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Vance v Rumsfeld

Case No. 10-1687 (C.A. 7, Aug. 8, 2011)

This appeal raises fundamental questions about the relationship between the citizens of our country and their government. Plaintiffs Donald Vance and Nathan Ertel are American citizens and civilians. Their complaint alleges in detail that they were detained and illegally tortured by U.S. military personnel in Iraq in 2006. Plaintiffs were released from military custody without ever being charged with a crime. They then filed this suit for violations of their constitutional rights against former Secretary of Defense Donald Rumsfeld and other unknown defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs seek damages from Secretary Rumsfeld and others for their roles in creating and carrying out policies that caused plaintiffs’ alleged torture. Plaintiffs also bring a claim against the United States under the Administrative Procedure Act to recover personal property that was seized when they were detained.

Secretary Rumsfeld and the United States moved to dismiss the claims against them. The district court denied in part Secretary Rumsfeld’s motion to dismiss, allowing plaintiffs to proceed with Bivens claims for torture and cruel, inhuman, and degrading treatment, which have been presented as Fifth Amendment substantive due process claims. Vance v. Rumsfeld, 694 F. Supp. 2d 957 (N.D. Ill. 2010). The district court also denied the government’s motion to dismiss the plaintiffs’ property claim. Vance v. Rumsfeld, 2009 WL 2252258 (N.D. Ill. 2009). Secretary Rumsfeld and the United States have appealed, and we consider their appeals pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 1292(b).

We agree with the district court that the plaintiffs may proceed with their Bivens claims against Secretary Rumsfeld. Taking the issues in ascending order of breadth, we agree first, applying the standards of Federal Rule of Civil Procedure 12(b)(6), that plaintiffs have alleged in sufficient detail facts supporting Secretary Rumsfeld’s personal responsibility for the alleged torture. Second, we agree with the district court that Secretary Rumsfeld is not entitled to qualified immunity on the pleadings. The law was clearly established in 2006 that the treatment plaintiffs have alleged was unconstitutional. No reasonable public official could have believed otherwise.

Next, we agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. We see no persuasive justification in the Bivens case law or otherwise for defendants’ most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone. United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.


Judge(s): David Hamilton
Jurisdiction: U.S. Court of Appeals, Seventh Circuit
Related Categories: Civil Remedies , Constitutional Law , Government / Politics
Circuit Court Judge(s)
Terence Evans
David Hamilton
Daniel Manion

Trial Court Judge(s)
Wayne Andersen

Amicus Lawyer(s) Amicus Law Firm(s)
Mark W. DeLaquil Baker Hostetler LLP
David Rivkin, Jr. Baker Hostetler LLP

Appellant Lawyer(s) Appellant Law Firm(s)
Matthew Collette United States Department of Justice

Appellee Lawyer(s) Appellee Law Firm(s)
Michael Kanovitz Loevy & Loevy



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a civilian u.s. citizen. the theory would immunize from military custody without ever being charged with erty, the plaintiff sued under the apa to challenge against a u.s. citizen are a very serious matter. but authority violates universally accepted norms of the alleged secretary rumsfeld's personal responsibility. his well-pled allegations, if true, would describe a tiffs to proceed with their bivens claims for torture. "what," "when," "where," "why," and "how much" requires that prison officials "ensure that inmates intend to make any other change in law that would c. bivens claims by civilian u.s. citizens in a war zone secretary rumsfeld was personally responsible for the our dissenting colleague suggests that "given the to stop abusive interrogation techniques: correctional services corp. v. malesko, 534 u.s. 61, 75 (2001) geoffrey miller to iraq in august 2003 to evaluate clear that vance and ertel's personal property was circuit held that afghan and iraqi citizens who alleged nos. 10-1687 & 10-2442 57 force claim by a civilian against a military police officer. group security transactions and were sent to a trailer we disagree. bivens is a well-known part of the legal plaintiffs-appellees, in adjudicating the rights of pretrial detainees); see also myers, 512 f.3d 644, 672-73 (rasul i) (concluding that part) (concluding that security and secrecy concerns remedy for damages, with what the defense argues is a pre- "no darkness day after day" for the entire duration of action. see 10 u.s.c. § 893 (a person guilty of cruelty plaintiff in arar was an alien with syrian and canadian congress, secretary rumsfeld took no action to rescind we now turn to whether qualified immunity protects sary to establish a bivens violation will vary with the field." when their property was seized, vance and the decision of the district court in no. 10-1687 court did. under the "military authority" exception to the adminis- bivens cause of action for suits alleging constitutional care. since carlson, we have regularly allowed prisoners by the defendants, including their invitation to con- and their government overseas; and (d) that claims 46 nos. 10-1687 & 10-2442 the possibility of "well pleaded complaints" under the who is abroad, the shield which the bill of rights and prejudice. see, e.g., bausch v. stryker corp., 630 f.3d 546, 562 ever, that private citizens have an implied right of and diplomacy in a way that this case does not. torture while held in an american military prison in their constitutional claim." this argument, which is cate area could undermine these military and diplo- the denial of medical care to a particular policy issued is plausible, and not merely speculative, that secretary 32 nos. 10-1687 & 10-2442 tary's efficient execution of a war. national security allege facts indicating that secretary rumsfeld was per- unconstitutional acts." correctional services corp. v. v. heller, 328 f.3d 930, 936 (7th cir. 2003). "because vicari- tinued to promote and condone unconstitutional from congress' close attention to detainee treatment enforceable by law by any party in any civil proceeding."). provided meaningful safeguards and remedies estab- 2001 that led to the detention of the plaintiff under harsh mandated roles of reviewing and resolving claims." id. serious harm"); t.e. v. grindle, 599 f.3d 583, 591 (7th cir. tional; and (c) that a bivens remedy should be available (1988), and federal civil service employment, in bush security affairs." dep't of navy v. egan, 484 u.s. 518, 530 occupied territory"); rosner v. united states, 231 f. supp. 2d v. he happens to be in another land." reid, 354 u.s. at 6 military policy at play in this case. the court points the armed forces, treat persons detained by the rity affairs, and congress is in a much better position midst of a congressionally-authorized war in iraq. see 1. the alleged abuse violated a constitutional right nos. 10-1687 & 10-2442 53 detainee abuse. ¶ 14. first, congress passed the ronald w. tional wrong indicating that congress has intended to and ertel enjoyed the protections of, among others, f. supp. 2d 85, 102 (d.d.c. 2007) (taking judicial notice in baghdad. ¶¶ 131, 138-39. there, plaintiffs allege, they fourth, defendant rumsfeld is being sued for actions a report by former secretary of defense james schlesinger. personal responsibility in creating the policies that led or has necessary medicine withheld, that too can applied the "special factors" analysis to hold that one law of nations); see also sosa v. alvarez-machain, 542 u.s. logical reason why its unprecedented holding that a detainees, here we are addressing an unusual situation 80 nos. 10-1687 & 10-2442 a u.s. public official possibly conclude that it was con- gress, especially where there are "special factors coun- no. 10-1687, pursuant to the general appellate jurisdiction (posner, j., dissenting in part) (noting the "opaque language" finding that "[n]o reasonable government official would are familiar aspects of bivens jurisprudence, the claims are realized that the right of a united states citizen to be for money damages. to this, the court responds that (holding that non-resident alien could not invoke erate decision to violate the u.s. constitution and other hostage, and should barricade themselves with weapons claim should be recognized. this sweeping defense is during the korean conflict, but thousands of miles of resulting harm.").5 citizens claiming torture by u.s. officials in a war zone it would be startling and unprecedented to conclude stitution. this as "the december field manual"). id. the defendants counsels hesitation." id. at 574. more recently, the d.c. reagan national defense authorization act for fiscal u.s. 537, 550 (2007). we have reminded plaintiffs that the constant theme of the aggressive interrogations the court also correctly notes that united states citizens do4 wrongs by military officials, in a lawsuit to be heard well rescued by their government, were in for a shock. they standards to be analogous." washington v. laporte county 2. step two -- "special factors" rights. these considerations are simply not present in the defendants' principal bivens argument is that, judgment on sensitive matters of military policy, in- (continued...) that the supreme court used to establish the "plausibility" entertain under this new cause of action? future other parts of our government seem to agree, as judge parker22 after the plaintiffs were taken to camp cropper, they nos. 10-1687 & 10-2442 91 claim. from liability, the defendants blend both the issue of to substantive due process.11 688 (holding that civilian u.s. citizens held in u.s. policy, and the security of the nation, and that fact make his way to court with a challenge to . . . his in a case that did not address recovery of personal prop- to any special factors counselling hesitation before autho- alternative remedies that the supreme court has found current foreign war zones (a fact to which the barreme, 6 u.s. (2 cranch) 170, 178-79 (1804) (holding that foreign citizens who are tortured by their governments. was denied because iraq had a sovereign right to crimi- but to congress. and the question is not whether the courts this question in wilkie v. robbins, 551 u.s. 537, 550 (2007). appeals from the united states district court supplant bivens. here there is no meaningful alterna- have taken advantage of these protections by com- entitled to pursue bivens claims because they could and plausibly pled secretary rumsfeld's personal responsi- however, to any special factors counselling hesitation plaintiffs can prove this, but they need not have done that defendants and the dissent advocate here, for 194, 199 (2004), quoting saucier, 533 u.s. at 202. the allegedly used on the plaintiffs (the plaintiffs refer to most relevant, though, is the torture victim protection 161. after two days, vance and ertel were shackled, are of such a category. while the plaintiffs are arguing, have been previously held unlawful. where the constitu- next, we agree with the district court that a bivens bivens liability for the torture, or worse, of a civilian in the military would still be subject to criminal pros- to treatment that constituted torture by u.s. officials traditionally have been reluctant to intrude upon the nos. 10-1687 & 10-2442 55 cause of action. sue responsible paraguayan official in u.s. district court starting point. reserved for terrorists and so-called enemy combatants." 2005), available at http://www.nytimes.com/2005/12/14/politics/ narrow question presented by the extraordinary allega- adjudication of guilt], the pertinent constitutional guarantee who said they would use "excessive force" against them them separately. we begin by addressing the defendants' reforming the policies, patterns or practices governing the plaintiffs' bivens claim in this instance creates a special category of constitutional rights that would still acquiescence" is not sufficient to impose liability under the federal courts to make foreign policy, the court ex- bedding or clothing, we would likewise believe that government harms citizens of other nations, they can factors" counseled hesitation. 585 f.3d at 575-81. the color of law, of any foreign nation," subjects another judicial review of "military authority exercised in the unauthorized interrogation methods before the plain- use of a "tucker telephone," a hand-cranked instrument the united states of america, ment in violation of equal protection branch of fifth based on "countervailing factors that might counsel alacrity or unconstitutional torture they allege they suffered. iqbal did not fied immunity defense is considered a final judg- or for other reasons, the fact that a civilian has sued a mccain on detainee issue," new york times (dec. 14, are competent to review military decisions, nor even arising out of national security-related actions); harlow the united states' motion to dismiss the plaintiffs' nos. 10-1687 & 10-2442 65 "special factors" in the second step. caution required in applying bivens. but caution is also military and detention policy, raising issues of national to dismiss if it meets the "plausibility" standard applied and the vindication of citizens' constitutional rights. out saying that the existence of a civil damage that extends the remedy and defines its limits." dissent commander of a warship was "answerable in damages" to the judge brown had written: led blindfolded with towels placed over their heads corpus and bivens cases, for the proposition that the madison, 5 u.s. (1 cranch) 137 (1803): "the very essence individual to claim the protection of the laws, whenever tiffs had sufficiently pled secretary rumsfeld's personal in courts-martial. justice black wrote for a plurality of brown's reasoning in rasul cannot be extended to bar cluding that it is sufficient if a plaintiff bringing an rule that would immunize government officials from pub. l. no. 108-375, § 1092, 118 stat. 1811, 2069-70 (2004), § 701(b)(1)(g), precludes subject matter jurisdiction field in time of war or in occupied territory," 5 u.s.c. an "alternative remedy" that forecloses a bivens remedy. cedures and remedies in bush. while the defendants citizens of our country and their government. plaintiffs law, and that those prohibitions reflect basic and their time at camp cropper. ¶¶ 21, 147. their cells access to a court of law to challenge their detention. these the amicus brief by the society of professional journal- broad and idealistic concepts of dignity, civilized stan- apply both steps of the saucier test, just as the district and bedding that was available to each of them -- a tion operations (aug. 24, 2004), available at http://www. u.s. 299, 301 (1996), citing mitchell v. forsyth, 472 u.s. nothing to link the guards' threats of excessive force or the plaintiffs allege that secretary rumsfeld devised prison in iraq during a time of war. as the defendants v. richardson, 614 f.3d 1185, 1199 (10th cir. 2010) (con- of the abusive treatment of detainees by the u.s. military (plurality opinion of black, j.); see also kar v. rumsfeld, 580 broad insistence that the judiciary must stay out of tending the discharge" of his subordinates' duties); little v. viduals involved, we expect plaintiffs to refine their at *6 (d.c. cir. jun. 21, 2011); arar v. ashcroft, 585 f.3d for the seventh circuit learn identities of unknown defendants responsible for their military custody in a war zone. the court offers no committee against torture that the bivens remedy is nos. 10-1687 & 10-2442 43 at 535; see also ex parte quirin, 317 u.s. 1, 19 (1942) (ac- moreover, the court's citations involve military trials for for the judicial branch to refrain from providing a new possibly to put a stop to the ongoing torture and abuse. subject `to such restrictions as are expressed in the con- as security threats. ¶¶ 1, 212, 214. instead, both were official's liability "will only result from his own neglect 116-19. plaintiffs called their u.s. government contacts law carries with it the force of a jus cogens norm, the all comparable to the social security procedures and courts have held unconstitutional when applied to con- the court also distinguishes rasul ii because it involved5 ism is a strong indication that congress has not closed the field in time of war." 5 u.s.c. §701(b)(1)(g). the finally, we turn to the plaintiffs' claim against the dissenting). as the majority in arar acknowledged, federal officials in the executive branch, including the detainee treatment act review procedures were ment that "special factors" preclude recognition of a case. these plaintiffs have alleged a grave breach of our litigation by prisoners in our domestic prisons evidence 429 u.s. at 104. lest there might have been any worldwide. we acknowledge that those cases presented authority of the united states. like the amici, we refer to the tion issues.18 those dealing with claims of abuse of prisoners, and id. at 85. we are inclined to agree with that observation, analysis," moshe schwartz and joyprada swain, congressional qualified immunity, not absolute immunity, from con- being made on the same battlefield today, by the same was pumped into their cells at "intolerably-loud vol- venturing out into the battlefield is reflected in the rogated, they were held in almost constant solitary con- these plaintiffs' personal property. first, there is no detained in the course of hostilities in iraq"). our decision today opens up the courts to other claims complain about their treatment is also nothing like the 537, 550 n.4 (2007), quoting hartman v. moore, 547 district judge found that the defendants had not formed personnel in the country. see "department of ("the framers' inherent distrust of governmental power treatment of uncharged and unconvicted detainees where (...continued)11 to the plaintiffs' treatment but also deliberate indif- diplomatic and foreign policy consequences of hearing of fixed elements." see armstrong v. squadrito, 152 f.3d tion techniques at the time plaintiffs allege they were tortured, racy" following the beginning of the current conflict under bivens v. six unknown named agents of federal may be entitled to qualified immunity from liability "courts can -- with difficulty and resourcefulness -- the plaintiffs allege that secretary rumsfeld then munity from liability for grave constitutional wrongs security. but as we explain, in the context of this particular the very different situation of alien detainees. the plaintiffs states military. plaintiffs assert that their treatment was activism," which have never been a part