*1 Immigration and appellant arguments, makes other Naturaliza and/or Agents, way which are related in one tion Service most of James W. Ziglar, formerly arguments to his discussed above. another Commissioner meritless, Immigration arguments are These other Naturalization Ser vices, States, It reject Defendants-Ap them out of hand. suffices we United pellees. say supports that the record conclusion drugs during sold the offense No. Docket 06-4216-cv. drugs and the and cash seized conviction of a part single
were course continuous United of Appeals, States Court See, Sklar, activity. e.g., drug-trafficking Second Circuit. Gooden, 111; United States v. In Banc Dec. Rehearing: (8th Cir.1989). It fol- F.2d clearly lows that the court did not district Decided: Nov. err in de- formulating relevant conduct termination. go
We need no further. For the reasons above, we affirm the
elucidated sentence
imposed by the court. district
Affirmed. ARAR, Plaintiff-Appellant,
Maher ASHCROFT, Attorney
John General of States, Larry Thomp D. United
son, formerly Acting Attorney Deputy
General, Ridge, Secretary Tom Security,
Homeland J. Black Scott
man, formerly Regional Director Regional Immigration Office of Services,
and Naturalization Paula
Corrigan, Regional Director Immi
gration Enforcement, and Customs McElroy, Formerly
Edward J. District Immigration
Director of and Natural
ization Services New Dis York
trict, Enforcement, and now Customs Mueller,
Robert Director of the Feder Investigation,
al Bureau of John Doe
1-10, Investigation Federal Bureau of *3 (Maria LaHood,
David Cole Couri Jules Lobel, Gallagher, brief), Katherine on the Center Rights, for Constitutional New York, (on NY; brief), Joshua S. Sohn LLP, York, NY, DLA Piper U.S. New for Plaintiff-Appellant. Cohn, F. Deputy
Jonathan At- Assistant torney Katsas, (Gregory General G. Assis- Attorney General; tant Benton Camp- J. bell, Attorney; Larry United States Lee Plaintiff-Appel- Judges support Sher, Bar- eral C. R. Dennis Gregg, Joseph Attorneys; lant. States United ghaan, Assistant Mason, Brum- Jeremy S. Mary Hampton Morawetz, University York New Nancy Justice, below, Civil Department of U.S. York, NY, Amici Law, for New School Branch; L. Her- Division, Barbara Torts support Plain- Law Professors Curiae Abate, Loeb, Michael Robert M.
wig, tiff-Appellant. Justice, Division, Ap- Civil Department Yanos, Bruckhaus Freshfields Alexander brief), Defendant- Staff, on the pellate NY, LLP, York, New Deringer Ashcroft, capaci- the official John Appellee *4 support in Trust Amicus Curiae Redress and the United ty Defendants-Appellees, Plaintiff-Appellant. States. (John Cassidy, Jeremy A. Lamken J. JACOBS, Judge, Chief Before Nathanson, on J. Kilberg, Paul S. Jamie McLaughlin,* **§calabresi,** L.L.P., brief), Washington Botts Baker POOLER, CABRANES, SACK,** (on brief), D.C.; Braga L. Stephen PARKER,** RAGGI, SOTOMAYOR,*** D.C., L.L.P., Washington Gray & Ropes LIVINGSTON, WESLEY, HALL, and Thomp- Larry D. Defendant-Appellee for KATZMANN, Judges. Circuit Circuit son. or part took in consideration Judge, no Goldfaden, Lib- Civil L. American Robin of the case. decision Foundation, Immigrants’ erties Union CA, Francisco, for Project, San Rights JACOBS, C.J., majority opinion filed Un- Liberties
Amici Curiae American Civil McLaughlin, cabranes, in which in Union ion and New York Civil Liberties HALL, RAGGI, WESLEY, and Plaintiff-Appellant. support of LIVINGSTON, JJ., joined. NY, Neuborne, York, Am- Burt New for J., SACK, dissenting in opinion filed Dorsen, Hersh-
ici Helen Curiae Norman CALABRESI, POOLER, and which Neuborne, Michelman, koff, Frank Burt PARKER, JJ., joined. in of Plain- Shapiro, support and David L. tiff-Appellant. PARKER, J., dissenting opinion filed a CALABRESI, POOLER, and Leeuw, Ho, in which
Michael B. De Dale E. Jona- JJ., SACK, joined. Fried, Frank, Harris, Smith, Shri- than J. NY, LLP, York, for
ver & Jacobson
New
POOLER, J.,
opinion
a dissenting
filed
Defense
&
Legal
Amicus Curiae NAACP
CALABRESI, SACK,
in which
and
Fund,
Plain-
Inc. in
support
Educational
PARKER, JJ., joined.
tiff-Appellant.
J.,
Rosdeitcher,
CALABRESI,
dissenting
Paul, Weiss, Rif-
filed
Sidney S.
POOLER, SACK,
LLP,
kind,
opinion
New
which
& Garrison
Wharton
PARKER, JJ., joined.
York, NY,
Fed-
for Amici Curiae Retired
*
proceedings,
partici-
are entitled to
Judge McLaughlin
a mem-
of in banc
Senior
was
Circuit
46(c)(2).
§
pursuant
three-judge
pate
heard
U.S.C.
panel
ber
the initial
partici-
appeal
eligible to
and is therefore
***
Sotomayor,
was
who
The Honorable Sonia
pate
rehearing.
See 28 U.S.C.
en banc
panel
the in
originally a
banc
member
46(c)(1).
§
argument, was ele-
participated in oral
who
**
Calabresi, Sack,
August
Court on
Judges
vated to
Senior Circuit
during
course
who
senior status
assumed
JACOBS,
Judge:
DENNIS
panel dissenting.
Chief
Id.
Court
voted to
appeal
rehear the
in banc.
now af-
We
a judgment
Maher Arar
appeals
firm.
Court
the United States District
/.)
District
(Trager,
Eastern
of New York
have no
affirming
We
trouble
the dis-
dismissing
complaint against
his
the Attor-
trict court’s
conclusions
Arar suffi-
States,
ney
ciently alleged personal
of the United
jurisdiction
General
Sec-
over
retary
it,
of Homeland
Security,
challenged
Director
the defendants who
and that
Federal Bureau of Investigation,
standing
Arar lacks
declaratory
to seek
others, including
immigration
senior
relief. We
qualified
do
reach issues of
alleges
immunity
officials. Arar
that he was de-
privilege.
the state secrets
Kennedy
TVPA,
while
changing planes
tained
agree
As to
we
with the unani-
(based
Airport
warning
position
New York
panel
mous
that Arar insuf-
ficiently pleaded
from Canadian authorities that he was a
alleged
that the
conduct
Qaeda),
of A1
member
mistreated
of United States officials was done under
days
twelve
while United States custo-
of foreign
agree
color
law. We
with the
*5
dy,
Syria
and then removed to
via Jordan
district
court
that Arar
insufficiently
pursuant
inter-governmental
to an
pleaded
regarding
under-
his claim
detention in
standing
States,
that he would
detained
ruling
and the United
a
that has been
interrogated
by Syrian
by
under torture
offi-
reinforced
the subsequent authority of
complaint alleges
cials. The
a violation of
Corp.
Bell Atlantic
v. Twombly, 550 U.S.
the Torture
Protection
Victim
Act
The district court dismissed the com- To decide the Bivens we must (with plaint only re-plead leave to as to the determine whether claims invoke and, of context; so, conditions detention in the in a United Bivens new if wheth- and his States access to counsel and the er an alternative remedial scheme was (in during Arar, period) timely courts and Arar available to or whether the ab- (without amend). appealed undertaking to of affirmative Congress) sence “ action ” Ashcroft, F.Supp.2d Arar v. ‘special factors ] hesitation.’ counsel[ (E.D.N.Y.2006). three-judge panel Robbins, A of 537, 550, See Wilkie (1) unanimously (2007) this that: Court held personal jurisdiction Lucas, District Court had (quoting Bush v. (2) Ashcroft, Mueller; (1983)). Thompson,
over and L.Ed.2d 648 Arar failed to a opinion state claim under the This holds that ren- “extraordinary TVPA; and Arar claims, failed establish dition” is a context new to Bivens subject jurisdiction matter over re- any categorical ruling his but avoids on alter- quest a declaratory for judgment. Arar native remedies —because the dominant (2d Cir.2008). that, Ashcroft, holding opinion F.3d 157 A of this in the con- rendition, of panel also extraordinary dismissed Arar’s text of hesitation claims, with one of by special member is warranted factors. there- We in the (The suffered context created harms “rendition” and its affirm. term fore rendition, and discussed ere- usages extraordinary are defined must be related of margin.1) in the alone has the by Congress, which ated parameters, to set competence institutional judicial preclude ruling does Our relief, harbors, specify and delineate safe context. But oversight this review legislate on this Congress If chooses to damages is to be remedy if a civil transfer, without formal "[t]he rendition” as "rendition” refers to transfer term trial, person of charges, approval, or from court a fugitive a from one state to another or being Law country suspected supporter Dic a or one another. Black's terrorist 2004) (9th (defining "rendi tionary group foreign ed. for im a terrorist nation fugitive interrogation tion” return of from one prisonment "[t]he as on behalf of fugitive nation”). where the is accused state to state transferring As we understand crime”); see here, convicted of a also or was “extraordinary the term rendition” use LaFave, Wayne A not, R. Search and itself, Seizure: imply subject does 1.9(c) § on the Fourth Amendment Treatise extraordinary rendition will be treated ("[[Interstate pro specifically rendition[] during alleges after he was treated States Constitution. vided for United alleged in action. the rendition clause, implement In order rendition Department State The United States Act, Congress the Federal Rendition enacted that, "ren- records between 1993 and requires demanding pro state which obtaining provided the dition” means copy duce of an indictment found or an 'a suspected custody terrorists and "ex- of ten magistrate made affidavit before suspects. applied to four tradition” another charging person Territory, State de State, Dep’t of Patterns Global See U.S. treason, having committed felo manded *6 2001, App. Extraditions and Terrorism D: crime, ny, by or other certified as authentic ” States. Renditions of Terrorists to the United (footnotes omitted)). governor.’ the In the suspected Accordingly, ter- the rendition of context, a "extradition” is "dis international outside the mechanisms established rorists [coun tinct of in which "one form rendition” by extraordi- extradition treaties —so-called try] person surrenders a within its territorial employed a nary been as rendition —had [country] jurisdiction requesting to a via combating nearly a of for means terrorists legal process, by typically established formal prior giving to this decade to the events rise Cong. treaty between the Re countries.” III, Legal Serv., litigation. Bellinger Imposed Renditions: search Constraints John.B. State, Adviser, Dep't of Letter to the (2009); U.S. by Op on Torture 1 see also Laws Editor, J., (dis- July (9th Wall at St. A25 penheim’s §§ International Law 415-16 1996). cussing suspected the of terrorists Although renditions ed. most international rendi Mir to the treaty, Ramzi Yousef and Aimal Kansi tions a formal extradition occur under the of Illich Ra- scope the of United States and rendition renditions also occur outside Sanchez, treaties, of also as "Carlos extradition often a matter inter mirez known Jackal,” by comity. supra, the Su- Oppenheim, See 1 French authorities from national 1; France, 416; Serv., subsequently up- Cong. supra, § at to "which was see dan Research 3181(b) (permitting, European § Hu- U.S.C. held Commission on also 18 "in Rights”), Digest persons, reprinted United comity, of the surrender of man exercise of citizens, nationals, permanent Law 162-63 other than or States Practice International States, ed., 2006); (Sally Cummings Re- who have com J. see also residents United Rice, against Sec’y of of of mitted crimes violence nationals of marks Condoleezza ("For decades, (Dec. 5, 2005) foreign the Unit- countries without State United States in regard treaty have ed States and other countries 'ren- to the existence extra used suspects foreign government”). transport to terrorist from with such The ditions' dition " country 'irregular they captured were where terms rendition’ and 'extraordi country nary home to other countries have been to refer to the their or rendition’ used held, they extrajudicial questioned, can be person of a from one where transfer Serv., Digest brought justice.”), United [country] Cong. to another.” Research 1; Law supra, Dictionary in International see also Law States Practice Black's ed., 2005). (9th 2009) “extraordinary (Sally Cummings (defining ed. J. judicial later, subject, legis- nearby. then review of such About two hours Arar was fingerprinted lation his bags would available. and searched. Be- 4 p.m. p.m., tween Arar was inter- our Applying understanding agent viewed an from the Federal Bu- create, precedent, Court we decline (“FBI”), reau of Investigation who asked own, our new against cause action alia) {inter relationships about his employees gov- officers and of the federal certain suspected individuals who were Rather, that, ernment. we conclude when terrorist ties. Arar admitted knowing at presents a case “special intractable them, least one of being but denied here, see factors” apparent infra member of a terrorist group. Following is for the Executive the first instance to interview, the FBI Arar questioned by was to implement extraordinary decide how an official from Immigration and Na- rendition, and for the elected members (“INS”) tionalization Service three Congress not for us as judges —and —to hours; more he deny continued to terror- decide an whether individual seek ist affiliations. compensation from government officers Arar spent night alone in room at employees directly, gov- or from the airport. next morning (Septem- ernment, for a constitutional violation. 27) ber he questioned by was FBI agents past present Administrations have re- approximately 9 a.m. until 2 p.m.; rendition, right served to employ see agents him asked about Osama Bin Says Johnston, Rendition David Laden, Palestine, Iraq, and other things. Continue, but with Oversight, More N.Y. evening, That an given was opportu- Times, Aug. withstanding nity Syria. return voluntarily to He debate, prolonged Congress public has not refused, torture, citing a fear of and asked prohibited practice, imposed limits on to go instead to Canada or Switzerland. use, or created a cause of action evening, Later that he was transferred to allege those who have suffered consti- the Metropolitan Detention Center injury consequence. tutional as a *7 (“MDC”) Brooklyn, in he where remained until October 8. I On October the INS initiated removal complaint following Arar’s forth sets the proceedings, and served Arar with a docu- factual allegations. stating ment that he was inadmissible be- cause he to a belonged organiza- terrorist Syria, Arar a dual citizen of he where day, tion. Later that he his called mother- raised, Canada, was born and and of to in prior requests in-law Ottawa—his to family which immigrated his when was he place lawyer calls speak and to a having ignored. been denied or family His re- While on vacation in Tunisia in Septem- a lawyer represent tained to him and con- ber Arar was back in called to work the tacted Canadian in Consulate New Montreal. His called in itinerary stops for York. Zurich New and York. A Canadian consular official visited Arar Kennedy Arar Airport landed around on October 3. The next day, immigration noon September on 26. Between planes, officers asked Arar to in designate writing presented Arar country his Canadian to passport the to which he want would to be who, an immigration official checking designated after removed. He Canada. On the credentials, evening Arar’s asked Arar wait Arar met October with his Amman, D.C., and then to Washington, evening, a Sun- following attorney. The by INS arrived in Amman questioned he again Arar When day, was Jordan. District Director The INS he handed over to Jordani- officials. was October message on left a voicemail roughly York New treated him an authorities who attorney Arar’s that phone office custody him to then delivered and the attor- place, but would take interview officials, him at a detained Syrian who in time to message ney not receive did Arar Intelligence facility. Military Syrian that chose not Arar told she was attend. ten Syria year, the first for was attorney following, days attend. in an feet underground cell six months information Arar’s about false given was three, interro- high. and feet He was seven whereabouts. arrival days for on his gated twelve 8, 2002, Arar that learned October on his On and in that was beaten Syria, period (1) ordered his removal INS had: two- back with a hips, and lower palms, (2) finding that (required) Syria, made with bare inch-thick electric cable and Ar- be consistent with removal would such that alleges States hands. United Against Torture ticle 3 Convention Syria him to conspired to send officials re- (“CAT”),2 him from and barred torture, interrogation under purpose years. States for five entering United from interrogations directed the and to the United was found inadmissible He by providing Syria Arar’s dos- abroad basis of 8 U.S.C. on the States sier, Syrians dictating questions 1182(a)(3)(B)(i)(V), provides which § him, learned receiving intelligence and ask a member of a terrorist any alien who “is the interviews. to the United is inadmissible organization” 20, 2002, Embassy October Canadian On finding The was based on States. Syria to Arar’s inquired of officials suspected with a terrorist association Syria next con- day, (classified) Thereafter, whereabouts. information. other in its firmed to Canada that Arar was Blackman, Re- J. an INS Defendant Scott day, interrogation Director, custody; same made determination gional however, a mem- clearly unequivocally Syria, Arar was ceased. Arar remained Qaeda A1 and inadmissible to of- receiving ber visits from Canadian consular A “Final of Inad- States. Notice United Arar defied August ficials. On missibility,” signed dated October telling captors by his Canadians Deputy Attorney General by Defendant confined he had been tortured was *8 Thompson, stated that Arar’s re- Larry later, days underground cell. Five a small Syria be to would consistent moval confession that he had signing after CAT, notwithstanding Arar’s articulat- the Arar in Afghanistan, trained as terrorist of torture. ed fear Octo- moved various locations. On was to 5, 2003, cus- to the Arar was released Arar was to New ber day, Later that taken in jet tody embassy in to of a official Jersey, flew a small Canadian whence he including, where Against relevant 3 of Convention Torture all considerations 2. Article the party to Convention "prohibits state the State con- applicable, the existence in returning extraditing any expelling, or gross, pattern fla- cerned of consistent are sub- person to another State where there rights.” grant or mass violations human grounds believing that he would stantial INS, Cir.2006) (2d v. 445 F.3d Tun torture, subjected danger being in to marks, brackets, (internal ellip- quotation and wheth- provides that the determination of and omitted). sis grounds into account [must take] er such exist Damascus, and was to Four, flown Ottawa the elected not to re-plead Count day. next and on August the district court judgment entered dismissing all Arar’s II timely claims. Arar appealed. A divided three-judge panel of January this Court On Arar filed a four- affirmed on Ashcroft, June 2008. Arar in complaint count the Eastern District of (2d Cir.2008). F.3d 157 The Court seeking damages New York from federal voted banc, to rehear argu- the case in and oral officials for harms a result suffered as ment was heard on his and in December detention confinement United States his detention and inter- Syria. rogation Count One of Arar’s III complaint seeks relief under Torture We review de novo the district (“TVPA”), Victim Protection Act court’s to grant decision a motion to dis (a)(1) (the § 1350 U.S.C. note “TVPA miss. Specialists re NYSE Sec. Litig., claim”). Counts Two and Three seek re- (2d Cir.2007). 503 F.3d In so doing, lief under Fifth Amendment we accept allegations as true the factual (Count alleged Syria torture in complaint, and construe all reasonable Two) (Count his there detention inferences can be drawn from the Three). Four relief Count seeks under complaint light most favorable to the the Fifth Amendment for Arar’s detention plaintiff. v. Jennings, Roth 489 F.3d prior the United States to his removal (2d Cir.2007); see also Conyers Ros Syria. to Arar also a declaratory seeks sides, 137, 143(2d Cir.2009).
