(2d Cir. 2009)
The Court's hesitation today immunizes official conduct directly at odds with the express will of Congress and the most basic guarantees of liberty contained in the Constitution. By doing so, the majority risks a government that can interpret the law to suits its own ends, without scrutiny. See Memorandum from John Yoo, Deputy Assistant Att'y Gen., & Robert J. Delahunty, Special Counsel, to William J. Haynes II, Gen. Counsel, Dep't of Defense, Jan. 9, 2002, in The Torture Papers: The Road to Abu Ghraib 38 (Karen J. Greenberg & Joshua L. Dratel eds., 2005); The Federalist No. 48, at 281 (James Madison) (Clinton Rossiter ed., 1961) (warning against the "tyrannical concentration of all the powers of government in the same hands"). Contrary to the majority, I believe that the Constitution affords Arar a remedy should he prove his sobering allegations, and that his case should be permitted to proceed.
The majority discovers myriad reasons to "hesitate" in the face of Arar's complaint that federal officials conspired to send him to Syria to be tortured. Its principal reason, however, is that permitting such an action "would have the natural tendency to affect diplomacy, foreign policy and the security of the nation." Maj. Op. at 574. This view of the separation of powers, which confines the courts to the sidelines, is, in my view, deeply mistaken; it diminishes and distorts the role of the judiciary especially during times of turmoil.
When presented with an appropriate case or controversy, courts are entitled — indeed obliged — to act, even in instances where government officials seek to shield their conduct behind invocations of "national security" and "foreign policy." See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006); Reid v. Covert, 354 U.S. 1, 23-30, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); Youngstown, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153. Compare Ex parte Quirin, 317 U.S. 1, 19, 63 S.Ct. 2, 87 L.Ed. 3 (1942) (observing the "duty which rests on the courts, in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty"), with Maj. Op. at 574 (suggesting that Arar's allegations do not trigger the Court's "unflagging duty to exercise [its] jurisdiction"). This authority derives directly from the Constitution and goes hand in hand with the responsibility of the courts to adjudicate all manner of cases put before them.
The active management of foreign policy and national security is entrusted to the executive and legislative branches. See U.S. Const. art. I, § 8; art. II, § 2. But this does not mean that executive and legislative officials are left to adhere to constitutional boundaries of their own accord, without external restraint. That is the job of the courts. As Madison declared when he introduced the Bill of Rights to Congress:
If [these amendments] are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.
1 Annals of Cong. 439 (Joseph Gales ed., 1834). The Constitution established three co-equal branches of government, each operating as a check upon the others. In this way, the separation of powers was designed as a limiting principle of government — not to silence any one branch, as the majority implies here, but to enlist each as "a sentinel over the public rights." The Federalist No. 51, at 290 (James Madison) (Clinton Rossiter ed., 1961).
The majority treats the separation of powers as a reason for the Court to abstain in this case — in reality, it is precisely the opposite. The executive's core responsibility for foreign policy does not negate the judiciary's duty to interpret and enforce constitutional limits. "[E]ven the war power does not remove constitutional limitations safeguarding essential liberties." Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413 (1934); Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 2246, 171 L.Ed.2d 41 (2008). One branch impermissibly intrudes upon another not when it fulfills its prescribed role but when it seeks to exercise authority assigned to its coordinate branches. See Youngstown, 343 U.S. at 587-89, 72 S.Ct. 863 (holding that the President had exceeded his executive powers when he assumed the "law making power" entrusted to "Congress alone in both good and bad times"); Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (holding that Congress may not remove executive officers except by impeachment); The Federalist No. 47, at 270-71 (James Madison) (Clinton Rossiter ed., 1961) ("[W]here the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted.") (emphasis removed). The defendants before us could, of course, be fully exonerated in the end, but it is the Court's role to determine the legality of their actions for itself.
In this case, Arar does not ask the Court to assume any executive functions — to dispatch diplomatic representatives, negotiate treaties, or oversee battlefield decisions. Likewise, the suit does not implicate his release or rescue from Syrian custody. Rather, Arar asks the Court to perform a core judicial function: To interpret the laws and Constitution as they apply to detailed allegations of official misconduct on American soil. And he petitions for a familiar judicial remedy: money damages. See Bivens, 403 U.S. at 395, 91 S.Ct. 1999. Such a suit does not represent judicial interference in executive functions, as the majority would have it, but rather an effort to keep executive power within constitutional limits. See Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (recognizing that each branch necessarily participates in the affairs of the others); Mistretta v. United States, 488 U.S. 361, 380-81, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Respectfully, I believe the majority's deference dissolves the very protections and liberties that the separation of powers was intended to guarantee.
The Supreme Court has repeatedly made clear that the separation of powers does not prevent the judiciary from ruling on matters affecting national security, and that the courts are competent to undertake this task. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) ("[W]e necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts" in establishing procedures for designating enemy combatants); New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (holding that asserted military interests could not justify prior restraint of the press); Youngstown, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153; Ex parte Quirin, 317 U.S. at 19, 63 S.Ct. 2.
