Donald Vance v. United States ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-1687 & 10-2442
D ONALD V ANCE and N ATHAN E RTEL,
Plaintiffs-Appellees,
v.
D ONALD R UMSFELD and
THE U NITED S TATES OF A MERICA ,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 6964—Wayne R. Andersen, Judge.
A RGUED F EBRUARY 10, 2011—D ECIDED A UGUST 8, 2011
Before M ANION, E VANS, and H AMILTON, Circuit Judges.
H AMILTON , Circuit Judge. This appeal raises funda-
mental questions about the relationship between the
citizens of our country and their government. Plaintiffs
Donald Vance and Nathan Ertel are American citizens
and civilians. Their complaint alleges in detail that they
were detained and illegally tortured by U.S. military
2 Nos. 10-1687 & 10-2442
personnel in Iraq in 2006. Plaintiffs were released
from military custody without ever being charged with
a crime. They then filed this suit for violations of
their constitutional rights against former Secretary of
Defense Donald Rumsfeld and other unknown defendants
under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs seek
damages from Secretary Rumsfeld and others for their
roles in creating and carrying out policies that caused
plaintiffs’ alleged torture. Plaintiffs also bring a claim
against the United States under the Administrative Pro-
cedure Act to recover personal property that was seized
when they were detained.
Secretary Rumsfeld and the United States moved to
dismiss the claims against them. The district court denied
in part Secretary Rumsfeld’s motion to dismiss, allowing
plaintiffs to proceed with Bivens claims for torture and
cruel, inhuman, and degrading treatment, which have
been presented as Fifth Amendment substantive due
process claims. Vance v. Rumsfeld, 694 F. Supp. 2d 957(N.D. Ill. 2010). The district court also denied the gov-
ernment’s motion to dismiss the plaintiffs’ property claim.
Vance v. Rumsfeld, 2009 WL 2252258 (N.D. Ill. 2009). Secre-
tary Rumsfeld and the United States have appealed,
and we consider their appeals pursuant to 28 U.S.C. § 1291and 28 U.S.C. § 1292(b).
We agree with the district court that the plaintiffs may
proceed with their Bivens claims against Secretary
Rumsfeld. Taking the issues in ascending order of breadth,
we agree first, applying the standards of Federal Rule
Nos. 10-1687 & 10-2442 3
of Civil Procedure 12(b)(6), that plaintiffs have alleged in
sufficient detail facts supporting Secretary Rumsfeld’s
personal responsibility for the alleged torture. Second, we
agree with the district court that Secretary Rumsfeld is not
entitled to qualified immunity on the pleadings. The
law was clearly established in 2006 that the treatment
plaintiffs have alleged was unconstitutional. No rea-
sonable public official could have believed otherwise.
Next, we agree with the district court that a Bivens
remedy is available for the alleged torture of civilian U.S.
citizens by U.S. military personnel in a war zone. We see
no persuasive justification in the Bivens case law or other-
wise for defendants’ most sweeping argument, which
would deprive civilian U.S. citizens of a civil judicial
remedy for torture or even cold-blooded murder by
federal officials and soldiers, at any level, in a war zone.
United States law provides a civil damages remedy for
aliens who are tortured by their own governments.
It would be startling and unprecedented to conclude
that the United States would not provide such a remedy
to its own citizens.
The defendants rely on two circuit decisions denying
Bivens remedies to alien detainees alleging that U.S.
officials caused them to be tortured, one case arising
from war zones, Ali v. Rumsfeld, ___ F.3d ___, 2011 WL
2462851 (D.C. Cir. June 21, 2011) (detainees in Iraq and
Afghanistan), and the other as part of the war on terror,
Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc)
(“extraordinary rendition” case). Those claims by aliens
are readily distinguishable from this case based on the
different circumstances of aliens and civilian U.S. citi-
4 Nos. 10-1687 & 10-2442
zens. Whether or not one agrees with those decisions, the
difficult issues posed by aliens’ claims should not
lead courts to extend the reasoning in those cases to
deny all civil remedies to civilian U.S. citizens who
have been tortured by their own government, in viola-
tion of the most fundamental guarantees in the constitu-
tional pact between citizens and our government.
As to the modest property claim against the United
States, however, we agree with the government that the
Administrative Procedure Act’s “military authority”
exception precludes judicial review of military actions
affecting personal property in a war zone, and we
reverse the district court’s decision on that claim.
I. Factual and Procedural Background
A. Factual Allegations
Plaintiffs Donald Vance and Nathan Ertel have alleged
sobering claims that they were tortured by U.S. military
personnel while they were detained indefinitely at Camp
Cropper, a U.S. military prison in Iraq in 2006, during the
ongoing Iraq War.1 Because this case comes before us
1
The amicus brief filed by former Secretaries of Defense and
former Members of the Joint Chiefs of Staff in support of
Secretary Rumsfeld and the government points out that the
United States technically operated in Iraq through 2008 as
part of the Multinational Force — Iraq (“MNF-I”). We assume
that the forces holding Vance and Ertel were under the
authority of the United States. Like the amici, we refer to the
(continued...)
Nos. 10-1687 & 10-2442 5
from the denial of a motion to dismiss, we assume the
truth of all well-pled allegations in the complaint, viewing
those allegations in the light most favorable to the plain-
tiffs. See Muscarello v. Ogle County Bd. of Comm’rs, 610
F.3d 416, 421 (7th Cir. 2010), citing Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009). We do not vouch for the truth of
the allegations. By seeking dismissal under Rule 12(b)(6),
however, the defendants have asked us to decide the
issues based on the assumption that the allegations
are true. We proceed on that basis.
We can only summarize here the key allegations in
the detailed Complaint, with its 79 pages and 387 para-
graphs, citing the pertinent paragraph numbers.2 Vance
and Ertel, two young American civilians, independently
moved from their homes in Illinois and Virginia to work
in Iraq to help “rebuild the country and achieve democ-
racy” following the beginning of the current conflict
there. See ¶¶ 3, 28. In 2005 and 2006, before their deten-
tion, the two Americans worked for a privately-owned
Iraqi security services company, Shield Group Security,
in the “Red Zone” in Iraq, the area outside the secure
“Green Zone” in Baghdad. ¶¶ 33-39. Over time, Vance
became suspicious that the company was involved
with corruption and other illegal activity. ¶¶ 18, 42.
He noticed, for example, that Shield Group Security
1
(...continued)
forces who detained the plaintiffs as the “U.S. military,” not
the “MNF-I.”
2
All references to the Complaint are to the operative
pleading, the Second Amended Complaint.
6 Nos. 10-1687 & 10-2442
officials were making payments to Iraqi sheikhs, which
he believed was done to obtain influence. ¶¶ 41-42.
While Vance was home in Chicago for his father’s funeral,
he contacted U.S. government officials to report his
suspicions. ¶ 43. He met with an FBI agent, who
arranged for Vance to continue reporting suspicious
activity back to Chicago. The FBI agent also requested
that Vance meet U.S. government officials in Iraq to
report his observations. ¶¶ 44-47, 49. Vance told his
friend and colleague Ertel that he had become an infor-
mant, and Ertel contributed information as well. ¶¶ 48-49.
The plaintiffs were frequently in touch with their gov-
ernment contacts, sometimes multiple times a day. ¶ 45.
At the request of a U.S. government official in Iraq,
Vance copied and shared Shield Group Security
documents with U.S. officials. ¶ 47. Vance and Ertel
reported their in-depth observations of individuals
closely associated with Shield Group Security, including
U.S. and Iraqi government officials who were involved
with illegal arms trading, stockpiling of weapons,
bribery, and other suspicious activity and relationships.
¶¶ 45-104. Their whistleblowing allegedly included the
sharing of sensitive information with the U.S. govern-
ment, including reports that their supervisor, who
called himself the “Director” of the “Beer for Bullets”
program, traded liquor to American soldiers in
exchange for U.S. weapons and ammunition that Shield
Group Security then used or sold for a profit. ¶ 95.
Shield Group Security officials became suspicious
about the plaintiffs’ loyalty to the firm. On April 14, 2006,
they confiscated the credentials that allowed plaintiffs
Nos. 10-1687 & 10-2442 7
access to the Green Zone, effectively trapping them
inside the firm’s compound in the Red Zone. ¶¶ 107-12,
116-19. Plaintiffs called their U.S. government contacts
in Iraq for help. They were told that they should
interpret Shield Group Security’s actions as taking them
hostage, and should barricade themselves with weapons
in a room of the compound. ¶¶ 120, 124-25. They were
assured that U.S. forces would come to rescue them. ¶ 124.
U.S. forces came to the compound and took Vance
and Ertel to the U.S. Embassy for questioning. ¶¶ 125-31.
Military personnel seized all of their personal property,
including laptop computers, cell phones, and cameras.
¶ 127. The plaintiffs shared information about Shield
Group Security transactions and were sent to a trailer
to sleep. ¶¶ 130-31.
After two or three hours of sleep, Vance and Ertel,
who were under the impression that they had been
rescued by their government, were in for a shock. They
were awakened and arrested, handcuffed, blindfolded,
and driven to Camp Prosperity, a U.S. military compound
in Baghdad. ¶¶ 131, 138-39. There, plaintiffs allege, they
were placed in a cage, strip-searched, fingerprinted, and
issued jumpsuits. ¶ 140. They were instructed to keep
their chins to their chests and not to speak. They
were threatened that if they did speak, they would have
“excessive force” inflicted on them. ¶ 141. Vance and
Ertel were then taken to separate cells and held in
solitary confinement for what they believe was two
days. ¶¶ 142-43.
For those two days, the plaintiffs were held incom-
municado in their cells, and were not permitted to
8 Nos. 10-1687 & 10-2442
contact their families or lawyers. They were fed twice a
day and allowed to go to the bathroom twice a day.
They each had a thin mat on concrete on which to
sleep, but the lights were kept on 24 hours a day. ¶¶ 142,
161. After two days, Vance and Ertel were shackled,
blindfolded, and transported to Camp Cropper, a U.S.
military facility near Baghdad International Airport.
¶¶ 143-44.
After the plaintiffs were taken to Camp Cropper, they
experienced a nightmarish scene in which they were
detained incommunicado, in solitary confinement, and
subjected to physical and psychological torture for the
duration of their imprisonment — Vance for three months
and Ertel for six weeks. ¶¶ 2, 20-21, 146-76, 212. They
allege that all of the abuse they endured in those weeks
was inflicted by Americans, some military officials
and some civilian officials. ¶ 21. They allege that the
torture they experienced was of the kind “supposedly
reserved for terrorists and so-called enemy combatants.”
¶ 2. If the plaintiffs’ allegations are true, two young
American civilians were trying to do the right thing
by becoming whistleblowers to the U.S. government,
but found themselves detained in prison and tortured
by their own government, without notice to their
families and with no sign of when the harsh physical
and psychological abuse would end. ¶¶ 1-4, 19, 21, 52-
54, 161.3
3
The plaintiffs were informed that they were being held as
“security internees” because they worked for a business that
(continued...)
Nos. 10-1687 & 10-2442 9
Vance and Ertel allege that after they arrived at
Camp Cropper they were strip-searched while still blind-
folded, and issued jumpsuits. ¶ 145. They were then
held in solitary confinement, in small, cold, dirty cells
and subjected to torturous techniques forbidden by the
Army Field Manual and the Detainee Treatment Act.
¶¶ 146, 217-18, 242-44, 265. The lights were kept on at
all times in their cells, so that the plaintiffs experienced
“no darkness day after day” for the entire duration of
their time at Camp Cropper. ¶¶ 21, 147. Their cells
were kept intolerably cold, except when the generators
failed. Id. There were bugs and feces on the walls of
the cells, in which they spent most of their time in com-
plete isolation. ¶ 146. Vance and Ertel were driven to
exhaustion; each had a concrete slab for a bed,
but guards would wake them if they were ever caught
sleeping. ¶¶ 148, 149. Heavy metal and country music
was pumped into their cells at “intolerably-loud vol-
umes,” and they were deprived of mental stimulus. ¶¶ 21,
146, 149. The plaintiffs each had only one shirt and
a pair of overalls to wear during their confinement.
¶ 152. They were often deprived of food and water
3
(...continued)
possessed large weapons caches and that might be involved in
distributing weapons to insurgent and terrorist groups. ¶¶ 179-
80. The plaintiffs adamantly deny any wrongdoing and
allege that the U.S. government officials in Iraq fabricated
these allegations, for which they were never charged, in retalia-
tion for their whistleblowing of “high-value information” that
could reflect poorly on U.S. officials in Iraq. ¶¶ 1, 4, 132.
10 Nos. 10-1687 & 10-2442
and repeatedly deprived of necessary medical care.
¶¶ 151, 153-55.
Beyond the sleep deprivation and the harsh and
isolating conditions of their detention, plaintiffs allege,
they were physically threatened, abused, and assaulted
by the anonymous U.S. officials working as guards. ¶ 157.
They allege, for example, that they experienced “hooding”
and were “walled,” i.e., slammed into walls while being
led blindfolded with towels placed over their heads
to interrogation sessions. ¶¶ 21, 157. Plaintiffs also
claim that they were continuously tormented by the
guards, who would conduct shake-downs of their cells,
sometimes on the false premise that they had discovered
contraband, and who seemed intent on keeping them off-
balance mentally. ¶ 156.
The constant theme of the aggressive interrogations
was a haunting one — if Vance and Ertel did not “do the
right thing,” they would never be allowed to leave
Camp Cropper. ¶ 176. Vance and Ertel were not only
interrogated but continuously threatened by guards
who said they would use “excessive force” against them
if they did not immediately and correctly comply
with instructions. ¶ 158. The plaintiffs allege that this
treatment lasted for the duration of their detention
at Camp Cropper. ¶¶ 2, 165, 176.
While Vance and Ertel were detained and interrogated,
their loved ones did not know whether they were alive
or dead. ¶¶ 1, 161. Eventually, Vance and Ertel were
allowed a few telephone calls to their families but were
not allowed to disclose their location or anything about
Nos. 10-1687 & 10-2442 11
the conditions of their detention or the nature of their
interrogations. ¶ 162. When they were not being inter-
rogated, they were held in almost constant solitary con-
finement. Vance’s requests for clergy visits were denied,
and plaintiffs were forbidden to correspond with a
lawyer or a court. ¶¶ 163-64.
Vance and Ertel were never charged with any crime
or other wrongdoing, nor were they designated
as security threats. ¶¶ 1, 212, 214. Instead, both were
eventually released and dropped off at the airport in
Baghdad to find their way home. ¶¶ 208, 210. Vance
and Ertel both allege that they were devastated
physically and emotionally by what they endured at
the hands of their own government. ¶ 213.
B. Procedural History
Following their release, the plaintiffs sued former
Secretary of Defense Donald Rumsfeld, in his indi-
vidual capacity, as well as unidentified defendants.4 The
4
Plaintiffs explained in oral argument that they were limited
in identifying other defendants given the nature of their
detention in a “sterilized system.” No name tags were worn
by Camp Cropper officials, and the American guards had
code names for each other. The magistrate judge ordered
some discovery so the plaintiffs could identify other defen-
dants. See Memorandum Opinion and Order, Dkt. No. 89
(Dec. 21, 2007) (ordering limited discovery for plaintiffs to
learn identities of unknown defendants responsible for their
(continued...)
12 Nos. 10-1687 & 10-2442
plaintiffs also brought a claim against the United States
to recover the personal property seized from them at
the time they were taken into custody.
Secretary Rumsfeld and the United States moved to
dismiss all claims against them. The district court dis-
missed plaintiffs’ claims against Secretary Rumsfeld for
denial of procedural due process (Count II) and denial
of access to the courts (Count III), but declined to
dismiss their claim that their treatment amounted to
unconstitutional cruel, inhuman, and degrading treat-
ment (Count I). The district court concluded that plain-
tiffs had sufficiently pled Secretary Rumsfeld’s personal
responsibility for their alleged treatment and that
Secretary Rumsfeld was not protected by qualified im-
munity. The district court also rejected the defendants’
argument that “special factors” preclude the recognition
of a Bivens remedy for torture of civilian U.S. citizens in
a war zone. In a separate order, the district court denied
the United States’ motion to dismiss the plaintiffs’
personal property claim.
