Arar v. Ashcroft
Appeal Court of Appeals for the Second Circuit, Case No. 06-4216

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06-4216-cv

Arar v. Ashcroft

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term, 2008 6 7 8 In Banc Rehearing: December 9, 2008 Decided: November 2, 2009 9 10 Docket No. 06-4216-cv 11 12 - - - - - - - - - - - - - - - - - - - - - -x 13 14 MAHER ARAR, 15 16 Plaintiff-Appellant, 17 18 - v.- 19 20 JOHN ASHCROFT, Attorney General of the 21 United States, LARRY D. THOMPSON, 22 formerly Acting Deputy Attorney General, 23 TOM RIDGE, Secretary of Homeland Security, 24 J. SCOTT BLACKMAN, formerly Regional 25 Director of the Regional Office of 26 Immigration and Naturalization Services, 27 PAULA CORRIGAN, Regional Director of 28 Immigration and Customs Enforcement, 29 EDWARD J. MCELROY, formerly District 30 Director of Immigration and Naturalization 31 Services for New York District, and now 32 Customs Enforcement, ROBERT MUELLER, 33 Director of the Federal Bureau of 34 Investigation, John Doe 1-10, Federal 35 Bureau of Investigation and/or Immigration 36 and Naturalization Service Agents, and JAMES 37 W. ZIGLAR, formerly Commissioner for 38 Immigration and Naturalization Services, 39 United States, 40 41 Defendants-Appellees. 42 43 - - - - - - - - - - - - - - - - - - - -x 1 Before: JACOBS, Chief Judge, McLAUGHLIN,* CALABRESI,** 2 CABRANES, POOLER, SACK,** SOTOMAYOR,*** 3 PARKER,** RAGGI, WESLEY, HALL, and LIVINGSTON, 4 Circuit Judges. KATZMANN, Circuit Judge, took 5 no part in the consideration or decision of 6 the case. 7 8 JACOBS, C.J., filed the majority opinion in which 9 MCLAUGHLIN, CABRANES, RAGGI, WESLEY, HALL, and LIVINGSTON, 10 JJ., joined. 11 12 CALABRESI, J., filed a dissenting opinion in which POOLER, 13 SACK, and PARKER, JJ., joined. 14 15 POOLER, J., filed a dissenting opinion in which CALABRESI, 16 SACK, and PARKER, JJ., joined. 17 18 SACK, J., filed a dissenting opinion in which CALABRESI, 19 POOLER, and PARKER, JJ., joined. 20 21 PARKER, J., filed a dissenting opinion in which CALABRESI, 22 POOLER, and SACK, JJ., joined. 23 24 25 Appeal from a judgment of the United States District 26 Court for the Eastern District of New York (Trager, J.)
*
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

proceedings, 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,

2009. [End Page 2] 1 dismissing Plaintiff-Appellant Maher Arar's complaint 2 against John Ashcroft, the Attorney General of the United 3 States; Tom Ridge, the Secretary of Homeland Security; 4 Robert Mueller, the Director of the Federal Bureau of 5 Investigation; and others. Arar v. Ashcroft, 414 F. Supp. 6 2d 250 (E.D.N.Y. 2006). Arar alleges that he was detained 7 while changing planes at Kennedy Airport in New York (based 8 on a warning from Canadian authorities that he was a member 9 of Al Qaeda), mistreated for twelve days while in United 10 States custody, and then removed to Syria via Jordan 11 pursuant to an inter-governmental understanding that he 12 would be detained and interrogated under torture by Syrian 13 officials. 14 Arar's complaint alleges violations of the Torture 15 Victim Protection Act ("TVPA") and the Fifth Amendment. The 16 District Court dismissed the complaint. Id. at 287-88. A 17 three-judge panel of this Court unanimously held that: (1) 18 the District Court had personal jurisdiction over Thompson, 19 Ashcroft, and Mueller; (2) Arar failed to state a claim 20 under the TVPA; and (3) Arar failed to establish subject 21 matter jurisdiction over his request for a declaratory 22 judgment. Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). A [End Page 3] 1 majority of the panel also dismissed Arar's Bivens claims, 2 with one member of the panel dissenting. Id. After in banc 3 rehearing, the panel opinion is vacated and the judgment of 4 the district court is affirmed. 5 DAVID COLE (Maria Couri LaHood, 6 Jules Lobel, Katherine 7 Gallagher, on the brief), Center 8 for Constitutional Rights, New 9 York, NY; Joshua S. Sohn (on the 10 brief), DLA Piper US LLP, New 11 York, NY, for Plaintiff- 12 Appellant. 13 14 JONATHAN F. COHN, Deputy 15 Assistant Attorney General 16 (Gregory G. Katsas, Assistant 17 Attorney General; Benton J. 18 Campbell, United States 19 Attorney; Larry Lee Gregg, R. 20 Joseph Sher, Dennis C. Barghaan, 21 Assistant United States 22 Attorneys; Mary Hampton Mason, 23 Jeremy S. Brumbelow, U.S. 24 Department of Justice, Civil 25 Division, Torts Branch; Barbara 26 L. Herwig, Robert M. Loeb, 27 Michael Abate, U.S. Department 28 of Justice, Civil Division, 29 Appellate Staff, on the brief), 30 for Defendant-Appellee John 31 Ashcroft, the official capacity 32 Defendants-Appellees, and the 33 United States. 34 35 JEREMY A. LAMKEN (John J. 36 Cassidy, Jamie S. Kilberg, Paul 37 J. Nathanson, on the brief), 38 Baker Botts L.L.P., Washington 39 D.C.; Stephen L. Braga (on the 40 brief), Ropes & Gray L.L.P., [End Page 4] 1 Washington D.C., 2 for Defendant-Appellee Larry D. 3 Thompson. 4 5 Robin L. Goldfaden, American 6 Civil Liberties Union 7 Foundation, Immigrants' Rights 8 Project, San Francisco, CA, for 9 Amici Curiae American Civil 10 Liberties Union and New York 11 Civil Liberties Union in support 12 of Plaintiff-Appellant. 13 14 Burt Neuborne, New York, NY, for 15 Amici Curiae Norman Dorsen, 16 Helen Hershkoff, Frank 17 Michelman, Burt Neuborne, and 18 David L. Shapiro, in support of 19 Plaintiff-Appellant. 20 21 Michael B. De Leeuw, Dale E. Ho, 22 Jonathan J. Smith, Fried, Frank, 23 Harris, Shriver & Jacobson LLP, 24 New York, NY, for Amicus Curiae 25 NAACP Legal Defense & 26 Educational Fund, Inc. in 27 support of Plaintiff-Appellant. 28 29 Sidney S. Rosdeitcher, Paul, 30 Weiss, Rifkind, Wharton & 31 Garrison LLP, New York, NY, for 32 Amici Curiae Retired Federal 33 Judges in support of Plaintiff- 34 Appellant. 35 36 Nancy Morawetz, New York 37 University School of Law, New 38 York, NY, for Amici Curiae Law 39 Professors in support of 40 Plaintiff-Appellant. 41 42 Alexander Yanos, Freshfields 43 Bruckhaus Deringer US LLP, New 44 York, NY, for Amicus Curiae

5 1 Redress Trust in support of 2 Plaintiff-Appellant. 3 4 5 6 DENNIS JACOBS, Chief Judge: 7 8 Maher Arar appeals from a judgment of the United States 9 District Court for the Eastern District of New York (Trager, 10 J.) dismissing his complaint against the Attorney General of 11 the United States, the Secretary of Homeland Security, the 12 Director of the Federal Bureau of Investigation, and others, 13 including senior immigration officials. Arar alleges that 14 he was detained while changing planes at Kennedy Airport in 15 New York (based on a warning from Canadian authorities that 16 he was a member of Al Qaeda), mistreated for twelve days 17 while in United States custody, and then removed to Syria 18 via Jordan pursuant to an inter-governmental understanding 19 that he would be detained and interrogated under torture by 20 Syrian officials. The complaint alleges a violation of the 21 Torture Victim Protection Act ("TVPA") and of his Fifth 22 Amendment substantive due process rights arising from the 23 conditions of his detention in the United States, the denial 24 of his access to counsel and to the courts while in the 25 United States, and his detention and torture in Syria. 26 The district court dismissed the complaint (with leave [End Page 6] 1 to re-plead only as to the conditions of detention in the 2 United States and his access to counsel and the courts 3 during that period) and Arar timely appealed (without 4 undertaking to amend). Arar v. Ashcroft, 414 F. Supp. 2d 5 250 (E.D.N.Y. 2006). A three-judge panel of this Court 6 unanimously held that: (1) the District Court had personal 7 jurisdiction over Thompson, Ashcroft, and Mueller; (2) Arar 8 failed to state a claim under the TVPA; and (3) Arar failed 9 to establish subject matter jurisdiction over his request 10 for a declaratory judgment. Arar v. Ashcroft, 532 F.3d 157 11 (2d Cir. 2008). A majority of the panel also dismissed 12 Arar's Bivens claims, with one member of the panel 13 dissenting. Id. The Court voted to rehear the appeal in 14 banc. We now affirm. 15 We have no trouble affirming the district court's 16 conclusions that Arar sufficiently alleged personal 17 jurisdiction over the defendants who challenged it, and that 18 Arar lacks standing to seek declaratory relief. We do not 19 reach issues of qualified immunity or the state secrets 20 privilege. As to the TVPA, we agree with the unanimous 21 position of the panel that Arar insufficiently pleaded that 22 the alleged conduct of United States officials was done [End Page 7] 1 under color of foreign law. We agree with the district 2 court that Arar insufficiently pleaded his claim regarding 3 detention in the United States, a ruling that has been 4 reinforced by the subsequent authority of Bell Atlantic 5 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Our attention 6 is therefore focused on whether Arar's claims for detention 7 and torture in Syria can be asserted under Bivens v. Six 8 Unknown Named Agents of Federal Bureau of Narcotics, 403 9 U.S. 388 (1971) ("Bivens"). 10 To decide the Bivens issue, we must determine whether 11 Arar's claims invoke Bivens in a new context; and, if so, 12 whether an alternative remedial scheme was available to 13 Arar, or whether (in the absence of affirmative action by 14 Congress) "‘special factors counsel[] hesitation.'" See 15 Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v. 16 Lucas, 462 U.S. 367, 378 (1983)). This opinion holds that 17 "extraordinary rendition" is a context new to Bivens claims, 18 but avoids any categorical ruling on alternative remedies-- 19 because the dominant holding of this opinion is that, in the 20 context of extraordinary rendition, hesitation is warranted 21 by special factors. We therefore affirm. (The term 22 "rendition" and its related usages are defined and discussed [End Page 8] 1 in the margin.1 )

1
The term "rendition" refers to the transfer of a

fugitive from one state to another or from one country to

another. See Black's Law Dictionary 1410 (9th ed. 2004)

(defining "rendition" 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]nterstate rendition[ ] is specifically 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 produce ‘a copy

of an indictment found or an affidavit made before a

magistrate of any State or Territory, charging the person

demanded 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 countries." Cong.

Research Serv., Renditions: Constraints Imposed by Laws on

Torture 1 (2009); see also 1 Oppenheim's International Law

§§ 415-16 (9th ed. 1996). Although most international

renditions occur under a formal extradition treaty,

renditions 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

extrajudicial 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 person suspected of

being a terrorist or supporter of a terrorist group to a [End Page 9] 1 Our ruling does not preclude judicial review and 2 oversight in this context. But if a civil remedy in damages 3 is to be created for harms suffered in the context of 4 extraordinary rendition, it must be created by Congress,

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, Patterns of Global Terrorism 2001, App. D:

Extraditions and Renditions of Terrorists to the United

States. Accordingly, the rendition of suspected terrorists

outside the mechanisms established by extradition treaties--

so-called extraordinary rendition--had been employed as a

means of combating terrorists 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

subsequently upheld by the European Commission on Human

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

International 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). [End Page 10] 1 which alone has the institutional competence to set 2 parameters, delineate safe harbors, and specify relief. If 3 Congress chooses to legislate on this subject, then judicial 4 review of such legislation would be available. 5 6 7 8 [lines 5-13 intentionally left blank] 9 10 11 12 13 14 Applying our understanding of Supreme Court precedent, 15 we decline to create, on our own, a new cause of action 16 against officers and employees of the federal government. 17 Rather, we conclude that, when a case presents the 18 intractable "special factors" apparent here, see supra at 19 36-37, it is for the Executive in the first instance to 20 decide how to implement extraordinary rendition, and for the 21 elected members of Congress--and not for us as judges--to 22 decide whether an individual may seek compensation from [End Page 11] 1 government officers and employees directly, or from the 2 government, for a constitutional violation. Administrations 3 past and present have reserved the right to employ 4 rendition, see David Johnston, U.S. Says Rendition to 5 Continue, but with More Oversight, N.Y. Times, Aug. 24, 6 2009, and not withstanding prolonged public debate, Congress 7 has not prohibited the practice, imposed limits on its use, 8 or created a cause of action for those who allege they have 9 suffered constitutional injury as a consequence. 10 11 I 12 Arar's complaint sets forth the following factual 13 allegations. 14 Arar is a dual citizen of Syria, where he was born and 15 raised, and of Canada, to which his family immigrated when 16 he was 17. 17 While on vacation in Tunisia in September 2002, Arar 18 was called back to work in Montreal. His itinerary called 19 for stops in Zurich and New York. 20 Arar landed at Kennedy Airport around noon on September 21 26. Between planes, Arar presented his Canadian passport to 22 an immigration official who, after checking Arar's [End Page 12] 1 credentials, asked Arar to wait nearby. About two hours 2 later, Arar was fingerprinted and his bags searched. 3 Between 4 p.m. and 9 p.m., Arar was interviewed by an agent 4 from the Federal Bureau of Investigation ("FBI"), who asked 5 (inter alia) about his relationships with certain 6 individuals who were suspected of terrorist ties. Arar 7 admitted knowing at least one of them, but denied being a 8 member of a terrorist group. Following the FBI interview, 9 Arar was questioned by an official from the Immigration and 10 Nationalization Service ("INS") for three more hours; he 11 continued to deny terrorist affiliations. 12 Arar spent the night alone in a room at the airport. 13 The next morning (September 27) he was questioned by FBI 14 agents from approximately 9 a.m. until 2 p.m.; the agents 15 asked him about Osama Bin Laden, Iraq, Palestine, and other 16 things. That evening, Arar was given an opportunity to 17 return voluntarily to Syria. He refused, citing a fear of 18 torture, and asked instead to go to Canada or Switzerland. 19 Later that evening, he was transferred to the Metropolitan 20 Detention Center ("MDC") in Brooklyn, where he remained 21 until October 8. 22 On October 1, the INS initiated removal proceedings, [End Page 13] 1 and served Arar with a document stating that he was 2 inadmissible because he belonged to a terrorist 3 organization. Later that day, he called his mother-in-law 4 in Ottawa--his prior requests to place calls and speak to a 5 lawyer having been denied or ignored. His family retained a 6 lawyer to represent him and contacted the Canadian Consulate 7 in New York. 8 A Canadian consular official visited Arar on October 3. 9 The next day, immigration officers asked Arar to designate 10 in writing the country to which he would want to be removed. 11 He designated Canada. On the evening of October 5, Arar met 12 with his attorney. The following evening, a Sunday, Arar 13 was again questioned by INS officials. The INS District 14 Director in New York left a voicemail message on the office 15 phone of Arar's attorney that the interview would take 16 place, but the attorney did not receive the message in time 17 to attend. Arar was told that she chose not to attend. In 18 days following, the attorney was given false information 19 about Arar's whereabouts. 20 On October 8, 2002, Arar learned that the INS had: (1) 21 ordered his removal to Syria, (2) made a (required) finding 22 that such removal would be consistent with Article 3 of the [End Page 14] 1 Convention Against Torture ("CAT"), 2 and (3) barred him from 2 re-entering the United States for five years. He was found 3 inadmissible to the United States on the basis of 8 U.S.C. 4 § 1182(a)(3)(B)(i)(V), which provides that any alien who "is 5 a member of a terrorist organization" is inadmissible to the 6 United States. The finding was based on Arar's association 7 with a suspected terrorist and other (classified) 8 information. Thereafter, Defendant J. Scott Blackman, an 9 INS Regional Director, made a determination that Arar was 10 clearly and unequivocally a member of Al Qaeda and 11 inadmissible to the United States. A "Final Notice of 12 Inadmissibility," dated October 8, and signed by Defendant 13 Deputy Attorney General Larry Thompson, stated that Arar's 14 removal to Syria would be consistent with the CAT, 15 notwithstanding Arar's articulated fear of torture. 16 Later that day, Arar was taken to New Jersey, whence he [End Page 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 substantial 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 relevant 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). [End Page 15] 1 flew in a small jet to Washington, D.C., and then to Amman, 2 Jordan. When he arrived in Amman on October 9, he was 3 handed over to Jordanian authorities who treated him roughly 4 and then delivered him to the custody of Syrian officials, 5 who detained him at a Syrian Military Intelligence facility. 6 Arar was in Syria for a year, the first ten months in 7 an underground cell six feet by three, and seven feet high. 8 He was interrogated for twelve days on his arrival in Syria, 9 and in that period was beaten on his palms, hips, and lower 10 back with a two-inch-thick electric cable and with bare 11 hands. Arar alleges that United States officials conspired 12 to send him to Syria for the purpose of interrogation under 13 torture, and directed the interrogations from abroad by 14 providing Syria with Arar's dossier, dictating questions for 15 the Syrians to ask him, and receiving intelligence learned 16 from the interviews. 17 On October 20, 2002, Canadian Embassy officials 18 inquired of Syria as to Arar's whereabouts. The next day, 19 Syria confirmed to Canada that Arar was in its custody; that 20 same day, interrogation ceased. Arar remained in Syria, 21 however, receiving visits from Canadian consular officials. 22 On August 14, 2003, Arar defied his captors by telling [End Page 16] 1 the Canadians that he had been tortured and was confined to 2 a small underground cell. Five days later, after signing a 3 confession that he had trained as a terrorist in 4 Afghanistan, Arar was moved to various locations. On 5 October 5, 2003, Arar was released to the custody of a 6 Canadian embassy official in Damascus, and was flown to 7 Ottawa the next day. 8 9 II 10 On January 22, 2004, Arar filed a four-count complaint 11 in the Eastern District of New York seeking damages from 12 federal officials for harms suffered as a result of his 13 detention and confinement in the United States and his 14 detention and interrogation in Syria. Count One of Arar's 15 complaint seeks relief under the Torture Victim Protection 16 Act ("TVPA"), 28 U.S.C. § 1350 note (a)(1) (the "TVPA 17 claim"). Counts Two and Three seek relief under the Fifth 18 Amendment for Arar's alleged torture in Syria (Count Two) 19 and his detention there (Count Three). Count Four seeks 20 relief under the Fifth Amendment for Arar's detention in the 21 United States prior to his removal to Syria. Arar also 22 seeks a declaratory judgment that defendants' conduct [End Page 17] 1 violated his "constitutional, civil, and human rights." 2 Defendants-Appellees moved to dismiss the complaint 3 pursuant to Federal Rule of Civil Procedure 12(b), 4 challenging personal jurisdiction over Defendants Ashcroft, 5 Thompson, and Mueller and challenging subject-matter 6 jurisdiction as to the claims alleging confinement and 7 torture in Syria on the ground that they arise from an order 8 of removal and are therefore subject to the jurisdictional 9 bar of the Immigration and Nationality Act (see infra Part 10 VI). It was also argued that Arar lacked standing to seek a 11 declaratory judgment. 12 On February 16, 2006, the district court dismissed 13 Counts One, Two, and Three with prejudice, and Count Four 14 without prejudice. Arar v. Ashcroft, 414 F. Supp. 2d 250, 15 287-88 (E.D.N.Y. 2006). The district court also concluded 16 that Arar lacked standing to bring a claim for declaratory 17 relief. Id. at 258-59. 18 Arar elected not to re-plead Count Four, and on August 19 17, 2006, the district court entered judgment dismissing all 20 of Arar's claims. Arar timely appealed. A divided three- 21 judge panel of this Court affirmed on June 30, 2008. Arar 22 v. Ashcroft, 532 F.3d 157 (2d Cir. 2008). The Court voted [End Page 18] 1 to rehear the case in banc, and oral argument was heard on 2 December 9, 2008. 3 4 III 5 We review de novo the district court's decision to 6 grant a motion to dismiss. In re NYSE Specialists Sec. 7 Litig., 503 F.3d 89, 95 (2d Cir. 2007). In so doing, we 8 accept as true the factual allegations of the complaint, and 9 construe all reasonable inferences that can be drawn from 10 the complaint in the light most favorable to the plaintiff. 11 Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007); see also 12 Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009). 13 At the outset, we conclude (as the panel concluded 14 unanimously) that Arar: (1) sufficiently alleged personal 15 jurisdiction over the defendants, and (2) has no standing to 16 seek declaratory relief; in addition, because we dismiss the 17 action for the reasons set forth below, we need not (and do 18 not) reach the issues of qualified immunity or the state 19 secrets privilege. 20 This opinion owes a debt to the panel opinions. 21 22 [End Page 19] 1 IV 2 The TVPA creates a cause of action for damages against 3 any "individual who, under actual or apparent authority, or 4 color of law, of any foreign nation . . . subjects an 5 individual to torture." 28 U.S.C. § 1350 note (a)(1). 6 Count One of Arar's complaint alleges that the defendants 7 conspired with Jordanian and Syrian officials to have Arar 8 tortured in direct violation of the TVPA. 9 Any allegation arising under the TVPA requires a 10 demonstration that the defendants acted under color of 11 foreign law, or under its authority. Kadic v. Karadzic, 70 12 F.3d 232, 245 (2d Cir. 1995). "In construing the term[] . . 13 . ‘color of law,' courts are instructed to look . . . to 14 jurisprudence under 42 U.S.C. § 1983 . . . ." Id. (citing 15 H.R. Rep. No. 367, 102d Cong., 2d Sess., at 5 (1991) 16 reprinted in 1992 U.S.C.C.A.N. 84, 87). Under section 1983, 17 "[t]he traditional definition of acting under color of state 18 law requires that the defendant . . . have exercised power 19 ‘possessed by virtue of state law and made possible only 20 because the wrongdoer is clothed with the authority of state 21 law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (quoting 22 United States v. Classic, 313 U.S. 299, 326 (1941)). The [End Page 20] 1 determination as to whether a non-state party acts under 2 color of state law requires an intensely fact-specific 3 judgment unaided by rigid criteria as to whether particular 4 conduct may be fairly attributed to the state. See 5 Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 6 U.S. 288, 295 (2001). A federal officer who conspires with 7 a state officer may act under color of state law, see 8 Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154 9 (2d Cir. 2006); but since "federal officials typically act 10 under color of federal law," they are rarely deemed to have 11 acted under color of state law. Strickland ex rel. 12 Strickland v. Shalala, 123 F.3d 863, 866 (6th Cir. 1997) 13 (emphasis in original). 14 Accordingly, to state a claim under the TVPA, Arar must 15 adequately allege that the defendants possessed power under 16 Syrian law, and that the offending actions (i.e., Arar's 17 removal to Syria and subsequent torture) derived from an 18 exercise of that power, or that defendants could not have 19 undertaken their culpable actions absent such power. The 20 complaint contains no such allegation. Arar has argued that 21 his allegation of conspiracy cures any deficiency under the 22 TVPA. But the conspiracy allegation is that United States [End Page 21] 1 officials encouraged and facilitated the exercise of power 2 by Syrians in Syria, not that the United States officials 3 had or exercised power or authority under Syrian law. The 4 defendants are alleged to have acted under color of federal, 5 not Syrian, law, and to have acted in accordance with 6 alleged federal policies and in pursuit of the aims of the 7 federal government in the international context. At most, 8 it is alleged that the defendants encouraged or solicited 9 certain conduct by foreign officials. Such conduct is 10 insufficient to establish that the defendants were in some 11 way clothed with the authority of Syrian law or that their 12 conduct may otherwise be fairly attributable to Syria. See, 13 e.g., Harbury v. Hayden, 444 F. Supp. 2d 19, 42-43 (D.D.C. 14 2006), aff'd on other grounds, 522 F.3d 413 (D.C. Cir. 15 2008). We therefore agree with the unanimous holding of the 16 panel and affirm the District Court's dismissal of the TVPA 17 claim.3 [End Page 3]
Judge P OOLER relies on a line of section 1983 cases

explaining 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 P OOLER 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 [End Page 22] 1 V 2 Count Four of the complaint alleges that the conditions 3 of confinement in the United States (prior to Arar's removal 4 to Syria), and the denial of access to courts during that 5 detention, violated Arar's substantive due process rights 6 under the Fifth Amendment. The District Court dismissed 7 this claim--without prejudice--as insufficiently pleaded, 8 and invited Arar to re-plead the claim in order to 9 "articulate more precisely the judicial relief he was 10 denied" and to "name those defendants that were personally 11 involved in the alleged unconstitutional treatment." Arar, 12 414 F. Supp. 2d at 286, 287. Arar elected (in his counsel's 13 words) to "stand on the allegations of his original 14 complaint." 15 On a motion to dismiss, courts require "enough facts to

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 foreign

state on matters involving intelligence, military, and

diplomatic affairs. At least one commentator has proposed a

legislative amendment to bring the law into line with what

Judge P OOLER 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

held civilly liable for torture . . . . Congress could amend

the TVPA to extend the cause of action to the victims of

torture inflicted under color of federal law."). [End Page 23] 1 state a claim to relief that is plausible on its face." 2 Twombly, 550 U.S. at 570; see also Ashcroft v. Iqbal, 129 S. 3 Ct. 1937, 1949-50 (2009). "Factual allegations must be 4 enough to raise a right to relief above the speculative 5 level . . . ." Twombly, 550 U.S. at 555. Broad allegations 6 of conspiracy are insufficient; the plaintiff "must provide 7 some factual basis supporting a meeting of the minds, such 8 that defendants entered into an agreement, express or tacit, 9 to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 10 110 (2d Cir. 2003) (internal quotation marks omitted) 11 (addressing conspiracy claims under 42 U.S.C. § 1985). 12 Furthermore, a plaintiff in a Bivens action is required to 13 allege facts indicating that the defendants were personally 14 involved in the claimed constitutional violation. See Ellis 15 v. Blum, 643 F.2d 68, 85 (2d Cir. 1981); see also Thomas v. 16 Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). 17 Arar alleges that "Defendants"--undifferentiated-- 18 "denied Mr. Arar effective access to consular assistance, 19 the courts, his lawyers, and family members" in order to 20 effectuate his removal to Syria. But he fails to specify 21 any culpable action taken by any single defendant, and does 22 not allege the "meeting of the minds" that a plausible [End Page 24] 1 conspiracy claim requires. He alleges (in passive voice) 2 that his requests to make phone calls "were ignored," and 3 that "he was told" that he was not entitled to a lawyer, but 4 he fails to link these denials to any defendant, named or 5 unnamed. Given this omission, and in view of Arar's 6 rejection of an opportunity to re-plead, we agree with the 7 District Court and the panel majority that this Count of the 8 complaint must be dismissed. 9 We express no view as to the sufficiency of the 10 pleading otherwise, that is, whether the conduct alleged (if 11 plausibly attributable to defendants) would violate a 12 constitutionally protected interest.4 To the extent that 13 this claim may be deemed to be a Bivens-type action, it may 14 raise some of the special factors considered later in this 15 opinion. 16 17 VI 18 Arar's remaining claims seek relief on the basis of 19 torture and detention in Syria, and are cast as violations [End Page 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. [End Page 25] 1 of substantive due process. At the outset, Defendants argue 2 that the jurisdictional bar of the INA deprived the District 3 Court of subject-matter jurisdiction over these counts 4 because Arar's removal was conducted pursuant to a decision 5 that was "at the discretion" of the Attorney General. 6 "[A]ny policy toward aliens is vitally and intricately 7 interwoven with contemporaneous policies in regard to the 8 conduct of foreign relations, the war power, and the 9 maintenance of a republican form of government. Such 10 matters are so exclusively entrusted to the political 11 branches of government as to be largely immune from judicial 12 inquiry or interference." Harisiades v. Shaughnessy, 342 13 U.S. 580, 588-89 (1952). Accordingly, the INA requires an 14 alien to seek relief only through judicial review of a 15 removal order in the appropriate court of appeals; it 16 entirely forecloses judicial review of decisions of the 17 Attorney General or the Secretary of Homeland Security 18 specified by the INA to be within the discretion of those 19 officers. See 8 U.S.C. § 1252.5 [End Page 5]

review of all questions of law and fact, including

interpretation and application of constitutional and

statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United States [End Page 26] 1 However, the application of the INA's jurisdictional 2 bar is problematic in this case because the proceedings 3 under the INA are alleged to have been irregular in several 4 respects. 5 First, the complaint alleges that the government took 6 the following actions that impaired Arar's timely ability to 7 seek the judicial review normally afforded under the INA and 8 to receive any meaningful relief: denying his requests to 9 contact an attorney or his family; misleading his lawyer 10 (after one was retained for him) as to his location and 11 status, thereby frustrating any advocacy on his behalf; and 12 serving the removal order on Arar en route to Amman, when he 13 no longer had access to his attorney and could not make use

