Donald Vance v. Donald Rumsfeld

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 10-1687 & 10-2442

D ONALD V ANCE and N ATHAN E RTEL,

Plaintiffs-Appellees,

v.

D ONALD H. R UMSFELD and

T HE U NITED STATES OF A MERICA,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

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

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

R EARGUED E N B ANC F EBRUARY 8, 2012—

D ECIDED N OVEMBER 7, 2012

Before E ASTERBROOK, Chief Judge, and P OSNER, F LAUM ,

M ANION, K ANNE, R OVNER, W OOD , W ILLIAMS, S YKES,

T INDER, and H AMILTON, Circuit Judges.

E ASTERBROOK, Chief Judge. This appeal presents the

question whether the federal judiciary should create a

right of action for damages against soldiers (and others

2 Nos. 10-1687 & 10-2442

in the chain of command) who abusively interrogate or

mistreat military prisoners, or fail to prevent improper

detention and interrogation. Both other courts of appeals

that have resolved this question have given a negative

answer. Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012);

Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Ali v.

Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011). Another circuit

declined to create a damages remedy against intel-

ligence officials who turned a suspected terrorist over

to another nation for interrogation. Arar v. Ashcroft, 585

F.3d 559, 571–81 (2d Cir. 2009) (en banc). We agree

with those decisions.

I

In 2005 and 2006 Donald Vance and Nathan Ertel

worked in Iraq for Shield Group Security (later known

as National Shield Security), a private firm that provided

protective services to businesses and governmental

organizations. (This factual narration comes from the

complaint, whose allegations we must accept for cur-

rent purposes.) Vance came to suspect that Shield was

supplying weapons to groups opposed to the United

States. He reported his observations to the FBI. Ertel

furnished some of the information that Vance relayed.

Persons who Vance and Ertel suspected of gun-running

retaliated by accusing Vance and Ertel of being arms

dealers themselves. Military personnel arrested them

in mid-April 2006. (The complaint does not specify

which day the arrests occurred.)

Nos. 10-1687 & 10-2442 3

According to the complaint, plaintiffs were held in

solitary confinement and denied access to counsel. Their

interrogators used “threats of violence and actual

violence, sleep deprivation and alteration, extremes of

temperature, extremes of sound, light manipulation,

threats of indefinite detention, denial of food, denial of

water, denial of needed medical care, yelling, prolonged

solitary confinement, incommunicado detention, falsified

allegations and other psychologically-disruptive and

injurious techniques.” Vance and Ertel were pro-

visionally classified as “security internees” and

called before a Detainee Status Board, but they were not

allowed to present evidence—and the military officials

running the proceedings refused to look at files on

their computers that Vance and Ertel say would have

established their innocence of arms-dealing charges.

Nor did the Board contact the FBI, even though Vance

and Ertel said that agents would verify their story.

The Board concluded on April 29, 2006, that Ertel

should be released. Nonetheless he was held for another

18 days, during which interrogators continued to use

harsh techniques. He was released on May 17, 2006.

Vance remained in solitary confinement until his release

on July 20, 2006, and was subjected to sleep deprivation,

prolonged exposure to cold, intolerably loud music,

“hooding,” “walling” (placing a person’s heels against a

wall and slamming his body backward into that wall),

threats of violence, and other techniques that caused

physical or mental pain. The Army Field Manual forbids

several of these techniques, which it classifies as “physical

torture,” “mental torture,” or “coercion.” See Army Field

4 Nos. 10-1687 & 10-2442

Manual: Intelligence Interrogation 1–8 (1992). Whether

any of the techniques constitutes “torture” within the

meaning of 18 U.S.C. §2340(1), which makes torture by

interrogators a crime, is a subject on which the parties’

briefs do not join issue, and which we therefore do not

address.

The Detainee Status Board eventually concluded that

both Vance and Ertel are innocent of the allegations

that had been made against them. Neither was

charged with a crime.

In December 2006 Vance and Ertel filed this suit against

persons who conducted or approved their detention

and interrogation, and many others who had super-

visory authority over those persons. The defendants

included Secretary of Defense Donald Rumsfeld. Plaintiffs

alleged that Secretary Rumsfeld had authorized the use

of harsh interrogation methods in Iraq and contended

that he is personally liable in damages—even though

plaintiffs also alleged that they had never been accused

of being enemy combatants and therefore were not

within the scope of Secretary Rumsfeld’s authorization.

They also sued the United States, seeking the return of

all property that had been seized from them in Iraq.

Rumsfeld asked the district court to dismiss the com-

plaint, presenting three principal arguments: that federal

law does not establish an action for damages on account

of abusive military interrogation; that the complaint

does not plausibly allege his personal involvement in

plaintiffs’ detention and interrogation; and that he is

entitled to qualified immunity. The district court ruled

Nos. 10-1687 & 10-2442 5

against all of these contentions. 694 F. Supp. 2d 957 (N.D.

Ill. 2010). Rumsfeld has appealed under the doctrine of

Mitchell v. Forsyth, 472 U.S. 511 (1985), which treats the

rejection of an immunity defense as a final decision for

the purpose of 28 U.S.C. §1291.

The United States also moved to dismiss the com-

plaint, contending that the “military authority excep-

tion” to the Administrative Procedure Act, 5 U.S.C.

§701(b)(1)(G), bars the suit against it. Section 701(b)(1)(G)

prohibits judicial review of “military authority exercised

in the field in time of war or in occupied territory”.

The district court concluded that this language does not

apply—at least, does not prevent Vance and Ertel from

engaging in discovery that they contend would show

the statute’s inapplicability—and denied the motion

to dismiss. 2009 U.S. Dist. L EXIS 67349 (N.D. Ill. July 29,

2009). The district court later certified this order for

interlocutory appeal under 28 U.S.C. §1292(b), see 2010

U.S. Dist. L EXIS 51973 (N.D. Ill. May 26, 2010), and a

motions panel accepted the appeal.

A merits panel reversed the district court’s decision

with respect to the United States but affirmed with

respect to Rumsfeld’s claim of immunity. 653 F.3d 591

(7th Cir. 2011). We granted Rumsfeld’s request for re-

hearing en banc and vacated the panel’s opinion and

judgment; this set aside both aspects of its decision.

II

Both the district court and the panel concluded that it

is appropriate to create a private right of action for dam-

6 Nos. 10-1687 & 10-2442

ages against persons in the military chain of command.

See generally Bivens v. Six Unknown Named Agents of

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

argument in former Secretary Rumsfeld’s brief contests

this conclusion. Because the basis of appellate juris-

diction is the district court’s rejection of an immunity

defense, however, we must consider whether we are

authorized to address the merits.

The answer is yes. The Supreme Court held in Siegert

v. Gilley, 500 U.S. 226, 232 (1991), that when evaluating

an argument that a right is not “clearly established”—the

essential ingredient in any invocation of qualified im-

munity—a court may conclude that the right has not

been “clearly” established because it has not been estab-

lished at all. The Court followed up in Saucier v. Katz,

533 U.S. 194 (2001), by holding that a court of appeals

must decide both whether the right in question exists

and whether its existence had been “clearly established”

before the time of the challenged acts. Pearson v. Callahan,

555 U.S. 223 (2009), overruled that portion of Saucier

and held that a court of appeals may use sound discre-

tion when deciding whether to reach the merits ahead

(or instead) of the immunity question. But the Court

did not doubt that, on an interlocutory appeal under

Mitchell, one potential ground of decision is a conclu-

sion that the plaintiff does not have a legally sound

claim for relief.

Wilkie v. Robbins, 551 U.S. 537, 548–50 (2007), applies

this approach to Bivens claims in particular. Robbins sued

some federal officials, asserting extra-statutory claims

Nos. 10-1687 & 10-2442 7

for damages and contending that reasoning along the

lines of Bivens allowed the federal judiciary to recognize

such a remedy. Defendants took an interlocutory

appeal, contending that they enjoyed qualified immunity.

The Supreme Court ruled in defendants’ favor—not

because of immunity, but because it concluded that it

should not create a new Bivens remedy. Similarly, in

Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme

Court resolved a qualified-immunity appeal by deciding

that the complaint did not state a plausible claim on

the facts. We have jurisdiction to decide this case on the

same grounds the Supreme Court employed in Wilkie

and Iqbal. See also Levin v. Madigan, 692 F.3d 607, 610–11

(7th Cir. 2012).

The appeal by the United States does not present any

jurisdictional problem, given the court’s decision to

accept the appeal certified under §1292(b). Neither does

it present a difficult question. The panel held that

§701(b)(1)(G) prevents any relief against the United

States. 653 F.3d at 626–27. We agree with that conclusion,

for the reasons the panel gave. Further discussion of

the subject is unnecessary.

III

When considering whether to create an extra-statutory

right of action for damages against military personnel

who mistreat detainees, we assume that at least some

of the conditions to which plaintiffs were subjected vio-

lated their rights. Although the Constitution’s applica-

tion to interrogation outside the United States is not

8 Nos. 10-1687 & 10-2442

settled, see United States v. Verdugo-Urquidez, 494 U.S. 259,

268–69 (1990), Rumsfeld concedes (for current purposes

at least) that it governs. The conduct alleged in the com-

plaint appears to violate the Detainee Treatment Act, 10

U.S.C. §801 note and 42 U.S.C. §§ 2000dd to 2000dd–1,

and may violate one or more treaties. The source of the

substantive right does not matter for the analysis

that follows.

Unless there is a right of action against soldiers and

their immediate commanders, however, there cannot be

a right of action for damages against remote superiors

such as former Secretary Rumsfeld. And neither the

Detainee Treatment Act nor any other statute creates a

private right of action for damages under the circum-

stances narrated by plaintiffs’ complaint. This much, at

least, is common ground among the parties. Plaintiffs

therefore ask us to create a right of action under federal

common law.

Bivens was the first time the Supreme Court created a

non-statutory right of action for damages against federal

employees. Since then the Court has created two others:

for unconstitutional discrimination in public employ-

ment, see Davis v. Passman, 442 U.S. 228 (1979), and for

violations of the eighth amendment by prison guards, see

Carlson v. Green, 446 U.S. 14 (1980). It has not created

another during the last 32 years—though it has reversed

more than a dozen appellate decisions that had created

new actions for damages. Whatever presumption in

favor of a Bivens-like remedy may once have existed

has long since been abrogated. The Supreme Court has

Nos. 10-1687 & 10-2442 9

never created or even favorably mentioned the pos-

sibility of a non-statutory right of action for damages

against military personnel, and it has twice held that

it would be inappropriate to create such a claim for

damages. See Chappell v. Wallace, 462 U.S. 296 (1983);

United States v. Stanley, 483 U.S. 669 (1987). The Court

has never created or even favorably mentioned a non-

statutory right of action for damages on account of

conduct that occurred outside the borders of the United

States. Yet plaintiffs propose a novel damages remedy

against military personnel who acted in a foreign na-

tion—and in a combat zone, no less.

The Court’s most recent decision declining to extend

Bivens is Minneci v. Pollard, 132 S. Ct. 617 (2012). Minneci

treated Wilkie as a restatement of the governing

principles, 132 S. Ct. at 621. Wilkie tells us:

our consideration of a Bivens request follows a

familiar sequence, and on the assumption that a

constitutionally recognized interest is adversely

affected by the actions of federal employees, the

decision whether to recognize a Bivens remedy

may require two steps. In the first place, there is

the question whether any alternative, existing

process for protecting the interest amounts to a

convincing reason for the Judicial Branch to

refrain from providing a new and freestanding

remedy in damages. [Bush v. Lucas, 462 U.S. 367

(1983)] at 378. But even in the absence of an alter-

native, a Bivens remedy is a subject of judgment:

“the federal courts must make the kind of

10 Nos. 10-1687 & 10-2442

remedial determination that is appropriate for a

common-law tribunal, paying particular heed,

however, to any special factors counselling hesita-

tion before authorizing a new kind of federal

litigation.” Bush, supra, at 378.

551 U.S. at 550. Congress has provided some opportunities

for compensation of persons injured by the military in

combat zones. Rumsfeld does not contend that these

statutes (which we discuss later) supply a “convincing

reason for the Judicial Branch to refrain from creating a

new and freestanding remedy in damages.” But he does

contend that many factors make it inappropriate for the

judiciary to create a common-law remedy for damages

arising from military operations in a foreign nation.

Chappell and Stanley hold that it is inappropriate for

the judiciary to create a right of action that would permit

a soldier to collect damages from a superior officer.

Plaintiffs say that these decisions are irrelevant because

they were not soldiers. That is not so clear. They were

security contractors in a war zone, performing much

the same role as soldiers. Some laws treat employees

of military contractors in combat zones the same as sol-

diers. See, e.g., 18 U.S.C. §3261 and §3267(1)(A)(iii), parts

of the Military Extraterritorial Jurisdiction Act discussed

in United States v. Brehm, 691 F.3d 547 (4th Cir. 2012). See

also United States v. Ali, 2012 CAAF L EXIS 815 (C.A.A.F.

July 18, 2012) (holding that a civilian employee of a secu-

rity contractor in Iraq is treated as a soldier for the

purpose of prosecution under the Uniform Code of Mili-

tary Justice). But we need not decide whether civilians

Nos. 10-1687 & 10-2442 11

doing security work in combat zones are soldiers by

another name, because Chappell and Stanley did not

entirely depend on the relation between the soldier

and the superior officer.

The Supreme Court’s principal point was that civilian

courts should not interfere with the military chain of

command—not, that is, without statutory authority.

Chappell observed that military efficiency depends on a

particular command structure, which civilian judges

could mess up without appreciating what they were

doing. 462 U.S. at 300. The Court observed that Congress

has ample authority, under its constitutional power to

“make Rules for the Government and Regulation of

the land and naval Forces” (Art. I §8 cl. 14), to provide

for awards of damages and other kinds of judicial review

of military decisions. When Congress does not exercise

that power—or when, as we explain in a moment, it

exercises that power without providing for damages

against military wrongdoers—the judiciary should leave

the command structure alone. “Matters intimately

related to . . . national security are rarely proper subjects

for judicial intervention.” Haig v. Agee, 453 U.S. 280, 292

(1981).

