Arkan Ali v. Donald Rumsfeld

HENDERSON, Circuit Judge, and EDWARDS, Senior Judge. Circuit Opinion for the by Court filed Circuit Judge HENDERSON.

Dissenting opinion filed Senior Judge Circuit EDWARDS. HENDERSON, KAREN LECRAFT Judge: Circuit Four Afghan Iraqi and five cap- citizens subsequently tured and held in Afghani- Iraq, stan and respectively, by the United military Rumsfeld, States sued Donald Secretary former of the United De- States Defense, partment of high-rank- and three ing Army officers1 (collectively, defen- Sanchez, Army Iraq, Lieutenant General Ricardo approximately facilities in from June 2004; commander May of the “Coalition Joint Pap- Task 2003 to and Colonel Thomas July Force-7" June pas, from 2003 to 2004 and Military commander of the “205th Intel- highest-ranking military “the ligence Brigade” official in who in November 2003 as- ¶ 28; Iraq," Compl. Karpinski, Am. Janis Interrogation sumed command of the “Joint Military Debriefing commander of the “800th prison Police Bri- Center” at Abu Ghraib ¶¶ gade,” responsible Baghdad, which was Iraq. for detention near 29-30. adequate food dants) rape, deprived anal Eighth Fifth and with water, to the United States Consti- intentionally exposed to dan- Amendments (ATS), 28 tution, Tort Statute the Alien subjected high temperatures and gerously Fourth and the Third and executions, ... death threats to “mock Conventions, 6 3316 and 6 U.S.T. Geneva deprivation enforced prolonged sleep damages and declara- seeking U.S.T. Iraqi Ali H. is an citizen beatings.” Id. of their treatment as the result tory relief and other who was held Abu Ghraib custody. court The district while U.S. about four Iraq facilities to dismiss defendants’ motion granted the August September weeks from plaintiffs appeal and the all six claims ¶ military alleges Id. 20. He the U.S. and ATS of their constitutional dismissal intentionally delayed and neces- withheld set forth only. For the reasons treatment, intentionally in- sary medical judg- below, the district court’s we affirm by dragging “pain surgery flicted after ment. him from one location to another and forcefully ripping away surgical dress-

I. intentionally him to infection ing,” exposed complaint alleges the fol- The amended by leaving surgical his wound half-band- Ali an Arkan Mohammed lowing facts. aged deprived adequate and him of food at Abu Ghraib who was held Iraqi citizen Najeeb and water. Id. Abbas Ahmed is Iraq in for military facilities and other Iraqi an citizen who was held at Abu July year, approximately from almost one ¶ 17. He in Compl. military Iraq 2004. Am. facilities 2003 to June Ghraib and other un- point to the alleges he was beaten the first from separate periods, for two mutilated; consciousness; and stabbed May July to 2003 and approximately naked, and confined in a stripped hooded July approximately the second from box; subjected phone wooden booth-sized ¶ 21. through December 2003. Id. He deprivation enforced prolonged sleep to gun held a to his alleges U.S. soldiers adequate food and beatings; deprived head, threatened him with death and with and subjected and to mock execution water Bay, imprisonment life at Guantanamo Thahe Mohammed Sa- death threats. Id. him, stepped and sat on sexually assaulted Iraqi citizen was held at Abu bar is an who was in extreme re- body his while he military Iraq facilities in and other Ghraib straints, by chanting him racial humiliated approximately six months from for about videotaping photograph- while and epithets ¶ January 2004. 18. He July 2003 to Id. him, cage him in an outdoor ing held beaten, severely sexually he was alleges exceeding approximately temperatures humiliated, ade- deprived and assaulted Fahrenheit, intentionally deprived degrees water, intentionally ex- quate food and sleep prolonged periods, him for confis- dangerously high temperatures posed pres- high for his blood cated medication subjected to periods and prolonged for intentionally and sure and heart disease and death threats. Id. mock executions he “suf- deprived him of medical care after Iraqi is an citizen Kamal Khalid Sherzad attack and a more than one heart fered Abu and other who was held at Ghraib Id. Meh- possible stroke detention.” Iraq for about two military facilities Afghanistan Ahmad is a citizen of boob July approximately months from military by the at the ¶ who was held 19. He through September 2003. Air facility Bagram detention located severely frequently he was and alleges military and at other beaten,, (Bagram) Force Base sexually and threatened assaulted Afghanistan approximately facilities in plaintiffs originally separate filed jurisdictions five months from June to November actions four different 2003. —the ¶ Connecticut, District of alleges placed Id. 22. He U.S. soldiers Northern Dis- Illinois, trict of the District of South Car- positions him in restraints calculated olina and the Southern District of Texas. him pain, cause intimidated with a vi- By an order dated June him dog, questioned cious while he was Judicial Panel on Multidistrict Litigation naked, family subjected his threatened transferred the cases to the district court him sensory deprivation. Id. Said of the District of Columbia for coordinated Siddiqi Afghanistan Nabi is a citizen of pretrial consolidated proceedings pur- who was also held at facilities in suant to 28 U.S.C. Afghanistan, including Bagram and the an filed amended complaint January facility, Kandahar July detention from They allege the defendants: ¶ August alleges 2003. Id. 23. He he was beaten, placed positions restraints and (1) formulated or implemented policies subjected calculated pain, to cause to “ver- practices that caused the torture nature,” bal abuse of a sexual humiliated cruel, and other inhuman or degrading by naked, being photographed (2) denied wa- Plaintiffs; treatment of and had ef- ter, intentionally deprived of necessary fective command and control of mil- U.S. medication, itary intentionally exposed personnel to in Iraq Afghani- dan- and/or gerous stan and knew temperatures for and had prolonged periods reason to know of torture by and abuse deprived sleep. and of Id. their subor- Mohammed dinates and failed to promptly Karim and effec- Shirullah is a Afghanistan citizen of tively prohibit, prevent punish and un- Bagram who was held at and other mili- lawful conduct. tary Afghanistan facilities in approxi- for mately months, six from December 2003 to ¶ Id. 26. asserted six causes ¶ June 2004. alleges Id. 24. He he was court; of action the district five asserted beaten, placed in restraints positions and (1) claims for of violations the Due Process calculated to pain, interrogated cause and (2) Amendment, Clause of the Fifth naked, photographed subjected while to Fifth Eighth Amendment and Amendment sensory deprivation placed solitary and prohibitions against cruel and unusual confinement for an period, extended de- (3) punishment, the law of prohibi- nations nied medical injuries care for caused (4) torture, tion against the law of nations abuse, intentionally exposed to extreme prohibition cruel, against inhuman or de- temperatures prolonged periods, for (5) grading treatment the Geneva doused with deprived cold water and ¶¶ Conventions. Am. Compl. 235-59. The sleep. Id. Haji Abdul Rahman is a citi- sixth cause of action sought declaratory zen Afghanistan who was held Ba- judgment that defendant Rumsfeld violat- gram and other military facilities in Af- nations, ed “the law of binding treaties and ghanistan approximately months, five ¶¶ the U.S. Constitution.” Id. 260-63. In from December May 2003 to Id. 2006, March the defendants moved to dis- ¶25. He alleges questioned he was and miss the complaint pursuant amended photographed naked, subjected while 12(b)(1) 12(b)(6) Rules of the Federal complete sensory deprivation for twenty- (FRCP) Rules of Civil Procedure for lack hours, four placed in solitary confinement subject jurisdiction matter and failure to deprived sleep. upon state claims which may relief be injured extraterritorially aliens who were granted.2 foreign while detained 2007, 27, the district court March On countries where the United States is en- com- amended plaintiffs’ dismissed Litig., in wars.”4 Detainees gaged 12(b)(1) and to FRCP pursuant plaint F.Supp.2d at 95. The court relied on the 12(b)(6) the defen- ground “and on Supreme holdings Court’s United States immunity.” qualified are entitled dants 763, Eisentrager, v. 339 U.S. Johnson Litig. Detainees Iraq Afghanistan & In re (1950), and S.Ct. 94 L.Ed. 1255 Unit- (Detainees F.Supp.2d Litig.), 479 Verdugo-Urquidez, ed States (D.D.C.2007). the constitution- Regarding L.Ed.2d 222 to Bivens v. brought pursuant al claims Davis, (1990), Zadvydas v. 533 U.S. Agents Federal Named Six Unknown 150 L.Ed.2d 653 Narcotics, 388, 91 Bureau (2001), our in Boumediene holding and on (1971),3 rev’d, 29 L.Ed.2d 619 Bush, (D.C.Cir.2007), 476 F.3d 981 Eighth Fifth and court held the district L.Ed.2d (2008).5 “nonresident The court further held apply do not Amendments Eighth Karpinski al of the Amendment claim on other Additionally, defendants and San- grounds, argument. we do not reach this argued plaintiffs’ claims raise non- chez political questions and defendant justiciable Eisentrager, held 5.In Pappas argued the constitutional imprisoned who were at a German nationals be dismissed because him should army Germany base in and convicted of allegations him to plaintiffs’ failed to connect during war crimes committed World War II and all alleged constitutional violations the corpus right had habeas under the U.S. no for against him should be dismissed claims Verdugo-Urquidez, Constitution. the Court personal jurisdiction. Because it dis- lack of Mexican held that a citizen whose residence grounds, plaintiffs’ cases on other missed the by agents the in Mexico was searched of Unit- arguments court considered these the district Drug ed States Enforcement Administration moot. a claim under the Fourth could not assert Amendment to the U.S. Constitution. The permits plaintiff holding in Bivens a 3. “The explained “rejected it had against bring an action in federal court a are entitled to Fifth Amend- claim that aliens officer/employee the violation of federal sovereign rights territory of 389, ment outside the rights. U.S. at 91 his constitutional 403 holdings the United States” and described A Bivens suit is the federal coun- S.Ct. 1999. 210-12, Doe, 202, Plyler v. 457 U.S. such as brought pursuant terpart to 42 of a claim 2382, (1982) (illegal 72 102 S.Ct. L.Ed.2d 786 against § or local offi- U.S.C. state protected by residing in aliens United States cer/employee the claim- for the violation of Clause), Kwong Equal Hai Protection Myers, rights.” constitutional Rasul v. ant's 590, 596, — Colding, vacated, v. 344 U.S. 73 S.Ct. 644, (D.C.Cir.), Chew n. 2 512 F.3d 472, (1953) (resident “per- 97 L.Ed. 576 alien -, 763, L.Ed.2d 753 U.S. 129 S.Ct. Amendment), meaning son” within of Fifth (2008). Wixon, 135, 148, Bridges v. 326 U.S. 1443, (1945) (resident plain- held that the 89 L.Ed. 2103 4. The district court also rights), First Amendment Eighth Amendment claim failed "not aliens have tiffs' States, only plaintiffs precluded are from Russian Volunteer Fleet United because the 489, 229, ..., 481, U.S. 51 S.Ct. 75 L.Ed. 473 invoking the Constitution but also be- (1931) doing only (foreign corporation business in Eighth applies cause the Amendment just compensation plaintiffs America entitled to and the “were convicted criminals” property by F.Supp.2d Amendment for taken a crime.” 479 Fifth never convicted of States, Wong Wing Wright, government), and v. United (citing Ingraham v. at 103 228, 238, 651, 664, 41 L.Ed. 140 16 S.Ct. 97 S.Ct. 51 L.Ed.2d 711 (1896) (resident (1977)). Fifth and plaintiffs aliens entitled to appeal contend On rights), Yick cognizable. Amendment Wo Eighth claim is Sixth their Amendment Hopkins, 118 dismiss- Because we affirm the district court’s if claim plaintiffs clearly even could constitu- were not established the time protections, special tional factors would alleged injurious conduct occurred.” inferring remedy. a Bivens against counsel Id. at 108. Litig., F.Supp.2d

