Appendix — Arar v. Ashcroft

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TABLE OF CONTENTS - APPENDICES

Appendix A (Opinion of the United States

Court of Appeals for the Second Circuit

sitting en banc, NOV. 2, ZOOS) .....cccccscccccccsscsccesceess la

EY GENIN... cis cnsuatauaaeunconeseousnsevusen 5a

Dissenting Opinion of Judge Sack ............ 54a

Dissenting Opinion of Judge Parker....... 125a

Dissenting Opinion of Judge Pooler........ 157a

Dissenting Opinion of Judge Calabresi .. 173a

Appendix B (Opinion of the United States

Court of Appeals for the Second Circuit,

Jun. 30, 2008)......... ae aaa gasses ears 195a

Majority Opimionn ................ccccesseesceeeseceees 200a

Dissenting Opinion of Judge Sack.......... 276a

Appendix C (Opinion of the United States

District Court for the Eastern District of New

York, Feb. 16, 2006)...............0..... OTT AOI 2 EOE 335a

Appendix D (Torture Victim Protection Act of

1991, Public Law 102-256 Stat 73,

9B USEC 6 1390) .occccsececcocecccescecscoasesesssccee. 427a

Appendix E (Excerpts of the Foreign Affairs

Reform and Restructuring Act of 1998, Public

Fo pees) Se he ot. 7 By.) ernerere 43la

Appendix F (Excerpts of the United Nations

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or

IEE 5 scans acauhas uauka peanennbeaieneedasaenunsneses 434a

Appendix G (Complaint with Exhibits)............. 438a

EOC TE EO rTe ees eae 438a

EXHIBIT A: Syria — Country Reports

on Human Rights 2002: Dated March

ite siat aie caine cea lguauasaceoaseeesaentes 473a

EXHIBIT B: Remarks by the President,

IN A I a. scnduncncouersecenahnconsocns 527a

EXHIBIT C: Various News Articles........ 544a

EXHIBIT D: Final Notice of

[nadmissibility (Oct. 7, 2002).................. 58la

EXHIBIT E: Transcript of CBS News

Sixty Minutes II “His Year in Hell!’ ........ 591a

APPENDIX A -—- ENTERED November 2, 2009.

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Civil Action No. 06-4216-cv

585 F.3d 559

Decided: November 2, 2009,

As Amended November 5, 2009.

As Amended December 23, 2009.

MAHER ARAR,

Plaintiff-Appellant,

JOHN ASHCROFT, Attorney General of

the United States, LARRY D.

THOMPSON, formerly Acting Deputy

Attorney General, TOM RIDGE, Secre-

tary of Homeland Security, J. SCOTT

BLACKMAN, formerly Regional Director

of the Regional Office of Immigration and

Naturalization Services, PAULA

CORRIGAN, Regional Director of Immi-

eration and Customs’ Enforcement,

EDWARD J. MCELROY, formerly Dis-

trict Director of Immigration and Natu-

ralization Services for New York District,

and now Customs Enforcement, ROBERT

MUELLER, Director of the Federal Bu-

reau of Investigation, John Doe 1-10,

Federal Bureau of Investigation and/or

Immigration and Naturalization Service

Agents, and JAMES W. ZIGLAR, for-

merly Commissioner for Immigration and

Naturalization Services, United States,

Defendants-Appellees.

Arar's complaint alleges violations of the Tor-

ture Victim Protection Act ("TVPA") and the Fifth

Amendment. The District Court dismissed the com-

plaint. Id. at 287-88. A three-judge panel of this

Court unanimously held that: (1) the District Court

had personal jurisdiction over Thompson, Ashcroft,

and Mueller; (2) Arar failed to state a claim under

the TVPA; and (3) Arar failed to establish subject

matter jurisdiction over his request for a declaratory

judgment. Arar v. Ashcroft, 5382 F.3d 157 (2d Cir.

2008).

DAVID COLE (Maria Couri LaHood, Jules

Lobel, Katherine Gallagher, on the brief), Cen-

ter for Constitutional Rights, New York, NY;

Joshua S. Sohn (on the brief), DLA Piper US

LLP, New York, NY, for Plaintiff-Appellant.

JONATHAN F. COHN, Deputy Assistant At-

torney General (Gregory G. Katsas, Assistant

Attorney General; Benton J. Campbell, United

States Attorney; Larry Lee Gregg, R. Joseph

Sher, Dennis C. Barghaan, Assistant United

States Attorneys; Mary Hampton Mason, Jer-

emy S. Brumbelow, U.S. Department of Jus-

tice, Civil Division, Torts Branch; Barbara L.

Herwig, Robert M. Loeb, Michael Abate, U.S.

Department of Justice, Civil Division, Appel-

late Staff, on the brief), for Defendant-

Appellee John Ashcroft, the official capacity

Defendants-Appellees, and the United States.

JEREMY A. LAMKEN (John J. Cassidy, Ja-

mie S. Kilberg, Paul J. Nathanson, on the

brief), Baker Botts L.L.P., Washington D.C.;

Stephen L. Braga (on the brief), Ropes & Gray

L.L.P., Washington D.C., for Defendant-

Appellee Larry D. Thompson.

Robin L. Goldfaden, American Civil Liberties

Union Foundation, Immigrants’ Rights Pro-

ject, San Francisco, CA, for Amici Curiae

American Civil Liberties Union and New York

Civil Liberties Union in support of Plaintiff-

Appellant.

Burt Neuborne, New York, NY, for Amici Cu-

riae Norman Dorsen, Helen Hershkoff, Frank

Michelman, Burt Neuborne, and David L.

Shapiro, in support of Plaintiff-Appellant.

Michael B. De Leeuw, Dale E. Ho, Jonathan J.

Smith, Fried, Frank, Harris, Shriver & Jacob-

son LLP, New York, NY, for Amicus Curiae

NAACP Legal Defense & Educational Fund,

Inc. in support of Plaintiff- Appellant.

Sidney S. Rosdeitcher, Paul, Weiss, Rifkind,

Wharton & Garrison LLP, New York, NY, for

Amici Curiae Retired Federal Judges in sup-

port of Plaintiff-Appellant.

Nancy Morawetz, New York University School

of Law, New York, NY, for Amici Curiae Law

Professors in support of Plaintiff-Appellant.

Alexander Yanos, Freshfields Bruckhaus Der-

inger US LLP, New York, NY, for Amicus Cu-

riae Redress Trust in support of Plaintiff-

Appellant.

Before: JACOBS, Chief Judge, McLAUGHLIN,"*

CALABRESI, CABRANES, POOLER, SACK,™ SO-

TOMAYOR,*** PARKER, ™” RAGGI, WESLEY,

* Senior Circuit Judge McLaughlin was a member of the

initial three-judge panel that heard this appeal and is therefore

eligible to participate in in banc rehearing. See 28 U.S.C. §

46(c)(1).

** Senior Circuit Judges Calabresi, Sack, and Parker,

who assumed senior status during the course of in banc pro-

ceedings, are entitled to participate pursuant to 28 U.S.C. §

46(c)(2).

*** The Honorable Sonia Sotomayor, who was originally

a member of the in banc panel and who participated in oral

argument, was elevated to the Supreme Court on August 8,

HALL, and LIVINGSTON. Circuit Judges.

KATZMANN, Circuit Judge, took no part in the con-

sideration or decision of the case.

JACOBS, C.J., filed the majority opinion in which

MCLAUGHLIN, CABRANES, RAGGI, WESLEY,

HALL, and LIVINGSTON, JJ., joined.

CALABRESI, J., filed a dissenting opinion in which

POOLER, SACK, and PARKER, JJ., joined.

POOLER, J., filed a dissenting opinion in which

CALABRESI, SACK, and PARKER, JJ., joined.

SACK, J., filed a dissenting opinion in which

CALABRESI, POOLER, and PARKER, JuJ., joined.

PARKER, J., filed a dissenting opinion in which

CALABRESI, POOLER, and SACK, JJ., joined.

Appeal from a judgment of the United States

District Court for the Eastern District of New York

(Trager, J.) dismissing Plaintiff-Appelant Maher

Arar’s complaint against the Attorney General of the

United States, the Secretary of Homeland Security,

the Director of the Federal Bureau of Investigation,

and others, including senior immigration officials.

Arar alleges that he was detained while changing

nlanes at Kennedy Airport in New York (based on a

warning from Canadian authorities that he was a

2009.

member of Al Qaeda), mistreated for twelve days

while in United States custody, and then removed to

Syria via Jordan pursuant to an inter-governmental

understanding that he would be detained and inter-

rogated under torture by Syrian officials. The com-

plaint alleges a violation of the Torture Victim Pro-

tection Act ("TVPA") and of his Fifth Amendment

substantive due process rights arising from the con-

ditions of his detention in the United States, the de-

nial of his access to counsel and to the courts while in

the United States, and his detention and torture in

Syria.

The district court dismissed the complaint

(with leave to re-plead only as to the conditions of

detention in the United States and his access to

counsel and the courts during that period) and Arar

timely appealed (without undertaking to amend).

Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y.

2006). A three-judge panel of this Court unanimously

held that: (1) the District Court had personal juris-

diction over Thompson, Ashcroft, and Mueller; (2)

Arar failed to state a claim under the TVPA; and (3)

Arar failed to establish subject matter jurisdiction

over his request for a declaratory judgment. Arar v.

Ashcroft, 532 F.3d 157 (2d Cir. 2008). A majority of

the panel also dismissed Arar's Bivens claims, with

one member of the panel dissenting. Id. The Court

voted to rehear the appeal in banc. We now affirm.

We have no trouble affirming the district

court's conclusions that Arar sufficiently alleged per-

sonal jurisdiction over the defendants who chal-

lenged it, and that Arar lacks standing to seek de-

claratory relief. We do not reach issues of qualified

immunity or the state secrets privilege. As to the

TVPA, we agree with the unanimous position of the

panel that Arar insufficiently pleaded that the al-

leged conduct of United States officials was done un-

der color of foreign law. We agree with the district

court that Arar insufficiently pleaded his claim re-

garding detention in the United States, a ruling that

has been reinforced by the subsequent authority of

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

127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Our atten-

tion is therefore focused on whether Arar's claims for

detention and torture in Syria can be asserted under

Bivens v. Six Unknown Named Agents of Federal Bu-

reau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.

Ed. 2d 619 (1971) ("Bivens").

To decide the Bivens issue, we must deter-

mine whether Arar's claims in«oke Bivens in a new

context; and, if so, whether an alternative remedial

scheme was available to Arar, or whether (in the ab-

sence of affirmative action by Congress) "'special fac-

tors counsel|{] hesitation.” See Wilkie v. Robbins, 551

U.S. 537, 550, 127 S. Ct. 2588, 168 L. Ed. 2d 389

(2007) (quoting Bush v. Lucas, 462 U.S. 367, 378,

103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983)). This opin-

ion holds that "extraordinary rendition" is a context

new to Bivens claims, but avoids any categorical rul-

ing on alternative remedies--because the dominant

holding of this opinion is that, in the context of ex-

traordinary rendition, hesitation 1s warranted by

special factors. We therefore [*564] affirm. (The term

"rendition" and its related usages are defined and

discussed in the margin.!)

1 The term “rendition" refers to the transfer of a fugi-

tive from one state to another or from one country to another.

See Black's Law Dictionary 1410 (9th ed. 2004) (defining "ren-

dition” as "[t]he return of a fugitive from one state to the state

where the fugitive is accused or was convicted of a crime"); see

also Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 1.9(c) ("[I]nterstaterendition[ ] is specifi-

cally provided for in the United States Constitution. In order to

implement the rendition clause, Congress enacted the Federal

Rendition Act, which requires that the demanding state pro-

duce ‘a copy of an indictment found or an affidavit made before

a magistrate of any State or Territory, charging the person de-

manded with having committed treason, felony, or other crime,

certified as authentic by the governor." (footnotes omitted)). In

the international] context, "extradition" is a "distinct form of

rendition" in which "one [country] surrenders a person within

its territorial jurisdiction to a requesting [country] via a formal

legal process, typically established by treaty between the coun-

tries." Cong. Research Serv., Renditions: Constraints Imposed

by Laws on Torture 1 (2009); see also 1 Oppenheim's Interna-

tional Law §§ 415-16 (9th ed. 1996). Although most interna-

tional renditions occur under a formal extradition treaty, rendi-

tions also occur outside the scope of extradition treaties, often

as a matter of international comity. See 1 Oppenheim, supra, §

416; Cong. Research Serv., supra, at 1; see also 18 U.S.C. §

3181(b) (permitting, "in the exercise of comity, the surrender of

persons, other than citizens, nationals, or permanent residents

of the United States, who have committed crimes of violence

against nationals of the United States in foreign countries

without regard to the existence of any treaty of extradition with

such foreign government"). The terms "irregular rendition' and

‘extraordinary rendition’ have been used to refer to the extraju-

dicial transfer of a person from one [country] to another." Cong.

Research Serv., supra, at 1; see also Black's Law Dictionary

1410 (9th ed. 2009) (defining "extraordinary rendition" as "{t]he

transfer, without formal charges, trial, or court approval, of a

Our ruling does not preclude judicial review

and oversight in this context. But if a civil remedy in

damages is to be created for harms suffered in the

context of extraordinary rendition, it must be created

by Congress, which alone has the institutional com-

petence to set parameters, delineate safe harbors,

person suspected of being a terrorist or supporter of a terrorist

group to a foreign nation for imprisonment and interrogation on

behalf of the transferring nation"). As we understand and use

the term here, "extraordinary rendition" does not, by itself,

imply that a subject of extraordinary rendition will be treated

as Arar alleges he was treated during and after the rendition

alleged in this action.

The United States Department of State records that,

between 1993 and 2001, "rendition" provided the means for

obtaining custody of ten suspected terrorists and "extradition"

applied to another four suspects. See U.S. Dep't of State, Pat-

terns of Global Terrorism 2001, App. D: Extraditions and Ren-

ditions of Terrorists to the United States. Accordingly, the ren-

dition of suspected terrorists outside the mechanisms

established by extradition treaties--so-called extraordinary

rendition--had been employed as a means of combating terror-

ists for nearly a decade prior to the events giving rise to. this

litigation. See John B. Bellinger III, Legal Adviser, U.S. Dep't of

State, Letter to the Editor, Wall St. J., July 5, 2006, at A25

(discussing the renditions of suspected terrorists Ramzi Yousef

and Mir Aimal Kansi to the United States and the rendition of

Illich Ramirez Sanchez, also known as "Carlos the Jackal," by

French authorities from the Sudan to France, "which was sub-

sequently upheld by the European Commission on Human

Rights"), reprinted in Digest of United States Practice in Inter-

national Law 162-63 (Sally J. Cummings ed., 2006); see also

Remarks of Condoleezza Rice, U.S. Sec'y of State (Dec. 5, 2005)

("For decades, the United States and other countries have used

‘renditions’ to transport terrorist suspects from the country

where they were captured to their home country or to other

countries where they can be questioned, held, or brought to

justice."), in Digest of United States Practice in International

Law 100, 102 (Sally J. Cummings ed., 2005).

10a

and specify relief. If Congress chooses to legislate on

this [*565] subject, then judicial review of such legis-

lation would be available.

Applying our understanding of Supreme Court

precedent, we decline to create, on our own, a new

cause of action against officers and employees of the

federal government. Rather, we conclude that, when

a case presents the intractable "special factors" ap-

parent here, see supra at 36-37, it is for the Execu-

tive in the first instance to decide how to implement

extraordinary rendition, and for the elected members

of Congress--and not for us as judges--to decide

whether an individual may seek compensation from

government officers and employees directly, or from

the government, for a constitutional violation. Ad-

ministrations past and present have reserved the

right to employ rendition, see David Johnston, U.S.

Says Rendition to Continue, but with More Over-

sight, N.Y. Times, Aug. 24, 2009, and not withstand-

ing prolonged public debate, Congress has not pro-

hibited the practice, imposed limits on its use, or

created a cause of action for those who allege they

have suffered constitutional injury as a consequence.

Arar's complaint sets forth the following fac-

tual allegations.

lla

Arar is a dual citizen of Syria, where he was

born and raised, and of Canada, to which his family

tmmigrated when he was 17.

While on vacation in Tunisia in September

2002, Arar was called back to work in Montreal. His

itinerary called for stops in Zurich and New York.

Arar landed at Kennedy Airport around noon

on September 26. Between planes, Arar presented

his Canadian passport to an immigration official

who, after checking Arar's credentials, asked Arar to

wait nearby. About two hours later, Arar was finger-

printed and his bags searched. Between 4 p.m. and 9

p.m., Arar was interviewed by an agent from the

Federal Bureau of Investigation ("FBI"), who asked

(inter alia) about his relationships with certain indi-

viduals who were suspected of terrorist ties. Arar

admitted knowing at least one of them, but denied

being a member of a terrorist group. Following the

FBI interview, Arar was questioned by an official

from the Immigration and Nationalization Service

("INS) for three more hours; he continued to deny

terrorist affiliations.

Arar spent the night alone in a room at the

airport. The next morning (September 27) he was

questioned by FBI agents from approximately 9 a.m.

until 2 p.m.; the agents asked him about Osama Bin

Laden, Iraq, Palestine, and other things. That eve-

ning, Arar was given an opportunity to return volun-

tarily to Syria. He refused, citing a fear of torture,

12a

and asked instead to go to Canada or Switzerland.

Later that evening, he was transferred to the Metro-

politan Detention Center ("MDC") in Brooklyn,

where he remained until October 8.

On October 1, the INS initiated removal pro-

ceedings, and served Arar with a document stating

that he was inadmissible because he belonged to a

terrorist organization. Later that day, he called his

mother-in-law in Ottawa--his prior requests to place

calls and speak to a lawyer having been denied or

ignored. His family retained a lawyer to represent

him and contacted the Canadian Consulate in New

York.

