Amir Meshal v. Chris Higgenbotham ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 1, 2015 Decided October 23, 2015
No. 14-5194
AMIR MESHAL,
APPELLANT
v.
CHRIS HIGGENBOTHAM, FBI SUPERVISING SPECIAL AGENT, IN
HIS INDIVIDUAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02178)
Jonathan Hafetz argued the cause for appellant. With
him on the briefs were Arthur B. Spitzer and Hina Shamsi.
William J. Aceves was on the brief for amici curiae U.N.
Special Rapporteurs on Torture in support of appellant.
Jessica Ring Amunson was on the brief for amici curiae
Law Professors James E. Pfander, Carlos M. Vázquez, and
Stephen I. Vladeck in support of appellant.
2
James J. Benjamin, Jr. and Christopher M. Egleson were
on the brief for amicus curiae Donald Borelli in support of
appellant.
Agnieszka M. Fryszman was on the brief as amicus
curiae The Constitution Project in support of appellant.
Henry C. Whitaker, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Ronald C. Machen Jr., U.S. Attorney at the time the brief was
filed, and Matthew M. Collette and Mary H. Mason,
Attorneys.
Before: BROWN, KAVANAUGH and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge KAVANAUGH.
Dissenting opinion filed by Circuit Judge PILLARD.
BROWN, Circuit Judge: Amir Meshal filed this Bivens
action, see Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), against several
agents of the Federal Bureau of Investigation (“FBI”),
claiming they violated his Fourth and Fifth Amendment rights
when they detained, interrogated, and tortured him over the
course of four months in three African countries. Meshal
insists a Bivens remedy in these circumstances is necessary
and unexceptional. The government condemns the pro-Bivens
rationale applied extraterritorially as unprecedented. The
district court found the allegations of federal agents abusing
an American citizen abroad quite troubling. So do we. Still,
3
the district court dismissed Meshal’s suit, finding a Bivens
action unavailable.
Faced with a shifting paradigm in which counterterrorism
and criminal investigation merge, we rely on a familiar
framework in an unconventional context. No court has
countenanced a Bivens action in a case involving the national
security and foreign policy context. And, while Bivens
remedies for ill-executed criminal investigations are common,
extraterritorial application is virtually unknown. We hold that
in this particular new setting—where the agents’ actions took
place during a terrorism investigation and those actions
occurred overseas—special factors counsel hesitation in
recognizing a Bivens action for money damages.
I
Meshal, a United States citizen and New Jersey resident,
traveled to Mogadishu, Somalia in 2006 to “broaden his
understanding of Islam after the country’s volatile political
situation had largely stabilized.” 1 J.A. 15. While he was
visiting the country, violence erupted, forcing Meshal to flee
to Kenya along with other civilians.
In January 2007, Meshal was apprehended by Kenyan
authorities, in a joint U.S.-Kenyan-Ethiopian operation, and
transported to Nairobi. A member of Kenya’s Criminal
Investigation Department (“CID”) told Meshal that authorities
needed to determine “what the United States wanted to do
1
When reviewing whether the district court properly granted a
motion to dismiss, we assume the truth of all well-pleaded factual
allegations in the complaint. Doe v. Rumsfeld, 683 F.3d 390, 391
(D.C. Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009)).
4
with him” before sending him “back to the United States.”
J.A. 31.
Sometime between January 27 and February 3, 2007,
U.S. officials learned about Meshal’s detention in Kenya and
thus began a lengthy, multi-jurisdictional interrogation in
which Defendants Chris Higgenbotham, Steve Hersem, John
Doe 1, and John Doe 2 (collectively “Defendants”) had
significant roles. Meshal claims Defendants followed the
procedures detailing how the FBI should “conduct
investigations abroad, participate with foreign officials in
investigations abroad, or otherwise conduct activities outside
the United States with the written [acquiescence or approval]
of the Director of Central Intelligence and the Attorney
General or their designees.” J.A. 32 (citing THE ATTORNEY
GENERAL’S GUIDELINES FOR FBI NATIONAL SECURITY
INVESTIGATIONS AND FOREIGN INTELLIGENCE COLLECTION 17
(Oct. 31, 2003) (declassified Aug. 2, 2007)).
For the next four months, Meshal claims Defendants
detained him in secret, denied him access to counsel and the
courts, and threatened him with torture and death. He says he
was threatened with extradition to Israel where the Israelis
would “make [Meshal] disappear,” J.A. 41; and with rendition
to Egypt, where they “had ways of making him talk,” J.A. 42.
Defendant Hersem also intimated that Meshal would suffer
the same fate as the protagonist in the movie Midnight
Express 2—a movie where a foreign prisoner is brutally beaten
and confined in horrid conditions in a Turkish prison for
refusing to cooperate. Hersem said, “You made it so that even
your grandkids are going to be affected by what you did,” but
promised that if Meshal confessed his connection to al
Qaeda, he would be returned to the United States to face
2
See MIDNIGHT EXPRESS (Columbia Pictures 1978).
5
civilian courts instead of being returned to Somalia. J.A. 41.
Meshal believes the agents hoped to extract a confession to
terrorist activity as a prelude to prosecution. The alleged
threats had an effect; Meshal’s cellmate observed that Meshal
was “extremely distressed and crying” after returning to his
cell from one of the interrogations. J.A. 41.
Meshal also alleges he was transferred between three
African countries without legal process: from Kenya to
Somalia, where he was detained in handcuffs in an
underground room, with no windows or toilets, a place
referred to as “the cave,” J.A. 48–49; then flown blindfolded
to Addis Ababa, Ethiopia, where he was detained in a military
barracks. Over the next three months, Ethiopian officials
regularly transported Meshal and other prisoners to a villa for
interrogation where Does 1 and 2 repeatedly refused Meshal’s
requests to speak to a lawyer. When he was not being
interrogated, Meshal was handcuffed in his prison cell, and
spent several days in solitary confinement.
Eventually, the FBI released Meshal, and he returned to
the United States. During the four months he was detained
abroad, he lost approximately eighty pounds. He was never
charged with a crime.
Meshal filed a Bivens action specifically alleging
detention without a hearing for four months violated his
Fourth Amendment rights and that the threats of torture and
disappearance violated his due process rights. In deciding
Defendants’ motion to dismiss, the district court found
Meshal had properly stated Fourth and Fifth Amendment
claims. 3 Yet the court dismissed the case, concluding a Bivens
3
Meshal pled additional Fifth Amendment claims that the district
court did not address. Those claims related to his “prolonged
6
action was unavailable to Meshal because both this court, and
several other circuits, had “expressly rejected a Bivens
remedy for [U.S.] citizens who allege they have been
mistreated, and even tortured, by [American officials] in the
name of intelligence gathering, national security, or military
affairs.” Meshal v. Higgenbotham, 47 F. Supp. 3d 115, 116–
17 (D.D.C. 2014).
II
A
Federal tort causes of action are ordinarily created by
Congress, not by the courts. Congress has created numerous
tort causes of action allowing plaintiffs to recover for tortious
acts by federal officers. See, e.g., Federal Tort Claims Act, 28
U.S.C. §§ 2671 et seq.; Torture Victim Protection Act, 28
U.S.C. § 1350 Note. But Congress has not created a tort cause
of action that applies to this case. The Federal Tort Claims
Act, for example, explicitly exempts claims against federal
officers for acts occurring in a foreign country. See 28 U.S.C.
§ 2680(k). The Torture Victim Protection Act provides a
cause of action only against foreign officials, not U.S.
officials. See 28 U.S.C. § 1350 Note, § 2(a). Having no
statutory cause of action, Meshal has sued directly under the
Constitution, relying on the Supreme Court’s decision in
Bivens.
extrajudicial detention and his forcible rendition to two dangerous
situations.” Br. of Appellant at 20 n.4, Meshal v. Higgenbotham,
No. 14-5194 (D.C. Cir. Dec. 15, 2014). We need not discuss these
additional claims, which were raised only in a footnote in Meshal’s
initial brief. See Hutchins v. District of Columbia, 188 F.3d 531,
539 n.3 (D.C. Cir. 1999).
7
In 1971, the Supreme Court recognized an implied
private action, directly under the Constitution, for damages
against federal officials alleged to have violated a citizen’s
Fourth Amendment rights. Bivens, 403 U.S. 388. The case
began when Webster Bivens sued Bureau of Narcotics Agents
in federal court, alleging facts the Court “fairly read” as
claiming Bivens’ “arrest was made without probable cause.”
Id. at 389. Because the alleged constitutional violation had
already occurred, Justice Harlan noted that, “[f]or people in
Bivens’ shoes, it [was] damages or nothing.” Id. at 410
(Harlan, J., concurring in judgment).
The Court recognized a federal damages remedy apart
from the availability of state common law remedies. See id. at
394–95. Noting Congress had not specifically provided a
remedy for violations of constitutional rights and that “the
Fourth Amendment does not in so many words provide for its
enforcement by an award of money damages for the
consequences of its violation,” id. at 396–97, the Court
nevertheless relied on the rule that “where legal rights have
been invaded . . . federal courts may use any available remedy
to make good the wrong done.” Id. at 396. Importantly,
although no federal statute provided Bivens a right to sue for
the invasion of his Fourth Amendment rights, the Court
recognized a cause of action because it found “no special
factors [counselled] hesitation in the absence of affirmative
action by Congress.” Id.
Since Bivens, the Supreme Court has proceeded
cautiously in implying additional federal causes of action for
money damages. In the decade immediately following the
ruling, the Court extended Bivens’ reach to claims involving
employment discrimination in violation of the Due Process
Clause, Davis v. Passman, 442 U.S. 228, 243–45 (1979), and
cruel and unusual punishment by prison officials in violation
8
of the Eighth Amendment, Carlson v. Green, 446 U.S. 14,
19–23 (1980). But over time, the Court gradually retreated
from Bivens, rejecting any “automatic entitlement” to the
remedy, and noting that “any freestanding damages remedy
for a claimed constitutional violation has to represent a
judgment about the best way to implement a constitutional
guarantee . . . .” Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
The best way to implement a particular constitutional
guarantee, the Court decided, was to let Congress determine
whether it warranted a cause of action. See id. at 562. Finding
either that Congress had provided an alternative remedy or
that special factors counseled hesitation, the Court declined to
recognize a Bivens action for: 1) a federal employee’s claim
that his federal employer demoted him in violation of the First
Amendment, Bush v. Lucas, 462 U.S. 367, 368–69 (1983); 2)
a claim by military personnel that military superiors violated
various constitutional provisions, Chappell v. Wallace, 462
U.S. 296, 298–300 (1983); 3) a claim by Social Security
disability benefits recipients that benefits had been denied in
violation of the Fifth Amendment, Schweiker v. Chilicky, 487
U.S. 412, 414 (1988); 4) a former bank employee’s suit
against a federal agency, claiming he lost his job due to
agency action violating due process, FDIC v. Meyer, 510 U.S.
