Donald Vance v. United States

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1687 & 10-2442

D ONALD V ANCE and N ATHAN E RTEL,

Plaintiffs-Appellees,

v.

D ONALD R UMSFELD and

THE U NITED S TATES OF A MERICA ,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 6964—Wayne R. Andersen, Judge.

A RGUED F EBRUARY 10, 2011—D ECIDED A UGUST 8, 2011

Before M ANION, E VANS, and H AMILTON, Circuit Judges.

H AMILTON , Circuit Judge. This appeal raises funda-

mental questions about the relationship between the

citizens of our country and their government. Plaintiffs

Donald Vance and Nathan Ertel are American citizens

and civilians. Their complaint alleges in detail that they

were detained and illegally tortured by U.S. military

2 Nos. 10-1687 & 10-2442

personnel in Iraq in 2006. Plaintiffs were released

from military custody without ever being charged with

a crime. They then filed this suit for violations of

their constitutional rights against former Secretary of

Defense Donald Rumsfeld and other unknown defendants

under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs seek

damages from Secretary Rumsfeld and others for their

roles in creating and carrying out policies that caused

plaintiffs’ alleged torture. Plaintiffs also bring a claim

against the United States under the Administrative Pro-

cedure Act to recover personal property that was seized

when they were detained.

Secretary Rumsfeld and the United States moved to

dismiss the claims against them. The district court denied

in part Secretary Rumsfeld’s motion to dismiss, allowing

plaintiffs to proceed with Bivens claims for torture and

cruel, inhuman, and degrading treatment, which have

been presented as Fifth Amendment substantive due

process claims. Vance v. Rumsfeld, 694 F. Supp. 2d 957

(N.D. Ill. 2010). The district court also denied the gov-

ernment’s motion to dismiss the plaintiffs’ property claim.

Vance v. Rumsfeld, 2009 WL 2252258 (N.D. Ill. 2009). Secre-

tary Rumsfeld and the United States have appealed,

and we consider their appeals pursuant to 28 U.S.C. § 1291

and 28 U.S.C. § 1292(b).

We agree with the district court that the plaintiffs may

proceed with their Bivens claims against Secretary

Rumsfeld. Taking the issues in ascending order of breadth,

we agree first, applying the standards of Federal Rule

Nos. 10-1687 & 10-2442 3

of Civil Procedure 12(b)(6), that plaintiffs have alleged in

sufficient detail facts supporting Secretary Rumsfeld’s

personal responsibility for the alleged torture. Second, we

agree with the district court that Secretary Rumsfeld is not

entitled to qualified immunity on the pleadings. The

law was clearly established in 2006 that the treatment

plaintiffs have alleged was unconstitutional. No rea-

sonable public official could have believed otherwise.

Next, we agree with the district court that a Bivens

remedy is available for the alleged torture of civilian U.S.

citizens by U.S. military personnel in a war zone. We see

no persuasive justification in the Bivens case law or other-

wise for defendants’ most sweeping argument, which

would deprive civilian U.S. citizens of a civil judicial

remedy for torture or even cold-blooded murder by

federal officials and soldiers, at any level, in a war zone.

United States law provides a civil damages remedy for

aliens who are tortured by their own governments.

It would be startling and unprecedented to conclude

that the United States would not provide such a remedy

to its own citizens.

The defendants rely on two circuit decisions denying

Bivens remedies to alien detainees alleging that U.S.

officials caused them to be tortured, one case arising

from war zones, Ali v. Rumsfeld, ___ F.3d ___, 2011 WL

2462851 (D.C. Cir. June 21, 2011) (detainees in Iraq and

Afghanistan), and the other as part of the war on terror,

Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc)

(“extraordinary rendition” case). Those claims by aliens

are readily distinguishable from this case based on the

different circumstances of aliens and civilian U.S. citi-

4 Nos. 10-1687 & 10-2442

zens. Whether or not one agrees with those decisions, the

difficult issues posed by aliens’ claims should not

lead courts to extend the reasoning in those cases to

deny all civil remedies to civilian U.S. citizens who

have been tortured by their own government, in viola-

tion of the most fundamental guarantees in the constitu-

tional pact between citizens and our government.

As to the modest property claim against the United

States, however, we agree with the government that the

Administrative Procedure Act’s “military authority”

exception precludes judicial review of military actions

affecting personal property in a war zone, and we

reverse the district court’s decision on that claim.

I. Factual and Procedural Background

A. Factual Allegations

Plaintiffs Donald Vance and Nathan Ertel have alleged

sobering claims that they were tortured by U.S. military

personnel while they were detained indefinitely at Camp

Cropper, a U.S. military prison in Iraq in 2006, during the

ongoing Iraq War.1 Because this case comes before us

1

The amicus brief filed by former Secretaries of Defense and

former Members of the Joint Chiefs of Staff in support of

Secretary Rumsfeld and the government points out that the

United States technically operated in Iraq through 2008 as

part of the Multinational Force — Iraq (“MNF-I”). We assume

that the forces holding Vance and Ertel were under the

authority of the United States. Like the amici, we refer to the

(continued...)

Nos. 10-1687 & 10-2442 5

from the denial of a motion to dismiss, we assume the

truth of all well-pled allegations in the complaint, viewing

those allegations in the light most favorable to the plain-

tiffs. See Muscarello v. Ogle County Bd. of Comm’rs, 610

F.3d 416, 421 (7th Cir. 2010), citing Ashcroft v. Iqbal, 129

S. Ct. 1937, 1949 (2009). We do not vouch for the truth of

the allegations. By seeking dismissal under Rule 12(b)(6),

however, the defendants have asked us to decide the

issues based on the assumption that the allegations

are true. We proceed on that basis.

We can only summarize here the key allegations in

the detailed Complaint, with its 79 pages and 387 para-

graphs, citing the pertinent paragraph numbers.2 Vance

and Ertel, two young American civilians, independently

moved from their homes in Illinois and Virginia to work

in Iraq to help “rebuild the country and achieve democ-

racy” following the beginning of the current conflict

there. See ¶¶ 3, 28. In 2005 and 2006, before their deten-

tion, the two Americans worked for a privately-owned

Iraqi security services company, Shield Group Security,

in the “Red Zone” in Iraq, the area outside the secure

“Green Zone” in Baghdad. ¶¶ 33-39. Over time, Vance

became suspicious that the company was involved

with corruption and other illegal activity. ¶¶ 18, 42.

He noticed, for example, that Shield Group Security

1

(...continued)

forces who detained the plaintiffs as the “U.S. military,” not

the “MNF-I.”

2

All references to the Complaint are to the operative

pleading, the Second Amended Complaint.

6 Nos. 10-1687 & 10-2442

officials were making payments to Iraqi sheikhs, which

he believed was done to obtain influence. ¶¶ 41-42.

While Vance was home in Chicago for his father’s funeral,

he contacted U.S. government officials to report his

suspicions. ¶ 43. He met with an FBI agent, who

arranged for Vance to continue reporting suspicious

activity back to Chicago. The FBI agent also requested

that Vance meet U.S. government officials in Iraq to

report his observations. ¶¶ 44-47, 49. Vance told his

friend and colleague Ertel that he had become an infor-

mant, and Ertel contributed information as well. ¶¶ 48-49.

The plaintiffs were frequently in touch with their gov-

ernment contacts, sometimes multiple times a day. ¶ 45.

At the request of a U.S. government official in Iraq,

Vance copied and shared Shield Group Security

documents with U.S. officials. ¶ 47. Vance and Ertel

reported their in-depth observations of individuals

closely associated with Shield Group Security, including

U.S. and Iraqi government officials who were involved

with illegal arms trading, stockpiling of weapons,

bribery, and other suspicious activity and relationships.

¶¶ 45-104. Their whistleblowing allegedly included the

sharing of sensitive information with the U.S. govern-

ment, including reports that their supervisor, who

called himself the “Director” of the “Beer for Bullets”

program, traded liquor to American soldiers in

exchange for U.S. weapons and ammunition that Shield

Group Security then used or sold for a profit. ¶ 95.

Shield Group Security officials became suspicious

about the plaintiffs’ loyalty to the firm. On April 14, 2006,

they confiscated the credentials that allowed plaintiffs

Nos. 10-1687 & 10-2442 7

access to the Green Zone, effectively trapping them

inside the firm’s compound in the Red Zone. ¶¶ 107-12,

116-19. Plaintiffs called their U.S. government contacts

in Iraq for help. They were told that they should

interpret Shield Group Security’s actions as taking them

hostage, and should barricade themselves with weapons

in a room of the compound. ¶¶ 120, 124-25. They were

assured that U.S. forces would come to rescue them. ¶ 124.

U.S. forces came to the compound and took Vance

and Ertel to the U.S. Embassy for questioning. ¶¶ 125-31.

Military personnel seized all of their personal property,

including laptop computers, cell phones, and cameras.

¶ 127. The plaintiffs shared information about Shield

Group Security transactions and were sent to a trailer

to sleep. ¶¶ 130-31.

After two or three hours of sleep, Vance and Ertel,

who were under the impression that they had been

rescued by their government, were in for a shock. They

were awakened and arrested, handcuffed, blindfolded,

and driven to Camp Prosperity, a U.S. military compound

in Baghdad. ¶¶ 131, 138-39. There, plaintiffs allege, they

were placed in a cage, strip-searched, fingerprinted, and

issued jumpsuits. ¶ 140. They were instructed to keep

their chins to their chests and not to speak. They

were threatened that if they did speak, they would have

“excessive force” inflicted on them. ¶ 141. Vance and

Ertel were then taken to separate cells and held in

solitary confinement for what they believe was two

days. ¶¶ 142-43.

For those two days, the plaintiffs were held incom-

municado in their cells, and were not permitted to

8 Nos. 10-1687 & 10-2442

contact their families or lawyers. They were fed twice a

day and allowed to go to the bathroom twice a day.

They each had a thin mat on concrete on which to

sleep, but the lights were kept on 24 hours a day. ¶¶ 142,

161. After two days, Vance and Ertel were shackled,

blindfolded, and transported to Camp Cropper, a U.S.

military facility near Baghdad International Airport.

¶¶ 143-44.

After the plaintiffs were taken to Camp Cropper, they

experienced a nightmarish scene in which they were

detained incommunicado, in solitary confinement, and

subjected to physical and psychological torture for the

duration of their imprisonment — Vance for three months

and Ertel for six weeks. ¶¶ 2, 20-21, 146-76, 212. They

allege that all of the abuse they endured in those weeks

was inflicted by Americans, some military officials

and some civilian officials. ¶ 21. They allege that the

torture they experienced was of the kind “supposedly

reserved for terrorists and so-called enemy combatants.”

¶ 2. If the plaintiffs’ allegations are true, two young

American civilians were trying to do the right thing

by becoming whistleblowers to the U.S. government,

but found themselves detained in prison and tortured

by their own government, without notice to their

families and with no sign of when the harsh physical

and psychological abuse would end. ¶¶ 1-4, 19, 21, 52-

54, 161.3

3

The plaintiffs were informed that they were being held as

“security internees” because they worked for a business that

(continued...)

Nos. 10-1687 & 10-2442 9

Vance and Ertel allege that after they arrived at

Camp Cropper they were strip-searched while still blind-

folded, and issued jumpsuits. ¶ 145. They were then

held in solitary confinement, in small, cold, dirty cells

and subjected to torturous techniques forbidden by the

Army Field Manual and the Detainee Treatment Act.

¶¶ 146, 217-18, 242-44, 265. The lights were kept on at

all times in their cells, so that the plaintiffs experienced

“no darkness day after day” for the entire duration of

their time at Camp Cropper. ¶¶ 21, 147. Their cells

were kept intolerably cold, except when the generators

failed. Id. There were bugs and feces on the walls of

the cells, in which they spent most of their time in com-

plete isolation. ¶ 146. Vance and Ertel were driven to

exhaustion; each had a concrete slab for a bed,

but guards would wake them if they were ever caught

sleeping. ¶¶ 148, 149. Heavy metal and country music

was pumped into their cells at “intolerably-loud vol-

umes,” and they were deprived of mental stimulus. ¶¶ 21,

146, 149. The plaintiffs each had only one shirt and

a pair of overalls to wear during their confinement.

¶ 152. They were often deprived of food and water

3

(...continued)

possessed large weapons caches and that might be involved in

distributing weapons to insurgent and terrorist groups. ¶¶ 179-

80. The plaintiffs adamantly deny any wrongdoing and

allege that the U.S. government officials in Iraq fabricated

these allegations, for which they were never charged, in retalia-

tion for their whistleblowing of “high-value information” that

could reflect poorly on U.S. officials in Iraq. ¶¶ 1, 4, 132.

10 Nos. 10-1687 & 10-2442

and repeatedly deprived of necessary medical care.

¶¶ 151, 153-55.

Beyond the sleep deprivation and the harsh and

isolating conditions of their detention, plaintiffs allege,

they were physically threatened, abused, and assaulted

by the anonymous U.S. officials working as guards. ¶ 157.

They allege, for example, that they experienced “hooding”

and were “walled,” i.e., slammed into walls while being

led blindfolded with towels placed over their heads

to interrogation sessions. ¶¶ 21, 157. Plaintiffs also

claim that they were continuously tormented by the

guards, who would conduct shake-downs of their cells,

sometimes on the false premise that they had discovered

contraband, and who seemed intent on keeping them off-

balance mentally. ¶ 156.

The constant theme of the aggressive interrogations

was a haunting one — if Vance and Ertel did not “do the

right thing,” they would never be allowed to leave

Camp Cropper. ¶ 176. Vance and Ertel were not only

interrogated but continuously threatened by guards

who said they would use “excessive force” against them

if they did not immediately and correctly comply

with instructions. ¶ 158. The plaintiffs allege that this

treatment lasted for the duration of their detention

at Camp Cropper. ¶¶ 2, 165, 176.

While Vance and Ertel were detained and interrogated,

their loved ones did not know whether they were alive

or dead. ¶¶ 1, 161. Eventually, Vance and Ertel were

allowed a few telephone calls to their families but were

not allowed to disclose their location or anything about

Nos. 10-1687 & 10-2442 11

the conditions of their detention or the nature of their

interrogations. ¶ 162. When they were not being inter-

rogated, they were held in almost constant solitary con-

finement. Vance’s requests for clergy visits were denied,

and plaintiffs were forbidden to correspond with a

lawyer or a court. ¶¶ 163-64.

Vance and Ertel were never charged with any crime

or other wrongdoing, nor were they designated

as security threats. ¶¶ 1, 212, 214. Instead, both were

eventually released and dropped off at the airport in

Baghdad to find their way home. ¶¶ 208, 210. Vance

and Ertel both allege that they were devastated

physically and emotionally by what they endured at

the hands of their own government. ¶ 213.

B. Procedural History

Following their release, the plaintiffs sued former

Secretary of Defense Donald Rumsfeld, in his indi-

vidual capacity, as well as unidentified defendants.4 The

4

Plaintiffs explained in oral argument that they were limited

in identifying other defendants given the nature of their

detention in a “sterilized system.” No name tags were worn

by Camp Cropper officials, and the American guards had

code names for each other. The magistrate judge ordered

some discovery so the plaintiffs could identify other defen-

dants. See Memorandum Opinion and Order, Dkt. No. 89

(Dec. 21, 2007) (ordering limited discovery for plaintiffs to

learn identities of unknown defendants responsible for their

(continued...)

12 Nos. 10-1687 & 10-2442

plaintiffs also brought a claim against the United States

to recover the personal property seized from them at

the time they were taken into custody.

Secretary Rumsfeld and the United States moved to

dismiss all claims against them. The district court dis-

missed plaintiffs’ claims against Secretary Rumsfeld for

denial of procedural due process (Count II) and denial

of access to the courts (Count III), but declined to

dismiss their claim that their treatment amounted to

unconstitutional cruel, inhuman, and degrading treat-

ment (Count I). The district court concluded that plain-

tiffs had sufficiently pled Secretary Rumsfeld’s personal

responsibility for their alleged treatment and that

Secretary Rumsfeld was not protected by qualified im-

munity. The district court also rejected the defendants’

argument that “special factors” preclude the recognition

of a Bivens remedy for torture of civilian U.S. citizens in

a war zone. In a separate order, the district court denied

the United States’ motion to dismiss the plaintiffs’

personal property claim.

