Arkan Ali v. Donald Rumsfeld

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 2011 Decided June 21, 2011

No. 07-5178

ARKAN MOHAMMED ALI ET AL.,

APPELLANTS

v.

DONALD H. RUMSFELD , INDIVIDUALLY , ET AL.,

APPELLEES

Consolidated with 07-5185, 07-5186, 07-5187

Appeals from the United States District Court

for the District of Columbia

(No. 05cv01378)

Cecillia D. Wang argued the cause for the appellants. Lucas

Guttentag, Jennifer Chang Newell and Kate Desormeau were on

brief.

Stephen A. Saltzburg was on brief for amici curiae National

Institute of Military Justice et al. in support of the appellants.

William J. Aceves was on brief for amici curiae Human

Rights & Torture Treatment Organizations in support of the

appellants.

Robert M. Loeb, Attorney, United States Department of

Justice, argued the cause for the appellees. Barbara L. Herwig,

2

Michael L. Martinez, Mark E. Nagle, Stephen L. Braga and

Ryan E. Bull, Attorneys, were on brief.

Before: SENTELLE , Chief Judge, HENDERSON , Circuit

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON .

Dissenting opinion filed by Senior Circuit Judge EDWARDS.

KAREN LE CRAFT HENDERSON , Circuit Judge: Four Afghan

and five Iraqi citizens captured and subsequently held in

Afghanistan and Iraq, respectively, by the United States military

sued Donald Rumsfeld, former Secretary of the United States

Department of Defense, and three high-ranking Army officers1

(collectively, defendants) under the Fifth and Eighth

Amendments to the United States Constitution, the Alien Tort

Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth

Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, seeking

damages and declaratory relief as the result of their treatment

while in U.S. custody. The district court granted the defendants’

motion to dismiss all six claims and the plaintiffs appeal the

dismissal of their constitutional and ATS claims only. For the

reasons set forth below, we affirm the district court’s judgment.

1

Army Lieutenant General Ricardo Sanchez, commander of the

“Coalition Joint Task Force-7” from June 2003 to July 2004 and “the

highest-ranking U.S. military official in Iraq,” Am. Compl. ¶ 28; Janis

Karpinski, commander of the “800th Military Police Brigade,” which

was responsible for detention facilities in Iraq, from approximately

June 2003 to May 2004; and Colonel Thomas Pappas, commander of

the “205th Military Intelligence Brigade” who in November 2003

assumed command of the “Joint Interrogation and Debriefing Center”

at Abu Ghraib prison near Baghdad, Iraq. Id. ¶¶ 29-30.

3

I.

The amended complaint alleges the following facts. Arkan

Mohammed Ali is an Iraqi citizen who was held at Abu Ghraib

and other military facilities in Iraq for almost one year, from

approximately July 2003 to June 2004. Am. Compl. ¶ 17. He

alleges he was beaten to the point of unconsciousness; stabbed

and mutilated; stripped naked, hooded and confined in a wooden

phone booth-sized box; subjected to prolonged sleep deprivation

enforced by beatings; deprived of adequate food and water and

subjected to mock execution and death threats. Id. Thahe

Mohammed Sabar is an Iraqi citizen who was held at Abu

Ghraib and other military facilities in Iraq for about six months

from approximately July 2003 to January 2004. Id. ¶ 18. He

alleges he was severely beaten, sexually assaulted and

humiliated, deprived of adequate food and water, intentionally

exposed to dangerously high temperatures for prolonged periods

and subjected to mock executions and death threats. Id.

Sherzad Kamal Khalid is an Iraqi citizen who was held at Abu

Ghraib and other military facilities in Iraq for about two months

from approximately July 2003 through September 2003. Id.

¶ 19. He alleges he was frequently and severely beaten, sexually

assaulted and threatened with anal rape, deprived of adequate

food and water, intentionally exposed to dangerously high

temperatures and subjected to “mock executions, death

threats . . . and prolonged sleep deprivation enforced by

beatings.” Id. Ali H. is an Iraqi citizen who was held at Abu

Ghraib and other military facilities in Iraq for about four weeks

from August to September 2003. Id. ¶ 20. He alleges the U.S.

military intentionally withheld and delayed necessary medical

treatment, intentionally inflicted “pain after surgery by dragging

him from one location to another and forcefully ripping away

the surgical dressing,” intentionally exposed him to infection by

leaving his surgical wound half-bandaged and deprived him of

adequate food and water. Id. Najeeb Abbas Ahmed is an Iraqi

citizen who was held at Abu Ghraib and other military facilities

4

in Iraq for two separate periods, the first from approximately

May 2003 to July 2003 and the second from approximately July

2003 through December 2003. Id. ¶ 21. He alleges U.S.

soldiers held a gun to his head, threatened him with death and

with life imprisonment at Guantanamo Bay, sexually assaulted

him, stepped and sat on his body while he was in extreme

restraints, humiliated him by chanting racial epithets while

videotaping and photographing him, held him in an outdoor cage

at temperatures exceeding approximately 120 degrees

Fahrenheit, intentionally deprived him of sleep for prolonged

periods, confiscated medication for his high blood pressure and

heart disease and intentionally deprived him of medical care

after he “suffered more than one heart attack and a possible

stroke in detention.” Id. Mehboob Ahmad is a citizen of

Afghanistan who was held by the U.S. military at the detention

facility located at Bagram Air Force Base (Bagram) and at other

military facilities in Afghanistan for approximately five months

from June to November 2003. Id. ¶ 22. He alleges U.S. soldiers

placed him in restraints and positions calculated to cause pain,

intimidated him with a vicious dog, questioned him while he

was naked, threatened his family and subjected him to sensory

deprivation. Id. Said Nabi Siddiqi is a citizen of Afghanistan

who was also held at military facilities in Afghanistan, including

Bagram and the Kandahar detention facility, from July to

August 2003. Id. ¶ 23. He alleges he was beaten, placed in

restraints and positions calculated to cause pain, subjected to

“verbal abuse of a sexual nature,” humiliated by being

photographed naked, denied water, intentionally deprived of

necessary medication, intentionally exposed to dangerous

temperatures for prolonged periods and deprived of sleep. Id.

Mohammed Karim Shirullah is a citizen of Afghanistan who

was held at Bagram and other military facilities in Afghanistan

for approximately six months, from December 2003 to June

2004. Id. ¶ 24. He alleges he was beaten, placed in restraints

and positions calculated to cause pain, interrogated and

5

photographed while naked, subjected to sensory deprivation and

placed in solitary confinement for an extended period, denied

medical care for injuries caused by abuse, intentionally exposed

to extreme temperatures for prolonged periods, doused with cold

water and deprived of sleep. Id. Haji Abdul Rahman is a citizen

of Afghanistan who was held at Bagram and other military

facilities in Afghanistan for approximately five months, from

December 2003 to May 2004. Id. ¶ 25. He alleges he was

questioned and photographed while naked, subjected to

complete sensory deprivation for twenty-four hours, placed in

solitary confinement and deprived of sleep. Id.

The plaintiffs originally filed separate actions in four

different jurisdictions—the District of Connecticut, the Northern

District of Illinois, the District of South Carolina and the

Southern District of Texas. By an order dated June 17, 2005, the

Judicial Panel on Multidistrict Litigation transferred the cases to

the district court of the District of Columbia for coordinated and

consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.

The plaintiffs filed an amended complaint on January 5, 2006.

They allege the defendants:

(1) formulated or implemented policies and practices

that caused the torture and other cruel, inhuman or

degrading treatment of Plaintiffs; and (2) had effective

command and control of U.S. military personnel in Iraq

and/or Afghanistan and knew and had reason to know

of torture and abuse by their subordinates and failed to

promptly and effectively prohibit, prevent and punish

unlawful conduct.

Id. ¶ 26. The plaintiffs asserted six causes of action in the

district court; five asserted claims for violations of (1) the Due

Process Clause of the Fifth Amendment, (2) the Fifth

Amendment and Eighth Amendment prohibitions against cruel

and unusual punishment, (3) the law of nations prohibition

against torture, (4) the law of nations prohibition against cruel,

6

inhuman or degrading treatment and (5) the Geneva

Conventions. Am. Compl. ¶¶ 235-59. The sixth cause of action

sought a declaratory judgment that defendant Rumsfeld violated

“the law of nations, binding treaties and the U.S. Constitution.”

Id. ¶¶ 260-63. In March 2006, the defendants moved to dismiss

the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6)

of the Federal Rules of Civil Procedure (FRCP) for lack of

subject matter jurisdiction and failure to state claims upon which

relief may be granted.2

On March 27, 2007, the district court dismissed the

plaintiffs’ amended complaint pursuant to FRCP 12(b)(1) and

12(b)(6) “and on the ground that the defendants are entitled to

qualified immunity.” In re Iraq & Afghanistan Detainees Litig.

(Detainees Litig.), 479 F. Supp. 2d 85, 119 (D.D.C. 2007).

Regarding the constitutional claims brought pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971),3 the district court held the Fifth and Eighth

Amendments do not apply to “nonresident aliens who were

injured extraterritorially while detained by the military in

2

Additionally, defendants Karpinski and Sanchez argued the

plaintiffs’ claims raise nonjusticiable political questions and defendant

Pappas argued the constitutional claims against him should be

dismissed because the plaintiffs’ allegations failed to connect him to

the alleged constitutional violations and all claims against him should

be dismissed for lack of personal jurisdiction. Because it dismissed the

plaintiffs’ cases on other grounds, the district court considered these

arguments moot.

3

“The holding in Bivens permits a plaintiff to bring an action in

federal court against a federal officer/employee for the violation of his

constitutional rights. 403 U.S. at 389. A Bivens suit is the federal

counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against

a state or local officer/employee for the violation of the claimant’s

constitutional rights.” Rasul v. Myers, 512 F.3d 644, 652 n.2 (D.C.

Cir.), vacated, 129 S. Ct. 763 (2008).

7

foreign countries where the United States is engaged in wars.”4

Detainees Litig., 479 F. Supp. 2d at 95. The court relied on the

United States Supreme Court’s holdings in Johnson v.

Eisentrager, 339 U.S. 763 (1950), and United States v. Verdugo-

Urquidez, 494 U.S. 259 (1990), and Zadvydas v. Davis, 533 U.S.

678 (2001), and on our holding in Boumediene v. Bush, 476 F.3d

981 (D.C. Cir. 2007), rev’d, 553 U.S. 723 (2008).5 The court

4

The district court also held that the plaintiffs’ Eighth

Amendment claim failed “not only because the plaintiffs are precluded

from invoking the Constitution . . . , but also because the Eighth

Amendment applies only to convicted criminals” and the plaintiffs

“were never convicted of a crime.” 479 F. Supp. 2d at 103 (citing

Ingraham v. Wright, 430 U.S. 651, 664 (1977)). On appeal the

plaintiffs contend their Eighth Amendment claim is cognizable.

Because we affirm the district court’s dismissal of the Eighth

Amendment claim on other grounds, we do not reach this argument.

5

In Eisentrager, the Supreme Court held that German nationals

who were imprisoned at a U.S. army base in Germany and convicted

of war crimes committed during World War II had no habeas corpus

right under the U.S. Constitution. In Verdugo-Urquidez, the Court

held that a Mexican citizen whose residence in Mexico was searched

by agents of the United States Drug Enforcement Administration

could not assert a claim under the Fourth Amendment to the U.S.