Stanley tried to circumvent Chappell by suing some

civilians and contending that the officers he had named

were not his superiors but had been in a different

branch of the military hierarchy. Stanley also observed

that the plaintiff in Chappell had at least some monetary

remedy through legislation, while he had none. The

Court wrote in response: “The ‘special facto[r]’ that

12 Nos. 10-1687 & 10-2442

‘counsel[s] hesitation’ [in creating a common-law

remedy] is not the fact that Congress has chosen to

afford some manner of relief in the particular case, but

the fact that congressionally uninvited intrusion into

military affairs by the judiciary is inappropriate.” 483

U.S. at 683. That’s equally true of our plaintiffs’ situation.

The fourth circuit addressed this subject in detail in

Lebron, 670 F.3d at 548–52, and we agree with its evalua-

tion.

What plaintiffs want is an award of damages premised

on a view that the military command structure should

be different—that, for example, the Secretary of Defense

must do more (or do something different) to control

misconduct by interrogators and other personnel on the

scene in foreign nations. They want a judicial order

that would make the Secretary of Defense care less

about the Secretary’s view of the best military policy, and

more about the Secretary’s regard for his own finances.

Plaintiffs believe that giving the Secretary of Defense a

financial stake in the conduct of interrogators would

lead the Secretary to hold the rights of detainees in

higher regard—which surely is true, but that change

would come at an uncertain cost in national security.

If the judiciary never erred, damages awards against

soldiers and their civilian supervisors would be all gain

and no loss. But judges make mistakes: They may lack

vital knowledge, may accept claims that should be

rejected on the facts or the law, or may award excessive

damages on justified claims or create supervisory

liability when they shouldn’t. See Stanley, 483 U.S. at

Nos. 10-1687 & 10-2442 13

682–83; see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2087

(2011) (Kennedy, J., concurring). Accounting for human

fallibility is an important part of the design of a legal

system. Military prosecutors (or civilian prosecutors

acting under the President’s direction) can consider

the needs of effective military action when exercising

prosecutorial discretion. Judges lack information that

executive officials possess, and in civil litigation there

is no source of discretion comparable to a prosecu-

tor’s. The Justices concluded in Chappell and Stanley that

Congress and the Commander-in-Chief (the President),

rather than civilian judges, ought to make the essential

tradeoffs, not only because the constitutional authority

to do so rests with the political branches of government

but also because that’s where the expertise lies. That is

as true here as it was in Chappell and Stanley. Accord,

Doe, 683 F.3d at 394 (“Doe is a contractor and not an

actual member of the military, but we see no way in

which this affects the special factors analysis.”).

The political branches have not been indifferent to

detainees’ interests. To the contrary, the treatment of

military detainees has occasioned extended debate and

led to a series of statutes. The Detainee Treatment Act

is one. Others enacted or amended in the past decade

include the Torture Victim Protection Act, 28 U.S.C. §1350

note; the Military Claims Act, 10 U.S.C. §2733; the

Foreign Claims Act, 10 U.S.C. §2734; the Military Com-

missions Act, 10 U.S.C. §948a et seq.; the federal torture

statute, 18 U.S.C. §§ 2340–2340A; the War Crimes Act,

18 U.S.C. §2441; and the Uniform Code of Military

Justice, 10 U.S.C. §801 et seq. Lebron summarizes the ways

14 Nos. 10-1687 & 10-2442

in which the political branches have addressed the ap-

propriate design of policies about interrogation. 670 F.3d

at 548–52. These statutes have one thing in common:

none provides for damages against military personnel

or their civilian superiors. Some, such as the Detainee

Treatment Act, expressly block damages liability. (We

return to this shortly.) Others provide compensation to

victims of military errors or misconduct, but the com-

pensation comes from the public fisc rather than

private pockets.

For example, the Military Claims Act provides that the

Judge Advocate General of each service may award up

to $100,000 from the Treasury to any person injured by

the military. The Foreign Claims Act provides that a

claims commission may award up to $100,000 of public

money to a person injured by the U.S. military in a

foreign nation. (These options are mutually exclusive;

when the Foreign Claims Act or the Federal Tort Claims

Act applies, the Military Claims Act does not. See 10 U.S.C.

§2733(b)(2).) We asked plaintiffs’ counsel at oral argu-

ment whether they had applied for awards under either

statute. Counsel said no, telling us that $100,000 is too

little for their injuries and that the persons charged with

implementing these laws enjoy too much discretion

for plaintiffs’ liking. (Plaintiffs have not argued that 32

C.F.R. §536.45(h), which provides that the military will

not make awards under either statute for assault and

battery, would make these statutes useless to them.

Section 536l.46(h) allows awards for intentional torts

related to an investigation; because the briefs do not

discuss the effect of §536.45(h), we do not consider

Nos. 10-1687 & 10-2442 15

whether plaintiffs’ losses would come within the “investi-

gation” clause.)

We are willing to assume that the cap on awards, and

the existence of discretion about when to award com-

pensation (and how much to provide), means that these

statutes are not full substitutes for a Bivens remedy. See

Minneci, the Court’s most recent discussion of that sub-

ject. Still, the fact that Congress has provided for com-

pensation tells us that it has considered how best to

address the fact that the military can injure persons

by improper conduct. We take two things from the

Military Claims Act and the Foreign Claims Act: first,

Congress has decided that compensation should come

from the Treasury rather than from the pockets of

federal employees; second, plaintiffs do not need a

common-law damages remedy in order to achieve

some recompense for wrongs done them. Unlike

Webster Bivens, they are not without recourse.

Vance and Ertel maintain, however, that through the

Detainee Treatment Act Congress has decided that they

are entitled to damages from the Secretary of Defense

and his subordinates. A portion of the Detainee Treat-

ment Act codified at 42 U.S.C. §2000dd–1(a) provides

that in both civil suits and criminal prosecutions, military

interrogators and their superiors are protected from

liability if “such officer, employee, member of the Armed

Forces, or other agent did not know that the practices

were unlawful and a person of ordinary sense and under-

standing would not know the practices were unlawful.

Good faith reliance on advice of counsel should be an

16 Nos. 10-1687 & 10-2442

important factor, among others, to consider in assessing

whether a person of ordinary sense and understanding

would have known the practices to be unlawful.”

Of course a defense to damages liability does not

create damages liability, but plaintiffs contend that

§2000dd–1(a) assumes that this liability already exists,

so personal liability must have Congress’s blessing. That

assumption is unwarranted. Congress often legislates to

make doubly sure that federal employees will not be

personally liable. The Westfall Act, 28 U.S.C. §2679, is

an example of that strategy. (Gutierrez de Martinez v.

Lamagno, 515 U.S. 417 (1995), and Ali v. Rumsfeld, supra,

discuss that law’s scope and effects.) The Public Health

Service Act, 42 U.S.C. §233(a), is another. See Hui v.

Castaneda, 130 S. Ct. 1845 (2010). Section 7(a) of the

Military Commissions Act, 28 U.S.C. §2241(e)(2), is a

third. It forbids awards of damages to aliens detained as

enemy combatants. See Al-Zahrani v. Rodriguez, 669 F.3d

315 (D.C. Cir. 2012). The existence of safeguards against

personal liability does not imply legislative authoriza-

tion for the judiciary to create personal liability.

Section 2000dd–1(a) applies only to suits by aliens and

therefore does not affect suits by citizens such as plain-

tiffs. Plaintiffs treat the restricted coverage of §2000dd–1

as a glitch, but we think it is more likely that the cov-

erage reflects an assumption behind the statute. Aliens

detained by U.S. military personnel might invoke

multiple sources of authorization to award damages:

one is the Torture Victim Protection Act; a second is

the Alien Tort Act, 28 U.S.C. §1350; and the third is the

Nos. 10-1687 & 10-2442 17

law of the nation in which the detention occurred (here,

the law of Iraq). Congress may have wanted to make

sure that military personnel enjoy some protection

against suits by persons who have an express right of

action. Vance and Ertel cannot use (at least, have not

tried to use) the Torture Victim Protection Act, the Alien

Tort Act, or the law of Iraq as a basis for the remedy

they seek. That Congress has put an obstacle in the

way of persons who could use those bodies of law does

not imply that persons who cannot use them must have

a common-law damages remedy.

The Detainee Treatment Act can be—and has

been—enforced by criminal prosecutions. The Depart-

ment of Defense has procedures for reporting claims of

abuse; these procedures require all reports to be investi-

gated and require prosecution to follow substantiated

reports. See Army Regulation 190–8 at §§ 1–5, 3–16, 6–9;

DoD Directives 5100.77, 2311.01E. Failure by military

personnel to follow these procedures is a court-martial

offense. 10 U.S.C. §892. Abusive interrogation in Iraq and

Afghanistan has led to courts-martial. Injunctions that

enforce the Detainee Treatment Act prospectively may

be possible under the doctrine of Ex parte Young, 209

U.S. 123 (1908), or the waiver of sovereign immunity in

5 U.S.C. §702. But Congress has not authorized awards

of damages against soldiers and their superiors, and

creating a right of action in common-law fashion would

intrude inappropriately into the military command struc-

ture.

A Bivens-like remedy could cause other problems,

including diverting Cabinet officers’ time from manage-

18 Nos. 10-1687 & 10-2442

ment of public affairs to the defense of their bank ac-

counts. See Doe, 683 F.3d at 396. Then there are

problems with evidence. See Lebron, 670 F.3d at 555–56.

When the state-secrets privilege did not block the claim,

a court would find it challenging to prevent the

disclosure of secret information. Anyone, whether or not

a bona fide victim of military misconduct, could sue and

then use graymail (the threat of disclosing secrets) to

extract an undeserved settlement. See Arar, 585 F.3d

at 578–81. That’s not a problem under the Military

Claims Act and the Foreign Claims Act, which allow

proceedings to be conducted in confidence.

The panel distinguished Arar and Ali v. Rumsfeld on

the ground that those plaintiffs were aliens (Arar, for

example, is a citizen of Canada). 653 F.3d at 620–22.

More recent decisions, including Lebron and Doe, dealt

with (and rejected) Bivens-like claims by U.S. citizens. We

do not think that the plaintiffs’ citizenship is dispositive

one way or the other. See Doe, 683 F.3d at 396. Wallace

and Stanley also were U.S. citizens. The Supreme Court

has never suggested that citizenship matters to a claim

under Bivens. It would be offensive to our allies, and

it should be offensive to our own principles of equal

treatment, to declare that this nation systematically

favors U.S. citizens over Canadians, British, Iraqis, and

our other allies when redressing injuries caused by our

military or intelligence operations. Treaties may pose a

further obstacle to favoring U.S. citizens in the design

of common-law remedies, but we need not decide,

because the choice of remedies for military misconduct

belongs to Congress and the President rather than

the judicial branch.

Nos. 10-1687 & 10-2442 19

IV

Even if we were to create a common-law damages

remedy against military personnel and their civilian

superiors, former Secretary Rumsfeld could not be

held liable. He did not arrest plaintiffs, hold them incom-

municado, refuse to speak with the FBI, subject them

to loud noises, threaten them while they wore hoods, and

so on. The most one could say about him—the most

plaintiffs do say about him—is that (a) in 2002 and 2003

he authorized the use of harsh interrogation techniques

when dealing with enemy combatants, (b) he received

reports that his subordinates sometimes used these tech-

niques, without authorization, on persons such as

plaintiffs despite the Detainee Treatment Act of 2005,

and (c) he did not do enough to bring interrogators

under control.

The Supreme Court held in Iqbal that liability under

a Bivens-like remedy is personal. 556 U.S. at 676–77.

Cabinet secretaries (in Iqbal the Attorney General) and

other supervisory personnel are accountable for what

they do, but they are not vicariously liable for what

their subordinates do. The Court added that knowledge

of a subordinate’s misconduct is not enough for liabil-

ity. The supervisor can be liable only if he wants

the unconstitutional or illegal conduct to occur. Id. at 677.

Yet plaintiffs do not allege that Secretary Rumsfeld

wanted them to be mistreated in Iraq. His orders con-

cerning interrogation techniques concerned combatants

and terrorists, not civilian contractors. What happened

to plaintiffs violated both Rumsfeld’s directives of 2002

20 Nos. 10-1687 & 10-2442

and 2003, and the Detainee Treatment Act of 2005. In

an ideal world, the Secretary of Defense and the Army’s

Chief of Staff would have achieved full compliance

with the Detainee Treatment Act, but a public official’s

inability to ensure that all subordinate federal employ-

ees follow the law has never justified personal liability.

The gist of plaintiffs’ claim against Rumsfeld is that

harsh interrogation tactics were used erroneously, point-

lessly, and excessively in their situation. Plaintiffs

should be compensated, if their allegations are true—

though it is too late for them to invoke the Foreign

Claims Act, which has a two-year period of limitations.

Just because it may be hard to use the statutory mecha-

nisms of compensation, however, it does not follow that

a Cabinet official must pay out of his own pocket. To

see this, ignore for the moment the military and foreign-

location issues and ask whether persons in the United

States who are shot by federal agents or beaten by

prison guards have a good claim against the Director of

the FBI, the Director of the Bureau of Prisons, or the

Attorney General. They do not. Both Iqbal and al-Kidd

say that supervisors are not vicariously liable for their

subordinates’ transgressions.

The Director of the FBI allows field agents to carry guns

and permits them to use deadly force. Yet if an agent

shoots a fleeing suspect in the back, violating the fourth

amendment, see Tennessee v. Garner, 471 U.S. 1 (1985),

the Director is not liable just because the gun, issued

under the Director’s policy, was a cause of the injury.

Similarly for a police chief who establishes a K-9 squad,

Nos. 10-1687 & 10-2442 21

if a dog bites a bystander, or who authorizes search

or arrest based on probable cause, if the police then

search or arrest without probable cause.

Plaintiffs’ theme is that Secretary Rumsfeld, having

authorized harsh interrogation tactics for enemy com-

batants in 2002 and 2003, should have intervened after

receiving reports that non-combatants were being sub-

jected to these tactics and that interrogators had not

properly implemented the Detainee Treatment Act of

2005. Yet the standard form of intervention would have

been criminal prosecution (in the civilian courts or by

court-martial). The Department of Defense did pros-

ecute some soldiers through courts-martial, and the

Department of Justice filed some criminal prosecu-

tions. Plaintiffs think that they should have done more,

but no one can demand that someone else be prosecuted.

