*1 Ertel, and Nathan VANCE Donald
Plaintiffs-Appellees, and The United
Donald RUMSFELD America, Defendants-
States
Appellants. 10-1687, 10-2442.
Nos. of Appeals,
United States Circuit.
Seventh Feb. 2011.
Argued Aug.
Decided Granted, Opinion
Rehearing En Banc 28, 2011.
Vacated Oct. *3 (argued), Attorney,
Michael Kanovitz IL, & Loevy Loevy, Chicago, Plain- for tiffs-Appellees. (argued), Attorney, M.
Matthew Collette Justice, Division, Department Ap- Civil Staff, DC, Washington, for Defen- pellate dants-Appellants. (ar- David B. DeLaquil,
Mark W. Rivkin & LLP, Attorneys, Baker Hostetler gued), DC, Clark, Amici Washington, Louis Curiae. - MANION, EVANS, Tak- claims Rumsfeld.
Before
HAMILTON,
Judges.
Circuit
ing
issues in
ascending
order
first,
breadth,
agree
applying
we
the stan-
HAMILTON,
Judge.
Circuit
Federal Rule of
dards of
Civil Procedure
ques-
appeal raises fundamental
This
12(b)(6),
suf-
relationship
about the
between
tions
supporting Secretary
ficient detail facts
country
govern-
of our
and their
citizens
personal
responsibility
Rumsfeld’s
and Na-
ment. Plaintiffs Donald Vance
Second,
alleged torture.
we
agree
and civil-
than Ertel are American citizens
court that Secretary
the district
Rumsfeld
complaint
Their
in detail that
alleges
ians.
*4
qualified immunity
to
on
not entitled
they
illegally
detained and
tortured
pleadings. The law was
estab-
clearly
Iraq in
by
military personnel in
lished in 2006
treatment
military cus-
Plaintiffs were released from
alleged
have
was unconstitutional. No
charged with a
tody
being
without ever
public official
reasonable
could have be-
They
for viola-
crime.
then filed this suit
lieved otherwise.
rights against
of their constitutional
tions
Secretary
Donald
former
of Defense
Next,
agree with
court
we
the district
Rumsfeld and other unknown defendants
remedy
that a
for
available
under Bivens v. Six Unknown Named
of civilian
by
U.S. citizens
Narcotics,
Agents
Federal Bureau
military personnel in
a war zone. We
91
Shield officials had a became each thin mat on con- suspicious plaintiffs’ loyalty sleep, about the crete on which lights ¶¶ 14, 2006, April the firm. On kept day. confis- on 24 hours 161. After *6 plaintiffs days, shackled, cated credentials that allowed two Vance and Ertel were Zone, blindfolded, access to the effectively trap- transported Green Camp and to ping compound them inside the firm’s Cropper, military facility in a U.S. near ¶¶ ¶¶ 107-12, Red Baghdad Zone. 116-19. Plain- Airport. International 143—44. government tiffs called their U.S. contacts After the plaintiffs Camp were taken to Iraq for help. They were told that they Cropper, they experienced nightmarish interpret should Group Security’s Shield they scene in which were detained incom- taking actions as hostage, them and should municado, solitary confinement, and barricade with weapons themselves in a subjected physical to psychological and ¶¶ 120, room of the compound. 124-25. torture for the duration of imprison- their They were assured that U.S. forces would ment—Vance for three months and Ertel ¶ come to rescue 124. them. U.S. forces ¶¶2, 20-21, 146-76, for six weeks. 212. compound came and took Vance and They all allege they of the abuse Embassy Ertel to the questioning. by endured in weeks those was inflicted ¶¶ Military 125-31. personnel seized all of Americans, some officials and personal property, including their laptop ¶ some civilian 21. They allege officials. computers, cell phones, and cameras. they experienced the torture was ¶ 127. The shared information “supposedly kind reserved for terror- Group Security about Shield transactions ¶ enemy ists and 2. so-called combatants.” ¶¶ were sleep. and sent to a trailer to 130— plaintiffs’ allegations true, If the two 31. young American civilians were do trying After two sleep, or three hours of the right thing by becoming Vance whistleblow- Ertel, impression and who were under the ers to government, the U.S. but found they had been gov- prison rescued their themselves detained and tortured ernment, were in for a shock. They government, were own without notice “walled,” i.e., sign of slammed into walls and with no when while their families psychological being placed and abuse led blindfolded with towels physical harsh ¶¶ 21, 52-54,161.3 1-4,19, interrogation would end. over their heads sessions. ¶¶ 21; that they 157. Plaintiffs also claim allege they that after and Ertel Vance continuously were tormented they strip- Camp Cropper were arrived guards, who would conduct shake-downs of blindfolded, still and issued searched while their, cells, premise false sometimes on the ¶ were jumpsuits. They 145. then held contraband, they had discovered and small, confinement, cold, dirty solitary keeping who seemed on them intent off- torturous subjected techniques cells ¶ mentally. balance 156. Army Field by the Manual forbidden ¶¶ 146, Act. 217- the Detainee Treatment aggressive theme of the constant 18, 242-44, lights kept a, 265. The were interrogations haunting one—if cells, so that at all times in their Vance and Ertel did not “do the right day “no af- experienced darkness they thing,” would never be allowed to day” the entire duration of their ter ¶ Camp leave 176. Cropper. Vance and ¶¶ 21, Cropper. 147. Their Camp time at only interrogated Ertel were but con- cold, intolerably except kept cells were tinuously by guards who threatened said failed. generators when Id. There they would use “excessive force” feces on the bugs were walls they immediately if them did not and cor- cells, they spent most of their which ¶ rectly comply with instructions. 158. ¶ complete time in isolation. 146. Vance plaintiffs allege this treatment exhaustion; and Ertel were driven each for the lasted duration of their detention at bed, for a guards had concrete slab ¶¶ Cropper. 2,165,176. Camp they if were caught would wake them ever Ertel were While Vance and detained ¶¶ 148, Heavy 149. metal and sleeping. interrogated, their loved ones did not into country pumped music was their cells they know whether were alive or dead. volumes,” “intolerably-loud ¶¶ 1, Eventually, Vance and Ertel ¶¶21, mental deprived stimulus. telephone were allowed a few calls to their *7 only each one plaintiffs 149. The had families but allowed to were not disclose pair during shirt and a of overalls wear anything their location or about the condi- ¶ They their 152. were often confinement. of their or the tions detention nature of deprived repeatedly and water and of food ¶ they 162. interrogations. When ¶¶ 151, deprived necessary medical care. they interrogated, were not being were 153-55. solitary held in almost constant confine- Beyond sleep deprivation and the clergy requests ment. Vance’s for visits isolating harsh conditions of their de- and denied, plaintiffs were were forbidden tention, they allege, physi- were plaintiffs correspond lawyer with a court. threatened, abused, cally assaulted ¶¶ 163-64. anonymous working U.S. officials as ¶ never allege, charged for Vance Ertel were guards. They example, 157. wrongdoing, “hooding” and were with crime or other nor they experienced they lege government Iraq plaintiffs 3. The were informed that were officials in being "security allegations, they held as internees” because fabricated for which these they possessed for a business that worked charged, were never retaliation .their large weapons might caches and that be in- whistleblowing "high-value information” distributing weapons insurgent volved in poorly that could reflect officials in ¶¶ groups. plain- 179-80. and terrorist 1, ¶¶ 4, Iraq. 132. deny any adamantly wrongdoing and al- tiffs they designated security as threats. of civilian in a In a U.S. citizens war zone. ¶¶ order, separate 1, 212, Instead, the district court denied 214. both were eventu- the United States’ motion to dismiss the ally dropped airport released off plaintiffs’ personal ¶¶ property claim. 208, way in Baghdad to find their home. Ertel allege 210. Vance and both These matters are now before us two they physically emo- were devastated separate appeals. The district court’s re- tionally by they what endured the hands jection of a qualified immunity defendant’s ¶ government. of their own judgment defense is considered a final sub-
ject to
appeal,
juris-
immediate
so we have
History
B. Procedural
Secretary
diction over
appeal,
Rumsfeld’s
10-1687, pursuant
docketed as No.
to the
release,
plaintiffs
Following their
statute,
general appellate jurisdiction
sued former
of Defense Donald
Pelletier,
§
U.S.C.
1291. See Behrens v.
Rumsfeld,
capacity,
individual
his
299, 301,
834,
516 U.S.
116 S.Ct.
well as
unidentified defendants.4
(1996),
L.Ed.2d 773
citing Mitchell v. For-
brought
against
also
a claim
syth, 472 U.S.
105 S.Ct.
personal
United States to recover
(1985).
L.Ed.2d
The broader Bivens
property seized from them at the time
“directly implicated by
issue is
the defense
custody.
were taken into
qualified
immunity” and is thus also
Secretary Rumsfeld and the United
Robbins,
properly before us. Wilkie v.