471, 484–86 (1994); 5) a prisoner’s Eighth Amendment-based
suit against a private corporation managing a federal prison,
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73–74 (2001); 6)
landowners’ claims that government officials
unconstitutionally interfered with their property rights, Wilkie,
551 U.S. 554–61; and 7) a prisoner’s Eighth Amendment
claim against private prison employees, Minneci v. Pollard,
132 S. Ct. 617, 623–26 (2012).
We, too, have tread carefully before recognizing Bivens
causes of action when plaintiffs have invoked them in new
9
contexts, especially in cases within the national security
arena. In Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008), we
declined to recognize a Bivens action for a Central
Intelligence Agency operative and her husband to recover
damages for injuries they allegedly suffered when her covert
status was disclosed. We held that the Privacy Act’s
comprehensive remedial scheme was a “special factor”
counseling hesitation before creating a Bivens remedy. Id. at
706–07. We also noted that, “if we were to create a Bivens
remedy, the litigation . . . would inevitably require judicial
intrusion into matters of national security and sensitive
intelligence information.” Id. at 710. In Ali v. Rumsfeld, 649
F.3d 762 (D.C. Cir. 2011), we were asked to recognize a
Bivens action by noncitizen plaintiffs suing the former
Secretary of Defense and three high-ranking Army officers
for formulating and implementing policies that allegedly
caused the torture and degrading treatment of plaintiffs. We
disavowed the availability of Bivens because special factors,
such as the “danger of obstructing U.S. national security
policy,” counseled hesitation. Id. at 773 (quoting Rasul v.
Myers, 563 F.3d 527, 532 n.5 (D.C. Cir. 2009)). In Doe, we
refused to create a Bivens action for a contractor, a U.S.
citizen, who claimed the U.S. military wrongfully detained
him in Iraq. We noted that recognizing a Bivens cause of
action “is not something to be undertaken lightly,” and we
again found national security was a special factor counseling
serious hesitation. 683 F.3d at 394.
Other circuits have also refrained from recognizing
Bivens causes of action in the national security context. The
Second Circuit, sitting en banc, concluded a dual citizen of
Canada and Syria could not bring a Bivens action for a claim
that the United States transferred him to Syria in order to
subject him to torture and interrogation. See Arar v. Ashcroft,
585 F.3d 559 (2d Cir. 2009). The Fourth Circuit refused to
10
recognize a Bivens action for plaintiff Jose Padilla, who sued
former high-level policy-makers in the Department of
Defense based on his status as an enemy combatant. See
Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012). And the
Seventh Circuit, sitting en banc, rejected the availability of
Bivens for American citizen plaintiffs claiming they had been
subjected to interrogation and mistreatment while in military
detention. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.
2012). In each of these decisions, courts recognized that cases
involving national security and the military counseled
hesitation in recognizing a Bivens cause of action where
Congress has not done so. See id. at 199–200; Lebron, 670
F.3d at 548–49; Arar, 585 F.3d at 575–76.
B
Meshal asks us to paddle upstream against this deep
current of authority. He contends his suit involves only core
Bivens claims—Fourth and Fifth Amendment claims made
against particular law enforcement officers for actions taken
during a criminal investigation—so there is nothing new here.
Conversely, the government contends this case implicates a
new Bivens context for two reasons: (i) Meshal’s claims
involve alleged conduct undertaken as part of the FBI’s
counterterrorism responsibilities involving a national security
investigation of terrorist activity: and (ii) the alleged acts of
the federal officers occurred abroad.
We begin with some caveats. As we understand it, the
Supreme Court has taken a case-by-case approach in
determining whether to recognize a Bivens cause of action.
See Wilkie, 551 U.S. at 550, 554; Anya Bernstein,
Congressional Will and the Role of the Executive in Bivens
Actions: What Is Special About Special Factors?, 45 IND. L.
REV. 719, 720 (2012). We therefore need not decide,
11
categorically, whether a Bivens action can lie against federal
law enforcement officials conducting non-terrorism criminal
investigations against American citizens abroad. Nor do we
decide whether a Bivens action is available for plaintiffs
claiming wrongdoing committed by federal law enforcement
officers during a terrorism investigation occurring within the
United States. Our holding is context specific. 4
Because of the procedural posture, we must reject the
government’s characterization that this case involved only a
national security investigation, as distinct from an
investigation that was both a national security and criminal
investigation. In reviewing the grant of a motion to dismiss,
we assume the truth of all well-pleaded factual allegations and
construe reasonable inferences from those allegations in the
plaintiff’s favor. See Doe, 683 F.3d at 391. The complaint
alleges that Defendants Hersem and Higgenbotham were
members of the FBI “jump team” or “fly team,” the terms for
those agents sent to Africa in 2007 “to conduct law
enforcement investigations.” J.A. 33. On the first day of
Meshal’s interrogation in Kenya and Ethiopia, Doe 1
presented Meshal with a document and asked him to sign it,
“telling [Meshal] the document notified him that he could
refuse to answer any questions without a lawyer present.” J.A.
37, 60. The presence of Miranda-like waiver forms usually
4
Nor do we question whether constitutional protections generally
apply to American citizens outside the United States when dealing
with their government. See Reid v. Covert, 354 U.S. 1, 6–10 (1957)
(applying Fifth and Sixth Amendment rights to U.S. citizens facing
military trial for murder overseas); Al Bahlul v. United States, 767
F.3d 1, 65 n.3 (D.C. Cir. 2014) (Kavanaugh, J., concurring in part)
(“As a general matter, the U.S. Constitution applies to U.S. citizens
worldwide[.]”).
12
signifies a criminal prosecution. 5 Meshal’s experience was
not unique. Kenyan authorities also arrested Daniel
Maldonado, and FBI agents interrogated him in Kenya around
the same time they held and interrogated Meshal. After
Maldonado confessed, he pled guilty in federal district court
to involvement in terrorist activities. J.A. 35–36; see Partial
Tr. Prelim./Detention Hr’g, United States v. Maldonado, No.
4:07-mj-00125-1, 34–35 (S.D. Tex. 2007) (Dkt. No. 17).
Drawing the inferences from the complaint in Meshal’s favor,
the agents’ actions suggest a criminal investigation for
terrorism, not purely intelligence-gathering. Even so, a
criminal investigation into potential terrorism implicates some
of the same special factor concerns as national security policy.
C
This case requires us to examine whether allowing a
Bivens action to proceed would extend the remedy to a new
context. See Iqbal, 556 U.S. at 675; Malesko, 534 U.S. at 68;
Wilkie, 551 U.S. at 575 (Ginsburg, J., concurring in part and
dissenting in part); see also Arar, 585 F.3d at 572 (“‘Context’
is not defined in the case law.”). The Supreme Court has
never defined what constitutes a new “context” for Bivens
purposes, but in reviewing the case law, some patterns
emerge. First, the Court considers a Bivens claim “new” when
a plaintiff invokes a constitutional amendment outside the
5
See FeiFei Jiang, Dancing the Two-Step Abroad: Finding A Place
for Clean Team Evidence in Article III Courts, 47 COLUM. J.L. &
SOC. PROBS. 453, 453 (2014) (“Federal agents often employ a two-
step interview process for suspects in extraterritorial terrorism
investigations. Agents conduct the first interview without Miranda
warnings for the purpose of intelligence-gathering. Separate ‘clean
team’ agents then give the suspect Miranda warnings prior to the
second stage of the interview, which they conduct for law
enforcement purposes.”).
13
three amendments previously approved. Compare Bivens, 403
U.S. 388 (recognizing remedy for Fourth Amendment
claims), with Bush, 462 U.S. 367 (refusing to recognize a
Bivens remedy for a First Amendment violation). But even if
the plaintiff alleges the same type of constitutional violation,
it does not automatically invoke the same context for Bivens
purposes. Compare Passman, 442 U.S. 228 (recognizing a
Bivens remedy where plaintiff alleges employment
discrimination under the Fifth Amendment’s Due Process
Clause), with Schweiker, 487 U.S. 412 (rejecting the
availability of a Bivens remedy for social security claimants
alleging a violation of due process under the Fifth
Amendment). In addition, the Court considers a Bivens claim
“new” when it involves a new category of defendants. See
Minneci, 132 S. Ct. 617 (private prison employee); Malesko,
534 U.S. 61 (private prison corporation); Meyer, 510 U.S. 471
(federal agency); Chappell, 462 U.S. 296 (military
defendants).
Meshal is correct that the claims here do not involve a
different constitutional amendment or a new category of
defendants. See Engel v. Buchan, 710 F.3d 698, 708 (7th Cir.
2013) (noting the case involved an FBI agent “accused of
violating the constitutional rights of a person targeted for a
criminal investigation and prosecution,” and noting those
facts “parallel[ ] Bivens itself”). And Meshal correctly notes
that Bivens remedies typically are available when based on
actions taken by law enforcement officers during criminal
proceedings. See Sutton v. United States, 819 F.2d 1289, 1293
(5th Cir. 1987) (acknowledging “the classic Bivens-style tort,
in which a federal law enforcement officer uses excessive
force, contrary to the Constitution or agency guidelines”). Yet
viewed “[a]t a sufficiently high level of generality, any claim
can be analogized to some other claim for which a Bivens
action is afforded, just as at a sufficiently high level of
14
particularity, every case has points of distinction.” Arar, 585
F.3d at 572. Like the Second Circuit in Arar, we construe
“context” as it is commonly used in law: “to reflect a
potentially recurring scenario that has similar legal and factual
components.” Id.
The context of this case is a potential damages remedy
for alleged actions occurring in a terrorism investigation
conducted overseas by federal law enforcement officers. Not
only does Meshal’s claim involve new circumstances—a
criminal terrorism investigation conducted abroad—it also
involves different legal components—the extraterritorial
application of constitutional protections. Such a different
context requires us to think anew. To our knowledge, no court
has previously extended Bivens to cases involving either the
extraterritorial application of constitutional protections 6 or in
6
We considered a Bivens claim involving actions occurring
overseas in In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007).
There, a Drug Enforcement Agency officer stationed in Burma
alleged a State Department official violated his Fourth Amendment
rights when the official sent a classified cable transcribing a
telephone call plaintiff had made to a subordinate. Id. at 141. In
response, the government invoked the state secrets doctrine, which,
when the district court applied the doctrine, essentially barred
plaintiff’s Bivens claim. On appeal, we noted the government had
not challenged the application of the Fourth Amendment to actions
occurring overseas, and we assumed, without analysis, Bivens
applied. Id. at 143 (“The district court ruled that it was settled,
indisputable law that the Fourth Amendment protects American
citizens abroad, . . . and the United States does not challenge that
ruling on appeal.”). Consequently, In re Sealed Case did not
establish that Bivens is available for all claims involving incidents
occurring abroad.
15
the national security domain, 7 let alone a case implicating
both—another signal that this context is a novel one.
Meshal downplays the extraterritorial aspect of this case.
But the extraterritorial aspect of the case is critical. After all,
the presumption against extraterritoriality is a settled principle
that the Supreme Court applies even in considering statutory
remedies. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 133
S. Ct. 1659, 1664 (2013); Morrison v. National Australia
Bank Ltd., 130 S. Ct. 2869, 2877 (2010). If Congress had
enacted a general tort cause of action applicable to Fourth
Amendment violations committed by federal officers (a
statutory Bivens, so to speak), that cause of action would not
apply to torts committed by federal officers abroad absent
sufficient indication that Congress meant the statute to apply
extraterritorially. See Morrison, 130 S. Ct. at 2877. Whether
the reason for reticence is concern for our sovereignty or
respect for other states, extraterritoriality dictates constraint in
the absence of clear congressional action.
7
Neither Mitchell v. Forsyth, 472 U.S. 511 (1985), nor Ashcroft v.
al-Kidd, 131 S. Ct. 2074 (2011), help Meshal’s cause. Although
both cases involved Bivens claims in the national security context,
in neither case did the Court explicitly consider whether to imply a
Bivens cause of action. The Court instead, as has become its
practice in some Bivens cases, seemed to assume without deciding
that the claims were actionable under Bivens. See, e.g., Wood v.