. . . 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 Attorney
General or the Secretary of Homeland Security 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].
[End Page 27] 1 of the review process. The complaint also alleges that the 2 government undertook extraordinary rendition in clear 3 violation of the protections afforded aliens by the INA, 4 suggesting that the government itself might not have viewed 5 the INA as the real source of its removal authority in this 6 context. However, mere allegations of obstruction generally 7 do not circumvent a congressionally mandated remedial 8 scheme. Otherwise, limitations on the jurisdiction of the 9 district courts could easily be evaded and thwarted. 10 Second, although the INA governs the status of aliens 11 in transit at United States airports, and clearly has a role 12 in such circumstances, see 8 U.S.C. § 1182(d)(4)(C), this is 13 not a typical immigration case according to the complaint: 14 Arar took no step to enter or stay in this country; he was 15 changing planes to go elsewhere, repeatedly expressed his 16 desire to return to Canada, and was ticketed to Montreal. 17 Even though this case does not present the familiar fact 18 pattern of an alien trying to enter or remain in the United 19 States, our immigration laws apply with equal force to 20 aliens who seek admission to our country and to aliens whom 21 the government seeks to keep out of our country. 22 In short, it is not clear that the INA's judicial [End Page 28] 1 review provisions govern circumstances of involuntary 2 rendition such as those alleged here. Indeed, rendition may 3 take place in circumstances that in no way implicate United 4 States immigration laws, such as when a person is detained 5 abroad and rendered to some third country. 6 Finally, even if the INA's jurisdictional bar is 7 surmounted and review not foreclosed, Arar has alleged 8 circumstances that would have prevented him from obtaining 9 review. If, as he alleges, he was served with the removal 10 order while he was already en route to Amman, the INA could 11 have afforded him no relief then (and can afford him no 12 affirmative relief at this time in this case). 13 In any event, we need not decide the vexed question of 14 whether the INA bar defeats jurisdiction of Arar's 15 substantive due process claims, because we conclude below 16 that the case must be dismissed at the threshold for other 17 reasons. 18 19 VII 20 In Bivens v. Six Unknown Named Agents of Federal Bureau 21 of Narcotics, 403 U.S. 388 (1971), the Supreme Court 22 "recognized for the first time an implied private action for [End Page 29] 1 damages against federal officers alleged to have violated a 2 citizen's constitutional rights." Corr. Servs. Corp. v. 3 Malesko, 534 U.S. 61, 66 (2001). The plaintiff in Bivens 4 had been subjected to an unlawful, warrantless search which 5 resulted in his arrest. Bivens, 403 U.S. at 389-90. The 6 Supreme Court allowed him to state a cause of action for 7 money damages directly under the Fourth Amendment, thereby 8 giving rise to a judicially-created remedy stemming directly 9 from the Constitution itself. Id. at 397. 10 The purpose of the Bivens remedy "is to deter 11 individual federal officers from committing constitutional 12 violations." Malesko, 534 U.S. at 70. So a Bivens action 13 is brought against individuals, and any damages are payable 14 by the offending officers. Carlson v. Green, 446 U.S. 14, 15 21 (1980). Notwithstanding the potential breadth of claims 16 that would serve that objective, the Supreme Court has 17 warned that the Bivens remedy is an extraordinary thing that 18 should rarely if ever be applied in "new contexts." See 19 Malesko, 534 U.S. at 69 (internal quotation marks omitted); 20 Schweiker v. Chilicky, 487 U.S. 412, 421 (1988); see also 21 Dotson v. Griesa, 398 F.3d 156, 166 (2d Cir. 2005) ("Because 22 a Bivens action is a judicially created remedy . . . courts [End Page 30] 1 proceed cautiously in extending such implied relief 2 . . . ."). In the 38 years since Bivens, the Supreme Court 3 has extended it twice only: in the context of an employment 4 discrimination claim in violation of the Due Process Clause, 5 Davis v. Passman, 442 U.S. 228 (1979); and in the context of 6 an Eighth Amendment violation by prison officials, Carlson, 7 446 U.S. 14; see also Wilkie v. Robbins, 551 U.S. 537, 550 8 (2007) ("[I]n most instances we have found a Bivens remedy 9 unjustified."); Malesko, 534 U.S. at 68 ("[W]e have 10 consistently refused to extend Bivens liability to any new 11 context or new category of defendants."). Since Carlson in 12 1980, the Supreme Court has declined to extend the 13 Bivens remedy in any new direction at all. Among the 14 rejected contexts are: violations of federal employees' 15 First Amendment rights by their employers, Bush v. Lucas, 16 462 U.S. 367 (1983); harms suffered incident to military 17 service, United States v. Stanley, 483 U.S. 669 (1987); 18 Chappell v. Wallace, 462 U.S. 296 (1983); denials of Social 19 Security benefits, Schweiker, 487 U.S. at 412; claims 20 against federal agencies, FDIC v. Meyer, 510 U.S. 471 21 (1994); claims against private corporations operating under 22 federal contracts, Malesko, 534 U.S. 61 (2001); and claims [End Page 31] 1 of retaliation by federal officials against private 2 landowners, Wilkie, 551 U.S. at 562. 3 This case requires us to examine whether allowing this 4 Bivens action to proceed would extend Bivens to a new 5 "context," and if so, whether such an extension is 6 advisable. 7 "Context" is not defined in the case law. At a 8 sufficiently high level of generality, any claim can be 9 analogized to some other claim for which a Bivens action is 10 afforded, just as at a sufficiently high level of 11 particularity, every case has points of distinction. We 12 construe the word "context" as it is commonly used in law: 13 to reflect a potentially recurring scenario that has similar 14 legal and factual components. 15 The context of this case is international rendition, 16 specifically, "extraordinary rendition." Extraordinary 17 rendition is treated as a distinct phenomenon in 18 international law. See supra note 1. Indeed, law review 19 articles that affirmatively advocate the creation of a 20 remedy in cases like Arar's recognize "extraordinary 21 rendition" as the context. See, e.g., Peter Johnston, Note, 22 Leaving the Invisible Universe: Why All Victims of [End Page 32] 1 Extraordinary Rendition Need a Cause of Action Against the 2 United States, 16 J.L. & Pol'y 357, 363 (2007). More 3 particularly, the context of extraordinary rendition in 4 Arar's case is the complicity or cooperation of United 5 States government officials in the delivery of a non-citizen 6 to a foreign country for torture (or with the expectation 7 that torture will take place). This is a "new context": no 8 court has previously afforded a Bivens remedy for 9 extraordinary rendition. 10 Once we have identified the context as "new," we must 11 decide whether to recognize a Bivens remedy in that 12 environment of fact and law . The Supreme Court tells us 13 that this is a two-part inquiry. In order to determine 14 whether to recognize a Bivens remedy in a new context, we 15 must consider: whether there is an alternative remedial 16 scheme available to the plaintiff; and whether "‘special 17 factors counsel[] hesitation'" in creating a Bivens remedy. 18 Wilkie, 551 U.S. at 550 (quoting Bush, 462 U.S. at 378). 19 20 VIII 21 There are several possible alternative remedial schemes 22 here. Congress has established a substantial, [End Page 33] 1 comprehensive, and intricate remedial scheme in the context 2 of immigration. The INA provides for review of final orders 3 of removal, including review of the government's designation 4 of a particular destination country and many (albeit not 5 all) decisions of the Attorney General and the Secretary of 6 Homeland Security. See 8 U.S.C. § 1252; Mendis v. Filip, 7 554 F.3d 335, 338 (2d Cir. 2009). Congress has supplemented 8 this general remedial scheme with specific guidance for 9 particular contexts by enacting (i) the Foreign Affairs 10 Reform and Restructuring Act of 1998 ("FARRA"), 8 U.S.C. 11 § 1231 note; see also 8 C.F.R. § 208.16(c); and (ii) the 12 TVPA, which, as already discussed, provides no remedy to 13 Arar. At the same time, Congress has expressly limited 14 review of the removal of aliens who (like Arar) are 15 removable for reasons related to national security. See 8 16 U.S.C. § 1225(c). Congress has also regularly modified the 17 various review mechanisms to account for perceived 18 difficulties and complications. See, e.g., REAL ID Act of 19 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302; Illegal 20 Immigration Reform and Immigrant Responsibility Act of 1996, 21 Pub. L. No. 104-208, div. C, 110 Stat. 3009-546. In light 22 of the complexity of the remedial scheme Congress has [End Page 34] 1 created (and frequently amended), we would ordinarily draw a 2 strong inference that Congress intended the judiciary to 3 stay its hand and refrain from creating a Bivens action in 4 this context. See Wilkie, 551 U.S. at 554; Schweiker, 487 5 U.S. at 424-29; Bush, 462 U.S. at 388. 6 We recognize, however, that any reliance on the INA as 7 an alternative remedial scheme presents difficulties for the 8 same reasons discussed in Part VI above. Arar has alleged 9 that he was actively prevented from seeking any meaningful 10 review and relief through the INA processes. In the end, we 11 need not decide whether an alternative remedial scheme was 12 available because, "even in the absence of an alternative 13 [remedial scheme], a Bivens remedy is a subject of judgment 14 . . . [in which] courts must . . . pay particular heed . . . 15 to any special factors counselling hesitation before 16 authorizing a new kind of federal litigation." Wilkie, 551 17 U.S. at 550 (internal quotation marks omitted).6 Such 18 special factors are clearly present in the new context of [End Page 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). [End Page 35] 1 this case, and they sternly counsel hesitation. 2 3 IX 4 When the Bivens cause of action was created in 1971, 5 the Supreme Court explained that such a remedy could be 6 afforded because that "case involve[d] no special factors 7 counselling hesitation in the absence of affirmative action 8 by Congress." Bivens, 403 U.S. at 396. This prudential 9 limitation was expressly weighed by the Court in Davis, 442 10 U.S. at 245-46, and Carlson, 446 U.S. at 18-19, and such 11 hesitation has defeated numerous Bivens initiatives, see, 12 e.g., Stanley, 483 U.S. at 683-84; Chappell, 462 U.S. at 13 304; Wilkie, 551 U.S. at 554-55; Dotson, 398 F.3d at 166-67. 14 Among the "special factors" that have "counsel[ed] 15 hesitation" and thereby foreclosed a Bivens remedy are: 16 military concerns, Stanley, 483 U.S. at 683-84; Chappell, 17 462 U.S. at 304; separation of powers, United States v. City 18 of Philadelphia, 644 F.2d 187, 200 (3d Cir. 1980); the 19 comprehensiveness of available statutory schemes, Dotson, 20 398 F.3d at 166; national security concerns, Beattie v. 21 Boeing Co., 43 F.3d 559, 563 (10th Cir. 1994); and foreign 22 policy considerations, United States v. Verdugo-Urquidez, [End Page 36] 1 494 U.S. 259, 274 (1990). 2 Two principles emerge from this review of case law: 3 • "Special factors" is an embracing category, 4 not easily defined; but it is limited in terms 5 to factors that provoke "hesitation." While 6 special factors should be substantial enough 7 to justify the absence of a damages remedy for 8 a wrong, no account is taken of countervailing 9 factors that might counsel alacrity or 10 activism, and none has ever been cited by the 11 Supreme Court as a reason for affording a 12 Bivens remedy where it would not otherwise 13 exist. 14 15 • The only relevant threshold--that a factor 16 "counsels hesitation"--is remarkably low. It 17 is at the opposite end of the continuum from 18 the unflagging duty to exercise jurisdiction. 19 Hesitation is a pause, not a full stop, or an 20 abstention; and to counsel is not to require. 21 "Hesitation" is "counseled" whenever 22 thoughtful discretion would pause even to 23 consider.7 24 25 With these principles in mind, we adduce, one by one, 26 special factors that bear upon the recognition of a Bivens 27 remedy for rendition. 28 29 X 30 Although this action is cast in terms of a claim for [End Page 7]
Judge P OOLER 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 countervailing factors and because we

apply the standard we announce. [End Page 37] 1 money damages against the defendants in their individual 2 capacities, it operates as a constitutional challenge to 3 policies promulgated by the executive. Our federal system 4 of checks and balances provides means to consider allegedly 5 unconstitutional executive policy, but a private action for 6 money damages against individual policymakers is not one of 7 them. A Bivens action is sometimes analogized to an action 8 pursuant to 42 U.S.C. § 1983, but it does not reach so far 9 as to create the federal counterpart to an action under 10 Monell v. Department of Social Services, 436 U.S. 658 11 (1978). Here, we need not decide categorically whether a 12 Bivens action can lie against policymakers because in the 13 context of extraordinary rendition, such an action would 14 have the natural tendency to affect diplomacy, foreign 15 policy, and the security of the nation, and that fact 16 counsels hesitation. Our holding need be no broader. 17 18 A. Security and Foreign Policy 19 The Executive has practiced rendition since at least 20 1995. See Extraordinary Rendition in U.S. Counterterrorism 21 Policy: The Impact on Transatlantic Relations: Joint Hearing 22 Before the Subcomm. on International Organizations, Human [End Page 38] 1 Rights, and Oversight and the Subcomm. on Europe of the H. 2 Comm. on Foreign Affairs, 110th Cong. 15 (2007) (statement 3 of Michael F. Scheuer, Former Chief, Bin Laden Unit, CIA). 4 Arar gives "the mid-1990s" as the date for the inception of 5 the policy under which he was sent to Syria for torture. 6 Pl. Maher Arar's Mem. of Law in Opp'n to Defs.' Invocation 7 of the State Secrets Privilege, Mar. 14, 2005, at 6. A suit 8 seeking a damages remedy against senior officials who 9 implement such a policy is in critical respects a suit 10 against the government as to which the government has not 11 waived sovereign immunity. Such a suit unavoidably 12 influences government policy, probes government secrets, 13 invades government interests, enmeshes government lawyers, 14 and thereby elicits government funds for settlement. 15 (Canada has already paid Arar $10 million. 8 ) 16 It is a substantial understatement to say that one must 17 hesitate before extending Bivens into such a context. A 18 suit seeking a damages remedy against senior officials who 19 implement an extraordinary rendition policy would enmesh the [End Page 8]
See Press Release and Announcement, Stephen Harper,

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

http://pm.gc.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. [End Page 39] 1 courts ineluctably in an assessment of the validity and 2 rationale of that policy and its implementation in this 3 particular case, matters that directly affect significant 4 diplomatic and national security concerns. It is clear from 5 the face of the complaint that Arar explicitly targets the 6 "policy" of extraordinary rendition; he cites the policy 7 twice in his complaint, and submits documents and media 8 reports concerning the practice. His claim cannot proceed 9 without inquiry into the perceived need for the policy, the 10 threats to which it responds, the substance and sources of 11 the intelligence used to formulate it, and the propriety of 12 adopting specific responses to particular threats in light 13 of apparent geopolitical circumstances and our relations 14 with foreign countries. 15 The Supreme Court has expressly counseled that matters 16 touching upon foreign policy and national security fall 17 within "an area of executive action ‘in which courts have 18 long been hesitant to intrude'" absent congressional 19 authorization. Lincoln v. Vigil, 508 U.S. 182, 192 (1993) 20 (emphasis added) (quoting Franklin v. Massachusetts, 505 21 U.S. 788, 819 (1992) (Stevens, J., concurring in part and 22 concurring in the judgment)). It "has recognized ‘the [End Page 40] 1 generally accepted view that foreign policy was the province 2 and responsibility of the Executive. . . . Thus, unless 3 Congress specifically has provided otherwise, courts 4 traditionally have been reluctant to intrude upon the 5 authority of the Executive in military and national security 6 affairs." Dep't of Navy v. Egan, 484 U.S. 518, 529-30 7 (1988) (emphasis added) (quoting Haig v. Agee, 453 U.S. 280, 8 293-94 (1981)). This "hesita[tion]" and "reluctan[ce]" is 9 counseled by: 10 • the constitutional separation of powers among 11 the branches of government, see United States 12 v. Curtiss-Wright Exp. Co., 299 U.S. 304, 320- 13 22 (1936) (noting the "plenary and exclusive 14 power of the President as the sole organ of 15 the federal government in the field of 16 international relations" and discussing the 17 difficulties presented by congressional--let 18 alone judicial--involvement in such affairs), 19 and 20 21 • the limited institutional competence of the 22 judiciary, see Boumediene v. Bush, 128 S. Ct. 23 2229, 2276-77 (2008) ("Unlike the President 24 and some designated Members of Congress, 25 neither the Members of this Court nor most 26 federal judges begin the day with briefings 27 that may describe new and serious threats to 28 our Nation and its people. The law must accord 29 the Executive substantial authority to 30 apprehend and detain those who pose a real 31 danger to our security."); see also Munaf v. 32 Geren, 128 S. Ct. 2207, 2226 (2008) ("The 33 Judiciary is not suited to [make] 34 determinations [in the area of foreign 35 affairs] that would . . . undermine the [End Page 41] 1 Government's ability to speak with one voice 2 in this area. In contrast, the political 3 branches are well situated to consider 4 sensitive foreign policy issues, such as 5 whether there is a serious prospect of torture 6 at the hands of any ally, and what to do about 7 it if there is." (citation omitted)). 8 9 True, courts can--with difficulty and resourcefulness-- 10 consider state secrets and even reexamine judgments made in 11 the foreign affairs context when they must, that is, when 12 there is an unflagging duty to exercise our jurisdiction. 13 Otherwise: 14 [T]he special needs of foreign affairs must stay 15 our hand in the creation of damage remedies 16 against military and foreign policy officials for 17 allegedly unconstitutional treatment of foreign 18 subjects causing injury abroad. The foreign 19 affairs implications of suits such as this cannot 20 be ignored--their ability to produce what the 21 Supreme Court has called in another context 22 "embarrassment of our government abroad" through 23 "multifarious pronouncements by various 24 departments on one question." Whether or not the 25 present litigation is motivated by considerations 26 of geopolitics rather than personal harm, we think 27 that as a general matter the danger of foreign 28 citizens' using the courts in situations such as 29 this to obstruct the foreign policy of our 30 government is sufficiently acute that we must 31 leave to Congress the judgment whether a damage 32 remedy should exist. 33 Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 34 1985) (Scalia, J.) (quoting Baker v. Carr, 369 U.S. 186, 217 35 (1962)). Absent clear congressional authorization, the [End Page 42] 1 judicial review of extraordinary rendition would offend the 2 separation of powers and inhibit this country's foreign 3 policy. It does not matter for our purposes whether such 4 consequences would flow from innocent interference or from 5 deliberate manipulation. These concerns must counsel 6 hesitation in creating a new damages remedy that Congress 7 has not seen fit to authorize. 8 9 B. Classified Information 10 The extraordinary rendition context involves exchanges 11 among the ministries and agencies of foreign countries on 12 diplomatic, security, and intelligence issues. The 13 sensitivities of such classified material are "too obvious 14 to call for enlarged discussion." Dep't of Navy, 484 U.S. 15 at 529 (internal quotation marks omitted). Even the probing 16 of these matters entails the risk that other countries will 17 become less willing to cooperate with the United States in 18 sharing intelligence resources to counter terrorism. "At 19 its core," as the panel opinion observed, "this suit arises 20 from the Executive Branch's alleged determination that (a) 21 Arar was affiliated with Al Qaeda, and therefore a threat to 22 national security, and (b) his removal to Syria was [End Page 43] 1 appropriate in light of U.S. diplomatic and national 2 security interests." Arar, 532 F.3d at 181. To determine 3 the basis for Arar's alleged designation as an Al Qaeda 4 member and his subsequent removal to Syria, the district 5 court would have to consider what was done by the national 6 security apparatus of at least three foreign countries, as 7 well as that of the United States. Indeed, the Canadian 8 government--which appears to have provided the intelligence 9 that United States officials were acting upon when they 10 detained Arar--paid Arar compensation for its role in the 11 events surrounding this lawsuit, but has also asserted the 12 need for Canada itself to maintain the confidentiality of 13 certain classified materials related to Arar's claims.9 14 15 C. Open Courts 16 Allegations of conspiracy among government agencies 17 that must often work in secret inevitably implicate a lot of 18 classified material that cannot be introduced into the 19 public record. Allowing Arar's claims to proceed would very 20 likely mean that some documents or information sought by [End Page 9]
See Ottawa Trying to Hold Back Documents from Arar

Inquiry, CBC News, Apr. 29, 2004,

http://www.cbc.ca/canada/story/2004/04/29/arar040429.html. [End Page 44] 1 Arar would be redacted, reviewed in camera, and otherwise 2 concealed from the public. Concealment does not bespeak 3 wrongdoing: in such matters, it is just as important to 4 conceal what has not been done. Nevertheless, these 5 measures would excite suspicion and speculation as to the 6 true nature and depth of the supposed conspiracy, and as to 7 the scope and depth of judicial oversight. Indeed, after an 8 inquiry at oral argument as to whether classified materials 9 relating to Arar's claims could be made available for review 10 in camera, Arar objected to the supplementation of the 11 record with material he could not see. See Letter from 12 David Cole, Counsel for Maher Arar (Dec. 23, 2008). After 13 pointing out that such materials are unnecessary to the 14 adjudication of a motion on the pleadings (where the 15 allegations of the complaint must be accepted as true), Arar 16 protested that any materials submitted ex parte and in 17 camera would not be subject to adversarial testing and that 18 consideration of such documents would be "presumptively 19 unconstitutional" since they would result in a decision "on 20 the basis of secret information available to only one side 21 of the dispute." 22 The court's reliance on information that cannot be [End Page 45] 1 introduced into the public record is likely to be a common 2 feature of any Bivens actions arising in the context of 3 alleged extraordinary rendition. This should provoke 4 hesitation, given the strong preference in the Anglo- 5 American legal tradition for open court proceedings, a value 6 incorporated into modern First and Sixth Amendment law. See 7 U.S. Const. amend. VI (guaranteeing the right to a "public 8 trial" (emphasis added)); Westmoreland v. Columbia Broad. 9 Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984) (noting that the 10 First Amendment secures "a right of access to civil 11 proceedings"). The risk of limiting access, of course, is 12 that where a proceeding "has been concealed from public view 13 an unexpected outcome can cause a reaction that the system 14 at best has failed and at worst has been corrupted." 15 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 16 (1980). "[T]he appearance of justice can best be provided 17 by allowing people to observe" proceedings. Id. at 572. 18 "People in an open society do not demand infallibility from 19 their institutions, but it is difficult for them to accept 20 what they are prohibited from observing." Id. This is 21 especially true in the courts, where the guarantee of a 22 public trial "has always been recognized as a safeguard [End Page 46] 1 against any attempt to employ our courts as instruments of 2 persecution. The knowledge that every criminal trial is 3 subject to contemporaneous review in the forum of public 4 opinion is an effective restraint on possible abuse of 5 judicial power." In re Oliver, 333 U.S. 257, 270 (1948). 6 Granted, there are circumstances in which a court may 7 close proceedings to which a public right of access 8 presumptively attaches. See Waller v. Georgia, 467 U.S. 39, 9 45 (1984); United States v. Alcantara, 396 F.3d 189, 199-200 10 (2d Cir. 2005); United States v. Doe, 63 F.3d 121, 127-28 11 (2d Cir. 1995). And the problems posed by the need to 12 consider classified material are unavoidable in some 13 criminal prosecutions and in other cases where we have a 14 duty, imposed by Congress, to exercise jurisdiction. But 15 this is not such a circumstance or such a case. The 16 preference for open rather than clandestine court 17 proceedings is a special factor that counsels hesitation in 18 extending Bivens to the extraordinary rendition context. 19 20 XI 21 A government report states that this case involves 22 assurances received from other governments in connection [End Page 47] 1 with the determination that Arar's removal to Syria would be 2 consistent with Article 3 of the CAT. Office of Inspector 3 General, Dep't of Homeland Sec., (Unclassified) The Removal 4 of a Canadian Citizen to Syria 5, 22, 26-27 (2008).10 This 5 case is not unique in that respect. Cases in the context of 6 extraordinary rendition are very likely to present serious 7 questions relating to private diplomatic assurances from 8 foreign countries received by federal officials, and this 9 feature of such claims opens the door to graymail. 10 11 A. Assurances 12 The regulations promulgated pursuant to the FARRA 13 explicitly authorize the removal of an alien to a foreign 14 country following receipt from that country of sufficiently 15 reliable assurances that the alien will not be tortured. 16 See 8 C.F.R. § 208.18(c). Should we decide to extend Bivens 17 into the extraordinary rendition context, resolution of 18 these actions will require us to determine whether any such [End Page 10]
We take judicial notice of the existence of this

unclassified 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. [End Page 48] 1 assurances were received from the country of rendition and 2 whether the relevant defendants relied upon them in good 3 faith in removing the alien at issue. 4 Any analysis of these questions would necessarily 5 involve us in an inquiry into the work of foreign 6 governments and several federal agencies, the nature of 7 certain classified information, and the extent of secret 8 diplomatic relationships. An investigation into the 9 existence and content of such assurances would potentially 10 embarrass our government through inadvertent or deliberate 11 disclosure of information harmful to our own and other 12 states.11 Given the general allocation of authority over 13 foreign relations to the political branches and the 14 decidedly limited experience and knowledge of the federal 15 judiciary regarding such matters, such an investigation 16 would also implicate grave concerns about the separation of 17 powers and our institutional competence. See, e.g., Kiyemba [End Page 11]
This risk is not necessarily abated by the

undertakings of counsel. See, e.g., United States v.

Sattar, 395 F. Supp. 2d 79 (S.D.N.Y. 2005) (denying attorney

Lynne Stewart's motion 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). [End Page 49] 1 v. Obama, 561 F.3d 509, 515 (D.C. Cir. 2009) ("[S]eparation 2 of powers principles . . . preclude the courts from second- 3 guessing the Executive's assessment of the likelihood a 4 detainee will be tortured by a foreign sovereign."). These 5 considerations strongly counsel hesitation in acknowledging 6 a Bivens remedy in this context. 7 8 B. Graymail 9 As emphasized above, Arar invokes Bivens to challenge 10 policies promulgated and pursued by the executive branch, 11 not simply isolated actions of individual federal employees. 12 Such an extension of Bivens is without precedent and 13 implicates questions of separation of powers as well as 14 sovereign immunity. This, by itself, counsels hesitation; 15 there is further reason to hesitate where, as in this case, 16 the challenged government policies are the subject of 17 classified communications: a possibility that such suits 18 will make the government "vulnerable to ‘graymail,' i.e., 19 individual lawsuits brought to induce the [government] to 20 settle a case (or prevent its filing) out of fear that any 21 effort to litigate the action would reveal classified 22 information that may undermine ongoing covert operations," [End Page 50] 1 or otherwise compromise foreign policy efforts. Tenet v. 2 Doe, 544 U.S. 1, 11 (2005). We cast no aspersions on Arar, 3 or his lawyers; this dynamic inheres in any case where there 4 is a risk that a defendant might "disclose classified 5 information in the course of a trial." United States v. 6 Pappas, 94 F.3d 795, 799 (2d Cir. 1996). This is an endemic 7 risk in cases (however few) which involve a claim like 8 Arar's. 9 The risk of graymail is itself a special factor which 10 counsels hesitation in creating a Bivens remedy. There 11 would be hesitation enough in an ordinary graymail case, 12 i.e., where the tactic is employed against the government, 13 which can trade settlement cash (or the dismissal of 14 criminal charges) for secrecy. See Tenet, 544 U.S. at 11; 15 Pappas, 94 F.3d at 799. But the graymail risk in a Bivens 16 rendition case is uniquely troublesome. The interest in 17 protecting military, diplomatic, and intelligence secrets is 18 located (as always) in the government; yet a Bivens claim, 19 by definition, is never pleaded against the government. 20 See, e.g., Malesko, 534 U.S. at 70. So in a Bivens case, 21 there is a dissociation between the holder of the non- 22 disclosure interest (the government, which cannot be sued [End Page 51] 1 directly under Bivens) and the person with the incentive to 2 disclose (the defendant, who cannot waive, but will be 3 liable for any damages assessed). In a rendition case, the 4 Bivens plaintiff could in effect pressure the individual 5 defendants until the government cries uncle. Thus any 6 Bivens action involving extraordinary rendition would 7 inevitably suck the government into the case to protect its 8 considerable interests, and--if disclosure is ordered--to 9 appeal, or to suffer the disclosure, or to pay. 10 This pressure on the government to pay a settlement has 11 (at least) two further perverse effects. First, a payment 12 from the Treasury tends to obviate any payment or 13 contribution by the individual defendants. Yet, "[Bivens] 14 is concerned solely with deterring the unconstitutional acts 15 of individual officers" by extracting payment from 16 individual wrongdoers. Malesko, 534 U.S. at 71. When the 17 government elects to settle a Bivens case which is 18 susceptible to graymail, the individual wrongdoer pays 19 nothing and the deterrent effect is lost. Second, the 20 individual defendant in such a case has no incentive to 21 resist discovery that imperils government interests; rather, 22 discovery induces the government to settle. So in the [End Page 52] 1 extraordinary rendition context, there is a risk (or 2 likelihood) that the government effectively becomes the real 3 defendant in interest, and the named defendants become 4 proxies that the government cannot control. Precisely 5 because Bivens has never been approved as a Monell-like 6 vehicle for challenging government policies, this factor 7 also counsels hesitation in extending a private damages 8 action in this context.12 9 In the end, a Bivens action based on rendition is--in 10 all but name--a claim against the government.13 It is not 11 for nothing that Canada (the government, not an individual [End Page 12]
Judge C ALABRESI does not discount the risk of

graymail; he just minimizes the harm, equating it with

settlement pressures that routinely inhere in section 1983

litigation. However, "graymail" 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 C ALABRESI to pause

because he sees graymail as part of the "judicial structures

that facilitate the giving of compensation, at least to

innocent victims . . . ." See Dissent of Judge Calabresi at

15.[End Page 13]
It 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 "clarify the ambiguity [in this area] with

legislation and . . . give [Mr. Arar] reparations."

Transcript of Arar In banc Oral Argument at 49. Cf. 153

Cong. Rec. D1384-02 (Oct. 18, 2007); Matthew Jaffe, Congress

Hears Testimony in Arar Torture Case, ABC News, Oct. 18,

2007,

http://abcnews.go.com/Politics/story?id=3746371&page=1. [End Page 53] 1 officer of it) paid Arar $10 million dollars. 2 3 XII 4 In the small number of contexts in which courts have 5 implied a Bivens remedy, it has often been easy to identify 6 both the line between constitutional and unconstitutional 7 conduct, and the alternative course which officers should 8 have pursued. The guard who beat a prisoner should not have 9 beaten him; the agent who searched without a warrant should 10 have gotten one; and the immigration officer who subjected 11 an alien to multiple strip searches without cause should 12 have left the alien in his clothes. This distinction may or 13 may not amount to a special factor counseling hesitation in 14 the implication of a Bivens remedy. But it is surely 15 remarkable that the context of extraordinary rendition is so 16 different, involving as it does a complex and rapidly 17 changing legal framework beset with critical legal judgments 18 that have not yet been made, as well as policy choices that 19 are by no means easily reached. 20 Consider: should the officers here have let Arar go on 21 his way and board his flight to Montreal? Canada was 22 evidently unwilling to receive him; it was, after all, [End Page 54] 1 Canadian authorities who identified Arar as a terrorist (or 2 did something that led their government to apologize 3 publicly to Arar and pay him $10 million). 4 Should a person identified as a terrorist by his own 5 country be allowed to board his plane and go on to his 6 destination? Surely, that would raise questions as to what 7 duty is owed to the other passengers and the crew. 8 Or should a suspected terrorist en route to Canada have 9 been released on the Canadian border--over which he could 10 re-enter the United States virtually at will? Or should he 11 have been sent back whence his plane came, or to some third 12 country? Should those governments be told that Canada 13 thinks he is a terrorist? If so, what country would take 14 him? 15 Or should the suspected terrorist have been sent to 16 Guantanamo Bay or--if no other country would take him--kept 17 in the United States with the prospect of release into the 18 general population? See Zadvydas v. Davis, 533 U.S. 678, 19 699-700 (2001). 20 None of this is to say that extraordinary rendition is 21 or should be a favored policy choice. At the same time, the 22 officials required to decide these vexed issues are "subject [End Page 55] 1 to the pull of competing obligations." Lombardi v. Whitman, 2 485 F.3d 73, 83 (2d Cir. 2007). Many viable actions they 3 might consider "clash with other equally important 4 governmental responsibilities." Pena v. DePrisco, 432 F.3d 5 98, 114 (2d Cir. 2005) (internal quotation marks omitted). 6 Given the ample reasons for pause already discussed, we need 7 not and do not rely on this consideration in concluding that 8 it is inappropriate to extend Bivens to this context. 9 Still, Congress is the appropriate branch of government to 10 decide under what circumstances (if any) these kinds of 11 policy decisions--which are directly related to the security 12 of the population and the foreign affairs of the country-- 13 should be subjected to the influence of litigation brought 14 by aliens. 15 16 XIII 17 All of these special factors notwithstanding, we cannot 18 ignore that, as the panel dissent put it, "there is a long 19 history of judicial review of Executive and Legislative 20 decisions related to the conduct of foreign relations and 21 national security." Arar, 532 F.3d at 213 (Sack, J., 22 concurring in part and dissenting in part). Where does that [End Page 56] 1 leave us? We recognize our limited competence, authority, 2 and jurisdiction to make rules or set parameters to govern 3 the practice called rendition. By the same token, we can 4 easily locate that competence, expertise, and responsibility 5 elsewhere: in Congress. Congress may be content for the 6 Executive Branch to exercise these powers without judicial 7 check. But if Congress wishes to create a remedy for 8 individuals like Arar, it can enact legislation that 9 includes enumerated eligibility parameters, delineated safe 10 harbors, defined review processes, and specific relief to be 11 afforded. Once Congress has performed this task, then the 12 courts in a proper case will be able to review the statute 13 and provide judicial oversight to the "Executive and 14 Legislative decisions [which have been made with regard] to 15 the conduct of foreign relations and national security."14 [End Page 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.
Judge S ACK's dissent deems "artificial" our

characterization of the new Bivens context in this case as

"entirely one of ‘international rendition, specifically

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

S ACK, however, reconceives the context, at some points

characterizing the constitutional tort as encompassing only [End Page 57] 1

those events that occurred within the United States while at

other points requiring that the entire narrative be

considered 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 C ALABRESI and Judge P ARKER. See Dissent of Judge

Calabresi at 15; Dissent of Judge Parker at 2.

