would likely turn 17 largely, if not entirely, on decisions of national security and 18 diplomacy that the executive branch has already assured us it has 19 good reason to keep out of public view. 20 Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d "In some cases, the effect of an Id. at 547. We share what we think to be Indeed, the government, while arguing before us en banc 21 seeking affirmance on the Bivens issue, could hardly have been 22 clearer: -62- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [I]t seems like at the core of your concerns and perhaps your colleagues' concerns is you don't have more information. And that might be the result of the fact that the district court did not rule on the state secrets issue, so all the classified declarations are not in the record, and if this court felt it could not address our Bivens special factors argument at this stage, and I think it can . . . then I respectfully suggest this court do a limited remand for the district court to review the state secrets issue. The government would have to update the declarations, because much time has passed, but allow the government to do that, have the district court rule on the state secrets issues and then this Court could have this declaration before it if it thought it needed to do that. Tr. 58-59 (Cohn). And: Your Honor, if this Court is talking simply about a limited remand, to send this case back simply for the limited purpose of the district court examining the state secrets issue first [if the court won't address Bivens otherwise], I think there's a lot of sense to that, your Honor. Id. at 62-63 (Cohn). 29 Recognizing that the government, like Arar and his 30 counsel, would prefer a ruling on the merits, we nonetheless 31 think we should be taking the government up on its alternate 32 suggestion. 33 sweeping answers to difficult questions of law that we are not 34 required to ask. 35 address what the majority cites as additional "special factors Doing so would likely allow us to avoid giving And it would, by well-established procedure, -63- 1 counseling hesitation" in recognizing a Bivens right of action. 2 In particular, the majority notes these "factors": 3 4 5 6 7 8 9 10 ! 11 12 13 14 15 16 17 18 19 ! "Cases in the context of extraordinary rendition are very likely to present serious questions relating to private diplomatic assurances from foreign countries . . . , and this feature of such claims opens the door to graymail." Supra at [48]; see also supra at [51] ("The risk of graymail is itself a special factor which counsels hesitation in creating a Bivens remedy."). Judicial consideration of the issues relating to rendition involves particular "sensitivities" because of the need to discover much "classified material," supra at [43], including those relating to "the national security apparatus of at least three foreign countries, as well as that of the United States," supra at [44]. 20 These are "factors" that the state-secrets privilege was designed 21 to address.32 22 We are not without precedent here -- similar both 23 factually and procedurally. In El-Masri v. United States, 479 24 F.3d 296 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007), the 25 issue was an alleged "special rendition" by U.S. agents of a 26 German citizen from Macedonia to a U.S.-controlled prison in 32 Our discussion is limited to the government's invocation of the state-secrets privilege in the context of civil litigation. The protection of state secrets in the course of a criminal prosecution would likely raise many different and difficult issues in light of, among other things, the defendant's rights under the Fifth and Sixth Amendments. -64- 1 Afghanistan for the purpose of abusive interrogation. 2 plaintiff had brought suit, inter alia, pursuant to Bivens, for 3 violation of his due process rights against former CIA director 4 George Tenet, among others. 5 6 7 8 9 10 11 12 The The Fourth Circuit explained: The United States intervened as a defendant in the district court, asserting that ElMasri's civil action could not proceed because it posed an unreasonable risk that privileged state secrets would be disclosed. By its Order of May 12, 2006, the district court agreed with the position of the United States and dismissed El-Masri's Complaint. 13 Id. at 299-300. The district court, in summarizing its order, 14 had said, "It is important to emphasize that the result reached 15 here is required by settled, controlling law."33 33 El-Masri v. The district court's full statement bears repeating: It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri's complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked. Tenet, 437 F. Supp. 2d at 540-41. -65- 1 Tenet, 437 F. Supp. 2d 530, 540 (E.D. Va. 2006). 2 Circuit agreed and affirmed. 3 The Fourth El-Masri, 479 F.3d at 300.34 The majority cites the possibility of "graymail" as a 4 "special factor counseling hesitation." 5 of the Fourth Circuit points out, the state-secrets privilege 6 protects this interest too, by "provid[ing] a necessary safeguard 7 against litigants presenting the government with a Hobson's 8 choice between settling for inflated sums or jeopardizing 9 national security." 10 But as another decision Sterling v. Tenet, 416 F.3d 338, 344 (4th Cir. 2005).35 11 In Arar's case, the government followed essentially the 12 same procedure as it had in El-Masri. The district court here 13 (prior to the district court and court of appeals decisions in 14 El-Masri) decided the case on Bivens grounds instead. 15 that to have been mistaken. 16 B. We think Shortcomings of a State-Secrets Resolution 34 We cite El-Masri not to endorse its conclusions, but as evidence that the procedures to be applied here are not in any sense novel. 35 Cf. Bivens, 403 U.S. at 410 (Harlan, J., concurring) ("I simply cannot agree with my Brother BLACK that the possibility of 'frivolous' claims -- if defined simply as claims with no legal merit -- warrants closing the courthouse doors to people in Bivens' situation. There are other ways, short of that, of coping with frivolous lawsuits."). -66- 1 We discussed the state secrets doctrine in some detail 2 in Doe, 576 F.3d at 101-05 (describing, inter alia, the emergence 3 of the doctrine in and after United States v. Reynolds, 345 U.S. 4 1 (1953)). 5 been subject. 6 e.g., Robert M. Chesney, Enemy Combatants After Hamdan v. 7 Rumsfeld: State Secrets and the Limits of National Security 8 Litigation, 75 Geo. Wash. L. Rev. 1249, 1263-1308 (2007) ("Enemy 9 Combatants"); Carrie Johnson, "Handling of 'State Secrets' At 10 Issue," Washington Post, Mar. 25, 2009, at A1, which has been 11 stoked by the recent surfacing of the now-declassified Air Force 12 accident report that was the subject of Reynolds, see Barry 13 Siegel, Claim of Privilege 205-10 (2008).36 14 15 We are not oblivious to the criticism to which it has There has been considerable debate about it, see, But this controversy has centered on the extent of the judiciary's role in making the determination of the legitimacy of 36 There have been assertions that the state-secrets invocation in Reynolds, in which the modern form of doctrine was first set forth, was a cover-up of government misfeasance, not an attempt to protect legitimate state secrets. See, e.g., Barry Siegel, Claim of Privilege at 205-10; Herring v. United States, No. A 03 Civ. 5500 (LDD), 2004 WL 2040272, at *2, 2004 U.S. Dist. LEXIS 18545, at *6-*7 (E.D. Pa. Sept. 10, 2004); but see Herring v. United States, 424 F.3d 384, 386 (3d Cir. 2005) (deciding, after review of the report, that the government's "assertion of military secrets privilege for [the] accident report [in Reynolds] . . . was [not a] fraud upon the court"), cert. denied, 547 U.S. 1123 (2006). -67- 1 the claim of privilege and the consequences of the government's 2 refusal to produce subpoenaed material necessary to the 3 prosecution of the plaintiff's claim. 4 Combatants, 75 Geo. Wash. L. Rev. at 1288.37 5 doubt the need for a mechanism by which the government can 6 effectively protect its legitimate military and diplomatic 7 secrets. See, e.g., Enemy No one can seriously The question is whether those procedures now in place 37 Questions that have been raised include: Did the Reynolds dissenters, and the Third Circuit and Eastern District of Pennsylvania before them, see Reynolds v. United States, 192 F.2d 987, 990 (3d Cir. 1951), have the better of the argument when concluding that the judicial role is not fully exercised in any case without an in-chambers, ex parte review of the allegedly privileged material? Cf. State Secret Protection Act of 2009, H.R. 984, 111th Cong. § 5(a) ("Once the Government has asserted the privilege . . . the court shall undertake a preliminary review of the information the Government asserts is protected by the privilege . . . ."); State Secrets Protection Act, S. 417, 111th Cong. § 2 (2009) (providing that, absent certain exceptions "the United States shall make all evidence the United States claims is subject to the state secrets privilege available for the court to review, consistent with [specified requirements], before any hearing conducted under this section"). Should the monetary loss occasioned as the result of the invocation of the privilege fall invariably and exclusively on plaintiffs? See Enemy Combatants, 75 Geo. Wash. L. Rev. at 1312-13. How finely grained a showing should be required before an action is dismissed in light of a successful state-secrets invocation? See Editorial, The State-Secrets Privilege, Tamed, N.Y. Times, Apr. 30, 2009, at A26 (opining on what it characterized as "the affront to civil liberties and the constitutional separation of powers in the Justice Department's argument that the executive branch is entitled to have lawsuits shut down whenever an official makes a blanket claim of national security"); see also, "Full transcript of President Barack Obama's news conference, Apr. 29, 2009," 30488052// (The President: "I actually think that the state secret doctrine should be modified. I think right now it's overbroad."). -68- 1 best balance the need for secrecy with competing values and 2 interests. 3 cost and in all circumstances the ability of the government to 4 protect state-secrets in civil litigation or the possibility that 5 some such litigation will ultimately be resolved as a result. 6 C. 7 8 9 The critics do not, we think, seek to avoid at all The Majority's Objections The majority has two objections to a state-secrets resolution. First, it hints that we have an "unflagging" obligation 10 to address the Bivens issue before turning to the question of 11 state secrets. 12 difficulty and resourcefulness -- consider state secrets and even 13 reexamine judgments made in the foreign affairs context when we 14 must, that is, when there is an unflagging duty to exercise our 15 jurisdiction." 16 jurisprudential necessity of addressing a broader, more difficult 17 Bivens question when this case might be resolved on its facts by 18 application of well-established state-secrets procedures. 19 panel majority pointed out, non-merits dispositions do not 20 require a predicate decision on subject-matter jurisdiction: 21 22 23 24 See supra at [39] ("True, courts can -- with (emphasis in original)). We highly doubt the The Supreme Court has, on several occasions, recognized that a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits. . . . [A] -69- As the 1 2 3 4 5 federal court that dismisses on non-merits grounds before finding subject-matter jurisdiction makes no assumption of law-declaring power that violates separation of powers principles. 6 See Arar, 532 F.3d at 172 (internal quotation marks, citations, 7 and ellipses omitted). 8 Iqbal, assuming the viability of a Bivens action in order to 9 decide the case on the basis of pleading and supervisory 10 11 liability. The Supreme Court acted similarly in See Iqbal, 129 S. Ct. at 1948. Second, the majority professes concern about the "[t]he 12 court's reliance on information that cannot be introduced into 13 the public record," which the Court says "is likely to be a 14 common feature of any Bivens actions arising in the context of 15 alleged extraordinary rendition." 16 thinks that this concern "should provoke hesitation, given the 17 strong preference in the Anglo-American legal tradition for open 18 court proceedings." 19 Supra at [42]. The majority Supra at [42-43]. "'A trial is a public event. What transpires in the 20 court room is public property.'" Richmond Newspapers v. 21 Virginia, 448 U.S. 555, 574 n.9 (1980) (plurality opinion) 22 (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). 23 the majority's recognition of the fundamental importance of the 24 principle that the courts are presumed to be open. 25 [44]; and see, e.g., Globe Newspaper Co. v. Superior Court, 457 -70- We applaud See supra at 1 U.S. 596, 604 (1982). 2 meticulously guarding constitutional protection for "access to 3 the courts" in the sense of the ability of a citizen to see and 4 hear, and in that way to participate in, the workings of the 5 justice system.38 6 (2d Cir. 2005); Hartford Courant Co. v. Pellegrino, 380 F.3d 83 7 (2d Cir. 2004); ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004); 8 United States v. Graham, 257 F.3d 143 (2d Cir. 2001); 9 Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16 (2d Cir. 10 1984), cert. denied, 472 U.S. 1017 (1985); Joy v. North, 692 F.2d 11 880 (2d Cir. 1982). 12 the presumption of openness however gauged that the open nature 13 of the federal courts is properly weighed as a factor in the 14 Bivens analysis. 15 It respects this Circuit's history of See, e.g., Huminski v. Corsones, 396 F.3d 56 But it follows not at all, we think, from The presumption of openness is just that, a 16 presumption. In can be, and routinely is, overcome. 17 regularly hear, on the basis of partially or totally sealed 18 records, not only cases implicating national security or 38 We This is "access to courts" in a sense quite different from the "access to courts" argument made by Arar referring to the frustration of his ability to seek relief from the judiciary. Cf. Huminski v. Corsones, 386 F.3d 116, 145 n.30 (2d Cir. 2004) (distinguishing between a litigant's due process right of access and the press and public's right of access under the First Amendment). -71- 1 diplomatic concerns, see, e.g., Doe, 576 F.3d 95; In re Terrorist 2 Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 93 (2d 3 Cir. 2008), cert. denied, 129 S. Ct. 2778 (2009), but those 4 involving criminal defendants' cooperation with prosecutors, see, 5 e.g., United States v. Doe, 314 F. App'x 350 (2d Cir. 2008) 6 (summary order), other criminal matters, see, e.g., U.S. v. 7 Silleg, 311 F.3d 557, 560 (2d Cir. 2002), probation department 8 reports, upon which federal criminal sentences are to a 9 significant extent typically based, see, e.g., United States v. 10 Parnell, 524 F.3d 166, 168 n.1 (2d Cir. 2008) (per curiam); 11 United States v. Molina, 356 F.3d 269, 275 (2d Cir. 2004), child 12 welfare, see, e.g., Sealed v. Sealed, 332 F.3d 51 (2d Cir. 2003), 13 trade secrets, see, e.g., In re Orion Pictures Corp., 21 F.3d 24 14 (2d Cir. 1994), and any manner of other criminal and civil 15 matters. 