Detainees 103-07. As to the Geneva Conventions claims affairs, military It “that explained foreign alleged and the' violations of the law of relations, security and national are consti- ATS,6 brought pursuant nations to the tutionally committed to” the President and district court held that “the defendants are Congress and concluded “that autho- immunity pursuant entitled to absolute rizing monetary damages remedies Act,” the Westfall according to which Act engaged officials in an active war (FTCA), the Federal Tort Claims Act ... would obstruct the Armed Forces’ §§ seq., provides et ability decisively to act and without hesi- remedy exclusive for a tort committed liberty tation in of our defense and nation- federal within employee official or al interests.” Id. at 105. Finally, the scope employment.7 of his qualified immunity F.Supp.2d district court held that protected the at 114. The court defendants from the Bivens concluded the Westfall because, tort, even if the Act pos- includes an intentional id. at 110— 11, and, (See- sess constitutional rights, rights “those relying on the Restatement (1886) (Fourteenth L.Ed. 220 Suspension Amendment Clause of the U.S. Constitu- aliens), protects "establish[ing] 2229; resident tion. 553 U.S. see U.S. Const, protec- that aliens receive constitutional I, Clause). (Suspension art. cl. 2 tions when have come within the territo- p. distinguish As set forth we infra ry developed of the United States and sub- Court's Boumediene decision. country.” stantial connections with this Zadvy- U.S. at 110 S.Ct. 1056. In provides: 6. The ATS "The district courts shall das, the Court reaffirmed the constitutional original jurisdiction have civil action persons present distinction between in the only, an alien for a tort committed in persons United States and outside the United violation treaty of the law of nations or States. The Court held that a federal statute United States.” 28 U.S.C. 1350. authorizing the Government to hold an alien deported beyond who has been ordered the Employees Liability The Federal Reform 90-day period” "removal within which the Compensation and Tort Act of Pub. L. deported alien permits is to be the Govern- No. (amending 102 Stat. 4563 ment to hold the alien for a “reasonable 2671, 2674, 2679), §§ commonly U.S.C. time.” 533 U.S. at re- 121 S.Ct. 2491. The Act, explained provides Court ferred to as the perti- statute would Westfall "raise seri- part: ous constitutional concerns” if it allowed nent indefinitely deportable Government to hold Upon Attorney certification General States, id., present alien in the United but employee the defendant acting was reiterated protec- “that certain constitutional scope within employ- of his office or persons tions available to inside the United ment at the time of the incident out of States are unavailable to aliens outside of our arose, any which the claim civil action or borders,” geographic relying Eisentrager on proceeding upon commenced such claim in Verdugo-Urquidez. 533 U.S. at a United States district court shall be Boumediene, S.Ct. 2491. In we held that both deemed an action the United States Supreme precedent Court and our own provisions under the of this title and all "hold[] that the Constitution does not confer thereto, references and the United States rights property presence on aliens without or party shall be substituted as the defendant. within the United States.” 476 F.3d at 991. 2679(d)(1). § The The Westfall Act reversed our decision in held, time, remedy Boumediene and makes the FTCA for the first "exclusive of alien Cuba, Bay, proceeding detainees held at other civil money Guantanamo action or corpus right 2679(b)(1). can damages.” assert a habeas under Id. a notice of timely filed ond) (1958),8 plaintiffs determined Agency May challenging the appeal scope within the acted the defendants of their constitu- “detaining and court’s dismissal district employment because their and its dismissal of “inciden- and ATS claims enemy aliens” was tional interrogating declaratory They relief. do claim for military obligations.” their overall tal to their their Geneva the dismissal of appeal court further ruled 114. The Id. at claims. nor the Geneva Conventions the ATS claims neither one of the claims fell within Conventions Act. II. exceptions to Westfall

statutory the court sub- Accordingly, at 111-13. Id. grant court’s reviewing the district the defen- States as the United stituted dismiss, as true the accept we a motion and Geneva Conventions the ATS dant on allegations plaintiffs’ com- factual claims those and then dismissed legal the district court’s plaint and review failed to exhaust plaintiffs because Daniels v. Union conclusions de novo. required as remedies their administrative (D.C.Cir. Co., 936, 940 Pac. R.R. 530 F.3d at 114-15. Id. by the FTCA. 2008) (“We legal the district court’s review accept ... [and] conclusions de novo rejected plaintiffs’ court The district allege[ plaintiffs] ] true the facts that [the itself Convention IV allegation that Geneva reviewing the dis- complaint in [their] action and dis- private cause of provides a the defendants’ disposition trict court’s violations of the claims for missed their (alterations in original) motion to dismiss.” a claim for for failure to state Convention omitted)). (internal marks quotation We their Regarding at 115-17. relief. constitu- plaintiffs’ seriatim the address relief, held declaratory the court claim for claims, and their their ATS claims tional standing lacked because plaintiffs declaratory relief. claim for longer their no held named defendants Afghanistan Iraq positions official Bivens Claims A. could not show and therefore two Bivens plaintiff Each asserts threat and imminent “that face real claims, tortured namely, the defendants again in the future” being wronged process right him in violation of his due Additional- Id. at 118. those defendants. and the de the Fifth Amendment having plaintiffs, held the ly, the court un cruel and fendants’ conduct constituted individual ca- their sued the defendants Eighth in violation of declaratory punishment usual not seek pacities only, could ¶¶ Compl. Amendment.10 235-46. Am. at 118-19. relief.9 Id. apparently the fact (Second) overlooked Agency § 228 9. The court 8.The Restatement in plaintiffs sued defendant Rumsfeld that the (1958) provides part: in capacities. individual and official both his (1) scope the a servant is within Conduct of ¶ Compl. Am. 27. if, employment but if: (a) employed to kind he is it is of the alleges defen- also the 10. The second claim perform; and unusual constituted cruel dants’ conduct (b) substantially within the au- it occurs Fifth Amend- violation of the punishment limits; unclear, however, space and thorized time how this claim It is ment. actuated, by (c) part, at least in claim that the plaintiffs’ it is the first differs from master, by Amendment the Fifth purpose to serve defendants violated Although an individual (d) intentionally engaging used in torture. if force is another, challenge must yet of a crime use of force not convicted servant confine- of his treatment or conditions his unexpectable the master. not 770 (Rasul I), Myers alleged time of Our Rasul v. their detention and torture. decisions — vacated, (D.C.Cir.), 644 issued,

512 F.3d U.S. Id. at After I 665-67. Rasul 763, -, S.Ct. 172 129 L.Ed.2d 753 Supreme reversed our Boumediene (Rasul (2008), II), Myers Rasul v. 563 decision the Suspension and held Clause (D.C.Cir.) curiam), (per cert. F.3d 527 de extends to nonresident aliens detained at —nied, -, 1013, U.S. 130 S.Ct. 175 Bush, Bay. v. Guantanamo Boumediene (2009), our govern resolution L.Ed.2d 618 723, 2229, 553 U.S. 128 S.Ct. 171 L.Ed.2d of these claims. (2008). The Court then vacated our I, four British citizens sued Rasul judgment in Rasul I and remanded for Secretary high-rank- Rumsfeld and several light further consideration its inter- damages ing arising officials vening decision Boumediene. Rasul v. alleged illegal from their detention and — -, 763, Myers, 129 S.Ct. Bay, torture at Guantanamo Cuba between (2008). L.Ed.2d 753 I, 2002 and Rasul 512 F.3d at 649- complaint 50. Their included claims under remand, On we reaffirmed our Amendments, Eighth the Fifth and holding protected that the defendants were ATS, the Geneva Conventions and the Re- by qualified immunity explained it was Act, ligious Freedom Restoration not necessary determine whether the §§ 2000bb seq. et We affirmed the Fifth Eighth applied Amendments district court’s dismissal constitu- plaintiffs.11 Qualified immunity shields claims, tional explaining that “Guantanamo government official from liability civil if lack rights detainees constitutional be- his clearly conduct “does violate estab are cause aliens property without statutory lished rights or constitutional presence in the United States.” 512 F.3d person which a reasonable would have Bush, (citing at 663 v. Boumediene Fitzgerald, known.” Harlow v. 457 U.S. (D.C.Cir.2007), rev’d, F.3d 800, 818, 73 L.Ed.2d 396 S.Ct. L.Ed.2d 41 (1982). if Even Rasul could (2008)). Furthermore, we concluded the rights assert Eighth the Fifth and protected by qualified defendants were im- Amendments, we explained, because, Boumediene munity assuming even arguendo did not alter the possessed conclusion those rights detainees under the Amendments, rights Eighth clearly Fifth and were not established at those rights not clearly were established at the time of the defendants’ challenged conduct. ment under the Due intervening Supreme Process Clause of the Another Court deci- Fifth or Fourteenth Amendments rather than Callahan, v. sion—Pearson 555 U.S. Amendment, Eighth City see Revere v. 808, 815-16, 818, 172 L.Ed.2d 565 Hosp., Mass. Gen. (2009) that a court can decide consti- —held (1983); Iqbal L.Ed.2d 605 right clearly tutional was not established (2d Cir.2007),