These matters are now before us in two separate ap-

peals. The district court’s rejection of a defendant’s quali-

4

(...continued)

detention and alleged mistreatment); Minute Entry (Order on

Motion to Compel), Dkt. No. 267 (Jun. 14, 2010) (granting

plaintiffs’ motion to compel discovery). But the district court

later granted the government’s motion to stay proceedings,

including pending discovery requests to identify unknown

defendants, during this appeal. See Minute Entry (Order on

Motion to Stay), Dkt. No. 285 (Nov. 17, 2010).

Nos. 10-1687 & 10-2442 13

fied immunity defense is considered a final judg-

ment subject to immediate appeal, so we have juris-

diction over Secretary Rumsfeld’s appeal, docketed as

No. 10-1687, pursuant to the general appellate jurisdiction

statute, 28 U.S.C. § 1291. See Behrens v. Pelletier, 516

U.S. 299, 301 (1996), citing Mitchell v. Forsyth, 472 U.S.

511 (1985). The broader Bivens issue is “directly

implicated by the defense of qualified immunity” and is

thus also properly before us. Wilkie v. Robbins, 551 U.S.

537, 550 n.4 (2007), quoting Hartman v. Moore, 547

U.S. 250, 257 n.5 (2006). We have jurisdiction over the

United States’ appeal on the property issue, docketed

as No. 10-2442, because the district court certified its

order for interlocutory appeal under 28 U.S.C. § 1292(b).

We have consolidated the appeals for disposition.

II. Analysis

We affirm the district court’s decision on the Bivens

claims in No. 10-1687, concluding in this sequence, from

the narrowest issue to the broadest: (a) that plaintiffs

adequately alleged Secretary Rumsfeld’s personal re-

sponsibility for their treatment, as required under

Bivens; (b) that Secretary Rumsfeld is not entitled to

qualified immunity on the defense theory that a rea-

sonable government official could have believed in 2006

that the abuse plaintiffs have alleged was not unconstitu-

tional; and (c) that a Bivens remedy should be available

to civilian U.S. citizens in a war zone, at least for claims

of torture or worse. We reverse the district court’s

decision in No. 10-2442, concluding that the district court

14 Nos. 10-1687 & 10-2442

should have dismissed the plaintiffs’ property claims

under the “military authority” exception to the Adminis-

trative Procedure Act.

A. Personal Responsibility

To proceed with their Bivens claims, plaintiffs must

allege facts indicating that Secretary Rumsfeld was per-

sonally involved in and responsible for the alleged consti-

tutional violations. See Iqbal, 129 S. Ct. at 1948-49; Alejo

v. Heller, 328 F.3d 930, 936 (7th Cir. 2003). “Because vicari-

ous liability is inapplicable to Bivens and § 1983 suits,

a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions,

has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.

As the Supreme Court said in Iqbal, “[t]he factors neces-

sary to establish a Bivens violation will vary with the

constitutional provision at issue.” Id. Unlike in Iqbal,

which was a discrimination case, where the plaintiff

was required to plead that the defendant acted with

discriminatory purpose, the minimum knowledge and

intent required here would be deliberate indifference, as

in analogous cases involving prison and school officials

in domestic settings. See Farmer v. Brennan, 511 U.S.

825, 842 (1994) (finding that a prison official acts with

“deliberate indifference” if the “official acted or failed

to act despite his knowledge of a substantial risk of

serious harm”); T.E. v. Grindle, 599 F.3d 583, 591 (7th Cir.

2010) (“When a state actor’s deliberate indifference de-

prives someone of his or her protected liberty interest

in bodily integrity, that actor violates the Constitution,

Nos. 10-1687 & 10-2442 15

regardless of whether the actor is a supervisor or sub-

ordinate, and the actor may be held liable for the

resulting harm.”).5

5

The defendants rely heavily on Iqbal, but the case is clearly

distinguishable because of the nature of the alleged constitu-

tional violations. The issue in Iqbal was not what the

defendants (Attorney General Ashcroft and FBI Director

Mueller) actually did, but their subjective purposes — whether

they acted on the basis of religious or ethnic bias or

instead acted to fight terrorism. The plaintiff alleged that the

Attorney General and the FBI Director had established and

implemented policies following the attacks of September 11,

2001 that led to the detention of the plaintiff under harsh

conditions separate from the general prison population, alleg-

edly because of a policy that kept prisoners separate because

of their race, religion, or national origin. Because there was

a legitimate explanation for the policy — the “nondiscrimin-

atory intent to detain aliens who were illegally present in the

United States and who had potential connections to those

who committed terrorist attacks” — the Court held that per-

sonal responsibility was not pled sufficiently where the com-

plaint provided no plausible basis for rejecting that legitimate

explanation. Iqbal, 129 S. Ct. at 1951-52. In this case, by con-

trast, the inquiry before us is whether the plaintiffs have

pled sufficiently that defendant Secretary Rumsfeld per-

sonally established the relevant policies that authorized the

unconstitutional torture they allege they suffered. Iqbal did not

disturb the Bivens and section 1983 principles holding that

a supervisor may be liable as an individual for wrongs he

personally directed or authorized his subordinates to inflict.

(continued...)

16 Nos. 10-1687 & 10-2442

In arguing that the district court erred in holding that

qualified immunity does not protect Secretary Rumsfeld

from liability, the defendants blend both the issue of

Secretary Rumsfeld’s personal responsibility for plain-

tiffs’ treatment and the doctrine of qualified immunity.

These issues are actually quite distinct, and we treat

them separately. We begin by addressing the defendants’

personal responsibility arguments, which are primarily

about whether the plaintiffs have pled a sufficient level

of detail about Secretary Rumsfeld’s personal responsibil-

ity to survive a motion to dismiss under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. We first examine

the applicable pleading requirements. We then sum-

marize the detailed allegations of Secretary Rumsfeld’s

personal responsibility from the Complaint. Finally, we

address the defendants’ specific concerns about the

Complaint.

We conclude that the plaintiffs have sufficiently

alleged Secretary Rumsfeld’s personal responsibility.

While it may be unusual that such a high-level official

would be personally responsible for the treatment of

5

(...continued)

A similar distinction applies to the Supreme Court’s recent

decision in Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011). There the

Supreme Court held that where the plaintiff’s seizure under

the federal material witness statute was objectively reason-

able, the plaintiff could not pursue a Bivens claim on the

theory that the seizure was pretextual, based in fact on a

different and unconstitutional subjective purpose. See id.

at 2082-83.

Nos. 10-1687 & 10-2442 17

detainees, here we are addressing an unusual situation

where issues concerning harsh interrogation techniques

and detention policies were decided, at least as the plain-

tiffs have pled, at the highest levels of the federal gov-

ernment. We conclude that plaintiffs have sufficiently

alleged that Secretary Rumsfeld acted deliberately in

authorizing interrogation techniques that amount to

torture. (Whether he actually did so remains to be

seen.) We differ with the district court in one respect,

though. We think that the plaintiffs’ pleadings, if true,

have sufficiently alleged not only Secretary Rumsfeld’s

personal responsibility in creating the policies that led

to the plaintiffs’ treatment but also deliberate indif-

ference by Secretary Rumsfeld in failing to act to stop

the torture of these detainees despite actual knowledge

of reports of detainee abuse.

1. Applicable Pleading Requirements

The Federal Rules of Civil Procedure impose no special

pleading requirements for Bivens claims, including those

against former high-ranking government officials. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-14 (2002).

The notice pleading standard under Rule 8 of the

Federal Rules of Civil Procedure applies, and a plaintiff

is required to provide a “short and plain statement of

the claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a). The complaint will survive a motion

to dismiss if it meets the “plausibility” standard applied

in Iqbal and Twombly. See Iqbal, 129 S. Ct. at 1949,

quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

18 Nos. 10-1687 & 10-2442

(2007) (holding that “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’ ”). “The plausibility

standard is not akin to a ‘probability requirement,’ but

it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id.

These pleading rules are meant to “ ‘focus litigation on

the merits of a claim’ rather than on technicalities that

might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d

574, 580 (7th Cir. 2009), quoting Swierkiewicz, 534 U.S.

at 514. At the same time, “a defendant should not be

forced to undergo costly discovery unless the complaint

contains enough detail . . . to indicate that the plaintiff

has a substantial case.” Limestone Development Corp. v.

Village of Lemont, 520 F.3d 797, 802-03 (7th Cir. 2008). We

agree with the district court’s observation in this case:

“Iqbal undoubtedly requires vigilance on our part to

ensure that claims which do not state a plausible claim

for relief are not allowed to occupy the time of

high-ranking government officials. It is not, however, a

categorical bar on claims against these officials.” Vance,

694 F. Supp. 2d at 961. “When a plaintiff presents

well-pleaded factual allegations sufficient to raise a

right to relief above a speculative level, that plaintiff

is entitled to have his claim survive a motion to

dismiss even if one of the defendants is a high-ranking

government official.” Id.

Nos. 10-1687 & 10-2442 19

2. The Complaint

We agree with the district court that the plaintiffs have

alleged sufficient facts to show that Secretary Rumsfeld

personally established the relevant policies that caused

the alleged violations of their constitutional rights

during detention. The detailed Complaint provided

Secretary Rumsfeld sufficient notice of the claims

against him and stated plausible claims that satisfy Rule 8

and Iqbal and Twombly.

The plaintiffs allege that Secretary Rumsfeld devised

and authorized policies that permit the use of torture

in their interrogation and detention. ¶ 217. They claim

that he was “personally responsible for developing,

authorizing, supervising, implementing, auditing and/or

reforming the policies, patterns or practices governing

the . . . treatment . . . [and] interrogation . . . of detainees.”

¶ 26. Specifically, they allege that in 2002, Secretary

Rumsfeld “personally approved a list of torturous inter-

rogation techniques for use on detainees” at Guantanamo

Bay that, “[c]ontrary to . . . the then-governing Army

Field Manual 34-52 . . . included the use of 20-hour inter-

rogations, isolation for up to 30 days, and sensory dep-

rivation.” ¶ 232. In 2003, Secretary Rumsfeld allegedly

“rescinded his formal authorization to use those

techniques generally, but took no measures to end the

practices which had by then become ingrained, nor to

confirm that the practices were in fact . . . terminated.”

¶ 233. Instead, he authorized the use of techniques

outside of the Army Field Manual if he personally ap-

proved them. Id. The plaintiffs also allege that in 2003,

20 Nos. 10-1687 & 10-2442

Secretary Rumsfeld approved a new set of policies

that included isolation for up to 30 days, dietary manip-

ulation, and sleep deprivation (the “2003 List”). ¶ 234. In

addition to these formal policies, Secretary Rumsfeld

also authorized additional harsh techniques if he ap-

proved them in advance. ¶ 235.

The plaintiffs allege that Secretary Rumsfeld then

directed that the techniques in place at Guantanamo Bay

also be extended to Iraq. ¶¶ 235-39. The plaintiffs claim,

for instance, that Secretary Rumsfeld sent Major General

Geoffrey Miller to Iraq in August 2003 to evaluate

how prisons could gain more “actionable intelligence”

from detainees. ¶ 236. In September 2003, in response

to General Miller’s suggestion to use more aggressive

interrogation policies in Iraq, and as allegedly “directed,

approved and sanctioned” by Secretary Rumsfeld, the

commander of the United States-led military coalition in

Iraq signed a memorandum authorizing the use of

29 interrogation techniques (the “Iraq List”), which in-

cluded sensory deprivation, light control, and the use

of loud music. ¶ 238.6 The commander later modified

6

The plaintiffs elaborate on the September 2003 policy in their

brief, noting that the Senate Armed Services Committee

reported that this list “drew heavily” on Secretary Rumsfeld’s

guidance for Guantanamo Bay. See Inquiry Into The Treatment

of Detainees in U.S. Custody, Committee on Armed Services (Nov.

20, 2008), available at http://www.armed-services.senate.gov/

Publications/Detainee Report Final_April 22 2009.pdf (last

accessed Aug. 4, 2011). “According to LTG Sanchez, the Septem-

(continued...)

Nos. 10-1687 & 10-2442 21

the memorandum, but interrogators were still given

discretion to subject detainees to interrogation methods

involving manipulation of lighting, heating, food,

shelter, and clothing of the detainees. ¶ 239.

The plaintiffs also allege that Secretary Rumsfeld

was well aware of detainee abuse because of both

public and internal reports documenting the abuse. ¶¶ 240-

41, 252. In May 2003, the International Red Cross

began reporting on the abuse of detainees in U.S. custody

in Iraq. ¶ 240. The plaintiffs allege that then-Secretary

of State Colin Powell confirmed that Secretary Rumsfeld

knew of the reports of abuse and regularly reported

them to President Bush throughout 2003. Id. They also

6

(...continued)

ber 14, 2003 policy ‘drew heavily’ on the Secretary of

Defense’s April 16, 2003 guidance for GTMO.” Id. at 201. A

party whose pleading is being attacked on appeal under

Rule 12(b)(6) may elaborate on his allegations so long as the

elaborations are consistent with the pleading. See Chavez

v. Illinois State Police, 251 F.3d 612, 650 (7th Cir. 2001); Highsmith

v. Chrysler Credit Corp., 18 F.3d 434, 439-40 (7th Cir. 1994)

(reversing dismissal in relevant part based on such new elab-

orations); Dawson v. General Motors Corp., 977 F.2d 369, 372

(7th Cir. 1992) (reversing dismissal based on new elabora-

tions). If a party can win reversal with such new elaborations

on its pleadings, then these plaintiffs can defend the denial of

the motion to dismiss in the same way. Reynolds v. CB Sports

Bar, Inc., 623 F.3d 1143, 1146-47 (7th Cir. 2010) (concluding

after Iqbal and Twombly that plaintiffs may still suggest facts

outside of the pleadings to show that their complaints

should not be dismissed).

22 Nos. 10-1687 & 10-2442

allege that Secretary Rumsfeld also knew of other in-

vestigative reports into detainee abuse in Iraq, including

a report by former Secretary of Defense James Schlesinger.

¶ 241.7

Congress took action in response to allegations of

detainee abuse. ¶ 14. First, Congress passed the Ronald W.

Reagan National Defense Authorization Act for Fiscal

Year 2005, which reaffirmed the U.S. prohibition against

torture techniques that violate the United States Con-

stitution and the Geneva Conventions. Pl. Br. at 7. The

law instructed then-Secretary Rumsfeld to take action

to stop abusive interrogation techniques:

The Secretary of Defense shall ensure that policies are

prescribed not later than 150 days after the date of the

enactment . . . to ensure that members of the Armed

Forces, and all persons acting . . . within facilities of

the Armed Forces, treat persons detained by the

United States Government in a humane manner

consistent with the international obligations and

7

The plaintiffs elaborate on this point in their brief, citing the

Final Report of the Independent Panel to Review DoD Deten-

tion Operations (Aug. 24, 2004), available at http://www.

defense.gov/news/Aug2004/d20040824finalreport.pdf (last ac-

cessed Aug. 4, 2011). This report, addressed from former

Secretary of Defense Schlesinger to Secretary Rumsfeld, noted

that “the changes in DoD interrogation policies . . . were an

element contributing to uncertainties in the field as to

which techniques were authorized” and that “the augmented

techniques for Guantanamo migrated to . . . Iraq where

they were neither limited nor safeguarded.” Id. at 14.

Nos. 10-1687 & 10-2442 23

laws of the United States and the policies set forth

in section 1091(b).

Pub. L. No. 108-375, § 1092, 118 Stat. 1811, 2069-70 (2004),

codified at 10 U.S.C. § 801, stat. note § 1092. The

plaintiffs argue that, despite that specific direction from

Congress, Secretary Rumsfeld took no action to rescind

unauthorized interrogation methods before the plain-

tiffs were released from custody in 2006. ¶¶ 244, 252.

In 2005, Congress enacted the Detainee Treatment Act,

which limited allowable interrogation techniques

to those authorized in the Army Field Manual, thus

specifically outlawing the interrogation techniques that

Secretary Rumsfeld had earlier authorized, and which

the plaintiffs allege in detail they suffered at the hands

of U.S. military personnel in 2006. ¶¶ 242-43. The

Detainee Treatment Act stated in relevant part:

No person in the custody or under the effective

control of the Department of Defense or under deten-

tion in a Department of Defense facility shall be

subject to any treatment or technique of interroga-

tion not authorized by and listed in the United States

Army Field Manual on Intelligence Interrogation.

Pub. L. 109-148, § 1002(a), 119 Stat. 2680, 2739 (2005),

codified at 10 U.S.C. § 801, stat. note § 1002.