Constitution. The Court explained that it had “rejected the claim that

aliens are entitled to Fifth Amendment rights outside the sovereign

territory of the United States” and described holdings such as Plyler

v. Doe, 457 U.S. 202, 210-12 (1982) (illegal aliens residing in United

States protected by Equal Protection Clause), and Kwong Hai Chew

v. Colding, 344 U.S. 590, 596 (1953) (resident alien “person” within

meaning of Fifth Amendment), and Bridges v. Wixon, 326 U.S. 135,

148 (1945) (resident aliens have First Amendment rights), and Russian

Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931) (foreign

corporation doing business in America entitled to just compensation

under Fifth Amendment for property taken by U.S. government), and

Wong Wing v. United States, 163 U.S. 228, 238 (1896) (resident aliens

8

further held that even if the plaintiffs could claim constitutional

protections, special factors would counsel against inferring a

Bivens remedy. Detainees Litig., 479 F. Supp. 2d at 103-07. It

explained “that military affairs, foreign relations, and national

security are constitutionally committed to” the President and the

Congress and concluded “that authorizing monetary damages

remedies against military officials engaged in an active war

would . . . obstruct the Armed Forces’ ability to act decisively

and without hesitation in defense of our liberty and national

entitled to Fifth and Sixth Amendment rights), and Yick Wo v.

Hopkins, 118 U.S. 356, 369 (1886) (Fourteenth Amendment protects

resident aliens), as “establish[ing] only that aliens receive

constitutional protections when they have come within the territory of

the United States and developed substantial connections with this

country.” 494 U.S. at 269, 271. In Zadvydas, the Court reaffirmed the

constitutional distinction between persons present in the United States

and persons outside the United States. The Court held that a federal

statute authorizing the Government to hold an alien who has been

ordered deported beyond the 90-day “removal period” within which

the alien is to be deported permits the Government to hold the alien for

only a “reasonable time.” 533 U.S. at 682. The Court explained the

statute would “raise serious constitutional concerns” if it allowed the

Government to hold indefinitely a deportable alien present in the

United States, id., but reiterated “that certain constitutional protections

available to persons inside the United States are unavailable to aliens

outside of our geographic borders,” relying on Eisentrager and

Verdugo-Urquidez. 533 U.S. at 693. In Boumediene, we held that

both Supreme Court and our own precedent “hold[] that the

Constitution does not confer rights on aliens without property or

presence within the United States.” 476 F.3d at 991. The Supreme

Court reversed our decision in Boumediene and held, for the first time,

that alien detainees held at Guantanamo Bay, Cuba, can assert a

habeas corpus right under the Suspension Clause of the U.S.

Constitution. 553 U.S. 723; see U.S. Const. art. I, § 9, cl. 2

(Suspension Clause). As set forth infra p. 11-17, we distinguish the

Supreme Court’s Boumediene decision.

9

interests.” Id. at 107, 105. Finally, the district court held that

qualified immunity protected the defendants from the Bivens

claims because, even if the plaintiffs possess constitutional

rights, “those rights were not clearly established at the time the

alleged injurious conduct occurred.” Id. at 108.

As to the Geneva Conventions claims and the alleged

violations of the law of nations brought pursuant to the ATS,6

the district court held that “the defendants are entitled to

absolute immunity pursuant to the Westfall Act,” according to

which Act the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346, 2671 et seq., provides the exclusive remedy for a tort

committed by a federal official or employee within the scope of

his employment.7 479 F. Supp. 2d at 114. The court concluded

the Westfall Act includes an intentional tort, id. at 110-11, and,

6

The ATS provides: “The district courts shall have original

jurisdiction of any civil action by an alien for a tort only, committed

in violation of the law of nations or a treaty of the United States.” 28

U.S.C. § 1350.

7

The Federal Employees Liability Reform and Tort

Compensation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563

(amending 28 U.S.C. §§ 2671, 2674, 2679), commonly referred to as

the Westfall Act, provides in pertinent part:

Upon certification by the Attorney General that the

defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a United States district court

shall be deemed an action against the United States under

the provisions of this title and all references thereto, and the

United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1). The Westfall Act makes the FTCA remedy

“exclusive of any other civil action or proceeding for money

damages.” Id. § 2679(b)(1).

10

relying on the Restatement (Second) of Agency § 228 (1958),8

determined the defendants acted within the scope of their

employment because “detaining and interrogating enemy aliens”

was “incidental to their overall military obligations.” Id. at 114.

The court further ruled that neither the ATS claims nor the

Geneva Conventions claims fell within one of the statutory

exceptions to the Westfall Act. Id. at 111-13. Accordingly, the

court substituted the United States as the defendant on the ATS

and Geneva Conventions claims and then dismissed those claims

because the plaintiffs failed to exhaust their administrative

remedies as required by the FTCA. Id. at 114-15.

The district court rejected the plaintiffs’ allegation that

Geneva Convention IV itself provides a private cause of action

and dismissed their claims for violations of the Convention for

failure to state a claim for relief. Id. at 115-17. Regarding their

claim for declaratory relief, the court held the plaintiffs lacked

standing because the named defendants no longer held their

official positions in Iraq or Afghanistan and therefore the

plaintiffs could not show “that they face a real and imminent

threat of being wronged again in the future” by those

8

The Restatement (Second) of Agency § 228 (1958) provides in

part:

(1) Conduct of a servant is within the scope of employment

if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time

and space limits;

(c) it is actuated, at least in part, by a purpose to serve

the master, and

(d) if force is intentionally used by the servant against

another, the use of force is not unexpectable by the

master.

11

defendants. Id. at 118. Additionally, the court held the

plaintiffs, having sued the defendants in their individual

capacities only, could not seek declaratory relief.9 Id. at 118-19.

The plaintiffs timely filed a notice of appeal on May 24,

2007, challenging the district court’s dismissal of their

constitutional and ATS claims and its dismissal of their claim

for declaratory relief. They do not appeal the dismissal of their

Geneva Conventions claims.

II.

In reviewing the district court’s grant of a motion to

dismiss, we accept as true the factual allegations of the

plaintiffs’ complaint and review the district court’s legal

conclusions de novo. Daniels v. Union Pac. R.R. Co., 530 F.3d

936, 940 (D.C. Cir. 2008) (“We review the district court’s legal

conclusions de novo . . . [and] accept as true the facts that [the

plaintiffs] allege[] in [their] complaint in reviewing the district

court’s disposition of the defendants’ motion to dismiss.”

(alterations in original) (internal quotation marks omitted)). We

address seriatim the plaintiffs’ constitutional claims, their ATS

claims and their claim for declaratory relief.

A. The Bivens Claims

Each plaintiff asserts two Bivens claims, namely, the

defendants tortured him in violation of his due process right

under the Fifth Amendment and the defendants’ conduct

constituted cruel and unusual punishment in violation of the

Eighth Amendment.10 Am. Compl. ¶¶ 235-46. Our decisions in

9

The court apparently overlooked the fact that the plaintiffs sued

defendant Rumsfeld in both his individual and official capacities. See

Am. Compl. ¶ 27.

10

The second claim also alleges the defendants’ conduct

constituted cruel and unusual punishment in violation of the Fifth

12

Rasul v. Myers (Rasul I), 512 F.3d 644 (D.C. Cir.), vacated, 129

S. Ct. 763 (2008), and Rasul v. Myers (Rasul II), 563 F.3d 527

(D.C. Cir.) (per curiam), cert. denied, 130 S. Ct. 1013 (2009),

govern our resolution of these claims.

In Rasul I, four British citizens sued Secretary Rumsfeld

and several high-ranking military officials for damages arising

from their alleged illegal detention and torture at Guantanamo

Bay, Cuba between 2002 and 2004. Rasul I, 512 F.3d at 649-50.

Their complaint included claims under the Fifth and Eighth

Amendments, the ATS, the Geneva Conventions and the

Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.

We affirmed the district court’s dismissal of the constitutional

claims, explaining that “Guantanamo detainees lack

constitutional rights because they are aliens without property or

presence in the United States.” 512 F.3d at 663 (citing

Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), rev’d,

553 U.S. 723 (2008)). Furthermore, we concluded the

defendants were protected by qualified immunity because, even

assuming arguendo the detainees possessed rights under the

Fifth and Eighth Amendments, those rights were not clearly

established at the time of their detention and alleged torture. Id.

Amendment. It is unclear, however, how this claim differs from the

plaintiffs’ first claim that the defendants violated the Fifth Amendment

by engaging in torture. Although an individual not yet convicted of

a crime must challenge his treatment or the conditions of his

confinement under the Due Process Clause of the Fifth or Fourteenth

Amendments rather than the Eighth Amendment, see City of Revere

v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); Iqbal v. Hasty, 490

F.3d 143, 168 (2d Cir. 2007), rev’d on other ground sub nom. Ashcroft

v. Iqbal, 129 S. Ct. 1937 (2009) (complaint failed to plead sufficient

facts to state claim for relief); Estate of Cole by Pardue v. Fromm, 94

F.3d 254, 259 n.1 (7th Cir. 1996), cert. denied, 519 U.S. 1109 (1997),

he does not create two separate claims under either Due Process

Clause by alleging both torture and cruel and unusual punishment.

13

at 665-67. After Rasul I issued, the Supreme Court reversed our

Boumediene decision and held the Suspension Clause extends to

nonresident aliens detained at Guantanamo Bay. Boumediene v.

Bush, 553 U.S. 723 (2008). The Court then vacated our

judgment in Rasul I and remanded for further consideration in

light of its intervening decision in Boumediene. Rasul v. Myers,

129 S. Ct. 763 (2008).

On remand, we reaffirmed our holding that the defendants

were protected by qualified immunity and explained it was not

necessary to determine whether the Fifth and Eighth

Amendments applied to the plaintiffs.11 Qualified immunity

shields a government official from civil liability if his conduct

“does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Even if the

Rasul plaintiffs could assert rights under the Fifth and Eighth

Amendments, we explained, Boumediene did not alter the

conclusion that those rights were not clearly established at the

time of the defendants’ challenged conduct. Rasul II, 563 F.3d

at 529-30. The plaintiffs argue, as did the Rasul plaintiffs, that

the defendants should have known (that is, a reasonable person

would have known) their alleged misconduct violated the

Constitution because it “has long been settled that the

11

Another intervening Supreme Court decision—Pearson v.

Callahan, 129 S. Ct. 808, 815-16, 818 (2009)—held that a court can

decide a constitutional right was not clearly established without first

deciding whether the right exists. Before Pearson, courts followed the

Saucier procedure, under which they first had to determine whether

the alleged facts made out a violation of a constitutional or statutory

right before deciding whether the right was clearly established at the

time of the alleged violation. Id. at 815-16; see also Saucier v. Katz,

533 U.S. 194, 201 (2001).

14

Constitution forbids the torture of any detainee.”12 Appellants’

Br. 23; see Rasul I, 512 F.3d at 666. The proper inquiry,

however, is not whether the Constitution prohibits torture but

“whether the rights the plaintiffs press under the Fifth and

Eighth Amendments were clearly established at the time of the

alleged violations.” Rasul I, 512 F.3d at 666 (emphasis in

original). As the Supreme Court made clear in Boumediene, it

had “never held that noncitizens detained by our Government in

territory over which another country maintains de jure

sovereignty have any rights under our Constitution.” 553 U.S.

at 770; see also Rasul II, 563 F.3d at 530 (“At the time of [the

plaintiffs’] detention, neither the Supreme Court nor this court

had ever held that aliens captured on foreign soil and detained

beyond sovereign U.S. territory had any constitutional

rights—under the Fifth Amendment, the Eighth Amendment, or

otherwise.”). As it was not clearly established in 2004 that the

Fifth and Eighth Amendments apply to aliens detained at

Guantanamo Bay—where the Supreme Court has since held the

Suspension Clause applies—it plainly was not clearly

established in 2004 that the Fifth and Eighth Amendments apply

to aliens held in Iraq and Afghanistan—where no court has held

any constitutional right applies. As we explained in Rasul II, the

Supreme Court in Boumediene “explicitly confined its

constitutional holding ‘only’ to the extraterritorial reach of the

Suspension Clause” and “disclaimed any intention to disturb

existing law governing the extraterritorial reach of any

constitutional provisions, other than the Suspension Clause.”