States moved to dismiss all claims
551 U.S.
550 n.
127 S.Ct.
them. The district court
plain-
dismissed
(2007),
L.Ed.2d
quoting
Hartman v.
against Secretary
tiffs’ claims
Rumsfeld Moore,
257 n.
procedural
process
for denial of
due
(2006).
1695,
ciently pled Secretary personal Rumsfeld’s Analysis II. responsibility for their alleged treatment and that Secretary Rumsfeld pro- was not We affirm the district court’s decision on tected qualified immunity. The district 10-1687, Bivens claims No. conclud- *8 rejected court argu- also the defendants’ ing sequence, in this from the narrowest “special (a) ment that preclude factors” the issue to the plaintiffs broadest: that recognition of a remedy adequately alleged Bivens for torture Secretary Rumsfeld’s explained argument Plaintiffs responsible oral ties of unknown defendants they identifying mistreatment); were limited alleged other defen- their detention and given (Order dants the nature Entry of their detention in a Minute Compel), on Motion to (Jun. 14, system.” tags 2010) "sterilized No name (granting plain- Dkt. No. 267 officials, by Camp Cropper worn compel discovery). and the tiffs' motion to But the guards granted American had code government’s names for each district court later magistrate judge other. stay proceedings, some including pend- ordered motion to discovery plaintiffs identify ing so the discovery requests identify could other unknown defendants, Opinion defendants. See during appeal. Memorandum and this See Minute Order, (Dec. 2007) (Order (ordering Entry Dkt. No. 89 Stay), on Motion to Dkt. No. 285 (Nov. 2010). discovery plaintiffs limited to learn identi-
599 treatment, through the official’s own individual ac- responsibility for their personal Bivens; (b) tions, has Iq- violated Constitution.” under Secre- required as bal, 129 As qualified Supreme S.Ct. at 1948. Rumsfeld not entitled tary is theory in Iqbal, “[t]he on that a Court said factors neces- immunity the defense sary to official could have establish Bivens violation will government reasonable plaintiffs vary provision with the constitutional at in 2006 that the abuse believed unconstitutional; in Iqbal, and issue.” Id. Unlike which was a alleged was not have (c) case, plaintiff avail- discrimination where the was should be that Bivens zone, required plead in a that the defendant acted civilian citizens war able discriminatory purpose, or worse. with the minimum at least for claims of torture We knowledge required intent court’s decision in No. here would reverse district 10-2442, indifference, analogous the district court be deliberate concluding that as plaintiffs’ prop- involving prison have cases officials should dismissed school “military authority” settings. claims domestic See Farmer v. Bren- erty under nan, 825, 842, 114 exception to Administrative Procedure S.Ct. (1994) (finding L.Ed.2d that a prison Act. official with “deliberate acts indifference” A. Personal Responsibility if the “official acted or failed despite to act knowledge his of a substantial risk of seri- their proceed To Bivens Grindle, harm”); T.E. ous claims, facts allege indicat must (7th Cir.2010) (“When personal a state actor’s Rumsfeld was ing deprives deliberate indifference for the al someone ly responsible involved of his or protected liberty her interest Iqbal, constitutional violations. See leged Heller, 1948-49; bodily that actor Alejo integrity, violates the Cir.2003). (7th Constitution, regardless “Because whether the ac- F.3d subordinate, a supervisor tor is liability inapplicable is and the vicarious suits, plead may resulting § must actor be held liable for the plaintiff harm.”).5 defendant, that each Government-official heavily Iqbal, responsibility sufficiently rely pled was not where
5. The defendants but provided plausible clearly distinguishable complaint no basis for the case because legitimate explanation. rejecting Iqbal, the nature constitutional viola- case, by Iqbal con- tions. The issue in what the 1951-52. trast, inquiry (Attorney before us whether the defendants General Ashcroft did, Mueller) sufficiently actually pled Director that defendant FBI personally purposes they Secretary Rumsfeld subjective established acted on —whether policies relevant religious bias authorized the unconsti- the basis of or ethnic or instead allege they Iq- tutional fight suffered. plaintiff alleged acted to terrorism. bal did not disturb and section the Bivens Attorney and the General FBI Di- principles holding supervisor may that a implemented poli- rector had established and wrongs per- be liable an individual for he following September attacks of cies sonally directed or authorized subor- his plaintiff led 2001 that to the detention dinates to inflict. separate under harsh conditions from the prison allegedly applies A general population, because similar distinction to the *9 al-Kidd, policy kept prisoners separate Court's v. a be- recent decision Ashcroft 2074, — race, —, religion, 131 S.Ct. L.Ed.2d cause of national ori- (2011). legitimate explana- There the Court held gin. Because there was a “nondiscriminatoiy plaintiff’s policy for the that where the seizure under tion —the illegally pres- objective to detain who were federal material witness statute was intent aliens reasonable, poten- ly plaintiff pursue a ent in the United States and who had could not theory Bivens the seizure tial connections to those who committed ter- claim on pretextual, personal in fact a different rorist attacks”—the Court held based arguing stop district court erred the torture despite of these detainees holding qualified immunity does not knowledge actual reports of detainee protect Secretary liability, Rumsfeld from abuse.
the defendants both blend the issue of Applicable Pleading Requirements
Secretary
personal responsibil-
Rumsfeld’s
ity
plaintiffs’
treatment and the doc-
The Federal Rules of Civil Proce
qualified immunity.
trine of
These issues
impose
dure
no special pleading require
distinct,
actually quite
and we treat
claims,
ments for
including
those
separately.
begin by addressing
them
We
high-ranking government
former
personal
the defendants’
responsibility ar-
officials. See
v.
Swierkiewicz
Sorema
guments,
primarily
which are
about wheth- N.A.,
506, 513-14,
534 U.S.
122 S.Ct.
plaintiffs
pled
er the
have
a sufficient level
(2002).
L.Ed.2d
The notice pleading
of detail about Secretary Rumsfeld’s per-
standard under Rule
of8
the Federal
responsibility
sonal
survive motion to Rules of
applies,
Civil Procedure
12(b)(6)
dismiss under Rule
of the Federal
plaintiff
required
provide
a “short and
Rules Civil Procedure. We first exam- plain statement of the claim showing that
applicable
ine the
pleading requirements.
pleader
is entitled to relief.” Fed.
thenWe
summarize the
allega-
detailed
8(a).
complaint
R.Civ.P.
will survive a
Secretary
tions of
personal
Rumsfeld’s
re- motion to
if it
“plausibil
dismiss
meets the
sponsibility from the Complaint. Finally,
ity”
applied
standard
in Iqbal and Twom
we address the
specific
defendants’
con- bly.
Iqbal,
See
at
quoting
cerns about
Complaint.
Bell
Corp.