As to the extraordinary rendition context, Judge S ACK

(joined by all dissenters) makes the following constructive

(and telling) concessions: "It is difficult to deny the

existence of ‘special factors counseling 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

Iqbal[,]" id. at 49; and, "We share what we think to be the

majority's intuition that this case would likely turn

largely, if not entirely, on decisions of national security

and diplomacy . . . [,]" id. at 56.
Judge C ALABRESI's dissent urges that we forgo

considering whether specific factors counsel hesitation

under Bivens so that we could instead remand to see whether

the case might eventually be dismissed as unmanageable under

the state secrets privilege--which Judge C ALABRESI seems

equally to disapprove. See Dissent of Judge Calabresi at 13

(state secrets privilege is the subject of "significant

criticism, much of it warranted"). Thus Judge C ALABRESI

professes hesitance to "hesitate" with respect to Bivens, as

well as skepticism of the state secrets privilege. In doing

so, he avoids fully endorsing either of the primary

potential resolutions of this appeal, and hardly makes a

choice at all. Even so, the authority cited by Judge

C ALABRESI, which suggests deciding whether a claim is stated

before doing Bivens analysis, is inapposite. Judge C ALABRESI

fails to consider that application of the state secrets

privilege 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 hesitate before

requiring such an exercise in circumstances in which a

Bivens claim may not lie. In any event, the state secrets

doctrine has roots in separation of powers principles, and [End Page 58] 1 Id. 2 3 CONCLUSION 4 For the reasons stated above, the judgment of the 5 District Court is affirmed. The panel opinion is hereby 6 vacated.

is not itself devoid of constitutional implications. See

Dep't of Navy v. Egan, 484 U.S. 518, 527 (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

secrecy is necessary to its military and foreign-affairs

responsibilities."). [End Page 59] 1 CALABRESI, POOLER, SACK, and PARKER, Circuit Judges, dissent. Each joins fully in all 2 the dissenting opinions, but each writes separately to emphasize particular aspects of these 3 dissents. 1 Arar v. Ashcroft, No. 06-4216 2 Sack, Circuit Judge, joined by Judges Calabresi, Pooler, and 3 Parker, concurring in part and dissenting in part. 4 ------------------------------------------------------------- 5 The opinion of the en banc majority1 departs from the 6 opinion of the panel majority in two important and salutary 7 respects. 8 First, the Court now explicitly acknowledges that "this 9 is not a typical immigration case." Supra at [24]. We would 10 prefer that the Court concede that this is not an immigration 11 case at all -- it is about the alleged unconstitutional treatment 12 of an alien suspected of terrorism -- but we welcome the 13 resulting decision not to dismiss Arar's claims as 14 jurisdictionally barred by the Immigration and Nationality Act 15 ("INA"), see supra at [23], and not to rely, in the Court's 16 Bivens analysis, upon the INA's remedial scheme and the well nigh 17 unlimited executive power that the INA bestows, see supra at

[End Page 1]
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 the en banc hearing, but has taken senior status

since the argument. The author of this opinion has also taken

senior status since the hearing, but was a member of the panel

that heard the appeal and therefore , like 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. 1 [31]. Compare Arar v. Ashcroft, 532 F.3d 157, 169-71 & n.10, 2 179-81 (2d Cir. 2008) ("Arar Panel Op."). 3 In its second departure from the panel decision, the 4 Court declines to hold that if, as Arar alleges, government 5 conduct "denied [him] effective access to consular assistance, 6 the courts, his lawyers, and family members in order to 7 effectuate his removal to Syria," Arar's constitutional rights 8 would not have thereby been violated. Supra at [20] (internal 9 quotation marks omitted); compare Arar Panel Op., 532 F.3d at 10 184-89. We agree with this approach too. Indeed, we think both 11 of these departures are significant enough in themselves to have 12 rendered the unwieldy and often wasteful en banc process 13 worthwhile here. 14 We disagree, however, with the majority's continued 15 insistence that Arar cannot employ a Bivens remedy to seek 16 compensation for his injuries at the hands of government agents. 17 The majority reaches that conclusion by artificially dividing the 18 complaint into a domestic claim that does not involve torture -- 19 viz., "[Arar's] claim regarding detention in the United States," 20 supra at [6] -- and a foreign claim that does -- viz., "[Arar's] 21 claims for detention and torture in Syria," id. The majority 22 then dismisses the domestic claim as inadequately pleaded and the [End Page 2] 1 foreign claim as one that cannot "be asserted under Bivens" in 2 light of the opinion's "dominant holding" that "in the context of 3 involuntary rendition, hesitation is warranted by special 4 factors." Supra at [6-7]. 5 In our view, even treating Arar's claim for 6 mistreatment while in United States custody and denial of access 7 to United States counsel and United States courts as, arguendo, a 8 claim that is entirely isolated from the remainder of Arar's 9 allegations, it was adequately pleaded in his highly detailed 10 complaint. 11 As we will explain, however, the complaint's 12 allegations cannot properly be divided into claims for 13 mistreatment in the United States and "claims for detention and 14 torture in Syria." Arar's complaint of mistreatment sweeps more 15 broadly than that, encompassing a chain of events that began with 16 his interception and detention at New York's John F. Kennedy 17 Airport ("JFK") and continued with his being sent abroad in 18 shackles by government agents with the knowledge that he would 19 likely be tortured as a result. Viewed in this light, we 20 conclude that Arar's allegations do not present a "new context" 21 for a Bivens action. [End Page 3] 1 And even were it a new context, we disagree with what 2 appears to be the en banc majority's test for whether a new 3 Bivens action should be made available: the existence vel non of 4 "special factors counselling hesitation." First, we think 5 heeding "special factors" relating to secrecy and security is a 6 form of double counting inasmuch as those interests are fully 7 protected by the state-secrets privilege. Second, in our view 8 the applicable test is not whether "special factors" exist, but 9 whether after "paying particular heed to" them, a Bivens remedy 10 should be recognized with respect to at least some allegations in 11 the complaint. Applying that test, we think a Bivens remedy is 12 available. 13 We hasten to add that under the proper formulation of 14 the test, we might well agree with the en banc majority that a 15 Bivens action is not available in the context of an alien's 16 "claims for detention and torture in Syria." But, as we will 17 explain, Arar's allegations are not so limited. 18 Our overriding concern, however, is with the majority's 19 apparent determination to go to whatever length necessary to 20 reach what it calls its "dominant holding": that a Bivens remedy 21 is unavailable. Such a holding is unnecessary inasmuch as the 22 government assures us that this case could likely be resolved [End Page 4] 1 quickly and expeditiously in the district court by application of 2 the state-secrets privilege. 3 What is at stake on this appeal is not whether Arar 4 will, through this litigation, obtain compensation for the injury 5 he suffered as a result of the malfeasance of employees of the 6 United States. In light of the many hurdles he would have to 7 surmount,2 he would be extremely unlikely to do so. Rather, the 8 question for the Court is, and has from the outset been, the 9 manner by which that likely result will (or will not) be reached. 10 We fear that the majority is so bound and determined to declare 11 categorically that there is no Bivens action in the present 12 "context," that it unnecessarily makes dubious law. 13 For those reasons, we respectfully dissent.3 14 I. Arar's Allegations [End Page 2]
See, e.g., Arar Panel Op., 532 F.3d at 193 et seq. (Sack,

J., concurring in part and dissenting in part) ("Arar partial

panel dissent").[End Page 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

arguments to the contrary stated in Judge Pooler's partial

dissent, 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 is not available, however, this

opinion accepts its unavailability as a matter of law for the

purposes of the Bivens analysis that follows. [End Page 5] 1 The majority's recitation of the facts, see supra [8- 2 13], is generally accurate, but anodyne. A complete assessment 3 of the majority opinion and the implications of the Court's 4 decision is not possible without a fuller account of the 5 troubling allegations contained in Arar's complaint. 6 "Because this is an appeal from a dismissal of a 7 complaint under Fed. R. Civ. P. 12(b)(6), we view the allegations 8 of the complaint in the light most favorable to appellant." 9 Paycom Billing Servs. v. MasterCard Int'l, Inc., 467 F.3d 283, 10 285 (2d Cir. 2006). The district court's opinion carefully and 11 fully sets forth Arar's allegations. See Arar v. Ashcroft, 414 12 F. Supp. 2d 250, 252-57 (E.D.N.Y. 2006). We adhere to that 13 account nearly verbatim.4 14 A. Arar's Apprehension, Detention, and Forcible 15 Transportation to Syria 16 17 Arar, who is in his thirties, is a native of Syria. He 18 immigrated to Canada with his family when he was a teenager. He 19 is a dual citizen of Syria and Canada. He resides in Ottawa. 20 (Arar, 414 F. Supp. 2d at 252.)

[End Page 4]
Citations to the district court opinion appear in

parentheses. The footnotes and subheadings are ours. [End Page 6] 1 In September 2002, while vacationing with his family in 2 Tunisia, he was called back to work by his employer5 to consult 3 with a prospective client. He purchased a return ticket to 4 Montreal with stops6 in Zurich and New York. He left Tunisia on 5 September 25, 2002. (Id.) 6 On September 26, 2002, Arar arrived from Switzerland at 7 JFK to catch a connecting flight to Montreal. Upon presenting 8 his passport to an immigration inspector, he was identified as 9 "the subject of a . . . lookout as being a member of a known 10 terrorist organization." Compl. Ex. D (Decision of J. Scott 11 Blackman, Regional Director) at 2. He was interrogated by 12 various officials for approximately eight hours.7 The officials 13 asked Arar if he had contacts with terrorist groups, which he 14 categorically denied. Arar was then transported to another site 15 at JFK, where he was placed in solitary confinement. He alleges 16 that he was transported in chains and shackles and was left in a

[End Page 5]
Arar was employed by a privately held Massachusetts-based

developer and supplier of software for technical computing. See

Compl. ¶ 12.[End Page 6]
That is, changes of plane.
[End Page 7]
According to the complaint, on that day, Arar was

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

then by an immigration officer for three hours, id. ¶ 31. [End Page 7] 1 room with no bed and with lights on throughout the night. (Arar, 2 414 F. Supp. 2d at 253.) 3 The following day, starting at approximately 9:00 a.m., 4 two FBI agents interrogated Arar for about five hours, asking him 5 questions about Osama bin Laden, Iraq, and Palestine. Arar 6 alleges that the agents yelled and swore at him throughout the 7 interrogation. They ignored his repeated requests to make a 8 telephone call and see a lawyer. At 2:00 p.m. that day, Arar was 9 taken back to his cell, chained and shackled, and provided a cold 10 McDonald's meal -- his first food in nearly two days. (Id.) 11 That evening, Arar was given an opportunity to 12 voluntarily return to Syria, but refused, citing a fear of being 13 tortured if returned there and insisting that he be sent to 14 Canada or returned to Switzerland. An immigration officer told 15 Arar that the United States had a "special interest" in his case 16 and then asked him to sign a form, the contents of which he was 17 not allowed to read. That evening, Arar was transferred, in 18 chains and shackles, to the Metropolitan Detention Center ("MDC") 19 in Brooklyn, New York,8 where he was strip-searched and placed in [End Page 8]
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 [End Page 8] 1 solitary confinement. During his initial three days at MDC, 2 Arar's continued requests to meet with a lawyer and make 3 telephone calls were refused. (Id.) 4 On October 1, 2002,9 the Immigration and Naturalization 5 Service ("INS") initiated removal proceedings against Arar, who 6 was charged with being temporarily inadmissible because of his 7 membership in al-Qaeda, a group designated by the Secretary of 8 State as a foreign terrorist organization. Upon being given 9 permission to make one telephone call, Arar called his mother-in- 10 law in Ottawa, Canada. (Id.) 11 Upon learning of Arar's whereabouts, his family 12 contacted the Office for Consular Affairs ("Canadian

connection with his confinement under harsh conditions . . .

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 treatment

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

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

subsequently reversed that judgment and remanded, holding that

the complaint was insufficiently pleaded as to two high-ranking

official defendants. See Ashcroft v. Iqbal, 129 S. Ct. 1937,

1952 (2009). On September 29, 2009, the remaining 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), "Stipulation

Withdrawing Appeal from Active Consideration" dated September 29,

2009.[End Page 9]
I.e., five days after Arar's arrival in the United

States. [End Page 9] 1 Consulate")10 and retained an attorney, Amal Oummih, to represent 2 him. The Canadian Consulate had not been notified of Arar's 3 detention. On October 3, 2002, Arar received a visit from 4 Maureen Girvan from the Canadian Consulate, who, when presented 5 with the document noting Arar's inadmissibility to the United 6 States, assured Arar that removal to Syria was not an option. On 7 October 4, 2002, Arar designated Canada as the country to which 8 he wished to be removed. (Id.) 9 On October 5, 2002, Arar had his only meeting with 10 counsel. The following day, he was taken in chains and shackles 11 to a room where approximately seven INS officials questioned him 12 about his reasons for opposing removal to Syria. His attorney 13 was not provided advance notice of the interrogation, and Arar 14 further alleges that U.S. officials misled him into thinking his 15 attorney had chosen not to attend. During the interrogation, 16 Arar continued to express his fear of being tortured if returned 17 to Syria. At the conclusion of the six-hour interrogation, Arar 18 was informed that the officials were discussing his case with 19 "Washington, D.C." Arar was asked to sign a document that

[End Page 10]
The consulate is in New York City.
[End Page 10] 1 appeared to be a transcript. He refused to sign the form. (Id. 2 at 253-54.) 3 The following day, October 7, 2002, attorney Oummih 4 received two telephone calls informing her that Arar had been 5 taken for processing to an INS office at Varick Street in 6 Manhattan, that he would eventually be placed in a detention 7 facility in New Jersey, and that she should call back the 8 following morning for Arar's exact whereabouts. However, Arar 9 alleges that he never left the MDC and that the contents of both 10 of these phone calls to his counsel were false and misleading. 11 (Id. at 254.) 12 That same day, October 7, 2002, the INS Regional 13 Director, J. Scott Blackman, determined from classified and 14 unclassified information that Arar is "clearly and unequivocally" 15 a member of al-Qaeda and, therefore, "clearly and unequivocally 16 inadmissible to the United States" under 8 U.S.C. 17 § 1182(a)(3)(B)(i)(V). See Compl. Ex. D. at 1, 3, 5. Based on 18 that finding, Blackman concluded "that there are reasonable 19 grounds to believe that [Arar] is a danger to the security of the 20 United States." Id. at 6 (brackets in original). (Arar, 414 F. 21 Supp. 2d at 254.) [End Page 11] 1 At approximately 4:00 a.m. on October 8, 2002, Arar 2 learned that, based on classified information, INS regional 3 director Blackman had ordered that Arar be sent to Syria and that 4 his removal there was consistent with Article Three of the United 5 Nations Convention Against Torture and Other Cruel, Inhuman, or 6 Degrading Treatment or Punishment ("CAT"). Arar pleaded for 7 reconsideration but was told by INS officials that the agency was 8 not governed by the "Geneva Conventions" and that Arar was barred 9 from reentering the country for a period of five years and would 10 be admissible only with the permission of the Attorney General. 11 (Id.) 12 Later that day, Arar was taken in chains and shackles 13 to a New Jersey airfield, where he boarded a small jet airplane 14 bound for Washington, D.C. From there, he was flown to Amman, 15 Jordan, arriving there on October 9, 2002. He was then handed 16 over to Jordanian authorities, who delivered him to the Syrians 17 later that day. At this time, U.S. officials had not informed 18 either Canadian Consulate official Girvan or attorney Oummih that 19 Arar had been removed to Syria. Arar alleges that Syrian 20 officials refused to accept Arar directly from the United States. 21 (Id.) [End Page 12] 1 Arar's Final Notice of Inadmissability ("Final Notice") 2 ordered him removed without further inquiry before an immigration 3 judge. See Compl. Ex. D. According to the Final Notice: "The 4 Commissioner of the Immigration and Naturalization Service has 5 determined that your removal to Syria would be consistent with 6 [CAT]." Id. (brackets in original). The Final Notice was dated 7 October 8, 2002, and was signed by Deputy Attorney General Larry 8 Thompson. After oral argument in the district court on the 9 defendants' motions to dismiss, in a letter dated August 18, 10 2005, counsel for Arar said that Arar had received the Final 11 Notice within hours of boarding the aircraft taking him to 12 Jordan. (Arar, 414 F. Supp. 2d at 254.) 13 B. Arar's Detention in Syria 14 During his ten-month period of detention in Syria, Arar 15 alleges, he was placed in a "grave" cell measuring six feet long, 16 seven feet high, and three feet wide. The cell was located 17 within the Palestine Branch of the Syrian Military Intelligence 18 ("Palestine Branch"). The cell was damp and cold, contained very 19 little light, and was infested with rats, which would enter the 20 cell through a small aperture in the ceiling. Cats would urinate 21 on Arar through the aperture, and sanitary facilities were 22 nonexistent. Arar was allowed to bathe himself in cold water [End Page 13] 1 once per week. He was prohibited from exercising and was 2 provided barely edible food. Arar lost forty pounds during his 3 ten-month period of detention in Syria. (Id.) 4 During his first twelve days in Syrian detention, Arar 5 was interrogated for eighteen hours per day and was physically 6 and psychologically tortured. He was beaten on his palms, hips, 7 and lower back with a two-inch-thick electric cable. His captors 8 also used their fists to beat him on his stomach, his face, and 9 the back of his neck. He was subjected to excruciating pain and 10 pleaded with his captors to stop, but they would not. He was 11 placed in a room where he could hear the screams of other 12 detainees being tortured and was told that he, too, would be 13 placed in a spine-breaking "chair," hung upside down in a "tire" 14 for beatings, and subjected to electric shocks. To lessen his 15 exposure to the torture, Arar falsely confessed, among other 16 things, to having trained with terrorists in Afghanistan, even 17 though he had never been to Afghanistan and had never been 18 involved in terrorist activity. (Id. at 255.) 19 Arar alleges that his interrogation in Syria was 20 coordinated and planned by U.S. officials, who sent the Syrians a 21 dossier containing specific questions. As support for this 22 allegation, Arar notes that the interrogations in the United [End Page 14] 1 States and Syria contained identical questions, including a 2 specific question about his relationship with a particular 3 individual wanted for terrorism. In return, Arar alleges, the 4 Syrian officials supplied U.S. officials with all information 5 extracted from Arar; Arar cites a statement by one Syrian 6 official who has publicly stated that the Syrian government 7 shared information with the United States that it extracted from 8 him. See Compl. Ex. E (January 21, 2004 transcript of CBS's 9 Sixty Minutes II: "His Year In Hell"). (Id.) 10 C. Arar's Contact with the Canadian Government 11 While Detained in Syria 12 The Canadian Embassy contacted the Syrian government 13 about Arar on October 20, 2002, and the following day, Syrian 14 officials confirmed that they were detaining him. At this point, 15 the Syrian officials ceased interrogating and torturing Arar. 16 (Id.) 17 Canadian officials visited Arar at the Palestine Branch 18 five times during his ten-month detention. Prior to each visit, 19 Arar was warned not to disclose that he was being mistreated. He 20 complied but eventually broke down during the fifth visit, 21 telling the Canadian consular official that he was being tortured 22 and kept in a grave. (Id.) [End Page 15] 1 Five days later, Arar was brought to a Syrian 2 investigation branch, where he was forced to sign a confession 3 stating that he had participated in terrorist training in 4 Afghanistan even though, Arar states, he has never been to 5 Afghanistan or participated in any terrorist activity. Arar was 6 then taken to an overcrowded Syrian prison, where he remained for 7 six weeks. (Id.) 8 On September 28, 2003, Arar was transferred back to the 9 Palestine Branch, where he was held for one week. During this 10 week, he heard other detainees screaming in pain and begging for 11 their torture to end. (Id.) 12 On October 5, 2003, Syria, without filing any charges 13 against Arar, released him into the custody of Canadian Embassy 14 officials in Damascus. He was flown to Ottawa the following day 15 and reunited with his family. (Id.) 16 Arar contends that he is not a member of any terrorist 17 organization, including al-Qaeda, and has never knowingly 18 associated himself with terrorists, terrorist organizations, or 19 terrorist activity. Arar claims that the individual about whom 20 he was questioned was a casual acquaintance whom Arar had last 21 seen in October 2001. He believes that he was removed to Syria 22 for interrogation under torture because of his casual [End Page 16] 1 acquaintance with this individual and others believed to be 2 involved in terrorist activity. But Arar contends "on 3 information and belief" that there has never been, nor is there 4 now, any reasonable suspicion that he was involved in such 5 activity. Compl. ¶ 2. (Arar, 414 F. Supp. 2d at 255-56 6 (footnote omitted).) 7 Arar alleges that he continues to suffer adverse 8 effects from his ordeal in Syria. He claims that he has trouble 9 relating to his wife and children, suffers from nightmares, is 10 frequently branded a terrorist, and is having trouble finding 11 employment due to his reputation and inability to travel in the 12 United States. (Id. at 256.) 13 D. U.S. Policy Relating to Interrogation 14 of Detainees by Foreign Governments 15 The complaint alleges on information and belief that 16 Arar was removed to Syria under a covert U.S. policy of 17 "extraordinary rendition," according to which individuals are 18 sent to foreign countries to undergo methods of interrogation not 19 permitted in the United States. The extraordinary rendition 20 policy involves the removal of "non-U.S. citizens detained in 21 this country and elsewhere and suspected -- reasonably or 22 unreasonably -- of terrorist activity to countries, including [End Page 17] 1 Syria, where interrogations under torture are routine." Compl. 2 ¶ 24. Arar alleges on information and belief that the United 3 States sends individuals "to countries like Syria precisely 4 because those countries can and do use methods of interrogation 5 to obtain information from detainees that would not be morally 6 acceptable or legal in the United States and other democracies." 7 Id. The complaint further alleges that federal officials 8 involved with extraordinary rendition "have facilitated such 9 human rights abuses, exchanging dossiers with intelligence 10 officials in the countries to which non-U.S. citizens are 11 removed." Id. The complaint also alleges that the United States 12 involves Syria in its extraordinary rendition program to extract 13 counter-terrorism information. (Arar, 414 F. Supp. 2d at 256.) 14 This extraordinary rendition program is, Arar alleges, 15 not part of any official or declared U.S. public policy; 16 nevertheless, it has received extensive attention in the press, 17 where unnamed U.S. officials and certain foreign officials have 18 admitted to the existence of such a policy. Arar details a 19 number of articles in the mainstream press recounting both the 20 incidents of this particular case and the extraordinary rendition 21 program more broadly. These articles are attached as Exhibit C 22 of his complaint. (Id. at 256-57.) [End Page 18] 1 Arar alleges that the defendants directed the 2 interrogations in Syria by providing information about Arar to 3 Syrian officials and receiving reports on Arar's responses. 4 Consequently, the defendants conspired with, and/or aided and 5 abetted, Syrian officials in arbitrarily detaining, 6 interrogating, and torturing Arar. Arar argues in the 7 alternative that, at a minimum, the defendants knew or at least 8 should have known that there was a substantial likelihood that he 9 would be tortured upon his removal to Syria. (Id. at 257.) 10 E. Syria's Human Rights Record 11 Arar's claim that he faced a likelihood of torture in 12 Syria is supported by U.S. State Department reports on Syria's 13 human rights practices. See, e.g., Bureau of Democracy, Human 14 Rights, and Labor, United States Department of State, 2004 15 Country Reports on Human Rights Practices (Released February 28, 16 2005) ("2004 Report"). According to the State Department, 17 Syria's "human rights record remained poor, and the Government 18 continued to commit numerous, serious abuses . . . includ[ing] 19 the use of torture in detention, which at times resulted in 20 death." Id. at 1. Although the Syrian constitution officially 21 prohibits such practices, "there was credible evidence that 22 security forces continued to use torture frequently." Id. at 2. [End Page 19] 1 The 2004 Report cites "numerous cases of security forces using 2 torture on prisoners in custody." Id. Similar references 3 throughout the 2004 Report, as well as State Department reports 4 from prior years, are legion. See, e.g., Compl. Ex. A (2002 5 State Department Human Rights Report on Syria). (Arar, 414 F. 6 Supp. 2d at 257.)11 7 F. The Canadian Government Inquiry 8 On September 18, 2006, a Commission of Inquiry into the 9 Actions of Canadian Officials in Relation to Maher Arar ("Arar 10 Commission"), established by the government of Canada to 11 investigate the Arar affair, issued a three-volume report. See 12 Arar Commission, Report of the Events Relating to Maher Arar 13 (2006) ("Commission Report").12 A press release issued by the 14 Commission summarized: "On Maher Arar the Commissioner [Dennis 15 O'Connor] comes to one important conclusion: 'I am able to say 16 categorically that there is no evidence to indicate that Mr. Arar [End Page 11]
The district court's description of the facts as alleged

in the complaint ends here.[End Page 12]
On October 23, 2007, this Court granted Arar's motion 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 it may have sought judicial notice of the facts

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). [End Page 20] 1 has committed any offence or that his activities constitute a 2 threat to the security of Canada.'" Arar Commission, Press 3 Release, Arar Commission Releases Its Findings on the Handling of 4 the Maher Arar Case (Sept. 18, 2006) (boldface in original), 5 available at http://www.ararcommission.ca/eng/Release Final_Sept 6 18.pdf (copy on file with the Clerk of Court). On January 26, 7 2007, the Office of the Prime Minister of Canada issued the 8 following announcement: 9 Prime Minister Stephen Harper today released 10 the letter of apology he has sent to Maher 11 Arar and his family for any role Canadian 12 officials may have played in what happened to 13 Mr. Arar, Monia Mazigh and their family in 14 2002 and 2003. 15 "Although the events leading up to this 16 terrible ordeal happened under the previous 17 government, our Government will do everything 18 in its power to ensure that the issues raised 19 by Commissioner O'Connor are addressed," said 20 the Prime Minister. "I sincerely hope that 21 these actions will help Mr. Arar and his 22 family begin a new and hopeful chapter in 23 their lives." 24 Canada's New Government has accepted all 23 25 recommendations made in Commissioner 26 O'Connor's first report, and has already 27 begun acting upon them. The Government has 28 sent letters to both the Syrian and the U.S. 29 governments formally objecting to the 30 treatment of Mr. Arar. Ministers Day and 31 MacKay have also expressed Canada's concerns 32 on this important issue to their American 33 counterparts. Finally, Canada has removed [End Page 21] 1 Mr. Arar from Canadian lookout lists, and 2 requested that the United States amend its 3 own records accordingly. 4 The Prime Minister also announced that 5 Canada's New Government has successfully 6 completed the mediation process with Mr. 7 Arar, fulfilling another one of Commissioner 8 O'Connor's recommendations. This settlement, 9 mutually agreed upon by all parties, ensures 10 that Mr. Arar and his family will obtain fair 11 compensation, in the amount of $10.5 million, 12 plus legal costs, for the ordeal they have 13 suffered. 14 Office of the Prime Minister, Press Release, Prime Minister 15 Releases Letter of Apology to Maher Arar and His Family and 16 Announces Completion of Mediation Process (Jan. 26, 2007), 17 available at http://pm.gc.ca/eng/ 18 media.asp?id=1509 (last visited July 15, 2009); see also Margaret 19 L. Satterthwaite, Rendered Meaningless: Extraordinary Rendition 20 and the Rule of Law, 75 Geo. Wash. L. Rev. 1333, 1339-40 (2007). 21 II. The Dismissal of the Fourth Claim for Relief 22 The fulcrum of the en banc majority's analysis is its 23 conclusion that this appeal requires us to decide whether "to 24 devise a new Bivens damages action" under Wilkie v. Robbins, 127 25 S. Ct. 2588, 2597 (2007). See supra at [6]. But the majority 26 can characterize Arar's action as "new" only by isolating and 27 eliminating the domestic aspects of the case. It does so in part [End Page 22] 1 by affirming the district court's dismissal of Arar's "Fourth 2 Claim for Relief, (Fifth Amendment: Substantive Due Process -- 3 Domestic Detention)" on the ground that the claim was 4 insufficiently pleaded. See supra at [19-21]. We think that 5 ruling to be incorrect. 6 With respect to the conditions of confinement aspect of 7 this claim, the district court concluded that Arar was entitled 8 to Fifth Amendment substantive due process protection and that 9 his rights in that respect could have been violated by "the 10 deprivations Arar alleges with respect to his treatment while in 11 U.S. custody." Arar, 414 F. Supp. 2d at 286. We agree, and the 12 majority does not decide otherwise. Supra at [21]. With respect 13 to the access to counsel and the courts aspect of the claim, the 14 district court concluded that Arar would be able to state a claim 15 for interference "with his access to courts in part by 16 [government officials] lying to his counsel," if he could 17 "identify 'a separate and distinct right to seek judicial relief 18 for some wrong.'" Arar, 414 F. Supp. 2d at 285 (quoting 19 Christopher v. Harbury, 536 U.S. 403, 414-15 (2002)). We agree 20 here, too, and the majority does not decide otherwise. 21 But the district court nonetheless dismissed the Fourth 22 Claim for Relief without prejudice. On pain of forfeiture of the [End Page 23] 1 claims, it required Arar (1) with respect to the mistreatment 2 claim, to "name those defendants that were personally involved in 3 the alleged unconstitutional treatment," and, (2) with respect to 4 the denial of access claim, to replead "without regard to any 5 [underlying] rendition claim," in light of the court's conclusion 6 that no Bivens action was available with respect to such a claim, 7 and, because it was unclear to what underlying relief Arar was 8 denied access, "identify[ing] the specific injury he was 9 prevented from grieving." Arar, 414 F. Supp. 2d at 287-88. Arar 10 declined to replead,13 rendering the dismissal final. [End Page 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

immediately. See Arar v. Ashcroft, No. CV-04-0249 (DGT), 2006 WL

1875375, 2006 U.S. Dist. LEXIS 45550 (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, cf. id.
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 suggestion would be incorrect. We may review the

entire judgment. See, e.g., Kittay v. Kornstein, 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, [End Page 24] 1 A. Specification of Defendants' Acts and Conspiracy Allegations 2 The majority affirms the dismissal of the Fourth Claim 3 for Relief on the ground that Arar's complaint does not "specify 4 any culpable action taken by any single defendant" and fails to 5 allege a conspiracy. Supra at [21]. We disagree with each of 6 these rationales. 7 Arar should not have been required to "name those 8 defendants [who] were personally involved in the alleged 9 unconstitutional treatment." Arar, 414 F. Supp. 2d at 287. In 10 actions pursuant to 42 U.S.C. § 1983, which are "analog[s]" of 11 the less-common Bivens action, Ashcroft v. Iqbal, 129 S. Ct. 12 1937, 1948 (2009) (citation omitted), we allow plaintiffs to 13 "maintain[] supervisory personnel as defendants . . . until [they 14 have] been afforded an opportunity through at least brief 15 discovery to identify the subordinate officials who have personal 16 liability." Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) 17 (citing Second Circuit authority). 18 Similarly, courts have rejected the dismissal 19 of suits against unnamed defendants described 20 by roles . . . until the plaintiff has had 21 some opportunity for discovery to learn the 22 identities of responsible officials. Once 23 the supervisory officer has inquired within

960-61 (2d Cir. 1987). [End Page 25] 1 the institution and identified the actual 2 decision-makers of the challenged action, 3 those officials may then submit affidavits 4 based on their personal knowledge of the 5 circumstances. 6 Id. (citations omitted). It should not be forgotten that the 7 full name of the Bivens case itself is Bivens v. Six Unknown 8 Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) 9 (emphasis added).14 10 To be sure, the Supreme Court has recently set a strict 11 pleading standard for supervisory liability claims under Bivens 12 against a former Attorney General of the United States and the 13 Director of the FBI." See Iqbal, supra. We do not think, 14 however, that the Court has thereby permitted governmental actors 15 who are unnamed in a complaint automatically to escape personal 16 civil rights liability. A plaintiff must, after all, have some [End Page 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

participated 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 -- "Unknown 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.") [End Page 26] 1 way to identify a defendant who anonymously violates his civil 2 rights. We doubt that Iqbal requires a plaintiff to obtain his 3 abusers' business cards in order to state a civil rights claim. 4 Put conversely, we do not think that Iqbal implies that federal 5 government miscreants may avoid Bivens liability altogether 6 through the simple expedient of wearing hoods while inflicting 7 injury. Some manner of proceeding must be made available for the 8 reasons we recognized in Davis. 9 Whether or not there is a mechanism available to 10 identify the "Doe" defendants, moreover, Arar's complaint does 11 sufficiently name some individual defendants who personally took 12 part in the alleged violation of his civil rights. The role of 13 defendant J. Scott Blackman, formerly Director of the Regional 14 Office of INS, for example, is, as reflected in the district 15 court's explication of the facts, see Arar, 414 F. Supp. 2d at 16 252-54, set forth in reasonable detail in the complaint.15 So are [End Page 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 Immigration and
Naturalization Services, had decided to
[End Page 27] 1 at least some of the acts of the defendant Edward J. McElroy, 2 District Director of the INS.16 3 The majority also asserts that Arar does no more than 4 "allege[] (in passive voice) that his requests to make phone 5 calls 'were ignored,' and that 'he was told' that he was not 6 entitled to a lawyer." Supra at [21]. But as indicated above, 7 such an identification of the unnamed defendants by their "roles" 8 should be sufficient to enable a plaintiff to survive a motion to 9 dismiss, and subsequently to use discovery to identify them. And 10 while the majority is correct that the complaint does not utter
remove Mr. Arar to Syria. Without
elaboration, Defendant Blackman also
stipulated that Mr. Arar's removal would be
consistent with Article 3 of CAT. . . . (A
copy of Defendant Blackman's decision is
attached as Exhibit D [to the complaint]).