563 F.3d at 529 (quoting Boumediene, 553 U.S. at 795). As in

12

The plaintiffs also cite several “military laws, regulations, and

training materials” prohibiting torture which, they contend, “reinforce

the constitutional prohibition against torture and serve to put military

commanders and personnel on notice of the sorts of actions that the

Constitution prohibits.” Appellants’ Br. 24-25.

15

Rasul II, therefore, the defendants here are protected from the

plaintiffs’ constitutional claims by qualified immunity.13

The plaintiffs contend the Supreme Court in Boumediene

adopted a flexible approach that leaves open the possibility of

the extraterritorial application of constitutional provisions other

than the Suspension Clause and claim that our decision in Al

Maqaleh v. Gates, 605 F.3d 84 (D.C. Cir. 2010), accurately

interprets Boumediene. Because the three alien Bagram

detainees in Al Maqaleh sought habeas corpus relief, the

decision addresses only the applicability of the Suspension

Clause. We nonetheless noted that the Supreme Court’s

Boumediene decision “explored the more general question of

extension of constitutional rights and the concomitant

constitutional restrictions on governmental power exercised

extraterritorially and with respect to noncitizens.” Id. at 93. The

court discussed three factors the Supreme Court identified as

relevant in determining the reach of the Suspension Clause: “(1)

the citizenship and status of the detainee and the adequacy of the

process through which that status determination was made; (2)

the nature of the sites where apprehension and then detention

took place; and (3) the practical obstacles inherent in resolving

the prisoner’s entitlement to the writ.” Id. at 94 (quoting

Boumediene, 553 U.S. at 766). The first factor weighed in favor

of extending the habeas corpus right to the three because, like

the Boumediene detainees, they were aliens held by the

American military. Id. at 95-96. According to the court, the

13

Even the plaintiffs recognize this and ask us to “abandon [our]

holdings to the contrary.” Appellants’ Br. 23. “That argument is

misplaced because we are, of course, bound to follow circuit precedent

absent contrary authority from an en banc court or the Supreme

Court.” United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir.

2006) (per curiam), cert. denied, 549 U.S. 1246 (2007).

16

three received less due process than the Boumediene detainees.14

Id. The second and third factors, however, weighed against

them. Distinguishing Guantanamo Bay—where, according to

the Supreme Court, the United States has de facto sovereignty,

Boumediene, 553 U.S. at 755—the court concluded “the same

simply is not true with respect to Bagram.” Al Maqaleh, 605

F.3d at 97. The United States has not demonstrated an intent to

exercise sovereignty over Bagram “with permanence.” Id.

Moreover, “Bagram, indeed the entire nation of Afghanistan,

remains a theater of war.” Id. The same is true of Iraq. The

Supreme Court expressly stated in Boumediene that, if

Guantanamo Bay “were located in an active theater of war,

arguments that issuing the writ would be ‘impractical or

anomalous’ would have more weight.” 553 U.S. at 770. We

concluded “that under both Eisentrager and Boumediene, the

[habeas corpus] writ does not extend to the Bagram confinement

in an active theater of war in a territory under neither the de

facto nor de jure sovereignty of the United States and within the

territory of another de jure sovereign.” Al Maqaleh, 605 F.3d at

98. Thus, even under the plaintiffs’ view of Boumediene, we

have nonetheless held that the Suspension Clause does not apply

to Bagram detainees. They offer no reason—and we see none

14

The Al Maqaleh detainees’ status was reviewed by the

Unlawful Enemy Combatant Review Board (UECRB), not the

Combatant Status Review Tribunal (CSRT) that reviewed the

Boumediene detainees’ status. 605 F.3d at 96. According to the court,

“proceedings before the UECRB afford[ed] even less protection to the

rights of detainees in the determination of status than was the case

with the CSRT.” Id. The Al Maqaleh detainees had no representation

while the Boumediene detainees had “personal representative[s].” Al

Maqaleh v. Gates, 604 F. Supp. 2d 205, 227 (D.D.C. 2009), rev’d, 605

F.3d 84 (D.C. Cir. 2010). Additionally, the Al Maqaleh detainees

were not permitted to speak in their defense but could submit only a

written statement and were not informed of the evidence against them

so that they lacked a meaningful opportunity to rebut the evidence. Id.

17

ourselves—why the plaintiffs’ Fifth and Eighth Amendment

claims would be any stronger than the Suspension Clause claims

of the Bagram detainees.

The plaintiffs urge us to follow the now-optional Saucier

procedure and decide, first, whether they have “alleged a

deprivation of a constitutional right at all,” Pearson, 129 S. Ct.

at 816 (internal quotation marks omitted), although we may

ultimately conclude any such right was not clearly established

at the time of the defendants’ alleged misconduct.15 The Saucier

procedure, however, is not appropriate in most cases. Often “it

is plain that a constitutional right is not clearly established but

far from obvious whether in fact there is such a right.” Id. In

such a case, deciding the existence of the constitutional right vel

non is “an essentially academic exercise,” id., that “runs counter

to the older, wiser judicial counsel not to pass on questions of

constitutionality . . . unless such adjudication is unavoidable,”

id. at 821 (ellipsis in original) (internal quotation marks and

citations omitted), and results in the “substantial expenditure of

scarce judicial resources on difficult questions that have no

effect on the outcome of the case,” id. at 818. The Saucier

approach can also preclude an affected party from obtaining

appellate review of a decision that could significantly affect its

future actions. Id. at 820. If a court decides that the defendant

15

We recognize that the Saucier approach is “often beneficial”

and helps “promote[] the development of constitutional precedent.”

Pearson, 129 S. Ct. at 818. As the Supreme Court explained, in some

cases “there would be little if any conservation of judicial resources to

be had” by deciding only the “clearly established” prong. Id. For

instance, it sometimes can be “difficult to decide whether a right is

clearly established without deciding precisely what the constitutional

right happens to be.” Id. (quotation marks and citation omitted). In

other cases, the explanation that a right was not clearly established

“may make it apparent that [the allegations] do not make out a

constitutional violation at all.” Id.

18

violated the plaintiff’s constitutional right but is entitled to

qualified immunity because the right was not clearly established

at the time, the “prevailing” defendant presumably would not be

able to appeal the adverse constitutional holding. Id. (citing

Kalka v. Hawk, 215 F.3d 90, 96 n.9 (D.C. Cir. 2000)

(“Normally, a party may not appeal from a favorable

judgment.”)); cf. Camreta v. Greene, 131 S. Ct. 2020, 2028-33

(2011) (official who prevails on qualified immunity in district

court may not be able to obtain appellate review,

notwithstanding availability of certiorari review to official who

prevails on qualified immunity on appeal). As in Rasul II, we

believe “[c]onsiderations of judicial restraint favor exercising

the Pearson option with regard to [the] plaintiffs’ Bivens

claims.” 563 F.3d at 530.

In Rasul II we had an alternative basis—apart from

qualified immunity—on which to dismiss the plaintiffs’ Bivens

claims—that “federal courts cannot fashion a Bivens action

when ‘special factors’ counsel against doing so.” 563 F.3d at

532 n.5. We determined the “danger of obstructing U.S.

national security policy is one such factor” that counsels against

allowing a Bivens claim to proceed.16 Id. The same rationale

applies here.17 The district court correctly concluded that

allowing a Bivens action to be brought against American

military officials engaged in war would disrupt and hinder the

ability of our armed forces “to act decisively and without

hesitation in defense of our liberty and national interests.”

Detainees Litig., 479 F. Supp. 2d at 105. The Supreme Court

long ago recognized as much in Eisentrager:

16

We concluded that this alternative rationale was “also

unaffected by the Supreme Court’s Boumediene decision.” 563 F.3d

at 532 n.5.

17

Again, the plaintiffs urge us to “abandon” our holding in Rasul

II on this point as well. Appellants’ Br. 35.

19

Such trials would hamper the war effort and bring aid

and comfort to the enemy. They would diminish the

prestige of our commanders, not only with enemies but

with wavering neutrals. It would be difficult to devise

more effective fettering of a field commander than to

allow the very enemies he is ordered to reduce to

submission to call him to account in his own civil

courts and divert his efforts and attention from the

military offensive abroad to the legal defensive at

home. Nor is it unlikely that the result of such enemy

litigiousness would be a conflict between judicial and

military opinion highly comforting to enemies of the

United States.

339 U.S. 763, 779 (1950). And in Sanchez-Espinoza v. Reagan,

770 F.2d 202, 209 (D.C. Cir. 1985), our court noted that “the

special needs of foreign affairs must stay our hand in the

creation of damage remedies against military and foreign policy

officials for allegedly unconstitutional treatment of foreign

subjects causing injury abroad.” In Sanchez-Espinoza,

Nicaraguan citizens, none of whom resided in the United States,

sued, inter alia, the President, the CIA director, the then-current

as well as former secretaries of state and the then-secretary of

defense alleging they had “authorized, financed, trained,

directed and knowingly provided substantial assistance” to

Nicaraguan rebels who engaged in “summary execution,

murder, abduction, torture, rape, wounding, and the destruction

of private property and public facilities.” Id. at 205 (quoting

Am. Compl. ¶¶ 31, 81). We concluded that “the danger of

foreign citizens’ using the courts in [such situation] to obstruct

the foreign policy of our government is sufficiently acute that

we must leave to Congress the judgment whether a damage

remedy should exist.” Id. at 209. As in Rasul II, we see no

basis for distinguishing this case from Sanchez-Espinoza.

Accordingly, even if the defendants were not shielded by

qualified immunity and the plaintiffs could claim the protections

20

of the Fifth and Eighth Amendments, we would decline to

sanction a Bivens cause of action because special factors counsel

against doing so.

B. The ATS Claims

Rasul II also governs our resolution of the plaintiffs’ ATS

claims alleging violations of the law of nations. In addition to

their Bivens claims, the Rasul plaintiffs “brought three claims

for violations of the law of nations pursuant to the [ATS] based

on the defendants’ alleged infliction of ‘prolonged arbitrary

detention,’ ‘torture,’ and ‘cruel, inhuman or degrading

treatment.’ ”18 Rasul I, 512 F.3d at 654 (citations omitted). We

determined the defendants’ alleged tortious conduct—“the

detention and interrogation of suspected enemy

combatants”—was “incidental to [their] legitimate employment

duties” because it was “the type of conduct the defendants were

employed to engage in.” Id. at 658-59. Because the defendants

had acted within the scope of their employment, we held the

ATS claims “were properly restyled as claims against the United

States that are governed by the FTCA” and upheld their

dismissal for failure to exhaust administrative remedies.19 Id. at

660-61 (internal quotation marks and brackets omitted). The

plaintiffs here bring similar claims against similar (and, in the

case of defendant Rumsfeld, identical) defendants. And like the

18

Specifically, the Rasul plaintiffs alleged “they were beaten,

shackled in painful stress positions, threatened by dogs, subjected to

extreme temperatures and deprived of adequate sleep, food, sanitation,

medical care and communication.” Rasul I, 512 F.3d at 654.

19

In Rasul II, we stated that we could “see nothing in the

Supreme Court’s [Boumediene] decision that could possibly affect our

disposition of” the plaintiffs’ ATS claims alleging violations of the

law of nations and “therefore reinstate[d] our judgment” with respect

to those claims. 563 F.3d at 528-29. The portion of Rasul I that treats

the ATS claims, therefore, remains controlling law.