Moss, 134 S. Ct. 2056, 2066 (2014) (assuming without deciding
Bivens applied to a First Amendment viewpoint discrimination
claim); Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (same
for First Amendment retaliatory arrest claim); Iqbal, 556 U.S. at
675 (same for First Amendment free exercise claim). Moreover,
neither case involved extraterritoriality.
16
D
Once we identify a new context, the decision whether to
recognize a Bivens remedy requires us to first consider
whether an alternative remedial scheme is available and next
determine whether special factors counsel hesitation in
creating a Bivens remedy. See Wilkie, 551 U.S. at 550.
Meshal has no alternative remedy; the government does
not claim otherwise. See Meshal, 47 F. Supp. 3d at 122 (“The
parties agree that Mr. Meshal has no alternative remedy for
his constitutional claims.”). Meshal, backed by a number of
law professors appearing as amici curiae, argues that, when
the choice is between damages or nothing, a Bivens cause of
action must lie. The Supreme Court, however, has repeatedly
held that “even in the absence of an alternative” remedy,
courts should not afford Bivens remedies if “any special
factors counsel[ ] hesitation.” Wilkie, 551 U.S. at 550; see
also Schweiker, 487 U.S. at 421–22. Cf. Wilson, 535 F.3d at
708–09. Put differently, even if the choice is between Bivens
or nothing, if special factors counsel hesitation, the answer
may be nothing. See Andrew Kent, Are Damages Different?:
Bivens and National Security, 87 S. CAL. L. REV. 1123, 1151
(2014) (“Kent”) (noting “the Court’s Bivens doctrine has long
tolerated denying Bivens even when there is no other effective
remedy”).
The “special factors” counseling hesitation in recognizing
a common law damages action “relate not to the merits of the
particular remedy, but to the question of who should decide
whether such a remedy should be provided.” Sanchez-
Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985)
(Scalia, J.). Where an issue “involves a host of considerations
that must be weighed and appraised,” its resolution
17
“is more appropriately for those who write the laws, rather
than for those who interpret them.” Bush, 462 U.S. at 380.
Two special factors are present in this case. We do not
here decide whether either factor alone would preclude a
Bivens remedy, but both factors together do so. First, special
factors counseling hesitation have foreclosed Bivens remedies
in cases “involving the military, national security, or
intelligence.” Doe, 683 F.3d at 394. Second, the Supreme
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.” Vance,
701 F.3d at 198–99.
Adding to the general reticence of courts in cases
involving national security and foreign policy, the
government offers a laundry list of sensitive issues they say
would be implicated by a Bivens remedy. Further litigation,
the government claims, would involve judicial inquiry into
“national security threats in the Horn of Africa region,” the
“substance and sources of intelligence,” and whether
procedures relating to counterterrorism investigations abroad
“were correctly applied.” Br. for the Appellees at 25–26,
Meshal v. Higgenbotham, No. 14-5194 (D.C. Cir. Feb. 13,
2015). The government also alleges Bivens litigation would
require discovery “from both foreign counterterrorism
officials, and U.S. intelligence officials up and down the chain
of command, as well as evidence concerning the conditions at
alleged detention locations in Ethiopia, Somalia, and Kenya.”
Id. at 26.
Unlike other cases where a plaintiff challenges U.S.
policy, the plaintiff here challenges only the individual
actions of federal law enforcement officers. At oral argument,
the government had few concrete answers concerning what
18
sensitive information might be revealed if the litigation
continued. Oral Arg. Recording 28:00–28:22; 29:52–29:59;
36:47–37:10. Why would an inquiry into whether the
Defendants threatened Meshal with torture or death require
discovery from U.S. intelligence officials up and down the
chain of command? Why would an inquiry into Meshal’s
allegedly unlawful detention without a judicial hearing reveal
the substance or source of intelligence gathered in the Horn of
Africa? What would make it necessary for the government to
identify other national security threats? Neither party knows
exactly what discovery will entail because no similar Bivens
claim has survived the motion to dismiss stage. Still, to some
extent, the unknown itself is reason for caution in areas
involving national security and foreign policy—where courts
have traditionally been loath to create a Bivens remedy.
At the end of the day, we find the absence of any Bivens
remedy in similar circumstances highly probative. Matters
touching on national security and foreign policy fall within an
area of executive action where courts hesitate to intrude
absent congressional authorization. See Dep’t of Navy v.
Egan, 484 U.S. 518, 530 (1988). Thus, if there is to be a
judicial inquiry—in the absence of congressional
authorization—in a case involving both the national security
and foreign policy arenas, “it will raise concerns for the
separation of powers in trenching on matters committed to the
other branches.” Christopher v. Harbury, 536 U.S. 403, 417
(2002). The weight of authority against expanding Bivens, 8
8
Even one of Meshal’s amici suggests that our prior decisions
saying no to Bivens in cases involving national security prevents the
panel from creating a Bivens action here. See Steve Vladeck,
Meshal: The Last, Best Hope for National Security Bivens Claims?,
JUST SECURITY (June. 17, 2014, 4:09 PM), http://justsecurity.org-
/11784/meshal (“Of course, that these three circuit-level decisions
(especially the D.C. Circuit’s decision in Doe) compel the result in
19
combined with our recognition that tort remedies in cases
involving matters of national security and foreign policy are
generally left to the political branches, counsels serious
hesitation before recognizing a common law remedy in these
circumstances.
There are also practical factors counseling hesitation.
One of the questions raised by Meshal’s suit is the extent to
which Defendants orchestrated his detention in foreign
countries. The Judiciary is generally not suited to “second-
guess” executive officials operating in “foreign justice
systems.” Munaf v. Geren, 553 U.S. 674, 702 (2008). And
judicial intrusion into those decisions could have diplomatic
consequences. See Br. for the Appellees at 26 (allowing
Bivens here would expose “the substance of diplomatic and
confidential communications between the United States and
foreign governments” regarding joint terrorism
investigations). Moreover, allowing Bivens suits involving
both national security and foreign policy areas will “subject
the government to litigation and potential law declaration it
will be unable to moot by conceding individual relief, and
force courts to make difficult determinations about whether
and how constitutional rights should apply abroad and outside
the ordinary peacetime contexts for which they were
developed.” Kent, at 1173. Even if the expansion of Bivens
would not impose “the sovereign will of the United States
onto conduct by foreign officials in a foreign land,” Dissent at
18, the actual repercussions are impossible to parse. We
cannot forecast how the spectre of litigation and the potential
discovery of sensitive information might affect the
enthusiasm of foreign states to cooperate in joint actions or
the government’s ability to keep foreign policy commitments
the district court in Meshal says nothing about whether the en banc
D.C. Circuit or Supreme Court would necessarily agree.”).
20
or protect intelligence. Just as the special needs of the military
requires courts to leave the creation of damage remedies
against military officers to Congress, so the special needs of
foreign affairs combined with national security “must stay our
hand in the creation of damage remedies.” Sanchez-Espinoza,
770 F.2d at 208–09.
III
A
Meshal claims his U.S. citizenship outweighs the national
security and foreign policy sensitivities implicated by
permitting a Bivens claim. We are not unsympathetic.
American citizenship has inherent value. See Tuaua v. United
States, No. 13-5272, slip op. at 14 (D.C. Cir. June 5, 2015)
(citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160
(1963)). Even so, the “source of hesitation” in the Bivens
special factor analysis “is the nature of the suit and the
consequences flowing from it, not just the identity of the
plaintiff.” Lebron, 670 F.3d at 554; see also Vance, 701 F.3d
at 203. At no point has the Supreme Court intimated that
citizenship trumps other special factors counseling hesitation
in creating a Bivens remedy.
B
Meshal, and several law professors as amici, claim two
congressional actions amounted to statutory ratification of
Bivens. They further claim courts have consistently
misinterpreted these legislative actions, and, consequently,
have taken an unduly narrow view of Bivens.
In 1973, Congress rejected a Department of Justice
proposal to substitute the federal government as the defendant
21
in all intentional tort suits against federal officers, including
those raising constitutional claims, as part of the Federal Tort
Claims Act. See James E. Pfander & David Baltmanis,
Rethinking Bivens: Legitimacy and Constitutional
Adjudication, 98 GEO. L. J. 117, 131 & n.79 (2009) (“Pfander
& Baltmanis”); see also S. REP. NO. 93–588, at 3 (1973). In
1988 Congress again rejected a DOJ proposal to funnel all
liability into claims brought against the government rather
than individual federal officers. See Pfander & Baltmanis, at
135 n.100; Carlos M. Vázquez & Stephen I. Vladeck, State
Law, the Westfall Act, and the Nature of the Bivens Question,
161 U. PA. L. REV. 509, 566–70 (2013) (“Vázquez &
Vladeck”). Congress instead passed the Westfall Act,
providing that the FTCA would be the exclusive remedy for
federal officials sued for “scope-of-employment” torts.
Federal Employees Liability Reform and Tort Compensation
Act of 1988, Pub. L. No. 100-694, § 5, 102 Stat. 4563, 4564
(codified at 28 U.S.C. § 2679(b)). In addition to creating
detailed procedures for converting state torts claims against
individual officers into FTCA claims against the United
States, the Westfall Act provided an exception to the
exclusive-remedy provision, stating it would not “extend or
apply to a civil action . . . which is brought for a violation of
the Constitution of the United States.” 28 U.S.C. §
2679(b)(2)(A). Thus, Congress expressly granted an
exemption from the FTCA for Bivens suits. See Hui v.
Castaneda, 559 U.S. 799, 807 (2010) (“Notably, Congress
also provided an exception for constitutional violations.”);
H.R. Rep. 100-700, at 6, 1988 U.S.C.C.A.N. 5945, 5950
(“Since the Supreme Court’s decision in [Bivens], the courts
have identified [a constitutional] tort as a more serious
intrusion of the rights of an individual that merits special
attention. Consequently, [the Westfall Act] would not affect
the ability of victims of constitutional torts to seek personal
22
redress from Federal employees who allegedly violate their
Constitutional rights.”).
But whether Congress, in rejecting Justice Department
proposals and providing a FTCA exemption, meant to ratify
Bivens is open to doubt. Congress may have viewed Bivens
and federal tort claims as “parallel, complementary causes of
action,” Carlson, 446 U.S. at 20, and intended, through the
Westfall Act, to “solidify the Bivens remedy,” Pfander &
Baltmanis, at 121–22. Or Congress could have thought
“Bivens was a constitutionally required decision,” Carlson,
446 at 33 n.2 (Rehnquist, J., dissenting), thus believing it
could not legislate away Bivens remedies. We normally
presume Congress legislates consistently with constitutional
commands, see United States v. X–Citement Video, Inc., 513
U.S. 64, 73 (1994), so mere congressional acquiescence to
Bivens may not be the same as congressional ratification. And
even if Congress did somehow ratify Bivens, 9 we would be
left with yet another question: Did Congress intend to ratify
Bivens’ scope as it was in 1988 or more broadly? See
Vázquez & Vladeck, at 579. If Congress intended to ratify
Bivens only as it existed in 1988 then this would be an easy
case.
There are no definitive answers to these competing
visions of congressional action. We are not foreclosing either
interpretation, but in a case where the thumb is heavy on the
scale against recognizing a Bivens remedy, uncertain
9
If Congress really desired a ratification of Bivens, its actions were
not a model of clarity. Congress did not place Bivens causes of
action in a separate statutory provision as it did for federal
questions and constitutional violations committed by state actors.