See, e.g., Castle Rock v. Gonzales, 545 U.S. 748 (2005);

DeShaney v. Winnebago County Dep’t of Social Services,

489 U.S. 189 (1989); Linda R.S. v. Richard D., 410 U.S. 614

(1973). A court cannot say that, if there are too few prose-

cutions (or other enforcement), and thus too much

crime, then the Attorney General or the Secretary of

Defense is personally liable to victims of (preventable)

crime. Yet that’s what plaintiffs’ approach entails.

Iqbal held that knowledge of subordinates’ misconduct

is not enough for liability. The supervisor must want

the forbidden outcome to occur. Deliberate indifference

to a known risk is a form of intent. But Farmer v. Brennan,

511 U.S. 825 (1994), holds that, to show scienter by the

deliberate-indifference route, a plaintiff must demon-

22 Nos. 10-1687 & 10-2442

strate that the public official knew of risks with suf-

ficient specificity to allow an inference that inaction is

designed to produce or allow harm. A warden’s knowl-

edge that violence occurs frequently in prison does not

make the warden personally liable for all injuries. See

McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991). Prisons

are dangerous places, and misconduct by both

prisoners and guards is common. Liability for wardens

would be purely vicarious. Farmer rejected a contention

that wardens (or guards) can be liable just because

they know that violence occurs in prisons and don’t do

more to prevent it on an institution-wide basis. To get

anywhere, Vance and Ertel would need to allege that

Rumsfeld knew of a substantial risk to security contrac-

tors’ employees, and ignored that risk because he

wanted plaintiffs (or similarly situated persons) to be

harmed. The complaint does not contain such an allega-

tion and could not plausibly do so.

The head of any large bureaucracy receives reports of

misconduct. The Secretary of Defense has more than a

million soldiers under his command. The Attorney General

supervises thousands of FBI and DEA agents, thousands

of prison guards, and so on. Many exceed their author-

ity. People able to exert domination over others often

abuse that power; it is a part of human nature that is very

difficult to control. See Philip Zimbardo, The Lucifer

Effect: Understanding How Good People Turn Evil (2007).

The head of an organization knows this, or should know

it. Every police chief knows that some officers shoot

unnecessarily or arrest some suspects without probable

cause, and that others actually go over to the criminal

Nos. 10-1687 & 10-2442 23

side and protect drug rackets. But heads of organiza-

tions have never been held liable on the theory that

they did not do enough to combat subordinates’ miscon-

duct, and the Supreme Court made it clear in Iqbal

that such theories of liability are unavailing.

Plaintiffs do not cite even one instance in which an

Attorney General, a Director of the FBI, a Director of the

Bureau of Prisons, or a municipal chief of police has

been held personally liable for not ensuring that subordi-

nates respect prisoners’ or suspects’ rights. Claims

against the Secretary of Defense, who has more people

under his command, and a longer chain of subordinates

between him and the culpable soldiers, are weaker.

Although Vance and Ertel contend that their injuries

can be traced (remotely) to Secretary Rumsfeld’s policies

of 2002 and 2003, as well as to the misconduct of per-

sonnel in Iraq, they do not contend that the policies

authorized harsh interrogation of security detainees, as

opposed to enemy combatants. It is therefore unneces-

sary to decide when, if ever, a Cabinet officer could be

personally liable for damages caused by the proper ap-

plication of an unlawful policy or regulation. As we

observed in Hammer v. Ashcroft, 570 F.3d 798, 800

(7th Cir. 2009) (en banc), the normal means to handle

defective policies and regulations is a suit under the

Administrative Procedure Act or an equivalent statute,

not an award of damages against the policy’s author.

Accord, Arar, 585 F.3d at 572–73. No court has ever held

the Administrator of the EPA personally liable for pro-

mulgating an invalid regulation, even if that regulation

24 Nos. 10-1687 & 10-2442

imposes billions of dollars in unjustified costs before

being set aside. Cf. Padilla v. Yoo, 678 F.3d 748 (9th

Cir. 2012) (Deputy Assistant Attorney General not per-

sonally liable for preparing an opinion concluding that

Secretary Rumsfeld’s policies were valid). The extent

to which untenable directives, policies, and regulations

may support awards of damages can safely be post-

poned to another day.

V

Because we have held that a common-law right of

action for damages should not be created—and that plain-

tiffs’ complaint would fail to state a claim against

former Secretary Rumsfeld even if such a right of action

were to be created—it is unnecessary to decide

whether Rumsfeld violated plaintiffs’ clearly established

rights. The decisions of the district court are reversed.

W OOD , Circuit Judge, concurring in the judgment.

Civilized societies do not condone torture committed by

governmental agents, no matter what job title the agent

holds. I am confident that every member of this court

Nos. 10-1687 & 10-2442 25

would agree with that proposition. This is therefore

a case of system failure: plaintiffs Donald Vance and

Nathan Ertel assert that representatives of the U.S. gov-

ernment (who happened to be members of the Armed

Forces) subjected them to a variety of measures that

easily qualify as “torture,” whether under the defini-

tions found in the Army Field Manual, international law,

or legislation such as the Torture Victim Protection

Act, 28 U.S.C. § 1350 note, § 3(b). This shameful fact

should not be minimized by using euphemisms such

as the term “harsh interrogation techniques.” The

question before us is whether the man who served as

Secretary of Defense at the time of the plaintiffs’ ordeal,

Donald Rumsfeld, is entitled to qualified immunity

in the suit they have brought against him. Although

I part company in substantial ways from the majority’s

reasoning, I conclude that former Secretary Rumsfeld

himself is entitled to such immunity. The same may well

be true of others who had no personal participation

in these events. Nevertheless, I am in substantial agree-

ment with Judge Hamilton’s dissenting opinion when

it comes to the question of possible liability for those

who actually committed these heinous acts. I therefore

am able only to concur in the court’s judgment.

I

The majority’s account in Part I of the underlying

facts, which it properly presents in the light most

favorable to Vance and Ertel, provides the essential

information for deciding the case. But I find its charac-

26 Nos. 10-1687 & 10-2442

terization of the facts to be incomplete in one im-

portant respect. In my view, “threats of violence and actual

violence, sleep deprivation and alteration, extremes of

temperature, extremes of sound, light manipulation,

threats of indefinite detention, denial of food, denial of

water, denial of needed medical care, yelling, prolonged

solitary confinement, incommunicado detention, falsified

allegations,” as well as “prolonged exposure to cold,

intolerably loud music, ‘hooding,’ ‘walling,’ ” and the

like, must be acknowledged for what they are: torture.

Ante at 3. In other cases, we might need to draw a line

between harsh techniques and actual torture, but that is

not a problem here. It is notable that courts have found

that comparable actions also violate the Eighth Amend-

ment to the U.S. Constitution, for prisoners, or the

Due Process Clauses, in the case of pretrial detainees

and others not facing punishment. See, e.g., Wilson v.

Seiter, 501 U.S. 294, 304 (1991) (holding that conditions

of confinement may establish an Eighth Amendment

violation in combination, even if each would not

suffice alone; this would occur when they have “a

mutually enforcing effect that produces the deprivation

of a single, identifiable human need such as food,

warmth, or exercise”); DeSpain v. Uphoff, 264 F.3d 965,

974 (10th Cir. 2001) (concluding that exposure to human

waste for 36 hours would constitute a deprivation

serious enough to violate the Eighth Amendment).

Like the majority, I conclude that we are authorized

in this appeal to consider the question whether the plain-

tiffs have stated a claim against the Secretary. I have

nothing to add to its analysis in Part II of its opinion. In

Nos. 10-1687 & 10-2442 27

particular, I agree with the majority that the panel

correctly ruled that 5 U.S.C. § 701(b)(1)(G) forecloses

plaintiffs’ claims against the United States. I therefore

proceed directly to explain my disagreement with

Part III of the majority’s opinion, and my agreement

with the ultimate conclusion of Part IV (and thus with

the ultimate decision to reverse the judgment of the

district court).

II

In Part III of its opinion, the majority tackles the

broad question “whether to create an extra-statutory

right of action for damages against military personnel

who mistreat detainees.” Ante at 7. Almost every part of

this phrasing of the issue needs closer examination.

Although a literal sense, the cause of action recognized

in Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), might be called

“extra-statutory,” that does not mean that the claim

sprang forth from the heads of federal judges. It was

solidly rooted in the most fundamental source of law

we have, the Constitution, and in particular the

Fourth Amendment. The lawsuit fell comfortably within

the boundaries of the federal-question jurisdiction Con-

gress has conferred in 28 U.S.C. § 1331. To expand

Vance’s and Ertel’s case to one that involves any and

all possible claims against military personnel is, as

Judge Hamilton has persuasively shown, neither neces-

sary nor wise. Had Vance and Ertel known from the

start the identity of their tormenters, and had they sued

28 Nos. 10-1687 & 10-2442

only those people, we might have a very different

reaction to the issues presented. I consider it premature

at best to assume that a civilian in the state of Texas

who is dragged by a military officer onto the grounds of

Fort Hood and then tortured would not have a Bivens

cause of action against that officer. Although the

majority stresses that the events in our case occurred in

a “combat zone,” even that is not entirely accurate. In

fact, plaintiffs were removed from the active combat

zone and placed into a military prison—critically, a

place where there was plenty of time to make con-

sidered decisions and enemy forces were nowhere to

be seen. Finally, the phrase “mistreat detainees”

wrongly implies possible liability for a broader range

of injury than the plaintiffs are asserting (or at least

than I would be prepared to recognize). More than

simple mistreatment is at stake here. We are talking

about conduct that the international community

recognizes as torture and that lies at the extreme end

of that which would support a finding of Eighth Amend-

ment liability in a suit brought by a domestic prisoner.

Rather than starting—and ending—with Secretary

Rumsfeld, the majority inexplicably starts at the bottom

of the military hierarchy. It makes the obvious point that

if the lowest private and her immediate commanders

have done nothing wrong, then the lieutenants, captains,

colonels, generals above her, including ultimately

the Secretary of Defense, would similarly have no

liability for that private’s actions. But why start there?

It is a fallacy to think that the converse of this is true:

that just because the Secretary has done nothing wrong,

Nos. 10-1687 & 10-2442 29

then none of the people inferior to him can have erred.

The majority acknowledges just this point in Part IV of

its opinion, ante at 21-22. Cases are legion where a

warden is exonerated even though prison guards are

liable; where a school superintendent has no liability

even though a principal does. See, e.g., Lojuk v. Quandt,

706 F.2d 1456 (7th Cir. 1983) (Veterans Administration

staff psychiatrist may be liable for performing electro-

shock therapy on patient without consent, but super-

visor is not); Lenz v. Wade, 490 F.3d 991 (8th Cir. 2007)

(officers liable for beating inmate, but warden is not);

Baynard v. Malone, 268 F.3d 228 (4th Cir. 2001) (principal

and teacher liable for teacher’s sexual abuse of student,

but superintendent and personnel director are not).

The majority has written with a broad brush with

respect to those lower down in the chain of responsi-

bility, and it does not seem to have drawn any distinc-

tion between the obviously culpable actors and those

whose involvement may have been more indirect. But

perhaps it has: in the end I cannot tell whether the

majority intends to preclude Bivens liability even for the

direct actors. Either way, I find the gist of the majority’s

discussion troubling. The Court has seen many cases

raising questions about abusive police, military, or prison

guard tactics. In the police and prison contexts, the

Court has affirmatively recognized the availability of

Bivens actions. See Bivens; Carlson v. Green, 446 U.S. 14, 19

(1980). And the majority passes over without comment

the Bivens cases that have come before the Court at the

certiorari stage over the years. Although we all know

that a denial of certiorari in itself does not convey any

30 Nos. 10-1687 & 10-2442

message—either approval or disapproval—we know

equally well that the Court does not hesitate to step in

and correct lower courts that have strayed beyond

the boundaries it has established. It has done just this

in case after case in the habeas corpus area. See Overstreet

v. Wilson, 686 F.3d 404, 410-11 (7th Cir. 2012) (Wood, J.,

dissenting) (listing cases reversing grants of habeas

corpus relief and noting the use of summary reversals

in this area). The Court has not sent such clear signals

in the Bivens Eighth Amendment context, even as it has

issued decisions such as Minneci v. Pollard, 132 S. Ct. 617

(2012), which declined to make a Bivens remedy avail-

able against employees of a private prison facility. Had

the Court wished to disapprove Bivens actions altogether,

it would not have taken the trouble in Minneci to

review the history of Bivens and decide on which side

of the line the proposed claim fell.

The Court’s acceptance of Bivens in the closely

related area of the Eighth Amendment is consistent

with both Congress’s actions and the position of the

Executive Branch. The majority brushes over the fact

that the Detainee Treatment Act expressly provides a

defense to a civil action brought against a member of

the Armed Forces or any other agent of the U.S. gov-

ernment for engaging in practices prohibited by that

law. What suit? Congress can have been referring only

to a Bivens action. It did much the same thing when

it passed the Westfall Act of 1988, which went out of

its way to state that the substitution of the United States

for a federal employee for purposes of the Federal Tort

Claims Act “does not extend or apply to a civil action

Nos. 10-1687 & 10-2442 31

against an employee of the Government . . . which is

brought for a violation of the Constitution of the United

States.” 28 U.S.C. § 2679(b)(2). Although it is theoretically

possible that Congress was just underscoring its under-

standing that no such suit was possible, that is a

strained reading of the statutory language, and it is a

reading that some scholars have rejected. See James E.

Pfander and David Baltmanis, Rethinking Bivens: Legitimacy

and Constitutional Adjudication, 98 Georgetown L. J. 117,

132-38 (2009) (arguing that Congress “joined the Court

as a partner in recognizing remedies in the nature of a

Bivens action [based on] the Westfall Act’s preservation

of suits for violation of the Constitution and [on] the

considerations that led to its adoption.”).

Moreover, as Judge Hamilton notes, the State Depart-

ment relied on the availability of Bivens actions when

it filed answers to a number of questions posed by the

United Nations committee with oversight responsi-

bility over the Convention Against Torture (CAT). Ques-

tion 5 pointed out that the United States had taken

the position that the CAT was not self-executing, and it

asked for a specification of how the United States

proposed to meet its obligations under the Convention.