A Canadian consular official visited Arar on

October 3. The next day, immigration officers asked

Arar to designate in writing the country to which he

would want to be removed. He designated Canada.

On the evening of October 5, Arar met with his

[(*566] attorney. The following evening, a Sunday,

Arar was again questioned by INS officials. The INS

District. Director in New York left a voicemail mes-

sage on the office phone of Arar's attorney that the

interview would take place, but the attorney did not

receive the message in time to attend. Arar was told

that she chose not to attend. In days following, the

attorney was given false information about Arar's

whereabouts.

On October 8, 2002, Arar learned that the INS

had: (1) ordered his removal to Syria, (2) made a (re-

13a

quired) finding that such removal would be consis-

tent with Article 3 of the Convention Against Torture

("CAT"),2. and (3) barred him from reentering the

United States for five years. He was found inadmis-

sible to the United States on the basis of 8 U.S.C. §

1182(a)(3)(B))(V), which provides that any alien

who “is a member of a terrorist organization" is in-

admissible to the United States. The finding was

based on Arar's association with asuspected terrorist

and other (classified) information. Thereafter, De-

fendant J. Scott Blackman, an INS Regional Direc-

tor, made a determination that Arar was clearly and

unequivocally a member of Al Qaeda and inadmissi-

ble to the United States. A "Final Notice of Inadmis-

sibility," dated October 8, and signed by Defendant

Deputy Attorney General Larry Thompson, stated

that Arar's removal to Syria would be consistent

with the CAT, notwithstanding Arar's articulated

fear of torture.

Later that day, Arar was taken to New Jersey,

whence he flew in a small jet to Washington, D.C.,

and then to Amman, Jordan. When he arrived in

2 Article 3 of the Convention Against Torture "prohibits

any state party to the Convention from expelling, returning or

extraditing any person to another State where there are sub-

stantial grounds for believing that he would be in danger of

being subjected to torture, and provides that the determination

of whether such grounds exist [must take] into account all rele

vant considerations including, where applicable, the existence

in the State concerned of a consistent pattern of gross, flagrant

or mass violations of human rights." Tun v. INS, 445 F.3d 554,

566 (2d Cir. 2006) (internal quotation marks, brackets, and

ellipsis omitted).

l4a

Amman on October 9, he was handed over to Jorda-

nian authorities who treated him roughly and then

delivered him to the custody of Syrian officials, who

detained him at a Syrian Military Intelligence facil-

ity. Arar was in Syria for a year, the first ten months

in an underground cell six feet by three, and seven

feet high. He was interrogated for twelve days on his

arrival in Syria, and in that period was beaten on his

palms, hips, and lower back with a two-inch-thick

electric cable and with bare hands. Arar alleges that

United States officials conspired to send him to Syria

for the purpose of interrogation under torture, and

directed the interrogations from abroad by providing

Syria with Arar's dossier, dictating questions for the

Syrians to ask him, and receiving intelligence

learned from the interviews.

On October 20, 2002, Canadian Embassy offi-

cials inquired of Syria as to Arar's whereabouts. The

next day, Syria confirmed to Canada that Arar was

in its custody; that same day, interrogation ceased.

Arar remained in Syria, however, receiving visits

from Canadian consular officials. On August 14,

2003, Arar defied his captors by telling the Canadi-

ans that he had been tortured and was confined to a

small underground cell. Five days later, after signing

a confession that he had trained as a terrorist in Af-

ghanistan, Arar was moved to various locations. On

October 5, 2003, Arar was released to the custody of

a Canadian embassy official in [*567] Damascus, and

was flown to Ottawa the next day.

15a

On January 22, 2004, Arar filed a four-court

complaint in the Eastern District of New York seek-

ing damages from federal officials for harms suffered

as a result of his detention and confinement in the

United States and his detention and interrogation in

Syria. Count One of Arar's complaint seeks relief un-

der the Torture Victim Protection Act ("TVPA"), 28

U.S.C. § 1350 note (a)(1) (the "T'VPA claim"). Counts

Two and Three seek relief under the Fifth Amend-

ment for Arar's alleged torture in Syria (Count Two)

and his detention there (Count Three). Count Four

seeks relief under the Fifth Amendment for Arar's

detention in the United States prior to hs removal to

Syria. Arar also seeks a declaratory judgment that

defendants' conduct violated his "constitutional, civil,

and human rights.”

Defendants-Appellees moved to dismiss the

complaint pursuant to Federal Rule of Civil Proce-

dure 12(b), challenging personal! jurisdiction over

Defendants Ashcroft, Thompson, and Mueller and

challenging subject-matter jurisdiction as to the

claims alleging confinement and torture in Syria on

the ground that they arise from an order of removal

and are therefore subject to the jurisdictional bar of

the Immigration and Nationality Act (see infra Part

V1). It was also argued that Arar lacked standing to

seek a declaratory judgment.

16a

On February 16, 2006, the district court dis-

missed Counts One, Two, and Three with prejudice,

and Count Four without prejudice. Arar v. Ashcroft,

414 F. Supp. 2d 250, 287-88 (E.D.N.Y. 2006). The

district court also concluded that Arar lacked stand-

ing to bring a claim for declaratory relief. Id. at 258-

59.

Arar elected not to re-plead Count Four, and

on August 17, 2006, the district court entered judg-

ment dismissing all of Arar's claims. Arar timely ap-

pealed. A divided three-judge panel of this Court af-

firmed on June 30, 2008. Arar v. Ashcroft, 532 F.3d

157 (2d Cir. 2008). The Court voted to rehear the

case in banc, and oral argument was heard on De-

cember 9, 2008.

Iil

We review de novo the district court's decision

to grant a motion to dismiss. Jn re NYSE Specialists

Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). In so do-

ing, we accept as true the factual allegations of the

complaint, and construe all reasonable inferences

that can be drawn from the complaint in the light

most favorable to the plaintiff. Roth v. Jennings, 489

F.3d 499, 501 (2d Cir. 2007); see also Conyers v. Ros-

sides, 55& F.3d 137, 143 (2d Cir. 2009).

At the outset, we conclude (as the panel con-

cluded unanimously) that Arar: (1) sufficiently al-

leged personal jurisdiction over the defendants, and

17a

(2) has no standing to seek declaratory relief; in ad-

dition, because we dismiss the action for the reasons

set forth below, we need not (and do not) reach the

issues of qualified immunity or the state secrets

privilege.

This opinion owes a debt to the panel opinions.

The TVPA creates a cause of action for dam-

ages against any “individual who, under actual or

apparent authority, or color of law, of any foreign

nation . . . subjects an individual to torture.” 28

U.S.C. § 1350 note (a)(1). Count One of Arar's com-

plaint alleges that the defendants conspired with

Jordanian and Syrian officials to have Arar tortured

in direct violation of the TVPA.

[*568] Any allegation arising under the TVPA

requires a demonstration that the defendants acted

under color of foreign law, or under its authcrity.

Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995).

"In construing the term[]... 'color of law,' courts are

instructed to look . . . to jurisprudence under 42

U.S.C. § 1983... ." Id. (citing H.R. Rep. No. 367,

102d Cong., 2d Sess., at 5 (1991) reprinted in 1992

U.S.C.C.A.N. 84, 87). Under section 1983, "(t]he tra-

ditional definition of acting under color of state law

requires that the defendant .. . have exercised power

‘possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the au-

18a

thority of state law." West v. Atkins, 487 U.S. 42, 49,

108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988) (quoting

United States v. Classic, 313 U.S. 299, 326, 61 S. Ct.

1031, 85 L. Ed. 1368 (1941)). The determination as to

whether a non-state party acts under color of state

law requires an intensely fact-specific judgment un-

aided by rigid criteria as to whether particular con-

duct ioay be fairly attributed to the state. See

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass'n, 531 U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed.

2d 807 (2001). A federal officer who conspires with a

state officer may act under color of state law, see

Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d

147, 154 (2d Cir. 2006); but since "federal officials

typically act under color of federal law,” they are

rarely deemed to have acted under color of state law.

Strickland ex rel. Strickland v. Shalala, 123 F.3d

863, 866 (6th Cir. 1997) (emphasis in original).

Accordingly, to state a claim under the TVPA,

Arar must adequately allege that the defendants pos-

sessed power under Syrian law, and that the offend-

ing actions (i.e., Arar's removal to Syria and subse-

quent torture) derived from an exercise of that

power, or that defendants could not have undertaken

their culpable actions absent such power. The com-

plaint contains no such allegation. Arar has argued

that his allegation of conspiracy cures any deficiency

under the TVPA. But the conspiracy allegation is

that United States officials encouraged and faciii-

tated the exercise of power by Syrians in Syria, not

that the United States officials had or exercised

19a

power or authority under Syrian law. The defendants

are alleged to have acted under color of federal, not

Syrian, law, and to have acted in accordance with

alleged federal policies and in pursuit of the aims of

the federal government in the international context.

At most, it is alleged that the defendants encouraged

or solicited certain conduct by foreign officials. Such

conduct is insufficient to establish that the defen-

dants were in some way clothed with the authority of

Syrian law or that their conduct may otherwise be

fairly attributable to Syria. See, e.g., Harbury uv.

Hayden, 444 F. Supp. 2d 19, 42-43 (D.D.C. 2006),

affd on other grounds, 522 F.3d #13, 380 U.S. App.

D.C. 388 (D.C. Cir. 2008). We therefore agree with

the unanimous holding of the panel and affirm the

District Court's dismissal of the TVPA claim.3

3 Judge Pooler relies on a line of section 1983 cases ex-

plaining when and how private conduct can constitute state

action, and then reasons by analogy to deem the defendants'

conduct in this case to have arisen under foreign (Syrian) law.

See Dissent of Judge Pooler at 8-9. Under this theory, Judge

Pooler would allow a person tortured abroad to sue an official of

the United States government, who in the performance of her

official duties, "encourage[d],” "facilitat[ed],”" or "solicit{ed]" the

mistreatment. Id. at 10. Notably, she cites no authority for this

remarkable proposition, which would render a U.S. official an

official of a foreign government when she deals with that for-

eign state on matters involving intelligence, military, and dip-

lomatic affairs. At least one commentator has proposed a legis-

lative amendment to bring the law into line with what Judge

Pooler thinks it is, or should be. See Richard Henry Seamon,

U.S. Torture as a Tort, 37 Rutgers L.J. 715, 802, 804 (2006)

("Under current law, U.S. officials can seldom be heid civilly

liable for torture ... . Congress could amend the TVPA to ex-

tend the cause of action to the victims of torture inflicted under

color of federal law.").

20a

V [(*569]

Count Four of the complaint alleges that the

conditions of confinement in the United States (prior

to Arar's removal to Syria), and the denial of access

te courts during that detention, violated Arar's sub-

stantive due process rights under the Fifth Amend-

ment. The District Court dismissed this claim-- with-

out prejudice--as insufficiently pleaded, and invited

Arar to re-plead the claim in order to "articulate

more precisely the judicial relief he was denied" and

to "name those defendants that were personally in-

volved in the alleged unconstitutional treatment."

Arar, 414 F. Supp. 2d at 286, 287. Arar elected (in

his counsel's words) to "stand on the allegations of

his original complaint."

On a motion to dismiss, courts require

"enough facts to state a claim to relief that is plausi-

ble on its face." Twombly, 550 U.S. at 570; see also

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50, 173 L.

Ed. 2d 868 (2009). "Factual allegations must be

enough to raise a right to relief above the speculative

level... ." Twombly, 550 U.S. at 555. Broad allega-

tions of conspiracy are insufficient; the plaintiff

"must provide some factual basis supporting a meet-

ing of the minds, such that defendants entered into

an agreement, express or tacit, to achieve the unlaw-

ful end." Webb v. Goord, 340 F.3d 105, 110 (2d Cir.

2003) (internal quotation marks omitted) (addressing

conspiracy claims under 42 U.S.C. § 1985). Further-

more, a plaintiff in a Bivens action is required to al-

2la

lege facts indicating that the defendants were per-

sonally involved in the claimed constitutional viola-

tion. See Ellis v. Blum, 643 F.2d 68, 55 (2d Cir.

1981); see also Thomas v. Ashcroft, 470 F.3d 491, 496

(2d Cir. 2006).

Arar alleges that "Defendants"--

undifferentiated--"denied Mr. Arar effective access to

consular assistance, the courts, his lawyers, and fam-

ily members" in order to effectuate his removal to

Syria. But he fails to specify culpable action taken by

any single defendant, and does not allege the "meet-

ing of the minds" that a plausible conspiracy claim

requires. He alleges (in passive voice) that his re-

quests to make phone calls "were ignored," and that

"he was told" that he was not entitled to a lawyer,

but he fails to link these denials to any defendant,

named or unnamed. Given this omission, and in view

of Arar's rejection of an opportunity to re-plead, we

agree with the District Court and the panel majority

that this Count of the complaint must be dismissed.

We express no view as to the sufficiency of the

pleading otherwise, that is, whether the conduct al-

leged (if plausibly attributable to defendants) would

violate a constitutionally protected interest.4 To the

extent that this claim may be deemed to be a Bivens-

4 We need not, therefore, consider the panel's holding

that Arar failed "to establish that he possessed any entitlement

to a pre-removal hearing" or "to the assistance of counsel." Arar,

532 F.3d at 187-88.

22a

type action, it may raise some of the special factors

considered later in this opinion.

Arar's remaining claims seek relief on the ba-

sis of torture and detention in Syria, and are cast as

violations of substantive [*570] due process. At the

outset, Defendants argue that the jurisdictional bar

of the INA deprived the District Court of subject-

matter jurisdiction over these counts because Arar's

removal was conducted pursuant to a decision that

was "at the discretion" of the Attorney General.

"[Alny policy toward aliens is vitally and in-

tricately interwoven with contemporaneous policies

in regard to the conduct of foreign relations, the war

power, and the maintenance of a republican form of

government. Such matters are so exclusively en-

trusted to the political branches of government as to

be largely immune from judicial inquiry or interfer-

ence." Harisiades v. Shaughnessy, 342 U.S. 580, 588-

89, 72S. Ct. 512, 96 L. Ed. 586 (1952). Accordingly,

the INA requires an alien to seek relief only through

judicial review of a removal order in the appropriate

court of appeals; it entirely forecloses judicial review

of decisions of the Attorney General or the Secretary

of Homeland Security specified by the INA to be

23a

within the discretion of those officers. See 8 U.S.C. §

1252.5

However, the application of the INA's jurisdic-

tional bar is problematic in this case because the pro-

ceedings under the INA are alleged to have been ir-

regular in several respects.

First, the complaint alleges that the govern-

ment took the following actions that impaired Arar's

timely ability to seek the judicial review normally

afforded under the INA and to receive any meaning-

ful relief: denytng his requests to contact an attorney

or his family; misleading his lawyer (after one was

retained for him) as to his location and status,

thereby frustrating any advocacy on his behalf; and

serving the removal order on Arar en route to Am-

5 8 U.S.C. § 1252(b)(9) provides that "{j]udicial review of

all questions of law and fact, including interpretation and ap-

plication of constitutional and statutory provisions, arising from

any action taken or proceeding brought to remove an alien from

the United States ... shall be available only in judicial review

of a final order." Subsection 1252(a)(5), in turn, states that "a

petition for review filed with an appropriate court of appeals...

shall be the sole and exclusive means for judicial review of an

order of removal." Finally, pursuant to § 1252 (a)(2)(B):

[N]o court shall have jurisdiction to review ...

(ii) any .. . decision or action of the At-

torney Genera! or the Secretary of Homeland Se-

curity the authority for which is specified .. . to

be in the discretion of the Attorney General or

the Secretary of Homeland Security, other than

the granting of [asylum].

24a

man, when he no longer had access to his attorney

and could not make use of the review process. The

complaint also alleges that the government under-

took extraordinary rendition in clear violation of the

protections afforded aliens by the INA, suggesting

that the government itself might not have viewed the

INA as the real source of its removal authority in

this context. However, mere allegations of obstruc-

tion generally do not circumvent a congressionally

mandated remedial scheme. Otherwise, limitations

on the jurisdiction of the district courts could easily

be evaded and thwarted.

Second, although the INA governs the status

of aliens in transit at United States airports, and

clearly has a role in such circumstances, see 8 U.S.C.

§ 1182(d)(4)(C), this is not a typical immigration case

according to the complaint: Arar took no step to enter

or stay in this country; he was changing planes to go

elsewhere, repeatedly expressed his desire to return

to Canada, and was ticketed to Montreal. Even

though this case does not present the familiar fact

pattern of an alien trying to enter or remain in the

United States, our immigration laws apply [*571]

with equal force to aliens who seek admission to our

country and to aliens whom the government seeks to

keep out of our country.

In short, it is not clear that the INA's judicial

review provisions govern circumstances of involun-

tary rendition such as those alleged here. Indeed,

rendition may take place in circumstances that in no

25a

way implicate United States immigration laws, such

as when a person is detained abroad and rendered to

some third country.

Finally, even if the INA's jurisdictional bar is

surmounted and review not foreclosed, Arar has al-

leged circumstances that would have prevented him

from obtaining review. If, as he alleges, he was

served with the removal order while he was already

en route to Amman, the INA could have afforded him

no relief then (and can afford him no affirmative re-

lief at this time in this case).

In any event, we need not decide the vexed

question of whether the INA bar defeats jurisdiction

of Arar's substantive due process claims, because we

conclude below that the case must be dismissed at

the threshold for other reasons.

VII

In Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.

1999, 29 L. Ed. 2d 619 (1971), the Supreme Court

"recognized for the first time an implied private ac-

tion for damages against federal officers alleged to

have violated a citizen's constitutional rights.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct.

