Lead Opinion
Judge SACK concurs in part and dissents in part in a separate opinion.
On September 26, 2002, plaintiff-appellant Maher Arar, a dual citizen of Syria and Canada, and the subject of a U.S. government “lookout,” J.A. 88, was detained by U.S. authorities at John F. Kennedy International airport in New York City (“JFK Airport”) while en route from Tunisia to Montreal. On October 7, 2002, J. Scott Blackman, then the U.S. Immigration and Naturalization Service (“INS”) Regional Director for the Eastern Region, determined, based on a review of classified and unclassified information, that Arar was a member of A1 Qaeda and therefore inadmissible to the United States. Pursuant to this determination, Blackman signed an order authorizing Arar to be removed to Syria “without further inquiry before an immigration judge, in accordance with [8 U.S.C. § 1225(c)(2)(B) and 8 C.F.R. § 235.8(b)].” Id. at 86.
In February 2004, the Canadian Government convened an official commission (“the Commission”) to look into “the actions of Canadian officials in relation to” Arar’s detention in the United States, his eventual removal to Syria, and his subsequent detention by Syrian authorities. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Analysis and Recommendations 11-12 (2006) (“Canadian Commission, Analysis and Recommendations”) (describing the scope of the inquiry). The Commission determined that Canadian officials had “requested” that American authorities create lookouts for Arar and his wife, had described Arar to American authorities as an “Islamic Extremist individual!] suspected of being linked to the A1 Qaeda terrorist movement,” and had provided American authorities with information derived from their investigations of Arar. Id. at 13. The Commission further determined that “[i]t [wa]s very likely that, in making the decisions to detain and remove Mr. Arar, American authorities relied on information about Mr. Arar provided by the [Royal Canadian Mounted Police].” Id. at 14. Accordingly, the Commission recommended that Canadian authorities consider granting Arar’s request for compensation from the Canadian government. Id. at 369. In January 2007, the Canadian government entered into a settlement agreement with Arar, whereby he received compensation of 11.5 million Canadian dollars (approximately $9.75 million, at the time) in exchange for withdrawing a lawsuit against the Canadian government. See Ian Austen, Canada Will Pay $9.75 Million to Man Sent to Syria and Tortured, N.Y. Times, Jan. 27, 2007, at A5.
On January 22, 2004, shortly before the initiation of the Canadian inquiry, Arar filed this civil action against Blackman, former U.S. Attorney General John Ashcroft, FBI Director Robert Mueller, former Acting Attorney General Larry D. Thompson, former INS Commissioner James W. Ziglar, INS District Director Edward J. McElroy, the Secretary of Homeland Security, the Regional Director
Count one of Arar’s complaint requests relief under the Torture Victim Protection Act, 28 U.S.C. § 1850 note (“TVPA”). Counts two and three request relief under the Fifth Amendment to the U.S. Constitution for Arar’s alleged torture (Count two) and detention (Count three) in Syria. Count four requests relief under the Fifth Amendment to the U.S. Constitution for events alleged to have occurred while Arar was detained in the United States. With respect to relief, Arar seeks a declaratory judgment that defendants’ conduct violated his “constitutional, civil, and international human rights,” as well as compensatory and punitive damages for the statutory and constitutional violations alleged in the complaint. Compl. 24.
In a memorаndum and order dated February 16, 2006, the United States District Court for the Eastern District of New York (David G. Trager, Judge) dismissed Counts one through three of Arar’s suit, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. See Arar v. Ashcroft,
Arar’s suit implicates several questions of first impression for our Court. One threshold question presented on this appeal is whether, as defendants contend, the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., deprived the District Court of subject matter jurisdiction over the claims raised in Counts two and three of Arar’s complaint. The adjudication of this question is, for the reasons set forth below, see infra at 169-73, particularly difficult in light of the record before us. However, because we are compelled to dismiss these claims on the basis of other threshold — that is, non-merits — grounds, we need not determine whether the INA did, in fact, strip the District Court of subject matter jurisdiction to hear Arar’s removal-related claims.
We must therefore determine (1) whether the district court had personal jurisdiction over the individual defendants; (2) whether Arar’s allegation that U.S. officials conspired with Syrian authorities to torture him states a claim against the U.S. officials under the TVPA; (3) whether to create a judicial damages remedy, pursuant to Bivens v. Six Unknown Federal Narcotics Agents,
For the reasons that follow, we conclude that under the precedents of the Supreme Court and our Court: (1) Arar has made a
In the circumstances presented, we need not consider the issues raised by the assertion of the state-sеcrets privilege by the United States — particularly, whether the exclusion of information pursuant to the privilege might result in the dismissal of certain of Arar’s claims.
We do not doubt that if Congress were so inclined, it could exercise its powers under the Constitution to authorize a cause of action for money damages to redress the type of claims asserted by Arar in this action. The fact remains, however, that Congress has not done so. Instead, it has chosen to establish a remedial process that does not include a cause of action for damages against U.S. officials for injuries arising from the exercise of their discretionary authority to remove inadmissible aliens. We are not free to be indifferent to the determinations of Congress, or to ignore the Supreme Court’s instructions to exercise great caution when considering whether to devise new and heretofore unknown, causes of action.
Judge Sack concurs in part and dissents in part. Specifically, Judge Sack agrees with the majority that (1) Arar has made a prima fade showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar’s allegations regarding his removal to Syria do not state a claim against defendants under the TVPA; and (3) Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.
Unlike the majority, however, Judge Sack would accept Arar’s invitation to judicially create a new Bivens remedy and would permit Arar’s claims for monetary damages to go forward based on his view that (1) the context giving rise to Counts two and three of Arar’s complaint — -the detention and deportation of a suspected terrorist pursuant to the discretion conferred on the Attorney General' — raises no “ ‘special factors’ counseling] against the application of Bivens,” see Dissent 212; and (2) the constitutional rights that Arar’s complaint invokes are sufficiently broad and “clear” that Arar may state a Bivens claim based on the conditions of his deten
Such is the freedom enjoyed by the writer of a dissenting opinion. Those charged with rendering decisions that carry the force of law have no such freedom, however. Our task is to deliver a reasoned opinion that conforms to the precedents of the Supreme Court and our Court; we have done so here. We agree, of course, with Judge Sack’s view that threats to the nation’s security do not allow us to jettison principles of “simple justice and fair dealing.” Id. at 216. But these parlous times of national challenge can no more expand the powers of the judiciary than they can contract the rights of individuals. The creation of civil damage claims is quintessentially a legislative function, and the protection of national security and the conduct of foreign affairs are primarily executive. Whatever the emotive force of the dissent’s characterization of the complaint, we cannot disfigure the judicial function to satisfy personal indignation.
I. Background
A. Facts alleged
Arar’s complaint, which is unverified,
On October 1, Arar was presented with a document stating that the INS had determined that he was a member of A1 Qaeda and was therefore inadmissible to the United States; he was then permitted to make a telephone call to his family, who retained a lawyer on his behalf. The complaint further alleges that Arar met his lawyer at the MDC on the evening of October 5; that, after this meeting, on the evening of Sunday, October 6, defendant McElroy left a message notifying Arar’s lawyer that the INS wished to question Arar further; that INS officials then immediately proceeded to question Arar, having falsely told him that his lawyer had chosen not to be present; that, on the following day, INS officials falsely informed Arar’s lawyer that Arar had been transferred from the MDC to an unidentified detention facility in New Jersey when, in fact, Arar was still being held at the MDC; and that on October 8, defendant Thompson signed an order authorizing Arar’s removal.
The complaint further alleges that, although Arar had designated Canada as the country to which he wished to be removed, on October 8, 2002, U.S. officials caused him to be transported from the MDC to New Jersey, where he was flown to Washington D.C.; and from Washington D.C. to Amman, Jordan, where Jordanian authorities turned him over to Syrian military officials. Syrian authorities allegedly kept Arar in custody for approximately twelve months; initially subjected him to “physical and psychological torture” — including regular beatings and threats of severe physical harm; and confined him throughout this time in an underground cell six feet long, seven feet high, and three feet wide. Id. ¶¶ 51-58.
Arar alleges, “[o]n information and belief,” that he was removed to Syria pursuant to the U.S. government’s “extraordinary rendition” policy, with the knowledge or intention that Syrian officials would extract information from him through torture. Id. ¶ 57. He further alleges, “[o]n information and belief,” that defendants provided Syrian authorities with information about him, suggested subjеcts for Syrian authorities to interrogate him about, and received “all information coerced from [him] during [these] interrogations.” Id. ¶¶ 55-56. Thompson, “as Acting Attorney General,” is alleged “[o]n information and belief’ to have signed the order authorizing Arar’s removal to Syria. Id. ¶ 48.
B. Procedural history
On January 24, 2005, the United States formally asserted the state-secrets privilege over information relating to Counts one through three of Arar’s complaint. Specifically, the United States explained:
Litigating [Arar’s claims] would necessitate disclosure of classified information, including: (1) the basis for the decision to exclude [Arar] from [the United States] based on the finding that [he] was a member of ... al Qaeda ...; (2) the basis for the rejection of [Arar’s] designation of Canada as the country to which [he] wished to be removed ...; and (3) the considerations involved in the decision to remove [Arar] to Syria.
J.A. 131-32, 135-36. Shortly thereafter, all defendants moved to dismiss Arar’s claims against them. They contended, among other things, that Counts one
In a memorandum and order filed on February 16, 2006, the District Court, without reaching the issues raised by the assertion of the state-secrets privilege by the United States, dismissed Counts one through three of Arar’s complaint with prejudice and Count four without prejudice. With respect to Count one, the District Court concluded that Arar’s allegations did not state a claim against defendants under the TVPA. See
On October 23, we directed the parties to submit letter briefs on the question of “whether, and to what extent, the assertion of the state-secrets privilege by the United States could foreclose our ability to adjudicate claims arising from Counts one through three of the complaint.” The United States, in its letter brief, maintained that “[t]his Court can and should affirm the [District [CJourt’s judgment without reaching the [issues raised by the United States’s assertion of the] state-secrets privilege,” U.S. Letter Br. 8; but that, “if this Court were to reverse the dismissal of claims 1, 2, or 3, the [District [C]ourt would then be required to determine on remand whether any reinstated claim could proceed notwithstanding the assertion of the state-secrets privilege,” id. (internal quotation marks omitted). Arar, in his letter brief, “agree[d] with the United States that this Court can and should resolvе the pending appeal without considering the state[-]secrets privilege,” Pi’s Letter Br. 1, on the understanding that, if he prevailed in our Court, the District Court could conduct the necessary “case-specific inquiries [regarding the state-secrets privilege] ... on remand,” id. at 5.