judgment that defendants’ conduct violat- civil, “constitutional, ed his and human outset, (as At the we panel conclude rights.” (1) unanimously) concluded that Arar: suf- Defendants-Appellees ficiently alleged personal jurisdiction moved dismiss over defendants, pursuant complaint to Federal Rule standing no 12(b), declaratory relief; addition, seek challenging personal Civil Procedure be- jurisdiction Ashcroft, over cause we Defendants dismiss action for the reasons (and not) below, set forth Thompson, and Mueller and we need challenging do subject-matter jurisdiction reach the of qualified immunity as to the issues claims alleging privilege. confinement the state Syria and torture secrets ground arise from an opinion This panel owes a debt subject order of removal and therefore opinions. jurisdictional Immigration bar of the (see VI). Nationality Act Part It infra IV argued was also that Arar standing lacked declaratory judgment. seek a The TVPA creates a cause of action for February 16, 2006, who, On the district damages against any court “individual un- *9 Two, One, dismissed Counts and Three der actual apparent authority, or or color law, with prejudice, and Count Four without of any foreign subjects nation ... prejudice. Ashcroft, Arar v. an § 414 individual to torture.” 28 U.S.C. 1350 250, (E.D.N.Y.2006). (a)(1). F.Supp.2d 287-88 note complaint Count One of Arar’s alleges conspired The district court also concluded that Arar that the defendants standing Syrian bring lacked a claim Jordanian and have declar- officials to atory relief. Id. at 258-59. tortured in direct violation of the TVPA. 568 Cir.1997) (6th 863, (emphasis F.3d 866 under 123
Any allegation arising original). requires a demonstration TVPA foreign color of under acted defendants to state a claim under Accordingly, authority. v. Ka law, Kadic or under its allege TVPA, adequately Arar must (2d Cir.1995). “In radzic, 232, 245 un possessed power that the defendants law,’ ... ‘color of construing the term[ ] law, offending and that Syrian der juris look ... are instructed to (i.e., courts Syria removal to actions torture) § Id. under 42 U.S.C. 1983....” derived from an exer prudence subsequent 367, 2d or that defendants Cong., power, of that No. 102d cise (citing H.R.Rep. culpable their not have undertaken (1991) could Sess., in 1992 reprinted at 5 complaint power. absent actions such 1983, 87). 84, Under section U.S.C.C.A.N. ar allegation. no Arar has contains such acting under traditional definition “[t]he allegation conspiracy that his gued the defen requires law color of state But any deficiency under the TVPA. cures power ‘possessed ... have exercised dant conspiracy allegation is that United possible and made by virtue of state law encouraged and facilitated officials States clothed with only wrongdoer because by Syrians Syria, power the exercise of At authority law.’” v. of state West had or that the States officials not United kins, 101 108 Syrian under power authority or exercised States (quoting United L.Ed.2d alleged are to have law. The defendants Classic, v. federal, Syrian, under acted color (1941)). The L.Ed. 1368 determination law, and to acted accordance with have party acts under as to whether a non-state policies pursuit federal alleged intensely requires of state law an color government in the aims of the federal by rigid cri fact-specific judgment unaided most, At it is al international context. may particular as to whether conduct teria encouraged or leged the defendants fairly to the state. See attributed be offi by foreign conduct solicited certain Secondary Sch. v. Tenn. Brentwood Acad. to es Such conduct is insufficient cials. Ass’n, 288, 295, 121 S.Ct. Athletic in some that the defendants were tablish A federal authority Syrian way clothed with awith officer conspires officer who state may law or that their conduct otherwise law, see act color of state under See, Syria. e.g., Har fairly attributable to Leeds, Care v. Beechwood Restorative Ctr. 19, 42-43 Hayden, F.Supp.2d bury (2d Cir.2006); since F.3d but (D.D.C.2006), grounds, on other aff'd color typically officials act under (D.C.Cir.2008). “federal therefore We F.3d law,” rarely deemed holding "with unanimous of the agree federal law. have acted under color of state the District dis panel affirm Court’s Shalala, claim.3 ex missal TVPA Strickland rel. Strickland "facilitated],” duties, “encourage[d],” Judge on a of section official POOLER relies line Id. private the mistreatment. explaining "solicited]” cases when and how action, re- Notably, authority no for this can and then she cites conduct constitute state proposition, render which would analogy to deem the defendants' markable reasons foreign govern- official of under U.S. official an conduct in this case to have arisen foreign Judge when deals with state foreign (Syrian) ment she law. See Dissent of military, Judge involving intelligence, theory, matters Under this Pooler 627-28. person diplomatic At one commen- affairs. least allow tortured POOLER would legislative amendment to proposed to sue of the United States tator abroad an official *10 Judge bring the line with what government, performance of her law into who in the
569
personally
were
involved in
Y
the claimed
Blum,
constitutional violation. See Ellis
complaint alleg
Four of the
Count
(2d
Cir.1981);
F.2d
643
85
see also
of confinement in the
es that the conditions
(2d
Ashcroft,
Thomas v.
F.3d
to
(prior to Arar’s removal
United States
Cir.2006).
Syria),
the denial of access to courts
and
detention,
sub
violated Arar’s
during
alleges
that “Defendants” —undif-
process
under
Fifth
rights
stantive due
ferentiated —“denied Mr. Arar
ac-
effective
The District
dis
Amendment.
Court
assistance,
courts,
cess to consular
his
prejudice
this claim—without
missed
—as
lawyers,
family
members”
order to
insufficiently pleaded,
Arar to
and invited
his
Syria.
effectuate
removal to
But he
claim in
to “articulate
re-plead the
order
specify
culpable
any
fails to
action taken
precisely
judicial
more
relief he was
defendant,
any single
does
to
those
denied” and
“name
defendants
allege
“meeting
that a
minds”
al
personally
involved in the
were
plausible conspiracy
requires.
claim
He
Arar,
leged unconstitutional
treatment.”
(in
voice)
alleges
passive
requests
that his
F.Supp.2d
at
287. Arar elected
phone
to make
“were ignored,”
calls
(in
words) to
his counsel’s
“stand on the
that “he was told” that he was not entitled
allegations
original complaint.”
his
lawyer,
to a
but he fails to link these
defendant,
any
dismiss,
denials
named or un-
On motion
courts
omission,
Given
named.
this
view
“enough
require
facts to state a claim to
rejection
an opportunity
Arar’s
to re-
plausible
relief that
on its face.”. Twom
we
plead,
agree with the
Court
1955;
District
bly,
see
—
panel majority
and the
that this Count of
U.S. -,
v. Iqbal,
also
Ashcroft
complaint
must be dismissed.
1949-50,
allegations
“Factual
must be
express no
sufficiency
We
view as to the
raise a
enough
right
relief above the
otherwise,
is,
pleading
of the
that whether
”
speculative
Twombly,
level....
U.S.
(if
alleged
plausibly
the conduct
attribut-
allegations
(2d Cir.2003) (internal quotation marks VI omitted) (addressing conspiracy un claims 1985). Furthermore, § der 42 U.S.C. claims relief remaining seek plaintiff in a required Bivens action is to the Syria, basis torture and detention in allege indicating facts that the defendants and are cast as violations of substantive is, not, therefore, panel’s POOLER thinks it or should be. See Rich- needWe consider the Tort, Seamon, Henry ard Torture as a holding that Arar failed "to that he establish (2006) ("Under Rutgers L.J. possessed pre-removal entitlement to a law, current can held officials seldom be hearing” or "to the assistance of counsel.”
civilly
Congress
liable for torture....
could
Arar,
571 equal giving judicially-created force to aliens who seek admis- rise to a remedy to aliens country stemming directly sion to our whom the from Constitution keep 397, out of our government seeks to coun- itself. Id. at 91 S.Ct. try. purpose The Bivens reme short, In clear that the is not INA’s dy “is to deter federal individual officers
judicial provisions govern review circum- from committing constitutional violations.” involuntary rendition stances of such as Malesko, 70, 122 534 atU.S. S.Ct. 515. So Indeed, alleged those here. rendition brought against Bivens action is individ place take in that in way circumstances no uals, any damages payable by laws, implicate immigration United States Green, offending officers. v. Carlson 446 such as person when a detained abroad 14, 21, 1468, U.S. 100 64 S.Ct. L.Ed.2d 15 country. third rendered to some (1980). Notwithstanding the potential
Finally,
jurisdictional
INA’s
even if the
breadth of claims that would serve that
bar is
review not
surmounted and
foreclos- objective,
Supreme
Court has warned
ed, Arar has
alleged circumstances
remedy
the Bivens
is an extraordi
him
prevented
obtaining
would have
nary thing
rarely
if
should
ever be
If,
alleges,
review.
as he
he was served
applied
Malesko,
in “new contexts.” See
with the removal order while he was al-
(internal
69,
534
at
U.S.
In need not decide we a Bivens action is a judicially question vexed of whether the INA bar remedy created ... proceed courts cau jurisdiction defeats of Arar’s substantive tiously in extending implied such relief claims, ----”). process due because we conclude Bivens, In years the 38 since below that the must be dismissed at case Supreme only: Court has extended it twice the threshold for reasons. other in employment the context of an discrimi nation claim in violation the Due Pro
VII
Passman,
Clause,
cess
442
Davis v.
U.S.
228,
2264,
(1979);
99
Bivens v. Six Unknown Named
S.Ct.
L.Ed.2d 846
60
Narcotics,
Agents
Bureau
and in
an Eighth
Federal
the context of
Amend
388,
1999,
officials, Carlson,
403
29
U.S.
L.Ed.2d 619 ment violation
prison
(1971),
“recognized
15;
446
Supreme
Court
U.S.
S.Ct.
L.Ed.2d
Robbins,
private
implied
first time an
action for
see also
Wilkie v.
2588, 168
damages against
alleged
officers
federal
S.Ct.
L.Ed.2d 389
(“[I]n
have violated a citizen’s constitutional
most
have
instances we
found a Bi
rights.”
Malesko,
Malesko,
Corp.
remedy unjustified.”);
Corr. Servs.
vens
(“[W]e
61, 66, 122
515, 151
L.Ed.2d U.S. at
FDIC
the context as
Once we have identified
(1994);
996,
claims
308
127 L.Ed.2d
“new,”
to recog-
we
whether
must decide
operating un
against
corporations
private
remedy
in that environment
nize Bivens
contracts, Malesko, 534 U.S.
der federal
of fact
Court tells
and law.
(2001);
61,
L.Ed.2d
S.Ct.
two-part inquiry.
us that
order
this is
officials
and
of retaliation
federal
claims
recognize a Bi-
to determine whether to
landowners, Wilkie, 551
against private
context,
remedy in a new
we must
vens
562, 127
U.S. at
is an alternative
consider: whether there
plaintiff;
us
to the
requires
case
to examine
remedial scheme available
This
“
pro
this Bivens action to
factors
allowing
‘special
counsel[ ]
whether
and whether
”
“con
creating
remedy.
ceed
extend Bivens
a new
a Bivens
would
hesitation’
in
text,”
so,
Wilkie,
if whether such an extension
and
At a
VIII
other
analogized
can be
some
claim
afforded,
action
claim
a Bivens
for which
possible
There
alternative
are several
just
sufficiently high
partic-
level of
as at a
Congress
remedial schemes here.
has es-
points
has
of distinc-
ularity, every case
substantial,
comprehensive,
tablished a
tion.
the word “context” as
construe
We
scheme
the con-
and intricate remedial
commonly
in law:
to reflect
used
provides
The INA
immigration.
text
recurring
that has
potentially
scenario
removal, in-
review final orders of
components.
factual
legal
similar
cluding
desig-
government’s
review of the
country
nation of
destination
particular
of this case is international
The context
(albeit
all)
many
decisions
rendition,
“extraordinary ren-
specifically,
Attorney
Secretary
General and
Extraordinary
is treat-
dition.”
rendition
1252;
Security.
§
Homeland
See 8 U.S.C.
in interna-
phenomenon
ed as a distinct
(2d
Indeed,
Filip,
Mendis v.
supra
tional
note
law
law. See
Cir.2009).
supplemented
has
Congress
affirmatively
advocate
review articles
remedy
general
specific
remedial scheme
of a
in cases like
creation
contexts
enact-
“extraordinary
guidance
particular
rendition”
recognize
(i)
Reform and
See,
Johnston,
Foreign Affairs
ing
e.g.,
as
context.
Peter
(“FARRA”),
Note,
Act of 1998
Restructuring
Leaving the Invisible Universe:
note;
§
also 8
U.S.C.
see
C.F.R.
Why
Extraordinary Rendi-
All Victims of
(ii)
TVPA, which,
208.16(c);
§
Against
tion
Action
Need a Cause of
discussed,
States,
already
remedy
no
Pol’y
provides
&
16 J.L.
United
time,
Arar. At the same
Congress has
IX
expressly limited
review the removal of
When the Bivens cause of action was
(like Arar)
aliens who
are removable for
created
the Supreme Court ex
reasons related to national security. See 8
plained that such a remedy could be af
1225(c).
§
Congress
U.S.C.
also regu
forded because that “case
no
involve[d]
larly modified the various review mecha
special factors counselling
hesitation
nisms to account for perceived difficulties
absence of affirmative action by Con
See,
complications.
e.g.,
REAL ID
Bivens,
gress.”
109-13,
B,
Act of
Pub.L. No.
div.
*14
1999. This prudential
limitation was ex
302; Illegal
119 Stat.
Immigration Reform
pressly weighed by
Davis,
the Court in
Immigrant Responsibility
1996,
and
Act of
245-46,
442 U.S. at
99 S.Ct.
104-208,
C,
Pub.L. No.
div.
110 Stat. 3009-
Carlson,
18-19,
446
U.S. at
100 S.Ct.
light
complexity
of the
and such hesitation has defeated numerous
remedial
Congress
scheme
has created
initiatives, see,
Bivens
e.g., Stanley, 483
(and
amended),
frequently
we would ordi
683-84,
3054;
U.S. at
107 S.Ct.
Chappell,
narily
strong
draw a
inference that Con
2362;
462
at
Wilkie,
U.S.
103 S.Ct.
gress
judiciary
stay
intended the
554-55,
2588;
U.S.
127 S.Ct.
Dot
hand and refrain from creating a Bivens
son,
end duty jurisdiction. to exercise ging practiced The rendition Executive stop, full pause, Hesitation Extraordinary since at 1995. See least abstention; and to is not or an counsel Policy: Rendition in Counterterrorism “Hesitation” is “coun- require. Impact on Transatlantic Relations: thoughtful seled” whenever discretion *15 the on Hearing Joint Before Subcomm. even to consider.7 pause would Organizations, International Human mind, in ad- principles With we these Rights, Oversight and the Subcomm. Comm, duce, one, special that bear one factors Europe Foreign H. on of the remedy of a upon recognition (statement the (2007) Affairs, Cong. 15 110th for rendition. Scheuer, Chief, Bin of Michael F. Former CIA). Unit, gives
Laden
“the mid-
inception
the
1990s” as the date for
of the
X
Syria
was sent
policy under which he
this action
cast
Although
is
PL Maher Arar’s Mem. of Law
torture.
terms
for money damages
of a claim
Invocation of
Opp’n to Defs.’
the State
against the defendants in their individual
2005,
14,
A
Privilege,
Secrets
Mar.
at 6.
capacities,
operates
it
as a constitutional
remedy
seeking
damages
against
suit
policies promulgated by
challenge
implement
poli-
senior officials who
such a
system
executive. Our federal
of checks
cy
against
a suit
respects
critical
provides
and balances
means to consider
government
government as to which
allegedly
policy,
unconstitutional executive
sovereign immunity.
has not waived
Such
money damages
private
but
action
government
unavoidably
a suit
influences
against
policymakers
not one
individual
secrets,
policy, probes government
invades
action
of them. A Bivens
is sometimes
interests,
government
enmeshes govern-
analogized
pursuant
an action
to 42
thereby elicits
lawyers,
govern-
ment
§
not
far
U.S.C.
but
does
reach so
(Canada has
ment funds for settlement.
as to
to an
counterpart
create the federal
million.8)
already paid Arar $10
Department
action under Monell v.
So
of
Services,
say
It is a
understatement
cial
substantial
S.Ct.
(1978). Here,
extending
that one
hesitate before
L.Ed.2d 611
we need not
must
Announcement,
Judge
principles
Ste-
labels these two
8. See Press Release
Pooler
(Jan.
phen Harper,
Minister of Can.
"dicta,”
Prime
Judge
of
see Dissent
Pooler at
2007),
http://pm.gc.ca/eng/media.asp?id=
They
integral
but
are not.
to the
1510;
$10M Settlement with
Ottawa Reaches
case,
holding
we do
in this in banc
because
Arar,
News,
http://www.
Jan.
CBC
countervailing
factors and
take account
cbc.ca/canada/story/2007/01/25/arar-harper.
apply
because we
the standard we announce.
html.
A
seeking
Bivens into such context.
suit
This “hesita[tion]” and “reluctan[ce]” is
remedy
damages
against
by:
senior officials counseled
an
implement
extraordinary
who
rendition
(cid:127)
separation
the constitutional
powers
would
the courts
policy
ineluctably
enmesh
among
government,
the branches of
in an
validity
assessment of the
and ratio-
see United States v. Curtiss-Wright
policy
implementation
nale of that
and its
Co.,
Exp.
320-22 [57
case,
particular
in this
matters that direct-
S.Ct.
81 L.Ed.
(noting
255]
ly
significant diplomatic
affect
and national
“plenary
power
and exclusive
security
It
concerns.
is clear from the
the President as the
organ
sole
complaint
explicitly
face
that Arar
federal
in the field of in-
targets
“policy”
extraordinary
rendi-
ternational
discussing
relations” and
tion;
policy
he cites the
twice in his com-
presented by
difficulties
congres-
plaint, and submits documents and media
judicial
sional-let alone
—involvement
reports concerning
practice.
His claim
affairs),
in such
proceed
inquiry
cannot
without
into the
(cid:127)
the limited institutional competence of
perceived
policy,
need for the
the threats
judiciary,
Bush,
see Boumediene v.
it responds,
to which
the substance and
[- U.S. -]
2276-
intelligence
sources
used to formu-
(2008) (“Unlike
it,
L.Ed.2d
[171
41]
propriety
late
and the
of adopting spe-
designated
President and some
responses
cific
particular
light
threats
Congress,
Members of
apparent
neither
geopolitical circumstances and
*16
Members of this Court nor
foreign
our relations with
countries.
most feder
judges
al
begin
day
with briefings
Supreme
expressly
Court has
coun
describe new and serious
touching upon foreign
seled
matters
threats to our Nation and
people.
its
policy
security
and national
fall within “an
The law must accord the Executive
area of
‘in
executive action
which courts
authority
apprehend
substantial
to
and
”
long
have
been hesitant
to intrude’
ab
pose
detain those who
a real danger to
congressional
sent
authorization. Lincoln
security.”);
our
see also
v.
Munaf
182, 192,
Vigil,
2024,
v.
508 U.S.
Geren,
U.S.
128
[—
-]
S.Ct.
(1993)
added)
124
(emphasis
L.Ed.2d 101
(2008) (“The
2226 [171 L.Ed.2d
Ju
1]
Massachusetts,
(quoting Franklin v.
505
diciary is not
to
suited
determi
[make]
U.S.