21

Rasul defendants who, we held, were acting within the scope of

their employment, the defendants here—who engaged in the

same conduct—were acting within the scope of their

employment as well. See id. at 654-61. The plaintiffs argue the

Westfall Act does not cover “egregious torts that violate jus

cogens norms” because the Act grants immunity for a

“ ‘negligent or wrongful act or omission’ ” only. Appellants’

Br. 46 (quoting 28 U.S.C. § 2679(b)(1)). The plaintiffs argue

“wrongful” is ambiguous and should be interpreted in light of

the Act’s legislative history which, the plaintiffs contend,

reveals “wrongful” was not intended to encompass egregious

torts that violate jus cogens norms. We explicitly rejected this

argument in Rasul I, where, while acknowledging the plaintiffs

had “plainly alleged ‘seriously criminal’ conduct,” we explained

that “the allegations of serious criminality do not alter our

conclusion that the defendants’ conduct was incidental to

authorized conduct.” 512 F.3d at 659-60. Accordingly, the

district court correctly held that the Westfall Act applied and

correctly substituted the United States as the defendant under the

FTCA.20 The FTCA “required the plaintiffs to file an

administrative claim with either the Department of Defense

(DoD) or the appropriate military department before bringing

20

The plaintiffs also challenge the district court’s holding that the

defendants acted within the scope of their employment. They contend

that, “[a]s a matter of law, torture can never fall within the scope of

employment of the U.S. Secretary of Defense and high-ranking U.S.

Army commanders.” Appellants’ Br. 56. They nonetheless recognize

the district court’s ruling is mandated by our precedent and “maintain

the issue here [only] to preserve it.” Id. They “respectfully submit

that this Court’s decisions . . . in Rasul II and Harbury [v. Hayden,

522 F.3d 413 (D.C. Cir. 2008),] are not well-founded and should be

reconsidered.” Id. at 57. We are of course bound by circuit precedent.

United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006) (per

curiam) (“[W]e are . . . bound to follow circuit precedent absent

contrary authority from an en banc court or the Supreme Court.”).

22

suit.” Id. at 661 (citing 28 C.F.R. § 14.1). “[W]e view the

failure to exhaust administrative remedies as jurisdictional.” Id.

As in Rasul, the “record is devoid . . . of any suggestion” the

plaintiffs filed an administrative claim with DoD or a military

department. Id. The district court thus properly dismissed the

ATS claims under FRCP 12(b)(1) for lack of subject matter

jurisdiction.

The plaintiffs raise one argument not addressed in Rasul I

or II. The Westfall Act does not immunize a federal

employee/official from a suit “brought for a violation of a

statute of the United States under which such action against an

individual is otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B).

The plaintiffs claim the ATS, under which they brought their

claims for violations of the law of nations, is a United States

statute that permits a private cause of action against a federal

employee/official. Therefore, the plaintiffs contend, their claims

fall within an exception to the Westfall Act and they should be

permitted to proceed against the individual defendants, not the

United States.

The district court in Rasul I rejected this argument,

explaining that the ATS21 “is strictly a jurisdictional statute” that

“does not confer rights nor does it impose obligations or duties

that, if violated, would trigger the Westfall Act’s statutory

exception.”22 414 F. Supp. 2d 26, 37-38 (D.D.C. 2006). The

21

The district court called it the Alien Tort Claims Act (ATCA),

414 F. Supp. 2d at 37-38, another name for the ATS. See Estate of

Amergi ex rel. Amergi v. Palestinian Auth., 611 F.3d 1350, 1356 n.5

(11th Cir. 2010) (“The [ATS] is also known as the Alien Tort Claims

Act (ATCA), and the Alien Tort Act (ATA).” (internal quotation

marks omitted)).

22

We did not reach the issue on appeal because the plaintiffs did

not appeal that part of the district court’s decision. See Rasul I, 512

F.3d at 661 n.11.

23

Supreme Court has also rejected a similar argument. In United

States v. Smith, 499 U.S. 160 (1991), a former Army sergeant

and his wife sued the Army doctor who delivered their baby in

Italy, alleging the doctor’s negligence caused brain damage to

the baby. The United States sought to substitute itself as the

defendant pursuant to the Gonzalez Act, 10 U.S.C. § 1089,

which “provide[d] that in suits against military medical

personnel for torts committed within the scope of their

employment, the Government is to be substituted as the

defendant and the suit is to proceed against the Government

under the FTCA.” Smith, 499 U.S. at 162-63. While the

plaintiffs’ appeal was pending, the Congress enacted the

Westfall Act. The United States then relied on the Westfall Act,

rather than the Gonzalez Act, to substitute itself as the defendant

and the Supreme Court accordingly considered the Westfall

Act’s applicability. At the time, two courts of appeals had held

that the Gonzalez Act protected “only military medical

personnel who commit torts within the United States and not

those committing torts abroad.” Id. at 171. The Smith plaintiffs

argued their claim was therefore not precluded by the Gonzalez

Act and that their claim fell within the statutory exception to the

Westfall Act because the Gonzalez Act “authorized” their claim.

The Supreme Court rejected the plaintiffs’ argument. It

explained that it “need not decide whether a tort claim brought

under state or foreign law could be deemed authorized by the

Gonzalez Act” because the plaintiffs’ contention “that a claim

for malpractice involves ‘a violation of’ the Gonzalez Act[]is

without merit. Nothing in the Gonzalez Act imposes any

obligations or duties of care upon military physicians.

Consequently, a physician allegedly committing malpractice

under state or foreign law does not ‘violate’ the Gonzalez Act.”

Id. at 174.

More importantly, the Supreme Court has clarified that “the

ATS is a jurisdictional statute creating no new causes of action.”

Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004); id. at 729

24

(“All Members of the Court agree that § 1350 is only

jurisdictional.”). Thus, as with the Gonzalez Act, nothing in the

ATS “imposes any obligations or duties of care upon” the

defendants. Smith, 499 U.S. at 174; accord Bancoult v.

McNamara, 370 F. Supp. 2d 1, 9 (D.D.C. 2004) (“The plain

language of [the ATS] . . . does not confer rights nor does it

impose obligations or duties that, if violated, would trigger the

[Westfall Act’s statutory violation] exception.”), aff’d on other

grounds, 445 F.3d 427 (D.C. Cir. 2006) (dismissing complaint

on political question ground), cert. denied, 549 U.S. 1166

(2007); Schneider v. Kissinger, 310 F. Supp. 2d 251, 266-67

(D.D.C. 2004) (dismissing complaint on political question

ground but holding, alternatively, that ATS “cannot be violated

for purposes of [Westfall Act’s statutory violation exception]”),

aff’d on other grounds, 412 F.3d 190 (D.C. Cir. 2005) (affirming

dismissal as political question), cert. denied, 547 U.S. 1069

(2006). The plaintiffs ask us to ignore the Supreme Court’s

Sosa decision.23 We can no more ignore Supreme Court

precedent than could the district court. Accordingly, we hold

that the plaintiffs’ claim under the ATS alleges a violation of the

law of nations, not of the ATS, and therefore does not violate a

statute of the United States within the meaning of section

2679(b)(2)(B).24

23

The plaintiffs claim the statutory violation exception language

of the Westfall Act is ambiguous and we must therefore look to

legislative history to determine its meaning. Because Sosa issued after

the ATS was enacted, the plaintiffs contend, it “does not shed light on

what Congress meant to include in the statutory violation exception.”

Appellants’ Br. 53.

24

Although the Supreme Court in Sosa stated that “the ATS is a

jurisdictional statute creating no new causes of action,” it nonetheless

concluded “the statute was intended to have practical effect the

moment it became law” and explained that the statute’s jurisdictional

grant “is best read as having been enacted on the understanding that

25

Notwithstanding Sosa’s plain statement that “the ATS is a

jurisdictional statute,” 542 U.S. at 724, the dissent believes the

ATS incorporates the law of nations and that a violation of the

law of nations thus constitutes a violation of the ATS sufficient

to satisfy the Westfall Act’s statutory violation exception. See

Dissenting Op. at 17-25. The respondent in Sosa advanced a

similar argument—“that the ATS was intended not simply as a

jurisdictional grant, but as authority for the creation of a new

the common law would provide a cause of action for the modest

number of international law violations with a potential for personal

liability at the time [the ATS was enacted in 1789].” 542 U.S. at 724.

The Court recognized only three violations—violation of safe

conducts, infringement of the rights of ambassadors and piracy—but

assumed that nothing “categorically precluded federal courts from

recognizing a claim under the law of nations as an element of common

law.” Id. at 724-25.

At the same time the Court held a new cause of action could be

recognized under the ATS, however, it cautioned courts against doing

so, noting that a “series of reasons argue for judicial caution when

considering the kinds of claims that might implement the jurisdiction

conferred by the [ATS].” Id. at 725. The Court noted that its “general

practice has been to look for legislative guidance before exercising

innovative authority over substantive law” and stated it “would be

remarkable to take a more aggressive role in exercising a jurisdiction

that remained largely in shadow for much of the prior two centuries.”

Id. at 726. The Court emphasized “that a decision to create a private

right of action is one better left to legislative judgment in the great

majority of cases.” Id. at 727 (citing Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 68 (2001); Alexander v. Sandoval, 532 U.S. 275, 286-87

(2001)). For that reason, the Court found itself “reluctant to infer . . .

a private cause of action where the statute does not supply one

expressly.” Id. Additionally, “the potential implications for the

foreign relations of the United States of recognizing [a new cause of

action under the ATS] should make courts particularly wary of

impinging on the discretion of the Legislative and Executive Branches

in managing foreign affairs.” Id.

26

cause of action for torts in violation of international law.” 542

U.S. at 713. The Supreme Court rejected “that reading [of the

ATS as] implausible,” explaining that, “[a]s enacted in 1789, the

ATS gave the district courts ‘cognizance’ of certain causes of

action, and the term bespoke a grant of jurisdiction, not power

to mold substantive law.” Id. Moreover, the Court noted, the

positioning of the ATS “in § 9 of the Judiciary Act, a statute

otherwise exclusively concerned with federal-court jurisdiction,

is itself support for its strictly jurisdictional nature.”25 Id. The

Court therefore found it “unsurprising . . . that an authority on

the historical origins of the ATS has written that ‘section 1350

clearly does not create a statutory cause of action,’and that the

contrary suggestion is ‘simply frivolous.’ ” Id. (quoting William

R. Casto, The Federal Courts’ Protective Jurisdiction over Torts

Committed in Violation of the Law of Nations, 18 Conn. L. Rev.

467, 479, 480 (1986)); see also Casto, supra, at 479 (“The

[ATS] is purely jurisdictional, and the first Congress

undoubtedly understood this to be the case.”).

The dissent’s citations to Sosa—and to Filartiga v. Pena-

Irala, 630 F.2d 876 (2d Cir. 1980)—confirm that the ATS is a

jurisdictional statute only and that any claim brought under the

ATS alleges a violation of the law of nations and the common

law, not of the ATS itself. See Dissenting Op. at 3-4, 12, 18-19.

The dissent contends that Supreme Court precedent

establishing “that the domestic law of the United States

recognizes the law of nations,” Sosa, 542 U.S. at 729-30 (citing

25

In this respect, the ATS is easily distinguishable from section

301(a) of the Labor Management Relations Act of 1947 (LMRA), 29

U.S.C. § 185(a). See Dissenting Op. at 24. Section 301(a) is part of

an extensive statutory enactment and, although it speaks only to

federal jurisdiction, other provisions of the LMRA establish

substantive legal duties and rights. See, e.g., 29 U.S.C. §§ 186-87.

The ATS, by contrast, is a stand-alone grant of jurisdiction only.

27

cases), “indicates that section 1350 itself effectively

incorporates the law of nations,” Dissenting Op. at 19. The Sosa

Court’s statement “that the domestic law of the United States

recognizes the law of nations,” however, is best understood to

refer to the common law of the United States, not its statutory

law. The most recent precedent the Court cited to support its

statement confirms this understanding. See Sosa, 542 U.S. at

730 (“ ‘[I]nternational disputes implicating . . . our relations

with foreign nations’ are one of the ‘narrow areas’ in which

‘federal common law’ continues to exist.” (ellipsis in original)

(emphasis added) (quoting Tex. Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981))); see also Dissenting

Op. at 19 (quoting William A. Fletcher, International Human

Rights in American Courts, 93 Va. L. Rev. 653, 665 (2007)).