See 28 U.S.C. § 1331; 42 U.S.C. § 1983. Instead, it merely created
an exception to FTCA immunity for constitutional violations. See
28 U.S.C. § 2679(b)(2)(A).
23
interpretations of what Congress did in 1973 and 1988 cannot
overcome the weight of authority against expanding Bivens.
In any event, if the courts, as amici argue, have radically
misunderstood the nature and scope of Bivens remedies, a
course correction must come from the Supreme Court, which
has repeatedly rejected calls for a broad application of Bivens.
See supra, at Part IIC. Because we follow its lead, we will
ship our oars until that Court decides the scope of the remedy
it created.
If people like Meshal are to have recourse to damages for
alleged constitutional violations committed during a terrorism
investigation occurring abroad, either Congress or the
Supreme Court must specify the scope of the remedy.
IV
Because Meshal has not stated a valid cause of action, the
judgment of dismissal is
Affirmed.
KAVANAUGH, Circuit Judge, concurring: The United
States is at war against al Qaeda and other radical Islamic
terrorist organizations. Shortly after al Qaeda’s attacks on the
United States on September 11, 2001, Congress authorized
this war. President Bush and President Obama have
aggressively commanded the U.S. war effort.
The terrorists’ stated goals are, among other things, to
destroy the State of Israel, to drive the United States from its
posts in the Middle East, to replace more moderate Islamic
leadership in nations such as Saudi Arabia, and to usher in
radical Islamic control throughout the Greater Middle East.
In pursuing their objectives, the terrorists have repeatedly
attacked U.S. persons and property, both in foreign countries
and in the U.S homeland.
The war continues. No end is in sight.
In waging this war, the United States has wielded a wide
array of federal assets, including the military, the CIA, the
FBI, and other U.S. intelligence and law enforcement
agencies. The traditional walls dividing military, intelligence,
and law enforcement operations have given way to a more
integrated war effort. As President Bush and President
Obama have explained, the United States employs military,
intelligence, and law enforcement personnel in an often
unified effort to detect, surveil, capture, kill, detain,
interrogate, and prosecute the enemy.
In this case, U.S. law enforcement officers detained and
interrogated Meshal in a foreign country. They suspected that
Meshal might be an al Qaeda terrorist. Meshal alleges that he
was mistakenly detained and then abused. He has brought a
tort suit against the individual officers under Bivens, and he
seeks damages presumably in the hundreds of thousands of
dollars from those officers in their individual capacities.
2
The Bivens doctrine allows parties to maintain certain
constitutional tort suits against federal officers in their
individual capacities, even in the absence of an express
congressionally created cause of action. The classic Bivens
case entails a suit alleging an unreasonable search or seizure
by a federal officer in violation of the Fourth Amendment.
See Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Since Bivens, however,
the Supreme Court has been reluctant to extend the implied
Bivens cause of action to new contexts. The Court has
emphasized that it is ordinarily Congress’s role, not the
Judiciary’s, to create and define the scope of federal tort
remedies. As the Court has explained, Bivens carved out only
a narrow exception to that bedrock separation of powers
principle.
Here, Meshal proceeded under Bivens because Congress
has not created a cause of action for his alleged injury. As the
Court today spells out, Congress has enacted a number of
related tort causes of action. For example, the Federal Tort
Claims Act provides a cause of action for torts committed by
federal officials. But that law exempts torts committed in a
foreign country. So it does not help Meshal. The Torture
Victim Protection Act provides a cause of action for torture
committed by foreign officials. But the statute exempts U.S.
officials, a point that President George H.W. Bush stressed
when signing the legislation in 1992. See 28 U.S.C. §§ 2671
et seq.; id. § 1350 Note; see also Statement on Signing the
Torture Victim Protection Act of 1991, 1 Pub. Papers 437-38
(Mar. 12, 1992). So that law likewise does not help Meshal.
The bottom line is that neither of those statutes, nor any other,
creates a cause of action against U.S. officials for torts
committed abroad in these circumstances. See 28 U.S.C.
§ 2680(k); id. § 1350 Note, § 2(a).
3
Lacking any statutory cause of action, Meshal has sued
under Bivens. The Department of Justice, speaking ultimately
as the representative of President Obama, has vigorously
argued that the implied Bivens cause of action cannot be
stretched to cover Meshal’s case. According to the
Department of Justice, Bivens does not apply here because the
alleged conduct occurred during a national security
investigation in a foreign country, a setting different in
multiple important respects from the heartland Bivens case.
Faithfully following existing Supreme Court precedent, Judge
Emmet Sullivan agreed with the Department of Justice and
dismissed Meshal’s suit. The Court today affirms, and I fully
join its thorough and well-reasoned opinion.
I add this concurrence to underscore a few points in
response to the dissent.
The fundamental divide between the majority opinion
and the dissent arises over a seemingly simple question: Who
Decides? In particular, who decides whether to recognize a
cause of action against U.S. officials for torts they allegedly
committed abroad in connection with the war against al
Qaeda and other radical Islamic terrorist organizations? In
my view, the answer is Congress, not the Judiciary.
In confining the coverage of statutes such as the Federal
Tort Claims Act and the Torture Victim Protection Act,
Congress has deliberately decided not to fashion a cause of
action for tort cases like Meshal’s. Given the absence of an
express cause of action, the dissent seizes upon Bivens. How
does the dissent deal with the Supreme Court’s oft-repeated
caution against extending Bivens to new contexts? The
dissent argues that this case does not present a new context.
On that point, I respectfully but strongly disagree with
the dissent. Most importantly, the alleged conduct in this case
4
occurred abroad. So far as the parties have been able to
uncover, never before has a federal court recognized a Bivens
action for conduct by U.S. officials abroad. Never. In
statutory cases, we employ a presumption against
extraterritoriality. There is no persuasive reason to adopt a
laxer extraterritoriality rule in Bivens cases. It would be
grossly anomalous, in my view, to apply Bivens
extraterritorially when we would not apply an identical
statutory cause of action for constitutional torts
extraterritorially. Cf. Kiobel v. Royal Dutch Petroleum Co.,
133 S. Ct. 1659, 1664 (2013); Morrison v. National Australia
Bank Limited, 561 U.S. 247, 255 (2010).
This case is far from the Bivens heartland for another
reason as well. It involves a national security investigation
during a congressionally authorized war, not a simple arrest
for securities fraud, drug trafficking, or the like. Other courts
of appeals have refused to recognize Bivens actions for
alleged conduct that occurred during national security
investigations, even for conduct that occurred in U.S.
territory. See Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir.
2012); Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009); see also
Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012). We should
do the same in this case, especially because the conduct here
occurred in a foreign country. The dissent responds that the
Government has not demonstrated that this case is national-
security-related. But U.S. officials were attempting to seize
and interrogate suspected al Qaeda terrorists in a foreign
country during wartime. If this case is not national-security-
related, it is hard to see what is. The dissent counters that the
U.S. had not designated Meshal as an enemy combatant. But
that misses the key point: The U.S. was conducting an
investigation to determine whether Meshal was an enemy
combatant. In this war, the U.S. seeks to proactively confront
terrorist threats before they fully materialize. Close calls may
5
arise in labeling an investigation as national-security-related.
Not here.
The confluence of those two factors – extraterritoriality
and national security – renders this an especially inappropriate
case for a court to supplant Congress and the President by
erecting new limits on the U.S. war effort. Make no mistake.
If we were to recognize a Bivens action in this case, U.S.
officials undoubtedly would be more hesitant in investigating
and interrogating suspected al Qaeda members abroad. Of
course, some might argue that would be a good thing. Maybe
so, maybe not. Either way, it is not our decision to make.
Congress and the President possess the authority to restrict the
actions of U.S. officials during wartime, including by
approving new tort causes of action. And in this war, they
have done so by enacting new statutes such as the Detainee
Treatment Act and the Military Commissions Act. But they
have not created a tort cause of action for this kind of case. In
my view, we would disrespect Congress and the President,
and disregard our proper role as judges, if we were to
recognize a Bivens cause of action here.
***
In justiciable cases, courts should not hesitate to enforce
constitutional and statutory constraints on wartime activities.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952); Hamdan v. United States, 696 F.3d 1238 (D.C. Cir.
2012) (Kavanaugh, J.). But courts should not – under the
guise of Bivens – unilaterally recognize new limits that
restrict U.S. officers’ wartime activities. As Justice Jackson
stated in his canonical concurrence in Youngstown, courts
“should indulge the widest latitude of interpretation to
sustain” the President’s command of “the instruments of
national force, at least when turned against the outside world
6
for the security of our society.” 343 U.S. at 645 (Jackson, J.,
concurring). If I were a Member of Congress, I might vote to
enact a new tort cause of action to cover a case like Meshal’s.
But as judges, we do not get to make that decision. For those
reasons, I respectfully disagree with the dissent and fully join
the Court’s opinion.
PILLARD, Circuit Judge, dissenting:
As the majority observes, the allegations in this case are
deeply troubling. See Maj. Op. at 2. For purposes of this
decision, we must assume the truth of the facts Meshal
alleges. The defendant FBI officers arbitrarily detained
Meshal in secret in three different countries for four months
without charges, denied him access to counsel and the courts,
coercively interrogated him, and threatened him with
disappearance and death. Id. at 3-5. They did so to “coerce
him to confess to wrongdoing in which he had not engaged
and to associations he did not have.” J.A. 16 (Complaint ¶ 3).
Neither the United States nor any other government ever
charged Meshal with a crime. Maj. Op. at 4-5. Our
concurring colleague asserts that “U.S. officials were
indisputably attempting to seize and interrogate suspected al
Qaeda terrorists in a foreign country during wartime,” Conc.
Op. at 4, but there is zero basis here on which we could
conclude that these defendants had grounds for treating this
plaintiff as a suspected al Qaeda terrorist, or that they acted
pursuant to the President’s war powers. To the contrary, the
government never designated Meshal an enemy combatant,
and it eventually released him and returned him to the United
States. Maj. Op. at 5. Neither defendants nor this panel
doubts that Meshal properly stated Fourth and Fifth
Amendment claims. See J.A. 14; Maj. Op. at 5-6. The only
issue is whether, if the allegations were true, they would have
consequences.
Had Meshal suffered these injuries in the United States,
there is no dispute that he could have sought redress under
Bivens. If Meshal’s tormentors had been foreign officials, he
could have sought a remedy under the Torture Victim
Protection Act. Yet the majority holds that because of
unspecified national security and foreign policy concerns, a
United States citizen who was arbitrarily detained, tortured,
and threatened with disappearance by United States law
2
enforcement agents in Africa must be denied any remedy
whatsoever.
I would reverse the judgment dismissing Meshal’s case
and remand for further proceedings for the following two
reasons:
First, congressional action supports a constitutional
damages claim where, as here, it would not intrude on the
unique disciplinary structure of the military and where there is
no comprehensive regulation or alternative remedy in place;
and
Second, where FBI agents arbitrarily detain a United
States citizen overseas and threaten him with disappearance
and death during months of detention without charges, those
agents’ mere recitation of foreign policy and national security
interests does not foreclose a constitutional damages remedy.
I am unpersuaded that adjudicating Meshal’s
constitutional damages claim would necessarily pose
unacceptable risks to the national security and foreign policy
of the United States. The government has submitted no
certification or declaration of any authoritative diplomatic or
national security officer to substantiate defendants’ sweeping
national security and diplomatic relations claims. Defendants
instead rely on generalized assertions that any litigation of
Meshal’s Bivens claim would involve unacceptable risks.