Courts routinely handle classified materials and exercise judgment about both the credibility and legal significance of the security interests asserted by the government. See Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§ 1801-1811, 1821-29, 1841-46, 1861-62 (2006); Freedom of Information Act (FOIA), 5 U.S.C. § 552(a)(4)(B) & (b)(1) (2006), amended by Open FOIA Act of 2009, Pub. L. No. 111-83, 123 Stat. 2142, 2184 (2009); Classified Information Procedures Act (CIPA), 18 U.S.C.App. III §§ 1-16; Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 2261, 171 L.Ed.2d 41 (2008) ("The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims."); United States v. United States District Court (Keith), 407 U.S. 297, 320, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ("We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation."). These cases belie the majority's notion that the courts lack authority or competency to assess Arar's claims. "What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions." Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 77 L.Ed. 375 (1932).
The courts have a duty to scrutinize unilateral assertions of security and secrecy because the government's account has, in many of these cases, been overblown. Recent disclosures suggest that the military secrets so fiercely guarded in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953) — the Supreme Court's seminal state secrets case — may well have posed no threat to national security. See Herring v. United States, 2004 WL 2040272, at *5 (E.D.Pa. Sept.10, 2004), aff'd, 424 F.3d 384 (3d Cir.2005) (finding no deliberate fraud upon the court, but noting "the apparent dearth of sensitive information in the accident investigation report and witness statements"); Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case 166-69 (2006).
A similar truth has emerged from the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Although the government argued to the Supreme Court that publication posed a "grave and immediate danger to the security of the United States," former Solicitor General Griswold has since acknowledged that the executive's primary concern was "not with national security, but rather with governmental embarrassment." Erwin N. Griswold, Secrets Not Worth Keeping, Wash. Post, Feb. 15, 1989, at A25; cf. Office of the Attorney General, Mem. on Policies and Procedures Governing Invocation of the State Secrets Privilege 2 (Sept. 23, 2009) (issuing revised guidelines and clarifying that the Department of Justice "will not defend an invocation of the [state secrets] privilege in order to ... prevent embarrassment to a person, organization, or agency of the United States government"). The appropriate tools for evaluating national security concerns are already firmly established in our law — namely, the state secrets privilege and CIPA. They do not require wholesale abstention by the courts.
Indeed, a number of cases in which courts have acceded in this way, relying on bald appeals to national security, have proven deeply troubling in retrospect. The Supreme Court's decisions upholding convictions under the Sedition Act of 1918 are regarded as indefensible today. See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919); Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566 (1919); Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919); Morse v. Frederick, 551 U.S. 393, 442, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007) (Stevens, J., dissenting) (observing that Justice Holmes' dissent in Abrams has "emphatically carried the day"). More recently, the dire warnings issued to justify the indefinite detention of enemy combatants and forestall further court review have also drawn stern rebuke. In Padilla v. Hanft, 432 F.3d 582, 584-587 (4th Cir. 2005), the Fourth Circuit observed that the government had "steadfastly maintain[ed] that it was imperative in the interest of national security" to hold Padilla in military custody for three and a half years. Yet officials abruptly changed course on the doorstep of Supreme Court review, seeking to move Padilla into criminal custody, at a "substantial cost to the government's credibility before the courts." Id. at 584. See also Brief for Respondents, Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (No. 03-6696) (arguing that military necessity required Hamdi's indefinite detention, yet releasing him to Saudi Arabia seven months later).
Finally, contrary to the majority's suggestion, the courts require no invitation from Congress before considering claims that touch upon foreign policy or national security. See Maj. Op. at 564-65, 576-77, 582. In fact, the Supreme Court has demonstrated its willingness to enter this arena against the express wishes of Congress. In Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), the Supreme Court rebuffed legislative efforts to strip the courts of jurisdiction over detainees held at Guantanamo Bay. It held that the writ of habeas corpus extended to the naval base, and that neither Congress nor the executive branch could displace the courts without formally suspending the writ. Importantly, it did so despite the fact that this exercise of judicial power plainly affected the executive's detention of hundreds of enemy combatants and a centerpiece of the war on terror. The Court recognized that habeas proceedings "may divert the attention of military personnel from other pressing tasks" but refused to find these concerns "dispositive." Id. at 2261. Scores of decisions have since followed this lead. See, e.g., Al Rabiah v. United States, 2009 WL 3048434 (D.D.C. Sept.17, 2009); Ahmed v. Obama, 613 F.Supp.2d 51 (D.D.C.2009). Courts cannot blithely accept every assertion of national security at face-value, and they are entitled to enforce constitutional limits by scrutinizing such claims.
Although Arar credibly alleges mistreatment in both the United States and Syria, the circumstances of his detention on American soil are summarily excluded from the majority's Bivens analysis. Instead, the Court concludes that Arar has not pleaded these allegations with the factual detail required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). See Maj. Op. at 569-70. Consequently, it dismisses Claim Four and proceeds as though the challenged conduct is strictly extraterritorial. This conclusion goes far beyond any pleading rule we are bound to apply, and it is inconsistent with both Rule 8 of the Federal Rules of Civil Procedure and recent Supreme Court decisions.