II. Discussion
We review de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim. See, e.g., In re NYSE Specialists Securities Litigation,
A. Subject matter jurisdiction
A federal court has subject matter jurisdiction over a cause of action only when it “has authority to adjudicate the cause” pressed in the complaint. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., — U.S. -,
Defendants challenge, on statutory grounds, the District Court’s subject matter jurisdiction over Counts two and three of Arar’s complaint — the Bivens claims arising from his overseas detention and alleged torture.
The Supreme Court has observed that construing a statute to “preclude judicial consideration ... of ... an important question of law ... would raise serious constitutional questions.” INS v. St. Cyr,
(1)
As an initial matter, defendants question whether any federal court has jurisdiction to review these Bivens claims, noting that the INA affords the Attorney General and his delegates discretion to send a removable alien to a country other than the country he has designated, 8 U.S.C. § 1231(b)(2)(C),
Congress has indeed declined to vest the federal courts with jurisdiction to review discretionary decisions of the Attorney General other than the granting or denial of asylum. See 8 U.S.C. § 1252(a)(2)(B)(ii); Camara v. Dep’t of Homeland Sec.,
(2)
As a secondary matter, defendants contend that, even if Arar has raised constitutional claims, such claims were not properly before the District Court; and therefore, are not properly before us on appeal. Specifically, they assert that INA places removal-related claims beyond the reach of a district court’s federal question jurisdiction by creating an alternative— and exclusive — mechanism for resolving those claims.
Federal district courts, like other Article III courts, are “courts of limited jurisdiction ... [that] possess only that power authorized by [the] Constitution and statute.” Exxon Mobil Corp. v. Allapattah Servs.,
Arar contends that he could not have presented his claims through the proee-
There is authority for the proposition that official obstruction similar to that alleged by Arar may (1) excuse a plaintiffs failure to comply with a filing deadline, see, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman,
That we are asked to decide this issue on the basis of allegations set forth in an unverified complaint heightens our hesitation. While a verified complaint made “under oath about a matter within [the plaintiffs] knowledge,” Doral Produce Corp. v. Paul Steinberg Assoc.,
Because we affirm the District Court’s dismissal of Counts two and three of Arar’s complaint on the basis that a judicial damages remedy is not authorized by Bivens and its progeny, infra 180-84, we need not determine whether the INA deprived the District Court of subject matter jurisdiction over Arar’s removal-related Bivens claims.
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.’ ” Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping, — U.S. -,
In Tenet v. Doe,
Whether Arar’s suit was appropriately before the District Court undeniably raises complicated questions of law. In addition, we have concluded that, in light of the Supreme Court’s Bivens jurisprudence, we are required to dismiss Counts two and three of Arar’s complaint as a threshold matter, without considering the merits of the claims raised in those counts. See
B. Personal jurisdiction over Ashcroft, Thompson, and Mueller
The requirement that federal courts have personal jurisdiction over the litigants before them arises from “an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’ ” Burger King Corp. v. Rudzewicz,
Defendants Ashcroft, Thompson, and Mueller contend that Arar has failed to make a sufficient showing of their personal involvement in the tortious conduct he alleges. Accordingly, they urge that the claims brought against them be dismissed for lack of personal jurisdiction.
As we recently observed, personal jurisdiction cannot be predicated solely on a defendant’s supervisory title; “[rjather, a plaintiff must show that a defendant personally took part in the activities giving rise to the action at issue.” Iqbal,
(1) directly participated in the violation [of his constitutional rights], (2) failed to remedy the violation after being informed of it by report or appeal, (3) created a policy or custom under which the violation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were being violated.
Id. at 152; see also id. at 157-58 (requiring a plaintiff who seeks to establish personal involvement by a defendant official “to amplify [his] claim with some factual allegations in those contexts where such
The complaint at issue in Iqbal set forth the “time frame and place” of the acts alleged to have violated the plaintiffs constitutional rights, id. at 166; alleged that these violations arose from “policies dealing with the confinement of those arrested on federal charges in the New York City area and designated ‘of high interest’ in the aftermath of 9/11,” id. at 175-76; and further alleged that various federal officials, including Ashcroft and Mueller, had “condoned” these policies, id. at 165.
We noted that the plaintiffs allegations, “although not entirely conclusory, suggest .that some of the [p]laintiffs claims are based not on facts supporting the claim but, rather, on generalized allegations of supervisory involvement.” Id. at 158. At the same time, we found it
plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies.
Id. at 166. Taking into account the preliminary stage of that litigation and the Supreme Court’s recent clarification of the standard applicable to Rule 12(b)(6) motions to dismiss, see Bell Atlantic Corp. v. Twombly, — U.S. -,
Turning to the related question of whether the district court had personal jurisdiction over the defendants, we concluded in Iqbal that if a plaintiff has pleaded personal involvement sufficient to defeat a qualified immunity defense, that would also “suffice[ ] to establish personal jurisdiction.” Iqbal,
The plausibility standard applicable to a Rule 12(b)(6) motion to dismiss is, of course, distinct from the prima facie showing required to defeat a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. See Ball v. Metallurgie Hoboken-Overpelt, S.A.,
As with the complaint in Iqbal, Arar’s complaint states the time frame and place of the acts alleged to have violated Arar’s rights; alleges that these violations arose from policies providing for the removal of non-U.S. citizens “suspected ...
C. The Torture Victim Protection Act (Count One)
The TVPA, which is appended as a statutory note to the Alien Tort Claims Act, 28 U.S.C. § 1350, creates a cause of action for damages against “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation ... subjects an individual to torture.” Id. § 1350 note (a)(1).
When seeking guidance on what it means to act under “color of foreign law” for the purposes of the TVPA, we generally look to “principles of agency law and to jurisprudence under 42 U.S.C. § 1983.” Kadic v. Karadzic,
Arar contends that our prior holdings contemplate a different standard of liability under § 1983 and, by extension, the TVPA. Specifically, he asserts that “Kletschka [v. Driver,
Arar alleges that defendants removed him to Syria with the knowledge or intention that Syrian authorities would interrogate him under torture. He also alleges that, while he was in Syria, defendants provided Syrian authorities with information about him, suggested subjects for Syrian authorities to interrogate him about, and received “all information coerced from [him] during [these] interrogations.” Compl. ¶ 56. Nowhere, however, does he contend that defendants possessed any power under Syrian law, that their allegedly culpable actions resulted from the exercise of power under Syrian law, or that they would have been unable to undertake these culpable actions had they not possessed such power. Because prior precedents of the Supreme Court and our Court indicate that such allegations are necessary to state a claim under the TVPA, we affirm the District Court’s dismissal of Count one of Arar’s complaint.
D. Money damages under the Fifth Amendment (Counts Two, Three, and Four)
Counts two and three of Arar’s complaint allege that defendants violated Arar’s rights under the substantive due process component of the Fifth Amendment by removing him to Syria with the knowledge or intention that he would be detained and tortured there. Count four of Arar’s complaint alleges that defendants violated Arar’s rights to substantive and procedural due process under the Fifth Amendment by mistreating him while he was detained in the United States. Arar contends that both of these alleged violations are actionable pursuant to Bivens v. Six Unknown Federal Narcotics Agents,
Indeed, the Supreme Court has “responded cautiously to suggestions that Bivens remedies be extended into new contexts.” Schweiker v. Chilicky,
By asking us to devise a new Bivens damages action for alleged violations of the substantive due process component of the Fifth Amendment, Arar effectively invites us to disregard the clear instructions of the Supreme Court by extending Bivens not only to a new context, but to a new context requiring the courts to intrude deeply into the national security policies and foreign relations of the United States.
(1)
In its most recent consideration of Bivens, the Supreme Court set out the following framework for analyzing Bivens claims:
[O]n the assumption that a constitutionally recognized interest is adversely affected by the actions of federal employees, the decision whether to recognize a Bivens remedy may require two steps. [First], 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. [Second, there is the principle that] 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 counseling hesitation before authorizing a new kind of federal litigation.”
Robbins,
In Schweiker v. Chilicky, the Court, relying on the reasoning set forth in Bush and Chappell, declined to create a non-statutory damages remedy against government officials alleged to have wrongfully terminated the plaintiffs’ Social Security benefits. As the Court explained, “making the inevitable compromises required in the design” of a welfare program is the responsibility of Congress rather than the courts,
(2)
To the best of our understanding, Arar seeks a Bivens remedy for at least two analytically distinct categories of claims. The first set of claims, described in Counts two and three of Arar’s complaint, arises from Arar’s allegation that defendants removed him to Syria with the knowledge or intention that he would be detained and tortured there. The second set of claims, described in Count four of the complaint, arises from Arar’s allegations about the way in which defendants treated him while he was detained in the United States.
(a)
Arar’s removal-related claims arise from the alleged violation of his substantive due process interest in not being involuntarily removed to a country where he would be detained and subjected to torture. Step one of the Bivens inquiry reveals that Congress has created alternative processes for protecting this interest. The Foreign Affairs Reform and Restructuring Act of 1988, Pub. L. 105-277, codified at 8 U.S.C. § 1231 note (“FARRA”), states that the United States “shall ... not ... effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture,” id. § 1231 note (a); and provides for an alien to raise claims based on this section “as part of the review of a final order of removal pursuant to ... the Immigration and Nationality Act,” id. § 1231 note (d). Thus, as a general matter, Bivens relief would not be available for removal-related claims such as the one that Arar raises here because the INA’s “alternative, existing” mechanism of review would normally provide “a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages,” Robbins,
Arar maintains, however, that because defendants intentionally prevented him from making use of the INA’s judicial review provisions, the allegations of his complaint compel a different conclusion. Assuming that Arar’s allegations are true, it would be perverse to allow defendants to escape liability by pointing to the existence of the very procedures that they allegedly obstructed and asserting that Arar’s sole
Faced with similar allegations in Bishop v. Tice,
The Eighth Circuit did not conclude, however, that the interference of federal officials permitted the plaintiff to avoid the procedures for appeal set forth by Congress by litigating his underlying claims— wrongful termination and defamation— through a Bivens action in federal district court. Id. The court explained:
A Bivens style remedy for wrongfully dismissed federal employees not only is unnecessary but also would be at odds with the existing discharge appeal procedures to the extent that dismissed employees would be encouraged to bypass these procedures in order to seek direct judicial relief against either the government or individual government officers.