Compl. ¶ 47.[End Page 16]
The complaint alleges, inter alia:
The only notice given [Arar's counsel prior
to his interrogation late on the evening of
Sunday, October 6, 2002] was a message left
by Defendant 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 morning, October 7,
[End Page 2002 -- long after Mr. Arar's interrogation]
had ended.

Compl. ¶ 43. [End Page 28] 1 the talismanic words "meeting of the minds" to invoke an 2 agreement among the defendants, see supra at [21], it is plain 3 that the logistically complex concerted action allegedly taken to 4 detain Arar and then transport him abroad implies an alleged 5 agreement by government actors within the United States to act in 6 concert. 7 B. Dismissal of Claims of Denial of Access to Courts and 8 Counsel 9 10 With respect to the dismissal of Arar's claim for 11 "interfere[nce] with his access to lawyers and the courts" while 12 he was incarcerated by United States officials, Compl. ¶ 93, we 13 think the district court erred here, too. An access to courts 14 claim requires the pleading of (1) a "nonfrivolous, arguable 15 underlying claim" that has been frustrated by the defendants' 16 actions, and (2) a continued inability to obtain the relief 17 sought by the underlying claim. Christopher, 536 U.S. at 415-16 18 (internal quotation marks omitted). The district court decided 19 that Arar failed to plead with sufficient "precis[ion]" the 20 existence of a sought-for underlying claim for relief, Arar, 414 21 F. Supp. 2d at 286, which means it decided that, for purposes of 22 Federal Rule of Civil Procedure 8,17 the defendants were not put [End Page 17]
That rule provides:
Claim for Relief. A pleading that states a
[End Page 29] 1 on notice of the existence of such a claim. See Christopher, 536 2 U.S. at 416 ("Like any other element of an access claim, the 3 underlying cause of action and its lost remedy must be addressed 4 by allegations . . . sufficient to give fair notice to a 5 defendant."). 6 But taking the allegations in the complaint as true, as 7 we must, the complaint clearly implies the existence of an 8 underlying claim for relief under CAT. The defendants can hardly 9 argue that under Arar's assertions, which we take to be true, 10 they lacked notice of such a claim, since the complaint says that 11 it was they who first notified Arar about it: Arar alleges that 12 on October 8, 2002, "two INS officials told him that . . . 13 Defendant Blackman . . . had decided to remove [him] to Syria," 14 and "Defendant Blackman also stipulated that [such action] would 15 be consistent with Article 3 of CAT." Compl. ¶ 47. Indeed, the
claim for relief must contain:
(1) a short and plain statement of the
grounds for the court's jurisdiction, unless
the court already has jurisdiction and the
claim needs no new jurisdictional support;
(2) a short and plain statement of the
claim showing that the pleader is entitled to
relief; and
(3) a demand for the relief sought, which
may include relief in the alternative or
different types of relief.

Fed. R. Civ. P. 8(a). [End Page 30] 1 complaint alleges that Arar asked defendants for reconsideration 2 of that decision -- i.e., relief from it -- in light of the 3 prospect of torture in Syria, but the officials said that "the 4 INS is not governed by the 'Geneva Conventions.'" Id. 5 Insofar as the district court's requirement that Arar 6 "articulate more precisely the judicial relief he was denied," 7 Arar, 414 F. Supp. 2d at 286, related to its holding that "Bivens 8 did not extend a remedy to Arar for his deportation to Syria," 9 id., we disagree for the reasons set forth below. Insofar as the 10 district court thought Arar's underlying CAT claim would have 11 been frivolous, it was mistaken. Cf. Ramsameachire v. Ashcroft, 12 357 F.3d 169, 184 (2d Cir. 2004) (pursuant to the CAT, the United 13 States may not remove an alien to a country if "'it is more 14 likely than not that he or she would be tortured if removed to 15 [that country]'" (quoting 8 C.F.R. § 208.16(c)(2))). 16 Nor was CAT the only relief Arar was denied. As the 17 government pointed out at oral argument, "th[e] decision [in 18 Michael v. INS, 48 F.3d 657 (2d Cir. 1995),] shows that in 19 extraordinary cases, and no one can dispute that this is an 20 extraordinary case, the plaintiff could have filed a habeas

[End Page 31] 1 [petition] and sought a stay pursuant to the All Writs Act." Tr. 2 at 82 (Cohn).18 3 Contrary to the district court's ruling, then, Arar's 4 complaint put the defendants on notice of claims seeking relief 5 to bar his removal that were frustrated by the defendants' 6 actions. Whatever the ultimate merits of those claims, they 7 would not have been "frivolous." And absent a remedy for the 8 rendition and torture themselves -- the district court, and the 9 majority, of course, conclude there is none -- no contemporaneous 10 legal relief is now possible except through the access to courts 11 and counsel claim. See generally Br. of Amici Norman Dorsen et 12 al. at 12-14. The Fourth Claim for Relief therefore states a 13 sufficient due process access claim. 14 C. Sufficient Pleading under Iqbal 15 More generally, we think the district court's extended 16 recitation of the allegations in the complaint makes clear that 17 the facts of Arar's mistreatment while within the United States [End Page 18]
In response to a question by the Chief Judge as to what

cognizable allegations might be made in such a habeas petition,

the government said, "Your Honor, I'm not going to speak for what

a judge might or might not have said, but in his habeas position

and his petition for a stay he could say, look, things are moving

quickly, I'm afraid they're going to send me to Syria, don't let

that happen." Tr. 84; see also id. at 85. [End Page 32] 1 -- including the alleged denial of his access to courts and 2 counsel and his alleged mistreatment while in federal detention 3 in the United States -- were pleaded meticulously and in copious 4 detail. The assertion of relevant places, times, and events -- 5 and names when known -- is lengthy and specific. Even measured 6 in light of Supreme Court case law post-dating the district 7 court's dismissal of the fourth claim, which instituted a more 8 stringent standard of review for pleadings, the complaint here 9 passes muster. It does not "offer[] 'labels and conclusions' or 10 'a formulaic recitation of the elements of a cause of action.'" 11 Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 12 550 U.S. 544, 555 (2007)). Nor does it "tender[] 'naked 13 assertion[s]' devoid of 'further factual enhancement.'" Id. 14 (quoting Twombly, 550 U.S. at 557). Its allegations of a 15 constitutional violation are "'plausible on [their] face.'" Id. 16 (quoting Twombly, 550 U.S. at 555). And, as we have explained, 17 Arar has pled "factual content that allows the court to draw the 18 reasonable inference that the defendant[s] [are] liable for the 19 misconduct alleged." Id. (quoting Twombly, 550 U.S. at 556). We 20 would therefore vacate the district court's dismissal of the 21 Fourth Claim for Relief. [End Page 33] 1 III. The Majority's Interpretation of the Second and 2 Third Claims for Relief 3 Having thus decided, mistakenly we think, that Arar's 4 Fourth Claim for Relief has failed, our colleagues leap to the 5 conclusion that what remains -- the allegations contained in what 6 Arar's complaint styles as the Second and Third Claims for Relief 7 -- relates only to the legal implications of the international 8 and foreign elements of the defendants' behavior. See supra at 9 [21] ("Arar's remaining claims seek relief on the basis of 10 torture and detention in Syria . . . ."). Even were we to agree 11 with the majority's view that the Fourth Claim for Relief 12 warranted dismissal, we would still not concur in its crabbed 13 interpretation of Arar's complaint in light of the facts alleged 14 in it. 15 "[W]e may not affirm the dismissal of [a] complaint 16 because [it has] proceeded under the wrong theory 'so long as [it 17 has] alleged facts sufficient to support a meritorious legal 18 claim.'" Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 19 89 (2d Cir. 2000) (plurality opinion of Pooler, J.) (quoting 20 Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 21 1997)), cert. denied, 534 U.S. 888 (2001). "'Factual allegations 22 alone are what matter[].'" Northrop, 134 F.3d at 46 (quoting 23 Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) (en [End Page 34] 1 banc)); see also Newman v. Silver, 713 F.2d 14, 15 n.1 (2d Cir. 2 1983) ("[T]he nature of federal pleading . . . is by statement of 3 claim, not by legal theories.").19 And we are required to read 4 those factual allegations as a whole. See Shapiro v. Cantor, 123 5 F.3d 717, 721 (2d Cir. 1997); see also Aldana v. Del Monte Fresh 6 Produce, N.A., Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005) 7 (per curiam), cert. denied, 127 S. Ct. 596 (2006); Goldwasser v. 8 Ameritech Corp., 222 F.3d 390, 401 (7th Cir. 2000). 9 Although Arar pled in his Fourth Claim for Relief what 10 he denominated as a separate "Claim" on the subject of "Domestic 11 Detention," including allegations about unconstitutional 12 conditions of confinement and denial of access to courts and 13 counsel, the complaint as a whole makes broader allegations of 14 mistreatment while within the borders of the United States. 15 According to the complaint: (1) Arar was apprehended by 16 government agents as he sought to change planes at JFK; (2) he 17 was not seeking to enter the United States; (3) his detention was [End Page 19]
The Federal Rules of Civil Procedure instruct that

"[p]leadings must be construed so as to do justice." Fed. R.

Civ. P. 8(e). Wright and Miller's treatise counsels that "[t]his

provision is not simply a precatory statement but reflects one of

the basic philosophies of practice under the federal rules." 5

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1286 (3d ed. 2004). "One of the most important

objectives of the federal rules is that lawsuits should be

determined on their merits and according to the dictates of

justice, rather than in terms of whether or not the averments in

the paper pleadings have been artfully drawn." Id. [End Page 35] 1 for the purpose of obtaining information from him about terrorism 2 and his alleged links with terrorists and terrorist 3 organizations; (4) he was interrogated harshly on that topic -- 4 mostly by FBI agents â€"- for many hours over a period of two days; 5 (5) during that period, he was held incommunicado and was 6 mistreated by, among other things, being deprived of food and 7 water for a substantial portion of his time in custody; (6) he 8 was then taken from JFK to the MDC in Brooklyn, where he 9 continued to be held incommunicado and in solitary confinement 10 for another three days; (7) while at the MDC, INS agents sought 11 unsuccessfully to have him agree to be removed to Syria because 12 they and other U.S. government agents intended that he would be 13 questioned there along similar lines, but under torture; (8) U.S. 14 officials thwarted his ability to consult with counsel or access 15 the courts; and (9) thirteen days after Arar had been intercepted 16 and incarcerated at the airport, defendants sent him against his 17 will to Syria, where they allegedly intended that he be 18 questioned under torture and while enduring brutal and inhumane 19 conditions of captivity. This was, as alleged, all part of a 20 single course of action conceived of and executed by the 21 defendants in the United States in order to try to make Arar 22 "talk." [End Page 36] 1 It may not have been best for Arar to file a complaint 2 that structures his claims for relief so as to charge knowing or 3 reckless subjection to torture, coercive interrogation, and 4 arbitrary detention in Syria (the second and third claims) 5 separately from charges of cruel and inhuman conditions of 6 confinement and "interfere[nce] with access to lawyers and the 7 courts" while in the United States (the fourth claim). But such 8 division of theories is of no legal consequence. "'Factual 9 allegations alone are what matter[].'" Northrop, 134 F.3d at 46 10 (quoting Albert, 851 F.2d at 571 n.3). The assessment of Arar's 11 complaint must, then, take into account the entire arc of factual 12 allegations that it contains â€"- his interception and arrest; his 13 interrogation, principally by FBI agents, about his putative ties 14 to terrorists; his detention and mistreatment at JFK in Queens 15 and the MDC in Brooklyn; the deliberate misleading of both his 16 lawyer and the Canadian Consulate; and his transport to 17 Washington, D.C. and forced transfer to Syrian authorities for 18 further detention and questioning under torture. Such attention 19 to the complaint's factual allegations, rather than its legal 20 theories, makes perfectly clear that the remaining claims upon 21 which Arar seeks relief are not limited to his "detention or 22 torture in Syria," supra at [6], but include allegations of [End Page 37] 1 violations of his due process rights in the United States. The 2 scope of those claims is relevant in analyzing whether a Bivens 3 remedy is available. 4 IV. The "Context" in Which a Bivens Remedy Is Sought 5 The majority's artificial interpretation of the 6 complaint permits it to characterize the "context" of Arar's 7 Bivens action as entirely one of "international rendition, 8 specifically, 'extraordinary rendition.'" Supra at [32]; see 9 also id. ("Extraordinary rendition is treated as a distinct 10 phenomenon in international law."). This permits the majority to 11 focus on the part of the complaint that presents a "new context" 12 for Bivens purposes. But when the complaint is considered in 13 light of all of Arar's allegations, his due process claim for 14 relief from his apprehension, detention, interrogation, and 15 denial of access to counsel and courts in the United States, as 16 well as his expulsion to Syria for further interrogation likely 17 under torture, is not at all "new." 18 A. Bivens and Its Progeny 19 In Bivens v. Six Unknown Named Agents of Fed. Bureau of 20 Narcotics, 403 U.S. 388 (1971), the Supreme Court "recognized for 21 the first time an implied private action for damages against 22 federal officers alleged to have violated a citizen's [End Page 38] 1 constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 2 61, 66 (2001). Bivens permitted "a victim of a Fourth Amendment 3 violation by federal officers [to] bring suit for money damages 4 against the officers in federal court." Id. The Supreme Court 5 has been reluctant, as the majority correctly observes, to 6 "extend" Bivens liability further. See, e.g., Wilkie, 127 S. Ct. 7 at 2597. The Court has done so only twice â€"- in the contexts of 8 "an implied damages remedy under the Due Process Clause of the 9 Fifth Amendment" in Davis v. Passman, 442 U.S. 228 (1979), and 10 under "the Cruel and Unusual Punishments Clause of the Eighth 11 Amendment" in Carlson v. Green, 446 U.S. 14 (1980). Malesko, 534 12 U.S. at 67; see also Wilkie, 127 S. Ct. at 2597-98. But we must 13 ask whether we should "devise a new Bivens damages action," 14 Wilkie, 127 S. Ct. at 2597, only if the asserted action is, 15 indeed, new. And a new Bivens action is not being sought unless 16 the plaintiff is asking the court to "extend Bivens liability to 17 a[] new context or new category of defendants." Malesko, 534 18 U.S. at 68. 19 B. The New Category of Defendants Test 20 The majority does not suggest that Arar's Bivens claim 21 fails because it is against a new category of defendants. The 22 Bivens remedy was devised to supply relief for constitutional [End Page 39] 1 torts by federal agents and officials. See Malesko, 534 U.S. at 2 70. 3 C. The New Context Test 4 The questions, then, are whether we are facing a "new 5 context," or considering recognizing "a new Bivens damages 6 action," questions that are complicated by the fact that the 7 meaning that the Supreme Court has ascribed to those terms is 8 less than clear. Compare Malesko, 534 U.S. at 67 (noting that 9 Bivens was extended to "a new right of action" in Davis v. 10 Passman, in which the Court "recognized an implied damages remedy 11 under the Due Process Clause of the Fifth Amendment" (emphasis 12 added)), with id. at 68 (describing Schweiker v. Chilicky, 487 13 U.S. 412 (1988), as presenting a "new context[]" in which the 14 plaintiffs sought damages under the Due Process Clause for errors 15 made by federal officials "in the[] handling of [their] Social 16 Security applications" (emphasis added)). 17 If the alleged facts of Arar's complaint were limited 18 to his claim of "extraordinary rendition" to, and torture in, 19 Syria -- that is, limited to his allegations that he was 20 transported by the United States government to Syria via Jordan 21 pursuant to a conspiracy or other arrangement among the countries 22 or their agents and mistreated in Syria as a result -- as the [End Page 40] 1 majority would have it, then we might well agree that we are 2 dealing with a "new context." But, as we have explained, the 3 complaint is not so limited. Incarceration in the United States 4 without cause, mistreatment while so incarcerated, denial of 5 access to counsel and the courts while so incarcerated, and the 6 facilitation of torture by others, considered as possible 7 violations of a plaintiff's procedural and substantive due 8 process rights, are hardly novel claims, nor do they present us 9 with a "new context" in any legally significant sense.20 10 We have recognized implied Bivens rights of action 11 pursuant to the Due Process Clause, so Arar's claims for relief 12 are not new actions under Bivens in that sense. A deprivation of [End Page 20]
In one sense, every case presents a new context, in that

it presents a new set of facts to which we are expected to apply

established law. But a new set of facts is not ipso facto a "new

context." We do not decide, based on the difference in factual

setting alone, whether or not it is a good idea to allow a

plaintiff to avail him or herself of a well-established remedy

such as that afforded by Bivens. This is illustrated by cases

involving legal contexts where Bivens is well-established, in

which courts do not conduct a fresh assessment as to whether a

Bivens action is available based on the facts of each case. See,

e.g., Groh v. Ramirez, 540 U.S. 551 (2004) (Bivens action for

Fourth Amendment violation); McCarthy v. Madigan, 503 U.S. 140

(1992) (Bivens action for Eighth Amendment violation), superseded

by statute on other grounds as stated in Booth v. Churner, 532 U.S. 731 (2001); Castro v. United States, 34 F.3d 106 (2d Cir.

1994) (Fourth Amendment); Armstrong v. Sears, 33 F.3d 182 (2d

Cir. 1994) (same); Anderson v. Branen, 17 F.3d 552 (2d Cir. 1994)

(same); see also Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004)

(same), rev'd on other grounds, sub nom Will v. Hallock, 546 U.S. 345 (2006). [End Page 41] 1 procedural due process rights can give rise to a Bivens claim 2 under our case law. See, e.g., Tellier v. Fields, 280 F.3d 69, 3 80-83 (2d Cir. 2000). And while we do not appear to have 4 squarely considered whether a Bivens action may lie for alleged 5 violations of substantive due process rights, our cases imply 6 that it can be. In Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), 7 rev'd in part on other grounds sub nom Ashcroft v. Iqbal, 129 S. 8 Ct. 1937 (2009), for example, we considered a Bivens action 9 brought on, inter alia, a Fifth Amendment substantive due process 10 theory. The plaintiff alleged physical mistreatment and 11 humiliation, as a Muslim prisoner, by federal prison officials, 12 while he was detained at the MDC. After concluding, on 13 interlocutory appeal, that the defendants were not entitled to 14 qualified immunity, we returned the matter to the district court 15 for further proceedings. We did not so much as hint either that 16 a Bivens remedy was unavailable or that its availability would

[End Page 42] 1 constitute an unwarranted extension of the Bivens doctrine.21 2 Iqbal, 490 F.3d at 177-78. 3 In other cases we have apparently assumed Bivens 4 remedies were available for substantive due process claims. See 5 Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006) (reversing 6 district court's dismissal of Bivens action for violation of 7 plaintiff's Fifth Amendment substantive due process rights while 8 detained at the MDC); Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 9 2000) (dismissing, on qualified immunity grounds, plaintiff's 10 Bivens claim for, inter alia, substantive due process violations, 11 without questioning whether a cause of action was available); Li 12 v. Canarozzi, 142 F.3d 83 (2d Cir. 1998) (affirming judgment 13 following jury verdict for defendants in Bivens action based on 14 allegations of physical assault by guards at the federal 15 Metropolitan Correctional Center in New York City, although not 16 explicitly on substantive due process grounds); Ayeni v. Mottola, 17 35 F.3d 680, 691 (2d Cir. 1994) (apparently assuming that Bivens 18 remedy was available for substantive due process claim, but [End Page 21]
Shortly after we decided Iqbal, the Supreme Court made

clear that by appealing from the district court's denial of

qualified immunity, the defendants placed within our jurisdiction

the question of "the recognition of the entire cause of action."

Wilkie, 127 S. Ct. at 2597 n.4. The district court in Iqbal had

specifically rejected the defendants' argument that a Bivens

action was unavailable. See Elmaghraby v. Ashcroft, No. 04 CV

01809 JG SMG, 2005 WL 2375202, at *14, 2005 U.S. Dist. LEXIS

21434, at *44-*45 (E.D.N.Y. Sept. 27, 2005). Thus, had we

thought that no Bivens action was available, we had the power to

resolve Iqbal's claims on that basis. [End Page 43] 1 deciding that it could not be pursued because the claim in issue 2 was covered by the more particular provisions of the Fourth 3 Amendment, for which a Bivens action was permitted), abrogated on 4 qualified immunity grounds, Wilson v. Layne, 526 U.S. 603 (1999). 5 Indeed, even the most "international" of Arar's 6 domestic allegations -- that the defendants, acting within the 7 United States, sent Arar to Syria with the intent that he be 8 tortured -- present no new context for Bivens purposes. 9 Principles of substantive due process apply to a narrow band of 10 extreme misbehavior by government agents acting under color of 11 law: mistreatment that is "so egregious, so outrageous, that it 12 may fairly be said to shock the contemporary conscience." 13 Lombardi v. Whitman, 485 F.3d 73, 79 (2d Cir. 2007) (internal 14 quotation marks omitted). Sending Arar from the United States 15 with the intent or understanding that he will be tortured in 16 Syria easily exceeds the level of outrageousness needed to make 17 out a substantive due process claim. 18 Although the "shocks the conscience" test is undeniably 19 "vague," see Estate of Smith v. Marasco, 430 F.3d 140, 156 (3d 20 Cir. 2005); Schaefer v. Goch, 153 F.3d 793, 798 (7th Cir. 1998), 21 "[n]o one doubts that under Supreme Court precedent, 22 interrogation by torture" meets that test, Harbury v. Deutch, 233 [End Page 44] 1 F.3d 596, 602 (D.C. Cir. 2000), rev'd on other grounds sub nom 2 Christopher v. Harbury, 536 U.S. 403 (2002);22 see also Rochin v. 3 California, 342 U.S. 165, 172 (1952) (holding that the forcible 4 pumping of a suspect's stomach to obtain evidence to be used 5 against him was "too close to the rack and the screw to permit of 6 constitutional differentiation"); Palko v. Connecticut, 302 U.S. 7 319, 326 (1937) (noting that the Due Process Clause must at least 8 "give protection against torture, physical or mental"), overruled 9 on other grounds, Benton v. Maryland, 395 U.S. 784 (1969); Brown 10 v. Mississippi, 297 U.S. 278, 285-86 (1936) ("Because a state may 11 dispense with a jury trial, it does not follow that it may 12 substitute trial by ordeal. The rack and torture chamber may not 13 be substituted for the witness stand.").23 [End Page 22]
The D.C. Circuit in Harbury concluded that the

interrogation in question did not violate the Constitution

because it occurred entirely abroad. See Harbury, 233 F.3d at

602-04 (relying upon United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)).[End Page 23]
The full quotation is:
[T]he freedom of the state in establishing
its policy is the freedom of constitutional
government and is limited by the requirement
of due process of law. Because a State may
dispense with a jury trial, it does not
follow that it may substitute trial by
ordeal. The rack and torture chamber may not
be substituted for the witness stand.
Because a state may dispense with a jury
trial, it does not follow that it may
substitute trial by ordeal. The rack and
[End Page 45] 1 To be sure, Arar alleges not that the defendants 2 themselves tortured him; he says that they "outsourced" it.24 But 3 we do not think that the question whether the defendants violated 4 Arar's substantive due process rights turns on whom they selected 5 to do the torturing,25 or that such "outsourcing" somehow changes 6 the essential character of the acts within the United States to 7 which Arar seeks to hold the defendants accountable. 8 We think that Arar states a substantive due process 9 claim under either of two theories of substantive due process 10 liability: "special relationship liability" or 11 "state-created-danger liability," Benzman v. Whitman, 523 F.3d 12 119, 127 (2d Cir. 2008) (internal quotation marks omitted).

torture chamber may not be substituted for
the witness stand.

Brown, 297 U.S. at 285-86.[End Page 24]
"[R]endition -- the market approach -- outsources our

crimes, which puts us at the mercy of anyone who can expose us,

makes us dependent on some of the world's most unsavory actors,

and abandons accountability. It is an approach we associate with

crime families, not with great nations." Philip Bobbitt, Terror

and Consent: The Wars for the Twenty-First Century 388 (2008).