16 which some document or fact is not considered by a panel of this 17 Court out of the public eye. 18 Hardly a week goes by, in our collective experience, in We accommodate the public interest in proceedings 19 before federal courts by rigorously adhering to the presumption 20 of openness, but the presumption is often overcome. 21 majority's notion that because the presumption is likely to be 22 overcome in a particular species of case we should therefore -72- The 1 foreclose a remedy or otherwise limit our jurisdiction in order 2 to accommodate the public suspicion of secrecy, is misconceived. 3 Denying relief to an entire class of persons with presumably 4 legitimate claims in part because some of their number may lose 5 in proceedings that are held in secret or because secrets may 6 cause some such claims to fail, makes little sense to us. 7 could work endless mischief were courts to turn their backs on 8 such cases, their litigants, and the litigants' asserted rights. 9 We are not aware of any other area of our jurisprudence where the It 10 ability to overcome the presumption of openness has been relied 11 upon to deny a remedy to a litigant. 12 be here. 13 14 15 We do not think it should CONCLUSION For the foregoing reasons and to the extent indicated, we respectfully dissent. -73- 1 BARRINGTON D. PARKER, Circuit Judge, joined by Judges CALABRESI, POOLER, and 2 SACK, dissenting: 3 I join Judge Sack s, Judge Pooler s, and Judge Calabresi s opinions in full. My point of 4 departure from the majority is the text of the Convention Against Torture, which provides that 5 [n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal 6 political instability or any other public emergency, may be invoked as a justification of torture. 7 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment 8 or Punishment, Art. 2, cl. 2, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 9 ( Convention Against Torture ). Because the majority has neglected this basic commitment and 10 11 a good deal more, I respectfully dissent. Maher Arar credibly alleges that United States officials conspired to ship him from 12 American soil, where the Constitution and our laws apply, to Syria, where they do not, so that 13 Syrian agents could torture him at federal officials direction and behest. He also credibly alleges 14 that, to accomplish this unlawful objective, agents of our government actively obstructed his 15 access to this very Court and the protections established by Congress. See 8 U.S.C. § 16 1252(a)(2)(D) (providing for judicial review of constitutional claims or questions of law raised 17 by an order of removal). 18 While I broadly concur with my colleagues who dissent, I write separately to underscore 19 the miscarriage of justice that leaves Arar without a remedy in our courts. The majority would 20 immunize official misconduct by invoking the separation of powers and the executive s 21 responsibility for foreign affairs and national security. Its approach distorts the system of checks -1- 1 and balances essential to the rule of law, and it trivializes the judiciary s role in these arenas. To 2 my mind, the most depressing aspect of the majority s opinion is its sincerity. 3 A primary theme of the majority s approach is deference to executive authority, 4 especially in a time of national unrest, turmoil, or danger. The conduct of foreign policy and the 5 maintenance of national security are surely executive and legislative powers. Yet those powers 6 are not limitless. The bounds in both wartime and peacetime are fixed by the same Constitution. 7 See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866). Where appropriate, deference to the 8 coordinate branches is an essential element of our work. But there is, in my view, an enormous 9 difference between being deferential and being supine in the face of governmental misconduct. 10 The former is often necessary, the latter never is. At the end of the day, it is not the role of the 11 judiciary to serve as a help-mate to the executive branch, and it is not its role to avoid difficult 12 decisions for fear of complicating life for federal officials. Always mindful of the fact that in 13 times of national stress and turmoil the rule of law is everything, our role is to defend the 14 Constitution. We do this by affording redress when government officials violate the law, even 15 when national security is invoked as the justification. See U.S. Const., Art. I, § 9, cl. 2; 16 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 17 Notably, the majority opinion does not appear to dispute the notion that Arar has stated an 18 injury under the Fifth Amendment of the Constitution. That is heartening, because, by any 19 measure, the notion that federal officials conspired to send a man to Syria to be tortured shocks 20 the conscience. Rochin v. California, 342 U.S. 165, 172 (1952). What is profoundly disturbing, 21 however, is the Court s pronouncement that it can offer Arar no opportunity to prove his case and 22 no possibility of relief. This conclusion is at odds with the Court s responsibility to enforce the -2- 1 Constitution s protections and cannot, in my view, be reconciled with Bivens v. Six Unknown 2 Named Agents of Fed. Bur. of Narc., 403 U.S. 388 (1971), which remains good law to this day. 3 See also Davis v. Passman, 442 U.S. 228, 243 (1979) (declaring Bivens remedy for alleged Fifth 4 Amendment violations). The majority is at odds, too, with our own State Department, which has 5 repeatedly taken the position before the world community that this exact remedy is available to 6 torture victims like Arar.1 If the Constitution ever implied a damages remedy, this is such a case 7 where executive officials allegedly blocked access to the remedies chosen by Congress in order 8 to deliver a man to known torturers. 9 The Court s hesitation today immunizes official conduct directly at odds with the express 10 will of Congress and the most basic guarantees of liberty contained in the Constitution. By doing 11 so, the majority risks a government that can interpret the law to suits its own ends, without 12 scrutiny. See Memorandum from John Yoo, Deputy Assistant Att'y Gen., & Robert J. Delahunty, 13 Special Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Defense, Jan. 9, 2002, in The 14 Torture Papers: The Road to Abu Ghraib 38 (Karen J. Greenberg & Joshua L. Dratel eds., 2005); 15 The Federalist No. 48, at 313 (James Madison) (Clinton Rossiter ed., 1961) (warning against the 16 tyrannical concentration of all the powers of government in the same hands ). Contrary to the 17 majority, I believe that the Constitution affords Arar a remedy should he prove his sobering 18 allegations, and that his case should be permitted to proceed. 19 I 1 See United States Written Response to Questions Asked by the United Nations Committee Against Torture, ¶ 5 (bullet-point 5) (Apr. 28, 2006), available at; United States Report to the United Nations Committee Against Torture, ¶¶ 51 (bullet-point 5), 274, U.N. Doc. CAT/C/28/Add/5 (Feb. 9, 2000), available at -3- 1 The majority discovers myriad reasons to hesitate in the face of Arar s complaint that 2 federal officials conspired to send him to Syria to be tortured. Its principal reason, however, is 3 that permitting such an action would have the natural tendency to affect diplomacy, foreign 4 policy and the security of the nation. Maj. Op. at 38. This view of the separation of powers, 5 which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and 6 distorts the role of the judiciary especially during times of turmoil. 7 When presented with an appropriate case or controversy, courts are entitled indeed 8 obliged to act, even in instances where government officials seek to shield their conduct behind 9 invocations of national security and foreign policy. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 10 557 (2006); Reid v. Covert, 354 U.S. 1, 23-30 (1957); Youngstown, 343 U.S. 579. Compare Ex 11 parte Quirin, 317 U.S. 1, 19 (1942) (observing the duty which rests on the courts, in time of war 12 as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty ), 13 with Maj. Op. at 42 (suggesting that Arar s allegations do not trigger the Court s unflagging 14 duty to exercise [its] jurisdiction ). This authority derives directly from the Constitution and 15 goes hand in hand with the responsibility of the courts to adjudicate all manner of cases put 16 before them. 17 The active management of foreign policy and national security is entrusted to the 18 executive and legislative branches. See U.S. Const., Art. I, § 8; Art. II, § 2. But this does not 19 mean that executive and legislative officials are left to adhere to constitutional boundaries of 20 their own accord, without external restraint. That is the job of the courts. As Madison declared 21 when he introduced the Bill of Rights to Congress: -4- 1 2 3 4 5 6 7 8 1 Annals of Cong. 439 (Joseph Gales ed., 1834). The Constitution established three co-equal 9 branches of government, each operating as a check upon the others. In this way, the separation of 10 powers was designed as a limiting principle of government not to silence any one branch, as the 11 majority implies here, but to enlist each as a sentinel over the public rights. The Federalist No. 12 51, at 323-24 (James Madison) (G.P. Putnam's Sons ed., 1908). 13 If [these amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. The majority treats the separation of powers as a reason for the Court to abstain in this 14 case in reality, it is precisely the opposite. The executive s core responsibility for foreign 15 policy does not negate the judiciary s duty to interpret and enforce constitutional limits. [E]ven 16 the war power does not remove constitutional limitations safeguarding essential liberties. Home 17 Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426 (1934); Boumediene v. Bush, 128 S. Ct. 2229, 18 2246 (2008). One branch impermissibly intrudes upon another not when it fulfills its prescribed 19 role but when it seeks to exercise authority assigned to its coordinate branches. See Youngstown, 20 343 U.S. at 587-89 (holding that the President had exceeded his executive powers when he 21 assumed the law making power entrusted to Congress alone in both good and bad times ); 22 Bowsher v. Synar, 478 U.S. 714, 726 (1986) (holding that Congress may not remove executive 23 officers except by impeachment); The Federalist No. 47, at 325-326 (James Madison) (J. Cooke 24 ed. 1961) ( [W]here the whole power of one department is exercised by the same hands which 25 possess the whole power of another department, the fundamental principles of a free constitution, -5- 1 are subverted. ). The defendants before us could, of course, be fully exonerated in the end, but it 2 is the Court s role to determine the legality of their actions for itself. 3 In this case, Arar does not ask the Court to assume any executive functions to dispatch 4 diplomatic representatives, negotiate treaties, or oversee battlefield decisions. Likewise, the suit 5 does not implicate his release or rescue from Syrian custody. Rather, Arar asks the Court to 6 perform a core judicial function: To interpret the laws and Constitution as they apply to detailed 7 allegations of official misconduct on American soil. And he petitions for a familiar judicial 8 remedy: money damages. See Bivens, 403 U.S. at 395. Such a suit does not represent judicial 9 interference in executive functions, as the majority would have it, but rather an effort to keep 10 executive power within constitutional limits. See Buckley v. Valeo, 424 U.S. 1, 121 (1976) 11 (recognizing that each branch necessarily participates in the affairs of the others); Mistretta v. 12 United States, 488 U.S. 361, 380-81 (1989). Respectfully, I believe the majority's deference 13 dissolves the very protections and liberties that the separation of powers was intended to 14 guarantee. 15 16 II The Supreme Court has repeatedly made clear that the separation of powers does not 17 prevent the judiciary from ruling on matters affecting national security, and that the courts are 18 competent to undertake this task. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) ( [W]e 19 necessarily reject the Government's assertion that separation of powers principles mandate a 20 heavily circumscribed role for the courts in establishing procedures for designating enemy 21 combatants); New York Times Co. v. United States, 403 U.S. 713 (1971) (holding that asserted -6- 1 military interests could not justify prior restraint of the press); Youngstown, 343 U.S. 579; Ex 2 parte Quirin, 317 U.S. at 19.2 3 Courts routinely handle classified materials and exercise judgment about both the 4 credibility and legal significance of the security interests asserted by the government. See 5 Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-1811, 1821-29, 1841- 6 46, 1861-62 (2006); Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B) & (b)(1) 7 (2002); Classified Information Procedures Act (CIPA), 18 U.S.C. App. III §§ 1-16; Boumediene 8 v. Bush, 128 S. Ct. 2229, 2261 (2008) ( The Government presents no credible arguments that the 9 military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction 10 to hear the detainees' claims. ); United States v. United States District Court (Keith), 407 U.S. 11 297, 320 (1972) ( We cannot accept the Government's argument that internal security matters are 12 too subtle and complex for judicial evaluation. ). These cases belie the majority s notion that the 13 courts lack authority or competency to assess Arar s claims. What are the allowable limits of 14 military discretion, and whether or not they have been overstepped in a particular case, are 15 judicial questions. Sterling v. Constantin, 287 U.S. 378, 401 (1932)). 2 In Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804), for example, the Supreme Court found a naval captain "answerable in damages" for his unlawful seizure of a Danish trading ship, even where a Presidential order appeared to authorize the seizure. The Court did not hesitate, as here, to address the legality of the President's order or the seizure itself. A commander of a ship of war of the United States, in obeying his instructions from the President of the United States, acts at his peril. If those instructions are not strictly warranted by law he is answerable in damages to any person injured by their execution. Id. at 170; see also Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) (determining the legality of the navy's capture of foreign merchant vessel during undeclared conflict with France); The Prize Cases, 67 U.S. (2 Black) 635 (1862). Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), rejected the government s claim that civil war authorized the executive branch to act as supreme legislator, supreme judge, and supreme executive. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime 121 (1998) (quoting the government s brief in Milligan). The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. Ex parte Milligan, 71 U.S. at 120-21. -7- 1 The courts have a duty to scrutinize unilateral assertions of security and secrecy because 2 the government s account has, in many of these cases, been overblown. Recent disclosures 3 suggest that the military secrets so fiercely guarded in United States v. Reynolds, 345 U.S. 1 4 (1953) the Supreme Court s seminal state secrets case may well have posed no threat to 5 national security. See Herring v. United States, 2004 WL 2040272, at *5 (E.D. Pa. Sept. 10, 6 2004), aff d, 424 F.3d 384 (3d Cir. 2004) (finding no deliberate fraud upon the court, but noting 7 the apparent dearth of sensitive information in the accident investigation report and witness 8 statements ); Louis Fisher, In the Name of National Security: Unchecked Presidential Power and 9 the Reynolds Case 166-69 (2006). 10 A similar truth has emerged from the Pentagon Papers case, New York Times Co. v. 11 United States, 403 U.S. 713 (1971). Although the government argued to the Supreme Court that 12 publication posed a grave and immediate danger to the security of the United States, former 13 Solicitor General Griswold has since acknowledged that the executive's primary concern was 14 not with national security, but rather with governmental embarrassment. Erwin N. Griswold, 15 Secrets Not Worth Keeping, Wash. Post, Feb. 15, 1989, at A25; cf. Office of the Attorney 16 General, Mem. on Policies and Procedures Governing Invocation of the State Secrets Privilege 2 17 (Sept. 23, 2009) (issuing revised guidelines and clarifying that the Department of Justice will 18 not defend an invocation of the [state secrets] privilege in order to . . . prevent embarrassment to 19 a person, organization, or agency of the United States government ). The appropriate tools for 20 evaluating national security concerns are already firmly established in our law namely, the state 21 secrets privilege and CIPA. They do not require wholesale abstention by the courts. -8- 1 Indeed, a number of cases in which courts have acceded in this way, relying on bald 2 appeals to national security, have proven deeply troubling in retrospect. The Supreme Court s 3 decisions upholding convictions under the Sedition Act of 1918 are regarded as indefensible 4 today. See Schenck v. United States, 249 U.S. 47, 52 (1919); Debs v. United States, 249 U.S. 211 5 (1919); Abrams v. United States, 250 U.S. 616 (1919); Morse v. Frederick, 551 U.S. 393, 442 6 (2007) (Stevens, J., dissenting) (observing that Justice Holmes dissent in Abrams has 7 emphatically carried the day ). More recently, the dire warnings issued to justify the indefinite 8 detention of enemy combatants and forestall further court review have also drawn stern rebuke. 9 In Padilla v. Hanft, 432 F.3d 582, 584-587 (4th Cir. 2005), the Fourth Circuit observed that the 10 government had steadfastly maintain[ed] that it was imperative in the interest of national 11 security to hold Padilla in military custody for three and a half years. Yet officials abruptly 12 changed course on the doorstep of Supreme Court review, seeking to move Padilla into criminal 13 custody, at a substantial cost to the government s credibility before the courts. Id. at 584. See 14 also Brief for Respondents, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696) (arguing that 15 military necessity required Hamdi s indefinite detention, yet releasing him to Saudi Arabia seven 16 months later). 17 Finally, contrary to the majority s suggestion, the courts require no invitation from 18 Congress before considering claims that touch upon foreign policy or national security. See Maj. 19 Op. at 10-11, 42-43, 57. In fact, the Supreme Court has demonstrated its willingness to enter 20 this arena against the express wishes of Congress. In Boumediene v. Bush, 128 S. Ct. 2229 21 (2008), the Supreme Court rebuffed legislative efforts to strip the courts of jurisdiction over 22 detainees held at Guantanamo Bay. It held that the writ of habeas corpus extended to the naval -9- 1 base, and that neither Congress nor the executive branch could displace the courts without 2 formally suspending the writ. Importantly, it did so despite the fact that this exercise of judicial 3 power plainly affected the executive s detention of hundreds of enemy combatants and a 4 centerpiece of the war on terror. The Court recognized that habeas proceedings may divert the 5 attention of military personnel from other pressing tasks but refused to find these concerns 6 dispositive. Id. at 2261. Scores of decisions have since followed this lead. See, e.g., Al 7 Rabiah v. United States, 2009 WL 3048434 (D.D.C. Sept. 17, 2009); Ahmed v. Obama, 613 F. 8 Supp. 2d 51 (D.D.C. 2009). Courts cannot blithely accept every assertion of national security at 9 face-value, and they are entitled to enforce constitutional limits by scrutinizing such claims. 10 11 III Although Arar credibly alleges mistreatment in both the United States and Syria, the 12 circumstances of his detention on American soil are summarily excluded from the majority s 13 Bivens analysis. Instead, the Court concludes that Arar has not pleaded these allegations with the 14 factual detail required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). See Maj. Op. at 15 23-24. Consequently, it dismisses Claim Four and proceeds as though the challenged conduct is 16 strictly extraterritorial.3 This conclusion goes far beyond any pleading rule we are bound to 3 The majority identifies extraordinary rendition as the context for Arar s Bivens claims, a label that reduces the complaint to the fact of his transfer to Syria. See Maj. Op. at 8, 32-33. In doing so, the majority largely disregards the events both before and after Arar's transfer that are part and parcel of his claim for relief. Arar does not merely allege that he was rendered to Syria without process, but that he was first detained in the United States for twelve days, during which time he was held in harsh and punitive conditions, coercively interrogated, and deliberately denied access to counsel, his consulate, and the courts by American officials. See Compl. ¶¶ 2, 4, 32-49, 91-93. Moreover, the purpose and culmination of this mistreatment was not simply Arar's removal from the United States. Rather, American officials allegedly set out to render him to Syria either intending or knowing that Arar would be tortured there, and aided this abuse by providing information to his captors. See id. ¶¶ 55-57. One hopes that all extraordinary rendition is not for the purpose of torture; certainly, this abuse is not one of the attributes that the majority attaches to that label. See Maj. Op. at 9-10 n.1. All told, extraordinary rendition is the method by which Arar was transferred to Syria, but it hardly captures the constitutional -10- 1 apply, and it is inconsistent with both Rule 8 of the Federal Rules of Civil Procedure and recent 2 Supreme Court decisions. 3 Even after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), which dismissed 4 discrimination claims against policymakers on account of inadequate pleading, Claim Four 5 readily exceeds any measure of plausibility. Claim Four seeks to hold Defendants John 6 Ashcroft, Larry Thompson, Robert Mueller, James Ziglar, J. Scott Blackman, Edward McElroy, 7 and John Does 1-10 responsible for the extreme conditions under which Arar was held in the 8 United States.4 While the majority finds that Arar failed to allege the requisite meeting of the 9 minds necessary to support a conspiracy, see Maj. Op. 24, it ignores the fact that Arar pleaded 10 multiple theories of liability. Formal conspiracies aside, he also alleges that the defendants 11 commonly aided and abetted his detention and removal that is, that the defendants were 12 personally involved in his mistreatment both in the United States and abroad. See Hayut v. State 13 Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003) (A supervisory official personally 14 participates in challenged conduct not only by direct participation, but by (1) failing to take 15 corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent 16 supervision, or (4) deliberate indifference to the rights of others); Johnson v. Newburgh Enlarged 17 Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001). injuries described in his complaint. 4 At the time of Arar's detention, Defendant Ashcroft was Attorney General of the United States; Defendant Thompson was Deputy United States Attorney General; Defendant Robert Mueller was the Director of the Federal Bureau of Investigation (FBI); Defendant Ziglar was Commissioner of the Immigration and Naturalization Service (INS); Defendant Blackman was Regional Director of the INS for the Eastern District; Defendant McElroy was District Director for the INS for the New York City District; and John Does 1-10 were federal law enforcement agents employed by the FBI or INS. See Compl. ¶¶ 14-22. -11- 1 In support of his claim for mistreatment and due process violations while in American 2 custody, Arar includes factual allegations that are anything but conclusory. Indeed, he provides 3 as much factual support as a man held incommunicado could reasonably be expected to offer a 4 court at this stage. The complaint alleges that Defendant McElroy was personally involved in 5 Arar's failure to receive the assistance of counsel. See Compl. ¶ 43. It alleges that Defendants 6 Blackman and Thompson personally approved Arar's expedited transfer from the United States to 7 Syria, implicating these officials in his inability to access the courts. Id. ¶¶ 15, 47-48. And it 8 recounts statements by Arar's American interrogators that they were discussing his situation with 9 Washington D.C. Id. ¶ 45; see also Dep't of Homeland Security, Office of the Inspector 10 General, The Removal of a Canadian Citizen to Syria ( OIG Report ) at 11 (reporting that DOJ 11 and INS officials in Washington, D.C. learned of Arar's apprehension on the evening of 12 Thursday, September 26, 2002, 12 days before he was rendered to Syria via Jordan). More 13 broadly, Arar details the harsh conditions under which he was held, including shackling, strip 14 searches, administrative segregation, prolonged interrogation, and a near communications 15 blackout. See id. ¶¶ 29-47. Notably, these are not [t]hreadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements. Iqbal, 129 S. Ct. at 1949. They 17 easily satisfy the requirements of both Iqbal and also Rule 8, whose short and plain statement 18 remains the baseline for notice-pleading. See Fed. R. Civ. P. 8(a)(1). 19 Moreover, as Iqbal made clear, plausibility is context-specific, requiring the reviewing 20 court to draw on its experience and common sense. Iqbal, 129 S. Ct. at 1950. There, the 21 Supreme Court rejected Iqbal's discrimination claims against high-ranking federal officials 22 because his complaint lacked sufficient factual allegations supporting the inference of -12- 1 discriminatory intent. Id. at 1952. Central to the majority's decision was the fact that these 2 officials faced a devastating terrorist attack perpetrated by 19 Arab Muslim hijackers. Id. at 3 1951. Against this backdrop, the majority found Iqbal's claim overwhelmed by the obvious 4 alternative explanation that his arrest stemmed from a nondiscriminatory intent to detain 5 aliens . . . who had potential connections to those who committed terrorist acts. Id. at 1951 6 (quoting Twombly, 550 U.S. at 567). Apparently having their own views about the defendants 7 state of mind, the majority simply found Iqbal's discrimination claim incredible. 8 9 Plausibility, in this analysis, is a relative measure. Allegations are deemed conclusory where they recite only the elements of the claim. They become implausible when the court s 10 commonsense credits far more likely inferences from the available facts. See Harris v. Mills, 572 11 F.3d 66, 71-72 (2d Cir. 2009). Plausibility thus depends on a host of considerations: The full 12 factual picture presented by the complaint, the particular cause of action and its elements, and the 13 available alternative explanations. See Iqbal, 129 S. Ct. at 1947-52. As Rule 8 implies, a claim 14 should only be dismissed at the pleading stage where the allegations are so general, and the 15 alternative explanations so compelling, that the claim no longer appears plausible. See Fed. R. 16 Civ. P. 8(a); Twombly, 550 U.S. at 556 (requiring simply enough fact to raise a reasonable 17 expectation that discovery will reveal evidence supporting the claims). 18 Arar's claim readily survives this test, particularly in light of the Court's obligation to 19 draw[] all reasonable inferences in the plaintiff's favor on a motion to dismiss. See Chambers 20 v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The notion that high-ranking 21 government officials like Defendants Ashcroft and Mueller were personally involved in setting or 22 approving the conditions under which suspected terrorists would be held on American soil and -13- 1 even oversaw Arar's detention and removal is hardly far-fetched. Arar's arrival at JFK airport 2 was a significant event in September 2002, triggering all manner of security responses. See, e.g., 3 Compl. ¶ 45; OIG Report at 11, 15 (citing high-level interest in Arar in Washington, DC ); id. 4 at 30 n.31 (describing the four-vehicle convoy in which Arar was transported, including nine INS 5 officers equipped with their service weapons, Remington 870 shotguns, M-4 rifles, helmets, and 6 ballistic vests). The fact that Arar was covertly transferred to Syria, by itself, indicates 7 involvement at the highest levels of government. 8 In contrast to Iqbal, it is the alternative here that is difficult to fathom. To think that low- 9 level agents had complete discretion in setting the conditions for holding a suspected member of 10 al Qaeda defies commonsense. It requires the Court to believe that, while high-level officials 11 were involved in arranging Arar's removal to Syria a premise the majority does not question5 12 they were oblivious to the particulars of his detention. The majority was, of course, bound to 13 credit all reasonable inferences from the allegations in the complaint, understanding that their 14 factual basis would be thoroughly tested in discovery. See Twombly, 550 U.S. at 555 (a court 15 must proceed on the assumption that all the allegations in the complaint are true (even if 16 doubtful in fact) ). The inference that, in 2002, high-level officials had a role in the detention of 17 a suspected member of al Qaeda requires little imagination. 