Donald Vance v. Donald Rumsfeld ( 2012 )

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 H. R UMSFELD and
T HE U NITED STATES 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
R EARGUED E N B ANC F EBRUARY 8, 2012—
D ECIDED N OVEMBER 7, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM ,
M ANION, K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES,
T INDER, and H AMILTON, Circuit Judges.
E ASTERBROOK, Chief Judge. This appeal presents the
question whether the federal judiciary should create a
right of action for damages against soldiers (and others
2 Nos. 10-1687 & 10-2442
in the chain of command) who abusively interrogate or
mistreat military prisoners, or fail to prevent improper
detention and interrogation. Both other courts of appeals
that have resolved this question have given a negative
answer. Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012);
Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Ali v.
Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011). Another circuit
declined to create a damages remedy against intel-
ligence officials who turned a suspected terrorist over
to another nation for interrogation. Arar v. Ashcroft, 585
F.3d 559, 571–81 (2d Cir. 2009) (en banc). We agree
with those decisions.
I
In 2005 and 2006 Donald Vance and Nathan Ertel
worked in Iraq for Shield Group Security (later known
as National Shield Security), a private firm that provided
protective services to businesses and governmental
organizations. (This factual narration comes from the
complaint, whose allegations we must accept for cur-
rent purposes.) Vance came to suspect that Shield was
supplying weapons to groups opposed to the United
States. He reported his observations to the FBI. Ertel
furnished some of the information that Vance relayed.
Persons who Vance and Ertel suspected of gun-running
retaliated by accusing Vance and Ertel of being arms
dealers themselves. Military personnel arrested them
in mid-April 2006. (The complaint does not specify
which day the arrests occurred.)
Nos. 10-1687 & 10-2442 3
According to the complaint, plaintiffs were held in
solitary confinement and denied access to counsel. Their
interrogators used “threats of violence and actual
violence, sleep deprivation and alteration, extremes of
temperature, extremes of sound, light manipulation,
threats of indefinite detention, denial of food, denial of
water, denial of needed medical care, yelling, prolonged
solitary confinement, incommunicado detention, falsified
allegations and other psychologically-disruptive and
injurious techniques.” Vance and Ertel were pro-
visionally classified as “security internees” and
called before a Detainee Status Board, but they were not
allowed to present evidence—and the military officials
running the proceedings refused to look at files on
their computers that Vance and Ertel say would have
established their innocence of arms-dealing charges.
Nor did the Board contact the FBI, even though Vance
and Ertel said that agents would verify their story.
The Board concluded on April 29, 2006, that Ertel
should be released. Nonetheless he was held for another
18 days, during which interrogators continued to use
harsh techniques. He was released on May 17, 2006.
Vance remained in solitary confinement until his release
on July 20, 2006, and was subjected to sleep deprivation,
prolonged exposure to cold, intolerably loud music,
“hooding,” “walling” (placing a person’s heels against a
wall and slamming his body backward into that wall),
threats of violence, and other techniques that caused
physical or mental pain. The Army Field Manual forbids
several of these techniques, which it classifies as “physical
torture,” “mental torture,” or “coercion.” See Army Field
4 Nos. 10-1687 & 10-2442
Manual: Intelligence Interrogation 1–8 (1992). Whether
any of the techniques constitutes “torture” within the
meaning of 18 U.S.C. §2340(1), which makes torture by
interrogators a crime, is a subject on which the parties’
briefs do not join issue, and which we therefore do not
address.
The Detainee Status Board eventually concluded that
both Vance and Ertel are innocent of the allegations
that had been made against them. Neither was
charged with a crime.
In December 2006 Vance and Ertel filed this suit against
persons who conducted or approved their detention
and interrogation, and many others who had super-
visory authority over those persons. The defendants
included Secretary of Defense Donald Rumsfeld. Plaintiffs
alleged that Secretary Rumsfeld had authorized the use
of harsh interrogation methods in Iraq and contended
that he is personally liable in damages—even though
plaintiffs also alleged that they had never been accused
of being enemy combatants and therefore were not
within the scope of Secretary Rumsfeld’s authorization.
They also sued the United States, seeking the return of
all property that had been seized from them in Iraq.
Rumsfeld asked the district court to dismiss the com-
plaint, presenting three principal arguments: that federal
law does not establish an action for damages on account
of abusive military interrogation; that the complaint
does not plausibly allege his personal involvement in
plaintiffs’ detention and interrogation; and that he is
entitled to qualified immunity. The district court ruled
Nos. 10-1687 & 10-2442 5
against all of these contentions. 694 F. Supp. 2d 957 (N.D.
Ill. 2010). Rumsfeld has appealed under the doctrine of
Mitchell v. Forsyth, 472 U.S. 511 (1985), which treats the
rejection of an immunity defense as a final decision for
the purpose of 28 U.S.C. §1291.
The United States also moved to dismiss the com-
plaint, contending that the “military authority excep-
tion” to the Administrative Procedure Act, 5 U.S.C.
§701(b)(1)(G), bars the suit against it. Section 701(b)(1)(G)
prohibits judicial review of “military authority exercised
in the field in time of war or in occupied territory”.
The district court concluded that this language does not
apply—at least, does not prevent Vance and Ertel from
engaging in discovery that they contend would show
the statute’s inapplicability—and denied the motion
to dismiss. 2009 U.S. Dist. L EXIS 67349 (N.D. Ill. July 29,
2009). The district court later certified this order for
interlocutory appeal under 28 U.S.C. §1292(b), see 2010
U.S. Dist. L EXIS 51973 (N.D. Ill. May 26, 2010), and a
motions panel accepted the appeal.
A merits panel reversed the district court’s decision
with respect to the United States but affirmed with
respect to Rumsfeld’s claim of immunity. 653 F.3d 591(7th Cir. 2011). We granted Rumsfeld’s request for re-
hearing en banc and vacated the panel’s opinion and
judgment; this set aside both aspects of its decision.
II
Both the district court and the panel concluded that it
is appropriate to create a private right of action for dam-
6 Nos. 10-1687 & 10-2442
ages against persons in the military chain of command.
See generally Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). The lead
argument in former Secretary Rumsfeld’s brief contests
this conclusion. Because the basis of appellate juris-
diction is the district court’s rejection of an immunity
defense, however, we must consider whether we are
authorized to address the merits.
The answer is yes. The Supreme Court held in Siegert
v. Gilley, 500 U.S. 226, 232 (1991), that when evaluating
an argument that a right is not “clearly established”—the
essential ingredient in any invocation of qualified im-
munity—a court may conclude that the right has not
been “clearly” established because it has not been estab-
lished at all. The Court followed up in Saucier v. Katz,
533 U.S. 194 (2001), by holding that a court of appeals
must decide both whether the right in question exists
and whether its existence had been “clearly established”
before the time of the challenged acts. Pearson v. Callahan,
555 U.S. 223 (2009), overruled that portion of Saucier
and held that a court of appeals may use sound discre-
tion when deciding whether to reach the merits ahead
(or instead) of the immunity question. But the Court
did not doubt that, on an interlocutory appeal under
Mitchell, one potential ground of decision is a conclu-
sion that the plaintiff does not have a legally sound
claim for relief.
Wilkie v. Robbins, 551 U.S. 537, 548–50 (2007), applies
this approach to Bivens claims in particular. Robbins sued
some federal officials, asserting extra-statutory claims
Nos. 10-1687 & 10-2442 7
for damages and contending that reasoning along the
lines of Bivens allowed the federal judiciary to recognize
such a remedy. Defendants took an interlocutory
appeal, contending that they enjoyed qualified immunity.
The Supreme Court ruled in defendants’ favor—not
because of immunity, but because it concluded that it
should not create a new Bivens remedy. Similarly, in
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme
Court resolved a qualified-immunity appeal by deciding
that the complaint did not state a plausible claim on
the facts. We have jurisdiction to decide this case on the
same grounds the Supreme Court employed in Wilkie
and Iqbal. See also Levin v. Madigan, 692 F.3d 607, 610–11
(7th Cir. 2012).
The appeal by the United States does not present any
jurisdictional problem, given the court’s decision to
accept the appeal certified under §1292(b). Neither does
it present a difficult question. The panel held that
§701(b)(1)(G) prevents any relief against the United
States. 653 F.3d at 626–27. We agree with that conclusion,
for the reasons the panel gave. Further discussion of
the subject is unnecessary.
III
When considering whether to create an extra-statutory
right of action for damages against military personnel
who mistreat detainees, we assume that at least some
of the conditions to which plaintiffs were subjected vio-
lated their rights. Although the Constitution’s applica-
tion to interrogation outside the United States is not
8 Nos. 10-1687 & 10-2442
settled, see United States v. Verdugo-Urquidez, 494 U.S. 259,
268–69 (1990), Rumsfeld concedes (for current purposes
at least) that it governs. The conduct alleged in the com-
plaint appears to violate the Detainee Treatment Act, 10
U.S.C. §801 note and 42 U.S.C. §§ 2000dd to 2000dd–1,
and may violate one or more treaties. The source of the
substantive right does not matter for the analysis
that follows.
Unless there is a right of action against soldiers and
their immediate commanders, however, there cannot be
a right of action for damages against remote superiors
such as former Secretary Rumsfeld. And neither the
Detainee Treatment Act nor any other statute creates a
private right of action for damages under the circum-
stances narrated by plaintiffs’ complaint. This much, at
least, is common ground among the parties. Plaintiffs
therefore ask us to create a right of action under federal
common law.
Bivens was the first time the Supreme Court created a
non-statutory right of action for damages against federal
employees. Since then the Court has created two others:
for unconstitutional discrimination in public employ-
ment, see Davis v. Passman, 442 U.S. 228 (1979), and for
violations of the eighth amendment by prison guards, see
Carlson v. Green, 446 U.S. 14 (1980). It has not created
another during the last 32 years—though it has reversed
more than a dozen appellate decisions that had created
new actions for damages. Whatever presumption in
favor of a Bivens-like remedy may once have existed
has long since been abrogated. The Supreme Court has
Nos. 10-1687 & 10-2442 9
never created or even favorably mentioned the pos-
sibility of a non-statutory right of action for damages
against military personnel, and it has twice held that
it would be inappropriate to create such a claim for
damages. See Chappell v. Wallace, 462 U.S. 296 (1983);
United States v. Stanley, 483 U.S. 669 (1987). The Court
has never created or even favorably mentioned a non-
statutory right of action for damages on account of
conduct that occurred outside the borders of the United
States. Yet plaintiffs propose a novel damages remedy
against military personnel who acted in a foreign na-
tion—and in a combat zone, no less.
The Court’s most recent decision declining to extend
Bivens is Minneci v. Pollard, 132 S. Ct. 617 (2012). Minneci
treated Wilkie as a restatement of the governing
principles, 132 S. Ct. at 621. Wilkie tells us:
our consideration of a Bivens request follows a
familiar sequence, and on the assumption that a
constitutionally recognized interest is adversely
affected by the actions of federal employees, the
decision whether to recognize a Bivens remedy
may require two steps. In the first place, there is
the question whether any alternative, existing
process for protecting the interest amounts to a
convincing reason for the Judicial Branch to
refrain from providing a new and freestanding
remedy in damages. [Bush v. Lucas, 462 U.S. 367(1983)] at 378. But even in the absence of an alter-
native, a Bivens remedy is a subject of judgment:
“the federal courts must make the kind of
10 Nos. 10-1687 & 10-2442
remedial determination that is appropriate for a
common-law tribunal, paying particular heed,
however, to any special factors counselling hesita-
tion before authorizing a new kind of federal
litigation.” Bush, supra, at 378.
551 U.S. at 550. Congress has provided some opportunities
for compensation of persons injured by the military in
combat zones. Rumsfeld does not contend that these
statutes (which we discuss later) supply a “convincing
reason for the Judicial Branch to refrain from creating a
new and freestanding remedy in damages.” But he does
contend that many factors make it inappropriate for the
judiciary to create a common-law remedy for damages
arising from military operations in a foreign nation.
Chappell and Stanley hold that it is inappropriate for
the judiciary to create a right of action that would permit
a soldier to collect damages from a superior officer.
Plaintiffs say that these decisions are irrelevant because
they were not soldiers. That is not so clear. They were
security contractors in a war zone, performing much
the same role as soldiers. Some laws treat employees
of military contractors in combat zones the same as sol-
diers. See, e.g., 18 U.S.C. §3261 and §3267(1)(A)(iii), parts
of the Military Extraterritorial Jurisdiction Act discussed
in United States v. Brehm, 691 F.3d 547 (4th Cir. 2012). See
also United States v. Ali, 2012 CAAF L EXIS 815 (C.A.A.F.
July 18, 2012) (holding that a civilian employee of a secu-
rity contractor in Iraq is treated as a soldier for the
purpose of prosecution under the Uniform Code of Mili-
tary Justice). But we need not decide whether civilians
Nos. 10-1687 & 10-2442 11
doing security work in combat zones are soldiers by
another name, because Chappell and Stanley did not
entirely depend on the relation between the soldier
and the superior officer.
The Supreme Court’s principal point was that civilian
courts should not interfere with the military chain of
command—not, that is, without statutory authority.
Chappell observed that military efficiency depends on a
particular command structure, which civilian judges
could mess up without appreciating what they were
doing. 462 U.S. at 300. The Court observed that Congress
has ample authority, under its constitutional power to
“make Rules for the Government and Regulation of
the land and naval Forces” (Art. I §8 cl. 14), to provide
for awards of damages and other kinds of judicial review
of military decisions. When Congress does not exercise
that power—or when, as we explain in a moment, it
exercises that power without providing for damages
against military wrongdoers—the judiciary should leave
the command structure alone. “Matters intimately
related to . . . national security are rarely proper subjects
for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292
(1981).