of the bivens special tiffs' claims rest on "naked assertions" of illegal conduct to "military commands made in combat zones or in the memorandum, but interrogators were still given universal human rights. the question of remedies, how- united states technically operated in iraq through 2008 as is not seriously injured). joint chiefs of staff addresses the issue. they argue, as numerous pieces of legislation regarding detainee treat- article states neither that the confidential addendum accusations of detainee mistreatment and torture by was well aware of detainee abuse because of both while the plaintiffs allege that their cells were extremely to proceed with their bivens claims, plaintiffs must 103, 112 (d.d.c. 2010), appeal pending, no. 10-5393 (d.c. first, of course, it is well established that bivens is against the united states under the administrative pro- of war. while it does acknowledge the issue, the court consider "whether any alternative, existing process for (1946). "historically, damages have been regarded as arguments and authorities offered to support a special that vance meet u.s. government officials in iraq to we see no deficiency in the complaint that would proceed to the second step of the bivens test, as plain language of the statutory exception prevents the bivens. see carlson v. green, 446 u.s. 14 (1980) (allowing fact that the only legislation the united states had enacted to and that the techniques alleged by plaintiffs add up to v. reagan, 770 f.2d 202 (d.c. cir. 1985), members of the practices which had by then become ingrained, nor to at the beginning we reject the idea that when the at camp cropper. ¶¶ 2, 165, 176. contact their families or lawyers. they were fed twice a because this case arose in a foreign war zone, no bivens serious medical condition is denied medical attention process. "substantive due process involves the exercise10 that allocated powers among three independent the court's rhetorical dissection of "immunity" obscures,2 tion of the most fundamental guarantees in the constitu- s. ct. at 1948, citing dunlop v. munroe, 11 u.s. (7 cranch) war zone, is unconstitutional. corpus cases approving limited judicial oversight over suit for damages by citizen alleging an unconstitutional officials were making payments to iraqi sheikhs, which a plaintiff must plead that each government-official of civil procedure 12(b)(6), that plaintiffs have alleged in affecting personal property in a war zone, and we questions of civil damages remedies for military decisions failure of his subordinates to carry out prison policies, plaintiffs have alleged was unconstitutional. no rea- united states and who had potential connections to those plaintiffs donald vance and nathan ertel have alleged a crime. they then filed this suit for violations of plaint. see supra n. 6. the friends of the court refer to the dismiss even if one of the defendants is a high-ranking of what allegations are plausible." see arthur r. miller, from of "obstructing national security policy" and has recently plaintiffs' claims "would inevitably require judicial however, the defendants cite only cases involving proce- ment does not offer the more familiar remedy of dam- personal property claim. applicable army regulation 190-8, which states that if civilian statutory law. see ronald w. reagan national defense and concrete allegations of, for instance, persistent forces who detained the plaintiffs as the "u.s. military," not united states' appeal on the property issue, docketed vance and ertel allege that after they arrived at to sleep. ¶¶ 130-31. bitterly cold cell). the fact that the plaintiffs were im- in december 2005, secretary rumsfeld added ten 54 nos. 10-1687 & 10-2442 the jaffee plaintiffs sought relief for the government's v. economou, 438 u.s. 478 (1978) (concluding that privilege is all the protection we need to safeguard con- also listed three other special factors: national security 6 nos. 10-1687 & 10-2442 dismissal based on qualified immunity. ists, the project on government oversight, and the gov- land and ocean separated the blast site in nevada from of u.s. military personnel in 2006. ¶¶ 242-43. the not argue that the plaintiffs' allegations, if pled correctly, ordinary rendition" because several related "special authorities, and then was transferred to u.s. authorities vance has been able to recover his laptop computer from25 is "the deterrence of individual officers who commit their factual allegations. the former rank of the proved them. id. the plaintiffs also allege that in 2003, motion to stay), dkt. no. 285 (nov. 17, 2010). which we disagree. the two circuits we have cited addressed when they were detained. 564, 570 (7th cir. 1998) (reversing summary judgment are true. we proceed on that basis. at 514. at the same time, "a defendant should not be dural due process claims: munaf v. geren, 553 u.s. 674 40 nos. 10-1687 & 10-2442 morgan v. united states, 323 f.3d 776 (9th cir. 2003) (civilian serious harm exists, and he must also draw that infer- v. illinois state police, 251 f.3d 612, 650 (7th cir. 2001); highsmith i concur with the court's dismissal of plaintiffs' adminis- the defendants argue that the supreme court and ap- (1987) (no cause of action by military service member factual basis for their detention, access to exculpatory evidence, a. the scope of the defense and the claim claims, including bivens claims, against u.s. government 38 nos. 10-1687 & 10-2442 ments in capturing and detaining known and subject to any treatment or technique of interroga- 2 nos. 10-1687 & 10-2442 decision-making." (opn. at 59) but it should go with- authority" exception to the united states army's seizure detainees are "not satisfied with the way the commander qualified immunity for prison officials who chained a plaintiffs. but that concern should not enable this court the plaintiffs were informed that they were being held as3 cir. 1993) (civilian claim against military investigators international law of human rights, regardless of the 68 nos. 10-1687 & 10-2442 use of a strap to punish prisoners), remanded with orders defendants, during this appeal. see minute entry (order on rumsfeld's position would have known that the 26 nos. 10-1687 & 10-2442 585 f.3d 559. we should follow our sister circuits in federal rules of civil procedure applies, and a plaintiff remain in our bivens analysis. the defendants argue wartime actions. see ali, ___ f.3d ___, 2011 wl 2462851, finney, 437 u.s. 678, 682 nn. 4-5 (1978), citing talley v. 825, 842 (1994) (finding that a prison official acts with they were deprived of sleep. that level of detail is not to secure the "just" determination of lawsuits, and there is a ever denied civilian u.s. citizens a civil remedy for their for unlawful search and removal from military base); or regulation. i think it clear that there are special3 action. in line with this presumption, both circuits con- allegations about our government, especially in view of donald vance and nathan ertel, plaint provided no plausible basis for rejecting that legitimate rasul v. bush, 215 f. supp. 2d 55, 64 n. 11 (d.d.c. 2002) states, however, we agree with the government that the and policies," as the defense suggests, this case would arar's claims. 585 f.3d at 574; see also arar, 585 f.3d at nos. 10-1687 & 10-2442 73 enacted its own law identical to the u.s. torture victim under bivens does not strip plaintiffs here of their constitu- we are sensitive to the defendants' concerns that the by becoming whistleblowers to the u.s. government, today, the idea that a prisoner in a u.s. prison might bureau of narcotics, 403 u.s. 388 (1971). plaintiffs seek special factors foreclose a bivens claim in the context refusing to recognize a bivens remedy, the second circuit sum, we hold that the plaintiffs have sufficiently in count ii, plaintiffs claimed that they were denied pro- of treatment and interrogation of enemy combatant these issues are actually quite distinct, and we treat recourse is unthinkable. while the constitution as long as the elaboration is not inconsistent with the com- as our dissenting colleague points out, there is some as the five defects in the court's holding: (1) the lack of the alleged violations of their constitutional rights must evaluate penal measures") (citations omitted). it is analysis? instead, it highlights why the court should not be administrative procedure act's "military authority" we address first the nature of the bivens remedy and because state secrets might be revealed is a bit like army field manual on intelligence interrogation. to the army field manual after congress passed the if there is no sufficient alternative, the courts must the defendants' argument that the courts should stay 1202, 1217-18 (s.d. fla. 2002) (allowing, in "an abundance by former secretaries of defense and members of the instituted. ¶ 244; pl. br. at 11. the dissent criticizes plaintiffs' knowledging that "the duty which rests on the courts, very pragmatic level, the fact that classified informa- was "clearly established" at the time of the relevant regardless of whether the actor is a supervisor or sub- during world war ii). in contrast to these cases, it is act. because the court has not exercised that restraint executive authorities in a case involving alleged torture of a deprived of food, clothing, and medical care, a reason- would extend bivens beyond its "core premise," which enforcement officials of alleged detainee abuse. id. at 13 n.8. pursuant to the interrogation and detention policies instead acted to fight terrorism. the plaintiff alleged that the the conditions of their detention or the nature of their 34 nos. 10-1687 & 10-2442 however, we should not let the difficulty of those cases sonable public official could have believed otherwise. the court's analysis of "special factors" under bivens rulings on virtually identical complaints may well be based the plaintiffs also claim that secretary rumsfeld, in 2010) ("when a state actor's deliberate indifference de- illinois, as plaintiffs suggest, or in baghdad -- it was constitutional provision at issue." id. unlike in iqbal, remedial system that would preclude a bivens remedy. ap- and the government we created in our constitution. that the "military authority" exception precludes judicial nos. 10-1687 & 10-2442 41 implemented policies following the attacks of september 11, second, the plaintiffs have adequately alleged that 512 f.3d at 673 (brown, j., concurring) (quotation marks (dec. 21, 2007) (ordering limited discovery for plaintiffs to these matters are now before us in two separate ap- f.3d 491 (7th cir. 2009) (same). here it makes sense to friend and colleague ertel that he had become an infor- so free of the bill of rights. the united states is en- sider then the precedents and arguments relied upon hamilton, circuit judge. this appeal raises funda- dismiss the claims against them. the district court denied remedy years down the line may affect decisions stands the plaintiffs' point -- that secretary rumsfeld's "does not mandate comfortable prisons, . . . neither does and some civilian officials. ¶ 21. they allege that the the complaint also alleges that the secretary was re- alleged sufficient facts to show that secretary rumsfeld criminal jurisdiction over only extraterritorial acts of torture. attorney general and the fbi director had established and much higher the supreme court meant to set the bar, when without a warrant, using excessive force, and arresting we must accept these well-pled allegations as true at to illustrate the anomalous result the defendants see def. br. at 50-51. doing so would be futile. regardless of the current location of the prop- are matters of international law as well as united states much different from other contexts in which bivens judgments of military authorities in matters relating to ment power which `shocks the conscience.' " tun, 398 f. 3d at this stage. if classified information becomes a would be startling if united states law did not provide of civil liberty certainly consists in the right of every interests, confidential information, and the risks posed by military justice. they argue that the plaintiffs are not the application in a war zone of constitutional safe- private right of action, the courts should not recognize they were neither limited nor safeguarded." id. at 14. on this issue here where the exception clearly applies as including laptop computers, cell phones, and cameras. "those [habeas] cases also involve some judicial inquiry (continued...) bivens remedy is available for allegations of torture by great pains to eliminate, to negate entirely substantial amendment due process right).12 conclusion that special factors counsel against the judi- ference by secretary rumsfeld in failing to act to stop and indeed, many broader questions remain about lowed rasul ii and sanchez-espinoza to hold that iraqi including pending discovery requests to identify unknown them to president bush throughout 2003. id. they also the plaintiffs elaborate on this point in their brief, citing the7 against torture or otherwise--the defendants readily causes a violation of federally protected rights"); dodds that is plausible on its face.' "). "the plausibility the context of foreign affairs. almost all of these were nos. 10-1687 & 10-2442 37 guards, who would conduct shake-downs of their cells, in identifying other defendants given the nature of their myers, 563 f.3d 527, 530 (d.c. cir. 2009) (rasul ii), where nations could not pursue bivens claims against u.s. offi- unknowingly served as a test subject), aff'd, 798 f.2d 565 were willing to extend the unprecedented immunity at guantanamo binds this court and forecloses it from tainly proliferate based on this precedent. given the the constitution while bivens is merely a judicially-created were detained and illegally tortured by u.s. military ted. we then conclude that congress has not indicated detainee treatment act stated in relevant part: with illegal arms trading, stockpiling of weapons, decision. with the broad scope of the proposed defense of loud music. ¶ 238. the commander later modified6 involved claims arising abroad or during war, they their remedies so as to grant the necessary relief." bivens, zens. whether or not one agrees with those decisions, the for that abuse and who must decide what those remedies in a room of the compound. ¶¶ 120, 124-25. they were shield group security officials became suspicious not let the prospect of difficult questions in the future claims are not before us. bivens remedy is itself a special factor that should cause peals. the district court's rejection of a defendant's quali- ment a constitutional guarantee." wilkie v. robbins, 551 the defendants rely heavily on iqbal, but the case is clearly5 e.g., carlson v. green, 446 u.s. 14 (1980); (opn. at 53) that must be condemned under the due process clause." u.s. military custody." (opn. at 62 n.18) this rejoinder plaintiffs are mounting a broad challenge to u.s. remedy to those in plaintiffs' position other than erating public discussion of sensitive matters of national ended, vance and ertel, by contrast, seek an inquiry when the injury arise out of activity incident to service). accord the greatest respect and consideration to the "when the government reaches out to punish a citizen has a substantial case." limestone development corp. v. this case and held there is no civil remedy available, policies, because habeas is a remedy authorized by statute and sonal responsibility was not pled sufficiently where the com- however -- unless the subordinates are acting (or failing and repeatedly deprived of necessary medical care. duration of their imprisonment -- vance for three months a military prison in a war zone. which of the making complaints within that same chain of command. tices he had allegedly created even after congress man- dismiss their claim that their treatment amounted to (2007) (holding that "a complaint must contain sufficient at 73) but claims similar to those before us could cer- the physical or mental torture of u.s. citizens, as the 429 u.s. at 104 (concluding that deliberate indifference security and even foreign relations. if plaintiffs were review of a decision to require american troops experienced a nightmarish scene in which they were convicted prisoner' . . . and we frequently consider the also sought to broaden plaintiffs' claims beyond those would make little sense to limit their recourse to occurred in a war zone. we review this question of law picking and choosing between various constitutional tort claims control of the department of defense or under deten- although the principal elements of plaintiffs' claims torturing aliens suspected of terrorism. congress the proposed defense and the narrowness of the reported their in-depth observations of individuals a bivens remedy should not be available to u.s. citizens disrupt and hinder the ability of our armed forces to foreign governments. the majority found that allowing cir.) (relying on rasul ii, finding that "[t]he d.c. circuit's (d.c. cir. 1991) (suggesting that the exception applies would have known that this amounted to unconstitu- to act) on the warden's instructions"); see also martin a. of detainees in the context of military detention for the about violations of government policy would be army field manual and the detainee treatment act. public and internal reports documenting the abuse. ¶¶ 240- "available to prisoners who assert that they have be a very odd result. surely the congress that enacted circumstances. in taking this second step, we explain it presents factual issues over whether there was a delib- second, it is also well established under bivens that 574, 580 (7th cir. 2009), quoting swierkiewicz, 534 u.s. "iqbal undoubtedly requires vigilance on our part to explanation. iqbal, 129 s. ct. at 1951-52. in this case, by con- rogation techniques for use on detainees" at guantanamo in their interrogation and detention. ¶ 217. they claim guards we have developed over time to protect u.s. ment officials are historically the remedy for invasion the judgment whether a damage remedy should exist." powerful evidence that weighs heavily in favor of recog- 32 f.3d 1024 (7th cir. 1994) (recognizing prisoner's of detail about secretary rumsfeld's personal responsibil- 70 nos. 10-1687 & 10-2442 the supreme court has developed a two-step test for subjected to physical and psychological torture for the preserve unimpaired the constitutional safeguards of marize the detailed allegations of secretary rumsfeld's tional rights. see, e.g., wilson v. seiter, 501 u.s. 294, 304 fraud and corruption among american workers in a intrusion into matters of national security." see wilson, rogation techniques, either in isolation or as applied to see ali v. rumsfeld, ___ f.3d ___, 2011 wl 2462851, tive procedure act provides that the right of judicial ment and the citizens of this country. the defendants or extinguish any defense or protection otherwise should not extend to suits by wartime detainees. see this special factors analysis, we note first the breadth of owner of a neutral vessel seized pursuant to orders from of the military, whether high or low, should have im- in iraq for help. they were told that they should is entitled to have his claim survive a motion to broader holding about whether other future claims or failed to act despite his knowledge of a substantial cedure. circuit and district courts have not yet identified a earlier authorized. ¶ 252. the plaintiffs allege that reports the claim showing that the pleader is entitled to relief." a legitimate explanation for the policy -- the "nondiscrimin- to extend implied actions into a new context. first, if of allowing plaintiffs, u.s. citizens, to proceed with that the courts must simply defer to executive authorities ernment accountability project in support of the committee against torture, ¶ 5 (apr. 28, 2006), available at declined to recognize an alien's bivens claim for "extra- the secretary of defense shall ensure that policies are right by statute. in bivens, the plaintiff sued federal any broader immunity might apply). in this case, predicates for deliberate indifference in the military context line of cases shows that when congress has acted to address the cluded sensory deprivation, light control, and the use infliction of such treatment on u.s. citizens, even in a as this to obstruct the foreign policy of our government in section 1091(b). actions have been allowed. but these cases are to classify the field manual, but that the "december field the alien plaintiff to proceed with a bivens claim "would safe to affirm that punishments of torture . . . are most recently, in boumediene, the supreme court who were under the impression that they had been question that the seizure of plaintiffs' property was an easy question to answer"); see also swanson, 614 f.3d at 411 was inflicted by americans, some military officials claim against military police officer and secretary of the techniques that violate the constitution and instructing s. ct. 1937, 1949 (2009). we do not vouch for the truth of part of the judiciary act of 1789, to show that "congress iqbal, 129 s. ct. at 1949, we agree with the district court ertel were then taken to separate cells and held in pleading, the second amended complaint. contrary, it is as old as government. year 2005, which reaffirmed the u.s. prohibition against in that country under its torture victim protection law of reports of detainee abuse. 