120 L.Ed.2d
foreign
nations
the area of
[in
affairs]
(1992) (Stevens, /.,
concurring
part
that would ... undermine the Govern
concurring
judgment)).
and
It “has
ability
speak
ment’s
with one voice
recognized
generally accepted
‘the
view
contrast,
in this area.
political
foreign policy
the province
was
and
are well
branches
situated to consider
Thus,
responsibility of the Executive....
issues,
foreign policy
sensitive
such as
Congress specifically
unless
provided
has
whether there is a serious prospect of
otherwise,
traditionally
courts
have been
torture at the
any ally,
hands of
upon
reluctant
authority
intrude
of
(cita
what to do about it if there is.”
in military
the Executive
and national se
omitted)).
tion
”
curity
Dep’t Navy
Egan,
affairs.’
v.
of
529-30,
True,
difficulty
S.Ct.
courts can—with
and re-
added)
L.Ed.2d
(emphasis
sourcefulness —consider state secrets and
(quoting Haig Agee,
judgments
293- even reexamine
made in the
(1981)).
must,
foreign
S.Ct.
affairs context when
diplomatic,
foreign
countries
duty
agencies
is,
unflagging
is an
that when there
intelligence
issues. The sen-
security,
jurisdiction.
our
Otherwise:
exercise
classified material are
sitivities of such
foreign
affairs
special needs
[T]he
enlarged
call for
discus-
“too obvious to
stay our hand
the creation
must
Navy, 484
Dep’t
sion.”
military
against
damage remedies
(internal
marks omit-
quotation
un-
allegedly
officials for
foreign policy
ted).
probing
Even the
of these matters
foreign
treatment of
sub-
constitutional
countries will
the risk
other
entails
for-
jects causing injury abroad. The
with the
willing
cooperate
less
become
as
eign
implications
affairs
of suits such
sharing intelligence
re-
States
United
ability to
ignored'
this cannot be
—their
core,”
“At
to counter terrorism.
sources
produce
what the
Court
observed,
panel opinion
“this suit
as the
in another context “embarrass-
called
alleged
arises from the Executive Branch’s
abroad”
government
ment
of our
(a)
determination that
Arar was affiliated
through
pronouncements
“multifarious
Qaeda,
AI
and therefore
threat
ques-
by
departments
various
on one
(b)
security,
national
his removal to
liti-
present
tion.”
or not the
Whether
light
dip-
Syria
appropriate
was
is motivated
considerations of
gation
security
and national
interests.”
lomatic
harm,
personal
than
geopolitics rather
Arar,
other
connection with
through
government
rass our
inadvertent
Syria
to
determination that
removal
disclosure of
deliberate
information
would be consistent with Article 3
harmful
to our own and other states.11
General,
Inspector
Dep’t
of
of
CAT. Office
authority
general
Given the
allocation of
(Unclassified)
Sec.,
The Remov-
Homeland
foreign
political
relations
to the
over
Syria
al
a Canadian Citizen
of
decidedly
experi
branches and the
limited
(2008).10
unique
This case is not
26-27
judicia
knowledge
ence and
federal
context of ex-
respect. Cases
matters,
ry regarding such
such an investi
traordinary
very likely
rendition
gation
implicate grave
would also
concerns
present
questions relating
pri-
serious
separation
powers
about the
and our
diplomatic
foreign
vate
assurances from
See,
competence.
e.g., Kiyem
institutional
officials,
by federal
countries received
(D.C.Cir.
Obama,
ba v.
opens
this feature of such claims
the door
2009) (“[Sjeparation
powers principles
graymail.
...
preclude the courts from second-
guessing the Executive’s assessment of the
A. Assurances
by
likelihood a detainee will be tortured
regulations promulgated pursuant
foreign sovereign.”). These considerations
FARRA explicitly
to the
authorize the re-
strongly counsel hesitation in acknowl
foreign country
moval of an alien to a
remedy in
edging a Bivens
this context.
country
following receipt from that
of suf-
ficiently reliable assurances that the alien
Graymail
B.
will not be tortured.
See 8 C.F.R.
above,
emphasized
As
Arar invokes Bi-
208.18(c).
§
we decide to extend
Should
challenge policies promulgated
vens to
extraordinary
Bivens into the
rendition
branch,
pursued
the executive
not sim-
context, resolution of these actions will ply isolated actions of individual federal
require
us to determine whether
such employees. Such an extension of Bivens is
country
assurances were received from the
precedent
implicates questions
without
of rendition and whether the relevant de-
separation
powers
as well as sover-
upon
good
fendants relied
them in
faith in
This,
itself,
eign immunity.
counsels
removing the alien at issue.
hesitation;
there is further reason to hesi-
Any analysis
questions
of these
would
where,
case,
challenged
tate
necessarily
inquiry
involve us
an
into
government policies
subject
are the
governments
the work of foreign
and sev-
a possibility
classified communications:
agencies,
eral federal
the nature of certain
that such suits will make the
information,
i.e.,
classified
‘graymail,’
and the extent of
“vulnerable to
individual
diplomatic
secret
An
relationships.
brought
[govern-
inves-
to induce the
lawsuits
(or
tigation
prevent
into the existence and content of
filing)
ment]
settle
ease
Sattar,
10. We take
(S.D.N.Y.
judicial
F.Supp.2d
notice of the existence
States
*19
report
scope
2005)
this unclassified
and the
of its
(denying attorney Lynne Stewart’s mo
contents,
including the limited discussion of
judgment
acquittal following
tion for a
her
only
assurances. Notice
taken
that
of,
alia,
by
jury
conspiring
conviction
a
inter
received,
report alleges that assurances were
States, conspiring
to defraud the United
to
allegation
not as to the truth of that
or the
provide
support
carry
material
out murder
reliability of those assurances.
kidnap
country,
foreign
making
in
a
statements).
false
necessarily
by
11. This risk is not
abated
See,
undertakings
e.g.,
of counsel.
United
until
any
litigate
government
effort to
dants
cries uncle.
out of fear
would reveal classified information
any
action
action involving
Thus
Bivens
extraor-
ongoing
opera-
undermine
covert
dinary
inevitably
rendition would
suck the
tions,”
compromise foreign
otherwise
or
government
protect
into the case to
Doe,
Tenet v.
policy efforts.
interests,
considerable
and—if disclosure
1230,
The risk of individual officers” extracting payment in factor which counsels hesitation creat- Malesko, wrongdoers. individual ing remedy. a Bivens There would be at gov- S.Ct. 515. When enough ordinary graymail hesitation an elects to ernment settle a Bivens case ie., case, employed where the tactic is susceptible graymail, which is the indi- which can trade against government, (or wrongdoer pays nothing vidual and the settlement cash the dismissal of crimi- Tenet, Second, deterrent effect is lost. charges) secrecy. nal See the indi- 1230; Pappas, at 94 vidual defendant in such a case has no graymail But the in a F.3d 799. risk discovery imperils incentive to resist uniquely case is trouble- interests; Bivens rendition government rather, discovery protecting military, The interest in some. government induces the settle. So diplomatic, intelligence secrets is lo- context, extraordinary rendition there (as always) government; yet a cated (or likelihood) govern- risk that the claim, definition, plead- is never effectively ment becomes the real defen- See, against government. e.g., ed interest, dant in and the named defendants Malesko, proxies become that the can- case, in a Bivens there is a dissociation So Precisely control. because Bivens has between the holder of the non-disclosure approved never been as Monell-like vehi- (the which cannot government, interest for challenging government policies, cle Bivens) directly per- under and the sued this factor also counsels hesitation in ex- (the son with the incentive disclose de- tending private damages action waive, fendant, who cannot but will be context.12 assessed). any damages hable for In a end, case, Bivens action based on plaintiff rendition the Bivens could pressure effect the individual defen- rendition is—in all but name—a claim bargain. prospect graymail Judge Calabresi does not discount the risk does not harm, graymail; just he minimizes Judge pause induce CALABRESI to because equating pressures it with settlement that rou- graymail part "judicial he sees struc- tinely litigation. inhere in section 1983 How- giving compensa- tures facilitate art, ever, ''graymail'' signifying is a term of tion, at least to innocent victims....” military intelligence the use of information Judge Calabresi at 638-39. Dissent *20 hostage payment money plea as or ly, questions government.13 It is not for would raise as to what against (the duty passengers not is owed to the other and nothing government, that Canada it) the crew. paid an officer of Arar individual $10
million dollars. suspected Or should a terrorist en route to Canada have been released on the Ca-
XII nadian which he border —over could re- virtually the small number of contexts which enter United States will? remedy, it implied courts have Bivens should he have sent Or been back whence easy came, identify has often been both the his or to plane country? some third line between constitutional and unconstitu- governments Should those be told that conduct, so, tional and the alternative course he If Canada thinks terrorist? pursued. country which officers should have what him? would take guard prisoner who beat a should not have suspected Or should the terrorist have him; agent who with- beaten searched Bay been sent to Guantanamo or—if no one; gotten out a warrant should have and country kept other would take him— subjected immigration officer who an prospect United States with the of release multiple strip alien to searches without into general population? Zadvy cause should have left the alien in his Davis, 678, 699-700, das v. may may clothes. This distinction not 150 L.Ed.2d653 special counseling amount to a factor hesi- say extraordinary None of this is to implication tation of a reme- policy rendition is or should be a favored dy. surely But it is remarkable that the time, choice. At the same the officials extraordinary context of rendition is so required to decide these vexed issues are different, involving as it a complex does “subject pull to the of competing obli- rapidly changing legal and framework be- Whitman, gations.” Lombardi 485 F.3d legal judgments set with critical that have (2d Cir.2007). Many viable actions made, yet been policy as well as they might consider “clash with other easily choices that are no means equally important governmental responsi- reached. DePrisco, bilities.” Pena v. Consider: should the officers here have (2d Cir.2005) (internal quotation marks go way let Arar on his flight board his omitted). ample Given the reasons for evidently to Montreal? Canada was un- pause discussed, already we need not and him; was, all, willing to receive it after rely do not on this consideration in con- Canadian authorities who identified Arar cluding inappropriate that it is to extend (or something terrorist did that led Still, Congress Bivens to this context. government apologize publicly their to the appropriate branch of million). him pay $10 (if any) decide under what circumstances a person
Should
identified as a terrorist
policy
these kinds of
decisions—which are
country
directly
security
his own
be allowed to board his
popu-
related to the
plane
go on
foreign
to his destination? Sure-
lation and the
affairs of the coun-
that,
telling
according
Deputy
Transcript
Argument
It is
to the
of Arar In banc Oral
General,
Attorney
(Oct.
Cong.
Assistant
Mr. Arar and his
Rec. D1384-02
Cf.
Jaffe,
2007);
attorney
Congress
Congress
went to the United States
Matthew
Hears Testi-
Case,
News,
requested
mony
success—that
in Arar
ABC
Torture
Oct.
—without
"clarify
ambiguity
legis-
http://abcnews.go.com/Politics/
[in
area]
give
reparations.”
story?id=3746371
...
&page=l.
[Mr.
lation and
Arar]
*21
subjected
Congress. Congress may
to the influence
elsewhere:
try
be
—should
by aliens.
litigation brought
be content
for the Executive Branch to
powers
judicial
exercise
these
without
XIII
Congress
But if
check.
wishes to create a
factors notwithstand-
special
All of these
Arar,
remedy for individuals like
it can
that,
panel
as the
ing,
ignore
we cannot
legislation
enact
that includes enumerated
it,
long history of
put
“there is a
dissent
eligibility parameters, delineated safe har-
Legisla-
judicial review of Executive and
bors,
processes,
specif-
defined review
and
related to the conduct of
tive decisions
Congress
ic relief to be afforded. Once
security.”
national
foreign relations and
then task,
performed this
courts
Arar,
(Sack,concurring
14. Dissents
[,]”
602; and,
dissenting opinions
the law. These
are not
id. at
“We
we
share what
think
passages
and
that are emotion-
contain words
majority’s
to be the
intuition that this case
view)
(in
overwrought.
respectful
al and
our
likely
largely,
entirely,
would
turn
if not
Accordingly,
need for extended
there is no
security
diplomacy
decisions of national
engagement.
survey will
A brief
suffice.
[,]”
at
...
id.
Judge
deems "artificial” our
Sack's dissent
Judge
urges
dissent
that we for-
Calabresi's
characterization of the new Bivens context in
considering
go
specific
whether
factors coun-
"entirely
this case as
rendition,
one of 'international
sel hesitation under Bivens so that we could
specifically extraordinary rendi-
instead remand to see whether
the case
”
Judge
at
We
tion.’ See Dissent of
Sack
might eventually
unmanage-
be
dismissed
thought
would have
would be common
privilege
able under the state secrets
—which
ground
appeal
ex-
that the context of this
Judge
equally
disapprove.
seems
Calabresi
however,
traordinary
Judge
rendition.
Sack,
(state
Judge
at 637
See Dissent
Calabresi
context,
points
at some
char-
reconceives
privilege
subject
"significant
is the
secrets
acterizing the constitutional
tort as encom-
criticism,
warranted”).
much of it
Thus
passing only those events that occurred with-
Judge
professes
hesitance to "hesi-
Calabresi
points
in the
States while at other
United
Bivens,
respect
skep-
tate” with
as well as
requiring that the entire narrative be consid-
privilege.
ticism of the state
In do-
secrets
whole,
Syria.
ered as a seamless
JFK to
so,
ing
fully endorsing
he avoids
either of the
Compare id. at
with id. at 595-96. But
primary potential
appeal,
resolutions of this
emphatically
obviously
this case is
about
so,
hardly
makes a choice at all. Even
(and
extraordinary
alleged
rendition
authority
by Judge
cited
which
Calabresi,
abuse),
acknowledged
as is elsewhere
suggests deciding whether a claim is stated
opinions
Judge
Judge
Calabresi
Parker.
doing
analysis,
inapposite.
before
638;
Judge
See Dissent of
Calabresi
Dissent
Judge
that-appli-
fails to consider
Calabresi
Judge
Parker at 611.
privilege
is often
cation of
state secrets
context,
extraordinary
As to the
rendition
performed witness-by-witness; question-by-
dissenters)
(joined
Judge Sack
all
makes
question; page-by-page; paragraph-by-para-
(and telling)
following
con-
constructive
graph
years.
judicial
can take
It is not
deny the
cessions: "It is difficult to
existence
—and
requiring
activism to hesitate before
such an
'special
counseling
factors
hesitation’ in
601;
case[,]”
exercise in circumstances in which Bivens
Judge
"It
Dissent of
Sack
event,
may
against
claim
not lie.
the state
that to the extent actions
...
separation
'policymakers’
equated
has roots in
can be
with lawsuits
secrets doctrine
*22
in
analysis, upon
the Court’s Bivens
CONCLUSION
nigh
INA’s remedial scheme and the well
above,
judg-
For the reasons stated
executive
power
unlimited
the INA
ment of the District Court
is affirmed.
bestows,
supra
Compare
see
at 572.
Arar
hereby
panel opinion
The
vacated.
Ashcroft,
v.
532 F.3d
169-71 & n.
(2d Cir.2008) (“Arar
Op.”).
179-81
Panel
CALABRESI, POOLER, SACK, and
PARKER,
Judges, dissent.
Circuit
In its
departure
panel
second
from the
joins fully
dissenting
Each
in all the
decision, the Court declines to hold that
opinions,
separately
em-
but each writes
if,
alleges, government
as Arar
conduct
phasize particular aspects of these dis-
“denied
[him] effective access
consular
sents.
assistance,
courts,
lawyers,
his
and
family
in
members
order to effectuate his
SACK,
Judge, joined by Judges
Circuit
Syria,”
removal
Arar’s constitutional
PARKER,
CALABRESI, POOLER, and
rights
thereby
would not have
been violat-
in
concurring
part
dissenting
part.
and
(internal
Supra
quotation
ed.