The State Department provided a lengthy response,

which in relevant part read as follows:

Finally, U.S. law provides various avenues for

seeking redress, including financial compensation,

in cases of torture and other violations of con-

stitutional and statutory rights relevant to the

Convention. Besides the general rights of appeal,

32 Nos. 10-1687 & 10-2442

these can include any of the following, depending

on the location of the conduct, the actor, and

other circumstances:

* * *

• Bringing a civil action in federal or state court

under the federal civil rights statute, 42 U.S.C.

§ 1983, directly against state or local officials

for money damages or injunctive relief;

• Seeking damages for negligence of federal offi-

cials and for negligence and intentional torts of

federal law enforcement officers under the

Federal Tort Claims Act, 22 U.S.C. § 2671 et seq.,

or of other state and municipal officials under

comparable state statutes;

• Suing federal officials directly for damages

under provisions of the U.S. Constitution for “con-

stitutional torts,” see Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971), and Davis v. Passman,

442 U.S. 228 (1979);

* * *

See United States Written Response to Questions Asked

by the United Nations Committee Against Torture, ¶ 5

(Apr. 28, 2006) (Question 5), available at http://

www.state.gov/g/drl/rls/68554.htm (last visited Oct. 30,

2012). I do not know whether the State Department will

feel compelled to inform the Committee that it was in

error with respect to its Bivens/Davis representation in

light of the majority’s opinion, but there is no ambiguity

in what it said.

Nos. 10-1687 & 10-2442 33

The last point the majority makes in Part III is that, in

their view, the plaintiffs’ citizenship should not be

dispositive either way. If we were writing on a clean

slate, then I would enthusiastically endorse that senti-

ment. The problem is that the background statutes—not

to mention international law—are replete with distinc-

tions based on citizenship. Thus, the Torture Victim

Protection Act, 28 U.S.C. § 1350 note, provides a remedy

to any “individual,” but only against “[a]n individual”

who acts “under actual or apparent authority, or color

of law, of any foreign nation.” Id., § 2(a). The Alien Tort

Statute, 28 U.S.C. § 1350, covers only “any civil action by

an alien for a tort only . . . .” (Emphasis added.) Principles

of legislative jurisdiction in international law recognize

authority based not only on territory, but also on na-

tionality. See Restatement (Third) of Foreign Relations

Law of the United States, § 402, which provides that

subject to certain reasonableness limitations, “a state

has jurisdiction to prescribe law with respect to . . . the

activities, interests, status, or relations of its nationals

outside as well as within its territory.” Id. § 402(2). In

fact, if it were true that there is no Bivens theory

under which a U.S. citizen may sue an official of the

U.S. government (including a military official) who tor-

tures that citizen on foreign land under the control of

the United States (including its military), then U.S.

citizens will be singled out as the only ones without a

remedy under U.S. law. That is because existing law

permits a U.S. citizen to sue a foreign official, and an

alien can sue anyone who has committed a tort in viola-

tion of the law of nations. Only by acknowledging

34 Nos. 10-1687 & 10-2442

the Bivens remedy is it possible to avoid treating U.S.

citizens worse than we treat others. The fear of offense

to our allies that the majority fears dissipates as soon

as we look at the broader picture.

III

I turn finally to Part IV of the majority’s opinion,

in which it concludes that Secretary Rumsfeld cannot be

held liable to Vance and Ertel no matter what one says

about other military personnel and civilians who work

for the armed forces. Here the majority properly reserves

a critical question. Vance and Ertel, it notes, “do not

contend that [Secretary Rumsfeld’s] policies authorized

harsh interrogation of security detainees, as opposed to

enemy combatants.” Ante at 23. Thus, it concludes, “[t]he

extent to which untenable directives, policies, and regula-

tions may support awards of damages can safely be

postponed to another day.” Ante at 24. I wholeheartedly

endorse this statement.

With that said, I conclude, along with the majority,

that the Supreme Court’s decision in Ashcroft v. Iqbal,

556 U.S. 662 (2009), governs our decision here. In Iqbal,

the Court concluded that the Attorney General’s knowl-

edge of and participation in the mistreatment of the

plaintiff was remote enough that he could not be held

vicariously liable for the actions of his subordinates. The

same must be said of Secretary Rumsfeld. This is not

because his leadership of the Department of Defense

had nothing to do with the plaintiffs’ injuries. His

approval of the so-called harsh techniques may have

Nos. 10-1687 & 10-2442 35

egged subordinates on to more extreme measures—

measures that surely violated the standards of the

Detainee Treatment Act of 2005, as well as broader norms

such as those in the CAT. But the link between their

mistreatment and the Secretary’s policies authorizing

extreme tactics for enemy combatants is too attenuated

to support this case.

IV

In closing, I wish to stress that I do not rest any part

of my analysis on the fear that Bivens liability would

cause Cabinet Secretaries to carry out their responsi-

bilities with one eye on their wallets, rather than for the

greater good of their department and the country. The

majority suggests as much in several places, see ante at 12,

17-18, but I find this disrespectful of both the dedication

of those who serve in government and the serious

interests that the plaintiffs are raising. The majority’s

suggestions derive from comments the Court has made

over the years in its qualified immunity decisions, where

it has considered the question whether personal liability

for constitutional torts might “dampen the ardor of all

but the most resolute . . . in the unflinching discharge

of their duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814

(1982) (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d

Cir. 1949) (Learned Hand, J.)); see also Butz v. Economou,

438 U.S. 478, 506 (1978) (highlighting “public interest in

encouraging the vigorous exercise of official authority”);

Anderson v. Creighton, 483 U.S. 635, 638 (1987) (noting

that “permitting damages suits against government

36 Nos. 10-1687 & 10-2442

officials can entail substantial social costs, including the

risk that fear of personal monetary liability and

harassing litigation will unduly inhibit officials in the

discharge of their duties.”). But, as the Court has also

acknowledged, that concern represents only one side

of the balance. Otherwise, it would have adopted a

rule of absolute immunity for government actors, in

place of the qualified immunity it chose. Bivens, and its

counterpart for state actors, 42 U.S.C. § 1983, rest on

the countervailing fact that the threat of personal

liability for violations of clearly established rules

gives some teeth to the need to conform to constitu-

tional boundaries. Courts must balance the risk of over-

deterrence against “the public interest in deterrence

of unlawful conduct and in compensation of victims.”

Harlow, 457 U.S. at 819; see also Carlson v. Green, 446

U.S. 14, 21 (1980) (“It is almost axiomatic that the threat

of damages has a deterrent effect, surely particularly

so when the individual official faces personal financial

liability.”) (internal citation omitted). While I recognize

the need to avoid over-deterrence, I see nothing in this

case that requires us to depart from the “balance that

[the Supreme Court’s] cases [traditionally] strike

between the interests in vindication of citizens’ constitu-

tional rights and in public officials’ effective per-

formance of their duties” through qualified immunity.

Anderson, 483 U.S. at 639.

Finally, I add that our decision here spells the practical

end to this case. This is certainly true with respect to

the “John Doe” defendants. The two-year statute of

limitations that we apply in Bivens cases has long since

Nos. 10-1687 & 10-2442 37

run, and we do not permit relation back under Federal

Rule of Civil Procedure 15(c)(1)(C) where the plaintiff

simply did not know whom to sue. See, e.g., Hall v. Norfolk

So. Ry. Co., 469 F.3d 590, 597 (7th Cir. 2006); King v. One

Unknown Federal Correctional Officer, 201 F.3d 910, 914

(7th Cir. 2000); see generally 6A Charles Alan Wright

et al., F EDERAL P RACTICE AND P ROCEDURE § 1498.3 (3d ed.

2010).

I therefore respectfully concur only in the judgment

of the court.

HAMILTON, Circuit Judge, joined by ROVNER and

WILLIAMS, Circuit Judges, dissenting. All members of

this court agree that plaintiffs Vance and Ertel have

alleged that members of the United States military tor-

tured them in violation of the United States Constitu-

tion, and that in reviewing a denial of a motion to

dismiss under Rule 12(b)(6), we must accept those al-

legations as true. Our disagreement is about whether

plaintiffs have a civil remedy available to them under

Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971), which allows a victim of

a constitutional violation to sue a responsible federal

officer or employee for damages.

If a victim of torture by the Syrian military can find

his torturer in the United States, U.S. law provides a civil

38 Nos. 10-1687 & 10-2442

remedy against the torturer. Torture Victim Protection

Act of 1991, 28 U.S.C. § 1350 note. If the victim is killed,

the same U.S. law provides his survivors a civil remedy.

The same could be said for victims of torture by any

other government in the world — any other, that is,

except one. Under the majority’s decision, civilian

U.S. citizens who are tortured or worse by our own mil-

itary have no such remedy. That disparity attributes

to our government and to our legal system a degree

of hypocrisy that is breathtaking.

The majority’s result is not required or justified by

Supreme Court precedent, and it fails to carry out

the judiciary’s responsibility under Supreme Court prece-

dents to protect individual rights under the Constitu-

tion, including a right so basic as not to be tortured by

our government. Although the majority opinion is writ-

ten in terms of whether to “create” a cause of action

under Bivens, the majority in effect creates a new absolute

immunity from Bivens liability for all members of the

U.S. military. This new absolute immunity applies not

only to former Secretary Rumsfeld but to all members

of the military, including those who were literally hands-

on in torturing these plaintiffs. It applies to military

mistreatment of civilians not only in Iraq but also in

Illinois, Wisconsin, and Indiana.

The majority’s immunity is even more sweeping than

the government and former Secretary Rumsfeld sought.

To find this immunity, the majority relies on Chappell

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

Stanley, 483 U.S. 669 (1987), which each held that soldiers

Nos. 10-1687 & 10-2442 39

may not sue under Bivens for injuries “incident to ser-

vice.” The majority decision takes Chappell and Stanley

far beyond their holdings and rationales, granting the

entire U.S. military an exemption from all Bivens liability,

even to civilians. The majority decision is also difficult

to reconcile with Mitchell v. Forsyth, 472 U.S. 511, 520-24

(1985), which held that national security considerations

did not entitle another former cabinet officer to abso-

lute immunity in a Bivens action.

For these reasons, and because this appeal raises such

fundamental issues about the relationship between the

American people and our government, I respectfully

dissent. The panel opinion explained in detail why the

civil immunity sought by defendants is not justified for

a claim for torture or worse in a U.S. military prison in

Iraq. Vance v. Rumsfeld, 653 F.3d 591 (7th Cir. 2011). I will

not repeat here all the details from the panel opinion.

Instead, I address the majority’s new grant of an even

broader immunity and explain the core Supreme Court

precedents, the relevant legislation, and the reasoning

that should allow plaintiffs to pursue their claims for

torture. Part I first reviews the familiar elements of plain-

tiffs’ Bivens claims and then explains the errors in the

majority’s reliance on Chappell and Stanley, as well as

the import of Mitchell and other cases rejecting

absolute immunity in similar Bivens cases. Part I then

turns to the legislation indicating that Congress has

assumed that Bivens applies to cases like this one, as

well as the anomalous consequences of the majority’s

decision. Finally, the opinion addresses briefly in Part II

40 Nos. 10-1687 & 10-2442

the sufficiency of the allegations against Mr. Rumsfeld

personally and in Part III the question of qualified im-

munity.1

I. Civilian Remedies Under Bivens for Military Wrongdoing

Before this en banc decision and the Fourth Circuit’s

recent decision in Lebron v. Rumsfeld, 670 F.3d 540 (4th

Cir. 2012), there should have been no doubt that a

civilian U.S. citizen prisoner tortured by a federal official,

even a military officer, could sue for damages under

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

Bivens claim against prison officials who were delib-

erately indifferent to prisoner’s serious medical needs);

Saucier v. Katz, 533 U.S. 194 (2001) (holding that military

police officer was entitled to qualified immunity on civil-

ian’s Bivens claim for excessive force, without sug-

gesting that defendant’s status as military officer alone

would bar Bivens action). The majority rejects this con-

clusion, at least for torture by military personnel, by

asking the wrong question. Plaintiffs are not asking this

court to create a cause of action. It already exists. It is

the defendants who have sought and have now been

given a new, extraordinary, and anomalous exception

to Bivens.

1

I continue to agree with the panel decision directing

dismissal of the plaintiffs’ claims against the United States

for deprivation of their property in No. 10-2442, adopted by

Part II of the majority opinion. See Vance, 653 F.3d at 626-27.

Nos. 10-1687 & 10-2442 41

A. The Familiar Elements of Plaintiffs’ Bivens Claims

All the key elements of plaintiffs’ Bivens claims are

well established under Supreme Court precedent:

(1) prisoners may sue for abuse by federal officials;

(2) civilians may sue military personnel; (3) the Consti-

tution governs the relationship between U.S. citizens

and their government overseas; and (4) claims against

current and former cabinet officials are permitted. Permit-

ting a Bivens claim for torture by military personnel

should not be controversial, at least barring interference

with combat or other highly sensitive activity, which

is not involved here.

First, of course, Bivens is available to prisoners who

have been abused or mistreated by their federal jailors,

and that reasoning certainly extends to the torture

alleged here. In Carlson v. Green, 446 U.S. 14, the Supreme

Court reversed dismissal of a complaint in which a de-

ceased prisoner’s representative sued for violation of

the Eighth Amendment prohibition on cruel and

unusual punishment, in that case through an alleged

deliberate denial of needed medical care. Since Carlson,

federal courts have routinely considered prisoners’ consti-

tutional claims against federal prison officials. E.g.,

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

court properly heard Bivens claim alleging injury as part

of prison work program where workers’ compensation

program did not provide adequate safeguards to

protect prisoner’s Eighth Amendment rights); Del Raine

v. Williford, 32 F.3d 1024 (7th Cir. 1994) (recognizing

prisoner’s Bivens claim alleging that he was forced to

42 Nos. 10-1687 & 10-2442

live in bitterly cold cell). As Judge Wood points out, the

torture alleged here lies at the extreme end of abuse

that violates the Constitution.

Second, under Bivens civilians may sue military per-

sonnel who violate their constitutional rights. For

example, Saucier v. Katz, 533 U.S. 194, an important but

now overruled case on procedures for deciding

qualified immunity, was a Bivens claim for excessive

force brought by a civilian against a military police

officer. Saucier did not hint that the civilian could not

sue the military police officer for violations of clearly

established constitutional rights. If the majority were

correct, though, the Supreme Court in Saucier should

have simply rejected the Bivens claim altogether, not

explored the nuances of procedures for deciding

qualified immunity.