Hasty, 490 F.3d rev’d deciding right without first whether the exists. ground Iqbal, on other sub nom. Ashcroft Pearson, Before courts followed the Saucier 173 L.Ed.2d procedure, which had under first to de- (2009) (complaint plead failed suffi alleged termine whether the made facts out a relief); cient facts state claim Estate of statutory right violation of a constitutional or Fromm, Cole Pardue v. F.3d 259 n. deciding right clearly before whether the was denied, (7th Cir.1996), cert. 519 U.S. alleged established at the time of the viola- (1997), 117 S.Ct. L.Ed.2d he 815-16; Katz, tion. Id. at see also Saucier v. separate create does two claims not 121 S.Ct. alleging Process either Due Clause both punishment. (2001). torture cruel and and unusual L.Ed.2d 272 right applies. any held constitutional has plain- The II, at 529-30. 563 F.3d Rasul II, Supreme the in explained we Rasul plaintiffs, Rasul As as did the argue, tiffs (that is, confined “explicitly have known in Boumediene Court should the defendants known) holding ‘only’ have to the would ex- person its constitutional a reasonable the Con- Suspension the misconduct violated reach of alleged traterritorial their long been settled any it “has intention to and “disclaimed stitution because Clause” the torture forbids the extra- existing governing that the Constitution law disturb 23; Br. see Appellants’ any pro- detainee.”12 reach of constitutional territorial proper I, at 666. 512 F.3d Rasul visions, Suspension than Clause.” other the the Con- however, is whether inquiry, Boumediene, 553 (quoting F.3d at 529 but “whether torture prohibits 2229). stitution inAs Rasul 128 S.Ct. U.S. the press under plaintiffs the rights the II, therefore, pro- defendants here are the were clear- Eighth and Amendments plaintiffs’ the constitutional from Fifth tected alleged the at the time of ly established immunity.13 by qualified (em- I, at 666 512 F.3d Rastil violations.” Supreme the plaintiffs contend Supreme the Court original). in As phasis adopted in Boumediene flexible Court Boumediene, “never it had in clear made open possibility the approach leaves by our Gov- detained noncitizens held that application of constitu- the extraterritorial another territory which over ernment Suspension other than the provisions tional sovereignty jure de country maintains in Al claim our decision and Clause under our Constitution.” any rights have (D.C.Cir. Gates, 605 F.3d 84 Maqaleh 2229; also see 2010), accurately interprets Boumediene. (“At II, the time of at 530 563 F.3d Rasul Bagram the three detainees Because alien detention, neither Su- plaintiffs’] [the relief, sought corpus habeas Maqaleh in Al had ever held this court nor preme Court applicabili- the decision addresses foreign soil and captured on that aliens Suspension Clause. We nonethe- ty of the territory beyond sovereign detained Supreme Court’s noted that less rights any constitutional had —under “explored decision more Boumediene Amendment, Amend- Eighth Fifth extension of constitu- question of general otherwise.”). clear- it was not As ment, or constitu- and concomitant rights tional Fifth and 2004 that ly established power governmental tional restrictions de- to aliens apply Amendments Eighth extraterritorially and with re- exercised Bay the Su- at Guantanamo tained —where Id. at 93. The to noncitizens.” spect Suspension has since held preme Court factors court discussed three clearly plainly was not applies Clause —it determining identified as relevant the Fifth and in 2004 that established “(1) Clause: Suspension the reach to aliens held apply Amendments Eighth of the detainee citizenship and status no court Afghanistan Iraq —where recognize plaintiffs this ask "military Even the several also cite 12. The holdings con to the [our] "abandon us to laws, training regulations, materials” argument Appellants' "That trary." Br. 23. contend, which, they “re- prohibiting torture course, are, misplaced we bound because prohibition the constitutional inforce contrary precedent absent circuit to follow put commanders and serve torture or the authority an banc court Su from en actions the sorts of personnel on notice of Carson, States preme Court.” United Appellants’ prohibits.” the Constitution curiam), (D.C.Cir.2006) (per F.3d 384 n. 43 Br. 24-25. denied, rt. ce (2007). L.Ed.2d 146 war, through arguments the theater of adequacy process issuing five and the made; ‘impractical status determination was writ would or anoma- which that the be (2) where apprehen weight.” the nature of the sites would have more lous’ (8) place; took sion then detention at 128 S.Ct. 2229. We concluded inherent in resolv practical the obstacles Eisentrager “that under both and Boume- writ.” ing prisoner’s diene, entitlement to the the corpus] the does not [habeas writ Boumediene, at (quoting at Id. to Bagram extend the confinement in an 2229). factor The first territory theater of war a under active extending habeas weighed favor of the jure sovereign- the de nor de neither facto because, corpus right to the three like the ty the States United and within the detainees, they were aliens Boumediene territory jure sovereign.” another de at military. 95- held American Id. Thus, Maqaleh, Al 605 F.3d at 98. even court, According to the the three re Boumediene, plaintiffs’ view of than process ceived less due the Boume Suspen- we have nonetheless held that the The diene detainees.14 Id. second and apply Bagram sion Clause does not factors, however, weighed against third They detainees. offer no reason —and we Bay— Distinguishing them. Guantanamo why plaintiffs’ none see ourselves— where, Court, according Supreme to the Eighth Fifth and Amendment claims sovereignty, the United States has defacto any stronger Suspen- would be than the Boumediene, at S.Ct. sion Clause detain- Bagram 2229—the court concluded “the same sim ees. ply respect Bagram.” is not true with plaintiffs urge at Maqaleh,