Sosa unequivocally holds that the ATS is a jurisdictional

statute only. Sosa, 542 U.S. at 729 (“All Members of the Court

agree that § 1350 is only jurisdictional.”). A claim brought

under the ATS therefore does not allege “a violation of a statute

of the United States” satisfying the Westfall Act exception. 28

U.S.C. § 2679(b)(2)(B).

C. The Declaratory Judgment Claim

The plaintiffs also seek a declaration that the acts alleged in

their amended complaint are unlawful and violate the U.S.

Constitution, military rules and guidelines and the law of

nations. Am. Compl. ¶ 264(a). As discussed supra, however,

the plaintiffs have not alleged a cognizable cause of action and

therefore have no basis upon which to seek declaratory relief.

Nor does the Declaratory Judgment Act (DJA), 28 U.S.C.

§ 2201, provide a cause of action. It is a “well-established rule

that the Declaratory Judgment Act ‘is not an independent source

of federal jurisdiction.’ Rather, ‘the availability of [declaratory]

relief presupposes the existence of a judicially remediable

right.’ ” C&E Servs., Inc. of Washington v. D.C. Water & Sewer

Auth., 310 F.3d 197, 201 (D.C. Cir. 2002) (quoting Schilling v.

28

Rogers, 363 U.S. 666, 677 (1960)); see also Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667, 671 (1950) (“The

operation of the Declaratory Judgment Act is procedural only.

Congress enlarged the range of remedies available in the federal

courts but did not extend their jurisdiction.” (internal quotation

marks and citation omitted)).

For the foregoing reasons, we affirm the district court’s

judgment of dismissal.

So ordered.

EDWARDS, Senior Circuit Judge, dissenting: The plaintiff-

appellants in this case allege that they were subjected to acts of

torture and abuse while being detained at U.S. military facilities

in Afghanistan and Iraq. Each appellant was eventually released

without being charged with a crime. Appellants filed suit,

alleging civil claims under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

and the Alien Tort Statute (“section 1350” or “ATS”), 28 U.S.C.

§ 1350, as well as claims for declaratory relief. Following a

motions hearing, the District Court granted the appellees’

separate motions to dismiss. See In re Iraq and Afghanistan

Detainees Litig. (“Detainees Litig.”), 479 F. Supp. 2d 85

(D.D.C. 2007). Although I do not disagree with the court’s

judgment dismissing appellants’ Bivens claims and their claims

for declaratory relief, I dissent from the court’s disposition of

appellants’ claims under section 1350.

Section 1350 says that “[t]he district courts shall have

original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations.” In my view,

the Supreme Court’s decision in Sosa v. Alvarez-Machain, 542

U.S. 692 (2004), confirms that appellants may pursue a cause of

action under section 1350 for deliberate torture perpetrated

under color of official authority, and the Westfall Act does not

bar these claims. It is ironic that, under the majority’s approach,

United States officials who torture a foreign national in a foreign

country are not subject to suit in an action brought under section

1350, whereas foreign officials who commit official torture in a

foreign country may be sued under section 1350.

****

The Government’s interpretation of Sosa, which is endorsed

by the majority, is strikingly incomplete. The Government first

cites a passage from Sosa in which the Court says that the ATS

“is a jurisdictional statute creating no new causes of action.”

Appellees’ Br. at 47 (quoting Sosa, 542 U.S. at 724). From this,

the Government concludes that, “[u]nder Sosa, it is indisputable

2

the ATS is not a federal statute that is capable of being

violated.” Id. at 48.

The Court’s decision in Sosa is much more nuanced than

the Government would have it. And Sosa surely does not

foreclose actions under the ATS seeking redress for official

torture. Rather, contrary to the Government’s claims, Sosa

makes the following critical points:

All Members of the Court agree that § 1350 is only

jurisdictional. We also agree, or at least JUSTICE SCALIA [in

his concurrence] does not dispute, that the jurisdiction was

originally understood to be available to enforce a small

number of international norms that a federal court could

properly recognize as within the common law enforceable

without further statutory authority.

...

Whereas JUSTICE SCALIA sees . . . developments as

sufficient to close the door to further independent judicial

recognition of actionable international norms, other

considerations persuade us that the judicial power should be

exercised on the understanding that the door is still ajar

subject to vigilant doorkeeping, and thus open to a narrow

class of international norms today. Erie [Railroad Co. v.

Tompkins, 304 U.S. 64 (1938),] did not in terms bar any

judicial recognition of new substantive rules, no matter

what the circumstances, and post-Erie understanding has

identified limited enclaves in which federal courts may

derive some substantive law in a common law way.

...

We think it would be unreasonable to assume that the First

Congress would have expected federal courts to lose all

capacity to recognize enforceable international norms

simply because the common law might lose some

3

metaphysical cachet on the road to modern realism. Later

Congresses seem to have shared our view. The position we

take today has been assumed by some federal courts for 24

years, ever since the Second Circuit decided Filartiga v.

Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and for practical

purposes the point of today’s disagreement has been

focused since the exchange between Judge Edwards and

Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F.2d

774 (D.C. Cir. 1984). Congress, however, has not only

expressed no disagreement with our view of the proper

exercise of the judicial power, but has responded to its most

notable instance by enacting legislation supplementing the

judicial determination in some detail.

542 U.S. at 729-31 (citation omitted) (emphasis added). As this

court recently noted in Saleh v. Titan Corp., 580 F.3d 1 (D.C.

Cir. 2009), it is clear that Sosa “opened the door a crack to the

possible recognition of new causes of action under international

law (such as, perhaps, torture) if they were firmly grounded on

an international consensus.” Id. at 14.

It is particularly noteworthy that the Supreme Court’s

opinion in Sosa says: “The position we take today has been

assumed by some federal courts for 24 years, ever since the

Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876

(2d Cir. 1980).” 542 U.S. at 731. Filartiga held that

deliberate torture perpetrated under color of official

authority violates universally accepted norms of the

international law of human rights, regardless of the

nationality of the parties. Thus, whenever an alleged

torturer is found and served with process by an alien within

our borders, § 1350 provides federal jurisdiction.

630 F.2d at 878. The Filartiga court construed section 1350

“not as granting new rights to aliens, but simply as opening the

federal courts for adjudication of the rights already recognized

4

by international law.” Id. at 887; see also Sosa, 542 U.S. at 730

(stating that “the Court is bound by the law of nations which is

a part of the law of the land”) (quoting The Nereide, 13 U.S. (9

Cranch) 388, 423 (1815) (Marshall, C.J.)); Tel-Oren v. Libyan

Arab Republic, 726 F.2d 774, 780 (D.C. Cir. 1984) (Edwards, J.,

concurring) (“[S]ection 1350 itself provides a right to sue for

alleged violations of the law of nations.” (footnote omitted)).

Filartiga is firm in its holding that “there are few, if any,

issues in international law today on which opinion seems to be

so united as the limitations on a state’s power to torture persons

held in its custody.” Id. at 881. This court recently echoed this

view in Saleh, noting that “torture committed by a state is

recognized as a violation of a settled international norm.” 580

F.3d at 15. The Government does not suggest otherwise. So it

is clear beyond debate that official torture violates the law of

nations.

The fact that the plaintiffs in this case have alleged that

United States officials committed torture does not counsel

against a cause of action under the ATS. The statute does not

exclude claims against state actors. And there is no evidence

that recent congressional statutes addressing torture and detainee

treatment, respectively, intended to preempt suits under section

1350. In fact, there is evidence to the contrary.

Only one question remains: Does the Federal Employees

Liability Reform and Tort Compensation Act of 1988 (“Westfall

Act”), Pub. L. No. 100-694, 102 Stat. 4563, bar appellants’ ATS

claims from going forward? After careful consideration of Sosa

and the case law construing the Westfall Act, I am convinced

that the Westfall Act does not bar appellants’ claims. An action

that is cognizable under section 1350 falls within the Westfall

Act’s exception for “violation[s] of a statute of the United States

under which such action[s] against an individual [are] otherwise

authorized,” 28 U.S.C. § 2679(b)(2)(B). The Government

argues that section 1350 cannot fall within this exception

5

because the ATS is merely a jurisdictional statute. Appellees’

Br. at 47. In my view, Sosa requires the opposite conclusion:

Appellants’ claims arising under section 1350 must fall within

the statutory exception to the Westfall Act, because the ATS is

a federal statute that incorporates substantive international

norms and thereby directly authorizes recovery for deliberate

torture perpetrated under color of official authority.

The Government ignores the fact that section 1350, unlike

the congressional grant of federal question jurisdiction, “was

enacted on the congressional understanding that courts would

exercise jurisdiction by entertaining some common law claims

derived from the law of nations.” Sosa, 542 U.S. at 731 n.19.

“Unlike section 1331, which requires that an action ‘arise under’

the laws of the United States, section 1350 does not require that

the action ‘arise under’ the law of nations, but only mandates a

‘violation of the law of nations’ in order to create a cause of

action.” Tel-Oren, 726 F.2d at 779 (Edwards, J., concurring).

Section 1350 incorporates the law of nations – including the

prohibition against deliberate torture perpetrated under color of

official authority – that can be “violated” within the meaning of

the section 2679(b)(2)(B) exception to the Westfall Act. I

therefore conclude that, on the record before us, the District

Court has jurisdiction over appellants’ complaint alleging

official torture and the appellants have a viable cause of action.

Consequently, the District Court erred when it dismissed

appellants’ claims arising under section 1350.

I. BACKGROUND

A. The United States Has Consistently and Repeatedly

Condemned the Use of Torture

“Torture has long been illegal” in our nation. 151 CONG.

REC. 30,756 (2005) (statement of Sen. Graham). Domestically,

torture, along with other punishments of “unnecessary cruelty,”

has been proscribed as a violation of the Eighth Amendment

6

since the nineteenth century. Estelle v. Gamble, 429 U.S. 97,

102 (1976) (citing Wilkerson v. Utah, 99 U.S. 130, 136 (1879)).

Congress has also prohibited torture that occurs abroad, making

such conduct a federal crime punishable by fines and up to 20

years of imprisonment, and even life imprisonment or death

should the torture result in a fatality. 18 U.S.C. § 2340A.

Congress further created a cause of action against any individual

who commits torture “under actual or apparent authority, or

color of law, of any foreign nation,” regardless of the victim’s

nationality or the geographic location of the alleged acts.

Torture Victim Protection Act (“TVPA”), Pub. L. No. 102-256,

§ 2(a), 106 Stat. 73, 73 (1992) (codified in 28 U.S.C. § 1350

(note)).

Within the context of a military conflict, Congress has

declared, in both the Detainee Treatment Act of 2005 (“DTA”)

and the Military Commissions Act of 2006 (“2006 MCA”), that

“[n]o individual in the custody or under the physical control of

the United States Government, regardless of nationality or

physical location, shall be subject to cruel, inhuman, or

degrading treatment or punishment,” DTA, Pub. L. No. 109-148,

div. A, title X, § 1003(a), 119 Stat. 2680, 2739 (codified at 42

U.S.C. § 2000dd(a)); 2006 MCA, Pub. L. No. 109-366,

§ 6(c)(1), 120 Stat. 2600, 2635 (codified at 42 U.S.C. § 2000dd-

0(1)), and has further prohibited any “treatment or technique of

interrogation not authorized by and listed in the United States

Army Field Manual on Intelligence Interrogation.” DTA, Pub.

L. No. 109-148, div. A, title X, § 1002(a), 119 Stat. at 2739

(codified at 10 U.S.C. § 801 (note)). See also 18 U.S.C. § 2441

(making war crimes committed by or against a member of the

U.S. Armed Forces or a U.S. national punishable by fine,

imprisonment, and/or death, regardless of where the crime

occurred).