Circuit and district courts have decided many Bivens

cases brought by civilians against military personnel.

While such claims often fail on the merits or for other

reasons, the fact that a civilian has sued a military

official is not a basis for denying relief under Bivens. If

the majority here were right, though, all such cases

should have been dismissed on the new and simple

theory that military personnel are altogether immune

from Bivens liability. See, e.g., Case v. Milewski, 327 F.3d

564 (7th Cir. 2003) (civilian claim against military officers

for Fourth and Fifth Amendment violations); Morgan v.

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

against military police for search of vehicle); Roman v.

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

Nos. 10-1687 & 10-2442 43

against military police officer and Secretary of the

Army for improper arrest and treatment in detention);

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

Cir. 1993) (civilian claim against military investigators

for unlawful search and removal from military base);

Dunbar Corp. v. Lindsey, 905 F.2d 754, 761 (4th Cir. 1990)

(civilian claim against military officers for deprivation

of property without due process of law); see also Newton

v. Lee, 677 F.3d 1017, 1028 (10th Cir. 2012) (civilian

claim against state National Guard officers under § 1983

for due process violation); Meister v. Texas Adjutant Gen-

eral’s Dep’t, 233 F.3d 332, 338 (5th Cir. 2000) (civilian

employee of state National Guard could bring constitu-

tional claims against officers under § 1983); Wright v.

Park, 5 F.3d 586 (1st Cir. 1993) (whether National

Guard technician could bring Bivens claim depended on

whether he was deemed civilian or military personnel);

Fields v. Blake, 349 F. Supp. 2d 910, 921 (E.D. Pa. 2004)

(summary judgment on the merits of civilian’s claim

against military officer for unconstitutional arrest);

Willson v. Cagle, 711 F. Supp. 1521, 1526 (N.D. Cal. 1988)

(concluding that “a Bivens action may potentially lie

against military officers and civilian employees of the

military” for protesters injured when a military muni-

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

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

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

1985) (allowing civilian’s Bivens claim to proceed

against military officials for their alleged concealment of

their roles in the creation and administration of an

44 Nos. 10-1687 & 10-2442

army chemical warfare experiment), aff’d, 798 F.2d 565

(2d Cir. 1986).2

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

States, we take with us the constitutional rights that

protect us from our government. In Reid v. Covert,

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

civilian members of military families could not be tried

in courts martial. Justice Black wrote for a plurality of

four Justices:

At the beginning we reject the idea that when

the United States acts against citizens abroad it

can do so free of the Bill of Rights. The United

States is entirely a creature of the Constitution. Its

power and authority have no other source. It can

only act in accordance with all the limitations

imposed by the Constitution. When the Government

reaches out to punish a citizen who is abroad, the

shield which the Bill of Rights and other parts of the

Constitution provide to protect his life and liberty

should not be stripped away just because he happens

to be in another land. This is not a novel concept. To

the contrary, it is as old as government.

Id. at 5-6 (emphasis added). That general proposition

remains vital, as reaffirmed in Boumediene v. Bush, holding

2

Among the cited cases, Newton, Meister, and Wright involved

claims under 42 U.S.C. § 1983 against military officials in

state National Guards, but the courts in those cases tracked the

Bivens analysis under the Chappell, Stanley, and Feres cases

discussed below.

Nos. 10-1687 & 10-2442 45

that aliens held as combatants at Guantanamo Bay

may invoke the writ of habeas corpus to challenge their

detention: “Even when the United States acts outside

its borders, its powers are not ‘absolute and unlimited’

but are subject ‘to such restrictions as are expressed in

the Constitution.’ ” 553 U.S. 723, 765 (2008), quoting

Murphy v. Ramsey, 114 U.S. 15, 44 (1885); see also Munaf

v. Geren, 553 U.S. 674, 688 (2008) (holding that civilian

U.S. citizens held in U.S. military custody in Iraq could

petition for a writ of habeas corpus in federal district

court). Cf. United States v. Verdugo-Urquidez, 494 U.S. 259

(1990) (holding that non-resident alien could not

invoke Fourth Amendment to challenge search by U.S.

officials in foreign country).3

Fourth, our laws permit suit against public officials for

actions taken while serving at the highest levels of the

United States government. The majority expresses great

concern over former Secretary Rumsfeld’s personal fi-

nances and how the risk of Bivens liability might affect

other senior government officials as they perform their

3

The majority cites Verdugo-Urquidez to show it is “not settled”

whether the Constitution applies to interrogation outside

the United States, slip op. at 7-8, but the majority ignores the

fact that the party in that case was a non-resident alien, not a

citizen or national of the United States. Reid and Munaf show

it is well established that U.S. citizens do not abandon their

constitutional rights with respect to their own government

when leaving U.S. borders. This dicta from our court should

most definitely not be used to justify a defense of qualified

immunity by federal personnel who violate constitutional

rights in overseas interrogations.

46 Nos. 10-1687 & 10-2442

public duties. The policy balances that are always part of

Bivens analysis are no doubt delicate. The defendant’s

former rank, however, is not a basis for rejecting these

plaintiffs’ claims. The Supreme Court has repeatedly

permitted Bivens actions against other cabinet members.

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

Attorney General was entitled to qualified immunity, not

absolute immunity, from damages suit arising out of

national security-related actions); Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982) (senior presidential aides are

entitled to qualified immunity, not absolute immunity,

from liability when their conduct “does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known”);

Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979) (senior

executive branch officials, including a former President,

were not absolutely immune from suit for damages

by citizen alleging an unconstitutional wiretap), aff’d in

relevant part, 452 U.S. 713 (1981); Butz v. Economou,

438 U.S. 478 (1978) (Secretary of Agriculture and other

executive branch officials ordinarily may be entitled to

qualified, not absolute, immunity from constitutional

claims).

B. Bivens Cases Involving the Military and National Secu-

rity

Without coming to grips with the principles and prece-

dents supporting plaintiffs’ claims here, the majority errs

by relying on Chappell v. Wallace and United States v.

Stanley to exempt any military personnel from civil

liability for violating the constitutional rights of civilians.

Nos. 10-1687 & 10-2442 47

The Supreme Court itself has never adopted or even

suggested such a sweeping view.

Chappell was the easier case, in which enlisted sailors

sued their direct superior officers under Bivens for race

discrimination. In dismissing those claims, the Court

was guided by the Feres doctrine under the Federal Tort

Claims Act, which bars military personnel from suing

for injuries “incident to service.” See Feres v. United

States, 340 U.S. 135 (1950). Relying on Feres, the Chappell

Court held unanimously that the sailors could not sue

their direct superior officers under Bivens. 462 U.S. at

305. Nothing in Chappell hinted that its reasoning

would apply to civilians whose constitutional rights

were violated by military personnel, and it is well estab-

lished that the Feres doctrine does not apply to claims

by civilians. E.g., United States v. Brown, 348 U.S. 110

(1954); M.M.H. v. United States, 966 F.2d 285, 288-89

(7th Cir. 1992) (Feres doctrine did not apply to veteran’s

negligence claim based on Army’s negligence after vet-

eran’s discharge); Rogers v. United States, 902 F.2d 1268,

1273-74 (7th Cir. 1990). The reliance on the Feres doctrine

is a strong signal that Chappell does not reach claims

by civilians and that the majority errs by relying upon

it here.

Stanley also provides no basis for barring Bivens claims

by civilians. While plaintiff Stanley was serving in the

Army, he was exposed to LSD without his consent in

secret experiments, resulting in serious harm to him and

his family. He sued under Bivens for violation of his

constitutional rights. The potential individual de-

fendants would have included not his direct superior

48 Nos. 10-1687 & 10-2442

officers but other military and civilian personnel. A

closely divided Supreme Court held that he could not sue

under Bivens because his injuries arose incident to his

military service, essentially applying the full extent of

the Feres “incident to service” standard to Bivens claims

by military personnel. 483 U.S. at 684 (“We hold that

no Bivens remedy is available for injuries that ‘arise out

of or are in the course of activity incident to service.’ ”),

quoting Feres, 340 U.S. at 146. Stanley teaches that the

plaintiff’s status as military or civilian is decisive in a

Bivens case, not that military defendants cannot be

sued under Bivens.

The majority’s use of Stanley to bar torture claims by

civilians depends on dicta severed from context: “The

‘special factor’ that ‘counsels hesitation’ is not the fact

that Congress has chosen to afford some manner of

relief in the particular case, but the fact that congressio-

nally uninvited intrusion into military affairs by the

judiciary is inappropriate.” Slip op. at 11-12, quoting 483

U.S. at 683. That sentence cannot reasonably be read to

have extended a blanket exemption to all U.S. military

personnel for Bivens liability to civilians. That was not

the issue before the Court, and the Court would not

have casually embraced such a sweeping rule in dicta.

Even if it had, surely someone would have noticed. Until

the majority’s decision here, though, no other circuit

court has read Chappell and Stanley to produce this extra-

ordinary result.4

4

Even the Fourth Circuit’s opinion in Lebron did not go as far

as the majority. Lebron rejected Bivens claims by a U.S. citizen

(continued...)

Nos. 10-1687 & 10-2442 49

We should focus instead on the Supreme Court’s

more relevant decisions in Mitchell v. Forsyth, 472 U.S.

551, and Scheuer v. Rhodes, 416 U.S. 232 (1974). In

Mitchell, the Court held that former Attorney General

Mitchell was not entitled to absolute immunity from

Bivens liability for ordering unconstitutional surveillance

of the plaintiff even though Mr. Mitchell argued he

acted for reasons of national security. 472 U.S. at 520-24.

The Court observed that the national security context

counseled in favor of permitting the suit. Because

national security tasks are carried out in secret, “it is far

more likely that actual abuses will go uncovered than

that fancied abuses will give rise to unfounded and

burdensome litigation,” id. at 522, and the “danger

that high federal officials will disregard constitutional

4

(...continued)

held in military custody after the President himself had desig-

nated the plaintiff an enemy combatant. First, the Lebron court

emphasized the enemy combatant designation. 670 F.3d at

549. Second, the plaintiff had dropped claims against the lower-

level personnel with hands-on responsibility for his treat-

ment. He was pursuing only high-level policy claims that raised

“fundamental questions incident to the conduct of armed

conflict.” Id. at 550. The plaintiffs in this case, by contrast, were

employed by U.S. military contractors and were trying to

help the FBI investigate corruption in the U.S. mission to

Iraq. They assert claims that are perfectly consistent with

U.S. law and stated military policy on interrogation tech-

niques and treatment of prisoners. Plaintiffs contend here

that the defendants violated military policy and U.S. statutes,

as well as the Constitution.

50 Nos. 10-1687 & 10-2442

rights in their zeal to protect the national security is

sufficiently real to counsel against affording such

officials an absolute immunity,” id. at 523.

The Mitchell Court anticipated and firmly rejected the

majority’s arguments for absolute immunity based on

concerns about the chilling effect that the prospect of

personal liability might have for even senior govern-

ment officials. The Court held instead that qualified

immunity would strike the correct balance between

deterring clear violations of constitutional rights and

giving government officials room for discretionary judg-

ment and reasonable mistakes:

“Where an official could be expected to know that his

conduct would violate statutory or constitutional

rights, he should be made to hesitate . . . .” [Harlow v.

Fitzgerald, 457 U.S. 800, 819 (1982) (emphasis added).]

This is as true in matters of national security as in

other fields of government action. We do not believe

that the security of the Republic will be threatened

if its Attorney General is given incentives to abide

by clearly established law.

472 U.S. at 524. That reasoning applies directly to this

case and to the Secretary of Defense and other military

personnel in the operation of military prisons.

Scheuer v. Rhodes arose from the fatal shots that

National Guardsmen fired at protesting students at

Kent State University in 1970. The plaintiffs alleged

constitutional violations in a suit under 42 U.S.C. § 1983

against the state’s governor and several officers in the

National Guard. The defendants argued they were

Nos. 10-1687 & 10-2442 51

entitled to absolute immunity when using military force

to restore public order. The Supreme Court unanimously

rejected that defense and held that the defendants

were entitled to only qualified immunity for these claims

by civilians. 416 U.S. at 248-49. Because the defendants

were state officials, the suit was under section 1983

rather than Bivens, but for present purposes the key

point is that the use of military force against civilians

was subject to only qualified immunity, not the absolute

immunity that the majority in this case grants to

military personnel.5

C. Legislation and “Special Factors”

In addition to reading Chappell and Stanley too broadly,

the heart of the majority opinion converts the second

step of Bivens analysis — looking at “special factors” that

5

The majority’s discussion of Chappell and Wallace begins

with what in football would be called a head-fake, suggesting

mistakenly that because plaintiffs Vance and Ertel were

civilians working for a military contractor, they might be

deemed soldiers for purposes of Bivens, Chappell, and Stanley.

Slip op. at 10-11. Under the statutes cited by the majority,

plaintiffs could have been subject to civilian U.S. criminal law if

they had been suspected of committing a crime in Iraq. See

18 U.S.C. §§ 3261, 3267(1)(A)(iii). Section 3261 does not treat

them as soldiers or make them subject to military discipline or

the Uniform Code of Military Justice. Also, of course, no one

relied on section 3261 to detain plaintiffs, let alone to justify

torturing them.

52 Nos. 10-1687 & 10-2442

might counsel hesitation before authorizing the

claim — into a search for evidence that Congress has

expressly authorized Bivens actions against U.S. military

personnel. This method of analysis fails to follow the

Supreme Court’s instructions for considering new ques-

tions about the scope of the Bivens remedy. The first

step is to consider “whether any alternative, existing

process for protecting the interest amounts to a con-

vincing reason for the Judicial Branch to refrain from

providing a new and freestanding remedy in damages.”

Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The short

answer is no. The defendants do not suggest that there

is any alternative remedial scheme at all comparable to

a potential Bivens remedy in the way that Social Security

procedures and remedies in Schweiker or the federal

civil service procedures and remedies in Bush provided

substitute remedies that foreclosed Bivens remedies.

See Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v.