Stanley tried to circumvent Chappell by suing some
civilians and contending that the officers he had named
were not his superiors but had been in a different
branch of the military hierarchy. Stanley also observed
that the plaintiff in Chappell had at least some monetary
remedy through legislation, while he had none. The
Court wrote in response: “The ‘special facto[r]’ that
12 Nos. 10-1687 & 10-2442
‘counsel[s] hesitation’ [in creating a common-law
remedy] is not the fact that Congress has chosen to
afford some manner of relief in the particular case, but
the fact that congressionally uninvited intrusion into
military affairs by the judiciary is inappropriate.” 483
U.S. at 683. That’s equally true of our plaintiffs’ situation.
The fourth circuit addressed this subject in detail in
Lebron, 670 F.3d at 548–52, and we agree with its evalua-
tion.
What plaintiffs want is an award of damages premised
on a view that the military command structure should
be different—that, for example, the Secretary of Defense
must do more (or do something different) to control
misconduct by interrogators and other personnel on the
scene in foreign nations. They want a judicial order
that would make the Secretary of Defense care less
about the Secretary’s view of the best military policy, and
more about the Secretary’s regard for his own finances.
Plaintiffs believe that giving the Secretary of Defense a
financial stake in the conduct of interrogators would
lead the Secretary to hold the rights of detainees in
higher regard—which surely is true, but that change
would come at an uncertain cost in national security.
If the judiciary never erred, damages awards against
soldiers and their civilian supervisors would be all gain
and no loss. But judges make mistakes: They may lack
vital knowledge, may accept claims that should be
rejected on the facts or the law, or may award excessive
damages on justified claims or create supervisory
liability when they shouldn’t. See Stanley, 483 U.S. at
Nos. 10-1687 & 10-2442 13
682–83; see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2087
(2011) (Kennedy, J., concurring). Accounting for human
fallibility is an important part of the design of a legal
system. Military prosecutors (or civilian prosecutors
acting under the President’s direction) can consider
the needs of effective military action when exercising
prosecutorial discretion. Judges lack information that
executive officials possess, and in civil litigation there
is no source of discretion comparable to a prosecu-
tor’s. The Justices concluded in Chappell and Stanley that
Congress and the Commander-in-Chief (the President),
rather than civilian judges, ought to make the essential
tradeoffs, not only because the constitutional authority
to do so rests with the political branches of government
but also because that’s where the expertise lies. That is
as true here as it was in Chappell and Stanley. Accord,
Doe, 683 F.3d at 394 (“Doe is a contractor and not an
actual member of the military, but we see no way in
which this affects the special factors analysis.”).
The political branches have not been indifferent to
detainees’ interests. To the contrary, the treatment of
military detainees has occasioned extended debate and
led to a series of statutes. The Detainee Treatment Act
is one. Others enacted or amended in the past decade
include the Torture Victim Protection Act, 28 U.S.C. §1350
note; the Military Claims Act, 10 U.S.C. §2733; the
Foreign Claims Act, 10 U.S.C. §2734; the Military Com-
missions Act, 10 U.S.C. §948a et seq.; the federal torture
statute, 18 U.S.C. §§ 2340–2340A; the War Crimes Act,
18 U.S.C. §2441; and the Uniform Code of Military
Justice, 10 U.S.C. §801 et seq. Lebron summarizes the ways
14 Nos. 10-1687 & 10-2442
in which the political branches have addressed the ap-
propriate design of policies about interrogation. 670 F.3d
at 548–52. These statutes have one thing in common:
none provides for damages against military personnel
or their civilian superiors. Some, such as the Detainee
Treatment Act, expressly block damages liability. (We
return to this shortly.) Others provide compensation to
victims of military errors or misconduct, but the com-
pensation comes from the public fisc rather than
private pockets.
For example, the Military Claims Act provides that the
Judge Advocate General of each service may award up
to $100,000 from the Treasury to any person injured by
the military. The Foreign Claims Act provides that a
claims commission may award up to $100,000 of public
money to a person injured by the U.S. military in a
foreign nation. (These options are mutually exclusive;
when the Foreign Claims Act or the Federal Tort Claims
Act applies, the Military Claims Act does not. See 10 U.S.C.
§2733(b)(2).) We asked plaintiffs’ counsel at oral argu-
ment whether they had applied for awards under either
statute. Counsel said no, telling us that $100,000 is too
little for their injuries and that the persons charged with
implementing these laws enjoy too much discretion
for plaintiffs’ liking. (Plaintiffs have not argued that 32
C.F.R. §536.45(h), which provides that the military will
not make awards under either statute for assault and
battery, would make these statutes useless to them.
Section 536l.46(h) allows awards for intentional torts
related to an investigation; because the briefs do not
discuss the effect of §536.45(h), we do not consider
Nos. 10-1687 & 10-2442 15
whether plaintiffs’ losses would come within the “investi-
gation” clause.)
We are willing to assume that the cap on awards, and
the existence of discretion about when to award com-
pensation (and how much to provide), means that these
statutes are not full substitutes for a Bivens remedy. See
Minneci, the Court’s most recent discussion of that sub-
ject. Still, the fact that Congress has provided for com-
pensation tells us that it has considered how best to
address the fact that the military can injure persons
by improper conduct. We take two things from the
Military Claims Act and the Foreign Claims Act: first,
Congress has decided that compensation should come
from the Treasury rather than from the pockets of
federal employees; second, plaintiffs do not need a
common-law damages remedy in order to achieve
some recompense for wrongs done them. Unlike
Webster Bivens, they are not without recourse.
Vance and Ertel maintain, however, that through the
Detainee Treatment Act Congress has decided that they
are entitled to damages from the Secretary of Defense
and his subordinates. A portion of the Detainee Treat-
ment Act codified at 42 U.S.C. §2000dd–1(a) provides
that in both civil suits and criminal prosecutions, military
interrogators and their superiors are protected from
liability if “such officer, employee, member of the Armed
Forces, or other agent did not know that the practices
were unlawful and a person of ordinary sense and under-
standing would not know the practices were unlawful.
Good faith reliance on advice of counsel should be an
16 Nos. 10-1687 & 10-2442
important factor, among others, to consider in assessing
whether a person of ordinary sense and understanding
would have known the practices to be unlawful.”
Of course a defense to damages liability does not
create damages liability, but plaintiffs contend that
§2000dd–1(a) assumes that this liability already exists,
so personal liability must have Congress’s blessing. That
assumption is unwarranted. Congress often legislates to
make doubly sure that federal employees will not be
personally liable. The Westfall Act, 28 U.S.C. §2679, is
an example of that strategy. (Gutierrez de Martinez v.
Lamagno, 515 U.S. 417 (1995), and Ali v. Rumsfeld, supra,
discuss that law’s scope and effects.) The Public Health
Service Act, 42 U.S.C. §233(a), is another. See Hui v.
Castaneda, 130 S. Ct. 1845 (2010). Section 7(a) of the
Military Commissions Act, 28 U.S.C. §2241(e)(2), is a
third. It forbids awards of damages to aliens detained as
enemy combatants. See Al-Zahrani v. Rodriguez, 669 F.3d
315 (D.C. Cir. 2012). The existence of safeguards against
personal liability does not imply legislative authoriza-
tion for the judiciary to create personal liability.
Section 2000dd–1(a) applies only to suits by aliens and
therefore does not affect suits by citizens such as plain-
tiffs. Plaintiffs treat the restricted coverage of §2000dd–1
as a glitch, but we think it is more likely that the cov-
erage reflects an assumption behind the statute. Aliens
detained by U.S. military personnel might invoke
multiple sources of authorization to award damages:
one is the Torture Victim Protection Act; a second is
the Alien Tort Act, 28 U.S.C. §1350; and the third is the
Nos. 10-1687 & 10-2442 17
law of the nation in which the detention occurred (here,
the law of Iraq). Congress may have wanted to make
sure that military personnel enjoy some protection
against suits by persons who have an express right of
action. Vance and Ertel cannot use (at least, have not
tried to use) the Torture Victim Protection Act, the Alien
Tort Act, or the law of Iraq as a basis for the remedy
they seek. That Congress has put an obstacle in the
way of persons who could use those bodies of law does
not imply that persons who cannot use them must have
a common-law damages remedy.
The Detainee Treatment Act can be—and has
been—enforced by criminal prosecutions. The Depart-
ment of Defense has procedures for reporting claims of
abuse; these procedures require all reports to be investi-
gated and require prosecution to follow substantiated
reports. See Army Regulation 190–8 at §§ 1–5, 3–16, 6–9;
DoD Directives 5100.77, 2311.01E. Failure by military
personnel to follow these procedures is a court-martial
offense. 10 U.S.C. §892. Abusive interrogation in Iraq and
Afghanistan has led to courts-martial. Injunctions that
enforce the Detainee Treatment Act prospectively may
be possible under the doctrine of Ex parte Young, 209
U.S. 123 (1908), or the waiver of sovereign immunity in
5 U.S.C. §702. But Congress has not authorized awards
of damages against soldiers and their superiors, and
creating a right of action in common-law fashion would
intrude inappropriately into the military command struc-
ture.
A Bivens-like remedy could cause other problems,
including diverting Cabinet officers’ time from manage-
18 Nos. 10-1687 & 10-2442
ment of public affairs to the defense of their bank ac-
counts. See Doe, 683 F.3d at 396. Then there are
problems with evidence. See Lebron, 670 F.3d at 555–56.
When the state-secrets privilege did not block the claim,
a court would find it challenging to prevent the
disclosure of secret information. Anyone, whether or not
a bona fide victim of military misconduct, could sue and
then use graymail (the threat of disclosing secrets) to
extract an undeserved settlement. See Arar, 585 F.3d
at 578–81. That’s not a problem under the Military
Claims Act and the Foreign Claims Act, which allow
proceedings to be conducted in confidence.
The panel distinguished Arar and Ali v. Rumsfeld on
the ground that those plaintiffs were aliens (Arar, for
example, is a citizen of Canada). 653 F.3d at 620–22.
More recent decisions, including Lebron and Doe, dealt
with (and rejected) Bivens-like claims by U.S. citizens. We
do not think that the plaintiffs’ citizenship is dispositive
one way or the other. See Doe, 683 F.3d at 396. Wallace
and Stanley also were U.S. citizens. The Supreme Court
has never suggested that citizenship matters to a claim
under Bivens. It would be offensive to our allies, and
it should be offensive to our own principles of equal
treatment, to declare that this nation systematically
favors U.S. citizens over Canadians, British, Iraqis, and
our other allies when redressing injuries caused by our
military or intelligence operations. Treaties may pose a
further obstacle to favoring U.S. citizens in the design
of common-law remedies, but we need not decide,
because the choice of remedies for military misconduct
belongs to Congress and the President rather than
the judicial branch.
Nos. 10-1687 & 10-2442 19
IV
Even if we were to create a common-law damages
remedy against military personnel and their civilian
superiors, former Secretary Rumsfeld could not be
held liable. He did not arrest plaintiffs, hold them incom-
municado, refuse to speak with the FBI, subject them
to loud noises, threaten them while they wore hoods, and
so on. The most one could say about him—the most
plaintiffs do say about him—is that (a) in 2002 and 2003
he authorized the use of harsh interrogation techniques
when dealing with enemy combatants, (b) he received
reports that his subordinates sometimes used these tech-
niques, without authorization, on persons such as
plaintiffs despite the Detainee Treatment Act of 2005,
and (c) he did not do enough to bring interrogators
under control.
The Supreme Court held in Iqbal that liability under
a Bivens-like remedy is personal. 556 U.S. at 676–77.
Cabinet secretaries (in Iqbal the Attorney General) and
other supervisory personnel are accountable for what
they do, but they are not vicariously liable for what
their subordinates do. The Court added that knowledge
of a subordinate’s misconduct is not enough for liabil-
ity. The supervisor can be liable only if he wants
the unconstitutional or illegal conduct to occur. Id. at 677.
Yet plaintiffs do not allege that Secretary Rumsfeld
wanted them to be mistreated in Iraq. His orders con-
cerning interrogation techniques concerned combatants
and terrorists, not civilian contractors. What happened
to plaintiffs violated both Rumsfeld’s directives of 2002
20 Nos. 10-1687 & 10-2442
and 2003, and the Detainee Treatment Act of 2005. In
an ideal world, the Secretary of Defense and the Army’s
Chief of Staff would have achieved full compliance
with the Detainee Treatment Act, but a public official’s
inability to ensure that all subordinate federal employ-
ees follow the law has never justified personal liability.
The gist of plaintiffs’ claim against Rumsfeld is that
harsh interrogation tactics were used erroneously, point-
lessly, and excessively in their situation. Plaintiffs
should be compensated, if their allegations are true—
though it is too late for them to invoke the Foreign
Claims Act, which has a two-year period of limitations.
Just because it may be hard to use the statutory mecha-
nisms of compensation, however, it does not follow that
a Cabinet official must pay out of his own pocket. To
see this, ignore for the moment the military and foreign-
location issues and ask whether persons in the United
States who are shot by federal agents or beaten by
prison guards have a good claim against the Director of
the FBI, the Director of the Bureau of Prisons, or the
Attorney General. They do not. Both Iqbal and al-Kidd
say that supervisors are not vicariously liable for their
subordinates’ transgressions.
The Director of the FBI allows field agents to carry guns
and permits them to use deadly force. Yet if an agent
shoots a fleeing suspect in the back, violating the fourth
amendment, see Tennessee v. Garner, 471 U.S. 1 (1985),
the Director is not liable just because the gun, issued
under the Director’s policy, was a cause of the injury.