Al 605 F.3d 97. The United us follow now-optional procedure States has not demonstrated an Saucier intent to decide, first, sovereignty they over “with Bagram “alleged exercise whether have Moreover, permanence.” “Bagram, all,” deprivation right Id. of a constitutional at Pearson, (internal of Afghanistan, indeed entire nation quota omitted), a theater of may remains war.” Id. The same tion marks although we ulti of Iraq. Supreme mately is true ex any Court such right conclude was not that, pressly clearly stated in if Boumediene established at the time of de Bay an Guantanamo “were located in ac- alleged fendants’ misconduct.15 The Sau- Maqaleh 14. The Al detainees' meaningful status was re- them so that lacked a opportunity to rebut the evidence. Id. Enemy viewed the Unlawful Combatant (UECRB), Review Board not the Combatant recognize approach 15. We Saucier is (CSRT) Review Status Tribunal that reviewed helps "promote[] "often beneficial” the Boumediene detainees' status. F.3d development precedent.” of constitutional court, According "proceedings at 96. to the Pearson, 818; 129 S.Ct. at see Camreta also protec- before the UECRB afford[ed] even less Greene, -, -U.S. rights tion to the of detainees in the determi- (2011). L.Ed.2d As the nation of status was the than case with the explained, some cases "there would Maqaleh Id. CSRT.” The Al had no detainees judicial little if be conservation of re representation while the Boumediene detain- by deciding only sources to be had” "personal representative[s].” ees had Al Pearson, "clearly prong. established” Gates, Maqaleh F.Supp.2d instance, 818. For it sometimes can rev’d, (D.D.C.2009), (D.C.Cir. 605 F.3d 84 right be "difficult to decide whether a 2010). Additionally, Maqaleh the Al detain- clearly deciding precisely established without permitted speak ees were not in their de- right happens what constitutional to be.” could omitted). fense but submit state- (quotation written marks and citation cases, ment and were explanation right not Informed of the evidence other however, II had not Rasul we an alternative appropriate is procedure, cier plain “it is that a cases. Often apart qualified immunity in most from basis— —on clearly not right is estab- constitutional plaintiffs’ to which dismiss Bivens whether in fact far from obvious lished but claims-—-that “federal courts cannot fashion ' case, In such a right.” a Id. is such there ‘special a Bivens action when factors’ coun of the constitutional deciding existence against doing sel so.” 563 at 532 n. 5. F.3d essentially is “an academic right vel non “danger obstructing We determined id, exercise,” “runs counter to the that security policy U.S. national is one such older, judicial pass counsel not to on wiser allowing factor” that counsels constitutionality ... unless questions proceed.16 Bivens claim to Id. The same unavoidable,” adjudication id. at such applies rationale here.17 The district court (internal quotation in (ellipsis original) correctly allowing concluded that a Bivens omitted), and and citations results marks mil brought against action to be American expenditure scarce in the “substantial itary in engaged officials war would dis questions difficult judicial resources on ability and rupt hinder the of our armed outcome have no effect on the of the decisively forces “to act hesi without case,” approach at 818. The Saucier id. in liberty tation of our and nation defense party from preclude also an affected can Litig., al interests.” Detainees of a obtaining appellate review decision F.Supp.2d The Supreme at 105. its future significantly could affect long ago Eisentrag as recognized much Id. at 820. If a court decides actions. er: plaintiffs the defendant violated to right quali- but is entitled constitutional hamper Such trials would the war effort immunity right not fied because was enemy. aid and comfort to the bring time, the clearly “pre- established at the They diminish the of our prestige would presumably defendant would not vailing” commanders, not with but enemies appeal to the adverse constitution- be able wavering with neutrals. It would be Hawk, Kalka v. holding. (citing al difficult to devise more effective fetter- (D.C.Cir.2000) (“Normally, n. 9 F.3d allow ing a field commander than to may not from favorable party appeal very enemies he is to reduce ordered — Greene, judgment.”)); Camreta cf. to call him to account submission -, 2020, 2028-33, 179 his efforts own civil courts divert his (2011) (official prevails who L.Ed.2d 1118 and attention from the offensive immunity may court qualified on district home. legal abroad to the defensive at review, appellate not be able obtain unlikely Nor is it that the result of such notwithstanding availability of certiorari enemy litigiousness would be a conflict qualified on prevails to official who review judicial military opinion between II, in Rasul immunity appeal). As we highly comforting enemies “[cjonsiderations judicial re- believe United States. exercising option favor the Pearson straint 94 L.Ed. regard plaintiffs’ Bivens [the] with (1950). Sanchez-Espinoza And 563 F.3d at 530. claims.” F.3d at clearly "may ap- Court's Boumediene decision.” 563 make it was established n. parent allegations] do not make out 5. [the at all.” Id. a constitutional violation urge Again, "abandon” us to holding point well. our in Rasul II on this We concluded that this alternative ratio- Appellants’ Br. 35. "also nale was unaffected (D.C.Cir.1985), 770 F.2d violations of the law of Reagan, nations. addi- special “the our noted that needs of court claims, to tion their the Bivens Rasul stay in our foreign affairs must hand plaintiffs three for “brought claims viola- mili- damage against of remedies creation of pursuant tions the law of nations to the tary foreign policy alleged- officials for and based alleged [ATS] defendants’ foreign ly unconstitutional treatment of of ‘prolonged arbitrary infliction deten- subjects causing injury abroad.” In San- tion,’ ‘torture,’ ‘cruel, and inhuman or de- citizens, Nicaraguan none chez-Espinoza, ”18 I, grading treatment.’ Rasul 512 F.3d States, of in the whom resided United (citations omitted). at 654 We determined alia, sued, President, the CIA inter alleged the defendants’ conduct— tortious director, the then-current as well as for- detention interrogation “the of sus- mer secretaries of state and the then-sec- pected enemy “inciden- combatants” —was alleging retary of defense had “au- legitimate tal to employment [their] financed, trained, thorized, directed duties” was of type because it “the conduct provided knowingly substantial assistance” employed engage defendants were to Nicaraguan in engaged rebels who in.” Id. at 658-59. Because the defen- execution, murder, “summary abduction, dants had acted within the of scope their torture, rape, wounding, and the destruc- employment, tion we held private property public facili- the ATS claims ties.” Id. at 205 (quoting Compl. Am. properly restyled “were against as claims ¶¶ 31, 81). danger We concluded that “the the United States that are governed by the foreign using citizens’ courts upheld FTCA” and their for dismissal fail- pol- [such situation] to obstruct the foreign ure exhaust administrative remedies.19 icy government is sufficiently our acute (internal quotation Id. at 660-61 marks Congress judg- that we must leave to omitted). and brackets plaintiffs The here damage ment remedy whether should bring (and, similar claims similar II, exist.” Id. at 209. As Rasul seewe Rumsfeld, in the case of defendant identi- distinguishing no basis this from case cal) And defendants. like the Rasul de- Sanchez-Espinoza. Accordingly, even if who, held, fendants acting we were within quali- defendants were shielded scope employment, their the defen- immunity fied plaintiffs and the could engaged dants here —who in the same con- claim protections of the Fifth and acting duct—were within scope their Eighth Amendments, we would decline to employment as well. See id. at 654-61. sanction a Bivens cause of action because plaintiffs The argue the Westfall Act does special against doing factors counsel so. “egregious not cover torts jus that violate B. The ATS Claims cogens norms” grants because the Act im- “ munity for a governs ‘negligent wrongful Rasul II or act also our resolu ” plaintiffs’ tion of the ATS alleging only. Appellants’ omission’ (quot- Br. 46 II, Specifically, plaintiffs alleged 18. the Rasul In Rasul we stated that we could "see beaten, nothing "they painful were in the shackled in Court's [Boumediene ] stress possibly disposi- decision that could positions, affect our dogs, subjected threatened plaintiffs' of” alleging tion ATS claims temperatures deprived extreme ade- violations of the law of nations and "therefore food, sanitation, quate sleep, medical care judgment” respect reinstated] our with I, and communication.” Rasul 512 F.3d at por- those F.3d at The claims. 563 528-29. claims, tion of Rasul I treats the ATS therefore, controlling remains law. 2679(b)(1)). argument one plaintiffs raise ing U.S.C. and should not I or II. The “wrongful” ambiguous addressed Rasul West- argue legisla- Act’s interpreted light fall Act does not immunize a federal em be contend, which, the history plaintiffs “brought tive from a a ployee/official suit for was intended to “wrongful” not reveals violation of a statute of the United States violate jus torts that encompass egregious an against under which such action individ explicitly rejected this norms. We cogens 28 ual is otherwise authorized.” U.S.C. I, where, while ac- argument in Rasul 2679(b)(2)(B). § The plaintiffs claim the plaintiffs “plainly had al- knowledging the ATS, brought they which their under conduct,” we criminal’ ex- leged ‘seriously nations, claims violations of the law of for allegations “the of serious plained that permits a that a is United States statute not alter our conclusion that criminality do against of a private cause action federal incidental to conduct was the defendants’ Therefore, plaintiffs the employee/official. at 659-60. conduct.” 512 F.3d authorized contend, an excep their claims fall within correctly Accordingly, the district court tion to the Westfall Act and should be applied and held that the Westfall Act proceed the permitted against individual States as correctly substituted the United defendants, not the United States. FTCA.20 The the defendant under the I rejected The court in Rasul district plaintiffs to the file an “required FTCA the argument, explaining this that ATS21 the De- claim with either administrative jurisdictional strictly “is statute” that (DoD) appro- Defense or the partment of rights nor does it impose “does not confer military department bringing before priate violated, that, obligations duties if or would 14.1). § (citing Id. at 661 28 C.F.R. suit.” statutory trigger excep- the Westfall Act’s adminis- view the failure to exhaust “[W]e 22 (D.D.C. F.Supp.2d tion.” 414 37-38 jurisdictional.” as Id. trative remedies 2006). has Supreme Court also re- Rasul, ... is devoid of As the “record jected argument. a similar United plaintiffs filed an ad- any suggestion” the Smith, 499 111 States v. U.S. military or a claim with DoD ministrative (1991), L.Ed.2d 113 134 former court thus department. district the Army Army and his wife sued sergeant the ATS properly dismissed baby Italy, 12(b)(1) delivered their doctor who subject lack matter FRCP for negligence caused alleging the doctor’s jurisdiction. challenge precedent circuit absent con- plaintiffs also the district bound to follow 20.The holding that the defendants acted trary authority court’s court the from an en banc scope employment. They of their Court.”). within Supreme law, that, contend a matter of torture “[a]s employment scope can never fall within court called it the Alien Tort The district Secretary high- Defense U.S. (ATCA), F.Supp.2d at Claims Act ranking Army Appel- commanders.” another name for the ATS. Estate of recognize They lants’ Br. 56. nonetheless Auth., Amergi Amergi rel. v. Palestinian ex ruling mandated our district court's ("The (11th Cir.2010) n. 5 F.3d [only] precedent here and “maintain the issue Tort also known as the Alien Claims [ATS] is preserve They "respectfully it.” Id. sub- (ATA).” (ATCA), and the Tort Act Act Alien ... II mit that this Court’s decisions Rasul omitted)). (internal quotation marks Hayden, Harbury 522 F.3d 413 [v. (D.C.Cir.2008),] are well-founded and appeal reach be- 22. We did not the issue Id. at 57. We are should be reconsidered.” appeal part cause did not precedent. United of course bound circuit I, Carson, See Rasul district court’s decision. States v. 455 F.3d n. curiam) (“[W]e (D.C.Cir.2006) (per F.3d at 661 n. are ... damage baby. The United importantly, brain More sought to substitute itself jurisdic States clarified “the has ATS is Act, pursuant to the Gonzalez defendant creating tional statute no new causes of “provide[d] which Alvarez-Machain, action.” Sosa v. personnel medical suits 159 L.Ed.2d scope committed within the torts (2004); (“All id. at Government is to be employment, their Members of agree the Court 1350 is as the suit is substituted defendant jurisdictional.”). Thus, as with the proceed against the Government under Act, nothing in “imposes Gonzalez the ATS Smith, the U.S. at FTCA.” any obligations upon” or duties of care the the plaintiffs’ ap- 1180. While S.Ct. Smith, 174, defendants. peal pending, Congress the enacted was 1180; accord Bancoult McNa Act. the Westfall The United States then mara, (D.D.C.2004) 370 F.Supp.2d Act, the relied on Westfall rather than the (“The plain language of ... [the ATS] does Act, Gonzalez to substitute itself the rights impose not confer nor does it obli Supreme defendant and the Court accord- that, violated, gations or if duties would ingly applica- considered the Act’s Westfall trigger statutory the [Westfall Act’s viola time, bility. appeals At the two courts of exception.”), ajfd grounds, tion] on other protected had held the Gonzalez Act (D.C.Cir.2006) 445 F.3d 427 (dismissing military “only personnel medical who com- complaint political question ground), on within mit torts the United States and not denied, cert. 549 U.S. committing those torts abroad.” Id. at (2007); 166 L.Ed.2d 892 Schneider Kis plaintiffs 111 S.Ct. 1180. The Smith (D.D.C. singer, 310 F.Supp.2d 266-67 argued claim pre- their was therefore not 2004) (dismissing complaint political on cluded the Gonzalez Act and that their question ground holding, but alternatively, statutory claim fell within exception the that ATS “cannot be purposes violated for the Act Westfall because the Gonzalez Act of statutory [Westfall Act’s violation exception]”), their “authorized” claim. The Supreme grounds, on other 412 F.3d aff 'd Court rejected plaintiffs’ argument. the It (D.C.Cir.2005) (affirming dismissal as explained that it not “need decide whether denied, political question), cert. brought tort claim foreign under state or 164 L.Ed.2d 515 law be could deemed authorized the (2006). plaintiffs The ignore ask us to the Act” Gonzalez the plaintiffs’ because con- Supreme Court’s Sosa decision.23 We can tention “that claim for in- malpractice ignore more Supreme precedent no Court volves ‘a violation of the Aet[ ]is Gonzalez than could the district court. Accordingly, merit. Nothing without the Gonzalez we hold that plaintiffs’ the claim under the Act imposes any obligations or duties of alleges a ATS violation the law of na care upon physicians. Conse- tions, ATS, not of the and therefore quently, physician does allegedly committing not violate a malpractice under statute the foreign state or law United States does not ‘violate’the within the meaning Gonzalez Act.” Id. at section 2679(b)(2)(B).24 111 S.Ct. 1180. plaintiffs statutory The claim Congress the violation what meant to include in exception language statutory exception." Appellants' of Westfall is am- Act violation biguous legisla- and we Br. 53. must therefore look to history tive meaning. determine its Be- enacted, cause issued Although Sosa after ATS was Court in Sosa stated contend, light jurisdictional "does it not shed "the ATS is a statute creat- Notwithstanding Sosa’s plain jurisdiction, power not mold substantive statement noted, Id. statute,” Moreover, the Court jurisdictional law.” “the ATS is a “in 724,124 of the ATS 9 of the Judi- positioning the dissent Act, exclusively ciary law of a statute otherwise incorporates the ATS believes jurisdiction, law of concerned with federal-court a violation of the nations and that support strictly jurisdiction- its is itself for thus a violation nations constitutes Id. The therefore Act’s al nature.”25 satisfy Westfall ATS sufficient ... exception. See Dissent- “unsurprising it that an authori- statutory found violation origins has ty on the historical the ATS Op. respondent at 789-93. ing not argument clearly does written ‘section Sosa advanced a similar —“that action,’ and that simply statutory as a create a cause ATS was intended authority contrary suggestion ‘simply frivo- jurisdictional grant, but as ” Casto, (quoting cause action for lous.’ William R. creation of a new Protective law.” 542 Federal Courts’ Jurisdiction international torts violation of Torts Committed in the 713, 124 over Violation at 2739. The- S.Ct. of Nations, L. the ATS Law 18 Conn. Rev. rejected reading [of Court “that of (1986)); Casto, supra, see also that, en- at 479 implausible,” explaining “[a]s as] (“The 1789, jurisdictional, gave purely the district is and [ATS] acted the ATS Congress undoubtedly certain causes of ac- the first understood ‘cognizance’ courts of case.”). tion, bespoke the of this to be the grant and term a action,” largely in shadow of the ing no new causes of it nonetheless mained for much 726, prior "the have two Id. at S.Ct. statute was intended to centuries.” concluded emphasized it law” 2739. The a decision practical effect the moment became Court "that private right of explained jurisdictional to create action is one better that the statute's legislative judgment great major- having left to in the grant "is best been enacted on read 727, ity of cases.” Id. at 124 S.Ct. 2739 understanding common law Malesko, (citing Corp. Corr. Servs. provide mod- would a cause of action for the 151 L.Ed.2d 456 of est number international law violations Sandoval, (2001); Alexander v. potential personal liability with a for at the 286-87, S.Ct. 149 L.Ed.2d ATS enacted in [the 1789].” time was reason, (2001)). For found the Court 2739. rec- U.S. at The Court private ... a itself "reluctant to infer cause of only ognized of three violations—violation supply does action where the statute not one conducts, infringement rights of the of safe Additionally, potential expressly.” Id. "the piracy ambassadors and assumed that —but foreign implications of the for relations nothing precluded "categorically federal recognizing cause of [a United States of new recognizing a courts from claim under the under should make courts ATS] action law of nations as an element of common particularly wary impinging discre- on the Id. at law.” 724-25. Legislative and tion of the Executive Branch- At the same time the Court held a new managing foreign es in affairs.” Id. recognized of action be cause could however, ATS, respect, easily ATS distin- cautioned do- 25. In this is it courts so, 301(a) noting argue guishable ing from section of the Labor "series reasons (LMRA), considering Management Act judicial when of 1947 caution Relations 185(a). Dissenting Op. might implement at 29 U.S.C. kinds 301(a) part jurisdiction by the Id. at 791. Section of an extensive conferred [ATS].” and, statutory although speaks it The Court that its enactment noted legisla- only jurisdiction, provisions "general practice to federal other has been look for exercising legal duties guidance au- of the LMRAestablish substantive tive before innovative See, §§ rights. e.g., 29 186-87. thority law” and stated it U.S.C. over substantive ATS, contrast, grant of aggres- is a stand-alone be remarkable to take a more The "would jurisdiction jurisdiction only. exercising that re- sive role The citations to dissent’s Sosa—and to Declaratory Judgment C. The Claim Pencu-Irala, (2d Filartiga v. 630 F.2d 876 plaintiffs also seek a dec Cir.1980) juris- that the ATS is a —confirm laration that alleged acts in their dictional statute and that any claim complaint amended are unlawful and vio brought alleges under the ATS a violation Constitution, late the U.S. military rules law, law nations the common guidelines and the law of nations. ¶ of the ATS itself. See Dissenting Op. 264(a). Compl. Am. As supra, discussed 779-81, 784-85, however, have not alleged a

cognizable cause of action and therefore have upon no basis which to dissent seek declara contends that Su tory relief. Nor preme does the precedent Declaratory “that establishing Judgment (DJA), Act law of domestic the United States rec provide a cause of action. It is a “well- ognizes nations,” Sosa, the law of established rule that the Declaratory cases), (citing Judgment- Act ‘is not an independent “indicates that section 1350 itself effective jurisdiction.’ source federal Rather, ly incorporates nations,” the law of Dis ‘the availability of [declaratory] relief pre senting Op. at 789. The Sosa Court’s supposes the existence of a judicially reme statement “that the domestic law of the ” right.’ Servs., diable C & E Inc. Wash United recognizes States the law of na ington v. Auth., D.C. Water & Sewer tions,” however, is best understood to refer (D.C.Cir.2002) F.3d 201 (quoting to the common law States, of the United Schilling v. Rogers, 666, 677, 363 U.S. 80 not statutory its law. The most recent 1288, 4 L.Ed.2d (1960)); see precedent the Court cited support its also Shelly Oil Co. v. Phillips Petroleum statement confirms this understanding. Co., 667, 671, 876, 70 S.Ct. Sosa, U.S. 124 S.Ct. 2739 (1950) (“The L.Ed. 1194 operation of the (“ ‘[International disputes implicating ... Declaratory Judgment Act procedural is our relations with foreign nations’ are one only. Congress enlarged range of the ‘narrow areas’ which com ‘federal remedies available in the federal courts mon law’ continues to exist.” (ellipsis but (in did not jurisdiction.” extend their original) added) (emphasis (quoting Tex. quotation ternal marks and citation omit Indus., Materials, Inc. v. Inc., Radcliff ted)). 68 L.Ed.2d For the reasons, foregoing we affirm the (1981))); see also Dissenting Op. at 788 district judgment court’s of dismissal. (quoting Fletcher, William A. Internation So ordered. al Rights Human Courts, in American (2007)).