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

Because there is no sufficient alternative, we should

proceed to the second step of the Bivens test as described

in Bush v. Lucas: “the federal courts must make the kind

of remedial determination that is appropriate for a

common-law tribunal, paying particular heed, however,

to any special factors counselling hesitation before autho-

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

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

The focus before the panel was on torture claims arising

from military custody in the controlled, non-combat

environment of military prisons in an overseas war

Nos. 10-1687 & 10-2442 53

zone. That context requires careful balancing under the

second step of the Bivens analysis, and the panel opinion

discussed the relevant considerations for rejecting

the defense arguments based on the narrower rationale

they offered. See Vance, 653 F.3d at 617-26. Because the

en banc majority’s approach sweeps so much more

broadly than the defendants’ own arguments, I will not

repeat the panel’s discussion here. The majority reviews

a wide range of statutes and finds in them con-

gressional disfavor for Bivens actions against military

personnel generally, based on an inference that

Congress would prefer to have compensation for

wrongs done by the military come from the Treasury

rather than the judgments against individual personnel.

When we look closely at the statutes, however, it

should become clear that Congress has legislated on the

assumption that U.S. nationals, at least, should have

Bivens remedies against U.S. military personnel in

most situations.

First, let’s look at legislation on the subject of torture.

Torture is a crime under international and U.S. law. U.S.

law provides expressly for civil remedies for victims

of torture by government officials of other nations in

the Torture Victim Protection Act of 1991, Pub. L. 102-

256, codified as note to the Alien Tort Statute, 28 U.S.C.

§ 1350. Section 2(a) of that Act provides a cause of

action for damages against a person who, “under actual

or apparent authority, or color of law, of any foreign

nation,” subjects another person to torture or extra-

judicial killing. Section 2(b) requires U.S. courts to

decline to hear such claims “if the claimant has not ex-

54 Nos. 10-1687 & 10-2442

hausted adequate and available remedies in the place”

where the conduct occurred. Under the Act, if an alien

has been tortured by her own government, and if that

foreign government provides no adequate and available

civil remedies, then a U.S. court can hear the case

against a defendant found here.

Under the majority holding here, however, the same

U.S. courts are closed to U.S. citizens who are victims

of torture by U.S. military personnel. The majority thus

errs by attributing to Congress an intention to deny

U.S. civilians a right that Congress has expressly ex-

tended to the rest of the world. A victim of torture by

the Syrian military, for example, can sue in a U.S. court,

but a U.S. citizen tortured by the U.S. military cannot.

That conclusion should be deeply troubling, to put it

mildly. We should not attribute that improbable view

to Congress without a far more compelling basis

than the majority offers.

To illustrate this anomaly further, suppose another

country has enacted its own law identical to the U.S.

Torture Victim Protection Act. Under the majority’s

reasoning, there are no “adequate and available

remedies in the place” where the conduct occurred (a

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

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

served with process), plaintiffs Vance and Ertel could sue

him in that country under its TVPA because U.S. law

would provide no remedy. Surely the Congress that

enacted the Torture Victim Protection Act would

rather have such claims against U.S. officials heard in

U.S. courts.

Nos. 10-1687 & 10-2442 55

In fact, the U.S. government has relied on the

availability of Bivens claims in cases of government

torture to help show that the U.S. is complying with

our obligations under the United Nations Convention

Against Torture. A United Nations committee over-

seeing compliance questioned the fact that the United

States had enacted virtually no new legislation to imple-

ment the Convention Against Torture. The State Depart-

ment assured the United Nations that the Bivens remedy

is available to victims of torture by U.S. officials. The

State Department made no exception for military person-

nel, who were the principal focus of the U.N. inquiry.

See United States Written Response to Questions

Asked by the United Nations Committee Against Torture,

¶ 5 (Apr. 28, 2006) (Question 5), available at http://

www.state.gov/g/drl/rls/68554.htm (last accessed Oct. 25,

2012); see also Arar v. Ashcroft, 585 F.3d 559, 619 (2d Cir.

2009) (en banc) (Parker, J., dissenting) (pointing out

this reliance on Bivens).

In addition to the Torture Victim Protection Act, Con-

gress acted in the Detainee Treatment Act of 2005

to grant only limited (good faith) immunity to U.S. per-

sonnel, including military personnel, in lawsuits by

alien detainees. For those alien plaintiffs, Congress

opted to regulate — not prohibit — civil damages

claims against military officials accused of torturing

aliens suspected of terrorism. Congress created a good-

faith defense in civil and criminal cases for officials

who believed that their actions were legal and

authorized by the U.S. government:

56 Nos. 10-1687 & 10-2442

In any civil action or criminal prosecution

against an officer, employee, member of the

Armed Forces, or other agent of the United States

Government [for engaging in practices in-

volving detention and interrogation of alien de-

tainees suspected of terrorism] it shall be a

defense that such officer, employee, member of

the Armed Forces, or other agent did not know

that the practices were unlawful and a person of

ordinary sense and understanding would not

know the practices were unlawful . . . . Nothing

in this section shall be construed to limit or ex-

tinguish any defense or protection otherwise

available to any person or entity from suit, civil

or criminal liability, or damages, or to provide

immunity from prosecution for any criminal

offense by the proper authorities.

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

against civil claims by alien detainees suspected of terror-

ism is a strong indication that Congress has not closed

the door on judicial remedies that are “otherwise avail-

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

to wrestle with just what those remedies might be.6

6

The majority cites the Military Commissions Act of 2006, Pub.

L. No. 109-366, § 7(a), codified as 28 U.S.C. § 2241(e), 120 Stat.

2600, 2635-36 (2006), enacted after Vance and Ertel were in

custody. In that Act, Congress prohibited federal courts from

exercising jurisdiction over a civil claim by an alien “properly

detained as an enemy combatant.” That narrow prohibition

(continued...)

Nos. 10-1687 & 10-2442 57

Congress took the trouble to grant limited immunity

in civil actions brought by aliens. Just what potential civil

liability did Congress have in mind? Bivens suits are

the most obvious candidate.

To avoid this reasoning, the majority misses the mark

by suggesting that Congress might have been worried

about suits brought by aliens under the Torture Victim

Protection Act, the law of the nation where the torture

occurred, or the Alien Tort Statute. Slip op. at 16-17.

First, the Torture Victim Protection Act applies only to

torture carried out “under actual or apparent authority,

or color of law, of any foreign nation.” The Act does not

apply at all to torture under color of U.S. law. Second, if

an alien were to sue under the law of the nation where

the torture took place, it is not likely that the other

nation’s law would take into account a defense created

by U.S. law. As for the Alien Tort Statute, such a claim

by an alien against a U.S. official would be a fairly

exotic creature, especially as compared to the familiar

Bivens doctrine.

Young doctors are taught, “When you hear hoofbeats,

think horses, not zebras.” The point is that when trying

to explain an unknown phenomenon, it’s usually

sensible to look first to the familiar and only later to the

exotic. That reasoning applies here. When Congress

6

(...continued)

clearly does not apply to Vance or Ertel, and the very narrow-

ness of it indicates that Congress has not acted to bar actions

like this one, by U.S. citizens who were not enemy combatants.

58 Nos. 10-1687 & 10-2442

created the limited good-faith immunity from civil claims

by aliens in the Detainee Treatment Act, Bivens had been

a major part of U.S. law for 40 years. If Congress had

wanted to grant absolute immunity against claims by

aliens, it would have been easy to draft different lan-

guage. Congress chose instead to grant qualified im-

munity in suits by alien detainees, a policy decision

that was consistent with the Supreme Court’s reasoning

in Mitchell v. Forsyth, 472 U.S. at 523-24.

The majority reasons that the DTA’s grant of qualified

immunity in suits brought by aliens does not imply that

similar remedies would be available to U.S. citizens. By

that route, the majority reaches another odd result.

Under the majority’s reasoning, aliens tortured by the

U.S. military in violation of international law have more

rights than U.S. citizens: Aliens could sue U.S. military

officers for torture (under Bivens, or the Alien Tort

Statute, or both). They would still need to overcome the

DTA’s qualified immunity, but under the majority’s

reading, U.S. citizens cannot bring such a suit at all. That

reading of congressional intent is highly improbable.

Reading the DTA, it is more reasonable to attribute to

Congress the assumption that courts would allow U.S.

citizens to pursue relief under Bivens, subject to the

familiar qualified immunity defense.

Looking to other legislation, the majority criticizes

plaintiffs for not having sought relief under the Military

Claims Act, 10 U.S.C. § 2733, or the Foreign Claims Act,

10 U.S.C. § 2734, though the majority wisely concedes

at least for the sake of argument that these statutes are

Nos. 10-1687 & 10-2442 59

not full substitutes for a Bivens remedy. Slip op. at 15. This

criticism is misguided, as implied by the fact that even

the defendants did not rely on these statutes at all

before the en banc phase of the case. At the most basic

level, those laws simply do not apply to claims for con-

stitutional violations. 32 C.F.R. § 536.42. Nor do they

apply to intentional torts, including assault, battery,

and false imprisonment. 32 C.F.R. § 536.45(h). Plaintiffs

would have been wasting everyone’s time by asserting

claims under either Act.7

D. The Role of Citizenship in Constitutional Remedies

The panel relied on plaintiffs’ status as U.S. citizens to

distinguish Arar v. Ashcroft, 585 F.3d 559, and Ali v.

Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011), where plaintiffs

asserting torture claims under Bivens were aliens. The

panel issued its decision before Lebron, 670 F.3d 540,

and Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012), went

further and dismissed similar Bivens claims by U.S. citi-

zens. The majority describes the panel’s distinction be-

7

Sections 536.42 and 536.45(h) apply to claims under both the

MCA and the FCA. Even if those laws could apply to these

plaintiffs’ allegations, relief under the MCA and FCA is unlike

the remedies in Schweiker and Bush because it is left to the

discretion of the Secretary of the Army or Defense and there is

no right to judicial review. Also, plaintiffs Vance and Ertel

probably would not have qualified as “inhabitants” of a foreign

country as required for the limited and discretionary relief

under the FCA. See 10 U.S.C. § 2734(a).

60 Nos. 10-1687 & 10-2442

tween citizens and aliens as “offensive to our allies” and

“offensive to our own principles of equal treatment.” Slip

op. at 18. The prohibitions against torture are matters of

international law as well as U.S. law, and those prohibi-

tions reflect basic and universal human rights. That does

not mean, however, that citizenship is irrelevant in decid-

ing about remedies for torture. If the U.S. government

harms citizens of other nations, they can turn to their

home governments to stand up for their rights. That is

not true for these U.S. citizens alleging torture by their

own government. No other government can stand up

for them.

Other federal courts have faced difficult issues

when alien enemy combatants have sought protection

in civilian U.S. courts. U.S. courts have been reluctant

to extend constitutional protections to such parties or

to examine too closely the actions of our military in

armed conflicts. We do not need to decide those

difficult issues in this case, which was brought not by

members of al Qaeda or designated enemy combatants,

but by U.S. citizens working for military contractors

and trying to help the FBI uncover corrupt dealings

that were endangering U.S. troops. The enemy com-

batant cases are difficult, but we should not let those

difficulties lead us to turn our backs on legitimate con-

stitutional claims of U.S. citizens.

The Supreme Court has relied on the difference be-

tween citizens and aliens in deciding whether to allow

access to civilian U.S. courts in similar contexts. We

should decide this case in favor of allowing these U.S.

citizens to proceed, even if we might be reluctant to

Nos. 10-1687 & 10-2442 61

extend such rights to enemy combatants or other alien

detainees in Iraq or other war zones.

When considering actions our government takes over-

seas, there is room to distinguish between the govern-

ment’s duties to its own citizens and duties it may have

to other persons. As the Supreme Court concluded in

Reid: “When the Government reaches out to punish a

citizen who is abroad, the shield which the Bill of

Rights and other parts of the Constitution provide to

protect his life and liberty should not be stripped away

just because he happens to be in another land.” 354 U.S.

at 6 (plurality opinion of Black, J.); see also Kar v.

Rumsfeld, 580 F. Supp. 2d 80, 83 (D.D.C. 2008) (finding

that the “Fourth and Fifth Amendments certainly

protect U.S. citizens detained in the course of hostilities

in Iraq”), citing Reid and United States v. Toscanino,

500 F.2d 267, 280 (2d Cir. 1974) (“That the Bill of

Rights has extraterritorial application to the conduct of

federal agents directed at United States citizens is

well settled.”).

In fact, the Supreme Court has distinguished between

citizens and aliens in deciding whether remedies were

available in civilian courts for U.S. military detention

overseas. In Johnson v. Eisentrager, 339 U.S. 763, 785

(1950), the Supreme Court held that enemy aliens (Ger-

mans working in Asia to aid Japan after the German

surrender in 1945) were not entitled to seek writs of

habeas corpus in civilian U.S. courts. Eisentrager re-

peatedly made clear that its holding was limited to

aliens during wartime and did not apply to U.S. citizens.

62 Nos. 10-1687 & 10-2442

For example: “our law does not abolish inherent dis-

tinctions recognized throughout the civilized world

between citizens and aliens . . . .” Id. at 769. “With

the citizen we are now little concerned, except to set

his case apart as untouched by this decision and to

take measure of the difference between his status and

that of all categories of aliens. Citizenship as a head of

jurisdiction and a ground of protection was old when

Paul invoked it in his appeal to Caesar. The years have

not destroyed nor diminished the importance of citizen-

ship nor have they sapped the vitality of a citizen’s

claims upon his government for protection.” Id.8

More recently, the Supreme Court relied on this dis-

tinction between aliens and citizens in Munaf v. Green,

553 U.S. 674, 685-88 (2008), holding unanimously that

U.S. citizens in U.S. military custody in Iraq were

entitled to seek habeas corpus relief in U.S. civilian

8

Justice Jackson’s reference in Eisentrager to the Apostle Paul

fits surprisingly well with today’s case. See Acts 25:11 (Paul

invokes Roman citizen’s right to appeal to emperor); Acts 22:25-

29 (Paul invokes his Roman citizenship as defense against

being flogged before he was convicted of any crime); Acts 16:35-

39 (upon being told he was free to leave prison, “Paul replied,

‘They have beaten us in public, uncondemned, men who are

Roman citizens, and have thrown us into prison; and now are

they going to discharge us in secret? Certainly not! Let them

come and take us out themselves.’ The police reported

these words to the magistrates, and they were afraid when

they heard that they were Roman citizens; so they came and

apologized to them.”).