at 569
opinion
majority1
The
of the en banc
omitted); compare
marks
Op.,
Panel
departs
opinion
panel
from the
ma-
agree
And even were (or likely manner which that result will to be the en appears what disagree with not) will be reached. We fear banc majority’s whether a new test for majority is so bound and determined Bivens action should be made available: there is no Bi- categorically declare existence vel non “special factors “context,” in that it we think vens First, present action counselling hesitation.” unnecessarily law. makes dubious relating factors” to secre- heeding “special dissent”). ("Arar See, part) partial panel ing et e.g., Op., F.3d at 193 Arar Panel J., (Sack, concurring part and seq. dissent- reasons, respectfully September For those we dis- while vacationing Tunisia, family with sent.3 his he was called employer5 back to work his to consult prospective purchased client. He I. Allegations stops6 return ticket to Montreal with facts, majority’s recitation of the see Zurich and New York. He left Tunisia on 563-66, accurate, supra generally but (Id.) September anodyne. A complete assessment of the September On Arar arrived majority opinion and implications from Switzerland at JFK to catch a con- possible Court’s decision is not without necting flight to Montreal. Upon present- *24 a troubling allegations fuller account of the ing passport his to an immigration inspec- in complaint. contained Arar’s tor, he subject was identified as “the of a ... being lookout as a member of a known appeal “Because this is an from a dis- organization.” terrorist D Compl. Ex. complaint missal of a under Fed.R.Civ.P. (Decision Blackman, of J. Scott Regional 12(b)(6), allegations we view the Director) at 2. He interrogated by was complaint light most favorable to approximately various officials for eight appellant.” Paycom Billing Servs. v. hours.7 The officials asked Arar if he had Int’l, Inc., Mastercard contacts with groups, terrorist which he (2d Cir.2006). The district opinion court’s categorically denied. Arar was then trans- carefully fully and sets forth allega- Arar’s ported JFK, to another site at where he tions. See Arar v. Ashcroft, F.Supp.2d placed was in solitary confinement. He (E.D.N.Y.2006). 250, 252-57 We adhere to alleges that he transported was in chains nearly that account verbatim.4 and shackles and was left in a room with lights no bed and with throughout Detention, A. Apprehension, and (Arar, 253.) night. F.Supp.2d at Transportation Syria Forcible following day, starting approxi- Arar, thirties, who is his mately a.m., is a native of 9:00 two FBI agents interro- Syria. immigrated He gated to Canada with his hours, Arar for asking about five family when he was a teenager. He is a him questions Laden, about Osama bin Syria dual citizen of and Canada. Iraq, He re- alleges and Palestine. Arar that the (Arar, sides in Ottawa. 414 F.Supp.2d agents yelled and swore at him throughout 252.) the interrogation. They ignored his re- 3. We majority’s do not dissent from the con- 4. opinion ap- Citations to the district court personal jurisdiction. pear clusions parentheses. as to The au- The footnotes and sub- opinion, headings thor of this a panel as member of the are ours. originally appeal, heard this concurred in panel opinion’s conclusion relief un- employed 5. by privately Arar was a held Mas- der the Torture Victim Protection Act developer is un- supplier sachusetts-based and Having argu- available to Arar. computing. reviewed the software for technical ¶ Compl. contrary Judge ments to the stated in Pooler’s dissent, partial infra, for the reasons stated in it, is, agrees he now that the relief changes plane. under the Act 6. That is available to Arar. Inasmuch as the en banc available, Court now holds that it is not how- According complaint, day, to the on that ever, opinion accepts unavailability questioned agent Arar was an first FBI ¶ hours, purposes matter of law for the of the Bivens Compl. immigra- five then an ¶ analysis hours, that follows. tion officer for three id. 31. Upon being given permission zation. telephone call to make requests peated call, day, telephone Arar called his lawyer. p.m. At 2:00 make one see a and cell, (Id.) his chained Ottawa, taken back to Arar was Canada. mother-in-law Mc- shackled, a cold provided whereabouts, Upon learning of Arar’s nearly two first food in meal—his Donald’s family his contacted the Office Consu- (Id.) days. Consulate”)10 (“Canadian lar Affairs given oppor- an evening, Arar was That Oummih, Amal attorney, an retained voluntarily Syria, but tunity return him. The Canadian Consulate represent if refused, being a fear of tortured citing not been notified of Arar’s detention. had that he be insisting returned there Arar received visit On October or returned to Switzerland. sent to Canada from the Canadian from Maureen Girvan Arar that the immigration officer told An Consulate, who, presented with the when interest” “special had a United States inadmissibility to noting Arar’s document sign him to and then asked his case States, assured Arar that re- the United form, he was not the contents of which Syria option. was not an On moval to evening, That Arar was to read. allowed 4, 2002, Arar designated October Canada *25 shackles, transferred, in chains and to the country to which he wished to be (“MDC”) Center Metropolitan Detention (Id.) removed. York,8 where he was Brooklyn, New 5, 2002, only placed solitary and con- On October Arar had his strip-searched days at During his initial three meeting following day, finement. with counsel. The MDC, to meet requests Arar’s continued taken in chains and shackles to a he was telephone make calls lawyer with approximately room where seven INS offi- (Id.) were refused. him questioned cials about his reasons Syria. attorney removal to His opposing 1, 2002,9 Immigration October On provided was not advance notice (“INS”) initi- and Naturalization Service alleges and Arar further interrogation, Arar, proceedings against ated removal thinking officials misled him into that U.S. charged being temporarily with who was attend. attorney his had chosen not to membership in of his inadmissible because interrogation, Arar continued During the by the Secre- al-Qaeda, group designated being if organi- express his fear of tortured foreign terrorist tary of State as - 1937, 1952, -, which, Iqbal, prison in 8. This is the same federal earlier, Iqbal year September Javaid was less than a On Iqbal, inmate allegedly mistreated. Muslim Iqbal remaining parties in filed a conspiracy defraud the United accused stipulating that the document in this Court with identification and held States and fraud appeal was to be "withdrawn from active MDC, allegedly "un- post-9/11 in the suffered ... because a consideration before the Court against in connec- actions him constitutional principle has been reached in be- settlement his confinement under harsh condi- tion with Iqbal and defendant United tween Javaid general separation from the tions ... after (2d Iqbal Hasty, States.” v. No. 05-5768-cv Iqbal Hasty, 490 prison population.” F.3d 30, 2009), Sept. "Stipulation Withdraw- Cir. held, Cir.2007). (2d n. 1 We ing Appeal Active Consideration” dated subsequent respect Iqbal's Bivens ac- September tion, protected, was not that such treatment law, qualified the doctrine of as a matter I.e., days arrival five after Arar’s immunity. Id. at 177-78. The United States. subsequently judgment reversed that Court remanded, holding complaint City. is in New York 10. The consulate high- insufficiently pleaded two as to was ranking See official defendants. Ashcroft Syria. returned to At the conclusion of and that Arar reentering barred from was interrogation, the six-hour Arar in- country was for a period years of five discussing formed that the officials were would only be admissible with the permis- “Washington, (Id.) his case with Arar D.C.” was Attorney sion of the General. sign appeared asked to a document that day, Later Arar was taken in chains transcript. be a sign He refused to airfield, to a Jersey shackles New (Id. 253-54.) form. at jet airplane where he boarded a small 7, 2002, following day, October at- there, Washington, bound for From D.C. torney Oummih telephone received two Amman, Jordan, he was flown to arriving informing calls her that Arar had been there on October 2002. He was then processing taken for to an INS office authorities, handed over to Jordanian who Manhattan, Varick Street in that he would delivered him to Syrians day. later that eventually placed in a facility detention time, At this in- U.S. officials had not Jersey, in New and that she should call formed either Canadian Consulate official back the following morning for Arar’s ex- attorney Girvan or Oummih that Arar had However, act whereabouts. alleges Arar Syria. been removed to Arar alleges that he never left the and that MDC the Syrian officials refused to accept di- contents of both of phone these calls to his (Id.) rectly from the United States. (Id. counsel were false and misleading. Arar’s Final Inadmissability Notice of 254.) (“Final Notice”) ordered him removed That day, same October the INS without inquiry further an immigra- before Director, Regional Blackman, J. Scott de- judge. tion Compl. Ex. D. According *26 termined from classified and unclassified to the Final Notice: “The Commissioner of information that Arar “clearly and un- Immigration and Naturalization Ser- equivocally” and, al-Qaeda member of vice has your determined that removal to therefore, “clearly unequivocally and inad- Syria would be consistent with Id. [CAT].” missible to the United States” under 8 (brackets in original). The Final Notice 1182(a)(3)(B)(i)(V). § U.S.C. See Compl. 8, 2002, was dated October signed and was 1, 3, Ex. D. at 5. Based on that finding, by Deputy Attorney Larry General Blackman concluded “that there are rea- Thompson. argument After oral grounds sonable to believe that is a [Arar] district court on the defendants’ motions to danger security of the United dismiss, a letter August dated (brackets States.” Id. at 6 in original). counsel for Arar said that Arar had re- (Arar, 254.) 414 F.Supp.2d at ceived the Final Notice within hours of boarding the approximately taking At aircraft him to 4:00 a.m. on Jordan. October (Arar, 254.) that, F.Supp.2d Arar learned based on classified information, regional INS director Black- B. Arar’s Syria Detention in man had ordered that Arar be sent Syria and that his removal there was con- During his ten-month period of deten- sistent with Article Three of Syria, the United tion in alleges, Arar placed he was Nations Against Convention “grave” Torture and in a measuring cell long, six feet Cruel, Inhuman, Other or Degrading high, seven feet and three feet wide. The (“CAT”). Treatment or Punishment Arar cell was located within the Palestine pleaded for reconsideration but Syrian was told Branch of the Military Intelligence (“Palestine Branch”). INS officials that the agency was not damp The cell was governed by cold, the “Geneva Conventions” and very contained little light, and government shared information with the rats, would enter which infested with was that it extracted from him. in the United States aperture a small through the cell (January on Arar Ex. E 2004 tran- Compl. urinate would ceiling. Cats sanitary facili- II: “His script Sixty of CBS’s Minutes aperture, through (Id.) Hell”). Arar was allowed nonexistent. Year ties were per water once himself in cold to bathe exercising prohibited was
week. He with the Canadian C. Arar’s Contact Arar food. provided barely edible and was Syria Detained in Government While his ten-month forty during pounds lost Embassy contacted the Canadian (Id.) Syria. period of detention Arar on October Syrian government about days Syrian During his first twelve day, Syrian following and the detention, eigh- interrogated Arar was they confirmed that were detain- officials physically and per day hours and was teen Syrian ing point, him. At this officials beaten tortured. He was psychologically interrogating torturing Arar. ceased and lower back with palms, hips, on his (Id.) captors cable. His two-inch-thick electric Arar at Canadian officials visited him on his used their fists to beat also during ten- Palestine Branch five times his face, stomach, of his neck. his and the back visit, to each Arar month detention. Prior excruciating pain and subjected to He was that he was was warned not disclose stop, but pleaded captors with his but even- being complied mistreated. He in a room placed not. He was would visit, during fifth tually broke down of other could hear the screams where he official that telling the Canadian consular was told that being tortured and detainees being kept grave. in a he was tortured he, too, spine-break- in a placed would be (Id.) “chair,” in a hung upside down “tire” ing subjected to beatings, electric later, days brought Five Arar was to a to the exposure To lessen his shocks. branch, Syrian investigation where he was confessed, torture, falsely among oth- sign stating a confession that he forced *27 with terrorists things, having er trained training in in participated had terrorist he had never though in even Afghanistan, states, though, even Arar he Afghanistan never been Afghanistan and had been Afghanistan partici- never been to or has (Id. 255.) activity. at in terrorist involved any activity. in Arar was pated terrorist interrogation in alleges Arar that his Syrian pris- then taken to an overcrowded planned by Syria on, was coordinated he remained for six weeks. where officials, (Id.) Syrians sent the dossier who questions. support As containing specific 28, 2003, Arar was trans- September On allegation,
for this
Arar notes
Branch, where
ferred back to the Palestine
States and
interrogations
United
During
one week.
this
he was held for
includ-
Syria
questions,
contained identical
week,
screaming
he heard other detainees
specific question
about his relation-
ing
begging
in
for their torture to
pain
individual wanted for
ship
particular
with a
(Id.)
end.
return,
alleges,
Arar
terrorism.
5, 2003, Syria,
filing
without
October
U.S. officials
On
Syrian
supplied
officials
Arar,
him
Arar;
released
any charges against
Arar
all information extracted
Embassy offi-
custody
into the
of Canadian
Syrian
one
official
cites a statement
to Otta-
in
He was flown
Syrian
cials Damascus.
publicly
stated that
who
day
following
wa the
and reunited with his States sends individuals “to countries like
(Id.)
Syria precisely
family.
because those countries
can and
interrogation
do use methods of
Arar
not a
contends
he is
member
obtain information from detainees that
any
organization,
including
terrorist
al-
morally
would not
acceptable
legal
in
Qaeda,
knowingly
and has never
associated
the United States and other democracies.”
terrorists,
himself with
organiza-
terrorist
complaint
Id. The
further alleges that fed-
tions,
activity.
or terrorist
Arar claims
eral officials
with extraordinary
involved
the individual about whom he was
rendition “have facilitated such human
questioned
acquaintance
was a casual
abuses,
rights
exchanging dossiers with in-
whom Arar
in
had last seen October 2001.
telligence
officials
the countries to which
He believes that
Syria
he was removed to
non-U.S. citizens are removed.” Id. The
interrogation
torture
under
because of
complaint
alleges
also
the United
acquaintance
his casual
with this individual
Syria
States involves
extraordinary
and others believed to be
involved
ter-
program
rendition
to extract counter-ter-
activity.
rorist
But Arar contends “on in-
(Arar,
rorism information.
414 F.Supp.2d
formation and belief’ that there has never
256.)
at
been,
now, any
nor is there
reasonable
extraordinary
is,
This
program
rendition
suspicion that he was
involved
such
Arar alleges,
part
official or
¶
(Arar,
activity. Compl. 2.
F.Supp.2d
public
nevertheless,
declared U.S.
policy;
(footnote omitted).)
at 255-56
it has received extensive attention in the
Arar alleges that he continues to suffer
press, where unnamed U.S. officials and
adverse effects from
Syria.
his ordeal in
foreign
certain
officials have admitted to
He claims that he has
relating
trouble
policy.
existence of such a
Arar de-
children,
his wife and
suffers from night-
tails a number of articles in the main-
mares,
terrorist,
is frequently
branded
press
stream
recounting both the incidents
having
and is
finding employment
trouble
particular
case and the extraordi-
reputation
due to his
inability
to travel
nary
program
rendition
broadly.
more
(Id.
256.)
in the United States.
These articles are attached as Exhibit C of
(Id.
256-57.)
complaint.
his
D.
Policy Relating
Interrogation
alleges
that the defendants direct-
by Foreign
Detainees
Governments
interrogations
ed the
in Syria by providing
complaint
alleges on information
information
Syrian
about Arar to
officials
and belief that Arar
Syria
was removed to
receiving reports
responses.
on Arar’s
under a
policy
covert U.S.
of “extraordi- Consequently,
conspired
defendants
rendition,”
*28
nary
according to which indi- with,
abetted,
aided and
Syrian offi-
and/or
viduals are sent
foreign
countries to
in arbitrarily
cials
detaining, interrogating,
undergo methods of interrogation
per-
and torturing Arar. Arar argues in the
mitted in the United States. The extraor-
that,
minimum,
alternative
at a
the defen-
dinary
policy
rendition
involves the remov-
dants knew or at least should have known
al of “non-U.S. citizens detained in this
that there was a substantial likelihood that
country and elsewhere
suspected—
he would be
upon
tortured
his removal to
reasonably
(Id.
unreasonably'
257.)
terrorist
Syria.
—of
countries,
activity to
including Syria,
Syria’s
E.
Rights
Human
Record
where interrogations under
torture are
¶
routine.” Compl. 24. Arar alleges on
Arar’s claim that he faced a likelihood of
information and belief that
Syria
by
United
torture in
is supported
U.S. State
committed
offence or
his activities
Syria’s
on
human
reports
Department
See,
security
De-
e.g., Bureau of
constitute a threat to the
Cana-
rights practices.
”
Labor,
Commission,
Release,
Unit-
Rights, and
Press
mocracy, Human
da.’ Arar
State,
Department
Findings
ed States
Releases Its
Arar Commission
Prac-
Rights
Human
Country Reports on
Maher Arar
Handling
on the
Case
2005) (“2004
(Released February
2006) (boldface
tices
in
(Sept.
original),
Depart-
According to the State
Report”).
http://www.ararcommission.ca/
available at
ment,
record re-
Syria’s
rights
“human
Sept 18.pdf (copy on
eng/Release Final —
contin-
poor, and the Government
mained
Court).
January
On
file with
Clerk
numerous, serious abuses
ued to commit
26, 2007, the Office of the Prime Minister
in
the use of torture
deten-
including]
...
following
announce-
of Canada issued
tion,
in death.”
at times resulted
which
ment:
Syrian
constitution
Although
at 1.
Id.
Stephen Harper today
Minister
Prime
practices, “there
officially prohibits such
apology
released the letter of
he has
security forces
evidence that
was credible
family
to Maher Arar and his
sent
frequently.” Id.
to use torture
continued
any role Canadian officials
have
Report cites “numerous
at 2. The 2004
Arar,
happened
in what
to Mr.
played
torture on
security
using
forces
cases of
family in
Mazigh
Monia
and their
custody.”
Similar refer-
Id.
prisoners
Report,
the 2004
well
throughout
ences
reports
prior
Department
as State
“Although
leading up
the events
to this
See,
A
e.g., Compl. Ex.
years,
legion.
are
happened
pre-
terrible ordeal
under the
(2002
Rights
Department Human
State
our
will
government,
vious
Government
(Arar,
F.Supp.2d
Syria).
Report
everything
power
do
ensure that
257.)11
by
the issues
raised
Commissioner
addressed,”
said the
O’Connor
Inquiry
F. The Canadian Government
sincerely
“I
hope
Prime Minister.
a Commission
September
On
help
actions will
Mr. Arar and his
these
Actions of Canadian Offi-
Inquiry into the
family begin
hopeful chapter
a new and
(“Arar
Arar
to Maher
cials
Relation
in their lives.”
Commission”),
govern-
established
accepted
New Government has
Canada’s
Arar
investigate
ment of Canada
made
Com-
all 23 recommendations
affair,
report.
a three-volume
issued
report,
first
missioner O’Connor’s
Commission,
the Events
Report
Arar
already begun acting upon them.
(2006) (“Commis-
Relating to Maher
The Government has sent letters to both
press
A
release issued
Report”).12
sion
Syrian
governments
and the U.S.
Maher
summarized: “On
Commission
formally
to the treatment of
objecting
O’Connor]
Arar the
[Dennis
Commissioner
Day
MacKay
Mr. Arar. Ministers
conclusion: T am
important
comes to one
concerns
expressed
have also
Canada’s
that there is no
say categorically
able to
to their Ameri-
important
on this
issue
that Mr. Arar has
evidence to indicate
*29
concerned,
description
were
but denied the
of the facts
of its contents
11. The district court’s
sought judicial
may have
insofar as it
alleged
complaint ends here.
motion
as
in the
report.
asserted in the
But
notice of the facts
(employing
report
granted
supra at
583-84
12. On October
this Court
cf.
the
relating to Canadian in-
judicial
for facts
notice of the
source
Arar’s motion to take
incident).
the Arar
scope
volvement in
Report
its existence and the
insofar as
counterparts. Finally,
insufficiently
can
pleaded.
supra
Canada
See
at 569.
removed Mr. Arar from
look-
think that ruling
Canadian
We
to be incorrect.
lists,
requested
out
that the United
respect
With
to the conditions of con-
according-
States amend its own records
claim,
aspect
finement
of this
the district
ly-
court concluded that Arar was entitled to
The Prime Minister also announced that
Fifth
process
Amendment substantive due
New
Canada’s
Government has success- protection
rights
and that his
in that re-
fully completed the
process
mediation
spect
could have been violated
“the
Arar,
with
fulfilling
Mr.
another one of
deprivations
alleges
Arar
with respect
Commissioner O’Connor’s recommenda-
his treatment while in
custody.”
settlement, mutually agreed
tions. This
Arar, 414 F.Supp.2d at 286.
agree,
We
upon by
parties,
all
ensures that Mr.
majority
and the
does not decide other-
family
and his
will
fair
obtain
com-
Supra
wise.
at 569.
respect
With
to the
pensation,
million,
in the amount of $10.5
access to counsel and the
aspect
courts
costs,
plus legal
for the ordeal
have
claim,
the district court concluded that
suffered.
Arar would be able to state a claim for
Minister,
Office of the Prime
Press Re-
interference “with his access to courts in
lease, Prime Minister Releases Letter of part by [government
lying
officials]
to his
Apology to Maher Arar and
Family
His
counsel,” if
“identify
he could
‘a separate
Completion
Announces
Mediation
and distinct right
judicial
to seek
relief for
”
(Jan. 26, 2007),
Process
available
http://
Arar,
some wrong.’
II. The Dismissal of the Fourth Claim
prejudice.
out
pain
On
of forfeiture of the
for Relief
(1)
claims, it required Arar
respect
with
The fulcrum of
majority’s
the en banc
claim,
the mistreatment
to “name those
analysis is its conclusion that
appeal
defendants that were personally involved
requires us to decide whether “to
alleged
devise
treatment,”
unconstitutional
new
damages
and,
action” under Wilkie
with respect to the denial of access
Robbins,
claim,
replead
regard
“without
claim,”
[underlying] rendition
in light of
infra
599. But
can characterize
the court’s conclusion that no Bivens ac-
Arar’s action as “new” only by isolating
tion was available
respect
to such a
and eliminating
claim, and,
the domestic aspects of the
because it was unclear to what
case.
It does so in part by affirming
underlying
access,
relief Arar was denied
district court’s dismissal of Arar’s “Fourth
“identifying]
specific
injury he was
(Fifth
Relief,
Claim for
prevented
Arar,
Amendment: Sub-
grieving.”
stantive Due
F.Supp.2d
Process —Domestic Deten-
at 287-88. Arar declined to
tion)”
ground
on the
that the claim
replead,13
was
rendering the dismissal final.
Following
the district court's dismissal of
prejudice
the fourth claim without
and dis-
*30
Similarly,
Specification
rejected
A.
Acts and
courts have
the dis-
of Defendants’
Conspiracy Allegations
against
missal of suits
unnamed defen-
by
...
dants described
roles
until the
majority affirms the dismissal of the
The
plaintiff
opportunity
has had some
ground
Fourth
for Relief on the
Claim
discovery to learn the identities of re-
any cul-
complaint
“specify
does not
sponsible officials.
superviso-
Once the
any
pable
single
action taken
defen-
ry
inquired
officer has
within the institu-
allege
conspiracy.
dant” and fails to
Su-
tion and identified the actual decision-
at
pra
disagree
569. We
with each of
action,
makers of the challenged
those
these rationales.
may
officials
then submit affidavits
required
should
have been
to
personal
based on their
knowledge of
per-
“name those defendants
were
[who]
the circumstances.
sonally
alleged
in the
involved
unconstitu-
(citations omitted).
Id.
It should not be
Arar,
tional treatment.”
at
F.Supp.2d
forgotten that the full name of the Bivens
pursuant
In actions
U.S.C.
case itself is Bivens v. Six Unknown
1983,
“analogfs]”
§
which are
the less-
Agents
Named
Fed. Bureau Narcot-
action,
Iqbal,
common Bivens
v.
Ashcroft
ics,
—
91 S.Ct.
29 L.Ed.2d
-,
1937, 1948,
added).14
(emphasis
(2009) (citation omitted),
L.Ed.2d 868
we
sure,
plaintiffs
supervisory
allow
To be
Supreme
“maintain[ ]
Court has re-
personnel
[they cently
as defendants
... until
pleading
set a strict
standard for
opportunity
supervisory liability
been afforded an
have]
claims under Bivens
discovery
through
identify against
Attorney
least brief
a former
General of the
personal
the subordinate officials who have
United States and the Director of the FBI.
liability.”
Kelly,
think,
Iqbal, supra.
Davis
160 F.3d
We do not
howev-
(2d Cir.1998)
er,
(citing
Second
thereby permitted
Circuit
the Court has
authority).
governmental actors who are unnamed in a
Workers,
prejudice,
missal of the first three claims with
Local 3 Int’l Brotherhood
Elec.
(2d Cir.1990)
judg-
(per
905 F.2d
Arar moved for certification of a final
36-37
cu-
riam);
Corp.,
Conn. Nat’l Bank v.
ment on the
three
Fluor
first
claims to enable him
(2d Cir.1987).
F.2d
960-61
appeal
immediately.
them
See Arar v. Ash-
(DGT),
croft, No. CV-04-0249
2006 WL
explained:
14. The
Court
“The
1875375,
be incorrect. We
review the entire
complaint,
tioner filed his
the United States
See,
Kornstein,
e.g., Kittay
ment.