Even after Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), which dismissed discrimination claims against policymakers on account of inadequate pleading, Claim Four readily exceeds any measure of "plausibility." Claim Four seeks to hold Defendants John Ashcroft, Larry Thompson, Robert Mueller, James Ziglar, J. Scott Blackman, Edward McElroy, and John Does 1-10 responsible for the extreme conditions under which Arar was held in the United States. While the majority finds that Arar failed to allege the requisite "meeting of the minds" necessary to support a conspiracy, see Maj. Op. 569, it ignores the fact that Arar pleaded multiple theories of liability. Formal conspiracies aside, he also alleges that the defendants commonly aided and abetted his detention and removal — that is, that the defendants were personally involved in his mistreatment both in the United States and abroad. See Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir.2003) (A supervisory official personally participates in challenged conduct not only by direct participation, but by (1) failing to take corrective action; (2) creation of a policy or custom fostering the conduct; (3) grossly negligent supervision, or (4) deliberate indifference to the rights of others); Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.2001).
In support of his claim for mistreatment and due process violations while in American custody, Arar includes factual allegations that are anything but conclusory. Indeed, he provides as much factual support as a man held incommunicado could reasonably be expected to offer a court at this stage. The complaint alleges that Defendant McElroy was personally involved in Arar's failure to receive the assistance of counsel. See Compl. ¶ 43. It alleges that Defendants Blackman and Thompson personally approved Arar's expedited transfer from the United States to Syria, implicating these officials in his inability to access the courts. Id. ¶¶ 15, 47-48. And it recounts statements by Arar's American interrogators that they were discussing his situation with "Washington D.C." Id. ¶ 45; see also Dep't of Homeland Security, Office of the Inspector General, The Removal of a Canadian Citizen to Syria ("OIG Report") at 11 (reporting that DOJ and INS officials in Washington, D.C. learned of Arar's apprehension on the evening of Thursday, September 26, 2002, 12 days before he was rendered to Syria via Jordan). More broadly, Arar details the harsh conditions under which he was held, including shackling, strip searches, administrative segregation, prolonged interrogation, and a near communications blackout. See id. ¶¶ 29-47. Notably, these are not "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 129 S.Ct. at 1949. They easily satisfy the requirements of both Iqbal and also Rule 8, whose "short and plain statement" remains the baseline for notice-pleading. See Fed.R.Civ.P. 8(a)(2).
Moreover, as Iqbal made clear, plausibility is "context-specific," requiring the reviewing court "to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. There, the Supreme Court rejected Iqbal's discrimination claims against high-ranking federal officials because his complaint lacked sufficient factual allegations supporting the inference of discriminatory intent. Id. at 1952. Central to the majority's decision was the fact that these officials faced a devastating terrorist attack "perpetrated by 19 Arab Muslim hijackers." Id. at 1951. Against this backdrop, the majority found Iqbal's claim overwhelmed by the "obvious alternative explanation" — that his arrest stemmed from a "nondiscriminatory intent to detain aliens ... who had potential connections to those who committed terrorist acts." Id. at 1951 (quoting Twombly, 550 U.S. at 567, 127 S.Ct. 1955). Apparently having their own views about the defendants' state of mind, the majority simply found Iqbal's discrimination claim incredible.
Plausibility, in this analysis, is a relative measure. Allegations are deemed "conclusory" where they recite only the elements of the claim. They become implausible when the court's commonsense credits far more likely inferences from the available facts. See Harris v. Mills, 22 A.D. 379, 572 F.3d 66, 71-72 (2d Cir.2009). Plausibility thus depends on a host of considerations: The full factual picture presented by the complaint, the particular cause of action and its elements, and the available alternative explanations. See Iqbal, 129 S.Ct. at 1947-52. As Rule 8 implies, a claim should only be dismissed at the pleading stage where the allegations are so general, and the alternative explanations so compelling, that the claim no longer appears plausible. See Fed.R.Civ.P. 8(a); Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (requiring simply "enough fact to raise a reasonable expectation that discovery will reveal evidence" supporting the claims).
Arar's claim readily survives this test, particularly in light of the Court's obligation to "draw[] all reasonable inferences in the plaintiff's favor" on a motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). The notion that high-ranking government officials like Defendants Ashcroft and Mueller were personally involved in setting or approving the conditions under which suspected terrorists would be held on American soil — and even oversaw Arar's detention and removal — is hardly far-fetched. Arar's arrival at JFK airport was a significant event in September 2002, triggering all manner of security responses. See, e.g., Compl. ¶ 45; OIG Report at 11, 15 (citing "high-level interest in Arar in Washington, DC"); id. at 30 n. 31 (describing the four-vehicle convoy in which Arar was transported, including nine INS officers equipped with their service weapons, Remington 870 shotguns, M-4 rifles, helmets, and ballistic vests). The fact that Arar was covertly transferred to Syria, by itself, indicates involvement at the highest levels of government.
In contrast to Iqbal, it is the alternative here that is difficult to fathom. To think that low-level agents had complete discretion in setting the conditions for holding a suspected member of al Qaeda defies commonsense. It requires the Court to believe that, while high-level officials were involved in arranging Arar's removal to Syria — a premise the majority does not question — they were oblivious to the particulars of his detention. The majority was, of course, bound to credit all reasonable inferences from the allegations in the complaint, understanding that their factual basis would be thoroughly tested in discovery. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (a court must proceed "on the assumption that all the allegations in the complaint are true (even if doubtful in fact)"). The inference that, in 2002, high-level officials had a role in the detention of a suspected member of al Qaeda requires little imagination.