The Executive Branch has been similarly resolute in its

prohibition of torture. The United States signed the Convention

7

Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“Convention Against Torture”) in

1988. In 2000, the U.S. Department of State, with input from

the Department of Justice and other federal departments and

agencies, submitted its initial compliance report to the United

Nations Committee Against Torture, which stated:

Torture is prohibited by law throughout the United States.

It is categorically denounced as a matter of policy and as a

tool of state authority. Every act constituting torture under

the [United Nations] Convention [Against Torture]

constitutes a criminal offence under the law of the United

States. No official of the Government, federal, state or

local, civilian or military, is authorized to commit or to

instruct anyone else to commit torture. Nor may any

official condone or tolerate torture in any form. No

exceptional circumstances may be invoked as a justification

of torture. United States law contains no provision

permitting otherwise prohibited acts of torture or other

cruel, inhuman or degrading treatment or punishment to be

employed on grounds of exigent circumstances (for

example, during a “state of public emergency”) or on orders

from a superior officer or public authority, and the

protective mechanisms of an independent judiciary are not

subject to suspension. The United States is committed to

the full and effective implementation of its obligations

under the Convention throughout its territory.

Initial Report of the United States of America to the United

Nations Committee Against Torture ¶ 6, U.N. DOC.

CAT/C/28/Add.5 (Feb. 9, 2000).

Specifically with regard to military detainees, President

George W. Bush, in a statement issued in 2004, affirmed that

America stands against and will not tolerate torture. . . .

American personnel are required to comply with all U.S.

8

laws, including the United States Constitution, Federal

statutes, including statutes prohibiting torture, and our

treaty obligations with respect to the treatment of all

detainees. . . . Torture is wrong no matter where it occurs,

and the United States will continue to lead the fight to

eliminate it everywhere.

Statement on United Nations International Day in Support of

Victims of Torture, 40 WEEKLY COMP. PRES. DOC. 1167, 1167-

68 (June 26, 2004). In 2009, President Barack Obama, through

an executive order, instructed that “[detainees] shall in all

circumstances be treated humanely and shall not be subjected to

violence to life and person (including murder of all kinds,

mutilation, cruel treatment, and torture), nor to outrages upon

personal dignity (including humiliating and degrading

treatment).” Exec. Order No. 13,491, 3 C.F.R. 199, 200 (2009).

See also id. at 200-01 (“Effective immediately, an individual in

the custody or under the effective control of an officer,

employee, or other agent of the United States Government, or

detained within a facility owned, operated, or controlled by a

department or agency of the United States, in any armed

conflict, shall not be subjected to any interrogation technique or

approach, or any treatment related to interrogation, that is not

authorized by and listed in Army Field Manual 2-22.3.”).

B. Official Torture Violates the Law of Nations

The United States’ condemnation of official torture is

simply a reflection of a firmly established international norm:

Torture perpetrated under color of official authority

unequivocally violates the law of nations. Every circuit that has

addressed the issue has concluded that official torture violates

customary international law. See, e.g., Kiobel v. Royal Dutch

Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010); id. at 155

(Leval, J., concurring in the judgment); Aldana v. Del Monte

Fresh Produce, N.A., Inc., 416 F.3d 1242, 1250-53 (11th Cir.

2005) (per curiam); Kadic v. Karadžić, 70 F.3d 232, 243-44 (2d

9

Cir. 1995); Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th

Cir. 1994); Tel-Oren, 726 F.2d at 788 (Edwards, J., concurring);

id. at 819-20 (Bork, J., concurring). Indeed, the Supreme Court

in Sosa favorably cited the Second Circuit’s statement in

Filartiga that “the torturer has become . . . an enemy of all

mankind.” 542 U.S. at 732 (quoting Filartiga, 630 F.2d at 890);

see also id. at 762 (Breyer, J., concurring) (“Today international

law will sometimes similarly reflect not only substantive

agreement as to certain universally condemned behavior but also

procedural agreement that universal jurisdiction exists to

prosecute a subset of that behavior. That subset includes torture,

genocide, crimes against humanity, and war crimes.” (citation

omitted)).

International agreements signed by the United States

support the conclusion that torture is a violation of customary

international law. Article 2 of the Convention Against Torture

provides that “[e]ach State Party shall take effective legislative,

administrative, judicial or other measures to prevent such acts of

torture in any territory under its jurisdiction.” Art. II, para. 1,

signed Apr. 18, 1988, S. TREATY DOC. NO. 100-20, 1465

U.N.T.S. 85; see also S. EXEC. REP. NO. 101-30, at 13 (1990)

(noting that definition of torture in the Convention Against

Torture “correspond[s] to the common understanding of torture

as an extreme practice which is universally condemned”). In

addition, the Geneva Convention of 1949, art. 3 (“Common

Article 3”), prohibits torture “at any time and in any place” in an

“armed conflict not of an international character.” See Hamdan

v. Rumsfeld, 548 U.S. 557, 630 (2006) (explaining that the

phrase “conflict not of an international character” was used in

contradistinction to Geneva Convention Common Article 2’s

application to conflicts between nations, such that Common

Article 3 applies to the United States’ conflict with al Qaeda).

Ever since the Vietnam War – the first war in which the United

States had to consider the Geneva Convention’s application to

prisoners in an insurgency environment – United States military

10

policy has been to apply Common Article 3 to all detainees

upon capture. JAMES F. GEBHARDT, THE ROAD TO ABU GHRAIB:

US ARMY DETAINEE DOCTRINE AND EXPERIENCE 120 (2005);

see also William H. Taft, IV, The Law of Armed Conflict After

9/11: Some Salient Features, 28 YALE J. INT’L L. 319, 321

(2003) (“Terrorists forfeit any claim to POW status under the

laws of armed conflict, but they do not forfeit their right to

humane treatment – a right that belongs to all humankind, in war

and in peace.”).

In sum, there is universal agreement “in the modern usage

and practice of nations,” Filartiga, 630 F.2d at 883, that official

torture violates the law of nations. Any court addressing torture

does not write on a clean slate.

II. ANALYSIS

A. Appellants Have a Cause of Action Under Section 1350

To Seek Redress for Official Torture

The Alien Tort Statute, 28 U.S.C. § 1350, reads as follows:

“The district courts shall have original jurisdiction of any civil

action by an alien for a tort only, committed in violation of the

law of nations or a treaty of the United States.” The statute was

passed by Congress as part of the Judiciary Act of 1789, ch. 20,

§ 9, 1 Stat. 73, 77, but it was not much cited before the Second

Circuit’s 1980 decision in Filartiga. See 630 F.2d 876 (holding

that a cause of action for official torture is cognizable under

section 1350). Filartiga led to the well-chronicled debate in

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir.

1984), between Judge Bork and me about the purpose and scope

of section 1350.

In Tel-Oren, I argued that section 1350 provided both

federal jurisdiction and “a right to sue for alleged violations of

the law of nations,” i.e., customary international law. Id. at 780.

I went on to emphasize

11

the extremely narrow scope of section 1350 jurisdiction

under the Filartiga formulation. Judge Kaufman

characterized the torturer in Filartiga as follows: “Indeed,

for purposes of civil liability, the torturer has become – like

the pirate and slave trader before him – hostis humani

generis, an enemy of all mankind.” Filartiga, 630 F.2d at

890. The reference to piracy and slave-trading is not

fortuitous. Historically these offenses held a special place

in the law of nations: their perpetrators, dubbed enemies of

all mankind, were susceptible to prosecution by any nation

capturing them.

Id. at 781.

Judge Bork viewed section 1350 differently. He argued that

“it is essential that there be an explicit grant of a cause of action

before a private plaintiff be allowed to enforce principles of

international law in a federal tribunal.” Id. at 801 (Bork, J.,

concurring); see also id. (criticizing the Filartiga court’s

assumed cause of action under section 1350 as “fundamentally

wrong and certain to produce pernicious results”). Judge Bork

also tentatively indicated that only offenses akin to the principal

offenses against the law of nations cited by Blackstone –

violation of safe conducts, infringement of the rights of

ambassadors, and piracy – would be actionable under the statute.

Id. at 813-16.

Both Judge Bork and I agreed that the function and scope of

section 1350 needed clarification from the Supreme Court. Id.

at 775 (Edwards, J., concurring) (“This case deals with an area

of the law that cries out for clarification by the Supreme

Court.”); id. at 823 (Bork, J., concurring) (“Since section 1350

appears to be generating an increasing amount of litigation, it is

to be hoped that clarification will not be long delayed.”). The

Supreme Court obliged in Sosa.

12

The issue before the Supreme Court in Sosa was whether

respondent Alvarez, a Mexican citizen, could bring a claim

against petitioner Sosa, a Mexican citizen hired by the Drug

Enforcement Administration, for an alleged violation of the law

of nations arising from his arbitrary detention. The Court first

noted that “[section 1350] was intended as jurisdictional,” Sosa,

542 U.S. at 714, and that it “creat[ed] no new causes of action,”

id. at 724. However, the Court did not stop there. Rather, it

held that

[t]he jurisdictional grant is best read as having been enacted

on the understanding that the common law would provide

a cause of action for the modest number of international law

violations with a potential for personal liability at the

time. . . . We assume, too, that no development in the two

centuries from the enactment of § 1350 to the birth of the

modern line of cases beginning with Filartiga v. Pena-Irala

has categorically precluded federal courts from recognizing

a claim under the law of nations as an element of common

law; Congress has not in any relevant way amended § 1350

or limited civil common law power by another statute.

Still, there are good reasons for a restrained conception of

the discretion a federal court should exercise in considering

a new cause of action of this kind. Accordingly, we think

courts should require any claim based on the present-day

law of nations to rest on a norm of international character

accepted by the civilized world and defined with a

specificity comparable to the features of the 18th-century

paradigms we have recognized.

Id. at 724-25 (citation omitted). The Court thus plainly rejected

Judge Bork’s suggestion that only violations of the law of

nations extant as of 1789 could be brought pursuant to the ATS.

See id. at 729 (rejecting Justice Scalia’s argument that federal

courts should be precluded from “recognizing any further

international norms as judicially enforceable today”).

13

Ultimately, the Court in Sosa rejected the respondent’s

complaint on the ground that arbitrary detention did not violate

a “norm of customary international law so well defined as to

support the creation of a federal remedy.” Id. at 738. However,

the Court surely did not foreclose a cause of action under section

1350 based on allegations of official torture. Quite the contrary.

Sosa “opened the door” to causes of action – such as official

torture – that are “firmly grounded on an international

consensus.” Saleh, 580 F.3d at 14.

B. Torture Committed by U.S. Officials Is Actionable

Under the ATS

In this case, appellants allege that they were detained in

U.S. military custody in Afghanistan and Iraq and subjected to

“torture and other cruel, inhuman or degrading treatment or

punishment” as a result of “the orders and derelictions of

Defendant [Donald] Rumsfeld and high-level commanders.”

Consolidated Am. Compl. for Declaratory Relief and Damages

¶¶ 1, 8 (Jan. 5, 2006), reprinted in Appendix 25, 27. The

definition of torture is a matter of some controversy, see, e.g.,

Judith Resnik, Detention, The War on Terror, and the Federal

Courts, 110 COLUM. L. REV. 579, 608-16 (2010), to be decided

by the District Court in the first instance. Assuming, however,

that the offenses articulated in appellants’ complaint constituted

torture – which the Government does not dispute in its brief – I

believe that appellants’ claims are actionable under section

1350.

Having established that the ATS grants a cause of action for

clear and definite violations of the law of nations, the next

question is whether an alien may sue a state actor under section

1350 to seek redress for torture. I can find nothing in the text or

history of section 1350 to warrant excluding state actors from its

coverage.