Nos. 10-1687 & 10-2442 63

courts. Munaf distinguished Hirota v. MacArthur,

338 U.S. 197 (1948), which held that aliens in

military custody overseas could not seek habeas relief

in civilian courts. To support its use of the difference

between citizens and aliens, the Munaf Court cited

Eisentrager, Rasul v. Bush, 542 U.S. 466, 486 (2004)

(Kennedy, J., concurring in judgment), and the D.C. Cir-

cuit’s opinions in Munaf itself. 553 U.S. at 688. (In fact,

the government did not even try to argue in Munaf

that U.S. citizens in military custody in Iraq could not

have access to civilian U.S. courts. The government

instead argued unsuccessfully that the petitioners

were in international custody rather than U.S. custody.

Id. at 687-88.)

Distinguishing between citizens and aliens is not

beyond controversy, but in these sensitive contexts in-

volving overseas activity, it is sometimes decisive. In

this case brought by U.S. citizens, we do not need to

decide the different issues posed by plaintiffs who

are alien enemy combatants. But if we follow the

majority’s route of equal treatment, notwithstanding

Munaf, Eisentrager, and Rasul, we should not treat these

U.S. citizens as if they were known terrorists and enemy

combatants who are subject to torture, “extraordinary

rendition,” and indefinite detention. Our law’s treatment

of U.S. citizens should not be brought down to the

floor that we are now tolerating for the most dangerous

foreign terrorists.

64 Nos. 10-1687 & 10-2442

II. Personal Responsibility

As explained above, the majority opinion erroneously

grants absolute immunity to U.S. military personnel

from civilians’ Bivens suits, not only for former

Secretary Rumsfeld and other senior officials but also

for lower-ranking personnel, including even those who

were literally hands-on in torturing the plaintiffs. Under

that reasoning, the majority need not reach the issue

of personal responsibility for any defendant. Also, since

the panel decision, plaintiffs have been able to learn

the identities of the personnel directly responsible for

torturing them. Because plaintiffs now have the infor-

mation they would need to amend their complaint to

add those individuals as defendants, the issue of former

Secretary Rumsfeld’s personal responsibility has less

practical significance now than it did in the district

court or before our court’s panel. Nevertheless, because

the majority also reaches the issue, and because the ques-

tion must be addressed to affirm the district court’s

denial of dismissal, it must be addressed here.

I agree with the majority’s general statements of the

law of personal responsibility under Bivens and 42 U.S.C.

§ 1983. Responsibility is personal, not vicarious. Where

we differ is in the application of those general principles

to plaintiffs’ second amended complaint. The majority

offers the following examples:

The Director of the FBI allows field agents to

carry guns and permits them to use deadly force.

Yet if an agent shoots a fleeing suspect in the

back, violating the fourth amendment, see Tennes-

Nos. 10-1687 & 10-2442 65

see v. Garner, 471 U.S. 1 (1985), the Director is

not liable just because the gun, issued under the

Director’s policy, was a cause of the injury. Simi-

larly for a police chief who establishes a K-9

squad, if a dog bites a bystander, or who autho-

rizes search or arrest based on probable cause, if

the police then search or arrest without probable

cause.

Slip op. at 20-21. The majority is correct about those

examples, but they miss the target of plaintiffs’ actual

allegations. To sharpen the issue, suppose instead that a

local police chief or even the FBI director issued a

policy that authorized the use of deadly force against

any fleeing suspect. The policy itself would be uncon-

stitutional under Tennessee v. Garner. The chief or director

who authorized that unconstitutional use of force

could certainly be held personally responsible under

section 1983 or Bivens to a person shot by an officer fol-

lowing the policy.

The allegations in this complaint are closer to

the latter example than to the majority’s examples. The

plaintiffs may or may not be able to prove their allega-

tions — it now is unlikely they will ever have the chance

to try — but they allege that the use of harsh interroga-

tion techniques amounting to torture was the subject

of Mr. Rumsfeld’s personal attention. Cmplt. ¶¶ 217, 244,

252. They allege that he issued policies or orders con-

trary to governing U.S. law but authorizing the torture

they suffered. ¶ 244. That should be enough to with-

stand a motion to dismiss under Rule 12(b)(6).

66 Nos. 10-1687 & 10-2442

In Ashcroft v. Iqbal itself, the Attorney General and the

Director of the FBI conceded that they would have

been subject to personal liability for actions of their sub-

ordinates if they “had actual knowledge of the assertedly

discriminatory nature of the classification of suspects

being of ‘high interest’ and that they were deliberately

indifferent to that discrimination.” 556 U.S. 662, 690-91

(2009) (Souter, J., dissenting). We and other circuits have

taken that approach as well. See T.E. v. Grindle, 599 F.3d

583, 590 (7th Cir. 2010) (affirming denial of summary

judgment for school principal who failed to investigate or

take action in response to complaints indicating teacher

was sexually abusing students); accord, McCreary v. Parker,

456 Fed. Appx. 790, 793 (11th Cir. 2012) (affirming

denial of qualified immunity where plaintiff alleged

sheriff was deliberately indifferent to known dangers

resulting from overcrowding policy in jail); Wagner v.

Jones, 664 F.3d 259, 275 (8th Cir. 2011) (reversing

summary judgment grant of qualified immunity for

defendant law school dean where evidence indicated

that dean was on notice that faculty’s negative hiring

recommendation was based on plaintiff’s political

beliefs and associations); Starr v. Baca, 652 F.3d 1202, 1216

(9th Cir. 2011) (reversing dismissal; superior’s knowledge

of abuse of prisoners combined with inaction allowed

inference of deliberate indifference at the pleading

stage); Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010)

(affirming denial of summary judgment of a claim

against county sheriff for adopting policy that would

violate detainees’ rights). Iqbal’s different approach to

pleading an individual’s discriminatory intent does not

Nos. 10-1687 & 10-2442 67

address the issue of personal responsibility for an uncon-

stitutional practice or policy asserted here. See Vance,

653 F.3d at 599 n.5.

The case is before us on an interlocutory appeal from

the denial of a motion to dismiss under Rule 12(b)(6).

The allegations against Mr. Rumsfeld satisfy the plausi-

bility standard of Iqbal, Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007), and Erickson v. Pardus, 551 U.S. 89

(2007). And even if they did not, the plaintiffs should be

allowed to amend their pleadings, especially in view of

the uncertainty of federal pleading standards after Iqbal

and the fact that the district court and panel found

their present pleadings sufficient to state plausible

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

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

Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007). Consider

two possible amendments, for example. After years

of delay, the government finally complied with the

district court’s order to identify the individuals who

slammed plaintiffs into walls, deprived them of sleep,

food, water, and adequate clothing, and who subjected

them to extreme cold, though after plaintiffs have been

seeking the needed information in the district court for

nearly six years, the government still has not pro-

vided sufficient information to serve any of those indi-

viduals with process. If this stone-walling finally ended,

plaintiffs could amend their complaint to name at least

some of those individuals. (Whether plaintiffs could

invoke equitable tolling or other doctrines to overcome

a statute of limitations defense based on a concerted

effort to conceal identities of their torturers is a different

68 Nos. 10-1687 & 10-2442

question, especially in light of plaintiffs’ diligence over

nearly six years, and one we should not try to decide

now.) Or suppose for purposes of argument that

plaintiffs could even produce an order personally signed

by Mr. Rumsfeld ordering that these two plaintiffs, in

particular, be treated as they allege they were treated.

Either amendment should be enough to allow plaintiffs

to proceed, but under the majority’s erroneous view of

military immunity from Bivens liability, both amend-

ments would be futile.

III. Qualified Immunity

In Mitchell v. Forsyth, the Supreme Court rejected abso-

lute immunity for a former cabinet member who said

he had acted to protect national security. Qualified im-

munity was sufficient: “ ‘Where an official could be ex-

pected to know that his conduct would violate statu-

tory or constitutional rights, he should be made to

hesitate . . . .’ ” 472 U.S. at 524, quoting Harlow v. Fitzgerald,

457 U.S. at 819 (emphasis added in Mitchell). The panel

concluded that plaintiffs had alleged violations of clearly

established constitutional law. Even the defendants do not

seriously argue that prolonged deprivation of sleep,

food, water, and adequate clothing, exposure to extreme

cold, and hooded “walling” do not violate clearly estab-

lished constitutional law. See Vance, 653 F.3d at 606-11. On

rehearing, defendants have not disagreed with that

analysis. (The argument they have labeled “qualified

immunity” addresses only whether plaintiffs sufficiently

alleged Mr. Rumsfeld’s personal responsibility.) The

Nos. 10-1687 & 10-2442 69

majority also does not question the substantive constitu-

tional law or qualified immunity, so there is no need

for further discussion of those points.

Conclusion

Our courts have a long history of providing damages

remedies for those whose rights are violated by our

government, including our military. In Little v. Barreme,

6 U.S. (2 Cranch) 170, 178-79 (1804), the Supreme Court

held that the commander of a warship was liable to the

owner of a neutral vessel seized pursuant to orders

from the President but in violation of a statute. See also

Iqbal, 556 U.S. at 676, citing Dunlop v. Munroe, 11 U.S. (7

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

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

neglect in not properly superintending the discharge”

of his subordinates’ duties); Bivens, 403 U.S. at 395-97

(collecting cases showing that damages against govern-

ment officials are historically the remedy for invasion

of personal interests in liberty, and quoting Marbury v.

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

of civil liberty certainly consists in the right of every

individual to claim the protection of the laws, whenever

he receives an injury.”).

The majority’s grant of absolute civil immunity to

the U.S. military for violations of civilian citizens’ constitu-

tional rights departs from that long heritage. We leave

citizens legally defenseless to serious abuse or worse

by their own government. I recognize that wrongdoers

in the military are still subject to criminal prosecution

70 Nos. 10-1687 & 10-2442

within the military itself. Relying solely on the military

to police its own treatment of civilians fails to use the gov-

ernment’s checks and balances that preserve Ameri-

cans’ liberty. The legal foundations for the claims before

us are strong and in keeping with the Supreme Court’s

decisions and the best traditions of American liberty

and governance. We should affirm the district court’s

decision to allow plaintiffs to try to prove their claims

for torture.

ROVNER, Circuit Judge, joined by WILLIAMS and HAMILTON,

Circuit Judges, dissenting. I join Judge Hamilton’s

dissent and Judge Wood’s concurrence in all but Part III.

Judge Wood in her concurrence has rightfully reminded

us that our legal analysis should not rest on “fear that

Bivens liability would cause Cabinet Secretaries to carry

out their responsibilities with one eye on their wallets,

rather than for the greater good of their department

and the country.” Ante at 35. I agree with Judge Wood

that such fear is disrespectful of those who serve in gov-

ernment and dismissive of the protections that such

liability affords against serious and intentional violations

of the Constitution. For this same reason, we cannot allow

fear to cause us to stray from the established federal

Nos. 10-1687 & 10-2442 71

pleading standards governing resolution of a motion to

dismiss. This case lends credence to the cliched adage

that hard facts make bad law.

To survive a motion to dismiss, a complaint need not

do more than enunciate a plausible claim for relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 556 (2007). The plausibility

standard is not akin to a “probability requirement.”

Twombly, 550 U.S. at 556. It does not imply that the

district court should decide whether the claim is

true, which version of the facts to believe, or whether

the allegations are persuasive. See Iqbal, 556 U.S. at 679;

Richards v. Mitcheff, No. 11-3227, 2012 WL 3217627, at *1,*2

(7th Cir. Aug. 9, 2012); Morrison v. YTB Int’l, Inc., 649

F.3d 533, 538 (7th Cir. 2011); Swanson v. Citibank, N.A.,

614 F.3d 400, 404 (7th Cir. 2010). Provided the complaint

invokes a recognized legal theory (and for the reasons

expounded upon by Judge Wood and Judge Hamilton,

it does), and contains plausible allegations on the

material issues, it cannot be dismissed under Rule 12.

Richards, 2012 WL 3217627, at *2.

Vance and Ertel have alleged Secretary Rumsfeld’s

direct participation in their torture. Vance contends,

for example, that Secretary Rumsfeld authorized the

interrogation tactics utilized on the plaintiffs and that

some of these techniques required Secretary Rumsfeld’s

personal approval on a case-by-case basis thus inferring

that Secretary Rumsfeld must have authorized the tor-

turous interrogation himself. (R.116, p.44, ¶ 217). These

claims may not be true, and if they are, the plain-

72 Nos. 10-1687 & 10-2442

tiffs may have little chance of providing sufficient

evidence to convince a trier-of-fact, but they are never-

theless plausible and contain more than bare legal con-

clusions. Twombly and Iqbal require no more.

I fear future appeals of dismissals will be muddied

by the court’s attempt to refract the Rule 12(b)(6)

standard to protect a high level governmental official

engaged in a war to protect the citizens and ideals of

this country. But even in the most difficult of cases, we

must adhere to the federal pleading requirements

dictated by Federal Rule of Civil Procedure 12(b)(6) and

the precedent of the United States Supreme Court.

WILLIAMS, Circuit Judge, joined by ROVNER and HAMILTON,

Circuit Judges, dissenting. I join Judge Hamilton’s and

Judge Rovner’s dissenting opinions in full, as well as

Judge Wood’s concurrence in all but Part III. I write

separately to voice my own concerns with the majority

decision.

Applying Bivens to (even arguably) novel factual

scenarios has always required a delicate balance of com-

peting considerations. But in the effort to wall off high

officials’ bank accounts, the majority appears to have

erected a sweeping, unprecedented exemption from

Nos. 10-1687 & 10-2442 73

Bivens for military officers. No case from our highest

court or our sister circuits has approached such a

sweeping conclusion. The vagueness of the majority’s

analysis makes the actual scope of the exemption

unclear. Does the new immunity apply only to the

highest officials in the chain of command? To suits

brought by security contractors in a conflict zone? As

for the doctrine of Bivens itself, the majority’s reserva-

tions about this constitutional bulwark are transparent.

That should not matter. “The Supreme Court alone

is entitled to declare one of its decisions defunct . . .