These matters are now before us in two separate ap-
peals. The district court’s rejection of a defendant’s quali-
4
(...continued)
detention and alleged mistreatment); Minute Entry (Order on
Motion to Compel), Dkt. No. 267 (Jun. 14, 2010) (granting
plaintiffs’ motion to compel discovery). But the district court
later granted the government’s motion to stay proceedings,
including pending discovery requests to identify unknown
defendants, during this appeal. See Minute Entry (Order on
Motion to Stay), Dkt. No. 285 (Nov. 17, 2010).
Nos. 10-1687 & 10-2442 13
fied immunity defense is considered a final judg-
ment subject to immediate appeal, so we have juris-
diction over Secretary Rumsfeld’s appeal, docketed as
No. 10-1687, pursuant to the general appellate jurisdiction
statute, 28 U.S.C. § 1291. See Behrens v. Pelletier, 516
U.S. 299, 301 (1996), citing Mitchell v. Forsyth, 472 U.S.
511 (1985). The broader Bivens issue is “directly
implicated by the defense of qualified immunity” and is
thus also properly before us. Wilkie v. Robbins, 551 U.S.
537, 550 n.4 (2007), quoting Hartman v. Moore, 547
U.S. 250, 257 n.5 (2006). We have jurisdiction over the
United States’ appeal on the property issue, docketed
as No. 10-2442, because the district court certified its
order for interlocutory appeal under 28 U.S.C. § 1292(b).
We have consolidated the appeals for disposition.
II. Analysis
We affirm the district court’s decision on the Bivens
claims in No. 10-1687, concluding in this sequence, from
the narrowest issue to the broadest: (a) that plaintiffs
adequately alleged Secretary Rumsfeld’s personal re-
sponsibility for their treatment, as required under
Bivens; (b) that Secretary Rumsfeld is not entitled to
qualified immunity on the defense theory that a rea-
sonable government official could have believed in 2006
that the abuse plaintiffs have alleged was not unconstitu-
tional; and (c) that a Bivens remedy should be available
to civilian U.S. citizens in a war zone, at least for claims
of torture or worse. We reverse the district court’s
decision in No. 10-2442, concluding that the district court
14 Nos. 10-1687 & 10-2442
should have dismissed the plaintiffs’ property claims
under the “military authority” exception to the Adminis-
trative Procedure Act.
A. Personal Responsibility
To proceed with their Bivens claims, plaintiffs must
allege facts indicating that Secretary Rumsfeld was per-
sonally involved in and responsible for the alleged consti-
tutional violations. See Iqbal, 129 S. Ct. at 1948-49; Alejo
v. Heller, 328 F.3d 930, 936 (7th Cir. 2003). “Because vicari-
ous liability is inapplicable to Bivens and § 1983 suits,
a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions,
has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.
As the Supreme Court said in Iqbal, “[t]he factors neces-
sary to establish a Bivens violation will vary with the
constitutional provision at issue.” Id. Unlike in Iqbal,
which was a discrimination case, where the plaintiff
was required to plead that the defendant acted with
discriminatory purpose, the minimum knowledge and
intent required here would be deliberate indifference, as
in analogous cases involving prison and school officials
in domestic settings. See Farmer v. Brennan, 511 U.S.
825, 842 (1994) (finding that a prison official acts with
“deliberate indifference” if the “official acted or failed
to act despite his knowledge of a substantial risk of
serious harm”); T.E. v. Grindle, 599 F.3d 583, 591 (7th Cir.
2010) (“When a state actor’s deliberate indifference de-
prives someone of his or her protected liberty interest
in bodily integrity, that actor violates the Constitution,
Nos. 10-1687 & 10-2442 15
regardless of whether the actor is a supervisor or sub-
ordinate, and the actor may be held liable for the
resulting harm.”).5
5
The defendants rely heavily on Iqbal, but the case is clearly
distinguishable because of the nature of the alleged constitu-
tional violations. The issue in Iqbal was not what the
defendants (Attorney General Ashcroft and FBI Director
Mueller) actually did, but their subjective purposes — whether
they acted on the basis of religious or ethnic bias or
instead acted to fight terrorism. The plaintiff alleged that the
Attorney General and the FBI Director had established and
implemented policies following the attacks of September 11,
2001 that led to the detention of the plaintiff under harsh
conditions separate from the general prison population, alleg-
edly because of a policy that kept prisoners separate because
of their race, religion, or national origin. Because there was
a legitimate explanation for the policy — the “nondiscrimin-
atory intent to detain aliens who were illegally present in the
United States and who had potential connections to those
who committed terrorist attacks” — the Court held that per-
sonal responsibility was not pled sufficiently where the com-
plaint provided no plausible basis for rejecting that legitimate
explanation. Iqbal, 129 S. Ct. at 1951-52. In this case, by con-
trast, the inquiry before us is whether the plaintiffs have
pled sufficiently that defendant Secretary Rumsfeld per-
sonally established the relevant policies that authorized the
unconstitutional torture they allege they suffered. Iqbal did not
disturb the Bivens and section 1983 principles holding that
a supervisor may be liable as an individual for wrongs he
personally directed or authorized his subordinates to inflict.
(continued...)
16 Nos. 10-1687 & 10-2442
In arguing that the district court erred in holding that
qualified immunity does not protect Secretary Rumsfeld
from liability, the defendants blend both the issue of
Secretary Rumsfeld’s personal responsibility for plain-
tiffs’ treatment and the doctrine of qualified immunity.
These issues are actually quite distinct, and we treat
them separately. We begin by addressing the defendants’
personal responsibility arguments, which are primarily
about whether the plaintiffs have pled a sufficient level
of detail about Secretary Rumsfeld’s personal responsibil-
ity to survive a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. We first examine
the applicable pleading requirements. We then sum-
marize the detailed allegations of Secretary Rumsfeld’s
personal responsibility from the Complaint. Finally, we
address the defendants’ specific concerns about the
Complaint.
We conclude that the plaintiffs have sufficiently
alleged Secretary Rumsfeld’s personal responsibility.
While it may be unusual that such a high-level official
would be personally responsible for the treatment of
5
(...continued)
A similar distinction applies to the Supreme Court’s recent
decision in Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011). There the
Supreme Court held that where the plaintiff’s seizure under
the federal material witness statute was objectively reason-
able, the plaintiff could not pursue a Bivens claim on the
theory that the seizure was pretextual, based in fact on a
different and unconstitutional subjective purpose. See id.
at 2082-83.
Nos. 10-1687 & 10-2442 17
detainees, here we are addressing an unusual situation
where issues concerning harsh interrogation techniques
and detention policies were decided, at least as the plain-
tiffs have pled, at the highest levels of the federal gov-
ernment. We conclude that plaintiffs have sufficiently
alleged that Secretary Rumsfeld acted deliberately in
authorizing interrogation techniques that amount to
torture. (Whether he actually did so remains to be
seen.) We differ with the district court in one respect,
though. We think that the plaintiffs’ pleadings, if true,
have sufficiently alleged not only Secretary Rumsfeld’s
personal responsibility in creating the policies that led
to the plaintiffs’ treatment but also deliberate indif-
ference by Secretary Rumsfeld in failing to act to stop
the torture of these detainees despite actual knowledge
of reports of detainee abuse.
1. Applicable Pleading Requirements
The Federal Rules of Civil Procedure impose no special
pleading requirements for Bivens claims, including those
against former high-ranking government officials. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-14 (2002).
The notice pleading standard under Rule 8 of the
Federal Rules of Civil Procedure applies, and a plaintiff
is required to provide a “short and plain statement of
the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a). The complaint will survive a motion
to dismiss if it meets the “plausibility” standard applied
in Iqbal and Twombly. See Iqbal, 129 S. Ct. at 1949,
quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
18 Nos. 10-1687 & 10-2442
(2007) (holding that “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ ”). “The plausibility
standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id.These pleading rules are meant to “ ‘focus litigation on
the merits of a claim’ rather than on technicalities that
might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d
574, 580 (7th Cir. 2009), quoting Swierkiewicz, 534 U.S.
at 514. At the same time, “a defendant should not be
forced to undergo costly discovery unless the complaint
contains enough detail . . . to indicate that the plaintiff
has a substantial case.” Limestone Development Corp. v.
Village of Lemont, 520 F.3d 797, 802-03 (7th Cir. 2008). We
agree with the district court’s observation in this case:
“Iqbal undoubtedly requires vigilance on our part to
ensure that claims which do not state a plausible claim
for relief are not allowed to occupy the time of
high-ranking government officials. It is not, however, a
categorical bar on claims against these officials.” Vance,
694 F. Supp. 2d at 961. “When a plaintiff presents
well-pleaded factual allegations sufficient to raise a
right to relief above a speculative level, that plaintiff
is entitled to have his claim survive a motion to
dismiss even if one of the defendants is a high-ranking
government official.” Id.Nos. 10-1687 & 10-2442 19
2. The Complaint
We agree with the district court that the plaintiffs have
alleged sufficient facts to show that Secretary Rumsfeld
personally established the relevant policies that caused
the alleged violations of their constitutional rights
during detention. The detailed Complaint provided
Secretary Rumsfeld sufficient notice of the claims
against him and stated plausible claims that satisfy Rule 8
and Iqbal and Twombly.
The plaintiffs allege that Secretary Rumsfeld devised
and authorized policies that permit the use of torture
in their interrogation and detention. ¶ 217. They claim
that he was “personally responsible for developing,
authorizing, supervising, implementing, auditing and/or
reforming the policies, patterns or practices governing
the . . . treatment . . . [and] interrogation . . . of detainees.”
¶ 26. Specifically, they allege that in 2002, Secretary
Rumsfeld “personally approved a list of torturous inter-
rogation techniques for use on detainees” at Guantanamo
Bay that, “[c]ontrary to . . . the then-governing Army
Field Manual 34-52 . . . included the use of 20-hour inter-
rogations, isolation for up to 30 days, and sensory dep-
rivation.” ¶ 232. In 2003, Secretary Rumsfeld allegedly
“rescinded his formal authorization to use those
techniques generally, but took no measures to end the
practices which had by then become ingrained, nor to
confirm that the practices were in fact . . . terminated.”
¶ 233. Instead, he authorized the use of techniques
outside of the Army Field Manual if he personally ap-
proved them. Id. The plaintiffs also allege that in 2003,
20 Nos. 10-1687 & 10-2442
Secretary Rumsfeld approved a new set of policies
that included isolation for up to 30 days, dietary manip-
ulation, and sleep deprivation (the “2003 List”). ¶ 234. In
addition to these formal policies, Secretary Rumsfeld
also authorized additional harsh techniques if he ap-
proved them in advance. ¶ 235.
The plaintiffs allege that Secretary Rumsfeld then
directed that the techniques in place at Guantanamo Bay
also be extended to Iraq. ¶¶ 235-39. The plaintiffs claim,
for instance, that Secretary Rumsfeld sent Major General
Geoffrey Miller to Iraq in August 2003 to evaluate
how prisons could gain more “actionable intelligence”
from detainees. ¶ 236. In September 2003, in response
to General Miller’s suggestion to use more aggressive
interrogation policies in Iraq, and as allegedly “directed,
approved and sanctioned” by Secretary Rumsfeld, the
commander of the United States-led military coalition in
Iraq signed a memorandum authorizing the use of
29 interrogation techniques (the “Iraq List”), which in-
cluded sensory deprivation, light control, and the use
of loud music. ¶ 238.6 The commander later modified
6
The plaintiffs elaborate on the September 2003 policy in their
brief, noting that the Senate Armed Services Committee
reported that this list “drew heavily” on Secretary Rumsfeld’s
guidance for Guantanamo Bay. See Inquiry Into The Treatment
of Detainees in U.S. Custody, Committee on Armed Services (Nov.
20, 2008), available at http://www.armed-services.senate.gov/
Publications/Detainee Report Final_April 22 2009.pdf (last
accessed Aug. 4, 2011). “According to LTG Sanchez, the Septem-
(continued...)
Nos. 10-1687 & 10-2442 21
the memorandum, but interrogators were still given
discretion to subject detainees to interrogation methods
involving manipulation of lighting, heating, food,
shelter, and clothing of the detainees. ¶ 239.
The plaintiffs also allege that Secretary Rumsfeld
was well aware of detainee abuse because of both
public and internal reports documenting the abuse. ¶¶ 240-
41, 252. In May 2003, the International Red Cross
began reporting on the abuse of detainees in U.S. custody
in Iraq. ¶ 240. The plaintiffs allege that then-Secretary
of State Colin Powell confirmed that Secretary Rumsfeld
knew of the reports of abuse and regularly reported
them to President Bush throughout 2003. Id. They also
6
(...continued)
ber 14, 2003 policy ‘drew heavily’ on the Secretary of
Defense’s April 16, 2003 guidance for GTMO.” Id. at 201. A
party whose pleading is being attacked on appeal under
Rule 12(b)(6) may elaborate on his allegations so long as the
elaborations are consistent with the pleading. See Chavez
v. Illinois State Police, 251 F.3d 612, 650 (7th Cir. 2001); Highsmith
v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994)
(reversing dismissal in relevant part based on such new elab-
orations); Dawson v. General Motors Corp., 977 F.2d 369, 372
(7th Cir. 1992) (reversing dismissal based on new elabora-
tions). If a party can win reversal with such new elaborations
on its pleadings, then these plaintiffs can defend the denial of
the motion to dismiss in the same way. Reynolds v. CB Sports
Bar, Inc., 623 F.3d 1143, 1146-47 (7th Cir. 2010) (concluding
after Iqbal and Twombly that plaintiffs may still suggest facts
outside of the pleadings to show that their complaints
should not be dismissed).
22 Nos. 10-1687 & 10-2442
allege that Secretary Rumsfeld also knew of other in-
vestigative reports into detainee abuse in Iraq, including
a report by former Secretary of Defense James Schlesinger.
¶ 241.7
Congress took action in response to allegations of
detainee abuse. ¶ 14. First, Congress passed the Ronald W.
Reagan National Defense Authorization Act for Fiscal
Year 2005, which reaffirmed the U.S. prohibition against
torture techniques that violate the United States Con-
stitution and the Geneva Conventions. Pl. Br. at 7. The
law instructed then-Secretary Rumsfeld to take action
to stop abusive interrogation techniques:
The Secretary of Defense shall ensure that policies are
prescribed not later than 150 days after the date of the
enactment . . . to ensure that members of the Armed
Forces, and all persons acting . . . within facilities of
the Armed Forces, treat persons detained by the
United States Government in a humane manner
consistent with the international obligations and
7
The plaintiffs elaborate on this point in their brief, citing the
Final Report of the Independent Panel to Review DoD Deten-
tion Operations (Aug. 24, 2004), available at http://www.
defense.gov/news/Aug2004/d20040824finalreport.pdf (last ac-
cessed Aug. 4, 2011). This report, addressed from former
Secretary of Defense Schlesinger to Secretary Rumsfeld, noted
that “the changes in DoD interrogation policies . . . were an
element contributing to uncertainties in the field as to
which techniques were authorized” and that “the augmented
techniques for Guantanamo migrated to . . . Iraq where
they were neither limited nor safeguarded.” Id. at 14.
Nos. 10-1687 & 10-2442 23
laws of the United States and the policies set forth
in section 1091(b).
Pub. L. No. 108-375, § 1092, 118 Stat. 1811, 2069-70 (2004),
codified at 10 U.S.C. § 801, stat. note § 1092. The
plaintiffs argue that, despite that specific direction from
Congress, Secretary Rumsfeld took no action to rescind
unauthorized interrogation methods before the plain-
tiffs were released from custody in 2006. ¶¶ 244, 252.
In 2005, Congress enacted the Detainee Treatment Act,
which limited allowable interrogation techniques
to those authorized in the Army Field Manual, thus
specifically outlawing the interrogation techniques that
Secretary Rumsfeld had earlier authorized, and which
the plaintiffs allege in detail they suffered at the hands
of U.S. military personnel in 2006. ¶¶ 242-43. The
Detainee Treatment Act stated in relevant part:
No person in the custody or under the effective
control of the Department of Defense or under deten-
tion in a Department of Defense facility shall be
subject to any treatment or technique of interroga-
tion not authorized by and listed in the United States
Army Field Manual on Intelligence Interrogation.
Pub. L. 109-148, § 1002(a), 119 Stat. 2680, 2739 (2005),
codified at 10 U.S.C. § 801, stat. note § 1002.