Such assertions do not, in my view, constitute the kind of
“special factors” that justify eliminating the Bivens remedy in
a case like this one.
Courts have no power to make national security policy or
conduct foreign affairs and, in fulfilling our own
constitutional duty, the Article III courts must not imperil the
3
foreign relations or national security of the United States. But
no less today than when the Supreme Court decided Bivens,
“the judiciary has a particular responsibility to assure the
vindication of constitutional interests such as those embraced
by the Fourth Amendment.” Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407 (1971)
(Harlan, J., concurring in judgment). Government is most
tempted to disregard individual rights during times of
exigency. Judicial scrutiny becomes particularly important
when executive officials assert that individual rights must
yield to national security and foreign policy imperatives.
Presented with cases involving assertions of paramount
national interests in apparent tension with individual liberty,
the federal courts have proved competent to adjudicate.
Removing all consequence for violation of the Constitution
treats it as a merely precatory document. See Davis v.
Passman, 442 U.S. 228, 242 (1979). We should not do so
without more justification than was presented here.
Our responsibility in cases pitting claims of individual
constitutional liberties against national security is to discern
how the judiciary can meet its responsibility without either
second-guessing the sound judgments of the political
branches, or rubber-stamping every invocation of the
capacious and malleable concept of “national security” at the
expense of the liberty of the people. The fundamental
character of our separation of powers prevents us from simply
ceding to executive prerogatives: “[I]t would turn our system
of checks and balances on its head to suggest that a citizen
could not make his way to court with a challenge to the
factual basis for his detention by his Government, simply
because the Executive opposes making available such a
challenge.” Hamdi v. Rumsfeld, 542 U.S. 507, 536-37 (2004).
4
To meet that responsibility, courts have demanded that
governmental assertions of national security interests be
authoritative and specific. We have used special procedures
and mechanisms to consider those interests and accord them
appropriate respect without abdicating our constitutional
duties to adjudicate claims of violation of individual
constitutional rights. Measures such as courts’ inspection of
evidence under seal or even in camera, coding to anonymize
valuable and sensitive information, security clearances of
counsel and court personnel, and other special
accommodations have helped to preserve courts’ ability to
adjudicate in the face of countervailing executive imperatives.
Courts developed the state secrets privilege to safeguard
against damaging litigation disclosures of national security
information. That doctrine’s requirements are designed to
ensure that it not be lightly invoked, and to tailor its impact on
countervailing rights. Defendants here contend that they need
not submit to any such controls. Rather, they would have us
categorically turn away claims that ostensibly touch on
national security and foreign policy. No precedent of the
Supreme Court, this court, or any other United States court
requires that result.
The United States government itself elsewhere cites the
availability of Bivens claims as fulfilling our treaty
obligations to provide remedies for arbitrary detention and
torture wherever it may occur, in peace or conflict. See infra
pp. 14-15. Yet defendants would deny that promise, leaving
Meshal with no remedy whatsoever—whether under state or
federal law, constitutional, administrative, or otherwise.
Their position is that an American citizen who ventures
beyond our borders has no legal remedy against arbitrary and
prolonged detention and mistreatment at the hands of FBI
agents—so long as those agents were sent overseas to protect
United States interests.
5
Because I cannot conclude that either the Supreme Court
or our court has ever read the Constitution and laws of the
United States to support that result, and I am not persuaded
that defendants have provided us with grounds to do so here, I
respectfully dissent.
I.
Meshal’s case is unlike those in which the Supreme Court
or this court has declined to recognize a Bivens remedy.
Here, as the majority acknowledges, Meshal is suing the
typical Bivens defendant. Maj. Op. at 13. When FBI agents
violate a suspect’s Fourth and Fifth Amendment rights by
detaining him without charges and threatening him with
torture, disappearance, and death, a Bivens remedy is
ordinarily available. See id.
Defendants are not among the types of nongovernmental
or organizational actors beyond the reach of Bivens: they are
not a private corporation, cf. Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 73-74 (2000), its employees, cf. Minneci v.
Pollard, 132 S. Ct. 617, 623-26 (2012), or a federal
governmental agency, cf. FDIC v. Meyer, 510 U.S. 471, 484-
86 (1994). See Maj. Op. at 8, 13.
These claims, if allowed to proceed under Bivens, would
not sidestep any comprehensive scheme or alternative remedy
addressing the conduct at issue. Maj. Op. at 8; cf. Wilkie v.
Robbins, 551 U.S. 537, 553-62 (2007); Schweiker v. Chilicky,
487 U.S. 412, 414, 424-29 (1988); Bush v. Lucas, 462 U.S.
367, 388 (1983); Wilson v. Libby, 535 F.3d 697, 706-08 (D.C.
Cir. 2008).
Meshal’s claims also do not implicate the unique
demands of military discipline. He is not a service member or
6
military contractor, his claims did not arise in the theater of
war, nor are the defendant’s asserted security interests those
of the military, its chain of command, or alternate disciplinary
structure. Cf. United States v. Stanley, 483 U.S. 669, 683-84
(1987); Chappell v. Wallace, 462 U.S. 296, 303-06 (1983);
Doe v. Rumsfeld, 683 F.3d 390, 394-96 (D.C. Cir. 2012);
Lebron v. Rumsfeld, 679 F.3d 540, 549-51, 553 (4th Cir.
2012); Vance v. Rumsfeld, 701 F.3d 193, 199-203 (7th Cir.
2012) (en banc).
The foreign affairs implications that arise when an alien
sues United States officials are absent here. Meshal is an
American citizen, born and raised in New Jersey, to whom the
constitutional protections asserted here apply both at home
and when he goes overseas as a civilian tourist. Reid v.
Covert, 354 U.S. 1, 5-10 (1957) (plurality) (rejecting “the idea
that when the United States acts against citizens abroad it can
do so free of the Bill of Rights”); Maj. Op. at 11 n.4; Oral
Arg. Tr. at 19 (defendants’ counsel acknowledging
constitutional rights of United States citizens abroad).
Conflict within Somalia displaced Meshal and other civilians,
but Meshal does not allege he was arrested or detained in any
zone in which the United States was engaged in war or
military hostilities. J.A. 13.
Precedent does not permit us categorically to rule out any
civil remedy for these alleged wrongs. In my view,
defendants’ national security and foreign policy “special
factors” are overstated and under-explained. I do not read the
Supreme Court’s cases to hold that “the thumb is heavy on the
scale against recognizing a Bivens remedy” in a situation such
as this one. Maj Op. at 22. To the contrary, the Supreme
Court’s holding in Bivens that damages are an appropriate
remedy for a Fourth Amendment violation remains the law of
the land. And no one disputes that a Fifth Amendment claim
7
for arbitrary detention and coercive interrogation under
threats of disappearance and death would be cognizable under
Bivens if it occurred in the United States. See Wilkins v. May,
872 F.2d 190, 194 (7th Cir. 1989) (Posner, J.) (recognizing
Bivens Fifth Amendment due process claim in “a case in
which a person who had been arrested but not charged or
convicted was brutalized while in custody”), cert. denied, 493
U.S. 1026 (1990); see also Hernandez v. United States, 757
F.3d 249, 271, 277 (5th Cir. 2014) (recognizing Bivens Fifth
Amendment claim extraterritorially for “conscience-shocking
conduct”).
Defendants assert that any judicial consideration of
Meshal’s claims would interfere with foreign policy and
national security, but they have failed to make the case. In the
district court, defendants’ counsel said “I don’t know how the
foreign government is alleged to have been involved in this
particular operation.” J.A. 14. At oral argument in our court,
as the majority notes, counsel for defendants “had few
concrete answers concerning what sensitive information
might be revealed if the litigation continued.” Maj. Op. at 17.
The only authority defendants cite for any threat to
national security is the district court’s recapitulation of
defendants’ own contentions in their lower-court briefs that
litigation of Meshal’s claims “implicate national security
threats in the Horn of Africa region” and “substance and
sources of intelligence.” See Appellee Br. 11, 13, 24-27, 36-
37; Br. in Supp. of Mot. to Dismiss at 13-14. They assert that
adjudication would require the public release of sensitive
national security information, but they provide no basis for us
to evaluate that assertion. Defendants also have done nothing
to explain why the more targeted tools available to courts to
protect such information, such as confidential or in camera
8
processes or the state secrets privilege, would be inadequate
here.
II.
I explain my conclusion by following the “familiar
sequence” the Supreme Court employs to consider whether
any “alternative, existing processes,” or “special factors”
justify denying Meshal’s Bivens claim. Wilkie, 551 U.S. at
550.
A.
Precedent directs us to consider first “whether any
alternative, existing process for protecting the
[constitutionally recognized] interest amounts to a convincing
reason for the Judicial Branch to refrain” from superimposing
a Bivens remedy on that process. Minneci, 132 S. Ct. at 621
(quoting Wilkie, 551 U.S. at 550) (brackets in original).
Nobody contends that there is any “alternative, existing
process” for protecting Meshal’s constitutional rights. See
Maj. Op. at 15-16; Conc. Op. at 2-3. The parties and the court
agree that, in these circumstances, it is Bivens or nothing. See
Davis 442 U.S. at 246. Unlike plaintiffs in the cases in which
the Supreme Court has held that Bivens is unavailable, Meshal
has no alternative state tort remedy, cf. Minneci, 132 S. Ct. at
623, 626 (state tort remedy for alleged Eighth Amendment
claims against private prison employees); Wilkie, 551 U.S. at
551 (state tort remedy for alleged unconstitutional
interference with property rights); Malesko, 534 U.S. at 73-74
(state tort remedy for alleged Eighth Amendment claims
against private prison corporation), and Congress has not
provided any other remedy or comprehensive scheme to
displace Bivens here, cf., e.g., Schweiker, 487 U.S. at 424-27
(Social Security Act); Bush, 462 U.S. at 380-81, 388
9
(comprehensive federal civil service regulation); Wilson, 535
F.3d at 705-08 (Privacy Act); Chappell, 462 U.S. at 304
(recognizing “unique disciplinary structure of the military
establishment” as “special factor”).
The majority acknowledges that Congress at various
times has acted in ways that appear to have ratified Bivens,
but ultimately concludes that congressional acquiescence is
“open to doubt,” and so treats the congressional activity in the
area as a draw. Maj. Op. at 20-22. The basis of the
majority’s doubt is unpersuasive: my colleagues wonder
whether Congress has preserved Bivens for almost half a
century only because it thought it had to. Id. at 21-22. But
the Supreme Court from Bivens onward has emphasized that
Congress may displace the constitutional common-law
remedy. In the face of that invitation to legislate, Congress
has consistently preserved a place for judicially recognized
Bivens claims.
In particular, as the majority acknowledges, even as
Congress periodically amended the Federal Tort Claims Act
(FTCA), which provides an exclusive federal statutory
remedy against the government for state common-law torts by
United States officials, Congress purposely left intact the
judicially fashioned Bivens remedy for constitutional torts by
those same officials. Congress in the 1974 amendments to the
FTCA “made it crystal clear that Congress views FTCA and
Bivens as parallel, complementary causes of action.” Carlson
v. Green, 446 U.S. 14, 19-20 (1980) (citing 28 U.S.C.