Attorney supplied the clerk
court with
(2d Cir.2000) ("[A]
However,
541 n. 8
disclaimer of
agents’
names.
as the sum-
indicate,
complaint
intent to amend the
only
renders the
and their
five
monses
returns
judgment
agents
apparently
(App.5-24),
District Court’s
final and allows re
involved
Court.”);
title.”)
view the
dismissal in this
Festa v.
rather than six as stated in the case
*31
lawyer.” Supra
to a
at 569.
automatically
escape personal
not entitled
complaint
above, such an identifica-
must,
But as indicated
after
liability.
plaintiff
A
rights
civil
by their
tion of the unnamed defendants
all,
way
identify a defendant
have some
should be sufficient to enable
“roles”
rights.
anonymously violates his civil
who
dismiss, and
plaintiff to survive a motion to
requires
plaintiff
Iqbal
doubt that
We
identify
subsequently
discovery
to use
cards
order
obtain his abusers’ business
majority
correct
them. And while the
Put
rights
a civil
claim.
converse-
to state
complaint
that the
does not utter the talis-
implies that
ly,
Iqbal
do not think that
we
“meeting
manic words
of
minds”
may avoid
government
federal
miscreants
agreement among
an
the defen-
invoke
liability altogether
through
dants,
plain
at
it is
that the
supra
see
expedient
wearing
of
hoods while
simple
alleg-
logistically complex concerted action
injury.
pro-
manner of
inflicting
Some
to detain Arar and then trans-
edly taken
for the
ceeding must be made available
port
implies
alleged agree-
him abroad
an
recognized in Davis.
reasons we
by
within the
ment
actors
is a mechanism
Whether or not there
United States to act
concert.
defendants,
identify
available to
the “Doe”
moreover,
complaint
does sufficient- B. Dismissal
Claims Denial Ac-
who
ly name some individual defendants
cess to Courts and Counsel
part
alleged
viola-
personally took
respect
With
to the dismissal of Arar’s
rights.
tion of his civil
The role of defen-
claim for
with his access to
“interfere[nee]
Blackman, formerly Director
dant J. Scott
lawyers and the courts” while he was in-
INS,
Regional
example,
Office
officials,
by
carcerated
United States
is,
expli-
as reflected in the district court’s
¶ 93,
think
Compl.
we
the district court
Arar,
facts,
F.Supp.2d
cation of the
see
here,
An
erred
too.
access to courts claim
252-54,
at
set forth in reasonable detail in
(1)
requires
pleading
a “nonfrivo-
complaint.15
are at
So
least some
lous, arguable underlying claim” that has
the acts of the defendant Edward McEl-
J.
actions,
frustrated
the defendants’
been
roy, District Director of the INS.16
inability
to obtain the
continued
sought by
underlying
The
also asserts that Arar does
relief
claim.
(in
voice)
415-16, 122
“allege[]
passive
Christopher,
no more than
536 U.S. at
(internal
omitted).
requests
phone
quotation
that his
to make
calls “were 2179
marks
ignored,’ and that ‘he was told’ that he was The district court decided that Arar failed
¶
complaint alleges,
Compl.
15. The
inter alia:
a.m.,
Early
on October
about
complaint alleges,
16. The
inter alia:
Mr. Arar was taken in chains and shackles
to a room where two INS officials told him
that,
given
prior
only
[Arar’s
notice
counsel
acquain-
Mr.
based on
Arar’s casual
interrogation
evening
to his
late on the
individuals,
tance
certain named
in-
message
Sunday,
2002]
October
was
cluding Mr. Almalki
well
as
as classified
McElroy,
left Defendant
District Director
information,
Blackman, Region-
Defendant
Immigration
and Naturalization Ser-
Region
al
Director for
Eastern
of Immi-
City,
[counsel’s]
vices for New York
Services,
gration and Naturalization
had
[Sunday]
voice mail at
that same
eve-
work
Syria.
decided
Mr.
With-
to remove
Arar to
message
ning.
[She] did not retrieve
elaboration,
out
Defendant Blackman also
day,
the next
until she arrived
work
stipulated that Mr. Arar’s removal would be
long
Monday morning, October
(Acopy
with Article 3 of CAT....
consistent
2002—
interrogation had ended.
after Mr. Arar's
of Defendant Blackman’s decision is at-
¶
complaint]).
Compl.
tached
Exhibit D
[to
*32
Insofar as the
“precisfion]”
require
with sufficient
district court’s
plead
to
ment that Arar
precisely
“articulate more
underlying claim
sought-for
of a
existence
denied,” Arar,
judicial relief he
was
Arar,
relief,
at
F.Supp.2d
for
414 F.Supp.2d at
related to
holding
that,
purposes
means it decided
for
which
remedy
that “Bivens did not
a
extend
8,17
of Federal Rule of Civil Procedure
deportation
id.,
Arar for his
Syria,”
we
put
defendants were not
on notice of the
disagree for the reasons set forth below.
claim.
existence of such a
See Christo
Insofar as the district court thought Arar’s
pher, 536 U.S.
S.Ct. 2179
underlying CAT claim would have been
(“Like
an
any other element of
access
frivolous, it was mistaken.
Ramsa
Cf.
claim,
underlying cause of action and
(2d
Ashcroft,
169, 184
meachire
remedy
must be addressed
alle
its lost
Cir.2004)
CAT,
(pursuant to the
the Unit
give
... sufficient to
fair notice to
gations
may
ed States
not
an
remove
alien to a
defendant.”).
“
country if
‘it is
likely
more
than not that
allegations in the
or
taking
But
com- he
she would be tortured if removed to
”
true,
must,
country]’
(quoting
[that
8 C.F.R.
plaint
complaint
as we
208.16(c)(2))).
§
underly-
the existence of an
clearly implies
ing claim for relief under CAT. The defen-
only
Nor was CAT the
relief Arar was
hardly argue
dants can
that under Arar’s
As the
pointed
denied.
out at
assertions,
true, they
which we take to be
argument,
oral
decision Michael
“th[e]
[in
claim,
notice of such a
lacked
since the
INS,
(2d Cir.1995),]
the court and the going ernment “Your I’m not jurisdictional support; claim new needs no speak judge might might for what a (2) plain a short and statement of the said, position have but in his habeas and his showing pleader claim is entitled to look, petition stay say, things he could relief; and moving quickly, they're going I'm afraid sought, a demand for the relief which Syria, happen.” me to to send don’t let that in the alternative include relief or dif- 84; Tr. see also id. at 85. types ferent of relief. 1955). 556, 127 We would there- con- course, there is none—no conclude court’s dismissal fore vacate district possible relief is now temporaneous legal and the Fourth Claim for Relief. the access to courts except through generally Br. of Amici claim. See counsel at 12-14. The Dorsen et al.
Norman
Majority’s Interpretation
III. The
*33
therefore states
for Relief
Fourth Claim
the Second and Third Claims
claim.
process
due
access
sufficient
Relief
decided, mistakenly we
thus
Having
Pleading
Iqbal
under
C. Sufficient
think, that Arar’s Fourth Claim for Relief
we think the district
generally,
More
failed,
colleagues leap
our
to the con-
allega-
recitation of the
court’s extended
allegations
clusion that what remains —the
complaint
in
makes clear that the
tions
styles
complaint
in
contained what
Arar’s mistreatment while within
facts of
Third
for Re-
as the Second and
Claims
including
alleged
the United States —
legal implications
only
lief—relates
to the
to courts and counsel
denial of his access
foreign
of the international and
elements
in
mistreatment while
fed-
alleged
and his
supra at
of the defendants’ behavior. See
in the United States —were
eral detention
(“Arar’s remaining claims seek re-
569-70
copious
detail.
meticulously and
pleaded
lief on the basis of torture and detention
times,
places,
of relevant
The assertion
agree with
Syria....”).
Even were we to
names when known—is
and events—and
majority’s
view that the Fourth Claim
specific. Even measured
lengthy and
dismissal,
for Relief warranted
we would
post-
Court case law
light of
interpreta-
still not concur in its crabbed
district court’s dismissal of the
dating the
light
complaint
tion of Arar’s
claim,
fourth
which instituted more strin-
alleged in it.
facts
pleadings,
of review for
gent standard
may not affirm the
complaint
passes
[a]
here
muster.
It does not
dismissal
“[W]e
proceeded un
complaint
has]
‘labels and conclusions’ or ‘a for-
because [it
“offer[ ]
theory
wrong
long
[it has]
mulaic
of the elements of a cause
der the
‘so
recitation
”
(quot-
alleged
support
129
at 1949
facts sufficient to
merito
Iqbal,
of action.’
S.Ct.
”
Corp.
Twombly,
legal
v.
rious
claim.’ Hack v. President &
ing Bell Atl.
(2d
Coll.,
81,
1955,
127
claims is relevant Punish- under “the Cruel and Unusual remedy is available. Eighth ments Amendment” Clause Green, a Bivens IV. The “Context” Which Carlson v. (1980). Malesko,
Remedy Sought Is Wilkie, 515; see also S.Ct. majority’s interpretation artificial But we must ask 2597-98. characterize complaint permits whether we should “devise new Bivens action the “context” of Arar’s Bivens action,” Wilkie, damages S.Ct. at rendition, entirely one of “international ” is, indeed, if action new. only the asserted ‘extraordinary specifically, rendition.’ Su- being action is not *35 And new Bivens 572; (“Extraordinary pra at see also id. sought plaintiff asking unless the is phenome- a rendition is treated as distinct liability court to “extend Bivens new a[ ] law.”). permits non in international This category of context or new defendants.” majority part on the focus Malesko, 68, 122 534 U.S. at S.Ct. 515. complaint presents that a “new context” But purposes. for Bivens when the com- B. Category The New Test Defendants plaint light is considered in of all of Arar’s majority allegations, process suggest his due claim for relief The does not detention, apprehension, from his interro- Arar’s Bivens claim fails because is gation, against category and denial of access to counsel and new of defendants. States, remedy supply courts the United as well as his The Bivens was devised expulsion Syria interrogation by for further relief for constitutional torts federal Malesko, torture, likely agents under not at all “new.” and officials. 534 70, at 122 U.S. S.Ct.
A. Progeny Bivens and Its C. The New Context Test v. Bivens Six Unknown Named Narcotics, then,
Agents
questions,
Fed. Bureau
403
The
are whether we are
context,”
1999,
facing
considering
91
In other
narrow band of
process apply
to a
available
tive due
remedies were
sumed Bivens
by
claims. See
process
misbehavior
due
extreme
substantive
(2d
491, 497
Ashcroft, 470 F.3d
law: mistreat-
acting
Thomas v.
under color of
agents
Cir.2006)
court’s dis
(reversing district
outrageous,
egregious,
that is “so
so
ment
violation of
Bivens action for
missal of
fairly
to shock the
it
be said
Fifth Amendment substantive
plaintiffs
v.
conscience.” Lombardi
contemporary
at the
rights while detained
process
due
Cir.2007)
(2d
Whitman,
73,
F.3d
MDC);
The Court has not told us that factors counseling hesitation” “special counseling factors were deter- hesitation” are minative of prohibit to be understood to a the existence of a private right right of Wilkie, action, of action. example, declining the bar to to allow a new deciding Court noted that “whether claim to rec- Bivens would be less than “remark- ognize remedy a Bivens may require two ably low.” Id. It would be chimerical. steps,” the second of which asks that the It is difficult deny the existence of “pay[] particular court ... any heed “special counseling factors hesitation” in special hesitation,” id., counselling factors this case. We have been “hesitating” —in added). (emphasis at 2598 And order to in light deliberate of those fac- Lucas, Court, in Bush v. tors —for nearly years. two While the (1983), time we have taken to “special consider upon relied Wilkie Court strongly factors” indicates that coun- regard, similarly observed that “[i]n the hesitation, sel it cannot follow that having absence of ... a congressional directive hesitated, halt, we must therefore and dis- lies], right of action [that the federal complaint.28 miss the Bivens courts must make the kind of remedial determination that appropriate for a B. Special The Factors by the Identified tribunal, common-law paying particular Majority heed, however, special factors coun- seling hesitation before authorizing “special The major- new factors” cited litigation.” kind federal ity Id. fall into one general of two categories: added). (emphasis S.Ct. 2404 those involving security, secrecy, and con- concluded that the had no im- denying This means that the antecedent is an plied right against company of action simple invalid form argu- conditional allegedly injured ment.”). had a soldier because it upon policy” particu- trenched “federal fiscal larly delegated Congress, and Wheeldin v. Such test would be reminiscent Leo Wheeler, Tolstoy's perhaps apocryphal brother's chal- (1963), L.Ed.2d 605 in which the Court found lenge Tolstoy to stand in a corner and not private right no of action under federal law See, think of a e.g., Aylmer white bear. where the defendant’s acts were not asserted Maude, Tolstoy: Fifty The First Years Life of plaintiff's rights to violate the constitutional (Dodd, 1910) (“[Tjhere Mead and Co. was governed by and were state law. Hill, up also a certain [my Fanfarónof which us, said he only brother] could lead if we appears logical This to reflect a classic would appointed fulfil all conditions. antecedent,” fallacy, first, “denial of the which These were: to stand in a corner and not necessary mistakes a condition for a sufficient think of a white bear. I remember how I Adams, get (but one. E.M. try Fundamentals Gen- used to into a comer and could (“The Logic premises eral possibly manage) truth of the not to think of a white bear.”). require does not the truth of the conclusion. *40 those But while poli- Iqbal not survive either. involving other fidentiality, and those may in fact wish latter case championing turn to the cy considerations. We first, summarizing extraordinary policy each rendition challenge category briefly then relief himself seeks is large, it and as the describes writ factor unconstitu- compensation the factor’s for an principally our setting forth view That policy. of that implementation tional weight. are for. is what Bivens actions secrecy or se- involving not 1. Factors (cid:127) damages against for federal Actions curity. “who rendition implement” officers (cid:127) it damages, immunity but implicate sovereign This action asks for “policy” concerns, a constitu-
functionally “operates by “influencing] govern- as challenge promul- se- policies policy, prob[ing] government tional to the ment interests, at Supra crets, invad[ing] by government the executive.” gated such to allow enmeshing] government lawyers, 574. We should hesitate proceed to do so eliciting] government an action to because funds for ... id., “decide,” tacitly that Bivens Supra would at settlement.” subject to the kind can (cid:127) federal officers for Arar Recognizing Bivens action liability that was estab- enterprise judicial entail a “assessment of would under 42 U.S.C. lished actions rendition, validity and rationale” Department § 1983 Monell v. “directly significant which affectfs] Services, 658, 98 S.Ct. Social security con- diplomatic national (1978), but has L.Ed.2d Supra at The concern cerns.” for Bivens ac- not been established part separation here is one of tions. part powers, supra see at incompetence, see one of institutional strongest forth the paraphrase This sets at 575. supra (“factor”), think, denying argument we remedy Iqbal, After a Bivens to Arar. diplomatic national secu- Aside argue difficult that Arar’s considerations, would be be- rity which we address against can defen- complaint low, survive as applies to all civil this consideration super- alleged dants who are to have been rights impli- actions. Bivens its nature most, with, “knowledge” at of Arar’s interests,” visors enmeshes “government cates Iqbal, mistreatment. lawyers, govern- and elicits (Souter, J., 1949; see also id. at 1955 by its ment funds for settlement. Bivens dissenting). And to the extent nature authorizes courts to invalidate exer- defendant, per- action, States remains a power. United A cises in executive Bivens want of haps action, it should be dismissed for civil is an rights like other liability too. But possible under Bivens hold executive attempt to members of the dispose against not the case does allegedly for their unconstitu- accountable defendants, Black- acts, the lower-level such as through If these tional the courts. defendants, man, McElroy, and Doe grounds “special persuasive factors” were alleged actions, under- personally they who are have deny on which purposeful actions taken unconstitutional in new only permitted not would Arar. against contexts, they permitted would not be all. actions may It also be that to the extent action Similarly, insofar this Bivens “policymakers” equated can be
against policy, we doubt against may influence executive policies, with lawsuits *41 that be a “counseling array should factor wide of factors that are difficult to rights hesitation” either. Civil actions in- quantify,” articulate and Engquist v. Or. — policy: They costly fluence make it more Dep’t Agric., -, 128 S.Ct. for executive officers to violate the Consti- 2146, 2154, 170 (2008). L.Ed.2d 975 tution. That point. Wyatt is their upon by factors relied majority Cole, 504 U.S. that do not secrecy relate to or security (1992) (“The purpose L.Ed.2d 504 appear therefore do not to us to counsel § 1983 is to deter using state actors from strongly against recognition of a Bivens badge authority deprive their remedy here. federally guaranteed individuals of their rights provide and to relief to victims if involving Factors secrecy or securi- fails.”). such deterrence ty. “special The other factors” cited Finally, majority suggests that “[i]n by focus our attention the small number of contexts which ability on the of the executive to courts implied remedy, have a Bivens conduct the business of diplomacy easy identify has often been both the in secret as neces- line between constitutional and unconstitu sary protect and to public and pri- conduct, tional and the alternative course security. vate It beyond dispute which officers should pursued,” have judiciary protect must majority says] “distinction [the See, CIA, e.g., concern. Doe v. may not special amount to a factor coun (2d Cir.2009). F.3d 95 But inas- seling implication hesitation of a much as there are proce- established remedy.” It Supra should doing just that, dures for we think be noted to contrary that in the two treating that need as giving rise to Supreme Court decisions that did “extend” “special factors counseling hesi- remedy context,” a Bivens in a “new such tation” is an unfortunate form of anything identification was but “easy.” double counting. The problem can Green, Carlson v. 100 S.Ct. be, be, is, should and customarily (1980), involved the by dealt with case case employing line between constitutional and unconstitu procedures established of the tional medical treatment and medical facili doctrine, id.', state-secrets see see in prisons, ties management whose VI, below, also section rather than “peculiarly Court has found with by barring plaintiffs all such at the province professional expertise courtroom door without in- further of corrections officials”—and thus outside quiry. competence judges instruct —and “ordinarily ed courts to defer to [prison C. Factors Weighing in Favor a Bi- expert judgment,” officials’] Pell v. Procun vens Action ier, At least some weigh L.Ed.2d 495 And factors in favor Davis v. Pass man, permitting Bivens action in this case. assume, (1979), required to, L.Ed.2d 846 We as we are addressed the line be tween grievous constitutional and Arar suffered a infringement unconstitutional public discrimination in employment, which his constitutional rights one or more of defendants, Court later observed raises issues re interception his quiring quite “decisions [that] often detention while changing planes at an in- subjective individualized, resting on a airport ternational to the time two weeks *42 strong ever a case for in there were expecta- [I]f sent off
later when he was
it would
a
expectation—
process,”
the intent
“substantive due
be
perhaps
tion —
tortured, all in order to
that
be
he would
in
a
who had
person
case
which
been
a
from him. Breach of
obtain information
charged or convicted
arrested but not
duty
appear
legal
or
would
constitutional
custody.
in
If the
was brutalized while
opportu-
in favor of some sort of
counsel
infliction
severe
wanton or malicious
remedy for
nity
the victim to obtain a
pain
suffering upon
person being
or
a
landmark concurrence
it.
Harlan’s
Justice
Fourth
arrested violates the
Amend-
explains:
no one doubts—and if the
ment —as
arguments
a
Thefgovernment’s]
malicious infliction
severe
wanton or
govern
stringent
grant
test to
more
pain
suffering upon
prison
or
a
inmate
in constitutional cases
damages
[than
Eighth
violates the
Amendment —as no
re-
grant
equitable
governing
surprising
one
would be
if the
doubts—it
adequately answered
seem to be
lief]
malicious infliction of severe
wanton or
judiciary
partic-
that the
point
person
confined
pain
suffering upon
ular
to assure the vindica-
responsibility
following
yet charged
his arrest but
interests____To
of constitutional
be
tion
thought
or convicted were
consistent
sure,
legis-
“it must be remembered
with due process.
guardians
ultimate
latures are
(7th
v.
F.2d
May,
Wilkins
people
and welfare
liberties
Cir.1989),
denied,
cert.
as
quite
great
degree
as
the courts.”
(1990);29
ac
recognized
But it must also be
Magluta
Samples,
cord
substantive
such
ing)
“a
action ...