Va. L. Rev. EDWARDS, Senior Judge, Circuit dissenting: Sosa unequivocally holds that the ATS is jurisdictional Sosa, only. statute The plaintiff-appellants in this case al- (“All U.S. at 124 S.Ct. 2739 Members lege that subjected were to acts of agree § only is torture and abuse being while detained at

jurisdictional.”). A claim brought under U.S. military facilities in Afghanistan and the ATS therefore does not allege viola “a Iraq. Each appellant was eventually re- tion of a statute of the United States” without leased being charged awith crime. satisfying the Westfall Act exception. 28 Appellants suit, filed alleging civil claims 2679(b)(2)(B). under Bivens v. Six Unknown Named much Narcotics, in Sosa is The Court’s decision Bureau Federal Agents than the Government would 29 L.Ed.2d 619 more nuanced (“section (1971), surely Tort Statute does not fore- the Men have it. Md Sosa “ATS”), as well seeking 28 U.S.C. re- 1350” or close actions under ATS Following declaratory relief. Rather, for contrary as claims dress for official torture. the District Court hearing, motions claims, Sosa makes to the Government’s separate motions appellees’ granted following points: critical Afghanistan Iraq See In re dismiss. agree that M Members of the Court (‘Detainees Litig.”), 479 Litig. Detainees jurisdictional. also § 1350 is We (D.D.C.2007). Mthough I do F.Supp.2d 85 his agree, [in or at least Justice Scalia judgment the court’s disagree with dispute, does not concurrence] claims and Bivens dismissing appellants’ originally understood to jurisdiction was relief, declaratory I dissent their claims a small number be available to enforce appellants’ disposition court’s from the that a federal of international norms under section 1350. recognize as within properly court could district says “[t]he Section fur- common law enforceable without jurisdiction of original have shall courts statutory authority. ther only, for a tort action an alien any civil the law of na- in violation of committed ... de sees Whereas Justice Scalia view, Court’s my tions.” close the velopments as sufficient to Alvarez-Machain, 542 decision Sosa judicial independent rec door to further 159 L.Ed.2d 718 ognition of actionable international (2004), may pur- appellants confirms that norms, persuade us other considerations action under section 1350 a cause of sue be exer judicial power should perpetrated torture for deliberate understanding that cised on the authority, and Westfall color of official subject vigilant ajar door is still It ironic these claims. Act does not bar open to a narrow doorkeeping, and thus that, majority’s approach, Unit- under today. norms class international foreign torture a who ed States officials Tompkins, 304 Co. v. [Railroad Erie country are not sub- foreign in a national L.Ed. 1188 brought under suit in an action ject (1938),] judicial not in terms bar did who foreign section whereas officials rules, no substantive recognition of new country foreign in a official torture commit circumstances, and matter what under section 1350. may be sued understanding has identified

post-Erie in which federal courts limited enclaves interpretation The Government’s in a law may derive some substantive Sosa, by majority, is is endorsed which way. law common incomplete. The Government strikingly in from Sosa which passage first cites a it would be unreasonable We think jurisdic- a says that the ATS “is the Court Congress would that the First assume creating no new causes tional statute all courts to lose expected federal have 47 (quoting Br. at Appellees’ action.” inter- recognize enforceable capacity to 2739). Sosa, at the com- simply national norms because that, this, concludes the Government From metaphysical some might mon law lose “[ujnder Sosa, the ATS is indisputable it is to modern realism. on the road cachet capable of is not a federal statute to have shared Congresses Later seem at 48. being violated.” Id. by today already recognized we international position our view. The take law.” Sosa, 887; by some federal at has been assumed Id. see also U.S. at ever since the years, (stating courts for 24 Sec is S.Ct. 2739 “the Court Filartiga v. Pena- ond Circuit decided by bound nations which a part law of is (2d Irala, Cir.1980), land”) 630 F.2d (quoting the law of the The Ner- purposes point of to practical eide, (9 Cranch) 388, 423, 3 L.Ed. day’s has been focused disagreement (1815) (Marshall, C.J.)); Tel-Oren between exchange Judge since the Ed Libyan Arab Republic, F.2d Bork in Judge wards and Tel-Oren v. (D.C.Cir.1984) (Edwards, J., concurring) Libyan 726 F.2d 774 Republic, Arab (“[Sjection provides right 1350 itself (D.C.Cir.1984). however, Congress, has alleged sue for violations of the law disagreement not no expressed (footnote omitted)). nations.” proper with our view of the exercise of Filartiga holding is firm its judicial but has power, responded to few, any, “there are if issues interna- by its most notable instance enacting today opinion tional law which seems legislation judicial supplementing the de be so united as the limitations on a state’s detail. termination some power persons to torture held in its custo- (citation 542 U.S. at 124 S.Ct. 2739 dy.” at recently 881. This court ech- omitted) added). (emphasis As this court Saleh, noting oed this view in that “torture recently noted in v. Titan Corp., Saleh recognized committed state (D.C.Cir.2009), F.3d 1 it is clear that Sosa violation of a settled international norm.” “opened the door a crack to the possible 580 F.3d at 15. The Government not does recognition of new causes of action under suggest otherwise. So it is clear beyond (such as, perhaps, international law tor- debate that official torture violates the law ture) firmly if grounded were on an of nations. international consensus.” Id. The fact that the in this case It is particularly noteworthy that alleged have that United States officials opinion says: Court’s Sosa committed against torture does counsel position “The today we take has been as a cause of action the ATS. The years, sumed some courts for 24 federal statute does not exclude claims ever since the Circuit Second decided Fi state actors. there And is no evidence Pena-Irala, (2d lartiga v. 630 F.2d 876 congressional recent statutes address- Cir.1980).” treatment, ing torture and detainee re- 2739. Filartiga held that spectively, to preempt intended suits un- perpetrated delibei-ate torture under fact, der section 1350. In there is evidence authority color of official violates univer- contrary. to the sally accepted of norms the international

law of rights, regardless human of Only the question one remains: the Does Thus, nationality of parties. the when- Employees Liability Federal Reform and ever an alleged torturer (“Westfall found and Compensation Tort Act of 1988 process by served with an alien within Act”), 100-694, Pub. L. No. 102 Stat. borders, § our provides ju- 1350 federal appellants’ bar claims from going ATS for- risdiction. ward? After careful consideration of Sosa construing and the case law the 630 F.2d at Westfall Filartiga 878. The court con- Act, I am that strued section “not as convinced the Westfall Act granting 1350 new lights aliens, simply does not bar claims. An opening appellants’ but action federal adjudication rights cognizable courts for of the that is under section 1350 falls

781 Background exception for “vi- Westfall Act’s within I. of a of United States statute olation[s] Consistently Has A. United States against an indi- such actionfs] under which Repeatedly Condemned the Use authorized,” 28 otherwise [are]

vidual of Torture 2679(b)(2)(B). The § Government U.S.C. long illegal” “Torture has been in our 1350 cannot fall within argues section (2005) Cong. 30,756 nation. Rec. merely a the ATS is exception this because Graham). (statement of Sen. Domestical- jurisdictional Appellees’ Br. at statute. torture, ly, along punishments with other view, my requires opposite Sosa cruelty,” has “unnecessary pro- of been un- arising Appellants’ conclusion: as a of Eighth scribed violation fall within section 1350must the statu- der century. Amendment since the nineteenth Act, exception to the Westfall because tory Gamble, 97, 102, 429 U.S. Estelle incorpo- is a statute that the ATS federal (1976) (citing 50 L.Ed.2d 251 international norms and rates substantive Utah, Wilkerson recovery for thereby directly authorizes (1879)). Congress pro- L.Ed. 345 has also color perpetrated torture deliberate abroad, making torture that occurs hibited authority. of official punishable by crime such conduct federal up to years imprisonment, fines and ignores The Government the fact imprisonment even life or death the congressional unlike section in a fatality. should the torture result jurisdiction, “was of federal grant question § Congress 2340A. further creat- congressional on the understand enacted against any a cause of ed action individual jurisdiction courts exercise ing that would ap- commits torture “under actual or who entertaining common law claims some law, parent authority, or color Sosa, from the law nations.” derived nation,” victim’s foreign regardless 731 n. nationality geographic or the location of 1331, which requires section “Unlike alleged Torture Protec- acts. Victim the laws of the an action ‘arise under’ (“TVPA”), L. Act Pub. tion No. States, not re section 1350 does United (1992) (codified 2(a), 106 Stat. ‘arise the law quire that action under’ (note)). 28 U.S.C. nations, but mandates a ‘violation law of in order to create nations’ conflict, a the context of Within Tel-Oren, of action.” 726 F.2d cause declared, has in both the Detain- Congress (Edwards, J., concurring). (“DTA”) Section and the ee Treatment Act of incorporates (“2006 the law of nations —in Military Act of Commissions cluding prohibition against deliberate MCA”), custody individual in the “[n]o official perpetrated torture under color of control of the United physical or under authority Government, can be “violated” within national- regardless of States —that 2679(b)(2)(B) location, meaning subject of the section shall ity physical be inhuman, cruel, to Act. I therefore or exception degrading the Westfall or treatment that, 109-148, us, DTA, L. the record before Pub. No. punishment,” conclude on A, X, 1003(a), § jurisdiction appel has over div. title Stat. District Court (codified 2000dd(a)); § complaint alleging official torture U.S.C. lants’ MCA, 6(c)(1), 109-366, § a of Pub. L. No. appellants have viable cause and (codified at 42 U.S.C. Consequently, action. District Court 120 Stat. 2000dd-0(l)), appellants’ prohibited § it has further when and erred dismissed technique interroga- any “treatment or of arising under section 1350. in by not authorized and listed The suspension. tion United States is com- Army States Field Manual on In- United imple- mitted to the full and effective DTA, Interrogation.” L. telligence Pub. of obligations mentation its under the A, X, 1002(a), § div. title No. throughout territory. Convention its (codified at 2739 at 10 Stat. Report Initial of the United States (mak- (note)). See also 18 U.S.C. America to the United Nations Committee against crimes or a ing war committed ¶ 6, Against Torture U.N. Doc. CAT/C/28/ of the Forces or a member U.S. Armed (Feb. 2000). Add.5 fíne, punishable by imprison- national ment, death, regardless of where and/or Specifically with regard to de- occurred). the crime tainees, Bush, President George in a W. Executive Branch similar- has been in affirmed statement issued in ly prohibition resolute its torture. America stands and not to- will States signed United the Convention lerate torture.... American personnel Cruel, Against Torture and Other Inhu- required comply are all with Degrading man or Treatment or Punish- laws, including the United States Consti- (“Convention Torture”) Against ment in tution, statutes, including Federal stat- In the U.S. Department torture, prohibiting treaty utes and our State, input with from Department with obligations respect to the treatment Justice and other federal departments and of all wrong detainees.... Torture is no agencies, compliance submitted its initial occurs, matter where it and the United report the United Nations Committee will States fight continue to lead Torture, Against which stated: it everywhere. eliminate prohibited by throughout Torture is law the United States. It is categorically on Statement United Nations International denounced as a policy matter of and as Day Support Torture, of Victims of Every a tool state authority. act Weekly Comp. 1167-68 Pres. Doc. constituting torture the [United (June 2004). President Bar- [Against Nations] Convention Torture] Obama, order, ack through an executive constitutes criminal offence under the instructed in all cir- “[detainees] shall law United No States. official of be humanely cumstances treated shall Government, federal, local, or state subjected not be to violence to life and or military, civilian is authorized to person kinds, (including murder mu- of all commit or to anyone instruct else to tilation, treatment, torture), cruel nor any commit torture. may Nor official (includ- outrages upon personal dignity or any condone tolerate torture form. treatment).” ing humiliating degrading exceptional may No circumstances be 13,491, Exec. No. Order 3 C.F.R. justification invoked as a of torture. (2009). (“Effective also id. at 200-01 provision United States law no contains immediately, an custody individual permitting otherwise prohibited acts of officer, or under the effective control of an cruel, torture or other inhuman or de- employee, agent or other of the United grading treatment punishment or to be Government, States or within a detained employed grounds exigent circum- owned, facility operated, or (for controlled stances example, during “state of department agency of the United public emergency”) or on orders from a States, conflict, armed shall be superior authority, officer or public protective subjected any to interrogation technique of an mechanisms inde- pendent judiciary subject any are not to or approach, treatment related to