18 19 Further, unlike Iqbal, Arar s due process claims do not ask the Court to speculate about the mental state of government officials. Rather, Claim Four rests on objective factors the 5 Likewise, the majority finds these very same allegations sufficient for purposes of personal jurisdiction, as did the panel. See Maj. Op. at 19; Arar v. Ashcroft, 532 F.3d 157, 173-75 (2d Cir. 2008) (panel op.) (applying identical personal involvement standard in considering personal jurisdiction and finding it met). -14- 1 conditions of confinement and his access to the courts that are independent of motive. 2 Compare Iqbal, 129 S. Ct. at 1948 (claim of invidious discrimination requires the plaintiff to 3 plead and prove that the defendant acted with discriminatory purpose ), with Kaluczky v. City of 4 White Plains, 57 F.3d 202, 211 (2d Cir.1995) (government conduct that is arbitrary, conscience- 5 shocking, or oppressive in a constitutional sense violates substantive due process). The 6 complaint contains more than sufficient factual allegations detailing these deprivations. See 7 Compl. ¶¶ 27-49. 8 Finally, it should not be lost on us that the Department of Homeland Security s Office of 9 Inspector General has itself confirmed the broad contours of Arar's mistreatment, producing a 10 lengthy report on the conditions of his detention in American custody. See OIG Report. This 11 report provides a powerful indication of the reliability of Arar s factual allegations at this stage.6 12 Plainly, the majority has read the OIG report, even citing it for limited purposes in its opinion. 13 See Maj. Op. at 48. It is difficult, then, to comprehend how the majority can ignore the report s 14 findings and conclusions in assessing the basic plausibility of Arar s fourth claim. 15 Ultimately, it is unclear what type of allegations to overcome a motion to dismiss by 16 high-level officials could ever satisfy the majority. In refusing to credit Arar's allegations, the 17 majority cites the complaint s use of the passive voice in describing some of the underlying 18 events. See Maj. Op. at 25. This criticism is odd because the occasional use of the passive 19 voice has not previously rendered pleadings defective, particularly where the defendants roles 20 can be easily ascertained from the overall complaint. See Compl. ¶¶ 14-22; Yoder v. 6 In Iqbal, the Supreme Court looked beyond the complaint to a wider factual context in assessing plausibility. See 129 S. Ct. at 1951-52. -15- 1 Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 561 (2d Cir. 1985) ( It is elementary that, 2 on a motion to dismiss, a complaint must be read as a whole, drawing all inferences favorable to 3 the pleader. ) (citations omitted). Specifically, the majority faults Arar for not pinpointing the 4 individuals responsible for each event set out in the complaint and for failing to particularize 5 more fully when and with whom they conspired. The irony involved in imposing on a plaintiff 6 who was held in solitary confinement and then imprisoned for ten months in an underground cell 7 a standard so self-evidently impossible to meet appears to have been lost on the majority. 8 The flaws in the majority's approach are not unique to Arar, but endanger a broad swath 9 of civil rights plaintiffs. Rarely, if ever, will a plaintiff be in the room when officials formulate 10 an unconstitutional policy later implemented by their subordinates. Yet these closeted decisions 11 represent precisely the type of misconduct that civil rights claims are designed to address and 12 deter. See Carlson v. Green, 446 U.S. 14, 21 (1980). Indeed, it is this kind of executive 13 overreaching that the Bill of Rights sought to guard against, not simply the frolic and detour of a 14 few bad apples. The proper way to protect executive officials from unwarranted second- 15 guessing is not an impossible pleading standard inconsistent with Rule 8, but the familiar 16 doctrine of qualified immunity. 17 Even if the majority finds that Arar s factual allegations fall short of establishing the 18 personal involvement of Defendants Ashcroft and Mueller, they plainly state a claim against 19 defendants such as Thompson, Blackman, McElroy, and John Doe FBI and ICE agents. See 20 Compl. ¶¶ 43, 47-48, 55. The direct involvement of these defendants is barely contested by the 21 appellees and barely mentioned by the majority. For this reason alone, there is no legal 22 justification for the majority to dismiss Claim Four outright. -16- 1 2 IV When the full range of alleged mistreatment is considered, Arar s injuries hardly 3 constitute a new context for Bivens claims, and I agree with both Judge Sack's and Judge 4 Pooler's careful analyses. This Court has repeatedly assumed that Bivens extends to substantive 5 due process claims and provides a damages remedy to other detainees illegally injured by 6 executive officials or their agents. See Carlson v. Green, 446 U.S. 14 (1980); Thomas v. 7 Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006); Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). 8 Our State Department is of the same view, having assured the United Nations Committee 9 Against Torture that a Bivens remedy is available to torture victims. See United States Written 10 Response to Questions Asked by the United Nations Committee Against Torture, ¶ 5 11 (bullet-point 5) (Apr. 28, 2006), available at 12 Even if Arar s case were viewed as a new context, the special factors cited by the 13 majority do not justify denying him relief because they are not special. They largely duplicate 14 concerns like state secrets, sovereign immunity, and qualified immunity amply addressed by 15 other doctrines at the Court s disposal. See Davis v. Passman, 442 U.S. 228, 246 (1979) 16 (refusing to hesitate where special factors were coextensive with the protections afforded by the 17 Speech or Debate Clause ). My colleagues make these arguments in greater detail, cataloging 18 the flaws in the majority s Bivens analysis. I write to emphasize the heightened need for a Bivens 19 remedy in cases such as this where executive officials have deliberately thwarted the remedies 7 Responding to the Committee s question, What guarantees and controls does [the United States] have to ensure the monitoring of the activities of law enforcement officials in prisons and other detention centres . . . under its jurisdiction or de facto control, the State Department acknowledged among other remedies: Suing federal officials for damages under provisions of the U.S. Constitution for constitutional torts, see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman, 442 U.S. 228 (1979). -17- 1 provided by Congress and obstructed access to the courts. Arar's claims in this regard supply an 2 exceptionally compelling justification for affording a Bivens remedy, going well beyond the 3 allegations that gave rise to Bivens in the first place. 4 The judicial role recognized in Bivens reflects an important institutional balance one 5 closely aligned with separation of powers. Bivens offers Congress the first opportunity to fashion 6 a remedy for invasions of individual rights protected by the Constitution. However, when a 7 legislative judgment is lacking, Bivens permits the courts to use their common-law powers to fill 8 crucial gaps and provide redress in appropriate instances. This line of cases thus instructs the 9 courts to tread lightly where Congress has spoken, presuming that in those instances 10 constitutional interests have been adequately addressed by the legislative branch. See Schweiker 11 v. Chilicky, 487 U.S. 412, 423 (1988) ( When the design of a Government program suggests that 12 Congress has provided what it considers adequate remedial mechanisms for constitutional 13 violations that may occur in the course of its administration, we have not created additional 14 Bivens remedies. ). 15 On the other hand, where no legislative remedy exists, Bivens reaffirms the courts power 16 to ensure that individuals can obtain relief for constitutional injuries. The courts, within this 17 framework, provide a forum of last resort; through Bivens, they stand behind constitutional 18 guarantees neglected by the political branches. Compare Bivens, 403 U.S. at 410 (Harlan, J., 19 concurring) (implying a remedy where constitutional injury would otherwise go unredressed), 20 with Bush v. Lucas, 462 U.S. 367, 388 (1983) (denying Bivens remedy in light of the elaborate 21 remedial system established by Congress). -18- 1 Even so, this remedy is constrained by special factors that counsel hesitation even in 2 the absence of affirmative action by Congress. Bivens, 403 U.S. at 396. The Supreme Court 3 has never provided an exhaustive definition of these special factors, and existing precedent offers 4 only a few data-points.8 But it has nonetheless indicated that this analysis should weigh[] 5 reasons for and against the creation of a new cause of action, the way common law judges have 6 always done. Wilkie v. Robbins, 551 U.S. 537, 554 (2007). In Wilkie, for example, the factor 7 that ultimately counseled hesitation was the difficulty of distinguishing unconstitutional conduct 8 from lawful government activity. Id. at 555-61. In earlier cases, involving claims by military 9 personnel, the Supreme Court cited Congress plenary authority To make Rules for the 10 Government and Regulation of the land and naval Forces, and its adoption of the Uniform Code 11 of Military Justice. See Chappell v. Wallace, 462 U.S. 296, 302-03 (1983) (citing U.S. Const., 12 Art. I, § 8, cl. 12-14; 10 U.S.C. § 938); see also United States v. Stanley, 483 U.S. 669, 683-84 13 (1987). Where Congress, pursuant to this authority, had established a parallel system of military 14 discipline, the Court declined to interfere in the relationship between enlisted personnel and their 15 commanding officers. See Chappell, 462 U.S. at 304. Special factors, then, must be regarded 16 as a prudential limitation: One that considers the suitability of money damages for the particular 17 constitutional injuries alleged, together with the availability of other relief.9 See Davis, 442 U.S. 8 While the majority pointedly notes that the Supreme Court has only agreed to extend a Bivens remedy three times since 1971, it has only rejected such claims based on special factors on three occasions over that same period. See Wilkie v. Robbins, 551 U.S. 537, 554 (2007); United States v. Stanley, 483 U.S. 669 (1987); Chappell v. Wallace, 462 U.S. 296 (1983). In every other case, the Court has determined that the remedial scheme established by Congress displaces a judicial remedy a finding that the majority does not purport to make here. Moreover, even in Chappell, the Supreme Court relied in part on the alternative remedial scheme provided in the Uniform Code of Military Justice. 9 The special factors analysis considers the wisdom and effectiveness of one particular remedy the recovery of money damages from individual federal officers. This determination is separate and distinct from (1) a court's capacity to assess the right in question; and (2) its power to afford -19- 1 at 245 (finding special concerns overcome by impossibility of equitable relief and 2 appropriateness of damages remedy). 3 So limited, Bivens is an infrequent remedy, but it is a vitally necessary one. In laying out 4 the Bivens remedy, the Supreme Court recognized that [t]he very essence of civil liberty 5 certainly consists in the right of every individual to claim the protection of the laws. Butz v. 6 Economou, 438 U.S. 478, 485 (1978) (quoting Bivens, 403 U.S. at 395, 397); see also Davis, 442 7 U.S. at 241 ( [T]he judiciary is clearly discernible as the primary means through which these 8 rights may be enforced. ). It was this principle, in the face of the most flagrant abuses of 9 official power, that prompted the Court to afford a damages remedy. Bivens, 403 U.S. at 410 10 (Harlan, J., concurring). Bivens thus reflects the courts role as an independent source of 11 protection, applying the damages remedy as a form of individual relief and official 12 accountability. 13 This prerogative is consistent with the constitutional plan. With its built-in limitations, 14 Bivens has never represented a formidable expansion of judicial power. The doctrine, it must be 15 remembered, does not create any new rights; it provides a mechanism for enforcing existing 16 constitutional rights when no other avenue exists. [W]here legal rights have been invaded, and 17 a federal statute provides for a general right to sue for such invasion, federal courts may use any relief of any kind. In particular, if a court would be entitled to provide injunctive or habeas relief for the same or similar claims, it cannot treat the special factors analysis as a proxy for justiciability, the political question doctrine, or the separation of powers. Indeed, if other forms of relief would be available, these potential obstacles to the court's jurisdiction have already been dispatched and they may not be smuggled in a second time through the back door. Yet the majority does precisely this, relying on a host of special factors that simply repeat concerns accounted for elsewhere in our law. See Maj. Op. at 38-50 (treating as special factors separation of powers, sovereign immunity, state secrets and classified information, and diplomatic assurances). In reality, it is a much more modest inquiry. The special factors analysis must focus on why money damages as opposed to other forms of available relief might be inappropriate or undesirable. -20- 1 available remedy to make good the wrong done. Bell v. Hood, 327 U.S. 678, 684 (1946); see 2 also Bivens, 403 U.S. at 395 ( Historically, damages have been regarded as the ordinary remedy 3 for an invasion of personal interests in liberty. ). 4 Against this backdrop, the majority sets out to narrow Bivens to the point of vanishing. 5 The majority's test would not just eliminate a Bivens remedy in Arar's case, but in almost all 6 cases. According to the majority, [h]esitation is counseled whenever thoughtful discretion 7 would pause even to consider, and no account is taken of countervailing factors. See Maj. 8 Op. at 37. But because thoughtful people, by definition, always pause to consider, this 9 approach would foreclose a damages remedy on account of the most fleeting and superficial of 10 concerns. And it would permit courts to ignore completely, as the majority opinion itself does, 11 the gravity of the constitutional injuries alleged. As the Court admits, this dramatic recasting of 12 Bivens is unnecessary to support its holding. Id. at 38 (expressing the view that Arar's action 13 would have the natural tendency to affect diplomacy, foreign policy and the security of the 14 nation, and therefore the Court's holding need be no broader ). The standard described by the 15 majority misstates the law and, for the reasons surveyed here, significantly weakens the courts 16 ability to redress constitutional injuries. 