(observing that
[Bivens]
Judge
those asserted here. As
Posner
pretrial
is
to federal
detainees
available
respect
wrote for the Seventh Circuit with
their
challenging
to a
the conditions of
confine-
Bivens action:
process,
Judge
Although
disagreement
some
we think
Posner's comment as
there is
when,
regarding precisely
why
apply
the Circuits
follow-
principles
must
at some
those
arrest,
persons
ing
detained
to be
abuse of
point
insightful
and remains valid.
analyzed
principles of
due
under
substantive
ment”)
Marshals,
(citing Lyons v. U.S.
840 sion that
plaintiff
no
has a private right of
(3d Cir.1988)).30
F.2d 202
action in these circumstances and circum-
them, when,
stances like
order,
a brief
serving
A federal inmate
a prison sen-
we could take steps that would likely per-
employ
tence can
Bivens to seek damages
mit the case to be
particu-
resolved
resulting from
by prison
mistreatment
offi-
lar facts without new and strained declara-
Green,
cials. Carlson v.
*43
tions of law.
It would
if
be odd
a federal detainee not charged
majority
a thinly
makes
veiled ref-
any
with or convicted of
offense could not
recognition
erence to the
of a Bivens ac-
bring
analogous
an
claim.31
“alacrity
tion as
Supra,
activism.”
at
Finally, counseling recognition
factor
irony
574. The
of making
its
that asser-
of a Bivens action is that Arar has no tion
reaching
while
out unnecessarily to
remedy
other
alleged
for the
harms the
decide
difficult issue related to separa-
defendant officers inflicted on him.
powers
tion of
principles should not be
Cf.
Malesko,
(“In
Indeed, arguing well-established government, while “special affirmance cites as additional seeking en bane us before issue, hardly recogniz- have been counseling could the Bivens factors hesitation” clearer: right a Bivens action. ing con- your like the core seems [I]t (cid:127) majority notes these particular, con- perhaps your colleagues’ cerns and Judicial consideration of “factors”: you don’t more informa- have cerns par- involves relating rendition issues the result of might And that
tion. because of ticular “sensitivities” did not that the district court the fact “classified mate- need to discover much issue, all the so on the state secrets rule rial,” relat- supra including those rec- are not declarations classified security ing apparatus to “the national ord, it could not and if this court felt *44 countries, three foreign of at least argu- special factors address our Bivens States,” supra that of well as United ... stage, I think it can ment at this at 576. this court do respectfully suggest I then court a limited remand for the district (cid:127) extraordinary in the context of “Cases gov- The the state secrets issue. review very likely present seri- rendition the decla- update would have to ernment relating private diplo- questions ous rations, passed, because much time has countries foreign matic assurances from that, government to do but allow ..., claims and this feature of such the district rule on the state have court graymail.” Supra the door to opens could issues and then this Court secrets (“The 578; supra also at 579 risk of see it if it this declaration have before is itself factor which graymail special a it that. thought needed to do creating hesitation in Bivens counsels (Cohn). Tr. 58-59 And: remedy.”). Honor, talking if sim-
Your this Court is These are “factors” that the state-secrets remand, to send this ply about limited designed was to address.32 privilege simply purpose limited case back for the examining the district court the state precedent are not here— We without issue first the court won’t secrets [if factually procedurally. similar both otherwise], think Bivens I address States, In El-Masri v. United that, Hon- your a lot of there’s sense (4th Cir.), denied, cert. or. (2007), the (Cohn). Id. at 62-63 alleged an “special issue was rendition” Ma agents of German citizen from Recognizing that like government, in Af prison to a counsel, cedonia U.S.-controlled ruling prefer Arar and his would purpose for the of abusive inter merits, ghanistan think we on the we nonetheless suit, brought rogation. plaintiff The had taking up on its government should be Bivens, alia, pursuant to for violation like- inter suggestion. Doing so would alternate against former process rights an- of his due sweeping us to avoid ly giving allow Tenet, among others. George questions to difficult of law that we CIA director swers would, required explained: And it The Fourth Circuit are not ask. many govern- likely different prosecution would raise
32. Our discussion limited to of, among privilege light issues other invocation of and difficult ment’s the state-secrets things, rights under the Fifth litigation. protec- The the defendant’s in the context civil a criminal Sixth Amendments. tion of state secrets in the course of case, States intervened as a United de- followed court, in the district asserting essentially fendant procedure the same as it had in that El-Masri’s civil action could not El-Masri. The district court (prior here proceed posed because an unreason- to the district court and court of appeals privileged able risk that state El-Masri) secrets decisions in decided the case By would disclosed. its Order of on grounds instead. We think that May agreed the district court to have been mistaken. position
with the of the United States and dismissed Complaint. El-Masri’s B. Shortcomings a State-Secrets Reso- lution court, Id. 299-300. The district in sum order, said,
marizing had
impor
“It is
discussed the
We
state secrets doctrine
emphasize
tant to
that the result reached
Doe,
in some detail in
was
(2008).36
ultimately
litigation will
be resolved
Privilege 205-10
such
Siegel, Claim of
a result.
controversy
centered on the
But
has
making
in
judiciary’s
extent of the
role
Majority’s Objections
The
C.
of the
legitimacy
determination
objections
two
to
has
consequences
privilege
claim
state-secrets resolution.
refusal
sub-
government’s
produce
First,
prose-
“unflag-
necessary
material
hints that we have an
poenaed
See, e.g.,
is-
ging” obligation
claim.
to address the Bivens
plaintiffs
cution
Combatants,
of state
turning
question
L.Rev.
sue before
Enemy
Geo. Wash.
(“True,
at
seriously
swpra
at 1288.37
one can
doubt the
secrets.
575-76
No
difficulty
gov-
which the
courts can —with
and resource-
need
a mechanism
even
effectively
legiti-
fulness —consider
state secrets and
protect
ernment can
diplomatic
judgments
foreign
reexamine
made in the
military
mate
secrets. The
must,
is,
those
affairs context when we
question
procedures
is whether
now
secrecy
unflagging duty to exer-
place
in
the need for
when there is an
best balance
jurisdiction.” (emphasis
origi-
our
values and interests. The
cise
competing
nal)).
think,
not,
jurisprudential
highly
critics do
we
seek to avoid
all
We
doubt
broader,
ability
necessity
addressing
more
cost and in all circumstances the
case
government
protect
question
difficult Bivens
when this
state-secrets
judicial
fully
36. There have been assertions that the state-
role is not
exercised
in-chambers,
Reynolds,
parte
case without
review
secrets
in which the
an
ex
invocation
forth,
allegedly privileged
material?
State
modern form of doctrine was first set
Cf.
misfeasance,
Secret
Act of
H.R.
cover-up
Protection
was
5(a) ("Once
Cong. §
111th
the Government
attempt
protect legitimate
an
state se
See,
privilege
asserted
...
court shall
Barry
e.g.,
Siegel,
Privi
crets.
Claim of
205-10;
States,
a preliminary
undertake
review of the infor-
lege
Herring
No.
United
A
*46
2040272,
protected
the
5500(LDD),
*2,
mation
Government asserts is
Civ.
2004
at
03
WL
18545,
privilege....");
the
State
Protec-
Secrets
2004
Dist. LEXIS
at *6-*7
U.S.
Act,
417,
Cong.
(pro-
§
10, 2004);
tion
S.
111th
2
(E.D.Pa. Sept.
Herring
but see
v.
that,
viding
exceptions
certain
"the
States,
384,
(3d
absent
Cir.2005)
United
424 F.3d
386
United
make all evidence the
States shall
(deciding,
report,
of
that
after review the
the
subject
United
claims is
the state
States
government's
military
"assertion of
secrets
privilege
secrets
available for the court
Reyn
privilege
report [in
accident
[the]
review,
[specified require-
consistent with
court"),
upon the
]
[not a]
olds
... was
fraud
ments],
any hearing
before
conducted under
denied,
1909,
cert.
S.Ct.
547
126
section").
monetary
the
oc-
Should
loss
(2006).
The
casioned as
result of the
of the
the
invocation
implemented
recently
procedures
has
that
privilege
invariably
exclusively
fall
on
heighten
governing
infor
the standard
what
Combatants,
Enemy
plaintiffs?
75 Geo.
See
protected
privilege
mation can be
under the
finely grained
Wash. L.Rev. at 1312-13. How
multiple
oversight requir
and create
levels of
showing
required
an ac-
a
should be
before
Committee,
ing that a State Secrets Review
light
tion is
of a
state-
dismissed
successful
General,
Attorney
Deputy
an Assistant
the
At
Editorial,
secrets invocation? See
The State-
General,
torney
Attorney
ap
and the
General
Tamed,
Times,
Privilege,
Apr.
N.Y.
Secrets
prove
privilege
the assertion of
before the
(opining
at
on what it character-
A26
government attempts
any par
it in
invoke
ized as "the affront to civil
and the
liberties
ticular case. See Policies and Procedures
powers
separation
constitutional
of
in the Jus-
Governing Invocation of the State Secrets
Department’s argument
tice
that the executive
23, 2009),
Privilege (Sept.
http://
available at
to have
down
branch
entitled
lawsuits shut
www.justice.gov/opa/documents/state-secret
whenever an official makes a
claim of
blanket
privilieges.pdf.
msnbc.com,
security");
national
see also
Questions
transcript
that have been raised include:
"Full
of President Barack Obama's
dissenters,
conference,
29, 2009,”
Reynolds
Did the
and the Third
Apr.
http://www.
news
Pennsylvania
(The
Circuit and Eastern District of
President:
msnbc.msn.com/id/30488052//
States,
them,
Reynolds
actually
before
see
v. United
“I
that the state
doctrine
think
secret
(3d Cir.1951),
right
192 F.2d
990
have the
I think
now it’s
should
modified.
overbroad.”).
concluding
argument
better of the
when
that
applaud
majority’s
facts
We
applica-
recognition
be resolved on its
of
might
proce-
of
tion well-established state-secrets
importance
fundamental
of
princi
out,
panel majority pointed
As the
dures.
ple
presumed
courts
to be
do
dispositions
require
non-merits
598;
open.
see,
supra
See
at
e.g.,
subject-matter juris-
decision on
predicate
Court,
Globe
Newspaper
Superior
Co.
diction:
has, on
Supreme
The
Court
several oc-
respects
L.Ed.2d 248
It
this Cir
casions,
recognized that
federal court
history meticulously
cuit’s
of
guarding con
leeway
among
choose
threshold
protection
stitutional
for “access to the
denying
audience to a
grounds
case
courts” in
of
ability
the sense
on the merits....
federal court that
[A]
hear,
citizen to see and
and in that
toway
grounds
on non-merits
before
dismisses
in,
participate
workings
justice
finding
jurisdiction
subject-matter
system.38 See,
Corsones,
e.g.,Huminski v.
assumption
law-declaring
makes no
(2d Cir.2005);
396 F.3d
Hartford
power
separation
powers
violates
(2d
Pellegrino,
Courant
v.Co.
See
F.3d
(2d Cir.2004);
United States v. Gra
marks,
omitted).
citations,
ellipses
tion
(2d
ham,
Cir.2001);
CONCLUSION
checks
approach
system
Its
distorts the
of
law,
to
of
essential
the rule
foregoing
For the
reasons and to the
balances
role in
indicated,
judiciary’s
and it trivializes the
respectfully
extent
we
dissent.
mind,
my
de-
conspired
To
the most
federal officials
to send a
these arenas.
Syria
man to
to be
majority’s
is
tortured “shocks the
pressing aspect
opinion
of
California,
conscience.” Rochin v.
sincerity.
its
172,
165,
205,
S.Ct.
send
however,
Constitution,
reason,
independent tribu-
permit-
into the
principal
justice
the natu-
consider themselves
ting such an action “would have
nals of
will
of
diplomacy, foreign
peculiar
guardians
affect
in a
manner
tendency
ral
security
rights;
nation.”
be an
they
impenetra-
those
will
policy and
Maj. Op.
separa-
against every assumption
This
bulwark
at 574.
view of
ble
Executive;
powers,
power
Legislative
tion of
which confines the courts
or
sidelines, is,
view, deeply
naturally
every
will
led to
my
to the
resist
mistaken;
upon rights
expressly
distorts the
it diminishes and
encroachment
judiciary
during
stipulated
for in the Constitution
especially
role of the
rights.
times of
turmoil.
declaration
ed.,
Cong.
(Joseph
1 Annals
Gales
appropriate
with an
presented
When
1834).
three
The Constitution established
controversy,
are entitled—
case
courts
co-equal
government,
op-
each
branches of
act,
in instances
obliged
indeed
even
—to
erating
upon
as a check
the others.
to shield
where
officials seek
way,
was
separation
powers
of “na-
their conduct behind invocations
limiting principle
govern-
as a
designed
See,
security”
“foreign policy.”
tional
branch,
as
ment —not
silence
one
e.g.,
Rumsfeld,
Hamdan
here,
majority implies
but
to enlist
(2006);
126 S.Ct.
L.Ed.2d
public rights.”
each as “a sentinel over the
Covert,
1, 23-30,
Reid
(James
51, at 290
The Federalist No.
Mad-
(1957); Youngstown,
L.Ed.2d
ison) (Clinton
ed., 1961).
Rossiter
613 judicial remedy: a familiar Bldg. money & Loan Ass’n v. Blais- tions for ties.” Home 231, 398, 426, dell, Bivens, 78 395, 290 54 S.Ct. damages. U.S. See U.S. at 91 403 Bush, (1934); v. L.Ed. 413 Boumediene represent S.Ct. 1999. Such a suit does not - 2246, 2229, -, 171 U.S. 128 S.Ct. judicial functions, interference in executive (2008). One branch impermis- L.Ed.2d 41 it, as the would have but rather it sibly upon intrudes another not when to keep power an effort executive within role but when prescribed fulfills its Buckley constitutional limits. v. See Va authority to its assigned seeks to exercise leo, 1, 121, 612, 424 U.S. S.Ct. 96 46 Youngstoum, coordinate branches. (1976) 659 (recognizing L.Ed.2d that each 587-89, (holding 72 343 U.S. at S.Ct. 863 necessarily branch the af participates had execu- that the President exceeded his others); fairs of the Mistretta United powers tive he assumed the “law when States, 361, 380-81, 647, 488 U.S. making “Congress entrusted to power” 102 714 Respectfully, L.Ed.2d I times”); good alone both and bad majority’s believe the deference dissolves 726, 714, Bowsher v. 478 U.S. 106 Synar, protections the very and liberties that the (1986) (holding S.Ct. powers of separation guar was intended to not Congress remove executive antee. except by impeachment); officers The Fed- (James Madison) eralist No. 270-71 47 II (Clinton 1961) (“[W]here ed., Rossiter Supreme repeatedly The Court has power department whole one exer- of made clear that separation powers by cised hands which possess the same prevent judiciary does ruling not power department, whole of another principles affecting security, fundamental of a free constitu- matters national subverted.”) removed). tion, (emphasis competent the courts are to undertake could, course, See, us defendants before e.g., Rumsfeld, this task. Hamdi end, fully it is the exonerated but 159 legality (2004) Court’s role to (“[W]e determine necessarily L.Ed.2d 578 re their actions for itself. ject the Government’s that sepa assertion powers ration of principles mandate a case,
In does not ask the heavily for the circumscribed role courts” Court to assume executive functions— in establishing procedures for designating to dispatch diplomatic representatives, ne- combatants); enemy New York Times Co. treaties, gotiate oversee deci- or battlefield States, v. United U.S. S.Ct. Likewise, sions. impli- suit does not L.Ed.2d (holding Syrian cate his or release rescue from military justify asserted interests could not custody. Rather, Arar asks the Court prior press); Youngstown, restraint perform judicial a core function: To inter- 1153; pret S.Ct. 96 L.Ed. the laws and Constitution as Quirin, apply allegations parte to detailed of official mis- Ex peti- conduct on American soil. And he 2.2 Barreme, Cranch) 170, (2 legality Little v. order address President's (1804), example, ship L.Ed. 243 itself. of a seizure "A commander States, captain obeying Court found naval "an war the United his in- damages” swerable in for his unlawful seizure from the structions President United States, trading ship, peril. of a Danish even where Presi acts at his If those instructions appeared strictly dential order the sei law authorize are not warranted he is an- hesitate, here, damages injured did any person zure. The Court swerable in
614 mili suggest Recent the mate disclosures handle classified routinely
Courts
fiercely guarded
the
judgment
tary
about both
secrets so
United
rials and exercise
1,
se
significance of the
credibility
legal
and
v.
345 U.S.
Reynolds,
States
govern
(1953)
curity
asserted
528,
interests
97
727
L.Ed.
—the
Intelligence
Foreign
Surveil
ment. See
state secrets
Court’s seminal
case—
(FISA),
1978
50 U.S.C.
lance Act of
have
no threat
national secu
posed
well
1821-29, 1841-46,
1801-1811,
§§
1861-62
States,
Herring v. United
2004
rity. See
Act
(2006);
Information
Freedom
(E.D.Pa.
2004),
2040272,
Sept.10,
at *5
WL
552(a)(4)(B)
(b)(1)
§
(FOIA),
&
5 U.S.C.
Cir.2005)
(3d
(finding
aff'd, 424
384
F.3d
(2006),
Act of
by Open FOIA
amended
court,
upon
fraud
but
no deliberate
2142,
2009,
111-83, 123 Stat.
Pub. L. No.
noting
apparent dearth
sensitive
“the
(2009);
Information Proce
2184
Classified
investigation
in the accident
information
(CIPA),
§§
III
1-
U.S.C.App.
18
dures Act
statements”); Louis
report
witness
and
—Bush,
-,
16;
U.S.
v.
Boumediene
Fisher,
Security:
In the Name of National
(2008)
2261,
171
41
128
L.Ed.2d
S.Ct.
Power and the
Unchecked Presidential
(“The
no
ar
presents
credible
Government
(2006).
Reynolds
166-69
Case
military
guments
mission at Guan
that the
emerged
A similar truth has
compromised if habeas
would be
tanamo
case,
York
Pentagon Papers
New
Times
jurisdiction
hear the
corpus
had
courts
States,
v.
91
Co.
United
claims.”);
United States
detainees’
(1971).
L.Ed.2d 822
Al-
29
(Keith),
Court
407
District
United States
though
argued
the Su-
297, 320, 92 S.Ct.
32 L.Ed.2d
U.S.
(1972) (“We
publication posed
accept
preme Court
cannot
the Govern
security
danger to
“grave
internal
immediate
the secu-
argument
ment’s
and
States,”
complex
former
rity
matters are too subtle
of the
Solicitor
United
evaluation.”).
judicial
These cases belie
acknowledged
has since
General Griswold
lack
notion that the courts
majority’s
primary
was
executive’s
concern
authority
competency
assess
security, but
“not with national
rather
claims.
are
allowable limits
“What
Er-
governmental
with
embarrassment.”
discretion, and
not
military
whether or
Griswold,
N.
Not
win
Secrets
Worth
overstepped
particular
have been
Post,
Keeping,
Feb.
Wash.
case,
questions.” Sterling v.
judicial
A25;
General,
Attorney
of the
Office
cf.
Constantin,
401, 53 S.Ct.
Procedures
Mem.
Policies and
Govern-
(1932).
190,
Indeed, a
In
-,
number
Boumediene v.
of cases
which
2229,
way, relying
(2008),
courts have acceded in this
on 128
171
S.Ct.
L.Ed.2d
appeals
security,
bald
to national
have Supreme
legislative
Court rebuffed
efforts
deeply troubling in
proven
retrospect.
to strip
jurisdiction
the courts of
over de-
Supreme
upholding
Court’s decisions
held
Bay.
tainees
at
It
Guantanamo
held
convictions under the Sedition Act of 1918 that the writ of habeas corpus extended to
regarded
today.
as indefensible
See
base,
Congress
naval
and that neither
States,
52,
47,
v.