515, 151 L. Ed. 2d 456 (2001). The plaintiff in Bivens

had been subjected to an unlawful, warrantless

search which resulted in his arrest. Bivens, 403 U.S.

at 389-90. The Supreme Court allowed him to state a

26a

cause of action for money damages directly under the

Fourth Amendment, thereby giving rise to a judi-

cially-created remedy stemming directly from the

Constitution itself. Id. at 397.

The purpose of the Bivens remedy "is to deter

individual federal officers from committing constitu-

tional violations." Malesko, 534 U.S. at 70. So a

Bivens action is brought against individuals, and any

damages are payable by the offending officers. Carl-

son v. Green, 446 U.S. 14, 21, 100 S. Ct. 1468, 64 L.

Ed. 2d 15 (1980). Notwithstanding the potential

breadth of claims that would serve that objective, the

Supreme Court has warned that the Bivens remedy

is an extraordinary thing that should rarely if ever

be applied in "new contexts." See Malesko, 534 U.S.

at 69 (internal quotation marks omitted); Schweiker

v. Chilicky, 487 U.S. 412, 421, 108 S. Ct. 2460, 101 L.

Ed. 2d 370 (1988); see also Dotson v. Griesa, 398

F.3d 156, 166 (2d Cir. 2005) ("Because a Bivens ac-

tion is a judicially created remedy . . . courts proceed

cautiously in extending such implied relief... ."). In

the 38 years since Bivens, the Supreme Court has

extended it twice only: in the context of an employ-

ment discrimination claim in violation of the Due

Process Clause, Davis v. Passman, 442 U.S. 228, 99

S. Ct. 2264, 60 L. Ed. 2d 846 (1979). and in the con-

text of an Eighth Amendment violation by prison of-

ficials, Carlson, 446 U.S. 14, 100 S. Ct. 1468, 64 L.

Ed. 2d 15, see also Wilkie v. Robbins, 551 U.S. 537,

550, 127 S. Ct. 2588, 168 L. Ed. 2d 389 (2007) ("{I]n

most instances we have found a Bivens remedy un-

27a

justified."); Malesko, 524 U.S. at 68 ("[W]le have con-

sistently refused to extend Bivens liability to any

new context or new category of defendants."). Since

Carlson in 1980, the Supreme Court has declined to

extend the Bivens remedy in any new direction at

all. Among the rejected contexts are: violations of

federal employees' First Amendment [*572] rights

by their employers, Bush v. Lucas, 462 U.S. 367, 103

S. Ct. 2404, 76 L. Ed. 2d 648 (1983); harms suffered

incident to military service, United States v. Stanley,

483 U.S. 669, 107 S. Ct. 3054, 97 L. Ed. 2d 550

(1987); Chappell v. Wallace, 462 U.S. 296, 103 S. Ct.

2362, 76 L. Ed. 2d 586 (1983); denials of Social Secu-

rity benefits, Schweiker, 487 U.S. at 412; claims

against federal agencies, FDIC v. Meyer, 510 U.S.

471, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994); claims

against private corporations operating under federal

contracts, Malesko, 534 U.S. 61, 122 S. Ct. 515, 151

L. Ed. 2d 456 (2001); and claims of retaliation by

federal officials against private landowners, Wilkie,

551 U.S. at 562.

This case requires us to examine whether al-

lowing this Bivens action to proceed would extend

Bivens to a new "context," and if so, whether such an

extension is advisable.

"Context" is not defined in the case law. At a

sufficiently high level of generality, any claim can be

analogized to some other claim for which a Bivens

action is afforded, just as at a sufficiently high level

of particularity, every case has points of distinction

28a

We construe the word "context" as it is commonly

used in law: to reflect a potentially recurring sce-

nario that has similar legal and factual components.

The context of this case is international ren-

dition, specifically, “extraordinary rendition." Ex-

traordinary rendition is treated as a distinct phe-

nomenon in international law. See supra note 1.

Indeed, law review articles that affirmatively advo-

cate the creation of a remedy in cases like Arar's rec-

ognize "extraordinary rendition" as the context. See,

e.g., Peter Johnston, Note, Leaving the Invisible

Universe: Why All Victims of Extraordinary Rendi-

tion Need a Cause of Action Against the United

States, 16 J.L. & Pol'y 357, 363 (2007). More particu-

larly, the context of extraordinary rendition in Arar's

case is the complicity or cooperation of United States

government officials in the delivery of a non-citizen

to a foreign country for torture (or with the expecta-

tion that torture will take place). This is a “new con-

text": no court has previously afforded a Bivens rem-

edy for extraordinary rendition.

Once we have identified the context as "new,"

we must decide whether to recognize a Bivens rem-

edy in that environment of fact and law. The Su-

preme Court tells us that this is a two-part inquiry.

[In order to determine whether to recognize a Bivens

remedy in a new context, we must consider: whether

there is an alternative remedial scheme available to

the plaintiff; and whether

"special factors counsel|]

29a

hesitation" in creating a Bivens remedy. Wilkie, 551

U.S. at 550 (quoting Bush, 462 U.S. at 378).

VIII

There are several possible alternative reme-

dial schemes here. Congress has established a sub-

stantial, comprehensive, and intricate remedial

scheme in the context of immigration. The INA pro-

vides for review of final orders of removal, including

review of the government's designation of a particu-

lar destination country and many (albeit not ali) de-

cisions of the Attorney General and the Secretary of

Homeland Security. See 8 U.S.C. § 1252; Mendis v.

Filip, 554 F.3d 335, 338 (2d Cir. 2009). Congress has

supplemented this general remedial scheme with

specific guidance for particular contexts by enacting

(i) the Foreign Affairs Reform and Restructuring Act

of 1998 ("FARRA"), 8 U.S.C. § 1231 note; see also 8

C.F.R. § 208.16(c); and (ii) the TVPA, which, as al-

ready discussed, provides no remedy to [*573] Arar.

At the same time, Congress has expressly limited

review of the removal of aliens who (like Arar) are

removable for reasons related to national security.

See 8 U.S.C. § 1225(c). Congress has also regularly

modified the various review mechanisms to account

for perceived difficulties and complications. See, e.g.,

REAL ID Act of 2005, Pub. L. No. 109-138, div. B, 119

Stat. 302; Illegal Immigration Reform and Immi-

grant Responsibility Act of 1996, Pub. L. No. 104-

208, div. C, 110 Stat. 3009-546. In hght of the com-

plexity of the remedial scheme Congress has created

30a

(and frequently amended), we would ordinarily draw

a strong inference that Congress intended the judici-

ary to stay its hand and refrain from creating a

Bivens action in this context. See Wilkie, 551 U.S. at

554. Schweiker, 487 U.S. at 424-29; Bush, 462 U.S.

at 388.

We recognize, however, that any reliance on

the INA as an alternative remedia! scheme presents

difficulties for the same reasons discussed in Part VI

above. Arar has alleged that he was actively pre-

vented from seeking any meaningful review and re-

lief through the INA processes. In the end, we need

not decide whether an alternative remedial scheme

was available because, “even in the absence of an

alternative [remedial scheme], a Bivens remedy is a

subject of judgment ... [in which] courts must...

pay particular heed .. . to any special factors cuun-

selling hesitation before authorizing a new kind of

federal litigation." Wilkie, 551 U.S. at 550 (internal

quotation marks omitted). Such special factors are

clearly present in the new context of this case, and

they sternly counsel hesitation.

6 Accordingly, we have no occasion to consider the

panel's conclusion that the "review procedures set forth by the

INA provide a convincing reason for us to resist recognizing a

Bivens cause of action for Arar’s claims." Arar, 532 F.3d at 180

(internal quotation marks and citation omitted).

3la

When the Bivens cause of action was created

in 1971, the Supreme Court explained that such a

remedy could be afforded because that "case in-

volve[d] no special factors counselling hesitation in

the absence of affirmative action by Congress."

Bivens, 403 U.S. at 396. This prudential limitation

was expressly weighed by the Court in Davis, 442

U.S. at 245-46, and Carlson, 446 U.S. at 18-19, and

such hesitation has defeated numerous Bivens initia-

tives, see, e.g., Stanley, 483 U.S. at 683-84; Chap-

pell, 462 U.S. at 304; Wilkie, 551 U.S. at 554-55;

Dotson, 398 F.3d at 166-67. Among the "special fac-

tors" that have "counsel[ed] hesitation" and thereby

foreclosed a Bivens remedy are: military concerns,

Stanley, 483 U.S. at 683-84; Chappell, 462 U.S. at

304; separation of powers, United States v. City of

Philadelphia, 644 F.2d 187, 200 (3d Cir. 1980); the

comprehensiveness of available statutory schemes,

Dotson, 398 F.3d at 166; national security concerns,

Beattie v. Boeing Co., 43 F.3d 559, 563 (10th Cir.

1994); and foreign policy considerations, United

States v. Verdugo-Urquidez, 494 U.S. 259, 274, 110

S. Ct. 1056, 108 L. Ed. 2d 222 (1990).

Two principles emerge from this review of case law:

"Special factors" is an embracing cate-

gory, not easily defined; but it is limited

in terms to factors that provoke "hesita-

While special factors should be

substantial enough to justify the absence

of a damages remedy for a_ [*574]

tion.'

32a

wrong, mo account is taken of counter-

vailing factors that might counsel alac-

rity or activism, and none has ever been

cited by the Supreme Court as a reason

for affording a Bivens remedy where it

would not otherwise exist.

The only relevant threshold--that a fac-

tor "counsels hesitation"--is remarkably

low. It is at the opposite end of the con-

tinuum from the unflagging duty to exer-

cise jurisdiction. Hesitation is a pause,

not a full stop, or an abstention; and to

counsel is not to require. "Hesitation" is

"counseled" whenever thoughtful discre-

tion would pause even to consider.’

Judge Pooler labels these two principles

"dicta," see Dissent of Judge Pooler at 2, but they are

not. They are integral to the holding in this in banc

case, because we do not take account of countervail-

ing factors and because we apply the standard we

announce.

7 Judge Pooler labels these two principles "dicta," see

Dissent of Judge Pooler at 2, but they are not. They are integral

to the holding in this in banc case, because we do not take ac-

count of countervailing factors and because we apply the stan-

dard we announce.

33a

With these principles in mind, we adduce,

one by one, special factors that bear upon the recog-

nition of a Bivens remedy for rendition.

> 4

Although this action is cast in terms of a claim

for money damages against the defendants in their

individual capacities, it operates as a constitutional

challenge to policies promulgated by the executive.

Our federal system of checks and balances provides

means to consider allegedly unconstitutional execu-

tive policy, but a private action for money damages

against individual policymakers is not one of them. A

Bivens action is sometimes analogized to an action

pursuant to 42 U.S.C. § 1983, but it does not reach

so far as to create the federal counterpart to an ac-

tion under Moneli v. Department of Social Services,

436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

Here, we need not decide categorically whether a

Bivens action can lie against policymakers because

in the context of extraordinary rendition, such an

action would have the natural tendency to affect di-

plomacy, foreign policy, and the security of the na-

tion, and that fact counsels hesitation. Our holding

need be no broader.

A. Security and Foreign Policy

The Executive has practiced rendition since

at least 1995. See Extraordinary Rendition in U:S.

Counterterrorism Policy: The Impact on Transatlan-

34a

‘ic Relations: Joint Hearing Before the Subcomm. on

International Organizations, Human Rights, and

Oversight and the Subcomm. on Europe of the H.

Comm. on Foreign Affairs, 110th Cong. 15 (2007)

(statement of Michael F. Scheuer, Former Chief, Bin

Laden Unit, CIA). Arar gives "the mid-1990s" as the

date for the inception of the policy under which he

was sent to Syria for torture. Pl. Maher Arar's Mem.

of Law in Opp'n to Defs.' Invocation of the State Se-

crets Privilege, Mar. 14, 2005, at 6. A suit seeking a

damages remedy against senior officials who imple-

ment such a policy is in critical respects a suit

against the government as to which the government

has not waived sovereign immunity. Such a suit un-

avoidably influences government policy, probes gov-

ernment secrets, invades government interests, en-

meshes government lawyers, and thereby elicits

government funds for settlement. (Canada has al-

ready paid Arar $ 10 million. )

It is a substantial understatement to say that

one must hesitate before extending [*575] Bivens

into such a context. A suit seeking a damages rem-

edy against senior officials who implement an ex-

traordinary rendition policy would enmesh the courts

ineluctably in an assessment of the validity and ra-

8 See Press Release and Announcement, Stephen

Harper, Prime Minister of Can. (Jan. 26, 2007),

http://pm.ge.ca/eng/media.asp?id=1510; Ottawa Reaches $10M

Settlement with Arar, CBC News, Jan. 26, 2007,

http://www .cbc.ca/canada/story/2007/01/25/arar-harper.html.

35a

tionale of that policy and its implementation in this

particular case, matters that directly affect signifi-

cant diplomatic and national security concerns. It is

clear from the face of the complaint that Arar explic-

itly targets the "policy" of extraordinary rendition; he

cites the policy twice in his complaint, and submits

documents and media reports concerning the prac-

tice. His claim cannot proceed without inquiry into

the perceived need for the policy, the threats to

which it responds, the substance and sources of the

intelligence used to formulate it, and the propriety of

adopting specific responses to particular threats in

light of apparent geopolitical circumstances and our

relations with foreign countries.

The Supreme Court has expressly counseled

that matters touching upon foreign policy and na-

tional security fall within "an area of executive ac-

tion 'In which courts have long been hesitant to in-

trude™ absent congressional authorization. Lincoln v.

Vigil, 508 U.S. 182, 192, 113 S. Ct. 2024, 124 L. Ed.

2d 101 (1993) (emphasis added) (quoting Franklin v.

Massachusetts, 505 U.S. 788, 819, 112 S. Ct. 2767,

120 L. Ed. 2d 636 (1992) (Stevens, J., concurring in

part and concurring in the judgment)). It "has recog-

nized 'the generally accepted view that foreign policy

was the province and responsibility of the Executive.

... Thus, unless Congress specifically has provided

otherwise, courts traditionally have been reluctant

to intrude upon the authority of the Executive in

military and national security affairs." Dep't of Navy

v. Egan, 484 U.S. 518, 529-30, 108 S. Ct. 818, 98 L.

36a

Ed. 2d 918 (1988) (emphasis added) (quoting Haig v.

Agee, 453 U.S. 280, 293-94, 101 S. Ct. 2766, 69 L. Ed.

2d 640 (1981)). This "hesita[tion]" and "reluctan[ce]"

is counseled by:

the constitutional separation of powers

among the branches of government, see

United States v. Curtiss-Wright Exp. Co.,

299 U.S. 304, 320-22, 57S. Ct. 216, 81 L.

Ed. 255 (1936) (noting the "plenary and

exclusive power of the President as the

sole organ of the federal government in

the field of international relations" and

discussing the difficulties presented by

congressional--let alone judicial-- in-

volvement in such affairs), and the lim-

ited institutional competence of the judi-

ciary, see Boumediene v. Bush, 128 S. Ct.

2229, 2276-77, 171 L. Ed. 2d 41 (2008)

("Unlike the President and some desig-

nated Members of Congress, neither the

Members of this Court nor most federal

judges begin the day with briefings that

may describe new and serious threats to

our Nation and its people. The law must

accord the Executive substantial author-

ity to apprehend and detain those who

pose a real danger to our security."); see

also Munaf v. Geren, 128 S. Ct. 2207,

2226, 171 L. Ed. 2d 1 (2008) ("The Judi-

Clary is not suited to [make] determina-

tions [in the area of foreign affairs] that

37a

would ... undermine the Government's

ability to speak with one voice in this

area. In contrast, the political branches

are well situated to consider sensitive

foreign policy issues, such as whether

there is a serious prospect of torture at

the hands of any ally, and what to do

about it if there is." (citation omitted)).

True, courts can--with difficulty and resource-

fulness-- consider state secrets and even reexamine

judgments made in the foreign affairs context when

they must, [*576] that is, when there is an unflag-

ging duty to exercise our jurisdiction. Otherwise:

[T]he special needs of foreign affairs

must stay our hand in the creation of

damage remedies against military and

foreign policy officials for allegedly un-

constitutional treatment of foreign sub-

jects causing injury abroad. The foreign

affairs implications of suits such as this

cannot be ignored--their ability to pro-

duce what the Supreme Court has called

in another context "embarrassment of

our government abroad" through "multi-

farious pronouncements by various de-

partments on one question." Whether or

not the present litigation is motivated by

considerations of geopolitics rather than

personal harm, we think that as a gen-

eral matter the danger of foreign citizens’

38a

using the courts in situations such as

this to obstruct the foreign policy of our

government is sufficiently acute that we

must leave to Congress the judgment

whether a damage remedy should exist.

Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209, 248

U.S. App. D.C. 146 (D.C. Cir. 1985) (Scalia, J.) (quot-

ing Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7

L. Ed. 2d 663 (1962)). Absent clear congressional au-

thorization, the judicial review of extraordinary ren-

dition would offend the separation of powers and in-

hibit this country's foreign policy. It does not matter

for our purposes whether such consequences would

flow from innocent interference or from deliberate

manipulation. These concerns must counsel hesita-

tion in creating a new damages remedy that Con-

gress has not seen fit to authorize.

B. Classified Information

The extraordinary rendition context involves

exchanges among the ministries and agencies of for-

eign countries on diplomatic, security, and intelli-

gence issues. The sensitivities of such classified ma-

terial are "too obvious to call for enlarged

discussion." Dep't of Navy, 484 U.S. at 529 (internal

quotation marks omitted). Even the probing of these

matters entails the risk that other countries will be-

come less willing to cooperate with the United States

in sharing intelligence resources to counter terror-

ism. "At its core," as the panel opinion observed, "this

39a

suit arises from the Executive Branch's alleged de-

termination that (a) Arar was affiliated with Al

Qaeda, and therefore a threat to national security,

and (b) his removal] to Syria was appropriate in light

of U.S. diplomatic and national security interests.”