114 u.s. 15, 44 (1885); see also munaf, 553 u.s. at statute without providing for a private civil right of § 2340b ("nothing in this chapter shall be construed . . . under alien tort statute for damages for violation of statutory or constitutional rights of which a reasonable ensure that claims which do not state a plausible claim us to hesitate before taking this first step. unfortunately, our dissenting colleague argues that we should leave the15 prives someone of his or her protected liberty interest (7th cir. 2010); airborne beepers & video, inc. v. at&t mobility guantanamo bay were entitled to seek a writ of civilian u.s. citizens who can prove that their own gov- not the courts'.1 any bar to claims under these circumstances. in fact, cedure act to recover personal property that was seized ment subject to immediate appeal, so we have juris- military personnel seized plaintiffs' property "in the for a thoughtful discussion of some of these issues, see24 issued jumpsuits. ¶ 140. they were instructed to keep (continued...) sonable government official could have believed in 2006 tiffs. see muscarello v. ogle county bd. of comm'rs, 610 our dissenting colleague contends that recognizing a bivens20 reverse the district court's decision on that claim. u.s. 250, 257 n.5 (2006). we have jurisdiction over the authority have no other source. it can only act in sufficient detail facts supporting secretary rumsfeld's 58 nos. 10-1687 & 10-2442 "shocks the conscience." vance, 694 f. supp. 2d at 966. day and allowed to go to the bathroom twice a day. during detention. the detailed complaint provided in connection with a military investigation. second, the bivens claims in the context of reviewing military actions and not alleged more than "vague, cursory, and conclusory whether a bivens action should be permitted under the that included isolation for up to 30 days, dietary manip- federal court. see iqbal, 129 s. ct. at 1948, citing, e.g., dunlop provided none at all -- no precedent that clearly estab- theories and their allegations concerning the defendants' we do not believe that this is the kind of comprehensive edy. as we have concluded in other bivens cases, "without 48 nos. 10-1687 & 10-2442 federal official, from the very top of the chain of com- should not be overlooked. the defendants contend that a plaintiff seeking damages from the secretary of these pleading rules are meant to " `focus litigation on cluding after iqbal that "§ 1983 allows a plaintiff to 29 interrogation techniques (the "iraq list"), which in- or the seven-day requirement from the patriot act to u.s. 194, an important but now overruled qualified im- and driven to camp prosperity, a u.s. military compound federal officials' violations of federal law, and individuals civilians may sue military personnel who violate their defendant, through the official's own individual actions, nos. 10-1687 & 10-2442 3 day that congress passed the detainee treatment act dants themselves acknowledge that, if properly pled, administrative procedure act is reversed. chain of command, investigated, and remedied under dod mand to the very bottom. we disagree and conclude "green zone" in baghdad. ¶¶ 33-39. over time, vance which was a discrimination case, where the plaintiff if a prisoner was kept awake as much as possible, kept of action). (opn. at 56) of excessive physical force against a prisoner may consti- personally created the policies that authorized and led as the supreme court said in iqbal, "[t]he factors neces- a neutral vessel seized pursuant to orders from detainees who were known or potential terrorists, whereas argument is not persuasive. those cases also involve some the lashing of inmates with a "wooden-handled leather decision in no. 10-2442, concluding that the district court protection act. if we accepted defendants' argument in cause hearing when detained in a war zone. any most basic social compact -- between "we the people" u.s. citizen in a war zone. into the whereabouts of their property while the conflict bivens claim alleging that he was forced to live in distinguishable because of the nature of the alleged constitu- later granted the government's motion to stay proceedings, v. rumsfeld, 542 u.s. 507 (2004). those procedural issues question of remedies entirely to congress. although we dis- interrogation of alien detainees suspected of and the eighth amendment in examining the plaintiffs' claims. precedent for guidance. for a common-law tribunal, paying particular heed, questions before the court. otherwise, given the severity as great as the eighth amendment protections available to a nos. 10-1687 & 10-2442 59 person would have known"); halperin v. kissinger, 606 f. supp. 2d 80, 83 (d.d.c. 2008) (finding that the "fourth stat. not. § 1002 (limiting interrogation techniques to military. neither case provides a basis for rejecting a bivens we hope that the serious claims before us are truly unusual,16 in insufferably cold conditions, and not given sufficient (n.d. ill. 2010). the district court also denied the gov- might be different for an alien's similar claim. such an tiffs were released from custody in 2006. ¶¶ 244, 252. all matters concerning wartime detention and interroga- correspondence, and in various reports by governmental the second step of the bivens inquiry is to make "the in a case involving alleged torture of a u.s citizen in the court has sustained a complaint alleging that former- whether the alleged rights were clearly established. "the allege that secretary rumsfeld also knew of other in- also argue that plaintiffs did not specify how long tions). if a party can win reversal with such new elaborations diction over secretary rumsfeld's appeal, docketed as we agree with the district court that the plaintiffs have prescribed not later than 150 days after the date of the security in open court. the commonsense under- accessed aug. 4, 2011). "according to ltg sanchez, the septem- mander of camp cropper, who said there was nothing torture. we affirm the district court's decision to deny sufficient "alternative remedy" for the alleged constitu- parently, neither does the government; its brief does not rely complaint to remedy any perceived defects. basic fairness shelter, and clothing of the detainees. ¶ 239. 52 nos. 10-1687 & 10-2442 whether the courts will review constitutional claims in this litigation is not a bar to allowing it to go forward claim by a civilian against a military official. matters of warmaking" rest with the executive. hamdi, diction." id. at 575-76. fear of the judiciary "intruding" 446 u.s. 14, the supreme court reversed dismissal of a this stage to allege personal involvement. see, e.g., doyle army field manual. ¶ 244. they allege that on the same detained incommunicado, in solitary confinement, and second step is to consider whether "special factors" lead courts to extend the reasoning in those cases to the . . . treatment . . . [and] interrogation . . . of detainees." damages from secretary rumsfeld and others for their vention against torture and other cruel, inhuman, or vidual capacity, as well as unidentified defendants. the4 the wrongdoing alleged here violates the most basic while vance and ertel were detained and interrogated, pub. l. 109-148, § 1002(a), 119 stat. 2680, 2739 (2005), alone convicted of, any crime, our precedents con- that a bivens remedy is not appropriate here. significant pitfalls of judicial entanglement in military roles in creating and carrying out policies that caused authority of the executive in military and national fourth, the court cites recent supreme court habeas aides and advisors of the president of the united states munity case, was a fourth amendment excessive under the united states constitution, not the detainee treat- states law provides to aliens tortured by their govern- secretary rumsfeld acted with deliberate indifference subordinates are liable if the enforcement of the policy this is not a case where the precise violation must and iqbal and twombly. plaintiffs also brought a claim against the united states b. qualified immunity from the denial of a motion to dismiss, we assume the 770 f.2d at 209. qualified immunity on the defense theory that a rea- for the sake of argument that the first prong is satisfied [county of riverside v. mclaughlin, 500 u.s. 44 (1991)] conflict, it most assuredly envisions a role for all and the failure to furnish essential medical care, if addendum to a new army field manual . . ."). the plaintiffs nos. 10-1687 & 10-2442 9 42 u.s.c. § 1983, authorizes civil lawsuits against state this lawsuit by two u.s. citizens challenging their have sufficiently alleged not only secretary rumsfeld's tutional violations. see iqbal, 129 s. ct. at 1948-49; alejo citizenship who challenged an alleged u.s. presidential nity to cure the defect unless it were clear that the defect to decide qualified immunity, we turn next to member of the armed forces under bivens. both decisions (finding that a warden is "not liable for an isolated and maltreatment of person subject to his orders shall cessed aug. 4, 2011). this report, addressed from former second, the opportunity to complain offers no actual constitutional inquiry here requires this court to "wade into a u.s. court could hear the case against a defendant 592 f.2d 712 (3d cir. 1979), to distinguish between a different and unconstitutional subjective purpose. see id. ments, plaintiffs are not asserting a broad challenge to accountable when they exercise power irresponsibly is required to provide a "short and plain statement of personally directed or authorized his subordinates to inflict. extensive. in any event, these are disputes of fact that cannot every enlisted soldier in the war zone and every officer abuse and reforming the policies causing it." ¶ 252. in- with the international obligations and laws of the tected rights have been invaded, it has been the rule 2600, 2635, codified at 28 u.s.c. § 2241(e)(2). congress f.3d 431, 435 (2d cir. 2003) (concluding that supervisory more of a pleading argument to extend iqbal and individual responsibilities. 532 n.5, citing judge brown's concurrence in rasul v. concerns of these amici were manifest in kar. in that against civil claims by alien detainees suspected of terror- not) of a cause of action for civil remedies. to statutory provisions and stated military policy, as terrorism] it shall be a defense that such officer, em- the plaintiffs allege in detail they suffered at the hands quoted passage, but it indicates only that congress did not despite this criticism, bivens remains the law of the land, and for defendants). the plaintiffs have alleged sufficient structuring judgments about whether a particular tiffs in granting the defendants qualified immunity, complaint, as permitted on appeal of a rule 12(b)(6) decision relevant, dispositive inquiry in determining whether a that the abuse plaintiffs have alleged was not unconstitu- no steps to foreclose a citizen's use of bivens. we can bivens; (b) that secretary rumsfeld is not entitled to although the defendants do not argue that there is an officials. the supreme court recognized in bivens, how- them by the u.s. military when they were detained.25 41, 252. in may 2003, the international red cross this right when the statutory remedy is wholly inade- constitutional rights. for example, saucier v. katz, 533 plaintiffs' alleged torture. plaintiffs also bring a claim the detention or interrogation policies of the united landscape, so it is significant that congress has taken then the more general principles that apply to the codified at 10 u.s.c. § 801, stat. note § 1092. the made in the foreign affairs context when they must, that and local government officials for the deprivation of of property expropriated by the hungarian government `in combination' when each would not do so alone, but argument is not convincing. today we decide only the committed against u.s. citizens. the defense theory (9th cir. 1990) (affirming denial of qualified immunity); detainee treatment act, secretary rumsfeld continued umes," and they were deprived of mental stimulus. ¶¶ 21, they each had a thin mat on concrete on which to after two or three hours of sleep, vance and ertel, into matters affecting national security and military program, traded liquor to american soldiers in might keep plaintiffs out of court." brooks v. ross, 578 f.3d were kept intolerably cold, except when the generators does not appear to appreciate just how much judicial in secretary rumsfeld's position in 2006 would have a supervisor may be liable as an individual for wrongs he case, a u.s. citizen alleges that he went to iraq to make vestigative reports into detainee abuse in iraq, including not sufficiently developed with respect to the treatment were continuously deprived of sleep, and were often procedure act (apa) bar, inc., 623 f.3d 1143, 1146-47 (7th cir. 2010) (concluding employees of contractors (or others) will the court defenseless to serious abuse or worse by another branch foreign government has denied her a civil remedy, then military officials, who recovered it from a search of an army 620 f.3d 739, 744 (7th cir. 2010) (borrowing eighth amend- be stripped away just because he happens to be in vance, 694 f. supp. 2d at 964; see also al-kidd v. ashcroft, the defendants rely on two circuit decisions denying stephens, 247 f. supp. 683 (e.d. ark. 1965) (describing misses the point entirely, however. i emphasize once again the situation he confronted." brosseau v. haugen, 543 u.s. distributing weapons to insurgent and terrorist groups. ¶¶ 179- or other wrongdoing, nor were they designated against military personnel. see, e.g., case v. milewski, 327 single jumpsuit and a thin plastic mat. the defendants 56 nos. 10-1687 & 10-2442 tary rumsfeld and the united states have appealed, a historical documentary film, was arrested by iraqi wilkie provides a helpful and recent guide for its application. such claims against u.s. officials heard in u.s. courts.22 ment act, which does not provide for a private right of action. agent did not know that the practices were unlawful there had been more than 800 investigations by military law states courts, and the entire united states government, any alternative, existing process for protecting the he noticed, for example, that shield group security review and reverse the district court's decision on this also authorized additional harsh techniques if he ap- not the courts, that extends the remedy and defines ali, ___ f.3d ___, 2011 wl 2462851, at *6; arar, while vance was home in chicago for his father's funeral, military custody in a war zone. see, e.g., ronald w. we agree first, applying the standards of federal rule writ of habeas corpus to challenge their detention: personal responsibility arguments, which are primarily policies that did not even apply to u.s. citizens in iraq, (continued...) then apply the two-step process the supreme court has sary--i agree with the court that allegations of torture of a bivens remedy for torture of civilian u.s. citizens in f.2d 1192 (d.c. cir. 1979) (concluding that senior (2008), boumediene v. bush, 553 u.s. 723 (2008), and hamdi approved a new, classified set of interrogation methods . . . iraq signed a memorandum authorizing the use of difficult issues in applying the bivens special factors given [the defendant] sufficient notice to require affirma- to evaluate the impact of a new species of litigation apply when it enacted legislation relevant to detainee rumsfeld secretly sought to add permissible techniques en banc second circuit have both concluded that bivens stay out of all matters implicating national security is preparation for, or in the aftermath of, battle"). dressing closely related problems. in considering and were, in any case, rescinded before the plaintiffs cognizable under bivens. 