The plaintiffs contend that, after the enactment of the

Detainee Treatment Act, Secretary Rumsfeld continued

to condone the use of techniques from outside the

Army Field Manual. ¶ 244. They allege that on the same

day that Congress passed the Detainee Treatment Act

24 Nos. 10-1687 & 10-2442

in December 2005, Secretary Rumsfeld added ten

classified pages to the Field Manual, which included

cruel, inhuman, and degrading techniques, such as those

allegedly used on the plaintiffs (the plaintiffs refer to

this as “the December Field Manual”). Id. The defendants

describe this allegation as speculative and untrue, but

we must accept these well-pled allegations as true at

the Rule 12(b)(6) stage of the proceedings.8

The plaintiffs also claim that Secretary Rumsfeld, in

the face of both internal reports and well-publicized

accusations of detainee mistreatment and torture by

U.S. forces in Iraq, did not investigate or correct the

8

On appeal, the plaintiffs cite a newspaper article reporting on

the development of this classified set of interrogation methods.

See Eric Schmitt, “New Army Rules May Snarl Talks with

McCain on Detainee Issue,” New York Times (Dec. 14,

2005), available at http://www.nytimes.com/2005/12/14/politics/

14detain.html (last accessed Aug. 4, 2011) (“The Army has

approved a new, classified set of interrogation methods . . .

The techniques are included in a 10-page classified

addendum to a new Army field manual . . .”). The plaintiffs

contend that Secretary Rumsfeld eventually abandoned efforts

to classify the Field Manual, but that the “December Field

Manual” was in operation during their detention and was not

replaced until September 2006, after plaintiffs had been

released, when a new field manual (Field Manual 2-22.3) was

instituted. ¶ 244; Pl. Br. at 11. The dissent criticizes plaintiffs’

reliance on the newspaper report, but plaintiffs’ case for

personal responsibility rests on allegations that are far more

extensive. In any event, these are disputes of fact that cannot

be resolved by a Rule 12(b)(6) motion.

Nos. 10-1687 & 10-2442 25

abuses, despite his actual knowledge that U.S. citizens

were being and would be detained and interrogated

using the unconstitutional abusive practices that he had

earlier authorized. ¶ 252. The plaintiffs allege that reports

of the abusive treatment of detainees by the U.S. military

were widely reported by Amnesty International, the

United Nations Assistance Mission for Iraq, and the

International Committee of the Red Cross. ¶¶ 245-51. The

plaintiffs contend that Secretary Rumsfeld was the

“official responsible for terminating this pattern of

abuse and reforming the policies causing it.” ¶ 252. In-

stead, the plaintiffs allege, Secretary Rumsfeld took

no action because “this conduct was being carried out

pursuant to the interrogation and detention policies

[he] himself created and implemented.” Id.

3. Secretary Rumsfeld’s Personal Responsibility is Pled

Sufficiently

We see no deficiency in the Complaint that would

warrant dismissal on the issue of personal responsibility.

Taking the factual allegations in the complaint as true, as

we must, the plaintiffs have pled facts showing that it

is plausible, and not merely speculative, that Secretary

Rumsfeld was personally responsible for creating the

policies that caused the alleged unconstitutional torture.

The Complaint also alleges that the Secretary was re-

sponsible for not conforming the treatment of the de-

tainees to the standards set forth in the Detainee Treat-

ment Act. Congress specifically ordered the Secretary

to “ensure” that detainees in custody of the United

26 Nos. 10-1687 & 10-2442

States were treated in a “humane manner consistent

with the international obligations and laws of the

United States.” See Ronald W. Reagan National Defense

Authorization Act for Fiscal Year 2005, 10 U.S.C. § 801, stat.

note § 1092.9

The plaintiffs have adequately pled the “kind of active

and intentional disregard for their treatment” that the

defendants suggest “would be necessary to establish

liability.” First, while Secretary Rumsfeld did not per-

sonally carry out the alleged violations of plaintiffs’

constitutional rights, the plaintiffs have alleged that he

personally created the policies that authorized and led

to their torture. If adequately pled, that is sufficient at

this stage to allege personal involvement. See, e.g., Doyle

v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir.

2002) (finding under 42 U.S.C. § 1983 that allegations

that agency’s most senior officials were personally “re-

sponsible for creating the policies, practices and customs

that caused the constitutional deprivations . . . suffice

at this stage in the litigation to demonstrate . . . personal

involvement in [the] purported unconstitutional con-

duct”); Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir. 1998)

9

To be clear, we read the Complaint as asserting claims arising

under the United States Constitution, not the Detainee Treat-

ment Act, which does not provide for a private right of action.

The Detainee Treatment Act and the Secretary’s responsi-

bilities in executing it are relevant in evaluating the

Secretary’s knowledge of and responsibility for the treatment

of detainees.

Nos. 10-1687 & 10-2442 27

(finding that a warden is “not liable for an isolated

failure of his subordinates to carry out prison policies,

however — unless the subordinates are acting (or failing

to act) on the warden’s instructions”); see also Martin A.

Schwartz, Section 1983 Litigation: Claims and Defenses,

§ 7.19[C], at 7-239 (4th ed. 2010) (noting that “supervisory

officials who promulgate policies that are enforced by

subordinates are liable if the enforcement of the policy

causes a violation of federally protected rights”); Dodds

v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) (con-

cluding after Iqbal that Ҥ 1983 allows a plaintiff to

impose liability upon a defendant-supervisor who

creates, promulgates, implements, or in some other

way possesses responsibility for the continued operation

of a policy the enforcement (by the defendant-super-

visor or her subordinates) of which” subjects plaintiffs

to constitutional violations); Richardson v. Goord, 347

F.3d 431, 435 (2d Cir. 2003) (concluding that supervisory

liability under § 1983 may be shown, inter alia, by

“creation of a policy or custom that sanctioned conduct

amounting to a constitutional violation, or allowing

such a policy or custom to continue.”).

Second, the plaintiffs have adequately alleged that

Secretary Rumsfeld acted with deliberate indifference

by not ensuring that the detainees were treated in a

humane manner despite his knowledge of widespread

detainee mistreatment. See Farmer, 511 U.S. at 842 (con-

cluding that it is sufficient if a plaintiff bringing an

Eighth Amendment claim shows that the “official acted

or failed to act despite his knowledge of a substantial

28 Nos. 10-1687 & 10-2442

risk of serious harm”); Gayton v. McCoy, 593 F.3d 610,

620 (7th Cir. 2010) (citations omitted) (“Simply put, an

official ‘must both be aware of facts from which the

inference could be drawn that a substantial risk of

serious harm exists, and he must also draw that infer-

ence.’ ”). The plaintiffs have plausibly alleged Secretary

Rumsfeld’s personal responsibility on this theory.

Finally, we reject the defendants’ argument that plain-

tiffs’ claims rest on “naked assertions” of illegal conduct

without factual development. The defendants seek to

poke holes in a number of the plaintiffs’ allegations, but

we do not find their arguments convincing, at least at

the pleading stage under Rule 12(b)(6). The defendants

argue that the plaintiffs’ only “concrete allegations”

about detention and interrogation policies relate to

policies that did not even apply to U.S. citizens in Iraq,

and were, in any case, rescinded before the plaintiffs

were detained. We are not persuaded by this argument.

The plaintiffs have adequately alleged that Secretary

Rumsfeld was responsible for creating policies that gov-

erned the treatment of the detainees in Iraq and for not

conforming the treatment of the detainees in Iraq to

the Detainee Treatment Act.

We also are not persuaded by the defendants’ argument

that the Detainee Treatment Act superseded the policies

described in the Complaint. This argument misunder-

stands the plaintiffs’ point — that Secretary Rumsfeld’s

policies continued to condone the unconstitutional prac-

tices he had allegedly created even after Congress man-

dated otherwise. The plaintiffs’ allegation that Secretary

Nos. 10-1687 & 10-2442 29

Rumsfeld secretly sought to add permissible techniques

to the Army Field Manual after Congress passed the

Detainee Treatment Act is plausible and supports

their broader allegation that Secretary Rumsfeld con-

tinued to promote and condone unconstitutional

treatment of detainees. It remains to be seen whether

plaintiffs can prove this, but they need not have done

so yet.

The defendants also argue that the plaintiffs offer

nothing to link the guards’ threats of excessive force or

the denial of medical care to a particular policy issued

by Secretary Rumsfeld. Examining these particular al-

legations as part of the totality of allegations and the

program for dealing so harshly with detainees, however,

we think they are sufficiently pled to survive the motion

to dismiss. With discovery of the identities of the indi-

viduals involved, we expect plaintiffs to refine their

theories and their allegations concerning the defendants’

individual responsibilities.

Finally, while a supervisor’s mere “knowledge and

acquiescence” is not sufficient to impose liability under

Iqbal, 129 S. Ct. at 1949, we agree with the district court

that outside documentation of detainee abuse, such as

reports by international organizations, provides some

support for the plausibility of plaintiffs’ allegations.

Vance, 694 F. Supp. 2d at 964; see also al-Kidd v. Ashcroft,

580 F.3d 949, 976 (9th Cir. 2009) (finding that complaint

alleges facts that might support liability where it

alleges that “ ‘abuses occurring . . . were highly

publicized in the media, congressional testimony and

30 Nos. 10-1687 & 10-2442

correspondence, and in various reports by governmental

and non-governmental entities,’ which could have

given [the defendant] sufficient notice to require affirma-

tive acts to supervise and correct the actions of his sub-

ordinates”), rev’d on other grounds, 131 S. Ct. 2074 (2011). In

sum, we hold that the plaintiffs have sufficiently

and plausibly pled Secretary Rumsfeld’s personal responsi-

bility.

B. Qualified Immunity

We now turn to whether qualified immunity protects

Secretary Rumsfeld from liability. The qualified immunity

doctrine protects government officials “from liability

for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As

the Supreme Court explained in Pearson v. Callahan, 129

S. Ct. 808, 815 (2009), the doctrine “balances two

important interests — the need to hold public officials

accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distrac-

tion, and liability when they perform their duties rea-

sonably.” We review de novo the district court’s decision

denying a motion to dismiss on the basis of qualified

immunity. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.

2001).

To resolve the qualified immunity defense, we use the

two-step sequence that the Supreme Court articulated

in Saucier v. Katz, 533 U.S. 194, 200-01 (2001). We first

Nos. 10-1687 & 10-2442 31

determine whether “[t]aken in the light most favorable

to the party asserting the injury . . . the facts alleged

show the [defendants’] conduct violated a constitutional

right.” Id. at 201. Second, we determine if the right

was “clearly established” at the time of the relevant

events. Id. While the Court has since decided that

applying the Saucier test sequentially is not mandatory, it

is still “often appropriate.” Pearson, 129 S. Ct. at 818. See,

e.g., al-Kidd, 131 S. Ct. 2074 (deciding both constitutional

merits and qualified immunity); Hanes v. Zurick, 578

F.3d 491 (7th Cir. 2009) (same). Here it makes sense to

apply both steps of the Saucier test, just as the district

court did.

We agree with the district court that plaintiffs have

articulated facts that, if true, would show the violation

of a clearly established constitutional right. In fact, the

defendants’ argument to the contrary evaporates upon

review. The plaintiffs have pled that they were subjected

to treatment that constituted torture by U.S. officials

while in U.S. custody. On what conceivable basis could

a U.S. public official possibly conclude that it was con-

stitutional to torture U.S. citizens? See, e.g., 18 U.S.C.

§ 2340A (statute criminalizing overseas torture); Con-

vention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment, S. Treaty Doc.

No. 100-20 (1988), 1465 U.N.T.S. 85, 113 (1984), at Art. 2

(“No exceptional circumstances whatsoever, whether

a state of war or a threat of war, internal political insta-

bility or any other public emergency, may be invoked as

a justification of torture.”); Siderman de Blake v. Republic

32 Nos. 10-1687 & 10-2442

of Argentina, 965 F.2d 699, 717 (9th Cir. 1992) (concluding

that “it would be unthinkable to conclude other than

that acts of official torture violate customary interna-

tional law. And while not all customary international

law carries with it the force of a jus cogens norm, the

prohibition against official torture has attained that

status”).

The wrongdoing alleged here violates the most basic

terms of the constitutional compact between our govern-

ment and the citizens of this country. The defendants

seem to agree, and go so far as to state:

We do not argue that well-pled, factually-supported

and concrete allegations of, for instance, persistent

exposure to extreme cold, sustained failure to

supply food and water, sustained sleep deprivation,

and the failure to furnish essential medical care, if

of sufficient severity and duration, would not state

a violation of substantive due process in the context

of military detention in a war zone.

Def. Br. 50. We concur with that view. Viewing the com-

plaint in the light most favorable to the plaintiffs, as

we must at this stage, this is exactly what the plain-

tiffs have pled. There can be no doubt that the deliberate

infliction of such treatment on U.S. citizens, even in a

war zone, is unconstitutional.

1. The Alleged Abuse Violated a Constitutional Right

If the plaintiffs’ allegations of torture are true, there was

Nos. 10-1687 & 10-2442 33

a violation of their constitutional right to substantive due

process.10 “Substantive due process involves the exercise

10

The plaintiffs have presented and briefed their claim as a

substantive due process claim under the Fifth Amendment.

As the Supreme Court has held: “Due process requires that a

pretrial detainee not be punished. A sentenced inmate, on the

other hand, may be punished, although that punishment may

not be ‘cruel and unusual’ under the Eighth Amendment.”

Bell v. Wolfish, 441 U.S. 520, 537 n. 16 (1979) (emphasis added)

(concluding that the court of appeals appropriately relied on

the Due Process Clause rather than the Eighth Amendment

in adjudicating the rights of pretrial detainees); see also

Ingraham v. Wright, 430 U.S. 651, 671 n. 40 (1977) (finding that

“[w]here the state seeks to impose punishment without [an

adjudication of guilt], the pertinent constitutional guarantee

is the Due Process Clause”). The government suggests that the

constitutional inquiry here requires this court to “wade into

the murky waters of that most amorphous of constitutional

doctrines, substantive due process.” See Tun v. Whitticker, 398

F.3d 899, 900 (7th Cir. 2005). As we have consistently said,

however, “[t]he protections for pre-trial detainees are ‘at least

as great as the Eighth Amendment protections available to a

convicted prisoner’ . . . and we frequently consider the

standards to be analogous.” Washington v. LaPorte County

Sheriff’s Dep’t, 306 F.3d 515, 517 (7th Cir. 2002), quoting City

of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983).

We thus look to the case law for both substantive due process

and the Eighth Amendment in examining the plaintiffs’ claims.

We are confident that the Framers meant to forbid abusive

treatment of uncharged and unconvicted detainees where

the same abusive treatment of a convicted prisoner would

be prohibited.

34 Nos. 10-1687 & 10-2442

of governmental power without reasonable justifica-

tion. . . . It is most often described as an abuse of govern-

ment power which ‘shocks the conscience.’ ” Tun, 398 F. 3d

at 902, quoting Rochin v. California, 342 U.S. 165, 172 (1952).

The physical or mental torture of U.S. citizens, as the

district court concluded, is a paradigm of conduct that

“shocks the conscience.” Vance, 694 F. Supp. 2d at 966.

The Supreme Court “has long held that certain inter-

rogation techniques, either in isolation or as applied to

the unique characteristics of a particular suspect, are

so offensive to a civilized system of justice that they

must be condemned under the Due Process Clause.”

Miller v. Fenton, 474 U.S. 104, 109 (1985); see also Wilkerson

v. Utah, 99 U.S. 130, 136 (1878) (concluding that “it is

safe to affirm that punishments of torture . . . are

forbidden by . . . the Constitution”). The defendants do

not argue that the plaintiffs’ allegations, if pled correctly,

do not amount to a violation of a constitutional right.

See Def. Br. at 50-51. Doing so would be futile.

The defendants instead argue that plaintiffs have

not alleged more than “vague, cursory, and conclusory

references to [their] conditions of confinement, without

sufficient factual information from which to evaluate

their constitutional claim.” This argument, which is

more of a pleading argument to extend Iqbal and

Twombly than an argument about qualified immunity, is

not persuasive. The defendants argue, for example, that

while the plaintiffs allege that their cells were extremely

cold, they provide no “factual context, no elaboration,

no comparisons.” At this stage of the case, we are

Nos. 10-1687 & 10-2442 35

satisfied with the description of the cells as “extremely

cold.” Cf. Fed. R. Civ. P. 84 and Forms 10-15 (sample

complaints that “illustrate the simplicity and brevity

that these rules contemplate”).