"[O]ne could get the worst of both worlds: national

responsibility for acts as to which the agents we have empowered

are unaccountable." Id. at 387.[End Page 25]
"I do not think that whether the defendants violated

Arar's Fifth Amendment rights turns on whom they selected to do

the torturing: themselves, a Syrian Intelligence officer, a

warlord in Somalia, a drug cartel in Colombia, a military

contractor in Baghdad or Boston, a Mafia family in New Jersey, or

a Crip set in South Los Angeles." Arar partial panel dissent at

205. [End Page 46] 1 Under the latter doctrine, the defendants can be held liable for 2 "tak[ing] an affirmative act that creates an opportunity for a 3 third party to harm a victim (or increases the risk of such 4 harm)." Lombardi, 485 F.3d at 80. Under the former, Arar was 5 owed "an affirmative duty" by the defendants to protect him from 6 harm by Syrian agents in light of the fact that the government 7 took him "into its custody and h[eld] him there against his 8 will." Matican v. City of New York, 524 F.3d 151, 155-56 (2d 9 Cir.) (citations, internal quotation marks, and footnotes 10 omitted), cert. denied, 129 S. Ct. 636 (2008). 11 In sum, we do not view the current action as presenting 12 a "new context" in any relevant sense. We therefore do not think 13 we must decide whether "to devise a new Bivens damages action." 14 Wilkie, 127 S. Ct. at 2597, here. 15 V. Devising a New Bivens Damages Action 16 Even apart from our disagreement with the majority that 17 Arar's claims present a new context in which to extend Bivens 18 liability, we are puzzled by the majority's analysis as to 19 whether to do so. Having decided that the issue for our 20 consideration is whether a Bivens action should be permitted in 21 what it has concluded is a new context, the majority engages in a 22 two-part inquiry: "whether there is an alternative remedial [End Page 47] 1 scheme available to the plaintiff; and whether 'special factors 2 counsel[] hesitation' in creating a Bivens remedy." Supra at 3 [33] (quoting Wilkie, 127 S. Ct. at 2598). 4 Our colleagues wisely decline to decide the first 5 issue, whether an alternative remedial scheme is available, 6 partly because they conclude that this is not an immigration case 7 (or, at least, not a "typical" one), see supra at [28], and 8 partly because "Arar has alleged that he was actively prevented 9 from seeking any meaningful review and relief through the INA 10 processes," supra at [35]; see also supra at [27]. This is 11 significant inasmuch as the Supreme Court has observed that it 12 has recognized "new" Bivens actions precisely, inter alia, "to 13 provide a cause of action for a plaintiff who lacked any 14 alternative remedy for harms caused by an individual officer's 15 unconstitutional conduct." Malesko, 534 U.S. at 70 (emphasis 16 omitted). 17 The majority moves on to the second prong of the test, 18 concluding that "special factors are clearly present in the new 19 context of this case, and they sternly counsel hesitation." 20 Supra at [35-36]. We think it unfortunate that the majority 21 concludes that Arar should be afforded no Bivens right of action 22 in light of such "special factors." We quarrel not only with [End Page 48] 1 their conclusion, but also the majority's apparent treatment of 2 the existence vel non of "special factors counseling hesitation" 3 as the determinative legal standard for whether an extension of 4 Bivens is warranted. Setting aside for the moment our view that 5 many of the "special factors" cited by the majority are not 6 properly considered to be such, we think it mistaken to preclude 7 Bivens relief solely in light of a citation or compilation of one 8 or more purported examples of such "special factors." 9 A. "Special Factors" As a Standard 10 The majority is not altogether clear in conveying its 11 understanding of the legal significance of a finding that 12 "special factors counseling hesitation," "sternly" or otherwise, 13 are present. The majority acknowledges that "[h]esitation is a 14 pause, not a full stop, or an abstention; and to counsel is not 15 to require," supra at [37], but it also states that 16 countervailing factors are not considered, and that no such 17 factors have "ever been cited by the Supreme Court as a reason 18 for affording a Bivens remedy where it would not otherwise 19 exist," id. What we are left with is an implication that the 20 presence of "special factors counseling hesitation" in fact does 21 require a "full stop, or an abstention." We disagree. It seems

[End Page 49] 1 to us that the existence of such "special factors" alone does not 2 compel a conclusion that a Bivens action is unavailable. 3 When the words "special factors counseling hesitation" 4 were first uttered by the Supreme Court, in Bivens itself, the 5 Court asserted that there is a general rule "that where legal 6 rights have been invaded, and a federal statute provides for a 7 general right to sue for such invasion, federal courts may use 8 any available remedy to make good the wrong done." Bivens, 403 9 U.S. at 396 (internal quotation marks omitted). The Court then 10 said: "The present case involves no special factors counseling 11 hesitation in the absence of affirmative action by Congress," 12 citing cases in which the general rule had not been applied.26 13 Id. The Bivens Court's observation that there was no cause for 14 hesitation, and its simultaneous recognition in the case before 15 it of a private right of action did not imply, however -- as the 16 majority seems to -- that if there had been reason to hesitate,

[End Page 26]
The Court referred by way of example to its previous

decisions in United States v. Standard Oil Co., 332 U.S. 301, 311

(1947), in which it had concluded that the government had no

implied right of action against a company that had allegedly

injured a soldier because it trenched upon "federal fiscal

policy" particularly delegated to Congress, and Wheeldin v.

Wheeler, 373 U.S. 647 (1963), in which the Court found no private

right of action under federal law where the defendant's acts were

not asserted to violate the plaintiff's constitutional rights and

were governed by state law. [End Page 50] 1 then the Court, ipso facto, would not have recognized a right of 2 action.27 3 The Supreme Court has not told us that "special factors 4 counseling hesitation" are to be understood to prohibit a private 5 right of action. In Wilkie, for example, the Court noted that 6 deciding "whether to recognize a Bivens remedy may require two 7 steps," the second of which asks that the court "pay[] particular 8 heed . . . to any special factors counselling hesitation," id., 9 127 S. Ct. at 2598 (emphasis added). And the Court, in Bush v. 10 Lucas, 462 U.S. 367 (1983), relied upon by the Wilkie Court in 11 this regard, similarly observed that "[i]n the absence of . . . a 12 congressional directive [that a right of action lies], the 13 federal courts must make the kind of remedial determination that 14 is appropriate for a common-law tribunal, paying particular heed, 15 however, to any special factors counseling hesitation before 16 authorizing a new kind of federal litigation." Id. at 378 17 (emphasis added).

[End Page 27]
This appears to reflect a classic logical fallacy,

"denial of the antecedent," which mistakes a necessary condition

for a sufficient one. E.M. Adams, The Fundamentals of General

Logic 164 ("The truth of the premises does not require the truth

of the conclusion. This means that denying the antecedent is an

invalid form of the simple conditional argument."). [End Page 51] 1 "[H]eed" means "[c]lose attention" or "notice." 2 American Heritage Dictionary of the English Language 813 (4th ed. 3 2000). To "pay heed," then, means "to notice," it does not mean 4 "to be governed by." The majority tells us that "'[h]esitation' 5 is 'counseled' whenever thoughtful discretion would pause even to 6 consider." Supra at [37]. If the existence of "special factors 7 counseling hesitation" were determinative of the existence of a 8 right of action, the bar to declining to allow a new Bivens claim 9 would be less than "remarkably low." Id. It would be 10 chimerical. 11 It is difficult to deny the existence of "special 12 factors counseling hesitation" in this case. We have been 13 "hesitating" -- in order to deliberate in light of those factors 14 -- for nearly two years. While the time we have taken to 15 consider "special factors" strongly indicates that they counsel 16 hesitation, it cannot follow that having hesitated, we must 17 therefore halt, and dismiss the Bivens complaint.28 [End Page 28]
Such a test would be reminiscent of Leo Tolstoy's

brother's perhaps apocryphal challenge to Tolstoy to stand in a

corner and not think of a white bear. See, e.g., Aylmer Maude,

The Life of Tolstoy: First Fifty Years (Dodd, Mead and Co. 1910)

19 ("[T]here was also a certain Fanfarónof Hill, up which [my

brother] said he could lead us, if only we would fulfil all the

appointed conditions. These were: first, to stand in a corner

and not think of a white bear. I remember how I used to get into

a corner and try (but could not possibly manage) not to think of [End Page 52] 1 B. The Special Factors Identified by the Majority 2 The "special factors" cited by the majority fall into 3 one of two general categories: those involving security, secrecy, 4 and confidentiality, and those involving other policy 5 considerations. We turn to the latter category first, briefly 6 summarizing each factor as the majority describes it and then 7 setting forth our view of the factor's weight. 8 1. Factors not involving secrecy or security. 9 ! This action asks for damages, but it 10 functionally "operates as a constitutional 11 challenge to the policies promulgated by the 12 executive." Supra at [38]. We should 13 hesitate to allow such an action to proceed 14 because to do so would tacitly "decide," id., 15 that Bivens can subject federal officers to 16 the kind of enterprise liability that was 17 established for actions under 42 U.S.C. § 18 1983 by Monell v. Department of Social 19 Services, 436 U.S. 658 (1978), but has not 20 been established for Bivens actions. 21 This paraphrase sets forth the strongest argument 22 ("factor"), we think, for denying a Bivens remedy to Arar. After 23 Iqbal, it would be difficult to argue that Arar's complaint can 24 survive as against defendants who are alleged to have been 25 supervisors with, at most, "knowledge" of Arar's mistreatment. 26 See Iqbal, 129 S. Ct. at 1949; see also id. at 1955 (Souter, J.,

a white bear."). [End Page 53] 1 dissenting). And to the extent that the United States remains a 2 defendant, perhaps it should be dismissed for want of possible 3 liability under Bivens too. But that does not dispose of the 4 case against the lower-level defendants, such as Blackman, 5 McElroy, and the Doe defendants, who are alleged to have 6 personally undertaken purposeful unconstitutional actions against 7 Arar. 8 It also may be that to the extent actions against 9 "policymakers" can be equated with lawsuits against policies, 10 they may not survive Iqbal either. But while those championing 11 Arar's case may in fact wish to challenge extraordinary rendition 12 policy writ large, the relief Arar himself seeks is principally 13 compensation for an unconstitutional implementation of that 14 policy. That is what Bivens actions are for. 15 ! Actions for damages against federal officers 16 "who implement" rendition "policy" implicate 17 sovereign immunity concerns, by 18 "influenc[ing] government policy, prob[ing] 19 government secrets, invad[ing] government 20 interests, enmesh[ing] government lawyers, 21 and . . . elicit[ing] government funds for 22 settlement." Supra at [39]. 23 ! Recognizing a Bivens action for Arar would 24 entail a judicial "assessment of the validity 25 and rationale" of rendition, which "directly 26 affect[s] significant diplomatic and national 27 security concerns." Supra at [40]. The 28 concern here is in part one of separation of 29 powers, see supra at [41], and in part one of [End Page 54] 1 institutional incompetence, see supra at 2 [41]. 3 Aside from diplomatic and national security 4 considerations, which we address below, this consideration 5 applies to all civil rights actions. Bivens by its nature 6 implicates "government interests," enmeshes government lawyers, 7 and elicits government funds for settlement. Bivens by its 8 nature authorizes courts to invalidate exercises in executive 9 power. A Bivens action, like any other civil rights action, is 10 an attempt to hold members of the executive accountable for their 11 allegedly unconstitutional acts, through the courts. If these 12 "special factors" were persuasive grounds on which to deny Bivens 13 actions, they would not only not be permitted in new contexts, 14 they would not be permitted at all. 15 Similarly, insofar as this Bivens action may influence 16 executive policy, we doubt that that should be a factor 17 "counseling hesitation" either. Civil rights actions influence 18 policy: They make it more costly for executive officers to 19 violate the Constitution. That is their point. See Wyatt v. 20 Cole, 504 U.S. 158, 161 (1992) ("The purpose of § 1983 is to 21 deter state actors from using the badge of their authority to 22 deprive individuals of their federally guaranteed rights and to 23 provide relief to victims if such deterrence fails."). [End Page 55] 1 Finally, the majority suggests that "[i]n the small 2 number of contexts in which courts have implied a Bivens remedy, 3 it has often been easy to identify both the line between 4 constitutional and unconstitutional conduct, and the alternative 5 course which officers should have pursued," a "distinction [the 6 majority says] may or may not amount to a special factor 7 counseling hesitation in the implication of a Bivens remedy." 8 Supra at [54]. It should be noted to the contrary that in the two 9 Supreme Court decisions that did "extend" a Bivens remedy in a 10 "new context," such identification was anything but "easy." 11 Carlson v. Green, 446 U.S. 14 (1980), involved the line between 12 constitutional and unconstitutional medical treatment and medical 13 facilities in prisons, whose management the Supreme Court has 14 found "peculiarly within the province and professional expertise 15 of corrections officials" -- and thus outside of the competence 16 of judges -- and instructed courts to "ordinarily defer to 17 [prison officials'] expert judgment," Pell v. Procunier, 417 U.S. 18 817, 827 (1974). And Davis v. Passman, 442 U.S. 228 (1979), 19 addressed the line between constitutional and unconstitutional 20 discrimination in public employment, which the Court later 21 observed raises issues requiring "decisions [that] are quite 22 often subjective and individualized, resting on a wide array of 23 factors that are difficult to articulate and quantify," Engquist 24 v. Or. Dep't of Agric., 128 S.Ct. 2146, 2154 (2008).

[End Page 56] 1 The factors relied upon by the majority that do not 2 relate to secrecy or security therefore do not appear to us to 3 counsel strongly against recognition of a Bivens remedy here. 4 2. Factors involving secrecy or security. The other 5 "special factors" cited by the majority focus our attention on 6 the ability of the executive to conduct the business of diplomacy 7 and government in secret as necessary and to protect public and 8 private security. It is beyond dispute that the judiciary must 9 protect that concern. See, e.g., Doe v. CIA, 576 F.3d 95 (2d 10 Cir. 2009). But inasmuch as there are established procedures for 11 doing just that, we think treating that need as giving rise to 12 "special factors counseling hesitation" is an unfortunate form of 13 double counting. The problem can be, should be, and customarily 14 is, dealt with case by case by employing the established 15 procedures of the state-secrets doctrine, see id.; see also 16 section VI, below, rather than by barring all such plaintiffs at 17 the courtroom door without further inquiry. 18 C. Factors Weighing in Favor of a Bivens Action 19 At least some factors weigh in favor of permitting a 20 Bivens action in this case. We assume, as we are required to, 21 that Arar suffered a grievous infringement of his constitutional 22 rights by one or more of the defendants, from his interception [End Page 57] 1 and detention while changing planes at an international airport 2 to the time two weeks later when he was sent off in the 3 expectation -- perhaps the intent and expectation -- that he 4 would be tortured, all in order to obtain information from him. 5 Breach of a constitutional or legal duty would appear to counsel 6 in favor of some sort of opportunity for the victim to obtain a 7 remedy for it. Justice Harlan's landmark concurrence in Bivens 8 explains: 9 The[ government's] arguments for a more 10 stringent test to govern the grant of damages 11 in constitutional cases [than that governing 12 a grant of equitable relief] seem to be 13 adequately answered by the point that the 14 judiciary has a particular responsibility to 15 assure the vindication of constitutional 16 interests . . . . To be sure, "it must be 17 remembered that legislatures are ultimate 18 guardians of the liberties and welfare of the 19 people in quite as great a degree as the 20 courts." But it must also be recognized that 21 the Bill of Rights is particularly intended 22 to vindicate the interests of the individual 23 in the face of the popular will as expressed 24 in legislative majorities; at the very least, 25 it strikes me as no more appropriate to await 26 express congressional authorization of 27 traditional judicial relief with regard to 28 [the plaintiff's constitutional] legal 29 interests than with respect to interests 30 protected by federal statutes. 31 Bivens, 403 U.S. at 407 (Harlan, J., concurring) (citation and 32 footnote omitted).

[End Page 58] 1 And more generally, Bivens should be available to 2 vindicate Fifth Amendment substantive due process rights such as 3 those asserted here. As Judge Posner wrote for the Seventh 4 Circuit with respect to a Bivens action: 5 [I]f ever there were a strong case for 6 "substantive due process," it would be a case 7 in which a person who had been arrested but 8 not charged or convicted was brutalized while 9 in custody. If the wanton or malicious 10 infliction of severe pain or suffering upon a 11 person being arrested violates the Fourth 12 Amendment â€"- as no one doubts â€"- and if the 13 wanton or malicious infliction of severe pain 14 or suffering upon a prison inmate violates 15 the Eighth Amendment â€"- as no one doubts â€"- 16 it would be surprising if the wanton or 17 malicious infliction of severe pain or 18 suffering upon a person confined following 19 his arrest but not yet charged or convicted 20 were thought consistent with due process. 21 Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989), cert. denied, 22 493 U.S. 1026 (1990);29 accord Magluta v. Samples, 375 F.3d 1269 23 (11th Cir. 2004) (reversing district court's dismissal of 24 pretrial detainee's Bivens action alleging unconstitutional 25 conditions of confinement at federal penitentiary in violation of 26 the Due Process Clause of the Fifth Amendment); Cale v. Johnson, 27 861 F.2d 943, 946-47 (6th Cir. 1988) (concluding that "federal [End Page 29]
Although there is some disagreement in the Circuits

regarding precisely when, following arrest, abuse of detained

persons is to be analyzed under principles of substantive due

process, we think Judge Posner's comment as to why those

principles must apply at some point is insightful and remains

valid. [End Page 59] 1 courts have the jurisdictional authority to entertain a Bivens 2 action brought by a federal prisoner, alleging violations of his 3 right to substantive due process"), abrogated on other grounds, 4 Thaddeus-X v. Blatter, 175 F.3d 378, 387-88 (6th Cir. 1999); see 5 also Sell v. United States, 539 U.S. 166, 193 (2003) (Scalia, J., 6 dissenting) (observing that "a [Bivens] action . . . is available 7 to federal pretrial detainees challenging the conditions of their 8 confinement" (citing Lyons v. U.S. Marshals, 840 F.2d 202 (3d 9 Cir. 1988)).30 10 A federal inmate serving a prison sentence can employ 11 Bivens to seek damages resulting from mistreatment by prison 12 officials. Carlson v. Green, 446 U.S. 14 (1980). It would be 13 odd if a federal detainee not charged with or convicted of any 14 offense could not bring an analogous claim.31 [End Page 30]
While cases permitting pretrial detainees to bring

Bivens actions for violations of their substantive due process

rights support the availability of a Bivens action here, Arar's

substantive due process claim should not be evaluated under the

standard for assessing the claims of persons who, unlike Arar,

were detained pretrial rather than for the purpose of

interrogation.[End Page 31]
We have not been asked by the parties to examine the

possibility that Arar has pled facts sufficient to raise a claim

under theories other than substantive due process -- such as

under the Fourth Amendment, the self-incrimination clause of the

Fifth Amendment, or even the Eighth Amendment. Because this is

an appeal from a dismissal on the facts pleaded in the complaint

under Rule 12(b)(6), we think that even if this Court were to

consider such an alternate theory and conclude that it was valid,

the case would be subject to remand to the district court for [End Page 60] 1 Finally, a factor counseling recognition of a Bivens 2 action is that Arar has no other remedy for the alleged harms the 3 defendant officers inflicted on him. Cf. Malesko, 534 U.S. at 70 4 ("In 30 years of Bivens jurisprudence we have extended its 5 holding only twice, to provide an otherwise nonexistent cause of 6 action against individual officers alleged to have acted 7 unconstitutionally, or to provide a cause of action for a 8 plaintiff who lacked any alternative remedy for harms caused by 9 an individual officer's unconstitutional conduct."). 10 VI. The State-Secrets Privilege 11 A. Resolution on State-Secrets Grounds 12 If we have not been fully persuasive in arguing that a 13 Bivens remedy should not be denied in this case, we hope we have 14 made it abundantly clear that the question is a complex and 15 difficult one. And that underlies our principal cause for 16 dissent. We think it improper for the Court to take the twisting 17 road to a categorical conclusion that no plaintiff has a private 18 right of action in these circumstances and circumstances like 19 them, when, by a brief order, we could take steps that would 20 likely permit the case to be resolved on its particular facts 21 without new and strained declarations of law.

further proceedings on that theory. [End Page 61] 1 The majority makes a thinly veiled reference to the 2 recognition of a Bivens action as "alacrity or activism." Supra, 3 at [37]. The irony of its making that assertion while reaching 4 out unnecessarily to decide a difficult issue related to 5 separation of powers principles should not be lost. Activism in 6 the defense of "liberty," we gather, is no vice. 7 "The state secrets privilege is a common law 8 evidentiary rule that allows the government to withhold 9 information from discovery when disclosure would be inimical to 10 national security." Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 11 544, 546 (2d Cir. 1991). "In some cases, the effect of an 12 invocation of the privilege may be so drastic as to require 13 dismissal," as when a "proper assertion of the privilege 14 precludes access to evidence necessary for the plaintiff to state 15 a prima facie claim." Id. at 547. We share what we think to be 16 the majority's intuition that this case would likely turn 17 largely, if not entirely, on decisions of national security and 18 diplomacy that the executive branch has already assured us it has 19 good reason to keep out of public view. 20 Indeed, the government, while arguing before us en banc 21 seeking affirmance on the Bivens issue, could hardly have been 22 clearer: [End Page 62] 1 [I]t seems like at the core of your concerns 2 and perhaps your colleagues' concerns is you 3 don't have more information. And that might 4 be the result of the fact that the district 5 court did not rule on the state secrets 6 issue, so all the classified declarations are 7 not in the record, and if this court felt it 8 could not address our Bivens special factors 9 argument at this stage, and I think it 10 can . . . then I respectfully suggest this 11 court do a limited remand for the district 12 court to review the state secrets issue. The 13 government would have to update the 14 declarations, because much time has passed, 15 but allow the government to do that, have the 16 district court rule on the state secrets 17 issues and then this Court could have this 18 declaration before it if it thought it needed 19 to do that. 20 Tr. 58-59 (Cohn). And: 21 Your Honor, if this Court is talking simply 22 about a limited remand, to send this case 23 back simply for the limited purpose of the 24 district court examining the state secrets 25 issue first [if the court won't address 26 Bivens otherwise], I think there's a lot of 27 sense to that, your Honor. 28 Id. at 62-63 (Cohn). 29 Recognizing that the government, like Arar and his 30 counsel, would prefer a ruling on the merits, we nonetheless 31 think we should be taking the government up on its alternate 32 suggestion. Doing so would likely allow us to avoid giving 33 sweeping answers to difficult questions of law that we are not 34 required to ask. And it would, by well-established procedure, 35 address what the majority cites as additional "special factors [End Page 63] 1 counseling hesitation" in recognizing a Bivens right of action. 2 In particular, the majority notes these "factors": 3 ! Judicial consideration of the issues relating 4 to rendition involves particular 5 "sensitivities" because of the need to 6 discover much "classified material," supra at 7 [43], including those relating to "the 8 national security apparatus of at least three 9 foreign countries, as well as that of the 10 United States," supra at [44]. 11 ! "Cases in the context of extraordinary 12 rendition are very likely to present serious 13 questions relating to private diplomatic 14 assurances from foreign countries . . . , and 15 this feature of such claims opens the door to 16 graymail." Supra at [48]; see also supra at 17 [51] ("The risk of graymail is itself a 18 special factor which counsels hesitation in 19 creating a Bivens remedy."). 20 These are "factors" that the state-secrets privilege was designed 21 to address.32 22 We are not without precedent here -- similar both 23 factually and procedurally. In El-Masri v. United States, 479 24 F.3d 296 (4th Cir.), cert. denied, 128 S. Ct. 373 (2007), the 25 issue was an alleged "special rendition" by U.S. agents of a 26 German citizen from Macedonia to a U.S.-controlled prison in [End Page 32]
Our discussion is limited to the government's invocation

of the state-secrets privilege in the context of civil

litigation. The protection of state secrets in the course of a

criminal prosecution would likely raise many different and

difficult issues in light of, among other things, the defendant's

rights under the Fifth and Sixth Amendments. [End Page 64] 1 Afghanistan for the purpose of abusive interrogation. The 2 plaintiff had brought suit, inter alia, pursuant to Bivens, for 3 violation of his due process rights against former CIA director 4 George Tenet, among others. The Fourth Circuit explained: 5 The United States intervened as a defendant 6 in the district court, asserting that El- 7 Masri's civil action could not proceed 8 because it posed an unreasonable risk that 9 privileged state secrets would be disclosed. 10 By its Order of May 12, 2006, the district 11 court agreed with the position of the United 12 States and dismissed El-Masri's Complaint. 13 Id. at 299-300. The district court, in summarizing its order, 14 had said, "It is important to emphasize that the result reached 15 here is required by settled, controlling law."33 El-Masri v. [End Page 33]
The district court's full statement bears repeating:
It is important to emphasize that the result reached
here is required by settled, controlling law. It is in
no way an adjudication of, or comment on, the merit or
lack of merit of El-Masri's complaint. Nor does this
ruling comment or rule in any way on the truth or
falsity of his factual allegations; they may be true or
false, in whole or in part. Further, it is also
important that nothing in this ruling should be taken
as a sign of judicial approval or disapproval of
rendition programs; it is not intended to do either.
In times of war, our country, chiefly through the
Executive Branch, must often take exceptional steps to
thwart the enemy. Of course, reasonable and patriotic
Americans are still free to disagree about the
propriety and efficacy of those exceptional steps. But
what this decision holds is that these steps are not
proper grist for the judicial mill where, as here,
state secrets are at the center of the suit and the
privilege is validly invoked.

Tenet, 437 F. Supp. 2d at 540-41. [End Page 65] 1 Tenet, 437 F. Supp. 2d 530, 540 (E.D. Va. 2006). The Fourth 2 Circuit agreed and affirmed. El-Masri, 479 F.3d at 300.34 3 The majority cites the possibility of "graymail" as a 4 "special factor counseling hesitation." But as another decision 5 of the Fourth Circuit points out, the state-secrets privilege 6 protects this interest too, by "provid[ing] a necessary safeguard 7 against litigants presenting the government with a Hobson's 8 choice between settling for inflated sums or jeopardizing 9 national security." Sterling v. Tenet, 416 F.3d 338, 344 (4th 10 Cir. 2005).35 11 In Arar's case, the government followed essentially the 12 same procedure as it had in El-Masri. The district court here 13 (prior to the district court and court of appeals decisions in 14 El-Masri) decided the case on Bivens grounds instead. We think 15 that to have been mistaken. 16 B. Shortcomings of a State-Secrets Resolution

[End Page 34]
We cite El-Masri not to endorse its conclusions, but as

evidence that the procedures to be applied here are not in any

sense novel.[End Page 35]
Cf. Bivens, 403 U.S. at 410 (Harlan, J., concurring) ("I

simply cannot agree with my Brother BLACK that the possibility of

'frivolous' claims -- if defined simply as claims with no legal

merit -- warrants closing the courthouse doors to people in

Bivens' situation. There are other ways, short of that, of

coping with frivolous lawsuits."). [End Page 66] 1 We discussed the state secrets doctrine in some detail 2 in Doe, 576 F.3d at 101-05 (describing, inter alia, the emergence 3 of the doctrine in and after United States v. Reynolds, 345 U.S. 4 1 (1953)). We are not oblivious to the criticism to which it has 5 been subject. There has been considerable debate about it, see, 6 e.g., Robert M. Chesney, Enemy Combatants After Hamdan v. 7 Rumsfeld: State Secrets and the Limits of National Security 8 Litigation, 75 Geo. Wash. L. Rev. 1249, 1263-1308 (2007) ("Enemy 9 Combatants"); Carrie Johnson, "Handling of 'State Secrets' At 10 Issue," Washington Post, Mar. 25, 2009, at A1, which has been 11 stoked by the recent surfacing of the now-declassified Air Force 12 accident report that was the subject of Reynolds, see Barry 13 Siegel, Claim of Privilege 205-10 (2008).36 14 But this controversy has centered on the extent of the 15 judiciary's role in making the determination of the legitimacy of

[End Page 36]
There have been assertions that the state-secrets

invocation in Reynolds, in which the modern form of doctrine was

first set forth, was a cover-up of government misfeasance, not an

attempt to protect legitimate state secrets. See, e.g., Barry

Siegel, Claim of Privilege at 205-10; Herring v. United States,

No. A 03 Civ. 5500 (LDD), 2004 WL 2040272, at *2, 2004 U.S. Dist.

LEXIS 18545, at *6-*7 (E.D. Pa. Sept. 10, 2004); but see Herring

v. United States, 424 F.3d 384, 386 (3d Cir. 2005) (deciding,

after review of the report, that the government's "assertion of

military secrets privilege for [the] accident report [in

Reynolds] . . . was [not a] fraud upon the court"), cert. denied,

547 U.S. 1123 (2006). [End Page 67] 1 the claim of privilege and the consequences of the government's 2 refusal to produce subpoenaed material necessary to the 3 prosecution of the plaintiff's claim. See, e.g., Enemy 4 Combatants, 75 Geo. Wash. L. Rev. at 1288.37 No one can seriously 5 doubt the need for a mechanism by which the government can 6 effectively protect its legitimate military and diplomatic 7 secrets. The question is whether those procedures now in place

37
Questions that have been raised include: Did the

Reynolds dissenters, and the Third Circuit and Eastern District

of Pennsylvania before them, see Reynolds v. United States, 192 F.2d 987, 990 (3d Cir. 1951), have the better of the argument

when concluding that the judicial role is not fully exercised in

any case without an in-chambers, ex parte review of the allegedly

privileged material? Cf. State Secret Protection Act of 2009,

H.R. 984, 111th Cong. § 5(a) ("Once the Government has asserted

the privilege . . . the court shall undertake a preliminary

review of the information the Government asserts is protected by

the privilege . . . ."); State Secrets Protection Act, S. 417,

111th Cong. § 2 (2009) (providing that, absent certain exceptions

"the United States shall make all evidence the United States

claims is subject to the state secrets privilege available for

the court to review, consistent with [specified requirements],

before any hearing conducted under this section"). Should the

monetary loss occasioned as the result of the invocation of the

privilege fall invariably and exclusively on plaintiffs? See

Enemy Combatants, 75 Geo. Wash. L. Rev. at 1312-13. How finely

grained a showing should be required before an action is

dismissed in light of a successful state-secrets invocation? See

Editorial, The State-Secrets Privilege, Tamed, N.Y. Times, Apr.

30, 2009, at A26 (opining on what it characterized as "the

affront to civil liberties and the constitutional separation of

powers in the Justice Department's argument that the executive

branch is entitled to have lawsuits shut down whenever an

official makes a blanket claim of national security"); see also

msnbc.com, "Full transcript of President Barack Obama's news

conference, Apr. 29, 2009," http://www.msnbc.msn.com/id/

30488052// (The President: "I actually think that the state

secret doctrine should be modified. I think right now it's

overbroad."). [End Page 68] 1 best balance the need for secrecy with competing values and 2 interests. The critics do not, we think, seek to avoid at all 3 cost and in all circumstances the ability of the government to 4 protect state-secrets in civil litigation or the possibility that 5 some such litigation will ultimately be resolved as a result. 6 C. The Majority's Objections 7 The majority has two objections to a state-secrets 8 resolution. 9 First, it hints that we have an "unflagging" obligation 10 to address the Bivens issue before turning to the question of 11 state secrets. See supra at [39] ("True, courts can -- with 12 difficulty and resourcefulness -- consider state secrets and even 13 reexamine judgments made in the foreign affairs context when we 14 must, that is, when there is an unflagging duty to exercise our 15 jurisdiction." (emphasis in original)). We highly doubt the 16 jurisprudential necessity of addressing a broader, more difficult 17 Bivens question when this case might be resolved on its facts by 18 application of well-established state-secrets procedures. As the 19 panel majority pointed out, non-merits dispositions do not 20 require a predicate decision on subject-matter jurisdiction: 21 The Supreme Court has, on several occasions, 22 recognized that a federal court has leeway to 23 choose among threshold grounds for denying 24 audience to a case on the merits. . . . [A] [End Page 69] 1 federal court that dismisses on non-merits 2 grounds before finding subject-matter 3 jurisdiction makes no assumption of 4 law-declaring power that violates separation 5 of powers principles. 6 See Arar, 532 F.3d at 172 (internal quotation marks, citations, 7 and ellipses omitted). The Supreme Court acted similarly in 8 Iqbal, assuming the viability of a Bivens action in order to 9 decide the case on the basis of pleading and supervisory 10 liability. See Iqbal, 129 S. Ct. at 1948. 11 Second, the majority professes concern about the "[t]he 12 court's reliance on information that cannot be introduced into 13 the public record," which the Court says "is likely to be a 14 common feature of any Bivens actions arising in the context of 15 alleged extraordinary rendition." Supra at [42]. The majority 16 thinks that this concern "should provoke hesitation, given the 17 strong preference in the Anglo-American legal tradition for open 18 court proceedings." Supra at [42-43]. 19 "'A trial is a public event. What transpires in the 20 court room is public property.'" Richmond Newspapers v. 21 Virginia, 448 U.S. 555, 574 n.9 (1980) (plurality opinion) 22 (quoting Craig v. Harney, 331 U.S. 367, 374 (1947)). We applaud 23 the majority's recognition of the fundamental importance of the 24 principle that the courts are presumed to be open. See supra at 25 [44]; and see, e.g., Globe Newspaper Co. v. Superior Court, 457 [End Page 70] 1 U.S. 596, 604 (1982). It respects this Circuit's history of 2 meticulously guarding constitutional protection for "access to 3 the courts" in the sense of the ability of a citizen to see and 4 hear, and in that way to participate in, the workings of the 5 justice system.38 See, e.g., Huminski v. Corsones, 396 F.3d 56 6 (2d Cir. 2005); Hartford Courant Co. v. Pellegrino, 380 F.3d 83 7 (2d Cir. 2004); ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004); 8 United States v. Graham, 257 F.3d 143 (2d Cir. 2001); 9 Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16 (2d Cir. 10 1984), cert. denied, 472 U.S. 1017 (1985); Joy v. North, 692 F.2d 11 880 (2d Cir. 1982). But it follows not at all, we think, from 12 the presumption of openness however gauged that the open nature 13 of the federal courts is properly weighed as a factor in the 14 Bivens analysis. 15 The presumption of openness is just that, a 16 presumption. In can be, and routinely is, overcome. We 17 regularly hear, on the basis of partially or totally sealed 18 records, not only cases implicating national security or [End Page 38]
This is "access to courts" in a sense quite different

from the "access to courts" argument made by Arar referring to

the frustration of his ability to seek relief from the judiciary.