Further, unlike Iqbal, Arar's due process claims do not ask the Court to speculate about the mental state of government officials. Rather, Claim Four rests on objective factors — the conditions of confinement and his access to the courts — that are independent of motive. Compare Iqbal, 129 S.Ct. at 1948 (claim of invidious discrimination requires the plaintiff to "plead and prove that the defendant acted with discriminatory purpose"), with Kaluczky v. City of White Plains, 57 F.3d 202, 211 (2d Cir.1995) (government conduct that is "arbitrary, conscience-shocking, or oppressive in a constitutional sense" violates substantive due process). The complaint contains more than sufficient factual allegations detailing these deprivations. See Compl. ¶¶ 27-49.
Finally, it should not be lost on us that the Department of Homeland Security's Office of Inspector General has itself confirmed the broad contours of Arar's mistreatment, producing a lengthy report on the conditions of his detention in American custody. See OIG Report. This report provides a powerful indication of the reliability of Arar's factual allegations at this stage. Plainly, the majority has read the OIG report, even citing it for limited purposes in its opinion. See Maj. Op. at 578-79. It is difficult, then, to comprehend how the majority can ignore the report's findings and conclusions in assessing the basic plausibility of Arar's fourth claim.
Ultimately, it is unclear what type of allegations to overcome a motion to dismiss by high-level officials could ever satisfy the majority. In refusing to credit Arar's allegations, the majority cites the complaint's use of the "passive voice" in describing some of the underlying events. See Maj. Op. at 570. This criticism is odd because the occasional use of the passive voice has not previously rendered pleadings defective, particularly where the defendants' roles can be easily ascertained from the overall complaint. See Compl. ¶¶ 14-22; Yoder v. Orthomolecular Nutrition Institute, Inc., 751 F.2d 555, 561 (2d Cir.1985) ("It is elementary that, on a motion to dismiss, a complaint must be read as a whole, drawing all inferences favorable to the pleader.") (citations omitted). Specifically, the majority faults Arar for not pinpointing the individuals responsible for each event set out in the complaint and for failing to particularize more fully when and with whom they conspired. The irony involved in imposing on a plaintiff — who was held in solitary confinement and then imprisoned for ten months in an underground cell — a standard so self-evidently impossible to meet appears to have been lost on the majority.
The flaws in the majority's approach are not unique to Arar, but endanger a broad swath of civil rights plaintiffs. Rarely, if ever, will a plaintiff be in the room when officials formulate an unconstitutional policy later implemented by their subordinates. Yet these closeted decisions represent precisely the type of misconduct that civil rights claims are designed to address and deter. See Carlson v. Green, 446 U.S. 14, 21, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). Indeed, it is this kind of executive overreaching that the Bill of Rights sought to guard against, not simply the frolic and detour of a few "bad apples." The proper way to protect executive officials from unwarranted second-guessing is not an impossible pleading standard inconsistent with Rule 8, but the familiar doctrine of qualified immunity.
Even if the majority finds that Arar's factual allegations fall short of establishing the personal involvement of Defendants Ashcroft and Mueller, they plainly state a claim against defendants such as Thompson, Blackman, McElroy, and John Doe FBI and ICE agents. See Compl. ¶¶ 43, 47-48, 55. The direct involvement of these defendants is barely contested by the appellees and barely mentioned by the majority. For this reason alone, there is no legal justification for the majority to dismiss Claim Four outright.
When the full range of alleged mistreatment is considered, Arar's injuries hardly constitute a "new" context for Bivens claims, and I agree with both Judge Sack's and Judge Pooler's careful analyses. This Court has repeatedly assumed that Bivens extends to substantive due process claims and provides a damages remedy to other detainees illegally injured by executive officials or their agents. See Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980); Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir.2006); Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir.2000). Our State Department is of the same view, having assured the United Nations' Committee Against Torture that a Bivens remedy is available to torture victims. 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.
Even if Arar's case were viewed as a new context, the "special factors" cited by the majority do not justify denying him relief because they are not "special." They largely duplicate concerns — like state secrets, sovereign immunity, and qualified immunity — amply addressed by other doctrines at the Court's disposal. See Davis v. Passman, 442 U.S. 228, 246, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (refusing to hesitate where special factors were "coextensive with the protections afforded by the Speech or Debate Clause"). My colleagues make these arguments in greater detail, cataloging the flaws in the majority's Bivens analysis. I write to emphasize the heightened need for a Bivens remedy in cases such as this where executive officials have deliberately thwarted the remedies provided by Congress and obstructed access to the courts. Arar's claims in this regard supply an exceptionally compelling justification for affording a Bivens remedy, going well beyond the allegations that gave rise to Bivens in the first place.
The judicial role recognized in Bivens reflects an important institutional balance — one closely aligned with separation of powers. Bivens offers Congress the first opportunity to fashion a remedy for invasions of individual rights protected by the Constitution. However, when a legislative judgment is lacking, Bivens permits the courts to use their common-law powers to fill crucial gaps and provide redress in appropriate instances. This line of cases thus instructs the courts to tread lightly where Congress has spoken, presuming that in those instances constitutional interests have been adequately addressed by the legislative branch. See Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) ("When the design of a Government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.").