Twombly,
Atlantic
550 U.S.
We conclude that the
have suf- 544, 570,
court’s ... included Army Field Manual 34-52 part our vigilance on undoubtedly requires isolation for interrogations, 20-hour a use of do state that claims which to ensure sensory deprivation.” days, up are not allowed to 30 for relief claim plausible ¶ alleg- Secretary In Rumsfeld govern- 232. high-ranking time of occupy not, however, authorization a cate- “rescinded his formal edly It is ment officials. no these offi- but took against techniques generally, those on claims use gorical bar Vance, at 961. which had F.Supp.2d practices to end the measures cials.” well-pleaded confirm nor to plaintiff presents ingrained, then become “When to raise a in fact ... termi- allegations sufficient practices factual ¶ level, speculative Instead, relief above he authorized right nated.” 233. claim Army to have his is entitled plaintiff techniques that outside use of if even one of to dismiss personally approved a motion if he survive Field Manual govern- high-ranking that in allege also plaintiffs the defendants them. Id. The Id. a new Secretary approved official.” Rumsfeld ment up isolation for policies that included set Complaint 2. The sleep days, dietary manipulation, and to 30 ¶234. (the List”). In deprivation “2003 court with the district agree We Secretary policies, to these formal addition sufficient plaintiffs that authorized additional harsh Rumsfeld also Secretary per Rumsfeld that to show facts in approved if he them advance. techniques policies the relevant sonally established ¶ of their 235. alleged violations caused the that detention. during rights Secretary allege that The Secretary provided Complaint
The detailed the tech- then Rumsfeld directed of the claims sufficient notice Rumsfeld Bay also be place at Guantanamo niques plausible claims him and stated ¶¶ plain- Iraq. 235-39. extended and Twom satisfy Iqbal Rule 8 and instance, claim, Secretary for tiffs bly. Major Geoffrey sent General Rumsfeld 2003 to evaluate Iraq August Secretary Miller allege that more “actionable gain could prisons how policies authorized devised and Rumsfeld ¶ 236. intelligence” from detainees. in their the use of torture permit ¶ to General response They September 217. detention. interrogation and aggressive use more suggestion responsible Miller’s “personally claim that he was alleg- and as Iraq, interrogation policies authorizing, supervising, developing, “directed, and sanctioned” edly approved reforming auditing implementing, and/or Rumsfeld, the commander by Secretary govern- practices policies, patterns military coalition States-led interroga- the United ... treatment ... ing [and] ¶ authorizing Iraq signed a memorandum Specifically, tion ... of detainees.” (the techniques interrogation use of 29 Secretary Rums- that in they allege List”), sensory depri- included “Iraq tortu- which a list of approved “personally feld control, vation, and the use loud light for use on techniques interrogation rous ¶ later modi- that, The commander music. 238.6 Bay at Guantanamo detainees” Services Custody, Committee on Armed September plaintiffs elaborate on 6. The brief, 20, 2008), (Nov. http://www. noting that available at policy in their reported armed-services.senate.gov/Publications/ Services Committee Senate Armed heavily” (last 2009.pdf this list “drew FinaLApril 22 Report Detainee Bay. guidance Guantanamo 4, 2011). Rumsfeld’s “According to LTG Aug. accessed Treatment Detainees Inquiry Into The See *11 memorandum, interrogators fíed the and the Geneva Conventions. PL Br. at 7. given subject were still discretion to de- The law then-Secretary instructed Rums- interrogation tainees to involving methods feld to take action to stop abusive interro- food, manipulation lighting, heating, gation techniques: shelter, clothing of the detainees. The Secretary of Defense shall ensure ¶ 239. policies are prescribed not later plaintiffs allege Secretary also than days after the date of the en- Rumsfeld well aware of detainee ... actment to ensure that members of abuse public because both and internal Forces, the Armed persons and all act- ¶¶ reports documenting 240-41, the abuse. ing ... within facilities of the Armed 2003, May 252. In the International Red Forces, treat persons detained began reporting Cross on the abuse United States Government in a humane ¶ custody detainees in in Iraq. 240. manner consistent with the international plaintiffs allege that then-Secretary of obligations and laws of the United State Colin Powell confirmed that Secre- policies States and the set forth in sec- tary reports Rumsfeld knew of the 1091(b). tion regularly abuse and reported them to ' 108-375, 1092, § Pub.L. No. 118 Stat. President Bush throughout 2003. Id. 1811, (2004), 2069-70 codified 10 U.S.C. They allege also Secretary Rumsfeld 801, § § stat. note plaintiffs 1092. The also knew of investigative other reports that, argue despite that specific direction into detainee in Iraq, abuse including a Congress, from Secretary Rumsfeld took report by former Secretary of Defense no action to rescind unauthorized ¶ interro- Schlesinger. James 241.7 gation methods plaintiffs before the response took action in to alle- ¶¶ released from custody 244, in 2006. 252. ¶ gations First, of detainee abuse. 2005, Congress enacted the Detainee Congress passed the Reagan Ronald W. Act, Treatment which limited in- National Defense allowable Authorization Act for 2005, terrogation techniques Fiscal Year which to those reaffirmed authorized prohibition against Army Manual, techniques Field specifical- thus that violate the United States ly Constitution outlawing the interrogation techniques Sanchez, September policy Twombly plaintiffs may bal and sug- still heavily' Secretary 'drew gest on of Defense's pleadings facts outside of the to show April guidance for GTMO.” complaints Id. at should not be dis- party missed). 201. A pleading being whose at- 12(b)(6) appeal tacked may under Rule allegations elaborate on long his so as the 7. The point elaborate on this in their elaborations are pleading. consistent with the brief, citing Report Indepen- the Final Police, See v. Illinois State Chavez 251 F.3d dent Panel Opera- to Review DoD Detention (7th Cir.2001); Highsmith Chrys- 24, 2004), (Aug. tions http://www. available at Corp., (7th ler Credit 18 F.3d 439-40 defense.gov/news/Aug2004/d20040824 Cir.1994) (reversing part dismissal in relevant (last finalreport.pdf 2011). Aug. accessed elaborations); based on such new Dawson v. report, This addressed Secretary from former (7th Corp., General Motors 977 F.2d Rumsfeld, Schlesinger Defense Cir.1992) (reversing dismissal based on new changes noted that “the interrogation in DoD elaborations). party If a can policies win reversal ... contributing were an element with such new pleadings, elaborations on its uncertainties in the field as to which tech- then these niques can defend the denial of aug- were authorized” and that "the the motion to way. Reyn- dismiss in the same techniques mented migrated Guantanamo Bar, Inc., Sports
olds CB Iraq to ... where were neither limited (7th Cir.2010) 1146-47 (concluding Iq- safeguarded.” after nor Id. at 14. *12 plaintiffs The also claim Secretary Secretary had earlier au- that Rumsfeld that Rumsfeld, in thorized, the face both internal re- plaintiffs allege and which the ports well-publicized and accusations of de- at the hands of they suffered detail ¶¶ tainee by mistreatment 2006. 242-43. The military personnel in cor- Iraq, investigate forces did or Treatment Act stated relevant Detainee abuses, despite rect the his actual knowl- part: edge being that U.S. citizens were custody or under the person the No interrogated using would be detained Department control of effective abusive that practices the unconstitutional in a Depart- detention Defense under ¶ had authorized. The he earlier 252. facility subject shall be of Defense ment reports that plaintiffs allege of the abusive technique of any treatment or interro- treatment of detainees the U.S. by and not authorized listed gation widely reported Amnesty Interna- Field Army States Manual the United tional, Nations Mis- the United Assistance Intelligence Interrogation. on for Iraq, sion and the International Com- 109-148, 1002(a), § Pub.L. Stat. ¶¶ mittee of the Red Cross. 245-51. The (2005), § codified at U.S.C. Secretary that plaintiffs contend Rumsfeld § note 1002. stat. responsible “official for terminat- ing pattern reforming of abuse and that, plaintiffs The contend after ¶ Instead, it.” policies causing 252. Act, of the Detainee Treatment enactment plaintiffs allege, Secretary Rumsfeld took Secretary Rumsfeld continued condone being no action “this because conduct was from outside the techniques the use ¶ carried to the pursuant interrogation out They allege 244. Army Field Manual. policies and detention himself created [he] that day passed that on the same implemented.” Id. Act in Detainee Treatment December 2005, Secretary Rumsfeld added ten classi- Secretary Personal Rumsfeld’s Manual, which in- pages fied the Field Responsibility is Pled inhuman, cruel, degrading tech- cluded Sufficiently allegedly such as those used on the niques, (the deficiency in plaintiffs Complaint refer to this as “the We see no plaintiffs Manual”). Id. that would warrant dismissal on the issue December Field The defen- allegation responsibility. Taking as the fac- specula- personal dants describe this true, untrue, allegations complaint must tual in the as accept tive and but we these as must, true at facts allegations plaintiffs pled the Rule we well-pled 12(b)(6) showing merely stage proceedings.8 plausible, and not eventually classify appeal, plaintiffs newspaper cite feld abandoned efforts to 8. On Manual, development reporting of this the Field but the "December article on interrogation operation during set methods. See Field Manual” was classified Schmitt, replaced Septem- Army May Rules and was not until Eric "New Snarl detention released, Issue,” Detainee New ber after had been Talks McCain on (Field (Dec. 14, 2005), 2- when new field manual Manual York Times available 244; ¶ 22.3) at 11. http://www.nytimes.com/2005/12/14/politics/ was instituted. PL Br. (last 2011) Aug. plaintiffs' criticizes reliance on 14detain.html accessed dissent new, ("The report, plaintiffs' Army approved newspaper case for has classified allegations interrogation personal responsibility ... rests methods The tech- set event, 10-page extensive. niques are in a classified are far more included ..."). Army disputes these of fact that cannot be re- addendum to a new field manual are 12(b)(6) Secretary solved a Rule motion. contend that Rums- (or act) acting failing Rumsfeld was subordinates speculative, instructions”); responsible creating pol- on the warden’s also personally see