783 II, territory jurisdiction.” its Art. is authorized and under that not interrogation, 2-22.3.”). Treaty 1, 18, Army 1988, Field para. signed Apr. Manual S. listed 100-20, 85; Doc. No. 1465 see U.N.T.S. the Law of B. Torture Violates Official (1990) Rep. also S. Exec. at 13 No. Nations (noting definition of torture in the that of States’ condemnation offi The United “corre- Against Convention Torture a reflection of a simply cial torture spondió] understanding to the common of international norm: firmly established practice torture an extreme which is color of official perpetrated Torture condemned”). addition, universally In authority unequivocally violates law (“Com- 1949, Geneva Convention art. 3 Every that has nations. circuit addressed 3”), prohibits any mon Article torture “at has that official torture issue concluded any place” time and in in an “armed con- See, law. customary international violates flict not of an international character.” Co., Royal e.g., Kiobel v. Dutch Petroleum Rumsfeld, Hamdan (2d Cir.2010); 111, 120 id. at 155 621 F.3d (2006) 165 L.Ed.2d 723 (Leval, J., judgment); concurring in the (explaining phrase that the “conflict not of Produce, A.,N. v. Del Monte Fresh Aldana an international was used in character” (11th Inc., F.3d 1250-53 Cir. to contradistinction Geneva Convention 2005) curiam); Karadzic, (per Kadic application Article 2’s to conflicts (2d Common Cir.1995); 232, 243-44 Hilao v. F.3d nations, (9th Arti- Marcos, between such that Common 25 F.3d Estate of (Ed Tel-Oren, Cir.1994); at cle 3 to the applies 726 F.2d United States’ conflict wards, J., concurring); id. 819-20 al Qaeda). with Ever since the Vietnam Indeed, (Bork, J., concurring). the Su first war War —the which the United favorably preme cited the Sosa States had to consider the Geneva Conven- in Filartiga Second Circuit’s statement prisoners tion’s in an insur- application ... “the torturer has an ene become gency environment' —United States mili- my mankind.” 542 U.S. of all tary policy apply has been Common (quoting Filartiga, 630 F.2d at Article upon capture. 3 to all detainees 890); also id. at S.Ct. 2739 see James F. Gebhardt, The Road Abu J., (“Today (Breyer, concurring) interna Army Ghraib: US Detainee Doctrine similarly law will sometimes reflect tional (2005); Experience see also William agreement as to cer not substantive Taft, IV, H. The Law Armed Conflict universally tain condemned behavior but Features, Some Salient 9/11: After agreement procedural universal also (2003) (“Terror- L. Yale J. Int’l jurisdiction prosecute exists to subset ists claim to status under forfeit POW That subset includes tor that behavior. conflict, the laws armed do but ture, against humanity, genocide, crimes right forfeit to humane treatment —a their (citation omitted)). war crimes.” humankind, in right belongs to all war agreements signed by the International in peace.”). support the conclusion that United States sum, agreement there is universal “in customary is a violation of interna- torture nations,” usage practice modern Article 2 of the Convention tional law. Filartiga, F.2d at that official Against provides Torture “[e]ach Any law torture of nations. violates legislative, Party State shall take effective administrative, addressing court torture not write on judicial does or other measures any a clean such acts of torture in slate. prevent Analysis private action a plaintiff before be allowed

II. principles to enforce of international law in Appellants Have a of A. Cause Action (Bork, J., federal Id. tribunal.” at 801 To Seek Under Section 1350 Redress see also concurring); (criticizing id. Torture for Official Filartiga of court’s assumed cause action Statute, Alien Tort The “fundamentally under section 1350 as § 1350, as “The reads follows: district wrong pernicious certain to produce jurisdiction original have courts shall of results”). Judge tentatively Bork also in- by for a only, civil action an alien tort dicated that to prin- offenses akin in violation of the law of committed nations cipal offenses the law of nations or a States.” treaty United The by cited of Blackstone—violation safe con- passed by Congress part statute was of ducts, of of infringement rights ambas- Judiciary 9,§ ch. Act of sadors, piracy be actionable but it not much Stat. was cited —would under the statute. Id. at 813-16. before the Second Circuit’s 1980 decision F.2d 876 Filartiga. (holding Both Bork Judge agreed and I that the that a cause action for official torture is scope function and of section 1350 needed 1350). cognizable under Filartiga section clarification from the Supreme Court. Id. led to the well-chronicled debate in Tel- (“This (Edwards, J., at 775 concurring) Libyan Oren v. Arab Republic, 726 F.2d case deals with an area law that (D.C.Cir.1984), Judge between Bork cries out for Supreme clarification and me purpose scope about of Court.”); (Bork, J., at id. concurring) section 1350. (“Since appears generat- section 1350 be TeL-Oren, argued I that section 1350 ing increasing litigation, an amount of it is provided jurisdiction federal both and “a hoped be that clarification will not be right alleged to sue for violations of the long delayed.”). The Supreme Court ie., nations,” customary law of internation- obliged in Sosa. al law. 780. I on to empha- went issue before the Court in size Sosa respondent Alvarez, was whether extremely scope narrow section citizen, Mexican bring could a claim jurisdiction the Filartiga Sosa, against petitioner a Mexican citizen Judge formulation. Kaufman character- Drug hired Enforcement Adminis- ized in Filartiga the torturer as follows: tration, alleged for an violation of the law “Indeed, for purposes of civil liability, arising arbitrary nations from his deten-

the torturer has pirate become—like the tion. The first noted “[section and slave trader before him—hostis hu- jurisdictional,” Sosa, was 1350] intended as an generis, enemy mani of all mankind.” 542 U.S. at and that it Filartiga, F.2d at refer- action,” new ence no causes piracy slave-trading “creatfed] id. at is not However, Historically fortuitous. these offenses S.Ct. 2739. the Court place special held a law of nations: stop Rather, did not there. it held that perpetrators, their dubbed enemies of jurisdictional grant [t]he is best read as mankind, all were susceptible prose- having been enacted on the understand- by any cution capturing nation them. ing provide that the common law would Id. at 781. a cause for of action the modest number law with po- international violations

Judge Bork viewed section 1350 differ- ently. argued personal liability tential He that “it is essential explicit there grant assume, too, be an of a cause of time.... no We devel- B. Torture Committed Officials from the in the two centuries opment Is Actionable the ATS Under to the birth of the enactment beginning with Fi- line of cases modern case, appellants allege that this categorically has lartiga v. Pena-Irala military custody in in were detained U.S. recogniz- courts from federal precluded Iraq subjected Afghanistan the law of nations as a claim under ing cruel, inhuman de- “torture and other law; Congress element of common an punishment” treatment or as a grading way amended any not in relevant has of “the orders and derelictions of result pow- law limited civil common 1350 or high- Rumsfeld and [Donald] Defendant byer another statute. commanders.” Consolidated Am. level Still, good Compl. Declaratory reasons for a re- for Relief and Dam- there are ¶¶ (Jan. 5, 2006), ages reprinted a in conception of the discretion strained Appendix in consid- 27. The definition of torture court should exercise federal see, controversy, e.g., a matter of some action of this kind. ering a new cause of Detention, Resnik, The War on should re- Judith Accordingly, we think courts Courts, Terror, and the Federal Co- present- on the any claim based quire (2010), L. Rev. 608-16 to be a norm of of nations to rest on day law lum. by the District Court the first decided by the accepted character international however, instance. Assuming, that the of- speci- and defined with civilized world appellants’ complaint fenses articulated in to the features ficity comparable constituted torture —which the Govern- recog- we have 18th-century paradigms dispute ment does not its brief —I be- nized. appellants’ claims are actionable lieve (citation 724-25, 124 omit S.Ct. 2739 Id. under section 1350. ted). rejected plainly The thus grants Having established that the ATS viola Judge suggestion Bork’s a cause of action for clear and definite of 1789 of the law of nations extant as tions nations, the next violations of the law of to the ATS. brought pursuant could be may an alien sue a question is whether (rejecting See id. at re- actor under section 1350 seek state argument federal Justice Scalia’s nothing I can find dress for torture. “recogniz from precluded courts should be history of section 1350 to war- the text or ju any international norms as ing further excluding from its cover- rant state actors today”). dicially enforceable age. rejected Ultimately, the Court Sosa plain “[t]he text of section respondent’s complaint ground on the 1350— jurisdic- original courts shall have did not violate district arbitrary detention by an alien for a law so tion of civil action customary international