Schenck United
249 U.S.
nor the executive branch could displace the
247,
(1919);
39 S.Ct.
63 L.Ed.
Debs v.
formally
courts without
suspending the
States,
211,
252,
United
249 U.S.
Importantly,
writ.
it did so despite the
(1919);
ment’s before courts.” Id. ment Syria, in both the United States and at 584. See also Brief for Respondents, the circumstances of his detention on Rumsfeld, Hamdi v. summarily American soil are (No. excluded 03-6696) majority’s from the analysis. In- necessity (arguing military stead, detention, the Court required yet Hamdi’s indefinite concludes that allegations him releasing pleaded to Saudi Arabia these with the fac- seven later). months tual detail required by Corp. Bell Atlantic aside, alleges he also conspiracies Formal 544, 127 S.Ct. Twombly, 550 U.S. Op. Maj. commonly aided and defendants 167 L.Ed.2d is, Claim Consequently, it dismisses 569-70. his detention and removal—that abetted though chal- proceeds personally Pour and in- the defendants were extraterritorial.3 strictly lenged conduct in his mistreatment both volved *53 any plead- beyond far goes This conclusion Hayut v. abroad. See States and United and it is apply, are to rule we bound ing York, 352 F.3d Univ. New State 8 of the Feder- with both Rule inconsistent (A (2d Cir.2003) supervisory per- official recent Procedure and Rules of Civil al conduct sonally challenged participates Supreme Court decisions. (1) by but only by participation, direct not — (2) action; Iqbal, cre- failing Even after take corrective to Ashcroft 1937, 1949, 173 -, L.Ed.2d 868 fostering policy of a or custom ation (2009), discrimination (3) which dismissed conduct; grossly negligent supervision, on account of policymakers against claims the rights indifference to deliberate readily Claim Four inadequate pleading, others); Newburgh En- Johnson “plausibility.” exceeds measure of (2d Dist., larged Sch. John to hold Defendants Four seeks Claim Cir.2001).
Ashcroft, Thompson, Muel Larry Robert In of his claim for mistreatment support Blackman,
ler,
Ed
Ziglar, J. Scott
James
while in Ameri-
process
and due
violations
McElroy,
1-10 re
and John Does
ward
allega-
factual
custody,
can
Arar includes
conditions under
sponsible
the extreme
conclusory.
but
anything
that are
tions
in the United States.4
Arar was held
which
Indeed,
sup-
as much factual
provides
he
majority
that Arar failed
finds
While
port as man
incommunicado could
held
of the
allege
requisite “meeting
to
offer a court at
reasonably
expected
conspiracy,
minds”
necessary
support
stage.
complaint alleges
The
De-
Maj.
Op.
ignores
the fact that
see
was
involved
liability.
McElroy
personally
multiple theories of
fendant
pleaded
pur-
is not for the
extraordinary
extraordinary rendition
majority
rendi-
all
identifies
torture;
claims,
certainly, this
is not
pose
abuse
tion as the context for Arar’s Bivens
majority
that the
attaches
one of the attributes
complaint to the fact of
label that reduces the
563-64,
Maj. Op. at
n.l. All
to that label. See
Maj. Op. at
Syria.
See
his transfer
told,
so,
by
extraordinary
is the method
rendition
doing
majority largely
572-73.
Syria,
transferred to
but it
which Arar was
disregards
and after
the events both before
hardly
injuries
captures
de-
the constitutional
part
parcel
and
of his
Arar’s transfer that
complaint.
in his
scribed
merely allege
relief. Arar does not
claim for
Syria
pro-
without
that he was rendered to
cess,
detention,
was
detained in the
Arar's
Defendant
but that he
first
4. At the time of
days, during
Attorney
which
the United
United States for twelve
Ashcroft was
General of
States;
punitive
Thompson
Deputy
was
condi-
Defendant
time he was held in harsh
General;
tions,
Attorney
coercively interrogated,
Defendant
and deliberate-
United States
consulate,
counsel,
the Director of the Feder-
ly
his
Robert Mueller was
denied access to
(FBI);
Investigation
Compl.
by
al Bureau of
Defendant
the courts American officials.
2, 4, 32-49,
Moreover,
Immigration
¶¶
purpose
Ziglar
was Commissioner
91-93.
(INS);
Naturalization Service
Defendant
of this mistreatment was
and culmination
Regional
was
of the INS
States.
Director
simply Arar's removal from United
Blackman
District;
Rather,
McElroy
allegedly
Defendant
set out to
the Eastern
American officials
intending
for the New
Syria
or know-
for the INS
him to
either
was District Director
render
there,
District;
1-10 were
ing
City
and John Does
Arar would be tortured
York
employed by
agents
by providing
information
federal law enforcement
aided this abuse
¶¶
¶1¶
Compl.
14-22.
hopes
the FBI or INS. See
captors.
One
his
See id.
55-57.
in Arar’s failure to receive the assistance
claim
overwhelmed
“obvious alter-
¶43.
Compl.
counsel. See
It alleges
explanation”
native
his
arrest
—that
Thompson
that Defendants Blackman and
a “nondiscriminatory
stemmed from
intent
approved
expedited
Arar’s
personally
to detain aliens ...
potential
who had
con-
to Syria,
transfer from
United States
nections to those who committed terrorist
implicating
inability
these officials
his
Id.
(quoting
acts.”
at 1951
Twombly, 550
¶¶ 15,
access the courts.
47-48. And
Id.
1955).
Apparently
it recounts
statements
American
having their own views about the defen-
interrogators that they
discussing
were
his
mind,
dants’ state
simply
¶ 45;
“Washington
situation with
Id.
D.C.”
Iqbal’s
found
discrimination claim incredi-
Security,
also
Dep’t
see
Homeland
Of- ble.
General,
Inspector
fice
The Removal
*54
in
Plausibility,
analysis,
a
this
is
relative
(“OIG
a
Syria
of Canadian Citizen to
Re-
Allegations
measure.
are deemed “conclu
at
port”)
(reporting
and INS
DOJ
sory”
only
where
recite
the elements
Washington,
officials in
of
D.C. learned
They
of the claim.
implausible
become
apprehension on
of
evening
Arar’s
when the court’s commonsense
far
credits
Thursday, September
12 days
likely
more
inferences
the available
he
Syria
before
was rendered to
via Jor-
Mills,
facts. See Harris
22 A.D.
dan).
broadly,
More
Arar details the
(2d
Cir.2009).
572 F.3d
71-72
Plausi
held,
which
harsh conditions under
he was
bility thus
depends on
host of consider
searches,
including shackling, strip
admin-
picture
ations: The full factual
presented
segregation, prolonged
istrative
interroga-
complaint,
particular
cause of
tion, and a near communications blackout.
elements,
action and its
and the available
¶¶
Notably,
See id.
29-47.
these are not
explanations.
Iqbal,
alternative
See
“[tjhreadbare
recitals
elements of
at
implies,
S.Ct.
1947-52. As Rule 8
action,
of
supported by
cause
mere conclu-
only
claim should
be
at
dismissed
sory
Iqbal,
statements.”
S.Ct.
pleading stage
allegations
where the
are so
They easily satisfy
requirements
of
general, and the
explanations
alternative
Iqbal
both
and also Rule whose “short
so
compelling,
longer
the claim no
plain
remains
statement”
the baseline
appears plausible.
8(a);
See Fed.R.Civ.P.
notice-pleading.
See Fed.R.Civ.P.
Twombly,
Even
context,
by
“special factors” cited
that in
instances constitutional inter-
new
those
him
justify denying
by
adequately
do not
addressed
ests have been
“special.”
legislative
because
relief
branch. See Schweiker
state
largely duplicate
concerns—like
They
487 U.S.
Chilicky,
secrets,
immunity,
qualified
(“When
sovereign
design
101 L.Ed.2d
by other doc-
immunity amply addressed
suggests
program
of Government
—
disposal.
at the
See Davis
trines
Court’s
Congress
provided
what
considers
Passman,
228, 246, 99
for
adequate remedial mechanisms
consti-
(1979) (refusing to hesitate
in the
tutional violations that
occur
factors
special
where
were “coextensive
administration,
we have not
course of
protections
with the
afforded
remedies.”).
created additional Bivens
Clause”).
col-
My
Speech
Debate
hand,
legislative
On
other
where no
leagues
greater
make these
arguments
remedy exists,
reaffirms
courts’
Bivens
majori-
detail,
cataloging
flaws
can
power
ensure
individuals
obtain
I
ty’s
analysis.
emphasize
write
injuries.
relief
constitutional
The
remedy
heightened
need for a Bivens
courts,
framework,
provide
this
within
executive offi-
cases such as this where
resort;
Bivens, they
through
forum of last
deliberately
have
thwarted the reme-
cials
guarantees
stand behind constitutional
ne-
Congress and
provided by
dies
obstructed
glected by
political
branches. Com-
to the
Arar’s claims in this
access
courts.
Bivens,
pare
621
analysis
leged, together
indicated that
availability
nonetheless
with the
of oth-
Davis,
“weight]
for and against
245,
should
reasons
er relief.9 See
442
at
U.S.
99
action,
of a
of
the
the creation
new cause
2264 (finding “special
S.Ct.
concerns” over-
always
way
judges
common law
have
by impossibility
come
of equitable relief
Robbins,
537,
done.”
v.
551
Wilkie
U.S.
appropriateness
of damages remedy).
127
168
389
S.Ct.
L.Ed.2d
limited,
infrequent
is an
So
rem-
(2007). Wilkie,
example,
In
factor
edy,
vitally necessary
it is a
but
one.
In
ultimately
counseled hesitation was
remedy,
out
laying
the Bivens
the Su-
difficulty
distinguishing
of
unconstitu
preme
recognized
Court
very
“[t]he
tional
from lawful
ac
conduct
liberty
essence of civil
certainly consists in
555-61,
tivity.
at
Id.
S.Ct. 2588.
right
every
individual to claim cases, involving
by military
earlier
claims
protection of the laws.”
Butz
Econo-
personnel,
Court
Con
cited
mou,
478, 485,
98 S.Ct.
gress’ plenary authority “To make Rules
(1978)
Bivens,
L.Ed.2d 895
(quoting
Regulation
for the
Government and
1999);
at
U.S.
see also
Forces,”
land
adoption
and naval
and its
Davis,
U.S.
The
it must
provides
it
rights;
relief,
new
any
majori
not create
one that the
pelling basis
existing constitu-
enforcing
mechanism for
charge that
repeatedly sidesteps: The
ty
no other avenue exists.
rights
tional
when
actively obstructed
government officials
invaded,
have been
legal rights
“[WJhere
courts, violating
to
core
Arar’s access
provides
gener-
for a
and a federal statute
process rights. See Tellier
procedural due
invasion, federal
for such
right
al
to sue
(2d Cir.2000) (as
Fields,
v.
Y torture, Congress comes When it to claims, fact, go beyond in Arar’s loudly clearly. Title Sec- remedy. and imperatives spoken usual a Bivens son, J., punishable by concurring). it a felony might tion 2441 makes Factors that commit, or imprisonment conspire to otherwise disappear life counsel hesitation commit, specifically “an act intended to where executive have sought officials or mental or physical pain nullify inflict severe the remedies Congress. chosen cases, suffering person ... another In these upon within courts owe the executive custody Instead, or for the physical his control branch little deference. obtaining provision information or a purpose remedy con- courts’ a substitute § fession.” See also 18 U.S.C. 2340A. an not undertaking simply “appropriate for Syria de- allegedly Arar’s transfer to was a common-law tribunal” but essential for Lucas, signed congressional to skirt the prohibi- the rule of law. Bush v. outsourcing 367, 378, tion on torture this form of Moreover,
interrogation.
in
order
Since the
fails in these
seamlessly accomplish
transfer,
this
responsibilities,
offi-
respectfully
I
dissent.
had to
or
ignore
cials
evade
number
POOLER,
Judge, joined by
Circuit
congressional
other
An immigra-
dictates:
CALABRESI, SACK,
Judges
and
policy
tion
that bars the removal of
PARKER, dissenting.
person
country
to a
where he will
likely
tortured,
judicial
and the INA’s
review
agree
I
with the well-reasoned dissents
provision.
Against
See Convention
Tor- of my colleagues
join
opinions
and
their
in
ture,
Treaty
December
S.
Doc.
I
full.
write separately to note that the
100-20,
No.
U.N.T.
implement-
S.
majority’s
opinion
troubling
by Foreign
ed
Affairs Reform and Re- unusual case should not be misread as
structuring Act of
Pub.L. No. 105-
adopting a
determining
new framework for
XXII,
G.,
§
Div.
Tit.
112 Stat.
claim,
whether to
recognize Bivens
(codified
1231);
§
2681-822
8 U.S.C.
why
I do
explain
agree
not
that Arar’s
1252(a)(2)(D);
§
U.S.C.
see also Tun v.
claim
TVPA
should be dismissed.
(2d
Cir.2006).
INS, 445 F.3d
Fi-
Bivens
nally,
actions
I.
officials’
also foreclosed
opportunity to
Arar’s
seek habeas relief
first
glance, might
At
seem that the
§
under 28 U.S.C.
2241 and the Constitu- majority’s reasoning
respect
with
to Arar’s
tion,
remedy
that the
itself
proceeds
steps:
Bivens claim
simple
two
have
concedes should
been available to
(1)
claim presents
a new context for
Arar.
action,1
special
a Bivens
factors
terms,
complaint
alleges
recognizing
bare
counsel hesitation before
a Bi-
set
remedy.
reading
executive officials
out to circumvent
vens
But a
closer
powers
majority opinion
and undercut the
the legis-
both
reveals far more than a
judicial
lative
branches. Under these mere hesitation to
to a
extend Bivens
new
circumstances,
justifications
light
special
the usual
context
factors. Because
applying
majority’s
hesitation in
Bivens are simply
holdings
bear no relation to
When,
here,
not
present.
executive
its new statements of
principles,
incompatible
Moreover, any
branch takes measures
with those remarks are dicta.
Congress,
simplistic
will
express
implied
such
framework would be con-
“power is at
Youngstown,
trary
its lowest ebb.”
Court’s Bivens deci-
(1952) (Jack-
sions,
require
624
Passman, 442
in Davis v.
recognizing to new contexts
against
for and
reasons both
2264,
228,
remedy.
the
Green,
14,
(1979)
446 U.S.
and Carlson
we
has held that
The
Court
Supreme
(1980),
1468,
nor
15
S.Ct.
64 L.Ed.2d
100
in
following analysis
in the
engage
must
prog-
its
it
that “Bivens and
ever held
recognize
Bivens
considering whether
precise cir-
to the
eny should be limited
action:
Wilkie,
involved.”
cumstances that
question
is
place,
first
there
the
the
(Thomas,
568,
U.S. at
See, 550, 127 id. at e.g., (holding of “deluging federal courts with claims” “any freestanding damages remedy resources, scarcity judicial and the for a claimed but constitutional violation has to represent judgment special about did not these way the best find factors sufficient- implement ly persuasive guarantee”); constitutional to overwhelm Davis’s need *62 626 248, I have searched the Maj. Op. at 563-64.3 99 mechanism. Id. at
for
remedial
omitted).
for
and
majority’s opinion
a subordinate
(quotation marks
S.Ct. 2264
ruling
alternative reme
non-categorical
on
for a
of other remedies
The absence
dies,
is for
and I have found none. This
for
may be a reason
constitutional violation
majority recognizes
The
reason.
good
Wilkie,
a new cause of action.
creating
actively
was
alleged that he
that “Arar has
(consider
554,
551
at
Rather, alleged where the was torture claim TVPA where plaintiffs alleged that a by land, in a foreigners foreign carried out corporation U.S. “hir[ed] and directed] its majority draws a line between employees agents,” including a power actual under and/or foreign exercise law mayor, Guatemalan “to torture the Plain- facilitation, encouragement, and the or so tiffs and threaten them with death.” that power. licitation of exercise Id. at allegation F.3d 1265. The that the cor- unprincipled. 568-69. This distinction is poration joint in law, participated action agency persons Under two en with “when gage jointly in a Guatemalan official was sufficient.6 I partnership for some objective, principled see no apply criminal law them reason to different deems agents one rules context another. Each is deemed TVPA than the Sec- context, to have acts tion 1983 agent authorized the and declara to federal defen- tions of the other than carry corporate defendants, undertaken to out dants or to ac- joint objective.” their United States v. tors in the United States than actors on Russo, (2d Cir.2002). F.3d It is soil.7 foreign alleges that defen- action,” majority's perplexing statement if a volved "state and not whether acting federal corporation acting official were found be under U.S. was in Guatemala law, foreign law, color it "would render a U.S. under color of U.S. or Guatemalan context, foreign government,” official an official of a inquiries Section 1983 the two n.3, See, Maj. Op. simply interchangeable. at 568 A e.g., Lugar is incorrect. Co., private actor is not state transformed into a Oil Edmondson merely (1982); official because he acted color under S.Ct. see also law, Dennis, 27-28, Co., of state see 449 U.S. at Sinaltrainal v. Coca-Cola (1980), (11th Cir.2009). there is no reason analogous would this be the case TVPA context. plaintiffs plausibility 7. Because must meet a against standard for claims federal officials Although question Iqbal, supra, in Aldana was wheth- under I am not con- Ashcroft private security subjecting er violence in- force cerned that federal officials lia- dissenting remedy. especially
dants, Syrian with offi- U.S. acting concert Judge Parker. opinion un- cials, through torture interrogated him law, could they which Syrian der color of this, have All as the other dissenters under color of accomplished demonstrated, not have surely bad powerfully failing, I one last enough. write to discuss law alone. that, although may not an unsoundness cor- Thus, panel that the agree I cannot Maher Arar significant be most rectly question the TVPA determined himself, signal us as importance question. of law” the “color unwavering majority’s judges: federal engaged prop- It has what willfulness. respectfully I therefore dissent. must ju- extraordinary can described as erly long- It activism.1 has violated dicial CALABRESI, Judge, joined Circuit standing properly of restraint canons PARKER, POOLER, SACK, and Judges guide complex when face must courts dissenting. poten- that involve searing questions Judge I join I dissent. respectfully rights. tially constitutional It fundamental Parker’s, Sack’s, Judge Pooler’s Judge out to decide an issue that has reached I But, opinions in full. because dissenting stage been should have resolved history distin- when the of this Moreover, this, believe that in doing of Arar’s ease. written, majority guished today’s holding court is justified court with side (as I dismay, add to other fields of law such as will be viewed comments decision torts) wrong. sweeping are both own, more in my “... few words up colleagues That the Hamlet, act sc. anger.” than sorrow —made *66 all with greatly respect I done this —has 2. intentions, best belief the of My already provided have colleagues in a of holding necessary that its is time major- path the the ample regret reason crisis, I not doubt. But this does not do ity utter has chosen. its subservience times, my alter that in calmer conviction branch, of its distortion the executive people will ask themselves: how could wise doctrine, pleading its unrealistic Bivens worthy judges able and have done such standards, the misunderstanding of that? 1983, § in its of as well as TVPA and I nar- persistent choice of broad dicta where sufficed, the ma- analysis row would have reaching I focus on the out first willful seriously astray. It jority goes opinion question. a hard to decide constitutional moreover, so, that a does result deeply “If there one doctrine more root- is (a) must assume was person we of any process than other consti- ed —whom (b) innocent and was made to suffer totally adjudication, ought it is that we tutional (c) excruciatingly through misguided pass questions constitutionali- not to of of acting adjudication individuals under color ty deeds of ... unless such unavoid- Serv., Inc. v. effectively Spector law—is left without able.” Motor federal resolved, what need not be the violation of bility open the TVPA would the flood- under litigation. gates But see Chief Roberts called "the cardinal to a wave of meritless Justice Hayden, F.Supp.2d principle judicial at 41. it is not nec 444 of restraint —if more, necessary essary to not to decide DEA, Labs., phrase PDK Inc. U.S. "judicial decide more.” I this much abused use J., 786, (Roberts, sense, (D.C.Cir.2004) activism,” 799 in its literal to mean concurring). unnecessary reaching issues out decide
631
101, 105,
McLaughlin,
question
today’s majority
65 S.Ct.
The
elects
(1944).