On the other hand, where no legislative remedy exists, Bivens reaffirms the courts' power to ensure that individuals can obtain relief for constitutional injuries. The courts, within this framework, provide a forum of last resort; through Bivens, they stand behind constitutional guarantees neglected by the political branches. Compare Bivens, 403 U.S. at 410, 91 S.Ct. 1999 (Harlan, J., concurring) (implying a remedy where constitutional injury would otherwise go unredressed), with Bush v. Lucas, 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (denying Bivens remedy in light of the "elaborate remedial system" established by Congress).
Even so, this remedy is constrained by "special factors" that counsel hesitation even in the "absence of affirmative action by Congress." Bivens, 403 U.S. at 396, 91 S.Ct. 1999. The Supreme Court has never provided an exhaustive definition of these special factors, and existing precedent offers only a few data-points. But it has nonetheless indicated that this analysis should "weigh[] reasons for and against the creation of a new cause of action, the way common law judges have always done." Wilkie v. Robbins, 551 U.S. 537, 554, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). In Wilkie, for example, the factor that ultimately counseled hesitation was the difficulty of distinguishing unconstitutional conduct from lawful government activity. Id. at 555-61, 127 S.Ct. 2588. In earlier cases, involving claims by military personnel, the Supreme Court cited Congress' plenary authority "To make Rules for the Government and Regulation of the land and naval Forces," and its adoption of the Uniform Code of Military Justice. See Chappell v. Wallace, 462 U.S. 296, 301-03, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (citing U.S. Const. art. I, § 8, cl. 12-14; 10 U.S.C. § 938); see also United States v. Stanley, 483 U.S. 669, 683-84, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). Where Congress, pursuant to this authority, had established a parallel system of military discipline, the Court declined to interfere in the relationship between enlisted personnel and their commanding officers. See Chappell, 462 U.S. at 304, 103 S.Ct. 2362. "Special factors," then, must be regarded as a prudential limitation: One that considers the suitability of money damages for the particular constitutional injuries alleged, together with the availability of other relief. See Davis, 442 U.S. at 245, 99 S.Ct. 2264 (finding "special concerns" overcome by impossibility of equitable relief and appropriateness of damages remedy).
So limited, Bivens is an infrequent remedy, but it is a vitally necessary one. In laying out the Bivens remedy, the Supreme Court recognized that "[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws." Butz v. Economou, 438 U.S. 478, 485, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (quoting Bivens, 403 U.S. at 395, 397, 91 S.Ct. 1999); see also Davis, 442 U.S. at 241, 99 S.Ct. 2264 ("[T]he judiciary is clearly discernible as the primary means through which these rights may be enforced."). It was this principle, in the face of "the most flagrant abuses of official power," that prompted the Court to afford a damages remedy. Bivens, 403 U.S. at 410, 91 S.Ct. 1999 (Harlan, J., concurring). Bivens thus reflects the courts' role as an independent source of protection, applying the damages remedy as a form of individual relief and official accountability.
This prerogative is consistent with the constitutional plan. With its built-in limitations, Bivens has never represented a formidable expansion of judicial power. The doctrine, it must be remembered, does not create any new rights; it provides a mechanism for enforcing existing constitutional rights when no other avenue exists. "[W]here legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946); see also Bivens, 403 U.S. at 395, 91 S.Ct. 1999 ("Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.").
Against this backdrop, the majority sets out to narrow Bivens to the point of vanishing. The majority's test would not just eliminate a Bivens remedy in Arar's case, but in almost all cases. According to the majority, "[h]esitation' is counseled' whenever thoughtful discretion would pause even to consider," and "no account is taken of countervailing factors." See Maj. Op. at 574. But because "thoughtful" people, by definition, always "pause to consider," this approach would foreclose a damages remedy on account of the most fleeting and superficial of concerns. And it would permit courts to ignore completely, as the majority opinion itself does, the gravity of the constitutional injuries alleged. As the Court admits, this dramatic recasting of Bivens is unnecessary to support its holding. Id. at 574-75 (expressing the view that Arar's action "would have the natural tendency to affect diplomacy, foreign policy and the security of the nation," and therefore the Court's holding "need be no broader"). The standard described by the majority misstates the law and, for the reasons surveyed here, significantly weakens the courts' ability to redress constitutional injuries.
Arar's claims, in fact, go beyond the usual imperatives for a Bivens remedy. His complaint offers an exceptionally compelling basis for relief, one that the majority repeatedly sidesteps: The charge that government officials actively obstructed Arar's access to the courts, violating core procedural due process rights. See Tellier v. Fields, 280 F.3d 69 (2d Cir.2000) (assuming that a Bivens action exists for procedural due process claim by detainee). Any court should be deeply disturbed by such allegations, especially those backed by the factual detail presented here. Cf. Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir.2000) (finding AEDPA statute of limitations equitably tolled where prison officials intentionally obstructed habeas petitioner's ability to file his petition by confiscating his legal papers). Yet the majority's wholesale dismissal of claims relating to Arar's detention in the United States — for insufficient pleading, as described above — allows it to avoid any meaningful engagement with these allegations.