§ 2680(h)). And again, in 1988 when the Westfall Act
amended the FTCA to immunize federal officials from
personal liability for common law torts committed within the
scope of their employment and substitute the United States as
the sole defendant to those claims, Congress specified that
such substitution-and-immunity does not apply to claims
10
“brought for a violation of the Constitution of the United
States.” 28 U.S.C. § 2679(b)(2)(A). Congress designed the
Westfall Act so as “not to affect the ability of victims of
constitutional torts to seek personal redress from Federal
employees who allegedly violate their Constitutional
rights”—a type of violation that is “a more serious intrusion
on the rights of an individual that merits special attention.”
H.R. Rep. No. 100-700, at 6 (1988), reprinted in 1988
U.S.C.C.A.N. 5945, 5949-50. Congress has preserved
constitutional damages claims even where they are parallel to
and thus sometimes overlap with FTCA claims that provide a
limited federal statutory vehicle for enforcing the substantive
protections of state tort law; there is no basis to read that
longstanding acceptance of Bivens as signaling congressional
intent to eliminate constitutional damages claims when no
overlapping or substitute claim exists.
The majority recognizes all of that, Maj. Op. at 20-21,
but wonders whether Congress may have preserved Bivens
only out of concern that the remedy is constitutionally
compelled, id. at 21-22. There is no basis for any such
conclusion. The concurrence finds compelling that Congress
has not codified any alternative remedy for Meshal’s harms.
Conc. Op. at 3. But congressional restraint cuts the other
way. As noted above, when Congress was making the
relevant amendments to the FTCA, the Supreme Court had
already repeatedly reiterated its own understanding that the
judicially recognized remedy could be displaced by a
congressional substitute. See, e.g., Bush, 462 U.S. at 378-79;
Carlson, 446 U.S. at 18-20; Davis, 442 U.S. at 245-47;
Bivens, 403 U.S. at 397. Despite addressing many other
related types of claims, Congress has enacted no alternative
that would displace a claim like Meshal’s. Against that
backdrop, Congress’s acquiescence cannot be read as
11
misguided submission to, let alone rejection of, Bivens in
these circumstances.
Defendants point out that the FTCA explicitly affords no
tort remedy for injuries “arising in a foreign country.” 28
U.S.C. § 2680(k). They contend the exception shows
Congress’s intention to deny a constitutional tort remedy to
individuals injured abroad by United States agents. But the
reason Congress excluded extraterritorial claims from the
FTCA was not to deny all damages liability for tort-like
harms inflicted by United States agents overseas. That
exclusion is specific to the FTCA, under which liability is
determined “in accordance with the [tort] law of the place
where the act or omission occurred,” 28 U.S.C. § 1346(b)(1),
i.e. by the common law of the various states. Congress “was
unwilling to subject the United States to liabilities depending
upon the laws of a foreign power.” United States v. Spelar,
338 U.S. 217, 221 (1949). The exemption shows only that the
FTCA aimed to incorporate the tort law of Texas or Illinois
but not of Kenya or Ethiopia. The concerns animating the
FTCA’s extraterritorial carve-out are inapplicable where the
United States Constitution, not any foreign country’s law,
supplies the rule of decision.
The majority also asserts that “if Congress really desired
a ratification of Bivens,” it would have “place[d] Bivens
causes of actions in a separate statutory provision,” such as 28
U.S.C. § 1331 or 42 U.S.C. § 1983. Maj. Op. at 22 n.9. But
Congress did not need to do that. Section 1331 provides
general federal question jurisdiction. It is the very provision
upon which Webster Bivens’s claim proceeded. Bivens, 403
U.S. at 398 (Harlan, J., concurring in judgment). As Justice
Harlan noted, Section 1331 “is sufficient to empower a
federal court to grant a traditional remedy at law” for a Fourth
12
Amendment violation. Id. at 405. 1 Demanding a showing
that Congress created an analogue to Section 1983 for claims
against federal officials also goes too far; had Congress done
so, there would be no need for Bivens. See Lebron, 670 F.3d
at 548 (acknowledging that “[w]e do not require
congressional action before recognizing a Bivens claim, as
that would be contrary to Bivens itself”). And once the Court
decided Bivens, there was no need for a Section 1983-like
statutory vehicle. Defendants point to other statutes providing
remedies to detainees abused at the hands of government
officials to argue that Congress could have created a cause of
action for plaintiffs in Meshal’s position, but chose not to do
so. They contend that congressional action “in this field” that
creates no damages remedy for Meshal is a “special factor[]
that counsel[s] hesitation.” Appellee Br. 39. The majority
correctly places no reliance on that argument. The additional
congressional action defendants identify is wholly consistent
with Congress’s acquiescence to Bivens for claims like
Meshal’s.
The Military Claims Act and Foreign Claims Act provide
an administrative compensation system for individuals
harmed by military officials or contractors at home or abroad.
See 10 U.S.C. § 2733 (Military Claims Act); id. § 2734
(Foreign Claims Act). Defendants do not contend that any
such claims process is available to a civilian harmed by
1
Damages are the traditional remedy at law, Bivens, 403 U.S. at
395, and are less intrusive and thus more readily reconciled with
national security prerogatives than an injunction disrupting ongoing
official activities. Cf. Women Prisoners of D.C. Dep’t of Corr. v.
District of Columbia, 93 F.3d 910, 921-22 (D.C. Cir. 1996)
(injunctive relief “was never regarded as relief of first resort”
because, “in tort actions, the standard formulation of the common
law . . . is that equitable relief, such as an injunction, will be
granted only when plaintiff’s legal remedies are inadequate”).
13
nonmilitary United States agents overseas, so it is unclear
how those statutes could imply any congressional
disinclination toward Meshal’s Bivens claim. Indeed, the fact
that Congress provided a remedy to persons in special-factors
military cases excluded from Bivens’ reach suggests
congressional solicitude for persons who would otherwise
lack compensation. See Vance, 701 F.3d at 200-01
(enumerating statutes governing the treatment of military
detainees to conclude that “[u]nlike Webster Bivens, they are
not without recourse”); Doe, 683 F.3d at 396-97.
The same can be said of defendants’ invocation of the
Torture Victim Protection Act, which authorizes United States
residents to sue foreign officials for abusive treatment under
color of foreign law. 28 U.S.C. § 1350 Note. Defendants and
the concurrence, Conc. Op. at 3-4, assert that the Torture
Victim Protection Act’s damages remedy for United States
residents harmed by foreign officials implies that Congress
considered and eschewed a parallel remedy for the same
harms inflicted by United States agents. But that statute may
well reflect Congress’s awareness that, against United States
agents, a remedy already exists under Bivens. 2 Neither
defendants nor my concurring colleague offer any reason why
we should infer that Congress’s creation of a new remedy
against foreign officials communicates its disapproval of the
sole available remedy for torture of a United States citizen at
the hands of United States nonmilitary agents. Their position
2
In the Detainee Treatment Act of 2005, Congress enacted a
limited, good-faith immunity provision shielding United States
agents from damages liability in lawsuits brought by alien
detainees. See 42 U.S.C. § 2000dd-1(a). Such immunity further
hints that Congress contemplated that United States agents would
face some kind of liability in United States courts when they
mistreat their own citizens. See Vance, 701 F.3d at 219-20
(Hamilton, J., dissenting).
14
appears to be that if Kenyan or Ethiopian officials had worked
alongside United States agents to torture Meshal, Congress
would have wanted him to have a remedy in United States
courts against the foreign agents under the Torture Victim
Protection Act, but to have no chance of any parallel relief
against the Americans inflicting the same torture. That
inference is counterintuitive, to say the least.
The executive branch in fact publicly insists that victims
of arbitrary detention or torture, both of which Meshal
alleges, do have a remedy under our law. The remedy the
government touts is Bivens litigation in federal court. The
Convention Against Torture and other treaties prohibit the
United States from engaging in torture, forced
disappearances, and arbitrary detentions. 3 As the State
Department acknowledged in 2014, the United States is
bound by the terms of the Convention Against Torture for
actions committed either domestically or abroad, whether
3
See Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 2(1), Dec. 10, 1984, S.
Treaty Doc. 100-20 (1988), 1465 U.N.T.S. 85 (“Each State Party
shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its
jurisdiction.”); Comm. against Torture, General Comment No. 2 on
Implementation of Article 2 by States Parties, U.N. Doc.
CAT/C/GC/2, at ¶ 16 (Jan. 24, 2008) (construing “any territory”
language in Convention Against Torture to include “other areas
over which a State exercises factual or effective control”);
International Covenant on Civil and Political Rights, art. 7, Dec. 16,
1966, S. Exec. Doc. C, D, E, F, 95-2 (1978), 999 U.N.T.S. 171
(“No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”); Geneva Convention Relative
to the Protection of Civilian Persons in Time of War, arts. 3, 32,
147, Aug. 12, 1949, 75 U.N.T.S. 287 (prohibiting cruel and
inhuman treatment and torture).
15
during a time of conflict or peace. 4 Both the Convention
Against Torture and the International Covenant on Civil and
Political Rights (ICCPR) obligate the United States to provide
remedies, including “compensation,” for violations of their
respective guarantees. 5 In 2006, the State Department assured
the United Nations Committee Against Torture that victims of
torture can sue United States officials for damages under the
Constitution and cited Bivens to support that point. See
United States Written Responses to Questions Asked by the
United Nations Committee Against Torture, ¶ 5 (Apr. 28,
2006), available at http://www.state.gov/j/drl/rls/68554.htm;
see also Vance, 701 F.3d at 208-09 (Wood, J., concurring in
judgment); id. at 219 (Hamilton, J., dissenting); Arar v.
Ashcroft, 585 F.3d 559, 619 (2d Cir. 2009) (en banc) (Parker,
J., dissenting).
Denying Meshal the recourse that the United States has
asserted he has—the ability to bring a Bivens action—leads to
an inexplicable result: civil remedies are available to most
victims of torture, except a United States citizen tortured by
United States agents abroad. An American subjected to
4
Comm. Against Torture, Concluding Observations on the Third to
Fifth Periodic Reports of United States of America, U.N. Doc.
CAT/C/USA/CO/3-5 (Nov. 20, 2014), at ¶¶ 5, 10, 14 (noting
United States official policy that “U.S. personnel are legally
prohibited” under Convention “from engaging in torture or cruel,
inhuman” treatment “at all times, and in all places”); see also CAT,
art. 2(1); ICCPR, art. 7; Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory, 2004 I.C.J. 136,
¶ 109 (2004); Human Rights Comm., General Comment No. 31 on
the Nature of the General Legal Obligation Imposed on State
Parties to the Covenant, U.N. Doc CCPR/C/21/Rev. 1/Add. 13,
¶ 10 (May 26, 2004).
5
Convention Against Torture, art. 14(1); ICCPR, arts. 2(3), 9(5),
14(6).
16
arbitrary arrest and coercive interrogation by federal officials
within the United States would typically have a civil remedy
under Bivens. See Maj. Op. at 13. The majority leaves open
whether a United States citizen abused by federal agents
abroad as part of an investigation not implicating national
security would be able to bring a Bivens action and offers no
reason why such a suit would be barred. See Maj. Op. at 3,
16. A United States citizen tortured by foreign officials could
file suit under the Torture Victim Protection Act. See 28
U.S.C. § 1350 Note. A foreign citizen tortured by United
States officials within the United States could file suit under
the Federal Tort Claims Act and the Alien Tort Statute. See
28 U.S.C. § 1346(b)(1); id. § 1350. And a foreign citizen
tortured by American agents acting abroad could seek redress
under the Alien Tort Statute or in his nation’s courts. Yet,
under defendants’ view, a United States citizen tortured by
American agents acting abroad has no recourse in his own
nation’s courts. It makes no sense that Congress would have
selectively denied to Americans abused abroad by United
States agents the remedies it has extended to all others. The
far more tenable conclusion is that Congress recognized that
citizens already had a remedy under Bivens for such wrongs.