92 nos. 10-1687 & 10-2442 bay that, "[c]ontrary to . . . the then-governing army those authorized in the army field manual). (...continued)5 (continued...) to "ensure" that detainees in custody of the united torture of united states citizens. however, the most united states government in a humane manner nos. 10-1687 & 10-2442 71 available to prisoners who assert that they have been needs); saucier, 533 u.s. 194 (holding that military police field manual 34-52 . . . included the use of 20-hour inter- allegations of violations of substantive due process, the and detained at camp cropper for two months. al- supreme court held that where the plaintiff's seizure under stitution and the geneva conventions. pl. br. at 7. the folded, and issued jumpsuits. ¶ 145. they were then the plaintiffs have presented and briefed their claim as a10 detention on u.s. soil and detention in hostile territory. research service (may 13, 2011). cause the army's failure to act was "neither in the field security benefits, in schweiker v. chilicky, 487 u.s. 412 "confusion and disarray among judges and lawyers" in their chins to their chests and not to speak. they in military decisionmaking, it must be congress, v. fitzgerald, 457 u.s. at 818 (concluding that senior found in the u.s. it would be extraordinary -- one personally established the relevant policies that caused of revere v. massachusetts gen. hosp., 463 u.s. 239, 244 (1983). the d.c. circuit followed that reasoning in rasul v. factors and precedents that should control this case. the getting sidetracked. what we are asked to decide is tion (from years ago) might be implicated at some point argument that "special factors" preclude the recognition see also, e.g., schweiker v. chilicky, 487 u.s. 412, 421-23 humane manner despite his knowledge of widespread the plaintiffs elaborate on the september 2003 policy in their6 90 nos. 10-1687 & 10-2442 status"). taken and decisions made while serving at the highest erate torture perpetrated under color of official the supreme court explained in pearson v. callahan, 129 cropper, a u.s. military prison in iraq in 2006, during the some discovery so the plaintiffs could identify other defen- familiar this aspect of their claim is. standard is not akin to a `probability requirement,' but would immunize not only the secretary of defense but here the plaintiffs "have not been charged with, let alone "excessive force" inflicted on them. ¶ 141. vance and risk of serious harm"); gayton v. mccoy, 593 f.3d 610, proaches the "special factors" analysis in this case by rasul ii court found that the defendants were immune see schweiker, 487 u.s. at 425. the situation before us is and the liberal amendment policy under federal rule of civil i. factual and procedural background victory in iraq, but plaintiffs are still missing other personal however, "[t]he protections for pre-trial detainees are `at least 2. the rights were clearly established the applicable pleading requirements. we then sum- detainee treatment act is plausible and supports to create new law. for decades, the supreme court make complaints. these amici suggest that vance right thing," they would never be allowed to leave or other agent of the united states government the plaintiffs have adequately alleged that secretary is, when there is an unflagging duty to exercise our juris- defendants' argument to the contrary evaporates upon ali, rasul ii, and sanchez-espinoza do not even hint that conduct he allegedly authorized violated the constitu- personal responsibility for the alleged torture. second, we 20 nos. 10-1687 & 10-2442 rumsfeld. taking the issues in ascending order of breadth, military personnel--and even their cabinet-level sup- said in hamdi: "whatever power the united states con- 1. applicable pleading requirements from detainees. ¶ 236. in september 2003, in response nothing to do with liability under bivens (or any other cause proceed with their bivens claims against secretary a justification of torture."); siderman de blake v. republic which limited allowable interrogation techniques nos. 10-1687 & 10-2442 67 though recognizing that the fourth and fifth amend- against former high-ranking government officials. see out of military affairs rests on the assumption that the the allegations. by seeking dismissal under rule 12(b)(6), would bar relief under the apa because plaintiffs were and even thought of as part of the punishment of pris- plained: "we think that as a general matter the danger kept in extremely cold cells without adequate clothing, defendants suggest "would be necessary to establish by our government, including our military. see iqbal, 129 nos. 10-1687 & 10-2442 31 tive sued for violation of the eighth amendment pro- 62 nos. 10-1687 & 10-2442 the torture of these detainees despite actual knowledge of sufficient severity and duration, would not state care, and . . . `take reasonable measures to guarantee in asserting this broad defense, defendants have in domestic settings. see farmer v. brennan, 511 u.s. plaining about their treatment at the time of their deten- tional rights (against torture or anything else) in a war zone; that attorney general was entitled to qualified im- abused or mistreated by their federal jailors. in carlson, 3. secretary rumsfeld's personal responsibility is pled liberty and national interests." ali, ___ f.3d at ___, 2011 damages remedies for those whose rights are violated rumsfeld was personally responsible for creating the warrant dismissal on the issue of personal responsibility. precedent. all of the cases it cites in its favor addresses has even gone so far as to criminalize overseas torture, tions of military efficiency, national security, and separa- established constitutional right by secretary rumsfeld. vance v. rumsfeld, 2009 wl 2252258 (n.d. ill. 2009). secre- in foreign country). section 1 of the civil rights act of 1871, codified as of civil procedure, 60 duke l. j. 1, 30-31 (2010) (describing criminal investigative command evidence facility at camp cases do establish that a bivens remedy may lie against nos. 10-1687 & 10-2442 23 events. id. while the court has since decided that (concluding that the military authority exception the due process clause rather than the eighth amendment amendment or eighth amendments rights." because the gest that there is any alternative remedial scheme at cerning the abuse of convicted criminals help guide be resolved by a rule 12(b)(6) motion. rogations, isolation for up to 30 days, and sensory dep- 78 nos. 10-1687 & 10-2442 76 nos. 10-1687 & 10-2442 government's checks and balances that preserve ameri- ment (count i). the district court concluded that plain- were based on the unique disciplinary structure within the 24 nos. 10-1687 & 10-2442 majority in arar was concerned in large part about the examining the plaintiffs' claims against the backdrop cruel, inhuman, and degrading techniques, such as those however, the defendants assert a broad immunity from damages against federal officials for constitutional viola- ulation, and sleep deprivation (the "2003 list"). ¶ 234. in (...continued)6 readily distinguishable from those before us, where another land. this is not a novel concept. to the directed that the techniques in place at guantanamo bay citizens by u.s. military personnel in a war zone. we see remedies that the plaintiffs have not pursued, contrary to nizing a remedy at this stage, in this case. at 378, quoted in wilkie, 551 u.s. at 550. articulated facts that, if true, would show the violation ciary's involvement in the treatment of detainees held poke holes in a number of the plaintiffs' allegations, but the notice pleading standard under rule 8 of the nos. 10-1687 & 10-2442 27 in sum, we are not convinced by the defendants' argu- freestanding remedy in damages." wilkie, 551 u.s. at enactment . . . to ensure that members of the armed but found themselves detained in prison and tortured foreign policy implications were hardly the only special agree with the district court that secretary rumsfeld is not against him and stated plausible claims that satisfy rule 8 been tortured by her own government, and if that court labels such concerns "not convincing." (opn. group security then used or sold for a profit. ¶ 95. nos. 10-1687 & 10-2442 7 v. bishop, 268 f. supp. 804 (e.d. ark. 1967) (describing the challenging because they arose in a u.s. military tions even where congress has not conferred such a course of hostilities in iraq," see 580 f. supp. 2d at 83, the fidential matters of national security from compromise review should take place, and to what extent members the plaintiffs also allege that secretary rumsfeld mental questions about the relationship between the the supreme court, this court, and others have allowed it remains one vital way of ensuring that fundamental guaran- approved the techniques, nor that the addendum was ever (2d cir. 1986). while such claims often fail on the merits sistent with international obligations and laws of the in between. the defense theory would immunize them id. at 5-6. the general proposition remains vital, as alleged they were tortured, either directly by the u.s. before manion, evans, and hamilton, circuit judges. nizing a judicial remedy here. congress has enacted official `must both be aware of facts from which the and ertel, two young american civilians, independently 297 f. supp. 2d 119, 129 (d.d.c. 2003) (finding that the f.3d 416, 421 (7th cir. 2010), citing ashcroft v. iqbal, 129 should not be dismissed). by secretary rumsfeld. examining these particular al- custody could not sue under bivens for claims of torture. and subjected to torturous techniques forbidden by the the defendants offer a final argument that the law was significant impact of the court's holding is its extension are undoubtedly difficult. but they shed no useful light detention in a "sterilized system." no name tags were worn convicted of, any terrorist activity." (opn. at 67) but the plain- consensus and, for the first time ever, recognizes a four justices: rights of which a reasonable person would have on appeal, the plaintiffs cite a newspaper article reporting on8 program for dealing so harshly with detainees, however, (3) its unsuccessful attempt to distinguish precedent tion, the two americans worked for a privately-owned about the plaintiffs' loyalty to the firm. on april 14, 2006, for broader relief, 404 f.2d 571 (8th cir. 1968) (blackmun, j.). tion of the united states. could not be cured. like this, but we hope and expect that allegations of longer be held "in the field," and allowed the claim to constitution. be prohibited. such a policy or custom to continue."). prohibition against torture and the remedies united assured that u.s. forces would come to rescue them. ¶ 124. classified pages to the field manual, which included warship was "answerable in damages" to the owner of sessions, we would have no trouble acknowledging that sponsibility for their treatment, as required under claims in no. 10-1687, concluding in this sequence, from tiffs have pled, at the highest levels of the federal gov- ing." ar 190-8, § 6-9. the matter must be reported up the initial seizure of property. we find jaffee inapposite. there, former members of the joint chiefs of staff in support of contend that secretary rumsfeld eventually abandoned efforts the right sufficiently clear, a controlling case on point is 84 nos. 10-1687 & 10-2442 of congressional authorization to wage war. the damages claims against military officials accused of alien could have his own government intervene to protect failure to act years after the korean war had officially brief, noting that the senate armed services committee 559, 635 (2d cir. 2009). the court vaults over this finally, while a supervisor's mere "knowledge and i dissent because sorting out the appropriate remedies accordance with all the limitations imposed by the (1991) (clarifying that "[s]ome conditions of confine- wrongs committed by military officials are all familiar tional violation is patently obvious and the contours of criminal liability, or damages, or to provide immunity time of war." 5 u.s.c. §701(b)(1)(g). there can be no doubt that if a federal official, even anything like the "frequent and intense" attention it cials, including secretary rumsfeld. ali v. rumsfeld, ___ he could do about their treatment.14 courts have been more than willing to defer to congressional denial of procedural due process (count ii) and denial defendants suggest, "the ultimate arbiters of u.s. seized by and remains in the custody of military they allege, for example, that they experienced "hooding" against current and former cabinet officials are permit- in analogous cases involving prison and school officials secretary of defense schlesinger to secretary rumsfeld, noted decision in ashcroft v. al-kidd, 131 s. ct. 2074 (2011). there the prisoner to a post for seven hours in the hot sun); but guards would wake them if they were ever caught i believe is outside the purview of this court to decide. 462 u.s. at 378, quoted in wilkie, 551 u.s. at 550. we custody, they were tortured by u.s. government officials. v. utah, 99 u.s. 130, 136 (1878) (concluding that "it is required from the opposing perspective. our courts have the supreme court's more recent bivens decisions military personnel are permissible; (b) that claims based may enforce the habeas rights of u.s. citizens in u.s. seem to agree, and go so far as to state: the amici note that at the time the plaintiffs were detained, dants. see memorandum opinion and order, dkt. no. 89 ingraham v. wright, 430 u.s. 651, 671 n. 40 (1977) (finding that law enforcement agents for searching his property abuse state claims for violations of the constitutional making. the "constitution recognizes that core strategic see also willson v. cagle, 711 f. supp. 1521, 1526 (n.d. cal. and holding that district courts may recognize private the claimant has not exhausted adequate and available miller v. fenton, 474 u.s. 104, 109 (1985); see also wilkerson the hands and direction of u.s. military officials, contrary we are not persuaded by the defendants' reliance on chappell17 aliens who are tortured by their own governments. discriminatory purpose, the minimum knowledge and was a haunting one -- if vance and ertel did not "do the written response to questions asked by the united nations guarding citizens' rights, even in times of war. the ecution of the individuals responsible for their treat- for any constitutional wrong, including torture and even about detention and interrogation policies relate to trative procedure act. such severe conditions and treatment, the likes of which military personnel if the constitutional violations the court's conclusion. wl 2462851, at *6; see also rasul v. myers, 563 f.3d secrets privilege is the appropriate tool by which congress took action in response to allegations of in bivens jurisprudence, and nothing about their claims another and to hitching posts in the hot sun); hutto v. to allow the plaintiffs constitutional claims to proceed.6 may be held personally liable for the alleged actions of his ters. the court argues--as did judge calabresi in his of torture or worse. we reverse the district court's nos. 10-1687 & 10-2442 13 and expressly provided as much as a matter of sometimes on the false premise that they had discovered personnel in iraq in 2006. plaintiffs were released from suit, it reached the broader bivens issue only in a for civil damages insofar as their conduct does not act decisively and without hesitation in defense of our see also hamdi, 542 u.s. at 536-37 (emphasizing, with while in u.s. custody. on what conceivable basis could government official." id. 16 nos. 10-1687 & 10-2442 available to any person or entity from suit, civil or oners. see, e.g., hope v. pelzer, 536 u.s. 730 (2002) (detailing for these reasons, i dissent from the court's decision tional treatment of a civilian u.s. citizen detainee. see, do not argue that there is an "alternative remedy," torture. (whether he actually did so remains to be "[w]here the state seeks to impose punishment without [an corp., 288 f.3d 305, 307 (7th cir. 2002). we conclude secretary rumsfeld and the united states moved to at the request of a u.s. government official in iraq, a. personal responsibility for torture of u.s. citizens, we have tried to apply the court holds otherwise, but i would point to what i see contains enough detail . . . to indicate that the plaintiff dated otherwise. the plaintiffs' allegation that secretary "deliberate indifference" if the "official acted or failed court concludes that there must be a remedy for these nebulous "core constitutional rights"--while in u.s. detainee mistreatment. see farmer, 511 u.s. at 842 (con- to interrogation techniques that were not authorized by of access to the courts (count iii), but declined to mant, and ertel contributed information as well. ¶¶ 48-49. government or as a result of a u.s. practice of extraordi- families and with no sign of when the harsh physical words, does not invite a broad debate over appropriate lead us to lose sight of the fundamentally different situa- to wrestle with just what those remedies might be. agree with the district court's observation in this case: 44 nos. 10-1687 & 10-2442 were being and would be detained and interrogated claim for the return of property and a challenge to the fourth amendment to challenge search by u.s. officials (continued...) law de novo. see thomas v. general motors acceptance ployee, member of the armed forces, or other united nations assistance mission for iraq, and the tion," haig v. agee, 453 u.s. 280, 292 (1981), and "courts indeed an issue elsewhere in this suit, see infra note 5, ¶ 152. they were often deprived of food and water hamdi court, examining a claim by an american citizen if they did not immediately and correctly comply military custody in iraq could seek petition for the writ of congress"), aff'd, al odah v. united states, 321 f.3d schwartz, section 1983 litigation: claims and defenses, impose liability upon a defendant-supervisor who a military officer, tortured a prisoner in the united states, of argentina, 965 f.2d 699, 717 (9th cir. 1992) (concluding (concluding that the court of appeals appropriately relied on on the possibility that the plaintiffs' property might no in 2005, congress enacted the detainee treatment act, nos. 10-1687 & 10-2442 85 treatment act, it opted to regulate -- not prohibit -- civil punish a citizen who is abroad, the shield which the have never before thought that such immunity is needed the defendants instead argue that plaintiffs have extend to other constitutional violations. instead, the v. munroe, 11 u.s. (7 cranch) 242, 268 (1812) (concluding, in stretching to the very top of the chain of command, it court from reviewing military decisions regarding complaint in which a deceased prisoner's representa- we are confident that the framers meant to forbid abusive 131 f.3d 632 (concluding that district court properly we do not find their arguments convincing, at least at wartime military actions, the d.c. circuit and the stitutional to torture u.s. citizens? see, e.g., 18 u.s.c. detained on u.s. soil as an enemy combatant, held that whether such review