Id. Thus, the plaintiff in Bishop could maintain a Bivens cause of action against the officials for interfering with his due process rights (a claim equivalent to the claim brought by Arar in Count four of his complaint) but not for employment-related claims subject to the relevant procedures for appealing civil service discharges — in essence, claims of an analogous sort to the claims that Arar brings in Counts two and three of his complaint.
We find this reasoning compelling and, like the Eighth Circuit, are reluctant to permit litigants to avoid congressionally mandated remedial schemes on the basis of mere allegations of official interference. Accordingly, the review procedures set forth by the INA provide “a convincing reason,” Robbins,
Step two of our Bivens analysis requires us to determine whether Arar’s suit implicates what the Supreme Court has described as “special factors” that would counsel against creation of a Bivens remedy. “The special factors counseling hesitation in the creation of a new remedy ... d[o] not concern the merits of the particular remedy that [i]s sought. Rather, they relate! ] to the question of who should decide whether such a remedy should be provided ... [and] whether there are reasons for allowing Congress to prescribe the scope of relief that is made available.” Bush,
The Supreme Court has observed on numerous occasions that determinations relating to national security fall within “an area of executive action in which courts have long been hesitant to intrude.” Lincoln v. Vigil,
Assuming that a sufficient record can even be developed in light of the confidential nature of the relevant evidence and the involvement of at least three foreign governments — Syria, Jordan, and Canada — in the salient events alleged in the complaint, the District Court would then be called upon to rule on whether Arar’s removal was proper in light of the record. In so doing, the effective functioning of U.S. foreign policy would be affected, if not undermined. For, to the extent that the fair and impartial adjudication of Arar’s suit requires the federal courts to consider and evaluate the implementation of the foreign and national security policies of the United
On this point, the observations of the Court of Appeals for the District of Columbia Circuit are particularly relevant:
[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.
Sanchez-Espinoza v. Reagan,
In addition, the Supreme Court has observed that, when considering “the practical consequences of making [a] cause [of action] available to litigants in the federal courts,” Sosa v. Alvarez-Machain,
For the reasons stated above, we are not required, at this juncture in the proceedings, to consider the possible consequences of the assertion of the state-secrets privilege by the United States. The assertion of the state-secrets privilege is, however, a matter of record, and a reminder of the undisputed fact that the claims under consideration involve significant national security decisions made in consultation with several foreign powers. Cf. ante at 181 (noting the Canadian government’s efforts to protect evidence relevant to Canаdian “national security and international relations interests”); Canadian Commission, Analysis and Recommendations, ante, at 11 (stating that the governments of the United States, Jordan, and Syria all declined to “give evidence or otherwise participate” in the hearings held by the Commission). In that sense, the government’s assertion of the state-secrets privilege in this litigation constitutes a further special factor counseling us to hesitate before creating a new cause of action or recognizing one in a domain so clearly inhospitable to the fact-finding procedures and methods of adjudication employed by the federal courts.
That this action involves the intersection of removal decisions and national security also weighs against creation of a Bivens remedy. The Supreme Court has recently noted that “[r]emoval decisions, including the selection of a removed alien’s destination, may implicate our relations with foreign powers,” Jama v. Immigration and Customs Enforcement,
In sum, we hold that — barring further guidance from the Supreme Court — a Bivens remedy is unavailable for claims “arising from any action taken or proceeding brought to remove an alien from the United States under” the authority conferred upon the Attorney General and his delegates by the INA. 8 U.S.C. § 1252(b)(9).
(b)
The vitality of Arar’s request for Bivens relief for claims arising from Count four of his complaint (“domestic detention”) turns, not on the existence of any “special factors,” but on the more commonplace fact that Arar’s factual allegations fail to state a claim under the Due Process Clause of the Fifth Amendment. Arar apparently seeks to bring two distinct types of claims based on events alleged to have occurred in the United States. The first is a “due process” claim based on defendants’ alleged obstruction of Arar’s access to counsel and to the courts.
(i)
The complaint alleges that, while Arar was incarcerated at the MDC, defendants ignored his initial requests to see a lawyer, misled him about the availability of his lawyer so that they could question him outside her presence, and misled his lawyer about his whereabouts so that they could prevent her from challenging his removal to Syria. Compl. ¶¶ 37, 44, 46. These allegations, if taken as true, may be
a. Right to Counsel
Arar contends that our prior precedents — specifically, Montilla v. INS,
Section 1362 applies only to “removal proceedings before an immigration judge and ... appeal proceedings before the Attorney General.” Similarly, Montilla and Waldron, recognize the existence of a due process right to counsel in a subset of the
As an unadmitted alien, Arar as a matter of law lacked a physical presence in the United States.
In this case, the applicable statutory provisions specifically authorized the Attorney General to remove Arar “without further inquiry or hearing by an immigration judge” if the Attorney General, after reviewing the evidence establishing his inadmissibility, determined that a hearing “would be prejudicial to the public interest, safety, or security.”
In sum, Arar is unable to point to any legal authority suggesting that, as an unadmitted alien who was excluded pursuant to the procedures set forth in 8 U.S.C. § 1225(c), he possessed any form of entitlement to the assistance of counsel — let alone a constitutional entitlement, the violation of which could constitute a predicate for the Bivens relief he seeks. Accordingly, we conclude that Arar’s allegations about the various ways in which defendants obstructed his access to counsel fail to state a claim -under the Due Process Clause of the Fifth Amendment.
b. Right of Access to the Courts
As the Supreme Court has noted, the ultimate purpose of an access to the courts claim is to obtain “effective vindication for a separate and distinct right to seek judicial relief for some wrong.” Christopher v. Harbury,
Arar’s complaint fails this test insofar as his complaint fails to set forth adequately “the underlying cause of action,” id. at 418,
(ii)
The framework for evaluating a eondi-tions-of-confinement challenge brought by an unadmitted alien constitutes a question of first impression for our Court. Cf. Lynch v. Cannatella,
Arar alleges that, while in the United States, he was subjected to “coercive and involuntary custodial interrogations .... conducted for excessively long periods of time and at odd hours of the day and night” on three occasions over twelve days; deprived of sleep and food on his first day of detention; and, thereafter, was “held in solitary confinement, chained and shackled, [and] subjected to [an] invasive strip-search[ ].” Compl. ¶ 4. These allegations, while describing what might perhaps constitute relatively harsh conditions of detention, do not amount to a claim of gross physical abuse. Cf. Adras,
Arar fares no better under the alternative standard he proposes.
Because it is not implicated by the facts of this case, we leave for another day the question of whether an unadmitted alien challenging his conditions of confinement has rights beyond the right to be free of “gross physical abuse at the hands of state [and] federal officials,” Lynch,
(iii)
Having determined that the allegations set forth in Count four of Arar’s complaint do not state a claim under the Due Process Clause of the Fifth Amendment, we affirm the order dismissing Count four of Arar’s complaint. Contrary to Judge Sack’s suggestion, we do not hold that a Bivens action is unavailable for the claims raised in Count four of Arar’s complaint. See Dissent 201-02. Rather, we decline to reach this question in light of Arar’s failure to allege facts that, if taken as true, establish the violation of any “constitutionally protected interest.” Robbins,
E. Declaratory relief (General Prayer for Relief)
Arar’s prayer for relief includes a request that this Court enter a judgment declaring that the actions defendants took with respect to him “are illegal and violate [his] constitutional, civil, and international
As the Supreme Court has frequently noted, “the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife,
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, [affecting the plaintiff in a personal and individual way] and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—-the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Id. at 560-61,
The conduct of which Arar complains is his alleged detention, by defendants, “for the purpose of removing him to Syria for arbitrary detention and interrogation under torture.” Pi’s Br. 55. The personal injury he alleges is a “bar to reentering the United States,” which harms him “because he has worked for sustained pеriods for U.S. companies in the past, and ... would like to return to the-U.S. for that purpose, as well as to visit relatives and friends.” Pl.’s Br. 54.
In examining Arar’s claim, we conclude that he fails to meet both the “traceability” and “redressability” prongs of the test for constitutional standing set forth by the Supreme Court. The reentry bar from which Arar seeks relief arises as an automatic incident of (1) the finding that Arar was inadmissible to the United States for reasons of national security, see 8 U.S.C. § 1182(a)(3)(B); and (2) the entry of an order of removal pursuant to that finding, see 8 U.S.C. § 1225(c). It bears no relationship with the country of removal that defendants selected for Arar. Any injury associated with the re-entry bar is, therefore, not “fairly traceable” to the conduct of which Arar complains—namely, defendants’ removal of Arar “to Syria for arbitrary detention and interrogation under torture.” Pi’s Br. 55 (emphasis added).
The problem with redressability arises because, as Arar’s submissions to both this Court and the District Court unequivocally establish, Arar does not directly challenge his removal order or defendants’ underlying decision to classify him as inadmissible to the United States. See
Because Arar cannot meet the test for constitutional standing set forth by the Supreme Court, we lack subject matter jurisdiction over his request for a judgment declaring that defendants violated his rights by removing him to Syria for the purpose of arbitrary detention and interrogation under torture.
CONCLUSION
To summarize:
(1) Because we conclude that reasons independent of the state-secrets privilege require dismissal of Arar’s complaint, we do not consider whether, if Arar were able to state a claim for relief under notice pleading rules, the assertion of the state-secrets privilege by the United States would require dismissal of Counts one through three of his complaint.