“norm committed in violation of the law only, of a tort support as to the creation well defined treaty or a of the United of nations remedy.” federal lawsuits However, surely not exclude the Court did States” —does 2739. to be much state actors. There continues of action under section

foreclose cause original pur- origin tor- about the allegations of official debate 1350 based on See, Thomas H. e.g., contrary. “opened pose of section Quite the Sosa ture. Lee, Theory of action—such the door” to causes Safe-Conduct Statute, L. Rev. Tort 106 Colum. “firmly grounded are Alien official torture —that Saleh, (2006); Dodge, The Historical William S. on an international consensus.” A Re- the Alien Tort Statute: Origins F.3d at Hastings international law violations with a sponse “Originalists,” potential to the (1996); Comp. time”). L. Rev. William personal liability By at the Int’l & Casto, R. The Federal Courts’ Protective contrast, constitutional claims under Bi- in Jurisdiction over Torts Committed Vio- brought pursuant any vens are not to stat- Nations, 18 Conn. L. lation the Law ute; in Supreme Court Bivens “fash- (1986). However, I can Rev. find no new, judicially a crafted ioned] cause of any in compelling evidence these other action,” Corp. Correctional Servs. v. Mal- articles, itself, the words of the statute esko, 61, 68, 515, 534 U.S. materials, legislative applicable or the case (2001), relying L.Ed.2d 456 without on a that, in suggest enacting law to section congressional imprimatur akin to section 1350, Congress “legislative judg- made a 1350. Sosa, 727, ment,” 542 U.S. at 124 S.Ct. holding This court’s recent in Saleh that preclude against suits U.S. offi- private government contractor could not brought cials under section 1350. The be liable torture under section 1350 Congress’ same holds true for more recent disposition also does not control the of this TVPA, DTA, enactments of the case. in appellants Unlike the the current fact, I, the 2006 MCA. In as noted in Part case, against who seek relief state supra, Legislative both the actors Executive long Branches have condemned torture both their individual and official capaci- perpetrated under color of official ties, authori- Saleh were “unwilling ty. condemned, Not has torture been to assert that the contractors state [were] “[tjorture long illegal” has been in our actors.” 580 F.3d at 15. Saleh’s hold- (2005) 30,756 Cong. nation. Rec. ing that, “[although torture committed — (statement Graham). of Sen. by recognized a state is aas violation of a

Although norm, Court has settled international held cannot be that “special factors” actors,” counsel private said of id.—therefore has remedy for a constitutional violation under bearing no on the availability of a cause of injury Bivens whenever the arises out of action under section allega- 1350 based on activity service,” [military] “incident perpetrated tions of deliberate torture un- Stanley, United States v. color authority. der of official (1987) 97 L.Ed.2d 550 that, The Saleh decision points also out (internal omitted); quotation marks see although “Congress frequently legis- has Wallace, Chappell also subjects lated on [the of torture and war (1983) 76 L.Ed.2d (denying TVPA, in such crimes] statutes as the military personnel Bivens action to suing Act, Military Commissions 10 U.S.C. superior injuries officers for sustained § seq., statute, 948a et the federal torture service), course of reasoning this 2340-2340A, 18 U.S.C. the War Crimes does not translate to actions brought pur- Act, § 18 U.S.C. and the Uniform because, suant to section 1350. This is so Justice, Military Code of 10 U.S.C. enacted, when Congress section 1350 was et it seq.,” has never created a cause of expressly gave jurisdic- the federal courts action for victims of torture committed tion over “[torts] committed violation of private contractors. 580 F.3d at 16. But the law of nations.” 28 U.S.C. again, these are of facts little moment here Sosa, S.Ct. 2739 actors, because this case involves state (noting that section 1350 “is best read as contractors, private and all of the statutes having been enacted on the understanding cited in provide passed long common law would Saleh were after the cause of action for the modest number of Second Circuit’s landmark decision in Fi- Act “limits the relief avail- of action for The Westfall recognized a cause lartiga persons injured by 1350. Fur- Government under section able to torture official thermore, the afore- scope the text of employees acting neither within the their coinciding leg- Smith, nor the mentioned statutes employment.” United States v. intent indicate histories islative 113 L.Ed.2d preempt Filartiga’s limit or Congress (1991). However, significant what is fact, of section interpretation excepts here is that the Act from Westfall congressional statements there are immunity all civil grant its actions S.Rep. 102-249, at 4 contrary. See No. for a violation of the “brought Constitution (1991) 1350 has oth- (noting “[s]ection “brought of the United States” or for a not be re- important uses and should er violation of a statute of the United States H.R.Rep. TVPA); by No. placed” against under which such action an individ- (1991), in 1992 U.S.C.C.A.N. reprinted at 3 ual is otherwise authorized.” 28 U.S.C. (2005) Cong. (same); 30,757 151 Rec. 86 (b)(2)(B). 2679(b)(2)(A), McCain) (statement (noting that of Sen. view, my Congress’ decision to over- of the Detainee provisions torture-related Erwin, rule Westfall Act, re-passed were as Treatment which (1988), S.Ct. 98 L.Ed.2d 619 and to MCA, “do not eliminate or part of the doctrine, codify immunity the official in- any right of action other- private diminish 2679(b)(2)(A) cluding the section available”). wise (b)(2)(B) exceptions explicit are —which in Finally, although this court Sanchez- immunity clearly preempted waivers of — Reagan, 770 F.2d 206-07 Espinoza v. any preexisting applications common law (D.C.Cir.1985), that no appeared to hold immunity respect of with to the same mat- brought under section 1350 suits can be Westfall, ters. at See U.S. personal officials their ca- U.S. (“Congress position is in the best S.Ct. holding this pacities, Congress superseded provide guidance complex to for the Act. San- passed when it the Westfall highly empirical inquiry often into whether chez-Espinoza inapposite is because immunity par- absolute is warranted claims in plaintiffs’ court dismissed the context.”). qualifier There no ticular ground that case on the of common law 2679(b)(2)(B) for situations section know, however, that immunity. We Con- jurisdiction requires which “the basis may judicial rest- gress override decision sovereign op- action authorized City ing principle. on a common law wrongdoing,” posed private Sanchez- Illinois, Milwaukee v. Espinoza, 770 F.2d at nor is there (1981) L.Ed.2d 114 legislative history in the indication (“[T]he question legisla- whether the [is] Congress exception intended for such an spoke directly question tive scheme to a Rep. (1988), apply, reprinted H.R. 100-700 Congress ... not whether had affirmative- 5945. The availabili- U.S.C.C.A.N. ly the use of federal common proscribed ty immunity from section 1350 actions omitted)); at (quotation law.” see also id. application on the of the depends therefore (“[W]e assumption with the start Act. Westfall courts, Congress, not federal it is for appropriate standards to be articulate Act Bar Claims Does the Westfall C. (foot- law.” applied as a matter federal Asserting Torture? Official quotation internal marks omit- note and courts, caution,” ted)). are “great Federal with just that when it Congress did recognize statute to cause Act. authorized passed the Westfall of action under section 1350 for “definite” from the law of Stephen nations. See Sat “accepted]” terfield, Note, violations the law of Crying Still Out for Clarifi Sosa, nations. Scope cation: The Liability Under the consistently 2739. The United States has Sosa, Alien Tort Statute 77 Geo. After repeatedly condemned the use of offi- (2008) Wash. L. Rev. 221-22 (deeming “ undisputed cial it is torture. And jurisdictional section 1350 an ‘interactive’ perpetrated “deliberate torture under col- jurisdictional statute” because it “laid the authority universally or of official violates foundation that newly allowed the formed accepted norms of the international law of district courts to hear causes action rights, regardless nationality human of the nations”). arising under the law of As the parties.” Filartiga, 630 F.2d at 878. Sosa, says in “the was ATS meant However, appellants’ in order for suits for litigation to underwrite of a narrow set of official proceed, torture to must fall common law actions derived from the law within Act’s exception the Westfall for ac- of nations.” 542 “brought tions for a violation a statute Therefore, pursuant ATS, to the of the United States under which such federal obligation courts have an recog against action an individual is otherwise nize causes of action based on clear and 2679(b)(2)(B) authorized.” 28 U.S.C. definite violations of the law of nations. added). (emphasis And, noted, as the Court the law of nations question The answer to the whether the may be enforced under section 1350 “with appellants’ Westfall Act bars claims turns statutory out authority.” Id. at further on how section 1350 is viewed. There are 729, 124 added). S.Ct. 2739 (emphasis at least possible two constructions of the In assessing ATS, Sosa read the ATS: precedents Court’s to hold that (1) merely the ATS is a statute that (cid:127) “United States courts apply interna- jurisdictional serves as a vehicle for tional law part as a of our nations; own in violations of the law or appropriate circumstances”; (2) the incorporates ATS itself the law (cid:127) jurisdiction nations and law, furnishes “International law part is of our over causes of action based on viola- and must be ascertained and adminis- tions of accepted princi- definite and justice tered the courts of appro- ples under the law of nations. priate jurisdiction, as ques- often as If correct, right depending the latter tions of upon construction is it it are fol- lows that section capable being duly presented 1350 is for their determina- issue, violated. easy This is not an I tion”;

would be suggest naive to otherwise. But (cid:127) “The Court is bound the law of because I incorpo- conclude that the ATS part nations which is a of the law of nations, rates the law of I believe that it is the land.” a “statute” that fits the Westfall Act ex- Sosa, 124 S.Ct. 2739 ception. (brackets omitted). and citations As “Incorporates”

1. The ATS the Law Judge noted, William A. Fletcher has Nations, and It Be Would Ironic “[t]he Court’s decision ... [in Sosa nec- ] To Conclude Otherwise essarily implies that the federal common customary law of international law is fed- The Court in Sosa made clear that sec- eral supremacy-clause law in the tion 1350 sense.” jurisdictional differs from other statutes, Fletcher, such as 28 William A. because International Hu- it allows Courts, courts to entertain Rights claims derived man in American L.Va. (2007). me, negligence against this indicates a common-law suit fed- To Rev. effectively incorpo- 1350 itself employees. that section eral There is no evidence to law of nations. rates the Congress indicate that meant to address or foreclose actions under section 1350 analysis disputed. can be My line of however, doubted, brought against officials for cannot be federal tor- What ironic to conclude that ture; nations, it would be clear violations of the law of allega- resting Act bars claims Westfall torture, types such as are not akin to the majori- torture. Under the tions of official of “routine acts or omissions” that Con- despite the fact that torture ty’s approach, gress appears have had in mind. long illegal been under United States has Therefore, ironic, least, say it is law, supra, a United States see official proved Act ... has to be a “[t]he Westfall foreign national in a foreign who tortures a practically ‘impenetrable shield’ for [ATS] subject to in an action country is not suit claimants individual U.S. officials.” 1350, whereas a brought under section for- Lin, L. Rev. 108 Colum. 1736-37. foreign nation- who tortures eign official foreign country may al in a be sued Deconstructing the Westfall Act E.g., Filartiga, 630 F.2d 876 section 1350. Act provides Westfall as follows: under section (allowing proceed action remedy against the United States official for tor- against Paraguayan provided by Federal Tort [the Claims in Paraguay). committed ture injury property, or loss of Act] because, result, in en- This is a bizarre personal injury or death or arising re- Act, Congress appar- acting the Westfall sulting negligent wrongful from the or only to immunize common-law ently meant any employee act or omission of against federal officials. torts acting Government while within the (1988),reprint- H.R.Rep. 2 No. at scope employment of his office or is 5945, (noting ed in 1988 U.S.C.C.A.N. exclusive of other civil action or immu- “provide of bill was purpose proceeding money damages by for rea- nity employees personal for Federal from subject against son of the same matter law torts committed liability for common employee whose act or omission employment” of them scope within the added)); 6, reprinted gave against id. at in rise to the claim or (emphasis (“Common at 5950 law Any 1988 U.S.C.C.A.N. employee. estate of such other civil or omissions torts are the routine acts money damages for proceeding action or daily occur in the course of business which arising relating out of to the same or in an and which have been redressed subject against employee matter for, least, at evolving manner courts employee’s precluded estate is with- Lin, years.”); generally see Karen last 800 act or regard out to when the omission Note, An Double Standard Unintended occurred. Act Liability: Effect of Westfall 2679(b)(1) added). § (emphases 28 U.S.C. Act, Tort Claims 108 Colum. on the Alien sum, civil prohibits In the Westfall Act (2008) (arguing 1740-45 L. Rev. in against employees suits their indi- U.S. Act to Congress only intended the Westfall capacities arising scope out of the vidual torts). Indeed, the Su- apply to state-law employment. their in v. Er- preme Court’s decision Westfall however, above, As noted the Westfall win, grant immunity all excepts Act from its (1988), specif- Congress L.Ed.2d 619 which “brought for a violation of the civil actions ically passing in the Westfall overruled Act, States” or immunity in the context of Constitution of the United addressed Smith, of a statute of the stituted as the defendant.” for a violation