The defendants also suggest that the plaintiffs did not

detail in their Complaint whether they sought and were

denied warmer clothing or blankets. Even if it was not

necessary, the plaintiffs actually specified the clothing

and bedding that was available to each of them — a

single jumpsuit and a thin plastic mat. The defendants

also argue that plaintiffs did not specify how long

they were deprived of sleep. That level of detail is not

required at this stage, but a fair reading of this

Complaint indicates that the sleep deprivation tactics

were a constant for the duration of their detention, as

was the physical and psychological abuse by prison

officials.

As the defendants acknowledge, a substantive due

process inquiry requires “an appraisal of the totality of

the circumstances rather than a formalistic examination

of fixed elements.” See Armstrong v. Squadrito, 152 F.3d

564, 570 (7th Cir. 1998) (reversing summary judgment

for defendants). The plaintiffs have alleged sufficient

details to conclude at this stage of the proceedings

that, if true, their treatment, when considered in the

aggregate, amounted to torture in violation of their right

36 Nos. 10-1687 & 10-2442

to substantive due process.1 1

11

The district court thought the Complaint was sufficient, and

so do we. But even if we found some inadequacy in the

details of the already detailed pleading, through an unusually

vigorous extension of the Iqbal pleading standard, for example,

plaintiffs would be entitled to an opportunity to amend their

Complaint to remedy any perceived defects. Basic fairness

and the liberal amendment policy under Federal Rule of Civil

Procedure Rule 15(a)(2) would require that plaintiffs be given

an opportunity to cure the defects, if they could, at least

absent undue delay, bad faith, dilatory motive, or undue

prejudice. See, e.g., Bausch v. Stryker Corp., 630 F.3d 546, 562

(7th Cir. 2010); Airborne Beepers & Video, Inc. v. AT&T Mobility

LLC, 499 F.3d 663, 666 (7th Cir. 2007). The Supreme Court’s

recent decisions in Iqbal and Twombly have created new uncer-

tainties about the level of detail required in pleadings under

the notice pleading regime of the Federal Rules of Civil Pro-

cedure. Circuit and district courts have not yet identified a

clear boundary between what is sufficient and what is not.

See, e.g., Swanson v. Citibank N.A., 614 F.3d 400, 403 (7th Cir.

2010) (observing that courts are “still struggling” with “how

much higher the Supreme Court meant to set the bar, when

it decided not only Twombly, but also Erickson v. Pardus, 551

U.S. 89 (2007), and [Iqbal],” and noting that “[t]his is not an

easy question to answer”); see also Swanson, 614 F.3d at 411

(Posner, J., dissenting in part) (noting the “opaque language”

that the Supreme Court used to establish the “plausibility”

requirement). As Professor Miller has suggested, “inconsistent

rulings on virtually identical complaints may well be based

on individual judges having quite different subjective views

of what allegations are plausible.” See Arthur R. Miller, From

Conley to Twombly to Iqbal: A Double Play on the Federal Rules

(continued...)

Nos. 10-1687 & 10-2442 37

Though Vance and Ertel were never charged with, let

alone convicted of, any crime, our precedents con-

cerning the abuse of convicted criminals help guide

our thinking about whether the alleged abuse violated a

constitutional right. As the Supreme Court concluded

recently, “[p]risoners retain the essence of human dignity

inherent in all persons. Respect for that dignity animates

the Eighth Amendment prohibition against cruel and

unusual punishment. The basic concept underlying the

Eighth Amendment is nothing less than the dignity of

man.” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011) (citations

omitted); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976)

(concluding that the Eighth Amendment “embodies

broad and idealistic concepts of dignity, civilized stan-

dards, humanity, and decency . . . against which we

must evaluate penal measures”) (citations omitted). It is

important to keep these fundamental concepts in mind

as we focus on the claims before us. See Forrest v. Prine,

11

(...continued)

of Civil Procedure, 60 Duke L. J. 1, 30-31 (2010) (describing

“confusion and disarray among judges and lawyers” in

applying Iqbal). Rule 1 instructs courts to construe the rules

to secure the “just” determination of lawsuits, and there is a

general policy in favor of allowing parties to have their cases

decided on their merits. See, e.g., Swierkiewicz, 534 U.S. at 514;

Christensen v. County of Boone, 483 F.3d 454, 458 (7th Cir. 2007).

A reversal for inadequate pleading would require an opportu-

nity to cure the defect unless it were clear that the defect

could not be cured.

38 Nos. 10-1687 & 10-2442

620 F.3d 739, 744 (7th Cir. 2010) (borrowing Eighth Amend-

ment standards to analyze pre-trial detainee’s claim).

Examining the plaintiffs’ claims against the backdrop

of the Supreme Court’s decisions on prison conditions

of confinement and prison treatment cases, we remem-

ber that abuse in American prisons was once authorized

and even thought of as part of the punishment of pris-

oners. See, e.g., Hope v. Pelzer, 536 U.S. 730 (2002) (detailing

authorized state practice of chaining inmates to one

another and to hitching posts in the hot sun); Hutto v.

Finney, 437 U.S. 678, 682 nn. 4-5 (1978), citing Talley v.

Stephens, 247 F. Supp. 683 (E.D. Ark. 1965) (describing

the lashing of inmates with a “wooden-handled leather

strap five feet long and four inches wide” as part of

authorized corporal punishment program) and Jackson

v. Bishop, 268 F. Supp. 804 (E.D. Ark. 1967) (describing the

use of a “Tucker telephone,” a hand-cranked instrument

“used to administer electrical shocks to various sensitive

parts of an inmate’s body” in prison that authorized the

use of a strap to punish prisoners), remanded with orders

for broader relief, 404 F.2d 571 (8th Cir. 1968) (Blackmun, J.).

Today, the idea that a prisoner in a U.S. prison might

be abused in such a manner and not have judicial

recourse is unthinkable. While the Constitution

“does not mandate comfortable prisons, . . . neither does

it permit inhumane ones.” Farmer, 511 U.S. at 832

(citations omitted) (noting that the Eighth Amendment

requires that prison officials “ensure that inmates

receive adequate food, clothing, shelter, and medical

care, and . . . ‘take reasonable measures to guarantee

Nos. 10-1687 & 10-2442 39

the safety of the inmates’ ”). If a prisoner in a U.S. prison

had his head covered and was repeatedly “walled,” or

slammed into walls on the way to interrogation

sessions, we would have no trouble acknowledging that

his well-pled allegations, if true, would describe a

violation of his constitutional rights. See, e.g., Hudson v.

McMillian, 503 U.S. 1 (1992) (concluding that the use

of excessive physical force against a prisoner may consti-

tute cruel and unusual punishment even where prisoner

is not seriously injured).

If a prisoner was kept awake as much as possible, kept

in insufferably cold conditions, and not given sufficient

bedding or clothing, we would likewise believe that

there could well have been a violation of his constitu-

tional rights. See, e.g., Wilson v. Seiter, 501 U.S. 294, 304

(1991) (clarifying that “[s]ome conditions of confine-

ment may establish an Eighth Amendment violation

‘in combination’ when each would not do so alone, but

only when they have a mutually enforcing effect that

produces the deprivation of a single, identifiable

human need such as food, warmth, or exercise — for

example, a low cell temperature at night combined with

a failure to issue blankets”). If a U.S. prisoner with a

serious medical condition is denied medical attention

or has necessary medicine withheld, that too can

violate the prisoner’s constitutional rights. See Estelle,

429 U.S. at 104 (concluding that deliberate indifference

to serious medical needs states a claim under the

Eighth Amendment); Board v. Farnham, 394 F.3d 469, 480-

81 (7th Cir. 2005) (holding that allegations of dental

problems constitute objectively serious harm under the

40 Nos. 10-1687 & 10-2442

Eighth Amendment). The plaintiffs in this case, detained

without charges, have pled in detail allegations of

such severe conditions and treatment, the likes of which

courts have held unconstitutional when applied to con-

victed criminals in U.S. prisons. The allegations of

abuse state claims for violations of the constitutional

right not to be deprived of liberty without substantive

due process of law.

2. The Rights Were Clearly Established

To decide qualified immunity, we turn next to

whether the alleged rights were clearly established. “The

relevant, dispositive inquiry in determining whether a

right is clearly established is whether it would be clear

to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Brosseau v. Haugen, 543 U.S.

194, 199 (2004), quoting Saucier, 533 U.S. at 202. The

question is whether a reasonable official in Secretary

Rumsfeld’s position would have known that the

conduct he allegedly authorized violated the Constitu-

tion of the United States.

This is not a case where the precise violation must

have been previously held unlawful. Where the constitu-

tional violation is patently obvious and the contours of

the right sufficiently clear, a controlling case on point is

not needed to defeat a defense of qualified immunity.

See, e.g., Hope, 536 U.S. at 741 (reversing grant of

qualified immunity for prison officials who chained a

prisoner to a post for seven hours in the hot sun);

Nanda v. Moss, 412 F.3d 836, 844 (7th Cir. 2005). Given

Nos. 10-1687 & 10-2442 41

the totality of the plaintiffs’ allegations, that they were

interrogated with physical violence and threats, were

kept in extremely cold cells without adequate clothing,

were continuously deprived of sleep, and were often

deprived of food, clothing, and medical care, a reason-

able official in Secretary Rumsfeld’s position in 2006

would have known that this amounted to unconstitu-

tional treatment of a civilian U.S. citizen detainee. See,

e.g., Farmer, 511 U.S. at 832; Hudson, 503 U.S. at 4; Estelle,

429 U.S. at 104. Lest there might have been any

uncertainty on the point, Congress had twice recently

and expressly provided as much as a matter of

statutory law. See Ronald W. Reagan National Defense

Authorization Act for Fiscal Year 2005, 10 U.S.C. § 801, stat.

note § 1092 (stating that U.S. military policy prohibits

techniques that violate the Constitution and instructing

Secretary of Defense to ensure that polices are con-

sistent with international obligations and laws of the

United States); Detainee Treatment Act, 10 U.S.C. § 801,

stat. not. § 1002 (limiting interrogation techniques to

those authorized in the Army Field Manual).

The defendants offer a final argument that the law was

not sufficiently developed with respect to the treatment

of detainees in the context of military detention for the

plaintiffs to allege adequately the violation of a clearly

established constitutional right by Secretary Rumsfeld.

The defendants argue that the Supreme Court and ap-

pellate courts “have struggled, and continue to struggle,

with the precise constitutional contours applicable to

the detention of individuals — citizen and non-citizen

alike — seized in a foreign war zone.” On this point,

42 Nos. 10-1687 & 10-2442

however, the defendants cite only cases involving proce-

dural due process claims: Munaf v. Geren, 553 U.S. 674

(2008), Boumediene v. Bush, 553 U.S. 723 (2008), and Hamdi

v. Rumsfeld, 542 U.S. 507 (2004). Those procedural issues

are undoubtedly difficult. But they shed no useful light

on how a reasonable federal official might have thought

that the Constitution permitted him to torture, or to

authorize the torture of, a civilian U.S. citizen. The defen-

dants themselves acknowledge that, if properly pled,

allegations of violations of substantive due process, the

likes of which the plaintiffs have raised, would amount

to a constitutional violation. In sum, a reasonable official

in Secretary Rumsfeld’s position in 2006 would have

realized that the right of a United States citizen to be

free from torture at the hands of one’s own govern-

ment was a “clearly established” constitutional right

and that the techniques alleged by plaintiffs add up to

torture. We affirm the district court’s decision to deny

dismissal based on qualified immunity.

C. Bivens Claims by Civilian U.S. Citizens in a War Zone

There can be no doubt that if a federal official, even

a military officer, tortured a prisoner in the United States,

the tortured prisoner could sue for damages under

Bivens. See Carlson v. Green, 446 U.S. 14 (1980) (allowing

Bivens claim against prison officials who were delib-

erately indifferent to prisoner’s serious medical

needs); Saucier, 533 U.S. 194 (holding that military police

officer was entitled to qualified immunity on civilian’s

Bivens claim for excessive force, without suggesting that

Nos. 10-1687 & 10-2442 43

any broader immunity might apply). In this case,

however, the defendants assert a broad immunity from

suit under Bivens, claiming that civilian U.S. citizens

can never pursue a Bivens action against any U.S.

military personnel if the constitutional violations

occurred in a war zone. We review this question of law

de novo. See Thomas v. General Motors Acceptance Corp.,

288 F.3d 305, 307 (7th Cir. 2002); Wilson v. Libby, 535

F.3d 697, 704 (D.C. Cir. 2008).

The unprecedented breadth of defendants’ argument

should not be overlooked. The defendants contend that

a Bivens remedy should not be available to U.S. citizens

for any constitutional wrong, including torture and even

cold-blooded murder, if the wrong occurs in a war zone.

The defendants’ theory would apply to any soldier or

federal official, from the very top of the chain of com-

mand to the very bottom. We disagree and conclude

that the plaintiffs may proceed with their Bivens claims.

We address first the nature of the Bivens remedy and

then apply the two-step process the Supreme Court has

applied for deciding when a Bivens remedy should be

available. The first step is to consider whether there is a

sufficient “alternative remedy” for the alleged constitu-

tional wrong indicating that Congress has intended to

supplant Bivens. Here there is no meaningful alterna-

tive, and the defendants do not argue otherwise. The

second step is to consider whether “special factors”

weigh against recognition of a Bivens remedy under the

circumstances. In taking this second step, we explain

that the key elements of plaintiffs’ claims are well estab-

44 Nos. 10-1687 & 10-2442

lished under Bivens: (a) that civilian claims against

military personnel are permissible; (b) that claims based

on abuse of prisoners are permissible; (c) that the Con-

stitution governs the relationship between U.S. citizens

and their government overseas; and (d) that claims

against current and former cabinet officials are permit-

ted. We then conclude that Congress has not indicated

any bar to claims under these circumstances. In fact,

Congress has acted to provide civil remedies to aliens who

are tortured by their governments. It would be extra-

ordinary to find that there is no such remedy for U.S.

citizens tortured by their own government. In taking the

second step, we then weigh and reject the defendants’

arguments and authorities offered to support a special

rule that would immunize government officials from

Bivens liability for the torture, or worse, of a civilian

U.S. citizen in a war zone.

Section 1 of the Civil Rights Act of 1871, codified as

42 U.S.C. § 1983, authorizes civil lawsuits against state

and local government officials for the deprivation of

federal constitutional and statutory rights. No analogous

statute broadly authorizes similar suits against federal

officials. The Supreme Court recognized in Bivens, how-

ever, that private citizens have an implied right of

action directly under the Constitution to recover

damages against federal officials for constitutional viola-

tions even where Congress has not conferred such a

right by statute. In Bivens, the plaintiff sued federal

law enforcement agents for searching his property

without a warrant, using excessive force, and arresting

him without probable cause. In holding that Bivens

Nos. 10-1687 & 10-2442 45

was entitled to sue the agents for damages, the

Supreme Court observed that “where federally pro-

tected rights have been invaded, it has been the rule

from the beginning that courts will be alert to adjust

their remedies so as to grant the necessary relief.” Bivens,

403 U.S. at 392, quoting Bell v. Hood, 327 U.S. 678, 684

(1946). “Historically, damages have been regarded as

the ordinary remedy for an invasion of personal interests

in liberty.” Id. at 395. The Bivens remedy has been

designed to prevent constitutional rights from becoming

“merely precatory.” Davis v. Passman, 442 U.S. 228, 242

(1979) (holding that congressional employee could sue

member of Congress for sex discrimination in employ-

ment in violation of equal protection branch of Fifth

Amendment due process right).1 2

The Supreme Court’s more recent Bivens decisions

direct us to exercise caution in recognizing Bivens

remedies in new contexts. Bivens does not provide an

“automatic entitlement” to a remedy for a constitutional

12

Long before Bivens, federal courts provided remedies for

federal officials’ violations of federal law, and individuals

sought post-deprivation remedies against federal officials in

federal court. See Iqbal, 129 S. Ct. at 1948, citing, e.g., Dunlop

v. Munroe, 11 U.S. (7 Cranch) 242, 268 (1812) (concluding, in

case against postmaster, that a federal official’s liability

“will only result from his own neglect in not properly superin-

tending the discharge” of his subordinates’ duties); Little v.