Schwartz, Litiga- unconstitu- Martin A. Section icies caused the *13 7.19[C], alleges Defenses, § also Complaint tional torture. The tion: Claims and (4th ed.2010) Secretary responsible (noting the for not 7-239 that “supervi- that conforming sory promulgate the detainees officials who policies treatment of the to the standards set forth in Detainee are enforced if subordinates are liable or- Congress specifically policy Treatment Act. the enforcement causes a Secretary federally that de- protected rights”); dered to “ensure” violation of Richardson, custody 1185, tainees of the States Dodds v. 614 1199 United F.3d (10th Cir.2010) (concluding treated in a manner consis- Iqbal were “humane after obligations “§ with a plaintiff the international 1983 allows to liabili- impose tent ty of the See Ronald upon defendant-supervisor laws United States.” cre- who ates, Reagan National Authoriza- promulgates, implements, W. Defense or in some Act for 10 way possesses tion Fiscal Year U.S.C. other responsibility for the § § operation stat. note 1092.9 of policy continued the enforce- (by ment the defendant-supervisor or her plaintiffs pled The have adequately subordinates) subjects of which” plaintiffs disregard “kind active and intentional violations); to constitutional v. Richardson for their treatment” that the defendants Goord, (2d Cir.2003) F.3d 435 suggest necessary “would be to establish that supervisory (concluding liability under liability.” First, Secretary while Rumsfeld shown, alia, § may be inter “cre- personally carry alleged did out the policy ation of a or custom that sanctioned plaintiffs’ violations of rights, amounting conduct to a constitutional vio- person- he alleged that lation, allowing policy such a or custom ally policies created the that authorized continue.”). led to their adequately torture. If pled, Second, stage sufficient at have adequately See, personal allege e.g., alleged involvement. Secretary Rumsfeld acted Centers, Inc., v. Doyle Camelot Care 305 with deliberate indifference by not ensur- (7th Cir.2002) (finding F.3d ing under that the detainees treated § 42 U.S.C. 1983 that allegations despite manner knowledge humane his agency’s person- most senior widespread officials were detainee mistreatment. See ally “responsible Farmer, policies, creating 511 U.S. at practices and customs that caused con- that it (concluding is sufficient if a plaintiff deprivations stitutional ... Eighth suffice at this bringing an claim Amendment stage litigation to demonstrate ... shows that “official acted or failed personal purported involvement in act despite knowledge [the] his of a substantial conduct”); harm”); unconstitutional Steidl Gayton McCoy, risk of serious (7th Cir.1998) Gramley, (7th Cir.2010) (citations F.3d (finding omitted) that a warden is liable for an (“Simply put, “not an official ‘must failure carry isolated of his subordinates both be aware of facts from which the prison policies, out however—unless the be inference could drawn that a substantial clear, Complaint we Secretary’s responsibilities To read the as as- executing it are serting arising claims the United under States evaluating Secretary's relevant in knowl- Constitution, Act, not the Detainee Treatment edge responsibility of and for the treatment of provide right which does not private for a detainees. action. Detainee Act and the Treatment exists, must threats excessive force or the denial of harm he risk of serious ”). plain- particular policy that inference.’ care to a also draw medical issued Secretary plausibly tiffs have Examining Rumsfeld. these on this responsibility personal Rumsfeld’s particular allegations part totality theory. allegations program and the for dealing harshly detainees, however, so we argu-
Finally,
reject
defendants’
we
sufficiently pled
think
survive
rest
“naked
claims
plaintiffs’
ment that
illegal
discovery
factu-
the motion to dismiss.
conduct without
With
assertions”
involved,
The defendants seek
development.
al
the identities of the individuals
*14
the plaintiffs’
in a
poke holes
number
expect plaintiffs to refine their
we
theories
argu-
we
not find their
allegations, but
do
concerning
their
allegations
and
defen-
convincing,
pleading
at least at
ments
responsibilities.
dants’ individual
12(b)(6).
Rule
The defen-
stage under
Finally,
a supervisor’s
while
mere
the plaintiffs’ only
that
“con-
argue
dants
“knowledge
acquiescence”
and
is not suffi
in-
about detention and
allegations”
crete
impose liability
Iqbal,
cient to
under
129
policies
to
that
terrogation policies relate
agree
S.Ct.
we
with the district
Iraq,'
to
citizens in
apply
did not
U.S.
even
that
documentation of detain
court
outside
case,
were,
any
rescinded before
and
abuse,
reports by
ee
such as
international
per-
were detained. We are not
plaintiffs
organizations, provides
support
some
for
argument. The
plaintiffs
suaded
plaintiffs’
plausibility
allegations.
Secretary
that
adequately alleged
have
Vance,
F.Supp.2d
964;
694
see also al-
responsible
creating pol-
Rumsfeld was
(9th
Ashcroft,
580
Kidd
F.3d
976
governed
icies that
the treatment
that,
Cir.2009) (finding
complaint alleges
conforming
not
Iraq
and for
detainees
support liability
it
might
facts
where
Iraq to
of the detainees in
the treatment
“
occurring
...
alleges
‘abuses
the Detainee Treatment Act.
media,
publicized in
highly
congres
persuaded by
are not
the defen-
We also
testimony and correspondence,
sional
that the Detainee Treat-
argument
dants’
reports by
in various
governmental
superseded
policies
de-
ment Act
entities,’
non-governmental
which could
Complaint.
argument
in the
This
scribed
given [the
have
sufficient notice
defendant]
point
the plaintiffs’
misunderstands
—that
require
supervise
affirmative
to
acts
continued to
Secretary
policies
Rumsfeld’s
subordinates”),
correct
actions
his
practices he
condone the unconstitutional
— U.S. —,
131
grounds,
rev’d on other
Congress
even after
allegedly
had
created
(2011).
1149
S.Ct.
L.Ed.2d
alle-
plaintiffs’
otherwise. The
mandated
sum,
plaintiffs
we
have
hold
suffi
secretly
Secretary
Rumsfeld
gation
and,
pled Secretary Rums
ciently
plausibly
permissible techniques
add
sought to
personal responsibility.
feld’s
after
Army
Field Manual
Act
the Detainee Treatment
passed
Qualified Immunity
B.
supports their broader alle-
plausible and
Secretary
Rumsfeld continued
gation
quali
now turn to whether
We
n
promote
condone unconstitutional
immunity protects
fied
Rums
It remains to be
treatment of detainees.
liability.
qualified immunity
from
feld
this,
prove
can
whether
seen
protects government officials
doctrine
yet.
they
not
done so
need
civil
insofar
liability
damages
“from
clearly
conduct does
es
their
.violate
argue
defendants also
statutory
rights
or
guards’
link
nothing
offer
tablished
custody.
while
person
of which a reasonable
would have
officials
in U.S.
On what
Fitzgerald,
known.” Harlow
U.S.
public
conceivable basis could U.S.
offi
800, 818,
The defendants defendants). their Complaint plaintiffs did not detail in have al- plaintiffs were sought leged denied sufficient details to conclude at this whether true, clothing that, Even if it stage warmer or blankets. of the if their proceedings necessary, actually treatment, was not the aggre- when considered in specified clothing bedding gate, violation amounted torture in single to each of them —a was available process.11 right to substantive due and a thin mat. The jumpsuit plastic de- were never Though Vance Ertel argue also did not fendants with, of, let charged alone convicted specify long they deprived how crime, concerning precedents our required That level of detail is not sleep. help guide abuse of convicted criminals our stage, reading but a fair this thinking about whether abuse sleep depriva- indicates that the Complaint right. violated a constitutional As the Su tion tactics were constant the dura- recently, preme “[p]rison Court concluded detention, physical tion of their was the dignity ers retain essence of human psychological by prison abuse officials. persons. inherent in all for that Respect dignity Eighth
As the animates the defendants acknowl Amendment edge, process prohibition a substantive inquiry pun due cruel and unusual appraisal totality “an requires of the ishment. The basic concept underlying rather than the Eighth nothing circumstances formalistic ex Amendment less Plata, of fixed than amination elements.” See Arm of man.” dignity Brown — (7th —, Squadrito, 1910, 1928, strong v. thought Complaint only Twombly, The district court decided not but also Erickson sufficient, Pardus, and so we. But do even if we (2007), inadequacy [Iqbal],” found some L.Ed.2d details of the and not- already pleading, through ing question detailed easy an is not "[t]his unusu- Swanson, ally answer”); vigorous Iqbal pleading extension of also F.3d *17 see 614 at 411 standard, (Posner, J., example, plaintiffs dissenting (noting would be en- part) opportunity titled an "opaque language” Supreme to to amend their Com- that the plaint remedy any perceived "plausibility” require- to defects. Basic used to establish ment). policy suggested, and the fairness liberal amendment As Professor Miller has rulings virtually under Federal Rule of Civil Procedure Rule "inconsistent on identical 15(a)(2) require given complaints may would that well be based on individual defects, opportunity they judges having quite subjective an to cure the if different views could, faith, delay, at least absent allegations plausible.” undue bad of what See Ar- motive, Miller, See, dilatory prejudice. Conley or Twombly undue thur R. From to 546, e.g., Stryker Corp., Iqbal: Play v. Bausch 630 F.3d A on Double the Federal Rules of (7th Cir.2010); Video, Procedure, 1, (2010) Beepers 562 Airborne & Civil 60 Duke LJ. 30-31 LLC, 663, Mobility Inc. & T (describing disarray among v. AT 499 F.3d "confusion and (7th Cir.2007). Supreme judges lawyers” Iqbal). applying 666 Court's re- and Rule Iqbal Twombly cent decisions in and 1 instructs courts construe rules to lawsuits, "just” created new uncertainties about the level of secure the determination of required pleadings general policy detail under the notice and there a of in favor allow- regime pleading ing parties of the Federal Rules of Civil to have their decided on cases Swierkiewicz, See, e.g., Procedure. Circuit and district courts have their merits. 534 U.S. 514, 992; yet boundary County a identified clear between 122 S.Ct. v. Christensen See, 454, Boone, (7th Cir.2007). e.g., what is sufficient and what is not. F.3d 458 483 N.A., 400, inadequate v. pleading Swanson Citibank A would 403 reversal for re- (7th Cir.2010) (observing quire opportunity courts defect that are "still cure the unless struggling” higher with "how it that the much the Su- were clear defect could not be bar, preme Court meant to set when it cured.