Cf. Huminski v. Corsones, 386 F.3d 116, 145 n.30 (2d Cir. 2004)

(distinguishing between a litigant's due process right of access

and the press and public's right of access under the First

Amendment). [End Page 71] 1 diplomatic concerns, see, e.g., Doe, 576 F.3d 95; In re Terrorist 2 Bombings of U.S. Embassies in E. Afr. v. Odeh, 552 F.3d 93 (2d 3 Cir. 2008), cert. denied, 129 S. Ct. 2778 (2009), but those 4 involving criminal defendants' cooperation with prosecutors, see, 5 e.g., United States v. Doe, 314 F. App'x 350 (2d Cir. 2008) 6 (summary order), other criminal matters, see, e.g., U.S. v. 7 Silleg, 311 F.3d 557, 560 (2d Cir. 2002), probation department 8 reports, upon which federal criminal sentences are to a 9 significant extent typically based, see, e.g., United States v. 10 Parnell, 524 F.3d 166, 168 n.1 (2d Cir. 2008) (per curiam); 11 United States v. Molina, 356 F.3d 269, 275 (2d Cir. 2004), child 12 welfare, see, e.g., Sealed v. Sealed, 332 F.3d 51 (2d Cir. 2003), 13 trade secrets, see, e.g., In re Orion Pictures Corp., 21 F.3d 24 14 (2d Cir. 1994), and any manner of other criminal and civil 15 matters. Hardly a week goes by, in our collective experience, in 16 which some document or fact is not considered by a panel of this 17 Court out of the public eye. 18 We accommodate the public interest in proceedings 19 before federal courts by rigorously adhering to the presumption 20 of openness, but the presumption is often overcome. The 21 majority's notion that because the presumption is likely to be 22 overcome in a particular species of case we should therefore [End Page 72] 1 foreclose a remedy or otherwise limit our jurisdiction in order 2 to accommodate the public suspicion of secrecy, is misconceived. 3 Denying relief to an entire class of persons with presumably 4 legitimate claims in part because some of their number may lose 5 in proceedings that are held in secret or because secrets may 6 cause some such claims to fail, makes little sense to us. It 7 could work endless mischief were courts to turn their backs on 8 such cases, their litigants, and the litigants' asserted rights. 9 We are not aware of any other area of our jurisprudence where the 10 ability to overcome the presumption of openness has been relied 11 upon to deny a remedy to a litigant. We do not think it should 12 be here. 13 CONCLUSION 14 For the foregoing reasons and to the extent indicated, 15 we respectfully dissent.

[End Page 73] 1 BARRINGTON D. PARKER, Circuit Judge, joined by Judges CALABRESI, POOLER, and 2 SACK, dissenting: 3 I join Judge Sack's, Judge Pooler's, and Judge Calabresi's opinions in full. My point of 4 departure from the majority is the text of the Convention Against Torture, which provides that 5 "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal 6 political instability or any other public emergency, may be invoked as a justification of torture." 7 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment 8 or Punishment, Art. 2, cl. 2, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 9 ("Convention Against Torture"). Because the majority has neglected this basic commitment and 10 a good deal more, I respectfully dissent. 11 Maher Arar credibly alleges that United States officials conspired to ship him from 12 American soil, where the Constitution and our laws apply, to Syria, where they do not, so that 13 Syrian agents could torture him at federal officials' direction and behest. He also credibly alleges 14 that, to accomplish this unlawful objective, agents of our government actively obstructed his 15 access to this very Court and the protections established by Congress. See 8 U.S.C. § 16 1252(a)(2)(D) (providing for judicial review of constitutional claims or questions of law raised 17 by an order of removal). 18 While I broadly concur with my colleagues who dissent, I write separately to underscore 19 the miscarriage of justice that leaves Arar without a remedy in our courts. The majority would 20 immunize official misconduct by invoking the separation of powers and the executive's 21 responsibility for foreign affairs and national security. Its approach distorts the system of checks

[End Page 1] 1 and balances essential to the rule of law, and it trivializes the judiciary's role in these arenas. To 2 my mind, the most depressing aspect of the majority's opinion is its sincerity. 3 A primary theme of the majority's approach is deference to executive authority, 4 especially in a time of national unrest, turmoil, or danger. The conduct of foreign policy and the 5 maintenance of national security are surely executive and legislative powers. Yet those powers 6 are not limitless. The bounds in both wartime and peacetime are fixed by the same Constitution. 7 See Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866). Where appropriate, deference to the 8 coordinate branches is an essential element of our work. But there is, in my view, an enormous 9 difference between being deferential and being supine in the face of governmental misconduct. 10 The former is often necessary, the latter never is. At the end of the day, it is not the role of the 11 judiciary to serve as a help-mate to the executive branch, and it is not its role to avoid difficult 12 decisions for fear of complicating life for federal officials. Always mindful of the fact that in 13 times of national stress and turmoil the rule of law is everything, our role is to defend the 14 Constitution. We do this by affording redress when government officials violate the law, even 15 when national security is invoked as the justification. See U.S. Const., Art. I, § 9, cl. 2; 16 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 17 Notably, the majority opinion does not appear to dispute the notion that Arar has stated an 18 injury under the Fifth Amendment of the Constitution. That is heartening, because, by any 19 measure, the notion that federal officials conspired to send a man to Syria to be tortured "shocks 20 the conscience." Rochin v. California, 342 U.S. 165, 172 (1952). What is profoundly disturbing, 21 however, is the Court's pronouncement that it can offer Arar no opportunity to prove his case and 22 no possibility of relief. This conclusion is at odds with the Court's responsibility to enforce the [End Page 2] 1 Constitution's protections and cannot, in my view, be reconciled with Bivens v. Six Unknown 2 Named Agents of Fed. Bur. of Narc., 403 U.S. 388 (1971), which remains good law to this day. 3 See also Davis v. Passman, 442 U.S. 228, 243 (1979) (declaring Bivens remedy for alleged Fifth 4 Amendment violations). The majority is at odds, too, with our own State Department, which has 5 repeatedly taken the position before the world community that this exact remedy is available to 6 torture victims like Arar.1 If the Constitution ever implied a damages remedy, this is such a case 7 â€" where executive officials allegedly blocked access to the remedies chosen by Congress in order 8 to deliver a man to known torturers. 9 The Court's hesitation today immunizes official conduct directly at odds with the express 10 will of Congress and the most basic guarantees of liberty contained in the Constitution. By doing 11 so, the majority risks a government that can interpret the law to suits its own ends, without 12 scrutiny. See Memorandum from John Yoo, Deputy Assistant Att'y Gen., & Robert J. Delahunty, 13 Special Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Defense, Jan. 9, 2002, in The 14 Torture Papers: The Road to Abu Ghraib 38 (Karen J. Greenberg & Joshua L. Dratel eds., 2005); 15 The Federalist No. 48, at 313 (James Madison) (Clinton Rossiter ed., 1961) (warning against the 16 "tyrannical concentration of all the powers of government in the same hands"). Contrary to the 17 majority, I believe that the Constitution affords Arar a remedy should he prove his sobering 18 allegations, and that his case should be permitted to proceed. 19 I [End Page 1]
See United States Written Response to Questions Asked by the United Nations Committee

Against Torture, ¶ 5 (bullet-point 5) (Apr. 28, 2006), available at

http://www.state.gov/g/drl/rls/68554.htm; United States Report to the United Nations Committee Against

Torture, ¶¶ 51 (bullet-point 5), 274, U.N. Doc. CAT/C/28/Add/5 (Feb. 9, 2000), available at

http://www.state.gov/documents/organization/100296.pdf. [End Page 3] 1 The majority discovers myriad reasons to "hesitate" in the face of Arar's complaint that 2 federal officials conspired to send him to Syria to be tortured. Its principal reason, however, is 3 that permitting such an action "would have the natural tendency to affect diplomacy, foreign 4 policy and the security of the nation." Maj. Op. at 38. This view of the separation of powers, 5 which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and 6 distorts the role of the judiciary especially during times of turmoil. 7 When presented with an appropriate case or controversy, courts are entitled â€" indeed 8 obliged â€" to act, even in instances where government officials seek to shield their conduct behind 9 invocations of "national security" and "foreign policy." See, e.g., Hamdan v. Rumsfeld, 548 U.S. 10 557 (2006); Reid v. Covert, 354 U.S. 1, 23-30 (1957); Youngstown, 343 U.S. 579. Compare Ex 11 parte Quirin, 317 U.S. 1, 19 (1942) (observing the "duty which rests on the courts, in time of war 12 as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty"), 13 with Maj. Op. at 42 (suggesting that Arar's allegations do not trigger the Court's "unflagging 14 duty to exercise [its] jurisdiction"). This authority derives directly from the Constitution and 15 goes hand in hand with the responsibility of the courts to adjudicate all manner of cases put 16 before them. 17 The active management of foreign policy and national security is entrusted to the 18 executive and legislative branches. See U.S. Const., Art. I, § 8; Art. II, § 2. But this does not 19 mean that executive and legislative officials are left to adhere to constitutional boundaries of 20 their own accord, without external restraint. That is the job of the courts. As Madison declared 21 when he introduced the Bill of Rights to Congress:

[End Page 4] 1 If [these amendments] are incorporated into the Constitution, independent 2 tribunals of justice will consider themselves in a peculiar manner the guardians of 3 those rights; they will be an impenetrable bulwark against every assumption of 4 power in the Legislative or Executive; they will be naturally led to resist every 5 encroachment upon rights expressly stipulated for in the Constitution by the 6 declaration of rights. 7 8 1 Annals of Cong. 439 (Joseph Gales ed., 1834). The Constitution established three co-equal 9 branches of government, each operating as a check upon the others. In this way, the separation of 10 powers was designed as a limiting principle of government â€" not to silence any one branch, as the 11 majority implies here, but to enlist each as "a sentinel over the public rights." The Federalist No. 12 51, at 323-24 (James Madison) (G.P. Putnam's Sons ed., 1908). 13 The majority treats the separation of powers as a reason for the Court to abstain in this 14 case â€" in reality, it is precisely the opposite. The executive's core responsibility for foreign 15 policy does not negate the judiciary's duty to interpret and enforce constitutional limits. "[E]ven 16 the war power does not remove constitutional limitations safeguarding essential liberties." Home 17 Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426 (1934); Boumediene v. Bush, 128 S. Ct. 2229, 18 2246 (2008). One branch impermissibly intrudes upon another not when it fulfills its prescribed 19 role but when it seeks to exercise authority assigned to its coordinate branches. See Youngstown, 20 343 U.S. at 587-89 (holding that the President had exceeded his executive powers when he 21 assumed the "law making power" entrusted to "Congress alone in both good and bad times"); 22 Bowsher v. Synar, 478 U.S. 714, 726 (1986) (holding that Congress may not remove executive 23 officers except by impeachment); The Federalist No. 47, at 325-326 (James Madison) (J. Cooke 24 ed. 1961) ("[W]here the whole power of one department is exercised by the same hands which 25 possess the whole power of another department, the fundamental principles of a free constitution, [End Page 5] 1 are subverted."). The defendants before us could, of course, be fully exonerated in the end, but it 2 is the Court's role to determine the legality of their actions for itself. 3 In this case, Arar does not ask the Court to assume any executive functions â€" to dispatch 4 diplomatic representatives, negotiate treaties, or oversee battlefield decisions. Likewise, the suit 5 does not implicate his release or rescue from Syrian custody. Rather, Arar asks the Court to 6 perform a core judicial function: To interpret the laws and Constitution as they apply to detailed 7 allegations of official misconduct on American soil. And he petitions for a familiar judicial 8 remedy: money damages. See Bivens, 403 U.S. at 395. Such a suit does not represent judicial 9 interference in executive functions, as the majority would have it, but rather an effort to keep 10 executive power within constitutional limits. See Buckley v. Valeo, 424 U.S. 1, 121 (1976) 11 (recognizing that each branch necessarily participates in the affairs of the others); Mistretta v. 12 United States, 488 U.S. 361, 380-81 (1989). Respectfully, I believe the majority's deference 13 dissolves the very protections and liberties that the separation of powers was intended to 14 guarantee. 15 II 16 The Supreme Court has repeatedly made clear that the separation of powers does not 17 prevent the judiciary from ruling on matters affecting national security, and that the courts are 18 competent to undertake this task. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) ("[W]e 19 necessarily reject the Government's assertion that separation of powers principles mandate a 20 heavily circumscribed role for the courts" in establishing procedures for designating enemy 21 combatants); New York Times Co. v. United States, 403 U.S. 713 (1971) (holding that asserted

[End Page 6] 1 military interests could not justify prior restraint of the press); Youngstown, 343 U.S. 579; Ex 2 parte Quirin, 317 U.S. at 19.2 3 Courts routinely handle classified materials and exercise judgment about both the 4 credibility and legal significance of the security interests asserted by the government. See 5 Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-1811, 1821-29, 1841- 6 46, 1861-62 (2006); Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B) & (b)(1) 7 (2002); Classified Information Procedures Act (CIPA), 18 U.S.C. App. III §§ 1-16; Boumediene 8 v. Bush, 128 S. Ct. 2229, 2261 (2008) ("The Government presents no credible arguments that the 9 military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction 10 to hear the detainees' claims."); United States v. United States District Court (Keith), 407 U.S. 11 297, 320 (1972) ("We cannot accept the Government's argument that internal security matters are 12 too subtle and complex for judicial evaluation."). These cases belie the majority's notion that the 13 courts lack authority or competency to assess Arar's claims. "What are the allowable limits of 14 military discretion, and whether or not they have been overstepped in a particular case, are 15 judicial questions." Sterling v. Constantin, 287 U.S. 378, 401 (1932)). [End Page 2]
In Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804), for example, the Supreme Court

found a naval captain "answerable in damages" for his unlawful seizure of a Danish trading ship, even

where a Presidential order appeared to authorize the seizure. The Court did not hesitate, as here, to

address the legality of the President's order or the seizure itself. "A commander of a ship of war of the

United States, in obeying his instructions from the President of the United States, acts at his peril. If

those instructions are not strictly warranted by law he is answerable in damages to any person injured by

their execution." Id. at 170; see also Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801) (determining the

legality of the navy's capture of foreign merchant vessel during undeclared conflict with France); The

Prize Cases, 67 U.S. (2 Black) 635 (1862). Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), rejected the

government's claim that civil war authorized the executive branch to act as "supreme legislator, supreme

judge, and supreme executive." William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime

121 (1998) (quoting the government's brief in Milligan). "The Constitution of the United States is a law

for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes

of men, at all times, and under all circumstances." Ex parte Milligan, 71 U.S. at 120-21. [End Page 7] 1 The courts have a duty to scrutinize unilateral assertions of security and secrecy because 2 the government's account has, in many of these cases, been overblown. Recent disclosures 3 suggest that the military secrets so fiercely guarded in United States v. Reynolds, 345 U.S. 1 4 (1953) â€" the Supreme Court's seminal state secrets case â€" may well have posed no threat to 5 national security. See Herring v. United States, 2004 WL 2040272, at *5 (E.D. Pa. Sept. 10, 6 2004), aff'd, 424 F.3d 384 (3d Cir. 2004) (finding no deliberate fraud upon the court, but noting 7 "the apparent dearth of sensitive information in the accident investigation report and witness 8 statements"); Louis Fisher, In the Name of National Security: Unchecked Presidential Power and 9 the Reynolds Case 166-69 (2006). 10 A similar truth has emerged from the Pentagon Papers case, New York Times Co. v. 11 United States, 403 U.S. 713 (1971). Although the government argued to the Supreme Court that 12 publication posed a "grave and immediate danger to the security of the United States," former 13 Solicitor General Griswold has since acknowledged that the executive's primary concern was 14 "not with national security, but rather with governmental embarrassment." Erwin N. Griswold, 15 Secrets Not Worth Keeping, Wash. Post, Feb. 15, 1989, at A25; cf. Office of the Attorney 16 General, Mem. on Policies and Procedures Governing Invocation of the State Secrets Privilege 2 17 (Sept. 23, 2009) (issuing revised guidelines and clarifying that the Department of Justice "will 18 not defend an invocation of the [state secrets] privilege in order to . . . prevent embarrassment to 19 a person, organization, or agency of the United States government"). The appropriate tools for 20 evaluating national security concerns are already firmly established in our law â€" namely, the state 21 secrets privilege and CIPA. They do not require wholesale abstention by the courts.

[End Page 8] 1 Indeed, a number of cases in which courts have acceded in this way, relying on bald 2 appeals to national security, have proven deeply troubling in retrospect. The Supreme Court's 3 decisions upholding convictions under the Sedition Act of 1918 are regarded as indefensible 4 today. See Schenck v. United States, 249 U.S. 47, 52 (1919); Debs v. United States, 249 U.S. 211 5 (1919); Abrams v. United States, 250 U.S. 616 (1919); Morse v. Frederick, 551 U.S. 393, 442 6 (2007) (Stevens, J., dissenting) (observing that Justice Holmes' dissent in Abrams has 7 "emphatically carried the day"). More recently, the dire warnings issued to justify the indefinite 8 detention of enemy combatants and forestall further court review have also drawn stern rebuke. 9 In Padilla v. Hanft, 432 F.3d 582, 584-587 (4th Cir. 2005), the Fourth Circuit observed that the 10 government had "steadfastly maintain[ed] that it was imperative in the interest of national 11 security" to hold Padilla in military custody for three and a half years. Yet officials abruptly 12 changed course on the doorstep of Supreme Court review, seeking to move Padilla into criminal 13 custody, at a "substantial cost to the government's credibility before the courts." Id. at 584. See 14 also Brief for Respondents, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696) (arguing that 15 military necessity required Hamdi's indefinite detention, yet releasing him to Saudi Arabia seven 16 months later). 17 Finally, contrary to the majority's suggestion, the courts require no invitation from 18 Congress before considering claims that touch upon foreign policy or national security. See Maj. 19 Op. at 10-11, 42-43, 57. In fact, the Supreme Court has demonstrated its willingness to enter 20 this arena against the express wishes of Congress. In Boumediene v. Bush, 128 S. Ct. 2229 21 (2008), the Supreme Court rebuffed legislative efforts to strip the courts of jurisdiction over 22 detainees held at Guantanamo Bay. It held that the writ of habeas corpus extended to the naval [End Page 9] 1 base, and that neither Congress nor the executive branch could displace the courts without 2 formally suspending the writ. Importantly, it did so despite the fact that this exercise of judicial 3 power plainly affected the executive's detention of hundreds of enemy combatants and a 4 centerpiece of the war on terror. The Court recognized that habeas proceedings "may divert the 5 attention of military personnel from other pressing tasks" but refused to find these concerns 6 "dispositive." Id. at 2261. Scores of decisions have since followed this lead. See, e.g., Al 7 Rabiah v. United States, 2009 WL 3048434 (D.D.C. Sept. 17, 2009); Ahmed v. Obama, 613 F. 8 Supp. 2d 51 (D.D.C. 2009). Courts cannot blithely accept every assertion of national security at 9 face-value, and they are entitled to enforce constitutional limits by scrutinizing such claims. 10 III 11 Although Arar credibly alleges mistreatment in both the United States and Syria, the 12 circumstances of his detention on American soil are summarily excluded from the majority's 13 Bivens analysis. Instead, the Court concludes that Arar has not pleaded these allegations with the 14 factual detail required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). See Maj. Op. at 15 23-24. Consequently, it dismisses Claim Four and proceeds as though the challenged conduct is 16 strictly extraterritorial.3 This conclusion goes far beyond any pleading rule we are bound to[End Page 3]
The majority identifies extraordinary rendition as the context for Arar's Bivens claims, a

label that reduces the complaint to the fact of his transfer to Syria. See Maj. Op. at 8, 32-33. In doing

so, the majority largely disregards the events both before and after Arar's transfer that are part and parcel

of his claim for relief. Arar does not merely allege that he was rendered to Syria without process, but

that he was first detained in the United States for twelve days, during which time he was held in harsh

and punitive conditions, coercively interrogated, and deliberately denied access to counsel, his consulate,

and the courts by American officials. See Compl. ¶¶ 2, 4, 32-49, 91-93. Moreover, the purpose and

culmination of this mistreatment was not simply Arar's removal from the United States. Rather,

American officials allegedly set out to render him to Syria either intending or knowing that Arar would

be tortured there, and aided this abuse by providing information to his captors. See id. ¶¶ 55-57. One

hopes that all extraordinary rendition is not for the purpose of torture; certainly, this abuse is not one of

the attributes that the majority attaches to that label. See Maj. Op. at 9-10 n.1. All told, extraordinary

rendition is the method by which Arar was transferred to Syria, but it hardly captures the constitutional [End Page 10] 1 apply, and it is inconsistent with both Rule 8 of the Federal Rules of Civil Procedure and recent 2 Supreme Court decisions. 3 Even after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), which dismissed 4 discrimination claims against policymakers on account of inadequate pleading, Claim Four 5 readily exceeds any measure of "plausibility." Claim Four seeks to hold Defendants John 6 Ashcroft, Larry Thompson, Robert Mueller, James Ziglar, J. Scott Blackman, Edward McElroy, 7 and John Does 1-10 responsible for the extreme conditions under which Arar was held in the 8 United States.4 While the majority finds that Arar failed to allege the requisite "meeting of the 9 minds" necessary to support a conspiracy, see Maj. Op. 24, it ignores the fact that Arar pleaded 10 multiple theories of liability. Formal conspiracies aside, he also alleges that the defendants 11 commonly aided and abetted his detention and removal â€" that is, that the defendants were 12 personally involved in his mistreatment both in the United States and abroad. See Hayut v. State 13 Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003) (A supervisory official personally 14 participates in challenged conduct not only by direct participation, but by (1) failing to take 15 corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent 16 supervision, or (4) deliberate indifference to the rights of others); Johnson v. Newburgh Enlarged 17 Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001).

injuries described in his complaint.[End Page 4]
At the time of Arar's detention, Defendant Ashcroft was Attorney General of the United States;

Defendant Thompson was Deputy United States Attorney General; Defendant Robert Mueller was the

Director of the Federal Bureau of Investigation (FBI); Defendant Ziglar was Commissioner of the

Immigration and Naturalization Service (INS); Defendant Blackman was Regional Director of the INS

for the Eastern District; Defendant McElroy was District Director for the INS for the New York City

District; and John Does 1-10 were federal law enforcement agents employed by the FBI or INS. See

Compl. ¶¶ 14-22. [End Page 11] 1 In support of his claim for mistreatment and due process violations while in American 2 custody, Arar includes factual allegations that are anything but conclusory. Indeed, he provides 3 as much factual support as a man held incommunicado could reasonably be expected to offer a 4 court at this stage. The complaint alleges that Defendant McElroy was personally involved in 5 Arar's failure to receive the assistance of counsel. See Compl. ¶ 43. It alleges that Defendants 6 Blackman and Thompson personally approved Arar's expedited transfer from the United States to 7 Syria, implicating these officials in his inability to access the courts. Id. ¶¶ 15, 47-48. And it 8 recounts statements by Arar's American interrogators that they were discussing his situation with 9 "Washington D.C." Id. ¶ 45; see also Dep't of Homeland Security, Office of the Inspector 10 General, The Removal of a Canadian Citizen to Syria ("OIG Report") at 11 (reporting that DOJ 11 and INS officials in Washington, D.C. learned of Arar's apprehension on the evening of 12 Thursday, September 26, 2002, 12 days before he was rendered to Syria via Jordan). More 13 broadly, Arar details the harsh conditions under which he was held, including shackling, strip 14 searches, administrative segregation, prolonged interrogation, and a near communications 15 blackout. See id. ¶¶ 29-47. Notably, these are not "[t]hreadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements." Iqbal, 129 S. Ct. at 1949. They 17 easily satisfy the requirements of both Iqbal and also Rule 8, whose "short and plain statement" 18 remains the baseline for notice-pleading. See Fed. R. Civ. P. 8(a)(1). 19 Moreover, as Iqbal made clear, plausibility is "context-specific," requiring the reviewing 20 court "to draw on its experience and common sense." Iqbal, 129 S. Ct. at 1950. There, the 21 Supreme Court rejected Iqbal's discrimination claims against high-ranking federal officials 22 because his complaint lacked sufficient factual allegations supporting the inference of [End Page 12] 1 discriminatory intent. Id. at 1952. Central to the majority's decision was the fact that these 2 officials faced a devastating terrorist attack "perpetrated by 19 Arab Muslim hijackers." Id. at 3 1951. Against this backdrop, the majority found Iqbal's claim overwhelmed by the "obvious 4 alternative explanation" â€" that his arrest stemmed from a "nondiscriminatory intent to detain 5 aliens . . . who had potential connections to those who committed terrorist acts." Id. at 1951 6 (quoting Twombly, 550 U.S. at 567). Apparently having their own views about the defendants' 7 state of mind, the majority simply found Iqbal's discrimination claim incredible. 8 Plausibility, in this analysis, is a relative measure. Allegations are deemed "conclusory" 9 where they recite only the elements of the claim. They become implausible when the court's 10 commonsense credits far more likely inferences from the available facts. See Harris v. Mills, 572 11 F.3d 66, 71-72 (2d Cir. 2009). Plausibility thus depends on a host of considerations: The full 12 factual picture presented by the complaint, the particular cause of action and its elements, and the 13 available alternative explanations. See Iqbal, 129 S. Ct. at 1947-52. As Rule 8 implies, a claim 14 should only be dismissed at the pleading stage where the allegations are so general, and the 15 alternative explanations so compelling, that the claim no longer appears plausible. See Fed. R. 16 Civ. P. 8(a); Twombly, 550 U.S. at 556 (requiring simply "enough fact to raise a reasonable 17 expectation that discovery will reveal evidence" supporting the claims). 18 Arar's claim readily survives this test, particularly in light of the Court's obligation to 19 "draw[] all reasonable inferences in the plaintiff's favor" on a motion to dismiss. See Chambers 20 v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). The notion that high-ranking 21 government officials like Defendants Ashcroft and Mueller were personally involved in setting or 22 approving the conditions under which suspected terrorists would be held on American soil â€" and [End Page 13] 1 even oversaw Arar's detention and removal â€" is hardly far-fetched. Arar's arrival at JFK airport 2 was a significant event in September 2002, triggering all manner of security responses. See, e.g., 3 Compl. ¶ 45; OIG Report at 11, 15 (citing "high-level interest in Arar in Washington, DC"); id. 4 at 30 n.31 (describing the four-vehicle convoy in which Arar was transported, including nine INS 5 officers equipped with their service weapons, Remington 870 shotguns, M-4 rifles, helmets, and 6 ballistic vests). The fact that Arar was covertly transferred to Syria, by itself, indicates 7 involvement at the highest levels of government. 8 In contrast to Iqbal, it is the alternative here that is difficult to fathom. To think that low- 9 level agents had complete discretion in setting the conditions for holding a suspected member of 10 al Qaeda defies commonsense. It requires the Court to believe that, while high-level officials 11 were involved in arranging Arar's removal to Syria â€" a premise the majority does not question5 â€" 12 they were oblivious to the particulars of his detention. The majority was, of course, bound to 13 credit all reasonable inferences from the allegations in the complaint, understanding that their 14 factual basis would be thoroughly tested in discovery. See Twombly, 550 U.S. at 555 (a court 15 must proceed "on the assumption that all the allegations in the complaint are true (even if 16 doubtful in fact)"). The inference that, in 2002, high-level officials had a role in the detention of 17 a suspected member of al Qaeda requires little imagination. 18 Further, unlike Iqbal, Arar's due process claims do not ask the Court to speculate about 19 the mental state of government officials. Rather, Claim Four rests on objective factors â€" the [End Page 5]
Likewise, the majority finds these very same allegations sufficient for purposes of

personal jurisdiction, as did the panel. See Maj. Op. at 19; Arar v. Ashcroft, 532 F.3d 157, 173-75 (2d

Cir. 2008) (panel op.) (applying identical personal involvement standard in considering personal

jurisdiction and finding it met). [End Page 14] 1 conditions of confinement and his access to the courts â€" that are independent of motive. 2 Compare Iqbal, 129 S. Ct. at 1948 (claim of invidious discrimination requires the plaintiff to 3 "plead and prove that the defendant acted with discriminatory purpose"), with Kaluczky v. City of 4 White Plains, 57 F.3d 202, 211 (2d Cir.1995) (government conduct that is "arbitrary, conscience- 5 shocking, or oppressive in a constitutional sense" violates substantive due process). The 6 complaint contains more than sufficient factual allegations detailing these deprivations. See 7 Compl. ¶¶ 27-49. 8 Finally, it should not be lost on us that the Department of Homeland Security's Office of 9 Inspector General has itself confirmed the broad contours of Arar's mistreatment, producing a 10 lengthy report on the conditions of his detention in American custody. See OIG Report. This 11 report provides a powerful indication of the reliability of Arar's factual allegations at this stage.6 12 Plainly, the majority has read the OIG report, even citing it for limited purposes in its opinion. 13 See Maj. Op. at 48. It is difficult, then, to comprehend how the majority can ignore the report's 14 findings and conclusions in assessing the basic plausibility of Arar's fourth claim. 15 Ultimately, it is unclear what type of allegations to overcome a motion to dismiss by 16 high-level officials could ever satisfy the majority. In refusing to credit Arar's allegations, the 17 majority cites the complaint's use of the "passive voice" in describing some of the underlying 18 events. See Maj. Op. at 25. This criticism is odd because the occasional use of the passive 19 voice has not previously rendered pleadings defective, particularly where the defendants' roles 20 can be easily ascertained from the overall complaint. See Compl. ¶¶ 14-22; Yoder v. [End Page 6]
In Iqbal, the Supreme Court looked beyond the complaint to a wider factual context in

assessing plausibility. See 129 S. Ct. at 1951-52. [End Page 15] 1 Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 561 (2d Cir. 1985) ("It is elementary that, 2 on a motion to dismiss, a complaint must be read as a whole, drawing all inferences favorable to 3 the pleader.") (citations omitted). Specifically, the majority faults Arar for not pinpointing the 4 individuals responsible for each event set out in the complaint and for failing to particularize 5 more fully when and with whom they conspired. The irony involved in imposing on a plaintiff â€" 6 who was held in solitary confinement and then imprisoned for ten months in an underground cell 7 â€" a standard so self-evidently impossible to meet appears to have been lost on the majority. 8 The flaws in the majority's approach are not unique to Arar, but endanger a broad swath 9 of civil rights plaintiffs. Rarely, if ever, will a plaintiff be in the room when officials formulate 10 an unconstitutional policy later implemented by their subordinates. Yet these closeted decisions 11 represent precisely the type of misconduct that civil rights claims are designed to address and 12 deter. See Carlson v. Green, 446 U.S. 14, 21 (1980). Indeed, it is this kind of executive 13 overreaching that the Bill of Rights sought to guard against, not simply the frolic and detour of a 14 few "bad apples." The proper way to protect executive officials from unwarranted second- 15 guessing is not an impossible pleading standard inconsistent with Rule 8, but the familiar 16 doctrine of qualified immunity. 17 Even if the majority finds that Arar's factual allegations fall short of establishing the 18 personal involvement of Defendants Ashcroft and Mueller, they plainly state a claim against 19 defendants such as Thompson, Blackman, McElroy, and John Doe FBI and ICE agents. See 20 Compl. ¶¶ 43, 47-48, 55. The direct involvement of these defendants is barely contested by the 21 appellees and barely mentioned by the majority. For this reason alone, there is no legal 22 justification for the majority to dismiss Claim Four outright. [End Page 16] 1 IV 2 When the full range of alleged mistreatment is considered, Arar's injuries hardly 3 constitute a "new" context for Bivens claims, and I agree with both Judge Sack's and Judge 4 Pooler's careful analyses. This Court has repeatedly assumed that Bivens extends to substantive 5 due process claims and provides a damages remedy to other detainees illegally injured by 6 executive officials or their agents. See Carlson v. Green, 446 U.S. 14 (1980); Thomas v. 7 Ashcroft, 470 F.3d 491, 497 (2d Cir. 2006); Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000). 8 Our State Department is of the same view, having assured the United Nations' Committee 9 Against Torture that a Bivens remedy is available to torture victims. See United States Written 10 Response to Questions Asked by the United Nations Committee Against Torture, ¶ 5 11 (bullet-point 5) (Apr. 28, 2006), available at http://www.state.gov/g/drl/rls/68554.htm.7 12 Even if Arar's case were viewed as a new context, the "special factors" cited by the 13 majority do not justify denying him relief because they are not "special." They largely duplicate 14 concerns â€" like state secrets, sovereign immunity, and qualified immunity â€" amply addressed by 15 other doctrines at the Court's disposal. See Davis v. Passman, 442 U.S. 228, 246 (1979) 16 (refusing to hesitate where special factors were "coextensive with the protections afforded by the 17 Speech or Debate Clause"). My colleagues make these arguments in greater detail, cataloging 18 the flaws in the majority's Bivens analysis. I write to emphasize the heightened need for a Bivens 19 remedy in cases such as this where executive officials have deliberately thwarted the remedies [End Page 7]
Responding to the Committee's question, "What guarantees and controls does [the United

States] have to ensure the monitoring of the activities of law enforcement officials in prisons and other

detention centres . . . under its jurisdiction or de facto control," the State Department acknowledged

among other remedies: "Suing federal officials for damages under provisions of the U.S. Constitution for

‘constitutional torts,' see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v.