Normally, as we have seen, when Congress legislates in a particular area, a Bivens action is not appropriate. In particular, the division of labor outlined in Bivens contemplated two scenarios: (1) Where Congress has selected a remedy for constitutional injuries, the courts should defer to its legislative wisdom; (2) Where Congress has not considered a remedy, however, a court must use its "judgment about the best way to implement a constitutional guarantee." Wilkie, 551 U.S. at 550, 127 S.Ct. 2588; see Bivens, 403 U.S. at 396-97, 91 S.Ct. 1999. However, Arar's case fits neither situation. Instead, the allegations are that any remedy provided by Congress and the Constitution was purposefully foreclosed by executive officials.
When it comes to torture, Congress has spoken loudly and clearly. Title 18, Section 2441 makes it a felony punishable by life imprisonment to commit, or conspire to commit, "an act specifically intended to inflict severe physical or mental pain or suffering ... upon another person within his custody or physical control for the purpose of obtaining information or a confession." See also 18 U.S.C. § 2340A. Arar's transfer to Syria was allegedly designed to skirt the congressional prohibition on torture by outsourcing this form of interrogation. Moreover, in order to seamlessly accomplish this transfer, officials had to ignore or evade a number of other congressional dictates: An immigration policy that bars the removal of any person to a country where he will likely be tortured, and the INA's judicial review provision. See Convention Against Torture, December 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T. S. 85, implemented by Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, Div. G., Tit. XXII, § 2242, 112 Stat. 2681-822 (codified at 8 U.S.C. § 1231); 8 U.S.C. § 1252(a)(2)(D); see also Tun v. INS, 445 F.3d 554, 566 (2d Cir.2006). Finally, officials' actions also foreclosed Arar's opportunity to seek habeas relief under 28 U.S.C. § 2241 and the Constitution, a remedy that the government itself concedes should have been available to Arar.
In bare terms, the complaint alleges that executive officials set out to circumvent and undercut the powers of both the legislative and judicial branches. Under these circumstances, the usual justifications for hesitation in applying Bivens are simply not present. When, as here, the executive branch takes measures incompatible with the express or implied will of Congress, its "power is at its lowest ebb." Youngstown, 343 U.S. at 637, 72 S.Ct. 863 (1952) (Jackson, J., concurring). Factors that might otherwise counsel hesitation disappear where executive officials have sought to nullify the remedies chosen by Congress. In these cases, courts owe the executive branch little deference. Instead, the courts' provision of a substitute remedy is an undertaking not simply "appropriate for a common-law tribunal" but essential for the rule of law. Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Since the majority fails in these responsibilities, I respectfully dissent.
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.
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, 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."
Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). After sidestepping the question of existing remedies, Maj. Op. at 573-74, the majority states that the remainder of inquiry can be reduced to the question of whether there any special factors to consider. Id. at 573-74.
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, 127 S.Ct. 2588. 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, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) and Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (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, 127 S.Ct. 2588 (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 574. 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 581 (quoting 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 580. 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 574. 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 572-73, because separation of powers, institutional competence, and other factors "sternly" counsel hesitation. Id. at 574. Indeed, the majority's opinion devotes twenty pages to its stern assessment of special factors, id. at 574-82, including the fear that "actual terrorists" could win damages awards, placing courts in the position of funding terrorism, id. at 580 n. 13; that the government will be "graymail [ed]" into settling cases to prevent disclosure of classified information, id. at 579-81; and that other countries will be "less willing to cooperate with the United States in sharing intelligence resources to counter terrorism," id. at 576.
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 — "weighing 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, 127 S.Ct. 2588 (citing Bush, 462 U.S. at 378, 103 S.Ct. 2404). 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, 127 S.Ct. 2588 (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, 122 S.Ct. 515, 151 L.Ed.2d 456 (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, 127 S.Ct. 2588, by replacing that phrase with ellipses when quoting the case, see Maj. Op. at 573-74.
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 — 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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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 status as a member of Congress, "counsel[ed] hesitation." 442 U.S. at 246, 99 S.Ct. 2264. 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, 99 S.Ct. 2264 (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, 127 S.Ct. 2588 (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, 99 S.Ct. 2264 (quoting Bivens, 403 U.S. at 410, 91 S.Ct. 1999 (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, 91 S.Ct. 1999 (quoting Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L.Ed. 60 (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, 91 S.Ct. 1999 (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (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, 99 S.Ct. 2264.
The majority "avoids any categorical ruling on alternative remedies," in favor of its "dominant holding" on special factors. Maj. Op. at 563-64. I have searched the majority's opinion for 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 600. 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, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988); Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (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, 103 S.Ct. 2362, 76 L.Ed.2d 586 (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, 103 S.Ct. 2362, and the creation of a Bivens remedy by the federal courts "would be plainly inconsistent with Congress' authority in this field" under Article 1 of the Constitution, id. at 304, 103 S.Ct. 2362.
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 — 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.
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 because the wrongdoer is clothed with the authority of state law." West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (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 568 ("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, 121 S.Ct. 924, 148 L.Ed.2d 807 (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, 121 S.Ct. 924). As the majority now recognizes, "[a] federal officer who conspires with a state officer may act under color of state law." Maj. Op. at 568 (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 "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 603. 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, 101 S.Ct. 183, 66 L.Ed.2d 185 (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 actingunder 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 Section 1983 context, the decision must turn on the unique features of this case — 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 — 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 568 (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 568-69. 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 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.