The Constitution includes a Bill of Rights because the
Framers ultimately recognized that a Congress responsive to
the will of the majority would not always adequately protect
individual rights that might be unpopular with majorities.
Bivens, 403 U.S. at 407 (Harlan, J., concurring in judgment)
(“[I]t must also be recognized that the Bill of Rights is
particularly intended to vindicate the interests of the
individual in the face of the popular will as expressed in
legislative majorities.”). Adjudication of claims of individual
rights has always been the distinctive province of the Article
III courts. The genius of Bivens is precisely that it fulfilled a
rights-protective function that the Framers knew was
17
unrealistic to leave only with a majoritarian Congress, even
while the Court acknowledged Congress’s power to displace
Bivens by crafting an alternative remedy or “comprehensive
statutory scheme” in its stead. See Schweiker, 487 U.S. at
424-27; Bush, 462 U.S. at 388. Because Congress has not
done so here, it has provided no ground for dismissing
Meshal’s Bivens claims.
B.
Our second task in considering whether Meshal may
proceed with his Bivens claim is to “make the kind of
remedial determination that is appropriate for a common-law
tribunal, paying particular heed, however, to any special
factors counselling hesitation before authorizing a new kind
of federal litigation,” Wilkie, 551 U.S. at 550 (internal
quotation marks omitted), in “the absence of affirmative
action by Congress,” Carlson, 446 U.S. at 18 (quoting Bivens,
403 U.S. at 396). The majority concludes that two factors
counsel decisively against recognizing a remedy here: foreign
policy and national security concerns. Maj. Op. at 16-18.
Defendants have not persuasively shown that either of those
factors precludes a Bivens action in the circumstances alleged
here. Moreover, there is no reason to conclude that a federal
district court could not resolve whatever national security
concerns might arise.
1.
The fact that the conduct Meshal complains of occurred
abroad should not vitiate all remedy here. Defendants point
to allegations that they harmed Meshal during an investigation
“allegedly undertaken jointly with foreign government
officials, and while plaintiff was detained by foreign
governments.” Appellee Br. 21. It is not clear why those
18
facts, although potentially relevant to how his lawsuit would
need to be litigated and managed, see infra Part II.B.4, should
foreclose the suit. United States law enforcement cooperation
with foreign governments around the world has become
commonplace. Defendants have not explained how litigation
of Meshal’s claim would pose foreign policy difficulties. See
J.A. 13-14; Oral Arg. Tr. at 30 (defendants’ counsel referring
generally to “our relationship with foreign governments” as
the sensitive national security issue raised by Meshal’s
claims).
Our government’s power is defined and limited by the
Constitution. “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.” Reid, 354 U.S. at 6. Fidelity to the
Constitution should have prevented the FBI’s alleged
mistreatment of Meshal in Kenya, Somalia, and Ethiopia.
Judicial recognition of a claim against those nonmilitary law
enforcement officers for having acted in ways long known to
be contrary to the Constitution cannot fairly be condemned as
“courts . . . unilaterally recogniz[ing] new limits that restrict
officers’ wartime activities.” Cf. Conc. Op. at 5 (emphasis in
original).
In denying Meshal a remedy under Bivens, the majority
contends that the fact that Meshal’s mistreatment occurred
outside the United States is a “special factor” counseling
against a constitutional damages claim. See Maj. Op. at 3, 15-
17; Conc. Op. at 3-4 (describing the foreign location of the
alleged abuse as the “[m]ost important[]” factor). The court
19
relies for support on the presumption against extraterritorial
application of statutes. See Maj. Op. at 15-16 (citing Kiobel
v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1664 (2013);
Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255
(2010)). It is well established that Congress has the power to
regulate actions of United States citizens outside the territory
of the United States and, given the proliferation of
transnational conduct, it increasingly does so. The
presumption sets only a default rule of statutory construction
to aid courts in determining whether Congress intended to
legislate with respect to foreign occurrences. See Kiobel, 133
S. Ct. at 1665; Morrison, 561 U.S. at 255. However, that
presumption has no relevance to Meshal’s Bivens claims to
enforce constitutional provisions that all agree apply abroad,
especially given that the very genesis of Bivens lies in the
acknowledged inactivity of Congress.
Even if we were to assume an analogue to the
presumption against statutory extraterritoriality for Bivens
claims, it would be inapposite here because the factors that
animate such a presumption are absent. Entertaining
Meshal’s suit poses no risk of “impos[ing] the sovereign will
of the United States” onto conduct by foreign officials in a
foreign land. Kiobel, 133 S. Ct. at 1667. Application of the
United States Constitution to govern interactions between
Americans would not control the subjects of an independent
sovereign or clash with its law, sending the controversial
message that United States law “rule[s] the world.” Cf. id. at
1664 (quoting Microsoft Corp. v. AT&T Corp., 550 U.S. 437,
454 (2007)). This case involves pursuit of purely
retrospective relief by our citizen under our Constitution
against our government’s criminal investigators. The
Supreme Court in Kiobel—a case by aliens against foreign
defendants to enforce international norms—noted the
inapplicability of the presumption against extraterritoriality
20
when overseas conduct touches and concerns the United
States with sufficient force. See id. at 1669; see also
Morrison, 561 U.S. at 264-65. Meshal’s claims powerfully
touch and concern the United States. Defendants have failed
to show that any other nation has any conflicting interest in
this case or that our foreign relations would be affected were
it to proceed.
Defendants relatedly assert that adjudicating Meshal’s
allegations that defendants at times worked together with
foreign agents to detain and transport Meshal requires federal
courts to intrude on foreign justice systems and would upset
diplomatic relations. Appellee Br. at 21, 24-26; see Maj. Op.
at 18-19. But we have rejected the position that the
cooperation of foreign law enforcement with United States
agents renders a claim too sensitive to adjudicate:
“[T]eaming up with foreign agents cannot exculpate officials
of the United States from liability to United States citizens for
the United States officials’ unlawful acts.” Ramirez de
Arellano v. Weinberger, 745 F.2d 1500, 1542-43 (D.C. Cir.
1984) (en banc), rev’d on other grounds, 471 U.S. 1113
(1985); cf. also Johnson v. Eisentrager, 339 U.S. 763, 795
(1950) (Black, J., dissenting) (“The Court is fashioning
wholly indefensible doctrine if it permits the executive
branch, by deciding where its prisoners will be tried and
imprisoned, to deprive all federal courts of their power to
protect against a federal executive’s illegal incarcerations.”);
Abu Ali v. Ashcroft, 350 F. Supp. 2d 28, 50, 54 (D.D.C. 2004)
(circumstances in which “a citizen is allegedly being detained
at the direction of the United States in another country
without any opportunity at all to vindicate his rights” amount
to “an exceptional situation that demands particular attention
to the rights of the citizen”). Many of the Guantanamo
detainees were captured by foreign governments and handed
over to the United States, yet courts regularly review the facts
21
and circumstances of the detainees’ capture and detention
when they adjudicate habeas claims. See Rasul v. Bush, 542
U.S. 466, 470-72, 483-84 (2004); see, e.g., Anam v. Obama,
696 F. Supp. 2d 1, 5-7 (D.D.C. 2010).
Our court has identified foreign policy implications as
potential “special factors” in cases involving foreign plaintiffs
but has specified that such concerns are removed when the
plaintiff is a United States citizen. In Doe, we acknowledged
that the plaintiff’s “United States citizenship does remove
concerns . . . about the effects that allowing a Bivens action
would have on foreign affairs” even as we declined on other
grounds to recognize a Bivens claim against the Secretary of
Defense by a United States-citizen military contractor in Iraq.
683 F.3d at 396; cf. Sanchez-Espinoza v. Reagan, 770 F.2d
202, 208-09 (D.C. Cir. 1985) (noting, in special-factors
analysis of Nicaraguans’ Bivens challenge to United States’
support of the Nicaraguan Contras, the “danger of foreign
citizens using the courts . . . to obstruct the foreign policy of
our government”).
The majority cites Munaf v. Geren, 553 U.S. 674, 702
(2008), for the broad proposition that United States courts
may not “second guess executive officials operating in foreign
justice systems,” Maj. Op. at 19, but that case does not
support defendants’ foreign-policy objection to Meshal’s
Bivens claims. The Court in Munaf unanimously held that
United States citizens held by multinational forces have a
right to seek habeas corpus relief in United States courts, 553
U.S. at 686-88, notwithstanding that the participation of
cooperating foreigners in the circumstances of confinement
might be exposed. Munaf also concerned a contest over
which of two sovereigns should prosecute criminal suspects
of interest to both—a contest absent here, where no
prosecution occurred and no other sovereign has claimed an
22
interest in Meshal’s civil case. See id. at 697-98. The
Supreme Court’s conclusion—that the United States
government’s decision not to “shelter [American] fugitives
from the criminal justice system of the sovereign with
authority to prosecute them” was beyond judicial review, id.
at 705—has no relevance here. It fails to provide even
indirect support for defendants’ much broader contention that
a “foreign policy” factor weighs against any adjudication of
rights abuses arising from investigations involving
international cooperation.
2.
Defendants also have not shown how the “special factor”
of national security prevents recognition of a Bivens claim
here. See Oral Arg. Tr. at 23 (defendants’ counsel claiming
that it “is the mere prospect of [national security related]
litigation inquiry that raises” national security sensitivities).
The executive and legislative branches have primary authority
over national security matters, but their authority is not
entirely insulated from the courts, which play a vital role in
protecting constitutional rights. The Supreme Court has long
“made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation’s
citizens,” and underscored that, “[w]hatever power the United
States Constitution envisions for the Executive in its
exchanges 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.” Hamdi,
542 U.S. at 536. Because “[n]ational 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.” Mitchell v.
Forsyth, 472 U.S. 511, 522 (1985). Courts must take care in
accepting assertions of necessity based on national security,
23
because, as the Supreme Court has observed, “the label of
‘national security’ may cover a multitude of sins.” Id. at 524.
The law enforcement investigations in Turkmen v. Hasty,
789 F.3d 218 (2d Cir. 2015), were at least as related to the
investigation of suspected terrorism as the investigation at
issue here, but the Second Circuit found no bar to Bivens
claims. See id. at 233-37. The Turkmen plaintiffs were
detained in the wake of the September 11th attacks and held
until the government could clear them of any involvement
with terrorism. Id. at 226-27. The fact that the investigation
concerned terrorism did not preclude the court from
recognizing a Bivens remedy. The court acknowledged that
“[i]t might well be that national security concerns motivated
the Defendants to take action, but that is of little solace to
those who felt the brunt of that decision. The suffering
endured by those who were imprisoned merely because they
were caught up in the hysteria of the days immediately
following 9/11 is not without a remedy.” Id. at 264. The
national security character of the investigation was not
dispositive there, nor should it be here.