Similarly for a police chief who establishes a K-9 squad,
Nos. 10-1687 & 10-2442 21
if a dog bites a bystander, or who authorizes search
or arrest based on probable cause, if the police then
search or arrest without probable cause.
Plaintiffs’ theme is that Secretary Rumsfeld, having
authorized harsh interrogation tactics for enemy com-
batants in 2002 and 2003, should have intervened after
receiving reports that non-combatants were being sub-
jected to these tactics and that interrogators had not
properly implemented the Detainee Treatment Act of
2005. Yet the standard form of intervention would have
been criminal prosecution (in the civilian courts or by
court-martial). The Department of Defense did pros-
ecute some soldiers through courts-martial, and the
Department of Justice filed some criminal prosecu-
tions. Plaintiffs think that they should have done more,
but no one can demand that someone else be prosecuted.
See, e.g., Castle Rock v. Gonzales, 545 U.S. 748 (2005);
DeShaney v. Winnebago County Dep’t of Social Services,
489 U.S. 189 (1989); Linda R.S. v. Richard D., 410 U.S. 614(1973). A court cannot say that, if there are too few prose-
cutions (or other enforcement), and thus too much
crime, then the Attorney General or the Secretary of
Defense is personally liable to victims of (preventable)
crime. Yet that’s what plaintiffs’ approach entails.
Iqbal held that knowledge of subordinates’ misconduct
is not enough for liability. The supervisor must want
the forbidden outcome to occur. Deliberate indifference
to a known risk is a form of intent. But Farmer v. Brennan,
511 U.S. 825 (1994), holds that, to show scienter by the
deliberate-indifference route, a plaintiff must demon-
22 Nos. 10-1687 & 10-2442
strate that the public official knew of risks with suf-
ficient specificity to allow an inference that inaction is
designed to produce or allow harm. A warden’s knowl-
edge that violence occurs frequently in prison does not
make the warden personally liable for all injuries. See
McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991). Prisons
are dangerous places, and misconduct by both
prisoners and guards is common. Liability for wardens
would be purely vicarious. Farmer rejected a contention
that wardens (or guards) can be liable just because
they know that violence occurs in prisons and don’t do
more to prevent it on an institution-wide basis. To get
anywhere, Vance and Ertel would need to allege that
Rumsfeld knew of a substantial risk to security contrac-
tors’ employees, and ignored that risk because he
wanted plaintiffs (or similarly situated persons) to be
harmed. The complaint does not contain such an allega-
tion and could not plausibly do so.
The head of any large bureaucracy receives reports of
misconduct. The Secretary of Defense has more than a
million soldiers under his command. The Attorney General
supervises thousands of FBI and DEA agents, thousands
of prison guards, and so on. Many exceed their author-
ity. People able to exert domination over others often
abuse that power; it is a part of human nature that is very
difficult to control. See Philip Zimbardo, The Lucifer
Effect: Understanding How Good People Turn Evil (2007).
The head of an organization knows this, or should know
it. Every police chief knows that some officers shoot
unnecessarily or arrest some suspects without probable
cause, and that others actually go over to the criminal
Nos. 10-1687 & 10-2442 23
side and protect drug rackets. But heads of organiza-
tions have never been held liable on the theory that
they did not do enough to combat subordinates’ miscon-
duct, and the Supreme Court made it clear in Iqbal
that such theories of liability are unavailing.
Plaintiffs do not cite even one instance in which an
Attorney General, a Director of the FBI, a Director of the
Bureau of Prisons, or a municipal chief of police has
been held personally liable for not ensuring that subordi-
nates respect prisoners’ or suspects’ rights. Claims
against the Secretary of Defense, who has more people
under his command, and a longer chain of subordinates
between him and the culpable soldiers, are weaker.
Although Vance and Ertel contend that their injuries
can be traced (remotely) to Secretary Rumsfeld’s policies
of 2002 and 2003, as well as to the misconduct of per-
sonnel in Iraq, they do not contend that the policies
authorized harsh interrogation of security detainees, as
opposed to enemy combatants. It is therefore unneces-
sary to decide when, if ever, a Cabinet officer could be
personally liable for damages caused by the proper ap-
plication of an unlawful policy or regulation. As we
observed in Hammer v. Ashcroft, 570 F.3d 798, 800
(7th Cir. 2009) (en banc), the normal means to handle
defective policies and regulations is a suit under the
Administrative Procedure Act or an equivalent statute,
not an award of damages against the policy’s author.
Accord, Arar, 585 F.3d at 572–73. No court has ever held
the Administrator of the EPA personally liable for pro-
mulgating an invalid regulation, even if that regulation
24 Nos. 10-1687 & 10-2442
imposes billions of dollars in unjustified costs before
being set aside. Cf. Padilla v. Yoo, 678 F.3d 748 (9th
Cir. 2012) (Deputy Assistant Attorney General not per-
sonally liable for preparing an opinion concluding that
Secretary Rumsfeld’s policies were valid). The extent
to which untenable directives, policies, and regulations
may support awards of damages can safely be post-
poned to another day.
V
Because we have held that a common-law right of
action for damages should not be created—and that plain-
tiffs’ complaint would fail to state a claim against
former Secretary Rumsfeld even if such a right of action
were to be created—it is unnecessary to decide
whether Rumsfeld violated plaintiffs’ clearly established
rights. The decisions of the district court are reversed.
W OOD , Circuit Judge, concurring in the judgment.
Civilized societies do not condone torture committed by
governmental agents, no matter what job title the agent
holds. I am confident that every member of this court
Nos. 10-1687 & 10-2442 25
would agree with that proposition. This is therefore
a case of system failure: plaintiffs Donald Vance and
Nathan Ertel assert that representatives of the U.S. gov-
ernment (who happened to be members of the Armed
Forces) subjected them to a variety of measures that
easily qualify as “torture,” whether under the defini-
tions found in the Army Field Manual, international law,
or legislation such as the Torture Victim Protection
Act, 28 U.S.C. § 1350 note, § 3(b). This shameful fact
should not be minimized by using euphemisms such
as the term “harsh interrogation techniques.” The
question before us is whether the man who served as
Secretary of Defense at the time of the plaintiffs’ ordeal,
Donald Rumsfeld, is entitled to qualified immunity
in the suit they have brought against him. Although
I part company in substantial ways from the majority’s
reasoning, I conclude that former Secretary Rumsfeld
himself is entitled to such immunity. The same may well
be true of others who had no personal participation
in these events. Nevertheless, I am in substantial agree-
ment with Judge Hamilton’s dissenting opinion when
it comes to the question of possible liability for those
who actually committed these heinous acts. I therefore
am able only to concur in the court’s judgment.
I
The majority’s account in Part I of the underlying
facts, which it properly presents in the light most
favorable to Vance and Ertel, provides the essential
information for deciding the case. But I find its charac-
26 Nos. 10-1687 & 10-2442
terization of the facts to be incomplete in one im-
portant respect. In my view, “threats of violence and actual
violence, sleep deprivation and alteration, extremes of
temperature, extremes of sound, light manipulation,
threats of indefinite detention, denial of food, denial of
water, denial of needed medical care, yelling, prolonged
solitary confinement, incommunicado detention, falsified
allegations,” as well as “prolonged exposure to cold,
intolerably loud music, ‘hooding,’ ‘walling,’ ” and the
like, must be acknowledged for what they are: torture.
Ante at 3. In other cases, we might need to draw a line
between harsh techniques and actual torture, but that is
not a problem here. It is notable that courts have found
that comparable actions also violate the Eighth Amend-
ment to the U.S. Constitution, for prisoners, or the
Due Process Clauses, in the case of pretrial detainees
and others not facing punishment. See, e.g., Wilson v.
Seiter, 501 U.S. 294, 304 (1991) (holding that conditions
of confinement may establish an Eighth Amendment
violation in combination, even if each would not
suffice alone; this would occur when they have “a
mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food,
warmth, or exercise”); DeSpain v. Uphoff, 264 F.3d 965,
974 (10th Cir. 2001) (concluding that exposure to human
waste for 36 hours would constitute a deprivation
serious enough to violate the Eighth Amendment).
Like the majority, I conclude that we are authorized
in this appeal to consider the question whether the plain-
tiffs have stated a claim against the Secretary. I have
nothing to add to its analysis in Part II of its opinion. In
Nos. 10-1687 & 10-2442 27
particular, I agree with the majority that the panel
correctly ruled that 5 U.S.C. § 701(b)(1)(G) forecloses
plaintiffs’ claims against the United States. I therefore
proceed directly to explain my disagreement with
Part III of the majority’s opinion, and my agreement
with the ultimate conclusion of Part IV (and thus with
the ultimate decision to reverse the judgment of the
district court).
II
In Part III of its opinion, the majority tackles the
broad question “whether to create an extra-statutory
right of action for damages against military personnel
who mistreat detainees.” Ante at 7. Almost every part of
this phrasing of the issue needs closer examination.
Although a literal sense, the cause of action recognized
in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), might be called
“extra-statutory,” that does not mean that the claim
sprang forth from the heads of federal judges. It was
solidly rooted in the most fundamental source of law
we have, the Constitution, and in particular the
Fourth Amendment. The lawsuit fell comfortably within
the boundaries of the federal-question jurisdiction Con-
gress has conferred in 28 U.S.C. § 1331. To expand
Vance’s and Ertel’s case to one that involves any and
all possible claims against military personnel is, as
Judge Hamilton has persuasively shown, neither neces-
sary nor wise. Had Vance and Ertel known from the
start the identity of their tormenters, and had they sued
28 Nos. 10-1687 & 10-2442
only those people, we might have a very different
reaction to the issues presented. I consider it premature
at best to assume that a civilian in the state of Texas
who is dragged by a military officer onto the grounds of
Fort Hood and then tortured would not have a Bivens
cause of action against that officer. Although the
majority stresses that the events in our case occurred in
a “combat zone,” even that is not entirely accurate. In
fact, plaintiffs were removed from the active combat
zone and placed into a military prison—critically, a
place where there was plenty of time to make con-
sidered decisions and enemy forces were nowhere to
be seen. Finally, the phrase “mistreat detainees”
wrongly implies possible liability for a broader range
of injury than the plaintiffs are asserting (or at least
than I would be prepared to recognize). More than
simple mistreatment is at stake here. We are talking
about conduct that the international community
recognizes as torture and that lies at the extreme end
of that which would support a finding of Eighth Amend-
ment liability in a suit brought by a domestic prisoner.
Rather than starting—and ending—with Secretary
Rumsfeld, the majority inexplicably starts at the bottom
of the military hierarchy. It makes the obvious point that
if the lowest private and her immediate commanders
have done nothing wrong, then the lieutenants, captains,
colonels, generals above her, including ultimately
the Secretary of Defense, would similarly have no
liability for that private’s actions. But why start there?
It is a fallacy to think that the converse of this is true:
that just because the Secretary has done nothing wrong,
Nos. 10-1687 & 10-2442 29
then none of the people inferior to him can have erred.
The majority acknowledges just this point in Part IV of
its opinion, ante at 21-22. Cases are legion where a
warden is exonerated even though prison guards are
liable; where a school superintendent has no liability
even though a principal does. See, e.g., Lojuk v. Quandt,
706 F.2d 1456 (7th Cir. 1983) (Veterans Administration
staff psychiatrist may be liable for performing electro-
shock therapy on patient without consent, but super-
visor is not); Lenz v. Wade, 490 F.3d 991 (8th Cir. 2007)
(officers liable for beating inmate, but warden is not);
Baynard v. Malone, 268 F.3d 228 (4th Cir. 2001) (principal
and teacher liable for teacher’s sexual abuse of student,
but superintendent and personnel director are not).
The majority has written with a broad brush with
respect to those lower down in the chain of responsi-
bility, and it does not seem to have drawn any distinc-
tion between the obviously culpable actors and those
whose involvement may have been more indirect. But
perhaps it has: in the end I cannot tell whether the
majority intends to preclude Bivens liability even for the
direct actors. Either way, I find the gist of the majority’s
discussion troubling. The Court has seen many cases
raising questions about abusive police, military, or prison
guard tactics. In the police and prison contexts, the
Court has affirmatively recognized the availability of
Bivens actions. See Bivens; Carlson v. Green, 446 U.S. 14, 19
(1980). And the majority passes over without comment
the Bivens cases that have come before the Court at the
certiorari stage over the years. Although we all know
that a denial of certiorari in itself does not convey any
30 Nos. 10-1687 & 10-2442
message—either approval or disapproval—we know
equally well that the Court does not hesitate to step in
and correct lower courts that have strayed beyond
the boundaries it has established. It has done just this
in case after case in the habeas corpus area. See Overstreet
v. Wilson, 686 F.3d 404, 410-11 (7th Cir. 2012) (Wood, J.,
dissenting) (listing cases reversing grants of habeas
corpus relief and noting the use of summary reversals
in this area). The Court has not sent such clear signals
in the Bivens Eighth Amendment context, even as it has
issued decisions such as Minneci v. Pollard, 132 S. Ct. 617(2012), which declined to make a Bivens remedy avail-
able against employees of a private prison facility. Had
the Court wished to disapprove Bivens actions altogether,
it would not have taken the trouble in Minneci to
review the history of Bivens and decide on which side
of the line the proposed claim fell.
The Court’s acceptance of Bivens in the closely
related area of the Eighth Amendment is consistent
with both Congress’s actions and the position of the
Executive Branch. The majority brushes over the fact
that the Detainee Treatment Act expressly provides a
defense to a civil action brought against a member of
the Armed Forces or any other agent of the U.S. gov-
ernment for engaging in practices prohibited by that
law. What suit? Congress can have been referring only
to a Bivens action. It did much the same thing when
it passed the Westfall Act of 1988, which went out of
its way to state that the substitution of the United States
for a federal employee for purposes of the Federal Tort
Claims Act “does not extend or apply to a civil action
Nos. 10-1687 & 10-2442 31
against an employee of the Government . . . which is
brought for a violation of the Constitution of the United
States.” 28 U.S.C. § 2679(b)(2). Although it is theoretically
possible that Congress was just underscoring its under-
standing that no such suit was possible, that is a
strained reading of the statutory language, and it is a
reading that some scholars have rejected. See James E.