Arar, 532 F.3d at 181. To determine the basis for

Arar's alleged designation as an Al Qaeda member

and his subsequent removal to Syria, the district

court would have to consider what was done by the

national security apparatus of at least three foreign

countries, as well as that of the United States, In-

deed, the Canadian government--which appears to

have provided the intelligence that United States

officials were acting upon when they detained Arar--

paid Arar compensation for its role in the events

surrounding this lawsuit, but has also asserted the

need for Canada itself to maintain the confidentiality

of certain classified materials related to Arar's

claims.°

C. Open Courts

Allegations of conspiracy among government

agencies that must often work in secret inevitably

implicate a lot of classified material that cannot be

introduced into the public record. Allowing Arar's

claims to proceed would very likely mean that some

documents or information [*577] sought by Arar

9 See Ottawa Trying to Hold Back Documents from Arar

Inquiry, CBC News, Apr. 29, 2004,

http://www.cbe.ca/canada/story/2004/04/29/arar040429. html.

40a

would be redacted, reviewed in camera, and other-

wise concealed from the public. Concealment does

not bespeak wrongdoing: in such matters, it is just as

important to conceal what has not been done. Never-

theless, these measures would excite suspicion and

speculation as to the true nature and depth of the

supposed conspiracy, and as to the scope and depth

of judicial oversight. Indeed, after an inquiry at oral

argument as to whether classified materials relating

to Arar's claims could be made available for review in

camera, Arar objected to the supplementation of the

record with material he could not see. See Letter

from David Cole, Counsel for Maher Arar (Dec. 23,

2008). After pointing out that such materials are un-

necessary to the adjudication of a motion on the

pleadings (where the allegations of the complaint

must be accepted as true), Arar protested that any

materials submitted ex parte and in camera would

not be subject to adversarial testing and that consid-

eration of such documents would be "presumptively

unconstitutional" since they would result in a deci-

sion "on the basis of secret information available to

only one side of the dispute."

The court's reliance on information that can-

not be introduced into the public record is likely to be

a common feature of any Bivens actions arising in

the context of alleged extraordinary rendition. This

should provoke hesitation, given the strong prefer-

ence in the Anglo-American legal tradition for open

court proceedings, a value incorporated into modern

First and Sixth Amendment law. See U.S. Const.

4la

amend. VI (guaranteeing the right to a "public trial"

(emphasis added)); Westmoreland v. Columbia

Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (not-

ing that the First Amendment secures "a right of ac-

cess to civil proceedings"). The risk of limiting access,

of course, is that where a proceeding "has been con-

cealed frou: public view an unexpected outcome can

cause a reaction that the system at best has failed

and at worst has been corrupted." Richmond News-

papers, Inc. v. Virginia, 448 U.S. 555, 571, 100 S. Ct.

2814, 65 L. Ed. 2d 973 (1980). “"[T]he appearance of

justice can best be provided by allowing people to

observe" proceedings. Jd. at 572. "People in an open

society do not demand infallibility from their institu-

tions, but it is difficult for them to accept what they

are prohibited from observing." Id. This is especially

true in the courts, where the guarantee of a public

trial "has always been recognized as a safeguard

against any attempt to employ our courts as instru-

ments of persecution. The knowledge that every

criminal trial is subject to contemporaneous review

in the forum of public opinion is an effective restraint

on possible abuse of judicial power." Jn re Oliver, 333

U.S. 257, 270, 68 S. Ct. 499, 92 L. Ed. 682 (1948).

Granted, there are circumstances in which a

court may close proceedings to which a public right of

access presumptively attaches. See Waller v. Geor-

gia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31

(1984); United States v. Alcantara, 396 F.3d 189,

199.200 (2d Cir. 2005); United States v. Doe, 63 F.3d

121, 127-28 (2d Cir. 1995). And the problems posed

42a

by the need to consider classified material are un-

avoidable in some criminal prosecutions and in other

cases where we have a duty, imposed by Congress, to

exercise jurisdiction. But this is not such a circum-

stance or such a case. The preference for open rather

than clandestine court proceedings is a special factor

that counsels hesitation in extending Bivens to the

extraordinary rendition context.

A government report states that this case in-

volves assurances received from [*578] other gov-

ernments in connection with the determination that

Arar's removal to Syria would be consistent with Ar-

ticle 3 of the CAT. Office of Inspector General, Dep't

of Homeland Sec., (Unclassified) The Removal of a

Canadian Citizen to Syria 5, 22, 26-27 (2008).!° This

case is not unique in that respect. Cases in the con-

text of extraordinary rendition are very likely to pre-

sent serious questions relating to private diplomatic

assurances from foreign countries received by federal!

officials, and this feature of such claims opens the

door to graymail.

A. Assurances

10 We take judicial notice of the existence of this unclas

sified report and the scope of its contents, including the limited

discussion of assurances. Notice is taken only that the report

alleges that assurances were received, not as to the truth of

that allegation or the reliability of those assurances

~~ ao a _ a et atl Rr,

43a

The regulations promulgated pursuant to the

FARRA explicitly authorize the removal of an alien

to a foreign country following receipt from that coun-

try of sufficiently reliable assurances that the alien

will not be tortured. See 8 C_F.R. § 208.18(c). Should

we decide to extend Bivens into the extraordinary

rendition context, resolution of these actions will re-

quire us to determine whether any such assurances

were received from the country of rendition and

whether the relevant defendants relied upon them in

good faith in removing the alien at issue.

Any analysis of these questions would neces-

sarily involve us in an inquiry into the work of for-

eign governments and several federal agencies, the

nature of certain classified information, and the ex-

tent of secret diplomatic relationships. An investiga-

tion into the existence and content of such assur-

ances would potentially embarrass our government

through inadvertent or deliberate disclosure of in-

formation harmful to our own and other states.!!

Given the general allocation of authority over foreign

relations to the political branches and the decidedly

limited experience and knowledge of the federal judi-

Clary regarding such matters, such an investigation

11 This risk is not necessarily abated by the undertak-

ings of counsel. See, e.g., United States v. Sattar, 395 F. Supp.

2d 79 (S.D.N.Y. 2005) (denying attorney Lynne Stewart's mo-

tion for a judgment of acquittal following her conviction by a

jury of, inter alia, conspiring to defraud the United States,

conspiring to provide material support to carry out murder and

kidnap in a foreign country, and making false statements).

44a

would also implicate grave concerns about the sepa-

ration of powers and our institutional competence.

See, e.g., Kiyemba v. Obama, 561 F.3d 509, 515, 385

U.S. App. D.C. 198 (D.C. Cir. 2009) ("[SJeparation of

powers principles . . . preclude the courts from sec-

ond-guessing the Executive's assessment of the like-

lihood a detainee wil) be tortured by a foreign sover-

eign."). These considerations strongly counsel

hesitation in acknowledging a Bivens remedy in this

context.

B. Graymail

As emphasized above, Arar invokes Bivens to

challenge policiés promulgated and pursued by the

executive branch, not simply isolated actions of indi-

vidual federal employees. Such an extension of

Bivens is without precedent and implicates questions

of separation of powers as well as sovereign immu-

nity. This, by itself, counsels hesitation; there is fur-

ther reason to hesitate where, as in this case, the

challenged government policies are the subject of

classified communications: a possibility that such

suits will make the government "vulnerable to

'graymail,' i.e., individual lawsuits brought to induce

the [government] to settle a case (or prevent its fil-

ing) [*579] out of fear that any effort to litigate the

action would reveal classified information that may

undermine ongoing covert operations,” or otherwise

compromise foreign policy efforts. Tenet v. Doe, 544

U.S. 1, 11, 125 S. Ct. 1230, 161 L. Ed. 2d 82 (2005).

We cast no aspersions on Arar, or his lawyers; this

45a

dynamic inheres in any case where there is a risk

that a defendant might "disclose classified informa-

tion in the course of a trial." United States v. Pappas,

94 F.3d 795, 799 (2d Cir. 1996). This is an endemic

risk in cases (however few) which involve a claim like

Arar's.

The risk of graymail is itself a special factor

which counsels hesitation in creating a Bivens rem-

edy. There would be hesitation enough in an ordi-

nary graymail case, i.e., where the tactic is employed

against the government, which can trade settlement

cash (or the dismissal of criminal charges) for se-

crecy. See Tenet, 544 U.S. at 11; Pappas, 94 F.3d at

799. But the graymail risk in a Bivens rendition case

is uniquely troublesome. The interest in protecting

military, diplomatic, and intelligence secrets is lo-

cated (as always) in the government; yet a Bivens

claim, by definition, is never pleaded against the

government. See, e.g., Malesko, 534 U.S. at 70. So in

a Bivens case, there is a dissociation between the

holder of the non-disclosure interest (the govern-

ment, which cannot be sued directly under Bivens)

and the person with the incentive to disclose (the

defendant, who cannot waive, but will be lable for

any damages assessed). In a rendition case, the

Bivens plaintiff could in effect pressure the individ-

ual defendants until the government cries uncle.

Thus any Bivens action involving extraordinary ren-

dition would inevitably suck the government into the

case to protect its considerable interests, and--if dis-

46a

closure is ordered--to appeal, or to suffer the disclo-

sure, or to pay.

This pressure on the government to pay a set-

tlement has (at least) two further perverse effects.

First, a payment from the Treasury tends to obviate

any payment or contribution by the individual de-

fendants. Yet, "[Bivens] is concerned solely with de-

terring the unconstitutional acts of individual! offi-

cers" by extracting payment from individual

wrongdoers. Malesko, 534 U.S. at 71. When the gov-

ernment elects to settle a Bivens case which is sus-

ceptible to graymail, the individual wrongdoer pays

nothing and the deterrent effect is lost. Second, the

individual defendant in such a case has no incentive

to resist discovery that imperils government inter-

ests; rather, discovery induces the government to

settle. So in the extraordinary rendition context,

there is a risk (or likelihood) that the government

effectively becomes the real defendant in interest,

and the named defendants become proxies that the

government cannot control. Precisely because Bivens

has never been approved as a Monell-like vehicle for

challenging government policies, this factor also

counsels hesitation in extending a private damages

action 1n this context.

12 Judge Calabresi does not discount the risk of gray-

mail; he just minimizes the harm, equating it with settlement

pressures that routinely inhere in section 1983 litigation. How-

ever, "graymai)" is a term of art, signifying the use of military

or intelligence information as hostage for payment of money or

a plea bargain. The prospect of graymail does not induce Judge

Calabresi to pause because he sees graymail as part of the "ju-

In the end, a Bivens action based on rendition

is--in all but name--a claim [*580] against the gov-

ernment.!3 [t is not for nothing that Canada (the gov-

ernment, not an individual] officer of it) paid Arar $

10 million dollars.

XII

In the small number of contexts in which

courts have implied a Bivens remedy, it has often

been easy to identify both the line between constitu-

tional and unconstitutional conduct, and the alterna-

tive course which officers should have pursued. The

guard who beat a prisoner should not have beaten

him; the agent who searched without a warrant

should have gotten one; and the immigration officer

who subjected an alien to multiple strip searches

without cause should have left the alien in his

clothes. This distinction may or may not amount toa

special factor counseling hesitation in the implication

dicial structures that facilitate the giving of compensation, at

least to innocent victims... ." See Dissent of Judge Calabresi

at 16.

13 Tt is telling that, according to the Deputy Assistant

Attorney General, Mr. Arar and his attorney went to the United

States Congress and requested--without success--that it "clar-

ify the ambiguity [in this area] with legislation and . . . give

(Mr. Arar] reparations." Transcript of Arar In banc Oral Argu-

ment at 49. Cf. 153 Cong. Rec. D1384-02 (Oct. 18, 2007); Mat-

thew Jaffe, Congress Hears Testimony in Arar Torture Case,

ABC News, Oct. 18, 2007,

http://abcnews.go.com/Pohtics/story ?1d=3746371&page=1.

48a

of a Bivens remedy. But it is surely remarkable that

the context of extraordinary rendition is so different,

involving as it does a complex and rapidly changing

legal framework beset with critical legal judgments

that have not yet been made, as well as policy

choices that are by no means easily reached.

Consider: should the officers here have let

Arar go on his way and board his flight to Montreal?

Canada was evidently unwilling to receive him; it

was, after all, Canadian authorities who identified

Arar as a terrorist (or did something that led their

government to apologize publicly to Arar and pay

him $ 10 million).

Should a person identified as a terrorist by his

own country be allowed to board his plane and go on

to his destination? Surely, that would raise questions

as to what duty is owed to the other passengers and

the crew.

Or should a suspected terrorist en route to

Canada have been released on the Canadian border--

over which he could re-enter the United States vir-

tually at will? Or should he have been sent back

whence his plane came, or to some third country?

Should those governments be told that Canada

thinks he is a terrorist? If so, what country would

take him?

Or should the suspected terrorist have been

sent to Guantanamo Bay or--if no other country

49a

would take him--kept in the United States with the

prospect of release into the general population? See

Zadvydas v. Davis, 5383 U.S. 678, 699-700, 121 S. Ct.

2491, 150 L. Ed. 2d 653 (2001).

None of this is to say that extraordinary rendi-

tion is or should be a favored policy choice. At the

same time, the officials required to decide these

vexed issues are "subject to the pull of competing ob-

ligations." Lombardi v. Whitman, 485 F.3d 73, 83 (2d

Cir. 2007). Many viable actions they might consider

"clash with other equally important governmental

responsibilities." Pena v. DePrisco, 432 F.3d 98, 114

(2d Cir. 2005) (internal quotation marks omitted).

Given the ample reasons for pause already discussed,

we need not and do not rely on this consideration in

concluding that it is inappropriate to extend Bivens

to this context. Still, Congress is the appropriate

branch of government to decide under what circum-

stances (if any) these kinds of policy decisions--which

are directly related to the security of the population

and the foreign affairs of the country--should [*581]

be subjected to the influence of litigation brought by

aliens.

XIII

All of these special factors notwithstanding,

we cannot ignore that, as the panel dissent put it,

"there is a long history of judicial review of Executive

and Legislative decisions related to the conduct of

foreign relations and national security." Arar, 532

50a

F.3d at 213 (Sack, J., concurring in part and dissent-

ing in part). Where does that leave us? We recognize

our limited competence, authority, and jurisdiction to

make rules or set parameters to govern the practice

called rendition. By the same token, we can easily

locate that competence, expertise, and responsibility

elsewhere: in Congress. Congress may be content for

the Executive Branch to exercise these powers with-

out judicial check. But if Congress wishes to create a

remedy for individuals like Arar, it can enact legisia-

tion that includes enumerated eligibility parameters,

delineated safe harbors, defined review processes,

and specific relief to be afforded. Once Congress has

performed this task, then the courts in a proper case

will be able to review the statute and provide judicial

oversight to the "Executive and Legislative decisions

[which have been made with regard] to the conduct

of foreign relations and national security."!4

Judge SACK's dissent deems "artificial" our

characterization of the new Bivens context in this

case as "entirely one of ‘international rendition, spe-

cifically extraordinary rendition." See Dissent of

Judge Sack at 34. We would have thought it would

be common ground that the context of this appeal is

extraordinary rendition. Judge Sack, however, recon-

14 Dissents by their nature express views that are not

the law. These dissenting opinions contain words and passages

that are emotional and (in our respectful view) overwrought.

Accordingly, there is no need for extended engagement. A brief

survey will suffice.

bla

ceives the context, at some points characterizing the

constitutional tort as encompassing only those events

that occurred within the United States while at other

points requiring that the entire narrative be consid-

ered as a seamless whole, JFK to Syria. Compare id.

at 34 with id. at 36-37. But this case is emphatically

and obviously about extraordinary rendition (and its

alleged abuse), as is elsewhere acknowledged in the

opinions of Judge Calabresi and Judge Parker. See

Dissent of Judge Calabresi at 15; Dissent of Judge

Parker at 2.

As to the extraordinary rendition context,

Judge Sack (joined by all dissenters) makes the fol-

lowing constructive (and telling) concessions: "It is

difficult to deny the existence of 'special factors coun-

seling hesitation’ in this case[,]" Dissent of Judge

Sack at 47; "It... may be that to the extent actions

against ‘policymakers' can be equated with lawsuits

against policies, they may not survive Iqball[,|" id. at

49; and, "We share what we think to be the major-

ity's intuition that this case would likely turn

largely, if not entirely, on decisions of national secu-

rity and diplomacy ... [,]" id. at 56.

Judge CALABRESI's dissent urges that we

forgo considering whether specific factors counsel]

hesitation under Bivens so that we could instead re-

mand to see whether the case might eventually be

dismissed as unmanageable under the state secrets

privilege--which Judge Calabresi seems equally to

disapprove. See Dissent of Judge Calabresi at 13

52a

(state secrets privilege is the subject of "significant

criticism, much of it warranted"). Thus Judge

Calabresi professes hesitance to "hesitate" with re-

spect to Bivens, as well as skepticism of the state

secrets privilege. In doing so, he avoids fully endors-

ing either of the primary potential resolutions of this

appeal, and hardly makes a choice at all. Even so,

the authority cited by Judge Calabresi, which sug-

gests deciding whether a claim is stated before doing

Bivens analysis, is inapposite. Judge Calabresi fails

to consider that application of the state secrets privi-

lege is often performed witness-by-witness; question-

by-question; page-by-page; paragraph-by-paragraph--

and can take years. It is not judicial activism to hesi-

tate before requiring such an exercise in circum-

stances in which a Bivens claim may not le. In any

event, the state secrets doctrine has roots in separa-

tion of powers principles, and is not itself devoid of

constitutional implications. See Dep't of Navy uv.