609
(2011)(citations omitted);
inhumane ones.”
permit
see
ther does
969
L.Ed.2d
102,
Farmer,
832,
Gamble,
97,
114
1970
97
511 U.S.
S.Ct.
v.
429 U.S.
Estelle
also
(1976) (conclud-
(citations omitted)
(noting
Eighth
251
50 L.Ed.2d
S.Ct.
prison
Eighth
requires
Amendment “embodies
officials
Amendment
ing that
dignity,
concepts
adequate
inmates
and idealistic
“ensure
receive
broad
standards, humanity,
decency
shelter,
care,
food, clothing,
and
and medical
civilized
penal
must evaluate
against
...
which we
...
‘take reasonable measures
(citations omitted).
measures”)
”).
It is im-
If
safety
of the inmates’
guarantee
con-
these fundamental
portant
keep
prison
had his head
prisoner
on
claims
in mind
focus
cepts
“walled,”
as we
or
repeatedly
covered
was
Prine,
F.3d
See
v.
620
us.
Forrest
before
into
way
on the
to interro-
slammed
walls
(7th Cir.2010)
(borrowing Eighth
744
sessions, we would have no trouble
gation
analyze pre-trial
standards
Amendment
well-pled allega-
that his
acknowledging
claim).
detainee’s
tions,
true,
if
would describe
violation
See,
rights.
e.g.,
his constitutional
Hud-
against
claims
Examining
plaintiffs’
McMillian,
v.
503 U.S.
112 S.Ct.
son
backdrop
deci
Court’s
(1992)
(concluding
117
156
L.Ed.2d
of confinement
prison
conditions
sions
the use
force
physical
of excessive
cases, we remember
prison treatment
may
a prisoner
constitute cruel
once
prisons
was
that abuse American
punishment
pris-
and unusual
even where
thought
part
as
and even
authorized
injured).
seriously
is not
oner
See, e.g.,
prisoners.
punishment
Pelzer,
730, 122
536 U.S.
S.Ct.
Hope v.
prisoner
kept
If a
much as
awake as
(2002) (detailing
2508,
Today, in prisoner the idea a (concluding that indif 285 deliberate a S.Ct. prison might be abused such a U.S. a medical needs states is ference serious judicial and not have recourse manner Amendment); Eighth under “does claim While the Constitution unthinkable. 469, Farnham, 394 F.3d 480-81 ... nei- Board v. prisons, mandate comfortable 610 Cir.2005) food,
(7th care, allegations clothing, of and medical a (holding reason- Secretary able official in objectively posi- Rumsfeld’s problems constitute seri- dental Amendment). tion 2006 would have known that this Eighth harm under the ous amounted to unconstitutional of case, treatment The in this detained without See, e.g., a civilian U.S. citizen detainee. charges, pled allegations have in detail of Farmer, 832, 1970; at 114 511 U.S. S.Ct. treatment, severe conditions and such Hudson, 4, 995; at 503 U.S. likes which courts have held unconstitu- Estelle, 104, 429 at 97 U.S. S.Ct. 285. Lest applied tional when convicted criminals there been might uncertainty have on prisons. allegations U.S. abuse point, had recently twice state claims for violations the constitu- expressly provided as much a as matter right deprived tional not to of liberty statutory law. Ronald Na- Reagan See W. process without substantive due law. tional Defense Authorization Act for Fiscal § Year 10 stat. note Rights Clearly 2. The U.S.C. Were Established § 1092 (stating military policy that U.S. qualified immunity, To decide we prohibits techniques violate the Con- next to the alleged rights turn whether stitution instructing Secretary De- clearly relevant, established. “The polices fense to ensure that are consistent dispositive inquiry determining whether obligations international laws right clearly a established is whether it States); the United Detainee Treatment be clear would to a reasonable officer that Act, § § 10 stat. U.S.C. note 1002 his conduct was in the unlawful situation (limiting interrogation techniques to those Haugen, he confronted.” Brosseau Manual). Army authorized Field 194, 199, S.Ct. 160 L.Ed.2d offer a argument defendants final (2004), Saucier, quoting sufficiently law was not developed 202, 121 question S.Ct. 2151. The with respect to the treatment of detainees whether reasonable official in in the context of detention for position Rumsfeld’s would known that adequately to allege the violation allegedly the conduct he authorized violat clearly of a right established constitutional ed Constitution of the United States. by Secretary Rumsfeld. The defendants This case pre is not a where the argue that appel cise violation previously must have been late struggled, courts “have and continue unlawful. held Where the constitutional struggle, precise with is patently violation obvious and the con contours in applicable the detention of clear, of the right sufficiently tours a con dividuals-—citizen non-citizen alike— trolling case point is not needed to foreign seized war zone.” On qualified defeat defense of immunity. point, however, only the defendants cite See, e.g., Hope, 536 U.S. S.Ct. cases involving procedural due process (reversing grant qualified immuni Geren, claims: Munaf v. ty prison prison officials who chained a (2008), L.Ed.2d Boume *19 post er to a for seven hours the hot Bush, 723, diene v. U.S. 553 128 S.Ct. sun); Moss, 836, 412 Nanda v. F.3d 844 2229, (2008), 41 171 L.Ed.2d v. Hamdi (7th Cir.2005). totality the Given of the Rumsfeld, 124 U.S. S.Ct. plaintiffs’ allegations, they that were inter (2004). procedural L.Ed.2d 578 Those rogated physical threats, with violence and undoubtedly issues are difficult. But kept in extremely were cold cells without shed no light useful how a reasonable adequate clothing, continuously were de federal might thought official have that the prived sleep, torture, often deprived permitted and were of Constitution him to or of, wrong, any a U.S. citizens for constitutional civilian U.S. authorize the to including torture and even cold-blooded ac- The defendants themselves citizen. murder, the zone. wrong if occurs in a war that, allega- knowledge properly pled, if any theory apply would to The defendants’ pro- due violations of substantive tions of official, very from the soldier federal cess, likes of which very of the chain of command to the top raised, to a constitutional would amount that disagree We and conclude bottom. sum, In a reasonable official violation. plaintiffs may proceed their Bi- in 2006 position Rumsfeld’s claims. vens right of a have realized that would be from tor- States citizen to free United the Bi- address first the nature of We own government at the hands of one’s ture remedy apply two-step and then vens “clearly a established” constitutional applied for process has techniques by alleged and that the right be deciding remedy when a Bivens should add torture. affirm up step We available. The first to consider deny court’s dismissal there is a sufficient “alternative decision whether district immunity. remedy” qualified based on Congress that intend- wrong indicating has Cit- Bivens Claims Civilian U.S.
C. supplant is no ed to Bivens. Here there Zone izens a War alternative, meaningful and the defendants argue step do not otherwise. The second can no doubt that if a federal There “special factors” is to consider whether official, officer, a even a tortured rem- weigh against recognition a Bivens States, in the the tortured United prisoner edy taking under In the circumstances. damages under Bi could prisoner sue key explain we step, this second Green, Carlson v. 446 U.S. vens. See plaintiffs’ claims are well es- elements (1980) (al L.Ed.2d 15 (a) Bivens: that civilian tablished under prison against officials lowing Bivens claim against military personnel per- are claims deliberately pris indifferent to who (b) missible; that claims based on abuse Saucier, needs); serious medical oner’s (c) are that prisoners permissible; (holding relationship be- governs Constitution quali was entitled to military police officer and their government tween U.S. citizens immunity claim for on civilian’sBivens fied (d) overseas; cur- claims force, suggesting excessive without per- rent and former cabinet officials In immunity might apply). any broader mitted. We then conclude that case, however, defendants assert this not indicated bar claims under has Bivens, immunity from suit under broad fact, Congress In these circumstances. nev that civilian citizens can claiming civil remedies provide has acted against any action pursue er govern- tortured aliens who are if the constitutional vio military personnel extraordinary It to find ments. would be review in a war zone. We lations occurred such for U.S. there no novo. Thomas question of law de See government. tortured their own citizens Corp., 288 Acceptance Motors General weigh taking step, then second we (7th Cir.2002); Wilson F.3d reject arguments the defendants’ (D.C.Cir.2008). Libby, F.3d support special authorities offered of de unprecedented breadth offi- government immunize rule would torture, be over argument liability should not for the fendants’ cials from Bivens *20 worse, that a of a in a war contend civilian U.S. citizen looked. defendants to remedy not available zone. should be Bivens
612 1871, “merely Passman, Rights precatory.”