17 18 V Arar s claims, in fact, go beyond the usual imperatives for a Bivens remedy. His 19 complaint offers an exceptionally compelling basis for relief, one that the majority repeatedly 20 sidesteps: The charge that government officials actively obstructed Arar s access to the courts, 21 violating core procedural due process rights. See Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000) 22 (assuming that a Bivens action exists for procedural due process claim by detainee). Any court -21- 1 should be deeply disturbed by such allegations, especially those backed by the factual detail 2 presented here. Cf. Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000) (finding AEDPA 3 statute of limitations equitably tolled where prison officials intentionally obstructed habeas 4 petitioner s ability to file his petition by confiscating his legal papers). Yet the majority s 5 wholesale dismissal of claims relating to Arar s detention in the United States for insufficient 6 pleading, as described above allows it to avoid any meaningful engagement with these 7 allegations. 8 9 Normally, as we have seen, when Congress legislates in a particular area, a Bivens action is not appropriate. In particular, the division of labor outlined in Bivens contemplated two 10 scenarios: (1) Where Congress has selected a remedy for constitutional injuries, the courts should 11 defer to its legislative wisdom; (2) Where Congress has not considered a remedy, however, a 12 court must use its judgment about the best way to implement a constitutional guarantee. 13 Wilkie, 551 U.S. at 550; see Bivens, 403 U.S. at 496. However, Arar s case fits neither situation. 14 Instead, the allegations are that any remedy provided by Congress and the Constitution was 15 purposefully foreclosed by executive officials. 16 When it comes to torture, Congress has spoken loudly and clearly. Title 18, Section 2441 17 makes it a felony punishable by life imprisonment to commit, or conspire to commit, an act 18 specifically intended to inflict severe physical or mental pain or suffering . . . upon another 19 person within his custody or physical control for the purpose of obtaining information or a 20 confession. See also 18 U.S.C. § 2340A. Arar s transfer to Syria was allegedly designed to 21 skirt the congressional prohibition on torture by outsourcing this form of interrogation. 22 Moreover, in order to seamlessly accomplish this transfer, officials had to ignore or evade a -22- 1 number of other congressional dictates: An immigration policy that bars the removal of any 2 person to a country where he will likely be tortured, and the INA's judicial review provision. See 3 Convention Against Torture, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 4 implemented by Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 5 Div. G., Tit. XXII, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231); 8 U.S.C. § 6 1252(a)(2)(D); see also Tun v. INS, 445 F.3d 554, 566 (2d Cir. 2006). Finally, officials actions 7 also foreclosed Arar s opportunity to seek habeas relief under 28 U.S.C. § 2241 and the 8 Constitution, a remedy that the government itself concedes should have been available to Arar. 9 In bare terms, the complaint alleges that executive officials set out to circumvent and 10 undercut the powers of both the legislative and judicial branches. Under these circumstances, the 11 usual justifications for hesitation in applying Bivens are simply not present. When, as here, the 12 executive branch takes measures incompatible with the express or implied will of Congress, its 13 power is at its lowest ebb. Youngstown, 343 U.S. at 637 (1952) (Jackson, J., concurring). 14 Factors that might otherwise counsel hesitation disappear where executive officials have sought 15 to nullify the remedies chosen by Congress. In these cases, courts owe the executive branch little 16 deference. Instead, the courts provision of a substitute remedy is an undertaking not simply 17 appropriate for a common-law tribunal but essential for the rule of law. Bush v. Lucas, 462 18 U.S. 367, 378 (1983). Since the majority fails in these responsibilities, I repectfully dissent. 19 -23- POOLER, Circuit Judge, joined by Judges Calabresi, Sack, and Parker, dissenting. I agree with the well-reasoned dissents of my colleagues and join their opinions in full. I write separately to note that the majority s opinion in this troubling and unusual case should not be misread as adopting a new framework for determining whether to recognize a Bivens claim, and to explain why I do not agree that Arar s TVPA claim should be dismissed. I. Bivens At first glance, it might seem that the majority s reasoning with respect to Arar s Bivens claim proceeds in two simple steps: (1) Arar s claim presents a new context for a Bivens action,1 and (2) special factors counsel hesitation before recognizing a Bivens remedy. But a closer reading of the majority opinion reveals far more than a mere hesitation to extend Bivens to a new context in light of special factors. Because the majority s holdings bear no relation to its new statements of Bivens principles, those remarks are dicta. Moreover, any such simplistic framework would be contrary to the Supreme Court s Bivens decisions, which require that courts consider reasons both for and against recognizing the remedy. The Supreme Court has held that we must engage in the following analysis in considering whether to recognize Bivens action: In the first place, there is the question whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages. But even in the absence of an alternative, a Bivens remedy is a subject of judgment: the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation. 1 I do not agree with the majority s conclusion that Arar s case presents a new context for a Bivens action for the reasons stated in Judge Sack s dissent. 1 Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)). After sidestepping the question of existing remedies, Maj. Op. at 33-36, the majority states that the remainder of inquiry can be reduced to the question of whether there any special factors to consider. Id. at 35-36 The majority begins by observing that the Supreme Court has extended Bivens twice but refused to extend Bivens seven times, as if this empirical disfavor could save courts the trouble of engaging in the kind of remedial determination that is appropriate for a common-law tribunal. Wilkie, 551 U.S. at 550.2 Notwithstanding the Supreme Court s reluctance to extend Bivens in recent years, it has not overruled Bivens, nor has it overruled the decisions extending Bivens to new contexts in Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980), nor has it ever held that Bivens and its progeny should be limited to the precise circumstances that they involved. Wilkie, 551 U.S. at 568 (Thomas, J., concurring) (quotation marks omitted). Thus, the majority must distinguish Bivens, Davis, and Green s cases from Arar s. To do so, the majority points to special factors that counsel hesitation. The majority observes, in dicta, two principles emerging from the case law on Bivens. First, where special factors counseling hesitation exist, no account is taken of countervailing factors. Maj. Op. at 37. Notwithstanding this new principle, the majority concludes that it cannot ignore that, as the panel dissent put it, there is a long history of judicial review of Executive and Legislative decisions related to the conduct of foreign relations and national security. Id. at 56-57 (quoting 2 Recently, in dicta, the Supreme Court explained that its reluctan[ce] to extend Bivens stems from the fact that implied causes of action are disfavored. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). 2 Arar v. Ashcroft, 532 F.3d 157, 213 (2d Cir. 2008) (Sack, J., dissenting in part)). And the majority recognizes that prudential considerations play into the Bivens analysis, considering, for example, whether a Bivens action in Arar s context would have a deterrent effect. Id. at 52. Ultimately, therefore, the majority has not adopted any new principle of disregarding countervailing factors. Second, the majority proclaims that the threshold for determining whether a factor counsels hesitation is remarkably low. Maj. Op. at 37. The majority explains that [h]esitation is counseled whenever thoughtful discretion would pause even to consider. Id. I find this statement somewhat inscrutable, but I do not take the majority to mean that Bivens should not be extended anytime a special factor deserves any degree of consideration. Insofar as the majority intends to lower the bar for special factors, its remarks are dicta. These remarks bear no relation to the majority s holding that extension of Bivens to Arar s context is not advisable, id. at 32, because separation of powers, institutional competence, and other factors sternly counsel hesitation. Id. at 36. Indeed, the majority s opinion devotes twenty pages to its stern assessment of special factors, id. at 36-56, including the fear that actual terrorists could win damages awards, placing courts in the position of funding terrorism, id. at 53 n.12; that the government will be graymail[ed] into settling cases to prevent disclosure of classified information, id. at 51-54; and that other countries will be less willing to cooperate with the United States in sharing intelligence resources to counter terrorism, id. at 43. Apart from being dicta, these remarks represent a misreading of Supreme Court precedent. Wilkie exhorts that we pay heed to special factors counseling hesitation while exercising the type of remedial judgment appropriate for a common law tribunal weighing 3 reasons for and against the creation of a new cause of action, the way common law judges have always done. 551 U.S. at 554 (citing Bush, 462 U.S. at 378). In the exercise of remedial judgment, we should not consider only those factors that militate in favor of one side of the argument. We must be mindful of a wide range of prudential concerns. See, e.g, id. at 550 (holding that any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee ); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (considering whether extension of Bivens would deter individual federal officers . . . from committing constitutional violations ). The majority cannot overrule Wilkie s holding that we must make the kind of remedial determination that is appropriate for a common-law tribunal, 551 U.S. at 550, by replacing that phrase with ellipses when quoting the case, see Maj. Op. at 35. Were the majority s dicta the rule, there would be no explanation for the Supreme Court s decision in Bivens in the first place. Surely there were special factors that would have counseled hesitation the drain on the public fisc, the strain on judicial resources, the hindrance to law enforcement personnel whose efforts had to be diverted to defending lawsuits for damages. Without pausing to consider these factors, the Bivens Court held that a damages remedy was necessary to enforce the Fourth Amendment. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397-98 (1971). Moreover, were the majority s dicta correct, it would be impossible to make heads or tails of Davis v. Passman, supra. In that case, the Court extended Bivens to a claim for employment discrimination in violation of the equal protection component of the Fifth Amendment s Due Process Clause against a member of Congress. The Court recognized a Bivens remedy despite pausing to give thoughtful consideration to the argument that Passman s 4 status as a member of Congress, counsel[ed] hesitation. 442 U.S. at 246. The Court also noted the risk of deluging federal courts with claims and the scarcity of judicial resources, but did not find these special factors sufficiently persuasive to overwhelm Davis s need for a remedial mechanism. Id. at 248 (quotation marks omitted). The absence of other remedies for a constitutional violation may be a reason for creating a new cause of action. Wilkie, 551 U.S. at 554 (considering, at the second step of the analysis, the inadequacy of existing remedies). Thus, the Supreme Court has recognized a Bivens remedy where, for the plaintiff, it was damages or nothing. Davis, 442 U.S. at 245 (quoting Bivens, 402 U.S. at 410 (Harlan, J., concurring in judgment)). The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. Bivens, 403 U.S. at 397 (quoting Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803)). [W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. Id. at 392 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). In Davis, the Court held, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights. 442 U.S. at 242. The majority avoids any categorical ruling on alternative remedies, in favor of its dominant holding on special factors. Maj. Op. at 8.3 I have searched the majority s opinion for 3 By abandoning the panel majority s holding that the INA is an alternative existing remedy that precludes Bivens relief, the majority has avoided any implication that well-established Bivens actions for immigrants alleging Fourth and Eighth amendment violations 5 a subordinate and non-categorical ruling on alternative remedies, and I have found none. This is for good reason. The majority recognizes that Arar has alleged that he was actively prevented from seeking any meaningful review and relief through the INA processes. Id. at 35. This makes Arar s case unlike those in which the Court refused to imply a Bivens remedy upon concluding that Congress had already established a remedial scheme covering the field. See, e.g., Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S. 367 (1983). Where defendants blocked a plaintiff s access to the remedies established by Congress, foreclosing a Bivens remedy eliminates any judicial review. See Rauccio v. Frank, 750 F. Supp. 566, 571 (D. Conn. 1990); Grichenko v. U.S. Postal Serv., 524 F. Supp. 672, 676-77 (E.D.N.Y. 1981). This result thwarts Congress s will and abdicates the judicial role. The majority errs in failing to take account of this consideration in its assessment of special factors. In cases in which the Court declined to extend Bivens, it did not resolve the issue simply by observing that it had to pause to consider special factors. Rather, the Court declined to extend Bivens because factors related to institutional competence and separation of powers strongly counseled hesitation. For example, in Chappell v. Wallace, 462 U.S. 296 (1983), the Court declined to create a damages remedy for alleged racial discrimination by military officers because [t]he need for . . . a special and exclusive system of military justice[] is too obvious to require extensive discussion; no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting, id. at 300, and the creation of a Bivens remedy by the federal courts would be plainly inconsistent with Congress authority in are without basis. And, by abandoning the holding that it could not take as true Arar s unverified allegations of official obstruction of his right to challenge the CAT determination, the opinion avoids the implication that Bivens claimants face a heightened pleading standard. 