Egan, 484 U.S. 518, 527, 108 S. Ct. 818, 98 L. Ed. 2d

918 (1988) ("The authority to protect [information

related to national security] falls on the President as

head of the Executive Branch and as Commander in

Chief."); El-Masri v. United States, 479 F.3d 296, 303

(4th Cir. 2007) ("Although the state secrets privilege

was developed at common law, it performs a function

of constitutional significance, because it allows the

executive branch to protect information whose se-

crecy 1s necessary to its military and foreign-affairs

responsibilities.").

Id.

O3a

[*582] CONCLUSION

For the reasons stated above, the judgment of

the District Court is affirmed. The panel opinion is

hereby vacated. CALABRESI, POOLER, SACK, and

PARKER, Circuit Judges, dissent. Each joins fully in

all the dissenting opinions, but each writes sepa

rately to emphasize particular aspects of these dis

sents

54a

Sack, Circuit Judge, joined by Judges

Calabresi, Pooler, and Parker, concurring in

part and dissenting in part.

The opinion of the en banc majority! departs

from the opinion of the pane] majority in two impor

tant and salutary respects

First, the Court now explicitly acknowledges

that "this is not a typical immigration case." Supra

at [24]. We would prefer that the Court concede that

this is not an immigration case at all -- it is about the

alleged unconstitutional treatment of an alien sus-

pected of terrorism -- but we welcome the resulting

decision not to dismiss Arar's claims as jurisdiction-

ally barred by the Immigration and Nationality Act

("INA"), see supra at [23], and not to rely, in the

Court's Bivens analysis, upon the INA's remedial

scheme and the well nigh unlimited executive power

that the INA bestows, see supra at [31]. Compare

! Judges Straub and Sotomayor voted in the en banc

poll but do not participate in deciding the case en banc because

Judge Straub took senior status prior to the en banc hearing

and Judge Sotomayor has been elevated to the Supreme Court.

Judge Katzmann recused himself from both the poll and the en

banc hearing. Senior Judge McLaughlin, as a member of the

original panel, has participated in the en banc consideration.

Judge Calabresi participated in he en banc hearing, but has

taken senior status since the argument. The author of this opin-

ion has also taken senior status since the hearing, but was a

member of the pane] that heard the appeal and therefore, lke

Judge McLaughlin, would have been able to have participated

in the en banc hearing in any event. Judge Lynch, who joined

the Court since the argument, has not participated in these

proceedings

Arar v. Ashcroft, 532 F.3d 157, 169-71 & n.10, 179-81

(2d Cir. 2008) ("Arar Panel Op.").

In its second departure from the panel deci-

sion, the Court declines to hold that if, as Arar al

leges, government conduct "denied [him] effective

access to consular assistance, the courts, his lawyers,

and family members in order to effectuate his re-

moval to Syria," Arar's constitutional rights would

not have thereby been violated. Supra at [20] (inter-

nal quotation marks omitted); compare Arar Panel

Op., 532 F.3d at 184-89. We agree with this approach

too. Indeed, we think both of these departures are

significant enough in themselves to have rendered

the unwieldy and often wasteful en banc process

worthwhile here.

We disagree, however, with the majority's con-

tinued insistence that Arar cannot employ a Bivens

remedy to seek compensation for his injuries at the

hands of government agents. The majority reaches

that conclusion by artificially dividing the complaint

into a domestic claim that does [*583] not involve

torture -- viz., "[Arar's] claim regarding detention in

the United States," supra at [6] -- and a foreign

claim that does -- viz., "[Arar's] claims for detention

and torture in Syria," id. The majority then dis-

misses the domestic claim as inadequately pleaded

and the foreign claim as one that cannot "be asserted

under Bivens" in light of the opinion's "dominant

holding” that "in the context of involuntary rendi-

56a

tion, hesitation is warranted by special factors." Su-

pra at [6-7].

In our view, even treating Arar's claim for

mistreatment while in United States custody and

denial of access to United States counsel and United

States courts as, arguendo, a claim that is entirely

isolated from the remainder of Arar's allegations, it

was adequately pleaded in his highly detailed com-

plaint.

As we will explain, however, the complaint's

allegations cannot properly be divided into claims for

mistreatment in the United States and "claims for

detention and torture in Syria." Arar's complaint of

mistreatment sweeps more broadly than that, en-

compassing a chain of events that began with his

interception and detention at New York's John F.

Kennedy Airport ("JFK") and continued with his be-

ing sent abroad in shackles by government agents

with the knowledge that he would likely be tortured

as a result. Viewed in this light, we conclude that

Arar's allegations do not present a "new context" for

a Bivens action.

And even were it a new context, we disagree

with what appears to be the en banc majority's test

for whether a new Bivens action should be made

available: the existence vel non of "special factors

counselling hesitation." First, we think heeding "spe-

cial factors" relating to secrecy and security is a form

of double counting inasmuch as those interests are

57a

fully protected by the state-secrets privilege. Second,

in our view the applicable test is not whether "“spe-

cial factors" exist, but whether after "paying particu-

lar heed to" them, a Bivens remedy should be recog-

nized with respect to at least some allegations in the

complaint. Applying that test, we think a Bivens

remedy is available.

We hasten to add that under the proper for-

mulation of the test, we might well agree with the en

banc majority that a Bivens action is not available in

the context of an alien's "claims for detention and

terture in Syria." But, as we will explain, Arar's alle-

gations are not so limited.

Our overriding concern, however, is with the

majority's apparent determination to go to whatever

length necessary to reach what it calls its "dominant

holding": that a Bivens remedy is unavailable. Such

a holding is unnecessary inasmuch as the govern-

ment assures us that this case could likely be re-

solved quickly and expeditiously in the district court

by application of the state-secrets privilege.

What is at stake on this appeal is not whether

Arar will, through this litigation, obtain compensa-

tion for the injury he suffered as a result of the mal-

feasance of employees of the United States. In light

of the many hurdles he would have to surmount,” he

¢ See, e.g., Arar Panel Op., 532 F.3d at 193 et seq.

(Sack, J., concurring in part and dissenting in part) ("Arar par-

tial pane! dissent”)

58a

would be extremely unlikely to do so. Rather, the

question for the Court is, and has from the outset

been, the manner by which that likely result will (or

will not) be reached. We fear that the majority is so

bound and determined to declare categorically that

there is no Bivens action in the present "context,"

that it unnecessarily makes dubious law.

{*584] For those reasons, we respectfully dis-

sent.

i. Arar's Allegations

The majority's recitation of the facts, see supra

[8-13], is generally accurate, but anodyne. A com-

plete assessment of the majority opinion and the im-

plications of the Court's decision is not possible with-

out a fuller account of the troubling allegations

contained in Arar's complaint.

"Because this is an appeal from a dismissal of

a complaint under Fed. R. Civ. P. 12(b)(6), we view

the allegations of the complaint in the light most fa-

3 We do not dissent from the majority's conclusions as to

personal jurisdiction. The author of this opinion, as a member

of the panel that originally heard this appeal, concurred in the

panel opinion's conclusion that relief under the Torture Victim

Protection Act is unavailable to Arar. Having reviewed the ar-

guments to the contrary stated in Judge Pooler's partial dis-

sent, infra, for the reasons stated in it, he now agrees that the

relief under the Act is available to Arar. Inasmuch as the en

banc Court now holds that it 1s not available, however, this

opinion accepts its unavailability as a matter of law for the

purposes of the Bivens analysis that follows.

o9a

vorable to appellant." Paycom Billing Servs. v.

MasterCard Int'l, Inc., 467 F.3d 283, 285 (2d Cir.

2006). The district court's opinion carefully and fully

sets forth Arar's allegations. See Arar v. Ashcroft,

414 F. Supp. 2d 250, 252-57 (E.D.N.Y. 2006). We ad-

here to that account nearly verbatim. 4

A. Arar's Apprehension, Detention, and

Forcible Transportation to Syria

Arar, who is in his thirties, is a native of

Syria. He immigrated to Canada with his family

when he was a teenager. He is a dual citizen of Syria

and Canada. He resides in Ottawa. (Arar, 414 F.

Supp. 2d at 252.)

In September 2002, while vacationing with his

family in Tunisia, he was called back to work by his

employer® to consult with a prospective client. He

purchased a return ticket to Montreal with stops® in

Zurich and New York. He left Tunisia on September

25, 2002. (Id.)

4 Citations to the district court opinion appear in paren-

theses. The footnotes and subheadings are ours.

5 Avar was employed by a privately held Massachusetts

based developer and supplier of software for technical comput-

ing. See Compl. P 12.

6 That is, changes of plane.

60a

On September 26, 2002, Arar arrived from

Switzerland at JFK to catch a connecting flight to

Montreal. Upon presenting his passport to an immi-

gration inspector, he was identified as "the subject of

a... lookout as being a member of a known terrorist

organization." Compl. Ex. D (Decision of J. Scott

Blackman, Regional Director) at 2. He was interro-

gated by various officials for approximately eight

hours.’ The officials asked Arar if he had contacts

with terrorist groups, which he categorically denied.

Arar was then transported to another site at JFK,

where he was placed in solitary confinement. He al-

leges that he was transported in chains and shackles

and was left in a room with no bed and with lights on

throughout the night. (Arar, 414 F. Supp. 2d at 258.)

The following day, starting at approximately

9:00 a.m., two FBI agents interrogated Arar for

about five hours, asking him questions about Osama

bin Laden, Iraq, and Palestine. Arar alleges that the

agents yelled and swore at him throughout the inter-

rogation. They ignored his repeated [*585] requests

to make a telephone call and see a lawyer. At 2:00

y.m. that day, Arar was taken back to his cell,

chained and shackled, and provided a cold McDon-

ald's meal -- his first food in nearly two days. (Id.)

That evening, Arar was given an opportunity

to voluntarily return to Syria, but refused, citing a

7 According to the complaint, on that day, Arar was

questioned first by an FBI agent for five hours, Compl. P 29,

then by an immigration officer for three hours, id. P 31.

6la

fear of being tortured if returned there and insisting

that he be sent to Canada or returned to Switzer-

land. An immigration officer told Arar that the

United States had a "special interest" in his case and

then asked him to sign a form, the contents of which

he was not allowed to read. That evening, Arar was

transferred, in chains and shackles, to the Metropoli-

tan Detention Center ("MDC") in Brooklyn, New

York,’ where he was strip-searched and placed in

solitary confinement. During his initial three days at

MDC, Arar's continued requests to meet with a law-

yer and make telephone calls were refused. (Id.)

§ This is the same federal prison in which, less than a

year earlier, Javaid Iqbal was allegedly mistreated. Iqbal, a

Muslim inmate accused of conspiracy to defraud the United

States and fraud with identification and held post-9/11 in the

MDC, allegedly suffered "unconstitutional actions against him

in after separation from the general prison population." Iqbal v.

Hasty, 490 F.3d 143, 147, 148 n.1 (2d Cir. 2007). We held, with

respect to Iqbal's subsequent Bivens action, that such treat-

ment was not protected, as a matter of law, by the doctrine of

qualified immunity. Id. at 177-78. The Supreme Court subse-

quently reversed that judgment and remanded, holding that the

complaint was insufficiently pleaded as to two high-ranking

official defendants. See Ashcroft v. Igbal, 129 S. Ct. 1937, 1952,

173 L. Ed. 2d 868 (2009). On September 29, 2009, the remain-

ing parties in Iqbal filed a document in this Court stipulating

that the appeal was to be "withdrawn from active consideration

before the Court ... because a settlement has been reached in

principle between Javaid Iqbal and defendant United States."

Iqbal v. Hasty, No. 05-5768-cv (2d Cir. Sept. 30, 2009), "Stipula-

tion Withdrawing Appeal from Active Consideration" dated

September 29, 2009.

62a

On October 1, 2002,9 the Immigration and

Naturalization Service ("INS") initiated removal pro-

ceedings against Arar, who was charged with being

temporarily inadmissible because of his membership

in al-Qaeda, a group designated by the Secretary of

State as a foreign terrorist organization. Upon being

given permission to make one telephone call, Arar

called his mother-in-law in Ottawa, Canada. (Id.)

Upon learning of Arar's whereabouts, his fam-

ily contacted the Office for Consular Affairs ("Cana-

dian connection with his confinement under harsh

conditions . . . Consulate")!° and retained an attor-

ney, Amal Oummih, to represent him. The Canadian

Consulate had not been notified of Arar's detention.

On October 3, 2002, Arar received a visit from Mau-

reen Girvan from the Canadian Consulate, who,

when presented with the document noting Arar's in-

admissibility to the United States, assured Arar that

removal to Syria was not an option. On October 4,

2002, Arar designated Canada as the country to

which he wished to be removed. (Id.)

On October 5, 2002, Arar had his only meeting

with counsel. The following day, he was taken in

chains and shackles to a room where approximately

seven INS officials questioned him about his reasons

for opposing removal to Syria. His attorney was not

provided advance notice of the interrogation, and

9]1.e., five days after Arar's arrival in the United States.

10 The consulate is in New York City.

63a

Arar further alleges that U.S. officials misled him

into thinking his attorney had chosen not to attend.

During the interrogation, Arar continued to express

his fear of being tortured if [*586] returned to Syria.

At the conclusion of the six-hour interrogation, Arar

was informed that the officials were discussing his

case with "Washington, D.C." Arar was asked to sign

a document that appeared to be a transcript. He re-

fused to sign the form. (/d. at 253-54.)

The following day, October 7, 2002, attorney

Oummih received two telephone calls informing her

that Arar had been taken for processing to an INS

office at Varick Street in Manhattan, that he would

eventually be placed in a detention facility in New

Jersey, and that she should call back the following

morning for Arar's exact whereabouts. However,

Arar alleges that he never left the MDC and that the

contents of both of these phone calls to his counsel

were false and misleading. (Jd. at 254.)

That same day, October 7, 2002, the INS Re-

gional Director, J. Scott Blackman, determined from

classified and unclassified information that Arar is

"clearly and unequivocally" a member of al-Qaeda

and, therefore, "clearly and unequivocally inadmissi-

ble to the United States" under 8 U.S.C. §

1182(a)(3)(B)i)(V). See Compl. Ex. D. at 1, 3, 5.

Based on that finding, Blackman concluded "that

there are reasonable grounds to believe that [Arar] is

a danger to the security of the United States." Id. at

64a

6 (brackets in original). (Arar, 414 F. Supp. 2d at

254.)

At approximately 4:00 a.m. on October 8,

2002, Arar learned that, based on classified informa-

tion, INS regional director Blackman had ordered

that Arar be sent to Syria and that his removal there

was consistent with Article Three of the United Na-

tions Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment

("CAT"). Arar pleaded for reconsideration but was

told by INS officials that the agency was not gov-

erned by the "Geneva Conventions” and that Arar

was barred from reentering the country for a period

of five years and would be admissible only with the

permission of the Attorney General. (Id.)

Later that day, Arar was taken in chains and

shackles to a New Jersey airfield, where he boarded

a small jet airplane bound for Washington, D.C.

From there, he was flown to Amman, Jordan, arriv-

ing there on October 9, 2002. He was then handed

over to Jordanian authorities, who delivered him to

the Syrians later that day. At this time, U.S. officials

had not informed either Canadian Consulate official

Girvan or attorney Oummih that Arar had been re-

moved to Syria. Arar alleges that Syrian officials re-

fused to accept Arar directly from the United States.

(Id.)

Arar's Final Notice of Inadmissability ("Final

Notice") ordered him removed without further in-

quiry before an immigration judge. See Compl. Ex.

D. According to the Final Notice: "The Commissioner

of the Immigration and Naturalization Service has

determined that your removal to Syria would be con-

sistent with [CAT]." Id. (brackets in original). The

Final Notice was dated October 8, 2002, and was

signed by Deputy Attorney General Larry Thompson.

After oral argument in the district court on the de-

fendants' motions to dismiss, in a letter dated Au-

gust 18, 2005, counsel for Arar said that Arar had

received the Final Notice within hours of boarding

the aircraft taking him to Jordan. (Arar, 414 F.

Supp. 2d at 254.)

B. Arar's Detention in Syria

During his ten-month period of detention in

Syria, Arar alleges, he was placed in a "grave" cell

measuring six feet long, seven feet high, and three

feet wide. The cell was located within the Palestine

Branch of the Syrian Military Intelligence ("Pales-

tine Branch"). The cell was damp and cold, contained

very little light, and [*587] was infested with rats,

which would enter the cell through a small aperture

in the ceiling. Cats would urinate on Arar through

the aperture, and sanitary facilities were nonexis-

tent. Arar was allowed to bathe himself in cold water

once per week. He was prohibited from exercising

and was provided barely edible food. Arar lost forty

pounds during his ten-month period of detention in

Syria. (Id.)

66a

During his first twelve days in Syrian deten-

tion, Arar was interrogated for eighteen hours per

day and was physically and psychologically tortured.

He was beaten on his palms, hips, and lower back

with a two-inch-thick electric cable. His captors also

used their fists to beat him on his stomach, his face,

and the back of his neck. He was subjected to excru-

ciating pain and pleaded with his captors to stop, but

they would not. He was placed in a room where he

could hear the screams of other detainees being tor-

tured and was told that he, too, would be placed in a

spine-breaking "chair," hung upside down in a "tire"

for beatings, and subjected to electric shocks. To

lessen his exposure to the torture, Arar falsely con-

fessed, among other things, to having trained with

terrorists in Afghanistan, even though he had never

been to Afghanistan and had never been involved in

terrorist activity. (Jd. at 255.)

Arar alleges that his interrogation in Syria

was coordinated and planned by U.S. officials, who

sent the Syrians a dossier containing specific ques-

tions. As support for this allegation, Arar notes that

the interrogations in the United States and Syria

contained identical questions, including a _ specific

question about his relationship with a particular in-

dividual wanted for terrorism. In return, Arar al-

leges, the Syrian officials supplied U.S. officials with

all information extracted from Arar; Arar cites a

statement by one Syrian official who has publicly

stated that the Syrian government shared informa-

tion with the United States that it extracted from

67a

him. See Compl. Ex. E (January 21, 2004 transcript

of CBS's Sixty Minutes II: "His Year In Hell"). (I[d.)