Section 1 of the Civil
Act
Davis v.
228, 242,
2264,
442 U.S.
99 S.Ct.
1983,
§
60
42 U.S.C.
authorizes
codified as
(1979) (holding
L.Ed.2d 846
that congres-
gov-
civil
state
against
lawsuits
and local
employee
sional
could sue member of Con-
for the
deprivation
ernment officials
fed-
sex
gress
employment
for
discrimination
statutory rights.
eral
constitutional
of equal protection
violation
branch of
No analogous
broadly
statute
authorizes
Fifth Amendment
process right).12
due
similar
against
suits
federal officials. The
Bivens,
Supreme
recognized in
how-
Supreme
Court’s more recent
ever,
implied
that private citizens have an
Bivens decisions direct us to exercise cau
recognizing
tion in
Bivens remedies in
right
directly
of action
under
new
the Constitu-
provide
contexts. Bivens does not
an “au
damages against
tion to
federal
recover
tomatic entitlement”
a remedy
to
for a
officials for constitutional violations even
official,
by
constitutional violation
a federal
where
has not conferred such a
“any
freestanding damages remedy
Bivens,
right by
plaintiff
In
statute.
for a claimed constitutional violation has to
sued federal
enforcement
for
agents
law
represent
judgment
way
about
best
warrant,
searching
property
his
without a
implement
guarantee.”
constitutional
force,
using
arresting
him
excessive
Robbins,
537, 550,
v.
Wilkie
551 U.S.
127
probable
holding
without
cause.
2588,
(2007).
389
L.Ed.2d
We
agents
was entitled
sue the
have reminded
that Bivens is not
damages,
Supreme
Court observed
an
“gap-filler,
automatic
available whenev
federally protected rights
“where
plaintiff
er a
particular remedy
seeks a
invaded,
have been
it has been the rule
provided
regulation,
statute or
from
beginning
will
courts
for a constitutional violation
federal of
adjust
alert
their remedies so as to
Sherrod,
ficers.” Robinson v.
631 F.3d
grant
Bivens,
necessary
relief.”
(7th
839,
Cir.2011);
see also United
392,
1999,
U.S. at
91 S.Ct.
quoting Bell v.
Norwood,
(7th
830,
v.
States
F.3d
Hood,
678, 684,
773,
327 U.S.
66 S.Ct.
90 Cir.2010).
history,
Given this
as well as
(1946).
L.Ed. 939
“Historically, damages
gravity
us,
of the claims before
we
regarded
ordinary
been
as the
reme-
“proceed
cautiously”
determining
dy for
personal
invasion
interests
whether
allow
pur
Vance
Ertel to
liberty.”
395,
at
Id.
S.Ct. 1999. The
sue a cause of action under Bivens. See
Bivens designed
pre-
has been
Kindt,
(7th
Bagola
v.
Cir.1997).13
vent
rights
becoming
from
Bivens,
Long
12.
provid
pursuant
before
federal courts
seized
from
orders
President but
ed
statute).
remedies for federal officials’ violations of
in violation of
law,
post-de
federal
sought
and individuals
privation
against
remedies
federal officials
Some members of the
Court have
Wilkie,
Iqbal,
federal court. See
129 S.Ct.
said that Bivens is outdated.
551 U.S.
Munroe,
citing, e.g., Dunlop
(7
J.,
(Thomas,
11 U.S.
i. Affairs trust, grave and, we such rare —constitu- — Security National officials, by military wrongs tional argument The defendants’ fact, lawsuit be heard well after the stay military courts should out of affairs impinge inappropriately should not on mili- assumption plaintiffs rests tary decision-making. mounting challenge a broad to U.S. defendants raise concern that raising policy, and detention is- litigation plaintiffs’ claims “would security foreign sues national and even inevitably require judicial intrusion into actually relations. If seek- Wilson, security.” matters of national See ing general “military review of actions may F.3d at 710. This be a serious policies,” suggests, as the defense this concern, level, a very pragmatic but at present would case different issues. That (from years fact that classified information They what is not seek. are not ago) might implicated at point some challenging military pro- policymaking and litigation this allowing is not a bar to it to generally, ongoing military cedure nor an go stage. forward If classified only They challenge particu- action. problem, lar information becomes a the hands and direction of law *26 officials, military contrary U.S. to statuto- provides Judge tools to deal with it. As ry provisions military and stated policy, as Ashcroft, in Arar v. explained Calabresi the Bivens Allowing well as Constitution. the state-secrets is privilege appropri the liability in these unusual circumstances by ate tool protect which state secrets are courts, not sug- would make as defendants ed: a “Denying remedy because gest, “the military ultimate arbiters U.S. might state secrets be revealed is a bit like foreign policy.” denying a criminal trial fear that a
areWe
sensitive to the
con-
defendants’
juror might be intimidated:
it allows a
judiciary
cerns
should not inter-
risk,
already
pains
that the law is
at great
military
with
fere
decision-making. The
eliminate,
negate entirely
to
to
substantial
recognizes
“Constitution
that core strate-
rights and
at
procedures.” 585 F.3d
635
gic matters of warmaking” rest with the
(Calabresi, J.,
majori
dissenting). As the
Hamdi,
531,
Executive.
542
at
U.S.
Arar
ty in
acknowledged,
can —
“courts
S.Ct. 2633. But it is equally clear that with difficulty and resourcefulness —con
“[wjhile
respect
we accord
greatest
sider state secrets and even reexamine
judgments
and consideration to
mili-
judgments
in
foreign
made
affairs con
tary authorities
relating
matters
to the
must,
text when they
is,
that when there is
prosecution
war,
actual
of a
recognize
duty
an unflagging
jurisdic
to exercise our
scope
discretion necessari-
Id.
judiciary
tion.”
at 575-76. Fear of the
wide,
ly
infringe
not
on
does
the core
“intruding”
security
into national
should
military
role of the
for the courts to exer-
prevent
not
us from recognizing
cise their own time-honored and constitu-
stage,
at this
in this case.
tionally mandated roles of
reviewing
reviewing
Courts
claims of
535,
resolving claims.” Id. at
124 S.Ct.
violation of statutes such as the Detainee
Quirin,
2633;
parte
see also Ex
317 U.S.
(ac-
Act or in
1, 19,
(1942)
Treatment
violation of the Fifth
63 S.Ct.
Recent
key
is a
here as we
understanding
federal
zens
consideration
our
that
courts
whether a Bivens
weigh
may pro-
in
action
play
safeguarding
a role to
citizens’
telling"
argument
persua-
suggest
"it is
new contexts. The
is not
18. The defendants
that
corpus
rely
cases
on habeas
judicial
sive. Those
also involve some
cases
permitting
cases
Bivens claims in
rather than
inquiry
affecting national securi-
into matters
reviewing military
actions and
the context
Hamdi,
ty
military activity.
Munaf,
and
and
remedy
policies,
is
author-
because habeas
a
against
weigh
argument
thus
Boumediene
while
ized
statute and the Constitution
simply defer to executive
that the courts must
merely
judicially-created
a
alleged
involving
in a case
authorities
damages,
argues
what
defense
military custody.
a
in U.S.
of U.S. citizen
recognizing
against
claims in
presumption
tion,
As the
in
ceed.19
Reid concluded:
fact
that
counsels hesitation.”
out
“When the Government reaches
at
recently,
Id.
574. More
the D.C. Circuit
abroad,
punish
citizen
who is
the shield
Afghan
Iraqi
held
citizens who
Bill of
Rights
parts
which the
other
alleged
they
were tortured in U.S.
provide
protect
his
Constitution
life
custody in
pursue
those nations could not
liberty
away
should not be stripped
officials,
Bivens claims
includ-
just
he
happens
because
be in another
ing
Rumsfeld,
Rumsfeld. Ali
Reid,
land.”
(D.C.Cir.2011).20
rejecting the obvious
II,
(D.C.Cir.)
find
(relying on Rasul
foreign policy,
make
courts to
eral
Circuit’s conclusion
ing that
D.C.
“[t]he
a gen
“we think that as
explained:
court
special
that
factors counsel
danger
foreign
citizens’
matter the
eral
in
judiciary’s involvement
the treatment
in
such
using the courts
situations
binds this
detainees held
Guantanamo
policy
gov
our
foreign
obstruct the
creating
must
it from
sufficiently
acute that we
and forecloses
ernment
here”).
judgment
whether
leave to
Bivens
exist.” 770 F.2d
damage remedy should
Judge
reasoning
Brown’s
Rasul cannot
to bar claims
citizens
be extended
with, let
charged
who have not been
alone
reasoning
followed that
The D.C. Circuit
of, any
Myers,
activity.