Passman, 442 U.S. 228 (1979)." [End Page 17] 1 provided by Congress and obstructed access to the courts. Arar's claims in this regard supply an 2 exceptionally compelling justification for affording a Bivens remedy, going well beyond the 3 allegations that gave rise to Bivens in the first place. 4 The judicial role recognized in Bivens reflects an important institutional balance â€" one 5 closely aligned with separation of powers. Bivens offers Congress the first opportunity to fashion 6 a remedy for invasions of individual rights protected by the Constitution. However, when a 7 legislative judgment is lacking, Bivens permits the courts to use their common-law powers to fill 8 crucial gaps and provide redress in appropriate instances. This line of cases thus instructs the 9 courts to tread lightly where Congress has spoken, presuming that in those instances 10 constitutional interests have been adequately addressed by the legislative branch. See Schweiker 11 v. Chilicky, 487 U.S. 412, 423 (1988) ("When the design of a Government program suggests that 12 Congress has provided what it considers adequate remedial mechanisms for constitutional 13 violations that may occur in the course of its administration, we have not created additional 14 Bivens remedies."). 15 On the other hand, where no legislative remedy exists, Bivens reaffirms the courts' power 16 to ensure that individuals can obtain relief for constitutional injuries. The courts, within this 17 framework, provide a forum of last resort; through Bivens, they stand behind constitutional 18 guarantees neglected by the political branches. Compare Bivens, 403 U.S. at 410 (Harlan, J., 19 concurring) (implying a remedy where constitutional injury would otherwise go unredressed), 20 with Bush v. Lucas, 462 U.S. 367, 388 (1983) (denying Bivens remedy in light of the "elaborate 21 remedial system" established by Congress).

[End Page 18] 1 Even so, this remedy is constrained by "special factors" that counsel hesitation even in 2 the "absence of affirmative action by Congress." Bivens, 403 U.S. at 396. The Supreme Court 3 has never provided an exhaustive definition of these special factors, and existing precedent offers 4 only a few data-points.8 But it has nonetheless indicated that this analysis should "weigh[] 5 reasons for and against the creation of a new cause of action, the way common law judges have 6 always done." Wilkie v. Robbins, 551 U.S. 537, 554 (2007). In Wilkie, for example, the factor 7 that ultimately counseled hesitation was the difficulty of distinguishing unconstitutional conduct 8 from lawful government activity. Id. at 555-61. In earlier cases, involving claims by military 9 personnel, the Supreme Court cited Congress' plenary authority "To make Rules for the 10 Government and Regulation of the land and naval Forces," and its adoption of the Uniform Code 11 of Military Justice. See Chappell v. Wallace, 462 U.S. 296, 302-03 (1983) (citing U.S. Const., 12 Art. I, § 8, cl. 12-14; 10 U.S.C. § 938); see also United States v. Stanley, 483 U.S. 669, 683-84 13 (1987). Where Congress, pursuant to this authority, had established a parallel system of military 14 discipline, the Court declined to interfere in the relationship between enlisted personnel and their 15 commanding officers. See Chappell, 462 U.S. at 304. "Special factors," then, must be regarded 16 as a prudential limitation: One that considers the suitability of money damages for the particular 17 constitutional injuries alleged, together with the availability of other relief.9 See Davis, 442 U.S. 8
While the majority pointedly notes that the Supreme Court has only agreed to extend a

Bivens remedy three times since 1971, it has only rejected such claims based on special factors on three

occasions over that same period. See Wilkie v. Robbins, 551 U.S. 537, 554 (2007); United States v.

Stanley, 483 U.S. 669 (1987); Chappell v. Wallace, 462 U.S. 296 (1983). In every other case, the Court

has determined that the remedial scheme established by Congress displaces a judicial remedy â€" a finding

that the majority does not purport to make here. Moreover, even in Chappell, the Supreme Court relied

in part on the alternative remedial scheme provided in the Uniform Code of Military Justice.[End Page 9]
The special factors analysis considers the wisdom and effectiveness of one particular

remedy â€" the recovery of money damages from individual federal officers. This determination is

separate and distinct from (1) a court's capacity to assess the right in question; and (2) its power to afford [End Page 19] 1 at 245 (finding "special concerns" overcome by impossibility of equitable relief and 2 appropriateness of damages remedy). 3 So limited, Bivens is an infrequent remedy, but it is a vitally necessary one. In laying out 4 the Bivens remedy, the Supreme Court recognized that "[t]he very essence of civil liberty 5 certainly consists in the right of every individual to claim the protection of the laws." Butz v. 6 Economou, 438 U.S. 478, 485 (1978) (quoting Bivens, 403 U.S. at 395, 397); see also Davis, 442 7 U.S. at 241 ("[T]he judiciary is clearly discernible as the primary means through which these 8 rights may be enforced."). It was this principle, in the face of "the most flagrant abuses of 9 official power," that prompted the Court to afford a damages remedy. Bivens, 403 U.S. at 410 10 (Harlan, J., concurring). Bivens thus reflects the courts' role as an independent source of 11 protection, applying the damages remedy as a form of individual relief and official 12 accountability. 13 This prerogative is consistent with the constitutional plan. With its built-in limitations, 14 Bivens has never represented a formidable expansion of judicial power. The doctrine, it must be 15 remembered, does not create any new rights; it provides a mechanism for enforcing existing 16 constitutional rights when no other avenue exists. "[W]here legal rights have been invaded, and 17 a federal statute provides for a general right to sue for such invasion, federal courts may use any

relief of any kind. In particular, if a court would be entitled to provide injunctive or habeas relief for the

same or similar claims, it cannot treat the special factors analysis as a proxy for justiciability, the

political question doctrine, or the separation of powers. Indeed, if other forms of relief would be

available, these potential obstacles to the court's jurisdiction have already been dispatched and they may

not be smuggled in a second time through the back door. Yet the majority does precisely this, relying on

a host of "special factors" that simply repeat concerns accounted for elsewhere in our law. See Maj. Op.

at 38-50 (treating as special factors separation of powers, sovereign immunity, state secrets and classified

information, and diplomatic assurances). In reality, it is a much more modest inquiry. The special

factors analysis must focus on why money damages â€" as opposed to other forms of available relief â€"

might be inappropriate or undesirable. [End Page 20] 1 available remedy to make good the wrong done." Bell v. Hood, 327 U.S. 678, 684 (1946); see 2 also Bivens, 403 U.S. at 395 ("Historically, damages have been regarded as the ordinary remedy 3 for an invasion of personal interests in liberty."). 4 Against this backdrop, the majority sets out to narrow Bivens to the point of vanishing. 5 The majority's test would not just eliminate a Bivens remedy in Arar's case, but in almost all 6 cases. According to the majority, "‘[h]esitation' is ‘counseled' whenever thoughtful discretion 7 would pause even to consider," and "no account is taken of countervailing factors." See Maj. 8 Op. at 37. But because "thoughtful" people, by definition, always "pause to consider," this 9 approach would foreclose a damages remedy on account of the most fleeting and superficial of 10 concerns. And it would permit courts to ignore completely, as the majority opinion itself does, 11 the gravity of the constitutional injuries alleged. As the Court admits, this dramatic recasting of 12 Bivens is unnecessary to support its holding. Id. at 38 (expressing the view that Arar's action 13 "would have the natural tendency to affect diplomacy, foreign policy and the security of the 14 nation," and therefore the Court's holding "need be no broader"). The standard described by the 15 majority misstates the law and, for the reasons surveyed here, significantly weakens the courts' 16 ability to redress constitutional injuries. 17 V 18 Arar's claims, in fact, go beyond the usual imperatives for a Bivens remedy. His 19 complaint offers an exceptionally compelling basis for relief, one that the majority repeatedly 20 sidesteps: The charge that government officials actively obstructed Arar's access to the courts, 21 violating core procedural due process rights. See Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000) 22 (assuming that a Bivens action exists for procedural due process claim by detainee). Any court [End Page 21] 1 should be deeply disturbed by such allegations, especially those backed by the factual detail 2 presented here. Cf. Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000) (finding AEDPA 3 statute of limitations equitably tolled where prison officials intentionally obstructed habeas 4 petitioner's ability to file his petition by confiscating his legal papers). Yet the majority's 5 wholesale dismissal of claims relating to Arar's detention in the United States â€" for insufficient 6 pleading, as described above â€" allows it to avoid any meaningful engagement with these 7 allegations. 8 Normally, as we have seen, when Congress legislates in a particular area, a Bivens action 9 is not appropriate. In particular, the division of labor outlined in Bivens contemplated two 10 scenarios: (1) Where Congress has selected a remedy for constitutional injuries, the courts should 11 defer to its legislative wisdom; (2) Where Congress has not considered a remedy, however, a 12 court must use its "judgment about the best way to implement a constitutional guarantee." 13 Wilkie, 551 U.S. at 550; see Bivens, 403 U.S. at 496. However, Arar's case fits neither situation. 14 Instead, the allegations are that any remedy provided by Congress and the Constitution was 15 purposefully foreclosed by executive officials. 16 When it comes to torture, Congress has spoken loudly and clearly. Title 18, Section 2441 17 makes it a felony punishable by life imprisonment to commit, or conspire to commit, "an act 18 specifically intended to inflict severe physical or mental pain or suffering . . . upon another 19 person within his custody or physical control for the purpose of obtaining information or a 20 confession." See also 18 U.S.C. § 2340A. Arar's transfer to Syria was allegedly designed to 21 skirt the congressional prohibition on torture by outsourcing this form of interrogation. 22 Moreover, in order to seamlessly accomplish this transfer, officials had to ignore or evade a [End Page 22] 1 number of other congressional dictates: An immigration policy that bars the removal of any 2 person to a country where he will likely be tortured, and the INA's judicial review provision. See 3 Convention Against Torture, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 4 implemented by Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, 5 Div. G., Tit. XXII, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231); 8 U.S.C. § 6 1252(a)(2)(D); see also Tun v. INS, 445 F.3d 554, 566 (2d Cir. 2006). Finally, officials' actions 7 also foreclosed Arar's opportunity to seek habeas relief under 28 U.S.C. § 2241 and the 8 Constitution, a remedy that the government itself concedes should have been available to Arar. 9 In bare terms, the complaint alleges that executive officials set out to circumvent and 10 undercut the powers of both the legislative and judicial branches. Under these circumstances, the 11 usual justifications for hesitation in applying Bivens are simply not present. When, as here, the 12 executive branch takes measures incompatible with the express or implied will of Congress, its 13 "power is at its lowest ebb." Youngstown, 343 U.S. at 637 (1952) (Jackson, J., concurring). 14 Factors that might otherwise counsel hesitation disappear where executive officials have sought 15 to nullify the remedies chosen by Congress. In these cases, courts owe the executive branch little 16 deference. Instead, the courts' provision of a substitute remedy is an undertaking not simply 17 "appropriate for a common-law tribunal" but essential for the rule of law. Bush v. Lucas, 462 18 U.S. 367, 378 (1983). Since the majority fails in these responsibilities, I repectfully dissent. 19

[End Page 23] POOLER, Circuit Judge, joined by Judges Calabresi, Sack, and Parker, dissenting.

I agree with the well-reasoned dissents of my colleagues and join their opinions in full. I write separately to note that the majority's opinion in this troubling and unusual case should not be misread as adopting a new framework for determining whether to recognize a Bivens claim, and to explain why I do not agree that Arar's TVPA claim should be dismissed.

I. Bivens

At first glance, it might seem that the majority's reasoning with respect to Arar's Bivens claim proceeds in two simple steps: (1) Arar's claim presents a new context for a Bivens action,1 and (2) special factors counsel hesitation before recognizing a Bivens remedy. But a closer reading of the majority opinion reveals far more than a mere hesitation to extend Bivens to a new context in light of special factors. Because the majority's holdings bear no relation to its new statements of Bivens principles, those remarks are dicta. Moreover, any such simplistic framework would be contrary to the Supreme Court's Bivens decisions, which require that courts consider reasons both for and against recognizing the remedy.

The Supreme Court has held that we must engage in the following analysis in considering whether to recognize Bivens action:

In the first place, there is the question whether any alternative, existing process for

protecting the interest amounts to a convincing reason for the Judicial Branch to

refrain from providing a new and freestanding remedy in damages. But even in

the absence of an alternative, a Bivens remedy is a subject of judgment: "the

federal courts must make the kind of remedial determination that is appropriate

for a common-law tribunal, paying particular heed, however, to any special factors

counselling hesitation before authorizing a new kind of federal litigation."

1

I do not agree with the majority's conclusion that Arar's case presents a new context for a Bivens action for the reasons stated in Judge Sack's dissent. [End Page 1] Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)). After sidestepping the question of existing remedies, Maj. Op. at 33-36, the majority states that the remainder of inquiry can be reduced to the question of whether there any special factors to consider. Id. at 35-36
The majority begins by observing that the Supreme Court has extended Bivens twice but
refused to extend Bivens seven times, as if this empirical disfavor could save courts the trouble of engaging in "the kind of remedial determination that is appropriate for a common-law tribunal." Wilkie, 551 U.S. at 550.2 Notwithstanding the Supreme Court's reluctance to extend Bivens in recent years, it has not overruled Bivens, nor has it overruled the decisions extending Bivens to new contexts in Davis v. Passman, 442 U.S. 228 (1979) and Carlson v. Green, 446 U.S. 14 (1980), nor has it ever held that "Bivens and its progeny should be limited to the precise circumstances that they involved." Wilkie, 551 U.S. at 568 (Thomas, J., concurring) (quotation marks omitted). Thus, the majority must distinguish Bivens, Davis, and Green's cases from Arar's.
To do so, the majority points to "special factors" that counsel hesitation. The majority
observes, in dicta, two "principles" emerging from the case law on Bivens. First, where special factors counseling hesitation exist, "no account is taken of countervailing factors." Maj. Op. at 37. Notwithstanding this new principle, the majority concludes that it "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.'" Id. at 56-57 (quoting [End Page 2]

Recently, in dicta, the Supreme Court explained that its "reluctan[ce]" to extend Bivens stems from the fact that "implied causes of action are disfavored." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). [End Page 2] Arar v. Ashcroft, 532 F.3d 157, 213 (2d Cir. 2008) (Sack, J., dissenting in part)). And the majority recognizes that prudential considerations play into the Bivens analysis, considering, for example, whether a Bivens action in Arar's context would have a deterrent effect. Id. at 52. Ultimately, therefore, the majority has not adopted any new principle of disregarding countervailing factors.

Second, the majority proclaims that the threshold for determining whether a factor "‘counsels hesitation' is remarkably low.'" Maj. Op. at 37. The majority explains that "‘[h]esitation' is ‘counseled' whenever thoughtful discretion would pause even to consider." Id. I find this statement somewhat inscrutable, but I do not take the majority to mean that Bivens should not be extended anytime a special factor deserves any degree of consideration. Insofar as the majority intends to lower the bar for special factors, its remarks are dicta. These remarks bear no relation to the majority's holding that extension of Bivens to Arar's context is not "advisable," id. at 32, because separation of powers, institutional competence, and other factors "sternly" counsel hesitation. Id. at 36. Indeed, the majority's opinion devotes twenty pages to its stern assessment of special factors, id. at 36-56, including the fear that "actual terrorists" could win damages awards, placing courts in the position of funding terrorism, id. at 53 n.12; that the government will be "graymail[ed]" into settling cases to prevent disclosure of classified information, id. at 51-54; and that other countries will be "less willing to cooperate with the United States in sharing intelligence resources to counter terrorism," id. at 43.

Apart from being dicta, these remarks represent a misreading of Supreme Court precedent. Wilkie exhorts that we pay heed to special factors counseling hesitation while exercising the type of remedial judgment appropriate for a common law tribunal â€" "weighing [End Page 3] reasons for and against the creation of a new cause of action, the way common law judges have always done." 551 U.S. at 554 (citing Bush, 462 U.S. at 378). In the exercise of remedial judgment, we should not consider only those factors that militate in favor of one side of the argument. We must be mindful of a wide range of prudential concerns. See, e.g, id. at 550 (holding that "any freestanding damages remedy for a claimed constitutional violation has to represent a judgment about the best way to implement a constitutional guarantee"); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (considering whether extension of Bivens would "deter individual federal officers . . . from committing constitutional violations"). The majority cannot overrule Wilkie's holding that we must make "the kind of remedial determination that is appropriate for a common-law tribunal," 551 U.S. at 550, by replacing that phrase with ellipses when quoting the case, see Maj. Op. at 35.

Were the majority's dicta the rule, there would be no explanation for the Supreme Court's decision in Bivens in the first place. Surely there were special factors that would have counseled hesitation â€" the drain on the public fisc, the strain on judicial resources, the hindrance to law enforcement personnel whose efforts had to be diverted to defending lawsuits for damages. Without pausing to consider these factors, the Bivens Court held that a damages remedy was necessary to enforce the Fourth Amendment. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397-98 (1971). Moreover, were the majority's dicta correct, it would be impossible to make heads or tails of Davis v. Passman, supra. In that case, the Court extended Bivens to a claim for employment discrimination in violation of the equal protection component of the Fifth Amendment's Due Process Clause against a member of Congress. The Court recognized a Bivens remedy despite pausing to give thoughtful consideration to the argument that Passman's [End Page 4] status as a member of Congress, "counsel[ed] hesitation." 442 U.S. at 246. The Court also noted the risk of "deluging federal courts with claims" and the scarcity of judicial resources, but did not find these special factors sufficiently persuasive to overwhelm Davis's need for a remedial mechanism. Id. at 248 (quotation marks omitted).

The absence of other remedies for a constitutional violation may be a reason for creating a new cause of action. Wilkie, 551 U.S. at 554 (considering, at the second step of the analysis, the inadequacy of existing remedies). Thus, the Supreme Court has recognized a Bivens remedy where, for the plaintiff, it was "damages or nothing." Davis, 442 U.S. at 245 (quoting Bivens, 402 U.S. at 410 (Harlan, J., concurring in judgment)). "‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'" Bivens, 403 U.S. at 397 (quoting Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803)). "[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Id. at 392 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). In Davis, the Court held, "unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights." 442 U.S. at 242.

The majority "avoids any categorical ruling on alternative remedies," in favor of its "dominant holding" on special factors. Maj. Op. at 8.3 I have searched the majority's opinion for

3

By abandoning the panel majority's holding that the INA is an alternative existing remedy that precludes Bivens relief, the majority has avoided any implication that well-established Bivens actions for immigrants alleging Fourth and Eighth amendment violations [End Page 5] a subordinate and non-categorical ruling on alternative remedies, and I have found none. This is for good reason. The majority recognizes that "Arar has alleged that he was actively prevented from seeking any meaningful review and relief through the INA processes." Id. at 35. This makes Arar's case unlike those in which the Court refused to imply a Bivens remedy upon concluding that Congress had already established a remedial scheme covering the field. See, e.g., Schweiker v. Chilicky, 487 U.S. 412 (1988); Bush v. Lucas, 462 U.S. 367 (1983). Where defendants blocked a plaintiff's access to the remedies established by Congress, foreclosing a Bivens remedy eliminates any judicial review. See Rauccio v. Frank, 750 F. Supp. 566, 571 (D. Conn. 1990); Grichenko v. U.S. Postal Serv., 524 F. Supp. 672, 676-77 (E.D.N.Y. 1981). This result thwarts Congress's will and abdicates the judicial role. The majority errs in failing to take account of this consideration in its assessment of special factors.

In cases in which the Court declined to extend Bivens, it did not resolve the issue simply by observing that it had to pause to consider special factors. Rather, the Court declined to extend Bivens because factors related to institutional competence and separation of powers strongly counseled hesitation. For example, in Chappell v. Wallace, 462 U.S. 296 (1983), the Court declined to create a damages remedy for alleged racial discrimination by military officers because "[t]he need for . . . a special and exclusive system of military justice[] is too obvious to require extensive discussion; no military organization can function without strict discipline and regulation that would be unacceptable in a civilian setting," id. at 300, and the creation of a Bivens remedy by the federal courts "would be plainly inconsistent with Congress' authority in are without basis. And, by abandoning the holding that it could not take as true Arar's "unverified" allegations of official obstruction of his right to challenge the CAT determination, the opinion avoids the implication that Bivens claimants face a heightened pleading standard. [End Page 6] this field" under Article 1of the Constitution, id. at 304.

Ultimately, the majority concludes that the Constitution provides Arar no remedy for this wrong, that the judiciary must stay its hand in enforcing the Constitution because untested national security concerns have been asserted by the Executive branch. For the reasons stated herein and in Judge Sack's dissenting opinion, I would hold the Arar should have a Bivens remedy â€" to reinforce our system of checks and balances, to provide a deterrent, and to redress conduct that shocks the conscience. I understand the majority's opinion today to be a result of its hyperbolic and speculative assessment of the national security implications of recognizing Arar's Bivens action, its underestimation of the institutional competence of the judiciary, and its implicit failure to accept as true Arar's allegations that defendants blocked his access to judicial processes so that they could render him to Syria to be tortured, conduct that shocks the conscience and disfigures fundamental constitutional principles. This is a hard case with unique circumstances. The majority's disappointing opinion should not be interpreted to change Bivens law.

II. TVPA

I cannot join the Court in concluding that the facts of Arar's complaint are insufficient to state a claim under the TVPA. Section 2(a) of the TVPA provides that a defendant is liable only if he acted under "actual or apparent authority, or color of law, of any foreign nation . . ." 28 U.S.C. 1350 (note). In construing this requirement, we look "to principles of agency law and to jurisprudence under 42 U.S.C. § 1983." Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995). Under Section 1983, "[t]he traditional 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 [End Page 7] because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49 (1988) (quotation marks omitted).

I agree with the majority that there is no litmus test for determining whether a Section 1983 defendant is acting under color of state law. Maj. Op. at 21 ("The determination as to whether a non-state party acts under color of state law requires an intensely fact-specific judgment unaided by rigid criteria as to whether particular conduct may be fairly attributed to the state." (citing Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 295 (2001)). This is a wise departure from the test set forth by the panel opinion, which interpreted Section 1983 case law to require that when the defendant is a federal official, he must be under the "control or influence" of the state actor to act under color of state law. Arar, 532 F.3d at 175-76. Our Circuit has consistently recognized several bases for liability under Section 1983, "control or influence" being just one:

For the purposes of section 1983, the actions of a nominally private entity are

attributable to the state when: (1) the entity acts pursuant to the "coercive power"

of the state or is "controlled" by the state ("the compulsion test"); (2) when the

state provides "significant encouragement" to the entity, the entity is a "willful

participant in joint activity with the [s]tate," or the entity's functions are

"entwined" with state policies ("the joint action test" or "close nexus test"); or (3)

when the entity "has been delegated a public function by the [s]tate," ("the public

function test"). Sybalski v. Indep. Group Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam) (quoting Brentwood Acad., 531 U.S. at 296). As the majority now recognizes, "[a] federal officer who conspires with a state officer may act under color of state law." Maj. Op. at 21 (citing Beechwood Restorative Care Ctr. v. Leeds, 436 F.3d 147, 154 (2d Cir. 2006)).

The majority concludes that Arar's pleading was deficient because he alleged only that [End Page 8] "United States officials encouraged and facilitated the exercise of power by Syrians in Syria," not that defendants possessed power under Syrian law which they used to remove him to Syria to be tortured. Maj. Op. at 21-22. I disagree. In the Section 1983 context, the Supreme Court has held that private individuals may be liable for joint activities with state actors even where those private individuals had no official power under state law. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980). In Sparks, the private individuals conspired with a state judge to enjoin the plaintiff's mining operation. The Court held:

[T]o act ‘under color of' state law for § 1983 purposes does not require that the

defendant be an officer of the State. It is enough that he is a willful participant in

joint action with the State or its agents. Private persons, jointly engaged with state

officials in the challenged action, are acting ‘under color' of law for purposes of §

1983 actions. Id.; see also Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254, 315 (2d Cir. 2007) (Korman, J., concurring in part). Arar alleges that U.S. officials, recognizing that Syrian law was more permissive of torture that U.S. law, contacted an agent in Syria to arrange to have Arar tortured under the authority of Syrian law. Specifically, Arar alleges that U.S. officials sent the Syrians a dossier containing questions, identical to those questions he was asked while detained in the U.S., including one about his relationship with a particular individual wanted for terrorism. He also alleges the Syrian officials supplied U.S. officials with information they extracted from him, citing a public statement by a Syrian official. Assuming the truth of these allegations, defendants' wrongdoing was only possible due to the latitude permitted under Syrian law and their joint action with Syrian authorities. The torture may fairly be attributed to Syria.

Because the majority's holding in this case is not required by controlling law from the

[End Page 9] Section 1983 context,4 the decision must turn on the unique features of this case â€" brought under the TVPA alleging joint action by federal agents with Syrian officials. The majority cites Harbury v. Hayden, 444 F. Supp. 2d 19, 42-43 (D.D.C. 2006), aff'd on other grounds, 522 F.3d 413 (D.C. Cir. 2008). In that case, as well as one other, district judges concluded that U.S. officials pursuing federal policy under federal statutes act under color of U.S., not foreign, law. Id. (holding that CIA officers cooperating with the Guatemalan military acted under color of U.S. law because they were "within the scope of their employment serving the United States" and "carrying out the policies and directives of the CIA"); Schneider v. Kissinger, 310 F. Supp. 2d 251, 267 (D.D.C. 2004) ("Dr. Kissinger was most assuredly acting pursuant to U.S. law . . . despite the fact that his alleged foreign co-conspirators may have been acting under color of Chilean law."), aff'd on other grounds, 412 F.3d 190 (D.C. Cir. 2005). But the majority does not adopt this questionable reasoning â€" that a federal official can act under color of only one sovereign's authority at a time. The majority simply observes that because "federal officials typically act under color of federal law, they are rarely deemed to have acted under color of state law." Maj. Op. at 21 (quotation marks omitted).

Rather, where the alleged torture was carried out by foreigners in a foreign land, the majority draws a line between the actual exercise of power under foreign law and the encouragement, facilitation, or solicitation of that exercise of power. Id. at 21-22. This distinction is unprincipled. Under agency law, "when two persons engage jointly in a partnership for some criminal objective, the law deems them agents for one another. Each is deemed to have

4

Because the majority's holding turns on the unique aspects of Arar's claim under the TVPA, it does not limit the range of conduct for which non-state actors can be held liable under Section 1983. [End Page 10] authorized the acts and declarations of the other undertaken to carry out their joint objective." United States v. Russo, 302 F.3d 37, 45 (2d Cir. 2002). It is of no matter that only one member of the conspiracy carried out the torture. If we carry the majority's logic to its extreme, federal agents "could never be responsible for torture inflicted under color of foreign law, even if they were in the room with the foreign torturers orchestrating the techniques." Arar Reply Br. at 36.5

Under Section 1983, non-state actors who willfully participate in joint action with state officials, acting under state law, themselves act under color of state law. By analogy, under the TVPA, non-Syrian actors who willfully participate in joint action with Syrian officials, acting under Syrian law, themselves act under color of Syrian law. In Aldana v. Del Monte Fresh Produce, 416 F.3d 1242, 1249, 1265 (11th Cir. 2005), the Eleventh Circuit sustained a TVPA claim where plaintiffs alleged that a U.S. corporation "hir[ed] and direct[ed] its employees and/or agents," including a Guatemalan mayor, "to torture the Plaintiffs and threaten them with death." 416 F.3d at 1265. The allegation that the corporation participated in joint action with the Guatemalan official was sufficient.6 I see no principled reason to apply different rules to the TVPA context than the Section 1983 context, to federal agent defendants than corporate

5
The majority's perplexing statement that if a federal official were found to be acting
under color of foreign law, it "would render a U.S. official an official of a foreign government," Maj. Op. at 22-23 n.3, is simply incorrect. A private actor is not transformed into a state official merely because he acted under color of state law, see Dennis, 449 U.S. at 27-28 (1980), and there is no reason that this would be the case in the analogous TVPA context.