would be necessary or wise. the known, is available to united states citizens alleging "rescinded his formal authorization to use those amicus brief urging us to wait for congress to decide how to otherwise apply. a person who, "under actual or apparent authority, or tional violations. the issue in iqbal was not what the we do not argue that well-pled, factually-supported because u.s. law would provide no remedy. that would right is clearly established is whether it would be clear to condone the use of techniques from outside the tive opposes making available such a challenge"). the by their own government, without notice to their though. we think that the plaintiffs' pleadings, if true, ¶ 241.7 mere existence of a statutory or constitutional prohibition."). able, the plaintiff could not pursue a bivens claim on the about whether the plaintiffs have pled a sufficient level involvement in [the] purported unconstitutional con- have been on notice that [alien] plaintiffs had any fifth potential terrorists. judicial involvement in this deli- the district court relied on jaffee v. united states, from civil liability for deliberate torture and even cold- officials for their alleged support of forces bearing arms "creation of a policy or custom that sanctioned conduct which techniques were authorized" and that "the augmented largely beside the point, because they do not concern federal officials and soldiers, at any level, in a war zone. 288 f.3d 305, 307 (7th cir. 2002); wilson v. libby, 535 into any new context, and emphasizes that there are for those two days, the plaintiffs were held incom- cases cited by the district court to support this reasoning of foreign citizens' using the courts in situations such applying iqbal). rule 1 instructs courts to construe the rules federal officials are entitled to either absolute or qualified how prisons could gain more "actionable intelligence" that these rules contemplate"). on its pleadings, then these plaintiffs can defend the denial of detainees), vacated, 129 s. ct. 763 (2008). in rasul i, rather, this case centers on the appropriate remedies bivens claims to continue against military officials, solitary confinement for what they believe was two and procedure generally, nor an ongoing military ac- manion, circuit judge, concurring in part and dissenting for example, that fifth amendment substantive due u.s. forces came to the compound and took vance elaborations are consistent with the pleading. see chavez techniques for guantanamo migrated to . . . iraq where (2002); in re iraq and afghanistan detainees litigation, 479 u.s. 89 (2007), and [iqbal]," and noting that "[t]his is not an exercise of "military authority" by u.s. military per- is the due process clause"). the government suggests that the vance and ertel were never charged with any crime they are actually asserting. contrary to the defense argu- the district court dismissed the plaintiffs' counts ii and iii.23 ment act. congress specifically ordered the secretary undertaken by the military in an active foreign war there, it adopted a two-part test to determine whether f.3d 697, 704 (d.c. cir. 2008). constitutional rights -- would be leaving our citizens nos. 10-1687 & 10-2442 69 matic efforts and lead to embarrassment of our gov- different circumstances of aliens and civilian u.s. citi- visiting such a country with its own tvpa (so he could no persuasive justification in the bivens case law or other- states v. verdugo-urquidez, 494 u.s. 259 (1990) motion to compel), dkt. no. 267 (jun. 14, 2010) (granting review might intrude on difficult and sensitive mat- the district court thought the complaint was sufficient, and11 plaintiffs would raise serious constitutional issues. has to represent a judgment about the best way to imple- to be clear, we read the complaint as asserting claims arising9 exchange for u.s. weapons and ammunition that shield in part. much attention will be focused on the fact that llc, 499 f.3d 663, 666 (7th cir. 2007). the supreme court's rumsfeld's personal responsibility on this theory. plaintiffs to proceed with bivens claims for torture and provide to protect his life and liberty should not nothing about whether the courts should give the are all readily distinguishable. see, e.g., doe v. rumsfeld, persuaded by the argument that a bivens remedy should that should cause us to hesitate and wait for congress to and authorized policies that permit the use of torture tions. the defendants have not attempted to do so. as the congressional research service reported that, as of tions train collided with them), aff'd mem., 900 f.2d 263 defense and members of the joint chiefs of staff filed an bell v. wolfish, 441 u.s. 520, 537 n. 16 (1979) (emphasis added) way possesses responsibility for the continued operation at this stage in the litigation to demonstrate . . . personal hibition on cruel and unusual punishment, in that case that caused the constitutional deprivations . . . suffice volve significant amounts of classified materials, gen- with the court, it is important to stress the proper nanda v. moss, 412 f.3d 836, 844 (7th cir. 2005). given very people who are responsible for torturing them. right not to be deprived of liberty without substantive ecution within the military itself. relying solely on the truth of all well-pled allegations in the complaint, viewing (continued...) in liberty." id. at 395. the bivens remedy has been nos. 10-1687 & 10-2442 61 does not extend to the exercise of military authority "in liability under § 1983 may be shown, inter alia, by we also are not persuaded by the defendants' argument set of facts and allegations, u.s. citizenship or permanent the detention of individuals -- citizen and non-citizen to resolve the qualified immunity defense, we use the and ertel to the u.s. embassy for questioning. ¶¶ 125-31. ernment tortured them. rather than clarifies, an already complex and confusing issue. on how a reasonable federal official might have thought the resolution of the special factors analysis is straight- baghdad to find their way home. ¶¶ 208, 210. vance and the opportunity to appear before an impartial adjudicator. the techniques are included in a 10-page classified very different: congress has not given civilian u.s. the court's citations seem to acknowledge this lack of holds that a "bivens remedy," as implied causes of action vaccinations because claims did not challenge "military b. procedural history detention. "what are the allowable limits of military the circumstances rather than a formalistic examination complaint. can draw sound guidance from many precedents ad- we must at this stage, this is exactly what the plain- remedies in new contexts. bivens does not provide an tion, and liability when they perform their duties rea- to civilian u.s. citizens in a war zone, at least for claims to the administrative procedure act. for the military to carry out its missions.16 ¶ 233. instead, he authorized the use of techniques victed criminals in u.s. prisons. the allegations of v. wallace, 462 u.s. 296 (1983), and united states v. stanley, details to conclude at this stage of the proceedings circumstances. we do so below in our discussion of habeas corpus jurisprudence; and finally (5) the failure to covert, 354 u.s. 1 (1957), the supreme court held that alleges that " `abuses occurring . . . were highly nos. 10-1687 & 10-2442 15 81 (7th cir. 2005) (holding that allegations of dental authorization act for fiscal year 2005, 10 u.s.c. § 801, stat. of the allegations and the controversy surrounding element contributing to uncertainties in the field as to to the party asserting the injury . . . the facts alleged forward. if anything qualifies as a "special factor[] coun- and "should not impinge inappropriately on military determine whether "[t]aken in the light most favorable second step, we then weigh and reject the defendants' were detained. we are not persuaded by this argument. 2011). this answer was in response to a question about the member of congress for sex discrimination in employ- infringe on the core role of the military for the courts difficult issues posed by aliens' claims should not (7th cir. 1992) (reversing dismissal based on new elabora- 60 nos. 10-1687 & 10-2442 proved them in advance. ¶ 235. code names for each other. the magistrate judge ordered a pair of overalls to wear during their confinement. america's foreign policy against torture." pl. br. at 30. would amount to an extraordinary abdication of our lie against military officers and civilian employees of 542 u.s. 466 (2004); doe v. sullivan, 938 f.2d 1370, 1380 can never pursue a bivens action against any u.s. violation of his constitutional rights. see, e.g., hudson v. the pleading stage under rule 12(b)(6). the defendants sonnel stationed in iraq. vance and ertel acknowledge in open court. see arar, 585 f.3d at 635 (calabresi, j. 20, 2008), available at http://www.armed-services.senate.gov/ violate the prisoner's constitutional rights. see estelle, the military" for protesters injured when a military muni- in count iii, the plaintiffs contended that they were denied following their release, the plaintiffs sued former alike -- seized in a foreign war zone." on this point, 42 nos. 10-1687 & 10-2442 nos. 10-1687 & 10-2442 vance copied and shared shield group security an active war zone. present case law requires a very a similar distinction applies to the supreme court's recent solutions. an administrative system that encourages detainees to and the d.c. circuit has consistently referred to the risk against military personnel that arise in an active war 620 (7th cir. 2010) (citations omitted) ("simply put, an process inquiry requires "an appraisal of the totality of an inadequate alternative to habeas corpus. 553 u.s. at kind of remedial determination that is appropriate for a the court also stresses that the judicial scrutiny in edly because of a policy that kept prisoners separate because tion posed by the claims of civilian u.s. citizens in this lawyer or a court. ¶¶ 163-64. personnel (155,000) than uniformed personnel (145,000) in relevant context, as in social security and civil service cases, "security internees" because they worked for a business that the rule 12(b)(6) stage of the proceedings.8 in iraq to help "rebuild the country and achieve democ- failed. id. there were bugs and feces on the walls of decisionmaking, it must be congress, not the courts, by the anonymous u.s. officials working as guards. ¶ 157. their constitutional rights against former secretary of that outside documentation of detainee abuse, such as subordinates under the plaintiffs' allegations. the court identi- to dismiss. with discovery of the identities of the indi- our government. see, e.g., boumediene, 553 u.s. at 742 recently, "[p]risoners retain the essence of human dignity ment may establish an eighth amendment violation i concur, however, in the court's dismissal of the plaintiffs'1 proper authorities. days. ¶¶ 142-43. its limits. tainees to the standards set forth in the detainee treat- that "the changes in dod interrogation policies . . . were an s. ct. 808, 815 (2009), the doctrine "balances two violations by military personnel in an active war zone. military to police its own treatment of civilians, however, ¶¶ 151, 153-55. the panel invited this elaboration on the plaintiffs'14 defendants argue, for example, that this could include is sufficiently acute that we must leave to congress by camp cropper officials, and the american guards had v. camelot care centers, inc., 305 f.3d 603, 615 (7th cir. sobering claims that they were tortured by u.s. military to pursue their constitutional challenges against vance and ertel to pursue a cause of action under bivens. "casual sidestep." there is no circuit court decision with "merely precatory." davis v. passman, 442 u.s. 228, 242 civilian members of military families could not be tried that the united states was at war in iraq). third, the ("extraordinary rendition" case). those claims by aliens 2002) (finding under 42 u.s.c. § 1983 that allegations sufficiently that he was "personally responsible for developing, consider state secrets and even reexamine judgments cold-blooded murder, if the wrong occurs in a war zone. of a policy the enforcement (by the defendant-super- we agree with the district court that plaintiffs have doctrines, substantive due process." see tun v. whitticker, 398 36 nos. 10-1687 & 10-2442 claim against military police for search of vehicle); tute cruel and unusual punishment even where prisoner liability." first, while secretary rumsfeld did not per- allowed a few telephone calls to their families but were bivens claim against prison officials who were delib- defense.gov/news/aug2004/d20040824finalreport.pdf (last ac- for instance, that secretary rumsfeld sent major general intimidated: it allows a risk, that the law is already at protecting the interest amounts to a convincing reason problems constitute objectively serious harm under the iraq and afghanistan. in iraq, as of march 2011, there ii. analysis footnote, concluding in the alternative that the plaintiffs' sheriff's dep't, 306 f.3d 515, 517 (7th cir. 2002), quoting city their reasoning would extend to bar bivens claims by with the precise constitutional contours applicable to has cautioned that such decisions should be left to con- statute broadly authorizes similar suits against federal that the key elements of plaintiffs' claims are well estab- alleged seizure of the property occurred in 2006 in the the eighth amendment prohibition against cruel and nos. 10-1687 & 10-2442 81 at 82, 88. there is in fact no such consensus to vault over, nor a recent decisions in iqbal and twombly have created new uncer- to create causes of action-decreeing them to be `implied' by the forces, and all persons acting . . . within facilities of finement. vance's requests for clergy visits were denied, u.s. 378, 401 (1932). clearly established as to defeat qualified immunity. tion. with instructions. ¶ 158. the plaintiffs allege that this a long history -- more than 200 years -- of providing kind of remedial determination that is appropriate policy allowing extraordinary rendition and torture by sought post-deprivation remedies against federal officials in be punished as a court-martial may direct). congress we think they are sufficiently pled to survive the motion many "special factors" present in this particular context their role in the creation and administration of an were a constant for the duration of their detention, as beyond the sleep deprivation and the harsh and bill of rights and other parts of the constitution ¶¶ 143-44. pointed out in arar, 585 f.3d at 619 (parker, j., dissenting). details of the already detailed pleading, through an unusually qualified immunity does not protect secretary rumsfeld the applicable army field manual. this case, in other immunity. alvarado v. litscher, 267 f.3d 648, 651 (7th cir. that some judicial review in this area may not be neces- sharing of sensitive information with the u.s. govern- denying in part secretary rumsfeld's motion to dis- process claims. vance v. rumsfeld, 694 f. supp. 2d 957 1. step one -- alternative remedies tion of powers constitute "special factors counseling there are adequate alternative remedies, there is no josé a. cabranes, our imperial criminal procedure: problems in creates, promulgates, implements, or in some other as difficult as torture claims by aliens may be, we special factors handle alleged constitutional violations by military personnel. applicable laws and, if so, who was responsible for that the plaintiffs were frequently in touch with their gov- see, e.g., swanson v. citibank n.a., 614 f.3d 400, 403 (7th cir. pleading requirements for bivens claims, including those § 2340a (statute criminalizing overseas torture); con- created a good faith defense in civil and criminal cases stead, the plaintiffs allege, secretary rumsfeld took a system that might impose discipline or criminal pros- sponsible for creating the policies, practices and customs see 18 u.s.c. § 2340a, but explicitly provided that it they argue, though, that because congress has passed (reversing dismissal in relevant part based on such new elab- due process of law. remedies in schweiker or the federal civil service pro- the military policies underlying this case, we risk closely associated with shield group security, including 80. the plaintiffs adamantly deny any wrongdoing and which is after all "in a far better position than a court procedure rule 15(a)(2) would require that plaintiffs be given military personnel seized all of their personal property, was required to plead that the defendant acted with torture, and congress has seen litigation against offi- d. military authority exception to the administrative "alternative remedy" for the plaintiffs, an amicus brief officials. enormous numbers of civilian contractors working in the publications/detainee report final_april 22 2009.pdf (last cruel, inhuman, and degrading treatment, which have addition to these formal policies, secretary rumsfeld for officials who believed that their actions were legal 86 nos. 10-1687 & 10-2442 unusual punishment. the basic concept underlying the in saucier v. katz, 533 u.s. 194, 200-01 (2001). we first the brig under military supervision. the voluminous person to torture or extrajudicial killing. section 2(b) authorized corporal punishment program) and jackson factors at play in those decisions. in its en banc decision cold." cf. fed. r. civ. p. 84 and forms 10-15 (sample in iraq is ongoing. they confiscated the credentials that allowed plaintiffs (continued...) inherent in all persons. respect for that dignity animates important interests -- the need to hold public officials as the defendants acknowledge, a substantive due see, e.g., hope, 536 u.s. at 741 (reversing grant of army chemical warfare experiment in which her father the actual prosecution of a war, and recognize that the for violations of constitutional rights have come to be so do we. but even if we found some inadequacy in the necessary nor available. the court has reached this prohibition against official torture has attained that that they were tortured in u.s. custody in those secretary of defense donald rumsfeld, in his indi- secretary rumsfeld had earlier authorized, and which cials of other nations as an important tool to implement itself entail significant judicial intrusion in national secu- to balance the competing needs for national security action directly under the constitution to recover statute, 28 u.s.c. § 1291. see behrens v. pelletier, 516 without charges, have pled in detail allegations of entitled to qualified immunity on the pleadings. the party whose pleading is being attacked on appeal under heady days in which this court assumed common-law powers hesitate and allow congress to create an appropriate suit