Pfander and David Baltmanis, Rethinking Bivens: Legitimacy
and Constitutional Adjudication, 98 Georgetown L. J. 117,
132-38 (2009) (arguing that Congress “joined the Court
as a partner in recognizing remedies in the nature of a
Bivens action [based on] the Westfall Act’s preservation
of suits for violation of the Constitution and [on] the
considerations that led to its adoption.”).
Moreover, as Judge Hamilton notes, the State Depart-
ment relied on the availability of Bivens actions when
it filed answers to a number of questions posed by the
United Nations committee with oversight responsi-
bility over the Convention Against Torture (CAT). Ques-
tion 5 pointed out that the United States had taken
the position that the CAT was not self-executing, and it
asked for a specification of how the United States
proposed to meet its obligations under the Convention.
The State Department provided a lengthy response,
which in relevant part read as follows:
Finally, U.S. law provides various avenues for
seeking redress, including financial compensation,
in cases of torture and other violations of con-
stitutional and statutory rights relevant to the
Convention. Besides the general rights of appeal,
32 Nos. 10-1687 & 10-2442
these can include any of the following, depending
on the location of the conduct, the actor, and
other circumstances:
* * *
• Bringing a civil action in federal or state court
under the federal civil rights statute, 42 U.S.C.
§ 1983, directly against state or local officials
for money damages or injunctive relief;
• Seeking damages for negligence of federal offi-
cials and for negligence and intentional torts of
federal law enforcement officers under the
Federal Tort Claims Act, 22 U.S.C. § 2671 et seq.,
or of other state and municipal officials under
comparable state statutes;
• Suing federal officials directly for damages
under provisions of the U.S. Constitution for “con-
stitutional torts,” see Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971), and Davis v. Passman,
442 U.S. 228 (1979);
* * *
See United States Written Response to Questions Asked
by the United Nations Committee Against Torture, ¶ 5
(Apr. 28, 2006) (Question 5), available at http://
www.state.gov/g/drl/rls/68554.htm (last visited Oct. 30,
2012). I do not know whether the State Department will
feel compelled to inform the Committee that it was in
error with respect to its Bivens/Davis representation in
light of the majority’s opinion, but there is no ambiguity
in what it said.
Nos. 10-1687 & 10-2442 33
The last point the majority makes in Part III is that, in
their view, the plaintiffs’ citizenship should not be
dispositive either way. If we were writing on a clean
slate, then I would enthusiastically endorse that senti-
ment. The problem is that the background statutes—not
to mention international law—are replete with distinc-
tions based on citizenship. Thus, the Torture Victim
Protection Act, 28 U.S.C. § 1350 note, provides a remedy
to any “individual,” but only against “[a]n individual”
who acts “under actual or apparent authority, or color
of law, of any foreign nation.” Id., § 2(a). The Alien Tort
Statute, 28 U.S.C. § 1350, covers only “any civil action by
an alien for a tort only . . . .” (Emphasis added.) Principles
of legislative jurisdiction in international law recognize
authority based not only on territory, but also on na-
tionality. See Restatement (Third) of Foreign Relations
Law of the United States, § 402, which provides that
subject to certain reasonableness limitations, “a state
has jurisdiction to prescribe law with respect to . . . the
activities, interests, status, or relations of its nationals
outside as well as within its territory.” Id. § 402(2). In
fact, if it were true that there is no Bivens theory
under which a U.S. citizen may sue an official of the
U.S. government (including a military official) who tor-
tures that citizen on foreign land under the control of
the United States (including its military), then U.S.
citizens will be singled out as the only ones without a
remedy under U.S. law. That is because existing law
permits a U.S. citizen to sue a foreign official, and an
alien can sue anyone who has committed a tort in viola-
tion of the law of nations. Only by acknowledging
34 Nos. 10-1687 & 10-2442
the Bivens remedy is it possible to avoid treating U.S.
citizens worse than we treat others. The fear of offense
to our allies that the majority fears dissipates as soon
as we look at the broader picture.
III
I turn finally to Part IV of the majority’s opinion,
in which it concludes that Secretary Rumsfeld cannot be
held liable to Vance and Ertel no matter what one says
about other military personnel and civilians who work
for the armed forces. Here the majority properly reserves
a critical question. Vance and Ertel, it notes, “do not
contend that [Secretary Rumsfeld’s] policies authorized
harsh interrogation of security detainees, as opposed to
enemy combatants.” Ante at 23. Thus, it concludes, “[t]he
extent to which untenable directives, policies, and regula-
tions may support awards of damages can safely be
postponed to another day.” Ante at 24. I wholeheartedly
endorse this statement.
With that said, I conclude, along with the majority,
that the Supreme Court’s decision in Ashcroft v. Iqbal,
556 U.S. 662 (2009), governs our decision here. In Iqbal,
the Court concluded that the Attorney General’s knowl-
edge of and participation in the mistreatment of the
plaintiff was remote enough that he could not be held
vicariously liable for the actions of his subordinates. The
same must be said of Secretary Rumsfeld. This is not
because his leadership of the Department of Defense
had nothing to do with the plaintiffs’ injuries. His
approval of the so-called harsh techniques may have
Nos. 10-1687 & 10-2442 35
egged subordinates on to more extreme measures—
measures that surely violated the standards of the
Detainee Treatment Act of 2005, as well as broader norms
such as those in the CAT. But the link between their
mistreatment and the Secretary’s policies authorizing
extreme tactics for enemy combatants is too attenuated
to support this case.
IV
In closing, I wish to stress that I do not rest any part
of my analysis on the fear that Bivens liability would
cause Cabinet Secretaries to carry out their responsi-
bilities with one eye on their wallets, rather than for the
greater good of their department and the country. The
majority suggests as much in several places, see ante at 12,
17-18, but I find this disrespectful of both the dedication
of those who serve in government and the serious
interests that the plaintiffs are raising. The majority’s
suggestions derive from comments the Court has made
over the years in its qualified immunity decisions, where
it has considered the question whether personal liability
for constitutional torts might “dampen the ardor of all
but the most resolute . . . in the unflinching discharge
of their duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814
(1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir. 1949) (Learned Hand, J.)); see also Butz v. Economou,
438 U.S. 478, 506 (1978) (highlighting “public interest in
encouraging the vigorous exercise of official authority”);
Anderson v. Creighton, 483 U.S. 635, 638 (1987) (noting
that “permitting damages suits against government
36 Nos. 10-1687 & 10-2442
officials can entail substantial social costs, including the
risk that fear of personal monetary liability and
harassing litigation will unduly inhibit officials in the
discharge of their duties.”). But, as the Court has also
acknowledged, that concern represents only one side
of the balance. Otherwise, it would have adopted a
rule of absolute immunity for government actors, in
place of the qualified immunity it chose. Bivens, and its
counterpart for state actors, 42 U.S.C. § 1983, rest on
the countervailing fact that the threat of personal
liability for violations of clearly established rules
gives some teeth to the need to conform to constitu-
tional boundaries. Courts must balance the risk of over-
deterrence against “the public interest in deterrence
of unlawful conduct and in compensation of victims.”
Harlow, 457 U.S. at 819; see also Carlson v. Green, 446
U.S. 14, 21 (1980) (“It is almost axiomatic that the threat
of damages has a deterrent effect, surely particularly
so when the individual official faces personal financial
liability.”) (internal citation omitted). While I recognize
the need to avoid over-deterrence, I see nothing in this
case that requires us to depart from the “balance that
[the Supreme Court’s] cases [traditionally] strike
between the interests in vindication of citizens’ constitu-
tional rights and in public officials’ effective per-
formance of their duties” through qualified immunity.
Anderson, 483 U.S. at 639.
Finally, I add that our decision here spells the practical
end to this case. This is certainly true with respect to
the “John Doe” defendants. The two-year statute of
limitations that we apply in Bivens cases has long since
Nos. 10-1687 & 10-2442 37
run, and we do not permit relation back under Federal
Rule of Civil Procedure 15(c)(1)(C) where the plaintiff
simply did not know whom to sue. See, e.g., Hall v. Norfolk
So. Ry. Co., 469 F.3d 590, 597 (7th Cir. 2006); King v. One
Unknown Federal Correctional Officer, 201 F.3d 910, 914
(7th Cir. 2000); see generally 6A Charles Alan Wright
et al., F EDERAL P RACTICE AND P ROCEDURE § 1498.3 (3d ed.
2010).
I therefore respectfully concur only in the judgment
of the court.
HAMILTON, Circuit Judge, joined by ROVNER and
WILLIAMS, Circuit Judges, dissenting. All members of
this court agree that plaintiffs Vance and Ertel have
alleged that members of the United States military tor-
tured them in violation of the United States Constitu-
tion, and that in reviewing a denial of a motion to
dismiss under Rule 12(b)(6), we must accept those al-
legations as true. Our disagreement is about whether
plaintiffs have a civil remedy available to them under
Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), which allows a victim of
a constitutional violation to sue a responsible federal
officer or employee for damages.
If a victim of torture by the Syrian military can find
his torturer in the United States, U.S. law provides a civil
38 Nos. 10-1687 & 10-2442
remedy against the torturer. Torture Victim Protection
Act of 1991, 28 U.S.C. § 1350 note. If the victim is killed,
the same U.S. law provides his survivors a civil remedy.
The same could be said for victims of torture by any
other government in the world — any other, that is,
except one. Under the majority’s decision, civilian
U.S. citizens who are tortured or worse by our own mil-
itary have no such remedy. That disparity attributes
to our government and to our legal system a degree
of hypocrisy that is breathtaking.
The majority’s result is not required or justified by
Supreme Court precedent, and it fails to carry out
the judiciary’s responsibility under Supreme Court prece-
dents to protect individual rights under the Constitu-
tion, including a right so basic as not to be tortured by
our government. Although the majority opinion is writ-
ten in terms of whether to “create” a cause of action
under Bivens, the majority in effect creates a new absolute
immunity from Bivens liability for all members of the
U.S. military. This new absolute immunity applies not
only to former Secretary Rumsfeld but to all members
of the military, including those who were literally hands-
on in torturing these plaintiffs. It applies to military
mistreatment of civilians not only in Iraq but also in
Illinois, Wisconsin, and Indiana.
The majority’s immunity is even more sweeping than
the government and former Secretary Rumsfeld sought.
To find this immunity, the majority relies on Chappell
v. Wallace, 462 U.S. 296 (1983), and United States v.
Stanley, 483 U.S. 669 (1987), which each held that soldiers
Nos. 10-1687 & 10-2442 39
may not sue under Bivens for injuries “incident to ser-
vice.” The majority decision takes Chappell and Stanley
far beyond their holdings and rationales, granting the
entire U.S. military an exemption from all Bivens liability,
even to civilians. The majority decision is also difficult
to reconcile with Mitchell v. Forsyth, 472 U.S. 511, 520-24
(1985), which held that national security considerations
did not entitle another former cabinet officer to abso-
lute immunity in a Bivens action.
For these reasons, and because this appeal raises such
fundamental issues about the relationship between the
American people and our government, I respectfully
dissent. The panel opinion explained in detail why the
civil immunity sought by defendants is not justified for
a claim for torture or worse in a U.S. military prison in
Iraq. Vance v. Rumsfeld, 653 F.3d 591 (7th Cir. 2011). I will
not repeat here all the details from the panel opinion.
Instead, I address the majority’s new grant of an even
broader immunity and explain the core Supreme Court
precedents, the relevant legislation, and the reasoning
that should allow plaintiffs to pursue their claims for
torture. Part I first reviews the familiar elements of plain-
tiffs’ Bivens claims and then explains the errors in the
majority’s reliance on Chappell and Stanley, as well as
the import of Mitchell and other cases rejecting
absolute immunity in similar Bivens cases. Part I then
turns to the legislation indicating that Congress has
assumed that Bivens applies to cases like this one, as
well as the anomalous consequences of the majority’s
decision. Finally, the opinion addresses briefly in Part II
40 Nos. 10-1687 & 10-2442
the sufficiency of the allegations against Mr. Rumsfeld
personally and in Part III the question of qualified im-
munity.1
I. Civilian Remedies Under Bivens for Military Wrongdoing
Before this en banc decision and the Fourth Circuit’s
recent decision in Lebron v. Rumsfeld, 670 F.3d 540 (4th
Cir. 2012), there should have been no doubt that a
civilian U.S. citizen prisoner tortured by a federal official,
even a military officer, 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 v. Katz, 533 U.S. 194 (2001) (holding that military
police officer was entitled to qualified immunity on civil-
ian’s Bivens claim for excessive force, without sug-
gesting that defendant’s status as military officer alone
would bar Bivens action). The majority rejects this con-
clusion, at least for torture by military personnel, by
asking the wrong question. Plaintiffs are not asking this
court to create a cause of action. It already exists. It is
the defendants who have sought and have now been
given a new, extraordinary, and anomalous exception
to Bivens.
1
I continue to agree with the panel decision directing
dismissal of the plaintiffs’ claims against the United States
for deprivation of their property in No. 10-2442, adopted by
Part II of the majority opinion. See Vance, 653 F.3d at 626-27.