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. I see no principled reason to apply different rules to the TVPA context than the Section 1983 context, to federal agent defendants than corporate defendants, or to actors in the United States than actors on foreign soil. 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.
I respectfully dissent. I join Judge Sack's, Judge Parker's, and Judge Pooler's dissenting opinions in full. But, because I believe that when the history of this distinguished court is written, today's majority decision will be viewed with dismay, I add a few words of my own, "... more in sorrow than in anger." Hamlet, act 1, sc. 2.
My colleagues have already provided ample reason to regret the path the majority has chosen. In its utter subservience to the executive branch, its distortion of Bivens doctrine, its unrealistic pleading standards, its misunderstanding of the TVPA and of § 1983, as well as in its persistent choice of broad dicta where narrow analysis would have sufficed, the majority opinion goes seriously astray. It does so, moreover, with the result that a person — whom we must assume (a) was totally innocent and (b) was made to suffer excruciatingly (c) through the misguided deeds of individuals acting under color of federal law — is effectively left without a U.S. remedy. See especially dissenting opinion of Judge Parker.
All this, as the other dissenters have powerfully demonstrated, is surely bad enough. I write to discuss one last failing, an unsoundness that, although it may not be the most significant to Maher Arar himself, is of signal importance to us as federal judges: the majority's unwavering willfulness. It has engaged in what properly can be described as extraordinary judicial activism. It has violated long-standing canons of restraint that properly must guide courts when they face complex and searing questions that involve potentially fundamental constitutional rights. It has reached out to decide an issue that should not have been resolved at this stage of Arar's case. Moreover, in doing this, the court has justified its holding with side comments (as to other fields of law such as torts) that are both sweeping and wrong. That the majority — made up of colleagues I greatly respect — has done all this with the best of intentions, and in the belief that its holding is necessary in a time of crisis, I do not doubt. But this does not alter my conviction that in calmer times, wise people will ask themselves: how could such able and worthy judges have done that?
I focus first on the willful reaching out to decide a hard constitutional question. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality... unless such adjudication is unavoidable." Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944). The Supreme Court long ago made clear that it would not — and that we should not — "pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of." Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); see also, e.g., Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) ("[W]e follow our usual custom of avoiding decision of constitutional issues unnecessary to the decision of the case before us."); Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."). We ourselves have described this canon of constitutional avoidance as "axiomatic," Allstate Ins. Co. v. Serio, 261 F.3d 143, 149 (2d Cir.2001), and have long allowed it to "dictate[]" our decisions in appropriate circumstances. Fine v. City of New York, 529 F.2d 70, 76 (2d Cir. 1975).
The question that today's majority elects to decide implicates this fundamental principle. This is because the existence vel non of a claim meriting a Bivens remedy, in the absence of any congressionally mandated relief, is a matter of constitutional interpretation. As early as Bivens itself, the Supreme Court made clear that the cause of action it recognized arose "under" the Constitution. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). As Justice Harlan said in his influential concurrence in Bivens, "the source of the legal interest" protected by any Bivens action is "the Federal Constitution itself"; "the Constitution is in the relevant sense a source of legal protection for the `rights' enumerated therein." Id. at 402 n. 3, 91 S.Ct. 1999 (Harlan, J., concurring). And even the majority here describes Bivens as "a judicially-created remedy stemming directly from the Constitution itself." Maj. Op. at 571 (emphasis added).
I recognize that this question — the constitutional status of Bivens actions — is one that has vexed some in academia. But as is often the case, what can be layered with mystery in the pages of a law review is, in practice, fairly simple. When a court concludes that a Bivens action is appropriate, it is holding that, on the then-present state of the law, the Constitution requires the court to create a remedy. As even the staunchest critics of Bivens recognize, a holding that a particular constitutional right implies a remedy "can presumably not even be repudiated by Congress." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (Scalia, J., concurring). While Congress can vitiate the need for a judicially created Bivens remedy by providing an "alternative... process for protecting the [constitutional] interest," Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007), it cannot overturn a holding that some remedy is necessary. This is the essence of a constitutional holding, and hence one directly subject to the avoidance canon.
That avoiding difficult constitutional questions like those before us is the proper course was made clear by the Supreme Court in Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). In that case, the only issue before the Supreme Court was whether Harbury's Bivens action for denial of access to courts could proceed. Id. at 412, 91 S.Ct. 1999. Justice Souter (for eight members of the Court) wrote that whether this Bivens action lies would require an inquiry that raises
concerns for the separation of powers in trenching on matters committed to the other branches. Since the need to resolve such constitutional issues ought to be avoided where possible, the [courts] should ... as soon as possible in the litigation [determine] whether a potential constitutional ruling may be obviated because the allegations of denied access fail to state a claim on which relief could be granted.