Barreme, 6 U.S. (2 Cranch) 170, 178-79 (1804) (holding that

commander of a warship was “answerable in damages” to the

owner of a neutral vessel seized pursuant to orders from

President but in violation of statute).

46 Nos. 10-1687 & 10-2442

violation by a federal official, and “any freestanding

damages remedy for a claimed constitutional violation

has to represent a judgment about the best way to imple-

ment a constitutional guarantee.” Wilkie v. Robbins, 551

U.S. 537, 550 (2007). We have reminded plaintiffs that

Bivens is not an automatic “gap-filler, available when-

ever a plaintiff seeks a particular remedy not provided

for by any statute or regulation, for a constitutional

violation by federal officers.” Robinson v. Sherrod, 631

F.3d 839, 842 (7th Cir. 2011); see also United States v.

Norwood, 602 F.3d 830, 836 (7th Cir. 2010). Given this

history, as well as the gravity of the claims before us, we

“proceed cautiously” in determining whether to allow

Vance and Ertel to pursue a cause of action under Bivens.

See Bagola v. Kindt, 131 F.3d 632, 638 (7th Cir. 1997).1 3

The Supreme Court has developed a two-step test for

structuring judgments about whether a particular

Bivens claim should be recognized. First, courts must

consider “whether any alternative, existing process for

13

Some members of the Supreme Court have said that Bivens

is outdated. Wilkie, 551 U.S. at 568 (Thomas, J., concurring);

Correctional Services Corp. v. Malesko, 534 U.S. 61, 75 (2001)

(Scalia, J., concurring) (observing that “Bivens is a relic of the

heady days in which this Court assumed common-law powers

to create causes of action-decreeing them to be ‘implied’ by the

mere existence of a statutory or constitutional prohibition.”).

Despite this criticism, Bivens remains the law of the land, and

it remains one vital way of ensuring that fundamental guaran-

tees in the Bill of Rights are not hollow, precatory promises.

Wilkie provides a helpful and recent guide for its application.

Nos. 10-1687 & 10-2442 47

protecting the interest amounts to a convincing reason

for the Judicial Branch to refrain from providing a new

and freestanding remedy in damages.” Wilkie, 551 U.S.

at 550. Where Congress has provided for an adequate

alternative remedy, an implied Bivens remedy is neither

necessary nor available. The Court has reached this

conclusion in two cases where Congress has established

comprehensive and well-defined civil remedies: Social

Security benefits, in Schweiker v. Chilicky, 487 U.S. 412

(1988), and federal civil service employment, in Bush

v. Lucas, 462 U.S. 367 (1983).

If there is no sufficient alternative, the courts must

proceed to the second step of the Bivens test, as

described in Bush: “the federal courts must make the

kind of remedial determination that is appropriate for a

common-law tribunal, paying particular heed, however,

to any special factors counselling hesitation before autho-

rizing a new kind of federal litigation.” Bush, 462 U.S.

at 378, quoted in Wilkie, 551 U.S. at 550.

1. Step One — Alternative Remedies

The first step of the inquiry is to consider “whether

any alternative, existing process for protecting the

interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and

freestanding remedy in damages.” Wilkie, 551 U.S. at

550. The short answer is no. The defendants do not sug-

gest that there is any alternative remedial scheme at

all comparable to the Social Security procedures and

remedies in Schweiker or the federal civil service pro-

48 Nos. 10-1687 & 10-2442

cedures and remedies in Bush. While the defendants

do not argue that there is an “alternative remedy,”

their “special factors” arguments invite us to look more

broadly for indications of Congressional intent as to

whether a Bivens action should be permitted under the

circumstances. We do so below in our discussion of

“special factors” in the second step.

Although the defendants do not argue that there is an

“alternative remedy” for the plaintiffs, an amicus brief

by former Secretaries of Defense and Members of the

Joint Chiefs of Staff addresses the issue. They argue, as

defendants do not, that Congress has created an

elaborate and well-structured scheme for remedies and

an administrative system that encourages detainees to

make complaints. These amici suggest that Vance

and Ertel enjoyed the protections of, among others,

the Geneva Conventions, the Coalition of Provisional

Authority Memorandum #3, and the Uniform Code of

Military Justice. They argue that the plaintiffs are not

entitled to pursue Bivens claims because they could

have taken advantage of these protections by com-

plaining about their treatment at the time of their deten-

tion.

We respect these amici and their distinguished

public service. For three reasons, however, we are not

persuaded by the argument that a Bivens remedy should

be barred because detainees who are being tortured

may submit a complaint about their treatment to the

very people who are responsible for torturing them.

First, if, as plaintiffs allege here, there was a problem

stretching to the very top of the chain of command, it

Nos. 10-1687 & 10-2442 49

would make little sense to limit their recourse to

making complaints within that same chain of command.

Second, the opportunity to complain offers no actual

remedy to those in plaintiffs’ position other than

possibly to put a stop to the ongoing torture and abuse.

A system that might impose discipline or criminal pros-

ecution of the individuals responsible for their treat-

ment does not offer the more familiar remedy of dam-

ages. Third, during oral argument, plaintiffs’ counsel

asserted that Vance and Ertel in fact did complain

about their treatment while detained. At least one of

the men had face-to-face conversations with the com-

mander of Camp Cropper, who said there was nothing

he could do about their treatment.1 4

14

The panel invited this elaboration on the plaintiffs’

complaint, as permitted on appeal of a Rule 12(b)(6) decision

as long as the elaboration is not inconsistent with the com-

plaint. See supra n. 6. The friends of the court refer to the

applicable Army Regulation 190-8, which states that if civilian

detainees are “not satisfied with the way the commander

handles a complaint or request, they may submit it in writ-

ing.” AR 190-8, § 6-9. The matter must be reported up the

chain of command, investigated, and remedied under DoD

Directive 5100.77 (Dec. 9, 1998). Def. Sec. Amicus Br. at 11.

The amici note that at the time the plaintiffs were detained,

there had been more than 800 investigations by military law

enforcement officials of alleged detainee abuse. Id. at 13 n.8.

We do not believe that this is the kind of comprehensive

remedial system that would preclude a Bivens remedy. Ap-

parently, neither does the government; its brief does not rely

on this internal administrative complaint system.

50 Nos. 10-1687 & 10-2442

The administrative remedy of inviting detainees to

complain about their treatment is also nothing like the

alternative remedies that the Supreme Court has found

to preclude Bivens remedies in Schweiker and Bush.

Those elaborate and comprehensive remedial systems

provided meaningful safeguards and remedies estab-

lished by Congress for victims of official wrongdoing.

See Schweiker, 487 U.S. at 425. The situation before us is

very different: Congress has not given civilian U.S.

citizens claiming torture by U.S. officials in a war zone

anything like the “frequent and intense” attention it

has given the Social Security system and disability

review. Id. It has not provided these plaintiffs any rem-

edy. As we have concluded in other Bivens cases, “without

an explicit indication from Congress, we will not foreclose

this right when the statutory remedy is wholly inade-

quate.” Bagola, 131 F.3d at 645. Here, there is no statutory

remedy at all. We must proceed to step two of the Bivens

inquiry.15

15

Our dissenting colleague argues that we should leave the

question of remedies entirely to Congress. Although we dis-

agree, for reasons explained at length in the text, nothing in

our reasoning would prevent Congress from addressing the

problems posed here with a statutory solution. The Bivens

line of cases shows that when Congress has acted to address the

relevant context, as in Social Security and civil service cases,

courts have been more than willing to defer to congressional

solutions.

Nos. 10-1687 & 10-2442 51

2. Step Two — “Special Factors”

The second step of the Bivens inquiry is to make “the

kind of remedial determination that is appropriate

for a common-law tribunal, paying particular heed,

however, to any special factors counselling hesitation

before authorizing a new kind of federal litigation.” Bush,

462 U.S. at 378, quoted in Wilkie, 551 U.S. at 550. We

must be cautious in addressing the question, but we

can draw sound guidance from many precedents ad-

dressing closely related problems. In considering

this special factors analysis, we note first the breadth of

the proposed defense and the narrowness of the

asserted claim. We then turn to the Bivens precedents

dealing with civilian claims against military personnel,

those dealing with claims of abuse of prisoners, and

then the more general principles that apply to the

Bill of Rights outside of United States territory. We con-

sider then the precedents and arguments relied upon

by the defendants, including their invitation to con-

sider Congressional intent in this area.

a. The Scope of the Defense and the Claim

The defendants’ principal Bivens argument is that,

because this case arose in a foreign war zone, no Bivens

claim should be recognized. This sweeping defense is

proposed against a fairly narrow claim. The defendants

are arguing for a truly unprecedented degree of im-

munity from liability for grave constitutional wrongs

committed against U.S. citizens. The defense theory

52 Nos. 10-1687 & 10-2442

would immunize not only the Secretary of Defense but

all personnel who actually carried out orders to torture

a civilian U.S. citizen. The theory would immunize

every enlisted soldier in the war zone and every officer

in between. The defense theory would immunize them

from civil liability for deliberate torture and even cold-

blooded murder of civilian U.S. citizens. The United

States courts, and the entire United States government,

have never before thought that such immunity is needed

for the military to carry out its missions.1 6

In asserting this broad defense, defendants have

also sought to broaden plaintiffs’ claims beyond those

they are actually asserting. Contrary to the defense argu-

ments, plaintiffs are not asserting a broad challenge to

the detention or interrogation policies of the United

States military. Plaintiffs assert that their treatment was

16

We hope that the serious claims before us are truly unusual,

but the defense theory is of particular concern because of our

nation’s increased reliance on civilian contractors in modern

war zones. A majority of our nation’s wartime presence in

Iraq and Afghanistan has been made up of private contractors.

The Congressional Research Service reported that, as of

March 2011, the Department of Defense had more contractor

personnel (155,000) than uniformed personnel (145,000) in

Iraq and Afghanistan. In Iraq, as of March 2011, there

were 64,253 Defense Department contractors and 45,660 uni-

formed personnel in the country. See “Department of

Defense Contractors in Afghanistan and Iraq: Background and

Analysis,” Moshe Schwartz and Joyprada Swain, Congressional

Research Service (May 13, 2011).

Nos. 10-1687 & 10-2442 53

actually contrary to explicit statutory law and stated

military policy, because they claim they were subjected

to interrogation techniques that were not authorized by

the applicable Army Field Manual. This case, in other

words, does not invite a broad debate over appropriate

detention and interrogation techniques in time of war.

It presents factual issues over whether there was a delib-

erate decision to violate the U.S. Constitution and other

applicable laws and, if so, who was responsible for that

decision. With the broad scope of the proposed defense

and the narrow focus of the asserted claim, we turn to

precedent for guidance.

b. Precedents Supporting Plaintiffs’ Claims

The key elements of plaintiffs’ claims for constitutional

wrongs committed by military officials are all familiar

in Bivens jurisprudence, and nothing about their claims

would extend Bivens beyond its “core premise,” which

is “the deterrence of individual officers who commit

unconstitutional acts.” Correctional Services Corp. v.

Malesko, 534 U.S. 61, 71 (2001). That point does not end

the “special factors” debate, but it provides a useful

starting point.

First, of course, it is well established that Bivens is

available to prisoners who assert that they have been

abused or mistreated by their federal jailors. In Carlson,

446 U.S. 14, the Supreme Court reversed dismissal of a

complaint in which a deceased prisoner’s representa-

tive sued for violation of the Eighth Amendment pro-

hibition on cruel and unusual punishment, in that case

54 Nos. 10-1687 & 10-2442

through an alleged deliberate denial of needed medical

care. Since Carlson, we have regularly allowed prisoners

to pursue their constitutional challenges against

federal prison officials as Bivens claims. See, e.g., Bagola,

131 F.3d 632 (concluding that district court properly

heard Bivens claim alleging injury as part of prison

work program where workers’ compensation program

did not provide adequate safeguards to protect pris-

oner’s Eighth Amendment rights); Del Raine v. Williford,

32 F.3d 1024 (7th Cir. 1994) (recognizing prisoner’s

Bivens claim alleging that he was forced to live in

bitterly cold cell). The fact that the plaintiffs were im-

prisoned while not even charged with, let alone

convicted of, any crime only tends to emphasize how

familiar this aspect of their claim is.

Second, it is also well established under Bivens that

civilians may sue military personnel who violate their

constitutional rights. For example, Saucier v. Katz, 533

U.S. 194, an important but now overruled qualified im-

munity case, was a Fourth Amendment excessive

force claim by a civilian against a military police officer.

There was no suggestion that the civilian could not sue

the military police officer. Circuit courts have also

decided a number of Bivens cases brought by civilians

against military personnel. See, e.g., Case v. Milewski, 327

F.3d 564 (7th Cir. 2003) (civilian claim against military

officers for Fourth and Fifth Amendment violations);

Morgan v. United States, 323 F.3d 776 (9th Cir. 2003) (civilian

claim against military police for search of vehicle);

Roman v. Townsend, 224 F.3d 24 (1st Cir. 2000) (civilian

claim against military police officer and Secretary of the

Nos. 10-1687 & 10-2442 55

Army for improper arrest and treatment in detention);

Applewhite v. United States Air Force, 995 F.2d 997 (10th

Cir. 1993) (civilian claim against military investigators

for unlawful search and removal from military base);

see also Willson v. Cagle, 711 F. Supp. 1521, 1526 (N.D. Cal.

1988) (concluding that “a Bivens action may potentially

lie against military officers and civilian employees of

the military” for protesters injured when a military muni-

tions train collided with them), aff’d mem., 900 F.2d 263

(9th Cir. 1990) (affirming denial of qualified immunity);

Barrett v. United States, 622 F. Supp. 574 (S.D.N.Y. 1985)

(allowing civilian’s Bivens claim to proceed against

military officials for their alleged concealment of

their role in the creation and administration of an

army chemical warfare experiment in which her father

unknowingly served as a test subject), aff’d, 798 F.2d 565

(2d Cir. 1986). While such claims often fail on the merits

or for other reasons, the fact that a civilian has sued a

military official is not a basis for denying relief under

Bivens.17

17

We are not persuaded by the defendants’ reliance on Chappell

v. Wallace, 462 U.S. 296 (1983), and United States v. Stanley,

483 U.S. 669 (1987), two cases in which the Supreme Court

applied the “special factors” analysis to hold that one

member of the U.S. Armed Forces could not sue another

member of the Armed Forces under Bivens. Both decisions

were based on the unique disciplinary structure within the

military. Neither case provides a basis for rejecting a Bivens

claim by a civilian against a military official.

56 Nos. 10-1687 & 10-2442

Third, when civilian U.S. citizens leave the United

States, they take with them their constitutional rights that

protect them from their own government. In Reid v.

Covert, 354 U.S. 1 (1957), the Supreme Court held that

civilian members of military families could not be tried

in courts-martial. Justice Black wrote for a plurality of

four Justices:

At the beginning we reject the idea that when the

United States acts against citizens abroad it can do

so free of the Bill of Rights. The United States is en-

tirely a creature of the Constitution. Its power and

authority have no other source. It can only act in

accordance with all the limitations imposed by the

Constitution. When the Government reaches out to

punish a citizen who is abroad, the shield which the

Bill of Rights and other parts of the Constitution

provide to protect his life and liberty should not

be stripped away just because he happens to be in

another land. This is not a novel concept. To the

contrary, it is as old as government.

Id. at 5-6. The general proposition remains vital, as

recently reaffirmed in Boumediene, holding that aliens

held as combatants at Guantanamo Bay may invoke the

writ of habeas corpus to challenge their detention:

“Even when the United States acts outside its borders,

its powers are not ‘absolute and unlimited’ but are

subject ‘to such restrictions as are expressed in the Con-

stitution.’ ” 553 U.S. at 765, quoting Murphy v. Ramsey,

114 U.S. 15, 44 (1885); see also Munaf, 553 U.S. at

688 (holding that civilian U.S. citizens held in U.S.

Nos. 10-1687 & 10-2442 57

military custody in Iraq could seek petition for the writ

of habeas corpus in federal district court). Cf. United

States v. Verdugo-Urquidez, 494 U.S. 259 (1990)

(holding that non-resident alien could not invoke

Fourth Amendment to challenge search by U.S. officials

in foreign country).

Fourth, defendant Rumsfeld is being sued for actions

taken and decisions made while serving at the highest

levels of the United States government. We express no

view at this stage as to whether plaintiffs can prove

their factual allegations. The former rank of the

defendant, however, is not a basis for rejecting the plain-

tiffs’ claims. The Supreme Court has repeatedly enter-

tained Bivens actions against other cabinet members.