14

The plain text of section 1350 – “[t]he district courts shall

have original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a treaty of

the United States” – does not exclude lawsuits against state

actors. There continues to be much debate about the origin and

original purpose of section 1350. See, e.g., Thomas H. Lee, The

Safe-Conduct Theory of the Alien Tort Statute, 106 COLUM. L.

REV. 830 (2006); William S. Dodge, The Historical Origins of

the Alien Tort Statute: A Response to the “Originalists,” 19

HASTINGS INT’L & COMP. L. REV. 221 (1996); William R. Casto,

The Federal Courts’ Protective Jurisdiction over Torts

Committed in Violation of the Law of Nations, 18 CONN. L. REV.

467 (1986). However, I can find no compelling evidence in

these or any other articles, the words of the statute itself,

legislative materials, or the applicable case law to suggest that,

in enacting section 1350, Congress made a “legislative

judgment,” Sosa, 542 U.S. at 727, to preclude suits against U.S.

officials brought under section 1350. The same holds true for

Congress’ more recent enactments of the TVPA, the DTA, and

the 2006 MCA. In fact, as noted in Part I, supra, both the

Legislative and Executive Branches have long condemned

torture perpetrated under color of official authority. Not only

has torture been condemned, “[t]orture has long been illegal” in

our nation. 151 CONG. REC. 30,756 (2005) (statement of Sen.

Graham).

Although the Supreme Court has held that “special factors”

counsel against a remedy for a constitutional violation under

Bivens whenever the injury arises out of activity “incident to

[military] service,” United States v. Stanley, 483 U.S. 669, 681

(1987) (internal quotation marks omitted); see also Chappell v.

Wallace, 462 U.S. 296 (1983) (denying Bivens action to military

personnel suing superior officers for injuries sustained in course

of military service), this reasoning does not translate to actions

brought pursuant to section 1350. This is so because, when

section 1350 was enacted, Congress expressly gave the federal

15

courts jurisdiction over “[torts] committed in violation of the

law of nations.” 28 U.S.C. § 1350. See Sosa, 542 U.S. at 724

(noting that section 1350 “is best read as having been enacted on

the understanding that the common law would provide a cause

of action for the modest number of international law violations

with a potential for personal liability at the time”). By contrast,

constitutional claims under Bivens are not brought pursuant to

any statute; the Supreme Court in Bivens “fashion[ed] a new,

judicially crafted cause of action,” Correctional Servs. Corp. v.

Malesko, 534 U.S. 61, 68 (2001), without relying on a

congressional imprimatur akin to section 1350.

This court’s recent holding in Saleh that a private

government contractor could not be liable for torture under

section 1350 also does not control the disposition of this case.

Unlike the appellants in the current case, who seek relief against

state actors both in their individual and official capacities, the

plaintiffs in Saleh were “unwilling to assert that the contractors

[were] state actors.” 580 F.3d at 15. Saleh’s holding – that,

“[a]lthough torture committed by a state is recognized as a

violation of a settled international norm, that cannot be said of

private actors,” id. – therefore has no bearing on the availability

of a cause of action under section 1350 based on allegations of

deliberate torture perpetrated under color of official authority.

The Saleh decision also points out that, although “Congress

has frequently legislated on [the subjects of torture and war

crimes] in such statutes as the TVPA, the Military Commissions

Act, 10 U.S.C. § 948a et seq., the federal torture statute, 18

U.S.C. 2340-2340A, the War Crimes Act, 18 U.S.C. § 2441, and

the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq.,”

it has never created a cause of action for victims of torture

committed by private contractors. 580 F.3d at 16. But again,

these facts are of little moment here because this case involves

state actors, not private contractors, and all of the statutes cited

in Saleh were passed long after the Second Circuit’s landmark

16

decision in Filartiga recognized a cause of action for official

torture under section 1350. Furthermore, neither the text of the

aforementioned statutes nor the coinciding legislative histories

indicate any intent by Congress to limit or preempt Filartiga’s

interpretation of section 1350. In fact, there are congressional

statements to the contrary. See S. REP. NO. 102-249, at 4 (1991)

(noting that “[s]ection 1350 has other important uses and should

not be replaced” by TVPA); H.R. REP. NO. 102-367, at 3 (1991),

reprinted in 1992 U.S.C.C.A.N. 86 (same); 151 CONG. REC.

30,757 (2005) (statement of Sen. McCain) (noting that torture-

related provisions of the Detainee Treatment Act, which were

re-passed as part of the 2006 MCA, “do not eliminate or

diminish any private right of action otherwise available”).

Finally, although this court in Sanchez-Espinoza v. Reagan,

770 F.2d 202, 206-07 (D.C. Cir. 1985), appeared to hold that no

suits can be brought under section 1350 against U.S. officials in

their personal capacities, Congress superseded this holding when

it passed the Westfall Act. Sanchez-Espinoza is inapposite

because the court dismissed the plaintiffs’ claims in that case on

the ground of common law immunity. We know, however, that

Congress may override a judicial decision resting on a common

law principle. See City of Milwaukee v. Illinois, 451 U.S. 304,

315 (1981) (“[T]he question [is] whether the legislative scheme

spoke directly to a question . . . not whether Congress had

affirmatively proscribed the use of federal common law.”

(quotation omitted)); see also id. at 317 (“[W]e start with the

assumption that it is for Congress, not federal courts, to

articulate the appropriate standards to be applied as a matter of

federal law.” (footnote and internal quotation marks omitted)).

Congress did just that when it passed the Westfall Act.

The Westfall Act “limits the relief available to persons

injured by Government employees acting within the scope of

their employment.” United States v. Smith, 499 U.S. 160, 161

(1991). However, what is significant here is that the Westfall

17

Act excepts from its grant of immunity all civil actions “brought

for a violation of the Constitution of the United States” or

“brought for a violation of a statute of the United States under

which such action against an individual is otherwise

authorized.” 28 U.S.C. §§ 2679(b)(2)(A), (b)(2)(B).

In my view, Congress’ decision to overrule Westfall v.

Erwin, 484 U.S. 292 (1988), and to codify the official immunity

doctrine, including the section 2679(b)(2)(A) and (b)(2)(B)

exceptions – which are explicit waivers of immunity – clearly

preempted any preexisting common law applications of

immunity with respect to the same matters. See Westfall, 484

U.S. at 300 (“Congress is in the best position to provide

guidance for the complex and often highly empirical inquiry into

whether absolute immunity is warranted in a particular

context.”). There is no qualifier to section 2679(b)(2)(B) for

situations in which “the basis for jurisdiction requires action

authorized by the sovereign as opposed to private wrongdoing,”

Sanchez-Espinoza, 770 F.2d at 207, nor is there any indication

in the legislative history that Congress intended for such an

exception to apply, H.R. REP. 100-700 (1988), reprinted in 1988

U.S.C.C.A.N. 5945. The availability of immunity from section

1350 actions therefore depends on the application of the

Westfall Act.

C. Does the Westfall Act Bar Claims Asserting Official

Torture?

Federal courts, with “great caution,” are authorized by

statute to recognize a cause of action under section 1350 for

“definite” and “accept[ed]” violations of the law of nations.

Sosa, 542 U.S. at 732. The United States has consistently and

repeatedly condemned the use of official torture. And it is

undisputed that “deliberate torture perpetrated under color of

official authority violates universally accepted norms of the

international law of human rights, regardless of the nationality

of the parties.” Filartiga, 630 F.2d at 878. However, in order

18

for appellants’ suits for official torture to proceed, they must fall

within the Westfall Act’s exception for actions “brought for a

violation of a statute of the United States under which such

action against an individual is otherwise authorized.” 28 U.S.C.

§ 2679(b)(2)(B) (emphasis added).

The answer to the question whether the Westfall Act bars

appellants’ claims turns on how section 1350 is viewed. There

are at least two possible constructions of the ATS:

(1) the ATS is a statute that merely serves as a

jurisdictional vehicle for violations of the law of

nations; or

(2) the ATS itself incorporates the law of nations and

furnishes jurisdiction over causes of action based on

violations of definite and accepted principles under the

law of nations.

If the latter construction is correct, it follows that section 1350

is capable of being violated. This is not an easy issue, and I

would be naive to suggest otherwise. But because I conclude

that the ATS incorporates the law of nations, I believe that it is

a “statute” that fits the Westfall Act exception.

1. The ATS “Incorporates” the Law of Nations, and It

Would Be Ironic To Conclude Otherwise

The Court in Sosa made clear that section 1350 differs from

other jurisdictional statutes, such as 28 U.S.C. § 1331, because

it allows courts to entertain claims derived from the law of

nations. See Stephen Satterfield, Note, Still Crying Out for

Clarification: The Scope of Liability Under the Alien Tort

Statute After Sosa, 77 GEO. WASH. L. REV. 216, 221-22 (2008)

(deeming section 1350 an “‘interactive’ jurisdictional statute”

because it “laid the jurisdictional foundation that allowed the

newly formed district courts to hear causes of action arising

under the law of nations”). As the Court says in Sosa, “the ATS

19

was meant to underwrite litigation of a narrow set of common

law actions derived from the law of nations.” 542 U.S. at 721.

Therefore, pursuant to the ATS, federal courts have an

obligation to recognize causes of action based on clear and

definite violations of the law of nations. And, as the Court

noted, the law of nations may be enforced under section 1350

“without further statutory authority.” Id. at 729 (emphasis

added).

In assessing the ATS, Sosa read the Court’s precedents to

hold that

• “United States courts apply international law as a part

of our own in appropriate circumstances”;

• “International law is part of our law, and must be

ascertained and administered by the courts of justice of

appropriate jurisdiction, as often as questions of right

depending upon it are duly presented for their

determination”; and

• “The Court is bound by the law of nations which is a

part of the law of the land.”

Sosa, 542 U.S. at 729-30 (brackets and citations omitted). As

Judge William A. Fletcher has noted, “[t]he Court’s decision [in

Sosa] . . . necessarily implies that the federal common law of

customary international law is federal law in the supremacy-

clause sense.” William A. Fletcher, International Human Rights

in American Courts, 93 VA. L. REV. 653, 665 (2007). To me,

this indicates that section 1350 itself effectively incorporates the

law of nations.

My line of analysis can be disputed. What cannot be

doubted, however, is that it would be ironic to conclude that the

Westfall Act bars claims resting on allegations of official

torture. Under the majority’s approach, despite the fact that

torture has long been illegal under United States law, see supra,

20

a United States official who tortures a foreign national in a

foreign country is not subject to suit in an action brought under

section 1350, whereas a foreign official who tortures a foreign

national in a foreign country may be sued under section 1350.

E.g., Filartiga, 630 F.2d 876 (allowing action to proceed under

section 1350 against Paraguayan official for torture committed

in Paraguay).

This is a bizarre result, because, in enacting the Westfall

Act, Congress apparently meant only to immunize common-law

torts against federal officials. See H.R. REP. NO. 100-700, at 2

(1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5945 (noting that

purpose of bill was to “provide immunity for Federal employees

from personal liability for common law torts committed within

the scope of their employment” (emphasis added)); id. at 6,

reprinted in 1988 U.S.C.C.A.N. at 5950 (“Common law torts are

the routine acts or omissions which occur daily in the course of

business and which have been redressed in an evolving manner

by courts for, at least, the last 800 years.”); see generally Karen

Lin, Note, An Unintended Double Standard of Liability: The

Effect of the Westfall Act on the Alien Tort Claims Act, 108

COLUM. L. REV. 1718, 1740-45 (2008) (arguing that Congress

only intended the Westfall Act to apply to state-law torts).

Indeed, the Supreme Court’s decision in Westfall v. Erwin, 484

U.S. 292 (1988), which Congress specifically overruled in

passing the Westfall Act, addressed immunity in the context of

a common-law negligence suit against federal employees. There

is no evidence to indicate that Congress meant to address or

foreclose actions under section 1350 brought against federal

officials for torture; clear violations of the law of nations, such

as torture, are not akin to the types of “routine acts or

omissions” that Congress appears to have had in mind.