(2) Because we conclude that Arar’s complaint has not stated a claim upon which relief can be granted, we need not consider defendants’ argument that if any of Arar’s claims were cognizable defendants would be entitled to qualified immunity with respect to those claims.
(3) Arar has satisfied Article III requirements as to the claims raised in Counts two and three of his complaint. However, the adjudication of whether, under the facts of this case, the INA stripped the District Court of subject matter jurisdiction to hear Arar’s removal-related constitutional claims would be particularly difficult in light of the record before us. Accordingly, we exercise our discretion to dismiss Counts two and three on other threshold—that is, non-merits—grounds, as set forth below.
(4) For the reasons stated above, we conclude that Arar has made a prima facie showing sufficient to establish personal jurisdiction over Thompson, Ashcroft, and Mueller at this early stage of the litigation.
As to the causes of action set forth in Arar’s complaint, we conclude that:
(5) Count one of Arar’s complaint must be dismissed because Arar’s allegations about the events surrounding his removal to Syria do not state a claim against defendants under the Torture Victim Protection Act;
(6) Counts two and three of Arar’s complaint, which envisage the judicial creation of a cause of action pursuant to the doctrine of Bivens, must also be dismissed because (a) the remedial scheme established by Congress is sufficient to convince us at step one of our Bivens analysis to refrain from creating a free standing damages remedy for Arar’s removal-related claims. Even giving Arar the benefit of the doubt and assuming that this remedial scheme were insufficient to convince us, (b) “special factors” of the kind identified by the Supreme Court in its Bivens jurisprudence counsel against the judicial creation of a damages remedy for claims arising from Arar’s removal to Syria;
(7) Count four of Arar’s complaint must be dismissed because Arar’s allegations
(8) With respect to Arar’s petition for a declaratory judgment, Arar has not adequately established federal subject matter jurisdiction over his request for a judgment declaring that defendants acted illegally by removing him to Syria so that Syrian authorities could interrogate him under torture.
The judgment of the District Court is AFFIRMED.
Notes
. We do not adopt or otherwise endorse the findings of the Commission. Our reference to the existence of these findings is consistent with our order of October 23, 2007, in which we granted Arar's motion to take judicial notice of the existence of the report and scope of its contents but declined to take judicial notice of the findings set forth therein.
. Arar sues Thompson, Ziglar, Blackman, McElroy and the Doe defendants in their individual capacities. He sues Ashcroft and Mueller in both their individual and official capacities His complaint names the Secretary of Homeland Security and the Regional Director of Immigration and Customs Enforcement in their official capacities only.
. Judge Sack characterizes "[l]he fact that Arar did not choose to verify his complaint ... [as] irrelevant.” Dissent 193 n. 3. As set forth below, this fact determines whether the complaint itself may serve as evidence in support of the allegations made therein — an issue that, in turn, bears on whether the INA’s jurisdiction — stripping provisions deprived the District Court of subject matter jurisdiction over Arar's removal-related claims. See infra 169-72.
. In Zuckerbraun v. General Dynamics Corp.,
. Accordingly, Judge Sack is plainly incorrect to assert that the allegations set forth in Arar's complaint "must be treated as established facts for present purposes.” Dissent 203.
. Defendants do not challenge the District Court's subject matter jurisdiction over Counts two and three on Article III grounds. We agree that the requirements of Article III have been met with regard to these counts.
. Section 1231 provides, in relevant part, that “[t]he Attorney General may disregard” an alien's designation of the country to which he wishes to be removed if, among other things, “the government of the country is not willing to accept the alien into the country,” id. § 1231(b)(2)(C)(iii) or "the Attorney General decides that removing the alien to the country is prejudicial to the United States,” id. § 1231(b)(2)(C)(iv).
. Section 1252(a)(2)(B)(ii) states, in relevant part, that “no court shall have jurisdiction to review ... 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].”
. See Ashcroft Br. 22 ("[Under] the basic judicial review scheme of the INA[,] ... claims arising out of agency actions do not belong in district court.”); Thompson Br. 16-17; Mueller Br. 1 n. 1 (joining in co-defendants’ arguments); Blackman Br. 27 (same); McElroy Br. 25 (same); Ziglar Br. 21 (same).
. The partial dissent concludes that "[b]e-cause Arar is not challenging his removal order,” the jurisdiction-stripping provisions of the INA “do[] not apply.” Dissent 212 n. 31. We disagree. As the dissent itself acknowledges, although Arar does not directly challenge his order of removal, the circumstances of his removal serve as a factual predicate for the claims set forth in counts two and three of Arar's complaint. Id. at 204 (expressing the view that "[t]he assessment of Arar’s alleged complaint must take into account the entire arc of factual allegations that Arar makes — his interception and arrest; his questioning, principally by FBI agents, about his putative ties to terrorists; his detention and mistreatment at JFK Airport in Queens and the MDC in Brooklyn; the deliberate misleading of both his lawyer and the Canadian Consulate; and his transport to Washington, D.C., and forced transfer to Syrian authorities for further detention and questioning under torture”). The INA clearly provides that “[jludicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any ac
. The Supreme Court has recently granted certiorari in Iqbal for the purpose of considering (1) the appropriate pleading standard when a plaintiff seeks to state an individual-capacity claim, pursuant to Bivens, against "a cabinet-level officer or other high-ranking official” and (2) "[w]hether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.” Petition for a Writ of Certiorari, Ashcroft v. Iqbal,
. Several Courts of Appeals have held that neither the TVPA nor the Alien Tort Claims Act establishes the United States’s consent to be sued under the cause of action crеated by the TVPA. See 28 U.S.C. § 1350; see also Goldstar (Panama) S.A. v. United States,
. The District Court also determined that Arar, "as a non-citizen[,] is unable to demonstrate that he has a viable cause of action," 414 F.Supp.2d. at 287, on the understanding that "only U.S. citizens ... are covered by the TVPA,” id. at 263. Because we affirm on other grounds, we need not engage in extensive analysis of this issue. We do, however, observe that past holdings of our Court, as well as those of our sister courts of appeals, strongly suggest that TVPA actions may in fact be brought by non-U.S. citizens. See, e.g., Wiwa v. Royal Dutch Petroleum Co.,
. It is not clear whether Arar's complaint seeks to raise a third potential set of claims, arising from the general allegations that defendants provided Syrian authorities with in
. Rather than address these legal claims as pleaded by Arar, Judge Sack consolidates all of Arar's allegations into an omnibus generalized grievance, unmoored from any recognized legal claim. Judge Sack would take together events occurring within the United States and those occurring overseas; allegations of misconduct attributed to U.S. officials and to foreign agents; and violations that allegedly occurred during the period of time that Arar was held in U.S. custody as well as the time Arar spent in foreign custody. See Dissent 203-04. Judge Sack offers no authority to justify his remarkable treatment of Arar's complaint. It is clear, however, that his approach runs contrary to the Supreme Court's longstanding observations about the constitutional significance of geographic borders. Cf. Zadvydas v. Davis,
. We agree with Judge Sack that the alleged circumstances of Arar's removal may have made it difficult for Arar himself to seek relief through the procedures set forth in the INA. We note, however, that Arar did have an attorney working on his behalf; and that his attorney was in a position to inquire аbout both Arar's whereabouts and the status of the proceedings that the INS had initiated against him.
. That adjudication of Arar's claims would require inquiry into national-security intelligence and diplomatic communications cannot be doubted in light of federal regulations providing that, in determining whether removal to a particular country would be consistent with the obligations imposed by FARRA,
(1) The Secretary of State may forward to the Attorney General assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country.
(2) If the Secretary of State forwards assurances described in paragraph (c)(1) of this section to the Attorney General for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien's removal to that country consistent with Article 3 of the Convention Against Torture....
8 C.F.R. § 208.18(c).
. Our colleague, in his partial dissent, criticizes the majority for taking the state-secrets doctrine into account in the course of its Bivens analysis. See Dissent 212-13. He would rather this suit go forward on the understanding that ''[a]ny legitimate interest that the United States has in shielding national security policy and foreign policy from intrusion by federal courts ... would be protected by the proper invocation of the state-secrets privilege." Id. Once put into effect, however, the state-secrets doctrine would have the undoubted effect of excluding information of central relevance to the claims brought in this complaint. See ante 166-67 (describing the information over which the United States has asserted the state-secrets privilege). The likely result would be foreclosure of our ability to resolve the important legal issues of first impression raised by this case. See id.; see also El-Masri v. United States,
. Judge Sack agrees that adjudication of Arar’s claims requires us to intrude deeply into the national security policies and foreign relations of the United States, see Dissent 212-13, but, nevertheless, would hold that Arar's suit presents no " 'special factors’ counselling] against the application of Bivens,” id. at 212.
. Although Arar describes his second claim as arising under the substantive due process component of the Fifth Amendment, see, e.g., Compl. 23, Plaintiff’s Reply Br. 21, the theory of liability he proffers is more suggestive of a procedural due process claim. See, e.g., Plaintiff’s Reply Br. 29 (asserting that "Arar had a right to the assistance of his attorney before being deemed inadmissible, [and] before being removed to a country where he would be tortured”); id. at 34 (asserting that Arar had "a right to petition the [relevant court] to enjoin his removal to a country that would torture him”). We need not explore this issue, however, because, as set forth below, Arar has not established that defendants' conduct amounted to interference with a constitutional right; and violation of a “constitutionally recognized interest” is a necessary element of a Bivens claim, see, e.g., Robbins,
. 8 C.F.R. § 235.8(a) reads as follows:
When an immigration officer or an immigration judge suspects that an arriving alien appears to be inadmissible [on security and related grounds], the immigration officer or immigration judge shall order the alien removed and report the action promptly to the district director who has administrative jurisdiction over the place where the alien has arrived or where the hearing is being held. The immigration officer shall, if possible, take a brief sworn question-and-answer statement from the alien, and the alien shall be notified by personal service of Form 1-147, Notice of Temporary Inadmissibility, of the action taken and the right to submit a written statement and additional information for consideration by the Attorney General. The district director shall forward the report to the regional director for further action as provided in paragraph (b) of this section.