See, e.g., Mitchell v. Forsyth, 472 U.S. 511 (1985) (holding

that Attorney General was entitled to qualified im-

munity, not absolute immunity, from damages suit

arising out of national security-related actions); Harlow

v. Fitzgerald, 457 U.S. at 818 (concluding that senior

aides and advisors of the President of the United States

may be entitled to qualified immunity from liability

when their conduct “does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known”); Halperin v. Kissinger, 606

F.2d 1192 (D.C. Cir. 1979) (concluding that senior

Executive Branch officials, including a former president

of the United States, were not absolutely immune from

suit for damages by citizen alleging an unconstitutional

wiretap), aff’d in pertinent part, 452 U.S. 713 (1981); Butz

v. Economou, 438 U.S. 478 (1978) (concluding that

federal officials in the Executive Branch, including the

58 Nos. 10-1687 & 10-2442

Secretary of Agriculture, ordinarily may be entitled to

qualified immunity, not absolute immunity, from con-

stitutional claims).

c. The Defense Arguments and Precedents for

Special Factors

Although the principal elements of plaintiffs’ claims

are familiar aspects of Bivens jurisprudence, the claims are

challenging because they arose in a U.S. military

prison in Iraq during a time of war. As the defendants

acknowledged at oral argument, however, neither the

Supreme Court nor any other federal circuit court has

ever denied civilian U.S. citizens a civil remedy for their

alleged torture by U.S. government officials.

i. Military Affairs and National Security

The defendants’ argument that the courts should stay

out of military affairs rests on the assumption that the

plaintiffs are mounting a broad challenge to U.S.

military and detention policy, raising issues of national

security and even foreign relations. If plaintiffs were

actually seeking a general review of “military actions

and policies,” as the defense suggests, this case would

present different issues. That is not what plaintiffs

seek. They are not challenging military policymaking

and procedure generally, nor an ongoing military ac-

tion. They challenge only their particular torture at

the hands and direction of U.S. military officials, contrary

to statutory provisions and stated military policy, as

Nos. 10-1687 & 10-2442 59

well as the Constitution. Allowing Bivens liability in

these unusual circumstances would not make courts, as

defendants suggest, “the ultimate arbiters of U.S.

military or foreign policy.”

We are sensitive to the defendants’ concerns that the

judiciary should not interfere with military decision-

making. The “Constitution recognizes that core strategic

matters of warmaking” rest with the Executive. Hamdi,

542 U.S. at 531. But it is equally clear that “[w]hile we

accord the greatest respect and consideration to the

judgments of military authorities in matters relating to

the actual prosecution of a war, and recognize that the

scope of that discretion necessarily is wide, it does not

infringe on the core role of the military for the courts

to exercise their own time-honored and constitutionally

mandated roles of reviewing and resolving claims.” Id.

at 535; see also Ex parte Quirin, 317 U.S. 1, 19 (1942) (ac-

knowledging that “the duty which rests on the courts,

in time of war as well as in time of peace, [is] to

preserve unimpaired the constitutional safeguards of

civil liberty”). Recognizing the plaintiffs’ claims for

such grave — and, we trust, such rare — constitutional

wrongs by military officials, in a lawsuit to be heard well

after the fact, should not impinge inappropriately on

military decision-making.

The defendants raise the concern that litigation of the

plaintiffs’ claims “would inevitably require judicial

intrusion into matters of national security.” See Wilson,

535 F.3d at 710. This may be a serious concern, but at a

very pragmatic level, the fact that classified informa-

60 Nos. 10-1687 & 10-2442

tion (from years ago) might be implicated at some point

in this litigation is not a bar to allowing it to go forward

at this stage. If classified information becomes a

problem, the law provides tools to deal with it. As

Judge Calabresi explained in Arar v. Ashcroft, the state-

secrets privilege is the appropriate tool by which

state secrets are protected: “Denying a Bivens remedy

because state secrets might be revealed is a bit like

denying a criminal trial for fear that a juror might be

intimidated: it allows a risk, that the law is already at

great pains to eliminate, to negate entirely substantial

rights and procedures.” 585 F.3d at 635 (Calabresi, J.,

dissenting). As the majority in Arar acknowledged,

“courts can — with difficulty and resourcefulness —

consider state secrets and even reexamine judgments

made in the foreign affairs context when they must, that

is, when there is an unflagging duty to exercise our juris-

diction.” Id. at 575-76. Fear of the judiciary “intruding”

into national security should not prevent us from recog-

nizing a remedy at this stage, in this case.

Courts reviewing claims of torture in violation of

statutes such as the Detainee Treatment Act or in

violation of the Fifth Amendment do not endanger

the separation of powers, but instead reinforce the com-

plementary roles played by the three branches of

our government. See, e.g., Boumediene, 553 U.S. at 742

(“The Framers’ inherent distrust of governmental power

was the driving force behind the constitutional plan

that allocated powers among three independent

branches. This design serves not only to make Govern-

ment accountable but also to secure individual liberty.”);

Nos. 10-1687 & 10-2442 61

see also Hamdi, 542 U.S. at 536-37 (emphasizing, with

respect to challenges to the factual basis of a citizen’s

detention, that “it would turn our system of checks and

balances on its head to suggest that a citizen could not

make his way to court with a challenge to . . . his

detention by his Government, simply because the Execu-

tive opposes making available such a challenge”). The

defendants’ broad argument that the judiciary should

stay out of all matters implicating national security is

too broad to be convincing.

Our dissenting colleague suggests that “given the

significant pitfalls of judicial entanglement in military

decisionmaking, it must be Congress, not the courts,

that extends the remedy and defines its limits.” Dissent

at 88. We respectfully disagree. As the Supreme Court

said in Hamdi: “Whatever power the United States Con-

stitution envisions for the Executive . . . in times of

conflict, it most assuredly envisions a role for all

three branches when individual liberties are at stake.”

542 U.S. at 536.

Recent habeas corpus cases reinforce our under-

standing that federal courts have a role to play in safe-

guarding citizens’ rights, even in times of war. The

Hamdi Court, examining a claim by an American citizen

detained on U.S. soil as an enemy combatant, held that

the detainee was entitled to contest the basis for his

detention. “What are the allowable limits of military

discretion, and whether or not they have been over-

stepped in a particular case, are judicial questions.”

Hamdi, 542 U.S. at 535, quoting Sterling v. Constantin, 287

U.S. 378, 401 (1932).

62 Nos. 10-1687 & 10-2442

The Munaf Court later made clear that the habeas

statute “extends to American citizens held overseas by

American forces.” Munaf, 553 U.S. at 680. Thus, courts

may enforce the habeas rights of U.S. citizens in U.S.

military custody in Iraq, though in Munaf itself, relief

was denied because Iraq had a sovereign right to crimi-

nally prosecute the petitioners. Id. at 694-95.

Most recently, in Boumediene, the Supreme Court

held that aliens detained as enemy combatants at

Guantanamo Bay were entitled to seek a writ of

habeas corpus to challenge their detention and that the

Detainee Treatment Act review procedures were

an inadequate alternative to habeas corpus. 553 U.S. at

795. This line of cases undermines the defendants’

broad insistence that the judiciary must stay out of

all matters concerning wartime detention and interroga-

tion issues.18

18

The defendants suggest that “it is telling” that the plaintiffs

rely on habeas corpus cases rather than cases permitting

Bivens claims in the context of reviewing military actions and

policies, because habeas is a remedy authorized by statute and

the Constitution while Bivens is merely a judicially-created

remedy for damages, with what the defense argues is a pre-

sumption against recognizing claims in new contexts. The

argument is not persuasive. Those cases also involve some

judicial inquiry into matters affecting national security and

military activity. Hamdi, Munaf, and Boumediene thus weigh

against the argument that the courts must simply defer to

executive authorities in a case involving alleged torture of a

U.S. citizen in U.S. military custody.

Nos. 10-1687 & 10-2442 63

The fact that the plaintiffs are U.S. citizens is a key

consideration here as we weigh whether a Bivens

action may proceed.1 9 As the Court in Reid concluded:

“When the Government reaches out to punish a citizen

who is abroad, the shield which the Bill of Rights and

other parts of the Constitution provide to protect his

life and liberty should not be stripped away just because

he happens to be in another land.” Reid, 354 U.S. at 6

(plurality opinion of Black, J.); see also Kar v. Rumsfeld, 580

F. Supp. 2d 80, 83 (D.D.C. 2008) (finding that the “Fourth

and Fifth Amendments certainly protect U.S. citizens

detained in the course of hostilities in Iraq”).

The defendants cite a number of cases, both habeas

corpus and Bivens cases, for the proposition that the

judiciary should not create damages remedies in

the context of foreign affairs. Almost all of these were

suits by aliens, not U.S. citizens, detained and suspected

of terrorism ties. For example, the defendants cite Arar

v. Ashcroft, where the sharply divided Second Circuit

declined to recognize an alien’s Bivens claim for “extra-

19

This is not to say that we think that citizenship should be a

dispositive factor in all Bivens cases implicating national

security. But as we explain, in the context of this particular

set of facts and allegations, U.S. citizenship or permanent

resident alien status counsels in favor of recognizing a

judicial remedy against federal officials even if the result

might be different for an alien’s similar claim. Such an

alien could have his own government intervene to protect

his rights, and such claims could implicate foreign affairs

and diplomacy in a way that this case does not.

64 Nos. 10-1687 & 10-2442

ordinary rendition” because several related “special

factors” counseled hesitation. 585 F.3d at 575-81. The

plaintiff in Arar was an alien with Syrian and Canadian

citizenship who challenged an alleged U.S. presidential

policy allowing extraordinary rendition and torture by

foreign governments. The majority found that allowing

the alien plaintiff to proceed with a Bivens claim “would

have the natural tendency to affect diplomacy, foreign

policy, and the security of the nation, and that fact

counsels hesitation.” Id. at 574. More recently, the D.C.

Circuit held that Afghan and Iraqi citizens who alleged

that they were tortured in U.S. custody in those

nations could not pursue Bivens claims against U.S. offi-

cials, including Secretary Rumsfeld. Ali v. Rumsfeld, ___

F.3d ___, 2011 WL 2462851 (D.C. Cir. June 21, 2011).2 0

We are fully aware that prohibitions against torture

are matters of international law as well as United States

law, and that those prohibitions reflect basic and

universal human rights. The question of remedies, how-

ever, has more room for nuance, and the Second Circuit

majority in Arar was concerned in large part about the

20

Our dissenting colleague contends that recognizing a Bivens

claim here “vaults over this consensus” and “too-casually

sidesteps the weight of precedent from other circuits.” Dissent

at 82, 88. There is in fact no such consensus to vault over, nor a

“casual sidestep.” There is no circuit court decision with

which we disagree. The two circuits we have cited addressed

the very different situation of alien detainees. The plaintiffs

here are U.S. citizens entitled to the full protection of our

Constitution.

Nos. 10-1687 & 10-2442 65

diplomatic and foreign policy consequences of hearing

Arar’s claims. 585 F.3d at 574; see also Arar, 585 F.3d at

603 (Sack, J., concurring in part and dissenting in

part) (concluding that security and secrecy concerns

should not be considered “special factors counseling

hesitation,” but should be dealt with on a case-by-case

basis employing the state-secrets doctrine). If the U.S.

government harms citizens of other nations, they can

turn to their home governments to stand up for their

rights. These considerations are simply not present in

this lawsuit by two U.S. citizens challenging their

alleged illegal torture by their own government.

In a series of cases, the D.C. Circuit has rejected efforts

by aliens to use Bivens to seek relief from U.S. foreign

policy and military actions overseas. In Sanchez-Espinoza

v. Reagan, 770 F.2d 202 (D.C. Cir. 1985), members of the

U.S. Congress and citizens of Nicaragua brought

claims, including Bivens claims, against U.S. government

officials for their alleged support of forces bearing arms

in Nicaragua. In rejecting the obvious invitation to

the federal courts to make foreign policy, the court ex-

plained: “we think that as a general matter the danger

of foreign citizens’ using the courts in situations such

as this to obstruct the foreign policy of our government

is sufficiently acute that we must leave to Congress

the judgment whether a damage remedy should exist.”

770 F.2d at 209.

The D.C. Circuit followed that reasoning in Rasul v.

Myers, 563 F.3d 527, 530 (D.C. Cir. 2009) (Rasul II), where

the court relied on the alien citizenship of the plain-

66 Nos. 10-1687 & 10-2442

tiffs in granting the defendants qualified immunity,

finding that “[n]o reasonable government official would

have been on notice that [alien] plaintiffs had any Fifth

Amendment or Eighth Amendments rights.” Because the

Rasul II court found that the defendants were immune

from suit, it reached the broader Bivens issue only in a

footnote, concluding in the alternative that the plaintiffs’

Bivens claims were foreclosed by “special factors.” Id. at

532 n.5, citing Judge Brown’s concurrence in Rasul v.

Myers, 512 F.3d 644, 672-73 (Rasul I) (concluding that

special factors foreclose a Bivens claim in the context

of treatment and interrogation of enemy combatant

detainees), vacated, 129 S. Ct. 763 (2008). In Rasul I,

Judge Brown had written:

Treatment of detainees is inexorably linked to our

effort to prevail in the terrorists’ war against us,

including our ability to work with foreign govern-

ments in capturing and detaining known and

potential terrorists. Judicial involvement in this deli-

cate area could undermine these military and diplo-

matic efforts and lead to embarrassment of our gov-

ernment abroad.

512 F.3d at 673 (Brown, J., concurring) (quotation marks

omitted); see also Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d

103, 112 (D.D.C. 2010), appeal pending, No. 10-5393 (D.C.

Cir.) (relying on Rasul II, finding that “[t]he D.C. Circuit’s

conclusion that special factors counsel against the judi-

ciary’s involvement in the treatment of detainees held

at Guantanamo binds this Court and forecloses it from

creating a Bivens remedy for plaintiffs here”). Judge

Nos. 10-1687 & 10-2442 67

Brown’s reasoning in Rasul cannot be extended to bar

claims by U.S. citizens who have not been charged with,

let alone convicted of, any terrorist activity.

Most recently, in Ali v. Rumsfeld, the D.C. Circuit fol-

lowed Rasul II and Sanchez-Espinoza to hold that Iraqi

and Afghan citizens detained abroad in U.S. military

custody could not sue under Bivens for claims of torture.

The court’s analysis of “special factors” under Bivens

emphasized the plaintiffs’ status as aliens. ___ F.3d at ___,

2011 WL 2462851, at *4-7. The D.C. Circuit’s opinions in

Ali, Rasul II, and Sanchez-Espinoza do not even hint that

their reasoning would extend to bar Bivens claims by

civilian U.S. citizens who can prove that their own gov-

ernment tortured them.

As our dissenting colleague points out, there is some

overlap in the special factors analysis that applied in

the cases brought by aliens in Ali and Arar, all of whom

alleged they were tortured, either directly by the U.S.

government or as a result of a U.S. practice of extraordi-

nary rendition. Those cases presented very disturbing

allegations about our government, especially in view of

our nation’s long commitment to comply with inter-

national law and our leadership in opposing torture

worldwide. We acknowledge that those cases presented

difficult issues in applying the Bivens special factors

analysis.

Whether one agrees or disagrees with Ali and Arar,

however, we should not let the difficulty of those cases

lead us to lose sight of the fundamentally different situa-

tion posed by the claims of civilian U.S. citizens in this

case. These plaintiffs have alleged a grave breach of our

68 Nos. 10-1687 & 10-2442

most basic social compact — between “We the People”

and the government we created in our Constitution.

As difficult as torture claims by aliens may be, we

repeat that nothing in Ali or Arar, or in the opinions in

Rasul II or Sanchez-Espinoza, indicates that those courts

were willing to extend the unprecedented immunity

that defendants and the dissent advocate here, for

claims that our government tortured its own citizens.

ii. Congressional Intent

The defendants do not argue that Congress has created

an “alternative remedy” that forecloses a Bivens remedy.

They argue, though, that because Congress has passed

numerous pieces of legislation regarding detainee treat-

ment, none of which provide detainees with a statutory

private right of action, the courts should not recognize

a Bivens remedy for civilian U.S. citizens tortured in

military custody in a war zone. See, e.g., Ronald W.

Reagan National Defense Authorization Act for Fiscal

Year 2005, 10 U.S.C. § 801, stat. note § 1092; Military

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat.