C. Arar's Contact with the Canadian Govern-

ment While Detained in Syria

The Canadian Embassy contacted the Syrian

government about Arar on October 20, 2002, and the

following day, Syrian officials confirmed that they

were detaining him. At this point, the Syrian officials

ceased interrogating and torturing Arar. (Id.)

Canadian officials visited Arar at the Pales-

tine Branch five times during his ten-month deten-

tion. Prior to each visit, Arar was warned not to dis-

close that he was being mistreated. He complied but

eventually broke down during the fifth visit, telling

the Canadian consular official that he was being tor-

tured and kept in a grave. (Id.)

Five days later, Arar was brought to a Syrian

investigation branch, where he was forced to sign a

confession stating that he had participated in terror-

ist training in Afghanistan even though, Arar states,

he has never been to Afghanistan or participated in

any terrorist activity. Arar was then taken to an

overcrowded Syrian prison, where he remained for

six weeks. (Id.)

On September 28, 2003, Arar was transferred

back to the Palestine Branch, where he was held for

one week. During this week, he heard other detain

68a

ees screaming in pain and begging for their torture

to end. (Id.)

On October 5, 2003, Syria, without filing any

charges against Arar, released him into the custody

of Canadian Embassy officials in Damascus. He was

flown to Ottawa [*588] the following day and re-

united with his family. (Id.)

Arar contends that he is not a member of any

terrorist organization, including al-Qaeda, and has

never knowingly associated himself with terrorists,

terrorist organizations, or terrorist activity. Arar

claims that the individual about whom he was ques-

tioned was a casual acquaintance whom Arar had

last seen in October 2001. He believes that he was

removed to Syria for interrogation under torture be-

cause of his casual acquaintance with this individual

and others believed to be involved in terrorist activ-

ity. But Arar contends "on information and belief"

that there has never been, nor is there now, any rea-

sonable suspicion that he was involved in such activ-

ity. Compl. P 2. (Arar, 414 F. Supp. 2d at 255-56

(footnote omitted).)

Arar alleges that he continues to suffer ad-

verse effects from his ordeal in Syria. He claims that

he has trouble relating to his wife and children, suf-

fers from nightmares, is frequently branded a terror

ist, and is having trouble finding employment due to

his reputation and inability to travel in the United

States. Ud. at 256.)

69a

D. U.S. Policy Relating to Interrogation of De-

tainees by Foreign Governments

The complaint alleges on information and be-

lief that Arar was removed to Syria under a covert

U.S. policy of "extraordinary rendition,” according to

which individuals are sent to foreign countries to

undergo methods of interrogation not permitted in

the United States. The extraordinary rendition policy

involves the removal of "non-U.S. citizens detained in

this country and elsewhere and suspected -- rea.

sonably or unreasonably -- of terrorist activity to

countries, including Syria, where interrogations un-

der torture are routine." Compl. P 24. Arar alleges on

information and belief that the United States sends

individuals "to countries like Syria precisely because

those countries can and do use methods of interroga-

tion to obtain information from detainees that would

not be morally acceptable or legal in the United

States and other democracies." Id. The complaint

further alleges that federal officials involved with

extraordinary rendition "have facilitated such hu-

man rights abuses, exchanging dossiers with intelli

gence officials in the countries to which non-U.S.

citizens are removed." Id. The complaint also alleges

that the United States involves Syria in its extraor-

dinary rendition program to extract counter-

terrorism information. (Arar, 414 F. Supp. 2d at

256.)

70a

This extraordinary rendition program is, Arar

alleges, not part of any official or declared U.S. pub-

lic policy; nevertheless, it has received extensive at-

tention in the press, where unnamed U:S. officials

and certain foreign officials have admitted to the ex-

istence of such a policy. Arar details a number of ar-

ticles in the mainstream press recounting both the

incidents of this particular case and the extraordi-

nary rendition program more broadly. These articles

are attached as Exhibit C of his complaint. (/d. at

256-57.)

Arar alleges that the defendants directed the

interrogations in Syria by providing information

about Arar to Syrian officials and receiving reports

on Arar's responses. Consequently, the defendants

conspired with, and/or aided and abetted, Syrian of-

ficials in arbitrarily detaining, interrogating, and

torturing Arar. Arar argues in the alternative that,

at a minimum, the defendants knew or at least

should have known that there was a substantial like-

lihood that he would be tortured upon his removal to

Syria. Ud. at 257.)

E. Syria's Human Rights Record

Arar's claim that he faced a likelihood of tor-

ture in Syria is supported by U.S. State [*589] De-

partment reports on Syria's human rights practices.

See, e.g., Bureau of Democracy, Human Rights, and

Labor, United States Department of State, 2004

Country Reports on Human Rights Practices (Re

Tia

leased February 28, 2005) ("2004 Report"). According

to the State Department, Syria's "human rights re-

cord remained poor, and the Government continued

to commit numerous, serious abuses .. . includ[ing]

the use of torture in detention, which at times re-

sulted in death." Id. at 1. Although the Syrian consti-

tution officially prohibits such practices, "there was

credible evidence that security forces continued to

use torture frequently" Id. at 2. The 2004 Report

cites "numerous cases of security forces using torture

on prisoners in custody." Id. Similar references

throughout the 2004 Report, as well as State De-

partment reports from prior years, are legion. See,

e.g., Compl. Ex. A (2002 State Department Human

Rights Report on Syria). (Arar, 414 F. Supp. 2d at

257.)\)

F. The Canadian Government Inquiry

On September 18, 2006, a Commission of In-

quiry into the Actions of Canadian Officials in Rela-

tion to Maher Arar ("Arar Commission"), established

by the government of Canada to investigate the Arar

affair, issued a three-volume report. See Arar Com-

mission, Report of the Events Relating to Maher

Arar (2006) ("Commission Report").12 A press release

11 The district court's description of the facts as alleged

in the complaint ends here.

12 On October 23, 2007, this Court granted Arar's mo-

tion to take judicial notice of the Report insofar as its existence

and the scope of its contents were concerned, but denied the

motion insofar as 1t may have sought judicial notice of the facts

(2a

issued by the Commission summarized: "On Maher

Arar the Commissioner [Dennis O'Connor] comes to

one important conclusion: 'I am able to say categori-

cally that there is no evidence to indicate that Mr.

Arar has committed any offence or that his activities

constitute a threat to the security of Canada." Arar

Commission, Press Release, Arar Commission Re-

leases Its Findings on the Handling of the Maher

Arar Case (Sept. 18, 2006) (boldface in original),

available at http://www.ararcommission.ca/eng/

ReleaseFinal-Sept 18.pdf (copy on file with the Clerk

of Court). On January 26, 2007, the Office of the

Prime Minister of Canada issued the following an-

nouncement:

Prime Minister Stephen Harper today re-

leased the letter of apology he has sent to

Maher Arar and his family for any role

Canadian ofucials may have played in

what happened to Mr. Arar, Monia

Mazigh and their family in 2002 and

2003.

"Although the events leading up to this

terrible ordeal happened under the previ-

ous government, our Government will do

everything in its power to ensure that the

issues raised by Commissioner O'Connor

asserted in the report. But cf. supra at [4-5] (employing the

report as the source for facts relating to Canadian involvement

in the Arar incident).

43a

are addressed,” said the Prime Minister.

"I stncerely hope that these actions will

help Mr. Arar and his family begin a new

and hopeful chapter in their lives."

Canada's New Government has accepted

all 23 recommendations made in Com-

missioner O'Connor's first report, and has

already begun acting upon them. The

Government has sent letters to both the

Syrian and the U.S. governments for-

mally objecting to the treatment of Mr.

Arar. Ministers Day and MacKay have

also expressed Canada's concerns on this

important issue to their American [*590]

counterparts. Finally, Canada has re-

moved Mr. Arar from Canadian lookout

lists, and requested that the United

States amend its own records accordingly.

The Prime Minister also announced that

Canada's New Government has success-

fully completed the mediation process

with Mr. Arar, fulfilling another one of

Commissioner O'Connor's recommenda-

tions. This settlement, mutually agreed

upon by all parties, ensures that Mr. Arar

and his family will obtain fair compensa-

tion, in the amount of $ 10.5 million, plus

legal costs, for the ordeal they have suf.

fered.

74a

Office of the Prime Minister, Press Release, Prime

Minister Releases Letter of Apology to Maher Arar

and His Family and Announces Completion of Me-

diation Process (Jan. 26, 2007), available at

http://pm.ge.ca/eng/ media.asp?id=1509 (last visited

July 15, 2009); see also Margaret L. Satterthwaite,

Rendered Meaningless: Extraordinary Rendition and

the Rule of Law, 75 Geo. Wash. L. Rev. 1333, 1339-40

(2007).

II. The Dismissal of the Fourth Claim for Relief

The fulcrum of the en banc majority's analysis

is its conclusion that this appeal requires us to de-

cide whether "to devise a new Bivens damages ac-

tion" under Wilkie v. Robbins, 551 U.S. 537, 127 S.

Ct. 2588, 2597, 168 L. Ed. 2d 389 (2007). See supra

at [6]. But the majority can characterize Arar's ac-

tion as "new" only by isolating and eliminating the

domestic aspects of the case. It does so in part by af-

firming the district court's dismissal of Arar's

"Fourth Claim for Relief, (Fifth Amendment: Sub-

stantive Due Process -- Domestic Detention)" on the

ground that the claim was insufficiently pleaded. See

supra at [19-21]. We think that ruling to be incor-

rect.

With respect to the conditions of confinement

aspect of this claim, the district court concluded that

Arar was entitled to Fifth Amendment substantive

due process protection and that his rights in that

respect could have been violated by "the deprivations

75a

Arar alleges with respect to his treatment while in

U.S. custody." Arar, 414 F. Supp. 2d at 286. We

agree, and the majority does not decide otherwise.

Supra at [21]. With respect to the access to counsel

and the courts aspect of the claim, the district court

concluded that Arar would be able to state a claim

for interference "with his access to courts in part by

[government officials] lying to his counsel," if he

could “identify 'a separate and distinct right to seek

judicial relief for some wrong." Arar, 414 F. Supp. 2d

at 285 (quoting Christopher v. Harbury, 536 U.S.

403, 414-15, 122 S. Ct. 2179, 153 L. Ed. 2d 413

(2002)). We agree here, too, and the majority does

not decide otherwise.

But the district court nonetheless dismissed

the Fourth Claim for Relief without prejudice. On

pain of forfeiture of the claims, it required Arar (1)

with respect to the mistreatment claim, to “name

those defendants that were personally involved in

the alleged unconstitutional treatment," and, (2)

with respect to the denial of access claim, to replead

"without regard to any [underlying] rendition claim,"

in light of the court's conclusion that no Bivens ac-

tion was available with respect to such a claim, and,

because it was unclear to what underlying relief Arar

was denied access, "identify[ing] the specific injury

he was prevented from grieving." Arar, 414 F. Supp.

76a

2d at 287-88. Arar declined to replead,!% rendering

the dismissal final.

The majority affirms the dismissal of the

fourth claim partly "in view of Arar's rejection of an

opportunity to re-plead." Supra at [21]. While we do

not read that as a suggestion that this claim has

been waived on appeal, we note that any such sug-

gestion would be incorrect. We may review the entire

judgment. See, e.g., Kittay v. Kornsteitn, 230 .F.3d

531, 541 n.8 (2d Cir. 2000) ("[A] disclaimer of intent

to amend the complaint renders the District Court's

judgment final and allows review of the dismissal in

this Court."); Festa v. Local 3 Int'l Brotherhood of

Elec. Workers, 905 F.2d 35, 36-37 (2d Cir. 1990) (per

curiam); Conn. Nat'l Bank v. Fluor Corp., 808 F.2d

957, 960-61 (2d Cir. 1987).

[*591]

A. Specification of Defendants’ Acts and Con-

spiracy Allegations

13 Following the district court's dismissal of the fourth

claim without prejudice and dismissal of the first three claims

with prejudice, Arar moved for certification of a final judgment

on the first three claims to enable him to appeal them immedi-

ately. See Arar v. Ashcroft, No. CV-04-0249 (DGT), 2006 U.S.

Dist. LEXTS 45550, 2006 WI, 1875375 (E.D.N.Y. July 5, 2006).

The district court denied the motion. See id. Arar then declined

to replead the fourth claim, apparently in order to obtain this

Court's early review of the dismissal of the first three claims, ef.

id.

77a

The majority affirms the dismissal of the

Fourth Claim for Relief on the ground that Arar's

complaint does not "specify any culpable action taken

by any single defendant" and fails to allege a con-

spiracy. Supra at [21]. We disagree with each of

these rationales.

Arar should not have been required to "name

those defendants [who] were personally involved in

the alleged unconstitutional treatment." Arar, 414 F.

Supp. 2d at 287. In actions pursuant to 42 U.S.C. §

1983, which are "analog{s]" of the less-common

Bivens action, Ashcroft v. Iqbal, 129 S. Ct. 1937,

1948, 173 L. Ed. 2d 868 (2009) (citation omitted), we

allow plaintiffs to "maintain[] supervisory personnel

as defendants... until [they have] been afforded an

opportunity through at least brief discovery to iden-

tify the subordinate officials who have personal li-

ability." Davis v. Kelly, 160 F.3d 917, 921 (2d Cir.

1998) (citing Second Circuit authority).

Similarly, courts have rejected the dis-

missal of suits against unnamed defen-

dants described by roles ... until the

plaintiff has had some opportunity for

discovery to learn the identities of re-

sponsible officials. Once the supervisory

officer has inquired within the institution

and identified the actual decision-makers

of the challenged action, those officials

may then submit affidavits based on their

personal knowledge of the circumstances.

78a

Id. (citations omitted). It should not be forgot-

ten that the full name of the Bivens case itself is

Bivens v. Six Unknown Named Agents of Fed. Bu-

reau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L.

Ed. 2d 619 (1971) (emphasis added).'4

To be sure, the Supreme Court has recently

set a strict pleading standard for supervisory liabil-

ity claims under Bivens against a former Attorney

General of the United States and the Director of the

FBI." See Iqbal, supra. We do not think, however,

that the Court has thereby permitted governmental

actors who are unnamed in a [*592] complaint auto-

matically to escape personal civil rights liability. A

plaintiff must, after all, have some way to identify a

defendant who anonymously violates his civil rights.

We doubt that Iqbal requires a plaintiff to obtain his

abusers' business cards in order to state a civil rights

claim. Put conversely, we do not think that Iqbal im-

14 The Supreme Court explained: "The agents were not

named in petitioner's complaint, and the District Court ordered

that the complaint be served upon “those federal agents who it

is indicated by the records of the United States Attorney par-

ticipated in the November 25, 1965, arrest of the [petitioner]."

App. 3. Five agents were ultimately served." Id. at 390 n.2; see

also Bivens, Brief for Respondent at *2 n.1, 1970 WL 116900

("The apparent contradiction in the title of this case -- "Un-

known Named" -- arises from the fact that after petitioner filed

his complaint, the United States Attorney supplied the clerk of

the court with the agents' names. However, as the summonses

and their returns indicate, only five agents are apparently

involved (App. 5-24), rather than six as stated in the case title.")

79a

plies that federal government miscreants may avoid

Bivens liability altogether through the simple expe-

dient of wearing hoods while inflicting injury. Some

manner of proceeding must be made available for the

reasons we recognized in Davis.

Whether or not there is a mechanisin available

to identify the "Doe" defendants, moreover, Arar's

complaint does sufficiently name some individual

defendants who personally took part in the alleged

violation of his civil rights. The role of defendant J.

Scott Blackman, formerly Director of the Regional

Office of INS, for example, is, as reflected in the dis-

trict court's explication of the facts, see Arar, 414 F.

Supp. 2d at 252-54, set forth in reasonable detail in

the complaint.'5 So are at least some of the acts of

15 The complaint alleges, inter alia:

Early on October 8, 2002, at about 4 a.m.,

Mr. Arar was taken in chains and shackles to a

room where two INS officials told him that, based

on Mr. Arar's casual acquaintance with certain

named individuals, including Mr. Almalki as well

as classified information, Defendant Blackman,

Regional Director for the Eastern Region of Immi-

gration and Naturalization Services, had decided

to remove Mr. Arar to Syria. Without elaboration,

Defendant Blackman also stipulated that Mr.

Arar's removal would be consistent with Article 3

of CAT... .(Acopy of Defendant Blackman's deci-

sion is attached as Exhibit D [to the complaint]).

Compl. P 47.

80a

the defendant Edward J. McElroy, District Director

of the INS.16

The majority also asserts that Arar does no

more than "allege[] (in passive voice) that his re-

quests to make phone calls ‘were ignored,’ and that

‘he was told' that he was not entitled to a lawyer."

Supra at [21]. But as indicated above, such an iden-

tification of the unnamed defendants by their "roles"

should be sufficient to enable a plaintiff to survive a

motion to dismiss, and subsequently to use discovery

to identify them. And while the majority is correct

that the complaint does not utter the talismanic

words “meeting of the minds” to invoke an agree-

ment among the defendants, see supra at [21], it is

plain that the logistically complex concerted action

allegedly taken to detain Arar and then transport

him abroad implies an alleged agreement by gov-

ernment actors within the United States to act in

concert.

16 The complaint alleges, inter alia:

The only notice given [Arar's counse! prior

to his interrogation late on the evening of Sunday,

October 6, 2002] was a message left by Defen-

dant McElroy, District Director for Immigration

and Naturalization Services for New York City, on

[counsel's] voice mail at work that same [Sunday]

evening. [She] did not retrieve the message until

she arrived at work the next day, Monday morn-

ing, October 7, 2002 -- long after Mr. Arar's inter-

rogation had ended. Compl. P 43.