6
Although the question in Aldana was whether violence by a private security force
involved "state action," and not whether the U.S. corporation was acting in Guatemala under color of U.S. or Guatemalan law, in the Section 1983 context, the two inquiries are interchangeable. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982); see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1264 (11th Cir. 2009). [End Page 11] defendants, or to actors in the United States than actors on foreign soil.7 Arar alleges that defendants, acting in concert with Syrian officials, interrogated him through torture under color of Syrian law, which they could not have accomplished under color of U.S. law alone.

Thus, I cannot agree that the panel correctly determined the TVPA question on the "color of law" question.

I must therefore respectfully dissent.

7

Because plaintiffs must meet a plausibility standard for claims against federal officials under Ashcroft v. Iqbal, supra, I am not concerned that subjecting federal officials to liability under the TVPA would open the floodgates to a wave of meritless litigation. But see Hayden, 444 F. Supp. 2d at 41. [End Page 12] 1 CALABRESI, Circuit Judge, joined by Judges Pooler, Sack, and Parker, dissenting. 2 I respectfully dissent. I join Judge Sack's, Judge Parker's, and Judge Pooler's dissenting 3 opinions in full. But, because I believe that when the history of this distinguished court is 4 written, today's majority decision will be viewed with dismay, I add a few words of my own, ". . 5 . more in sorrow than in anger." Hamlet, act 1, sc. 2. 6 My colleagues have already provided ample reason to regret the path the majority has 7 chosen. In its utter subservience to the executive branch, its distortion of Bivens doctrine, its 8 unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its 9 persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion 10 goes seriously astray. It does so, moreover, with the result that a personâ€"whom we must assume 11 (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided 12 deeds of individuals acting under color of federal lawâ€"is effectively left without a U.S. remedy. 13 See especially dissenting opinion of Judge Parker. 14 All this, as the other dissenters have powerfully demonstrated, is surely bad enough. I 15 write to discuss one last failing, an unsoundness that, although it may not be the most significant 16 to Maher Arar himself, is of signal importance to us as federal judges: the majority's unwavering 17 willfulness. It has engaged in what properly can be described as extraordinary judicial activism.1 18 It has violated long-standing canons of restraint that properly must guide courts when they face 19 complex and searing questions that involve potentially fundamental constitutional rights. It has [End Page 1]
I use this much abused phrase "judicial activism," in its literal sense, to mean the

unnecessary reaching out to decide issues that need not be resolved, the violation of what Chief

Justice Roberts called "the cardinal principle of judicial restraintâ€"if it is not necessary to decide

more, it is necessary not to decide more." PDK Labs., Inc. v. U.S. DEA, 362 F.3d 786, 799 (D.C.

Cir. 2004) (Roberts, J., concurring). [End Page 1] 1 reached out to decide an issue that should not have been resolved at this stage of Arar's case. 2 Moreover, in doing this, the court has justified its holding with side comments (as to other fields 3 of law such as torts) that are both sweeping and wrong. That the majorityâ€"made up of 4 colleagues I greatly respectâ€"has done all this with the best of intentions, and in the belief that its 5 holding is necessary in a time of crisis, I do not doubt. But this does not alter my conviction that 6 in calmer times, wise people will ask themselves: how could such able and worthy judges have 7 done that? 8 I 9 I focus first on the willful reaching out to decide a hard constitutional question. "If there 10 is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it 11 is that we ought not to pass on questions of constitutionality . . . unless such adjudication is 12 unavoidable." Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944). The 13 Supreme Court long ago made clear that it would notâ€"and that we should notâ€""pass upon a 14 constitutional question although properly presented by the record, if there is also present some 15 other ground upon which the case may be disposed of." Ashwander v. TVA, 297 U.S. 288, 347 16 (1936) (Brandeis, J., concurring); see also, e.g., Alexander v. Louisiana, 405 U.S. 625, 633 17 (1972) ("[W]e follow our usual custom of avoiding decision of constitutional issues unnecessary 18 to the decision of the case before us."); Burton v. United States, 196 U.S. 283, 295 (1905) ("It is 19 not the habit of the court to decide questions of a constitutional nature unless absolutely 20 necessary to a decision of the case."). We ourselves have described this canon of constitutional 21 avoidance as "axiomatic," Allstate Ins. Co. v. Serio, 261 F.3d 143, 149 (2d Cir. 2001), and have 22 long allowed it to "dictate[]" our decisions in appropriate circumstances. Fine v. City of New [End Page 2] 1 York, 529 F.2d 70, 76 (2d Cir. 1975).2 2 The question that today's majority elects to decide implicates this fundamental principle. 3 This is because the existence vel non of a claim meriting a Bivens remedy, in the absence of any 4 congressionally mandated relief, is a matter of constitutional interpretation. As early as Bivens 5 itself, the Supreme Court made clear that the cause of action it recognized arose "under" the 6 Constitution. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 7 388, 397 (1971). As Justice Harlan said in his influential concurrence in Bivens, "the source of 8 the legal interest" protected by any Bivens action is "the Federal Constitution itself"; "the 9 Constitution is in the relevant sense a source of legal protection for the ‘rights' enumerated 10 therein." Id. at 402 n.3 (Harlan, J., concurring). And even the majority here describes Bivens as 11 "a judicially-created remedy stemming directly from the Constitution itself." Maj. Op. at 30 [End Page 2]
There is also a canon that courts should not lightly find legislation to be

unconstitutional. See, e.g., Clark v. Suarez Martinez, 543 U.S. 371, 381-82 (2005). That canon

is of great importance, and is related to but separate from the canon to which I am referring. See

id. at 381. It derives from the so-called "majoritarian difficulty," the fact that courts are,

generally, not representative bodies. See Alexander M. Bickel, The Least Dangerous Branch 16-

17 (2d ed. 1986) ("[W]hen the Supreme Court declares unconstitutional a legislative act or the

action of an elected executive, it thwarts the will of representatives of the actual people . . . .")

The canon at issue in this case is different, however, and demands, more broadly, that

unnecessary constitutional decisions not be made, whichever way they would come out. It is

expressed in a large variety of rules, a few of which are listed in one Supreme Court decision:
constitutional issues affecting legislation will not be determined in friendly, nonadversary
proceedings; in advance of the necessity of deciding them; in broader terms than are
required by the precise facts to which the ruling is to be applied; if the record presents
some other ground upon which the case may be disposed of; at the instance of one who
fails to show that he is injured by the statute's operation, or who has availed himself of its
benefits; or if a construction of the statute is fairly possible by which the question may be
avoided.

Rescue Army v. Mun. Court of Los Angeles, 331 U.S. 549, 569 (1947) (emphasis added). [End Page 3] 1 (emphasis added).3 2 I recognize that this questionâ€"the constitutional status of Bivens actionsâ€"is one that has 3 vexed some in academia. But as is often the case, what can be layered with mystery in the pages 4 of a law review is, in practice, fairly simple. When a court concludes that a Bivens action is 5 appropriate, it is holding that, on the then-present state of the law, the Constitution requires the 6 court to create a remedy. As even the staunchest critics of Bivens recognize, a holding that a 7 particular constitutional right implies a remedy "can presumably not even be repudiated by 8 Congress." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). 9 While Congress can vitiate the need for a judicially created Bivens remedy by providing an 10 "alternative . . . process for protecting the [constitutional] interest," Wilkie v. Robbins, 551 U.S. 11 537, 550 (2007),4 it cannot overturn a holding that some remedy is necessary.5 This is the [End Page 3]
Cf. Fine, 529 F.2d at 71, 76 (2d Cir. 1975) (declining to decide the "difficult and

troublesome constitutional questions" in a Bivens-like claim against a municipality "founded

directly upon the Fourteenth Amendment"); Brault v. Town of Milton, 527 F.2d 730, 738 (2d Cir.

1975) (en banc) (assuming, without deciding, that a claim against a municipality "can be founded

directly on the Fourteenth Amendment," but finding "discussion of other possible barriers on [the

plaintiff's] road to relief . . . superfluous" because the allegations in the complaint were

insufficient).[End Page 4]
For this reason, were there a majority finding that Arar could bring a TVPA action, as

Judge Pooler, in her dissenting opinion, powerfully argues he should be able to do, then of course

there might well be an "alternative, existing process," Wilkie, 551 U.S. at 550, in which case a

Bivens action might not lie under the well-established rule that such a remedial scheme may

obviate the need for a Bivens action. Because of the majority's holding that the TVPA does not

apply, however, I need not reach this question. A more complicated issue, which I also don't

need to reach, is whether compensation by a foreign government can constitute an alternative

redress, because of which, on the very particular facts of this case, a Bivens action might not lie.

But no one has discussed or argued that in any way, and since it is not an easy issue, I see no

need to delve into it further.[End Page 5]
The first step of the two-part analysis laid out in Wilkie is itself an instance of

constitutional avoidance. Where a congressionally created process adequately protects a [End Page 4] 1 essence of a constitutional holding, and hence one directly subject to the avoidance canon.6 2 That avoiding difficult constitutional questions like those before us is the proper course 3 was made clear by the Supreme Court in Christopher v. Harbury, 536 U.S. 403 (2002). In that 4 case, the only issue before the Supreme Court was whether Harbury's Bivens action for denial of 5 access to courts could proceed. Id. at 412. Justice Souter (for eight members of the Court) wrote

constitutional right, there is no need to determine whether the Constitution requires a remedy.

See Bush v. Lucas, 462 U.S. 367, 378 n.14 (1983) ("We need not reach the question whether the

Constitution itself requires a judicially fashioned damages remedy in the absence of any other

remedy to vindicate the underlying right, unless there is an express textual command to the

contrary. The existing civil service remedies for a demotion in retaliation for protected speech

are clearly constitutionally adequate." (citation omitted)).
By contrast, the Supreme Court, acting prudentially, has denied Bivens claims due to

"special factors" only in quite particular circumstances implicating substantial constitutional

questions. First, it has done so in response to an exclusive textual commitment of authority to

another branch. See United States v. Stanley, 483 U.S. 669, 681-82 (1987) (holding that no

Bivens action lay because of "explicit constitutional authorization for Congress ‘to make Rules

for the Government and Regulation of the land and naval Forces'" and "the insistence . . . with

which the Constitution confers authority over the Army, Navy, and militia upon the political

branches" (quoting U.S. Const. Art. I, § 8, cl. 14)); Chappell v. Wallace, 462 U.S. 296, 300-02

(1983) (same); cf. Davis v. Passman, 442 U.S. 228, 246 (1979) ("[A]lthough a suit against a

Congressman for putatively unconstitutional actions taken in the course of his official conduct

does raise special concerns counseling hesitation, we hold that these concerns are coextensive

with the protections afforded by the Speech or Debate Clause."). Second, it has done so where

the Constitution did not provide a workable standard for distinguishing constitutional conduct

from unconstitutional conduct. See Wilkie, 551 U.S. at 555-61.[End Page 6]
While the methodology that courts apply in determining whether or not a constitutional

right presupposes some implied remedy is that of "a common-law tribunal," Bush, 462 U.S. at

378, that fact in no way diminishes the status of the ultimate holding, up or down, as a

constitutional interpretation.
And while there are, of course, situations in which a court must or should put aside the

practice of avoiding constitutional questions, as when its jurisdiction under Article III is in doubt,

see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998), none of them apply here.

The existence vel non of a Bivens action is not a jurisdictional prerequisite that must be resolved

first. If this was ever in doubt, it has been resolved by Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948

(2009), which makes clear that a court can "assume, without deciding, that [a] claim is actionable

under Bivens" and then dismiss a case on non-jurisdictional grounds. [End Page 5] 1 that whether this Bivens action lies would require an inquiry that raises 2 3 concerns for the separation of powers in trenching on matters committed to the other 4 branches. Since the need to resolve such constitutional issues ought to be avoided where 5 possible, the [courts] should . . . as soon as possible in the litigation [determine] whether 6 a potential constitutional ruling may be obviated because the allegations of denied access 7 fail to state a claim on which relief could be granted. 8 9 Id. at 417 (emphasis added). The Court, in other words, said we must first decide if there are 10 non-Bivens grounds for resolving the dispute, and only then address the constitutional issues 11 raised by Bivens actions.7 This practice, the Court stated, comports with "the obligation of the 12 Judicial Branch to avoid deciding constitutional issues needlessly." Id. The Court then 13 proceeded to examine closely the cause of action that Harbury claimed to have lost through the 14 defendants' behavior, determined that it was insufficient to justify relief, and, on that non- 15 constitutional basis, dismissed Harbury's claim. Id. at 418. 16 The implications for Arar's case could hardly be more manifest. The national security 17 concerns that the majority relies upon in its special factors analysis are precisely those that the 18 Supreme Court said must be avoided in Harbury. And in such circumstances, it is our job to put [End Page 7]
To be sure, the Supreme Court noted that the defendants in Harbury "did not challenge

below the existence of a cause of action under Bivens," and accordingly it did not express an

opinion on the question or use the "special factors" terminology. Harbury, 536 U.S. at 412 n.6.

But the constitutional question before us, of the balancing of two constitutional interests, one an

individual right and one a matter of national security and separation of powers, is the same one as

was avoided in Harbury. [End Page 6] 1 "the trial court . . . in a position as soon as possible in the litigation to know whether a potential 2 constitutional ruling may be obviated." Id. at 417. For reasons that will be clear soon enough, it 3 may well be that, on remand, this case would, for non-constitutional reasons, "fail to state a claim 4 on which relief could be granted." Id. at 417. That being so, the Supreme Court has told us, we 5 must avoid constitutional pronouncements. 6 For this Court to go out of its way to decide on Bivens grounds when it is not necessary is, 7 therefore, a reaching out of a particularly dangerous sort, regardless of what conclusion the Court 8 comes to on the Bivens question.8 Ifâ€"as I would if I had to face the questionâ€"we were to 9 decide that Bivens applies, then some remedy would be necessary regardless of Congress's 10 preference. If, as the majority chooses to do, we rule that Bivens does not apply, we have said 11 that, in a wide variety of cases, the Constitution fails to give protection. Both positions require a 12 parsing of the Great Charter. When such a decision cannot be avoided, so be it: we do our job. 13 But where it can be avoided, it should be. 14 II 15 So, how might the Bivens issue have been avoided? As Judge Sack explains in his [End Page 8]
At footnote 7, the majority disputes Judge Pooler's statement that the propositions in the

accompanying text are dicta. See Maj. Op. at 37. The majority then seeks to characterize those

propositions as holdings. But whether something is holding or dicta is an objective fact and does

not depend on how it is characterized either by a majority or by a dissent. It is what it is

regardless of what one calls it. To paraphrase my professor Fleming James, "You can call it

Thucydides or you can call it mustard plaster, but it is [dicta or holding] just the same."
The fact that the majority wishes to call the propositions holding is instructive, however.

If the propositions are holding then they would eliminate virtually all Bivens actions in this

circuit. And they would do so despite the assertions, elsewhere in the majority opinion, that

recognizing a Bivens action in this extraordinary case would be uniquely dangerous. The

majority's desire to make a "holding" of such breadth, as to a question entailing constitutional

interpretation, in a case which, as I argue, could likely be resolved on other grounds, displays a

truly extraordinary degree of willfulness and activism. [End Page 7] 1 eloquent dissent, this might be done through first examining the significance of the state secrets 2 privilege to this case.9 That privilege has long required dismissal in those rare cases where 3 national security interests so drastically limit the evidence that can be introduced as to deprive 4 either a plaintiff or a defendant of an opportunity to make its case. See, e.g., Zuckerbraun v. Gen. 5 Dynamics Corp., 932 F.2d 544, 547 (2d Cir. 1991); see also United States v. Reynolds, 345 U.S. 6 1 (1953); El-Masri v. United States, 479 F.3d 296, 308 (4th Cir. 2007) ("[A] proceeding in which 7 the state secrets privilege is successfully interposed must be dismissed if the circumstances make 8 clear that privileged information will be so central to the litigation that any attempt to proceed 9 will threaten that information's disclosure."). In a case such as this, where the Government 10 asserts that the plaintiff's claim implicates vital national secrets, we must, before we move to the 11 merits, examine the consequences of our duty to guard against any potentially harmful 12 disclosures. 13 The majority obviously shares our concerns about the protection of state secrets, as 14 virtually every "special factor" identified in the majority opinion concerns classified material. 15 But, as Judge Sack says, this amounts to double-counting of the Government's interest in 16 preserving state secrets. See dissenting opinion of Judge Sack at 52. We already possess a well- [End Page 9]
At footnote 14, the majority states that the state secrets privilege, despite its common

law origin, is not devoid of constitutional implications. See Maj. Op. at 58-59. That may well

be. But that fact in no way means that decisions as to the applicability of a particular claim of the

privilege entail constitutional interpretations. The existing common law privilege more than

covers whatever the Constitution requires. The proper analogy is quite simple. If Congress were

to pass a statute, akin to § 1983, giving broad cause of action to those injured by federal officials,

decisions under that statute would not normally involve constitutional interpretations. And this

would be so even though, in the absence of such a statute, a Bivens, constitutional claim, might

lie. The same is so with respect to applications of the common law state secrets privilege. As an

excuse for the majority's violation of the canon of constitutional avoidance this argument does

not make it to first base. [End Page 8] 1 established method for protecting secrets, one that is more than adequate to meet the majority's 2 concern.10 Denying a Bivens remedy because state secrets might be revealed is a bit like denying 3 a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at 4 great pains to eliminate, to negate entirely substantial rights and procedures. 5 Even more mystifying is the majority's insistence that it is respecting "[t]he preference 6 for open rather than clandestine court proceedings." Maj. Op. at 47. How, exactly, does the 7 majority promote openness by shaping a constitutional decision around the fact that state secrets 8 might be involved in a claim? The state secrets doctrine is undoubtedly in tension with the 9 public right of access to the courts, but the majority's approach is more opaque than any state 10 secrets resolution. When a court properly applies the state secrets doctrine, the case at bar will 11 proceed only if the alleged state secrets are not vital to a claim or defense, so there should be 12 little fear that a substantive holding will ultimately turn on secret material. By contrast, consider 13 the harm done to the openness of the court system by what the majority does here. It bars any 14 action in the face of what we are required to assume are outrageous constitutional violations, and 15 it does so simply because state secrets might possibly be involved, without having a court look 16 into that very question. As a result, even if the Government's claimed need for secrecy turned 17 out to be wholly illusory, there would be no recourse! Indeed, even if the Government 18 declassified every document relating to this case, even if all four countries involved announced 19 that they had nothing to hide and that Arar's claim should proceed so that they could be [End Page 10]
Indeed, if anything, existing doctrine may be too solicitous of the need for secrecy, if

the many critics of the Reynolds line are correct. See infra Part IV. But while there is

widespread concern that the doctrine may be overused, it is hard to find any commentators who

think that state secrets are inadequately protected under current law. [End Page 9] 1 exonerated, there would be no open judicial testing of Arar's allegations. Which approach 2 should give us more cause to hesitate? 3 The majority further errs in its use and abuse of other fields of law. In trying to find 4 "special factors" that could justify barring a Bivens claim (but do not depend on "state secrets") 5 the majority points to two issues that arise in every tort suit against a government official. If they 6 are valid here they would appear to counsel "hesitation" in (and, under the majority's reasoning, 7 seemingly preclude) every Bivens action. First, the majority warns that "[t]he risk of graymail . . 8 . counsels hesitation in creating a Bivens remedy." Maj. Op. at 51. Because the risk of 9 unwarranted and dangerous disclosure is so high, the Government will be pressured into settling 10 meritless cases. Second, as a consequence of such graymail, the Government, rather than 11 individual defendants, would wind up paying off claims. See Maj. Op. at 52. Because these 12 possibilities are "an endemic risk in cases (however few) which involve a claim like Arar's," the 13 majority concludes, they make Bivens actions particularly inappropriate. Maj. Op. at 51. 14 But both of these issuesâ€"the risk of graymail and the disjunction between individual 15 defendants and an indemnifying governmentâ€"are present in every tort suit against a government 16 agent, not just the relatively "few" cases involving extraordinary rendition for the purposes of 17 torture.11 Taking the latter point first, both state and federal officers are almost universally 18 indemnified by the State if they lose tort suits. In Bivens cases, the federal government 19 "indemnifies its employees against constitutional tort judgments or settlements (in the rare 20 instances in which a Bivens claim results in a monetary liability) and takes responsibility for [End Page 11]
That is, except to the extent "state secrets" are involved. And to the extent they are, as

already discussed, the state secrets privilege is more than sufficient to preclude graymail. [End Page 10] 1 litigating such suits." Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of 2 Public Officials' Individual Liability Under Bivens, 88 Geo. L.J. 65, 76 (1999). Indeed, "[a]s a 3 practical matter . . . indemnification is a virtual certainty." Id. at 77. Similarly, as is widely 4 understood, "a suit against a state officer is functionally a suit against the state, for the state 5 defends the action and pays any adverse judgment. So far as can be assessed, this is true not 6 occasionally and haphazardly but pervasively and dependably." John C. Jeffries, Jr., In Praise of 7 the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 50 (1998) (citation omitted). So 8 the majority's point proves far too much: if a Bivens action is inappropriate where the individual 9 defendants' pocketbooks are not ultimately at risk, then Bivens actions are always inappropriate. 10 And while the majority could be right that, as a policy matter, tort suits against financially 11 indifferent defendants are unwise, who are we as federal appellate judges to say that what is 12 standard tort law in every state in the nation, and what has been repeatedly approved by the 13 Supreme Court and every federal circuit, is fatally unacceptable? 14 As to graymail, defendants in civil suits are always subject to pressures to settle, yet this 15 has never been considered a reason to bar categorically a type of suit against government 16 officials. Is the desire to avoid the revelation of state secrets (a desire that is already fully 17 accommodated by the state secrets doctrine) so different from the desire to avoid, for example, 18 devastating reputational injury, which will often drive a state or federal entity's response to a 19 suit? How is the hassle attendant on a claim like Arar'sâ€"the "enmesh[ing of] government 20 lawyers" and the "elicit[ing of] government funds for settlement," Maj. Op. at 39â€"so much 21 worse here than it is in the types of suits that every state has chosen to permit and that all three 22 branches of the federal Government have accepted since Bivens was issued almost 40 years [End Page 11] 1 ago?12 2 These, then, are the majority's determinative "special factors": a mix of risks that are 3 amply addressed by the state secrets doctrine and policy concerns that inhere in all Bivens actions 4 and in innumerable every-day tort actions as well.13 This maladaptation of a Bivens analysis, as 5 far as I can tell, is motivated by a belief that the majority's holding is necessary to protect our 6 nation's security. But, as I have already said, that worthy concern both can be and should be 7 protected by already existing ordinary law and not by reaching out and potentially warping the [End Page 12]
On the subject of graymail, something must be said in response to the majority's

remarkable insinuation that Canada has been the victim of graymail at Arar's hands. Maj. Op. at

53-54. ("It is not for nothing that Canada (the government, not an individual officer of it) paid

Arar $10 million dollars."). The Canadian government decided on its own accord to initiate an

inquiry into its role in Arar's treatment, an investigation that operated independently of Arar's

suits. That inquiry was "specifically precluded from making any findings (or even assessments)

as to whether the Government of Canada would be civilly liable to Mr. Arar." Report of the

Events Relating to Maher Arar: Analysis & Recommendations, Commission of Inquiry into the

Actions of Canadian Officials in Relation to Maher Arar 362 (Sept. 18, 2006). It had no power

to recommend payment, but instead just expressed the facts surrounding Arar's treatment,

spelling out Canada's conduct vis-à-vis Arar in hundreds of pages of detail. The Canadian

government considered that report and decided to compensate and apologize to Arar. In other

words, Canada voluntarily established a commission the entire purpose of which was to

determine and discuss publicly what the Canadian government did to Arar; it then assessed those

facts and concluded that it should negotiate a settlement with him and formally apologize for the

role of Canadian officials. Many lessons could be drawn from this process for the American

response to allegations like Arar's, but one thing quite clearly cannot be said: that what happened

in Canada is tantamount to graymail.[End Page 13]
My fellow dissenters have said all that needs to be said about the majority's insistence

that Arar's action is "a constitutional challenge to policies promulgated by the executive" and

that Bivens actions cannot proceed where they "affect diplomacy, foreign policy and the security

of the nation." Maj. Op. at 38. And as to the ominous-sounding warning that "[s]uch a suit

unavoidably influences government policy" and "invades government interests," Maj. Op. at 39, I

would not think that an unconstitutional course of government action is shielded from scrutiny

merely because it can be described as a "policy" or "interest." If the DEA had a "policy" of

conducting warrantless home searches, would we hesitate to influence it? See Bivens, 403 U.S.

at 389-90. If corrections officials acted on an "interest" in denying their inmates medical care,

would we hesitate to invade it? See Carlson v. Green, 446 U.S. 14, 16 (1980). [End Page 12] 1 Constitution. 2 III 3 The state secrets doctrine has recently come in for significant criticism, much of it 4 warranted. In particular, many commentatorsâ€"not to mention the Obama administration and a 5 Ninth Circuit panelâ€"have suggested that outright dismissal of a case on state secrets grounds 6 should be disfavored. See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 563 F.3d 992, 1006 (9th 7 Cir. 2009), amended at 579 F.3d 942, reh'g en banc granted by No. 08-15693, 2009 U.S. App. 8 LEXIS 23595; Policies and Procedures Governing Invocation of the State Secrets Privilege, 9 Memorandum from the Attorney Gen. to Heads of Exec. Dep'ts and Agencies (Sept. 23, 2009), 10 available at http://www.usdoj.gov/opa/documents/state-secret-priviliges.pdf. There is much to 11 these concerns. But I would note three reasons that a threshold dismissal for want of evidence 12 due to the existence of state secrets (if that were eventually determined necessary) would be 13 preferable to the constitutional holding made today. And this would be so, I suggest, quite apart 14 from the importance of adhering to the canon of constitutional avoidance. 15 First, a dismissal because a party simply cannot (for reasons of state secrets) proffer 16 necessary evidence says nothing about the merits of the underlying claim.14 While this may be 17 deeply unfair to a party who has been grievously injured (as we must assume Arar was), it, at 18 least, does no damage to the legal standards by which other parties' claims are judged. 19 Second, a routine practice of first considering state secrets avoids the risk of a certain type [End Page 14]
The fact that a claim involves an open and plausible constitutional question should be

no bar to a state secrets ruling. As in Iqbal, a court can simply "assume, without deciding, that

[plaintiff's Bivens] claim is actionable" and determine whether a case must be dismissed even on

the legal theory most favorable to the plaintiff. Iqbal, 129 S. Ct. at 1948. [End Page 13] 1 of Government gamesmanship. If the Government has the option of seeking a state secrets 2 dismissal both before and after a decision on some open question, then it has the ability to moot 3 unfavorable rulings. Consider the strategy in this case. The Government's initial filing before 4 the District Court sought a state secrets dismissal. In its brief for this en banc hearing, however, 5 after it had won a favorable substantive ruling from the District Court and the panel, the 6 Government did not mention any interest in a remand for a state secrets dismissal.15 It seems 7 more than likely that, had the District Court or the panel found against the Government on the 8 Bivens question, the Government would be arguing to us that the opinion below should be 9 vacated pending a state secrets determination. To be sure, a party has no obligation to fire all of 10 its guns at once when a single argument can shoot a claim down. And I do not mean to imply 11 any devious motive on the part of the Government in this case in particular. But there is no 12 reason to structure our law to facilitate such conduct. 13 Third, and most important, a holding that Arar, even if all of his allegations are true, has 14 suffered no remediable constitutional harm legitimates the Government's actions in a way that a 15 state secrets dismissal would not. The conduct that Arar alleges is repugnant, but the majority 16 signalsâ€"whether it intends to or notâ€"that it is not constitutionally repugnant. Indeed, the 17 majority expressly states that the legal significance of the conduct Arar alleges is a matter that 18 should be left entirely to congressional whim. See Maj. Op. at 56-57. While a state secrets 19 dismissal would similarly move the locus of redress to the political branches, it would do so not 20 by holding that the harm done to Arar is of no concern to the judiciary or to the Constitution. It [End Page 15]
At oral argument, however, the Government did indicate that it could accept such a

remand. [End Page 14] 1 would do so, instead, by acknowledging an institutional limitationâ€"due to the presence of state 2 secretsâ€"that is independent of the merits of Arar's claim and would, thereby, invite other 3 branches to look into those possible merits. 4 This leads to my final point. Whether extraordinary rendition is constitutionally 5 permissible is a question that seems to divide our country. It seems to me obvious, however, that 6 regardless of the propriety of such renditions, an issue on which I won't hide my strong feelings, 7 mistakes will be made in its operation. And more obvious still is that a civilized polity, when it 8 errs, admits it and seeks to give redress. In some countries, this occurs through a royal 9 commission. In the United States, for better or worse, courts are, almost universally, involved. 10 This being so, and regardless of whether the Constitution itself requires that there be such 11 redress, the object must be to create and use judicial structures that facilitate the giving of 12 compensation, at least to innocent victims, while protecting from disclosure those facts that 13 cannot be revealed without endangering national security. That might well occur here through 14 the application of a sophisticated state secrets doctrine.16 It does not occur when, at the outset, [End Page 16]
Consider the closing remarks of Judge Ellis in his state secrets dismissal of Khaled El-

Masri's similar allegations:
It is important to emphasize that the result reached here is required by settled, controlling
law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-
Masri's complaint. . . . [P]utting aside all the legal issues, if El-Masri's allegations are
true or essentially true, then all fair-minded people, including those who believe that state
secrets must be protected, that this lawsuit cannot proceed, and that renditions are a
necessary step to take in this war, must also agree that El-Masri has suffered injuries as a
result of our country's mistake and deserves a remedy. Yet, it is also clear from the result
reached here that the only sources of that remedy must be the Executive Branch or the
Legislative Branch, not the Judicial Branch.

El-Masri v. Tenet, 437 F. Supp. 2d 530, 540-41 (E.D. Va. 2006). [End Page 15] 1 Arar's claimsâ€"though assumed true and constitutionally significantâ€"are treated as lacking any 2 remedy. And this is just what today's unfortunate holding does. It hampers an admission of 3 error, if error occurred; it decides constitutional questions that should be avoided; it is, I submit, 4 on all counts, utterly wrong. I therefore must regretfully, but emphatically, dissent.

[End Page 16] [End Page 8 U.S.C. § 1252(b)(9) provides that "[j]udicial]

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