The plaintiffs contend that, after the enactment of the
Detainee Treatment Act, Secretary Rumsfeld continued
to condone the use of techniques from outside the
Army Field Manual. ¶ 244. They allege that on the same
day that Congress passed the Detainee Treatment Act
24 Nos. 10-1687 & 10-2442
in December 2005, Secretary Rumsfeld added ten
classified pages to the Field Manual, which included
cruel, inhuman, and degrading techniques, such as those
allegedly used on the plaintiffs (the plaintiffs refer to
this as “the December Field Manual”). Id. The defendants
describe this allegation as speculative and untrue, but
we must accept these well-pled allegations as true at
the Rule 12(b)(6) stage of the proceedings.8
The plaintiffs also claim that Secretary Rumsfeld, in
the face of both internal reports and well-publicized
accusations of detainee mistreatment and torture by
U.S. forces in Iraq, did not investigate or correct the
8
On appeal, the plaintiffs cite a newspaper article reporting on
the development of this classified set of interrogation methods.
See Eric Schmitt, “New Army Rules May Snarl Talks with
McCain on Detainee Issue,” New York Times (Dec. 14,
2005), available at http://www.nytimes.com/2005/12/14/politics/
14detain.html (last accessed Aug. 4, 2011) (“The Army has
approved a new, classified set of interrogation methods . . .
The techniques are included in a 10-page classified
addendum to a new Army field manual . . .”). The plaintiffs
contend that Secretary Rumsfeld eventually abandoned efforts
to classify the Field Manual, but that the “December Field
Manual” was in operation during their detention and was not
replaced until September 2006, after plaintiffs had been
released, when a new field manual (Field Manual 2-22.3) was
instituted. ¶ 244; Pl. Br. at 11. The dissent criticizes plaintiffs’
reliance on the newspaper report, but plaintiffs’ case for
personal responsibility rests on allegations that are far more
extensive. In any event, these are disputes of fact that cannot
be resolved by a Rule 12(b)(6) motion.
Nos. 10-1687 & 10-2442 25
abuses, despite his actual knowledge that U.S. citizens
were being and would be detained and interrogated
using the unconstitutional abusive practices that he had
earlier authorized. ¶ 252. The plaintiffs allege that reports
of the abusive treatment of detainees by the U.S. military
were widely reported by Amnesty International, the
United Nations Assistance Mission for Iraq, and the
International Committee of the Red Cross. ¶¶ 245-51. The
plaintiffs contend that Secretary Rumsfeld was the
“official responsible for terminating this pattern of
abuse and reforming the policies causing it.” ¶ 252. In-
stead, the plaintiffs allege, Secretary Rumsfeld took
no action because “this conduct was being carried out
pursuant to the interrogation and detention policies
[he] himself created and implemented.” Id.
3. Secretary Rumsfeld’s Personal Responsibility is Pled
Sufficiently
We see no deficiency in the Complaint that would
warrant dismissal on the issue of personal responsibility.
Taking the factual allegations in the complaint as true, as
we must, the plaintiffs have pled facts showing that it
is plausible, and not merely speculative, that Secretary
Rumsfeld was personally responsible for creating the
policies that caused the alleged unconstitutional torture.
The Complaint also alleges that the Secretary was re-
sponsible for not conforming the treatment of the de-
tainees to the standards set forth in the Detainee Treat-
ment Act. Congress specifically ordered the Secretary
to “ensure” that detainees in custody of the United
26 Nos. 10-1687 & 10-2442
States were treated in a “humane manner consistent
with the international obligations and laws of the
United States.” See Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005, 10 U.S.C. § 801, stat.
note § 1092.9
The plaintiffs have adequately pled the “kind of active
and intentional disregard for their treatment” that the
defendants suggest “would be necessary to establish
liability.” First, while Secretary Rumsfeld did not per-
sonally carry out the alleged violations of plaintiffs’
constitutional rights, the plaintiffs have alleged that he
personally created the policies that authorized and led
to their torture. If adequately pled, that is sufficient at
this stage to allege personal involvement. See, e.g., Doyle
v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir.
2002) (finding under 42 U.S.C. § 1983 that allegations
that agency’s most senior officials were personally “re-
sponsible for creating the policies, practices and customs
that caused the constitutional deprivations . . . suffice
at this stage in the litigation to demonstrate . . . personal
involvement in [the] purported unconstitutional con-
duct”); Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998)
9
To be clear, we read the Complaint as asserting claims arising
under the United States Constitution, not the Detainee Treat-
ment Act, which does not provide for a private right of action.
The Detainee Treatment Act and the Secretary’s responsi-
bilities in executing it are relevant in evaluating the
Secretary’s knowledge of and responsibility for the treatment
of detainees.
Nos. 10-1687 & 10-2442 27
(finding that a warden is “not liable for an isolated
failure of his subordinates to carry out prison policies,
however — unless the subordinates are acting (or failing
to act) on the warden’s instructions”); see also Martin A.
Schwartz, Section 1983 Litigation: Claims and Defenses,
§ 7.19[C], at 7-239 (4th ed. 2010) (noting that “supervisory
officials who promulgate policies that are enforced by
subordinates are liable if the enforcement of the policy
causes a violation of federally protected rights”); Dodds
v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (con-
cluding after Iqbal that Ҥ 1983 allows a plaintiff to
impose liability upon a defendant-supervisor who
creates, promulgates, implements, or in some other
way possesses responsibility for the continued operation
of a policy the enforcement (by the defendant-super-
visor or her subordinates) of which” subjects plaintiffs
to constitutional violations); Richardson v. Goord, 347
F.3d 431, 435 (2d Cir. 2003) (concluding that supervisory
liability under § 1983 may be shown, inter alia, by
“creation of a policy or custom that sanctioned conduct
amounting to a constitutional violation, or allowing
such a policy or custom to continue.”).
Second, the plaintiffs have adequately alleged that
Secretary Rumsfeld acted with deliberate indifference
by not ensuring that the detainees were treated in a
humane manner despite his knowledge of widespread
detainee mistreatment. See Farmer, 511 U.S. at 842 (con-
cluding that it is sufficient if a plaintiff bringing an
Eighth Amendment claim shows that the “official acted
or failed to act despite his knowledge of a substantial
28 Nos. 10-1687 & 10-2442
risk of serious harm”); Gayton v. McCoy, 593 F.3d 610,
620 (7th Cir. 2010) (citations omitted) (“Simply put, an
official ‘must both be aware of facts from which the
inference could be drawn that a substantial risk of
serious harm exists, and he must also draw that infer-
ence.’ ”). The plaintiffs have plausibly alleged Secretary
Rumsfeld’s personal responsibility on this theory.
Finally, we reject the defendants’ argument that plain-
tiffs’ claims rest on “naked assertions” of illegal conduct
without factual development. The defendants seek to
poke holes in a number of the plaintiffs’ allegations, but
we do not find their arguments convincing, at least at
the pleading stage under Rule 12(b)(6). The defendants
argue that the plaintiffs’ only “concrete allegations”
about detention and interrogation policies relate to
policies that did not even apply to U.S. citizens in Iraq,
and were, in any case, rescinded before the plaintiffs
were detained. We are not persuaded by this argument.
The plaintiffs have adequately alleged that Secretary
Rumsfeld was responsible for creating policies that gov-
erned the treatment of the detainees in Iraq and for not
conforming the treatment of the detainees in Iraq to
the Detainee Treatment Act.
We also are not persuaded by the defendants’ argument
that the Detainee Treatment Act superseded the policies
described in the Complaint. This argument misunder-
stands the plaintiffs’ point — that Secretary Rumsfeld’s
policies continued to condone the unconstitutional prac-
tices he had allegedly created even after Congress man-
dated otherwise. The plaintiffs’ allegation that Secretary
Nos. 10-1687 & 10-2442 29
Rumsfeld secretly sought to add permissible techniques
to the Army Field Manual after Congress passed the
Detainee Treatment Act is plausible and supports
their broader allegation that Secretary Rumsfeld con-
tinued to promote and condone unconstitutional
treatment of detainees. It remains to be seen whether
plaintiffs can prove this, but they need not have done
so yet.
The defendants also argue that the plaintiffs offer
nothing to link the guards’ threats of excessive force or
the denial of medical care to a particular policy issued
by Secretary Rumsfeld. Examining these particular al-
legations as part of the totality of allegations and the
program for dealing so harshly with detainees, however,
we think they are sufficiently pled to survive the motion
to dismiss. With discovery of the identities of the indi-
viduals involved, we expect plaintiffs to refine their
theories and their allegations concerning the defendants’
individual responsibilities.
Finally, while a supervisor’s mere “knowledge and
acquiescence” is not sufficient to impose liability under
Iqbal, 129 S. Ct. at 1949, we agree with the district court
that outside documentation of detainee abuse, such as
reports by international organizations, provides some
support for the plausibility of plaintiffs’ allegations.
Vance, 694 F. Supp. 2d at 964; see also al-Kidd v. Ashcroft,
580 F.3d 949, 976 (9th Cir. 2009) (finding that complaint
alleges facts that might support liability where it
alleges that “ ‘abuses occurring . . . were highly
publicized in the media, congressional testimony and
30 Nos. 10-1687 & 10-2442
correspondence, and in various reports by governmental
and non-governmental entities,’ which could have
given [the defendant] sufficient notice to require affirma-
tive acts to supervise and correct the actions of his sub-
ordinates”), rev’d on other grounds, 131 S. Ct. 2074 (2011). In
sum, we hold that the plaintiffs have sufficiently
and plausibly pled Secretary Rumsfeld’s personal responsi-
bility.
B. Qualified Immunity
We now turn to whether qualified immunity protects
Secretary Rumsfeld from liability. The qualified immunity
doctrine protects government officials “from liability
for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As
the Supreme Court explained in Pearson v. Callahan, 129
S. Ct. 808, 815 (2009), the doctrine “balances two
important interests — the need to hold public officials
accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distrac-
tion, and liability when they perform their duties rea-
sonably.” We review de novo the district court’s decision
denying a motion to dismiss on the basis of qualified
immunity. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.
2001).
To resolve the qualified immunity defense, we use the
two-step sequence that the Supreme Court articulated
in Saucier v. Katz, 533 U.S. 194, 200-01 (2001). We first
Nos. 10-1687 & 10-2442 31
determine whether “[t]aken in the light most favorable
to the party asserting the injury . . . the facts alleged
show the [defendants’] conduct violated a constitutional
right.” Id. at 201. Second, we determine if the right
was “clearly established” at the time of the relevant
events. Id. While the Court has since decided that
applying the Saucier test sequentially is not mandatory, it
is still “often appropriate.” Pearson, 129 S. Ct. at 818. See,
e.g., al-Kidd, 131 S. Ct. 2074 (deciding both constitutional
merits and qualified immunity); Hanes v. Zurick, 578
F.3d 491 (7th Cir. 2009) (same). Here it makes sense to
apply both steps of the Saucier test, just as the district
court did.
We agree with the district court that plaintiffs have
articulated facts that, if true, would show the violation
of a clearly established constitutional right. In fact, the
defendants’ argument to the contrary evaporates upon
review. The plaintiffs have pled that they were subjected
to treatment that constituted torture by U.S. officials
while in U.S. custody. On what conceivable basis could
a U.S. public official possibly conclude that it was con-
stitutional to torture U.S. citizens? See, e.g., 18 U.S.C.
§ 2340A (statute criminalizing overseas torture); Con-
vention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, S. Treaty Doc.
No. 100-20 (1988), 1465 U.N.T.S. 85, 113 (1984), at Art. 2
(“No exceptional circumstances whatsoever, whether
a state of war or a threat of war, internal political insta-
bility or any other public emergency, may be invoked as
a justification of torture.”); Siderman de Blake v. Republic
32 Nos. 10-1687 & 10-2442
of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) (concluding
that “it would be unthinkable to conclude other than
that acts of official torture violate customary interna-
tional law. And while not all customary international
law carries with it the force of a jus cogens norm, the
prohibition against official torture has attained that
status”).
The wrongdoing alleged here violates the most basic
terms of the constitutional compact between our govern-
ment and the citizens of this country. The defendants
seem to agree, and go so far as to state:
We do not argue that well-pled, factually-supported
and concrete allegations of, for instance, persistent
exposure to extreme cold, sustained failure to
supply food and water, sustained sleep deprivation,
and the failure to furnish essential medical care, if
of sufficient severity and duration, would not state
a violation of substantive due process in the context
of military detention in a war zone.
Def. Br. 50. We concur with that view. Viewing the com-
plaint in the light most favorable to the plaintiffs, as
we must at this stage, this is exactly what the plain-
tiffs have pled. There can be no doubt that the deliberate
infliction of such treatment on U.S. citizens, even in a
war zone, is unconstitutional.
1. The Alleged Abuse Violated a Constitutional Right
If the plaintiffs’ allegations of torture are true, there was
Nos. 10-1687 & 10-2442 33
a violation of their constitutional right to substantive due
process.10 “Substantive due process involves the exercise
10
The plaintiffs have presented and briefed their claim as a
substantive due process claim under the Fifth Amendment.
As the Supreme Court has held: “Due process requires that a
pretrial detainee not be punished. A sentenced inmate, on the
other hand, may be punished, although that punishment may
not be ‘cruel and unusual’ under the Eighth Amendment.”
Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979) (emphasis added)
(concluding that the court of appeals appropriately relied on
the Due Process Clause rather than the Eighth Amendment
in adjudicating the rights of pretrial detainees); see also
Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977) (finding that
“[w]here the state seeks to impose punishment without [an
adjudication of guilt], the pertinent constitutional guarantee
is the Due Process Clause”). The government suggests that the
constitutional inquiry here requires this court to “wade into
the murky waters of that most amorphous of constitutional
doctrines, substantive due process.” See Tun v. Whitticker, 398
F.3d 899, 900 (7th Cir. 2005). As we have consistently said,
however, “[t]he protections for pre-trial detainees are ‘at least
as great as the Eighth Amendment protections available to a
convicted prisoner’ . . . and we frequently consider the
standards to be analogous.” Washington v. LaPorte County
Sheriff’s Dep’t, 306 F.3d 515, 517 (7th Cir. 2002), quoting City
of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).
We thus look to the case law for both substantive due process
and the Eighth Amendment in examining the plaintiffs’ claims.
We are confident that the Framers meant to forbid abusive
treatment of uncharged and unconvicted detainees where
the same abusive treatment of a convicted prisoner would
be prohibited.
34 Nos. 10-1687 & 10-2442
of governmental power without reasonable justifica-
tion. . . . It is most often described as an abuse of govern-
ment power which ‘shocks the conscience.’ ” Tun, 398 F. 3d
at 902, quoting Rochin v. California, 342 U.S. 165, 172 (1952).
The physical or mental torture of U.S. citizens, as the
district court concluded, is a paradigm of conduct that
“shocks the conscience.” Vance, 694 F. Supp. 2d at 966.
The Supreme Court “has long held that certain inter-
rogation techniques, either in isolation or as applied to
the unique characteristics of a particular suspect, are
so offensive to a civilized system of justice that they
must be condemned under the Due Process Clause.”
Miller v. Fenton, 474 U.S. 104, 109 (1985); see also Wilkerson
v. Utah, 99 U.S. 130, 136 (1878) (concluding that “it is
safe to affirm that punishments of torture . . . are
forbidden by . . . the Constitution”). The defendants do
not argue that the plaintiffs’ allegations, if pled correctly,
do not amount to a violation of a constitutional right.
See Def. Br. at 50-51. Doing so would be futile.
The defendants instead argue that plaintiffs have
not alleged more than “vague, cursory, and conclusory
references to [their] conditions of confinement, without
sufficient factual information from which to evaluate
their constitutional claim.” This argument, which is
more of a pleading argument to extend Iqbal and
Twombly than an argument about qualified immunity, is
not persuasive. The defendants argue, for example, that
while the plaintiffs allege that their cells were extremely
cold, they provide no “factual context, no elaboration,
no comparisons.” At this stage of the case, we are
Nos. 10-1687 & 10-2442 35
satisfied with the description of the cells as “extremely
cold.” Cf. Fed. R. Civ. P. 84 and Forms 10-15 (sample
complaints that “illustrate the simplicity and brevity
that these rules contemplate”).