Sla

C. Dismissal of Claims of Denial of Access to

Courts and Counsel

With respect to the dismissal of Arar's claim

for "interfere[nce] with his access to lawyers and the

courts" while he was incarcerated by United States

officials, Compl. P 93, we think the district court

erred here, too. An access to courts claim requires

the pleading of (1) a "nonfrivolous, arguable underly-

ing claim" that has been frustrated by the defen-

dants' actions, and (2) a continued inability to obtain

the relief sought by the underlying claim. Christo-

pher, 536 U.S. at 415-16 (internal quotation marks

omitted). The district court decided that Arar failed

(*593] to plead with sufficient "precis{ion]" the exis-

tence of a sought-for underlying claim for relief,

Arar, 414 F. Supp. 2d at 286, which means it decided

that, for purposes of Federal Rule of Civil Procedure

8,17 the defendants were not put on notice of the exis-

\7 That rule provides:

Claim for Rehef. A pleading that states a claim for

relief must contain:

(1) a short and plain statement of the grounds

for the court's jurisdiction, unless the court al-

ready has jurisdiction and the claim needs no

new jurisdictional support;

(2) a short and plain statement of the claim show

ing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may in-

clude relief in the alternative or different types of

relief

Fed. R. Civ. P. 8a).

82a

tence of such a claim. See Christopher, 536 U.S. at

416 ("Like any other element of an access claim, the

underlying cause of action and its lost remedy must

be addressed by allegations .. . sufficient to give fair

notice to a defendant.").

But taking the allegations in the complaint as

true, as we must, the complaint clearly implies the

existence of an underlying claim for relief under

CAT. The defendants can hardly argue that under

Arar's assertions, which we take to be true, they

lacked notice of such a claim, since the complaint

says that it was they who first notified Arar about it:

Arar alleges that on October 8, 2002, "two INS offi-

cials told him that... Defendant Blackman... had

decided to remove [him] to Syria," and "Defendant

Blackman also stipulated that [such action] would be

consistent with Article 3 of CAT." Compl. P 47. In-

deed, the complaint alleges that Arar asked defen-

dants for reconsideration of that decision -- i.e., relief

from it -- in light of the prospect of torture in Syria,

but the officials said that "the INS is not governed by

the 'Geneva Conventions."

Id.

Insofar as the district court's requirement that

Arar "articulate more precisely the judicial relief he

was denied," Arar, 414 F. Supp. 2d at 286, related to

its holding that "Bivens did not extend a remedy to

Arar for his deportation to Syria," id., we disagree for

the reasons set forth below. Insofar as the district

83a

court thought Arar's underlying CAT claim would

have been frivolous, it was mistaken. Cf. Ram-

sameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.

2004) (pursuant to the CAT, the United States may

not remove an alien to a country if "it is more likely

than not that he or she would be tortured if removed

to [that country] (quoting 8 CLF_R. § 208. 16(c)(2))).

Nor was CAT the only relief Arar was denied.

As the government pointed out at oral argument,

"thie] decision [in Michael v. INS, 48 F.3d 657 (2d

Cir. 1995),| shows that in extraordinary cases, and

no one can dispute that this is an extraordinary case,

the plaintiff could have filed a habeas [petition] and

sought a stay pursuant to the All Writs Act." Tr. at

82 (Cohn).!8

Contrary to the district court's ruling, then,

Arar's complaint put the defendants on notice of

claims seeking relief to bar his removal that were

frustrated by the defendants' actions. Whatever the

ultimate merits of those claims, they would not have

been "frivolous." And absent a remedy for the rendi-

tion and torture themsclves -- the district court, and

the majority, of [*594] course, conclude there 1s none

- no contemporaneous legal relief is now possible

i8 In response to a question by the Chief Judge as to

what cognizable allegations might be made in such a habeas

petition, the government said, “Your Honor, I'm not going to

speak for what a judge might or might not have said, but in his

habeas position and his petition for a stay he could say, look,

things are moving quickly, I'm afraid they're going to send me

to Syria, don't let that happen." Tr. 84; see also id. at 85.

84a

except through the access to courts and counsel

claim. See generally Br. of Amici Norman Dorsen et

al. at 12-14. The Fourth Claim for Relief therefore

states a sufficient due process access claim.

D. Sufficient Pleading under Iqbal

More generally, we think the district court's

extended recitation of the allegations in the com-

plaint makes clear that the facts of Arar's mistreat-

ment while within the United States -- including the

alleged denial of his access to courts and counsel and

his alleged mistreatment while in federal detention

in the United States -- were pleaded meticulously

and in copious detail. The assertion of relevant

places, times, and events -- and names when known -

- is lengthy and specific. Even measured in light of

Supreme Court case law post-dating the district

court's dismissal of the fourth claim, which instituted

a more stringent standard of review for pleadings,

the complaint here passes muster. It does not "offer[]

labels and conclusions’ or 'a formulaic recitation of

the elements of a cause of action." Iqbal, 129 S. Ct.

at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

Nor does it “tender[] 'naked assertion[s]' devoid of

‘further factual enhancement." Id. (quoting

Twombly, 550 U.S. at 557). Its allegations of a con-

stitutional violation are "plausible on [their] face."

Id. (quoting Twombly, 550 U.S. at 555). And, as we

have explained, Arar has pled "factual content that

allows the court to draw the reasonable inference

85a

that the defendant[s] [are] hable for the misconduct

alleged.” Id. (quoting Twombly, 550 U.S. at 556). We

would therefore vacate the district court's dismissal

of the Fourth Claim for Relief.

Ill. The Majority's Interpretation of the Second

and Third Claims for Relief

Having thus decided, mistakenly we think,

that Arar's Fourth Claim for Relief has failed, our

colleagues leap to the conclusion that what remains -

- the allegations contained in what Arar's complaint

styles as the Second and Third Claims for Relief --

relates only to the legal implications of the interna-

tional and foreign elements of the defendants' behav-

ior. See supra at [21] ("Arar's remaining claims seek

relief on the basis of torture and detention in Syria. .

.."). Even were we to agree with the majority's view

that the Fourth Claim for Relief warranted dis-

missal, we would still not concur in its crabbed in-

terpretation of Arar's complaint in light of the facts

alleged in it.

"(W]e may not affirm the dismissal of [a] com-

plaint because [it has] proceeded under the wrong

theory 'so long as fit has] alleged facts sufficient to

support a meritorious legal claim." Hack v. President

& Fellows of Yale Coll., 237 F.3d 81, 89 (2d Cir.

2000) (plurality opinion of Pooler, J.) (quoting North-

rop v. Hoffman of Simsbury, Inc., 1384 F.3d 41, 46 (2d

Cir. 1997)), cert. denied, 534 U.S. 888, 122 S. Ct.

201, 151 L. Ed. 2d 142 (2001). “Factual allegations

86a

alone are what matter[].'" Northrop, 134 F.3d at 46

(quoting Albert v. Carovano, 851 F.2d 561, 571 n.3

(2d Cir. 1988) (en banc)); see also Newman v. Silver,

713 F.2d 14, 15 n.1 (2d Cir. 1983) ("[T]he nature of

federal pleading .. . is by statement of claim, not by

legal theories.").19 [*595] And we are required to

read those factual allegations as a whole. See

Shaptro v. Cantor, 123 F.8d 717, 721 (2d Cir. 1997);

see also Aldana v. Del Monte Fresh Produce, N.A.,

Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005) (per

curiam), cert. denied, 549 U.S. 1032, 127 S. Ct. 596,

166 L. Ed. 2d 431 (2006); Goldwasser v. Ameritech

Corp., 222 F.3d 390, 401 (7th Cir. 2000).

Although Arar pled in his Fourth Claim for

Relief what he denominated as a separate "Claim" on

the subject of "Domestic Detention,” including allega-

tions about unconstitutional conditions of confine-

ment and denial of access to courts and counsel, the

complaint as a whole makes broader allegations of

mistreatment while within the borders of the United

States. According to the complaint: (1) Arar was ap-

prehended by government agents as he sought to

19 The Federal Rules of Civil Procedure instruct that

"[pjleadings must be construed so as to do justice." Fed. R. Civ.

P. &e). Wright and Miller's treatise counsels that "[t]his provi-

sion is not simply a precatory statement but reflects one of the

basic philosophies of practice under the federal rules." 5

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1286 (3d ed. 2004). "One of the most important

objectives of the federal rules is that lawsuits should be deter-

mined on their merits and according to the dictates of justice,

rather than in terms of whether or not the averments in the

paper pleadings have been artfully drawn." Id.

87a

change planes at JFK; (2) he was not seeking to en-

ter the United States; (3) his detention was for the

purpose of obtaining information from him about ter-

rorism and his alleged links with terrorists and ter-

rorist organizations; (4) he was interrogated harshly

on that topic -- mostly by FBI agents -- for many

hours over a period of two days; (5) during that pe-

riod, he was held incommunicado and was mis-

treated by, among other things, being deprived of

food and water for a substantial portion of his time

in custody; (6) he was then taken from JFK to the

MDC in Brooklyn, where he continued to be held in-

communicado and in solitary confinement for an-

other three days; (7) while at the MDC, INS agents

sought unsuccessfully to have him agree to be re-

moved to Syria because they and other U.S. govern-

ment agents intended that he would be questioned

there along similar lines, but under torture; (8) U.S.

officials thwarted his ability to consult with counsel

or access the courts; and (9) thirteen days after Arar

had been intercepted and incarcerated at the airport,

defendants sent him against his will to Syria, where

they allegedly intended that he be questioned under

torture and while enduring brutal and inhumane

conditions of captivity. This was, as alleged, all part

of a single course of action conceived of and executed

by the defendants in the United States in order to try

to make Arar "talk."

It may not have been best for Arar to file a

complaint that structures his claims for relief so as

to charge knowing or reckless subjection to torture,

88a

coercive interrogation, and arbitrary detention in

Syria (the second and third claims) separately from

charges of cruel and inhuman conditions of confine-

ment and "interfere[nce] with access to lawyers and

the courts" while in the United States (the fourth

claim). But such division of theories is of no legal

consequence. "'Factual allegations alone are what

matter{].'"" Northrop, 134 F.3d at 46 (quoting Albert,

851 F.2d at 571 n.3). The assessment of Arar's com-

plaint must, then, take into account the entire arc of

factual allegations that it contains -- his interception

and arrest; his interrogation, principally by FBI

agents, about his putative ties to terrorists; his de-

tention and mistreatment at JFK in Queens and the

MDC in Brooklyn; the deliberate misleading of both

his lawyer and the Canadian Consulate; and his

transport to Washington, D.C. and forced transfer to

Syrian authorities for further detention and ques-

tioning under torture. Such attention to the com-

plaint's factual [*596] allegations, rather than its

legal theories, makes perfectly clear that the remain-

ing claims upon which Arar seeks relief are not lim-

ited to his “detention or torture in Syria," supra at

[6], but include allegations of violations of his due

process rights in the United States. The scope of

those claims is relevant in analyzing whether a

Bivens remedy is available.

89a

IV. The "Context" in Which a Bivens Remedy Is

Sought

The majority's artificial interpretation of the

complaint permits it to characterize the "context" of

Arar's Bivens action as entirely one of "international

rendition, specifically, ‘extraordinary rendition." Su-

pra at [32]; see also id. ("Extraordinary rendition is

treated as a distinct phenomenon in international

law."). This permits the majority to focus on the part

of the complaint that presents a "new context" for

Bivens purposes. But when the complaint is consid-

ered in light of all of Arar's allegations, his due proc-

ess claim for relief from his apprehension, detention,

interrogation, and denial of access to counsel and

courts in the United States, as well as his expulsion

to Syria for further interrogation likely under tor-

ture, is not at all "new."

A. Bivens and Its Progeny

In Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.

1999, 29 L. Ed. 2d 619 (1971), the Supreme Court

"recognized for the first time an implied private ac-

tion for damages against federal officers alleged to

have violated a citizen's constitutional rights." Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct.

515, 151 L. Ed. 2d 456 (2001). Bivens permitted "a

victim of a Fourth Amendment violation by federal

officers [to] bring suit for money damages against the

officers in federal court." Id. The Supreme Court has

90a

been reluctant, as the majority correctly observes, to

"extend" Bivens liability further. See, e.g., Wilkie,

127 S. Ct. at 2597. The Court has done so only twice -

- in the contexts of "an implied damages remedy un-

der the Due Process Clause of the Fifth Amendment"

in Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60

L. Ed. 2d 846 (1979), and under "the Cruel and Un-

usual Punishments Clause of the Eighth Amend-

ment" in Carlson v. Green, 446 U.S. 14, 100 S. Ct.

1468, 64 L. Ed. 2d 15 (1980). Malesko, 534 U.S. at

67: see also Wilkie, 127 S. Ct. at 2597-98. But we

must ask whether we should "devise a new Bivens

damages action," Wilkte, 127 S. Ct. at 2597, only if

the asserted action is, indeed, new. And a new

Bivens action is not being sought unless the plaintiff

is asking the court to "extend Bivens liability to al]

new context or new category of defendants." Maiesko,

534 U.S. at 68.

B. The New Category of Defendants Test

The majority does not suggest that Arar's

Bivens claim fails because it is against a new cate-

gory of defendants. The Bivens remedy was devised

to supply relief for constitutional torts by federal

agents and officials. See Malesko. 534 U.S. at 70.

C. The New Context Test

The questions, then, are whether we are facing

a "new context," or considering recognizing "a new

Bivens damages action," questions that are compli-

cated by the fact that the meaning that the Supreme

9la

Court has ascribed to those terms is less than clear.

Compare Malesko, 534 U.S. at 67 (noting that Bivens

was extended to "a new right of action" in Davis v.

Passman, in which the Court "recognized an implied

damages remedy under the Due Process Clause of the

Fifth Amendment" (emphasis added)), [*597] with id.

at 68 (describing Schwetker v. Chilicky, 487 U.S. 412,

108 S. Ct. 2460, 101 L. Ed. 2d 370 (1988), as present-

ing a "new context[]" in which the plaintiffs sought

damages under the Due Process Clause for errors

made by federal officials "in the[] nandling of [their]

Social Security applications” (emphasis added)).

If the alleged facts of Arar's complaint were

limited to his claim of "extraordinary rendition" to,

and torture in, Syria -- that is, limited to his allega-

tions that he was transported by the United States

government to Syria via Jordan pursuant to a con-

spiracy or other arrangement among the countries or

their agents and mistreated in Syria as a result -- as

the majority would have it, then we might well agree

that we are dealing with a "new context." But, as we

have explained, the complaint is not so limited. In-

carceration in the United States without cause, mis-

treatment while so incarcerated, denial of access to

counsel and the courts while so incarcerated, and the

facilitation of torture by others, considered as possi-

ble violations of a plaintiff's procedural and substan-

tive due process rights, are hardly novel claims, nor

92a

do they present us with a "new context" in any le-

gally significant sense.2°

We have recognized implied Bivens rights of

action pursuant to the Due Process Clause, so Arar's

claims for relief are not new actions under Bivens in

that sense. A deprivation of procedural due process

rights can give rise to a Bivens claim under our case

law. See, e.g., Tellier v. Fields, 280 F.3d 69, 80-83 (2d

Cir. 2000). And while we do not appear’ to have

squarely considered whether a Bivens action may lie

for alleged violations of substantive due process

rights, our cases imply that it can be. In Iqbal v.

Hasty, 490 F.3d 143 (2d Cir. 2007), rev'd in part on

20 In one sense, every case presents a new context, in

that it presents a new set of facts to which we are expected to

apply established law. But a new set of facts is not ipso facto a

"new context." We do not decide, based on the difference in fac-

tual setting alone, whether or not it is a good idea to allow a

plaintiff to avail him or herself of a well-established remedy

such as that afforded by Bivens. This is illustrated by cases

involving legal contexts where Bivens is well-established, in

which courts do not conduct a fresh assessment as to whether a

Bivens action is available based on the facts of each case. See,

e.g., Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed.

2d 1068 (2004) (Bivens action for Fourth Amendment violation):

McCarthy v. Madigan, 503 U.S. 140, 112 S. Ct. 1081, 117 L. Ed.

2d 291 (1992) (Bivens action for Eighth Amendment violation),

superseded by statute on other grounds as stated in Booth v.

Churner, 532 U.S. 731, 121 S. Ct. 1819, 149 L. Ed. 2d 958

(2001); Castro v. United States, 34 F.3d 106 (2d Cir. 1994)

(Fourth Amendment); Armstrong v. Sears, 33 F.3d 182 (2d Cir.

1994) (same); Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994)

(same); see also Hallock vu. Bonner, 387 F.3d 147 (2d Cir. 2004)

(same), rev'd on other grounds, sub nom Will v. Hallock, 546

U.S. 345, 126 S. Ct. 952 163 L. Ed. 2d 836 (2006).

93a

other grounds sub nom Ashcroft v. Iqbal, 129 S. Ct.

1937, 173 L. Ed. 2d 868 (2009), for example, we con-

sidered a Bivens action brought on, inter alia, a Fifth

Amendment substantive due process theory. The

plaintiff alleged physical mistreatment and humilia-

tion, as a Muslim prisoner, by federal prison officials,

while he was detained at the MDC. After concluding,

on interlocutory appeal, that the defendants were not

entitled to qualified immunity, we returned the mat-

ter to the district court for further proceedings. We

did not so much as hint either that a Bivens remedy

was unavailable or that its availability would consti-

tute an unwarranted extension of the Bivens doc-

trine.”! Iqbal, 490 F.3d at 177-78.