530 convicted
terrorist
568 F.3d
Rasul
(Rasul
(D.C.Cir.2009)
II),
the court
where
recently,
Rumsfeld,
Ali v.
Most
plain
citizenship of the
the alien
relied on
II and
D.C. Circuit followed Rasul
San-
qualified
defendants
granting
tiffs in
Iraqi
to hold that
and Af-
chez-Espinoza
finding that
reasonable
immunity,
“[n]o
detained
in U.S. mili-
ghan citizens
abroad
would have been
government official
tary custody could
sue under Bivens
any Fifth
had
notice
[alien]
analysis
of torture. The court’s
for claims
Eighth Amendments
Amendment
empha-
under Bivens
“special
factors”
II
court found
rights.” Because
Rasul
plaintiffs’
as aliens. 649
sized the
status
immune from
defendants were
opin-
Circuit’s
F.3d at 769-75.
D.C.
suit,
issue
it reached the broader Bivens
Ali,
II,
Sanchez-Espino-
ions
Rasul
footnote, concluding in the
only in a
alter
reasoning
hint
za do not even
plaintiffs’
claims
native that
extend to bar Bivens claims
civil-
would
“special factors.” Id.
were foreclosed
5, citing Judge
prove
Brown’s concur
ian
citizens
can
that their
at 532 n.
who
Myers,
rence in Rasul
them.
government
own
tortured
I)
(Rasul
(concluding
special
672-73
out,
dissenting colleague points
As our
a Bivens claim in the
factors foreclose
special
overlap
there is some
factors
interrogation
of treatment and
context
analysis
applied
brought
the cases
—
detainees), vacated,
enemy combatant
Arar,
*29
by aliens in Ali and
all
whom
U.S. —,
Whether one or with procedural right by or Arar, however, enforceable law Ali we should not let any difficulty party in civil any proceeding.”). of those eases lead us to lose From fundamentally sight different situa- Congress’ close attention detainee treat- posed by tion the claims of civilian U.S. creating ment without civil right a of ac- in this case. These citizens tion, defendants infer a that Bivens reme- grave a breach our most basic dy is not appropriate here. compact the People” social “We —between disagree. We Bivens is a well-known government and the we created in our part legal landscape, signifi- so it is Constitution. As difficult as torture claims be, may repeat aliens cant that nothing Congress steps we has taken no Arar, in Ali opinions or or in Rasul a foreclose citizen’s use of Bivens. We can spinoza, II or Sanchez-E indicates that assume that Congress was aware that Bi- willing those courts were extend vens might apply when it legisla- enacted unprecedented immunity that defendants tion relevant to detainee treatment. In here, and the dissent advocate for claims fact, Congress when enacted the Detainee government that our tortured its own citi- Act, opted Treatment to regulate —not zens. prohibit damages claims mil- —civil itary officials torturing accused of aliens Congressional ii. Intent suspected of terrorism. Congress created The defendants argue do not that Con- good a faith defense in civil and criminal gress remedy” has created “alternative cases for who officials believed that their remedy. forecloses They Bivens actions legal authorized argue, though, that because has government: passed pieces numerous of legislation re- treatment, garding detainee none of which civil action or prosecu- criminal provide statutory private detainees officer, tion against an employee, mem- right action, the courts should not rec- Forces, ber of the Armed agent other ognize a for civilian U.S. of the United States Government [for citizens custody tortured in a engaging practices involving detention See, e.g., war zone. Ronald Reagan W. and interrogation of alien detainees sus- National Defense Authorization Act for pected of it shall terrorism] be defense Fiscal § Year 10 U.S.C. stat. officer, employee, such member 1092; § note Military Commissions Act Forces, the Armed agent or other did 109-366, Pub.L. No. 120 Stat. not know that practices were unlaw- 2241(e)(2). § codified at 28 U.S.C. ful person and a ordinary sense and Congress has also addressed detention understanding would prac- not know the standards a criminal statute without tices Nothing were unlawful.... in this for a providing private right civil of action. section shall be construed to limit or (a § See 10 person U.S.C. guilty of extinguish any defense or protection cruelty and maltreatment of person sub- otherwise any person available to or en- ject to his orders shall punished a *30 tity suit, from civil direct). liability, or criminal may court-martial Congress has damages, or provide immunity or to gone even so far as criminalize overseas torture, 2340A, § from prosecution any see 18 U.S.C. for explic- but criminal of- itly provided it that was not creating a new fense by proper authorities. 2000dd-l(a).21 rights, of of express regardless § tional law human This 42 U.S.C. by against parties.” civil claims of nationality limited defense but (2d a Cir.1980) terrorism is suspected (holding alien detainees that alien has not Congress strong indication Paraguay could sue victims torture judicial remedies that the door closed responsible Paraguayan official U.S. dis- available,” certainly for are “otherwise for trict court under Alien Tort Statute citizens, though it chose not to even U.S. nations); for violation of law of damages just what those remedies wrestle Alvarez-Machain, also see Sosa might be. U.S. L.Ed.2d to con- (2004) invitation Accepting defendants’ (describing history of the Alien Congressional indications sider other holding Tort that district Statute intent, powerful evidence we find other may recognize private causes of ac- courts heavily recognizing in favor of weighs na- tion some violations of the law of remedy Congress here. has en- judicial a tions). un- provide civil remedies acted laws relevant, though, is the Torture Most foreign who are law for citizens der U.S. Act of Pub.L. 102- Victim Protection governments. plain- The by their
tortured as a the Alien Tort codified note to Act tiffs cite the Torture Victim Protection 2(a) Statute, § 1350. Section U.S.C. Statute, Tort 28 U.S.C. and the Alien provides that Act a cause of action civil part Judiciary § which who, against a damages person “under ac- “Congress Act of to show that law, authority, or or apparent tual color people always stood the American nation,” subjects any another foreign torture, has Congress seen extrajudicial killing. person torture against officials of other nations litigation 2(b) requires U.S. courts decline Section Amer- important implement as an tool to hear such “if the claimant has not claims PI. foreign policy against torture.” ica’s adequate and available remedies exhausted Br. at has authorized 30. Where place” where the conduct occurred. by non-citizen victims tor- such claims Act, the Torture Victim Protection Under foreign governments, it would be by ture by her own if alien has been tortured not pro- if law did startling United States govern- government, foreign and if that judicial remedy for citizens vide a U.S. remedy, ment her a civil then has denied government. their alleging torture own against a U.S. court could hear the case It would be difficult to reconcile found in the It would be defendant U.S. tor prohibition against the law of nations’ extraordinary might say hypo- even —one remedies law ture and the United States United to refuse to critical—for the States gov tortured their provides aliens claims citizen hear similar provide not to ernments with decision government. of his against officials own if a civil citizen-plaintiffs these provides only And available de prove allegations. can remedy. so. As attempted fendants have do To anomalous result illustrate the Filartiga v. the Second Circuit held seek, possibility defendants consider the Pena-Irala, perpetrat “deliberate country enacted its own that another has authority violates color of official ed under law to the Torture Victim universally accepted norms of the interna- identical otherwise emphasize change in law that would the last sen- other defendants quoted passage, apply. in the indicates tence only Congress did not intend to make *31 defen- vens case law weighs If accepted allowing Act. we in favor of Protection - argument dants’ in this case and held citizens, plaintiffs, proceed available, is no then there civil they claims that while were U.S. “adequate no there would be and available military custody, they were tortured by place” remedies where conduct government officials. Our decision (a base). military If occurred U.S. Secre- today opens up the courts to other claims tary visiting Rumsfeld could be found such this, like hope expect we (so country with its own TVPA he could allegations of this will be nature exceed- process), be served with Vance and Ertel ingly holding rare. We make no broader could him country sue under its whether about other future claims about victim protection law because U.S. of government policy violations would be provide remedy. law would no That would cognizable under Bivens. very be a Surely odd result. A question difficult related is whether enacted Torture Victim Protection recognizing Bivens plaintiffs’ claim in Act would rather such claims special category this instance creates a U.S. officials heard U.S. courts.22 rights that would still be en- sum, In by we are not convinced and, so, in a forceable war zone if what the argument “special defendants’ fac- category. limits are of such a While the tors” preclude recognition of a Bivens plaintiffs example, are arguing, for remedy in A this case. of final couple Fifth Amendment process substantive due our Bivens concerns remain in analysis. rights apply to U.S. citizens by detained that, The argue defendants under zone, the U.S. in a appeal war plaintiffs’ approach, any military action presents no regarding issue the fact of could result in a Bivens claim if the action plaintiffs’ aspects detention some of that were characterized as a violation of some detention that passed would not have con- government policy. The defendants argue, stitutional if muster the detention had for example, that this could include a plain- subject been to civilian processes in the tiff seeking damages from the United States.23 air Defense strike in a location beyond The amicus brief Society Pro- congressional bounds of au- Journalists, Project fessional wage argument thorization to war. Gov- not convincing. Today only Oversight, we decide ernment and the Government question presented by Accountability Project narrow the extraor- in support dinary allegations now before us. The Bi- questions also raises important parts government 22. Other of our jurisdiction seem U.S. courts only criminal over Arar, agree, Judge pointed Parker out in extraterritorial acts torture. (Parker, J., dissenting). Department U.S. State has assured the United plaintiffs’ 23. The district court dismissed the Against Nations Committee Torture that the II, plaintiffs Counts II and III. In Count remedy is available to victims of tor- they procedural claimed that were denied due ture federal officials. United States Writ- specifically process, through the denial of a Questions Response ten Asked the Unit- detention, factual basis for their access to ¶ Torture, Against ed Nations Committee evidence, exculpatory opportunity and the 28, 2006), (Apr. http://www.state. available at appear impartial adjudicator. before an (last gov/g/drl/rls/68554.htm Aug. accessed III, Count contended that 2011). response This answer was in to a denied access court of law to chal- question only legisla- about the fact that the lenge their detention. These claims are not tion the United give States had enacted to before us. Against effect to the gave Convention Torture
625
citizens,
to
citizen-journal-
apply
we have tried
U.S.