The defendants also suggest that the plaintiffs did not
detail in their Complaint whether they sought and were
denied warmer clothing or blankets. Even if it was not
necessary, the plaintiffs actually specified the clothing
and bedding that was available to each of them — a
single jumpsuit and a thin plastic mat. The defendants
also argue that plaintiffs did not specify how long
they were deprived of sleep. That level of detail is not
required at this stage, but a fair reading of this
Complaint indicates that the sleep deprivation tactics
were a constant for the duration of their detention, as
was the physical and psychological abuse by prison
officials.
As the defendants acknowledge, a substantive due
process inquiry requires “an appraisal of the totality of
the circumstances rather than a formalistic examination
of fixed elements.” See Armstrong v. Squadrito, 152 F.3d
564, 570 (7th Cir. 1998) (reversing summary judgment
for defendants). The plaintiffs have alleged sufficient
details to conclude at this stage of the proceedings
that, if true, their treatment, when considered in the
aggregate, amounted to torture in violation of their right
36 Nos. 10-1687 & 10-2442
to substantive due process.1 1
11
The district court thought the Complaint was sufficient, and
so do we. But even if we found some inadequacy in the
details of the already detailed pleading, through an unusually
vigorous extension of the Iqbal pleading standard, for example,
plaintiffs would be entitled to an opportunity to amend their
Complaint to remedy any perceived defects. Basic fairness
and the liberal amendment policy under Federal Rule of Civil
Procedure Rule 15(a)(2) would require that plaintiffs be given
an opportunity to cure the defects, if they could, at least
absent undue delay, bad faith, dilatory motive, or undue
prejudice. See, e.g., Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010); Airborne Beepers & Video, Inc. v. AT&T Mobility
LLC, 499 F.3d 663, 666 (7th Cir. 2007). The Supreme Court’s
recent decisions in Iqbal and Twombly have created new uncer-
tainties about the level of detail required in pleadings under
the notice pleading regime of the Federal Rules of Civil Pro-
cedure. Circuit and district courts have not yet identified a
clear boundary between what is sufficient and what is not.
See, e.g., Swanson v. Citibank N.A., 614 F.3d 400, 403 (7th Cir.
2010) (observing that courts are “still struggling” with “how
much higher the Supreme Court meant to set the bar, when
it decided not only Twombly, but also Erickson v. Pardus, 551
U.S. 89 (2007), and [Iqbal],” and noting that “[t]his is not an
easy question to answer”); see also Swanson, 614 F.3d at 411(Posner, J., dissenting in part) (noting the “opaque language”
that the Supreme Court used to establish the “plausibility”
requirement). As Professor Miller has suggested, “inconsistent
rulings on virtually identical complaints may well be based
on individual judges having quite different subjective views
of what allegations are plausible.” See Arthur R. Miller, From
Conley to Twombly to Iqbal: A Double Play on the Federal Rules
(continued...)
Nos. 10-1687 & 10-2442 37
Though Vance and Ertel were never charged with, let
alone convicted of, any crime, our precedents con-
cerning the abuse of convicted criminals help guide
our thinking about whether the alleged abuse violated a
constitutional right. As the Supreme Court concluded
recently, “[p]risoners retain the essence of human dignity
inherent in all persons. Respect for that dignity animates
the Eighth Amendment prohibition against cruel and
unusual punishment. The basic concept underlying the
Eighth Amendment is nothing less than the dignity of
man.” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (citations
omitted); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976)
(concluding that the Eighth Amendment “embodies
broad and idealistic concepts of dignity, civilized stan-
dards, humanity, and decency . . . against which we
must evaluate penal measures”) (citations omitted). It is
important to keep these fundamental concepts in mind
as we focus on the claims before us. See Forrest v. Prine,
11
(...continued)
of Civil Procedure, 60 Duke L. J. 1, 30-31 (2010) (describing
“confusion and disarray among judges and lawyers” in
applying Iqbal). Rule 1 instructs courts to construe the rules
to secure the “just” determination of lawsuits, and there is a
general policy in favor of allowing parties to have their cases
decided on their merits. See, e.g., Swierkiewicz, 534 U.S. at 514;
Christensen v. County of Boone, 483 F.3d 454, 458 (7th Cir. 2007).
A reversal for inadequate pleading would require an opportu-
nity to cure the defect unless it were clear that the defect
could not be cured.
38 Nos. 10-1687 & 10-2442
620 F.3d 739, 744 (7th Cir. 2010) (borrowing Eighth Amend-
ment standards to analyze pre-trial detainee’s claim).
Examining the plaintiffs’ claims against the backdrop
of the Supreme Court’s decisions on prison conditions
of confinement and prison treatment cases, we remem-
ber that abuse in American prisons was once authorized
and even thought of as part of the punishment of pris-
oners. See, e.g., Hope v. Pelzer, 536 U.S. 730 (2002) (detailing
authorized state practice of chaining inmates to one
another and to hitching posts in the hot sun); Hutto v.
Finney, 437 U.S. 678, 682 nn. 4-5 (1978), citing Talley v.
Stephens, 247 F. Supp. 683 (E.D. Ark. 1965) (describing
the lashing of inmates with a “wooden-handled leather
strap five feet long and four inches wide” as part of
authorized corporal punishment program) and Jackson
v. Bishop, 268 F. Supp. 804 (E.D. Ark. 1967) (describing the
use of a “Tucker telephone,” a hand-cranked instrument
“used to administer electrical shocks to various sensitive
parts of an inmate’s body” in prison that authorized the
use of a strap to punish prisoners), remanded with orders
for broader relief, 404 F.2d 571 (8th Cir. 1968) (Blackmun, J.).
Today, the idea that a prisoner in a U.S. prison might
be abused in such a manner and not have judicial
recourse is unthinkable. While the Constitution
“does not mandate comfortable prisons, . . . neither does
it permit inhumane ones.” Farmer, 511 U.S. at 832(citations omitted) (noting that the Eighth Amendment
requires that prison officials “ensure that inmates
receive adequate food, clothing, shelter, and medical
care, and . . . ‘take reasonable measures to guarantee
Nos. 10-1687 & 10-2442 39
the safety of the inmates’ ”). If a prisoner in a U.S. prison
had his head covered and was repeatedly “walled,” or
slammed into walls on the way to interrogation
sessions, we would have no trouble acknowledging that
his well-pled allegations, if true, would describe a
violation of his constitutional rights. See, e.g., Hudson v.
McMillian, 503 U.S. 1 (1992) (concluding that the use
of excessive physical force against a prisoner may consti-
tute cruel and unusual punishment even where prisoner
is not seriously injured).
If a prisoner was kept awake as much as possible, kept
in insufferably cold conditions, and not given sufficient
bedding or clothing, we would likewise believe that
there could well have been a violation of his constitu-
tional rights. See, e.g., Wilson v. Seiter, 501 U.S. 294, 304
(1991) (clarifying that “[s]ome conditions of confine-
ment may establish an Eighth Amendment violation
‘in combination’ when each would not do so alone, but
only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable
human need such as food, warmth, or exercise — for
example, a low cell temperature at night combined with
a failure to issue blankets”). If a U.S. prisoner with a
serious medical condition is denied medical attention
or has necessary medicine withheld, that too can
violate the prisoner’s constitutional rights. See Estelle,
429 U.S. at 104 (concluding that deliberate indifference
to serious medical needs states a claim under the
Eighth Amendment); Board v. Farnham, 394 F.3d 469, 480-
81 (7th Cir. 2005) (holding that allegations of dental
problems constitute objectively serious harm under the
40 Nos. 10-1687 & 10-2442
Eighth Amendment). The plaintiffs in this case, detained
without charges, have pled in detail allegations of
such severe conditions and treatment, the likes of which
courts have held unconstitutional when applied to con-
victed criminals in U.S. prisons. The allegations of
abuse state claims for violations of the constitutional
right not to be deprived of liberty without substantive
due process of law.
2. The Rights Were Clearly Established
To decide qualified immunity, we turn next to
whether the alleged rights were clearly established. “The
relevant, dispositive inquiry in determining whether a
right is clearly established is whether it would be clear
to a reasonable officer that his conduct was unlawful in
the situation he confronted.” Brosseau v. Haugen, 543 U.S.
194, 199 (2004), quoting Saucier, 533 U.S. at 202. The
question is whether a reasonable official in Secretary
Rumsfeld’s position would have known that the
conduct he allegedly authorized violated the Constitu-
tion of the United States.
This is not a case where the precise violation must
have been previously held unlawful. Where the constitu-
tional violation is patently obvious and the contours of
the right sufficiently clear, a controlling case on point is
not needed to defeat a defense of qualified immunity.
See, e.g., Hope, 536 U.S. at 741 (reversing grant of
qualified immunity for prison officials who chained a
prisoner to a post for seven hours in the hot sun);
Nanda v. Moss, 412 F.3d 836, 844 (7th Cir. 2005). Given
Nos. 10-1687 & 10-2442 41
the totality of the plaintiffs’ allegations, that they were
interrogated with physical violence and threats, were
kept in extremely cold cells without adequate clothing,
were continuously deprived of sleep, and were often
deprived of food, clothing, and medical care, a reason-
able official in Secretary Rumsfeld’s position in 2006
would have known that this amounted to unconstitu-
tional treatment of a civilian U.S. citizen detainee. See,
e.g., Farmer, 511 U.S. at 832; Hudson, 503 U.S. at 4; Estelle,
429 U.S. at 104. Lest there might have been any
uncertainty on the point, Congress had twice recently
and expressly provided as much as a matter of
statutory law. See Ronald W. Reagan National Defense
Authorization Act for Fiscal Year 2005, 10 U.S.C. § 801, stat.
note § 1092 (stating that U.S. military policy prohibits
techniques that violate the Constitution and instructing
Secretary of Defense to ensure that polices are con-
sistent with international obligations and laws of the
United States); Detainee Treatment Act, 10 U.S.C. § 801,
stat. not. § 1002 (limiting interrogation techniques to
those authorized in the Army Field Manual).
The defendants offer a final argument that the law was
not sufficiently developed with respect to the treatment
of detainees in the context of military detention for the
plaintiffs to allege adequately the violation of a clearly
established constitutional right by Secretary Rumsfeld.
The defendants argue that the Supreme Court and ap-
pellate courts “have struggled, and continue to struggle,
with the precise constitutional contours applicable to
the detention of individuals — citizen and non-citizen
alike — seized in a foreign war zone.” On this point,
42 Nos. 10-1687 & 10-2442
however, the defendants cite only cases involving proce-
dural due process claims: Munaf v. Geren, 553 U.S. 674(2008), Boumediene v. Bush, 553 U.S. 723 (2008), and Hamdi
v. Rumsfeld, 542 U.S. 507 (2004). Those procedural issues
are undoubtedly difficult. But they shed no useful light
on how a reasonable federal official might have thought
that the Constitution permitted him to torture, or to
authorize the torture of, a civilian U.S. citizen. The defen-
dants themselves acknowledge that, if properly pled,
allegations of violations of substantive due process, the
likes of which the plaintiffs have raised, would amount
to a constitutional violation. In sum, a reasonable official
in Secretary Rumsfeld’s position in 2006 would have
realized that the right of a United States citizen to be
free from torture at the hands of one’s own govern-
ment was a “clearly established” constitutional right
and that the techniques alleged by plaintiffs add up to
torture. We affirm the district court’s decision to deny
dismissal based on qualified immunity.
C. Bivens Claims by Civilian U.S. Citizens in a War Zone
There can be no doubt that if a federal official, even
a military officer, tortured a prisoner in the United States,
the tortured prisoner could sue for damages under
Bivens. See Carlson v. Green, 446 U.S. 14 (1980) (allowing
Bivens claim against prison officials who were delib-
erately indifferent to prisoner’s serious medical
needs); Saucier, 533 U.S. 194 (holding that military police
officer was entitled to qualified immunity on civilian’s
Bivens claim for excessive force, without suggesting that
Nos. 10-1687 & 10-2442 43
any broader immunity might apply). In this case,
however, the defendants assert a broad immunity from
suit under Bivens, claiming that civilian U.S. citizens
can never pursue a Bivens action against any U.S.
military personnel if the constitutional violations
occurred in a war zone. We review this question of law
de novo. See Thomas v. General Motors Acceptance Corp.,
288 F.3d 305, 307 (7th Cir. 2002); Wilson v. Libby, 535
F.3d 697, 704 (D.C. Cir. 2008).
The unprecedented breadth of defendants’ argument
should not be overlooked. The defendants contend that
a Bivens remedy should not be available to U.S. citizens
for any constitutional wrong, including torture and even
cold-blooded murder, if the wrong occurs in a war zone.
The defendants’ theory would apply to any soldier or
federal official, from the very top of the chain of com-
mand to the very bottom. We disagree and conclude
that the plaintiffs may proceed with their Bivens claims.
We address first the nature of the Bivens remedy and
then apply the two-step process the Supreme Court has
applied for deciding when a Bivens remedy should be
available. The first step is to consider whether there is a
sufficient “alternative remedy” for the alleged constitu-
tional wrong indicating that Congress has intended to
supplant Bivens. Here there is no meaningful alterna-
tive, and the defendants do not argue otherwise. The
second step is to consider whether “special factors”
weigh against recognition of a Bivens remedy under the
circumstances. In taking this second step, we explain
that the key elements of plaintiffs’ claims are well estab-
44 Nos. 10-1687 & 10-2442
lished under Bivens: (a) that civilian claims against
military personnel are permissible; (b) that claims based
on abuse of prisoners are permissible; (c) that the Con-
stitution governs the relationship between U.S. citizens
and their government overseas; and (d) that claims
against current and former cabinet officials are permit-
ted. We then conclude that Congress has not indicated
any bar to claims under these circumstances. In fact,
Congress has acted to provide civil remedies to aliens who
are tortured by their governments. It would be extra-
ordinary to find that there is no such remedy for U.S.
citizens tortured by their own government. In taking the
second step, we then weigh and reject the defendants’
arguments and authorities offered to support a special
rule that would immunize government officials from
Bivens liability for the torture, or worse, of a civilian
U.S. citizen in a war zone.
Section 1 of the Civil Rights Act of 1871, codified as
42 U.S.C. § 1983, authorizes civil lawsuits against state
and local government officials for the deprivation of
federal constitutional and statutory rights. No analogous
statute broadly authorizes similar suits against federal
officials. The Supreme Court recognized in Bivens, how-
ever, that private citizens have an implied right of
action directly under the Constitution to recover
damages against federal officials for constitutional viola-
tions even where Congress has not conferred such a
right by statute. In Bivens, the plaintiff sued federal
law enforcement agents for searching his property
without a warrant, using excessive force, and arresting
him without probable cause. In holding that Bivens
Nos. 10-1687 & 10-2442 45
was entitled to sue the agents for damages, the
Supreme Court observed that “where federally pro-
tected rights have been invaded, it has been the rule
from the beginning that courts will be alert to adjust
their remedies so as to grant the necessary relief.” Bivens,
403 U.S. at 392, quoting Bell v. Hood, 327 U.S. 678, 684
(1946). “Historically, damages have been regarded as
the ordinary remedy for an invasion of personal interests
in liberty.” Id. at 395. The Bivens remedy has been
designed to prevent constitutional rights from becoming
“merely precatory.” Davis v. Passman, 442 U.S. 228, 242
(1979) (holding that congressional employee could sue
member of Congress for sex discrimination in employ-
ment in violation of equal protection branch of Fifth
Amendment due process right).1 2
The Supreme Court’s more recent Bivens decisions
direct us to exercise caution in recognizing Bivens
remedies in new contexts. Bivens does not provide an
“automatic entitlement” to a remedy for a constitutional
12
Long before Bivens, federal courts provided remedies for
federal officials’ violations of federal law, and individuals
sought post-deprivation remedies against federal officials in
federal court. See Iqbal, 129 S. Ct. at 1948, citing, e.g., Dunlop
v. Munroe, 11 U.S. (7 Cranch) 242, 268 (1812) (concluding, in
case against postmaster, that a federal official’s liability
“will only result from his own neglect in not properly superin-
tending the discharge” of his subordinates’ duties); Little v.
Barreme, 6 U.S. (2 Cranch) 170, 178-79 (1804) (holding that
commander of a warship was “answerable in damages” to the
owner of a neutral vessel seized pursuant to orders from
President but in violation of statute).