(*598] In other cases we have apparently as-

sumed Bivens remedies were available for substan-

tive due process claims. See Thomas v. Ashcroft, 470

F.3d 491, 497 (2d Cir. 2006) (reversing district

court's dismissal of Bivens action for violation of

plaintiffs Fifth Amendment substantive due process

rights while detained at the MDC); Cuoco v. Morit-

sugu, 222 F.3d 99 (2d Cir. 2000) (dismissing, on

21 Shortly after we decided Iqbal, the Supreme Court

made clear that by appealing from the district court's denial of

qualified immunity, the defendants placed within our jurisdic-

tion the question of "the recognition of the entire cause of ac-

tion." Wilkie, 127 S. Ct. at 2597 n.4. The district court in Iqbal

had specifically rejected the defendants’ argument that a

Bivens action was unavailable. See Elmaghraby v. Ashcroft, No.

04 CV 01809 JG SMG, 2005 U.S. Dist. LEXIS 21434, at *44-

*45, 2005 WL 2375202, at *14 (E.D.N_Y. Sept. 27, 2005). Thus,

had we thought that no Bivens action was available, we had the

power to resolve [qbal's claims on that basis.

94a

qualified immunity grounds, plaintiff's Bivens claim

for, inter alia, substantive due process violations,

without questioning whether a cause of action was

available); Li v. Canarozzi, 142 F.3d 83 (2d Cir.

1998) (affirming judgment following jury verdict for

defendants in Bivens action based on allegations of

physical assault by guards at the federal Metropoli-

tan Correctional Center in New York City, although

not explicitly on substantive due process grounds);

Ayent uv. Mottola, 35 F.3d 680, 691 (2d Cir. 1994) (ap-

parently assuming that Bivens remedy was available

for substantive due process claim, but deciding that

it could not be pursued because the claim in issue

was covered by the more particular provisions of the

Fourth Amendment, for which a Bivens action was

permitted), abrogated on qualified immunity

grounds, Wilson v. Layne, 526 U.S. 603, 119 S. Ct.

1692, 143 L. Ed. 2d 818 (1999).

Indeed, even the most "international" of Arar's

domestic allegations -- that the defendants, acting

within the United States, sent Arar to Syria with the

intent that he be tortured -- present no new context

for Bivens purposes. Principles of substantive due

process apply to a narrow band of extreme misbehav-

ior by government agents acting under color of law:

mistreatment that is "so egregious, so outrageous,

that it may fairly be said to shock the contemporary

conscience." Lombardi v. Whitman, 485 F.3d 73, 79

(2d Cir. 2007) (internal quotation marks omitted).

Sending Arar from the United States with the intent

or understanding that he will be tortured in Syria

95a

easily exceeds the level of outrageousness needed to

make out a substantive due process claim.

Although the "shocks the conscience" test is

undeniably "vague," see Estate of Smith v. Marasco,

430 F.3d 140, 156 (3d Cir. 2005); Schaefer v. Goch,

153 F.3d 793, 798 (7th Cir. 1998), "[n]o one doubts

that under Supreme Court precedent, interrogation

by torture" meets that test, Harbury v. Deutch, 233

F.3d 596, 602, 344 U.S. App. D.C. 68 (D.C. Cir.

2000), rev'd on other grounds sub nom Christopher v.

Harbury, 536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed.

2d 413 (2002);22 see also Rochin v. California, 342

U.S. 165, 172, 72 S. Ct. 205, 96 L. Ed. 183 (1952)

(holding that the forcible pumping of a suspect's

stomach to obtain evidence to be used against him

was "too close to the rack and the screw to permit of

constitutional differentiation"); Palko v. Connecticut,

302 U.S. 319, 326, 58S. Ct. 149, 82 L. Ed. 288 (1937)

(noting that the Due Process Clause must at least

"sive protection against torture, physical or mental"),

overruled [*599} on other grounds, Benton v. Mary.

land, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707

(1969); Brown v. Mississippi, 297 U.S. 278, 285-86,

56 S. Ct. 461, 80 L. Ed. 682 (1936) ("Because a state

may dispense with a jury trial, it does not follow

rogation in question did not violate the Constitution because it

occurred entirely abroad. See Harbury, 233 F.3d at 602-04 (re-

lying upon United States v. Verdugo-Urquidez, 494 U.S. 259,

110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990)).

96a

that it may substitute trial by ordeal. The rack and

torture chamber may not be substituted for the wit-

ness stand.").23

To be sure, Arar alleges not that the defen-

dants themselves tortured him; he says that they

"outsourced" it.24 But we do not think that the ques-

tion whether the defendants violated Arar's substan-

tive due process rights turns on whom they selected

to do the torturing,*® or that such “outsourcing”

23 The full quotation is:

{[T)he freedom of the state in establishing its pol-

icy is the freedom of constitutional government

and is limited by the requirement of due process

of law. Because a State may dispense with a

jury trial, it does not follow that it may substi-

tute trial by ordeal. The rack and torture cham-

ber may not be substituted for the witness

stand. Because a state may dispense with a jury

trial, it does not follow that it may substitute

trial by ordeal. The rack and torture chamber

may not be substituted for the witness stand.

Brown, 297 U.S. at 285-86.

24"|Rjendition -- the market approach -- outsources our

crimes, which puts us at the mercy of anyone who can expose

us, makes us dependent on some of the world's most unsavory

actors, and abandons accountability. It is an approach we asso-

ciate with crime families, not with great nations." Philip Bob-

bitt, Terror and Consent: The Wars for the Twenty-First Cen-

tury 388 (2008). "[O]me could get the worst of both worlds:

national responsibility for acts as to which the agents we have

empowered are unaccountable." Id. at 387.

25'""1 do not think that whether the defendants violated

Arar's Fifth Amendment rights turns on whom they selected to

do the torturing: themselves, a Syrian Intelligence officer, a

97a

somehow changes the essential character of the acts

within the United States to which Arar seeks to hold

the defendants accountable.

We think that Arar states a substantive due

process claim under either of two theories of sub-

stantive due process liability: "special relationship

liability" or "state-created-danger liability," Benzman

v. Whitman, 523 F.3d 119, 127 (2d Cir. 2008) (inter-

nal quotation marks omitted). Under the latter doc-

trine, the defendants can be held lable for "tak[ing]

an affirmative act that creates an opportunity for a

third party to harm a victim (or increases the risk of

such harm)." Lombardi, 485 F.3d at 80. Under the

former, Arar was owed “an affirmative duty" by the

defendants to protect him from harm by Syrian

agents in light of the fact that the government took

him “into its custody and h[eld] him there against his

will." Matican v. City of New York, 524 F.3d 151,

155-56 (2d Cir.) (citations, internal quotation marks,

and footnotes omitted), cert. denied, 129 S. Ct. 636,

172 L. Ed. 2d 611 (2008).

In sum, we do not view the current action as

presenting a "new context” in any relevant sense. We

therefore do not think we must decide whether "to

devise a new Bivens damages action." Wilkie, 127 S.

Ct. at 2597, here.

warlord in Somalia, a drug cartel in Colombia, a military con-

tractor in Baghdad or Boston, a Mafia family in New Jersey, or

a Crip set in South Los Angeles." Arar partial pane! dissent at

205

98a

V. Devising a New Bivens Damages Action

Even apart from our disagreement with the

majority that Arar's claims present a new context in

which to extend Bivens liability, we are puzzled by

the majority's analysis as to whether to do so. Hav-

ing decided that the issue for our consideration is

whether a Bivens action should be [*600] permitted

in what it has concluded is a new context, the major-

ity engages in a two-part inquiry: "whether there is

an alternative remedial scheme available to the

plaintiff; and whether ‘special factors counsel|[} hesi-

tation' in creating a Bivens remedy." Supra at [33]

(quoting Wilkie, 127 S. Ct. at 2598).

Our colleagues wisely decline to decide the

first issue, whether an alternative remedial scheme

is available, partly because they conclude that this is

not an immigration case (or, at least, not a "typical"

one), see supra at [28], and partly because "Arar has

alleged that he was actively prevented from seeking

any meaningful review and relief through the INA

processes," supra at [35]; see also supra at [27]. This

is significant inasmuch as the Supreme Court has

observed that it has recognized "new" Bivens actions

precisely, inter alia, "to provide a cause of action for

a plaintiff who lacked any alternative remedy for

harms caused by an individual officer's unconstitu-

tional conduct." Malesko, 534 U.S. at 70 (emphasis

omitted).

99a

The majority moves on to the second prong of

the test, concluding that "special factors are clearly

present in the new context of this case, and they

sternly counsel hesitation.” Supra at [35-36]. We

think it unfortunate that the majority concludes that

Arar should be afforded no Bivens right of action in

light of such "special factors." We quarrel not only

with their conclusion, but also the majority's appar-

ent treatment of the existence vel non of "special fac-

tors counseling hesitation" as the determinative legal

standard for whether an extension of Bivens is war-

ranted. Setting aside for the moment our view that

many of the "special factors" cited by the majority

are not properly considered to be such, we think it

mistaken to preclude Bivens relief solely in light of a

citation or compilation of one or more purported ex-

amples of such “special factors."

A. "Special Factors" As a Standard

The majority is not altogether clear in convey-

ing its understanding of the legal significance of a

finding that "special factors counseling hesitation,"

"sternly" or otherwise, are present. The majority ac-

knowledges that "[h]esitation is a pause, not a full

stop, or an abstention; and to counsel is not to re-

quire," supra at [37], but it also states that coun-

tervailing factors are not considered, and that no

such factors have "ever been cited by the Supreme

Court as a reason for affording a Bivens remedy

where it would not otherwise exist," id. What we are

left with is an implication that the presence of "spe-

100a

cial factors counseling hesitation" in fact does require

a "full stop, or an abstention." We disagree. It seems

to us that the existence of such "special factors" alone

does not compel a conclusion that a Bivens action is

unavailable.

When the words "special factors counseling

hesitation" were first uttered by the Supreme Court,

in Bivens itself, the Court asserted that there is a

general rule "that where legal rights have been in-

vaded, and a federal statute provides for a general

right to sue for such invasion, federal courts may use

any available remedy to make good the wrong done."

Bivens, 403 U.S. at 396 (internal quotation marks

omitted). The Court then said: "The present case in-

volves no special factors counseling hesitation in the

absence of affirmative action by Congress," citing

cases in which the general rule had not been ap-

plied.2 Id. The Bivens Court's [*601] observation

that there was no- cause for hesitation, and its si-

multaneous recognition in the case before it of a pri-

vate right of action did not imply, however -- as the

majority seems to -- that if there had been reason to

26 The Court referred by way of example to its previous

decisions in United States v. Standard Orl Co., 332 U.S. 361,

311, 67 S. Ct. 1604, 91 L. Ed. 2067 (1947), in which it had con-

cluded that the government had no implied right of action

against a company that had allegedly injured a soldier because

it trenched upon "federal fiscal policy” particularly delegated to

Congress, and Wheeldin v. Wheeler, 373 U.S. 647, 83 S. Ct.

1441, 10 L. Ed. 2d 605 (1963), in which the Court found no pri-

vate right of action under federal law where the defendant's

acts were not asserted to violate the plaintiffs constitutional

rights and were governed by state law

10la

hesitate, then the Court, ipso facto, would not have

recognized a right of action.27

The Supreme Court has not told us that "spe-

cial factors counseling hesitation" are to be under-

stood to prohibit a private right of action. In Wilkie,

for example, the Court noted that deciding "whether

to recognize a Bivens remedy may require two steps,"

the second of which asks that the court "pay[] par-

ticular heed .. . to any special factors counselling

hesitation," id., 127 S. Ct. at 2598 (emphasis added).

And the Court, in Bush v. Lucas, 462 U.S. 367, 103

S. Ci. 2404, 76 L. Ed. 2d 648 (1983), relied upon by

the Wilkie Court in this regard, similarly observed

that "[iJn the absence of... . a congressional directive

[that a right of action lies], the federal courts must

make the kind of remedial] determination that is ap-

propriate for a common-law tribunal, paying particu-

lar heed, however, to any special factors counseling

hesitation before authorizing a new kind of federal

litigation." Jd. at 378 (emphasis added).

"[H]eed" means "[c]llose attention" or “notice.”

American Heritage Dictionary of the English Lan-

guage 813 (4th ed. 2000). To "pay heed," then, means

"to notice," it does not mean "to be governed by."

27 This appears to reflect a classic logical fallacy, "denial

of the antecedent," which mistakes a necessary condition for a

sufficient one. E.M. Adams, The Fundamentals of General Logic

164 ("The truth of the premises does not require the truth of the

conclusion. This means that denying the antecedent is an inva-

lid form of the simple conditional argument.").

102a

The majority tells us that "'[h]Jesitation' is 'counseled'

whenever thoughtful discretion would pause even to

consider." Supra at [37]. If the existence of "special

factors counseling hesitation" were determinative of

the existence of a right of action, the bar to declining

to allow a new Bivens claim would be less than "re-

markably low." Id. It would be chimerical.

It is difficult to deny the existence of "special

factors counseling hesitation" in this case. We have

been "hesitating" -- in order to deliberate in light of

those factors -- for nearly two years. While the time

we have taken to consider "special factors" strongly

indicates that they counsel hesitation, it cannot fol-

low that having hesitated, we must therefore halt,

and dismiss the Bivens complaint.?8

B. The Special Factors Identified by the Ma-

jority

The “special factors" cited by the majority fall

into one of two general categories: those involving

security, secrecy, and confidentiality, [*602] and

28 Such a test would be reminiscent of Leo Tolstoy's

brother's perhaps apocryphal challenge to Tolstoy to stand in a

corner and not think of a white bear. See, e.g., Aylmer Maude,

The Life of Tolstoy: First Fifty Years (Dodd, Mead and Co.

1910) 19 ("[T)here was also a certain Fanfaronof Hill, up which

{my brother] said he could lead us, if only we would fulfil all the

appointed conditions. These were: first, to stand in a corner

and not think of a white bear. 1 remember how I used to get

into a corner and try (but could not possibly manage) not to

think of a white bear.").

103a

those involving other policy considerations. We turn

to the latter category first, briefly summarizing each

factor as the majority describes it and then setting

forth our view of the factor's weight.

1. Factors not involving secrecy or security.

This action asks for damages, but it functionally "op-

erates as a constitutional challenge to the policies

promulgated by the executive." Supra at [38]. We

should hesitate to allow such an action to proceed

because to do so would tacitly "decide," id., that

Bivens can subject federal officers to the kind of en-

terprise liability that was established for actions un-

der 92 U.S.C. § 1983 by Monell v. Department of So-

cial Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed.

2d 611 (1978), but has not been established for

Bivens actions.

This paraphrase sets forth the strongest ar-

gument ("factor"), we think, for denying a Bivens

remedy to Arar. After Iqbal, it would be difficult to

argue that Arar's complaint can survive as against

defendants who are alleged to have been supervisors

with, at most, "knowledge" of Arar's mistreatment.

See Iqbal, 129 S. Ct. at 1949; see also id. at 1955

(Souter, J., dissenting). And to the extent that the

United States remains a defendant, perhaps it

should be dismissed for want of possible liability un-

der Bivens too. But that does not dispose of the case

against the lower-level defendants, such as Black-

mer McElroy, and the Doe defendants, who are al-

104a

leged to have personally undertaken purposeful un-

constitutional actions against Arar.

It also may be that to the extent actions

against "policymakers" can be equated with lawsuits

against policies, they may not survive Iqbal either.

But while those championing Arar's case may in fact

wish to challenge extraordinary rendition policy writ

large, the relief Arar himself seeks is principally

compensation for an unconstitutional implementa-

tion of that policy. That is what Bivens actions are

for.

Acttons for damages against federal offi-

cers "who implement" rendition "policy"

implicate sovereign immunity concerns,

by “influenc[ing] government policy,

prob[ing] government secrets, invad[ing]

government interests, enmesh[ing] gov-

ernment lawyers, and... elicit{ing] gov-

ernment funds for settlement." Supra at

[39].

Recognizing a Bivens action for Arar

would entail a judicial "assessment of the

validity and rationale" of rendition, which

"directly affect{[s] significant diplomatic

and national security concerns." Supra at

[40]. The concern here is in part one of

separation of powers, see supra at [41],

and in part one of institutional incompe-

tence, see supra at [41].

105a

Aside from diplomatic and national security

considerations, which we address below, this consid-

eration applies to all civil rights actions. Bivens by

its nature implicates "government interests," en-

meshes government lawyers, and elicits government

funds for settlement. Bivens by its nature authorizes

courts to invalidate exercises in executive power. A

Bivens action, hke any other civil rights action, is an

attempt to hold members of the executive account-

able for their allegedly unconstitutional acts,

through the courts. If these "special factors" were

persuasive grounds on which to deny Bivens actions,

they would not only not be permitted in new con-

texts, they would not be permitted at all.

Similarly, insofar as this Bivens action may

influence executive policy, we doubt [*603] that that

should be a factor “counseling hesitation" either.

Civil rights actions influence policy: They make it

more costly for executive officers to violate the Con-

stitution. That is their point. See Wyatt ». Cole, 504

U.S. 158, 161, 112 S. Ct. 1827, 118 L. wd. 2d 504

(1992) ("The purpose of § 1983 is to deter state actors

from using the badge of their authority to deprive

individuals of their federally guaranteed rights and

to provide relief to victims if such deterrence fails.").

Finally, the majority suggests that "fiJn the

small number of contexts in which courts have im-

plied a Bivens remedy, it has often been easy to iden-

tify both the line between constitutiona} and uncon-

stitutional conduct, and the alternative course which

106a

officers should have pursued," a "distinction [the ma-

jority says] may or may not amount to a special fac-

tor counseling hesitation in the implication of a

Bivens remedy." Supra at [54]. It should be noted to

the contrary that in the two Supreme Court decisions

that did "extend" a Bivens remedy in a "new con-

text," such identification was anything but "easy."

Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L.

Ed. 2d 15 (1980), involved the line between constitu-

tional and unconstitutional medical treatment and

medical facilities in prisons, whose m

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