Nos. 10-1687 & 10-2442 41
A. The Familiar Elements of Plaintiffs’ Bivens Claims
All the key elements of plaintiffs’ Bivens claims are
well established under Supreme Court precedent:
(1) prisoners may sue for abuse by federal officials;
(2) civilians may sue military personnel; (3) the Consti-
tution governs the relationship between U.S. citizens
and their government overseas; and (4) claims against
current and former cabinet officials are permitted. Permit-
ting a Bivens claim for torture by military personnel
should not be controversial, at least barring interference
with combat or other highly sensitive activity, which
is not involved here.
First, of course, Bivens is available to prisoners who
have been abused or mistreated by their federal jailors,
and that reasoning certainly extends to the torture
alleged here. In Carlson v. Green, 446 U.S. 14, the Supreme
Court reversed dismissal of a complaint in which a de-
ceased prisoner’s representative sued for violation of
the Eighth Amendment prohibition on cruel and
unusual punishment, in that case through an alleged
deliberate denial of needed medical care. Since Carlson,
federal courts have routinely considered prisoners’ consti-
tutional claims against federal prison officials. E.g.,
Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997) (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 prisoner’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
42 Nos. 10-1687 & 10-2442
live in bitterly cold cell). As Judge Wood points out, the
torture alleged here lies at the extreme end of abuse
that violates the Constitution.
Second, under Bivens civilians may sue military per-
sonnel who violate their constitutional rights. For
example, Saucier v. Katz, 533 U.S. 194, an important but
now overruled case on procedures for deciding
qualified immunity, was a Bivens claim for excessive
force brought by a civilian against a military police
officer. Saucier did not hint that the civilian could not
sue the military police officer for violations of clearly
established constitutional rights. If the majority were
correct, though, the Supreme Court in Saucier should
have simply rejected the Bivens claim altogether, not
explored the nuances of procedures for deciding
qualified immunity.
Circuit and district courts have decided many Bivens
cases brought by civilians against military personnel.
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. If
the majority here were right, though, all such cases
should have been dismissed on the new and simple
theory that military personnel are altogether immune
from Bivens liability. 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
Nos. 10-1687 & 10-2442 43
against military police officer and Secretary of the
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);
Dunbar Corp. v. Lindsey, 905 F.2d 754, 761 (4th Cir. 1990)
(civilian claim against military officers for deprivation
of property without due process of law); see also Newton
v. Lee, 677 F.3d 1017, 1028 (10th Cir. 2012) (civilian
claim against state National Guard officers under § 1983
for due process violation); Meister v. Texas Adjutant Gen-
eral’s Dep’t, 233 F.3d 332, 338 (5th Cir. 2000) (civilian
employee of state National Guard could bring constitu-
tional claims against officers under § 1983); Wright v.
Park, 5 F.3d 586 (1st Cir. 1993) (whether National
Guard technician could bring Bivens claim depended on
whether he was deemed civilian or military personnel);
Fields v. Blake, 349 F. Supp. 2d 910, 921 (E.D. Pa. 2004)
(summary judgment on the merits of civilian’s claim
against military officer for unconstitutional arrest);
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 roles in the creation and administration of an
44 Nos. 10-1687 & 10-2442
army chemical warfare experiment), aff’d, 798 F.2d 565(2d Cir. 1986).2
Third, when civilian U.S. citizens leave the United
States, we take with us the constitutional rights that
protect us from our 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 entirely 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 (emphasis added). That general proposition
remains vital, as reaffirmed in Boumediene v. Bush, holding
2
Among the cited cases, Newton, Meister, and Wright involved
claims under 42 U.S.C. § 1983 against military officials in
state National Guards, but the courts in those cases tracked the
Bivens analysis under the Chappell, Stanley, and Feres cases
discussed below.
Nos. 10-1687 & 10-2442 45
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 Constitution.’ ” 553 U.S. 723, 765 (2008), quoting
Murphy v. Ramsey, 114 U.S. 15, 44 (1885); see also Munaf
v. Geren, 553 U.S. 674, 688 (2008) (holding that civilian
U.S. citizens held in U.S. military custody in Iraq could
petition for a 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).3
Fourth, our laws permit suit against public officials for
actions taken while serving at the highest levels of the
United States government. The majority expresses great
concern over former Secretary Rumsfeld’s personal fi-
nances and how the risk of Bivens liability might affect
other senior government officials as they perform their
3
The majority cites Verdugo-Urquidez to show it is “not settled”
whether the Constitution applies to interrogation outside
the United States, slip op. at 7-8, but the majority ignores the
fact that the party in that case was a non-resident alien, not a
citizen or national of the United States. Reid and Munaf show
it is well established that U.S. citizens do not abandon their
constitutional rights with respect to their own government
when leaving U.S. borders. This dicta from our court should
most definitely not be used to justify a defense of qualified
immunity by federal personnel who violate constitutional
rights in overseas interrogations.
46 Nos. 10-1687 & 10-2442
public duties. The policy balances that are always part of
Bivens analysis are no doubt delicate. The defendant’s
former rank, however, is not a basis for rejecting these
plaintiffs’ claims. The Supreme Court has repeatedly
permitted Bivens actions against other cabinet members.
See, e.g., Mitchell v. Forsyth, 472 U.S. 511 (1985) (former
Attorney General was entitled to qualified immunity, not
absolute immunity, from damages suit arising out of
national security-related actions); Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982) (senior presidential aides are
entitled to qualified immunity, not absolute 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) (senior
executive branch officials, including a former President,
were not absolutely immune from suit for damages
by citizen alleging an unconstitutional wiretap), aff’d in
relevant part, 452 U.S. 713 (1981); Butz v. Economou,
438 U.S. 478 (1978) (Secretary of Agriculture and other
executive branch officials ordinarily may be entitled to
qualified, not absolute, immunity from constitutional
claims).
B. Bivens Cases Involving the Military and National Secu-
rity
Without coming to grips with the principles and prece-
dents supporting plaintiffs’ claims here, the majority errs
by relying on Chappell v. Wallace and United States v.
Stanley to exempt any military personnel from civil
liability for violating the constitutional rights of civilians.
Nos. 10-1687 & 10-2442 47
The Supreme Court itself has never adopted or even
suggested such a sweeping view.
Chappell was the easier case, in which enlisted sailors
sued their direct superior officers under Bivens for race
discrimination. In dismissing those claims, the Court
was guided by the Feres doctrine under the Federal Tort
Claims Act, which bars military personnel from suing
for injuries “incident to service.” See Feres v. United
States, 340 U.S. 135 (1950). Relying on Feres, the Chappell
Court held unanimously that the sailors could not sue
their direct superior officers under Bivens. 462 U.S. at
305. Nothing in Chappell hinted that its reasoning
would apply to civilians whose constitutional rights
were violated by military personnel, and it is well estab-
lished that the Feres doctrine does not apply to claims
by civilians. E.g., United States v. Brown, 348 U.S. 110(1954); M.M.H. v. United States, 966 F.2d 285, 288-89
(7th Cir. 1992) (Feres doctrine did not apply to veteran’s
negligence claim based on Army’s negligence after vet-
eran’s discharge); Rogers v. United States, 902 F.2d 1268,
1273-74 (7th Cir. 1990). The reliance on the Feres doctrine
is a strong signal that Chappell does not reach claims
by civilians and that the majority errs by relying upon
it here.
Stanley also provides no basis for barring Bivens claims
by civilians. While plaintiff Stanley was serving in the
Army, he was exposed to LSD without his consent in
secret experiments, resulting in serious harm to him and
his family. He sued under Bivens for violation of his
constitutional rights. The potential individual de-
fendants would have included not his direct superior
48 Nos. 10-1687 & 10-2442
officers but other military and civilian personnel. A
closely divided Supreme Court held that he could not sue
under Bivens because his injuries arose incident to his
military service, essentially applying the full extent of
the Feres “incident to service” standard to Bivens claims
by military personnel. 483 U.S. at 684 (“We hold that
no Bivens remedy is available for injuries that ‘arise out
of or are in the course of activity incident to service.’ ”),
quoting Feres, 340 U.S. at 146. Stanley teaches that the
plaintiff’s status as military or civilian is decisive in a
Bivens case, not that military defendants cannot be
sued under Bivens.
The majority’s use of Stanley to bar torture claims by
civilians depends on dicta severed from context: “The
‘special factor’ that ‘counsels hesitation’ is not the fact
that Congress has chosen to afford some manner of
relief in the particular case, but the fact that congressio-
nally uninvited intrusion into military affairs by the
judiciary is inappropriate.” Slip op. at 11-12, quoting 483
U.S. at 683. That sentence cannot reasonably be read to
have extended a blanket exemption to all U.S. military
personnel for Bivens liability to civilians. That was not
the issue before the Court, and the Court would not
have casually embraced such a sweeping rule in dicta.
Even if it had, surely someone would have noticed. Until
the majority’s decision here, though, no other circuit
court has read Chappell and Stanley to produce this extra-
ordinary result.4
4
Even the Fourth Circuit’s opinion in Lebron did not go as far
as the majority. Lebron rejected Bivens claims by a U.S. citizen
(continued...)
Nos. 10-1687 & 10-2442 49
We should focus instead on the Supreme Court’s
more relevant decisions in Mitchell v. Forsyth, 472 U.S.
551, and Scheuer v. Rhodes, 416 U.S. 232 (1974). In
Mitchell, the Court held that former Attorney General
Mitchell was not entitled to absolute immunity from
Bivens liability for ordering unconstitutional surveillance
of the plaintiff even though Mr. Mitchell argued he
acted for reasons of national security. 472 U.S. at 520-24.
The Court observed that the national security context
counseled in favor of permitting the suit. Because
national security tasks are carried out in secret, “it is far
more likely that actual abuses will go uncovered than
that fancied abuses will give rise to unfounded and
burdensome litigation,” id. at 522, and the “danger
that high federal officials will disregard constitutional
4
(...continued)
held in military custody after the President himself had desig-
nated the plaintiff an enemy combatant. First, the Lebron court
emphasized the enemy combatant designation. 670 F.3d at
549. Second, the plaintiff had dropped claims against the lower-
level personnel with hands-on responsibility for his treat-
ment. He was pursuing only high-level policy claims that raised
“fundamental questions incident to the conduct of armed
conflict.” Id. at 550. The plaintiffs in this case, by contrast, were
employed by U.S. military contractors and were trying to
help the FBI investigate corruption in the U.S. mission to
Iraq. They assert claims that are perfectly consistent with
U.S. law and stated military policy on interrogation tech-
niques and treatment of prisoners. Plaintiffs contend here
that the defendants violated military policy and U.S. statutes,
as well as the Constitution.
50 Nos. 10-1687 & 10-2442
rights in their zeal to protect the national security is
sufficiently real to counsel against affording such
officials an absolute immunity,” id. at 523.
The Mitchell Court anticipated and firmly rejected the
majority’s arguments for absolute immunity based on
concerns about the chilling effect that the prospect of
personal liability might have for even senior govern-
ment officials. The Court held instead that qualified
immunity would strike the correct balance between
deterring clear violations of constitutional rights and
giving government officials room for discretionary judg-
ment and reasonable mistakes:
“Where an official could be expected to know that his
conduct would violate statutory or constitutional
rights, he should be made to hesitate . . . .” [Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982) (emphasis added).]
This is as true in matters of national security as in
other fields of government action. We do not believe
that the security of the Republic will be threatened
if its Attorney General is given incentives to abide
by clearly established law.
472 U.S. at 524. That reasoning applies directly to this
case and to the Secretary of Defense and other military
personnel in the operation of military prisons.
Scheuer v. Rhodes arose from the fatal shots that
National Guardsmen fired at protesting students at
Kent State University in 1970. The plaintiffs alleged
constitutional violations in a suit under 42 U.S.C. § 1983
against the state’s governor and several officers in the
National Guard. The defendants argued they were
Nos. 10-1687 & 10-2442 51
entitled to absolute immunity when using military force
to restore public order. The Supreme Court unanimously
rejected that defense and held that the defendants
were entitled to only qualified immunity for these claims
by civilians. 416 U.S. at 248-49. Because the defendants
were state officials, the suit was under section 1983
rather than Bivens, but for present purposes the key
point is that the use of military force against civilians
was subject to only qualified immunity, not the absolute
immunity that the majority in this case grants to
military personnel.5
C. Legislation and “Special Factors”
In addition to reading Chappell and Stanley too broadly,
the heart of the majority opinion converts the second
step of Bivens analysis — looking at “special factors” that
5
The majority’s discussion of Chappell and Wallace begins
with what in football would be called a head-fake, suggesting
mistakenly that because plaintiffs Vance and Ertel were
civilians working for a military contractor, they might be
deemed soldiers for purposes of Bivens, Chappell, and Stanley.
Slip op. at 10-11. Under the statutes cited by the majority,
plaintiffs could have been subject to civilian U.S. criminal law if
they had been suspected of committing a crime in Iraq. See
18 U.S.C. §§ 3261, 3267(1)(A)(iii). Section 3261 does not treat
them as soldiers or make them subject to military discipline or
the Uniform Code of Military Justice. Also, of course, no one
relied on section 3261 to detain plaintiffs, let alone to justify
torturing them.
52 Nos. 10-1687 & 10-2442
might counsel hesitation before authorizing the
claim — into a search for evidence that Congress has
expressly authorized Bivens actions against U.S. military
personnel. This method of analysis fails to follow the
Supreme Court’s instructions for considering new ques-
tions about the scope of the Bivens remedy. The first
step is to consider “whether any alternative, existing
process for protecting the interest amounts to a con-
vincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.”
Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The short
answer is no. The defendants do not suggest that there
is any alternative remedial scheme at all comparable to
a potential Bivens remedy in the way that Social Security
procedures and remedies in Schweiker or the federal
civil service procedures and remedies in Bush provided
substitute remedies that foreclosed Bivens remedies.
See Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v.
Lucas, 462 U.S. 367 (1983).
Because there is no sufficient alternative, we should
proceed to the second step of the Bivens test as described
in Bush v. Lucas: “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.” 462 U.S. at
378, quoted in Wilkie, 551 U.S. at 550.
The focus before the panel was on torture claims arising
from military custody in the controlled, non-combat
environment of military prisons in an overseas war
Nos. 10-1687 & 10-2442 53
zone. That context requires careful balancing under the
second step of the Bivens analysis, and the panel opinion
discussed the relevant considerations for rejecting
the defense arguments based on the narrower rationale
they offered. See Vance, 653 F.3d at 617-26. Because the
en banc majority’s approach sweeps so much more
broadly than the defendants’ own arguments, I will not
repeat the panel’s discussion here. The majority reviews
a wide range of statutes and finds in them con-
gressional disfavor for Bivens actions against military
personnel generally, based on an inference that
Congress would prefer to have compensation for
wrongs done by the military come from the Treasury
rather than the judgments against individual personnel.
When we look closely at the statutes, however, it
should become clear that Congress has legislated on the
assumption that U.S. nationals, at least, should have
Bivens remedies against U.S. military personnel in
most situations.
First, let’s look at legislation on the subject of torture.
Torture is a crime under international and U.S. law. U.S.
law provides expressly for civil remedies for victims
of torture by government officials of other nations in
the Torture Victim Protection Act of 1991, Pub. L. 102-
256, codified as note to the Alien Tort Statute, 28 U.S.C.
§ 1350. Section 2(a) of that Act provides a cause of
action for damages against a person who, “under actual
or apparent authority, or color of law, of any foreign
nation,” subjects another person to torture or extra-
judicial killing. Section 2(b) requires U.S. courts to
decline to hear such claims “if the claimant has not ex-
54 Nos. 10-1687 & 10-2442
hausted adequate and available remedies in the place”
where the conduct occurred. Under the Act, if an alien
has been tortured by her own government, and if that
foreign government provides no adequate and available
civil remedies, then a U.S. court can hear the case
against a defendant found here.
Under the majority holding here, however, the same
U.S. courts are closed to U.S. citizens who are victims
of torture by U.S. military personnel. The majority thus
errs by attributing to Congress an intention to deny
U.S. civilians a right that Congress has expressly ex-
tended to the rest of the world. A victim of torture by
the Syrian military, for example, can sue in a U.S. court,
but a U.S. citizen tortured by the U.S. military cannot.
That conclusion should be deeply troubling, to put it
mildly. We should not attribute that improbable view
to Congress without a far more compelling basis
than the majority offers.
To illustrate this anomaly further, suppose another
country has enacted its own law identical to the U.S.
Torture Victim Protection Act. Under the majority’s
reasoning, there are no “adequate and available
remedies in the place” where the conduct occurred (a
U.S. military base). If Mr. Rumsfeld could be found
visiting a country with its own TVPA (so he could be
served with process), plaintiffs Vance and Ertel could sue
him in that country under its TVPA because U.S. law
would provide no remedy. Surely the Congress that
enacted the Torture Victim Protection Act would
rather have such claims against U.S. officials heard in
U.S. courts.
Nos. 10-1687 & 10-2442 55
In fact, the U.S. government has relied on the
availability of Bivens claims in cases of government
torture to help show that the U.S. is complying with
our obligations under the United Nations Convention
Against Torture. A United Nations committee over-
seeing compliance questioned the fact that the United
States had enacted virtually no new legislation to imple-
ment the Convention Against Torture. The State Depart-
ment assured the United Nations that the Bivens remedy
is available to victims of torture by U.S. officials. The
State Department made no exception for military person-
nel, who were the principal focus of the U.N. inquiry.
See United States Written Response to Questions
Asked by the United Nations Committee Against Torture,
¶ 5 (Apr. 28, 2006) (Question 5), available at http://
www.state.gov/g/drl/rls/68554.htm (last accessed Oct. 25,
2012); see also Arar v. Ashcroft, 585 F.3d 559, 619 (2d Cir.
2009) (en banc) (Parker, J., dissenting) (pointing out
this reliance on Bivens).
In addition to the Torture Victim Protection Act, Con-
gress acted in the Detainee Treatment Act of 2005
to grant only limited (good faith) immunity to U.S. per-
sonnel, including military personnel, in lawsuits by
alien detainees. For those alien plaintiffs, Congress
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:
56 Nos. 10-1687 & 10-2442
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 in-
volving detention and interrogation of alien de-
tainees suspected of terrorism] it shall be a
defense that such officer, employee, 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 ex-
tinguish any defense or protection otherwise
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). 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.6
6
The majority cites the Military Commissions Act of 2006, Pub.
L. No. 109-366, § 7(a), codified as 28 U.S.C. § 2241(e), 120 Stat.
2600, 2635-36 (2006), enacted after Vance and Ertel were in
custody. In that Act, Congress prohibited federal courts from
exercising jurisdiction over a civil claim by an alien “properly
detained as an enemy combatant.” That narrow prohibition
(continued...)
Nos. 10-1687 & 10-2442 57
Congress took the trouble to grant limited immunity
in civil actions brought by aliens. Just what potential civil
liability did Congress have in mind? Bivens suits are
the most obvious candidate.
To avoid this reasoning, the majority misses the mark
by suggesting that Congress might have been worried
about suits brought by aliens under the Torture Victim
Protection Act, the law of the nation where the torture
occurred, or the Alien Tort Statute. Slip op. at 16-17.
First, the Torture Victim Protection Act applies only to
torture carried out “under actual or apparent authority,
or color of law, of any foreign nation.” The Act does not
apply at all to torture under color of U.S. law. Second, if
an alien were to sue under the law of the nation where
the torture took place, it is not likely that the other
nation’s law would take into account a defense created
by U.S. law. As for the Alien Tort Statute, such a claim
by an alien against a U.S. official would be a fairly
exotic creature, especially as compared to the familiar
Bivens doctrine.
Young doctors are taught, “When you hear hoofbeats,
think horses, not zebras.” The point is that when trying
to explain an unknown phenomenon, it’s usually
sensible to look first to the familiar and only later to the
exotic. That reasoning applies here. When Congress
6
(...continued)
clearly does not apply to Vance or Ertel, and the very narrow-
ness of it indicates that Congress has not acted to bar actions
like this one, by U.S. citizens who were not enemy combatants.
58 Nos. 10-1687 & 10-2442
created the limited good-faith immunity from civil claims
by aliens in the Detainee Treatment Act, Bivens had been
a major part of U.S. law for 40 years. If Congress had
wanted to grant absolute immunity against claims by
aliens, it would have been easy to draft different lan-
guage. Congress chose instead to grant qualified im-
munity in suits by alien detainees, a policy decision
that was consistent with the Supreme Court’s reasoning
in Mitchell v. Forsyth, 472 U.S. at 523-24.
The majority reasons that the DTA’s grant of qualified
immunity in suits brought by aliens does not imply that
similar remedies would be available to U.S. citizens. By
that route, the majority reaches another odd result.
Under the majority’s reasoning, aliens tortured by the
U.S. military in violation of international law have more
rights than U.S. citizens: Aliens could sue U.S. military
officers for torture (under Bivens, or the Alien Tort
Statute, or both). They would still need to overcome the
DTA’s qualified immunity, but under the majority’s
reading, U.S. citizens cannot bring such a suit at all. That
reading of congressional intent is highly improbable.
Reading the DTA, it is more reasonable to attribute to
Congress the assumption that courts would allow U.S.
citizens to pursue relief under Bivens, subject to the
familiar qualified immunity defense.
Looking to other legislation, the majority criticizes
plaintiffs for not having sought relief under the Military
Claims Act, 10 U.S.C. § 2733, or the Foreign Claims Act,
10 U.S.C. § 2734, though the majority wisely concedes
at least for the sake of argument that these statutes are
Nos. 10-1687 & 10-2442 59
not full substitutes for a Bivens remedy. Slip op. at 15. This
criticism is misguided, as implied by the fact that even
the defendants did not rely on these statutes at all
before the en banc phase of the case. At the most basic
level, those laws simply do not apply to claims for con-
stitutional violations. 32 C.F.R. § 536.42. Nor do they
apply to intentional torts, including assault, battery,
and false imprisonment. 32 C.F.R. § 536.45(h). Plaintiffs
would have been wasting everyone’s time by asserting
claims under either Act.7
D. The Role of Citizenship in Constitutional Remedies
The panel relied on plaintiffs’ status as U.S. citizens to
distinguish Arar v. Ashcroft, 585 F.3d 559, and Ali v.
Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), where plaintiffs
asserting torture claims under Bivens were aliens. The
panel issued its decision before Lebron, 670 F.3d 540,
and Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012), went
further and dismissed similar Bivens claims by U.S. citi-
zens. The majority describes the panel’s distinction be-
7
Sections 536.42 and 536.45(h) apply to claims under both the
MCA and the FCA. Even if those laws could apply to these
plaintiffs’ allegations, relief under the MCA and FCA is unlike
the remedies in Schweiker and Bush because it is left to the
discretion of the Secretary of the Army or Defense and there is
no right to judicial review. Also, plaintiffs Vance and Ertel
probably would not have qualified as “inhabitants” of a foreign
country as required for the limited and discretionary relief
under the FCA. See 10 U.S.C. § 2734(a).
60 Nos. 10-1687 & 10-2442
tween citizens and aliens as “offensive to our allies” and
“offensive to our own principles of equal treatment.” Slip
op. at 18. The prohibitions against torture are matters of
international law as well as U.S. law, and those prohibi-
tions reflect basic and universal human rights. That does
not mean, however, that citizenship is irrelevant in decid-
ing about remedies for torture. If the U.S. government
harms citizens of other nations, they can turn to their
home governments to stand up for their rights. That is
not true for these U.S. citizens alleging torture by their
own government. No other government can stand up
for them.
Other federal courts have faced difficult issues
when alien enemy combatants have sought protection
in civilian U.S. courts. U.S. courts have been reluctant
to extend constitutional protections to such parties or
to examine too closely the actions of our military in
armed conflicts. We do not need to decide those
difficult issues in this case, which was brought not by
members of al Qaeda or designated enemy combatants,
but by U.S. citizens working for military contractors
and trying to help the FBI uncover corrupt dealings
that were endangering U.S. troops. The enemy com-
batant cases are difficult, but we should not let those
difficulties lead us to turn our backs on legitimate con-
stitutional claims of U.S. citizens.
The Supreme Court has relied on the difference be-
tween citizens and aliens in deciding whether to allow
access to civilian U.S. courts in similar contexts. We
should decide this case in favor of allowing these U.S.
citizens to proceed, even if we might be reluctant to
Nos. 10-1687 & 10-2442 61
extend such rights to enemy combatants or other alien
detainees in Iraq or other war zones.
When considering actions our government takes over-
seas, there is room to distinguish between the govern-
ment’s duties to its own citizens and duties it may have
to other persons. As the Supreme Court concluded in
Reid: “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.” 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”), citing Reid and United States v. Toscanino,
500 F.2d 267, 280 (2d Cir. 1974) (“That the Bill of
Rights has extraterritorial application to the conduct of
federal agents directed at United States citizens is
well settled.”).
In fact, the Supreme Court has distinguished between
citizens and aliens in deciding whether remedies were
available in civilian courts for U.S. military detention
overseas. In Johnson v. Eisentrager, 339 U.S. 763, 785
(1950), the Supreme Court held that enemy aliens (Ger-
mans working in Asia to aid Japan after the German
surrender in 1945) were not entitled to seek writs of
habeas corpus in civilian U.S. courts. Eisentrager re-
peatedly made clear that its holding was limited to
aliens during wartime and did not apply to U.S. citizens.
62 Nos. 10-1687 & 10-2442
For example: “our law does not abolish inherent dis-
tinctions recognized throughout the civilized world
between citizens and aliens . . . .” Id. at 769. “With
the citizen we are now little concerned, except to set
his case apart as untouched by this decision and to
take measure of the difference between his status and
that of all categories of aliens. Citizenship as a head of
jurisdiction and a ground of protection was old when
Paul invoked it in his appeal to Caesar. The years have
not destroyed nor diminished the importance of citizen-
ship nor have they sapped the vitality of a citizen’s
claims upon his government for protection.” Id.8
More recently, the Supreme Court relied on this dis-
tinction between aliens and citizens in Munaf v. Green,
553 U.S. 674, 685-88 (2008), holding unanimously that
U.S. citizens in U.S. military custody in Iraq were
entitled to seek habeas corpus relief in U.S. civilian
8
Justice Jackson’s reference in Eisentrager to the Apostle Paul
fits surprisingly well with today’s case. See Acts 25:11 (Paul
invokes Roman citizen’s right to appeal to emperor); Acts 22:25-
29 (Paul invokes his Roman citizenship as defense against
being flogged before he was convicted of any crime); Acts 16:35-
39 (upon being told he was free to leave prison, “Paul replied,
‘They have beaten us in public, uncondemned, men who are
Roman citizens, and have thrown us into prison; and now are
they going to discharge us in secret? Certainly not! Let them
come and take us out themselves.’ The police reported
these words to the magistrates, and they were afraid when
they heard that they were Roman citizens; so they came and
apologized to them.”).
Nos. 10-1687 & 10-2442 63
courts. Munaf distinguished Hirota v. MacArthur,
338 U.S. 197 (1948), which held that aliens in
military custody overseas could not seek habeas relief
in civilian courts. To support its use of the difference
between citizens and aliens, the Munaf Court cited
Eisentrager, Rasul v. Bush, 542 U.S. 466, 486 (2004)
(Kennedy, J., concurring in judgment), and the D.C. Cir-
cuit’s opinions in Munaf itself. 553 U.S. at 688. (In fact,
the government did not even try to argue in Munaf
that U.S. citizens in military custody in Iraq could not
have access to civilian U.S. courts. The government
instead argued unsuccessfully that the petitioners
were in international custody rather than U.S. custody.