under bivens, claiming that civilian u.s. citizens was not creating a new civil right of action. see 18 u.s.c. attempt to apply the two-day requirement from plaintiffs a civil remedy if they can prove their allega- the plaintiffs cite the torture victim protection act erately indifferent to prisoner's serious medical a violation of their constitutional right to substantive due rasul ii or sanchez-espinoza, indicates that those courts there was no suggestion that the civilian could not sue authority exercised in the field in a time of war or in traordinary allegations now before us." (opn. at 73) that human need such as food, warmth, or exercise -- for discretion to subject detainees to interrogation methods and afghan citizens detained abroad in u.s. military conforming the treatment of the detainees in iraq to dissenting opinion in arar--that the state secret citizens who are tortured--and perhaps to other, they were physically threatened, abused, and assaulted before authorizing a new kind of federal litigation." bush, the defendants also suggest that the plaintiffs did not would not know the practices were unlawful . . . . the defendants' theory would apply to any soldier or 170, 178-79 (1804) (holding that commander of a they make a strong case that there are adequate alternative applied for deciding when a bivens remedy should be to preclude bivens remedies in schweiker and bush. a bivens remedy for civilian u.s. citizens tortured in treatment lasted for the duration of their detention tainties about the level of detail required in pleadings under def. br. 50. we concur with that view. viewing the com- sufficient factual information from which to evaluate of bivens v. six unknown named agents of federal bureau of president but in violation of statute). proceed to permit discovery to inquire into its present able," certainly for u.s. citizens, even though it chose not defendant, however, is not a basis for rejecting the plain- u.s. citizen in u.s. military custody. and we consider their appeals pursuant to 28 u.s.c. § 1291 in wartime, rather than exploring an uncharted maze of of the federal rules of civil procedure. we first examine to recover the personal property seized from them at denying a motion to dismiss on the basis of qualified dismiss all claims against them. the district court dis- defense for an air strike in a location beyond the bounds available to victims of torture by federal officials. united states guidance for guantanamo bay. see inquiry into the treatment three branches when individual liberties are at stake." zone, under what conditions and parameters that satisfied with the description of the cells as "extremely tion for their whistleblowing of "high-value information" that precedent from other circuits that bivens should not § 7.19[c], at 7-239 (4th ed. 2010) (noting that "supervisory 542 u.s. at 531. but it is equally clear that "[w]hile we cases it may be appropriate for the district court to order reagan national defense authorization act for fiscal references to [their] conditions of confinement, without disturb the bivens and section 1983 principles holding that dissenting). but sorting out claims of privilege would complaint indicates that the sleep deprivation tactics reports by international organizations, provides some f.3d ___, 2011 wl 2462851 (d.c. cir. june 21, 2011).20 law was clearly established in 2006 that the treatment hamdi, 542 u.s. at 535, quoting sterling v. constantin, 287 rizing a new kind of federal litigation." bush, 462 u.s. 403 u.s. at 392, quoting bell v. hood, 327 u.s. 678, 684 statute "extends to american citizens held overseas by but primarily the issue before us is whether or not there that "it would be unthinkable to conclude other than 542 u.s. at 536. the district judge denied the motion to dismiss based moved from their homes in illinois and virginia to work all references to the complaint are to the operative2 and the need to shield officials from harassment, distrac- defense contractors in afghanistan and iraq: background and violation by federal officers." robinson v. sherrod, 631 items seized when they were detained. long before bivens, federal courts provided remedies for12 a difficult related question is whether recognizing problems posed here with a statutory solution. the bivens emphasized the plaintiffs' status as aliens. ___ f.3d at ___, fronted with allegations of constitutional violations in united states); detainee treatment act, 10 u.s.c. § 801, as no. 10-2442, because the district court certified its stationed within the united states to submit to anthrax statutes such as the detainee treatment act or in heard bivens claim alleging injury as part of prison creating a bivens remedy for plaintiffs here"). judge tees in the bill of rights are not hollow, precatory promises. cold, they provide no "factual context, no elaboration, at 902, quoting rochin v. california, 342 u.s. 165, 172 (1952). no action because "this conduct was being carried out the defendants raise the concern that litigation of the the federal rules of civil procedure impose no special effort to prevail in the terrorists' war against us, eventually released and dropped off at the airport in mueller) actually did, but their subjective purposes -- whether 12 nos. 10-1687 & 10-2442 at 550. where congress has provided for an adequate ence.' "). the plaintiffs have plausibly alleged secretary and freestanding remedy in damages." wilkie, 551 u.s. is an implied bivens cause of action directly under the con- we have consolidated the appeals for disposition. turn to their home governments to stand up for their plaints); united states v. stanley, 483 u.s. 669, 680-81 american civilians were trying to do the right thing court's opinion, especially its holding that secretary rumsfeld it would be difficult to reconcile the law of nations' eighth amendment is nothing less than the dignity of in the "red zone" in iraq, the area outside the secure policy and military actions overseas. in sanchez-espinoza exception applies, no additional discovery is necessary are tortured by their governments. it would be extra- nos. 10-1687 & 10-2442 63 of detainees in u.s. custody, committee on armed services (nov. at 88. we respectfully disagree. as the supreme court property claims pursuant to the military authority exception nos. 10-1687 & 10-2442 21 to constitutional violations); richardson v. goord, 347 torture techniques that violate the united states con- their claims that while they were in u.s. military 18 nos. 10-1687 & 10-2442 began reporting on the abuse of detainees in u.s. custody agree, for reasons explained at length in the text, nothing in 2462851 (d.c. cir. june 21, 2011) (detainees in iraq and that it is not a question of deferring to executive authority, policies that caused the alleged unconstitutional torture. the active combat zone in korea. these facts are out precedent that bivens claims have long been duct"); steidl v. gramley, 151 f.3d 739, 741 (7th cir. 1998) the federal material witness statute was objectively reason- ordinates"), rev'd on other grounds, 131 s. ct. 2074 (2011). in u.s. military base). if secretary rumsfeld could be found he believed was done to obtain influence. ¶¶ 41-42. some members of the supreme court have said that bivens13 describe this allegation as speculative and untrue, but arguing that the military detainee context is not that known." harlow v. fitzgerald, 457 u.s. 800, 818 (1982). as civilians and habeas corpus rights for citizens, and have free from torture at the hands of one's own govern- there are "special factors counseling hesitation," courts an officer, employee, member of the armed forces, the safety of the inmates' "). if a prisoner in a u.s. prison forced to undergo costly discovery unless the complaint ernment abroad. stitution envisions for the executive . . . in times of united states court of appeals plaintiffs explained in oral argument that they were limited4 see bagola v. kindt, 131 f.3d 632, 638 (7th cir. 1997).13 leaving for congress the task of addressing the "who," need for an implied bivens remedy. and second, if and the alien tort statute, 28 u.s.c. § 1350, which was pled sufficiently that defendant secretary rumsfeld per- treatment of detainees. it remains to be seen whether the detainee treatment act and the secretary's responsi- authorizing interrogation techniques that amount to violate clearly established statutory or constitutional recent habeas corpus cases reinforce our under- the unique characteristics of a particular suspect, are tion. they challenge only their particular torture at refuse to hear similar claims by a u.s. citizen against and plaintiffs were forbidden to correspond with a "proceed cautiously" in determining whether to allow 28 nos. 10-1687 & 10-2442 hesitation," but should be dealt with on a case-by-case and detention policies were decided, at least as the plain- approved the continued use of the techniques in question seek, consider the possibility that another country has ¶ 2. if the plaintiffs' allegations are true, two young cluding who is (or should be) responsible for making and ongoing iraq war. because this case comes before us1 arranged for vance to continue reporting suspicious nos. 10-1687 & 10-2442 79 court itself alludes), the potential scope of the court's for relief are not allowed to occupy the time of bivens is not an automatic "gap-filler, available when- theory that the seizure was pretextual, based in fact on a second, the court understates the difficulties that 64 nos. 10-1687 & 10-2442 the detainee was entitled to contest the basis for his actually seeking a general review of "military actions an opportunity to cure the defects, if they could, at least 14detain.html (last accessed aug. 4, 2011) ("the army has the defendants suggest that "it is telling" that the plaintiffs18 against the argument that the courts must simply defer to amounting to a constitutional violation, or allowing damages remedy for a claimed constitutional violation nos. 10-1687 & 10-2442 35 under the torture victim protection act, if an alien has manual" was in operation during their detention and was not we affirm the district court's decision on the bivens (...continued)4 there could well have been a violation of his constitu- of a clearly established constitutional right. in fact, the to its own citizens. (scalia, j., concurring) (observing that "bivens is a relic of the it merely forces congress to sort out a difficult issue. to interrogation sessions. ¶¶ 21, 157. plaintiffs also those elaborate and comprehensive remedial systems are readily distinguishable from this case based on the of detainees. finally, we reject the defendants' argument that plain- bill of rights outside of united states territory. we con- i stress again that the lack of an implied cause of action sponsible for not conforming the treatment of the de- that the detainee treatment act superseded the policies trative procedure act claims. it asks for more than a sheer possibility that a defendant to exercise their own time-honored and constitutionally dent it sets. example, a low cell temperature at night combined with detention by his government, simply because the execu- ment standards to analyze pre-trial detainee's claim). seized by "military authority exercised in the field in ernment. we conclude that plaintiffs have sufficiently so yet. secretary rumsfeld and the government points out that the the plaintiffs contend that, after the enactment of the laws of the united states and the policies set forth ous liability is inapplicable to bivens and § 1983 suits, on this internal administrative complaint system. f.3d 839, 842 (7th cir. 2011); see also united states v. omitted).5 secretary of agriculture, ordinarily may be entitled to constitutional muster if the detention had been subject stitutional claims). vance and ertel's property was allegedly seized from and no meaningful alternative remedy exists in statute nos. 10-1687 & 10-2442 49 the development of this classified set of interrogation methods. personal responsibility from the complaint. finally, we right to relief above a speculative level, that plaintiff bivens remedies to alien detainees alleging that u.s. personal responsibility rests on allegations that are far more that, if true, their treatment, when considered in the (...continued)3 so offensive to a civilized system of justice that they 603 (sack, j., concurring in part and dissenting in available. the first step is to consider whether there is a and fifth amendments certainly protect u.s. citizens argued february 10, 2011--decided august 8, 2011 standing that the courts should exercise caution before "automatic entitlement" to a remedy for a constitutional authorization for use of military force against iraq judiciary should not interfere with military decision- well as the constitution. allowing bivens liability in were awakened and arrested, handcuffed, blindfolded, army for improper arrest and treatment in detention); produces the deprivation of a single, identifiable plaintiffs to allege adequately the violation of a clearly with corruption and other illegal activity. ¶¶ 18, 42. view at this stage as to whether plaintiffs can prove abuses, despite his actual knowledge that u.s. citizens 2011 wl 2462851, at *4-7. the d.c. circuit's opinions in the fact that the plaintiffs are u.s. citizens is a key swierkiewicz v. sorema n.a., 534 u.s. 506, 513-14 (2002). balance mentally. ¶ 156. remedies u.s. citizen-journalists have in war zones. the united states acts against citizens abroad it can do that acts of official torture violate customary interna- knew of the reports of abuse and regularly reported supreme court nor any other federal circuit court has first, if, as plaintiffs allege here, there was a problem plementary roles played by the three branches of tirely a creature of the constitution. its power and 2010) (observing that courts are "still struggling" with "how the defendants do not argue that congress has created be enforceable in a war zone and, if so, what the limits military personnel in an active war zone should not 357 f. supp. 2d 274, 283-84 (d.d.c. 2005) (recognizing authorizing, supervising, implementing, auditing and/or erty -- whether in fort hood, texas, or in rock island, ments "certainly protect u.s. citizens detained in the the key elements of plaintiffs' claims for constitutional arar v. ashcroft, 585 f.3d 559 (2d cir. 2009) (en banc) those allegations in the light most favorable to the plain- defense's april 16, 2003 guidance for gtmo." id. at 201. a congress." wilkie v. robbins, 551 u.s. 537, 550 (2007); dealing with civilian claims against military personnel, location. we do not find this reasoning persuasive. the pandora's box. responsibility--his actual authorization of abusive interroga- the separation of powers, but instead reinforce the com- torture they experienced was of the kind "supposedly were placed in a cage, strip-searched, fingerprinted, and to their torture. if adequately pled, that is sufficient at eighth amendment claim shows that the "official acted this and other cases will be "well after the fact" given the significant pitfalls of judicial entanglement ever, has more room for nuance, and the second circuit http://www.state.gov/g/drl/rls/68554.htm (last accessed aug. 4, has also addressed detention standards in a criminal would deprive civilian u.s. citizens of a civil judicial should have dismissed the plaintiffs' property claims nos. 10-1687 & 10-2442 83 after iqbal and twombly that plaintiffs may still suggest facts stressed that "allowing a bivens action to be brought will be. confronted by allegations as horrible as those different contexts and different special factors. it ap- could reflect poorly on u.s. officials in iraq. ¶¶ 1, 4, 132. we conclude that the plaintiffs have sufficiently substantive due process claim under the fifth amendment. [for engaging in practices involving detention and hesitation." clearly they do, and therefore supreme the supreme court "has long held that certain inter- had his head covered and was repeatedly "walled," or interrogation policies in iraq, and as allegedly "directed, only when they have a mutually enforcing effect that conditions separate from the general prison population, alleg- other parts of the constitution provide to protect his (allowing civilian's bivens claim to proceed against or dead. ¶¶ 1, 161. eventually, vance and ertel were asserted that vance and ertel in fact did complain vigorous extension of the iqbal pleading standard, for example, elaborate and well-structured scheme for remedies and publicized in the media, congressional testimony and sleeping. ¶¶ 148, 149. heavy metal and country music doctrine protects government officials "from liability courts should not have to put the lid back on acknowledged at oral argument, however, neither the the defendants cite a number of cases, both habeas dards, humanity, and decency . . . against which we have the natural tendency to affect diplomacy, foreign ages. third, during oral argument, plaintiffs' counsel and authorized by the u.s. government: nary rendition. those cases presented very disturbing the amicus brief filed by former secretaries of defense and1 iii. conclusion secretary rumsfeld's personal responsibility for plain- through an alleged deliberate denial of needed medical miss is affirmed. the decision in no. 10-2442 denying general policy in favor of allowing parties to have their cases most recently, in ali v. rumsfeld, the d.c. circuit fol- ongoing abusive treatment of detainees, including americans. described in the complaint. this argument misunder- their own government. alien tort statute, 28 u.s.c. § 1350. section 2(a) of that were widely reported by amnesty international, the were 64,253 defense department contractors and 45,660 uni- is limited to "the narrow question presented by the ex- they acted on the basis of religious or ethnic bias or the motion to dismiss in the same way. reynolds v. cb sports 2001). involving manipulation of lighting, heating, food, activity," and therefore "weigh against the argument rivation." ¶ 232. in 2003, secretary rumsfeld allegedly necessary, the plaintiffs actually specified the clothing confirm that the practices were in fact . . . terminated." detail in their complaint whether they sought and were green light to a much broader implied cause of action treatment. in fact, when congress enacted the detainee then there would be no "adequate and available yale l.j. 1660 (2009). the court relied on the alien citizenship of the plain- president but in violation of statute). trast, the inquiry before us is whether the plaintiffs have and the narrow focus of the asserted claim, we turn to high-ranking government officials. it is not, however, a contraband, and who seemed intent on keeping them off- defendants do not, that congress has created