. 8 U.S.C. § 1362 states that:
In any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.
. 8 U.S.C. § 1225(c) sets out procedures for the removal of aliens who have been deemed inadmissible "on security and related grounds.” Subsection 1225(c)(3) provides that, in the case of an alien who falls within the ambit of section 1225(c), "[t]he alien or the alien’s representative may submit a written statement and additional information for consideration by the Attorney General.”
. 8 U.S.C. § 1225(b)(1)(B) sets forth procedures relating to asylum interviews. Subsection 1225(b)(l)(B)(iv) provides that "[a]n alien who is eligible for [an asylum] interview may consult with a person or persons of the alien's choosing prior to the interview or any review thereof, according to regulations prescribed by the Attorney General. Such consultation shall be at no expense to the Government and shall not unreasonably delay the process.”
. Judge Sack emphatically proclaims that this is not "an immigration case,” see Dissent 202, and contends that the majority is incorrect to "treat[] Arar[] ... as though he were an unadmitted alien,” id. at 205. Specifically, Judge Sack takes the position that, in regarding Arar as an unadmitted alien, the majority incorrectly "treats Arar as though he was an immigrant seeking entry into the United States.” Id. at 206 n. 21; see also id. at 206 (taking the position that Arar cannot properly be treated "for immigration purposes, as though he had been held or turned back at the border” because Arar was not "seeking to immigrate to the United States”) (emphasis omitted).
This represents a mischaracterization of the majority’s approach, as well as the relevant law and regulations. Arar’s intention, or lack thereof, to immigrate to the United States is irrelevant to the question of whether he was an admitted or unadmitted alien. The INA defines "[t]he terms ‘admission’ and ‘admitted’ [to] mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A); see also id. § 1101(a)(4) (“The term ‘application for admission' has reference to the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmi-grant visa.”) (emphasis added). At the time that the events described in this complaint took place, individuals who, like Arar, were eligible to transfer flights through the United States without obtaining a visa first, see 8 C.F.R. § 1212.1(f)(1) (describing the "transit without visa” program) were nevertheless subject to "the full border inspection process upon arrival in the U.S.,” see Press Release, Department of Homeland Security, Homeland Security and Department of State Take Immediate Steps To Make Air Travel Even Safer (Aug. 2, 2003), available at http://www. dhs.gov/xnews/releases/press — release—0227. shtm (last visited June 11, 2008).
Accordingly, it is clear that (1) in subjecting himself to inspection upon arrival at JFK, Arar sought admission to the United States for purposes of the INA; and (2) because the immigration officer refused to authorize Arar’s entry into the United States, Arar was not "admitted” for purposes of the INA. In sum, there is no basis — legal or factual — for the criticisms offered by our colleague in his partial dissent.
. Our colleague, in his partial dissent, also asserts that Arar’s legal status as an unadmit-ted alien is irrelevant to any analysis of Arar’s constitutional claims. This is plainly incorrect. The Supreme Court — both recently and in the past — has looked to the legal status of aliens under immigration law when considering petitions challenging the confinement of these aliens under the Due Process Clause of the Fifth Amendment. See, e.g., Zadvydas,
"The Bill of Rights is a futile authority for the alien seeking admission for the first*187 time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment.”
Id. at 596 n. 5,
. Arar was removed pursuant to 8 U.S.C. § 1182(a)(3) (removability on security and related grounds) under the procedures set forth in 8 U.S.C. § 1225(c); subsection 1225(c)(2)(B) provides that:
If the Attorney General (i) is satisfied on the basis of confidential information that the alien is inadmissible ... and (ii) after consulting with appropriate security agencies of the United States Government, concludes that disclosure of the information would be prejudicial to the public interest, safety, or security, the Attorney General may order the alien removed without further inquiry or hearing by an immigration judge.
. We note that Arar’s allegation that he "was never given a meaningful opportunity to contest [the] finding” that he belonged to Al Qaeda, Compl. ¶ 38, constitutes a "legal conclusion[] couched as [a] factual allegation[],” Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir.2007).
. Judge Sack disagrees with our decision to evaluate Arar’s substantive due process claims under the standard that Arar himself proposes, characterizing the Supreme Court's
Concurrence Opinion
concurring in part and dissenting in part.
I. OVERVIEW
Last year, in Iqbal v. Hasty,
most ... rights ... do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement, the right to be free from the use of excessive force, and the right not to be subjected to ethnic or religious discrimination. The strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.
Id.
The majority fails, in my view, fully to adhere to these principles. It avoids them by mischaracterizing this as an immigration case, when it is in fact about forbidden tactics allegedly employed by United States law enforcement officers in a terrorism inquiry. Although I concur in some parts of the judgment, I respectfully dissent from its ultimate conclusion. I would vacate the judgment of the district court granting the defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and remand for further proceedings
* * *
The plaintiff-appellant, Maher Arar, a resident of Ottawa, Canada, and a dual citizen of Canada and Syria,
When Arar sought to pass through the immigration check-point at JFK Airport in order to catch his connecting flight to Montreal, he was detained by U.S. agents who had been led to believe, on the basis of information provided by Canadian government officials, that Arar had connections with al Qaeda. FBI agents first, and then Immigration and Naturalization Service (“INS”)
Unable to acquire from him the information they sought, the agents attempted to obtain Arar’s consent to be removed to Syria. They expected Syrian officials to continue questioning him, but under conditions of torture and abuse that they, the U.S. government agents, would not themselves employ. When Arar declined to consent, the agents sent him to Syria against his will for the purpose, ultimately fulfilled, of having him held captive and further questioned under torture there.
Arar brought suit in the United States District Court for the Eastern District of New York on both statutory and constitutional grounds. He seeks damages from the federal officials he thinks responsible for his abuse. Thе district court dismissed the action for failure to state a claim upon which relief can be granted. This Court now affirms. I disagree in significant part, and therefore respectfully dissent in significant part.
II. THE FACTS AS ALLEGED IN ARAR’S COMPLAINT
The majority provides a strikingly spare description of the allegations of fact on the basis of which Arar mounts this appeal. The district court’s opinion, see Arar v. Ashcroft,
A. Arar’s Apprehension, Detention, and Forcible Transportation to Syria
Arar, in his thirties, is a native of Syria. He immigrated to Canada with his family when he was a teenager. He is a dual citizen of Syria and Canada. He resides in Ottawa.
On September 26, 2002, Arar arrived from Switzerland at JFK Airport in New York to catch a connecting flight to Montreal. Upon presenting his passport to an immigration inspector, he was identified as “the subject of a ... lookout as being a member of a known terrorist organization.” Complaint (“Cplt.”) Ex. D (Decision of J. Scott Blackman, Regional Director) at 2. He was interrogated by various officials for approximately eight hours.
The following morning, September 27, 2002, starting at approximately 9:00 a.m., two FBI agents interrogated Arar for about five hours, asking him questions about Osama bin Laden, Iraq, and Palestine. Arar alleges that the agents yelled and swore at him throughout the interrogation. They ignored his repeated requests to make a telephone call and see a lawyer. At 2:00 p.m. that day, Arar was taken back to his cell, chained and shackled, and provided a cold McDonald’s meal — his first food in nearly two days. (Id.)
That evening, Arar was given an opportunity to voluntarily return to Syria, but refused, citing a fear of being tortured if returned there and insisting that he be sent to Canada or returned to Switzerland. An immigration officer told Arar that the United States had a “special interest” in his case and then asked him to sign a form, the contents of which he was not allowed to read. That evening, Arar was transferred, in chains and shackles, to the Metropolitan Detention Center (“MDC”) in Brooklyn, New York,
On October 1, 2002,
Upon learning of Arar’s whereabouts, his family contacted the Office for Consular Affairs (“Canadian Consulate”)
On October 5, 2002, Arar had his only meeting with counsel. The following day, he was taken in chains and shackles to a room where approximately seven INS officials questioned him about his reasons for opposing removal to Syria. His attorney was not provided advance notice of the interrogation, and Arar further alleges that U.S. officials misled him into thinking his attorney had chosen not to attend. During the interrogation, Arar continued to express his fear of being tortured if returned to Syria. At the conclusion of the six-hour interrogation, Arar was informed that the officials were discussing his case with “Washington, D.C.” Arar was asked to sign a document that appeared to be a transcript. He refused to sign the form. (Id. at 253-54.)
The following day (October 7, 2002), attorney Oummih received two telephone calls informing her that Arar had been taken for processing to an INS office at Varick Street in Manhattan, that he would eventually be placed in a detention facility in New Jersey, and that she should call back the following morning for Arar’s exact whereabouts. However, Arar alleges that he never left the MDC and that the contents of both of these phone calls to his counsel were false and misleading. (Id. at 254.)
That same day, October 7, 2002, the INS Regional Director, J. Scott Blackman, determined from classified and unclassified information that Arar is “clearly and unequivocally” a member of al Qaeda and, therefore, “clearly and unequivocally inadmissible to the United States” under 8 U.S.C. § 1182(a)(3)(B)(i)(V). See Cplt. Ex. D. at 1, 3, 5. Based on that finding, Black-man concluded “that there are reasonable grounds to believe that [Arar] is a danger to the security of the United States.” Id. at 6 (brackets in original). (Arar,
At approximately 4:00 a.m. on October 8, 2002, Arar learned that, based on classified information, INS regional director Black-man had ordered that Arar be sent to Syria and that his removal there was consistent with Article Three of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). Arar pleaded for reconsideration but was told by INS officials that the agency was not governed by the “Geneva Conventions” and that Arar was barred from reentering the country for a period of five years and would be admissible only with the permission of the Attorney General. (Id.)