46 Nos. 10-1687 & 10-2442
violation by a federal official, and “any freestanding
damages remedy for a claimed constitutional violation
has to represent a judgment about the best way to imple-
ment a constitutional guarantee.” Wilkie v. Robbins, 551
U.S. 537, 550 (2007). We have reminded plaintiffs that
Bivens is not an automatic “gap-filler, available when-
ever a plaintiff seeks a particular remedy not provided
for by any statute or regulation, for a constitutional
violation by federal officers.” Robinson v. Sherrod, 631
F.3d 839, 842 (7th Cir. 2011); see also United States v.
Norwood, 602 F.3d 830, 836 (7th Cir. 2010). Given this
history, as well as the gravity of the claims before us, we
“proceed cautiously” in determining whether to allow
Vance and Ertel to pursue a cause of action under Bivens.
See Bagola v. Kindt, 131 F.3d 632, 638 (7th Cir. 1997).1 3
The Supreme Court has developed a two-step test for
structuring judgments about whether a particular
Bivens claim should be recognized. First, courts must
consider “whether any alternative, existing process for
13
Some members of the Supreme Court have said that Bivens
is outdated. Wilkie, 551 U.S. at 568 (Thomas, J., concurring);
Correctional Services Corp. v. Malesko, 534 U.S. 61, 75 (2001)
(Scalia, J., concurring) (observing that “Bivens is a relic of the
heady days in which this Court assumed common-law powers
to create causes of action-decreeing them to be ‘implied’ by the
mere existence of a statutory or constitutional prohibition.”).
Despite this criticism, Bivens remains the law of the land, and
it remains one vital way of ensuring that fundamental guaran-
tees in the Bill of Rights are not hollow, precatory promises.
Wilkie provides a helpful and recent guide for its application.
Nos. 10-1687 & 10-2442 47
protecting the interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.” Wilkie, 551 U.S.
at 550. Where Congress has provided for an adequate
alternative remedy, an implied Bivens remedy is neither
necessary nor available. The Court has reached this
conclusion in two cases where Congress has established
comprehensive and well-defined civil remedies: Social
Security benefits, in Schweiker v. Chilicky, 487 U.S. 412(1988), and federal civil service employment, in Bush
v. Lucas, 462 U.S. 367 (1983).
If there is no sufficient alternative, the courts must
proceed to the second step of the Bivens test, as
described in Bush: “the federal courts must make the
kind of remedial determination that is appropriate for a
common-law tribunal, paying particular heed, however,
to any special factors counselling hesitation before autho-
rizing a new kind of federal litigation.” Bush, 462 U.S.
at 378, quoted in Wilkie, 551 U.S. at 550.
1. Step One — Alternative Remedies
The first step of the inquiry is to consider “whether
any alternative, existing process for protecting the
interest amounts to a convincing reason for the
Judicial Branch to refrain from providing a new and
freestanding remedy in damages.” Wilkie, 551 U.S. at
550. The short answer is no. The defendants do not sug-
gest that there is any alternative remedial scheme at
all comparable to the Social Security procedures and
remedies in Schweiker or the federal civil service pro-
48 Nos. 10-1687 & 10-2442
cedures and remedies in Bush. While the defendants
do not argue that there is an “alternative remedy,”
their “special factors” arguments invite us to look more
broadly for indications of Congressional intent as to
whether a Bivens action should be permitted under the
circumstances. We do so below in our discussion of
“special factors” in the second step.
Although the defendants do not argue that there is an
“alternative remedy” for the plaintiffs, an amicus brief
by former Secretaries of Defense and Members of the
Joint Chiefs of Staff addresses the issue. They argue, as
defendants do not, that Congress has created an
elaborate and well-structured scheme for remedies and
an administrative system that encourages detainees to
make complaints. These amici suggest that Vance
and Ertel enjoyed the protections of, among others,
the Geneva Conventions, the Coalition of Provisional
Authority Memorandum #3, and the Uniform Code of
Military Justice. They argue that the plaintiffs are not
entitled to pursue Bivens claims because they could
have taken advantage of these protections by com-
plaining about their treatment at the time of their deten-
tion.
We respect these amici and their distinguished
public service. For three reasons, however, we are not
persuaded by the argument that a Bivens remedy should
be barred because detainees who are being tortured
may submit a complaint about their treatment to the
very people who are responsible for torturing them.
First, if, as plaintiffs allege here, there was a problem
stretching to the very top of the chain of command, it
Nos. 10-1687 & 10-2442 49
would make little sense to limit their recourse to
making complaints within that same chain of command.
Second, the opportunity to complain offers no actual
remedy to those in plaintiffs’ position other than
possibly to put a stop to the ongoing torture and abuse.
A system that might impose discipline or criminal pros-
ecution of the individuals responsible for their treat-
ment does not offer the more familiar remedy of dam-
ages. Third, during oral argument, plaintiffs’ counsel
asserted that Vance and Ertel in fact did complain
about their treatment while detained. At least one of
the men had face-to-face conversations with the com-
mander of Camp Cropper, who said there was nothing
he could do about their treatment.1 4
14
The panel invited this elaboration on the plaintiffs’
complaint, as permitted on appeal of a Rule 12(b)(6) decision
as long as the elaboration is not inconsistent with the com-
plaint. See supra n. 6. The friends of the court refer to the
applicable Army Regulation 190-8, which states that if civilian
detainees are “not satisfied with the way the commander
handles a complaint or request, they may submit it in writ-
ing.” AR 190-8, § 6-9. The matter must be reported up the
chain of command, investigated, and remedied under DoD
Directive 5100.77 (Dec. 9, 1998). Def. Sec. Amicus Br. at 11.
The amici note that at the time the plaintiffs were detained,
there had been more than 800 investigations by military law
enforcement officials of alleged detainee abuse. Id. at 13 n.8.
We do not believe that this is the kind of comprehensive
remedial system that would preclude a Bivens remedy. Ap-
parently, neither does the government; its brief does not rely
on this internal administrative complaint system.
50 Nos. 10-1687 & 10-2442
The administrative remedy of inviting detainees to
complain about their treatment is also nothing like the
alternative remedies that the Supreme Court has found
to preclude Bivens remedies in Schweiker and Bush.
Those elaborate and comprehensive remedial systems
provided meaningful safeguards and remedies estab-
lished by Congress for victims of official wrongdoing.
See Schweiker, 487 U.S. at 425. The situation before us is
very different: Congress has not given civilian U.S.
citizens claiming torture by U.S. officials in a war zone
anything like the “frequent and intense” attention it
has given the Social Security system and disability
review. Id. It has not provided these plaintiffs any rem-
edy. As we have concluded in other Bivens cases, “without
an explicit indication from Congress, we will not foreclose
this right when the statutory remedy is wholly inade-
quate.” Bagola, 131 F.3d at 645. Here, there is no statutory
remedy at all. We must proceed to step two of the Bivens
inquiry.15
15
Our dissenting colleague argues that we should leave the
question of remedies entirely to Congress. Although we dis-
agree, for reasons explained at length in the text, nothing in
our reasoning would prevent Congress from addressing the
problems posed here with a statutory solution. The Bivens
line of cases shows that when Congress has acted to address the
relevant context, as in Social Security and civil service cases,
courts have been more than willing to defer to congressional
solutions.
Nos. 10-1687 & 10-2442 51
2. Step Two — “Special Factors”
The second step of the Bivens inquiry is to make “the
kind of remedial determination that is appropriate
for a common-law tribunal, paying particular heed,
however, to any special factors counselling hesitation
before authorizing a new kind of federal litigation.” Bush,
462 U.S. at 378, quoted in Wilkie, 551 U.S. at 550. We
must be cautious in addressing the question, but we
can draw sound guidance from many precedents ad-
dressing closely related problems. In considering
this special factors analysis, we note first the breadth of
the proposed defense and the narrowness of the
asserted claim. We then turn to the Bivens precedents
dealing with civilian claims against military personnel,
those dealing with claims of abuse of prisoners, and
then the more general principles that apply to the
Bill of Rights outside of United States territory. We con-
sider then the precedents and arguments relied upon
by the defendants, including their invitation to con-
sider Congressional intent in this area.
a. The Scope of the Defense and the Claim
The defendants’ principal Bivens argument is that,
because this case arose in a foreign war zone, no Bivens
claim should be recognized. This sweeping defense is
proposed against a fairly narrow claim. The defendants
are arguing for a truly unprecedented degree of im-
munity from liability for grave constitutional wrongs
committed against U.S. citizens. The defense theory
52 Nos. 10-1687 & 10-2442
would immunize not only the Secretary of Defense but
all personnel who actually carried out orders to torture
a civilian U.S. citizen. The theory would immunize
every enlisted soldier in the war zone and every officer
in between. The defense theory would immunize them
from civil liability for deliberate torture and even cold-
blooded murder of civilian U.S. citizens. The United
States courts, and the entire United States government,
have never before thought that such immunity is needed
for the military to carry out its missions.1 6
In asserting this broad defense, defendants have
also sought to broaden plaintiffs’ claims beyond those
they are actually asserting. Contrary to the defense argu-
ments, plaintiffs are not asserting a broad challenge to
the detention or interrogation policies of the United
States military. Plaintiffs assert that their treatment was
16
We hope that the serious claims before us are truly unusual,
but the defense theory is of particular concern because of our
nation’s increased reliance on civilian contractors in modern
war zones. A majority of our nation’s wartime presence in
Iraq and Afghanistan has been made up of private contractors.
The Congressional Research Service reported that, as of
March 2011, the Department of Defense had more contractor
personnel (155,000) than uniformed personnel (145,000) in
Iraq and Afghanistan. In Iraq, as of March 2011, there
were 64,253 Defense Department contractors and 45,660 uni-
formed personnel in the country. See “Department of
Defense Contractors in Afghanistan and Iraq: Background and
Analysis,” Moshe Schwartz and Joyprada Swain, Congressional
Research Service (May 13, 2011).
Nos. 10-1687 & 10-2442 53
actually contrary to explicit statutory law and stated
military policy, because they claim they were subjected
to interrogation techniques that were not authorized by
the applicable Army Field Manual. This case, in other
words, does not invite a broad debate over appropriate
detention and interrogation techniques in time of war.
It presents factual issues over whether there was a delib-
erate decision to violate the U.S. Constitution and other
applicable laws and, if so, who was responsible for that
decision. With the broad scope of the proposed defense
and the narrow focus of the asserted claim, we turn to
precedent for guidance.
b. Precedents Supporting Plaintiffs’ Claims
The key elements of plaintiffs’ claims for constitutional
wrongs committed by military officials are all familiar
in Bivens jurisprudence, and nothing about their claims
would extend Bivens beyond its “core premise,” which
is “the deterrence of individual officers who commit
unconstitutional acts.” Correctional Services Corp. v.
Malesko, 534 U.S. 61, 71 (2001). That point does not end
the “special factors” debate, but it provides a useful
starting point.
First, of course, it is well established that Bivens is
available to prisoners who assert that they have been
abused or mistreated by their federal jailors. In Carlson,
446 U.S. 14, the Supreme Court reversed dismissal of a
complaint in which a deceased prisoner’s representa-
tive sued for violation of the Eighth Amendment pro-
hibition on cruel and unusual punishment, in that case
54 Nos. 10-1687 & 10-2442
through an alleged deliberate denial of needed medical
care. Since Carlson, we have regularly allowed prisoners
to pursue their constitutional challenges against
federal prison officials as Bivens claims. See, e.g., Bagola,
131 F.3d 632 (concluding that district court properly
heard Bivens claim alleging injury as part of prison
work program where workers’ compensation program
did not provide adequate safeguards to protect pris-
oner’s Eighth Amendment rights); Del Raine v. Williford,
32 F.3d 1024 (7th Cir. 1994) (recognizing prisoner’s
Bivens claim alleging that he was forced to live in
bitterly cold cell). The fact that the plaintiffs were im-
prisoned while not even charged with, let alone
convicted of, any crime only tends to emphasize how
familiar this aspect of their claim is.
Second, it is also well established under Bivens that
civilians may sue military personnel who violate their
constitutional rights. For example, Saucier v. Katz, 533
U.S. 194, an important but now overruled qualified im-
munity case, was a Fourth Amendment excessive
force claim by a civilian against a military police officer.
There was no suggestion that the civilian could not sue
the military police officer. Circuit courts have also
decided a number of Bivens cases brought by civilians
against military personnel. See, e.g., Case v. Milewski, 327
F.3d 564 (7th Cir. 2003) (civilian claim against military
officers for Fourth and Fifth Amendment violations);
Morgan v. United States, 323 F.3d 776 (9th Cir. 2003) (civilian
claim against military police for search of vehicle);
Roman v. Townsend, 224 F.3d 24 (1st Cir. 2000) (civilian
claim against military police officer and Secretary of the
Nos. 10-1687 & 10-2442 55
Army for improper arrest and treatment in detention);
Applewhite v. United States Air Force, 995 F.2d 997 (10th
Cir. 1993) (civilian claim against military investigators
for unlawful search and removal from military base);
see also Willson v. Cagle, 711 F. Supp. 1521, 1526 (N.D. Cal.
1988) (concluding that “a Bivens action may potentially
lie against military officers and civilian employees of
the military” for protesters injured when a military muni-
tions train collided with them), aff’d mem., 900 F.2d 263(9th Cir. 1990) (affirming denial of qualified immunity);
Barrett v. United States, 622 F. Supp. 574 (S.D.N.Y. 1985)
(allowing civilian’s Bivens claim to proceed against
military officials for their alleged concealment of
their role in the creation and administration of an
army chemical warfare experiment in which her father
unknowingly served as a test subject), aff’d, 798 F.2d 565(2d Cir. 1986). While such claims often fail on the merits
or for other reasons, the fact that a civilian has sued a
military official is not a basis for denying relief under
Bivens.17
17
We are not persuaded by the defendants’ reliance on Chappell
v. Wallace, 462 U.S. 296 (1983), and United States v. Stanley,
483 U.S. 669 (1987), two cases in which the Supreme Court
applied the “special factors” analysis to hold that one
member of the U.S. Armed Forces could not sue another
member of the Armed Forces under Bivens. Both decisions
were based on the unique disciplinary structure within the
military. Neither case provides a basis for rejecting a Bivens
claim by a civilian against a military official.
56 Nos. 10-1687 & 10-2442
Third, when civilian U.S. citizens leave the United
States, they take with them their constitutional rights that
protect them from their own government. In Reid v.
Covert, 354 U.S. 1 (1957), the Supreme Court held that
civilian members of military families could not be tried
in courts-martial. Justice Black wrote for a plurality of
four Justices:
At the beginning we reject the idea that when the
United States acts against citizens abroad it can do
so free of the Bill of Rights. The United States is en-
tirely a creature of the Constitution. Its power and
authority have no other source. It can only act in
accordance with all the limitations imposed by the
Constitution. When the Government reaches out to
punish a citizen who is abroad, the shield which the
Bill of Rights and other parts of the Constitution
provide to protect his life and liberty should not
be stripped away just because he happens to be in
another land. This is not a novel concept. To the
contrary, it is as old as government.
Id. at 5-6. The general proposition remains vital, as
recently reaffirmed in Boumediene, holding that aliens
held as combatants at Guantanamo Bay may invoke the
writ of habeas corpus to challenge their detention:
“Even when the United States acts outside its borders,
its powers are not ‘absolute and unlimited’ but are
subject ‘to such restrictions as are expressed in the Con-
stitution.’ ” 553 U.S. at 765, quoting Murphy v. Ramsey,
114 U.S. 15, 44 (1885); see also Munaf, 553 U.S. at
688 (holding that civilian U.S. citizens held in U.S.
Nos. 10-1687 & 10-2442 57
military custody in Iraq could seek petition for the writ
of habeas corpus in federal district court). Cf. United
States v. Verdugo-Urquidez, 494 U.S. 259 (1990)
(holding that non-resident alien could not invoke
Fourth Amendment to challenge search by U.S. officials
in foreign country).
Fourth, defendant Rumsfeld is being sued for actions
taken and decisions made while serving at the highest
levels of the United States government. We express no
view at this stage as to whether plaintiffs can prove
their factual allegations. The former rank of the
defendant, however, is not a basis for rejecting the plain-
tiffs’ claims. The Supreme Court has repeatedly enter-
tained Bivens actions against other cabinet members.