6 this field under Article 1of the Constitution, id. at 304. Ultimately, the majority concludes that the Constitution provides Arar no remedy for this wrong, that the judiciary must stay its hand in enforcing the Constitution because untested national security concerns have been asserted by the Executive branch. For the reasons stated herein and in Judge Sack s dissenting opinion, I would hold the Arar should have a Bivens remedy to reinforce our system of checks and balances, to provide a deterrent, and to redress conduct that shocks the conscience. I understand the majority s opinion today to be a result of its hyperbolic and speculative assessment of the national security implications of recognizing Arar s Bivens action, its underestimation of the institutional competence of the judiciary, and its implicit failure to accept as true Arar s allegations that defendants blocked his access to judicial processes so that they could render him to Syria to be tortured, conduct that shocks the conscience and disfigures fundamental constitutional principles. This is a hard case with unique circumstances. The majority s disappointing opinion should not be interpreted to change Bivens law. II. TVPA I cannot join the Court in concluding that the facts of Arar s complaint are insufficient to state a claim under the TVPA. Section 2(a) of the TVPA provides that a defendant is liable only if he acted under actual or apparent authority, or color of law, of any foreign nation . . . 28 U.S.C. 1350 (note). In construing this requirement, we look to principles of agency law and to jurisprudence under 42 U.S.C. § 1983. Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995). Under Section 1983, [t]he traditional definition of acting under color of state law requires that the defendant . . . have exercised power possessed by virtue of state law and made possible only 7 because the wrongdoer is clothed with the authority of state law. West v. Atkins, 487 U.S. 42, 49 (1988) (quotation marks omitted). I agree with the majority that there is no litmus test for determining whether a Section 1983 defendant is acting under color of state law. Maj. Op. at 21 ( The determination as to whether a non-state party acts under color of state law requires an intensely fact-specific judgment unaided by rigid criteria as to whether particular conduct may be fairly attributed to the state. (citing Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass n, 531 U.S. 288, 295 (2001)). This is a wise departure from the test set forth by the panel opinion, which interpreted Section 1983 case law to require that when the defendant is a federal official, he must be under the control or influence of the state actor to act under color of state law. Arar, 532 F.3d at 175-76. Our Circuit has consistently recognized several bases for liability under Section 1983, control or influence being just one: For the purposes of section 1983, the actions of a nominally private entity are attributable to the state when: (1) the entity acts pursuant to the coercive power of the state or is controlled by the state ( the compulsion test ); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the [s]tate, or the entity s functions are entwined with state policies ( the joint action test or close nexus test ); or (3) when the entity has been delegated a public function by the [s]tate, ( the public function test ). Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam) (quoting Brentwood Acad., 531 U.S. at 296). As the majority now recognizes, [a] federal officer who conspires with a state officer may act under color of state law. Maj. Op. at 21 (citing Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154 (2d Cir. 2006)). The majority concludes that Arar s pleading was deficient because he alleged only that 8 United States officials encouraged and facilitated the exercise of power by Syrians in Syria, not that defendants possessed power under Syrian law which they used to remove him to Syria to be tortured. Maj. Op. at 21-22. I disagree. In the Section 1983 context, the Supreme Court has held that private individuals may be liable for joint activities with state actors even where those private individuals had no official power under state law. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). In Sparks, the private individuals conspired with a state judge to enjoin the plaintiff s mining operation. The Court held: [T]o act under color of state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting under color of law for purposes of § 1983 actions. Id.; see also Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 315 (2d Cir. 2007) (Korman, J., concurring in part). Arar alleges that U.S. officials, recognizing that Syrian law was more permissive of torture that U.S. law, contacted an agent in Syria to arrange to have Arar tortured under the authority of Syrian law. Specifically, Arar alleges that U.S. officials sent the Syrians a dossier containing questions, identical to those questions he was asked while detained in the U.S., including one about his relationship with a particular individual wanted for terrorism. He also alleges the Syrian officials supplied U.S. officials with information they extracted from him, citing a public statement by a Syrian official. Assuming the truth of these allegations, defendants wrongdoing was only possible due to the latitude permitted under Syrian law and their joint action with Syrian authorities. The torture may fairly be attributed to Syria. Because the majority s holding in this case is not required by controlling law from the 9 Section 1983 context,4 the decision must turn on the unique features of this case brought under the TVPA alleging joint action by federal agents with Syrian officials. The majority cites Harbury v. Hayden, 444 F. Supp. 2d 19, 42-43 (D.D.C. 2006), aff d on other grounds, 522 F.3d 413 (D.C. Cir. 2008). In that case, as well as one other, district judges concluded that U.S. officials pursuing federal policy under federal statutes act under color of U.S., not foreign, law. Id. (holding that CIA officers cooperating with the Guatemalan military acted under color of U.S. law because they were within the scope of their employment serving the United States and carrying out the policies and directives of the CIA ); Schneider v. Kissinger, 310 F. Supp. 2d 251, 267 (D.D.C. 2004) ( Dr. Kissinger was most assuredly acting pursuant to U.S. law . . . despite the fact that his alleged foreign co-conspirators may have been acting under color of Chilean law. ), aff d on other grounds, 412 F.3d 190 (D.C. Cir. 2005). But the majority does not adopt this questionable reasoning that a federal official can act under color of only one sovereign s authority at a time. The majority simply observes that because federal officials typically act under color of federal law, they are rarely deemed to have acted under color of state law. Maj. Op. at 21 (quotation marks omitted). Rather, where the alleged torture was carried out by foreigners in a foreign land, the majority draws a line between the actual exercise of power under foreign law and the encouragement, facilitation, or solicitation of that exercise of power. Id. at 21-22. This distinction is unprincipled. Under agency law, when two persons engage jointly in a partnership for some criminal objective, the law deems them agents for one another. Each is deemed to have 4 Because the majority s holding turns on the unique aspects of Arar s claim under the TVPA, it does not limit the range of conduct for which non-state actors can be held liable under Section 1983. 10 authorized the acts and declarations of the other undertaken to carry out their joint objective. United States v. Russo, 302 F.3d 37, 45 (2d Cir. 2002). It is of no matter that only one member of the conspiracy carried out the torture. If we carry the majority s logic to its extreme, federal agents could never be responsible for torture inflicted under color of foreign law, even if they were in the room with the foreign torturers orchestrating the techniques. Arar Reply Br. at 36.5 Under Section 1983, non-state actors who willfully participate in joint action with state officials, acting under state law, themselves act under color of state law. By analogy, under the TVPA, non-Syrian actors who willfully participate in joint action with Syrian officials, acting under Syrian law, themselves act under color of Syrian law. In Aldana v. Del Monte Fresh Produce, 416 F.3d 1242, 1249, 1265 (11th Cir. 2005), the Eleventh Circuit sustained a TVPA claim where plaintiffs alleged that a U.S. corporation hir[ed] and direct[ed] its employees and/or agents, including a Guatemalan mayor, to torture the Plaintiffs and threaten them with death. 416 F.3d at 1265. The allegation that the corporation participated in joint action with the Guatemalan official was sufficient.6 I see no principled reason to apply different rules to the TVPA context than the Section 1983 context, to federal agent defendants than corporate 5 The majority s perplexing statement that if a federal official were found to be acting under color of foreign law, it would render a U.S. official an official of a foreign government, Maj. Op. at 22-23 n.3, is simply incorrect. A private actor is not transformed into a state official merely because he acted under color of state law, see Dennis, 449 U.S. at 27-28 (1980), and there is no reason that this would be the case in the analogous TVPA context. 6 Although the question in Aldana was whether violence by a private security force involved state action, and not whether the U.S. corporation was acting in Guatemala under color of U.S. or Guatemalan law, in the Section 1983 context, the two inquiries are interchangeable. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982); see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1264 (11th Cir. 2009). 11 defendants, or to actors in the United States than actors on foreign soil.7 Arar alleges that defendants, acting in concert with Syrian officials, interrogated him through torture under color of Syrian law, which they could not have accomplished under color of U.S. law alone. Thus, I cannot agree that the panel correctly determined the TVPA question on the color of law question. I must therefore respectfully dissent. 7 Because plaintiffs must meet a plausibility standard for claims against federal officials under Ashcroft v. Iqbal, supra, I am not concerned that subjecting federal officials to liability under the TVPA would open the floodgates to a wave of meritless litigation. But see Hayden, 444 F. Supp. 2d at 41. 12 1 2 CALABRESI, Circuit Judge, joined by Judges Pooler, Sack, and Parker, dissenting. I respectfully dissent. I join Judge Sack s, Judge Parker s, and Judge Pooler s dissenting 3 opinions in full. But, because I believe that when the history of this distinguished court is 4 written, today s majority decision will be viewed with dismay, I add a few words of my own, . . 5 . more in sorrow than in anger. Hamlet, act 1, sc. 2. 6 My colleagues have already provided ample reason to regret the path the majority has 7 chosen. In its utter subservience to the executive branch, its distortion of Bivens doctrine, its 8 unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its 9 persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion 10 goes seriously astray. It does so, moreover, with the result that a person whom we must assume 11 (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided 12 deeds of individuals acting under color of federal law is effectively left without a U.S. remedy. 13 See especially dissenting opinion of Judge Parker. 14 All this, as the other dissenters have powerfully demonstrated, is surely bad enough. I 15 write to discuss one last failing, an unsoundness that, although it may not be the most significant 16 to Maher Arar himself, is of signal importance to us as federal judges: the majority s unwavering 17 willfulness. It has engaged in what properly can be described as extraordinary judicial activism.1 18 It has violated long-standing canons of restraint that properly must guide courts when they face 19 complex and searing questions that involve potentially fundamental constitutional rights. It has 1 I use this much abused phrase judicial activism, in its literal sense, to mean the unnecessary reaching out to decide issues that need not be resolved, the violation of what Chief Justice Roberts called the cardinal principle of judicial restraint if it is not necessary to decide more, it is necessary not to decide more. PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring). 1 1 reached out to decide an issue that should not have been resolved at this stage of Arar s case. 2 Moreover, in doing this, the court has justified its holding with side comments (as to other fields 3 of law such as torts) that are both sweeping and wrong. That the majority made up of 4 colleagues I greatly respect has done all this with the best of intentions, and in the belief that its 5 holding is necessary in a time of crisis, I do not doubt. But this does not alter my conviction that 6 in calmer times, wise people will ask themselves: how could such able and worthy judges have 7 done that? 8 I 9 I focus first on the willful reaching out to decide a hard constitutional question. If there 10 is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it 11 is that we ought not to pass on questions of constitutionality . . . unless such adjudication is 12 unavoidable. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). The 13 Supreme Court long ago made clear that it would not and that we should not pass upon a 14 constitutional question although properly presented by the record, if there is also present some 15 other ground upon which the case may be disposed of. Ashwander v. TVA, 297 U.S. 288, 347 16 (1936) (Brandeis, J., concurring); see also, e.g., Alexander v. Louisiana, 405 U.S. 625, 633 17 (1972) ( [W]e follow our usual custom of avoiding decision of constitutional issues unnecessary 18 to the decision of the case before us. ); Burton v. United States, 196 U.S. 283, 295 (1905) ( It is 19 not the habit of the court to decide questions of a constitutional nature unless absolutely 20 necessary to a decision of the case. ). We ourselves have described this canon of constitutional 21 avoidance as axiomatic, Allstate Ins. Co. v. Serio, 261 F.3d 143, 149 (2d Cir. 2001), and have 22 long allowed it to dictate[] our decisions in appropriate circumstances. Fine v. City of New 2 1 York, 529 F.2d 70, 76 (2d Cir. 1975).2 2 The question that today s majority elects to decide implicates this fundamental principle. 