Therefore, it is ironic, to say the least, that “[t]he Westfall

Act . . . has proved to be a practically ‘impenetrable shield’ for

[ATS] claimants against individual U.S. officials.” Lin, 108

COLUM. L. REV. at 1736-37.

21

2. Deconstructing the Westfall Act

The Westfall Act provides as follows:

The remedy against the United States provided by [the

Federal Tort Claims Act] for injury or loss of property, or

personal injury or death arising or resulting from the

negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office

or employment is exclusive of any other civil action or

proceeding for money damages by reason of the same

subject matter against the employee whose act or omission

gave rise to the claim or against the estate of such

employee. Any other civil action or proceeding for money

damages arising out of or relating to the same subject

matter against the employee or the employee’s estate is

precluded without regard to when the act or omission

occurred.

28 U.S.C. § 2679(b)(1) (emphases added). In sum, the Westfall

Act prohibits civil suits against U.S. employees in their

individual capacities arising out of the scope of their

employment.

As noted above, however, the Westfall Act excepts from its

grant of immunity all civil actions “brought for a violation of the

Constitution of the United States” or “brought for a violation of

a statute of the United States under which such action against an

individual is otherwise authorized.” 28 U.S.C. §§ 2679(b)(2)(A),

(b)(2)(B).

Appellants argue that their section 1350 claims fall within

the Westfall Act’s exception for “violation[s] of a statute of the

United States under which such action[s] against an individual

[are] otherwise authorized.” 28 U.S.C. § 2679(b)(2)(B). In

response, the Government relies on the Supreme Court’s

decision in United States v. Smith, 499 U.S. 160 (1991), to

support the proposition that “this exception to the Westfall

22

Act . . . [applies] only to federal statutes that provide both a

cause of action and the substantive law which the employee is

alleged to have violated.” Appellees’ Br. at 47 (emphasis in

original). The Government also refers to the Ninth Circuit’s

decision in Alvarez-Machain v. United States, 331 F.3d 604 (9th

Cir. 2003) (en banc), rev’d on other grounds sub nom. Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004).

The Ninth Circuit concluded that “a claim under the [ATS]

is based on a violation of international law, not of the [ATS]

itself.” 331 F.3d at 631. Several district courts have followed

this line of analysis. See, e.g., Al-Zahrani v. Rumsfeld, 684 F.

Supp. 2d 103, 114-16 (D.D.C. 2010); Rasul v. Rumsfeld, 414 F.

Supp. 2d 26, 37-38 (D.D.C. 2006) (issue not appealed);

Bancoult v. McNamara, 370 F. Supp. 2d 1, 9-10 (D.D.C. 2004).

In my view, these decisions are flawed, because they fail to

acknowledge a critical distinction between the Gonzalez Act –

the statute at issue in Smith – and section 1350.

The Gonzalez Act, like the Westfall Act, is a grant of

federal employee immunity. Specifically, it provides that “in

suits against military medical personnel for torts committed

within the scope of their employment, the Government is to be

substituted as the defendant.” Smith, 499 U.S. at 162 (citing 10

U.S.C. §§ 1089(a), (b)). In Smith, the plaintiffs sued a U.S.

military physician for negligence in federal court, and the United

States sought to substitute itself for the physician under the

Westfall Act. The plaintiffs objected, arguing that their claim

would have been permitted under the Gonzalez Act due to an

implicit exception in that statute, and that, as a result, the claim

should be exempted from Westfall Act immunity due to

§ 2679(b)(2)(B)’s exception for claims brought pursuant to a

federal statute. The Supreme Court disagreed, holding that:

“[n]othing in the Gonzalez Act imposes any obligations or

duties of care upon military physicians. Consequently, a

physician allegedly committing malpractice under state or

23

foreign law does not ‘violate’ the Gonzalez Act.” Smith, 499

U.S. at 174.

The Court’s decision in Smith seems plainly inapposite

here. In contrast to the Gonzalez Act, section 1350 is a statute

enabling the federal courts to impose liability – not limit

liability. Because section 1350 expressly incorporates the “law

of nations,” it is a statute that can be violated.

3. The ATS Is Not a Jurisdictional Statute Akin to

Section 1331 – It Is Therefore a “Statute” Sufficient

To Satisfy the Westfall Act Exception

The Supreme Court emphasized in Sosa that, in comparing

the ATS with the grant of federal-question jurisdiction, 28

U.S.C. § 1331, “[s]ection 1350 was enacted on the congressional

understanding that courts would exercise jurisdiction by

entertaining some common law claims derived from the law of

nations; and we know of no reason to think that federal-question

jurisdiction was extended subject to any comparable

congressional assumption.” 542 U.S. at 731 n.19. Thus, if

Congress repealed section 1350, federal courts would have no

authority today to recognize common law causes of action for

violations of customary international law, such as torture. See

Mohamed v. Rajoub, 634 F.3d 604, 609-10 (D.C. Cir. 2011)

(holding that appellant had no cause of action for violation of

customary international law pursuant to 28 U.S.C. § 1331); see

also Sosa, 542 U.S. at 712 (“[W]e think that at the time of

enactment [of the ATS] the jurisdiction enabled federal courts

to hear claims in a very limited category defined by the law of

nations and recognized at common law.”). This makes section

1350 inherently different from other jurisdictional statutes, such

as section 1331, and quite different from the Gonzalez Act. See

generally Satterfield, 77 GEO. WASH. L. REV. at 221-22;

William S. Dodge, Bridging Erie: Customary International Law

in the U.S. Legal System After Sosa v. Alvarez-Machain, 12

TULSA J. COMP. & INT’L L. 87, 97-100 (2004) (analyzing Sosa’s

24

discussion of congressional intent in enacting section 1350 as

compared to section 1331).

Section 1350 parallels section 301(a) of the Labor

Management Relations Act of 1947. Section 301(a) provides

that

Suits for violation of contracts between an employer and a

labor organization representing employees in an industry

affecting commerce as defined in this chapter, or between

any such labor organizations, may be brought in any district

court of the United States having jurisdiction of the parties,

without respect to the amount in controversy or without

regard to the citizenship of the parties.

29 U.S.C. § 185(a). In Textile Workers Union of America v.

Lincoln Mills of Alabama, 353 U.S. 448 (1957), the Supreme

Court held that section 301(a) “authorizes federal courts to

fashion a body of federal law for the enforcement of these

collective bargaining agreements,” 353 U.S. at 451 – despite the

fact that the plain text of this provision only speaks to federal

jurisdiction. See also Sosa, 542 U.S. at 726 (citing Lincoln Mills

as an example of a “haven” of federal common law). Just as

section 301(a) provides jurisdiction and allows federal courts to

create federal common law to enforce collective bargaining

agreements, section 1350 provides jurisdiction and allows

federal courts to create a federal common law remedy for

definite and accepted violations of customary international law.

In other words, it is section 1350, not international law, that

gives federal courts the authority to enforce “international norms

that a federal court c[an] properly recognize as within the

common law enforceable without further statutory authority.”

Sosa, 542 U.S. at 729 (emphasis added). This makes section

1350 “statutory authority” sufficient to satisfy the Westfall Act

exception.

25

It might be argued that Smith should be read to bar the

Westfall Act exception from applying here, because section

1350 does not explicitly incorporate the law of nations. That

was the view taken by the Ninth Circuit, even as that court

acknowledged that the Gonzalez Act and section 1350 have very

different purposes. See Alvarez-Machain, 266 F.3d at 1054.

Although this argument is not without force, I disagree. Like

section 301(a), as interpreted by the Court in Lincoln Mills, a

federal statute may incorporate enforceable substantive rights

even though the statute does not spell out the details of those

rights. It is true that Sosa says that, since Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938), “the general practice has been to

look for legislative guidance before exercising innovative

authority over substantive law,” Sosa, 542 U.S. at 726; but Sosa

opened the door to the recognition of causes of action alleging

wrongs – such as official torture – that violate the law of

nations.

In short, I believe that Smith has no application here,

because, as noted above, Smith was focused on the Gonzalez

Act, not section 1350. Unlike the Gonzalez Act, section 1350 is

a statute authorizing the federal courts to impose liability – not

limit liability. I therefore conclude that section 1350 fits within

the exception to the Westfall Act for “violation[s] of a statute of

the United States under which such action[s] against an

individual [are] otherwise authorized,” 28 U.S.C.

§ 2679(b)(2)(B). Accordingly, I dissent from the majority’s

disposition of appellants’ claims under section 1350.

III. CONCLUSION

Twenty-seven years ago, in Tel-Oren, I said that “[t]his case

deals with an area of the law that cries out for clarification by

the Supreme Court.” 726 F.2d at 775. I say the same again

here.

26

I thought that the Court’s decision in Sosa afforded the

lower federal courts the amplification and clarification necessary

to understand how to process claims properly brought under

section 1350. Obviously, I was mistaken. Some of my

colleagues on the federal bench believe that the Westfall Act

takes away what the ATS gives insofar as it allows causes of

action against state actors who perpetrate torture under the color

of official authority. Ultimately, after careful consideration of

this difficult question, I think the decisions that have endorsed

this approach are misguided.

Even if ATS actions against state actors were barred by

principles of common law immunity, as this court thought in

Sanchez-Espinoza, I believe that Congress vitiated that

immunity when it enacted the Westfall Act. In my view,

Congress’ decision to overrule Westfall v. Erwin, 484 U.S. 292

(1988), and to codify the official immunity doctrine, including

the 28 U.S.C. § 2679(b)(2)(A) and (b)(2)(B) exceptions – which

are explicit waivers of immunity – clearly preempted any

preexisting common-law applications of immunity with respect

to the same matters. And I believe that actions that are

cognizable under section 1350 – such as allegations of official

torture – fall within the Westfall Act’s exception for

“violation[s] of a statute of the United States under which such

action[s] against an individual [are] otherwise authorized.” Id.

§ 2679(b)(2)(B). On this last point, I agree with Judge Fletcher

that Sosa “necessarily implies that the federal common law of

customary international law is federal law in the supremacy-

clause sense.” William A. Fletcher, International Human Rights

in American Courts, 93 VA. L. REV. 653, 665 (2007). For me

this means that it is section 1350, not international law, that

gives federal courts the authority to enforce international norms

that a federal court can properly recognize as within the

common law enforceable “without further statutory authority.”

Sosa, 542 U.S. at 729 (emphasis added). As I see it, section

1350 is “statutory authority” sufficient to satisfy the Westfall

27

Act exception. Some may disagree with my analysis, but at this

point I cannot see why.

As I noted above, I think it is fair to say that the developing

case law is ironic. As one commentator has noted:

In the past thirty years, the [ATS] has become an important

instrument in advancing human rights claims before U.S.

courts. In light of this exceptional statute, the Westfall

Act’s effect of immunizing U.S. officials is doubly ironic:

Not only has the country that led the way in allowing aliens

to vindicate their rights against foreign officials maintained

official immunity for its own officials even in the face of

modern human rights accountability, but it has also done so

unintentionally. As a result, U.S. courts apply a double

standard of liability whereby foreign officials may face

liability for international law violations while U.S. officials

have absolute immunity for those same violations.

Karen Lin, Note, An Unintended Double Standard of Liability:

The Effect of the Westfall Act on the Alien Tort Claims Act, 108

COLUM. L. REV. 1718, 1719 (2008) (footnotes omitted).

I do not agree with the courts that have helped to create this

irony by granting immunity to United States officials from ATS

actions. It is hard to fathom why Congress would pass a law

that makes all government officials – except our own – subject

to liability for torture committed overseas. There is nothing to

indicate that Congress meant to achieve this result when the

Westfall Act was passed. Maybe it is time for Congress to give

the judiciary better directions on this matter.