2600, 2635, codified at 28 U.S.C. § 2241(e)(2). Congress

has also addressed detention standards in a criminal

statute without providing for a private civil right of

action. See 10 U.S.C. § 893 (a person guilty of cruelty

and maltreatment of person subject to his orders shall

be punished as a court-martial may direct). Congress

has even gone so far as to criminalize overseas torture,

see 18 U.S.C. § 2340A, but explicitly provided that it

was not creating a new civil right of action. See 18 U.S.C.

Nos. 10-1687 & 10-2442 69

§ 2340B (“Nothing in this chapter shall be construed . . .

as creating any substantive or procedural right

enforceable by law by any party in any civil proceeding.”).

From Congress’ close attention to detainee treatment

without creating a civil right of action, defendants infer

that a Bivens remedy is not appropriate here.

We disagree. Bivens is a well-known part of the legal

landscape, so it is significant that Congress has taken

no steps to foreclose a citizen’s use of Bivens. We can

assume that Congress was aware that Bivens might

apply when it enacted legislation relevant to detainee

treatment. In fact, when Congress enacted the Detainee

Treatment Act, it opted to regulate — not prohibit — civil

damages claims against military officials accused of

torturing aliens suspected of terrorism. Congress

created a good faith defense in civil and criminal cases

for officials who believed that their actions were legal

and authorized by the U.S. government:

In any civil action or criminal prosecution against

an officer, employee, member of the Armed Forces,

or other agent of the United States Government

[for engaging in practices involving detention and

interrogation of alien detainees suspected of

terrorism] it shall be a defense that such officer, em-

ployee, member of the Armed Forces, or other

agent did not know that the practices were unlawful

and a person of ordinary sense and understanding

would not know the practices were unlawful . . . .

Nothing in this section shall be construed to limit

or extinguish any defense or protection otherwise

70 Nos. 10-1687 & 10-2442

available to any person or entity from suit, civil or

criminal liability, or damages, or to provide immunity

from prosecution for any criminal offense by the

proper authorities.

42 U.S.C. § 2000dd-1(a).2 1 This express but limited defense

against civil claims by alien detainees suspected of terror-

ism is a strong indication that Congress has not closed

the door on judicial remedies that are “otherwise avail-

able,” certainly for U.S. citizens, even though it chose not

to wrestle with just what those remedies might be.

Accepting defendants’ invitation to consider other

indications of Congressional intent, we find other

powerful evidence that weighs heavily in favor of recog-

nizing a judicial remedy here. Congress has enacted

laws that provide civil remedies under U.S. law for

foreign citizens who are tortured by their governments.

The plaintiffs cite the Torture Victim Protection Act

and the Alien Tort Statute, 28 U.S.C. § 1350, which was

part of the Judiciary Act of 1789, to show that “Congress

and the American people have always stood against

torture, and Congress has seen litigation against offi-

cials of other nations as an important tool to implement

America’s foreign policy against torture.” Pl. Br. at 30.

Where Congress has authorized such claims by non-

citizen victims of torture by foreign governments, it

21

The defendants emphasize the last sentence in the

quoted passage, but it indicates only that Congress did not

intend to make any other change in law that would

otherwise apply.

Nos. 10-1687 & 10-2442 71

would be startling if United States law did not provide

a judicial remedy for U.S. citizens alleging torture by

their own government.

It would be difficult to reconcile the law of nations’

prohibition against torture and the remedies United

States law provides to aliens tortured by their govern-

ments with a decision not to provide these citizen-

plaintiffs a civil remedy if they can prove their allega-

tions. The defendants have not attempted to do so. As

the Second Circuit held in Filartiga v. Pena-Irala, “delib-

erate torture perpetrated under color of official

authority violates universally accepted norms of the

international law of human rights, regardless of the

nationality of the parties.” 630 F.2d 876, 878 (1980)

(holding that alien victims of torture in Paraguay could

sue responsible Paraguayan official in U.S. district court

under Alien Tort Statute for damages for violation of

law of nations); see also Sosa v. Alvarez-Machain, 542 U.S.

692 (2004) (describing the history of the Alien Tort Statute

and holding that district courts may recognize private

causes of action for some violations of the law of nations).

Most relevant, though, is the Torture Victim Protection

Act of 1991, Pub. L. 102-256, codified as a note to the

Alien Tort Statute, 28 U.S.C. § 1350. Section 2(a) of that

Act provides a cause of action for civil damages against

a person who, “under actual or apparent authority, or

color of law, of any foreign nation,” subjects another

person to torture or extrajudicial killing. Section 2(b)

requires U.S. courts to decline to hear such claims “if

the claimant has not exhausted adequate and available

72 Nos. 10-1687 & 10-2442

remedies in the place” where the conduct occurred.

Under the Torture Victim Protection Act, if an alien has

been tortured by her own government, and if that

foreign government has denied her a civil remedy, then

a U.S. court could hear the case against a defendant

found in the U.S. It would be extraordinary — one

might even say hypocritical — for the United States to

refuse to hear similar claims by a U.S. citizen against

officials of his own government. And Bivens provides

the only available remedy.

To illustrate the anomalous result the defendants

seek, consider the possibility that another country has

enacted its own law identical to the U.S. Torture Victim

Protection Act. If we accepted defendants’ argument in

this case and held there is no civil remedy available,

then there would be no “adequate and available

remedies in the place” where the conduct occurred (a

U.S. military base). If Secretary Rumsfeld could be found

visiting such a country with its own TVPA (so he could

be served with process), Vance and Ertel could sue him

in that country under its torture victim protection law

because U.S. law would provide no remedy. That would

be a very odd result. Surely the Congress that enacted

the Torture Victim Protection Act would rather have

such claims against U.S. officials heard in U.S. courts.2 2

22

Other parts of our government seem to agree, as Judge Parker

pointed out in Arar, 585 F.3d at 619 (Parker, J., dissenting).

The U.S. State Department has assured the United Nations

Committee Against Torture that the Bivens remedy is

available to victims of torture by federal officials. United States

(continued...)

Nos. 10-1687 & 10-2442 73

In sum, we are not convinced by the defendants’ argu-

ment that “special factors” preclude recognition of a

Bivens remedy in this case. A couple of final concerns

remain in our Bivens analysis. The defendants argue

that, under the plaintiffs’ approach, any military action

could result in a Bivens claim if the action were charac-

terized as a violation of some government policy. The

defendants argue, for example, that this could include

a plaintiff seeking damages from the Secretary of

Defense for an air strike in a location beyond the bounds

of congressional authorization to wage war. The

argument is not convincing. Today we decide only the

narrow question presented by the extraordinary allega-

tions now before us. The Bivens case law weighs in favor

of allowing plaintiffs, U.S. citizens, to proceed with

their claims that while they were in U.S. military

custody, they were tortured by U.S. government officials.

Our decision today opens up the courts to other claims

like this, but we hope and expect that allegations of

this nature will be exceedingly rare. We make no

broader holding about whether other future claims

about violations of government policy would be

cognizable under Bivens.

22

(...continued)

Written Response to Questions Asked by the United Nations

Committee Against Torture, ¶ 5 (Apr. 28, 2006), available at

http://www.state.gov/g/drl/rls/68554.htm (last accessed Aug. 4,

2011). This answer was in response to a question about the

fact that the only legislation the United States had enacted to

give effect to the Convention Against Torture gave U.S. courts

criminal jurisdiction over only extraterritorial acts of torture.

74 Nos. 10-1687 & 10-2442

A difficult related question is whether recognizing

the plaintiffs’ Bivens claim in this instance creates a

special category of constitutional rights that would still

be enforceable in a war zone and, if so, what the limits

are of such a category. While the plaintiffs are arguing,

for example, that Fifth Amendment substantive due

process rights apply to U.S. citizens detained by the

U.S. military in a war zone, this appeal presents no

issue regarding the fact of plaintiffs’ detention or some

aspects of that detention that would not have passed

constitutional muster if the detention had been subject

to civilian processes in the United States.2 3

The amicus brief by the Society of Professional Journal-

ists, the Project on Government Oversight, and the Gov-

ernment Accountability Project in support of the

plaintiffs also raises important questions about what

remedies U.S. citizen-journalists have in war zones. The

concerns of these amici were manifest in Kar. In that

case, a U.S. citizen alleges that he went to Iraq to make

a historical documentary film, was arrested by Iraqi

authorities, and then was transferred to U.S. authorities

and detained at Camp Cropper for two months. Al-

though recognizing that the Fourth and Fifth Amend-

23

The district court dismissed the plaintiffs’ Counts II and III.

In Count II, plaintiffs claimed that they were denied pro-

cedural due process, specifically through the denial of a

factual basis for their detention, access to exculpatory evidence,

and the opportunity to appear before an impartial adjudicator.

In Count III, the plaintiffs contended that they were denied

access to a court of law to challenge their detention. These

claims are not before us.

Nos. 10-1687 & 10-2442 75

ments “certainly protect U.S. citizens detained in the

course of hostilities in Iraq,” see 580 F. Supp. 2d at 83, the

district judge found that the defendants had not

violated any clearly established constitutional rights:

As weak as the government’s authority is, Kar has

provided none at all — no precedent that clearly estab-

lishes the right of a U.S. citizen to a prompt probable

cause hearing when detained in a war zone. Any

attempt to apply the two-day requirement from

[County of Riverside v. McLaughlin, 500 U.S. 44 (1991)]

or the seven-day requirement from the Patriot Act to

Kar’s circumstances ignores the differences between

detention on U.S. soil and detention in hostile territory.

Id. at 85. We are inclined to agree with that observation,

and indeed, many broader questions remain about

the application in a war zone of constitutional safe-

guards we have developed over time to protect U.S.

citizens’ rights.24 There may be difficult questions ahead,

but our job is to deal with those questions. We should

not let the prospect of difficult questions in the future

cause us to close the courthouse doors to the serious

claims presented by these allegations.

In rejecting the defendants’ “special factors” arguments

for a complete and unprecedented civil immunity

for torture of U.S. citizens, we have tried to apply the

caution required in applying Bivens. But caution is also

24

For a thoughtful discussion of some of these issues, see

José A. Cabranes, Our Imperial Criminal Procedure: Problems in

the Extraterritorial Application of U.S. Constitutional Law, 118

Yale L.J. 1660 (2009).

76 Nos. 10-1687 & 10-2442

required from the opposing perspective. Our courts have

a long history — more than 200 years — of providing

damages remedies for those whose rights are violated

by our government, including our military. See Iqbal, 129

S. Ct. at 1948, citing Dunlop v. Munroe, 11 U.S. (7 Cranch)

242, 268 (1812) (in case against postmaster, federal

official’s liability “will only result from his own neglect

in not properly superintending the discharge” of his

subordinates’ duties); Bivens, 403 U.S. at 395-97 (col-

lecting cases showing that damages against govern-

ment officials are historically the remedy for invasion

of personal interests in liberty, and quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137 (1803): “The very essence

of civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever

he receives an injury.”); Little v. Barreme, 6 U.S. (2 Cranch)

170, 178-79 (1804) (holding that commander of a

warship was “answerable in damages” to the owner of

a neutral vessel seized pursuant to orders from

President but in violation of statute).

If we were to accept the defendants’ invitation to recog-

nize the broad and unprecedented immunity they seek,

then the judicial branch — which is charged with enforcing

constitutional rights — would be leaving our citizens

defenseless to serious abuse or worse by another branch

of their own government. We recognize that wrongdoers

in the military would still be subject to criminal pros-

ecution within the military itself. Relying solely on the

military to police its own treatment of civilians, however,

would amount to an extraordinary abdication of our

government’s checks and balances that preserve Ameri-

Nos. 10-1687 & 10-2442 77

cans’ liberty. The district court correctly allowed plain-

tiffs to proceed with their Bivens claims for torture.

D. Military Authority Exception to the Administrative

Procedure Act (APA)

Finally, we turn to the plaintiffs’ claim against the

United States to recover personal property seized from

them by the U.S. military when they were detained.2 5

The question is whether the “military authority” exception

in the Administrative Procedure Act, which prohibits

judicial review of “military authority exercised in the

field in time of war or in occupied territory,” 5 U.S.C.

§ 701(b)(1)(G), precludes subject matter jurisdiction

over the plaintiffs’ claim. We review this question of

law de novo. See Thomas v. General Motors Acceptance

Corp., 288 F.3d 305, 307 (7th Cir. 2002). We conclude

that the “military authority” exception precludes judicial

review and reverse the district court’s decision on this

claim.

The “military authority” exception to the Administra-

tive Procedure Act provides that the right of judicial

review for persons aggrieved by government actions

does not extend to the exercise of military authority “in

25

Vance has been able to recover his laptop computer from

military officials, who recovered it from a search of an Army

Criminal Investigative Command evidence facility at Camp

Victory in Iraq, but plaintiffs are still missing other personal

items seized when they were detained.

78 Nos. 10-1687 & 10-2442

the field in time of war.” 5 U.S.C. §701(b)(1)(G). The

plain language of the statutory exception prevents the

court from reviewing military decisions regarding

these plaintiffs’ personal property. First, there is no

question that the seizure of plaintiffs’ property was an

exercise of “military authority” by U.S. military per-

sonnel stationed in Iraq. Vance and Ertel acknowledge

that their property was taken by members of the military

in connection with a military investigation. Second, the

confiscation of property occurred “in time of war.” The

alleged seizure of the property occurred in 2006 in the

midst of a congressionally-authorized war in Iraq. See

Authorization for Use of Military Force Against Iraq

Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498

(2002); In re Iraq and Afghanistan Detainees Litigation, 479

F. Supp. 2d 85, 102 (D.D.C. 2007) (taking judicial notice

that the United States is at war in Iraq); Qualls v. Rumsfeld,

357 F. Supp. 2d 274, 283-84 (D.D.C. 2005) (recognizing

that the United States was at war in Iraq). Third, the

military personnel seized plaintiffs’ property “in the

field.” When their property was seized, Vance and

Ertel were in Baghdad during an armed conflict. See, e.g.,

Rasul v. Bush, 215 F. Supp. 2d 55, 64 n. 11 (D.D.C. 2002)

(concluding that the military authority exception

would bar relief under the APA because plaintiffs were

captured in areas where the United States was “engaged

in military hostilities pursuant to the Joint Resolution

of Congress”), aff’d, Al Odah v. United States, 321 F.3d

1134 (D.C. Cir. 2003), rev’d on other grounds, Rasul v. Bush,

542 U.S. 466 (2004); Doe v. Sullivan, 938 F.2d 1370, 1380

(D.C. Cir. 1991) (suggesting that the exception applies

Nos. 10-1687 & 10-2442 79

to “military commands made in combat zones or in

preparation for, or in the aftermath of, battle”).

The district court relied on Jaffee v. United States,

592 F.2d 712 (3d Cir. 1979), to distinguish between a

claim for the return of property and a challenge to the

initial seizure of property. We find Jaffee inapposite. There,

in a case that did not address recovery of personal prop-

erty, the plaintiff sued under the APA to challenge

the government’s failure to take remedial measures to

protect soldiers who were exposed to an atomic explo-

sion at a military base in Nevada. The court held that

the “military authority” exception did not apply be-

cause the army’s failure to act was “neither in the field

nor in time of war.” Id. at 720. The atomic blast occurred

during the Korean conflict, but thousands of miles of

land and ocean separated the blast site in Nevada from

the active combat zone in Korea. These facts are

readily distinguishable from those before us, where

Vance and Ertel’s property was allegedly seized from

them in the middle of a war zone. Furthermore, while

the Jaffee plaintiffs sought relief for the government’s

failure to act years after the Korean War had officially

ended, Vance and Ertel, by contrast, seek an inquiry

into the whereabouts of their property while the conflict

in Iraq is ongoing.

The district judge denied the motion to dismiss based

on the possibility that the plaintiffs’ property might no

longer be held “in the field,” and allowed the claim to

proceed to permit discovery to inquire into its present

location. We do not find this reasoning persuasive. The

80 Nos. 10-1687 & 10-2442

cases cited by the district court to support this reasoning

are all readily distinguishable. See, e.g., Doe v. Rumsfeld,

297 F. Supp. 2d 119, 129 (D.D.C. 2003) (finding that the

“military authority” exception did not prevent judicial

review of a decision to require American troops

stationed within the United States to submit to anthrax

vaccinations because claims did not challenge “military

authority exercised in the field in a time of war or in

occupied territory”); Rosner v. United States, 231 F. Supp. 2d

1202, 1217-18 (S.D. Fla. 2002) (allowing, in “an abundance

of caution,” discovery on the application of the “military

authority” exception to the United States Army’s seizure

of property expropriated by the Hungarian government

during World War II). In contrast to these cases, it is

clear that Vance and Ertel’s personal property was

seized by “military authority exercised in the field in

time of war.” 5 U.S.C. §701(b)(1)(G).