“brought action under which such United States (citing U.S. S.Ct. 1180 is otherwise author- (b)). an individual 1089(a), Smith, § In (b)(2)(B). 2679(b)(2)(A), § ized.” 28 U.S.C. plaintiffs sued a physician U.S. for court, negligence federal and the United argue that their section 1350 Appellants sought States to substitute itself for the excep- the Westfall Act’s claims fall within physician under the Act. Westfall tion for of a statute of the “violationfs] objected, arguing under which such that their claim action[s] United States au- against an individual otherwise permitted [are] would have been under the Gon- ' 2679(b)(2)(B). In thorized.” 28 U.S.C. implicit exception zalez Act due to an response, the Government relies on statute, that, result, a the claim Supreme Court’s decision United States exempted should be from Westfall Act im- Smith, 2679(b)(2)(B)’s munity exception due to (1991), support proposi- L.Ed.2d 134 brought pursuant to a federal exception tion that to the “this Westfall disagreed, statute. The Act ... [applies] to federal statutes holding “[njothing that: in the Gonzalez provide both a cause of action and the imposes any obligations Act or duties of employee law which the al- substantive upon military care physicians. Conse- leged Appellees’ to have violated.” Br. at quently, physician allegedly committing (emphasis in original). The Govern- malpractice foreign under state or law ment also refers to the Ninth Circuit’s does ‘violate’ the Gonzalez Act.” decision in Alvarez-Machain v. United Smith, S.Ct. 1180. States, (9th Cir.2003) (en 331 F.3d 604 The Court’s decision Smith seems banc), grounds rev’d on other sub nom. plainly inapposite here. contrast to the Alvarez-Machain, Sosa Act, Gonzalez section 1350 is a statute (2004). 159 L.Ed.2d 718 enabling impose the federal courts to lia- The Ninth Circuit concluded that “a bility liability. limit Because section —not claim under the is based a viola- [ATS] expressly 1350 incorporates the “law of law, tion of international not of the [ATS] nations,” it is a statute that can be violat- itself.” 331 F.3d at 631. Several district ed. courts analysis. have followed this line of See, e.g., Rumsfeld, Al-Zahrani v. 684 3. The ATS Is Not a Jurisdictional 103, (D.D.C.2010); F.Supp.2d 114-16 Ra- Akin Statute to Section 1331—It Is Rumsfeld, 26, F.Supp.2d sul 37-38 Therefore a “Statute” Sufficient (D.D.C.2006) (issue appealed); Ban- Satisfy Excep- To the Westfall Act McNamara, 1, coult v. F.Supp.2d 9-10 tion (D.D.C.2004). view, In my these decisions flawed, are because fail to acknowl- emphasized in Sosa edge a critical distinction between the that, in comparing grant the ATS with the Gonzalez Act—the statute at issue in federal-question jurisdiction, 28 U.S.C. Smith —and section 1350. “[sjection 1331, 1350 was enacted on the congressional understanding courts Act, Act,

The Gonzalez like the Westfall jurisdiction by would exercise entertaining a grant of federal employee immunity. some common law claims derived from the Specifically, provides it that “in suits nations; law of and we know of no reason against military personnel medical federal-question jurisdiction torts committed within to think that scope of their employment, the subject any comparable Government is to be sub- was extended 301(a) “authorizes federal at held that section 542 U.S. assumption.” congressional Thus, body of federal law for if courts to fashion 19, Con- n. collective federal courts the enforcement of these bar- section repealed gress at authority today recognize gaining agreements,” no have would despite plain action for violations the fact that the law causes of S.Ct. common 912— law, provision only speaks such to federal customary international text of this Sosa, Rajoub, 634 jurisdiction. Mohamad also 542 U.S. at torture. See (D.C.Cir.2011) (holding (citing 609-10 Lincoln Mills as F.3d action for had no cause of appellant of a “haven” of federal com- example an 301(a) law customary law). international violation of provides mon Just as section 1331); see also to 28 U.S.C. pursuant courts to jurisdiction and allows federal Sosa, at common law to enforce col- create federal (“[W]e that at the time of enactment think bargaining agreements, lective section jurisdiction enabled feder- ATS] [of jurisdiction and allows fed- provides limited very al courts to hear common eral courts to create federal law by the law of nations and category defined remedy accepted for definite and violations law”). This makes at common recognized customary international law. In other inherently different from oth- section words, it not international is section statutes, such as section jurisdictional er law, gives authority federal courts the from the Gonza- quite different to enforce “international norms that a fed- Satterfield, 77 generally lez Act. See Geo. properly recognize eral court as with- c[an] 221-22; S. L. Rev. William in the common law enforceable without Wash. Bridging Customary Erie: Inter- Dodge, Sosa, statutory authority.” further Legal System Law in the U.S. national (emphasis 124 S.Ct. 2739 add- Alvarez-Machain, 12 Tulsa Sosa v. ed). “statutory makes section 1350 After This (ana- (2004) Comp. & Int’l L. 97-100 J. satisfy the authority” sufficient to Westfall congressional lyzing Sosa’s discussion exception. Act as com- enacting section 1350

intent argued that should be might It be Smith 1331). to section pared exception to bar the Act read Westfall 301(a) parallels section Section 1350 here, because section 1350 applying from Act Management Relations the Labor incorporate the law of explicitly does not 301(a)provides that 1947. Section That was the view taken nations. Circuit, violation of contracts between

Suits for even as that court acknowl- Ninth organization a labor employer an Act and section edged that the Gonzalez industry in an representing employees very purposes. 1350 have different in this affecting Alvarez-Machain, commerce as defined Al- 266 F.3d at 1054. any labor or- chapter, force, or between such though argument is not without this may brought be dis- ganizations, 301(a), I Like section as inter- disagree. having trict court of the United States Mills, by the Court in Lincoln preted without re- jurisdiction parties, may enforce- incorporate federal statute controversy spect to the amount though the rights able substantive even citizenship of the regard to the without out the details of spell statute does not parties. says It true that Sosa rights. those that, Tompkins, 185(a). since Erie Railroad Co. § In Textile Workers 29 U.S.C. 817, L.Ed. 58 S.Ct. Mills Ala- America v. Lincoln Union (1938), has general practice “the been bama, 77 S.Ct. exer- legislative guidance before (1957), look for Supreme L.Ed.2d view, authority my over substan- Act. In cising Congress’ innovative Westfall deci- law,” Sosa, Erwin, tive 542 U.S. at sion to overrule Westfall 2739; but Sosa the door to the opened 98 L.Ed.2d 619 recognition alleging (1988), of causes of action codify immunity and to the official wrongs doctrine, as official torture —that vio- including 28 U.S.C. —such the law of 2679(b)(2)(A) (b)(2)(B) late nations. § exceptions— explicit which are immunity— waivers of short, Smith has no I believe clearly preempted any preexisting com- because, here, above, application as noted applications immunity mon-law with re- Act, Smith was focused on the Gonzalez spect to the same matters. And I believe Act, not section 1350. Unlike Gonzalez cognizable that actions that are under sec- authorizing section 1350 is statute tion allegations 1350—such as of official impose liability lim- federal courts to —not torture —fall within the Westfall Act’s ex- it liability. I therefore conclude that sec- ception for of a “violation[s] tion statute exception 1350 fits within to the United Act States under which such Westfall of a statute of “violation[s] action[s] against an the United States under which such ac- individual [are] otherwise au- 2679(b)(2)(B). an individual tion[s] other- thorized.” [are] On this authorized,” wise I point, agree last with Judge Fletcher 2679(b)(2)(B). that Sosa Accordingly, I dissent “necessarily implies that the fed- majority’s disposition from the appel- eral common law of customary internation- lants’ claims under section 1350. al law is federal supremacy- law Fletcher, clause sense.” William A. Inter-

III. CONCLUSION national Rights Human in American Courts, Tel-Oren, (2007). Twenty-seven years ago, in 93 Va. L. I For Rev. said that case deals an “[t]his with area of me this means that it is section law, the law that out cries for clarification gives international federal courts Court.” 726 F.2d at I authority to enforce international say the again same here. norms that a federal properly court can recognize as within the common law en- thought I the Court’s decision forceable “without statutory au- further Sosa afforded the lower federal courts the Sosa, thority.” amplification and clarification necessary to added). (emphasis it, As I see sec- process understand how to properly tion “statutory 1350 is authority” sufficient brought under section 1350. Obviously, I satisfy exception. Westfall Act was my mistaken. Some of colleagues on may disagree Some my analysis, with but the federal bench believe that the Westfall point at this I why. cannot see Act away takes what the gives ATS insofar as it allows causes of action against state above, IAs noted I think it say is fair to perpetrate actors who torture under the developing case law is ironic. As color of authority. Ultimately, official af- one commentator has noted: ter careful consideration of this difficult In past thirty years, the [ATS] has question, I think the decisions that have become an important instrument in ad- endorsed this approach misguided. are vancing human rights claims before U.S. if light

Even ATS actions courts. of this exceptional state actors stat- ute, were barred principles of common law the Westfall Act’s effect of immuniz- immunity, San- thought ing as this court doubly U.S. officials is ironic: Not chez-Espinoza, I Congress believe that vi- country way has the that led the immunity tiated that when it enacted the allowing aliens to vindicate their rights against foreign officials maintained offi- immunity

cial for its own officials even rights the face of modern human ac-

countability, but it has also done so un- result,

intentionally. aAs U.S. courts

apply liability a double standard of

whereby foreign may officials face liabil-

ity for international law violations while immunity

U.S. officials have absolute

those same violations. Lin, Note,

Karen An Unintended Double Liability:

Standard Effect of Act, on the Alien Act Tort Claims Westfall (2008) (foot- 108 Colum. L. Rev. omitted). notes agree I do not with the courts have helped irony by to create this granting immunity to United States officials from ATS actions. It is hard to why fathom Congress pass would a law that makes all government except our own— officials— subject liability for torture committed nothing overseas. There is to indicate Congress meant achieve this result when the Act passed. Maybe Westfall was it Congress give judiciary is time for better directions on this matter. America, Appellee UNITED STATES BRICE, Appellant. Jaron Nos. 10-3080. United Appeals, States Court of District of Columbia Circuit. Argued April Decided June

Case Details

Case Name: Arkan Ali v. Donald Rumsfeld

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 21, 2011

Citation: 649 F.3d 762

Docket Number: 07-5178, 07-5185, 07-5186, 07-5187

Court Abbreviation: D.C. Cir.