Id. at 687-88.)
Distinguishing between citizens and aliens is not
beyond controversy, but in these sensitive contexts in-
volving overseas activity, it is sometimes decisive. In
this case brought by U.S. citizens, we do not need to
decide the different issues posed by plaintiffs who
are alien enemy combatants. But if we follow the
majority’s route of equal treatment, notwithstanding
Munaf, Eisentrager, and Rasul, we should not treat these
U.S. citizens as if they were known terrorists and enemy
combatants who are subject to torture, “extraordinary
rendition,” and indefinite detention. Our law’s treatment
of U.S. citizens should not be brought down to the
floor that we are now tolerating for the most dangerous
foreign terrorists.
64 Nos. 10-1687 & 10-2442
II. Personal Responsibility
As explained above, the majority opinion erroneously
grants absolute immunity to U.S. military personnel
from civilians’ Bivens suits, not only for former
Secretary Rumsfeld and other senior officials but also
for lower-ranking personnel, including even those who
were literally hands-on in torturing the plaintiffs. Under
that reasoning, the majority need not reach the issue
of personal responsibility for any defendant. Also, since
the panel decision, plaintiffs have been able to learn
the identities of the personnel directly responsible for
torturing them. Because plaintiffs now have the infor-
mation they would need to amend their complaint to
add those individuals as defendants, the issue of former
Secretary Rumsfeld’s personal responsibility has less
practical significance now than it did in the district
court or before our court’s panel. Nevertheless, because
the majority also reaches the issue, and because the ques-
tion must be addressed to affirm the district court’s
denial of dismissal, it must be addressed here.
I agree with the majority’s general statements of the
law of personal responsibility under Bivens and 42 U.S.C.
§ 1983. Responsibility is personal, not vicarious. Where
we differ is in the application of those general principles
to plaintiffs’ second amended complaint. The majority
offers the following examples:
The Director of the FBI allows field agents to
carry guns and permits them to use deadly force.
Yet if an agent shoots a fleeing suspect in the
back, violating the fourth amendment, see Tennes-
Nos. 10-1687 & 10-2442 65
see v. Garner, 471 U.S. 1 (1985), the Director is
not liable just because the gun, issued under the
Director’s policy, was a cause of the injury. Simi-
larly for a police chief who establishes a K-9
squad, if a dog bites a bystander, or who autho-
rizes search or arrest based on probable cause, if
the police then search or arrest without probable
cause.
Slip op. at 20-21. The majority is correct about those
examples, but they miss the target of plaintiffs’ actual
allegations. To sharpen the issue, suppose instead that a
local police chief or even the FBI director issued a
policy that authorized the use of deadly force against
any fleeing suspect. The policy itself would be uncon-
stitutional under Tennessee v. Garner. The chief or director
who authorized that unconstitutional use of force
could certainly be held personally responsible under
section 1983 or Bivens to a person shot by an officer fol-
lowing the policy.
The allegations in this complaint are closer to
the latter example than to the majority’s examples. The
plaintiffs may or may not be able to prove their allega-
tions — it now is unlikely they will ever have the chance
to try — but they allege that the use of harsh interroga-
tion techniques amounting to torture was the subject
of Mr. Rumsfeld’s personal attention. Cmplt. ¶¶ 217, 244,
252. They allege that he issued policies or orders con-
trary to governing U.S. law but authorizing the torture
they suffered. ¶ 244. That should be enough to with-
stand a motion to dismiss under Rule 12(b)(6).
66 Nos. 10-1687 & 10-2442
In Ashcroft v. Iqbal itself, the Attorney General and the
Director of the FBI conceded that they would have
been subject to personal liability for actions of their sub-
ordinates if they “had actual knowledge of the assertedly
discriminatory nature of the classification of suspects
being of ‘high interest’ and that they were deliberately
indifferent to that discrimination.” 556 U.S. 662, 690-91
(2009) (Souter, J., dissenting). We and other circuits have
taken that approach as well. See T.E. v. Grindle, 599 F.3d
583, 590 (7th Cir. 2010) (affirming denial of summary
judgment for school principal who failed to investigate or
take action in response to complaints indicating teacher
was sexually abusing students); accord, McCreary v. Parker,
456 Fed. Appx. 790, 793 (11th Cir. 2012) (affirming
denial of qualified immunity where plaintiff alleged
sheriff was deliberately indifferent to known dangers
resulting from overcrowding policy in jail); Wagner v.
Jones, 664 F.3d 259, 275 (8th Cir. 2011) (reversing
summary judgment grant of qualified immunity for
defendant law school dean where evidence indicated
that dean was on notice that faculty’s negative hiring
recommendation was based on plaintiff’s political
beliefs and associations); Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011) (reversing dismissal; superior’s knowledge
of abuse of prisoners combined with inaction allowed
inference of deliberate indifference at the pleading
stage); Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)
(affirming denial of summary judgment of a claim
against county sheriff for adopting policy that would
violate detainees’ rights). Iqbal’s different approach to
pleading an individual’s discriminatory intent does not
Nos. 10-1687 & 10-2442 67
address the issue of personal responsibility for an uncon-
stitutional practice or policy asserted here. See Vance,
653 F.3d at 599 n.5.
The case is before us on an interlocutory appeal from
the denial of a motion to dismiss under Rule 12(b)(6).
The allegations against Mr. Rumsfeld satisfy the plausi-
bility standard of Iqbal, Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), and Erickson v. Pardus, 551 U.S. 89(2007). And even if they did not, the plaintiffs should be
allowed to amend their pleadings, especially in view of
the uncertainty of federal pleading standards after Iqbal
and the fact that the district court and panel found
their present pleadings sufficient to state plausible
claims. 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). Consider
two possible amendments, for example. After years
of delay, the government finally complied with the
district court’s order to identify the individuals who
slammed plaintiffs into walls, deprived them of sleep,
food, water, and adequate clothing, and who subjected
them to extreme cold, though after plaintiffs have been
seeking the needed information in the district court for
nearly six years, the government still has not pro-
vided sufficient information to serve any of those indi-
viduals with process. If this stone-walling finally ended,
plaintiffs could amend their complaint to name at least
some of those individuals. (Whether plaintiffs could
invoke equitable tolling or other doctrines to overcome
a statute of limitations defense based on a concerted
effort to conceal identities of their torturers is a different
68 Nos. 10-1687 & 10-2442
question, especially in light of plaintiffs’ diligence over
nearly six years, and one we should not try to decide
now.) Or suppose for purposes of argument that
plaintiffs could even produce an order personally signed
by Mr. Rumsfeld ordering that these two plaintiffs, in
particular, be treated as they allege they were treated.
Either amendment should be enough to allow plaintiffs
to proceed, but under the majority’s erroneous view of
military immunity from Bivens liability, both amend-
ments would be futile.
III. Qualified Immunity
In Mitchell v. Forsyth, the Supreme Court rejected abso-
lute immunity for a former cabinet member who said
he had acted to protect national security. Qualified im-
munity was sufficient: “ ‘Where an official could be ex-
pected to know that his conduct would violate statu-
tory or constitutional rights, he should be made to
hesitate . . . .’ ” 472 U.S. at 524, quoting Harlow v. Fitzgerald,
457 U.S. at 819 (emphasis added in Mitchell). The panel
concluded that plaintiffs had alleged violations of clearly
established constitutional law. Even the defendants do not
seriously argue that prolonged deprivation of sleep,
food, water, and adequate clothing, exposure to extreme
cold, and hooded “walling” do not violate clearly estab-
lished constitutional law. See Vance, 653 F.3d at 606-11. On
rehearing, defendants have not disagreed with that
analysis. (The argument they have labeled “qualified
immunity” addresses only whether plaintiffs sufficiently
alleged Mr. Rumsfeld’s personal responsibility.) The
Nos. 10-1687 & 10-2442 69
majority also does not question the substantive constitu-
tional law or qualified immunity, so there is no need
for further discussion of those points.
Conclusion
Our courts have a long history of providing damages
remedies for those whose rights are violated by our
government, including our military. In Little v. Barreme,
6 U.S. (2 Cranch) 170, 178-79 (1804), the Supreme Court
held that the commander of a warship was liable to the
owner of a neutral vessel seized pursuant to orders
from the President but in violation of a statute. See also
Iqbal, 556 U.S. at 676, 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
(collecting 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.”).
The majority’s grant of absolute civil immunity to
the U.S. military for violations of civilian citizens’ constitu-
tional rights departs from that long heritage. We leave
citizens legally defenseless to serious abuse or worse
by their own government. I recognize that wrongdoers
in the military are still subject to criminal prosecution
70 Nos. 10-1687 & 10-2442
within the military itself. Relying solely on the military
to police its own treatment of civilians fails to use the gov-
ernment’s checks and balances that preserve Ameri-
cans’ liberty. The legal foundations for the claims before
us are strong and in keeping with the Supreme Court’s
decisions and the best traditions of American liberty
and governance. We should affirm the district court’s
decision to allow plaintiffs to try to prove their claims
for torture.
ROVNER, Circuit Judge, joined by WILLIAMS and HAMILTON,
Circuit Judges, dissenting. I join Judge Hamilton’s
dissent and Judge Wood’s concurrence in all but Part III.
Judge Wood in her concurrence has rightfully reminded
us that our legal analysis should not rest on “fear that
Bivens liability would cause Cabinet Secretaries to carry
out their responsibilities with one eye on their wallets,
rather than for the greater good of their department
and the country.” Ante at 35. I agree with Judge Wood
that such fear is disrespectful of those who serve in gov-
ernment and dismissive of the protections that such
liability affords against serious and intentional violations
of the Constitution. For this same reason, we cannot allow
fear to cause us to stray from the established federal
Nos. 10-1687 & 10-2442 71
pleading standards governing resolution of a motion to
dismiss. This case lends credence to the cliched adage
that hard facts make bad law.
To survive a motion to dismiss, a complaint need not
do more than enunciate a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007). The plausibility
standard is not akin to a “probability requirement.”
Twombly, 550 U.S. at 556. It does not imply that the
district court should decide whether the claim is
true, which version of the facts to believe, or whether
the allegations are persuasive. See Iqbal, 556 U.S. at 679;
Richards v. Mitcheff, No. 11-3227, 2012 WL 3217627, at *1,*2
(7th Cir. Aug. 9, 2012); Morrison v. YTB Int’l, Inc., 649
F.3d 533, 538 (7th Cir. 2011); Swanson v. Citibank, N.A.,
614 F.3d 400, 404 (7th Cir. 2010). Provided the complaint
invokes a recognized legal theory (and for the reasons
expounded upon by Judge Wood and Judge Hamilton,
it does), and contains plausible allegations on the
material issues, it cannot be dismissed under Rule 12.
Richards, 2012 WL 3217627, at *2.
Vance and Ertel have alleged Secretary Rumsfeld’s
direct participation in their torture. Vance contends,
for example, that Secretary Rumsfeld authorized the
interrogation tactics utilized on the plaintiffs and that
some of these techniques required Secretary Rumsfeld’s
personal approval on a case-by-case basis thus inferring
that Secretary Rumsfeld must have authorized the tor-
turous interrogation himself. (R.116, p.44, ¶ 217). These
claims may not be true, and if they are, the plain-
72 Nos. 10-1687 & 10-2442
tiffs may have little chance of providing sufficient
evidence to convince a trier-of-fact, but they are never-
theless plausible and contain more than bare legal con-
clusions. Twombly and Iqbal require no more.
I fear future appeals of dismissals will be muddied
by the court’s attempt to refract the Rule 12(b)(6)
standard to protect a high level governmental official
engaged in a war to protect the citizens and ideals of
this country. But even in the most difficult of cases, we
must adhere to the federal pleading requirements
dictated by Federal Rule of Civil Procedure 12(b)(6) and
the precedent of the United States Supreme Court.
WILLIAMS, Circuit Judge, joined by ROVNER and HAMILTON,
Circuit Judges, dissenting. I join Judge Hamilton’s and
Judge Rovner’s dissenting opinions in full, as well as
Judge Wood’s concurrence in all but Part III. I write
separately to voice my own concerns with the majority
decision.
Applying Bivens to (even arguably) novel factual
scenarios has always required a delicate balance of com-
peting considerations. But in the effort to wall off high
officials’ bank accounts, the majority appears to have
erected a sweeping, unprecedented exemption from
Nos. 10-1687 & 10-2442 73
Bivens for military officers. No case from our highest
court or our sister circuits has approached such a
sweeping conclusion. The vagueness of the majority’s
analysis makes the actual scope of the exemption
unclear. Does the new immunity apply only to the
highest officials in the chain of command? To suits
brought by security contractors in a conflict zone? As
for the doctrine of Bivens itself, the majority’s reserva-
tions about this constitutional bulwark are transparent.
That should not matter. “The Supreme Court alone
is entitled to declare one of its decisions defunct . . .
[e]ven if later decisions wash away the earlier one’s
foundation . . . .” United States v. Booker, 375 F.3d 508, 516
(7th Cir. 2004) (Easterbrook, J., dissenting) (citing State
Oil Co. v. Khan, 522 U.S. 3, 20 (1997) and Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989)). Whatever the status of Bivens, this decision
sweeps too broadly and vaguely, and so I must dissent.
I.