3 This is because the existence vel non of a claim meriting a Bivens remedy, in the absence of any 4 congressionally mandated relief, is a matter of constitutional interpretation. As early as Bivens 5 itself, the Supreme Court made clear that the cause of action it recognized arose under the 6 Constitution. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 7 388, 397 (1971). As Justice Harlan said in his influential concurrence in Bivens, the source of 8 the legal interest protected by any Bivens action is the Federal Constitution itself ; the 9 Constitution is in the relevant sense a source of legal protection for the rights enumerated 10 therein. Id. at 402 n.3 (Harlan, J., concurring). And even the majority here describes Bivens as 11 a judicially-created remedy stemming directly from the Constitution itself. Maj. Op. at 30 2 There is also a canon that courts should not lightly find legislation to be unconstitutional. See, e.g., Clark v. Suarez Martinez, 543 U.S. 371, 381-82 (2005). That canon is of great importance, and is related to but separate from the canon to which I am referring. See id. at 381. It derives from the so-called majoritarian difficulty, the fact that courts are, generally, not representative bodies. See Alexander M. Bickel, The Least Dangerous Branch 1617 (2d ed. 1986) ( [W]hen the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people . . . . ) The canon at issue in this case is different, however, and demands, more broadly, that unnecessary constitutional decisions not be made, whichever way they would come out. It is expressed in a large variety of rules, a few of which are listed in one Supreme Court decision: constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided. Rescue Army v. Mun. Court of Los Angeles, 331 U.S. 549, 569 (1947) (emphasis added). 3 1 (emphasis added).3 2 I recognize that this question the constitutional status of Bivens actions is one that has 3 vexed some in academia. But as is often the case, what can be layered with mystery in the pages 4 of a law review is, in practice, fairly simple. When a court concludes that a Bivens action is 5 appropriate, it is holding that, on the then-present state of the law, the Constitution requires the 6 court to create a remedy. As even the staunchest critics of Bivens recognize, a holding that a 7 particular constitutional right implies a remedy can presumably not even be repudiated by 8 Congress. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). 9 While Congress can vitiate the need for a judicially created Bivens remedy by providing an 10 alternative . . . process for protecting the [constitutional] interest, Wilkie v. Robbins, 551 U.S. 11 537, 550 (2007),4 it cannot overturn a holding that some remedy is necessary.5 This is the 3 Cf. Fine, 529 F.2d at 71, 76 (2d Cir. 1975) (declining to decide the difficult and troublesome constitutional questions in a Bivens-like claim against a municipality founded directly upon the Fourteenth Amendment ); Brault v. Town of Milton, 527 F.2d 730, 738 (2d Cir. 1975) (en banc) (assuming, without deciding, that a claim against a municipality can be founded directly on the Fourteenth Amendment, but finding discussion of other possible barriers on [the plaintiff s] road to relief . . . superfluous because the allegations in the complaint were insufficient). 4 For this reason, were there a majority finding that Arar could bring a TVPA action, as Judge Pooler, in her dissenting opinion, powerfully argues he should be able to do, then of course there might well be an alternative, existing process, Wilkie, 551 U.S. at 550, in which case a Bivens action might not lie under the well-established rule that such a remedial scheme may obviate the need for a Bivens action. Because of the majority s holding that the TVPA does not apply, however, I need not reach this question. A more complicated issue, which I also don t need to reach, is whether compensation by a foreign government can constitute an alternative redress, because of which, on the very particular facts of this case, a Bivens action might not lie. But no one has discussed or argued that in any way, and since it is not an easy issue, I see no need to delve into it further. 5 The first step of the two-part analysis laid out in Wilkie is itself an instance of constitutional avoidance. Where a congressionally created process adequately protects a 4 1 essence of a constitutional holding, and hence one directly subject to the avoidance canon.6 2 That avoiding difficult constitutional questions like those before us is the proper course 3 was made clear by the Supreme Court in Christopher v. Harbury, 536 U.S. 403 (2002). In that 4 case, the only issue before the Supreme Court was whether Harbury s Bivens action for denial of 5 access to courts could proceed. Id. at 412. Justice Souter (for eight members of the Court) wrote constitutional right, there is no need to determine whether the Constitution requires a remedy. See Bush v. Lucas, 462 U.S. 367, 378 n.14 (1983) ( We need not reach the question whether the Constitution itself requires a judicially fashioned damages remedy in the absence of any other remedy to vindicate the underlying right, unless there is an express textual command to the contrary. The existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate. (citation omitted)). By contrast, the Supreme Court, acting prudentially, has denied Bivens claims due to special factors only in quite particular circumstances implicating substantial constitutional questions. First, it has done so in response to an exclusive textual commitment of authority to another branch. See United States v. Stanley, 483 U.S. 669, 681-82 (1987) (holding that no Bivens action lay because of explicit constitutional authorization for Congress to make Rules for the Government and Regulation of the land and naval Forces and the insistence . . . with which the Constitution confers authority over the Army, Navy, and militia upon the political branches (quoting U.S. Const. Art. I, § 8, cl. 14)); Chappell v. Wallace, 462 U.S. 296, 300-02 (1983) (same); cf. Davis v. Passman, 442 U.S. 228, 246 (1979) ( [A]lthough a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation, we hold that these concerns are coextensive with the protections afforded by the Speech or Debate Clause. ). Second, it has done so where the Constitution did not provide a workable standard for distinguishing constitutional conduct from unconstitutional conduct. See Wilkie, 551 U.S. at 555-61. 6 While the methodology that courts apply in determining whether or not a constitutional right presupposes some implied remedy is that of a common-law tribunal, Bush, 462 U.S. at 378, that fact in no way diminishes the status of the ultimate holding, up or down, as a constitutional interpretation. And while there are, of course, situations in which a court must or should put aside the practice of avoiding constitutional questions, as when its jurisdiction under Article III is in doubt, see Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 94-95 (1998), none of them apply here. The existence vel non of a Bivens action is not a jurisdictional prerequisite that must be resolved first. If this was ever in doubt, it has been resolved by Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009), which makes clear that a court can assume, without deciding, that [a] claim is actionable under Bivens and then dismiss a case on non-jurisdictional grounds. 5 1 that whether this Bivens action lies would require an inquiry that raises 2 3 concerns for the separation of powers in trenching on matters committed to the other 4 branches. Since the need to resolve such constitutional issues ought to be avoided where 5 possible, the [courts] should . . . as soon as possible in the litigation [determine] whether 6 a potential constitutional ruling may be obviated because the allegations of denied access 7 fail to state a claim on which relief could be granted. 8 9 Id. at 417 (emphasis added). The Court, in other words, said we must first decide if there are 10 non-Bivens grounds for resolving the dispute, and only then address the constitutional issues 11 raised by Bivens actions.7 This practice, the Court stated, comports with the obligation of the 12 Judicial Branch to avoid deciding constitutional issues needlessly. Id. The Court then 13 proceeded to examine closely the cause of action that Harbury claimed to have lost through the 14 defendants behavior, determined that it was insufficient to justify relief, and, on that non- 15 constitutional basis, dismissed Harbury s claim. Id. at 418. 16 The implications for Arar s case could hardly be more manifest. The national security 17 concerns that the majority relies upon in its special factors analysis are precisely those that the 18 Supreme Court said must be avoided in Harbury. And in such circumstances, it is our job to put 7 To be sure, the Supreme Court noted that the defendants in Harbury did not challenge below the existence of a cause of action under Bivens, and accordingly it did not express an opinion on the question or use the special factors terminology. Harbury, 536 U.S. at 412 n.6. But the constitutional question before us, of the balancing of two constitutional interests, one an individual right and one a matter of national security and separation of powers, is the same one as was avoided in Harbury. 6 1 the trial court . . . in a position as soon as possible in the litigation to know whether a potential 2 constitutional ruling may be obviated. Id. at 417. For reasons that will be clear soon enough, it 3 may well be that, on remand, this case would, for non-constitutional reasons, fail to state a claim 4 on which relief could be granted. Id. at 417. That being so, the Supreme Court has told us, we 5 must avoid constitutional pronouncements. 6 For this Court to go out of its way to decide on Bivens grounds when it is not necessary is, 7 therefore, a reaching out of a particularly dangerous sort, regardless of what conclusion the Court 8 comes to on the Bivens question.8 If as I would if I had to face the question we were to 9 decide that Bivens applies, then some remedy would be necessary regardless of Congress s 10 preference. If, as the majority chooses to do, we rule that Bivens does not apply, we have said 11 that, in a wide variety of cases, the Constitution fails to give protection. Both positions require a 12 parsing of the Great Charter. When such a decision cannot be avoided, so be it: we do our job. 13 But where it can be avoided, it should be. 14 II 15 So, how might the Bivens issue have been avoided? As Judge Sack explains in his 8 At footnote 7, the majority disputes Judge Pooler s statement that the propositions in the accompanying text are dicta. See Maj. Op. at 37. The majority then seeks to characterize those propositions as holdings. But whether something is holding or dicta is an objective fact and does not depend on how it is characterized either by a majority or by a dissent. It is what it is regardless of what one calls it. To paraphrase my professor Fleming James, You can call it Thucydides or you can call it mustard plaster, but it is [dicta or holding] just the same. The fact that the majority wishes to call the propositions holding is instructive, however. If the propositions are holding then they would eliminate virtually all Bivens actions in this circuit. And they would do so despite the assertions, elsewhere in the majority opinion, that recognizing a Bivens action in this extraordinary case would be uniquely dangerous. The majority s desire to make a holding of such breadth, as to a question entailing constitutional interpretation, in a case which, as I argue, could likely be resolved on other grounds, displays a truly extraordinary degree of willfulness and activism. 7 1 eloquent dissent, this might be done through first examining the significance of the state secrets 2 privilege to this case.9 That privilege has long required dismissal in those rare cases where 3 national security interests so drastically limit the evidence that can be introduced as to deprive 4 either a plaintiff or a defendant of an opportunity to make its case. See, e.g., Zuckerbraun v. Gen. 5 Dynamics Corp., 932 F.2d 544, 547 (2d Cir. 1991); see also United States v. Reynolds, 345 U.S. 6 1 (1953); El-Masri v. United States, 479 F.3d 296, 308 (4th Cir. 2007) ( [A] proceeding in which 7 the state secrets privilege is successfully interposed must be dismissed if the circumstances make 8 clear that privileged information will be so central to the litigation that any attempt to proceed 9 will threaten that information s disclosure. ). In a case such as this, where the Government 10 asserts that the plaintiff s claim implicates vital national secrets, we must, before we move to the 11 merits, examine the consequences of our duty to guard against any potentially harmful 12 disclosures. 13 The majority obviously shares our concerns about the protection of state secrets, as 14 virtually every special factor identified in the majority opinion concerns classified material. 15 But, as Judge Sack says, this amounts to double-counting of the Government s interest in 16 preserving state secrets. See dissenting opinion of Judge Sack at 52. We already possess a well9 At footnote 14, the majority states that the state secrets privilege, despite its common law origin, is not devoid of constitutional implications. See Maj. Op. at 58-59. That may well be. But that fact in no way means that decisions as to the applicability of a particular claim of the privilege entail constitutional interpretations. The existing common law privilege more than covers whatever the Constitution requires. The proper analogy is quite simple. If Congress were to pass a statute, akin to § 1983, giving broad cause of action to those injured by federal officials, decisions under that statute would not normally involve constitutional interpretations. And this would be so even though, in the absence of such a statute, a Bivens, constitutional claim, might lie. The same is so with respect to applications of the common law state secrets privilege. As an excuse for the majority s violation of the canon of constitutional avoidance this argument does not make it to first base. 8 1 established method for protecting secrets, one that is more than adequate to meet the majority s 2 concern.10 Denying a Bivens remedy because state secrets might be revealed is a bit like denying 3 a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at 4 great pains to eliminate, to negate entirely substantial rights and procedures. 