Later that day, Arar was taken in chains and shackles to a New Jersey airfield, where he boarded a small jet plane bound for Washington, D.C. From there, he was flown to Amman, Jordan, arriving there on October 9, 2002. He was then handed
Arar’s Final Notice of Inadmissability (“Final Notice”) ordered him removed without further inquiry before an immigration judge. See Cplt. Ex. D. According to the Final Notice: “The Commissioner of the Immigration and Naturalization Service has determined that your removal to Syria would be consistent with [CAT].” Id. It was dated October 8, 2002, and signed by Deputy Attorney General Larry Thompson. After oral argument in the district cоurt on the defendants’ motions to dismiss, in a letter dated August 18, 2005, counsel for Arar clarified that Arar received the Final Notice within hours of boarding the aircraft taking him to Jordan. See Dkt. No. 93. (Arar,
B. Arar’s Detention in Syria
During his ten-month period of detention in Syria, Arar alleges, he was placed in a “grave” cell measuring six feet long, seven feet high, and three feet wide. The cell was located within the Palestine Branch of the Syrian Military Intelligence (“Palestine Branch”). The cell was damp and cold, contained very little light, and was infested with rats, which would enter the cell through a small aperture in the ceiling. Cats would urinate on Arar through the aperture, and sanitary facilities were nonexistent. Arar was allowed to bathe himself in cold water once per week. He was prohibited from exercising and was provided barely edible food. Arar lost forty pounds during his ten-month period of detention in Syria. (Id.)
During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips, and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him on his stomach, his face, and the back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a spine-breaking “chair,” hung upside down in a “tire” for beatings, and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan and had never been involved in terrorist activity. (Id. at 255.)
Arar alleges that his interrogation in Syria was coordinated and planned by U.S. officials, who sent the Syrians a dossier containing specific questions. As evidence of this, Arar notes that the interrogations in the United States and Syria contained identical questions, including a specific question about his relationship with a particular individual wanted for terrorism. In return, the Syrian officials supplied U.S. officials with all information extracted from Arar; plaintiff cites a statement by one Syrian official who has publicly stated that the Syrian government shared information with the United States that it extracted from Arar. See Cplt. Ex. E (January 21, 2004 transcript of CBS’s Sixty Minutes II: “His Year In Hell”). (Arar,
G. Arar’s Contact with the Canadian Government While Detained in Syria
The Canadian Embassy contacted the Syrian government about Arar on October
Canadian officials visited Arar at the Palestine Branch five times during his ten-month detention. Prior to each visit, Arar was warned not to disclose that he was being mistreated. He complied but eventually broke down during the fifth visit, telling the Canadian consular official that he was being tortured and kept in a grave. (Id.)
Five days later, Arar was brought to a Syrian investigation branch, where he was forced to sign a confession stating that he had participated in terrorist training in Afghanistan even though, Arar states, he has never been to Afghanistan or participated in any terrorist activity. Arar was then taken to an overcrowded Syrian prison, where he remained for six weeks. (Id.)
On September 28, 2003, Arar was transferred back to the Palestine Branch, where he was held for one week. During this week, he heard other detainees screaming in pain and begging for their torture to end. (Id.)
On October 5, 2003, Syria, without filing any charges agаinst Arar, released him into the custody of Canadian Embassy officials in Damascus. He was flown to Ottawa the following day and reunited with his family. (Id.)
Arar contends that he is not a member of any terrorist organization, including al Qaeda, and has never knowingly associated himself with terrorists, terrorist organizations or terrorist activity. Arar claims that the individual about whom he was questioned was a casual acquaintance whom Arar had last seen in October 2001. He believes that he was removed to Syria for interrogation under torture because of his casual acquaintances with this individual and others believed to be involved in terrorist activity. But Arar contends “on information and belief’ that there has never been, nor is there now, any reasonable suspicion that he was involved in such activity.
Arar alleges that he continues to suffer adverse effects from his ordeal in Syria. He claims that he has trouble relating to his wife and children, suffers from nightmares, is frequently branded a terrorist, and is having trouble finding employment due to his reputation and inability to travel in the United States. (Id. at 256.)
D. U.S. Policy Related to Interrogation of Detainees by Foreign Governments
The complaint alleges on information and belief that Arar was removed to Syria under a covert U.S. policy of “extraordinary rendition,” according to which individuals are sent to foreign countries to undergo methods of interrogation not permitted in the United States. The “extraordinary rendition” policy involves the removal of “non-U.S. citizens detained in this country and elsewhere and suspected — reasonably or unreasonably — of terrorist activity to countries, including Syria, where interrogations under torture are routine.” Cplt. ¶ 24. Arar alleges on information and belief that the United States sends individuals “to countries like Syria precisely because those countries can and do use methods of interrogation to obtain information from detainees that would not be morally acceptable or legal in the Unit
This “extraordinary rendition” program is not part of any official or declared U.S. public policy; nevertheless, it has received extensive attention in the press, where unnamed U.S. officials and certain foreign officials have admitted to the existence of such a policy. Arar details a number of articles in the mainstream press recounting both the incidents of this particular case and the “extraordinary rendition” program more broadly. These articles are attached as Exhibit C of his complaint. (Id. at 256-57.)
Arar alleges that the defendants directed the interrogations by providing information about Arar to Syrian officials and receiving reports on Arar’s responses. Consequently, the defendants conspired with, and/or aided and abetted, Syrian officials in arbitrarily detaining, interrogating, and torturing Arar. Arar argues in the alternative that, at a minimum, the defendants knew or at least should have known that there was a substantial likelihood that he would be tortured upon his removal to Syria. (Id. at 257.)
E. Syria’s Human Rights Record
Arar’s claim that he faced a likelihood of torture in Syria is supported by U.S. State Department reports on Syria’s human rights practices. See, e.g., Bureau of Democracy, Human Rights, and Labor, United States Department of State, 2004 Country Reports on Human Rights Practices (Released February 28, 2005) (“2004 Report”). According to the State Department, Syria’s “human rights record remained poor, and the Government continued to commit numerous, serious abuses ... includ[ing] the use of torture in detention, which at times resulted in death.” Id. at 1. Although the Syrian constitution officially prohibits such practices, “there was credible evidence that security forces continued to use torture frequently.” Id. at 2. The 2004 Report cites “numerous cases of security forces using torture on prisoners in custody.” Id. Similar references throughout the 2004 Report, as well as State Department reports from prior years, are legion. See, e.g., Cplt. Ex. A (2002 State Department Human Rights Report on Syria). (Arar,
F. The Canadian Government Inquiry
On September 18, 2006, a Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar- (“Arar Commission”), established by the government of Canada to investigate the Arar affair, issued a three-volume report. See Arar Comm’n, Report of the Events Relating to Maher Arar (2006).
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.
“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.”
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 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.
Press Release, Prime Minister Releases Letter of Apology to Maher Arar and His Family and Announces Completion of Mediation Process (Jan. 26, 2007), available at http://pm.gc.ca/eng/media. asp?id=1509 (last visited May 31, 2008); see also Margaret L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition and the Rule of Law, 75 Geo. Wash. L.Rev. 1333, 1339-10 (2007).
III. PROCEDURAL HISTORY
A. The Complaint and the District Court’s Opinion
On January 22, 2004, Arar filed a complaint in the United States District Court for the Eastern District of New York. In addition to its factual allegations, his complaint asserts as “Claims for Relief’:
1. That defendants, in contravention of the Torture Victim Prevention Act of 1991 (“TVPA”), 28 U.S.C. § 1350 (note), acted in concert with Jordanian аnd Syrian officials, and under color of Syrian law, to conspire and/or aid and abet in violating his right to be free from torture (Count 1).
2. That defendants knowingly or recklessly subjected him to torture and coercive interrogation in Syria in violation of his Fifth Amendment right to substantive due process (Count 2).
3. That defendants knowingly or recklessly subjected him to arbitrary de
4. That defendants intentionally or recklessly subjected him to arbitrary detention and coercive and involuntary custodial interrogation in the United States, and interfered with his ability to obtain counsel or petition the courts for redress, in violation of his Fifth Amendment right to substantive due process (Count 4).
See Arar,
The district court denied Arar’s claim for declaratory relief, dismissed Counts 1, 2, and 3 with prejudice, and dismissed Count 4 without prejudice and with leave to replead. Id. at 287-88. The district court decided that: 1) Arar lacks standing to bring a claim for declaratory relief; 2) Arar has no TVPA action since (a) in the court’s view, Congress provided no private right of action under the TVPA for non-citizens such as Arar, and (b) he cannot show that defendants were acting under “color of law, of any foreign nation,” id. at 287; 3) even though the Immigration and Nationality Act (“INA”) does not foreclose jurisdiction over Arar’s substantive due process claims, no cause of action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
Arar declined the district court’s invitation to replead. Instead, he appeals from the judgment of the district court.
B. The Panel’s Majority Opinion
The panel affirms the judgment of the district court as explained by the majority opinion. The majority concludes that (1) the allegations set forth in Arar’s complaint are sufficient, at this early stage of the litigation, to establish personal jurisdiction over defendants not resident in New York, but (2) Arar has not established federal subject-matter jurisdiction over his claim for declaratory relief. Ante at 163-64, 192-93. It concludes further that (3) Arar’s allegations do not state a claim against the defendants for damages under the TVPA, and (4) we cannot provide Arar with a judicially created cause of action for damages under the Fifth Amendment, pursuant to the Bivens doctrine. Id. at 163-64, 192-93. Finally, having decided to dismiss the complaint on these grounds, the majority does not reach the question of whether the INA or the state-secrets privilege foreclose Arar’s pursuit of this litigation. Id. at 191-92.
I agree with the majority’s conclusions as to personal jurisdiction, Arar’s request for a declaratory judgment, and his claim under the TVPA. Unlike the majority, however, I conclude that Arar adequately pleads violations of his constitutional rights and is entitled to proceed with his claims for monetary damages under Bivens. Finally, as Arar and the defendants agree,
IV. ANALYSIS
This is not an immigration case. Contrary to the majority’s analysis, Arar’s allegations do not describe an action arising under or to be decided according to the immigration laws of the United States. Arar did not attempt to enter the United States in any but the most trivial sense; he sought only to transit through JFK Airport in order to travel from one foreign country to another. He was initially interrogated by FBI agents, not INS officials; they sought to learn not about the bona fides of his attempt to “enter” the United States, but about his alleged links to al Qaeda. The INS was not engaged in order to make a determination as to Arar’s immigration status. The agency’s principal involvement came after the FBI failed to obtain desired information from him, in order to facilitate his transfer to Syria so that he might be further held and questioned under torture.