The majority states that “[w]hat plaintiffs want is an
award of damages premised on a view that the military
command structure should be different—that, for
example, the Secretary of Defense must do more (or
do something different) to control misconduct by inter-
rogators and other personnel on the scene in foreign
nations.” Slip op. at 12. The characterization mis-
represents the nature of this suit. The plaintiffs are not
asking the courts to give Rumsfeld a poor performance
evaluation as Secretary of Defense. They are suing him
74 Nos. 10-1687 & 10-2442
for personally and intentionally violating their funda-
mental rights as American citizens. Nor does the
complaint seek to alter the “military command structure.”
No count requests an injunction or declaratory judg-
ment regarding military discipline, the chain of com-
mand, or the policies employed by Rumsfeld or his sub-
ordinates. Cf. Lebron v. Rumsfeld, 670 F.3d 540, 546 (4th
Cir. 2012) (plaintiff principally sought to enjoin his desig-
nation as an enemy combatant, requesting nominal dam-
ages from defendants).
What plaintiffs assert is: (1) they were tortured in
violation of the Constitution and laws of the United States;
(2) Rumsfeld is personally liable because he authorized
their torture and made case-specific determinations
about who would receive “enhanced” treatment after it
was made clear that his detention policies were illegal;
and (3) plaintiffs should receive monetary damages for
the abuse they endured in military custody. Vance and
Ertel do not want to remake military policy through
the judiciary. Frankly, there is little need to do so
because Congress has already directly addressed and
outlawed the detention practices inflicted on these plain-
tiffs. Instead, the allegation before us is willful, directed
non-compliance with the law. The majority may believe
that Rumsfeld’s actions were merely negligent and
that may be true. But that is not the allegation.
Having misinterpreted the complaint, the majority
next misreads the Supreme Court’s opinions in Chappell v.
Wallace, 462 U.S. 296 (1983), and United States v. Stanley,
483 U.S. 669 (1987). It is suggested that in these decisions,
Nos. 10-1687 & 10-2442 75
“[t]he Supreme Court’s principal point was that civilian
courts should not interfere with the military chain of
command . . . [because] military efficiency depends on
a particular command structure, which civilian judges
easily could mess up without appreciating what they
were doing.” Slip op. at 11. Judge Hamilton comprehen-
sively explains why the majority has incorrectly applied
the precedent. I would only add that Stanley explicitly
addressed the scope of the decision, as well as the
potential “levels of generality at which one may apply
‘special factors’ analysis”:
Most narrowly, one might require reason to
believe that in the particular case the disciplinary
structure of the military would be affected—thus
not even excluding all officer-subordinate suits,
but allowing, for example, suits for officer con-
duct so egregious that no responsible officer
would feel exposed to suit in the performance
of his duties. Somewhat more broadly, one might
disallow Bivens actions whenever an officer-sub-
ordinate relationship underlies the suit. More
broadly still, one might disallow them in the
officer-subordinate situation and also beyond
that situation when it affirmatively appears
that military discipline would be affected. (This
seems to be the position urged by Stanley.)
Fourth, as we think appropriate, one might
disallow Bivens actions whenever the injury
arises out of activity “incident to service.” And
finally, one might conceivably disallow them by
servicemen entirely.
76 Nos. 10-1687 & 10-2442
483 U.S. at 681 (emphasis added). Here, Stanley describes
its principal point unambiguously: Members of the
military cannot invoke Bivens for injuries arising out of
“activity incident to service.” Indeed, the Court reserved
the possibility of Bivens suits by servicemen against
military officials in other contexts. Despite Stanley’s
clarity, the majority contends that the Supreme Court
actually meant to bar any suit, even by civilians, that
“interfere[s] with the military chain of command.”
I cannot tell what this purported standard means. But
it goes well beyond what the Supreme Court has
expressly identified as a bridge too far. Can there be
a clearer indication of error?
At heart, in Chappell and Stanley, the Supreme Court
did not want to permit service members to litigate what
are effectively employment disputes against superiors
through the federal courts rather than through the mili-
tary’s internal channels. See Chappell, 462 U.S. at 303-05
(barring race discrimination claim). That rationale does
not apply here.1 Cf. id. at 300 (“Civilian courts must . . .
1
The majority entertains the idea that the plaintiffs, as security
contractors, might be considered equivalent to soldiers
anyway when evaluating the availability of a Bivens action. But
this is a distraction. The individuals in United States v. Brehm,
691 F.3d 547 (4th Cir. 2012) and United States v. Ali, 2012 CAAF
LEXIS 815 (C.A.A.F. July 18, 2012) were effectively employees
of the United States military, subcontracted through American
companies. Notably, this was the same scenario in Doe v.
Rumsfeld, 683 F.3d 390, 392 (D.C. Cir. 2012), where the court
(continued...)
Nos. 10-1687 & 10-2442 77
hesitate long before entertaining a suit which asks the
court to tamper with the established relationship between
enlisted military personnel and their superior officers; that
relationship is at the heart of the necessarily unique struc-
ture of the military establishment.” (emphasis added)).
This court’s decision leaves unexplained how or why
a suit by an American civilian, with no connection to
the chain of command, would interfere with military
discipline in the manner anticipated by Chappell and
Stanley.2
(...continued)
treated a defense contractor employee as equivalent to a
serviceman because he was working for the United States
military. This case is different. When Vance and Ertel were
detained and tortured, they worked for Shield Group Security,
an Iraqi corporation which provided security contracts to
the government of Iraq and private companies. The plaintiffs
do not appear to have had a connection to the United States
government beyond being American citizens. At very least, a
reading of the complaint in the light favorable to plaintiffs
cannot support an employment relationship with the United
States military. The majority further suggests that security
contractors are inherently similar to soldiers. Perhaps this is
true in the sense that a mall guard is like a homicide detective.
But Vance and Ertel’s job descriptions have no bearing on
the availability of Bivens in this case.
2
As Judge Hamilton notes, the majority altogether ignores the
Supreme Court’s contradictory analysis in Saucier v. Katz, 533
U.S. 194 (2001), which treated a civilian’s excessive force suit
against a military officer as permissible (though barred in
(continued...)
78 Nos. 10-1687 & 10-2442
Even if judicial participation might interfere in
some other way, there is a further irony underlying the
majority’s approach. The opinion recognizes that injunc-
tive relief against illegal military conduct is already
available under established doctrine. See slip op. at 17
(“Injunctions that enforce the Detainee Treatment Act
prospectively may be possible under the doctrine of
Ex parte Young, 209 U.S. 123 (1908), or the waiver of sover-
eign immunity in 5 U.S.C. §702.”). This point was
also raised at oral argument where the parties agreed
that the judiciary retains the power to enjoin an uncon-
stitutional practice or unlawful deprivation of rights.
Do such suits “interfere” with the military command
structure or the chain of command? They certainly
would seem to. So, to the extent that the majority fears
judicial scrutiny of military policy, that state of affairs
is already upon us and is sanctioned by this decision itself.
The Supreme Court requires us to exercise judicial
review in various circumstances impacting national
security. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 536
(2004) (“[A] state of war is not a blank check for the
President when it comes to the rights of the Nation’s
citizens. . . . Whatever power the United States Constitu-
tion envisions for the Executive in its exchanges
(...continued)
that case by qualified immunity). Saucier was decided well
after Stanley and Chappell. If the Supreme Court had been
concerned all along with the threat posed by civilian suits to
the chain of command, why didn’t it say so?
Nos. 10-1687 & 10-2442 79
with other nations or with enemy organizations in times
of conflict, it most assuredly envisions a role for all
three branches when individual liberties are at
stake.”); Mitchell v. Forsyth, 472 U.S. 511, 523 (1985)
(“[D]espite our recognition of the importance of [the
Attorney General’s activities in the name of national
security] to the safety of our Nation and its democratic
system of government, we cannot accept the notion that
restraints are completely unnecessary.”); Baker v. Carr,
369 U.S. 186, 211 (1962) (“[I]t is error to suppose
that every case or controversy which touches foreign
relations lies beyond judicial cognizance.”); Home Bldg.
& Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934)
(“[E]ven the war power does not remove constitutional
limitations safeguarding essential liberties.”). Executive
power to protect national security or conduct foreign
affairs does not deprive the judiciary of its authority
to check abuses that violate individual rights. Judicial
review may be deferential to the interests of national
security, Winter v. Nat. Res. Def. Council, 555 U.S. 7,
24, 26 (2008), but it remains necessary. Habeas corpus
review certainly interferes with the military’s assess-
ment of national security priorities. No matter. Our
constitutional system requires the judiciary’s participa-
tion. Boumediene v. Bush, 553 U.S. 723, 765 (2008) (“[T]he
political branches [do not] have the power to switch
the Constitution on or off at will . . . .”).
I do not mean that actions for money damages
must be treated identically to actions for prospective
relief. The remedies are distinct. But this puts into
sharp perspective the majority’s implication that there is
80 Nos. 10-1687 & 10-2442
a categorical ban on “judicial intrusion into military
affairs.” The judiciary is already intertwined in the con-
stitutional review of military determinations. It is incon-
sistent to consider federal courts competent on the one
hand to balance policy concerns associated with injunc-
tive relief (as the majority must concede), while treating
these courts as unqualified to address actual injury to
citizens caused by official abuse. Traditionally, damages
actions have been viewed as less intrusive than in-
junctive relief because they do not require the court to
engage in operational decision-making. Compare Gilligan
v. Morgan, 413 U.S. 1, 11 (1973) (rejecting a suit seeking
judicial supervision of the operation and training of
the Ohio National Guard in the wake of the Kent State
shootings) with id. at 5 (suggesting that a damages
action against the National Guard could be justiciable)
and Scheuer v. Rhodes, 416 U.S. 232, 247-49 (1974) (permit-
ting such a suit). True, courts make mistakes, but this
has little to do with the propriety of Bivens. Every gov-
ernment institution errs, including the military. The
point of judicial participation is not infallibility but inde-
pendence and neutrality, something executive entities
do not have when evaluating their own officers’ conduct.
For these reasons, I cannot accept the majority’s
rationale for rejecting Bivens in this context. The majority
pins much of its reasoning on the Lebron decision but
does not mention any of the relevant details. The Lebron
suit was brought on behalf of Jose Padilla, an
individual designated as an enemy combatant by the
President and later convicted of criminal terrorism
charges. Padilla’s proposed Bivens action sought a
Nos. 10-1687 & 10-2442 81
judicial declaration that his designation as an enemy
combatant and resulting detention were unconstitutional.
The Lebron court rejected the claim on separation-of-
powers grounds reasoning that in identifying terrorists,
the President acted with express congressional ap-
proval under the Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (2001).
Whatever the merits of Lebron, it is disingenuous
to suggest that the same analysis applies in this case.
The majority endeavors to stretch a blanket of immunity
over the entire “military chain of command” in an effort
to cover the very different facts presented here. Vance
and Ertel do not challenge their status and detention
as enemy combatants; they could not do so because
they never received such a designation. And far from
authorizing their treatment, Congress and the President
acted twice to outlaw it through the National Defense
Authorization Act and the Detainee Treatment Act
(“DTA”). 10 U.S.C. §801 note. The complaint charges
the defendant with intentionally acting in derogation
of the newly enacted laws to retain and administer
illegal interrogation practices, approving them on an
individualized basis. These allegations may not be
true. But if they are true, I cannot agree that the separa-
tion of powers bars a citizen’s recovery from a rogue
officer affirmatively acting to subvert the law. That is a
quintessential scenario where Bivens should function
to enforce individual rights.
Every member of this court recognizes that the job of
the military is challenging, dangerous, and critical to
82 Nos. 10-1687 & 10-2442
our national security. For these reasons and more, mem-
bers of the armed forces enjoy unparalleled respect in
our society. But this respect does not put the military’s
highest officers beyond the reach of the Constitution
or adjudication by Article III courts. We would abdicate
our duty if we permit Bivens to become a mirage. If it is
an illusion, it is a dangerous one because it has tricked
not only plaintiffs, but the other branches of our gov-
ernment into relying upon it. Congress created in the
DTA a limited, good-faith defense against Bivens meant
to be available in situations precisely like this one. And
the State Department pointed to Bivens suits as evidence
that we take seriously our commitments to preventing
torture. The majority suggests that the other branches
of government were only leaping at shadows. But we
have an independent obligation to individual citizens
and to the Constitution to apply the precedent even
in difficult cases. Otherwise we risk creating a doctrine
of constitutional triviality where private actions are
permitted only if they cannot possibly offend anyone
anywhere. That approach undermines our essential
constitutional protections in the circumstances when
they are often most necessary. It is no basis for a rule
of law.
II.
Whether the plaintiffs have adequately pled Rumsfeld’s
personal liability for violations of clearly established
law is also a delicate question. Arguably qualified im-
munity should shoulder more of the burden of the major-
Nos. 10-1687 & 10-2442 83
ity’s demonstrable hesitation to hold high government
officials accountable for constitutional violations. Cf.
Padilla v. Yoo, 678 F.3d 748, 768 (9th Cir. 2012) (disposing
of suit on qualified immunity grounds rather than af-
fording total immunity to Bivens). Nevertheless, I agree
with my dissenting colleagues that the plaintiffs’
complaint should survive. This complaint is unusually
detailed and alleges Rumsfeld’s personal participation
in interrogation determinations, something the majority
ignores. It is plausible (if not necessarily probable) to infer
from Rumsfeld’s direct involvement in developing in-
terrogation practices at Camp Cropper and his case-
specific approval of techniques used on detainees that
he personally authorized the plaintiffs’ abuse or
remained intentionally indifferent to it. These allegations
go well beyond those deemed insufficient in Ashcroft
v. Iqbal, 556 U.S. 662 (2009), and present more than a
mere possibility of liability. Therefore, I would permit
the suit to continue to at least limited discovery. See,
e.g., Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998).
I respectfully dissent.
11-7-12