remedies U.S.
about what
The concerns of
But
required
applying
zones.
caution
Bivens.
have in war
ists
that
in Kar.
In
required
opposing
manifest
also
from the
these amici were
caution is
to
case,
he went
alleges
citizen
that
long
a U.S.
perspective. Our courts have
histo
documentary
a historical
Iraq
make
years
ry
providing
than
—of
—more
authorities, and
film,
by Iraqi
arrested
rights
for those whose
damages remedies
to U.S. authorities
transferred
then was
government, including
our
are violated
two
Camp Cropper
at
and detained
at
military.
Iqbal, 129 S.Ct.
our
See
that
Although recognizing
months.
(7
Munroe, 11
Dunlop v.
U.S.
citing
“certainly
Fifth Amendments
Fourth and
Cranch)
(1812) (in
242, 268,
The district denied denying in No. 10-2442 dismissal decision possibility on the dismiss based claims under the personal property longer might no plaintiffs’ property Administrative Procedure Act is Reversed. field,” claim to “in and allowed the held discovery inquire into
proceed permit MANION, Judge, concurring Circuit in not find this present location. do its We dissenting part part. cited
reasoning cases persuasive. attention will be focused on the Much reasoning support court to this the district fact the court has sustained com- See, readily distinguishable. e.g., are all former-Secretary plaint alleging Rumsfeld, F.Supp.2d Doe v. responsible for personally Rumsfeld (D.D.C.2003) “military (finding that the au- torture of United States citizens. judicial not thority” exception prevent did However, significant impact the most American require of a decision to review holding is its extension Bi- the court’s States stationed within the United troops Agents vens v. Six Unknoum Named because to submit to anthrax vaccinations Narcotics, Bureau Federal authori- challenge “military not claims did (1971). 1999, 29 Spe- L.Ed.2d 619 ty field a time of war or exercised that a cifically, the court “Bivens holds territory”); occupied Rosner v. United for remedy,” implied causes of action States, 1217-18 F.Supp.2d rights have violations of constitutional (S.D.Fla.2002) in “an (allowing, abundance known, is available to United come to be caution,” discovery application on' the held alleging citizéns while States exception to the “military authority” in an military prison in an American active Army’s property seizure of United States requires law war zone. Present case Hungarian govern- expropriated by extending a II). very approach before cautious during World contrast ment War context, cases, into new and Bivens it is clear that Vance these many “special emphasizes allegations there are fronted with of constitutional particular present factors” context violations war zones refused that should us to hesitate and wait cause recognize a remedy. See Ali v. act. Because the court (D.C.Cir. Rumsfeld, 649 F.3d 772-73 has exercised that restraint in this 2011); Ashcroft, Arar case, I respectfully dissent. (2d Cir.2009). The court vaults over this and, ever, consensus the first time starters,
For
this case is not about con-
recognizes a
Bivens cause
action for
rights, against
stitutional
torture or other-
alleging
suits
constitutional violations
readily acknowledge
wise—the defendants
military personnel in an active war zone.
alleged by
plain-
the type
of abuse
I
sorting
dissent
out the appropri
*35
because
tiffs would raise serious
is-
ate
complex
perilous
remedies
this
Rather,
sues.
this case centers on the
role,
Congress’s
arena is
not the courts’.1
appropriate remedies for that abuse and
who must decide what those
will
remedies
explaining
Before
the particulars
my
of
by allegations
be. Confronted
as horrible
disagreement
court,
impor-
it
is
case,
as those
in this
it
described
is under-
questions
tant to stress the proper
before
standable that
the court concludes that
Otherwise,
the court.
given
severity
of
remedy
plain-
there must be a
for these
allegations
controversy
and the
sur-
But that
tiffs.
concern
should
enable
rounding
policies
military
underlying
decades,
this court to create new law. For
case,
getting
this
we risk
sidetracked.
Supreme
has
Court
cautioned that
What we are asked to decide
simply
is
such decisions should
Congress,
be left to
who—the
or
courts
de-
—should
especially where there are “special factors
cide whether
will
the courts
review consti-
counseling hesitation in the
absence
af-
against military
tutional claims
personnel
firmative
Congress.”
action
Wilkie v.
zone,
in an
arise
active war
under
Robbins,
537, 550,
2588,
551 U.S.
127 S.Ct.
what
parameters
conditions and
that re-
(2007);
also,
ditional
causes of action.
In line L.Ed.2d
adopted
it
a
with this presumption, both
con-
two-part
circuits
test to determine whether to ex-
however,
concur,
particular
I
in the court’s dismissal
federal officials are entitled to ei-
plaintiffs' property
pursuant
of the
claims
qualified immunity
ther absolute or
are en-
military authority exception
to the Admin-
tirely
questions.
“Immunity”
distinct
is in-
istrative Procedure Act.
suit,
an
deed
issue elsewhere in this
see infra
primarily
note
the issue before us is
2. The court's rhetorical dissection of "immu-
implied
whether or not
there
is
Bivens
obscures,
clarifies,
nity”
rather
than
an al-
ready
directly
cause of action
complex
confusing
under
Constitu-
issue. Whether
a
remedy
Bivens
is available and whether
tion.
authority of
upon
context.
intrude
the Execu
implied actions into
new
tend
First,
security
tive in
and national
af
alternative
adequate
if there are
Dep’t Navy
Egan,
remedies,
implied
for an
fairs.”
there
no need
second,
518, 530,
if
ly, fraud et corruption among Plaintiffs- American Appellees/Cross-Appellants, workers in a war zone is rare. These and common robbery crimes of and assault can land an American brig civilian CICERO, ILLINOIS, OF TOWN military supervision. under The volumi- Defendant-Appellant/Cross- litigation by prisoners nous in our domes- Appellee, tic prisons possibility evidence the of “well the pleaded complaints” under
framework Americans who tor- claim Peslak, Dino Vitalo William and other ture cruel and unusual treat- Defendants-Appellees. being in ment while held prison 08-2467, Nos. 08-2595. in war zone. potentially Which thousands of wartime claims from Ameri- Appeals, United States Court of (or others) employees can of contractors Seventh Circuit. will the court entertain under this new Argued Feb. 2010. cause action? Future courts should not put have to the lid back on Pandora’s Box. Aug. Decided reasons, For these I dissent from the
court’s decision allow the con- proceed.6
stitutional claims I concur court’s dismissal plaintiffs’ Ad-
ministrative Procedure Act claims. *39 I also have serious reservations about other the New York actually Times that does not aspects opinion, of the court's especially support plaintiffs' its Secretary claims holding may Rumsfeld approved be held Rumsfeld the continued use personally alleged liable for techniques question actions of his via confidential adden- plaintiffs’ allegations. subordinates under the Army dum to the Field Manual. The article The court identifies two bases for Sec- states neither that the confidential addendum retary personal responsibility Rumsfeld's approved techniques, nor that the adden- —his actual interrogation authorization of abusive approved. dum was ever The second set of techniques allege they allegations may greater time plausibility, tortured, and his opinion deliberate indifference explain why court's does not knowledge in the ongoing face of predicates abusive for deliberate indifference in the detainees, including (far treatment of Americans. context removed from the usual allegations first entirely context) set of specula- prison sufficiently clearly estab- purported single tive. The basis is a qualified article lished immunity. as to defeat