# Appendix — Arar v. Ashcroft

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1562%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 560 U.S. 978

## Text

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

ii

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

la

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

2a

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

3a

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-

4a

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,

5a

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.

6a

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-

7a

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-

8a

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

9a

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

II

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.
IV

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-

el

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.

VI

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

mw

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.

IX

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

ee

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.

XI

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

pa

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...

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1562%3A02. Public record. Not legal advice.