5 Even more mystifying is the majority s insistence that it is respecting [t]he preference 6 for open rather than clandestine court proceedings. Maj. Op. at 47. How, exactly, does the 7 majority promote openness by shaping a constitutional decision around the fact that state secrets 8 might be involved in a claim? The state secrets doctrine is undoubtedly in tension with the 9 public right of access to the courts, but the majority s approach is more opaque than any state 10 secrets resolution. When a court properly applies the state secrets doctrine, the case at bar will 11 proceed only if the alleged state secrets are not vital to a claim or defense, so there should be 12 little fear that a substantive holding will ultimately turn on secret material. By contrast, consider 13 the harm done to the openness of the court system by what the majority does here. It bars any 14 action in the face of what we are required to assume are outrageous constitutional violations, and 15 it does so simply because state secrets might possibly be involved, without having a court look 16 into that very question. As a result, even if the Government s claimed need for secrecy turned 17 out to be wholly illusory, there would be no recourse! Indeed, even if the Government 18 declassified every document relating to this case, even if all four countries involved announced 19 that they had nothing to hide and that Arar s claim should proceed so that they could be 10 Indeed, if anything, existing doctrine may be too solicitous of the need for secrecy, if the many critics of the Reynolds line are correct. See infra Part IV. But while there is widespread concern that the doctrine may be overused, it is hard to find any commentators who think that state secrets are inadequately protected under current law. 9 1 exonerated, there would be no open judicial testing of Arar s allegations. Which approach 2 should give us more cause to hesitate? 3 The majority further errs in its use and abuse of other fields of law. In trying to find 4 special factors that could justify barring a Bivens claim (but do not depend on state secrets ) 5 the majority points to two issues that arise in every tort suit against a government official. If they 6 are valid here they would appear to counsel hesitation in (and, under the majority s reasoning, 7 seemingly preclude) every Bivens action. First, the majority warns that [t]he risk of graymail . . 8 . counsels hesitation in creating a Bivens remedy. Maj. Op. at 51. Because the risk of 9 unwarranted and dangerous disclosure is so high, the Government will be pressured into settling 10 meritless cases. Second, as a consequence of such graymail, the Government, rather than 11 individual defendants, would wind up paying off claims. See Maj. Op. at 52. Because these 12 possibilities are an endemic risk in cases (however few) which involve a claim like Arar s, the 13 majority concludes, they make Bivens actions particularly inappropriate. Maj. Op. at 51. 14 But both of these issues the risk of graymail and the disjunction between individual 15 defendants and an indemnifying government are present in every tort suit against a government 16 agent, not just the relatively few cases involving extraordinary rendition for the purposes of 17 torture.11 Taking the latter point first, both state and federal officers are almost universally 18 indemnified by the State if they lose tort suits. In Bivens cases, the federal government 19 indemnifies its employees against constitutional tort judgments or settlements (in the rare 20 instances in which a Bivens claim results in a monetary liability) and takes responsibility for 11 That is, except to the extent state secrets are involved. And to the extent they are, as already discussed, the state secrets privilege is more than sufficient to preclude graymail. 10 1 litigating such suits. Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of 2 Public Officials Individual Liability Under Bivens, 88 Geo. L.J. 65, 76 (1999). Indeed, [a]s a 3 practical matter . . . indemnification is a virtual certainty. Id. at 77. Similarly, as is widely 4 understood, a suit against a state officer is functionally a suit against the state, for the state 5 defends the action and pays any adverse judgment. So far as can be assessed, this is true not 6 occasionally and haphazardly but pervasively and dependably. John C. Jeffries, Jr., In Praise of 7 the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 50 (1998) (citation omitted). So 8 the majority s point proves far too much: if a Bivens action is inappropriate where the individual 9 defendants pocketbooks are not ultimately at risk, then Bivens actions are always inappropriate. 10 And while the majority could be right that, as a policy matter, tort suits against financially 11 indifferent defendants are unwise, who are we as federal appellate judges to say that what is 12 standard tort law in every state in the nation, and what has been repeatedly approved by the 13 Supreme Court and every federal circuit, is fatally unacceptable? 14 As to graymail, defendants in civil suits are always subject to pressures to settle, yet this 15 has never been considered a reason to bar categorically a type of suit against government 16 officials. Is the desire to avoid the revelation of state secrets (a desire that is already fully 17 accommodated by the state secrets doctrine) so different from the desire to avoid, for example, 18 devastating reputational injury, which will often drive a state or federal entity s response to a 19 suit? How is the hassle attendant on a claim like Arar s the enmesh[ing of] government 20 lawyers and the elicit[ing of] government funds for settlement, Maj. Op. at 39 so much 21 worse here than it is in the types of suits that every state has chosen to permit and that all three 22 branches of the federal Government have accepted since Bivens was issued almost 40 years 11 1 2 ago?12 These, then, are the majority s determinative special factors : a mix of risks that are 3 amply addressed by the state secrets doctrine and policy concerns that inhere in all Bivens actions 4 and in innumerable every-day tort actions as well.13 This maladaptation of a Bivens analysis, as 5 far as I can tell, is motivated by a belief that the majority s holding is necessary to protect our 6 nation s security. But, as I have already said, that worthy concern both can be and should be 7 protected by already existing ordinary law and not by reaching out and potentially warping the 12 On the subject of graymail, something must be said in response to the majority s remarkable insinuation that Canada has been the victim of graymail at Arar s hands. Maj. Op. at 53-54. ( It is not for nothing that Canada (the government, not an individual officer of it) paid Arar $10 million dollars. ). The Canadian government decided on its own accord to initiate an inquiry into its role in Arar s treatment, an investigation that operated independently of Arar s suits. That inquiry was specifically precluded from making any findings (or even assessments) as to whether the Government of Canada would be civilly liable to Mr. Arar. Report of the Events Relating to Maher Arar: Analysis & Recommendations, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar 362 (Sept. 18, 2006). It had no power to recommend payment, but instead just expressed the facts surrounding Arar s treatment, spelling out Canada s conduct vis-à-vis Arar in hundreds of pages of detail. The Canadian government considered that report and decided to compensate and apologize to Arar. In other words, Canada voluntarily established a commission the entire purpose of which was to determine and discuss publicly what the Canadian government did to Arar; it then assessed those facts and concluded that it should negotiate a settlement with him and formally apologize for the role of Canadian officials. Many lessons could be drawn from this process for the American response to allegations like Arar s, but one thing quite clearly cannot be said: that what happened in Canada is tantamount to graymail. 13 My fellow dissenters have said all that needs to be said about the majority s insistence that Arar s action is a constitutional challenge to policies promulgated by the executive and that Bivens actions cannot proceed where they affect diplomacy, foreign policy and the security of the nation. Maj. Op. at 38. And as to the ominous-sounding warning that [s]uch a suit unavoidably influences government policy and invades government interests, Maj. Op. at 39, I would not think that an unconstitutional course of government action is shielded from scrutiny merely because it can be described as a policy or interest. If the DEA had a policy of conducting warrantless home searches, would we hesitate to influence it? See Bivens, 403 U.S. at 389-90. If corrections officials acted on an interest in denying their inmates medical care, would we hesitate to invade it? See Carlson v. Green, 446 U.S. 14, 16 (1980). 12 1 Constitution. 2 III 3 The state secrets doctrine has recently come in for significant criticism, much of it 4 warranted. In particular, many commentators not to mention the Obama administration and a 5 Ninth Circuit panel have suggested that outright dismissal of a case on state secrets grounds 6 should be disfavored. See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, 1006 (9th 7 Cir. 2009), amended at 579 F.3d 942, reh g en banc granted by No. 08-15693, 2009 U.S. App. 8 LEXIS 23595; Policies and Procedures Governing Invocation of the State Secrets Privilege, 9 Memorandum from the Attorney Gen. to Heads of Exec. Dep ts and Agencies (Sept. 23, 2009), 10 available at There is much to 11 these concerns. But I would note three reasons that a threshold dismissal for want of evidence 12 due to the existence of state secrets (if that were eventually determined necessary) would be 13 preferable to the constitutional holding made today. And this would be so, I suggest, quite apart 14 from the importance of adhering to the canon of constitutional avoidance. 15 First, a dismissal because a party simply cannot (for reasons of state secrets) proffer 16 necessary evidence says nothing about the merits of the underlying claim.14 While this may be 17 deeply unfair to a party who has been grievously injured (as we must assume Arar was), it, at 18 least, does no damage to the legal standards by which other parties claims are judged. 19 Second, a routine practice of first considering state secrets avoids the risk of a certain type 14 The fact that a claim involves an open and plausible constitutional question should be no bar to a state secrets ruling. As in Iqbal, a court can simply assume, without deciding, that [plaintiff s Bivens] claim is actionable and determine whether a case must be dismissed even on the legal theory most favorable to the plaintiff. Iqbal, 129 S. Ct. at 1948. 13 1 of Government gamesmanship. If the Government has the option of seeking a state secrets 2 dismissal both before and after a decision on some open question, then it has the ability to moot 3 unfavorable rulings. Consider the strategy in this case. The Government s initial filing before 4 the District Court sought a state secrets dismissal. In its brief for this en banc hearing, however, 5 after it had won a favorable substantive ruling from the District Court and the panel, the 6 Government did not mention any interest in a remand for a state secrets dismissal.15 It seems 7 more than likely that, had the District Court or the panel found against the Government on the 8 Bivens question, the Government would be arguing to us that the opinion below should be 9 vacated pending a state secrets determination. To be sure, a party has no obligation to fire all of 10 its guns at once when a single argument can shoot a claim down. And I do not mean to imply 11 any devious motive on the part of the Government in this case in particular. But there is no 12 reason to structure our law to facilitate such conduct. 13 Third, and most important, a holding that Arar, even if all of his allegations are true, has 14 suffered no remediable constitutional harm legitimates the Government s actions in a way that a 15 state secrets dismissal would not. The conduct that Arar alleges is repugnant, but the majority 16 signals whether it intends to or not that it is not constitutionally repugnant. Indeed, the 17 majority expressly states that the legal significance of the conduct Arar alleges is a matter that 18 should be left entirely to congressional whim. See Maj. Op. at 56-57. While a state secrets 19 dismissal would similarly move the locus of redress to the political branches, it would do so not 20 by holding that the harm done to Arar is of no concern to the judiciary or to the Constitution. It 15 At oral argument, however, the Government did indicate that it could accept such a remand. 14 1 would do so, instead, by acknowledging an institutional limitation due to the presence of state 2 secrets that is independent of the merits of Arar s claim and would, thereby, invite other 3 branches to look into those possible merits. 4 This leads to my final point. Whether extraordinary rendition is constitutionally 5 permissible is a question that seems to divide our country. It seems to me obvious, however, that 6 regardless of the propriety of such renditions, an issue on which I won t hide my strong feelings, 7 mistakes will be made in its operation. And more obvious still is that a civilized polity, when it 8 errs, admits it and seeks to give redress. In some countries, this occurs through a royal 9 commission. In the United States, for better or worse, courts are, almost universally, involved. 10 This being so, and regardless of whether the Constitution itself requires that there be such 11 redress, the object must be to create and use judicial structures that facilitate the giving of 12 compensation, at least to innocent victims, while protecting from disclosure those facts that 13 cannot be revealed without endangering national security. That might well occur here through 14 the application of a sophisticated state secrets doctrine.16 It does not occur when, at the outset, 16 Consider the closing remarks of Judge Ellis in his state secrets dismissal of Khaled ElMasri s similar allegations: It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of ElMasri s complaint. . . . [P]utting aside all the legal issues, if El-Masri s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch. El-Masri v. Tenet, 437 F. Supp. 2d 530, 540-41 (E.D. Va. 2006). 15 1 Arar s claims though assumed true and constitutionally significant are treated as lacking any 2 remedy. And this is just what today s unfortunate holding does. It hampers an admission of 3 error, if error occurred; it decides constitutional questions that should be avoided; it is, I submit, 4 on all counts, utterly wrong. I therefore must regretfully, but emphatically, dissent. 16

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