See, e.g., Mitchell v. Forsyth, 472 U.S. 511 (1985) (holding
that Attorney General was entitled to qualified im-
munity, not absolute immunity, from damages suit
arising out of national security-related actions); Harlow
v. Fitzgerald, 457 U.S. at 818 (concluding that senior
aides and advisors of the President of the United States
may be entitled to qualified immunity from liability
when their conduct “does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known”); Halperin v. Kissinger, 606
F.2d 1192 (D.C. Cir. 1979) (concluding that senior
Executive Branch officials, including a former president
of the United States, were not absolutely immune from
suit for damages by citizen alleging an unconstitutional
wiretap), aff’d in pertinent part, 452 U.S. 713 (1981); Butz
v. Economou, 438 U.S. 478 (1978) (concluding that
federal officials in the Executive Branch, including the
58 Nos. 10-1687 & 10-2442
Secretary of Agriculture, ordinarily may be entitled to
qualified immunity, not absolute immunity, from con-
stitutional claims).
c. The Defense Arguments and Precedents for
Special Factors
Although the principal elements of plaintiffs’ claims
are familiar aspects of Bivens jurisprudence, the claims are
challenging because they arose in a U.S. military
prison in Iraq during a time of war. As the defendants
acknowledged at oral argument, however, neither the
Supreme Court nor any other federal circuit court has
ever denied civilian U.S. citizens a civil remedy for their
alleged torture by U.S. government officials.
i. Military Affairs and National Security
The defendants’ argument that the courts should stay
out of military affairs rests on the assumption that the
plaintiffs are mounting a broad challenge to U.S.
military and detention policy, raising issues of national
security and even foreign relations. If plaintiffs were
actually seeking a general review of “military actions
and policies,” as the defense suggests, this case would
present different issues. That is not what plaintiffs
seek. They are not challenging military policymaking
and procedure generally, nor an ongoing military ac-
tion. They challenge only their particular torture at
the hands and direction of U.S. military officials, contrary
to statutory provisions and stated military policy, as
Nos. 10-1687 & 10-2442 59
well as the Constitution. Allowing Bivens liability in
these unusual circumstances would not make courts, as
defendants suggest, “the ultimate arbiters of U.S.
military or foreign policy.”
We are sensitive to the defendants’ concerns that the
judiciary should not interfere with military decision-
making. The “Constitution recognizes that core strategic
matters of warmaking” rest with the Executive. Hamdi,
542 U.S. at 531. But it is equally clear that “[w]hile we
accord the greatest respect and consideration to the
judgments of military authorities in matters relating to
the actual prosecution of a war, and recognize that the
scope of that discretion necessarily is wide, it does not
infringe on the core role of the military for the courts
to exercise their own time-honored and constitutionally
mandated roles of reviewing and resolving claims.” Id.
at 535; see also Ex parte Quirin, 317 U.S. 1, 19 (1942) (ac-
knowledging that “the duty which rests on the courts,
in time of war as well as in time of peace, [is] to
preserve unimpaired the constitutional safeguards of
civil liberty”). Recognizing the plaintiffs’ claims for
such grave — and, we trust, such rare — constitutional
wrongs by military officials, in a lawsuit to be heard well
after the fact, should not impinge inappropriately on
military decision-making.
The defendants raise the concern that litigation of the
plaintiffs’ claims “would inevitably require judicial
intrusion into matters of national security.” See Wilson,
535 F.3d at 710. This may be a serious concern, but at a
very pragmatic level, the fact that classified informa-
60 Nos. 10-1687 & 10-2442
tion (from years ago) might be implicated at some point
in this litigation is not a bar to allowing it to go forward
at this stage. If classified information becomes a
problem, the law provides tools to deal with it. As
Judge Calabresi explained in Arar v. Ashcroft, the state-
secrets privilege is the appropriate tool by which
state secrets are protected: “Denying a Bivens remedy
because state secrets might be revealed is a bit like
denying a criminal trial for fear that a juror might be
intimidated: it allows a risk, that the law is already at
great pains to eliminate, to negate entirely substantial
rights and procedures.” 585 F.3d at 635 (Calabresi, J.,
dissenting). As the majority in Arar acknowledged,
“courts can — with difficulty and resourcefulness —
consider state secrets and even reexamine judgments
made in the foreign affairs context when they must, that
is, when there is an unflagging duty to exercise our juris-
diction.” Id. at 575-76. Fear of the judiciary “intruding”
into national security should not prevent us from recog-
nizing a remedy at this stage, in this case.
Courts reviewing claims of torture in violation of
statutes such as the Detainee Treatment Act or in
violation of the Fifth Amendment do not endanger
the separation of powers, but instead reinforce the com-
plementary roles played by the three branches of
our government. See, e.g., Boumediene, 553 U.S. at 742(“The Framers’ inherent distrust of governmental power
was the driving force behind the constitutional plan
that allocated powers among three independent
branches. This design serves not only to make Govern-
ment accountable but also to secure individual liberty.”);
Nos. 10-1687 & 10-2442 61
see also Hamdi, 542 U.S. at 536-37 (emphasizing, with
respect to challenges to the factual basis of a citizen’s
detention, that “it would turn our system of checks and
balances on its head to suggest that a citizen could not
make his way to court with a challenge to . . . his
detention by his Government, simply because the Execu-
tive opposes making available such a challenge”). The
defendants’ broad argument that the judiciary should
stay out of all matters implicating national security is
too broad to be convincing.
Our dissenting colleague suggests that “given the
significant pitfalls of judicial entanglement in military
decisionmaking, it must be Congress, not the courts,
that extends the remedy and defines its limits.” Dissent
at 88. We respectfully disagree. As the Supreme Court
said in Hamdi: “Whatever power the United States Con-
stitution envisions for the Executive . . . in times of
conflict, it most assuredly envisions a role for all
three branches when individual liberties are at stake.”
542 U.S. at 536.
Recent habeas corpus cases reinforce our under-
standing that federal courts have a role to play in safe-
guarding citizens’ rights, even in times of war. The
Hamdi Court, examining a claim by an American citizen
detained on U.S. soil as an enemy combatant, held that
the detainee was entitled to contest the basis for his
detention. “What are the allowable limits of military
discretion, and whether or not they have been over-
stepped in a particular case, are judicial questions.”
Hamdi, 542 U.S. at 535, quoting Sterling v. Constantin, 287
U.S. 378, 401 (1932).
62 Nos. 10-1687 & 10-2442
The Munaf Court later made clear that the habeas
statute “extends to American citizens held overseas by
American forces.” Munaf, 553 U.S. at 680. Thus, courts
may enforce the habeas rights of U.S. citizens in U.S.
military custody in Iraq, though in Munaf itself, relief
was denied because Iraq had a sovereign right to crimi-
nally prosecute the petitioners. Id. at 694-95.
Most recently, in Boumediene, the Supreme Court
held that aliens detained as enemy combatants at
Guantanamo Bay were entitled to seek a writ of
habeas corpus to challenge their detention and that the
Detainee Treatment Act review procedures were
an inadequate alternative to habeas corpus. 553 U.S. at
795. This line of cases undermines the defendants’
broad insistence that the judiciary must stay out of
all matters concerning wartime detention and interroga-
tion issues.18
18
The defendants suggest that “it is telling” that the plaintiffs
rely on habeas corpus cases rather than cases permitting
Bivens claims in the context of reviewing military actions and
policies, because habeas is a remedy authorized by statute and
the Constitution while Bivens is merely a judicially-created
remedy for damages, with what the defense argues is a pre-
sumption against recognizing claims in new contexts. The
argument is not persuasive. Those cases also involve some
judicial inquiry into matters affecting national security and
military activity. Hamdi, Munaf, and Boumediene thus weigh
against the argument that the courts must simply defer to
executive authorities in a case involving alleged torture of a
U.S. citizen in U.S. military custody.
Nos. 10-1687 & 10-2442 63
The fact that the plaintiffs are U.S. citizens is a key
consideration here as we weigh whether a Bivens
action may proceed.1 9 As the Court in Reid concluded:
“When the Government reaches out to punish a citizen
who is abroad, the shield which the Bill of Rights and
other parts of the Constitution provide to protect his
life and liberty should not be stripped away just because
he happens to be in another land.” Reid, 354 U.S. at 6(plurality opinion of Black, J.); see also Kar v. Rumsfeld, 580
F. Supp. 2d 80, 83 (D.D.C. 2008) (finding that the “Fourth
and Fifth Amendments certainly protect U.S. citizens
detained in the course of hostilities in Iraq”).
The defendants cite a number of cases, both habeas
corpus and Bivens cases, for the proposition that the
judiciary should not create damages remedies in
the context of foreign affairs. Almost all of these were
suits by aliens, not U.S. citizens, detained and suspected
of terrorism ties. For example, the defendants cite Arar
v. Ashcroft, where the sharply divided Second Circuit
declined to recognize an alien’s Bivens claim for “extra-
19
This is not to say that we think that citizenship should be a
dispositive factor in all Bivens cases implicating national
security. But as we explain, in the context of this particular
set of facts and allegations, U.S. citizenship or permanent
resident alien status counsels in favor of recognizing a
judicial remedy against federal officials even if the result
might be different for an alien’s similar claim. Such an
alien could have his own government intervene to protect
his rights, and such claims could implicate foreign affairs
and diplomacy in a way that this case does not.
64 Nos. 10-1687 & 10-2442
ordinary rendition” because several related “special
factors” counseled hesitation. 585 F.3d at 575-81. The
plaintiff in Arar was an alien with Syrian and Canadian
citizenship who challenged an alleged U.S. presidential
policy allowing extraordinary rendition and torture by
foreign governments. The majority found that allowing
the alien plaintiff to proceed with a Bivens claim “would
have the natural tendency to affect diplomacy, foreign
policy, and the security of the nation, and that fact
counsels hesitation.” Id. at 574. More recently, the D.C.
Circuit held that Afghan and Iraqi citizens who alleged
that they were tortured in U.S. custody in those
nations could not pursue Bivens claims against U.S. offi-
cials, including Secretary Rumsfeld. Ali v. Rumsfeld, ___
F.3d ___, 2011 WL 2462851 (D.C. Cir. June 21, 2011).2 0
We are fully aware that prohibitions against torture
are matters of international law as well as United States
law, and that those prohibitions reflect basic and
universal human rights. The question of remedies, how-
ever, has more room for nuance, and the Second Circuit
majority in Arar was concerned in large part about the
20
Our dissenting colleague contends that recognizing a Bivens
claim here “vaults over this consensus” and “too-casually
sidesteps the weight of precedent from other circuits.” Dissent
at 82, 88. There is in fact no such consensus to vault over, nor a
“casual sidestep.” There is no circuit court decision with
which we disagree. The two circuits we have cited addressed
the very different situation of alien detainees. The plaintiffs
here are U.S. citizens entitled to the full protection of our
Constitution.
Nos. 10-1687 & 10-2442 65
diplomatic and foreign policy consequences of hearing
Arar’s claims. 585 F.3d at 574; see also Arar, 585 F.3d at
603 (Sack, J., concurring in part and dissenting in
part) (concluding that security and secrecy concerns
should not be considered “special factors counseling
hesitation,” but should be dealt with on a case-by-case
basis employing the state-secrets doctrine). If the U.S.
government harms citizens of other nations, they can
turn to their home governments to stand up for their
rights. These considerations are simply not present in
this lawsuit by two U.S. citizens challenging their
alleged illegal torture by their own government.
In a series of cases, the D.C. Circuit has rejected efforts
by aliens to use Bivens to seek relief from U.S. foreign
policy and military actions overseas. In Sanchez-Espinoza
v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), members of the
U.S. Congress and citizens of Nicaragua brought
claims, including Bivens claims, against U.S. government
officials for their alleged support of forces bearing arms
in Nicaragua. In rejecting the obvious invitation to
the federal courts to make foreign policy, the court ex-
plained: “we think that as a general matter the danger
of foreign citizens’ using the courts in situations such
as this to obstruct the foreign policy of our government
is sufficiently acute that we must leave to Congress
the judgment whether a damage remedy should exist.”
770 F.2d at 209.
The D.C. Circuit followed that reasoning in Rasul v.
Myers, 563 F.3d 527, 530 (D.C. Cir. 2009) (Rasul II), where
the court relied on the alien citizenship of the plain-
66 Nos. 10-1687 & 10-2442
tiffs in granting the defendants qualified immunity,
finding that “[n]o reasonable government official would
have been on notice that [alien] plaintiffs had any Fifth
Amendment or Eighth Amendments rights.” Because the
Rasul II court found that the defendants were immune
from suit, it reached the broader Bivens issue only in a
footnote, concluding in the alternative that the plaintiffs’
Bivens claims were foreclosed by “special factors.” Id. at
532 n.5, citing Judge Brown’s concurrence in Rasul v.
Myers, 512 F.3d 644, 672-73 (Rasul I) (concluding that
special factors foreclose a Bivens claim in the context
of treatment and interrogation of enemy combatant
detainees), vacated, 129 S. Ct. 763 (2008). In Rasul I,
Judge Brown had written:
Treatment of detainees is inexorably linked to our
effort to prevail in the terrorists’ war against us,
including our ability to work with foreign govern-
ments in capturing and detaining known and
potential terrorists. Judicial involvement in this deli-
cate area could undermine these military and diplo-
matic efforts and lead to embarrassment of our gov-
ernment abroad.
512 F.3d at 673 (Brown, J., concurring) (quotation marks
omitted); see also Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d
103, 112 (D.D.C. 2010), appeal pending, No. 10-5393 (D.C.
Cir.) (relying on Rasul II, finding that “[t]he D.C. Circuit’s
conclusion that special factors counsel against the judi-
ciary’s involvement in the treatment of detainees held
at Guantanamo binds this Court and forecloses it from
creating a Bivens remedy for plaintiffs here”). Judge
Nos. 10-1687 & 10-2442 67
Brown’s reasoning in Rasul cannot be extended to bar
claims by U.S. citizens who have not been charged with,
let alone convicted of, any terrorist activity.
Most recently, in Ali v. Rumsfeld, the D.C. Circuit fol-
lowed Rasul II and Sanchez-Espinoza to hold that Iraqi
and Afghan citizens detained abroad in U.S. military
custody could not sue under Bivens for claims of torture.
The court’s analysis of “special factors” under Bivens
emphasized the plaintiffs’ status as aliens. ___ F.3d at ___,
2011 WL 2462851, at *4-7. The D.C. Circuit’s opinions in
Ali, Rasul II, and Sanchez-Espinoza do not even hint that
their reasoning would extend to bar Bivens claims by
civilian U.S. citizens who can prove that their own gov-
ernment tortured them.
As our dissenting colleague points out, there is some
overlap in the special factors analysis that applied in
the cases brought by aliens in Ali and Arar, all of whom
alleged they were tortured, either directly by the U.S.
government or as a result of a U.S. practice of extraordi-
nary rendition. Those cases presented very disturbing
allegations about our government, especially in view of
our nation’s long commitment to comply with inter-
national law and our leadership in opposing torture
worldwide. We acknowledge that those cases presented
difficult issues in applying the Bivens special factors
analysis.
Whether one agrees or disagrees with Ali and Arar,
however, we should not let the difficulty of those cases
lead us to lose sight of the fundamentally different situa-
tion posed by the claims of civilian U.S. citizens in this
case. These plaintiffs have alleged a grave breach of our
68 Nos. 10-1687 & 10-2442
most basic social compact — between “We the People”
and the government we created in our Constitution.
As difficult as torture claims by aliens may be, we
repeat that nothing in Ali or Arar, or in the opinions in
Rasul II or Sanchez-Espinoza, indicates that those courts
were willing to extend the unprecedented immunity
that defendants and the dissent advocate here, for
claims that our government tortured its own citizens.
ii. Congressional Intent
The defendants do not argue that Congress has created
an “alternative remedy” that forecloses a Bivens remedy.
They argue, though, that because Congress has passed
numerous pieces of legislation regarding detainee treat-
ment, none of which provide detainees with a statutory
private right of action, the courts should not recognize
a Bivens remedy for civilian U.S. citizens tortured in
military custody in a war zone. See, e.g., Ronald W.
Reagan National Defense Authorization Act for Fiscal
Year 2005, 10 U.S.C. § 801, stat. note § 1092; Military
Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.