152,
L.Ed. 101
89
implicates
prin-
decide
this fundamental
ago
that it
long
Court
made clear
would ciple. This is because the existence vel
'“pass upon
that we should
not—and
meriting
non of a claim
remedy,
Bivens
not—
question although properly-
a constitutional
any
of
congressionally
absence
man-
record,
presented by the
if there is also
relief,
dated
ais matter of constitutional
upon
present
ground
some other
which the
interpretation.
early
itself,
As
as Bivens
disposed
case
of.” Ashwander v.
the Supreme Court made clear that
288, 347,
466,
297
S.Ct.
U.S.
56
80
TVA
recognized
cause of action it
arose “under”
(1936)(Brandeis, J., concurring);
L.Ed. 688
Bivens
Constitution.
v. Six Unknown
also,
Louisiana,
e.g.,
see
Alexander v.
405
Agents
Named
the Fed. Bureau Nar-
625, 633, L.Ed.2d
cotics,
(1972) (“[W]e
follow our usual custom
L.Ed.2d 619
As Justice Harlan
avoiding
decision of constitutional issues
said in his influential concurrence in Bi-
unnecessary to the
decision
the case vens, “the
legal
source
interest”
us.”);
States,
before
Burton v. United
protected
Bivens action is “the
concerns for
separation
powers
Court
said must be
Harbury.
avoided in
trenching on matters committed to the
And
circumstances,
such
job
it is our
put
other branches.
the need
Since
to re-
“the
position
trial court ...
solve such
as soon
ought
constitutional
issues
as
possible in
litigation
be
know
possible,
avoided where
whether a
[courts]
potential
possible
ruling may
...
constitutional
should
as soon as
be obvi-
ated.” Id. at
litigation
122 S.Ct.
poten-
whether a
2179. For
[determine]
reasons that will be clear soon
ruling may
enough,
tial constitutional
it
obviat-
that,
remand,
well be
allegations
ed because the
this case
denied ac-
would,
reasons,
for non-constitutional
cess
to state a claim on which
“fail
fail
relief
to state a claim on
relief
granted.
could be
which
could be
granted.”
417,122
Id. at
S.Ct. 2179. That
added).
(emphasis
Id. at
Env’t, 94-95, 1003, 412 n. But the 2179. constitution- (1998), apply L.Ed.2d 210 of them none here. us, question al balancing before of two The existence a interests, vel non of Bivens action is not one constitutional an individual jurisdictional a prerequisite that must right be re- of security one a matter national doubt, solved first. If was ever in separation powers, this it has of is the same one as - Iqbal, by been resolved Harbury. was avoided in Ashcroft opportunity or of an plaintiff I if I had a a defendant If —as would Bivens question.8 See, e.g., Zuckerbraun v. make case. to decide to question the were to face —-we Dynamics Corp., Gen. remedy Bivens then some applies, that (2d Cir.1991); see also United States regardless of Con- necessary would be majority Reynolds, If, as preference. the gress’s v. United (1953); El-Masri do, not L.Ed. Bivens that does to we rule chooses States, (4th Cir.2007) that, variety F.3d a wide apply, we have said (“[A] pro- proceeding in which the state secrets cases, give the fails to of Constitution successfully must require parsing privilege interposed a is Both positions tection. if the circumstances make When a deci- be dismissed the Great such of Charter. avoided, that will be so privileged we do our clear information cannot so be it: sion be avoided, any attempt to to litigation But it can central the job. where be will threaten that information’s proceed should be. disclosure.”). this, a case as such the the where Government asserts II implicates national plaintiffs claim vital se- the Bivens issue So, have might how must, crets, we before we move the Judge explains Sack avoided? As been merits, of our consequences examine the dissent, eloquent might this be done his duty guard against any potentially through examining significance first harmful disclosures. privilege state secrets to this case.9 obviously our con- long required majority dismissal The shares privilege That secrets, security protection in those rare cases where national cerns about the of state drastically virtually every “special so factor” identi- interests limit the evidence majority opinion as to either in the concerns deprive that can be introduced fied clas- majority disputes Judge traordinary degree and activ- At footnote of willfulness in the propositions Pooler’s statement that ism. Maj. Op. accompanying are dicta. text See majority 9. At footnote states majority The then characterize seeks to holdings. privilege, despite its common propositions as But whether state secrets those origin, something holding objective law not devoid of constitutional im- or dicta is an is Maj. Op. depend plications. on it is charac- at 603-04. That fact and does not how by majority way either It fact terized a or a dissent. well be. But that in no means par- regardless applicability it is calls it. a is what what one that decisions as to James, paraphrase my professor Fleming privilege To entail ticular claim of constitu- Thucydides you call it existing "You can call it or can interpretations. tional The common plaster, holding] it is privilege [dicta mustard but law more than covers whatever the just analogy the same.” requires. The proper Constitution Congress pass quite simple. If were a majority fact that the to call the The wishes statute, 1983, giving § cause instructive, akin to broad propositions holding is however. officials, injured action those federal propositions they holding then If that statute would not nor- decisions under virtually all actions in would eliminate interpretations. mally involve constitutional despite this circuit. would do so And though, assertions, so And this would be even elsewhere in the statute, Bivens, absence such a constitu- opinion, recognizing a Bivens action in claim, might lie. is so with extraordinary uniquely tional The same case would respect applications common law dangerous. majority's desire to make breadth, "holding” privilege. As an excuse for the question state secrets of such as to majority's entailing interpretation, in a violation of canon constitu- constitutional which, argument not make argue, likely be re- tional avoidance this does case as I could truly grounds, displays ex- it to first base. solved other *70 But, Judge says, wholly turned out illusory, material. Sack to be there sified double-counting of Indeed, amounts to the would be no recourse! if the even preserving state Government’s interest every Government declassified document opinion of dissenting Judge See secrets. case, relating even if to this all four coun- already possess a at 601. We well- Sack tries involved they announced had secrets, protecting method for established nothing to hide and that Arar’s claim adequate is than to meet one that more the proceed they should so that could be exon- Denying a majority’s concern.10 Bivens erated, judicial there would be no open remedy might because state secrets be testing allegations. ap- of Arar’s Which denying a a criminal revealed is bit like proach us give should more cause to hesi- might be intimi- juror trial for fear that a tate? risk, it the dated: allows a law is eliminate, already at great pains majority to ne- further errs its use and rights gate entirely proce- substantial abuse of other of law. fields trying dures. find “special that could justify factors” bar- (but ring a claim do depend Bivens not is the mystifying majority’s
Even more secrets”) majority “state points the two pref- that it respecting “[t]he insistence every issues that arise in tort suit against open than erence rather clandestine government If Maj. they official. Op. at are valid here proceedings.” court How, exactly, majority promote appear does would to counsel the “hesitation” (and, a constitutional deci- openness shaping majority’s under reasoning, sion around the fact that state secrets seemingly preclude) every Bivens action. be involved in a claim? The state might First, majority warns that risk “[t]he undoubtedly doctrine in tension secrets graymail ... counsels hesitation in cre- access to public right ating remedy.” Maj. Op. at 579. courts, majority’s approach but the is more Because the risk of unwarranted and dan- any than opaque state secrets resolution. gerous high, so disclosure is the Govern- applies a court properly When the state pressured ment will be into settling merit- doctrine, pro- bar will secrets case Second, less as a consequence cases. only if state alleged ceed secrets are Government, graymail, such rather defense, not vital to a claim or so there defendants, than up individual would wind should be little fear that substantive paying Maj. Op. off claims. See at 580. holding ultimately will turn on secret ma- possibilities Because these are “an endem- contrast, By terial. consider the harm (however few) ic risk in in- cases which openness system done of the court Arar’s,” volve a claim majority like does here. It what bars concludes, they make Bivens par- actions action in of what any the face we are ticularly Maj. inappropriate. Op. at 579. outrageous required assume are consti- But both of these issues—the violations, risk simply tutional does so graymail disjunction and the between indi- might possibly state because secrets be involved, vidual and an indemnifying without a court defendants having look into result, very question. present every As a even if the tort suit —are secrecy against government agent, just Government’s claimed need for Indeed, anything, existing spread may if doctrine concern that doctrine be over- used, secrecy, too solicitous of the need for if the it is hard to who find commentators many Reynolds inadequately pro- line are think that critics of the correct. state secrets tected law. Part IV. But while there is wide- under current infra *71 ma- always inappropriate. And while the involving extraordi- relatively “few” cases that, purposes jority of tor- mat- nary right policy rendition for the could be as a first, point ter, latter both Taking ture.11 against financially indifferent tort suits are uni- unwise, state and federal officers almost are we as fed- defendants are who they versally by the State if indemnified judges to that is appellate say eral what cases, feder- tort suits. In Bivens lose every standard tort law state government employees al “indemnifies nation, repeatedly ap- and what has been judgments tort or against constitutional every proved by Court and (in rare instances in which settlements circuit, fatally unacceptable? federal is monetary in a liabil- a Bivens claim results As to in civil suits graymail, defendants litigating ity) responsibility and takes settle, always subject pressures are to to Pillard, Taking suits.” T.L. such Cornelia yet has never been a rea- this considered Seriously: Strange Results Fiction of categorically son to of suit type bar Liability Un- Public Individual Officials’ against the de- government officials. Is Bivens, L.J. der 88 Geo. sire to the revelation avoid of state secrets Indeed, matter ... indem- practical “[a]s a (a already that fully desire is accommodat- certainty.” nification is virtual Id. at doctrine) ed secrets so differ- state understood, Similarly, widely as is “a suit avoid, example, ent from the desire to against functionally a suit state officer devastating reputational injury, which will state, for the state against defends entity’s often drive a re- state federal adverse pays judgment. action sponse to a suit? How hassle at- is the assessed, far as can not So is true tendant on a claim like “en- Arar’s—the occasionally haphazardly perva- but meshing government lawyers” and the of] Jeffries, sively dependably.” John C. “eliciting government funds for settle- of] Jr., In Praise the Eleventh Amendment of ment,” Maj. Op. at much worse 574—so 47, 50 and Section 84 Va. L.Rev. (citation omitted). types here than it is in the of that suits majority’s So the every to permit state has chosen and that if point proves far too much: a Bivens all three branches federal Govern- action is where the individu- inappropriate accepted al are ulti- ment have since Bivens was is- pocketbooks defendants’ mately risk, years ago? then Bivens actions are sued almost 40 is, except Report 11. That to the extent "state secrets" liable to Mr. Arar.” Relat- Events are, ing Analysis involved. to Maher Arar: And to the extent & Recommenda- tions, discussed, already Inquiry privilege secrets Commission into the Actions the state preclude graymail. than Canadian Officials Relation to Maher more sufficient to 18, 2006). (Sept. power Arar 362 It had no subject graymail, something payment, just 12. On the recommend but instead ex- response majority’s pressed surrounding must be said in the facts treat- Arar’s ment, spelling remarkable that Canada’s insinuation Canada has been out conduct vis-á-vis graymail Maj. pages the victim of Arar at Arar's hands. in hundreds of of detail. The ("It Op. report nothing government is not for 580-81. Canadian considered (the compensate apologize government, Canada not an individual and decided to words, it) dollars.”). voluntarily paid million Arar. es- $10 officer In other Canada government purpose The Canadian decided its own a commission tablished entire inquiry publicly into accord initiate an its role in which was to determine and discuss Arar; treatment, investigation operat- Arar’s an what the Canadian did to it independently inquiry ed then facts suits. That assessed those and concluded "specifically making any negotiate precluded was from a settlement with him and should (or assessments) findings apologize formally even as whether for the of Canadian role civilly Many the Government of Canada would be officials. lessons could be drawn *72 These, then, majority’s are the Privilege, determi- Memorandum from the Attorney a mix “special native factors”: of risks that Gen. to Heads of Exec. Dep’ts Agen- 23, 2009), by cies amply (Sept. addressed the state secrets http:// available at www.usdoj policy .gov/opa/documents/state- doctrine and concerns that inhere in secret-priviliges.pdf. all Bivens actions and in innumerable ev- There is much to these concerns. But I ery-day tort actions as well.13 This mala- would note three reasons that a threshold daptation analysis, of a far I dismissal for want as tell, evidence due to the by can a existence of state motivated belief that the (if secrets that eventually were majority’s holding necessary determined protect necessary) preferable would be But, to the con- security. our nation’s Ias have al- stitutional holding today. made said, And this ready worthy concern both can so, would be I suggest, quite apart from be and should be protected by already importance adhering to the canon of existing ordinary by reaching law and not constitutional avoidance. potentially out and warping the Constitu- tion. First, a party dismissal because a simply (for secrets) cannot reasons of prof- state
Ill
necessary
fer
says
evidence
nothing about
the merits of
underlying
claim.14
The state secrets
recently
doctrine has
While this
be deeply unfair to a party
criticism,
significant
come in for
much of it
(as
who
grievously injured
has been
we
particular,
warranted.
many commen-
was), it,
must
least,
assume Arar
does
tators —not to mention the Obama admin-
damage
no
to the legal
standards
which
a
panel
istration and Ninth Circuit
—have
parties’
other
judged.
claims are
suggested
outright
a
dismissal of case
grounds
Second,
on state secrets
should be disfa-
practice
a routine
of first con-
See, e.g.,
vored.
Jeppesen
Mohamed v.
sidering state secrets avoids the risk of a
Inc.,
(9th
Dataplan,
563 F.3d
type
certain
gamesman-
Government
Cir.2009),
943, reh’g ship.
amended at 579 F.3d
If the
option
Government has the
granted by
08-15693,
en banc
No.
2009 seeking a state secrets dismissal both be-
WL
U.S.App.
fore and after a decision on some open
23595;
LEXIS
Policies and
question,
Procedures
then it
ability
has the
to moot
Governing Invocation
the State
rulings.
Secrets unfavorable
Consider the strate-
process
response
for the American
“policy”
cause it can be described as a
or
Arar’s,
allegations
thing quite
like
but one
"policy”
"interest.”
If the DEA had a
clearly
happened
searches,
cannot be said: that
conducting
what
warrantless home
would
graymail.
Bivens,
Canada is tantamount
we hesitate to influence it? See
389-90,
U.S. at
gy branches, sought do so not the District Court would filing political before In its brief for secrets dismissal. state to Arar is of that the harm done holding however, it had hearing, this en banc to -the judiciary Con- after concern to no ruling from *73 a favorable substantive won instead, so, by ac- It would do stitution. the Gov- panel, and the District Court limitation— knowledging an institutional interest in a any did not mention ernment secrets —that presence of state due to It a secrets dismissal.15 state remand merits of Arar’s of the independent is that, the Dis- likely had more than seems would, invite other thereby, claim and against found panel or the trict Court possible into those merits. to look branches question, on the Government arguing to us that would be Government my Whether point. This leads to final pend- be vacated below should opinion constitutionally extraordinary rendition is To be a secrets determination. ing state that seems to question is a permissible sure, to fire all of obligation a has no party It to me obvi- country. our seems divide argument single when a guns its once however, ous, regardless pro- that And I a claim down. do can shoot renditions, an issue on which priety of such motive on the imply devious mean my strong feelings, mistakes I won’t hide in this case in part of the Government operation. And more be made will is no reason to But there particular. polity, when still is that a civilized obvious facilitate such con- our law to structure errs, give it redress. it admits and seeks duct. countries, through a In this occurs some Third, important, holding a and most States, In royal commission. the United Arar, allegations his even all if worse, are, courts almost for better or true, constitu- suffered no remediable so, universally, being This involved. legitimates tional harm Government’s the Constitution it- regardless of whether way that a secrets dis- actions a state redress, such requires that there be self that Arar would not. The conduct missal judi- object must be to create and use majority alleges repugnant, sig- but the giving cial structures facilitate it intends to or not—that it nals—whether victims, innocent compensation, at least to Indeed, constitutionally repugnant. is not disclosure those protecting while legal states that the expressly without en- facts that cannot be revealed alleges of the conduct Arar significance might That security. national dangering entirely left a matter that should be through application well occur here Maj. atOp. whim. See congressional doctrine.16 It sophisticated state secrets dismissal would simi- While state secrets true, however, essentially fair- are true or then all argument, the Govern- 15. At oral accept including did indicate that it could such people, ment those who believe minded remand. protected, that state secrets must be proceed, rendi- cannot and that this lawsuit Judge closing El- 16. Consider the remarks of step necessary to take in this tions are a dismissal of Khaled lis in his state secrets war, agree that El-Masri has must also allegations: ElMasri's similar country’s injuries of our as result suffered important emphasize that the result It is Yet, remedy. it is and deserves a mistake settled, required by here is control- reached reached here that also clear from the result of, adjudication ling way an law. It is in no remedy only must be the sources of that on, the merit or lack of merit or comment Legislative Executive Branch [Pjutting complaint.... aside of El-Masri’s Branch, issues, allegations not the Judicial Branch. legal all the if El-Masri’s when, outset, at the Finnegan, Firestone, Agatha does not occur Scott C. Groski, Henry, though assumed true constitu- Edel Karl A. Mark D. claims— lacking tionally significant treated Higgins, M. Frances Libous Ellen —are just today’s any remedy. And this is what Paprocki, Capaci- O. Their Official hampers It an holding unfortunate does. ties as Members of the New York error, occurred; if it admission of error Compensation Board, State Workers questions constitutional decides Defendants-Appellees. avoided; is, submit, I
should be on all Docket No. 09-1215-cv. counts, I utterly wrong. therefore must regretfully, emphatically, but dissent. Appeals, United States Court of
Second Circuit. Argued: June Decided: Nov.
LIBERTY MUTUAL INSURANCE
COMPANY, Liberty Mutual Fire In Liberty Company,
surance Insurance
Corporation, Company, LM Insurance
Employers Company Insurance
Wausau, Wausau Business Insurance
Company, Wausau General Insurance
Company, In Wausau Underwriters Company,
surance Peerless Insurance Indemnity
Company, Peerless Insur Company,
ance The Netherlands In Company,
surance Excelsior Insur Company,
ance The American Fire Casualty Company, The Ohio Ca
sualty Company, Insurance Plaintiffs-
Appellants, HURLBUT,
Robert H. Donald T. Decar
lo, Bowen, Carpenter, F. C. Scott John Hughes, Loiodice,
Denis M. Charles L. Loughlin Jr., A.
William O’ Kenneth Smith, Theobalds,
R. Patricia In Their Capacities
Official as the Commis
sioners of the New York Insur State Fund, Zachary Weiss,
ance S. Donna
Ferrara, Bargnesi, A. Mona Richard Bell, Chapey,
A. Geraldine Candace K. Tenet, (E.D.Va.2006). F.Supp.2d El-Masri v. 540-41 notes cert. says they it.24 But “outsourced” we (2008). question do not think that the whether the sum, defendants violated Arar’s substantive due we do not view the current process rights turns on whom select- action as presenting a “new context” in torturing,25 ed to do the or that such “out- relevant sense. We therefore do not sourcing” changes somehow the essential think we must decide whether “to devise character of the acts within Wilkie, the United damages new Bivens action.” States to which Arar seeks to hold the here. defendants accountable. Devising V. a New Bivens Damages We think Arar states a substantive Action process due claim under either of two the- ories of substantive due process liability: apart Even from our disagreement with “special relationship liability” or “state- present Arar’s claims ereated-danger liability,” Benzman v. new context which to extend Bivens Whitman, (2d Cir.2008) liability, puzzled by we are majority’s (internal omitted). quotation marks analysis Un- as to whether to do Having so. doctrine, der the latter the defendants can decided that the issue for our consider- be held liable for “tak[ing] an affirmative ation is whether a Bivens action should be quotation 23. The full dependent is: us on some of the world’s most actors, unsavory and abandons accountabili- establishing [T]he freedom of the state in ty. approach It is an we associate with crime policy gov- freedom of constitutional families, great not with Philip nations.” Bob- requirement ernment and is limited bitt, Terror and Consent: The Wars process of due of law. Because a State Twenty-First Century 388 “[0]ne trial, may dispense jury awith it does not get could the worst of both worlds: national