This lawsuit is thus about the propriety and constitutionality of the manner in which United States law enforcement agents sought to obtain from Arar information about terrorism or terrorists which they thought — wrongly as it turned out— that he possessed. The majority goes astray when it accepts the defendants’ attempt to cast it as an immigration matter.
In my view, the issues raised on this appeal, approached in light of the case Arar actually seeks to assert, are relatively straightforward:
1. What is the gravamen of Arar’s complaint?
2. Does it allege a deprivation of his right to substantive due process under the Fifth Amendment to the United States Constitution?
3. If so, is a Bivens action available as a vehicle by which he may seek redress for the violation?
4. And, if so, are the defendants entitled to qualified immunity?
A. The Gravamen of the Complaint
It is well-settled in this Circuit that “we may not affirm the dismissal of [a plaintiffs] complaint because [he has] proceeded under the wrong theory ‘so long as [he has] alleged facts sufficient to support a meritorious legal claim.’ ” Hack v. President & Fellows of Yale College,
The allegations contained in Arar’s complaint include assertions, which must be treated as established facts for present purposes, that: 1) Arar was apprehended by government agents as he sought to change planes at JFK Airport; he was not seeking to enter the United States; 2) his detention, based on false information given by the government of Canada, was for the purpose of obtaining information from him about terrorism and his alleged links with terrorists and terrorist organizations; 3) he was interrogated harshly on that topic — mostly by FBI agents — for many hours over a period of two days; 4) during that period, he was held incommunicado and was mistreated by, among other things, being deprived of food and water for a substantial portion of his time in custody; 5) he was then taken from JFK Airport to the MDC in Brooklyn, where he continued to be held incommunicado and in solitary confinement for another three days; 6) while at the MDC, INS agents sought unsuccessfully to have him agree to be removed to Syria because they and other U.S. government agents intended that he would be questioned there along similar lines, but under torture; 7) thirteen days after Arar had been intercepted and incarcerated at the airport, defendants sent him against his will to Syria. The defendants intended that he be questioned in Syria under torture and while enduring brutal and inhumane conditions of captivity. This was, as alleged, all part of a single course of action, conceived of and executed by the defendants in the United States. Its purpose: to make Arar “talk.”
Not until deep in its opinion, though, does the majority come to address, the heart of the matter: Arar’s treatment by defendants while he was present in the United States. When it finally does, the opinion disposes of the issue by describing only some of the pleaded facts: “[WJhile in the United States,” it says, Arar “was subjected to ‘coercive and involuntary custodial interrogations ... conducted for excessively long periods of time and at odd hours of the day and night’ on three occasions over thirteen days; ‘deprived of sleep and food for extended periods of time’; and, thereafter, was ‘held in solitary confinement, chained and shackled, [and] subjected to [an] invasive strip-search[ ].’ ” Ante at 189. Having thus limited its consideration to only a portion of the acts Arar complains of, the majority blandly concludes: “These allegations, while describing what might perhaps constitute relatively harsh conditions of detention, do not amount to a claim of gross physical abuse” necessary to support a conclusion that his due process rights had been infringed. Id. at 189.
But the majority reaches its conclusion by eliding, among other things, the manner in which Arar was taken into custody and the manner in which defendants dis
It is true that after setting forth his allegations of fact in detail in his complaint, Arar structures his “claims for relief’ to charge knowing or reckless subjection to torture, coercive interrogation, and arbitrary detention in Syria (counts two and three) separately from, among other things, arbitrary detention and coercive and involuntary custodial interrogation in the United States (count four). See Arar,
B. Arar’s Pleading of a Substantive Due Process Violation
Principles of substantive due process apply only to a narrow band of extreme misbehavior by government agents acting under color of law: mistreatment of a person that is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lombardi v. Whitman,
We have held that under the state-created danger doctrine, “[wjhere a government official takes an affirmative act that creates an opportunity for a third party to harm a victim (or increases the risk of such harm), the government official can potentially be liable for damages.” Lombardi,
The majority reaches the wrong conclusion in large measure, I think, by treating Arar’s claims as though he were an unad-mitted alien seeking entry into the United States. The majority asserts that “[a]s an unadmitted alien, Arar as a matter of law lacked a physical presence in the United States.” Ante at 186. And it concludes from this that “the full protections of the due process clause” do not apply to Arar because they “apply only to ‘persons within the United States.’ ” Id. (quoting Zadvydas v. Davis,
But the notion that, while in New York City, Arar was not “physically present” in the United States, is a legal fiction peculiar to immigration law. It is relevant only to the determination of an alien’s immigration
If Arar had been seeking to immigrate to the United States,
* * *
The majority acknowledges that even an unadmitted alien, treated under the immigration laws as though he was not physically present within the United States, has constitutional rights. The majority sees the scope of those rights as not extending “beyond” freedom from “gross physical abuse.” See ante at 190. I think that unduly narrow. It seems to me that Arar was entitled to the bare-minimum protection that substantive due process affords.
In support of applying a “gross physical abuse” standard, the majority cites Lynch v. Cannatella,
Even accepting these cases as setting forth the applicable standard, however, I think Arar adequately alleges a violation of his substantive due process rights. His allegations, properly construed, describe decisions made and actions taken by defendants within the United States, while Arar was in the United States, designed to obtain information from him, even if doing so ultimately required his detention and torture abroad. Once the defendants, having despaired of acquiring the information from Arar here, physically caused him to be placed in the hands of someone, somewhere — anyone, anywhere — for the purpose of having him tortured, it seems to me that they were subjecting him to the most appalling kind of “gross physical abuse.”
It may be worth noting, finally, that in order for one or more of the defendants to be liable for the infringement of Arar’s
C. Availability of a Bivens Action
In Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,
I have no quarrel with much of what I take to be the majority’s view of Bivens jurisprudence. The Supreme Court has indeed been most reluctant to “extend” use of the “Bivens model.” Wilkie v. Robbins, — U.S. -,
The majority is also correct in observing that when determining whether to extend Bivens, i.e., whether “to devise a new Bivens damages action,” Wilkie,
-But not every attempt to employ Bivens to redress asserted constitutional violations requires a separate and independent
In the case before us, Arar seeks to add no new category of defendants. Cf. Malesko,
We must ask, then, whether Arar seeks to extend Bivens liability into a new context and, if so, what that new context is. The task is complicated by the fact that the meaning that the Supreme Court ascribes to the term “new context” is not entirely clear. Compare Malesko,
As far as I can determine, this Circuit has never explicitly decided whether a Bivens action can lie for alleged violations of substantive due process under the Fifth Amendment. But our cases imply that such a remedy is appropriate.
In Iqbal, for example, we considered a Bivens action brought on, inter alia, a Fifth Amendment substantive due process theory. The рlaintiff alleged his physical mistreatment and humiliation, as a Muslim prisoner, by federal prison officials, while he was detained at the MDC. After concluding, on interlocutory appeal, that the defendants were not entitled to qualified immunity, we returned the matter to the district court for further proceedings. We did not so much as hint either that a Bivens remedy was unavailable or that its availability would constitute an unwarranted extension of the Bivens doctrine.
In any event, I see no reason why Bivens should not be available to vindicate Fifth Amendment substantive due process rights. As Judge Posner wrote for the Seventh Circuit with respect to a Bivens action:
[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.
Wilkins v. May,
A federal inmate serving a prison sentence can employ Bivens to seek damages resulting from mistreatment by prison officials. Carlson v. Green,
* * *
Even if “new context” for Bivens purposes does mean a new set of facts, however, and even if Iqbal, despite its factual and legal similarities, does not foreclose the notion that the facts of this case are sufficiently new to present a “new context,” I think the majority’s conclusion is in error.
The majority, applying the first step of the Bivens inquiry, argues that the INA provided an alternative remedial scheme for Arar. Ante at 179-81. The district court correctly noted to the contrary that “Arar alleges that his final order of removal was issued moments before his removal to Syria, which suggests that it may have been unforeseeable or impossible to successfully seek a stay, preserving Arar’s procedural rights under the INA.” Arar,
Arar is not, however, seeking relief for the underlying injury that the INA was designed to redress. As the majority recognizes, ante at 191, he is not challenging his removal order. Nor is he questioning this country’s ability, however it might limit itself under its immigration laws, to remove an alien under those laws to a country of its choosing. He is challenging the constitutionality of his treatment by defendant law-enforcement officers while he was
[T]he INA deals overwhelmingly with the admission, exclusion and removal of aliens — almost all of whom seek to remain within this country until their claims are fairly resolved. That framework does not automatically lead to an adequate and meaningful remedy for the conduct alleged here.
Arar,
The majority also errs, I think, in concluding that “special factors” counsel against the application of Bivens here. Ante at 181-86. The majority dwells at length on the implications of Arar’s Bivens claim for diplomatic relations and foreign policy. See ante at 181-86.
Any legitimate interest that the United States has in shielding national security policy and foreign policy from intrusion by federal courts, however, would be protected by the proper invocation of the state-secrets privilege. The majority says that the “government’s assertion of the state-secrets privilege ... constitutes a ... special factor counseling this Court to hesitate before creating a new [Bivens action].” Ante at 183-85. But as the majority earlier acknowledges, “[o]nce properly invoked, the effect of the [state-secrets] privilege is to exclude [privileged] evidence from the case.” Ante at 167 n. 4 (citing Zuckerbraun v. General Dynamics Corp.,
Moreover, the state-secrets privilege is a narrow device that must be specifically invoked by the United States and established by it on a case-by-case basis. See Zuckerbraun,
The majority reaches its conclusion, moreover, on the basis of the proposition that “[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative ... Departments of the Government,” ante at 183-84 (citing First Nat’l City Bank v. Banco Nacional de Cuba,
The alleged intentional acts which resulted in Arar’s eventual torture and inhumane captivity were taken by fedеral officials while the officials and Arar were within United States borders, and while Arar was in the custody of those federal officials.
D. Qualified Immunity
Having thus found that Arar makes out an actionable claim under Bivens, we must analyze whether the defendants are entitled to qualified immunity. In Iqbal, we set forth the elements of qualified immunity review:
The first step in a qualified immunity inquiry is to determine whether the alleged facts demonstrate that a defendant violated a constitutional right. If the allegations show that a defendant violated a constitutional right, the next step is to determine whether that right was clearly established at the time of the challenged action — that is, whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. A defendant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law.