2600, 2635, codified at 28 U.S.C. § 2241(e)(2). Congress
has also addressed detention standards in a criminal
statute without providing for a private civil right of
action. See 10 U.S.C. § 893 (a person guilty of cruelty
and maltreatment of person subject to his orders shall
be punished as a court-martial may direct). Congress
has even gone so far as to criminalize overseas torture,
see 18 U.S.C. § 2340A, but explicitly provided that it
was not creating a new civil right of action. See 18 U.S.C.
Nos. 10-1687 & 10-2442 69
§ 2340B (“Nothing in this chapter shall be construed . . .
as creating any substantive or procedural right
enforceable by law by any party in any civil proceeding.”).
From Congress’ close attention to detainee treatment
without creating a civil right of action, defendants infer
that a Bivens remedy is not appropriate here.
We disagree. Bivens is a well-known part of the legal
landscape, so it is significant that Congress has taken
no steps to foreclose a citizen’s use of Bivens. We can
assume that Congress was aware that Bivens might
apply when it enacted legislation relevant to detainee
treatment. In fact, when Congress enacted the Detainee
Treatment Act, it opted to regulate — not prohibit — civil
damages claims against military officials accused of
torturing aliens suspected of terrorism. Congress
created a good faith defense in civil and criminal cases
for officials who believed that their actions were legal
and authorized by the U.S. government:
In any civil action or criminal prosecution against
an officer, employee, member of the Armed Forces,
or other agent of the United States Government
[for engaging in practices involving detention and
interrogation of alien detainees suspected of
terrorism] it shall be a defense that such officer, em-
ployee, member of the Armed Forces, or other
agent did not know that the practices were unlawful
and a person of ordinary sense and understanding
would not know the practices were unlawful . . . .
Nothing in this section shall be construed to limit
or extinguish any defense or protection otherwise
70 Nos. 10-1687 & 10-2442
available to any person or entity from suit, civil or
criminal liability, or damages, or to provide immunity
from prosecution for any criminal offense by the
proper authorities.
42 U.S.C. § 2000dd-1(a).2 1 This express but limited defense
against civil claims by alien detainees suspected of terror-
ism is a strong indication that Congress has not closed
the door on judicial remedies that are “otherwise avail-
able,” certainly for U.S. citizens, even though it chose not
to wrestle with just what those remedies might be.
Accepting defendants’ invitation to consider other
indications of Congressional intent, we find other
powerful evidence that weighs heavily in favor of recog-
nizing a judicial remedy here. Congress has enacted
laws that provide civil remedies under U.S. law for
foreign citizens who are tortured by their governments.
The plaintiffs cite the Torture Victim Protection Act
and the Alien Tort Statute, 28 U.S.C. § 1350, which was
part of the Judiciary Act of 1789, to show that “Congress
and the American people have always stood against
torture, and Congress has seen litigation against offi-
cials of other nations as an important tool to implement
America’s foreign policy against torture.” Pl. Br. at 30.
Where Congress has authorized such claims by non-
citizen victims of torture by foreign governments, it
21
The defendants emphasize the last sentence in the
quoted passage, but it indicates only that Congress did not
intend to make any other change in law that would
otherwise apply.
Nos. 10-1687 & 10-2442 71
would be startling if United States law did not provide
a judicial remedy for U.S. citizens alleging torture by
their own government.
It would be difficult to reconcile the law of nations’
prohibition against torture and the remedies United
States law provides to aliens tortured by their govern-
ments with a decision not to provide these citizen-
plaintiffs a civil remedy if they can prove their allega-
tions. The defendants have not attempted to do so. As
the Second Circuit held in Filartiga v. Pena-Irala, “delib-
erate torture perpetrated under color of official
authority violates universally accepted norms of the
international law of human rights, regardless of the
nationality of the parties.” 630 F.2d 876, 878 (1980)
(holding that alien victims of torture in Paraguay could
sue responsible Paraguayan official in U.S. district court
under Alien Tort Statute for damages for violation of
law of nations); see also Sosa v. Alvarez-Machain, 542 U.S.
692 (2004) (describing the history of the Alien Tort Statute
and holding that district courts may recognize private
causes of action for some violations of the law of nations).
Most relevant, though, is the Torture Victim Protection
Act of 1991, Pub. L. 102-256, codified as a note to the
Alien Tort Statute, 28 U.S.C. § 1350. Section 2(a) of that
Act provides a cause of action for civil damages against
a person who, “under actual or apparent authority, or
color of law, of any foreign nation,” subjects another
person to torture or extrajudicial killing. Section 2(b)
requires U.S. courts to decline to hear such claims “if
the claimant has not exhausted adequate and available
72 Nos. 10-1687 & 10-2442
remedies in the place” where the conduct occurred.
Under the Torture Victim Protection Act, if an alien has
been tortured by her own government, and if that
foreign government has denied her a civil remedy, then
a U.S. court could hear the case against a defendant
found in the U.S. It would be extraordinary — one
might even say hypocritical — for the United States to
refuse to hear similar claims by a U.S. citizen against
officials of his own government. And Bivens provides
the only available remedy.
To illustrate the anomalous result the defendants
seek, consider the possibility that another country has
enacted its own law identical to the U.S. Torture Victim
Protection Act. If we accepted defendants’ argument in
this case and held there is no civil remedy available,
then there would be no “adequate and available
remedies in the place” where the conduct occurred (a
U.S. military base). If Secretary Rumsfeld could be found
visiting such a country with its own TVPA (so he could
be served with process), Vance and Ertel could sue him
in that country under its torture victim protection law
because U.S. law would provide no remedy. That would
be a very odd result. Surely the Congress that enacted
the Torture Victim Protection Act would rather have
such claims against U.S. officials heard in U.S. courts.2 2
22
Other parts of our government seem to agree, as Judge Parker
pointed out in Arar, 585 F.3d at 619 (Parker, J., dissenting).
The U.S. State Department has assured the United Nations
Committee Against Torture that the Bivens remedy is
available to victims of torture by federal officials. United States
(continued...)
Nos. 10-1687 & 10-2442 73
In sum, we are not convinced by the defendants’ argu-
ment that “special factors” preclude recognition of a
Bivens remedy in this case. A couple of final concerns
remain in our Bivens analysis. The defendants argue
that, under the plaintiffs’ approach, any military action
could result in a Bivens claim if the action were charac-
terized as a violation of some government policy. The
defendants argue, for example, that this could include
a plaintiff seeking damages from the Secretary of
Defense for an air strike in a location beyond the bounds
of congressional authorization to wage war. The
argument is not convincing. Today we decide only the
narrow question presented by the extraordinary allega-
tions now before us. The Bivens case law weighs in favor
of allowing plaintiffs, U.S. citizens, to proceed with
their claims that while they were in U.S. military
custody, they were tortured by U.S. government officials.
Our decision today opens up the courts to other claims
like this, but we hope and expect that allegations of
this nature will be exceedingly rare. We make no
broader holding about whether other future claims
about violations of government policy would be
cognizable under Bivens.
22
(...continued)
Written Response to Questions Asked by the United Nations
Committee Against Torture, ¶ 5 (Apr. 28, 2006), available at
http://www.state.gov/g/drl/rls/68554.htm (last accessed Aug. 4,
2011). This answer was in response to a question about the
fact that the only legislation the United States had enacted to
give effect to the Convention Against Torture gave U.S. courts
criminal jurisdiction over only extraterritorial acts of torture.
74 Nos. 10-1687 & 10-2442
A difficult related question is whether recognizing
the plaintiffs’ Bivens claim in this instance creates a
special category of constitutional rights that would still
be enforceable in a war zone and, if so, what the limits
are of such a category. While the plaintiffs are arguing,
for example, that Fifth Amendment substantive due
process rights apply to U.S. citizens detained by the
U.S. military in a war zone, this appeal presents no
issue regarding the fact of plaintiffs’ detention or some
aspects of that detention that would not have passed
constitutional muster if the detention had been subject
to civilian processes in the United States.2 3
The amicus brief by the Society of Professional Journal-
ists, the Project on Government Oversight, and the Gov-
ernment Accountability Project in support of the
plaintiffs also raises important questions about what
remedies U.S. citizen-journalists have in war zones. The
concerns of these amici were manifest in Kar. In that
case, a U.S. citizen alleges that he went to Iraq to make
a historical documentary film, was arrested by Iraqi
authorities, and then was transferred to U.S. authorities
and detained at Camp Cropper for two months. Al-
though recognizing that the Fourth and Fifth Amend-
23
The district court dismissed the plaintiffs’ Counts II and III.
In Count II, plaintiffs claimed that they were denied pro-
cedural due process, specifically through the denial of a
factual basis for their detention, access to exculpatory evidence,
and the opportunity to appear before an impartial adjudicator.
In Count III, the plaintiffs contended that they were denied
access to a court of law to challenge their detention. These
claims are not before us.
Nos. 10-1687 & 10-2442 75
ments “certainly protect U.S. citizens detained in the
course of hostilities in Iraq,” see 580 F. Supp. 2d at 83, the
district judge found that the defendants had not
violated any clearly established constitutional rights:
As weak as the government’s authority is, Kar has
provided none at all — no precedent that clearly estab-
lishes the right of a U.S. citizen to a prompt probable
cause hearing when detained in a war zone. Any
attempt to apply the two-day requirement from
[County of Riverside v. McLaughlin, 500 U.S. 44 (1991)]
or the seven-day requirement from the Patriot Act to
Kar’s circumstances ignores the differences between
detention on U.S. soil and detention in hostile territory.
Id. at 85. We are inclined to agree with that observation,
and indeed, many broader questions remain about
the application in a war zone of constitutional safe-
guards we have developed over time to protect U.S.
citizens’ rights.24 There may be difficult questions ahead,
but our job is to deal with those questions. We should
not let the prospect of difficult questions in the future
cause us to close the courthouse doors to the serious
claims presented by these allegations.
In rejecting the defendants’ “special factors” arguments
for a complete and unprecedented civil immunity
for torture of U.S. citizens, we have tried to apply the
caution required in applying Bivens. But caution is also
24
For a thoughtful discussion of some of these issues, see
José A. Cabranes, Our Imperial Criminal Procedure: Problems in
the Extraterritorial Application of U.S. Constitutional Law, 118
Yale L.J. 1660 (2009).
76 Nos. 10-1687 & 10-2442
required from the opposing perspective. Our courts have
a long history — more than 200 years — of providing
damages remedies for those whose rights are violated
by our government, including our military. See Iqbal, 129
S. Ct. at 1948, citing Dunlop v. Munroe, 11 U.S. (7 Cranch)
242, 268 (1812) (in case against postmaster, federal
official’s liability “will only result from his own neglect
in not properly superintending the discharge” of his
subordinates’ duties); Bivens, 403 U.S. at 395-97 (col-
lecting cases showing that damages against govern-
ment officials are historically the remedy for invasion
of personal interests in liberty, and quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803): “The very essence
of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever
he receives an injury.”); Little v. Barreme, 6 U.S. (2 Cranch)
170, 178-79 (1804) (holding that commander of a
warship was “answerable in damages” to the owner of
a neutral vessel seized pursuant to orders from
President but in violation of statute).
If we were to accept the defendants’ invitation to recog-
nize the broad and unprecedented immunity they seek,
then the judicial branch — which is charged with enforcing
constitutional rights — would be leaving our citizens
defenseless to serious abuse or worse by another branch
of their own government. We recognize that wrongdoers
in the military would still be subject to criminal pros-
ecution within the military itself. Relying solely on the
military to police its own treatment of civilians, however,
would amount to an extraordinary abdication of our
government’s checks and balances that preserve Ameri-
Nos. 10-1687 & 10-2442 77
cans’ liberty. The district court correctly allowed plain-
tiffs to proceed with their Bivens claims for torture.
D. Military Authority Exception to the Administrative
Procedure Act (APA)
Finally, we turn to the plaintiffs’ claim against the
United States to recover personal property seized from
them by the U.S. military when they were detained.2 5
The question is whether the “military authority” exception
in the Administrative Procedure Act, which prohibits
judicial review of “military authority exercised in the
field in time of war or in occupied territory,” 5 U.S.C.
§ 701(b)(1)(G), precludes subject matter jurisdiction
over the plaintiffs’ claim. We review this question of
law de novo. See Thomas v. General Motors Acceptance
Corp., 288 F.3d 305, 307 (7th Cir. 2002). We conclude
that the “military authority” exception precludes judicial
review and reverse the district court’s decision on this
claim.
The “military authority” exception to the Administra-
tive Procedure Act provides that the right of judicial
review for persons aggrieved by government actions
does not extend to the exercise of military authority “in
25
Vance has been able to recover his laptop computer from
military officials, who recovered it from a search of an Army
Criminal Investigative Command evidence facility at Camp
Victory in Iraq, but plaintiffs are still missing other personal
items seized when they were detained.
78 Nos. 10-1687 & 10-2442
the field in time of war.” 5 U.S.C. §701(b)(1)(G). The
plain language of the statutory exception prevents the
court from reviewing military decisions regarding
these plaintiffs’ personal property. First, there is no
question that the seizure of plaintiffs’ property was an
exercise of “military authority” by U.S. military per-
sonnel stationed in Iraq. Vance and Ertel acknowledge
that their property was taken by members of the military
in connection with a military investigation. Second, the
confiscation of property occurred “in time of war.” The
alleged seizure of the property occurred in 2006 in the
midst of a congressionally-authorized war in Iraq. See
Authorization for Use of Military Force Against Iraq
Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498(2002); In re Iraq and Afghanistan Detainees Litigation, 479
F. Supp. 2d 85, 102 (D.D.C. 2007) (taking judicial notice
that the United States is at war in Iraq); Qualls v. Rumsfeld,
357 F. Supp. 2d 274, 283-84 (D.D.C. 2005) (recognizing
that the United States was at war in Iraq). Third, the
military personnel seized plaintiffs’ property “in the
field.” When their property was seized, Vance and
Ertel were in Baghdad during an armed conflict. See, e.g.,
Rasul v. Bush, 215 F. Supp. 2d 55, 64 n. 11 (D.D.C. 2002)
(concluding that the military authority exception
would bar relief under the APA because plaintiffs were
captured in areas where the United States was “engaged
in military hostilities pursuant to the Joint Resolution
of Congress”), aff’d, Al Odah v. United States, 321 F.3d
1134 (D.C. Cir. 2003), rev’d on other grounds, Rasul v. Bush,
542 U.S. 466 (2004); Doe v. Sullivan, 938 F.2d 1370, 1380
(D.C. Cir. 1991) (suggesting that the exception applies
Nos. 10-1687 & 10-2442 79
to “military commands made in combat zones or in
preparation for, or in the aftermath of, battle”).
The district court relied on Jaffee v. United States,
592 F.2d 712 (3d Cir. 1979), to distinguish between a
claim for the return of property and a challenge to the
initial seizure of property. We find Jaffee inapposite. There,
in a case that did not address recovery of personal prop-
erty, the plaintiff sued under the APA to challenge
the government’s failure to take remedial measures to
protect soldiers who were exposed to an atomic explo-
sion at a military base in Nevada. The court held that
the “military authority” exception did not apply be-
cause the army’s failure to act was “neither in the field
nor in time of war.” Id. at 720. The atomic blast occurred
during the Korean conflict, but thousands of miles of
land and ocean separated the blast site in Nevada from
the active combat zone in Korea. These facts are
readily distinguishable from those before us, where
Vance and Ertel’s property was allegedly seized from
them in the middle of a war zone. Furthermore, while
the Jaffee plaintiffs sought relief for the government’s
failure to act years after the Korean War had officially
ended, Vance and Ertel, by contrast, seek an inquiry
into the whereabouts of their property while the conflict
in Iraq is ongoing.
The district judge denied the motion to dismiss based
on the possibility that the plaintiffs’ property might no
longer be held “in the field,” and allowed the claim to
proceed to permit discovery to inquire into its present
location. We do not find this reasoning persuasive. The
80 Nos. 10-1687 & 10-2442
cases cited by the district court to support this reasoning
are all readily distinguishable. See, e.g., Doe v. Rumsfeld,
297 F. Supp. 2d 119, 129 (D.D.C. 2003) (finding that the
“military authority” exception did not prevent judicial
review of a decision to require American troops
stationed within the United States to submit to anthrax
vaccinations because claims did not challenge “military
authority exercised in the field in a time of war or in
occupied territory”); Rosner v. United States, 231 F. Supp. 2d
1202, 1217-18 (S.D. Fla. 2002) (allowing, in “an abundance
of caution,” discovery on the application of the “military
authority” exception to the United States Army’s seizure
of property expropriated by the Hungarian government
during World War II). In contrast to these cases, it is
clear that Vance and Ertel’s personal property was
seized by “military authority exercised in the field in
time of war.” 5 U.S.C. §701(b)(1)(G).