Id. at 417, 91 S.Ct. 1999 (emphasis added). The Court, in other words, said we must first decide if there are non-Bivens grounds for resolving the dispute, and only then address the constitutional issues raised by Bivens actions. This practice, the Court stated, comports with "the obligation of the Judicial Branch to avoid deciding constitutional issues needlessly." Id. The Court then proceeded to examine closely the cause of action that Harbury claimed to have lost through the defendants' behavior, determined that it was insufficient to justify relief, and, on that non-constitutional basis, dismissed Harbury's claim. Id. at 418, 91 S.Ct. 1999.
The implications for Arar's case could hardly be more manifest. The national security concerns that the majority relies upon in its special factors analysis are precisely those that the Supreme Court said must be avoided in Harbury. And in such circumstances, it is our job to put "the trial court ... in a position as soon as possible in the litigation to know whether a potential constitutional ruling may be obviated." Id. at 417, 122 S.Ct. 2179. For reasons that will be clear soon enough, it may well be that, on remand, this case would, for non-constitutional reasons, "fail to state a claim on which relief could be granted." Id. at 417, 122 S.Ct. 2179. That being so, the Supreme Court has told us, we must avoid constitutional pronouncements.
For this Court to go out of its way to decide on Bivens grounds when it is not necessary is, therefore, a reaching out of a particularly dangerous sort, regardless of what conclusion the Court comes to on the Bivens question. If — as I would if I had to face the question — we were to decide that Bivens applies, then some remedy would be necessary regardless of Congress's preference. If, as the majority chooses to do, we rule that Bivens does not apply, we have said that, in a wide variety of cases, the Constitution fails to give protection. Both positions require a parsing of the Great Charter. When such a decision cannot be avoided, so be it: we do our job. But where it can be avoided, it should be.
So, how might the Bivens issue have been avoided? As Judge Sack explains in his eloquent dissent, this might be done through first examining the significance of the state secrets privilege to this case. That privilege has long required dismissal in those rare cases where national security interests so drastically limit the evidence that can be introduced as to deprive either a plaintiff or a defendant of an opportunity to make its case. See, e.g., Zuckerbraun v. Gen. Dynamics Corp., 935 F.2d 544, 547 (2d Cir.1991); see also United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); El-Masri v. United States, 479 F.3d 296, 308 (4th Cir.2007) ("[A] proceeding in which the state secrets privilege is successfully interposed must be dismissed if the circumstances make clear that privileged information will be so central to the litigation that any attempt to proceed will threaten that information's disclosure."). In a case such as this, where the Government asserts that the plaintiff's claim implicates vital national secrets, we must, before we move to the merits, examine the consequences of our duty to guard against any potentially harmful disclosures.
The majority obviously shares our concerns about the protection of state secrets, as virtually every "special factor" identified in the majority opinion concerns classified material. But, as Judge Sack says, this amounts to double-counting of the Government's interest in preserving state secrets. See dissenting opinion of Judge Sack at 601. We already possess a well-established method for protecting secrets, one that is more than adequate to meet the majority's concern. Denying a Bivens remedy because state secrets might be revealed is a bit like denying a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at great pains to eliminate, to negate entirely substantial rights and procedures.
Even more mystifying is the majority's insistence that it is respecting "[t]he preference for open rather than clandestine court proceedings." Maj. Op. at 577. How, exactly, does the majority promote openness by shaping a constitutional decision around the fact that state secrets might be involved in a claim? The state secrets doctrine is undoubtedly in tension with the public right of access to the courts, but the majority's approach is more opaque than any state secrets resolution. When a court properly applies the state secrets doctrine, the case at bar will proceed only if the alleged state secrets are not vital to a claim or defense, so there should be little fear that a substantive holding will ultimately turn on secret material. By contrast, consider the harm done to the openness of the court system by what the majority does here. It bars any action in the face of what we are required to assume are outrageous constitutional violations, and it does so simply because state secrets might possibly be involved, without having a court look into that very question. As a result, even if the Government's claimed need for secrecy turned out to be wholly illusory, there would be no recourse! Indeed, even if the Government declassified every document relating to this case, even if all four countries involved announced that they had nothing to hide and that Arar's claim should proceed so that they could be exonerated, there would be no open judicial testing of Arar's allegations. Which approach should give us more cause to hesitate?
The majority further errs in its use and abuse of other fields of law. In trying to find "special factors" that could justify barring a Bivens claim (but do not depend on "state secrets") the majority points to two issues that arise in every tort suit against a government official. If they are valid here they would appear to counsel "hesitation" in (and, under the majority's reasoning, seemingly preclude) every Bivens action. First, the majority warns that "[t]he risk of graymail ... counsels hesitation in creating a Bivens remedy." Maj. Op. at 579. Because the risk of unwarranted and dangerous disclosure is so high, the Government will be pressured into settling meritless cases. Second, as a consequence of such graymail, the Government, rather than individual defendants, would wind up paying off claims. See Maj. Op. at 580. Because these possibilities are "an endemic risk in cases (however few) which involve a claim like Arar's," the majority concludes, they make Bivens actions particularly inappropriate. Maj. Op. at 579.
(Additional footnotes preserved verbatim in the order and form appearing in the source document, including all cross-references to "Maj. Op.," "Dissent of Judge Sack," "Dissent of Judge Calabresi," and "Dissent of Judge Pooler," as well as all citations, URLs, and parenthetical explanations.)