I appreciate the majority’s efforts to cabin its holding to
cases touching on national security and arising abroad. See
Maj. Op. at 3, 16-17; see also Oral Arg. Tr. at 28, 30
(government disclaiming any rule barring all Bivens claims
involving counter-terrorism investigations, or all claims based
on overseas conduct). But I fear that relying on general
national security concerns unconnected to military operations
goes too far toward eliminating Bivens altogether. On its
own, national security is a malleable concept. According to
one scholar who exhaustively canvassed the field, “[d]espite
its appearance throughout history and its use in relation to
statutory authorities . . . ‘national security’ is rarely defined,”
and when Congress and the executive branch define it, they
24
do so broadly; the Supreme Court, for its part, “has
acknowledged that the term is frustratingly broad, [and that it
gives] rise to important constitutional concerns.” Laura K.
Donohue, The Limits of National Security, 48 AM. CRIM. L.
REV. 1573, 1579-84 (2011). Defendants provide no principle
limiting their proffered “national security” rationale for
defeating Bivens liability and shielding federal agents from
constitutional accountability. The boundlessness of their
position is particularly problematic when “[n]o end is in
sight” to the war against terrorism. Conc. Op. at 1.
Defendants’ open-ended invocation of “national security” to
defeat Bivens is unprecedented.
All of the cases defendants cite as dismissing Bivens
claims for national security reasons are readily distinguishable
from this one as involving the military. See Doe, 683 F.3d
390; Vance, 701 F.3d 193; Lebron, 670 F.3d 540. Both Doe
and Vance concerned abuses allegedly committed by military
officials and challenged military decisions about operations in
the theater of war. Doe, 683 F.3d at 392; Vance, 701 F.3d at
195-96, 199. Those decisions hinged, in part, on the fact that
the plaintiffs were the functional equivalent of members of
the armed services. For example, plaintiff Doe was a defense
contractor detailed to a Marine unit on the Iraqi-Syrian border
who was detained by the military and determined by a
Detainee Status Board to be a threat to the Multi-National
Forces in Iraq. See Doe, 683 F.3d at 391-92. Although Doe
was “a contractor and not an actual member of the military,”
we saw “no way in which this affects the special factors
analysis” of Stanley and Chappell, which was based on the
exclusive system of military justice and discipline. See Doe,
683 F.3d at 393-94. Notably, in Doe, we referred collectively
to the “military, intelligence, and national security” aspect of
the case, never invoking “national security” alone or as it
might relate to a criminal investigation. Id. at 394. Vance,
25
too, involved claims of military contractors “performing much
the same role as soldiers.” 701 F.3d at 198-99. They were
detained by military personnel in a combat zone on suspicion
of supplying weapons to groups opposed to the United States.
The Seventh Circuit refused to recognize a Bivens remedy for
their claims, reasoning that “[t]he Supreme Court’s principal
point was that civilian courts should not interfere with the
military chain of command.” Id. at 199.
In Lebron, plaintiff Jose Padilla was “convicted of
conspiring with others within the United States to support al
Qaeda’s global campaign of terror” before he sued military
policymakers and military officers for his prior military
detention as an enemy combatant. 670 F.3d at 544. Although
Padilla was neither a service member nor a contractor
functioning as one, the defect in his suit, as in Doe and Vance,
was that he sued the military and his claims threatened to
“interfere[] with military and intelligence operations on a
wide scale.” Id. at 553.
Meshal’s suit does not arise out of or seek to scrutinize
military service or military activity—he is not a service
member or military contractor nor is he challenging any
conduct of military officials. He was detained by FBI agents
during the course of a national-security related law
enforcement operation. Unlike its treatment of Bivens claims
arising from and challenging military actions, the Supreme
Court has never hesitated to recognize the viability of a
damages suit against federal agents engaged in law
enforcement activities or responsible for supervising
prisoners. Compare Chappell, 462 U.S. at 300, with Bivens,
403 U.S. 397-98, and Carlson, 446 U.S. at 17-19.
26
3.
Even accepting that the intersection of foreign policy and
national security concerns might sometimes amount to
“special factors” counseling decisively against a Bivens claim,
defendants have failed utterly to explain why those factors
should be dispositive here. Defendants’ contention that
litigating Meshal’s claims could jeopardize national security
has been made in a cursory fashion, and only in legal briefing.
Defendants repeatedly assert, for example, that Meshal’s suit
would “enmesh the judiciary in the evaluation of national
security threats in the Horn of Africa region” and compromise
“the substance and sources of intelligence.” Appellee Br. 13,
24, 25, 37. That is insufficient. The scope or urgency of the
national security threat in the Horn of Africa has not been
shown to be incompatible with remedying violations of
Americans’ Fourth and Fifth Amendment rights.
The government’s assertion of national security interests
here is quite different from the assertion that persuaded the
Fourth Circuit in Lebron to decline to recognize a Bivens
claim. There, the court noted that Congress and the executive
had acted in concert in support of the power over military
affairs that constituted a “special factor.” Lebron, 670 F.3d at
549. Congress enacted the Authorization for the Use of
Military Force, and the President formally designated Padilla
as an enemy combatant pursuant to that authorization. Id.
Here, no designation was made, and no military power
asserted. The concurrence characterizes FBI activities in
foreign countries as part of an “integrated war effort” under
the national security umbrella of the President’s war power,
and suggests that defendants were privileged to act as they did
because they “suspected that Meshal was an al Qaeda
terrorist.” Conc. Op. at 1. But defendants do not claim that
27
they acted pursuant to presidential war powers, nor have they
provided any grounds for treating Meshal as a terrorist.
If Article III judges must sometimes cede our rights-
protective role in deference to the political branches on
matters of national security, we should do so only with a
responsible official’s authoritative and specific assurance of
the imperative of doing so. “[H]istory and common sense
teach us that an unchecked system of detention carries the
potential to become a means for oppression and abuse . . . .”
Hamdi, 542 U.S. at 530. Not every Justice Department
lawyer assigned to represent individual defendants sued under
Bivens, see 28 C.F.R. § 50.15, has the authority to invoke the
prerogatives of the Commander in Chief.
Before declining to recognize a cause of action because
of national security concerns, the court should require the
government to provide a concrete, plausible, and authoritative
explanation as to why the suit implicates national security
concerns. That judges cannot “forecast” on our own whether
or how this suit might affect national security, see Maj. Op. at
19, only underscores why we must require that the
government take responsibility for invoking any such
rationale. If this case indeed raises national security concerns,
our law provides the United States with the opportunity to
advance them, and gives courts more nuanced and focused
ways to address such concerns.
In order to invoke the state secrets evidentiary privilege,
for example, the head of the department with control over a
matter must personally consider the issue and make a formal
claim of privilege. United States v. Reynolds, 345 U.S. 1, 7-8
(1953). Courts give careful scrutiny to such assertions. See,
e.g., Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d
1190, 1203 (9th Cir. 2007) (“Simply saying ‘military secret,’
28
‘national security’ or ‘terrorist threat’ or invoking an ethereal
fear that disclosure will threaten our nation is insufficient to
support the privilege. Sufficient detail must be—and has
been—provided for us to make a meaningful examination.”).
Here, by contrast, defendants have provided no affidavit or
certification from a high-level government official explaining
how Meshal’s suit would implicate national security.
Defendants’ broad claim that this case implicates national
security is entirely unsupported and conjectural. It does not
justify refusing to recognize a Bivens claim here.
4.
If Meshal were permitted to press his claim, it is entirely
possible that during the proceedings a national-security
related issue would arise, and that such an issue might prove
to be an obstacle to the suit. But that is no reason to halt his
suit at the threshold. As the majority notes, Maj. Op. at 17,
defendants’ counsel at argument was unable to explain how
litigating Meshal’s claim might reveal national security
information or be insusceptible of management through the
many other doctrines designed to enable litigation consistent
with national security interests. See Oral Arg. Tr. at 23, 25.
Federal courts frequently decide cases raising national
security issues and are well equipped to handle them. Among
the responsibilities of Article III courts is the duty to evaluate
the factual and legal bases of the government’s detention of
United States citizens designated as enemy combatants,
Hamdi, 542 U.S. at 509, 536, to adjudicate habeas petitions
brought by enemy combatants detained at Guantanamo Bay,
Boumediene v. Bush, 553 U.S. 723, 732 (2008), and to decide
whether federal agents were engaged in a “joint venture” with
foreign law enforcement officials to circumvent Miranda
warnings, United States v. Abu Ali, 528 F.3d 210, 226-28 (4th
29
Cir. 2008). The judiciary has a wide range of tools to address
national security concerns as they arise during the course of a
lawsuit. In light of those tools, defendants have failed to
show that there is a reason to deny categorically Meshal’s
constitutional tort claims.
Under the state-secrets privilege, for example, the
government can withhold information from discovery if
disclosure of that information would imperil national security
or foreign policy. See, e.g., Reynolds, 345 U.S. at 7-8; Halkin
v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982). Once the
government properly invokes the privilege, a plaintiff cannot
defeat it even if his suit would fail without the privileged
material. See, e.g., Reynolds, 345 U.S. at 11; Halkin, 690
F.2d at 990. The state-secrets privilege is designed precisely
to prevent disclosure of information that would impair the
nation’s defense capabilities or diplomatic interests.
Courts have developed a variety of additional procedures
for managing cases that implicate sensitive issues. See
Federal Judicial Center, National Security Case Studies:
Special Case-Management Challenges (June 25, 2013)
(hereinafter “FJC”). Courts are equipped to evaluate
classified and sensitive evidence while maintaining secrecy.
Classified or secret evidence is often submitted to courts
under seal, and courts can issue opinions without disclosing
that evidence. See, e.g., Nat’l Council of Resistance of Iran v.
Dep’t of State, 251 F.3d 192, 202 (D.C. Cir. 2001) (“We
acknowledge that in reviewing the whole record, we have
included the classified material. As we noted above . . . we
will not and cannot disclose the contents of the record.”); U.S.
Info. Agency v. Krc, 989 F.2d 1211, 1220 n.4 (D.C. Cir. 1993)
(“[Secret] information has been submitted to the court under
seal and cannot be discussed in this opinion.”). Court
personnel and non-government attorneys may be eligible for
30
security clearances that permit them to view and use classified
documents and materials for purposes of litigating claims
touching on national security. See, e.g., In re Nat’l Sec.
Agency Telecomms. Records Litig., 595 F. Supp. 2d 1077,
1089 (N.D. Cal. 2009); see also United States v. Moussaoui,
591 F.3d 263, 267 (4th Cir. 2010); FJC at 416, 422 (collecting
examples). Courts can assign codes or aliases in a case to
enable witnesses to testify about secret matters in a way in
which the judge, jury, and attorneys will understand, but the
public will not. See FJC at 407-08. Secure video connections
can enable depositions and recorded testimony from witnesses
living abroad. FJC at 64, 130-31, 187. Defendants have
given no reason to believe that the tools available to courts to
respond to such concerns would be inadequate in Meshal’s
case.
* * *
Constitutional damages remedies hold out hope of redress
to survivors of what is sometimes truly horrific abuse at the
hands of government agents. Witness this case. Such claims
are rarely brought and, due to legal and factual complexities,
they almost never succeed. Yet their existence has enormous
value. As Judge Easterbrook observed for the en banc
Seventh Circuit in Vance, “[p]eople able to exert domination
over others often abuse that power; it is a part of human
nature that is very difficult to control.” 701 F.3d at 205. The
Supreme Court recognized constitutional torts to deter that
kind of abuse of power. United States law enforcement is
more active internationally today than ever before, increasing
the relevance of Bivens’ remedial and deterrent functions in
cases like this one. Because I do not believe that precedent
supports eliminating Meshal’s suit or that defendants made a
showing that any congressional action or special factors
should preclude it, I respectfully dissent.