Regardless of the current location of the prop-
erty — whether in Fort Hood, Texas, or in Rock Island,
Illinois, as plaintiffs suggest, or in Baghdad — it was
seized by and remains in the custody of military
engaged in ongoing hostilities in Iraq. While in some
cases it may be appropriate for the district court to order
discovery to determine whether the “military authority”
exception applies, no additional discovery is necessary
on this issue here where the exception clearly applies as
the claims have been pled.
III. Conclusion
The decision of the district court in No. 10-1687
denying in part Secretary Rumsfeld’s motion to dis-
Nos. 10-1687 & 10-2442 81
miss is A FFIRMED. The decision in No. 10-2442 denying
dismissal of the personal property claims under the
Administrative Procedure Act is R EVERSED.
M ANION, Circuit Judge, concurring in part and dissenting
in part. Much attention will be focused on the fact that
the court has sustained a complaint alleging that former-
Secretary Rumsfeld was personally responsible for the
torture of United States citizens. However, the most
significant impact of the court’s holding is its extension
of Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Specifically, the court
holds that a “Bivens remedy,” as implied causes of action
for violations of constitutional rights have come to be
known, is available to United States citizens alleging
torture while held in an American military prison in
an active war zone. Present case law requires a very
cautious approach before extending a Bivens remedy
into any new context, and emphasizes that there are
many “special factors” present in this particular context
that should cause us to hesitate and wait for Congress to
act. Because the court has not exercised that restraint
in this case, I respectfully dissent.
82 Nos. 10-1687 & 10-2442
For starters, this case is not about constitutional rights,
against torture or otherwise—the defendants readily
acknowledge that the type of abuse alleged by the
plaintiffs would raise serious constitutional issues.
Rather, this case centers on the appropriate remedies
for that abuse and who must decide what those remedies
will be. Confronted by allegations as horrible as those
described in this case, it is understandable that the
court concludes that there must be a remedy for these
plaintiffs. But that concern should not enable this court
to create new law. For decades, the Supreme Court
has cautioned that such decisions should be left to Con-
gress, especially where there are “special factors coun-
seling hesitation in the absence of affirmative action by
Congress.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007);
see also, e.g., Schweiker v. Chilicky, 487 U.S. 412, 421-23
(1988) (refusing a cause of action of social security com-
plaints); United States v. Stanley, 483 U.S. 669, 680-81
(1987) (no cause of action by military service member
when the injury arise out of activity incident to service).
This longstanding reluctance creates a veritable presump-
tion against recognizing additional implied causes of
action. In line with this presumption, both circuits con-
fronted with allegations of constitutional violations in
war zones have refused to recognize a Bivens remedy.
See Ali v. Rumsfeld, ___ F.3d ___, 2011 WL 2462851,
at *6 (D.C. Cir. Jun. 21, 2011); Arar v. Ashcroft, 585 F.3d
559, 635 (2d Cir. 2009). The court vaults over this
consensus and, for the first time ever, recognizes a
Bivens cause of action for suits alleging constitutional
violations by military personnel in an active war zone.
Nos. 10-1687 & 10-2442 83
I dissent because sorting out the appropriate remedies
in this complex and perilous arena is Congress’s role,
not the courts’.1
Before explaining the particulars of my disagreement
with the court, it is important to stress the proper
questions before the court. Otherwise, given the severity
of the allegations and the controversy surrounding
the military policies underlying this case, we risk
getting sidetracked. What we are asked to decide is
simply who—the courts or Congress—should decide
whether the courts will review constitutional claims
against military personnel that arise in an active war
zone, under what conditions and parameters that
review should take place, and to what extent members
of the military, whether high or low, should have im-
munity from suit.2 Whether there should be judicial
review of these claims is a policy question, one that
I believe is outside the purview of this court to decide.
1
I concur, however, in the court’s dismissal of the plaintiffs’
property claims pursuant to the military authority exception
to the Administrative Procedure Act.
2
The court’s rhetorical dissection of “immunity” obscures,
rather than clarifies, an already complex and confusing issue.
Whether a Bivens remedy is available and whether particular
federal officials are entitled to either absolute or qualified
immunity are entirely distinct questions. “Immunity” is
indeed an issue elsewhere in this suit, see infra note 5,
but primarily the issue before us is whether or not there
is an implied Bivens cause of action directly under the Con-
stitution.
84 Nos. 10-1687 & 10-2442
The Supreme Court refined its cautious approach to
this question in Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
There, it adopted a two-part test to determine whether
to extend implied actions into a new context. First, if
there are adequate alternative remedies, there is no
need for an implied Bivens remedy. And second, if
there are “special factors counseling hesitation,” courts
should leave the creation of new remedies to Congress,
which is after all “in a far better position than a court
to evaluate the impact of a new species of litigation
against those who act on the public’s behalf.” Id. at 550,
562. The court focuses most of its attention on the “special
factors” prong of the test. I will follow suit and assume
for the sake of argument that the first prong is satisfied
and no meaningful alternative remedy exists in statute
or regulation.3 I think it clear that there are special
factors and precedents that should control this case. The
court holds otherwise, but I would point to what I see
as the five defects in the court’s holding: (1) the lack of
precedent in its favor; (2) the underestimation of the
risks of judicial review of wartime military activity;
(3) its unsuccessful attempt to distinguish precedent
from other circuits; (4) the inapplicability of recent
habeas corpus jurisprudence; and finally (5) the failure to
3
A distinguished collection of fourteen former Secretaries of
Defense and Members of the Joint Chiefs of Staff filed an
amicus brief urging us to wait for Congress to decide how to
handle alleged constitutional violations by military personnel.
They make a strong case that there are adequate alternative
remedies that the plaintiffs have not pursued, contrary to
the court’s conclusion.
Nos. 10-1687 & 10-2442 85
recognize the consequences of its holding and the prece-
dent it sets.
The resolution of the special factors analysis is straight-
forward. If anything qualifies as a “special factor[] coun-
seling hesitation,” it is the risk of the judiciary prying
into matters of national security or disrupting the mili-
tary’s efficient execution of a war. National security
matters are “rarely proper subjects for judicial interven-
tion,” Haig v. Agee, 453 U.S. 280, 292 (1981), and “courts
traditionally have been reluctant to intrude upon the
authority of the Executive in military and national
security affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 530
(1988). In that arena, courts will necessarily have to pass
judgment on sensitive matters of military policy, in-
cluding who is (or should be) responsible for making and
implementing that policy at various levels. Further, judi-
cial review of wartime decisions will necessarily in-
volve significant amounts of classified materials, gen-
erating public discussion of sensitive matters of national
security in open court. The commonsense under-
standing that the courts should exercise caution before
venturing out into the battlefield is reflected in the
limited precedent to date. While the Supreme Court has
not taken up the question of Bivens in the context of
wartime military actions, the D.C. Circuit and the
en banc Second Circuit have both concluded that Bivens
should not extend to suits by wartime detainees. See
Ali, ___ F.3d ___, 2011 WL 2462851, at *6; Arar,
585 F.3d 559. We should follow our sister circuits in
leaving for Congress the task of addressing the “who,”
“what,” “when,” “where,” “why,” and “how much”
questions of civil damages remedies for military decisions
86 Nos. 10-1687 & 10-2442
in wartime, rather than exploring an uncharted maze of
military and national security policy in a foreign war zone.
The court’s citations seem to acknowledge this lack of
precedent. All of the cases it cites in its favor addresses
different contexts and different special factors. It ap-
proaches the “special factors” analysis in this case by
arguing that the military detainee context is not that
much different from other contexts in which Bivens
actions have been allowed. But these cases are
largely beside the point, because they do not concern
the legitimate special factors of national security and
military policy at play in this case. The court points
out precedent that Bivens claims have long been
“available to prisoners who assert that they have
been abused or mistreated by their federal jailors,” see,
e.g., Carlson v. Green, 446 U.S. 14 (1980); (Opn. at 53) that
the Supreme Court, this court, and others have allowed
Bivens claims to continue against military officials,
Saucier v. Katz, 533 U.S. 194 (2001), and even cabinet
members, Mitchell v. Forsyth, 472 U.S. 511 (1985). 4 These
cases do establish that a Bivens remedy may lie against
4
The court also correctly notes that United States citizens do
not lose their constitutional rights when they venture abroad.
I stress again that the lack of an implied cause of action
under Bivens does not strip plaintiffs here of their constitu-
tional rights (against torture or anything else) in a war zone;
it merely forces Congress to sort out a difficult issue.
Moreover, the court’s citations involve military trials for
civilians and habeas corpus rights for citizens, and have
nothing to do with liability under Bivens (or any other cause
of action). (Opn. at 56)
Nos. 10-1687 & 10-2442 87
military personnel—and even their cabinet-level sup-
eriors—in a domestic setting. But because none of them
involved claims arising abroad or during war, they
do not provide any guidance to the issue at the heart of
this case. Namely, whether judicial review of actions
undertaken by the military in an active foreign war
zone raises special factors that should caution us to
hesitate and allow Congress to create an appropriate
cause of action.
Second, the court understates the difficulties that
inhere in judicial review of military activity in a time
of war. While it does acknowledge the issue, the court
does not appear to appreciate just how much judicial
review might intrude on difficult and sensitive mat-
ters. The court argues—as did Judge Calabresi in his
dissenting opinion in Arar—that the state secret
privilege is all the protection we need to safeguard con-
fidential matters of national security from compromise
in open court. See Arar, 585 F.3d at 635 (Calabresi, J.
dissenting). But sorting out claims of privilege would
itself entail significant judicial intrusion in national secu-
rity affairs, and Congress is in a much better position
to balance the competing needs for national security
and the vindication of citizens’ constitutional rights.
The court also stresses that the judicial scrutiny in
this and other cases will be “well after the fact”
and “should not impinge inappropriately on military
decision-making.” (Opn. at 59) But it should go with-
out saying that the existence of a civil damage
remedy years down the line may affect decisions
88 Nos. 10-1687 & 10-2442
being made on the same battlefield today, by the same
or similarly situated individuals. That is not to say
that some judicial review in this area may not be neces-
sary—I agree with the court that allegations of torture
against a U.S. citizen are a very serious matter. But
given the significant pitfalls of judicial entanglement
in military decisionmaking, it must be Congress,
not the courts, that extends the remedy and defines
its limits.
Third, the court too-casually sidesteps the weight of
precedent from other circuits that Bivens should not
be extended to suits against military officials for
wartime actions. See Ali, ___ F.3d ___, 2011 WL 2462851,
at *6; Arar, 585 F.3d 559. It does this by pointing out
that those cases involved aliens, rather than citizens.
But the foreign status of the plaintiffs and potential
foreign policy implications were hardly the only special
factors at play in those decisions. In its en banc decision
refusing to recognize a Bivens remedy, the Second Circuit
also listed three other special factors: national security
interests, confidential information, and the risks posed by
proceedings in open court. Arar, 585 F.3d at 575, 576-77.
And the D.C. Circuit has consistently referred to the risk
of “obstructing national security policy” and has recently
stressed that “allowing a Bivens action to be brought
against American military officials engaged in war would
disrupt and hinder the ability of our armed forces to
act decisively and without hesitation in defense of our
liberty and national interests.” Ali, ___ F.3d at ___, 2011
WL 2462851, at *6; see also Rasul v. Myers, 563 F.3d
Nos. 10-1687 & 10-2442 89
527, 532 n.4 (D.C. Cir. 2009) (Rasul II) (internal quotes
omitted).5
Fourth, the court cites recent Supreme Court habeas
corpus cases approving limited judicial oversight over
military detention decisions, but these are clearly
inapposite. The defendants cogently object that the fact
that Congress has permitted the limited relief of habeas
corpus actions—essentially equitable relief—says next to
nothing about whether the courts should give the
green light to a much broader implied cause of action
for money damages. To this, the court responds that
“those [habeas] cases also involve some judicial inquiry
into matters affecting national security and military
activity,” and therefore “weigh against the argument
that the courts must simply defer to executive authorities
in a case involving alleged torture of a U.S citizen in
U.S. military custody.” (Opn. at 62 n.18) This rejoinder
misses the point entirely, however. I emphasize once again
5
The court also distinguishes Rasul II because it involved
detainees who were known or potential terrorists, whereas
here the plaintiffs “have not been charged with, let alone
convicted of, any terrorist activity.” (Opn. at 67) But the plain-
tiffs were obviously considered a security threat when they were
first apprehended; why should the fact that the military eventu-
ally concluded otherwise be relevant to the Bivens special factor
analysis? Instead, it highlights why the court should not be
picking and choosing between various constitutional tort claims
based on “countervailing factors that might counsel alacrity or
activism,” which have never been a part of the Bivens special
factors analysis. Arar, 585 F.3d at 573-74.
90 Nos. 10-1687 & 10-2442
that it is not a question of deferring to executive authority,
but to Congress. And the question is not whether the courts
are competent to review military decisions, nor even
whether such review would be necessary or wise. The
only question before us is whether these complex ques-
tions of military efficiency, national security, and separa-
tion of powers constitute “special factors counseling
hesitation.” Clearly they do, and therefore Supreme
Court precedent dictates that these sensitive questions
be left for Congress to resolve through the creation (or
not) of a cause of action for civil remedies.
Finally, the court does not recognize the far-reaching
implications of its holding. It stresses that its holding
is limited to “the narrow question presented by the ex-
traordinary allegations now before us.” (Opn. at 73) That
is, the remedy extends (at least for now) only to U.S.
citizens who are tortured—and perhaps to other,
nebulous “core constitutional rights”—while in U.S.
military custody in a war zone. The court offers no
logical reason why its unprecedented holding that a
Bivens remedy is available for allegations of torture by
military personnel in an active war zone should not
extend to other constitutional violations. Instead, the
court labels such concerns “not convincing.” (Opn.
at 73) But claims similar to those before us could cer-
tainly proliferate based on this precedent. Given the
enormous numbers of civilian contractors working in the
current foreign war zones (a fact to which the
court itself alludes), the potential scope of the court’s
Bivens remedy is itself a special factor that should cause
Nos. 10-1687 & 10-2442 91
us to hesitate before taking this first step. Unfortunately,
fraud and corruption among American workers in a
war zone is not rare. These and common crimes of
robbery and assault can land an American civilian in
the brig under military supervision. The voluminous
litigation by prisoners in our domestic prisons evidence
the possibility of “well pleaded complaints” under the
Bivens framework by Americans who claim torture and
other cruel and unusual treatment while being held in
a military prison in a war zone. Which of the
potentially thousands of wartime claims from American
employees of contractors (or others) will the court
entertain under this new cause of action? Future
courts should not have to put the lid back on
Pandora’s Box.
For these reasons, I dissent from the court’s decision
to allow the plaintiffs constitutional claims to proceed.6
6
I also have serious reservations about other aspects of the
court’s opinion, especially its holding that Secretary Rumsfeld
may be held personally liable for the alleged actions of his
subordinates under the plaintiffs’ allegations. The court identi-
fies two alleged bases for Secretary Rumsfeld’s personal
responsibility—his actual authorization of abusive interroga-
tion techniques at the time plaintiffs allege they were tortured,
and his deliberate indifference in the face of knowledge of
ongoing abusive treatment of detainees, including Americans.
The first set of allegations is entirely speculative. The purported
basis is a single article in the New York Times that does not
actually support the plaintiffs’ claims that Secretary Rumsfeld
(continued...)
92 Nos. 10-1687 & 10-2442
I concur with the court’s dismissal of plaintiffs’ Adminis-
trative Procedure Act claims.
6
(...continued)
approved the continued use of the techniques in question
via confidential addendum to the Army Field Manual. The
article states neither that the confidential addendum
approved the techniques, nor that the addendum was ever
approved. The second set of allegations may have greater
plausibility, but the court’s opinion does not explain why the
predicates for deliberate indifference in the military context
(far removed from the usual prison context) are sufficiently
clearly established as to defeat qualified immunity.
8-8-11