[e]ven if later decisions wash away the earlier one’s

foundation . . . .” United States v. Booker, 375 F.3d 508, 516

(7th Cir. 2004) (Easterbrook, J., dissenting) (citing State

Oil Co. v. Khan, 522 U.S. 3, 20 (1997) and Rodriguez de

Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484

(1989)). Whatever the status of Bivens, this decision

sweeps too broadly and vaguely, and so I must dissent.

I.

The majority states that “[w]hat plaintiffs want is an

award of damages premised on a view that the military

command structure should be different—that, for

example, the Secretary of Defense must do more (or

do something different) to control misconduct by inter-

rogators and other personnel on the scene in foreign

nations.” Slip op. at 12. The characterization mis-

represents the nature of this suit. The plaintiffs are not

asking the courts to give Rumsfeld a poor performance

evaluation as Secretary of Defense. They are suing him

74 Nos. 10-1687 & 10-2442

for personally and intentionally violating their funda-

mental rights as American citizens. Nor does the

complaint seek to alter the “military command structure.”

No count requests an injunction or declaratory judg-

ment regarding military discipline, the chain of com-

mand, or the policies employed by Rumsfeld or his sub-

ordinates. Cf. Lebron v. Rumsfeld, 670 F.3d 540, 546 (4th

Cir. 2012) (plaintiff principally sought to enjoin his desig-

nation as an enemy combatant, requesting nominal dam-

ages from defendants).

What plaintiffs assert is: (1) they were tortured in

violation of the Constitution and laws of the United States;

(2) Rumsfeld is personally liable because he authorized

their torture and made case-specific determinations

about who would receive “enhanced” treatment after it

was made clear that his detention policies were illegal;

and (3) plaintiffs should receive monetary damages for

the abuse they endured in military custody. Vance and

Ertel do not want to remake military policy through

the judiciary. Frankly, there is little need to do so

because Congress has already directly addressed and

outlawed the detention practices inflicted on these plain-

tiffs. Instead, the allegation before us is willful, directed

non-compliance with the law. The majority may believe

that Rumsfeld’s actions were merely negligent and

that may be true. But that is not the allegation.

Having misinterpreted the complaint, the majority

next misreads the Supreme Court’s opinions in Chappell v.

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

483 U.S. 669 (1987). It is suggested that in these decisions,

Nos. 10-1687 & 10-2442 75

“[t]he Supreme Court’s principal point was that civilian

courts should not interfere with the military chain of

command . . . [because] military efficiency depends on

a particular command structure, which civilian judges

easily could mess up without appreciating what they

were doing.” Slip op. at 11. Judge Hamilton comprehen-

sively explains why the majority has incorrectly applied

the precedent. I would only add that Stanley explicitly

addressed the scope of the decision, as well as the

potential “levels of generality at which one may apply

‘special factors’ analysis”:

Most narrowly, one might require reason to

believe that in the particular case the disciplinary

structure of the military would be affected—thus

not even excluding all officer-subordinate suits,

but allowing, for example, suits for officer con-

duct so egregious that no responsible officer

would feel exposed to suit in the performance

of his duties. Somewhat more broadly, one might

disallow Bivens actions whenever an officer-sub-

ordinate relationship underlies the suit. More

broadly still, one might disallow them in the

officer-subordinate situation and also beyond

that situation when it affirmatively appears

that military discipline would be affected. (This

seems to be the position urged by Stanley.)

Fourth, as we think appropriate, one might

disallow Bivens actions whenever the injury

arises out of activity “incident to service.” And

finally, one might conceivably disallow them by

servicemen entirely.

76 Nos. 10-1687 & 10-2442

483 U.S. at 681 (emphasis added). Here, Stanley describes

its principal point unambiguously: Members of the

military cannot invoke Bivens for injuries arising out of

“activity incident to service.” Indeed, the Court reserved

the possibility of Bivens suits by servicemen against

military officials in other contexts. Despite Stanley’s

clarity, the majority contends that the Supreme Court

actually meant to bar any suit, even by civilians, that

“interfere[s] with the military chain of command.”

I cannot tell what this purported standard means. But

it goes well beyond what the Supreme Court has

expressly identified as a bridge too far. Can there be

a clearer indication of error?

At heart, in Chappell and Stanley, the Supreme Court

did not want to permit service members to litigate what

are effectively employment disputes against superiors

through the federal courts rather than through the mili-

tary’s internal channels. See Chappell, 462 U.S. at 303-05

(barring race discrimination claim). That rationale does

not apply here.1 Cf. id. at 300 (“Civilian courts must . . .

1

The majority entertains the idea that the plaintiffs, as security

contractors, might be considered equivalent to soldiers

anyway when evaluating the availability of a Bivens action. But

this is a distraction. The individuals in United States v. Brehm,

691 F.3d 547 (4th Cir. 2012) and United States v. Ali, 2012 CAAF

LEXIS 815 (C.A.A.F. July 18, 2012) were effectively employees

of the United States military, subcontracted through American

companies. Notably, this was the same scenario in Doe v.

Rumsfeld, 683 F.3d 390, 392 (D.C. Cir. 2012), where the court

(continued...)

Nos. 10-1687 & 10-2442 77

hesitate long before entertaining a suit which asks the

court to tamper with the established relationship between

enlisted military personnel and their superior officers; that

relationship is at the heart of the necessarily unique struc-

ture of the military establishment.” (emphasis added)).

This court’s decision leaves unexplained how or why

a suit by an American civilian, with no connection to

the chain of command, would interfere with military

discipline in the manner anticipated by Chappell and

Stanley.2

(...continued)

treated a defense contractor employee as equivalent to a

serviceman because he was working for the United States

military. This case is different. When Vance and Ertel were

detained and tortured, they worked for Shield Group Security,

an Iraqi corporation which provided security contracts to

the government of Iraq and private companies. The plaintiffs

do not appear to have had a connection to the United States

government beyond being American citizens. At very least, a

reading of the complaint in the light favorable to plaintiffs

cannot support an employment relationship with the United

States military. The majority further suggests that security

contractors are inherently similar to soldiers. Perhaps this is

true in the sense that a mall guard is like a homicide detective.

But Vance and Ertel’s job descriptions have no bearing on

the availability of Bivens in this case.

2

As Judge Hamilton notes, the majority altogether ignores the

Supreme Court’s contradictory analysis in Saucier v. Katz, 533

U.S. 194 (2001), which treated a civilian’s excessive force suit

against a military officer as permissible (though barred in

(continued...)

78 Nos. 10-1687 & 10-2442

Even if judicial participation might interfere in

some other way, there is a further irony underlying the

majority’s approach. The opinion recognizes that injunc-

tive relief against illegal military conduct is already

available under established doctrine. See slip op. at 17

(“Injunctions that enforce the Detainee Treatment Act

prospectively may be possible under the doctrine of

Ex parte Young, 209 U.S. 123 (1908), or the waiver of sover-

eign immunity in 5 U.S.C. §702.”). This point was

also raised at oral argument where the parties agreed

that the judiciary retains the power to enjoin an uncon-

stitutional practice or unlawful deprivation of rights.

Do such suits “interfere” with the military command

structure or the chain of command? They certainly

would seem to. So, to the extent that the majority fears

judicial scrutiny of military policy, that state of affairs

is already upon us and is sanctioned by this decision itself.

The Supreme Court requires us to exercise judicial

review in various circumstances impacting national

security. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 536

(2004) (“[A] state of war is not a blank check for the

President when it comes to the rights of the Nation’s

citizens. . . . Whatever power the United States Constitu-

tion envisions for the Executive in its exchanges

(...continued)

that case by qualified immunity). Saucier was decided well

after Stanley and Chappell. If the Supreme Court had been

concerned all along with the threat posed by civilian suits to

the chain of command, why didn’t it say so?

Nos. 10-1687 & 10-2442 79

with other nations or with enemy organizations in times

of conflict, it most assuredly envisions a role for all

three branches when individual liberties are at

stake.”); Mitchell v. Forsyth, 472 U.S. 511, 523 (1985)

(“[D]espite our recognition of the importance of [the

Attorney General’s activities in the name of national

security] to the safety of our Nation and its democratic

system of government, we cannot accept the notion that

restraints are completely unnecessary.”); Baker v. Carr,

369 U.S. 186, 211 (1962) (“[I]t is error to suppose

that every case or controversy which touches foreign

relations lies beyond judicial cognizance.”); Home Bldg.

& Loan Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934)

(“[E]ven the war power does not remove constitutional

limitations safeguarding essential liberties.”). Executive

power to protect national security or conduct foreign

affairs does not deprive the judiciary of its authority

to check abuses that violate individual rights. Judicial

review may be deferential to the interests of national

security, Winter v. Nat. Res. Def. Council, 555 U.S. 7,

24, 26 (2008), but it remains necessary. Habeas corpus

review certainly interferes with the military’s assess-

ment of national security priorities. No matter. Our

constitutional system requires the judiciary’s participa-

tion. Boumediene v. Bush, 553 U.S. 723, 765 (2008) (“[T]he

political branches [do not] have the power to switch

the Constitution on or off at will . . . .”).

I do not mean that actions for money damages

must be treated identically to actions for prospective

relief. The remedies are distinct. But this puts into

sharp perspective the majority’s implication that there is

80 Nos. 10-1687 & 10-2442

a categorical ban on “judicial intrusion into military

affairs.” The judiciary is already intertwined in the con-

stitutional review of military determinations. It is incon-

sistent to consider federal courts competent on the one

hand to balance policy concerns associated with injunc-

tive relief (as the majority must concede), while treating

these courts as unqualified to address actual injury to

citizens caused by official abuse. Traditionally, damages

actions have been viewed as less intrusive than in-

junctive relief because they do not require the court to

engage in operational decision-making. Compare Gilligan

v. Morgan, 413 U.S. 1, 11 (1973) (rejecting a suit seeking

judicial supervision of the operation and training of

the Ohio National Guard in the wake of the Kent State

shootings) with id. at 5 (suggesting that a damages

action against the National Guard could be justiciable)

and Scheuer v. Rhodes, 416 U.S. 232, 247-49 (1974) (permit-

ting such a suit). True, courts make mistakes, but this

has little to do with the propriety of Bivens. Every gov-

ernment institution errs, including the military. The

point of judicial participation is not infallibility but inde-

pendence and neutrality, something executive entities

do not have when evaluating their own officers’ conduct.

For these reasons, I cannot accept the majority’s

rationale for rejecting Bivens in this context. The majority

pins much of its reasoning on the Lebron decision but

does not mention any of the relevant details. The Lebron

suit was brought on behalf of Jose Padilla, an

individual designated as an enemy combatant by the

President and later convicted of criminal terrorism

charges. Padilla’s proposed Bivens action sought a

Nos. 10-1687 & 10-2442 81

judicial declaration that his designation as an enemy

combatant and resulting detention were unconstitutional.

The Lebron court rejected the claim on separation-of-

powers grounds reasoning that in identifying terrorists,

the President acted with express congressional ap-

proval under the Authorization for Use of Military Force,

Pub. L. No. 107-40, 115 Stat. 224 (2001).

Whatever the merits of Lebron, it is disingenuous

to suggest that the same analysis applies in this case.

The majority endeavors to stretch a blanket of immunity

over the entire “military chain of command” in an effort

to cover the very different facts presented here. Vance

and Ertel do not challenge their status and detention

as enemy combatants; they could not do so because

they never received such a designation. And far from

authorizing their treatment, Congress and the President

acted twice to outlaw it through the National Defense

Authorization Act and the Detainee Treatment Act

(“DTA”). 10 U.S.C. §801 note. The complaint charges

the defendant with intentionally acting in derogation

of the newly enacted laws to retain and administer

illegal interrogation practices, approving them on an

individualized basis. These allegations may not be

true. But if they are true, I cannot agree that the separa-

tion of powers bars a citizen’s recovery from a rogue

officer affirmatively acting to subvert the law. That is a

quintessential scenario where Bivens should function

to enforce individual rights.

Every member of this court recognizes that the job of

the military is challenging, dangerous, and critical to

82 Nos. 10-1687 & 10-2442

our national security. For these reasons and more, mem-

bers of the armed forces enjoy unparalleled respect in

our society. But this respect does not put the military’s

highest officers beyond the reach of the Constitution

or adjudication by Article III courts. We would abdicate

our duty if we permit Bivens to become a mirage. If it is

an illusion, it is a dangerous one because it has tricked

not only plaintiffs, but the other branches of our gov-

ernment into relying upon it. Congress created in the

DTA a limited, good-faith defense against Bivens meant

to be available in situations precisely like this one. And

the State Department pointed to Bivens suits as evidence

that we take seriously our commitments to preventing

torture. The majority suggests that the other branches

of government were only leaping at shadows. But we

have an independent obligation to individual citizens

and to the Constitution to apply the precedent even

in difficult cases. Otherwise we risk creating a doctrine

of constitutional triviality where private actions are

permitted only if they cannot possibly offend anyone

anywhere. That approach undermines our essential

constitutional protections in the circumstances when

they are often most necessary. It is no basis for a rule

of law.

II.

Whether the plaintiffs have adequately pled Rumsfeld’s

personal liability for violations of clearly established

law is also a delicate question. Arguably qualified im-

munity should shoulder more of the burden of the major-

Nos. 10-1687 & 10-2442 83

ity’s demonstrable hesitation to hold high government

officials accountable for constitutional violations. Cf.

Padilla v. Yoo, 678 F.3d 748, 768 (9th Cir. 2012) (disposing

of suit on qualified immunity grounds rather than af-

fording total immunity to Bivens). Nevertheless, I agree

with my dissenting colleagues that the plaintiffs’

complaint should survive. This complaint is unusually

detailed and alleges Rumsfeld’s personal participation

in interrogation determinations, something the majority

ignores. It is plausible (if not necessarily probable) to infer

from Rumsfeld’s direct involvement in developing in-

terrogation practices at Camp Cropper and his case-

specific approval of techniques used on detainees that

he personally authorized the plaintiffs’ abuse or

remained intentionally indifferent to it. These allegations

go well beyond those deemed insufficient in Ashcroft

v. Iqbal, 556 U.S. 662 (2009), and present more than a

mere possibility of liability. Therefore, I would permit

the suit to continue to at least limited discovery. See,

e.g., Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998).

I respectfully dissent.

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