an states, they take with them their constitutional rights that that the united states would not provide such a remedy cial review of wartime decisions will necessarily in- military detention decisions, but these are clearly engaged in ongoing hostilities in iraq. while in some nos. 10-1687 & 10-2442 5 secretary rumsfeld and the united states moved to v. chrysler credit corp., 18 f.3d 434, 439-40 (7th cir. 1994) interrogations. ¶ 162. when they were not being inter- tiffs have pled. there can be no doubt that the deliberate congress has acted to provide civil remedies to aliens who cedural due process, specifically through the denial of a his rights, and such claims could implicate foreign affairs unconstitutional cruel, inhuman, and degrading treat- where congress has authorized such claims by non- camp cropper they were strip-searched while still blind- did not provide adequate safeguards to protect pris- 72 nos. 10-1687 & 10-2442 the plaintiffs have adequately pled the "kind of active orations); dawson v. general motors corp., 977 f.2d 369, 372 district court concluded, is a paradigm of conduct that omitted); see also al-zahrani v. rumsfeld, 684 f. supp. 2d though vance and ertel were never charged with, let bivens remedy in this case. a couple of final concerns of caution," discovery on the application of the "military two-step sequence that the supreme court articulated documents with u.s. officials. ¶ 47. vance and ertel ernment contacts, sometimes multiple times a day. ¶ 45. exposure to extreme cold, sustained failure to sleep, but the lights were kept on 24 hours a day. ¶¶ 142, question is whether a reasonable official in secretary violated any clearly established constitutional rights: process rights apply to u.s. citizens detained by the 692 (2004) (describing the history of the alien tort statute consideration here as we weigh whether a bivens that the plaintiffs may proceed with their bivens claims. of terrorism ties. for example, the defendants cite arar cautious approach before extending a bivens remedy conclusion in two cases where congress has established has acted unlawfully." id. but the foreign status of the plaintiffs and potential the murky waters of that most amorphous of constitutional and ertel for six weeks. ¶¶ 2, 20-21, 146-76, 212. they third, when civilian u.s. citizens leave the united erned the treatment of the detainees in iraq and for not the geneva conventions, the coalition of provisional malesko, 534 u.s. 61, 71 (2001). that point does not end in rejecting the defendants' "special factors" arguments direct us to exercise caution in recognizing bivens as weak as the government's authority is, kar has decided a number of bivens cases brought by civilians protect them from their own government. in reid v. the military police officer. circuit courts have also were threatened that if they did speak, they would have ordinary to find that there is no such remedy for u.s. allege that the u.s. government officials in iraq fabricated in any civil action or criminal prosecution against assume that congress was aware that bivens might requirement). as professor miller has suggested, "inconsistent review. id. it has not provided these plaintiffs any rem- as creating any substantive or procedural right absent undue delay, bad faith, dilatory motive, or undue into national security should not prevent us from recog- citizens' rights. there may be difficult questions ahead,24 ally concluded otherwise be relevant to the bivens special factor in bodily integrity, that actor violates the constitution, do not provide any guidance to the issue at the heart of the first step of the inquiry is to consider "whether physically and emotionally by what they endured at of their race, religion, or national origin. because there was not allowed to disclose their location or anything about member of the u.s. armed forces could not sue another suspicions. ¶ 43. he met with an fbi agent, who e.g., al-kidd, 131 s. ct. 2074 (deciding both constitutional officials caused them to be tortured, one case arising u.s. congress and citizens of nicaragua brought 4 nos. 10-1687 & 10-2442 "official responsible for terminating this pattern of sider congressional intent in this area. subordinates' duties); bivens, 403 u.s. at 395-97 (col- bivens claim should be recognized. first, courts must be barred because detainees who are being tortured implicated by the defense of qualified immunity" and is 562. the court focuses most of its attention on the "special held in solitary confinement, in small, cold, dirty cells history, as well as the gravity of the claims before us, we against those who act on the public's behalf." id. at 550, dismissal of the personal property claims under the for the northern district of illinois, eastern division. donald vance and nathan ertel are american citizens the munaf court later made clear that the habeas not be `cruel and unusual' under the eighth amendment." the face of both internal reports and well-publicized common-law tribunal, paying particular heed, however, that the constitution permitted him to torture, or to christensen v. county of boone, 483 f.3d 454, 458 (7th cir. 2007). the torture victim protection act would rather have the "military authority" exception to the administra- "used to administer electrical shocks to various sensitive the detainee treatment act. kar's circumstances ignores the differences between march 2011, the department of defense had more contractor b. precedents supporting plaintiffs' claims missed plaintiffs' claims against secretary rumsfeld for policies continued to condone the unconstitutional prac- quate." bagola, 131 f.3d at 645. here, there is no statutory atory intent to detain aliens who were illegally present in the has violated the constitution." iqbal, 129 s. ct. at 1948. remedy at all. we must proceed to step two of the bivens part of the multinational force -- iraq ("mnf-i"). we assume the administrative remedy of inviting detainees to officials of his own government. and bivens provides uncertainty on the point, congress had twice recently mcmillian, 503 u.s. 1 (1992) (concluding that the use cause us to close the courthouse doors to the serious discretion, and whether or not they have been over- nos. 10-1687 & 10-2442 47 citizens tortured by their own government. in taking the sonably." we review de novo the district court's decision munity from suit. whether there should be judicial2 about their treatment while detained. at least one of tiffs' treatment and the doctrine of qualified immunity. claim here "vaults over this consensus" and "too-casually ment accountable but also to secure individual liberty."); nos. 10-1687 & 10-2442 45 detention, that "it would turn our system of checks and the u.s. state department has assured the united nations may submit a complaint about their treatment to the the ordinary remedy for an invasion of personal interests after the fact, should not impinge inappropriately on actually support the plaintiffs' claims that secretary rumsfeld act of 1991, pub. l. 102-256, codified as a note to the proceedings in open court. arar, 585 f.3d at 575, 576-77. u.s. military in a war zone, this appeal presents no laws that provide civil remedies under u.s. law for ordinate, and the actor may be held liable for the in the responsibility for their alleged treatment and that our thinking about whether the alleged abuse violated a united states to recover personal property seized from the notice pleading regime of the federal rules of civil pro- munity. the district court also rejected the defendants' 42 u.s.c. § 2000dd-1(a). this express but limited defense21 detention and interrogation techniques in time of war. 66 nos. 10-1687 & 10-2442 we thus look to the case law for both substantive due process as the supreme court has held: "due process requires that a access to the green zone, effectively trapping them ment, none of which provide detainees with a statutory sonally established the relevant policies that authorized the must be cautious in addressing the question, but we resident alien status counsels in favor of recognizing a them in the middle of a war zone. furthermore, while deny all civil remedies to civilian u.s. citizens who this is not to say that we think that citizenship should be a19 narcotics, 403 u.s. 388 (1971). specifically, the court would be personally responsible for the treatment of 14 nos. 10-1687 & 10-2442 no. 06 c 6964--wayne r. andersen, judge. their "special factors" arguments invite us to look more via confidential addendum to the army field manual. the for by any statute or regulation, for a constitutional in part secretary rumsfeld's motion to dismiss, allowing fies two alleged bases for secretary rumsfeld's personal afghanistan), and the other as part of the war on terror, not taken up the question of bivens in the context of actually contrary to explicit statutory law and stated specifically outlawing the interrogation techniques that an explicit indication from congress, we will not foreclose united states." see ronald w. reagan national defense constitution. when the government reaches out to wiretap), aff'd in pertinent part, 452 u.s. 713 (1981); butz if we were to accept the defendants' invitation to recog- parts of an inmate's body" in prison that authorized the in iraq. ¶ 240. the plaintiffs allege that then-secretary matters are "rarely proper subjects for judicial interven- to serious medical needs states a claim under the nor in time of war." id. at 720. the atomic blast occurred 88 nos. 10-1687 & 10-2442 ment, including reports that their supervisor, who case against postmaster, that a federal official's liability military and national security policy in a foreign war zone. donald rumsfeld and the men had face-to-face conversations with the com- military custody in iraq, though in munaf itself, relief nos. 10-1687 & 10-2442 51 citizen victims of torture by foreign governments, it nos. 10-1687 & 10-2442 77 other cruel and unusual treatment while being held in 30 nos. 10-1687 & 10-2442 described in bush: "the federal courts must make the by not ensuring that the detainees were treated in a that those cases involved aliens, rather than citizens. seen.) we differ with the district court in one respect, of military detention in a war zone. bivens.17 camp cropper. ¶ 176. vance and ertel were not only argue that the plaintiffs' only "concrete allegations" to a constitutional violation. in sum, a reasonable official commissions act of 2006, pub. l. no. 109-366, 120 stat. bribery, and other suspicious activity and relationships. ¶ 26. specifically, they allege that in 2002, secretary as we focus on the claims before us. see forrest v. prine, required at this stage, but a fair reading of this aspects of that detention that would not have passed have been tortured by their own government, in viola- a violation of substantive due process in the context twombly than an argument about qualified immunity, is directive 5100.77 (dec. 9, 1998). def. sec. amicus br. at 11. see, e.g., mitchell v. forsyth, 472 u.s. 511 (1985) (holding eriors--in a domestic setting. but because none of them the second circuit held in filartiga v. pena-irala, "delib- (far removed from the usual prison context) are sufficiently the first set of allegations is entirely speculative. the purported 483 u.s. 669 (1987), two cases in which the supreme court secretary rumsfeld approved a new set of policies to civilian processes in the united states.23 bivens claim for excessive force, without suggesting that implementing that policy at various levels. further, judi- constitutional rights, the plaintiffs have alleged that he standing that federal courts have a role to play in safe- bility or any other public emergency, may be invoked as bivens framework by americans who claim torture and should not be considered "special factors counseling municado in their cells, and were not permitted to the detailed complaint, with its 79 pages and 387 para- defendants (attorney general ashcroft and fbi director in iqbal and twombly. see iqbal, 129 s. ct. at 1949, to those authorized in the army field manual, thus reliance on the newspaper report, but plaintiffs' case for plaint in the light most favorable to the plaintiffs, as judicial branch to refrain from providing a new and ber 14, 2003 policy `drew heavily' on the secretary of denied warmer clothing or blankets. even if it was not discovery to determine whether the "military authority" captured in areas where the united states was "engaged sion at a military base in nevada. the court held that proposed against a fairly narrow claim. the defendants 580 f.3d 949, 976 (9th cir. 2009) (finding that complaint this longstanding reluctance creates a veritable presump- remedies in the place" where the conduct occurred. tiffs' claims. the supreme court has repeatedly enter- fed. r. civ. p. 8(a). the complaint will survive a motion lished under bivens: (a) that civilian claims against factors" prong of the test. i will follow suit and assume adequately alleged secretary rumsfeld's personal re- see eric schmitt, "new army rules may snarl talks with review for persons aggrieved by government actions zone raises special factors that should caution us to officer was entitled to qualified immunity on civilian's inhere in judicial review of military activity in a time this nature will be exceedingly rare. we make no [he] himself created and implemented." id. ii. congressional intent nation's increased reliance on civilian contractors in modern the cases brought by aliens in ali and arar, all of whom such grave -- and, we trust, such rare -- constitutional repeat that nothing in ali or arar, or in the opinions in 795. this line of cases undermines the defendants' military policy, because they claim they were subjected personnel while they were detained indefinitely at camp the extraterritorial application of u.s. constitutional law, 118 supreme court observed that "where federally pro- its powers are not `absolute and unlimited' but are (...continued)1 support for the plausibility of plaintiffs' allegations. order for interlocutory appeal under 28 u.s.c. § 1292(b). convicted of, any crime only tends to emphasize how tained bivens actions against other cabinet members. is, the remedy extends (at least for now) only to u.s. receive adequate food, clothing, shelter, and medical and non-governmental entities,' which could have show the [defendants'] conduct violated a constitutional graphs, citing the pertinent paragraph numbers. vance2 outside of the pleadings to show that their complaints military official is not a basis for denying relief under tion against recognizing additional implied causes of scope of that discretion necessarily is wide, it does not reported that this list "drew heavily" on secretary rumsfeld's held that aliens detained as enemy combatants at acknowledge that the type of abuse alleged by the secretary of defense to ensure that polices are con- or similarly situated individuals. that is not to say plaintiffs would be entitled to an opportunity to amend their isolating conditions of their detention, plaintiffs allege, judicial inquiry into matters affecting national security and he contacted u.s. government officials to report his 8 nos. 10-1687 & 10-2442 risks of judicial review of wartime military activity; bivens claims were foreclosed by "special factors." id. at 54, 161.3 nos. 10-1687 & 10-2442 87 might even say hypocritical -- for the united states to alleged that secretary rumsfeld acted deliberately in "will only result from his own neglect in not properly superin- nos. 10-1687 & 10-2442 29 inquiry.15 pellate courts "have struggled, and continue to struggle, where issues concerning harsh interrogation techniques their broader allegation that secretary rumsfeld con- approved and sanctioned" by secretary rumsfeld, the implications of its holding. it stresses that its holding 146, 149. the plaintiffs each had only one shirt and precedent in its favor; (2) the underestimation of the asserted claim. we then turn to the bivens precedents interrogated with physical violence and threats, were omitted); see also estelle v. gamble, 429 u.s. 97, 102 (1976) handles a complaint or request, they may submit it in writ- authorize the torture of, a civilian u.s. citizen. the defen- when their conduct "does not violate clearly established the totality of the plaintiffs' allegations, that they were sumption against recognizing claims in new contexts. the pretrial detainee not be punished. a sentenced inmate, on the to a reasonable officer that his conduct was unlawful in review. the plaintiffs have pled that they were subjected remedy for torture or even cold-blooded murder by in not properly superintending the discharge" of his well-pleaded factual allegations sufficient to raise a that the united states is at war in iraq); qualls v. rumsfeld, able official in secretary rumsfeld's position in 2006 could result in a bivens claim if the action were charac- nationality of the parties." 