Regardless of the current location of the prop-

erty — whether in Fort Hood, Texas, or in Rock Island,

Illinois, as plaintiffs suggest, or in Baghdad — it was

seized by and remains in the custody of military

engaged in ongoing hostilities in Iraq. While in some

cases it may be appropriate for the district court to order

discovery to determine whether the “military authority”

exception applies, no additional discovery is necessary

on this issue here where the exception clearly applies as

the claims have been pled.

III. Conclusion

The decision of the district court in No. 10-1687

denying in part Secretary Rumsfeld’s motion to dis-

Nos. 10-1687 & 10-2442 81

miss is A FFIRMED. The decision in No. 10-2442 denying

dismissal of the personal property claims under the

Administrative Procedure Act is R EVERSED.

M ANION, Circuit Judge, concurring in part and dissenting

in part. Much attention will be focused on the fact that

the court has sustained a complaint alleging that former-

Secretary Rumsfeld was personally responsible for the

torture of United States citizens. However, the most

significant impact of the court’s holding is its extension

of Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). Specifically, the court

holds that a “Bivens remedy,” as implied causes of action

for violations of constitutional rights have come to be

known, is available to United States citizens alleging

torture while held in an American military prison in

an active war zone. Present case law requires a very

cautious approach before extending a Bivens remedy

into any new context, and emphasizes that there are

many “special factors” present in this particular context

that should cause us to hesitate and wait for Congress to

act. Because the court has not exercised that restraint

in this case, I respectfully dissent.

82 Nos. 10-1687 & 10-2442

For starters, this case is not about constitutional rights,

against torture or otherwise—the defendants readily

acknowledge that the type of abuse alleged by the

plaintiffs would raise serious constitutional issues.

Rather, this case centers on the appropriate remedies

for that abuse and who must decide what those remedies

will be. Confronted by allegations as horrible as those

described in this case, it is understandable that the

court concludes that there must be a remedy for these

plaintiffs. But that concern should not enable this court

to create new law. For decades, the Supreme Court

has cautioned that such decisions should be left to Con-

gress, especially where there are “special factors coun-

seling hesitation in the absence of affirmative action by

Congress.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007);

see also, e.g., Schweiker v. Chilicky, 487 U.S. 412, 421-23

(1988) (refusing a cause of action of social security com-

plaints); United States v. Stanley, 483 U.S. 669, 680-81

(1987) (no cause of action by military service member

when the injury arise out of activity incident to service).

This longstanding reluctance creates a veritable presump-

tion against recognizing additional implied causes of

action. In line with this presumption, both circuits con-

fronted with allegations of constitutional violations in

war zones have refused to recognize a Bivens remedy.

See Ali v. Rumsfeld, ___ F.3d ___, 2011 WL 2462851,

at *6 (D.C. Cir. Jun. 21, 2011); Arar v. Ashcroft, 585 F.3d

559, 635 (2d Cir. 2009). The court vaults over this

consensus and, for the first time ever, recognizes a

Bivens cause of action for suits alleging constitutional

violations by military personnel in an active war zone.

Nos. 10-1687 & 10-2442 83

I dissent because sorting out the appropriate remedies

in this complex and perilous arena is Congress’s role,

not the courts’.1

Before explaining the particulars of my disagreement

with the court, it is important to stress the proper

questions before the court. Otherwise, given the severity

of the allegations and the controversy surrounding

the military policies underlying this case, we risk

getting sidetracked. What we are asked to decide is

simply who—the courts or Congress—should decide

whether the courts will review constitutional claims

against military personnel that arise in an active war

zone, under what conditions and parameters that

review should take place, and to what extent members

of the military, whether high or low, should have im-

munity from suit.2 Whether there should be judicial

review of these claims is a policy question, one that

I believe is outside the purview of this court to decide.

1

I concur, however, in the court’s dismissal of the plaintiffs’

property claims pursuant to the military authority exception

to the Administrative Procedure Act.

2

The court’s rhetorical dissection of “immunity” obscures,

rather than clarifies, an already complex and confusing issue.

Whether a Bivens remedy is available and whether particular

federal officials are entitled to either absolute or qualified

immunity are entirely distinct questions. “Immunity” is

indeed an issue elsewhere in this suit, see infra note 5,

but primarily the issue before us is whether or not there

is an implied Bivens cause of action directly under the Con-

stitution.

84 Nos. 10-1687 & 10-2442

The Supreme Court refined its cautious approach to

this question in Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

There, it adopted a two-part test to determine whether

to extend implied actions into a new context. First, if

there are adequate alternative remedies, there is no

need for an implied Bivens remedy. And second, if

there are “special factors counseling hesitation,” courts

should leave the creation of new remedies to Congress,

which is after all “in a far better position than a court

to evaluate the impact of a new species of litigation

against those who act on the public’s behalf.” Id. at 550,

562. The court focuses most of its attention on the “special

factors” prong of the test. I will follow suit and assume

for the sake of argument that the first prong is satisfied

and no meaningful alternative remedy exists in statute

or regulation.3 I think it clear that there are special

factors and precedents that should control this case. The

court holds otherwise, but I would point to what I see

as the five defects in the court’s holding: (1) the lack of

precedent in its favor; (2) the underestimation of the

risks of judicial review of wartime military activity;

(3) its unsuccessful attempt to distinguish precedent

from other circuits; (4) the inapplicability of recent

habeas corpus jurisprudence; and finally (5) the failure to

3

A distinguished collection of fourteen former Secretaries of

Defense and Members of the Joint Chiefs of Staff filed an

amicus brief urging us to wait for Congress to decide how to

handle alleged constitutional violations by military personnel.

They make a strong case that there are adequate alternative

remedies that the plaintiffs have not pursued, contrary to

the court’s conclusion.

Nos. 10-1687 & 10-2442 85

recognize the consequences of its holding and the prece-

dent it sets.

The resolution of the special factors analysis is straight-

forward. If anything qualifies as a “special factor[] coun-

seling hesitation,” it is the risk of the judiciary prying

into matters of national security or disrupting the mili-

tary’s efficient execution of a war. National security

matters are “rarely proper subjects for judicial interven-

tion,” Haig v. Agee, 453 U.S. 280, 292 (1981), and “courts

traditionally have been reluctant to intrude upon the

authority of the Executive in military and national

security affairs.” Dep’t of Navy v. Egan, 484 U.S. 518, 530

(1988). In that arena, courts will necessarily have to pass

judgment on sensitive matters of military policy, in-

cluding who is (or should be) responsible for making and

implementing that policy at various levels. Further, judi-

cial review of wartime decisions will necessarily in-

volve significant amounts of classified materials, gen-

erating public discussion of sensitive matters of national

security in open court. The commonsense under-

standing that the courts should exercise caution before

venturing out into the battlefield is reflected in the

limited precedent to date. While the Supreme Court has

not taken up the question of Bivens in the context of

wartime military actions, the D.C. Circuit and the

en banc Second Circuit have both concluded that Bivens

should not extend to suits by wartime detainees. See

Ali, ___ F.3d ___, 2011 WL 2462851, at *6; Arar,

585 F.3d 559. We should follow our sister circuits in

leaving for Congress the task of addressing the “who,”

“what,” “when,” “where,” “why,” and “how much”

questions of civil damages remedies for military decisions

86 Nos. 10-1687 & 10-2442

in wartime, rather than exploring an uncharted maze of

military and national security policy in a foreign war zone.

The court’s citations seem to acknowledge this lack of

precedent. All of the cases it cites in its favor addresses

different contexts and different special factors. It ap-

proaches the “special factors” analysis in this case by

arguing that the military detainee context is not that

much different from other contexts in which Bivens

actions have been allowed. But these cases are

largely beside the point, because they do not concern

the legitimate special factors of national security and

military policy at play in this case. The court points

out precedent that Bivens claims have long been

“available to prisoners who assert that they have

been abused or mistreated by their federal jailors,” see,

e.g., Carlson v. Green, 446 U.S. 14 (1980); (Opn. at 53) that

the Supreme Court, this court, and others have allowed

Bivens claims to continue against military officials,

Saucier v. Katz, 533 U.S. 194 (2001), and even cabinet

members, Mitchell v. Forsyth, 472 U.S. 511 (1985). 4 These

cases do establish that a Bivens remedy may lie against

4

The court also correctly notes that United States citizens do

not lose their constitutional rights when they venture abroad.

I stress again that the lack of an implied cause of action

under Bivens does not strip plaintiffs here of their constitu-

tional rights (against torture or anything else) in a war zone;

it merely forces Congress to sort out a difficult issue.

Moreover, the court’s citations involve military trials for

civilians and habeas corpus rights for citizens, and have

nothing to do with liability under Bivens (or any other cause

of action). (Opn. at 56)

Nos. 10-1687 & 10-2442 87

military personnel—and even their cabinet-level sup-

eriors—in a domestic setting. But because none of them

involved claims arising abroad or during war, they

do not provide any guidance to the issue at the heart of

this case. Namely, whether judicial review of actions

undertaken by the military in an active foreign war

zone raises special factors that should caution us to

hesitate and allow Congress to create an appropriate

cause of action.

Second, the court understates the difficulties that

inhere in judicial review of military activity in a time

of war. While it does acknowledge the issue, the court

does not appear to appreciate just how much judicial

review might intrude on difficult and sensitive mat-

ters. The court argues—as did Judge Calabresi in his

dissenting opinion in Arar—that the state secret

privilege is all the protection we need to safeguard con-

fidential matters of national security from compromise

in open court. See Arar, 585 F.3d at 635 (Calabresi, J.

dissenting). But sorting out claims of privilege would

itself entail significant judicial intrusion in national secu-

rity affairs, and Congress is in a much better position

to balance the competing needs for national security

and the vindication of citizens’ constitutional rights.

The court also stresses that the judicial scrutiny in

this and other cases will be “well after the fact”

and “should not impinge inappropriately on military

decision-making.” (Opn. at 59) But it should go with-

out saying that the existence of a civil damage

remedy years down the line may affect decisions

88 Nos. 10-1687 & 10-2442

being made on the same battlefield today, by the same

or similarly situated individuals. That is not to say

that some judicial review in this area may not be neces-

sary—I agree with the court that allegations of torture

against a U.S. citizen are a very serious matter. But

given the significant pitfalls of judicial entanglement

in military decisionmaking, it must be Congress,

not the courts, that extends the remedy and defines

its limits.

Third, the court too-casually sidesteps the weight of

precedent from other circuits that Bivens should not

be extended to suits against military officials for

wartime actions. See Ali, ___ F.3d ___, 2011 WL 2462851,

at *6; Arar, 585 F.3d 559. It does this by pointing out

that those cases involved aliens, rather than citizens.

But the foreign status of the plaintiffs and potential

foreign policy implications were hardly the only special

factors at play in those decisions. In its en banc decision

refusing to recognize a Bivens remedy, the Second Circuit

also listed three other special factors: national security

interests, confidential information, and the risks posed by

proceedings in open court. Arar, 585 F.3d at 575, 576-77.

And the D.C. Circuit has consistently referred to the risk

of “obstructing national security policy” and has recently

stressed that “allowing a Bivens action to be brought

against American military officials engaged in war would

disrupt and hinder the ability of our armed forces to

act decisively and without hesitation in defense of our

liberty and national interests.” Ali, ___ F.3d at ___, 2011

WL 2462851, at *6; see also Rasul v. Myers, 563 F.3d

Nos. 10-1687 & 10-2442 89

527, 532 n.4 (D.C. Cir. 2009) (Rasul II) (internal quotes

omitted).5

Fourth, the court cites recent Supreme Court habeas

corpus cases approving limited judicial oversight over

military detention decisions, but these are clearly

inapposite. The defendants cogently object that the fact

that Congress has permitted the limited relief of habeas

corpus actions—essentially equitable relief—says next to

nothing about whether the courts should give the

green light to a much broader implied cause of action

for money damages. To this, the court responds that

“those [habeas] cases also involve some judicial inquiry

into matters affecting national security and military

activity,” and therefore “weigh against the argument

that the courts must simply defer to executive authorities

in a case involving alleged torture of a U.S citizen in

U.S. military custody.” (Opn. at 62 n.18) This rejoinder

misses the point entirely, however. I emphasize once again

5

The court also distinguishes Rasul II because it involved

detainees who were known or potential terrorists, whereas

here the plaintiffs “have not been charged with, let alone

convicted of, any terrorist activity.” (Opn. at 67) But the plain-

tiffs were obviously considered a security threat when they were

first apprehended; why should the fact that the military eventu-

ally concluded otherwise be relevant to the Bivens special factor

analysis? Instead, it highlights why the court should not be

picking and choosing between various constitutional tort claims

based on “countervailing factors that might counsel alacrity or

activism,” which have never been a part of the Bivens special

factors analysis. Arar, 585 F.3d at 573-74.

90 Nos. 10-1687 & 10-2442

that it is not a question of deferring to executive authority,

but to Congress. And the question is not whether the courts

are competent to review military decisions, nor even

whether such review would be necessary or wise. The

only question before us is whether these complex ques-

tions of military efficiency, national security, and separa-

tion of powers constitute “special factors counseling

hesitation.” Clearly they do, and therefore Supreme

Court precedent dictates that these sensitive questions

be left for Congress to resolve through the creation (or

not) of a cause of action for civil remedies.

Finally, the court does not recognize the far-reaching

implications of its holding. It stresses that its holding

is limited to “the narrow question presented by the ex-

traordinary allegations now before us.” (Opn. at 73) That

is, the remedy extends (at least for now) only to U.S.

citizens who are tortured—and perhaps to other,

nebulous “core constitutional rights”—while in U.S.

military custody in a war zone. The court offers no

logical reason why its unprecedented holding that a

Bivens remedy is available for allegations of torture by

military personnel in an active war zone should not

extend to other constitutional violations. Instead, the

court labels such concerns “not convincing.” (Opn.

at 73) But claims similar to those before us could cer-

tainly proliferate based on this precedent. Given the

enormous numbers of civilian contractors working in the

current foreign war zones (a fact to which the

court itself alludes), the potential scope of the court’s

Bivens remedy is itself a special factor that should cause

Nos. 10-1687 & 10-2442 91

us to hesitate before taking this first step. Unfortunately,

fraud and corruption among American workers in a

war zone is not rare. These and common crimes of

robbery and assault can land an American civilian in

the brig under military supervision. The voluminous

litigation by prisoners in our domestic prisons evidence

the possibility of “well pleaded complaints” under the

Bivens framework by Americans who claim torture and

other cruel and unusual treatment while being held in

a military prison in a war zone. Which of the

potentially thousands of wartime claims from American

employees of contractors (or others) will the court

entertain under this new cause of action? Future

courts should not have to put the lid back on

Pandora’s Box.

For these reasons, I dissent from the court’s decision

to allow the plaintiffs constitutional claims to proceed.6

6

I also have serious reservations about other aspects of the

court’s opinion, especially its holding that Secretary Rumsfeld

may be held personally liable for the alleged actions of his

subordinates under the plaintiffs’ allegations. The court identi-

fies two alleged bases for Secretary Rumsfeld’s personal

responsibility—his actual authorization of abusive interroga-

tion techniques at the time plaintiffs allege they were tortured,

and his deliberate indifference in the face of knowledge of

ongoing abusive treatment of detainees, including Americans.

The first set of allegations is entirely speculative. The purported

basis is a single article in the New York Times that does not

actually support the plaintiffs’ claims that Secretary Rumsfeld

(continued...)

92 Nos. 10-1687 & 10-2442

I concur with the court’s dismissal of plaintiffs’ Adminis-

trative Procedure Act claims.

6

(...continued)

approved the continued use of the techniques in question

via confidential addendum to the Army Field Manual. The

article states neither that the confidential addendum

approved the techniques, nor that the addendum was ever

approved. The second set of allegations may have greater

plausibility, but the court’s opinion does not explain why the

predicates for deliberate indifference in the military context

(far removed from the usual prison context) are sufficiently

clearly established as to defeat qualified immunity.

8-8-11