Iqbal,
We must therefore ask whether these rights were clearly established at the time of their violation. In Iqbal, as already noted above, “[w]e ... reeognize[d] the gravity of the situation that confronted investigative officials of the United States as a consequence of the 9/11 attacks. We also recognize[d] that some forms of governmental action are permitted in emergency situations that would exceed constitutional limits in normal times.” Iqbal,
The question here is whether the treatment that Arar received at the hands of the defendants in order to coerce him to “talk” would be understood by a reasonable officer to be beyond the constitutional pale. We need not recite the facts as alleged yet again in order to conclude that they would have been. “No one doubts that under Supreme Court precedent, interrogation by torture like that alleged by [the plaintiff] shocks the conscience,” Harbury,
I think it would be no less “clear to a reasonable officer” that attempting, however unsuccessfully, to obtain information from Arar under abusive conditions of confinement and interrogation, and then outsourcing his further questioning under torture to the same end, is “unlawful.” The defendants here had “fair warning that their alleged treatment of [Arar] was unconstitutional.” Hope v. Pelzer,
It may seem odd that after all the deliberation that has been expended in deciding this case at the trial and appellate levels, I can conclude that the constitutional violation is clear. But it is the availability of a Bivens action that has been the focus of controversy. Perhaps no federal agent could foretell that he or she would be subject to one. That, though, is not the question. The question is whether the unconstitutional nature of the conduct was clear. I think that it was.
E. Summary
In my view, then:
First, Arar’s factual allegations — beginning with his interception, detention, and FBI interrogation at JFK Airport, and continuing through his forced transportation to Syria in order that he be questioned under torture — must be considered in their entirety and as a whole.
Second, that conduct is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Lombardi,
Third, he may seek to recover the damages allegedly thus incurred in a Bivens action.
Finally, although a reasonable government official may have wondered whether a Bivens action was available as a means for Arar to redress his rights allegedly infringed, insofar as any one of them was responsible for his treatment as a whole, he or she could not have reasonably thought that his or her behavior was constitutionally permissible and is therefore not entitled to qualified immunity, at least at this stage of the proceedings.
The defendants’ actions as alleged in the complaint, considered together, constitute a violation of Arar’s Fifth Amendment right to substantive due process committed by government agents acting in the United States under color of federal authority. Whether Arar can establish, even in the teeth of the state-secrets doctrine, properly applied, the truth of the allegations of his mistreatment (including causation and damages), should be tested in discovery proceedings, at the summary-judgment phase, and perhaps at trial.
V. CONCLUDING OBSERVATION
I have no reason whatever to doubt the seriousness of the challenge that terrorism poses to our safety and well-being. See generally, e.g., Philip Bobbitt, Terror and Consent: The Wars for the Twenty-First Century (2008). During another time of national challenge, however, Justice Jackson, joined by Justice Frankfurter, dissented from the Supreme Court’s decision that the due process rights of an unadmit-ted alien were not violated when he was kept indefinitely on Ellis Island without a hearing. See Shaughnessy v. United States ex rel. Mezei,
The Communist conspiratorial technique of infiltration poses a problem which sorely tempts the Government to resort to confinement of suspects on secret information secretly judged. I have not been one to discount the Communist evil. But my apprehensions about the security of our form of government are about equally aroused by those who refuse to recognize the dangers of Communism and those who will not see danger in anything else.
Shaughnessy,
When it came to protection of the United States from then — perceived threats from abroad, Jackson was no absolutist. See American Communications Ass’n v. Douds,
.The Supreme Court granted certiorari in Iqbal to address (1) the requirements under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
. As a teenager, Arar had emigrated from Syria to Canada where he lived with his parents, and then his wife and children.
. For present purposes, on this appeal from a dismissal of the complaint under Fed.R.Civ.P. 12(b)(6), the facts are the factual allegations as pleaded in the complaint. See, e.g., Iqbal,
. On March 1, 2003, the INS was reconstituted as the Bureau of Immigration and Customs Enforcement and the Bureau of United States Citizenship and Immigration Services, both within the Department of Homeland Security. The actions at issue in this appeal were taken when the agency was still known as the INS.
. Citations to the district court opinion are in parentheses. The footnotes and subheadings are mine.
. Arar was employed by The MathWorks, Inc., a privately held, Massachusetts-based developer and supplier of software for technical computing. See Complaint, ¶ 12; About The MathWorks, http://www.mathworks.com/ company/aboutus/ (last visited May 31, 2008).
. That is, changes of plane.
. According to the complaint, on that day, Arar was questioned first by an FBI agent for five hours, Cplt. ¶ 29, then by an immigration officer for three hours, Cplt. ¶ 31.
. This is the same federal jail in which, less than a year earlier, Javaid Iqbal was allegedly mistreated. Iqbal, a Muslim inmate accused of violations of 18 U.S.C. §§ 371 and 1028 (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 connection with his confinement under harsh conditions ... after separation from the general prison population.” Iqbal,
.Five days after Arar’s arrival in the United States.
. In New York City.
. Footnote in district court opinion, relating to the so-called "LaHood Letter” about a subsequent Canadian inquiry, omitted. See Arar,
. The district court’s description of the facts as alleged in the complaint ends here.
. 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., ante at 162 (employing the report as the source for facts relating to Canadian involvement in the Arar incident).
. See United States v. Reynolds,
. The district court, by contrast, did not treat this as an immigration case. See Arar,
, The Federal Rules of Civil Procedure tell us that "[pleadings must be construed so as
. The Harbury court concluded, nonetheless, that because the murdered alien’s mistreatment occurred entirely abroad, he had not suffered a violation of his Fifth Amendment rights.. See Harbury,
. "[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). "[OJne could get the worst of both worlds: national responsibility for acts as to which the agents we have empowered are unaccountable.” Id. at 387.
. Accordingly, Arar’s claim can be analyzed under either of the "two 'separate and distinct theories of liability’ under the substantive component of the Due Process Clause: ‘special relationship’ liability or 'state-created-danger’ liability.” Benzman v. Whitman, 523 F.3d 119, 127 (2d Cir.2008).
. While the majority opinion from time to time treats Arar as though he was an immigrant seeking entry into the United States, the INA makes a clear distinction between an immigrant seeking entry and an alien seeking only transit through the United States. The INA excludes from the definition of "immigrant” an alien "in immediate and continuous transit through the United States.” 8 U.S.C. § 1101(a)(15)(C). Moreover, at the time Arar flew to JFK Airport, the United States had in place a Transit Without Visa program that allowed an alien who would be required to obtain a visa to enter the United States to transit through a U.S. airport without obtaining a visa. As a citizen of Canada, a visa waiver country, Arar had no need to avail himself of this program. But its existence demonstrates the distinction, recognized by the government, between transit passengers, like Arar, and immigrants seeking entry into the United States. The program was suspended for security reasons on August 2, 2003, long after Arar's attempt to transit through JFK Airport. See Press Release, Department of Homeland Security, Homeland Security and Department of State Take Immediate Steps To Make Air Travel Even Safer (Aug. 2, 2003), available at http://www.dhs. gov/xnews/releases/pressreleases0227.shtm (last visited May 30, 2008).
. Hughes Mearns, Antigonish (1899).
. The Supreme Court’s decisions and our own invoke the entry fiction in cases related to the determination of an alien’s immigration status, and the procedural due process to which an alien is entitled by virtue of that status, not cases adjudicating alleged violations of an alien's substantive due process rights during detention. See, e.g., Leng May Ma v. Barber,
. As the majority notes, Arar asserts that his substantive due process rights should be assessed under standards established for pretrial detainees in Bell v. Wolfish,
. Bivens thus gave persons whose constitutional rights were violated by federal officers a remedy roughly akin to that available under 42 U.S.C. § 1983 to persons aggrieved by the acts of state officers. Unlike a Bivens action, the remedy provided by section 1983 is statutory in nature. But that statute was virtually a dead letter until it was given life by an interpretation of the Supreme Court some ninety years after it was enacted. See Monroe v. Pape,
. Indeed, in those legal contexts where Bivens is well-established, 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,
. 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 recognition of the entire cause of action." Wilkie,
See also Thomas v. Ashcroft,
. 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 Wilkies’ comment as to why those principles must apply at some point is insightful and remains valid.
. While cases permitting pre-trial 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 pre-trial rather than for the purpose of interrogation. See supra [note 24]. Cf. ante at 189-90 n. 29.
. We have not been asked by the parties to examine the possibility that Arar has pleaded 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), I 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 further proceedings on that theory. See section IV.A, supra.
. Arar raises an actionable claim under Bivens for constitutional violations incurred at the hands of federal officials during his detention in the United States. The district court had jurisdiction over Arar's claims pursuant to 28 U.S.C. § 1331, and we have appellate jurisdiction under 28 U.S.C. § 1291. See Correctional Servs. Corp. v. Malesko,
. The majority says that its holding is limited to the conclusion that, "barring further guid-anee from the Supreme Court ... a Bivens remedy is unavailable for claims 'arising from any action taken or proceeding brought to remove an alien from the United States under’ the authority conferred upon the Attorney General and his delegates by the INA.” Ante at 184 (quoting 8 U.S.C. § 1252(b)(9)). But this is not an immigration case and it seems to me that "the authority conferred upon the Attorney General and his delegates by the INA” is therefore not relevant to the Bivens question presented. The majority offers no view as to whether a substantive due process Bivens action is available to detained persons generally. I cannot ultimately tell, then, what the majority’s view would be as to Arar’s ability to avail himself of Bivens if we were to treat this case, as I think we must, as a claim that law enforcement officials abused their authority under color of federal law rather than a case arising under and governed by immigration law.
. Irrespective of what ultimately happened to Arar abroad, the actions that he challenges were perpetrated by U.S. agents entirely within the United States. This case is thus decisively different from United States v. Verdugo-Urquidez,
. The Supreme Court very recently observed:
Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint....
Boumediene v. Bush, -U.S.-,