630 f.2d 876, 878 (1980) courts reviewing claims of torture in violation of was entitled to sue the agents for damages, the designed to prevent constitutional rights from becoming a. factual allegations plausibility, but the court's opinion does not explain why the no person in the custody or under the effective law instructed then-secretary rumsfeld to take action stepped in a particular case, are judicial questions." to general miller's suggestion to use more aggressive violation by a federal official, and "any freestanding life and liberty should not be stripped away just because we respect these amici and their distinguished quoting bell atlantic corp. v. twombly, 550 u.s. 544, 570 tiffs were obviously considered a security threat when they were the supreme court refined its cautious approach to problem, the law provides tools to deal with it. as plete isolation. ¶ 146. vance and ertel were driven to nos. 10-1687 & 10-2442 89 note § 1092.9 and civilians. their complaint alleges in detail that they supply food and water, sustained sleep deprivation, applying the saucier test sequentially is not mandatory, it stitution governs the relationship between u.s. citizens sonally involved in and responsible for the alleged consti- tional pact between citizens and our government. decided on their merits. see, e.g., swierkiewicz, 534 u.s. at 514; inapposite. the defendants cogently object that the fact allege that all of the abuse they endured in those weeks respect to challenges to the factual basis of a citizen's alleges facts that might support liability where it visor or her subordinates) of which" subjects plaintiffs of the united states, were not absolutely immune from third, the court too-casually sidesteps the weight of codified at 10 u.s.c. § 801, stat. note § 1002. habeas corpus to challenge their detention and that the ("no exceptional circumstances whatsoever, whether that the forces holding vance and ertel were under the of habeas corpus in federal district court). cf. united the government's failure to take remedial measures to blooded murder of civilian u.s. citizens. the united tive acts to supervise and correct the actions of his sub- rely on habeas corpus cases rather than cases permitting lished by congress for victims of official wrongdoing. from other circuits; (4) the inapplicability of recent plaintiffs also raises important questions about what also be extended to iraq. ¶¶ 235-39. the plaintiffs claim, was the physical and psychological abuse by prison these allegations, for which they were never charged, in retalia- legations as part of the totality of allegations and the of personal interests in liberty, and quoting marbury v. (citations omitted) (noting that the eighth amendment techniques generally, but took no measures to end the without factual development. the defendants seek to blindfolded, and transported to camp cropper, a u.s. the door on judicial remedies that are "otherwise avail- cans' liberty. the district court correctly allowed plain- munity, not absolute immunity, from damages suit of their own government. we recognize that wrongdoers nally prosecute the petitioners. id. at 694-95. described in this case, it is understandable that the over the plaintiffs' claim. we review this question of the "mnf-i." nize the broad and unprecedented immunity they seek, remedy is available for the alleged torture of civilian u.s. against american military officials engaged in war would interpret shield group security's actions as taking them the same abusive treatment of a convicted prisoner would other hand, may be punished, although that punishment may rumsfeld was responsible for creating policies that gov- 2. the complaint wise for defendants' most sweeping argument, which that, under the plaintiffs' approach, any military action without creating a civil right of action, defendants infer no. 100-20 (1988), 1465 u.n.t.s. 85, 113 (1984), at art. 2 as to the modest property claim against the united national law and our leadership in opposing torture give effect to the convention against torture gave u.s. courts not needed to defeat a defense of qualified immunity. all personnel who actually carried out orders to torture nos. 10-1687 & 10-2442 11 a distinguished collection of fourteen former secretaries of3 tional law. and while not all customary international is still "often appropriate." pearson, 129 s. ct. at 818. see, nos. 10-1687 & 10-2442 33 if the plaintiffs' allegations of torture are true, there was claims presented by these allegations. at 2082-83. roman v. townsend, 224 f.3d 24 (1st cir. 2000) (civilian for starters, this case is not about constitutional rights, be left for congress to resolve through the creation (or been abused or mistreated by their federal jailors," see, simply who--the courts or congress--should decide including our ability to work with foreign govern- act provides a cause of action for civil damages against but the defense theory is of particular concern because of our and the american people have always stood against too broad to be convincing. in arguing that the district court erred in holding that merits and qualified immunity); hanes v. zurick, 578 man." brown v. plata, 131 s. ct. 1910, 1928 (2011) (citations terms of the constitutional compact between our govern- prisoned while not even charged with, let alone a judicial remedy for u.s. citizens alleging torture by and 28 u.s.c. § 1292(b). e.g., farmer, 511 u.s. at 832; hudson, 503 u.s. at 4; estelle, ever a plaintiff seeks a particular remedy not provided address the defendants' specific concerns about the here are u.s. citizens entitled to the full protection of our tions now before us. the bivens case law weighs in favor be extended to suits against military officials for dispositive factor in all bivens cases implicating national nos. 10-1687 & 10-2442 19 war zones have refused to recognize a bivens remedy. authorized state practice of chaining inmates to one factual matter, accepted as true, to `state a claim to relief defendants' broad argument that the judiciary should the question is whether the "military authority" exception eighth amendment); board v. farnham, 394 f.3d 469, 480- alternative remedy, an implied bivens remedy is neither ¶¶ 45-104. their whistleblowing allegedly included the he receives an injury."); little v. barreme, 6 u.s. (2 cranch) commander of the united states-led military coalition in authorization act for fiscal year 2005, 10 u.s.c. § 801, stat. the "military authority" exception did not apply be- detention and alleged mistreatment); minute entry (order on constitutional right. as the supreme court concluded note § 1092 (stating that u.s. military policy prohibits finally, the court does not recognize the far-reaching whether one agrees or disagrees with ali and arar, violation of the fifth amendment do not endanger potentially thousands of wartime claims from american right." id. at 201. second, we determine if the right intent required here would be deliberate indifference, as bilities in executing it are relevant in evaluating the nothing in this section shall be construed to limit branches. this design serves not only to make govern- only question before us is whether these complex ques- 1134 (d.c. cir. 2003), rev'd on other grounds, rasul v. bush, been presented as fifth amendment substantive due stitution.' " 553 u.s. at 765, quoting murphy v. ramsey, consistent with the international obligations and sonally carry out the alleged violations of plaintiffs' defense donald rumsfeld and other unknown defendants plaintiffs argue that, despite that specific direction from federal constitutional and statutory rights. no analogous i also have serious reservations about other aspects of the6 who committed terrorist attacks" -- the court held that per- (...continued)22 v. lucas, 462 u.s. 367 (1983). inference could be drawn that a substantial risk of we are fully aware that prohibitions against torture in this case, i respectfully dissent. 10 nos. 10-1687 & 10-2442 terized as a violation of some government policy. the eighth amendment). the plaintiffs in this case, detained (holding that alien victims of torture in paraguay could federal prison officials as bivens claims. see, e.g., bagola, by aliens to use bivens to seek relief from u.s. foreign military decision-making. approved. the second set of allegations may have greater 550. the short answer is no. the defendants do not sug- we must, the plaintiffs have pled facts showing that it (1979) (holding that congressional employee could sue strap five feet long and four inches wide" as part of work program where workers' compensation program (...continued)6 rights and procedures." 585 f.3d at 635 (calabresi, j., into matters of national security or disrupting the mili- c. the defense arguments and precedents for balances on its head to suggest that a citizen could not recently reaffirmed in boumediene, holding that aliens seling hesitation," it is the risk of the judiciary prying claims by u.s. citizens who have not been charged with, released, when a new field manual (field manual 2-22.3) was and psychological abuse would end. ¶¶ 1-4, 19, 21, 52- held as combatants at guantanamo bay may invoke the ity to survive a motion to dismiss under rule 12(b)(6) be served with process), vance and ertel could sue him the cells, in which they spent most of their time in com- has given the social security system and disability not lose their constitutional rights when they venture abroad. then the judicial branch -- which is charged with enforcing tive, and the defendants do not argue otherwise. the tion not authorized by and listed in the united states rule 12(b)(6) may elaborate on his allegations so long as the judge calabresi explained in arar v. ashcroft, the state- 511 (1985). the broader bivens issue is "directly while it may be unusual that such a high-level official secretary rumsfeld sufficient notice of the claims aggregate, amounted to torture in violation of their right ertel were in baghdad during an armed conflict. see, e.g., their loved ones did not know whether they were alive levels of the united states government. we express no 1988) (concluding that "a bivens action may potentially v. ashcroft, where the sharply divided second circuit officers for fourth and fifth amendment violations); rumsfeld "personally approved a list of torturous inter- (1988). in that arena, courts will necessarily have to pass bility. these unusual circumstances would not make courts, as "military authority" exception did not prevent judicial of governmental power without reasonable justifica- that their property was taken by members of the military the hands of their own government. ¶ 213. 8-8-11 of state colin powell confirmed that secretary rumsfeld public service. for three reasons, however, we are not war zones. a majority of our nation's wartime presence in applewhite v. united states air force, 995 f.2d 997 (10th 694 f. supp. 2d at 961. "when a plaintiff presents military facility near baghdad international airport. at *6; arar, 585 f.3d 559. it does this by pointing out executive branch officials, including a former president from prosecution for any criminal offense by the and ertel both allege that they were devastated we can only summarize here the key allegations in the tortured prisoner could sue for damages under sidesteps the weight of precedent from other circuits." dissent replaced until september 2006, after plaintiffs had been all times in their cells, so that the plaintiffs experienced basis employing the state-secrets doctrine). if the u.s. nos. 10-1687 & 10-2442 25 f.3d 899, 900 (7th cir. 2005). as we have consistently said, from war zones, ali v. rumsfeld, ___ f.3d ___, 2011 wl (concluding that the eighth amendment "embodies in a series of cases, the d.c. circuit has rejected efforts states were treated in a "humane manner consistent comprehensive and well-defined civil remedies: social u.s. and iraqi government officials who were involved before explaining the particulars of my disagreement and his deliberate indifference in the face of knowledge of accepting defendants' invitation to consider other factors analysis. arar, 585 f.3d at 573-74. i. military affairs and national security 50 nos. 10-1687 & 10-2442 on abuse of prisoners are permissible; (c) that the con- the "special factors" debate, but it provides a useful degrading treatment or punishment, s. treaty doc. from the beginning that courts will be alert to adjust denying a criminal trial for fear that a juror might be broadly for indications of congressional intent as to using the unconstitutional abusive practices that he had first apprehended; why should the fact that the military eventu- oner's eighth amendment rights); del raine v. williford, the defendants also argue that the plaintiffs offer no comparisons." at this stage of the case, we are year 2005, 10 u.s.c. § 801, stat. note § 1092; military not persuasive. the defendants argue, for example, that the legitimate special factors of national security and this case. namely, whether judicial review of actions judiciary should not create damages remedies in action may proceed. as the court in reid concluded:19 nos. 10-1687 & 10-2442 75 military officials for their alleged concealment of alleged illegal torture by their own government. confiscation of property occurred "in time of war." the was the driving force behind the constitutional plan secretary rumsfeld from liability. the qualified immunity basis is a single article in the new york times that does not tion in a department of defense facility shall be military or foreign policy." interrogated but continuously threatened by guards final report of the independent panel to review dod deten- indications of congressional intent, we find other activity back to chicago. the fbi agent also requested outside of the army field manual if he personally ap- saucier v. katz, 533 u.s. 194 (2001), and even cabinet 82 nos. 10-1687 & 10-2442 requires u.s. courts to decline to hear such claims "if 22 nos. 10-1687 & 10-2442 but our job is to deal with those questions. we should (1988) (refusing a cause of action of social security com- should leave the creation of new remedies to congress, a failure to issue blankets"). if a u.s. prisoner with a 74 nos. 10-1687 & 10-2442 whether a bivens remedy is available and whether particular clear boundary between what is sufficient and what is not. the defendants emphasize the last sentence in the21 in time of war as well as in time of peace, [is] to u.s. forces in iraq, did not investigate or correct the the narrowest issue to the broadest: (a) that plaintiffs ¶¶ 146, 217-18, 242-44, 265. the lights were kept on at members, mitchell v. forsyth, 472 u.s. 511 (1985). these4 robbery and assault can land an american civilian in review of these claims is a policy question, one that conley to twombly to iqbal: a double play on the federal rules the time they were taken into custody. slammed into walls on the way to interrogation state secrets are protected: "denying a bivens remedy seek. they are not challenging military policymaking we agree with the district court that the plaintiffs may in the administrative procedure act, which prohibits became suspicious that the company was involved united states law provides a civil damages remedy for remedies in the place" where the conduct occurred (a that congress has permitted the limited relief of habeas on individual judges having quite different subjective views let alone convicted of, any terrorist activity. war zone is not rare. these and common crimes of in military hostilities pursuant to the joint resolution and intentional disregard for their treatment" that the of the supreme court's decisions on prison conditions exhaustion; each had a concrete slab for a bed, ernment's motion to dismiss the plaintiffs' property claim. exception precludes judicial review of military actions issues based on the assumption that the allegations international committee of the red cross. ¶¶ 245-51. the a war zone. in a separate order, the district court denied alleged torture by u.s. government officials. are arguing for a truly unprecedented degree of im- officials who promulgate policies that are enforced by nos. 10-1687 & 10-2442 17 to act despite his knowledge of a substantial risk of iraq and afghanistan has been made up of private contractors. lishes the right of a u.s. citizen to a prompt probable norwood, 602 f.3d 830, 836 (7th cir. 2010). given this the unprecedented breadth of defendants' argument important to keep these fundamental concepts in mind the only available remedy. f.3d 564 (7th cir. 2003) (civilian claim against military 527, 532 n.4 (d.c. cir. 2009) (rasul ii) (internal quotes report his observations. ¶¶ 44-47, 49. vance told his immunity are entirely distinct questions. "immunity" is "even when the united states acts outside its borders, inside the firm's compound in the red zone. ¶¶ 107-12, called himself the "director" of the "beer for bullets" interest amounts to a convincing reason for the ment was a "clearly established" constitutional right civil liberty"). recognizing the plaintiffs' claims for ments with a decision not to provide these citizen- plaintiffs contend that secretary rumsfeld was the complaints that "illustrate the simplicity and brevity there. see ¶¶ 3, 28. in 2005 and 2006, before their deten- analysis. seling hesitation in the absence of affirmative action by a reversal for inadequate pleading would require an opportu- suits by aliens, not u.s. citizens, detained and suspected 242, 268 (1812) (in case against postmaster, federal de novo. see thomas v. general motors acceptance corp., it permit inhumane ones." farmer, 511 u.s. at 832 in nicaragua. in rejecting the obvious invitation to a state of war or a threat of war, internal political insta- present different issues. that is not what plaintiffs lecting cases showing that damages against govern- tion. . . . it is most often described as an abuse of govern- and were "walled," i.e., slammed into walls while being recognize the consequences of its holding and the prece- protect soldiers who were exposed to an atomic explo- nos. 10-1687 & 10-2442 39 claims that our government tortured its own citizens. american forces." munaf, 553 u.s. at 680. thus, courts do not amount to a violation of a constitutional right. court precedent dictates that these sensitive questions resolution of 2002, pub. l. no. 107-243, 116 stat. 1498 claim that they were continuously tormented by the barrett v. united states, 622 f. supp. 574 (s.d.n.y. 1985) of confinement and prison treatment cases, we remem- our nation's long commitment to comply with inter- categorical bar on claims against these officials." vance, secretary's knowledge of and responsibility for the treatment overlap in the special factors analysis that applied in authority memorandum #3, and the uniform code of weigh against recognition of a bivens remedy under the 535 f.3d at 710. this may be a serious concern, but at a however, the defendants have asked us to decide the ¶ 127. the plaintiffs shared information about shield limited precedent to date. while the supreme court has that agency's most senior officials were personally "re- plaintiffs' motion to compel discovery). but the district court secretary rumsfeld was not protected by qualified im- causes of action for some violations of the law of nations). the claims have been pled. corpus actions--essentially equitable relief--says next to our reasoning would prevent congress from addressing the in this complex and perilous arena is congress's role, is outdated. wilkie, 551 u.s. at 568 (thomas, j., concurring); judicial remedy against federal officials even if the result the merits of a claim' rather than on technicalities that village of lemont, 520 f.3d 797, 802-03 (7th cir. 2008). we iraqi security services company, shield group security, and a person of ordinary sense and understanding for a complete and unprecedented civil immunity taking the factual allegations in the complaint as true, as it decided not only twombly, but also erickson v. pardus, 551 likes of which the plaintiffs have raised, would amount forbidden by . . . the constitution"). the defendants do be abused in such a manner and not have judicial thus also properly before us. wilkie v. robbins, 551 u.s. defendants-appellants. military activity. hamdi, munaf, and boumediene thus weigh issue regarding the fact of plaintiffs' detention or some possessed large weapons caches and that might be involved in him without probable cause. in holding that bivens ber that abuse in american prisons was once authorized treatment of detainees is inexorably linked to our

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